Walker Brothers, Inc. v. Illinois Workers' Compensation Comm'n

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Appellate Court Date: 2020.06.21
12:48:28 -05'00'
Walker Brothers, Inc. v. Illinois Workers’ Compensation Comm’n,
2019 IL App (1st) 181519WCAppellate Court WALKER BROTHERS, INC., Appellant, v. THE ILLINOIS
Caption WORKERS’ COMPENSATION COMMISSION et al. (Clarette
Ramsey, Appellee).
District & No. First District, Workers’ Compensation Commission Division
No. 1-18-1519WC
Filed September 13, 2019
Rehearing denied September 18, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 17-L-51020; the
Review Hon. James M. McGing, Judge, presiding.
Judgment Reversed.
Counsel on Glenn A. Blackmon and Jaclyn D. Jednachowski, of Rusin &
Appeal Maciorowski, Ltd., of Chicago, for appellant.
Adam T. Karchmar, of Karchmar & Stone, of Chicago, for appellee.
Panel PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the
court, with opinion.
Justices Hoffman, Hudson, Cavanagh, and Barberis concurred in the
judgment and opinion.
OPINION
¶1 The employer, Walker Brothers, Inc., appeals an order of the circuit court of Cook County
confirming a decision of the Illinois Workers’ Compensation Commission (Commission)
awarding the claimant, Clarette Ramsey, medical, temporary total disability (TTD), and
permanent partial disability (PPD) benefits pursuant to the Workers’ Compensation Act (Act)
(820 ILCS 305/1 et seq. (West 2016)).
¶2 FACTS
¶3 The following factual recitation is taken from the evidence presented at the arbitration
hearing on November 19, 2015, and the Commission’s decision dated November 9, 2017.
¶4 The claimant testified that he had worked for the employer as a cook since 1978. On
February 13, 2013, at around 5:50 a.m., he parked in the Ace Hardware (Ace) parking lot near
the employer’s restaurant and waited for another worker to arrive before exiting his car because
he did not have a key to unlock the restaurant doors. The claimant explained that he parked at
the Ace parking lot because “[t]hat’s where they give us permission to park.” Further, the
claimant testified that the employer’s supervisors posted a note in the employee break room
stating, “we can only park at Ace but not between Thanksgiving and Christmas, park on the
street.” However, there were no signs in the Ace parking lot reserving parking spots for the
employer’s employees. The claimant then saw Jesus Salanas, a colleague, arrive and walk
toward the restaurant. At that time, the claimant exited his vehicle and rushed to follow him
because the employer had a policy of disciplining employees who clocked in even two minutes
late. The claimant slipped and fell on Ace’s snowy and icy parking lot surface. He recalled that
he screamed and Salanas came back to attend to him and help him locate his cell phone.
¶5 The claimant testified that he felt pain in his shoulder, hip, and back after his fall. He
reported the accident to his manager and went to the emergency room for treatment. Medical
records indicated that he complained of left hip and left shoulder pain from slipping on ice and
denied back pain. X-rays of the claimant’s hip and shoulder were negative for fractures and
dislocations, but he was diagnosed with left hip and left shoulder contusions and was instructed
for follow-up treatment. The emergency room report stated that the claimant reported that the
accident was not witnessed. The claimant also saw his primary care provider, Dr. Jonathan
Littman, who diagnosed him with contusions on the left shoulder and left hip. He prescribed
the claimant pain medication and instructed him not to work from February 15, 2013, to
February 19, 2013. The claimant visited Dr. Littman again in March and was referred to
physical therapy.
¶6 In April 2013, the claimant was referred to Dr. Gregory Dairyko, an orthopedic surgeon,
who ordered spine, hip, pelvis, and shoulder X-rays. The X-rays revealed evidence of arthritis
in the lumbar spine and mild degenerative changes in the left shoulder. The claimant reported
10/10 pain and Dr. Dairyko administered a cortisone injection to the claimant’s left shoulder.
Dr. Dairyko ordered the claimant to continue physical therapy but believed that surgery may
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become necessary. A month later, the claimant reported continued pain. Dr. Dairyko
recommended an MRI of the left shoulder. The MRI showed that the claimant suffered from
tendinosis, a partial thickness tear in the distal insertion, and marked degenerative hypertrophic
changes in the acromioclavicular (AC) joint. Dr. Dairyko noted that the claimant had
aggravated preexisting AC joint arthritis due to the February 13, 2013, fall. Based on these
positive findings and the failed physical therapy and cortisone injection, Dr. Dairyko
recommended surgery.
