*1 sрondent cites the fact the protection extended order of was entered on p.m., October at original 2:20 and the plenary order of protection expired that morning same at 9:20 a.m. again reject We respondent’s contention.
Here, petitioner filed her motion to prior expiration extend original order and the matter was scheduled for hearing on the day expiration. While technical argument may bе made the origi- nal order had at expired extension, the time of we find the minor lapse of time to be de minimus. We find no error the part of the trial issuing an extended order at this time. judgment of the circuit Champaign County court of is af- firmed.
Affirmed.
COOK, EJ., STEIGMANN, J, concur. COMPANY, Richter, CROPMATE UAP Appellant, v. THE INDUSTRIAL d/b/a (Jeffrey Pinkerton, et Appellee).
COMMISSION al. Fourth District No. 4 — 99—0377WC Argued February Opinion April filed 2000. 2000.— *2 RAKOWSKI,J., concurring. specially Missouri, Thoenen, Dixon, Louis, appel- of
James A. Evans & St. for lant. Way, Springfield, appellee.
Dan E. for of the court: opinion JUSTICE RARICK delivered the Pinkerton, pursuant Claimant, Jeffrey sought benefits (Act) (820 (West 1994)) et seq. Workers’ ILCS Compensation Cropmate Company injuries employ for sustained while in the (Pink- uncle, Pinkerton (Cropmate). Claimant worked for his William erton), building Cropmate. a for On erecting pole who was building, working slipped while on the roof of the claimant his right sustained severe laceration to forearm. Cropmate with to erect a chemical cоntain-
Pinkerton contracted Illinois, Hall, building property ment White Cropmate’s (EPA) by required the Environmental Agency Protection and the Il- Department Agriculture. linois The building be used storing, loading, unloading by Cropmate materials utilized Cropmate its business. inwas of manufacturing, selling, delivering, applying pesticides and insecticides.
Cropmate solicited bids for the erection of the structure and $7,000. received bid from Pinkerton of paid Half was be when began рaid Pinkerton the work and half would upon be completion. Initially, agreement starting verbal. Several weeks after project, Pinkerton requested $3,500. time, the first At that Pinkerton sign was asked to provided written contract. He form contract Droves, Marla Cropmate’s secretary. Although the contract boilerplate clauses, contained various particular none of the terms were filled in. signed Pinkerton went ahead and the contract. Included boilerplate language was a provision contractor, that the Pink- erton, would obtain workers’ compensation insurance. The contract appears August 3, 1994, to be dated but it is unclear.
Cropmate obtained the funds to parent erect from its company, ConAgra. Houston, Cropmate Larry hired an environmental coordinator, provide plans blueprints, approved by which were ConAgra. Larry Mеyer, comanager Cropmate, testified that would be considered a asset and that received building. benefits from the He further testified *3 compliance would not be with environmental and Department of Agriculture regulations the building unless was built. He also testified that the materials to be building stored the containment were not toxic, some but were hazardous.
