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 INDUSTRIAL COMMISSION DIVISION
   FILED: AUGUST 4, 2004                        

No. 1-03-3616WC

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

INDUSTRIAL COMMISSION DIVISION

JUSTICE HOFFMAN delivered the opinion of the court:

The claimant, Margaret Vill, appeals from an order of thecircuit court confirming a decision of the Industrial Commission(Commission), denying her benefits under the Workers'Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2002)), forinjuries she allegedly sustained while in the employ of theLoyola University Medical Center (Loyola). For the reasons whichfollow, we affirm.

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

The claimant was employed as a security officer at Loyola. Her duties required her to make rounds at Loyola's medicalfacility in Maywood, Illinois.

On April 2, 2002, the claimant was scheduled to work from2:00 p.m. until 10:30 p.m. According to the claimant, she droveto Loyola in her own car, arriving at Loyola's parking Lot No. 15at approximately 1:45 p.m. She stated that Lot No. 15 is theonly parking lot in which security personnel were permitted topark; a fact which was verified by the claimant's supervisor,Richard Wilson. This particular parking lot was designated foruse by Loyola's employees, visitors to the hospital, andpatients.

The claimant testified that Lot No. 15 was more crowded thanusual when she arrived on April 2, 2002. She chose to park in aspace near the administration building where she was to reportfor work. According to the claimant, the parking space wasnarrow due to a sports utility vehicle (SUV) which was parked inthe space to the left, positioned near the yellow line whichseparated the two spaces. The claimant testified that, when sheparked, there was approximately eight inches between the leftside of her vehicle and the SUV and that the distance between hervehicle and the one parked to the right was about six inches.

The claimant stated that, before she attempted to exit hervehicle, she picked up her uniform, belt and lunch from the rightfront seat. She testified that she then tried to open her cardoor, but it would only open "half a foot or so, or a foot." Shesqueezed out of the vehicle when, in her words, "I twisted myknee, and my foot got caught in like a dent in the floor, in theground." When asked why she twisted her knee, the claimantstated, "[b]ecause I had to twist around like this to get out ofthe door, and I still had all my stuff inside of the car." Shewent on to state that she stepped in a crevice in the parking lotand she identified a photo showing a crack in the parking lotsurface where she testified that she caught her left foot. According to the claimant, "the ankle twisted and the kneetwisted." On cross-examination, the claimant admitted that shetwisted her knee before her foot hit the ground.

The claimant testified that she did not fall to the ground. Rather, she was able to hang on to the side of her car. Althoughshe was feeling "a little bit of pain, but not that much," theclaimant decided to go to work. When she arrived at theadministration building, the claimant punched in and attended ascheduled briefing. She did not inform her supervisor of theincident in the parking lot. After the briefing, the claimantwas taken by bus to her assigned station where she was to "walkthe hospital ensuring everything is okay."

According to the claimant, her leg started to hurtapproximately four hours after she started working. Shetestified that, when she took off her shoe, she noticed that herleg, foot and ankle were swollen and black and blue in color. Thereafter, the claimant went to Loyola's emergency room.

Various histories are contained in Loyola's emergency roomrecords. The initial report states: "Fall in parking lot today." The nursing flowsheet records the following: "states was gettingout of car @ administration building + fell + landed on L knee."The physician's record states: "pt. was exiting car today, footgot caught, fell on knee & twisted. Pt. fell out door and hithead on car next door."

Richard Wilson, the claimant's supervisor on the day of theincident, testified that, when he learned that the claimant wasin the emergency room, he went there to interview her. Accordingto Wilson, the claimant told him that "when she got to work about1:45, that she stepped out of her vehicle and twisted her kneeand hurt her toe." He testified that the claimant never told himabout a crevice in the parking lot. Wilson stated that hecompleted and Employee Occurrence Report in which he wrote thatthe claimant "step[ed] out of car, twisted knee, hurt middle toeon left foot."

While at the emergency room, x-rays were taken of theclaimant's left leg, knee, and foot. The radiologist reports ofthose x-rays reveal, inter alia: "a[n] oblique fracture of themid shaft of the third proximal phalanx with minimal overridingof the medial displacement of the fracture fragment" and "smalljoint effusion". The claimant testified that she was given"Tylenol 3" for the pain, told to return the following Monday tosee Dr. Zaffer, and then released.

