2014 IL App (3d) 120820WC NO. 3-12-0820WC Opinion filed May 8, 2014
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
WORKERS' COMPENSATION COMMISSION DIVISION
JANE R. BRAIS, ) Appeal from the ) Circuit Court of Appellant, ) Kankakee County. ) v. ) No. 10 MR 650 ) THE ILLINOIS WORKERS' COMPENSATION ) Honorable COMMISSION, et al., (County of Kankakee, Circuit ) James B. Kinzer Clerk's Office, Appellees.) ) Judge, presiding.
JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, and Hudson concurred in the judgment and opinion. Justice Harris specially concurred, with opinion.
OPINION
¶1 The claimant, Jane R. Brais, filed an application for adjustment of claim against her
employer, the Kankakee County Circuit Clerk's Office, seeking workers' compensation
benefits for an injury to her left wrist she allegedly sustained at work on December 20,
2006. The claim proceeded to an arbitration hearing under the Workers' Compensation
Act (the Act) (820 ILCS 305/1 et seq. (West 2006)). The arbitrator found that the claimant failed to meet her burden of proving that she sustained accidental injuries which
arose out of and in the course of her employment.
¶2 The claimant appealed to the Illinois Workers' Compensation Commission
(Commission), which affirmed and adopted the decision of the arbitrator. The claimant
filed a timely petition for review in the circuit court of Kankakee County. The circuit
court confirmed the Commission's decision, and the claimant appealed.
¶3 BACKGROUND
¶4 The following factual recitation is taken from the record and the evidence presented
at the arbitration hearing.
¶5 The claimant began working for the employer as a child support coordinator on
April 15, 2002. Her office is located in the Kankakee County Courthouse. The claimant
testified that on December 20, 2006, at about 11:00 a.m., she was returning to her office
from a work-related meeting at the administration building. The administration building
is about 2 blocks from the courthouse. Typically employees enter the courthouse through
an employee entrance at the back of the courthouse. The employee entrance is locked at
9:30 a.m. so the claimant had to enter through the front door to the courthouse. The
claimant testified that she took that path every day. She was wearing 2 inch high heels
and, when she was less than two feet from the stairs leading to the front entrance to the
courthouse, her heel caught in a defect in the sidewalk and she fell. She described the
sidewalk where she fell as having huge cracks, being broken up, and "you could pretty
much see the gravel that they put down underneath the concrete." The claimant stated that
2 there was a one-half to a one inch difference in the level between the smooth concrete
leading up to the crumbled concrete. The claimant struck her left wrist and right knee
when she fell. She felt a sharp pain in her wrist.
¶6 The claimant entered the courthouse and told her department head, Circuit Clerk
Kathy Thomas, about the accident. Ms. Thomas took her to the emergency room at
Provena St. Mary's Hospital. The claimant had an x-ray of her left wrist. Dr. Robert
Marshall wrote that the x-rays showed arthritic changes throughout the wrist mainly on the
radial side of the wrist and a lineal lucency through the proximal scaphoid. The claimant
was seen at Provena St. Mary's Hospital on December 22, 2006, January 2, 2007, and
January 9, 2007. She was diagnosed with a left wrist scaphoid fracture and referred to Dr.
Muhammad.
¶7 Dr. Kermit Muhammad started treating the claimant on January 5, 2007. X-rays
were taken. Dr. Muhammad wrote in his patient notes that the x-rays showed that the
claimant had a left proximal pole scaphoid fracture, nondisplaced, of her left wrist. He
examined her again on February 2, 2007, March 2, 2007, April 13, 2007, and June 1, 2007.
During this time, the claimant was treated with a wrist brace, a bone stimulator, and
physical therapy. On July 17, 2007, Dr. Muhammad examined the claimant and noted
that her left wrist had a persistent lucency and fracture line. He referred her to Dr. John
Fernandez.
¶8 Dr. John Fernandez examined the claimant on August 9, 2007. He diagnosed her
with scaphoid nonunion with avascular necrosis and early dorsal intercalated segment
3 instability. He recommended either a left wrist total fusion, a left wrist scaphoid excision
with partial fusion, or a left wrist proximal row carpectomy.
¶9 On March 14, 2008, Dr. Fernandez performed a left wrist total fusion with proximal
row carpectomy and scaphoid excision, and a left carpal tunnel release on the claimant.
He wrote that multiple x-ray views of the left hand and wrist revealed excellent alignment
of the fusion plate. He referred her for therapy.
¶ 10 On July 9, 2008, Dr. Fernandez examined the claimant. He wrote in his patient
notes that multiple x-rays of the left wrist revealed a successful fusion with no hardware
migration or failure. He advised that she could discontinue her supervised therapy and
engage in a home program on her own. He wrote that she was currently at maximum
medical improvement. He permanently restricted her to "light use in the 10- to 15-pound
range without significant exposure to repetition beyond 2 to 3 hours total in a day without
significant use of tools." He noted that in the future the claimant may require removal of
the deep hardware including the plate and screws.