Pinkerton testified Meyer Meaks, that both and Crop- Richard comanager, mate’s оther as inquired to whether he had workers’ compensation He he Meyer insurance. told them that did not. and Meaks him he had compensation told to obtain workers’ insurance they payment before would tender final to him. further Pinkerton did agent Cropmate stop testified that at no time tell him to that, erection of the structure. Pinkerton at the time of the ac- stated cident, he in the process obtaining compensation workers’ in- surance had not so. but done testified that he
Meyer knew Pinkerton did not have workers’ compensation at the Cropmate accepted insurance time Pinkerton’s bid, Meyer attempt during and made no the erection of the structure verify to that Pinkerton had obtained compensation workers’ insur- insurance, necessarily Meaks he ance. testified that discussed but not insurance, workers’ He compensation with Pinkerton. stated that аt during no time to or the erection of the did he make prior compensation had workers’ verify Pinkerton whether any attempt that he Pinkerton telling Meyer and Meaks denied Both insurance. compensa- he workers’ final until obtained payment not receive would insurance. tion to build Cropmate provided the materials
Pinkerton testified Meyer building, and that structure, consisting prefabricated of a at present structure and were рlan a floor provided and Meaks prog- on the basis, conferring Pinkerton daily on a with the worksite compliance with EPA and and on erecting the structure ress Agriculture regulations. Department from 15, 1994, claimant, right-handed, fell
On who was He structure, severing arm. nearly of the top rafters Center, Hospital to Memorial Medical taken Passavant then Claimant of Dr. Richard Brown. where he came under treatment the reattach- including surgery, underwent extensive reconstructive artery. He totally radial nerve brachial ment severed care, including physi- follow-up underwent months of subsequently Buescher, who him for cal Claimant also saw Dr. K. treated therapy. Dr. Brown nightmares coping problems. September On Claimant was released employment. told claimant he should seek other to return from Dr. Brown’s care in December with instructions job Although at as needed. Claimant undertook a sеarch. unsuccessful first, ultimately general he December found work laborer on 1995. significant grip
A loss of capacity functional evaluation revealed sensation, strength, that this condi- and motion. Dr. Brown testified that the loss of sensation has permanent. tion was Claimant. testified in his arbitrator ruled that inability resulted use various tooIs.The pursuant to section 3 statutory employee Cropmate claimant was a (West (820 1994)). of the Act ILCS The arbitratоr found required building owned the question, essential necessary and it was regulations, environmental revenue. The enterprise from which derived substantial an contractor further found that Pinkerton was uninsured arbitrator during the erection agents Cropmate prior and that knew to and in- that Pinkerton did not workers’ have surance. ill-being condition of
The arbitrator also concluded that claimant’s *4 work-related accident. This conclusion causally was connected testimony lack of upon Dr. Brown’s to that effect was based any prior injuries the arm.
The had a permanent arbitrator that claimant sustained found of of arm of thereof. The arbitra loss use to the extent 70% tor also found that claimant was entitled to temporary weeks of 695/? (TTD) benefits, period total disability from through November The 1997. arbitrator’s decision was affirmed and (Commission). by adopted the Industrial Commission The Commis County. sion’s decision was confirmed the circuit court of Greene appeal, On Cropmate argues first that the Commission erred as a determining matter of law in “statutory that claimant was its employ- ee.” maintains that it was not in the of erecting buildings any or of the other activities listed in subsections and 2.of section of3 the Act.
Section 3 of provides the Act in pertinent part: provisions
“The of this hereinafter following apply shall State, automatically county, town, and without election tо the city, incorporated district, township, village body politic or school or municipal corporation, and to all employers employ- and all their ees, any in engaged department following enterprises or hazardous, businesses which are to be namely: declared extra erection, maintaining, altering!,] removing, remodeling, 1. The or demolishing any structure. Construction, excavating!,] 2. or electrical work.” ILCS 305/3
(West 1994). Cropmate contends that if it is be statutory found to under employer circumstances, these then work on having prop- owner done erty by injuries a contractor would be liable for em- contractor’s ployees.
In determining
statutory
that claimant was a
employee Crop-
mate,
relied on
Commission
v. Industrial
Fefferman
(1978).
