Nee v. Illinois Workers Compensation Commisssion

Illinois Official Reports
Appellate Court
Nee v. Illinois Workers’ Compensation Comm’n, 2015 IL App (1st) 132609WC
Appellate Court THOMAS A. NEE, Appellant, v. ILLINOIS WORKERS’
Caption COMPENSATION COMMISSION et al. (The City of Chicago,
Appellee).
District & No. First District, Workers’ Compensation Commission Division
Docket No. 1-13-2609WC
Filed February 27, 2015
Held The Illinois Workers’ Compensation Commission’s denial of a city
(Note: This syllabus plumbing inspector’s claim for the knee injury he suffered when he
constitutes no part of the tripped on a curb while heading to his next inspection assignment was
opinion of the court but reversed and remanded to the Commission, since there was no
has been prepared by the evidence showing that claimant had some condition that caused him to
Reporter of Decisions fall, but, rather, the risk of traversing the curb was neutral, the risk was
for the convenience of not distinctly associated with his employment as a plumbing
the reader.) inspector, and although all members of the public are confronted with
the risk of such curbs, a traveling employee such as claimant is
exposed to the risk while working and is presumed to have been
exposed to a greater risk than the general public; therefore, the injury
claimant suffered when he tripped was sustained in the course of his
employment and arose out of his employment as a traveling plumbing
inspector for the city.
Decision Under Appeal from the Circuit Court of Cook County, No. 12-L-51321; the
Review Hon. Eileen O’Neil Burke, Judge, presiding.
Judgment Circuit court judgment reversed; Commission decision reversed;
cause remanded to the Commission.
Counsel on Dennis M. Lynch, of Healy Law Firm, of Chicago, for appellant.
Appeal
Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
Solomon, Myriam Zreczny Kaspar, and Stephen G. Collins, Assistant
Corporation Counsel, of counsel), for appellee.
Panel JUSTICE HOFFMAN delivered the judgment of the court, with
opinion.
Presiding Justice Holdridge and Justices Hudson, Harris, and Stewart
concurred in the judgment and opinion.
OPINION
¶1 The claimant, Thomas A. Nee, filed an application for adjustment of claim pursuant to
the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)), seeking
benefits for injuries he received while working for the City of Chicago (City). He now
appeals from the circuit court order which confirmed the decision of the Illinois Workers’
Compensation Commission (Commission) finding that he failed to prove that he sustained an
injury which arose out of and in the course of his employment with the City. For the
following reasons, we reverse the judgment of the circuit court, reverse the decision of the
Commission, and remand the cause to the Commission for further proceedings.
¶2 The following factual recitation is taken from the evidence adduced at the arbitration
hearing.
¶3 At all times relevant, the claimant was a plumbing inspector in the employ of the City.
His duties required him to travel throughout the City by car to inspect the plumbing in both
residential and commercial buildings. The claimant testified that he reported to work each
day at the filtration plant and received the day’s inspection assignments. He inspected
approximately five to seven sites each day, driving from location to location. The plaintiff
contends, and the City admits, that he was a traveling employee.
¶4 The claimant testified that, on July 27, 2009, after finishing an inspection at 2007 North
Sedgwick, he “tripped on a curb” and fell as he was walking back to his car to go to his next
assignment. During the arbitration hearing, the claimant testified that he was not sure if the
curb was level with the sidewalk, but he thought that it might have been higher. He was
asked: “So you believe that the curb may have been higher than the sidewalk and that’s
where you tripped?” He responded: “Yes, I do.” However, on cross-examination, the
following exchange took place:
“Q. On July 27, 2009, you stated that you don’t really recollect the curb. Is that
correct? Do you remember the street and the condition of the street in any way?”
CLAIMANT: What I don’t recollect is I didn’t take a picture or even look, stare at
the curb, to tell you if it was high or cracked. I don’t know. I didn’t take a look[;] all I
know I tripped on it and I fell.”
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¶5 The claimant testified that, when he tripped, he twisted his knee and felt immediate pain.
He stated that he reported the incident to his supervisor, Dan Nederbo, the City’s assistant
chief plumbing inspector, and that Nederbo directed him to go to Mercy Works, the City’s
occupational health clinic.
¶6 The claimant reported to Mercy Works, complaining of knee pain. The Mercy Works
record of that visit reflects that the claimant gave a history of his injury which was consistent
with his testimony at arbitration. The claimant was treated by Dr. Edward Bleier, who
diagnosed him as suffering from an acute right-knee sprain. The claimant was given a knee
brace and pain medication. He was advised to use ice packs at home and instructed to return
to the clinic for follow-up treatment. Additionally, the claimant was restricted to only
sit-down duties.
¶7 The claimant returned to Mercy Works on July 30, 2009, and August 6, 2009, as
instructed. On each visit, he reported no improvement and complained of significant pain in
his right knee.
