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

27 N.E.3d 678

Lanyon PRYOR, Appellant

v.ILLINOIS WORKERS' COMPENSATION COMMISSION et al., (Cassen Transport, Appellee).

No. 2–13–0874 WC.

Appellate Court of Illinois, Second District.

Feb. 20, 2015.

Brad A. Reynolds, of Gesmer Law Offices, P.C., of Rockford, for appellant.

Sam J. Cerniglia and Maria Merman, both of Roddy, Leahy, Guill & Zima, Ltd., of Chicago, for appellee.

OPINION

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

¶ 1 The claimant, Lanyon Pryor, filed an application for adjustment of claim under the Workers' Compensation Act (Act) ( 820 ILCS 305/1 et seq. (West 2008)), seeking benefits for an injury to his lower back which he sustained on July 21, 2008, while he was employed by Cassen Transport (employer). After conducting a hearing, an arbitrator found that the claimant had failed to prove that he sustained an accident that arose out of and in the course of his employment. In so ruling, the arbitrator rejected the claimant's argument that he was acting as a “traveling employee” at the time he was injured. The arbitrator also found that the claimant failed to prove that the injuries he sustained, if any, were causally connected to his employment.

¶ 2 The claimant appealed the arbitrator's decision to the Illinois Workers' Compensation Commission (Commission), which unanimously affirmed and adopted the arbitrator's decision. The Commission found that the risk which resulted in the claimant's alleged injury was a personal risk that was “not sufficiently connected to [his] employment in order to be a risk peculiar to his work.” Moreover, like the arbitrator, the Commission also found that the claimant's “travel for work had not yet begun when the accident occurred.”

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

¶ 4 FACTS

¶ 5 The employer delivers new automobiles to various car dealerships for Chrysler. The claimant works for the employer as a car hauler. His responsibilities include loading automobiles onto an 18–wheel car-hauling truck at the employer's terminal in Belvidere, Illinois, driving the truck to various dealerships, and unloading the cars at those dealerships. Sometimes the claimant picks up vehicles on his return trip, loads them on the truck, and delivers them to another location on his way back to Belvidere. The claimant usually drives his personal vehicle from his home to the employer's Belvidere terminal and back.

¶ 6 One to two nights per week, the claimant spends the night at a hotel while he is on the road delivering cars to dealerships. The employer provides each car hauler with a list of motels so he can book an overnight stay at one of those hotels while he is on the road. When the claimant anticipates that he will be staying overnight at a hotel, he packs a suitcase with a change of clothes. The claimant usually drives to the employer's terminal in his personal vehicle, takes the suitcase out of his vehicle, and puts it into an 18–wheeler. He then loads the 18–wheeler with cars and drives it to the various dealerships where he delivers the cars.

¶ 7 On July 21, 2008, the claimant arose at 4 a.m. to get ready for work. He testified that he planned to drive to the Belvidere terminal that morning to “start [his] work.” Because he anticipated being out of town overnight for work that evening, the claimant packed a suitcase with a change of clothes and other items for the trip. The claimant carried the packed suitcase to his personal car, opened the car door, reached down to pick up the suitcase, and “bent and turned to the back seat of the car.” At that moment, the claimant felt an “unbearable” pain through his back and down his legs which caused him to drop to his knees. The claimant stated that he had to “crawl into [his] house screaming for [his] wife” because he “thought [he] was paralyzed.”

¶ 8 Later that day, the claimant's wife drove the claimant to his chiropractor, Dr. Irshad Kassim. Dr. Kassim's July 21, 2008, treatment record reflects that the claimant reported “severe,” “sharp,” and “burning” pain in his lower back radiating into his right leg. The claimant rated the pain as a 10 on a scale of 0 to 10. Dr. Kassim's treatment record notes that “since his last visit, [the claimant's] lower back pain has been worse.”¹ The claimant reported feeling a sharp burning pain in his lower back “while he was picking up a suitcase to go to work.” Dr. Kassim noted that the claimant was “acutely inflamed and needed assistance to walk.” The doctor recommended that the claimant go to the emergency room. He also noted that the claimant should “continue with the prescribed home care.”

