CROPMATE COMPANY, d/b/a UAP Richter, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jeffrey Pinkerton, Appellee), 313 Ill. App. 3d 290

JUSTICE RARICK delivered the opinion of the court: Claimant, Jeffrey Pinkerton, sought benefits pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1994)) for injuries sustained while in the employ of Cropmate Company (Cropmate). Claimant worked for his uncle, William Pinkerton (Pinkerton), who was erecting a pole building for Cropmate. On August 15, 1994, while working on the roof of the building, claimant slipped and sustained a severe laceration to his right forearm.

Pinkerton contracted with Cropmate to erect a chemical containment building on Cropmate’s property in White Hall, Illinois, as required by the Environmental Protection Agency (EPA) and the Illinois Department of Agriculture. The building was to be used for the storing, loading, and unloading of materials utilized by Cropmate in its business. Cropmate was in the business of manufacturing, selling, delivering, and applying pesticides and insecticides. Cropmate solicited bids for the erection of the structure and received a bid from Pinkerton of $7,000.

Half was to be paid when Pinkerton began the work and half would be paid upon completion. Initially, the agreement was verbal. Several weeks after starting the project, Pinkerton requested the first $3,500. At that time, Pinkerton was asked to sign a written contract. He was provided a form contract by Marla Droves, Cropmate’s secretary. Although the contract contained various boilerplate clauses, none of the particular terms were filled in. Pinkerton went ahead and signed the contract.

Included in the boilerplate language was a provision that the contractor, Pinkerton, would obtain workers’ compensation insurance. The contract appears to be dated August 3, 1994, but it is unclear. Cropmate obtained the funds to erect the building from its parent company, ConAgra. Cropmate hired Larry Houston, an environmental coordinator, to provide plans and blueprints, which were approved by ConAgra. Larry Meyer, comanager of Cropmate, testified that the building would be considered a capital asset and that Cropmate received benefits from the building.

He further testified that Cropmate would not be in compliance with environmental and Department of Agriculture regulations unless the building was built. He also testified that the materials to be stored in the containment building were not toxic, but some were hazardous. Pinkerton testified that both Meyer and Richard Meaks, Crop-mate’s other comanager, inquired as to whether he had workers’ compensation insurance. He told them that he did not. Meyer and Meaks told him he had to obtain workers’ compensation insurance before they would tender final payment to him.

Pinkerton further testified that at no time did any agent of Cropmate tell him to stop erection of the structure. Pinkerton stated that, at the time of the accident, he was in the process of obtaining workers’ compensation insurance but had not done so. Meyer testified that he knew Pinkerton did not have workers’ compensation insurance at the time Cropmate accepted Pinkerton’s bid, and Meyer made no attempt during the erection of the structure to verify that Pinkerton had obtained workers’ compensation insurance.

Meaks testified that he discussed insurance, but not necessarily workers’ compensation insurance, with Pinkerton. He stated that at no time prior to or during the erection of the structure did he make any attempt to verify whether Pinkerton had workers’ compensation insurance. Both Meyer and Meaks denied telling Pinkerton that he would not receive final payment until he obtained workers’ compensation insurance.

Pinkerton testified that Cropmate provided the materials to build the structure, consisting of a prefabricated building, and that Meyer and Meaks provided a floor plan for the structure and were present at the worksite on a daily basis, conferring with Pinkerton on the progress on erecting the structure and on compliance with EPA and Department of Agriculture regulations. On August 15, 1994, claimant, who was right-handed, fell from the top rafters of the structure, nearly severing his right arm. He was taken to Passavant Hospital and then to Memorial Medical Center, where he came under the treatment of Dr.

Richard Brown. Claimant underwent extensive reconstructive surgery, including the reattachment of the totally severed radial nerve and brachial artery. He subsequently underwent 18 months of follow-up care, including physical therapy. Claimant also saw Dr. K. Buescher, who treated him for nightmares and coping problems. On September 30, 1994, Dr. Brown told claimant he should seek other employment. Claimant was released from Dr. Brown’s care in December 1995, with instructions to return as needed. Claimant undertook a job search.

