Metropolitan Water Reclamation District of Greater Chicago v. Illinois Workers' Compensation Commission
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Decision filed 02/22/11. The text of
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Workers' Compensation
Commission Division
Filed: February 22, 2011
No. 1-09-2546WC
_________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
WORKERS' COMPENSATION COMMISSION DIVISION
_________________________________________________________________
METROPOLITAN WATER RECLAMATION
) APPEAL FROM THE CIRCUIT
DISTRICT OF GREATER CHICAGO,
) COURT OF COOK COUNTY
)
Appellee,
)
)
v.
) No. 07 L 50623
)
ILLINOIS WORKERS’ COMPENSATION
)
COMMISSION, et al.,
)
(RUTH LINDQUIST,
) HONORABLE
) ELMER JAMES TOLMAIRE, III,
Appellant).
) JUDGE PRESIDING.
_________________________________________________________________
JUSTICE HOFFMAN delivered the judgment of the court, with
opinion.
Presiding Justice McCullough and Justices Hudson and Stewart
concurred in the judgment and opinion.
Justice Holdridge specially concurred, with opinion.
OPINION
The claimant, Ruth Lindquist, appeals from an order of the
circuit court finding that the injuries which she sustained on
November 9, 2005, did not arise out of her employment with the
Metropolitan Water Reclamation District of Greater Chicago (the
District), and reversing the decision of the Illinois Workers'
Compensation Commission (Commission) awarding her benefits under
the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West
2004)).
For the reasons which follow, we reverse the judgment of
the circuit court and reinstate the decision of the Commission.
No. 1-09-2546WC
The following factual recitation is taken from the evidence
presented at the arbitration hearing conducted on October 31, 2006.
The 61-year-old claimant testified that she has been employed
as an accounting clerk for the District for 13 years.
Her primary
job duties are clerical in nature and include using a computer and
keyboard, ordering and moving supplies, and filing.
She is also
responsible for preparing deposit slips for checks received by the
District and for depositing those checks in the account held by the
District at Chase Bank on Michigan Avenue.
The bank is about 1½
blocks south and east of the District’s office, which is located at
100 East Erie Street.
The District does not direct what route she
takes when making such deposits, and she typically walks east on
Erie and then south on Michigan, which is the route she perceives
to be the most direct.
The claimant testified that she regularly
travels to the bank to make deposits two to three times per week,
depending on the volume of checks received.
At approximately 3 p.m. on November 9, 2005, the claimant left
her office and began walking toward the bank to deposit checks in
the District’s account.
She walked east on Erie toward Michigan
Avenue, crossed Erie in the middle of the block, and then stumbled
while walking up an inclined driveway that had a "dip" of about six
inches. According to the claimant, she tripped or lost her footing
on the "dip" in the driveway and fell forward.
She tried to break
her fall with her hands and fractured both of her wrists.
The
claimant acknowledged that she did not fall as a result of any
2
No. 1-09-2546WC
debris or defect in the pavement, nor did she trip on the high
curb.
The claimant stated that she was taken by ambulance to the
emergency
room
at
underwent
bilateral
Northwestern
wrist
Memorial
x-rays
that
Hospital,
where
she
she
had
demonstrated
sustained comminuted fractures of the distal radii with volar
angulation of the fragments.
The emergency room doctors applied
long-arm casts that extended from her hands to just below her
shoulders.
The following day, she saw Dr. John McClellan, an
orthopedic surgeon, who replaced the long-arm casts with shorter
ones.
Dr. McClellan also scheduled an external-fixation surgery
for her left wrist, which was performed on November 14, 2005.
He
then performed the same procedure on her right wrist on December 2,
2005.
She
subsequently
underwent
physical
therapy
ultimately released to return to work on March 6, 2006.
and
was
At the
hearing, the claimant stated that she has pain and stiffness in
both of her wrists, but continues to perform the same functions she
had before the accident.
At the conclusion of the hearing, the arbitrator found that,
although the claimant was injured while performing a task that was
required by her work, the accident did not arise out of her
employment because she had not established that her job duties
exposed her to a risk greater than that faced by the general
public.
Accordingly, the arbitrator found that the claimant was
not entitled to benefits under the Act.
3
No. 1-09-2546WC
The claimant sought review of the arbitrator’s decision before
the Commission.
With one commissioner dissenting, the Commission
found that the claimant’s accidental fall on November 9, 2005,
arose out of her employment.
In support of this conclusion, the
Commission relied on the fact that the claimant was injured while
performing a required task in the middle of a work day.
