Kertis v. Ill. Workers' Comp. Comm'n

991 N.E.2d 868

372 Ill.Dec. 378

Laverne KERTIS, Appellant,

v.The ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (Washington Mutual, Inc., n/k/a/ Chase Bank and Specialty Risk Services, Appellee).

No. 2–12–0252 WC.

Appellate Court of Illinois,

Second District,

Workers' Compensation Commission Division.

June 18, 2013.

Rehearing Denied July 19, 2013.

Paul W. Grauer, Paul W. Grauer & Associates, Schaumburg, for appellant.

Dennis J. Noble, Michael E. Mahay, Lisa K. Barbieri, Noble & Associates, Naperville, for appellee.

OPINION

Presiding Justice HOLDRIDGE delivered the judgment of the court, with opinion.

[372 Ill.Dec. 380]¶ 1 The claimant, Laverne Kertis, filed an application for adjustment of claim under the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2008)), seeking benefits for back injuries which he allegedly sustained while working for the respondent, Washington Mutual, Inc., n/k/a/ Chase Bank and Specialty Risk Services (employer). After conducting a hearing, an arbitrator found that the claimant had failed to prove that he sustained an accidental injury arising out of his employment and denied benefits.

¶ 2 The claimant appealed the arbitrator's decision to the Illinois Workers' Compensation Commission (the Commission), which affirmed and adopted the arbitrator's decision. Commissioner Mason dissented.

¶ 3 The claimant sought judicial review of the Commission's decision in the circuit court of Kane County, which confirmed the Commission's decision. This appeal followed.

¶ 4 FACTS

¶ 5 The following factual summary is taken from the claimant's testimony at the arbitration hearing, which was unrebutted.¹ The claimant worked as a branch manager for two branches of the employer's bank. One of the branch offices that the claimant managed was located in Hoffman Estates, Illinois, and the other was in St. Charles, Illinois. In the performance of his job duties, the claimant regularly traveled between these two branch offices. The claimant would go from one branch to the other to attend loan closings and to perform other employment-related tasks. His travel schedule varied according to the employer's needs. Sometimes the claimant would start his workday at the Hoffman Estates branch and drive to the St. Charles branch later in the day. Other times he would start in St. Charles and then travel to Hoffman Estates. Sometimes the claimant would travel back and forth between the two branch offices several times per day. When asked whether there were days when he would not have to travel between the two offices, the claimant responded, “Rare. If any.”

[372 Ill.Dec. 381]¶ 6 The employer did not provide parking for its employees or customers at the St. Charles branch office. The employees working at that office had to park either on the street or in a nearby municipal parking lot. When the claimant traveled to the St. Charles office, he “pretty much always” parked in a particular municipal parking lot that was located across the street and approximately one block away from that office. Although there were other parking lots owned and operated by the city of St. Charles, the claimant chose to park in this particular lot because of its “availability” and “closeness” to the office.²

¶ 7 On August 25, 2008, the claimant began working at the Hoffman Estates office at 8 a.m. At approximately 3:30 p.m., he drove to the St. Charles office to attend a loan closing. He parked in the nearby municipal parking lot, as was his custom. He exited his parked car and began walking across the parking lot toward the branch office. As he approached the parking lot's only entrance, a car drove into the lot. While attempting to avoid the oncoming car, the claimant stepped into a pothole and fell. Shortly thereafter, the claimant began experiencing increasing pain in his lower back and right hip. He was later treated for a herniated disk in his lower back and was temporarily disabled from working.

¶ 8 The arbitrator found that the claimant had failed to establish that the accidental injury he sustained in the municipal parking lot on August 25, 2008, arose out of his employment. Although the arbitrator found that the claimant's injury occurred during the course of his employment because “his job duties required him to travel to and from the two bank locations,” he concluded that the claimant had failed to establish that he was exposed to a risk to a greater degree than the general public. The arbitrator noted that the accident occurred in a public parking lot and found that the risk the claimant was exposed to was “common to the general public and not unique to [the claimant].” The arbitrator observed that the claimant had “offered no evidence to suggest that the area in question represented an increased risk greater than the general public would be exposed to on a daily basis.”

¶ 9 The claimant appealed the arbitrator's decision to the Commission. A majority of the Commission panel affirmed and adopted the arbitrator's decision.

