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IIT Research Institute v. IC, No. 1-99-1474WC

1st District, May 15, 2000

Industrial Commission Division

JUSTICE RAKOWSKI delivered the opinion of the court:

Thomas Kaufman (decedent) was killed by a stray bullet while working for Illinois Institute of Technology ResearchInstitute (employer). His widow, Catherine Kaufman (claimant), filed an application for adjustment of claim for deathbenefits pursuant to the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 1998)). The arbitratorconcluded that claimant failed to prove decedent's death arose out of his employment and denied benefits. The IndustrialCommission (the Commission) affirmed but the circuit court reversed. On remand, the Commission followed the circuitcourt's decision and determined that claimant's decedent was subjected to a greater risk of injury than that to which thegeneral public is exposed and, therefore, concluded that his death arose out of his employment. On administrative review, adifferent judge of the circuit court reversed, finding decedent was not subjected to an increased risk of injury. The principalquestion before this court is whether decedent was subjected to a greater risk of injury from stray bullets than that to whichthe general public is exposed. Because the building in which decedent worked bordered on a police district with a very highcrime rate, the building was located directly across the street from a project where rival gangs were feuding, gunfire was analmost everyday occurrence, bullets had previously hit employer's building, and decedent sat in the lobby of the buildingfronted by floor-to-ceiling glass windows, we answer yes and, therefore, find decedent's death arose out of his employment.We also find that the arbitrator properly allowed claimant to correct her application for adjustment of claim under thedoctrine of misnomer or, alternatively, properly allowed her to amend the application under the doctrine of relation back.Therefore, the Commission had jurisdiction to consider the cause. Finally, we conclude that the proper legal standard forassessing risk is to compare claimant's risk to that of the general public, not to other individuals in the vicinity or area.Based on the above, we reinstate the Commission's decision on remand dated June 2, 1998.

FACTS

Claimant's decedent, a security guard for employer, was killed on November 9, 1989, by a stray bullet fired from across thestreet from his place of employment. He worked inside the lobby at 10 West 35th Street, Chicago, fronted byfloor-to-ceiling glass windows. He sat behind a desk and console approximately 20 feet from the windows where his torsoand head were exposed. Decedent's duties included monitoring alarms in the building, manning the front desk, patrollingthe empty office building, and safeguarding secret United States government documents. Decedent was not required topatrol outside the building and the building was not open to the public.

Across the street from employer's building, south of 35th Street, are the Stateway Gardens homes. Rival gang members hadbeen attempting to take control of the building directly across from employer's building. As a result of this dispute, sevenarmed gang members began firing shots at a man in the playground. To avoid the gunfire, the man ran from the playground,toward employer's building. While running, he was struck by a bullet. He continued to run and when he was in front ofemployer's second revolving door, he fell to the ground. Apparently, his hand was on the door at the time he began to fall.He died shortly thereafter. One of the bullets fired by the gang pierced a window of employer's building, struck ThomasKaufman, and killed him.

Detective Edward Winstead of the Chicago police department testified on behalf of claimant. He was assigned to Area OneViolent Crimes and explained that Stateway Gardens is located in the second district of Area One, and employer's buildingis located in the twenty-first district. He stated that since the project building was being fought over, activity in the area hadincreased and gunshots were heard daily. Winstead had been called to the area on prior occasions for purse snatchings androbberies, but not for shootings. He stated the crime rate south of 35th Street (project side) was very high, while the crimerate north of 35th Street (employer's side) was "pretty low."

Winstead investigated decedent's shooting. According to him, the bullet crossed the playground, the sidewalk on the southside of 35th Street, 35th Street, the sidewalk in front of employer's building, and then entered the window of employer'sbuilding. It traveled over 200 feet before striking decedent. Winstead further testified that anyone walking on the sidewalkon 35th Street, driving by in a car, waiting on the L platform, returning from the White Sox game, or visiting the day carecenter on the south side of the street, the McDonald's on 35th Street or the liquor store on State Street just south of 35thStreet would have been in the path of the bullet. Further, any passing train would have been in its path.

Claimant also called Richard Hammer, decedent's co-employee. He had been a security guard for 17 years for employer. Hetestified he heard gunshots at least weekly. Further, he stated that sometimes he heard them daily. According to him, bulletshad previously struck the upper floors of the building but none had entered the lobby. Hammer did not know how manybullets had hit the building nor how many he had found, stating he did not count them. When the gang first began shootingon the day of the incident, Hammer stated to decedent that "they were at it again." Hammer stated no murders had occurredin the building in the 17 years he had worked there.

Claimant filed her application for adjustment of claim as "Catherine Kaufman, on behalf of her husband Thomas Kaufman,deceased." At arbitration, employer orally asserted, for the first time, that the case was brought on behalf of a dead person(Thomas) and, therefore, the Commission lacked jurisdiction. Over employer's objection, claimant was allowed to amendthe application to state "Catherine Kaufman, widow." The arbitrator found the amendment proper as did each of thesubsequent tribunals.