¶8 On August 6, 2009, an MRI scan of the claimant’s right knee was taken, revealing
cartilaginous thinning in all three compartments.
¶9 The claimant next saw Dr. Bleier at Mercy Works on August 12, 2009. The doctor
diagnosed an acute strain to the right knee with degenerative joint disease.
¶ 10 On August 14, 2009, the claimant sought treatment from Dr. Christopher Mahr, an
orthopedic surgeon. The records of that visit reflect that the claimant gave a consistent
history of having tripped at work, twisting his knee. Dr. Mahr diagnosed the claimant as
suffering from a Grade I medial collateral ligament strain.
¶ 11 The claimant remained under the care of Dr. Mahr from August 2009 through November
2009. During that period, the claimant continued to complain of pain, and Dr. Mahr
administered corticosteroid injections and a synovisc injection. When Dr. Mahr examined the
claimant on October 22, 2009, he indicated that the claimant may be a candidate for a total
knee arthroplasty in the future.
¶ 12 The claimant returned to Mercy Works on October 23, 2009, and November 3, 2009.
Examinations of the claimant on those dates revealed tenderness at the medial joint line and
limited flexion due to pain. The claimant was instructed to attempt to return to work on
November 9, 2009.
¶ 13 The claimant returned to work on November 9, 2009, as instructed and continued
working as a plumbing inspector for the City until his retirement on June 30, 2011.
¶ 14 At the arbitration hearing, the claimant testified that his right knee continues to bother
him, especially when he climbs stairs, walks long distances, stands for long periods, squats,
or uses a ladder. He stated that he uses ice packs, hot baths and ibuprofen for relief.
¶ 15 Following the hearing, the arbitrator found that the claimant suffered injuries as the result
of an accident that arose out of and in the course of his employment with the City on July 27,
2009. The arbitrator awarded the claimant 145/7 weeks of temporary total disability (TTD)
benefits and 16.125 weeks of permanent partial disability (PPD) benefits for the permanent
loss of use of his right leg to the extent of 7.5%.
¶ 16 The City filed for a review of the arbitrator’s decision before the Commission. In a
unanimous decision, the Commission reversed the arbitrator, finding that the claimant failed
to prove that he sustained accidental injuries which arose out of and in the course of his
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employment with the City. Consequently, the Commission denied the claimant benefits
under the Act.
¶ 17 The claimant sought a judicial review of the Commission’s decision in the circuit court of
Cook County. The circuit court confirmed the Commission’s decision, and this appeal
followed.
¶ 18 The claimant argues that the Commission’s finding that he failed to prove that he
sustained accidental injuries which arose out of and in the course of his employment with the
City on July 27, 2009, is against the manifest weight of the evidence. We agree.
¶ 19 The claimant in a workers’ compensation case has the burden of proving, by a
preponderance of the evidence, all of the elements of his claim, including proof that he
suffered an accident which arose out of and in the course of his employment. 820 ILCS 305/2
(West 2008); Metropolitan Water Reclamation District of Greater Chicago v. Illinois
Workers’ Compensation Comm’n, 407 Ill. App. 3d 1010, 1013 (2011). Both elements must
be present at the time of the claimant’s injury in order to justify compensation. Illinois Bell
Telephone Co. v. Industrial Comm’n, 131 Ill. 2d 478, 483 (1989). Whether an injury arose
out of and in the course of a claimant’s employment is a question of fact to be resolved by
the Commission, and its determination will not be disturbed on review unless it is against the
manifest weight of the evidence. Illinois Institute of Technology Research Institute v.
Industrial Comm’n, 314 Ill. App. 3d 149, 164 (2000). For a finding of fact to be against the
manifest weight of the evidence, a conclusion opposite to the one reached by the
Commission must be clearly apparent. Caterpillar, Inc. v. Industrial Comm’n, 228 Ill. App.
3d 288, 291 (1992). Although we are reluctant to disturb a factual determination made by the
Commission, we will not hesitate to do so when the clearly evident, plain, and undisputable
weight of the evidence compels an opposite conclusion. Dye v. Illinois Workers’
Compensation Comm’n, 2012 IL App (3d) 110907WC, ¶ 10.
¶ 20 Injuries sustained at a place where a claimant might reasonably have been while
performing his work duties are deemed to have been received in the course of his
employment. Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 57 (1989). In this
case, it is undisputed that the claimant’s injuries were sustained in the course of his
employment with the City. He twisted his right knee when he tripped over a curb as he
walked to his car to go to an inspection assignment. From the claimant’s testimony, it is clear
that the City was aware that he traveled to multiple inspection sites daily, driving by car from
one to another. The City’s protestations to the contrary notwithstanding, no reasonable
argument can be made that the claimant’s conduct in traversing a curb as he walked to his car
was neither reasonable nor foreseeable. The only legitimate issue for analysis in this case is
whether the claimant’s injuries arose out of his employment.