In
addition, the Commission stated that, though it was unnecessary to
reach
the
issue
of
whether
the
claimant
was
exposed
to
an
"increased risk," her claim was compensable under this alternative
analysis where she had proven that she was regularly required to
traverse the streets in order to make bank deposits on behalf of
the District and, therefore, was exposed to the risk of the "dip"
in the driveway with greater frequency than were members of the
general public.
Based on the evidence presented and the stipulations of the
parties,
the
Commission
awarded
the
claimant
temporary
total
disability (TTD) benefits for a period of 16 4/7 weeks from
November 10, 2005, through March 5, 2006.
The Commission also
determined that the claimant had sustained a permanent partial
disability (PPD) to the extent of 35% loss of use of her right and
left hands and awarded her PPD benefits of $591.77 per week for a
period of
143.5
weeks.
Finally,
the
Commission
awarded
the
claimant $4,358.15 for reasonable and necessary medical expenses.
The District filed a petition for judicial review of the
Commission’s decision in the Circuit Court of Cook County.
4
The
No. 1-09-2546WC
circuit court reversed the Commission’s decision, finding that the
claimant was not exposed to a risk greater than that faced by the
general public.
This appeal followed.
On appeal, the claimant argues that the circuit court erred in
setting aside the decision of the Commission, where the evidence
established that the accidental injuries she sustained on November
9, 2005, arose out of her employment.
We agree.
To obtain compensation under the Act, a claimant must show by
a preponderance of the evidence that he or she has suffered a
disabling injury arising out of and in the course of his or her
employment.
820 ILCS 305/2 (West 2004).
Both elements must be
present at the time of the claimant’s injury in order to justify
compensation.
Illinois Bell Telephone Co. v. Industrial Comm’n,
131 Ill. 2d 478, 483, 546 N.E.2d 603 (1989).
Whether an injury
arises out of and in the course of the claimant’s employment is a
question of fact to be resolved by the Commission, and we will not
disturb its determination unless it is against the manifest weight
of
the
evidence.
Illinois
Institute
of
Technology
Research
Institute v. Industrial Comm’n, 314 Ill. App. 3d 149, 164, 731
N.E.2d 795 (2000).
A finding of fact is contrary to the manifest
weight of the evidence only where an opposite conclusion is clearly
apparent.
Durand v. Industrial Comm’n, 224 Ill. 2d 53, 64, 862
N.E.2d 918 (2006).
The appropriate test is whether there is
sufficient evidence in the record to support the Commission’s
finding, not
whether
this
court
5
might
have
reached
the
same
No. 1-09-2546WC
conclusion.
Pietrzak v. Industrial Comm’n, 329 Ill. App. 3d 828,
833, 769 N.E.2d 66 (2002).
Injuries sustained on an employer’s premises, or at a place
where the claimant might reasonably have been while performing his
duties, and while a claimant is at work, are generally deemed to
have been received in the course of the employment.
Caterpillar
Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 57, 541 N.E.2d
665 (1989).
Here, it is undisputed that the claimant’s injuries
were sustained in the course of her employment.
At the time that
she fell, the claimant was walking to the bank to make deposits on
behalf of the District, which was a task required by her position.
Thus, the sole issue is whether the claimant’s injuries arose out
of her employment.
The "arising out of" component refers to the origin or cause
of the claimant’s injury and requires that the risk be connected
with, or incidental to, the employment so as to create a causal
connection
between
the
employment
and
the
accidental
injury.
Caterpillar Tractor Co., 129 Ill. 2d at 58. Courts have recognized
three general types of risks to which an employee may be exposed:
(1) risks that are distinctly associated with the employment; (2)
risks that are personal to the employee; and (3) neutral risks that
do not have any particular employment or personal characteristics.
Potenzo v. Illinois Workers’ Compensation Comm’n, 378 Ill. App. 3d
113, 116, 881 N.E.2d 523 (2007), citing Illinois Institute of
Technology Research Institute, 314 Ill. App. 3d at 162.
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No. 1-09-2546WC
In this case, the claimant was injured when she stumbled and
fell on a "dip" in a driveway that intersected a public sidewalk.
There is no evidence that the claimant suffered from a physical
condition that caused her to fall, nor is the risk of such an
accident distinctly associated with her employment.
Accordingly,
the risk that the claimant would be injured as a result of a fall
while traversing a public sidewalk and commercial driveway was
neutral in nature.
Injuries resulting from a neutral risk generally do not arise
out of the employment and are compensable under the Act only where
the employee was exposed to the risk to a greater degree than the
general
public.
Illinois
Institute
Institute, 314 Ill. App. 3d at 163.
of
Technology
Research
Such an increased risk may be
either qualitative, such as some aspect of the employment which
contributes to the risk, or quantitative, such as when the employee
is exposed to a common risk more frequently than the general
public.
