{
  "id": 2952623,
  "name": "THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Appellant, v. THE INDUSTRIAL COMMISSION et al.-(Marie Pope, Appellee.)",
  "name_abbreviation": "Board of Education v. Industrial Commission",
  "decision_date": "1974-09-27",
  "docket_number": "No. 46213",
  "first_page": "105",
  "last_page": "108",
  "citations": [
    {
      "type": "official",
      "cite": "58 Ill. 2d 105"
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  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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  "cites_to": [
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      "category": "reporters:state",
      "reporter": "Ill. 2d",
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        5406191
      ],
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  "last_updated": "2023-07-14T20:55:53.437074+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Appellant, v. THE INDUSTRIAL COMMISSION et al.\u2014(Marie Pope, Appellee.)"
    ],
    "opinions": [
      {
        "text": "MR. JUSTICE KLUCZYNSKI\ndelivered the opinion of the court:\nMarie Pope (claimant), a school teacher, suffered accidental injuries on February 3, 1971, arising out of and in the course of her employment with the Board of Education of the City of Chicago (Board) when she was struck with a large paste bottle. As a result of this injury, a partial mastectomy of the right breast was performed leaving a permanent scar. In July 1971 she sought adjustment of her claim before the Industrial Commission, alleging, in part, that her injury had resulted in permanent disfigurement. (Ill. Rev. Stat. 1971, ch. 48, par. 138.8(c).) The arbitrator granted her an award which included compensation for \u201cserious and permanent disfigurement to the chest.\u201d The Commission confirmed, and on certiorari to the circuit court of Cook County the award was sustained. The Board has appealed to this court (50 Ill.2d R. 302(a)) challenging the propriety of the disfigurement award.\nSection 8(c) of the Workmen\u2019s Compensation Act (par. 138.8(c)) provided, in pertinent part, \u201cIn the case of female employees, compensation for disfigurement shall also include serious and permanent disfigurement to *** the chest above the axillary line.\u201d The Board now argues that \u201cThere is uncontradicted medical evidence throughout the record that the hematoma, surgery and resulting surgical scar on Mrs. Pope\u2019s chest were anatomically below the axillary line.\u201d It is further urged that claimant failed to appear in accordance with the commissioner\u2019s \u201corder,\u201d entered pursuant to Rule 5 \u2014 (4), and no examination of the claimant was made by any member of the Commission. This rule provides:\n\u201cThe petitioner [claimant], at his own request, or at the request of the hearing commissioner, shall present himself for examination at the time set for oral argument. In the event that neither the petitioner nor the hearing commissioner request the presence of the petitioner, the respondent [Board] may request his presence, subject to the discretion of the hearing commissioner, and if such presence is ordered by the hearing commissioner, the respondent shall pay in advance of the time fixed for said oral argument sufficient monies to defray the necessary expense of travel by the most convenient means to and from the place of examination and reimbursement for any loss of wages caused because of loss of working time as provided under Section 12 of the Workmen\u2019s Compensation Act relative to physical examinations.\u201d Rules Governing Practice Before the Industrial Commission, effective July 1, 1972.\nAs a result of the accident, claimant underwent a subtotal mastectomy on May 17, 1971, whereby the lower half of her right breast was removed and plastic repair performed. By agreement of the parties, medical reports were introduced. The report of claimant\u2019s treating physician, Dr. Wolf, did not specifically indicate the location of the permanent scar in relation to the axillary line. The Board proffered the report of its physician, Dr. Walker, who had examined claimant on December 29, 1971. Dr. Walker\u2019s report stated that his \u201cExamination revealed a heavy, over weight individual with large pendulous breast. Irregular scarring was noted in the inferior breast area, below the nipple on the right.\u201d The record further indicated that the arbitrator \u201chas observed the petitioner [claimant].\u201d\nNo additional testimony or other evidentiary material would appear to have been introduced before the Commission, which ordered that the case be taken on the record and set for oral argument with the claimant to be examined on the day of oral argument. The Commission\u2019s decision merely reads, \u201cUpon consideration of the record herein and further proceedings had upon Review, the Commission is of -the opinion that the Decision of the Arbitrator is correct.\u201d\nThe claimant must prove the necessary elements to sustain an award. (Brown v. Industrial Com., 57 Ill.2d 313, 316.) We are not persuaded that the record is inadequate to establish the requisite statutory characteristic for disfigurement in this instance. The record indicates that the arbitrator \u201cobserved\u201d the claimant, and she now asserts that this was an examination as to her disfigurement and its relation to her axillary line. The Board does not dispute this interpretation and it has candidly stated in oral argument that the arbitrator, claimant and another woman went to an adjoining room during the proceedings presumably for an examination as to the location of the scar. Additionally, we note that Dr. Walker examined claimant nearly eight months after surgery and six months after she filed for an adjustment of claim seeking an award for permanent disfigurement. Yet in his report there is no mention of the precise anatomical position of the disfiguring scar. Under these circumstances, we are of the opinion that the decision of the Commission was proper and not contrary to the manifest weight of the evidence.\nThere is no merit to the Board\u2019s position that claimant failed to appear before the Commission on the date set for oral argument, thereby precluding any physical examination to determine whether the surgical scar was above or below the axillary line. Initially, the record does not indicate that claimant did not appear. The Board\u2019s factual assertions are therefore dehors the record and not properly before this court.\nThe attorney representing the Board, who has been involved in these proceedings since their inception before the arbitrator, has stated in oral argument that upon his insistence the claimant was ordered to appear before the Commission. While the Board maintains that Rule 5 \u2014 (4) may require such appearance upon its request, the Board does not contend that it complied with the conditions precedent to effectuating this rule which necessitate that it \u201cpay in advance of the time fixed for said oral argument sufficient monies to defray the necessary expense of travel *** to and from the place of examination and reimbursement for any loss of wages caused because of loss of working time as provided under Section 12 of the Workmen\u2019s Compensation Act relative to physical examinations.\u201d The Board cannot now complain of or draw inferences from claimant\u2019s failure to appear on the date of oral argument.\nAccordingly, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.",
        "type": "majority",
        "author": "MR. JUSTICE KLUCZYNSKI"
      }
    ],
    "attorneys": [
      "Michael J. Murray, of Chicago (James E. Riley, John J. Dillon and John L. Wren, of counsel), for appellant.",
      "McCabe & Venit, and William J. Harte, Ltd., both of Chicago (William J. Harte, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "(No. 46213.\nTHE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Appellant, v. THE INDUSTRIAL COMMISSION et al.\u2014(Marie Pope, Appellee.)\nOpinion filed September 27, 1974.\nMichael J. Murray, of Chicago (James E. Riley, John J. Dillon and John L. Wren, of counsel), for appellant.\nMcCabe & Venit, and William J. Harte, Ltd., both of Chicago (William J. Harte, of counsel), for appellee."
  },
  "file_name": "0105-01",
  "first_page_order": 113,
  "last_page_order": 116
}