¶ 9 The claimant's wife then drove him to the emergency room at St. Alexis Hospital. At the emergency room, the claimant was given an injection for pain relief and told to follow up with his family doctor, Dr. Pocholo Florentino. On July 23, 2008, Dr. Florentino examined the claimant and ordered an MRI, which revealed disc bulging at L2–L5. The following day, Dr. Florentino reexamined the claimant and prescribed medication and physical therapy. During the initial physical therapy session, the therapist instructed the claimant in a home exercise program.² After performing these exercises at home, the claimant returned to Dr. Florentino, who released the claimant for work as of August 18, 2008. The claimant returned to work on that date. During the arbitration hearing on March 14, 2011, the claimant testified that his lower back was “fine.”

¶ 10 The claimant testified that he never had lower back pain before July of 2008. However, Dr. Kassim's June 4, 2005, medical record indicates that, “[o]n this visit, [the claimant] stated that he was experiencing constant mild to moderate lower back pain which was sharp in quality.” According to Dr. Kassim's June 4, 2005, medical record, the claimant's pain was radiating into his left leg, and the claimant rated the pain as a 5 on a scale of 0 to 10. Dr. Kassim diagnosed the claimant with “lumbar somatic dysfunction ” and sciatica and prescribed biweekly chiropractic treatments. Dr. Kassim's June 10, 2005, medical record reflects that, although the claimant's lower back pain was getting better, the claimant was still experiencing “constant mild to moderate diffuse lower back pain which was sharp and tingling in quality.” Dr. Kassim's June 24, 2005, medical record notes that the claimant's “lower back pain has remained unchanged.”

¶ 11 The employer presented the evidence deposition of Charles Anderson, the employer's operations manager. Anderson testified that the claimant called in sick on July 14, 15, and 16 2008, and left a message stating that he was having “sciatic nerve problems due to a motorcycle ride.” The claimant testified that he spoke with his employer on July 16, 2008, and reported that he had hurt his back while loading cars at work. However, when asked on cross-examination “[i]f the note or Mr. Anderson * * * would testify that you called him and told him you were having sciatic nerve problems due to a motorcycle ride and you need to be off a couple days[,] would that be incorrect?”, the claimant responded “I am not—I don't recall that. It could be and I don't remember because we are talking two and a half or three years ago.” The claimant admitted that he rode his motorcycle approximately 250 miles to Wisconsin and back on July 12, 2008.

¶ 12 The arbitrator found that the claimant had failed to prove that he sustained an accident that arose out of and in the course of his employment on July 21, 2008. The arbitrator concluded that the claimant “would be considered a traveling employee from when he arrives at [the employer's] terminal, loads his vehicle, delivers his vehicles to a destination, and returns to the terminal.” However, the arbitrator found that “lifting an overnight bag is not sufficient to put [the claimant] in the course of his employment.” In support of this finding, the arbitrator cited our supreme court's decision in Orsini v. Industrial Comm'n, 117 Ill.2d 38, 109 Ill.Dec. 166, 509 N.E.2d 1005 (1987). Summarizing the supreme court's holding in Orsini, the arbitrator noted that (1) “[f]or an injury to have arisen out of the employment, the risk of injury must be a risk peculiar to the work or a risk to which the employee is exposed to a greater degree than the general public by reason of his employment”; and (2) “[i]f the injury results from a hazard to which the employee would have been equally exposed apart from the employment, then it does not arise out of [the employment].”

¶ 13 The arbitrator also found that, “[e]ven arguing that the [claimant's] activity was ‘arising out of’ [his employment], * * * the [claimant] failed to prove that the low back condition at the time of this alleged injury was causally connected to a lifting incident on July 21, 2008.” The arbitrator noted that “the medical records, the [claimant's] testimony, and the testimony of Chuck Anderson persuade the Arbitrator to find that [the claimant's] low back symptoms were causally connected to activities outside of his employment.” Accordingly, in addition to his finding that the injuries the claimant suffered on July 21, 2008, did not arise out of and in the course of his employment, the arbitrator also specifically found that “the [claimant] failed to prove that the injuries he sustained on July 21, 2008, if any, were causally connected to his employment with [the employer].” The arbitrator denied benefits.

¶ 14 The claimant appealed the arbitrator's decision to the Commission. The claimant disputed both the arbitrator's finding that he failed to prove an accident arising out of and in the course of his employment and the arbitrator's finding of no causal connection. Regarding the accident issue, the claimant argued that he was a “traveling employee” because his job required him to travel. Accordingly, he was...