¶ 10 Commissioner Mason concurred in part but dissented from the Commission's judgment. Commissioner Mason stated that she agreed with the Commission majority's determination that the claimant was a “traveling employee.” However, Commissioner Mason disagreed with the arbitrator's and the Commission's analysis of the “arising out of” issue. Quoting our supreme court's decision in Wright v. Industrial Comm'n, 62 Ill.2d 65, 70, 338 N.E.2d 379 (1975), Commissioner Mason observed that “[t]he test for determining whether an injury to a traveling employee arose out of the employment is ‘the reasonableness of the conduct in which [the employee] was engaged and whether it might normally be anticipated or foreseen by the employer.’ ” Applying these standards, Commissioner Mason concluded that “it was eminently reasonable and foreseeable that [the claimant], a branch manager who regularly traveled between two of [the employer's] banks, would park his car in a lot near one of the banks and then head to his destination.” She further observed that, because the employer did not provide parking, it “had every reason to anticipate that [the claimant] would regularlyneed to use and traverse this lot.” Commissioner Mason would have reversed the arbitrator's decision on this basis alone, without inquiring into whether the claimant was exposed to any risk to a greater extent than the general public. Nevertheless, Commissioner Mason concluded that the claimant “should still prevail” “even if an increased risk analysis were appropriate,” because he was a traveling employee who was exposed to the hazards of the parking lot at issue to a greater degree than other individuals.

¶ 11 The claimant sought judicial review of the Commission's decision in the circuit court of Kane County, which confirmed the Commission's decision. This appeal followed.

¶ 12 ANALYSIS

¶ 13 At issue is whether the claimant's injuries, suffered while he was walking through a public parking lot en route to the St. Charles office where he worked, arose out of his employment. Whether a claimant's injury arose out of or in the course of his employment is typically a question of fact to be resolved by the Commission, and the Commission's determination will not be reversed unless it is against the manifest weight of the evidence. Cox v. Illinois Workers' Compensation Comm'n, 406 Ill.App.3d 541, 546, 347 Ill.Dec. 92, 941 N.E.2d 961 (2010); Joiner v. Industrial Comm'n, 337 Ill.App.3d 812, 815, 272 Ill.Dec. 88, 786 N.E.2d 627 (2003). However, when, as in this case, the facts are undisputed and susceptible of but a single inference, the question is one of law subject to de novo review. Joiner, 337 Ill.App.3d at 815, 272 Ill.Dec. 88, 786 N.E.2d 627.³

¶ 14 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 2008). An injury “arises out of” one's employment if “its origin is in some risk connected with or incident to the employment, so that there is a causal connection between the employment and the accidental injury.” Saunders v. Industrial Comm'n, 189 Ill.2d 623, 627, 244 Ill.Dec. 948, 727 N.E.2d 247 (2000); see also Parro v. Industrial Comm'n, 167 Ill.2d 385, 393, 212 Ill.Dec. 537, 657 N.E.2d 882 (1995). A risk is “incidental to the employment” when it “belongs to or is connected with what [the] employee has to do in fulfilling his duties.” Caterpillar Tractor Co. v. Industrial Comm'n, 129 Ill.2d 52, 58, 133 Ill.Dec. 454, 541 N.E.2d 665 (1989); Stembridge Builders, Inc. v. Industrial Comm'n, 263 Ill.App.3d 878, 880, 201 Ill.Dec. 656, 636 N.E.2d 1088 (1994).

¶ 15 “In the course of the employment” refers to the time, place, and circumstances under which the claimant is injured. Scheffler Greenhouses, Inc. v. Industrial Comm'n, 66 Ill.2d 361, 366, 5 Ill.Dec. 854, 362 N.E.2d 325 (1977). Injuries sustained at a place where the claimant might reasonably have been while performing his duties, and while a claimant is at work, or within a reasonable time before and after work, are generally deemed to have been received in the course of the employment. Caterpillar Tractor Co., 129 Ill.2d at 57, 133 Ill.Dec. 454, 541 N.E.2d 665;Cox, 406 Ill.App.3d at 545, 347 Ill.Dec. 92, 941 N.E.2d 961.

¶ 16 The determination of whether an injury to a traveling employee arose out of and in the course of employment is governed by different rules than are applicable to other employees. Hoffman v. Industrial Comm'n, 109 Ill.2d 194, 199, 93 Ill.Dec. 356, 486 N.E.2d 889 (1985); Venture–Newberg Perini Stone & Webster v. Illinois Workers' Compensation Comm'n, 2012 IL App (4th) 110847WC, ¶ 12, 367 Ill.Dec. 363, 981 N.E.2d 1091; Cox, 406 Ill.App.3d at 545, 347 Ill.Dec. 92, 941 N.E.2d 961. A “traveling employee” is one whose work requires him to travel away from his employer's office. Hoffman v. Industrial Comm'n, 128 Ill.App.3d 290, 293, 83 Ill.Dec. 381, 470 N.E.2d 507 (1984), aff'd,109 Ill.2d 194, ...