Tinley Park Hotel & Convention Center v. Industrial Commission

826 N.E.2d 1043, 356 Ill. App. 3d 833, 292 Ill. Dec. 607, 2005 Ill. App. LEXIS 290
Appellate Court of Illinois·Decided March 30, 2005·No. 1-04-1307 WC·Published·Cited by 1 cases

Opinion

JUSTICE GOLDENHERSH

delivered the opinion of the court:

Claimant, Delores Wheeler, filed an application for adjustment of claim against the employer, Tinley Park Hotel and Convention Center, d/b/a Holiday Inn, under the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)). An arbitrator ruled claimant’s injuries did not arise out of her employment. The Illinois Industrial Commission 1 (Commission) reversed the decision of the arbitrator. The circuit court of Cook County confirmed and adopted the decision of the Commission. The issue on appeal is whether the Commission’s determination that claimant’s injuries arose out of the course of her employment is against the manifest weight of evidence. We affirm.

FACTS

Claimant filed an application for adjustment of claim stating that she injured her ribs, left arm, and left shoulder in a work accident of September 22, 2001. The matter proceeded to arbitration. 820 ILCS 305/18, 19(b) (West 2002).

At arbitration, claimant testified that she had worked for the employer for approximately 20 years, but had only worked at Banana’s Restaurant at the employer’s Tinley Park location for not quite a year prior to the alleged accident. Claimant testified she was 66 years old at that time. Claimant testified that she worked two jobs for the employer, as a waitress and as a hostess. Claimant usually worked four days as a hostess and one day a week as a waitress. Claimant’s schedule varied somewhat depending on the needs of the employer.

Claimant testified that when she began working at Banana’s Restaurant, the flooring was painted concrete with no carpeting. She stated that two weeks prior to the alleged accident, carpet was installed. Claimant admitted a sample of the carpet into evidence. Claimant testified that she was required by the employer to wear black, closed-in, rubber-soled shoes. She described the requirement for the shoes as “anything that wouldn’t slide.” Claimant submitted the shoes she was wearing on the date of the alleged accident into evidence. Claimant testified that in the two-week period after the carpet was installed, she observed people tripping.

Claimant testified that on September 22, 2001, she was working as a hostess for the employer. She stated that her duties included seating people, taking telephone calls, making sure the menus were all in the right place, and giving customers menus. Claimant stated that at approximately 4 p.m., three people came in requesting seats in the smoking section, which is at the rear of the restaurant. Claimant was walking the customers to their seats when she tripped and fell. Claimant was asked:

“Q. [Attorney for claimant:] What, if anything, caused you to trip?
Á. I tripped on the carpet. When I was walking, my right foot got stuck like on the carpet; and I just went down.”

Claimant testified that she broke her wrist and arm from the fall. She was unable to catch herself on anything to break the fall. Claimant specifically denied tripping over her own feet. She testified that she landed on her stomach and could not turn herself over. Paramedics responded and transported claimant to the hospital. Claimant testified that she told personnel at the hospital how she fell.

On cross-examination, claimant testified that she did not see any food, liquid, or any foreign object on the floor, either before or after the accident. Claimant admitted that the carpet did not have any “frayed edges or worn spots.” Claimant testified:

“Q. [Attorney for the employer:] Okay. Isn’t it true that this carpeting was clean and level in the area where you fell?
A. Well, I know it was clean. I don’t know about the level part.
I know before they laid the carpet, the concrete was unlevel, had waves in it, but I can’t — I don’t remember any uneven parts, no.
Q. Okay. You don’t recall seeing any uneven parts in the carpeting, is that correct?
A. That’s right.
Q. Okay. You were simply walking when you fell?
A. Right.
Q. Now, after your fall, did you look at the area where you fell?
A. Oh, yes.
Q. Okay. You didn’t see any uneven parts, did you?
A. No, sir.
Q. Okay. You didn’t see any frayed parts or any trim pieces sticking up or anything like that?
A. No, sir.”

Claimant testified that the employer did not issue her shoes and that she selected and purchased them on her own.

Medical records indicate that claimant was transported to the emergency room on the date of the accident. The hospital records give a history that claimant reported having “tripped over carpeting” and that her “foot became entangled in rug.”

Dina Sholtes testified that she began working as a hostess at Banana’s Restaurant in December 2001. The new carpeting was installed by the time Sholtes began working for the employer, but she testified that she had “noticed several different people stumble” walking back and forth from the buffet. Sholtes testified:

“Q. [Attorney for claimant:] Let me start again. With respect to the buffet that you were describing, people going back and forth to the buffet, what[,] if anything[,] unusual have you noticed as customers have been going back and forth to the buffet?
A. Well, I have noticed regardless of what age that they are, I have noticed several people stumble as they walk on the carpeting.
I even watched a man stumble on the carpeting and then almost fall into the little island that we have in the middle of the restaurant, too.
Q. Are these observations limited to the people using the restaurant as customers or have you also had an occasion to observe this with respect to coworkers?
A. I have seen customers, coworkers, and even myself have done the same thing.”

On cross-examination, Sholtes testified that she did not consider the carpet to be flat because there were lumps.

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Tinley Park Hotel & Convention Center v. Industrial Commission, 826 N.E.2d 1043, 356 Ill. App. 3d 833, 292 Ill. Dec. 607, 2005 Ill. App. LEXIS 290 (Ill. Ct. App. 2005).

826 N.E.2d 1043 (Tinley Park Hotel & Convention Center v. Industrial Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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