United States Steel Corp. v. Industrial Commission , 161 Ill. App. 3d 437 ( 1987 )

PRESIDING JUSTICE BARRY,

dissenting:

The majority boldly asserts that the instant case presents facts which are “virtually identical” to those in Youngstown Sheet & Tube Co. v. Industrial Com. (1980), 79 Ill. 2d 425, 404 N.E.2d 253, and “strikingly dissimilar” from those in United Airlines, Inc. v. Industrial Com. (1983), 96 Ill. 2d 126, 449 N.E.2d 119. I respectfully disagree, finding that the instant facts fall squarely between those in Youngstown and United Airlines and that a fair reading of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.), requires that we affirm.

In Youngstown, the court found that the petitioner’s employment at the respondent’s Illinois plant ceased and that when he was injured, the petitioner was working under a new, superseding employment contract at the respondent’s Indiana plant. Consequently, it found that the petitioner’s accidental injuries sustained at his Indiana employment were not covered under the Act. In that case, the Illinois petitioner received a lay-off notice from the respondent’s South Chicago, Illinois, plant when that plant was to be permanently shut down. After three months of unemployment, unemployment compensation, and job seeking, the petitioner received a letter from the respondent’s employment supervisor advising him to report for a job interview. He reported to the respondent’s plant in Indiana and was hired on a quasi-probationary basis. He remained as an employee at the Indiana plant. Approximately 12 years after beginning work in Indiana, the petitioner suffered the relevant accidental injuries.

In United Airlines, the petitioner was employed in the respondent’s continuing Chicago operations when he applied for a transfer. The respondent granted the petitioner’s transfer to San Francisco. The petitioner applied for benefits under the Act when he suffered accidental injuries while working for the respondent in California. In finding jurisdiction under the Act, the court distinguished Youngstown by observing that the United Airlines petitioner’s employment with the respondent was continuous and uninterrupted at the time of his transfer out of Illinois. It specifically noted that the petitioner had not been permanently “laid off” from his Illinois position and had not undergone comprehensive hiring procedures upon transfer. It also noted that the Act specified a contractual basis for jurisdiction and that any change in that specification would have to be legislatively mandated. It noted in conclusion that determining the existence of jurisdiction necessarily involved a factual inquiry as well as an application of law. It found that the arbitrator’s and Commission’s findings that the petitioner was injured while working under an Illinois employment contract were not contrary to the manifest weight of the evidence.

The case before us is not a case, as was United Airlines, where the petitioner employee was injured in a foreign State to which he had requested transfer despite the continuing availability of his work at the respondent’s Illinois jobsite. However, neither is this a case, as was Youngstown, where the petitioner received a lay-off notice from a plant to be permanently shut down and then experienced a significant period of unemployment before receiving notice of a possible out-of-State opening with the respondent.

Here, although the petitioner did not initiate the transfer process, the petitioner did choose his transfer; and his employment with the respondent was continuous and uninterrupted at the time he began employment at his new work site outside of Illinois. Furthermore, this case is less different from United Airlines than the majority suggests. United Airlines does not indicate that its petitioner was guaranteed a transfer to California or that he was assured continuing California employment once the transfer was granted. Rather, that case indicates that the petitioner applied for transfer to one of four different positions, the California transfer was the first available opening which he had requested, and the respondent granted the petitioner’s transfer request. Additionally, once he began his work in California, the United Airlines petitioner was subject to a probationary period, albeit with the right to resume his duties in Illinois in the event of his California failure.

When the instant respondent chose to close its Joliet, Illinois, coke oven operation, although it left open other operations at Joliet it presented the petitioner with several options: possible retirement, severance from employment with the respondent, or a possible plant transfer to California or Indiana. The instant petitioner’s options did not include remaining at his Illinois jobsite, as did those of the United Airlines petitioner. Nevertheless, despite the majority’s assertion to the contrary, the record reveals that after considering his options in 1958, the petitioner voluntarily requested a transfer to the Gary, Indiana, plant.

Clearly, the majority is unrealistic when it finds unlikely that a laborer would voluntarily request, as this petitioner argues he did, a job of lower classification requiring commuting and loss of seniority. Particularly in a tight labor market, such a choice is of clear benefit when the alternative is loss of pension credits, vacation credits, and all employment relationship with a long-term employer. The petitioner’s choice to seek a transfer to Indiana was as much a voluntary election among his options as was the United Airlines petitioner’s choice to transfer to California.