¶ 11 On March 4, 2009, at the employer's request, the claimant underwent an
independent medical evaluation with Dr. Charles Carroll IV. He diagnosed her with
scaphoid fracture with avascular necrosis which necessitated fusion. He found that her
treatment had been reasonable and necessary and that it related to her industrial injury. He
found that she had reached maximum medical improvement and he agreed with her 15
pound lifting restriction. Dr. Carroll opined that hardware removal was not required at
that time.
4 ¶ 12 At the time of the arbitration hearing, all the medical bills incurred as a result of the
claimant's medical treatment had been paid. The claimant testified that the employer had
accommodated all of the work restrictions placed on her by her physician and that she did
not lose time from work due to her injury. She stated that she is working in the same
position as prior to her injury.
¶ 13 The claimant testified that, at the time of the arbitration hearing, the sidewalks in
front of the courthouse had been replaced. After her fall, she spoke before the safety
committee about the condition of the sidewalk. She stated that the area where she fell was
specifically addressed in safety meetings after December 20, 2006, and the issue was
discussed until the county had the funds to make the repairs.
¶ 14 The arbitrator found that the claimant did not sustain injuries that arose out of and in
the course of her employment. He found that the claimant's accident occurred when she
was walking along a public pathway going in to the county courthouse. In doing so, she
was not subjected to a risk to which the general public is not exposed or that was peculiar to
her work. He found that the risk to the claimant which caused her injuries was no greater
to her than to the general public.
¶ 15 The claimant sought review of the arbitrator's decision. The Commission affirmed
and adopted the arbitrator's decision. The claimant appealed the Commission's decision
to the circuit court. Following a hearing, the circuit court confirmed the Commission.
The claimant filed a timely notice of appeal.
¶ 16 ANALYSIS
5 ¶ 17 The claimant argues that the Commission erred in its determination that her wrist
injury did not arise out of and in the course of her employment.
¶ 18 To be compensable under the Act, an injury must be one "arising out of and in the
course of the employment." 820 ILCS 305/2 (West 2006). "An injury is sustained 'in the
course' of employment when it occurs during employment, at a place where the worker
may reasonably perform employment duties or engage in some incidental employment
duties." Baggett v. Industrial Comm'n, 201 Ill. 2d 187, 194, 775 N.E.2d 908, 912-13
(2002). An injury "arises out of" one's employment if it originates from a risk connected
with, or incidental to, the employment, so as to create a causal connection between the
employment and the accidental injury. Id. at 194, 775 N.E.2d at 912. "Typically, an
injury arises out of one's employment if, at the time of the occurrence, the employee was
performing acts he or she was instructed to perform by the employer, acts which he or she
had a common law or statutory duty to perform, or acts which the employee might
reasonably be expected to perform incident to his or her assigned duties." Homerding v.
Industrial Comm'n, 327 Ill. App. 3d 1050, 1054, 765 N.E.2d 1064, 1068 (2002). "A risk
is incidental to employment where it belongs to or is connected with what an employee has
to do in fulfilling his duties." Caterpillar Tractor Co. v. Industrial Comm'n, 129 Ill. 2d
52, 58, 541 N.E.2d 665, 667 (1989).
¶ 19 Generally whether a claimant's injury arose out of or in the course of her
employment is a question of fact for the Commission, and its determination will not be
disturbed on review unless it is against the manifest weight of the evidence. Nascote
6 Industries v. Industrial Comm'n, 353 Ill. App. 3d 1056, 1059-60, 820 N.E.2d 531, 534
(2004). However, when the facts are undisputed and susceptible to only one single
inference, the question is one of law and is subject to de novo review. Id.
¶ 20 In the instant case, the facts are undisputed. The claimant was the only witness to
testify at the hearing. Her undisputed testimony established that on December 20, 2006,
at around 11:00 a.m. she was walking back from a meeting at the administration building;
she was walking up the sidewalk towards the steps leading to the front entrance to the
courthouse; she takes that path every day; normally she enters the courthouse through the
employee entrance at the back of the courthouse; the employee entrance is locked at 9:30
a.m., so she had to enter through the front entrance; as she was approaching the steps to the
courthouse, her heel caught in the broken and cracked sidewalk causing her to fall and
injure her wrist; the concrete was not level with adjacent concrete slabs; and at the time of
the arbitration hearing, the sidewalk had been replaced. The employer did not dispute any
of this evidence.