Although unsuccessful at first, he ultimately found work as a general laborer on December 15, 1995. A functional capacity evaluation revealed a significant loss of grip strength, sensation, and motion. Dr. Brown testified that this condition was permanent. Claimant. testified that the loss of sensation has resulted in his inability to use various tooIs.The arbitrator ruled that claimant was a statutory employee of Cropmate pursuant to

section 3 of the Act (820 ILCS 305/3 (West 1994)). The arbitrator found that Cropmate owned the building in question, the building was required by environmental regulations, and it was a necessary and essential enterprise from which Cropmate derived substantial revenue. The arbitrator further found that Pinkerton was an uninsured contractor and that agents of Cropmate knew prior to and during the erection of the building that Pinkerton did not have workers’ compensation insurance. The arbitrator also concluded that claimant’s condition of ill-being was causally connected to his work-related accident.

This conclusion was based upon Dr. Brown’s testimony to that effect and the lack of any prior injuries to the arm. The arbitrator found that claimant had sustained a permanent loss of use of the right arm to the extent of 70% thereof. The arbitrator also found that claimant was entitled to 695/? weeks of temporary total disability (TTD) benefits, for the period from August 15, 1994, through November 6, 1997. The arbitrator’s decision was affirmed and adopted by the Industrial Commission (Commission). The Commission’s decision was confirmed by the circuit court of Greene County.

On appeal, Cropmate argues first that the Commission erred as a matter of law in determining that claimant was its “statutory employee.” Cropmate maintains that it was not in the business of erecting buildings or any of the other activities listed in subsections 1 and 2.of

section 3 of the Act.

Section 3 of the Act provides in pertinent part: “The provisions of this Act hereinafter following shall apply automatically and without election to the State, county, city, town, township, incorporated village or school district, body politic or municipal corporation, and to all employers and all their employees, engaged in any department of the following enterprises or businesses which are declared to be extra hazardous, namely: 1. The erection, maintaining, removing, remodeling, altering!,] or demolishing of any structure. 2. Construction, excavating!,] or electrical work.” 820 ILCS 305/3 (West 1994).

Cropmate contends that if it is found to be a statutory employer under these circumstances, then any owner having work done on its property by a contractor would be liable for injuries to the contractor’s employees. In determining that claimant was a statutory employee of Crop-mate, the Commission relied on Fefferman v. Industrial Comm’n, 71 Ill. 2d 325, 375 N.E.2d 1277 (1978). In Fefferman, the Feffermans, owners of a building, contracted with Dixon Wrecking Company, an uninsured contractor, to demolish the structure. An employee of Dixon’s, Otha Butts, was injured as a result of a fall.

The issue on appeal was whether Fefferman was engaged in the business of maintaining or demolishing a structure as enumerated in

section 3 of the Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.3 (now 820 ILCS 305/3 (West 1994))). The court concluded that Fefferman was an employer engaged in the extra-hazardous business of maintaining a structure and was therefore liable under

section 3 of the Act for Butts’ injuries. The court held that Fefferman was in the business of general merchandise, textiles, government surplus, and hospital supplies; the building was a capital asset used for storage of its goods; and it figured prominently, even if indirectly, in the revenue Fefferman received from its business.

Cropmate attempts to distinguish Fefferman by arguing that, in Fefferman, the court found that Fefferman was maintaining a structure “by virtue of the nature of the storage business.” Nothing in the facts in Fefferman supports Cropmate’s characterization of Fefferman’s business as a “storage” business. Rather, the building was used for storage of Fefferman’s mercantile goods. Further, the determining factor in Fefferman was not the nature of the business, but the fact that the structure contributed to the revenue Fefferman derived from his business. The court in Fefferman relied on Pulliam v.

Industrial Comm’n, 43 Ill. 2d 364, 253 N.E.2d 448 (1969). In Pulliam, the owner of a funeral home was found to be maintaining a structure within the purview of

section 3 of the Act. An employee was injured in a fall from a ladder while painting the funeral home. The court reasoned that the use of the building figured prominently in the revenues the owner received from his business. The court in Fefferman also noted that Pulliam effectively overruled a previous line of cases insofar as those cases held that maintaining a building as an incident to a business did not constitute maintaining a structure under the Act. In another similar case, Graphic Group & KLW, Inc. v. Industrial Comm’n, 167 Ill.