Upon the petitioner’s 1958 election to seek transfer to Gary, Indiana, the respondent’s Illinois plant apparently enabled the process by receiving and forwarding the petitioner’s transfer application to Gary, receiving the Gary plant’s notice that the petitioner had passed screening for a Gary opening, and notifying the petitioner to report for an interview and physical examination. Furthermore, when the petitioner went to Gary for his transfer interview and examination, the respondent provided him with copies of his personnel records to deliver to the Gary plant. The instant respondent’s active role in the petitioner’s transfer was entirely unlike the mere delivery of an Illinois union referral slip, which was found insufficient to establish an Illinois contract in Morris v. Industrial Com. (1973), 55 Ill. 2d 563, 304 N.E.2d 606. It also allowed that the petitioner lost no days of work in the transfer.

Although the petitioner’s 1958 hiring at Gary was conditioned upon the results of his interview and physical examination there, that factor surely should not be determinative. The petitioner’s 1958 Gary hiring procedure was cursory, a fact which the majority apparently acknowledges. Furthermore, it clearly was no important barrier to the transfer. It varied insubstantially, if at all, from the procedure which the respondent had required in 1954 when the petitioner was first transferred from Joliet to Gary. The petitioner’s 1954 transfer to Indiana, six months after which he returned to employment at Joliet, clearly occurred in a continuing employment relation, without formation of a new, Indiana contract. Still, it included a pretransfer interview and examination similar to that for the instant, 1958 transfer. The record suggests that the petitioner would have followed the instant procedure even if he, like the petitioner in United Airlines, had initiated the transfer process. Apparently the procedure was standard.

As the United Airlines court observed, the language of the Act indicates that it was designed to have an extraterritorial effect. Employees covered under the Act are defined to include “persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois.” (Ill. Rev. Stat. 1985, ch. 48, par. 138.1(b)(2).) Furthermore, the title of the Act evidences the Act’s wide scope in providing compensation. According to its title, the Act is “An Act to promote the general welfare of the people of this state by providing compensation for accidental injuries or death suffered in the course of employment within this state, and without this state where the contract of employment is made within this state ***.” Ill. Rev. Stat. 1985, ch. 48, par. 138.

Given the Act’s title and its definition of a covered employee, the cessation of the petitioner’s work in Illinois is of no moment for his recovery in Illinois. The Act clearly covers employees who have ceased to work in Illinois but who continue to work under a contract of hire made in the State. (United Airlines, Inc. v. Industrial Com. (1983), 96 Ill. 2d 126, 449 N.E.2d 119; Ill. Rev. Stat. 1985, ch. 48, par. 138.1(b)(2).) Similarly, the petitioner’s receipt of new employee identification in Indiana, membership in a different union local, and completion of Indiana tax documents are mere results of the relocation; they are of no consequence to the critical underlying employment contract. (See United Airlines, Inc. v. Industrial Com. (1983), 96 Ill. 2d 126, 449 N.E.2d 119.) Further, the petitioner’s application for and receipt of benefits in Indiana would not necessarily invalidate his qualification for benefits under the Act. (See Long-Airdox Co. v. Industrial Com. (1984), 128 Ill. App. 3d 334, 470 N.E.2d 1307.) We note that the petitioner has no recollection of signing the Indiana claim application. His Indiana application, which he signed only one month after his traumatic amputation, probably was presented to him as a matter of course and without full explanation, by either his employer or by medical personnel. The employer fails to establish the materiality of the Indiana filing.

We should add that contrary to the majority’s suggestion, it is not apparent that the petitioner had no opportunity to return to Illinois employment with the respondent. There is no clear evidence here, as there was in Youngstown, that the respondent’s entire Illinois plant was permanently shut down. Lastly, despite the fact that a lengthy 20-year period elapsed between the petitioner’s transfer from Illinois and his accidental injury in Indiana, the Act makes no provision for negating Illinois jurisdiction by the passage of time, when the petitioner was injured while working under a contract formed in Illinois. (See Continental Drilling Co. v. Industrial Com. (1987), 155 Ill. App. 3d 1031.) Any such determination should only follow legislation amending the Act.

I would find, as did the court in United Airlines, that reliance upon Youngstown for a holding of no jurisdiction under the Act is misplaced in this case. Here the petitioner lost no days of work in his 1958 transfer from employment at the respondent’s Hlinois plant to employment at the respondent’s Indiana plant. The transfer followed the petitioner’s election of his available options; and the respondent actively enabled the petitioner’s continuous-employment transfer to Indiana, providing his personnel records and requiring only a routine pretransfer review.

The arbitrator, the Commission, and the court apparently found that there was no new employment contract formed when the petitioner transferred from Illinois to Indiana. Rather, according to their findings, this case is like United Airlines; the petitioner’s employment with the respondent was continuous and uninterrupted at the time of his transfer. I would find, as did the court in United Airlines, that the findings of the arbitrator, Commission, and court were not against the manifest weight of the evidence. As the contract of hire was found to be made within Hlinois and the Act prescribes a contractual basis for jurisdiction, there was jurisdiction under the Act. The trial court should be affirmed.

KASSERMAN, J., concurs.