The claimant saw Dr. Zaffer as instructed. Dr. Zafferexamined the claimant and diagnosed a fracture of one of her toesand an ankle sprain. He ordered an MRI of the claimant's leftknee which was done on April 15, 2002. A report of that examnotes the following findings: a tear of the posterior horn ofthe medial meniscus; a moderate amount of knee joint effusion; athinning of the lateral patellar cartilage, with degenerativechanges of the patellofemoral joint; and degenerative changeswith osteophyte formation at the femoral condyle.

Dr. Zaffer informed the claimant that she would requiresurgery. However, since the surgeon who normally performs thetype of operation that the claimant required was on a sabbaticalleave, Dr. Zaffer told the claimant to select a surgeon of herchoice.

The claimant saw Dr. Boone Brackett, an orthopedic surgeon,on April 18, 2002. The intake report of that visit states thatthe claimant "fell getting out of car at wk not work related perpt."

Dr. Brackett operated on the claimant on May 15, 2002. Theprocedure consisted of an arthroscopic lateral meniscectomy,shaving of the medial and lateral femoral condyles, the removalof large suprapatellar plaquem, and a Baker cystectomy. Thepostoperative diagnosis was a tear of the lateral meniscus,osteoarthritis of the medial and lateral femoral condyles, andplaquem with a Baker cyst.

The claimant remained off of work from April 3, 2002, untilthe date of the arbitration hearing on July 15, 2002.

After a hearing held pursuant to section 19(b) of the Act(820 ILCS 305/19(b) (West 2002)), the arbitrator found that theclaimant sustained accidental injuries on April 2, 2002, arisingout of and in the course of her employment with Loyola. Thearbitrator awarded the claimant temporary total disability (TTD)benefits for a period of 14 5/7 weeks and ordered Loyola to pay$26,650.15 for her necessary medical expenses.

Loyola sought a review of the arbitrator's decision beforethe Commission. In a unanimous decision, the Commission reversedthe arbitrator's decision and denied the claimant any benefitsunder the Act. The Commission found that the claimant had failedto prove that she sustained accidental injuries arising out ofand in the course of her employment with Loyola. Specifically,relying on the histories contained in the records of Loyola andDr. Brackett, the Commission found that "the conditions in theparking lot did not cause Petitioner's [claimant's] fall." TheCommission went on to hold that, even if the conditions in theparking lot caused the claimant to fall, she still failed toprove that her injuries arose out of and in the course of heremployment because she was "exposed to the same hazard that thegeneral public was exposed to."

The claimant filed a petition for judicial review of theCommission's decision in the circuit court of Cook County. Thecircuit court confirmed the Commission's decision, and thisappeal followed.

To be compensable under the Act, an employee's injury musthave arisen out of and in the course of her employment. 820 ILCS305/2 (West 2002). The claimant has the burden of establishingboth elements by a preponderance of the evidence. Castaneda v.Industrial Comm'n, 97 Ill. 2d 338, 341, 454 N.E.2d 632 (1983);O'Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253, 403 N.E.2d 221(1980).

For an injury to "arise out of" the claimant's employmentwithin the meaning of the Act, its origin must be in some wayconnected with, or incidental to, her employment so as to createa causal connection between the employment and the accidentalinjury. Jewel Companies v. Industrial Comm'n, 57 Ill. 2d 38, 40, 310 N.E.2d 12 (1974). As the supreme court held in CaterpillarTractor Co. v. Industrial Comm'n, 129 Ill. 2d 52, 58, 541 N.E.2d665 (1989):

"Typically, an injury arises out of one'semployment if, at the time of the occurrence, theemployee was performing acts he was instructed toperform by his employer, acts which he had a common lawor statutory duty to perform, or acts which theemployee might reasonably be expected to performincident to his assigned duties. [Citation.] A riskis incidental to the employment where it belongs to oris connected with what an employee has to do infulfilling his duties. [Citation.]"

However, if the injury is the result of a hazard or occurrence towhich the employee would have been equally exposed to apart fromthe employment, then the injury is not compensable under the Act. Caterpillar Tractor Co., 129 Ill. 2d at 59.

"In the course of the employment" refers to the time, place,and circumstances under which the claimant is injured. SchefflerGreenhouses, Inc. v. Industrial Comm'n, 66 Ill. 2d 361, 366, 362N.E.2d 325 (1977). Injuries sustained on an employer's premises,or at a place where the claimant might reasonably have been whileperforming her duties, and while she is at work, or within areasonable time before and after work, are generally deemed tohave been received in the course of the employment. CaterpillarTractor Co., 129 Ill. 2d at 57.

