Find Legal Information

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH JUDICIAL DISTRICT

INDUSTRIAL COMMISSION DIVISION

JUSTICE HOFFMAN delivered the opinion of the court:

Litchfield Healthcare Center (Litchfield) appeals from an orderof the circuit court reversing a decision of the Industrial Commission(Commission), denying the claimant, Gretchen Newingham, benefits underthe Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West2000)). For the reasons which follow, we affirm.

The following factual recitation is taken from the evidenceadduced at the arbitration hearing.

Litchfield operates a residential health care facility in a two-story building located at 1285 Union Street in Litchfield, Illinois. It is the sole occupant of the building which is bordered by parkingareas on the east, west, and north sides, and has sidewalks runningfrom the parking areas to doors located on each of the three sides. Litchfield maintained the building and the surrounding areas.

The claimant began working for Litchfield as a certified nursingassistant on May 25, 2000. Her duties consisted of giving snacks anddrinks to the residents, giving the residents showers, and preparingthem for bed.

The claimant testified that, when she began working forLitchfield, a secretary named Donna Able "suggested" that she park hercar in the north parking lot. The north parking lot was also used byvisitors to the facility. The claimant admitted that, on occasion, shewould park in the west parking lot when the north lot was full.

On September 24, 2000, the claimant arrived at Litchfield'sfacility approximately 10 minutes before her 2 p.m. shift was to begin. According to the claimant, she parked in the north parking lot andwalked to the entrance door on the north side of the building. Uponentering, she punched in at the time clock located immediately insideof the door. After punching in, the claimant realized that she hadforgotten her "gait belt" in her car. A gait belt is a device used tohold a resident as he or she is being lifted. The claimant testifiedthat she was required to have a gait belt and she could be disciplinedif she did not have it.

The claimant exited the building and returned to her car. Afterretrieving the belt, she began walking back to the building withanother certified nursing assistant who had arrived for work. Indescribing the events which followed, the claimant stated:

"She [the other certified nursing assistant] come [sic]walking up next to me. We both stepped up onto the sidewalkand she kind of invaded my space a little so I kind ofstepped off the edge of the sidewalk and she moved and I gotback on the sidewalk and I took a couple of steps and as I-- when I was walking where the concrete is not level witheach other, I started to trip on that part of the sidewalk,and as I started to fall, I tried to grab her so I wouldn'ttotally fall and when I tried to catch myself with my leftfoot, that's when I rolled my ankle off the sidewalk."

The claimant suffered a "severe ankle and foot sprain" but did notsustain a fracture or dislocation.

The claimant was treated at St. Francis Hospital's emergency roomon the day of her fall. Thereafter, the claimant underwentconservative treatment and physical therapy. On February 12, 2001, theclaimant underwent surgery to repair ligaments around her left ankle. She was off work from the date of her injury until the arbitrationhearing on March 9, 2001.

Following a section 19(b) (820 ILCS 305/19(b)(West 2000)) hearing,the arbitrator found that the claimant sustained accidental injuriesarising out of and in the scope of her employment and that hercondition of ill-being is causally related to those injuries. Thearbitrator awarded the claimant temporary total disability (TTD)benefits for a period of 23 5/7 weeks and ordered Litchfield to pay$8,202.14 for necessary medical expenses incurred by the claimant.

Litchfield sought a review of the arbitrator's decision before theCommission. In a decision with one commissioner dissenting, theCommission reversed the arbitrator's decision, holding that theclaimant failed to prove that she sustained an accidental injuryarising out of and in the course of her employment, and denied her anybenefits under the Act. The majority found that there was no evidenceto show either that Litchfield restricted the method by which theclaimant entered or exited its building or that she was subjected to arisk uncommon to the general public or to a greater degree than thegeneral public. The majority acknowledged that the claimant had"clocked in" prior to the incident, but noted that she had not yetbegun to work.

The dissenting commissioner observed that the claimant was injuredafter she had clocked in and as she was returning from retrieving a"tool" that she was required to have for her job. Based on thosefacts, the dissenting commissioner held that the majority haderroneously determined that the claimant had not yet begun to work atthe time of her injury. The dissenting commissioner concluded that theclaimant was in the course of her employment and engaged in an activityincidental thereto at the time of her injury and was placed at anincreased risk of harm because she was exposed to the defect in thesidewalk more frequently than the general public.

