CASE LAW UPDATE NOVEMBER 2019

11/29/2019 11:30 AM | Judy Pfeiffer (Administrator)

I.   ARISING OUT OF EMPLOYMENT 

Buckley v. Molly Maids, 16 WC 32369, No 19 I.W.C.C. 0196 (April 18, 2019) 

The Petitioner worked full time for the Respondent as a maid.   She worked there for nearly 20 years.   Her main duties included mopping, vacuuming, sanitizing kitchens and bathrooms, dusting mini-blinds, ceiling fans, cobwebs, baseboards and doorframes and unloading and reloading the car with supplies.   On the day of the incident she was dusting the levers of the mini-blinds and she was holding the bottom of the mini-blinds so she would get a good wipe on it but then it starting coming loose and she reached up too quick and that is when she felt a pop.   She noticed immediate pain in her left arm.  She notified her boss via text.   She went to the occupational health clinic on the day of the accident, that being September 21, 2016.    

The Arbitrator denied the claim finding the activity was a neutral risk.    

The Arbitrator determined, based on the facts nothing in the records suggested the Petitioner’s employment contributed to the risk of raising her arm so as to constitute a qualitative increase in the risk faced by the general public.   There was nothing in the record to indicate the Petitioner had to raise her arms more frequently than the general public.   The Arbitrator denied the claim.    

On review the Commission reversed the Arbitrator’s Decision and found the activity being performed by the petitioner was an employment risk.   The Commission relied upon Mytnik v. Illinois Workers' Compensation Commission, 2016 Ill. App. (1st) 152116WC.   

In Mytnik the claimant worked on an assembly line where he installed rear suspension on vehicles using an articulating arm to fasten bolts and brackets.   At the time of his injury, the claimant was reaching down to grab a bolt that had fallen on the assembly line where he felt pain down the right side of his back and hip.  The Appellate Court found the act of bending may be an act performed by the general public on a daily basis, however, the evidence established that bolts would regularly fall out of the articulating arm during the assembly process and that the claimant had to run down there and bend over and reach and pick up before the rotating platform ran over it.   

The Commission determined that the Petitioner’s act of raising her arm may have been an act performed by the general public on a daily basis however that was not the whole of the Petitioner’s testimony.   The petitioner testified that in the process of holding the bottom of the mini-blind, and then attempting to dust it the mini-blind became loose and she quickly reached upward with her left arm to prevent the mini-blind from falling.   The Commission ruled it was in error that the Arbitrator determined that nothing by way of the Petitioner’s employment contributed to the risk of raising her arm.    

The Commission stated:  “Here, the act of dusting the mini-blind, was a required part of the Petitioner’s job duties.   There was no testimony or evidence to the contrary.  The fact the mini-blind had loosened, began to fall and Petitioner attempted to prevent the mini-blind from falling further by suddenly lifting her left arm was a risk incidental to, belonging to, and connected to Petitioner’s dusting duties.” 

Maria E. Portela and Thomas J. Tyrrell authored the opinion and there was a dissent by Deborah Simpson.    

Sims v. State of Illinois, Jacksonville Correctional Center, 17 WC 25254; 19 I.W.C.C. 0195 (April 18, 2019)  

Arbitrator Hemenway denied the claim on the basis the Petitioner failed to prove the accident arose out of the employment.   The Petitioner was a correctional officer at the Jacksonville Correctional Center.   On December 18, 2016 he slipped on ice as he was returning from his “chow break” located in the gatehouse.  To get to the gatehouse he had to leave the tower, walk across the parking lot, and then walk on the sidewalk.   As he was returning from chow break he exited the gatehouse, walked down a long sidewalk, turned left and walked towards the parking lot.   He lost his footing before he got to the parking lot.   He testified everything was covered with snow and ice.    

The path to the gatehouse was open to the public.   The petitioner testified the pathway is in a secure area of the prison.   He can eat in the break room or any other room where they are assigned to eat.   

The Petitioner sought medical care.   The Arbitrator had found the Petitioner was exposed to a neutral risk and that the Petitioner failed to establish that he was exposed to a risk of falling snow and ice to a greater degree than that of the general public.   The Arbitrator also indicated the Petitioner failed to prove that the risk of falling on snow and ice while walking in a public lot was qualitatively or quantitatively increased due to his job duties.    

The Commission reversed the Arbitrator and stated:  “However, a risk-analysis is unnecessary if the injury occurred on the employer’s premise due to an unsafe or hazardous condition.   Our Supreme Court has held that accidental injuries sustained on the employer’s premises within a reasonable time before or after work arise “in the course of” employment.   Archer Daniels Midland Co. v. Industrial Commission, 91 Ill.2d 210, 215, 437 N.E.2d 609, 62 Ill. Dec. 921 (1990).   Further, where the injury was due to the dangerous condition of the employer’s premises, courts have consistently approved an award of compensation.  Hiram Walker & Sons, Inc. v. Industrial Commission, 41 Ill.2d 429, 244 N.E.2d 179 (1968) holding that claimant’s fall in employer’s ice-covered parking lot was compensable; Mores-Harvey v. Industrial Commission, 345 Ill. App.3d 1034, 804 N.E. 2d 1086, 281 Ill. Dec. 791 (2004) (The presence of a hazardous condition on the employer’s premises that causes a claimant’s injury supports the finding of a compensable claim.”); Suter v. Illinois Workers' Compensation Commission, 2013 Ill. App. (4th) 130049WC; 998 N.E.2d 971, 376 Ill. Dec. 261 (where the claimant slipped on ice in a parking lot furnished by employer shortly after she arrived at work, the claimant was entitled to benefits under the Act as a matter of law).    

The Commission also stated:  “The fact that the walkway in the case at bar was also used by the general public is immaterial to the issue of compensability as petitioner’s injury was caused by a hazardous condition on the employer’s premises.”  The Commission goes on to state:  “(t)he hazardous condition on the employer’s premises renders the risk of injury incidental to employment without having to prove that she was exposed to the risk of that hazard to a greater extent than are members of the general public”. 

In the present case, it was undisputed that the walkway where Petitioner fell was on the employer’s premises and that the walkway and parking lot were covered in snow and ice.  Petitioner’s testimony he slipped and fell on the ice was not rebutted by the Respondent and was bolstered by the Employer’s First Report of Injury and the contemporaneous medical record.  The Commission found that the injury was caused by the snow and ice which represented a dangerous condition or defect on the employer’s premises.   As there was a hazardous condition on the employer’s premises, a neutral risk analysis was not warranted.   Petitioner’s injury is a compensable claim. 

The Commission then went on to state that they could have also found this case compensable under the “Personal Comfort Doctrine”.    

The Commission then reviewed the medical evidence and took into consideration the 5 factors under Section 8.1(b) of the Act and awarded the petitioner 1% of a man as a whole.    

Read the full report.

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