¶ 21 The employer argues that whether the claimant was exposed to a special risk or
hazard requires the court to draw an inference from the facts, and therefore, this matter
involves a question of fact and should be subject to the manifest-weight-of-the-evidence
standard. The claimant argues that the undisputed facts are susceptible to a single
inference, and therefore, the Commission's decision should be reviewed de novo. We
agree with the claimant.
7 ¶ 22 "In the course of" the employee's employment refers to the time, place, and
circumstances under which she is injured. Litchfield Healthcare Center v. Industrial
Comm'n, 349 Ill. App. 3d 486, 490, 812 N.E.2d 401, 405 (2004). Injuries sustained on an
employer's premises, or at a place where the claimant might reasonably have been
performing her duties, and while a claimant is at work, are generally deemed to have been
received in the course of the employment. Id. In the instant case, the claimant had begun
her workday and was injured when returning to her office from a work-related meeting in
another building. The claimant's injury was sustained in the course of her employment.
Thus the sole issue is whether the claimant's injury arose out of her employment.
¶ 23 The instant case is similar to the line of cases that involve injuries to the claimant
resulting from exposure to a special hazard. In Bommarito v. Industrial Comm'n, 82 Ill.
2d 191, 412 N.E.2d 548 (1980), the claimant was walking from her car, down one of the
four entrances to the two alleyways which led to her employer's rear door when she stepped
in a hole and fell, fracturing her left elbow and spraining her right ankle and right wrist.
Id. at 193-94, 412 N.E.2d at 549. All employees were required to enter and exit the
building through the rear door. Id. The court examined whether the claimant sustained
injuries arising out of and in the course of her employment. The court observed that when
an injury occurs "in an area which is the sole or usual route to the employer's premises, and
the route is attendant with a special risk or hazard, the hazard becomes part of the
employment." Id. at 195, 412 N.E.2d at 550. The court held that the special risks or
hazards encountered by the claimant, as a result of her employer's order to enter through
8 the rear door only, arose out of her employment. Id. at 196, 412 N.E.2d at 551. It further
held that the claimant's obedience to the employer's order placed her consequent injuries
within the course of her employment because had she not obeyed, she could not have
gained admittance to her place of employment. Id.
¶ 24 In Litchfield Healthcare Center the claimant, after punching the time clock to start
work, returned to her car to get some equipment. Litchfield Healthcare Center, 349 Ill.
App. 3d at 487-88, 812 N.E.2d at 403. She testified that she would be disciplined if she
did not have the equipment. Id. at 488, 812 N.E.2d at 403. When walking back from her
car, the claimant tripped on uneven concrete and rolled her ankle off the sidewalk. Id.
She suffered from a severe ankle and foot sprain. Id. The court examined whether the
claimant's injuries arose out of her employment. The court found that the claimant was
exposed to a defective sidewalk and that her regular use of the north parking lot at the
suggestion of her employer exposed her to the defective sidewalk to a degree beyond that
to which the general public would be subjected. Id. at 491, 812 N.E.2d at 406. The court
held that when "an injury to an employee takes place in an area which is the usual route to
the employer's premises, and the route is attendant with a special risk or hazard, the hazard
becomes part of the employment." Id. The court held that the "arising out of"
requirement of the Act is satisfied when special hazards or risks are encountered as a result
of using a usual access route. Id.
¶ 25 In Metropolitan Water Reclamation District of Greater Chicago v. Illinois Worker's
Compensation Comm'n, 407 Ill. App. 3d 1010, 944 N.E.2d 800 (2011), the claimant
9 stumbled while walking up an inclined driveway with a 6 inch "dip" on her way to make a
job-related bank deposit. Id. at 1011-12, 944 N.E.2d at 802. She fractured both her
wrists. Id. at 1012, 944 N.E.2d at 802. The sole issue on review was whether the
claimant's injuries arose out of her employment. The court held that "[u]nder 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 the
risks of the employment, and an injury sustained while performing that duty has a causal
relation to her employment." Id. at 1014, 944 N.E.2d at 804. The court found that there
was undisputed evidence that the claimant had to traverse the public streets and sidewalks
to make bank deposits for her employment and that the hazards and risks inherent in the use
of the street became the risks of her employment. Id. at 1015, 944 N.E.2d at 804. It held
that the "dip" in the driveway was a hazard and that while the public also faced a risk of
tripping and falling on such a hazard, the claimant, by virtue of her employment, was
exposed to the risk to a greater degree than the general public. Id. at 1015, 944 N.E.2d at
804-05. The court found that the claimant's injuries arose out of and in the course of her
employment and, as a consequence, she was entitled to benefits under the Act. Id. at
1015, 944 N.E.2d at 805.
