Jensen v. Industrial Commission

711 N.E.2d 1129, 305 Ill. App. 3d 274
CourtAppellate Court of Illinois
DecidedApril 13, 1999
Docket1-97-2967WC
StatusPublished
Cited by10 cases

This text of 711 N.E.2d 1129 (Jensen v. Industrial Commission) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jensen v. Industrial Commission, 711 N.E.2d 1129, 305 Ill. App. 3d 274 (Ill. Ct. App. 1999).

Opinions

JUSTICE COLWELL

delivered the opinion of the court:

Claimant, Joseph S. Jensen, appeals from an order of the circuit court of Cook County confirming a decision of the Industrial Commission (Commission) finding that claimant’s August 10, 1991, injury did not arise out of and in the course of his employment with respondent, Baldwin Aircraft Corporation. Claimant appealed, and we affirm.

On appeal, claimant contends that the Commission’s conclusion that his injuries did not arise out of and in the course of his employment and that its calculation of his average weekly wage are against the manifest weight of the evidence. Based on our ruling, we need only address the issue of whether claimant’s injuries arose out of and in the course of his employment.

FACTS

In August 1991, respondent was in the business of maintaining and operating a private jet-aircraft and providing air transportation for its owner, Tom Baldwin, and his guests to Baldwin’s private 5,000-acre summer retreat, “Granot Loma,” near Marquette, Michigan, and, on occasion, to other destinations. Robert Purcell was respondent’s chief pilot, and claimant was one of respondent’s copilots.

Between December 1990 and August 1991, claimant copiloted anywhere between 9 to 13 of respondent’s 25 flights. Claimant testified that he had stayed over on most trips to Granot Loma. Purcell determined on a cost-effective basis whether claimant would stay over at Granot Loma before the return flight or whether he would fly a commercial airliner back and then return when he was scheduled to copilot the return flight. Claimant testified he was occasionally required to do paperwork during his stays at Granot Loma but his job was mostly to “get along” with Baldwin and his family and guests and to help clean up after meals.

During claimant’s stays at Granot Loma, Baldwin allowed claimant to use his recreational vehicles, including two all-terrain vehicles (ATV), on the property at Granot Loma. Prior to working for respondent, claimant had never ridden an ATV Purcell showed claimant how to operate an ATV and they rode together on several occasions.

On August 7, 1991, claimant and Purcell flew Baldwin’s wife and children to Granot Loma with a return trip scheduled for August 11. Claimant stayed at Granot Loma on this occasion.

On August 9, claimant and Purcell made plans to take an ATV ride to an unfamiliar area of Baldwin’s property located across a state highway. Neither claimant nor Purcell had been to this area before.

The next day, August 10, between 3 p.m. and 3:30 p.m., claimant and Purcell began preparations for their ride. While Purcell wore a helmet, claimant did not, even though helmets were available for claimant to use. Claimant testified that he never wore a helmet when riding the ATVs. Purcell testified that he always wore a helmet when he left the courtyard and went out on the trails. Purcell further testified that when he asked claimant if he were going to wear a helmet, claimant said no in a joking fashion. Claimant denied that Purcell asked him if he were going to wear a helmet.

Purcell testified that he was driving a black, 185 CC Kawasaki, and claimant was driving a newer blue and white, 225 CC Kawasaki. Claimant testified that he was driving a black ATV

Claimant and Purcell left the Granot Loma courtyard and proceeded to ride about three-quarters of a mile down a driveway to a gate. At this point, they were still on Baldwin’s property. Claimant and Purcell then rode out of the gate and onto a road. Claimant did not know if the road was a county or public road but described it as a gravel, sand road. Purcell testified that the road was a public highway, either a county or a state road, but probably a county road. Both agreed that the road was dusty.

As they proceeded down the road, claimant drove in front of Purcell. Purcell testified that claimant was traveling too fast, and, even though his ATV did not have a speedometer, Purcell opined that claimant was traveling between 30 to 50 miles per hour. Purcell testified that he was not certain he could catch up to claimant even if he drove with the ATV “wide open.” Purcell testified that they were riding at an uncomfortably fast speed, that there was a lot of dust, that his vision was restricted, and that it was reckless to ride so fast in the dust. As a result, as soon as they got outside the gate and Purcell noticed that the speed picked up, he pulled over to the side of the road for about three to five minutes to let the dust clear.

Purcell then proceeded to the predetermined rendezvous point at the state highway they needed to cross to reach their intended destination, but claimant was not there. The state highway was located about three to four miles from the gate that separated Baldwin’s property from the county road. Purcell believed that claimant would not cross the state highway without him, so he waited for about 30 minutes before he backtracked the county road and found claimant at about 4:20 p.m. Purcell testified that claimant had hit a tree.

Claimant testified that the last thing he remembered before waking up in the hospital was that he began to slow down on the road to make a left turn. Claimant suffered a basilar skull fracture, a left temporal skull fracture, a basal fracture, and a fracture of the first and second ribs on the left side with an apical hematoma.

On August 13, 1992, the arbitrator found that claimant was an independent contractor and denied benefits. The Commission affirmed, and the circuit court confirmed the Commission’s decision. This court found an employer-employee relationship existed and reversed and remanded the matter to the Commission. On remand, the Commission found that claimant failed to prove that he suffered injuries that arose out of and in the course of his employment and again denied benefits. The circuit court confirmed the Commission’s decision, and claimant appealed.

STANDARD OF REVIEW

It is the claimant’s burden to prove by a preponderance of the credible evidence that the injury complained of arose out of and in the course of employment. Johnson Outboards v. Industrial Comm’n, 77 Ill. 2d 67, 70-71 (1979). The issue of whether or not an injury arose out of and in the course of employment is for the Commission to decide, and its decision will not be reversed unless it is contrary to the manifest weight of the evidence. Humphrey v. Industrial Comm’n, 76 Ill. 2d 333, 336 (1979). In order for a finding to be against the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Price v. Industrial Comm’n, 278 Ill. App. 3d 848, 852 (1996).

ANALYSIS

A claimant’s injury is not compensable unless it both “arises out of’ and is “in the course of’ the claimant’s employment. Paganelis v. Industrial Comm’n, 132 Ill. 2d 468, 480 (1989). The phrase “in the course of” refers to the time, place, and circumstances under which the accident occurred. Orsini v. Industrial Comm’n, 117 Ill. 2d 38, 44 (1987). An injury “arises out of” a claimant’s employment when there is a causal connection between the employment and the injury; that is, the origin or cause of the injury must be some risk connected with, or incidental to, the claimant’s employment. Brady v.

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Bluebook (online)
711 N.E.2d 1129, 305 Ill. App. 3d 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jensen-v-industrial-commission-illappct-1999.