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No. 2--97--1074WC

November 5, 1998

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IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Industrial Commission Division

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PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

Claimant Timothy R. Saunders appeals from an order of the circuit court of Winnebago County confirming a decision of the Illinois Industrial Commission (Commission). Respondent/employer is Beloit Corporation. The arbitrator had denied compensation, finding the injury did not arise out of his employment with the respondent, and the Commission, with one Commissioner dissenting, affirmed and adopted the decision of the arbitrator.

The only issue is whether the finding of the Commission, that the accident based on a safety violation did not arise out of claimant's employment with respondent, was against the manifest weight of the evidence. We affirm.

On May 16, 1994, claimant's coworker, Jan Gundry, ran over claimant's left ankle with a forklift truck. Claimant testified he was walking next to and on the left side of the forklift. He was walking to the office to get his lunch and then to the break room for a 10-minute break. According to claimant, he had been walking beside the forklift for 10 or 15 feet after he got off the forklift. He had taken four or five strides. He had been sitting on the forklift prior to that. From the time he dismounted to the time of the injury, 5 to 10 seconds elapsed. Claimant had operated forklifts in the past and had been trained with regard to forklift safety. Gundry had also attended such training sessions. Claimant acknowledged there was a rule prohibiting passengers on forklifts. David Kessler, respondent's safety administrator, testified regarding respondent's program dealing with equipment safety, including forklifts. The rule against having a passenger on a forklift was communicated to employees through training sessions, monthly safety "contacts" on different subjects, and an employee handbook that had been given to all employees. There was no emergency that required claimant to get somewhere fast at the time of the injury. The morning break was usually at 9 a.m., but the plant had a relaxed atmosphere. If an employee was doing something and missed his break, he could have it when he got done. It was not an assembly line operation.

Employee Keith Smithson, who was walking down the aisle to the rest room, witnessed the accident. He testified that he saw Gundry driving and claimant riding on the left side of the forklift. They went to make a slow right turn, and claimant stepped off and "hit his leg or foot, he went to the ground." Smithson never saw him on his two feet. While sitting on the unit, claimant was in a sidesaddle position. His legs were hanging off. His left foot was down lower and hit the ground first and got run over.

Gundry's description of the accident was similar to that given by claimant. Gundry also admitted that there is a rule against riding double on a forklift.

The claimant, Kessler, Smithson, Gundry, and labor union representative Dean Waters testified concerning the safety rule. All were aware of the rule against riding double on the forklift. Kessler testified that "everyone knew that there was a rule against riding double." Claimant testified that the rule was violated "[i]n my 17 years[,] approximately maybe 10 times"; Kessler stated there were two records of violations, 1977 and this incident, 1994; Smithson stated the rule against riding double "is a known rule in the plant" and did not recall seeing other employees riding double in the 17 years he had worked for respondent. Grundy had had "another coworker besides Tim Saunders ride double" on his forklift and, as to supervisors riding on his forklift, stated, "for probably 14 years and probably 3 or 4 of them I would say or some of them has [sic] been on it more times." Waters, the union representative, testified employees attended safety meetings. He was aware of the rule against riding double and, in response as to whether discipline was meted out for violations, stated, "I can't answer that." As to how many times in his eight years he saw the rule violated, Waters answered, "Not very many." When asked for a number, Waters stated, "I couldn't give you a number. There wouldn't be that many times." The record also suggests that neither claimant nor Gundry reported that claimant was riding double until after a private conversation with Waters.

The arbitrator found the accident was caused by a violation of a safety rule in that claimant injured his left leg while alighting the vehicle in the way described by Smithson. The arbitrator found that the testimonies of claimant and Gundry were inconsistent, claimant was not credible, and Smithson had no reason to be biased.

"The arbitrator further finds that the accident was caused by an activity of the Petitioner which did not arise out of his employment. Petitioner's activity in violating the safety rule and riding double on the forklift vehicle was not in furtherance of any aspect of Petitioner's employment. Riding on the forklift vehicle had nothing to do with Petitioner's job, it was not part of his job responsibilities, and it was of no benefit to the employer for Petitioner to ride double on that vehicle. The arbitrator finds that the activity of riding double on the forklift was not within the scope of the Petitioner's employment, and that it created an unreasonable risk beyond that to which Petitioner would be exposed during the course of his employment."

In states where there is a statutory defense of wilful disobedience of safety rules or wilful failure to use a safety device, the defense will succeed only if (1) the employee was given actual notice of the rule and an understanding of the danger involved in its violation, (2) the rule is kept alive by bona fide enforcement, and (3) the employee had no valid excuse for the violation. 2 A. Larson & L. Larson, Larson's Workers' Compensation Laws