Potenzo v. Illinois Workers' Compensation Commission

881 N.E.2d 523, 378 Ill. App. 3d 113, 317 Ill. Dec. 355, 2007 Ill. App. LEXIS 1296
CourtAppellate Court of Illinois
DecidedDecember 18, 2007
Docket1-07-0077 WC
StatusPublished
Cited by20 cases

This text of 881 N.E.2d 523 (Potenzo v. Illinois Workers' Compensation 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
Potenzo v. Illinois Workers' Compensation Commission, 881 N.E.2d 523, 378 Ill. App. 3d 113, 317 Ill. Dec. 355, 2007 Ill. App. LEXIS 1296 (Ill. Ct. App. 2007).

Opinion

JUSTICE HOFFMAN

delivered the opinion of the court:

The claimant, Thomas Potenzo, appeals from a judgment of the circuit court which confirmed a decision of the Illinois Workers’ Compensation Commission (Commission), denying his claim for benefits brought pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1994)). For the reason that follows, we reverse the judgment of the circuit court and remand this cause to the Commission for further proceedings.

The facts of this case are not in dispute. The claimant has been employed by Jewel Food Stores (Jewel) as a truck driver since 1991. On February 27, 1995, the claimant attempted to make a delivery to the Jewel store located at 4355 N. Sheridan Road in Chicago. The loading dock for that store is located in the rear in an alleyway between the store building and a condominium structure. The alleyway has gates at both ends which are controlled by the condominium building. The loading dock is equipped with two hydraulic lifts which are used in the process of unloading trucks making deliveries to the Jewel store.

After waiting for another Jewel driver to unload his truck, the plaintiff backed his truck up to one of the hydraulic lifts and began unloading. The claimant testified that he placed two pallets of goods on the hydraulic-lift platform and began to lower the device with a hand control when he felt someone grab his ankle. The claimant stated that, as he turned, he was hit in the back of the head, and he immediately lost consciousness. The next thing that the claimant remembers is waking up in a hospital two days later.

As a result of the incident, the claimant suffered a right front parietal skull fracture, a cerebral concussion, a compression fracture at L3, a right radial arm fracture, a nasal fracture, a facial fracture, a liver laceration, a contusion of the right kidney, a left wrist sprain, and damage to several teeth. The claimant was off work from February 28, 1995, through June 4, 2004. On June 5, 2005, he returned to work without restrictions.

The claimant does not know who attacked him or why. Nothing was found to be missing from the trailer that the claimant was unloading, and neither the truck he was driving nor the trailer was damaged. However, after he regained consciousness, the claimant was unable to locate his wedding ring or his watch. On cross-examination, the claimant admitted that he has no way of knowing if the items were taken by his assailant.

The claimant testified that, when making deliveries prior to his injury, he had seen vagrants crawling out of Dumpsters and rummaging through garbage in the alley behind the Jewel store where he was attacked. According to the claimant, he heard two to three security announcements come over the store’s loudspeaker each time he was making a delivery in that alley. The claimant also testified that, in the 10 years prior to his injury, he had seen the victim of a stabbing, witnessed a theft from a truck, and observed “a lot of police activity” in the neighborhood surrounding the Jewel store where he was attacked. Although the claimant stated that “several of us” complained “on and off’ about a security problem in the dock area where his attack took place, the claimant had no specific recollection of having made such a complaint prior to February 27, 1995.

The claimant described the hydraulic-lift platform he was using at the time of his injury and stated that it was not equipped with safety rails. When asked whether he would have been holding on to the safety rails when he was attacked had they been present, the arbitrator sustained Jewel’s objection, concluding that the question called for the claimant to speculate. Thereafter, the claimant was allowed to make an offer of proof and testify that, if safety rails had been present on the hydraulic lift when the assailant grabbed his ankle, he would have grabbed the rail and prevented himself from falling.

In its case-in-chief, Jewel introduced into evidence the depositions of Deborah Roeder, the property manager of the condominium building which borders the alley where the claimant was attacked; Thomas Moran, a co-general partner in the entity that developed the condominium building; George Redfearn, Jewel’s vice president for real estate; and Michael Terleski, one of Jewel’s fleet maintenance supervisors. Each of these witnesses testified to their knowledge or opinion as to the lack of violence, criminal activity, or security problems in the area where the claimant was attacked. Roeder testified that she reviewed the condominium’s records and, other than the incident involving the claimant, she found no reference to any other incidents occurring in the alleyway. She also stated that she was not personally aware of any other incidents involving an altercation or attack in the alleyway. Moran testified that the only incident of violence in the alleyway that was brought to his attention was the attack on the claimant. Redfearn stated that he was unaware of any security problems at the store where the claimant was injured. Terleski testified that, although he had been at the store where the claimant was injured to investigate broken or damaged equipment, he had never been sent to that store to investigate any type of an altercation or vandalism. According to Terleski, he was unaware of any violent acts behind the Jewel store at 4355 N. Sheridan Road prior to February 27, 1995.

Following a hearing, the arbitrator issued a decision in which he found that the claimant failed to prove that the injuries he sustained on February 27, 1995, arose out of his employment with Jewel, and, as a consequence, the arbitrator denied the claimant benefits under the Act. In addition, the arbitrator ordered the claimant to reimburse Jewel for all medical bills which it had paid on his behalf.

The claimant sought a review of the arbitrator’s decision before the Commission. In a decision with one commissioner dissenting, the Commission vacated that portion of the arbitrator’s decision which required the claimant to reimburse Jewel for medical bills and affirmed and adopted the arbitrator’s decision in all other respects.

The claimant sought judicial review of the Commission’s decision in the circuit court of Cook County. The circuit court confirmed the Commission’s decision, and this appeal followed.

For his first assignment of error, the claimant argues that the Commission’s finding that he failed to prove that his injuries arose out of his employment with Jewel is against the manifest weight of the evidence. In a related argument, he asserts that the Commission subjected him to an improper burden of proof.

An employee’s injury is compensable under the Act only if it arises out of and in the course of the employment. 820 ILCS 305/2 (West 1994). 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).

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Bluebook (online)
881 N.E.2d 523, 378 Ill. App. 3d 113, 317 Ill. Dec. 355, 2007 Ill. App. LEXIS 1296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potenzo-v-illinois-workers-compensation-commission-illappct-2007.