¶ 26 The employer argues that the instant case is more analogous to Caterpillar. In
Caterpillar, the claimant completed his shift, left the building through doors normally used
by the employees, walked 30 feet toward his car in the employee parking lot, and stepped
off the curb onto the driveway. Caterpillar, 129 Ill. 2d at 57, 541 N.E.2d at 666. There
10 was a slight cement slope between the curb and the driveway, and when the claimant
stepped off the curb his right foot landed half on the cement incline and half on the
driveway. Id. The claimant twisted his ankle. Id. The driveway was on the
employer's premises and was used by employees and the general public. Id. There was
no evidence of holes, rocks, or obstructions on the pavement. Id. The supreme court
examined whether the claimant's injuries arose out of his employment. It found that the
condition of the premises was not a contributing cause of the claimant's injury. Id. at 61,
541 N.E.2d at 668. The court further found that "[c]urbs, and the risks inherent in
traversing them, confront all members of the public." Id. at 62, 541 N.E.2d at 669. The
court found that while the claimant regularly crossed the curb to reach his car, there was
nothing in the record to distinguish the curb from any other curb. Id. at 63, 541 N.E.2d at
669. The court held that the claimant's injury did not arise out of his employment because
the injury resulted from a risk which is presented to the general public. Id. at 62, 541
N.E.2d at 669.
¶ 27 The instant case is distinguishable from Caterpillar. In the instant case, there was
a special hazard. The sidewalk was cracked and uneven. In Caterpillar, there was no
evidence of a defect and the court specifically found that the curb was like any other curb.
The court in Caterpillar further found that the condition of the premises was not a
contributing cause of the claimant's injury. The cracked sidewalk was a contributing
cause of the claimant's injury as her heel caught on the defective sidewalk causing her to
fall.
11 ¶ 28 Because the instant case involves a special hazard, it is analogous to Bommarito,
Litchfield Healthcare Center, and Metropolitan Water Reclamation District of Greater
Chicago. The claimant's presence on the sidewalk approaching the steps to the
courthouse's front door was occasioned by the demands of her employment, which
required her to attend a meeting in the administration building two blocks from her office.
Her attendance at the meeting was for the benefit and accommodation of her employer.
As in Bommarito, the claimant did not freely choose a certain route. It is undisputed that
the employee door was locked at 9:30 a.m. As a result, the front door was the only access
point to the courthouse at the time of the claimant's accident. The claimant testified that
she took this route daily. It does not matter that the general public used the same sidewalk
and faced the same hazard. When an employee is injured in an area which is the sole or
usual route to the employer's premises, and there is a special risk or hazard on the route, the
hazard becomes part of the employment. Litchfield Healthcare Center, 349 Ill. App. 3d at
491. 812 N.E.2d at 406. The special hazards or risk encountered as a result of using the
sole or usual access route satisfy the arising out of requirement of the Act. Id. Here, the
front entrance to the courthouse was not only a usual access route for the claimant, it was
her sole route since the employee entrance was locked. Because of the demands of the
claimant's job that she attend meetings at the administration building, her risk of injury on
the defective sidewalk was greater than the general public. See Metropolitan Water
Reclamation District of Greater Chicago, 407 Ill. App. 3d at 1015, 944 N.E.2d 804-05,
Litchfield Healthcare Center, 349 Ill. App. 3d at 491, 812 N.E.2d at 406.
12 ¶ 29 This case does not merely involve the risks inherent in walking on a sidewalk which
confront all members of the public. This case involves a cracked and defective sidewalk
which was a contributing cause of the claimant's injury. Because the claimant
encountered a special hazard or risk as a result of using a sole or usual access route, her
injury arose out of her employment. Application of the existing case law to the
undisputed facts in this case reveals that the only reasonable inference that can be drawn
from the evidence is that the claimant's injuries arose out of her employment.
¶ 30 CONCLUSION
¶ 31 For the foregoing reasons, the judgment of the circuit court confirming the decision
of the Commission is reversed, the decision of the Commission is reversed, and this cause
is remanded to the Commission for further proceedings.
¶ 32 Reversed and remanded.
¶ 33 JUSTICE HARRIS, specially concurring:
¶ 34 I agree with the result reached by the majority. I write separately because while I
agree the evidence establishes the claimant's injury was sustained in an area which was the
sole route to her employer's premises, it does not establish the area was also her usual
route. The claimant did not normally use the main entrance located at the front of the
courthouse and, instead usually entered the building through a rear entrance reserved for
use by employees. Thus, the evidence does not establish the claimant was using her usual
route to access the courthouse at the time of her fall. However, the claimant does not have
13 to prove it was both the sole and usual route. Given that Bommarito supports
compensability if the injury occurs along the sole or usual route, the claimant here is able
to satisfy the "in the course of" requirement as the testimony was undisputed her injury
occurred while attempting to access the only open entrance to the courthouse. See
Bommarito, 82 Ill.2d at 195, 412 N.E.2d at 550.