When an employee slips and falls, or is otherwise injured,at a point off of the employer's premises while traveling to orfrom work, her injuries are ordinarily not compensable under theAct. Butler Manufacturing Co. v. Industrial Comm'n, 85 Ill. 2d213, 216, 422 N.E.2d 625 (1981). However, two exceptions to thisgeneral rule have been recognized. First, recovery has beenpermitted where the employee is injured in a parking lot providedby and under the control of the employer. Illinois BellTelephone Co. v. Industrial Comm'n, 131 Ill. 2d 478, 484, 546N.E.2d 603 (1989). This exception, known as the "parking lotexception" (see Mores-Harvey v. Industrial Comm'n, 345 Ill. App.3d 1034, 1038, 804 N.E.2d 1086 (2004)), is applicable incircumstances where the employee's injury is caused by somehazardous condition in the parking lot. See Archer DanielsMidland Co. v. Industrial Comm'n, 91 Ill. 2d 210, 217, 437 N.E.2d609 (1982); Hiram Walker & Sons, Inc. v. Industrial Comm'n, 41Ill. 2d 429, 431, 244 N.E.2d 179 (1968); De Hoyos v. IndustrialComm'n, 26 Ill. 2d 110, 114, 185 N.E.2d 885 (1962). Second,recovery has also been permitted when the employee is injured ata place where she was required to be in the performance of herduties and the employee is exposed to a risk common to thegeneral public to a greater degree than other persons. IllinoisBell Telephone Co., 131 Ill. 2d at 484.

Whether there exists a causal connection between aclaimant's employment and her injury is a question of fact to bedecided by the Commission, whose resolution of the matter willnot be disturbed on review unless it is against the manifestweight of the evidence. O'Dette, 79 Ill. 2d at 253. For afinding of fact made by the Commission to be against the manifestweight of the evidence, an opposite conclusion must be clearlyevident. Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App.3d 288, 291, 591 N.E.2d 894 (1992). The appropriate test iswhether there is sufficient evidence in the record to support theCommission's determination. Benson v. Industrial Comm'n, 91 Ill.2d 445, 450, 440 N.E.2d 90 (1982).

In this case, the claimant was injured as she was gettingout of her car in Loyola's parking lot on her way to work. Shetestified that, as she attempted to exit her vehicle, she twistedher knee and her foot got caught in a crack in the parking lotsurface. However, there is no mention of any crack in theparking lot surface contained in the histories set forth inLoyola's emergency room records or the records of Dr. Brackett. Further, Wilson testified that the claimant made no mention ofany crack in the parking lot when he interviewed her in theemergency room on the date of her injury.

Whether the claimant did or did not catch her foot in acrack in the parking lot surface is a question of fact restingupon the credibility of the claimant's testimony. The Commissionfound that the conditions in the parking lot did not cause theclaimant's fall. It is the function of the Commission to judgethe credibility of witnesses and to resolve conflicts in theevidence. O'Dette, 79 Ill. 2d at 253. Based upon the totalabsence of any reference in the claimant's medical records to herfoot having gotten caught in a crack in the parking lot and theclaimant's failure to mention that fact to Wilson, we cannot saythat the Commission's determination that the conditions in theparking lot did not cause the claimant to fall is against themanifest weight of the evidence.

We next focus our inquiry on the question of whether theclaimant was exposed to a risk of injury to an extent greaterthan that to which the general public is exposed. Clearly, therisk of injury that is inherent in the act of exiting a motorvehicle confronts all members of the general public. There isnothing in the record to distinguish the claimant's acts in thisregard from the acts of any other person attempting to squeezeout of a vehicle that has been parked in such close proximity toanother vehicle that the door cannot be fully opened. For thisreason, we find that the claimant was not exposed to a riskuncommon to the general public.

Based upon the foregoing analysis, the Commission's findingthat the claimant failed to prove that she sustained accidentalinjuries arising out of and in the course of her employment isnot against the manifest weight of the evidence. CaterpillarTractor Co., 129 Ill. 2d at 59-63. In so finding, we express noopinion on the Commission's alternate holding to the effect that,even if the conditions in Loyola's parking lot caused theclaimant to fall, she did not sustain her burden of proof.

For the foregoing reasons, we affirm the judgment of thecircuit court which confirmed the decision of the Commission.

Affirmed.

McCULLOUGH, P.J., and CALLUM and HOLDRIDGE, JJ., concur.