¶7 On August 14, 2013, the claimant underwent a left should arthroscopy, subacromial
decompression, distal clavicle excision, limited debridement, and rotator cuff repair. The
claimant’s postoperative diagnosis was a left shoulder rotator cuff tear and left shoulder AC
joint arthritis. Following this surgery, the claimant continued physical therapy and followed up
with Dr. Dairyko. The claimant testified that he stopped working for the employer after his
surgery and did not return to work until November 4, 2013, when Dr. Dairyko allowed him to
work with restrictions of no pulling, pushing, or lifting greater that five pounds with the left
arm. The claimant returned to work on November 5, 2013, and the employer honored his
restrictions. Dr. Dairyko released the claimant to full duty work as of November 25, 2013. In
November 2013, Dr. Dairyko’s last treatment note indicated that there were some
improvements in the claimant’s left shoulder, but some pain continued. The claimant’s last
physical therapy note from December 2013 noted similar progress. The claimant stated that he
was subsequently terminated from his employment because he was unable to perform his job
functions. It is undisputed that the claimant’s average weekly wage was $576.10 while he
worked for the employer.
¶8 At the time of the arbitration hearing, the claimant was 63 years old. He had difficulty
sleeping on his left shoulder and hip, difficulty raising items with his left shoulder, and back
pain with extended sitting. He stated that he was not seeking treatment for his back and hip
pain but instead was managing his pain with medications.
¶9 Dr. Kevin Walsh testified by deposition that he conducted an examination of the claimant
by the employer’s request on December 17, 2013. He reviewed the claimant’s medical records,
including the initial emergency room records, treatment with Drs. Littman and Dairyko, and
physical therapy records. Dr. Walsh opined that the claimant suffered a contusion to the
shoulder as a result of his fall. He concluded that the claimant did not suffer a rotator cuff tear
and that the rotator cuff tear described by Dr. Dairyko was more likely than not degenerative
in origin and “quite small,” measuring only a few millimeters. Dr. Walsh concluded, that while
it was reasonable for the claimant to be evaluated in the emergency room and seek treatment
from his primary care provider and an orthopedic surgeon, the need for arthroscopic
intervention was not clearly established in the claimant’s medical records. Thus, he opined that
the claimant did not require additional treatment and did not require any work restrictions.
¶ 10 Dr. Guido Marra testified by deposition that he conducted an examination of the claimant
by the claimant’s request on April 8, 2014. He testified that he reviewed the claimant’s May
2013 MRI and agreed that it showed a small rotator cuff with arthritic changes in the AC joint
and anterior acromial spurring. Dr. Marra stated that he could not say whether the rotator cuff
was caused by the accident but opined that the claimant’s left shoulder condition was causally
related to the alleged accident and his treatment was reasonable and necessary. He opined that
his causation opinion was based on the claimant not having shoulder pain prior to the accident
and subsequently complaining of pain after the accident.
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¶ 11 Salanas, the claimant’s colleague, testified that he worked for the employer for about 15
years at the time of the claimant’s accident. Salanas stated that he saw the claimant in his car
on the morning of February 13, 2013, but he did not see him fall or see him on the ground.
Salanas stated that the employees were not allowed to park in the employer’s parking lot
because it was too small. Salanas normally parked in either the Ace parking lot, which was a
two or three minute walk from the employer’s restaurant, or on a side street. Salanas stated that
the employees were not required to park in the Ace parking lot and that most employees park
on side streets because parking at Ace requires them to cross a street to reach work.
Additionally, some employees parked in the Subway sandwich shop parking lot. Salanas
explained that the employer’s employees were only allowed to use a certain part of the Ace
parking lot and that they were not allowed to park there during November and December.
¶ 12 Kevin Donoghue, the director of human resources for the employer, testified that the
employer had no designated employee parking lot. Further, pursuant to an “informal agreement
with Ace,” some employees parked in the Ace parking lot “across the street and down half a
block.” However, the employer did not pay Ace for use or maintenance of the lot. Donoghue
testified that the employer’s employees were allowed to use only the section of parking spots
furthest away from Ace’s entryway and that the employees do not receive any priority over
Ace customers. Donoghue explained that the employer’s employees have other options for
parking, such as side street parking that requires no payment or permit, and that not all of the
employer’s employees park in Ace’s parking lot. Donoghue said that the arrangement with
Ace alleviated complaints resulting from the employees’ cars crowding a side street (not the
side street the employees were directed to park on) or a nearby store. Additionally, Donoghue
stated that a sign was posted in the employer’s restaurant stating that employees were not
allowed to park in the employer’s lot or next door at the ski shop but that parking was available
at Ace.