Ill. 2d
Feffermans,
295 Nothing storage business.” “by structure virtue of the nature Fef- in characterization of supports Cropmate’s in the facts Fefferman Rather, building the “storage” ferman’s businеss as a business. Further, goods. storage used for of Fefferman’s mercantile business, in determining factor was not the nature Fefferman Fefferman but the fact that the structure contributed to the revenue derived from his business. Comm’n, The court in on Pulliam relied v. Industrial Fefferman (1969). Pulliam,
43 Ill. 2d 253 In fu N.E.2d 448 the owner of a neral maintaining home was found to be a structure within the purview injured of section 3 of the Act. An in a fall from employee was a ladder painting while the funeral homе. The court that the reasoned building figured use of the prominently the revenues the owner received from his business. The court in noted that also Fefferman effectively Pulliam overruled a previous line cases insofar as those maintaining cases held that an incident did to business not maintaining constitute a structure under the Act. case, KLW,
In another similar & Graphic Group Inc. v. Industrial Comm’n, App. (1988), 3d 522 128 Graphic Group N.E.2d engaged paint William Dorsch to and plaster its office. Dorsch Londinski, subsequently employed claimant, day’s Mark to do one worth of painting. While so engaged, claimant sustained a fracture to leg. his lower left carry Dorsch did not workers’ compensation insur ance. The Commission determined Graphic Group was a statu tory employer and liable for ap workers’ benefits. On peal, Graphic Group argued that it not the statutory employer the claimant because it engаged was not in the business maintain ing rejected a structure. The court argument, finding Graphic this Group’s indirectly offices contributed to the revenue received Graphic business and that Group was therefore 1(a)(3) the meaning within of section of the Act. Graphic Group Both are directly point. The facts in present those cases are identical to those in the in all case meaningful aspects. The building being Cropmate erectеd for was to storage Indeed, be used for the materials it used its business. erection of the building required by storage the EPA for of such built, revenue, Once Cropmate materials. would derive albeit indirectly, from the building. Meyer testified that the would a capital be asset of Cropmate. Cropmate’s argument that section 3 does apply not because erection or maintenance a structure was not principal specificаlly rejected by business was our correctly Commission determined that claimant was a Fefferman. statutory employee of Cropmate pursuant to section 3 of the Act. next that the argues Commission’s determination (PPD) permanent partial disability is that claimant sustained 70% weight manifest of the evidence. contends contrary 27, 1996, on September that as of claimant’s last visit to Dr. Brown minimal and Dr. Brown felt that he had made a complaints his were hаnd, able to good recovery. Claimant has some use of is automobile, duty. Cropmate and is not on restricted drive an PPD urges us to reduce claimant’s award 30%. disability a ques
It that the extent of a claimant’s is is well settled Commission, by the and its decision will tion of fact to be determined weight of the evi contrary aside unless to the manifest not be set Ill. 3d Bryant App. v. Industrial dence. (1993). case, claimant, right- In who was present
N.E.2d dominant, perform his left hand to еven the most hand now must use *6 sensation in his hand grip strength routine functions. His Indeed, diminished. claimant’s loss of significantly and arm are all that Dr. Brown testified that it would be significant sensation was so American Medical As pursuant total loss of sensation to considered a supported by is guidelines. The Commission’s decision well sociation the evidence. award of
Finally, Cropmate argues that Commission’s 695/? the evi contrary weight TTD to the manifest of weeks of benefits was condition had stabilized as dence. contends that claimant’s 30, 1994, told him that he should start September when Dr. Brown maintains that state thinking types about other work. demonstrate that claimant ments made to Drs. Brown and Buescher damage chose not to as not to capable working, but so workers’ case. entitled, benefits, only TTD a claimant must show not
To be to work, work, and the dura he did not but that he was unable to that Ingalls Hospital Memorial v. tiоn for which he was unable to work. 775, 710, 716, Comm’n, App. 241 Ill. 3d 609 N.E.2d Industrial (1993). and the duration for a claimant unable to work Whether are of fact for the Commis questions he was unable to work which on review un sion, determination thereon will not be set aside and its City Granite weight the manifest of the evidence. contrary less 666 N.E.2d App. 3d City v. Industrial (1996). 827, 828-29 nearly in the case, claimant’s arm was severed present
In the claimant 15, 1994, Although Dr. Brown told accident. work,” other thinking “start about that he shоuld September testified that claimant was not release him to work. Dr. Brown he did through September the accident totally from the date of disabled 1995, and that he not improvement at maximum medical until Cropmate produced evidence, otherwise, date. no medical or contrary. but, Claimant testified sought that he had work because physical limitations, of his was unable to find until employment December 1995. The TTD contrary Commission’s award is nоt weight manifest of the evidence. foregoing reasons, For the judgment of the circuit court of Greene County is affirmed.
Affirmed.
McCULLOUGH, P.J., and HOLDRIDGE, JJ., COLWELL and concur.