Substantively, the arbitrator found that claimant failed to prove decedent's death arose out of his employment because shefailed to "show that Decedent's employment increased his risk of being shot over that of other persons in theneighborhood." The Commission adopted and affirmed. The circuit court (Judge Bonaguro) reversed. Judge Bonaguro firstdetermined that the Commission applied an incorrect legal standard, comparing decedent's risk to others in theneighborhood rather than the general public. He held that, for this reason alone, the Commission's decision had to bereversed. He then concluded, as a matter of law, that "there is no doubt that, by being at his post, decedent's risk of beingshot was greater than that of the general public. Any finding to the contrary would, as a matter of law, be against themanifest weight of the evidence." The circuit court remanded for proceedings consistent with its order. We dismissedemployer's appeal based on lack of jurisdiction for want of a final order because of the remand to the Commission.Kaufman v. Industrial Comm'n, No. 1-96-1774WC (February 25, 1997) (unpublished order under Supreme Court Rule 23).

On remand, the Commission found that decedent was subjected to an increased risk and, therefore, his death arose out of hisemployment. On administrative review, however, the circuit court (Judge Lanigan) reversed. Judge Lanigan first concludedthat the Commission did not lack jurisdiction based on a faulty application for adjustment of claim. She found that therelation back doctrine applied to cure any defect in claimant's application. She then found that employer had waived itsstatute of limitations defense for failure to properly raise it before the Commission, concluding that its mention in a footnotewas insufficient. Substantively, Judge Lanigan found that the Commission, in its original decision, applied the proper legalstandard (vicinity) and that Judge Bonaguro applied an incorrect standard (general public). Further, she found that differinginferences could be drawn from the facts and, therefore, Judge Bonaguro erred in deciding the case as a matter of law.Finally, she concluded that the Commission's original decision was not against the manifest weight of the evidence, findingthat the bullet that struck decedent could have struck anyone in its path and, thus, the general public in that vicinity wassubject to the same risk.

ANALYSIS

I. JURISDICTION AND STATUTE OF LIMITATIONS

On appeal, employer contends the Commission lacked jurisdiction. Specifically, claimant's application named a deadperson, who cannot be a party, and, therefore, the application was a nullity. Further, claimant failed to amend theapplication or file a claim on her own behalf within the applicable statute of limitations period. Thus, the application wasbarred. Employer also argues the relation back doctrine is not applicable to workers' compensation actions because the Actmakes no such provision. Moreover, there is nothing to relate back to because claimant's original application was a nullity.Employer relies on Vaughn v. Speaker, 126 Ill. 2d 150 (1988), and Knowles v. Mid-West Automation Systems, Inc., 211 Ill.App. 3d 682 (1991).

A. Application of Code of Civil Procedure

Employer contends that the doctrine of misnomer embodied in section 2-401 of the Code of Civil Procedure (Code) (735ILCS 5/2-401 (West 1998)) and the doctrine of relation back embodied in section 2-616 (735 ILCS 5/2-616 (West 1998))do not apply to workers' compensation proceedings because neither the Act nor Commission rules provide for suchprocedures.

The Code and supreme court rules generally do not apply to workers' compensation proceedings "in so far as or to theextent that the procedure is regulated by *** the *** [A]ct." Elles v. Industrial Comm'n, 375 Ill. 107, 113 (1940) (decliningto read civil Rule 4 (setting forth summons return day) into workers' compensation proceedings because matter of whenwrits of certiorari and scire facias are returnable is regulated by Act). However, where the Act or Commission rules do notregulate a topic, civil provisions have been applied to workers' compensation actions. See Krantz v. Industrial Comm'n, 289Ill. App. 3d 447, 450, 452 (1997) (holding that claimant must seek relief under Rule 137 (134 Ill. 2d R. 137) againstemployer for employer's frivolous appeal because Commission had no power to make such an award since the Actcontained no provision therefor); Blacke v. Industrial Comm'n, 268 Ill. App. 3d 26, 29 (1994) (applying statute oflimitations found in section 13-205 of the Code to section 19(g) of the Act; stating that in the absence of a legislative intentto the contrary, court will apply Code provision where it is deemed necessary to facilitate purpose of the Act); Bray v.Industrial Comm'n, 161 Ill. App. 3d 87, 91-93 (1987) (applying interest provision of Code to workers' compensationproceeding, relying on McMurray v. Peabody Coal Co., 281 Ill. 218 (1917) (interest provision applied because Act silent);also holding that civil provision applicable even though Act amended to address interest because provisions cover differenttypes of awards). See also Mora v. Industrial Comm'n, No. 1-98-4775WC, slip op. at 12-13 (March 6, 2000) (applyingCode and cases interpreting same, specifically section 2-616, to determine that amendment of application to nameadditional respondents after hearing before arbitrator was improper because it worked a prejudicial affect upon substantiverights of respondents). But see Lawlyes v. Industrial Comm'n, 246 Ill. App. 3d 226, 230 (1993) (declining to apply Rule 137sanction to workers' compensation proceedings to assess penalties against claimant for frivolous appeal because section 19provides for penalties in favor of claimant, not against; court found Act intentionally silent on issue).

In this case, neither the Act nor the Commission's rules address under what circumstances an application for adjustment ofclaim may be amended. While section 7020.20(e) does provide for amendment, it does not detail under what circumstancesamendment may be had. 50 Ill. Admin. Code