¶ 13 Donoghue also stated that the claimant was terminated on January 15, 2015, for several
reasons, including performance issues, insubordination, harassment, and making threats to the
general manager. Donoghue explained that the claimant had significant performance issues on
several occasions prior to the February 13, 2013, accident, which required disciplinary action
to be taken. These problems included keeping up, difficulty with good quality, trouble working
in a fast-paced environment, and making mistakes. For example, the claimant was disciplined
on November 11, 2012, for suspicion of being under the influence of alcohol or a drug.
Donoghue concluded that the claimant was not meeting the employer’s standards, he was not
cooking food, and he left the kitchen while orders were being called out.
¶ 14 John Weiss, the owner of the Ace store and parking lot located near the employer’s
restaurant, also testified by deposition. He estimated that the distance between his store and
the employer’s restaurant was one to two blocks and a two to three minute walk. Weiss stated
that the employer’s employees were allowed to park in his lot, but he said that the arrangement
was so longstanding he could not remember exactly how it originally came about but believed
a manager from the employer’s restaurant approached him and asked if their employees could
park in his parking lot. Weiss stated that he allows the employer’s employees to use the lot free
of charge, as a courtesy, so long as there is no special event occurring in the parking lot. He
explained that there were 13 spaces in his parking lot that the employer’s employees could use
but noted that the general public is also allowed to use those spots. Weiss stated that he alone
paid for snow removal and maintenance costs for the parking lot.
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¶ 15 On December 31, 2015, the arbitrator denied the claimant’s request for benefits finding
that he failed to prove that he sustained an accident that arose out of and in the course of his
employment with the employer. The claimant sought review by the Commission.
¶ 16 On November 9, 2017, the Commission reversed the decision of the arbitrator and ordered
the employer to pay the claimant TTD benefits of $384.07 per week for 124/7 weeks, PPD
benefits of $345.66 per week for a period of 62.5 weeks, and all reasonable and necessary
medical expenses as described by Dr. Marra. The Commission found that the employer
provided the Ace parking lot to its employees and the claimant’s accident was compensable.
¶ 17 The employer sought review of the Commission’s decision before the circuit court of Cook
County. The court confirmed the Commission’s decision. The employer appeals.
¶ 18 ANALYSIS
¶ 19 The employer takes issue with the following determinations made by the Commission:
(1) the claimant’s injury arose out of and in the course of his employment with the employer,
(2) the claimant proved causation between his condition of ill-being and his employment, and
(3) the claimant was entitled to medical, TTD, PPD benefits. The claimant argues that the
Commission’s determinations were proper.
¶ 20 To obtain compensation under the Act, a claimant must show, by a preponderance of the
evidence, that he suffered a disabling injury that arose out of and in the course of his
employment. Baggett v. Industrial Comm’n, 201 Ill. 2d 187, 194 (2002). An injury “arises out
of” one’s employment if it originated from a risk connected with, or incidental to, the
employment and involved a causal connection between the employment and the accidental
injury. Id. “In the course of” refers to the time, place, and circumstances of the accident. Illinois
Bell Telephone Co. v. Industrial Comm’n, 131 Ill. 2d 478, 483 (1989). Both elements must be
present at the time of the claimant’s injury to justify compensation under the Act. Id. Usually,
whether the claimant proved these elements is a question of fact for the Commission to resolve,
and that determination will not be disturbed on appeal unless it is against the manifest weight
of the evidence. Joiner v. Industrial Comm’n, 337 Ill. App. 3d 812, 815 (2003). However,
whereas here, the facts are undisputed and susceptible to only a single inference, the question
is one of law and subject to de novo review. Id.; see Diaz v. Illinois Workers’ Compensation
Comm’n, 2013 IL App (2d) 120294WC, ¶ 21 (when there is no question of inference or weight
to be given to evidence because all the Commission did was apply the law to the undisputed
facts our review is de novo). We note that both parties agree that our standard of review is
de novo.