App. 3d 1041, 522 N.E.2d 128 (1988), Graphic Group engaged William Dorsch to paint and plaster its office. Dorsch subsequently employed Mark Londinski, the claimant, to do one day’s worth of painting. While so engaged, claimant sustained a fracture to his lower left leg. Dorsch did not carry workers’ compensation insurance. The Commission determined that Graphic Group was a statutory employer and liable for workers’ compensation benefits. On appeal, Graphic Group argued that it was not the statutory employer of the claimant because it was not engaged in the business of maintaining a structure.

The court rejected this argument, finding that Graphic Group’s offices indirectly contributed to the revenue received by the business and that Graphic Group was therefore maintaining a structure within the meaning of

section 1(a)(3) of the Act. Both Fefferman and Graphic Group are directly on point. The facts in those cases are identical to those in the present case in all meaningful aspects. The building being erected for Cropmate was to be used for the storage of materials it used in its business. Indeed, the erection of the building was required by the EPA for storage of such materials. Once built, Cropmate would derive revenue, albeit indirectly, from the building. Meyer testified that the building would be a capital asset of Cropmate. Cropmate’s argument that

section 3 does not apply because erection or maintenance of a structure was not its principal business was specifically rejected by our supreme court in Fefferman. The Commission correctly determined that claimant was a statutory employee of Cropmate pursuant to

section 3 of the Act. Cropmate next argues that the Commission’s determination that claimant sustained a 70% permanent partial disability (PPD) is contrary to the manifest weight of the evidence. Cropmate contends that as of claimant’s last visit to Dr. Brown on September 27, 1996, his complaints were minimal and Dr. Brown felt that he had made a good recovery. Claimant has some use of his right hand, is able to drive an automobile, and is not on any restricted duty. Cropmate urges us to reduce claimant’s PPD award to 30%.

It is well settled that the extent of a claimant’s disability is a question of fact to be determined by the Commission, and its decision will not be set aside unless contrary to the manifest weight of the evidence. Bryant v. Industrial Comm’n, 250 Ill. App. 3d 659, 662, 621 N.E.2d 198, 200 (1993). In the present case, claimant, who was right-hand dominant, now must use his left hand to perform even the most routine functions. His grip strength and sensation in his right hand and arm are all significantly diminished. Indeed, claimant’s loss of sensation was so significant that Dr.

Brown testified that it would be considered a total loss of sensation pursuant to American Medical Association guidelines. The Commission’s decision is well supported by the evidence. Finally, Cropmate argues that the Commission’s award of 695/? weeks of TTD benefits was contrary to the manifest weight of the evidence. Cropmate contends that claimant’s condition had stabilized as of September 30, 1994, when Dr. Brown told him that he should start thinking about other types of work. Cropmate maintains that statements made to Drs.

Brown and Buescher demonstrate that claimant was capable of working, but chose not to so as not to damage his workers’ compensation case. To be entitled, to TTD benefits, a claimant must show not only that he did not work, but that he was unable to work, and the duration for which he was unable to work. Ingalls Memorial Hospital v. Industrial Comm’n, 241 Ill. App. 3d 710, 716, 609 N.E.2d 775, 780 (1993).

Whether a claimant was unable to work and the duration for which he was unable to work are questions of fact for the Commission, and its determination thereon will not be set aside on review unless contrary to the manifest weight of the evidence. City of Granite City v. Industrial Comm’n, 279 Ill. App. 3d 1087, 1090, 666 N.E.2d 827, 828-29 (1996). In the present case, claimant’s arm was nearly severed in the August 15, 1994, accident. Although Dr. Brown told claimant on September 30, 1994, that he should “start thinking about other work,” he did not release him to work. Dr.

Brown testified that claimant was totally disabled from the date of the accident through September 26, 1995, and that he was not at maximum medical improvement until that date. Cropmate produced no evidence, medical or otherwise, to the contrary. Claimant testified that he had sought work but, because of his physical limitations, was unable to find employment until December 15, 1995. The Commission’s TTD award is not contrary to the manifest weight of the evidence. For the foregoing reasons, the judgment of the circuit court of Greene County is affirmed. Affirmed.

McCULLOUGH, P.J., and COLWELL and HOLDRIDGE, JJ., concur.