JUSTICE RAKOWSKI, specially concurring: While majority correctly Fefferman, follows I assert that the holding is a misstatement of the precedent it is purportedly based on as well as a perverse interpretation of section 3 (820 (West 1994)). of the Act ILCS Accordingly, I write separately.
The language at issue in section 3 is clear and unambiguous. It states: provisions “The this hereinafter following apply shall ***
automatically and without employers election to all and all employees, their engaged any department following enter- prises or businesses which hazardous, are declared to be extra namely: erection,
1. The
maintaining, removing, remodeling, alteringt,]
added.)
or demolishing
structure.” (Emphasis
820 ILCS
(West 1994).
*7
Prior to Fefferman, the supreme court had consistently assigned a
commonsense interpretation to the above-emphasized language. In
fact, the court in
Comm’n,
Walsh v. Industrial
366,
345 Ill.
178 N.E.
(1931),
82
extensively
3,
considered the language of section
it
although
had already established the basic principles upon which this case is
Walsh,
based. In
the court defined
employment
“business” as “an
which occupies a substantial portion of the time and attention of one
engaged
Walsh,
in
369,
it.”
83;
court held: an maintaining a structure as
“The line
demarcation between
business,
rather than as a
business
incident
a
structure,
defined,
opinion
are of the
that
readily
a
is not
but we
is,
buildings or structures for
that where one maintains
safe rule
for
services or
profit
that
be as
profit, whether
received,
a
requires
maintenance
substan
way of rentals
such
attention,
engaged
to be
he must be said
portion
tial
of his time and
contempla
maintaining a
within the
business of
370,
Walsh,
Ill. at
[A]ct.”
345
Compensation
the Workmen’s
tion of
Accord Iowa-Illinois Gas at 486. held repeatedly has principles,
Under these
structures as rental
is to maintain
employers
principal
whose
Walsh,
pursuant
to section 3. See
accountable under the
properties
rented
370,
(concluding
employer
who
Ill. at
In 1969,
supreme
the
reapplied
court
the
principles
above
and
Pulliam,
rules in
43 Ill. 2d
case,
“The principal purpose of the funeral home
provide place
is to
family
for the
and friends of the decedent to
him
possibly
view
and
conduct a funeral service there. The
viewing
funeral service and
[be],
can
[are],
and sometimes
done
some other building. Never
theless,
viewing
possibly
the funeral service
normally
[are]
conducted at a funeral home which
designed
activity.
is
for this
While the cost of the use of the room or rooms
appurtenant
fa
cilities at the funeral
decedent,
home
family[,]
friends is not normally
separate
made as a
charge, there is no
doubt that such use
part
constitutes a
charge by
the funeral
short,
director. In
the use of the funeral home
activity
conducted therein is not unlike the use
aof hotel or motel room for
lodging or a hall
wedding
for a
reception
ceremony.”
or other
Pul
liam,
While reasoning in Pulliam that the funeral home business is akin to a business of owning managing properties rental is tenu- ous, it is nevertheless in accord with the aforementioned precеdent. However, the court in clearly misstates the holding in Fefferman, Pulliam. In employer inwas the business of supplying merchandise, textiles, government surplus, and hospital supplies. employer stored goods these at a held in trust for him and his In family. finding that employer was in the structure, followed purportedly the court in part:
Pulliam. It stated
funeral home to the
“Although
analogized
Pulliam
the use of a
wedding reception or other
or
room for a
renting оf a hotel motel
was a
as
ceremony,
clear rationale was that the
generation
conspicuousimpact on the
had a noticeable or
set which
*9
building. Pulliam
the owner of the
revenue from his business to
of
effectively,
silentio,
line of cases
overruled the Walsh
albeit sub
maintaining building
as an incident to
they
held that
insofar
(Emphasis
the Act.”
maintaining a structure under
business is not
omitted.)
at 1279.
Fefferman,
I that the respectfully submit progeny. Unfortunately, and its the one followed Walsh Feffer- intent disrespect the clear man court left us with no choice but has of the Act.