¶ 21 Generally, “when an employee slips and falls at a point off the employer’s premises while
traveling to or from work, the resulting injuries do not arise out of and in the course of the
employment and are not compensable under the Act.” Joiner, 337 Ill. App. 3d at 815. This is
known as the “general premises rule.” However, our supreme court has carved out an exception
to this rule when an employer “provides” a parking lot to its employees. De Hoyos v. Industrial
Comm’n, 26 Ill. 2d 110, 113 (1962). In De Hoyos, the claimant testified that he slipped and fell
while he was on his employer’s parking lot. Id. On cross-examination, the claimant stated that
he did not actually know who owned the parking lot, but his employer provided the parking
lot to its employees, he had parked there during the past 12 years, and it was adjacent to the
employer’s plant. Id. The supreme court outlined the “parking lot exception” and explained:
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“Whether or not the employer owned the parking lot is immaterial; for if the employer
provides a parking lot which is customarily used by its employees, the employer is
responsible for the maintenance and control of that parking lot. Therefore, the question
presented to the circuit court was not one of disputed fact or whether the decision of
the Industrial Commission was manifestly against the weight of the evidence, but
whether, when an employer provides a parking lot for employees and an employee falls
on the parking lot, this fact being uncontroverted on the record, the employee is entitled
to recover as a matter of law.” Id. at 113-14.
¶ 22 In sum, De Hoyos stands for the proposition that if an employer provides a lot to its
employees, and an employee is injured on that lot, the employee is entitled to recover under
the Act. Id. However, this parking lot exception has been narrowed since its inception. Just
four years after De Hoyos, our supreme court stated, “[t]he decisive issue in parking lot cases
usually is whether or not the lot is owned by the employer, or controlled by the employer, or
is a route required by the employer.” Maxim’s of Illinois, Inc. v. Industrial Comm’n, 35 Ill. 2d
601, 604 (1966). The employer’s control or dominion over the parking lot is a significant factor
in the analysis. Joiner, 337 Ill. App. 3d at 816. Our supreme court has also recognized that
“[r]ecovery has *** been permitted for injuries sustained by an employee in a parking lot
provided by and under the control of an employer.” (Emphasis added.) Illinois Bell, 131 Ill. 2d
at 484.
¶ 23 In determining whether the parking lot exception applies, it is clear that we must determine
whether the employer “provided” the parking lot in question to its employees. We make this
determination by considering (1) whether the parking lot was owned by the employer,
(2) whether the employer exercised control or dominion over the parking lot, and (3) whether
the parking lot was a route required by the employer.
¶ 24 The uncontroverted evidence established that the employer had a longstanding agreement
with the owner of Ace, where Ace allowed the employer’s employees to park in 13 specific
parking spaces January through October. Those parking spaces were also open to the general
public and there were no signs indicating that the spots were reserved for the employer’s
employees. It is undisputed that the employer did not own the Ace parking lot. Additionally,
the evidence also showed that the employer did not control the parking lot. Weiss testified
regarding his parking guidelines the employer’s employees were required to follow in order to
continue using the parking lot. It is also undisputed that Weiss paid for the maintenance of the
Ace parking lot and the employer did nothing to contribute to the maintenance of the parking
lot. There is no evidence of record that the employer controlled the Ace parking lot in any way.
¶ 25 Last, the evidence demonstrated that the Ace parking lot was not part of a route required
by the employer. Although the claimant testified that he was required to park in the Ace parking
lot, there was no evidence to support this contention. Instead, the record contained evidence of
the contrary. For instance, Salanas, the claimant’s coworker, stated that the employees were
not required to park in the Ace parking lot and that most employees park on side streets. The
evidence also showed that the Ace parking lot was not part of a route required by the employer.
Donoghue, the director of human resources for the employer, testified that the Ace parking lot
was “across the street and down half a block.” Also, Weiss estimated that the distance between
the Ace store and the employer’s restaurant was one to two blocks and a two to three minute
walk. Salanas also stated that most employees park on the side street because parking at the
Ace parking lot required crossing the street. Additionally, the Ace parking lot was not part of
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a required route as the employer communicated various other optional parking solutions, such
as side street parking or other establishments’ parking lots.
¶ 26 In conclusion, the claimant was injured in a parking lot that was not provided by the
employer as the employer did not own the Ace parking lot, control the Ace parking lot, nor did
it require its employees to park or travel through the Ace parking lot for their employment.
Thus, the injuries suffered by the claimant did not arise out of or in the course of his
employment with the employer. Based on our conclusion, we need not address the employer’s
other arguments.
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, the Commission’s finding that the claimant sustained accidental
injuries arising out of and in the course of his employment with the employer on February 13,
2013, was erroneous as a matter of law, and we reverse the judgment of the circuit court
confirming the Commission’s decision.
¶ 29 Reversed.
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