¶ 21 For an injury to “arise out of” the employment, its origin must be in some risk connected
with, or incidental to, the employment so as to create a causal connection. Caterpillar
Tractor Co., 129 Ill. 2d at 58. There are three general types of risks to which an employee
may be exposed: (1) risks that are distinctly associated with the employment: (2) risks that
are personal to the employee; and (3) neutral risks that do not have any particular
employment or personal characteristics. Potenzo v. Illinois Workers’ Compensation Comm’n,
378 Ill. App. 3d 113, 116 (2007) (citing Illinois Institute of Technology Research Institute,
314 Ill. App. 3d at 162).
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¶ 22 In this case, the claimant tripped on a curb. There is no evidence in the record tending to
show that the claimant suffered from some physical condition which caused him to fall. Nor
is the risk associated with traversing a curb distinctly associated with employment as a
plumbing inspector. Accordingly, the risk associated with his traversing a curb is neutral in
nature. See Metropolitan Water Reclamation District of Greater Chicago, 407 Ill. App. 3d at
1014.
¶ 23 The determination of whether an injury suffered by a traveling employee, such as the
claimant in this case, arose out of and in the course of his employment is governed by
different rules than are applicable to other employees. Hoffman v. Industrial Comm’n, 109
Ill. 2d 194, 199 (1985). However, the fact that a claimant is a traveling employee does not
relieve him of the burden of proving that his injury arose out of his employment. Hoffman,
109 Ill. 2d at 199.
¶ 24 Injuries resulting from a neutral risk, such as the injury here, do not arise out of the
employment and are not compensable under the Act unless the employee was exposed to the
risk to a greater degree than the general public. Illinois Institute of Technology Research
Institute, 314 Ill. App. 3d at 163. The increased risk may be either qualitative, that is, when
some aspect of the employment contributes to the risk; or quantitative, such as when the
employee is exposed to the risk more frequently than the general public. Metropolitan Water
Reclamation District of Greater Chicago, 407 Ill. App. 3d at 1014.
¶ 25 Nothing in the record before us suggests that some aspect of the claimant’s employment
contributed to the risk of traversing a curb. Although there is evidence that the claimant
carried a clipboard while performing plumbing inspections, there is no evidence that carrying
a clipboard caused, or contributed to, his tripping on the curb. Further, there is nothing in this
record to distinguish the curb on which the claimant tripped from any other curb. As noted
earlier, although the claimant testified that the curb may have been higher than the sidewalk,
he readily admitted that he did not know. We are left then with the question of whether the
claimant was exposed to the risk of tripping on a curb more frequently than the general
public.
¶ 26 The risk of tripping on a curb is a risk to which the general public is exposed daily. Under
the “street risk” doctrine, however, when, as in this case, the claimant’s job requires him to
travel the streets, the risks of the street become one of the risks of his employment. Potenzo,
378 Ill. App. 3d at 118 (citing C.A. Dunham Co. v. Industrial Comm’n, 16 Ill. 2d 102, 111
(1959)); see also Metropolitan Water Reclamation District of Greater Chicago, 407 Ill. App.
3d at 1014-15. As our supreme court held in C.A. Dunham Co., 16 Ill. 2d at 111, “where the
street becomes the milieu of the employee’s work, he is exposed to all street hazards to a
greater degree than the general public.”
¶ 27 No doubt curbs, and the risk attendant to traversing them, confront all members of the
public. Caterpillar Tractor Co., 129 Ill. 2d at 62. However, when a traveling employee, such
as the claimant in this case, is exposed to the risk while working, he is presumed to have been
exposed to a greater degree than the general public. City of Chicago v. Industrial Comm’n,
389 Ill. 592, 601 (1945); see also C.A. Dunham Co., 16 Ill. 2d at 111; Mlynarczyk v. Illinois
Workers’ Compensation Comm’n, 2013 IL App (3d) 120411WC; Metropolitan Water
Reclamation District of Greater Chicago, 407 Ill. App. 3d at 1014-15.
¶ 28 Having been exposed to the risk of traversing a curb to a greater degree than a member of
the general public by virtue of his status as a traveling employee at the time of his accident,
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the injury which the claimant suffered when he tripped over the curb was sustained not only
in the course of his employment, it also arose out of his employment with the City.
¶ 29 The foregoing analysis leads us to conclude that the Commission’s decision denying the
claimant benefits under the Act by reason of his failure to prove that he sustained accidental
injuries on July 27, 2009, which arose out of his employment with the City is against the
manifest weight of the evidence. Consequently, we reverse the circuit court’s judgment
confirming the Commission’s decision, reverse the Commission’s decision, and remand this
matter to the Commission for further proceedings consistent with this opinion.
¶ 30 Circuit court judgment reversed; Commission decision reversed; cause remanded to the
Commission.
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