Potenzo,
378
Ill.
App.
3d
at
117,
citing
Illinois
Consolidated Telephone Co. v. Industrial Comm’n, 314 Ill. App. 3d
347, 353, 732 N.E.2d 49 (2000)(Rakowski, J., specially concurring).
Under
the
"street
risk"
doctrine,
where
the
evidence
establishes that the claimant’s job requires that she be on the
street to perform the duties of her employment, the risks of the
street become one of risks of the employment, and an injury
sustained while performing that duty has a causal relation to her
employment.
Potenzo, 378 Ill. App. 3d at 118, citing C.A. Dunham
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No. 1-09-2546WC
Co. v. Industrial Comm’n, 16 Ill. 2d 102, 111, 156 N.E.2d 560
(1959); see also City of Chicago v. Industrial Comm’n, 389 Ill.
592, 601,
60
N.E.2d
212
(1945);
Mueller
Construction
Co.
v.
Industrial Board of Illinois, 283 Ill. 148, 158-59, 118 N.E. 1028
(1918).
In such a circumstance, it is presumed that the claimant
is exposed to risks of accidents in the street to a greater degree
than if she had not been employed in such a capacity, and the
claimant will be entitled to benefits under the Act.
City of
Chicago, 389 Ill. at 601.
The undisputed evidence establishes that the claimant was
required to traverse the public streets and sidewalks to make bank
deposits on behalf of the District.
inherent
in
employment.
the
use
of
the
As such, the hazards and risks
street
became
the
risks
of
her
A six-inch "dip" in a commercial driveway is a street
hazard, and, though the risk of tripping and falling on such a
hazard is a risk faced by the public at large, it was a risk to
which the claimant, by virtue to her employment, was exposed to a
greater degree than the general public.
See C.A. Dunham Co., 16
Ill. 2d at 111.
Moreover, even if the claimant were required to present proof
that she faced an increased risk, she has met that burden.
The
claimant testified at the arbitration hearing that she was required
to use the public way in making the bank deposits two or three
times each week.
The Commission specifically found that this
evidence established that the claimant was exposed to the risk of
8
No. 1-09-2546WC
the "dip" in the driveway with greater frequency than members of
the general public.
Based on the record presented, the manifest weight of the
evidence established that the injuries sustained by the claimant on
November 9, 2005, arose out of and in the course of her employment
with the District, and, as a consequence, she is entitled to
benefits under the Act.
We, therefore, reverse the judgment of the
circuit court and reinstate the decision of the Commission which
awarded the claimant benefits under the Act.
Judgment reversed; award reinstated.
JUSTICE HOLDRIDGE, specially concurring.
I concur. I write separately to note my concurrence only with
the majority’s holding that the claimant has met her burden of
showing that she was exposed to a risk greater than the general
public.
As the majority observed, the claimant testified at the
arbitration hearing that she was required to use the sidewalk where
the "dip" was located in making the bank deposits two or three
times every week.
The Commission specifically found that this
evidence established that the claimant was exposed to the risk of
the "dip" in the driveway with greater frequency than members of
the general public.
against
the
manifest
As this finding by the Commission is not
weight
of
the
evidence,
the
award
of
compensation should be affirmed on that basis alone.
As this case is simply one where the Commission found that the
claimant was exposed to risk greater than the general public by
9
No. 1-09-2546WC
virtue of the number of times she was required by her employment to
be exposed to the sidewalk defect, I see no need to go further with
analysis of the so-called "street risk" doctrine.
The doctrine,
which is in essence the "traveling employee" doctrine (See Potenzo
v. Illinois Workers’ Compensation Comm’n, 378 Ill. App. 3d 113, 119
(2007),
does
nothing
to
clarify
what
a
claimant
must
do
to
establish that his or her injuries arose out of their employment.
The concept that merely because an employee’s employment places him
on the street there is a "presumption" that all the hazards of the
street
are
now
unappealing one.
hazards
of
his
employment
is
a
Is this presumption rebuttable?
particularly
Does this
presumption not impermissibly shift the burden to the employer to
show that the claimant is not entitled to benefits?
Should the
"street risk" doctrine now also be expanded, as in the instant
matter, to a new "sidewalk risk" doctrine?
These are questions
which do not need to be addressed, if we confine our analysis to
whether the claimant can establish that her employment, either
quantitatively or qualitatively, exposed her to a risk greater than
that of the general public.
Potenzo, 378 Ill. App. 3d at 117.
Here, the Commission determined that the claimant had met her
burden of proof, without any presumption.
I would find that the
Commission’s decision was not against the manifest weight of the
evidence.
I would affirm the Commission on that basis alone.
10
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