The claimant sought judicial review of the Commission's decisionin the circuit court of Montgomery County. The circuit court,following the reasoning of the dissenting commissioner, reversed thedecision of the Commission and reinstated the arbitrator's findings andaward. Litchfield filed the instant appeal.

In a workers' compensation case, the claimant has the burden ofestablishing, by a preponderance of the evidence, that her injury aroseout of and in the course of her employment. O'Dette v. IndustrialComm'n, 79 Ill. 2d 249, 253, 403 N.E.2d 221 (1980). The determinationof whether an injury arose out of and in the course of a claimant'semployment is a question of fact for the Commission to resolve and itsfinding in that regard will not be set aside on review unless it isagainst the manifest weight of the evidence. Knox County YMCA v.Industrial Comm'n, 311 Ill. App. 3d 880, 885, 725 N.E.2d 759 (2000). For a finding of fact to be contrary to the manifest weight of theevidence, an opposite conclusion must be clearly apparent. Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App. 3d 288, 291, 591N.E.2d 894 (1992).

An employee's injury is compensable under the Act only if itarises out of and in the course of the employment. 820 ILCS 305/2(West 2000). Both elements must be present at the time of theclaimant's injury in order to justify compensation. Illinois BellTelephone Co. v. Industrial Comm'n, 131 Ill. 2d 478, 483, 546 N.E.2d603 (1989). Arising out of the employment refers to the origin orcause of the claimant's injury. As the Supreme Court held inCaterpillar Tractor Co. v. Industrial Comm'n, 129 Ill. 2d 52, 58, 541N.E.2d 665 (1989):

"For an injury to 'arise out of' the employment itsorigin must be in some risk connected with, or incidentalto, the employment so as to create a causal connectionbetween the employment and the accidental injury. [Citations.] Typically, an injury arises out of one'semployment if, at the time of the occurrence, the employeewas performing acts he was instructed to perform by hisemployer, acts which he had a common law or statutory dutyto perform, or acts which the employee might reasonably beexpected to perform incident to his assigned duties. [Citation.] A risk is incidental to the employment where itbelongs to or is connected with what an employee has to doin fulfilling his duties. [Citations.]"

"In the course of the employment" refers to the time, place, andcircumstances under which the claimant is injured. SchefflerGreenhouses, Inc. v. Industrial Comm'n, 66 Ill. 2d 361, 366, 362 N.E.2d325 (1977). Injuries sustained on an employer's premises, or at aplace where the claimant might reasonably have been while performingher duties, and while a claimant is at work, or within a reasonabletime before and after work, are generally deemed to have been receivedin the course of the employment. Caterpillar Tractor Co., 129 Ill. 2dat 57.

In this case, the claimant was injured on Litchfield's premisesand, as the dissenting commissioner correctly observed, after she hadclocked in and was in the process of retrieving a tool needed toperform her job. We believe, therefore, that the claimant's injurieswere sustained in the course of her employment. Our focus now is onthe question of whether the claimant's injuries arose out of heremployment.

There are three categories of risk to which an employee may beexposed; namely: (1) risks distinctly associated with her employment;(2) personal risks; and (3) neutral risks which have no particularemployment or personal characteristics. Illinois Institute ofTechnology Research Institute v. Industrial Comm'n, 314 Ill. App. 3d149, 162, 731 N.E.2d 795 (2000). In this case, the claimant tripped onan uneven sidewalk. The risk of such an event is not distinctlyassociated with her employment, nor is it personal to her. The risk oftripping on a sidewalk is a neutral one. Consequently, the question ofwhether the claimant's injury arose out of her employment rests on adetermination of whether she was exposed to a risk of injury to agreater extent than that to which the general public was exposed. Illinois Institute of Technology, 314 Ill. App. 3d at 162. TheCommission found that she was not. We disagree.

As the Commission correctly noted, the claimant was not requiredto park in the north parking lot, it was only "suggested" that she doso. This fact distinguishes this case from the circumstances presentin Homerding v. Industrial Comm'n, 327 Ill. App. 3d 1050, 765 N.E.2d1064 (2002). However, unlike the circumstances present in CaterpillarTractor Co. v. Industrial Comm'n, 129 Ill. 2d 52, 541 N.E.2d 665(1989), the case relied upon by the Commission, this case does notmerely involve the risks inherent in walking on a sidewalk whichconfront all members of the public.

The claimant testified that she tripped on an area of the sidewalkwhere the slabs of concrete were "not level with each other." Sheidentified an exhibit which showed one slab of concrete higher than theadjoining slab and testified that the difference in height wasapproximately 1