NO. 1-01-1175WC

IN THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

Industrial Commission Division

JUSTICE RARICK delivered the opinion of the court:

Claimant, Anna G. Homerding, sought benefits pursuant to the Workers'Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996)) for injuries sustained toher wrist on December 11, 1996, while in the employ of employer, House of Charles. The arbitrator determined that claimant's injuries arose out of and in the course of heremployment and awarded her 14 2/7 weeks of temporary total disability benefits, medicalexpenses, and 30 percent loss of use of the left hand. The arbitrator also awardedpenalties and attorney fees under sections 19(l), 19(k) and 16 of the Act for employer'sunreasonable and vexatious refusal to pay any benefits as well as employer's misguidedreliance on the opinion of its medical expert. On review, the Industrial Commission(Commission), with one dissent, reversed the decision of the arbitrator finding thatclaimant failed to prove she sustained an accidental injury which arose out of and in thecourse of her employment. The circuit court rejected the Commission's finding thatclaimant's accident did not occur in the course of her employment but affirmed thefinding that the accident did not arise out of the employment, and therefore confirmed thedenial of benefits. Claimant appeals. The sole issue presented on appeal is whetherclaimant's injuries arose out of and in the course of her employment.

Claimant was employed on a part-time basis as a nail technician foremployer from June 2 until December 14, 1996. Employer is a beauty salon located in asmall strip mall in Palos Park, Illinois. The mall consisted of some seventeen stores andtwo parking lots, one in front of the stores and one at the rear. The rear parking lotconsisted of blacktop painted with yellow lines and contained no signs indicating that thespots were reserved for anyone's particular use. Employer had a rear entrance at its salonwhich led to the back lot. The lots in front and back of the stores were owned andmaintained by the mall. Employer's lease obligated employer, as tenant, however, to paya pro rata share of the common area costs, separate and apart from monthly rent. Thelease also obligated employer to furnish the landlord with license numbers anddescriptions of cars used by tenant and its employees and to pay the landlord $10 foreach day on which a car of tenant or its agents and/or employees parked outside any areadesignated by landlord for employee parking. The lease further authorized landlord totow any such car from the mall at tenant's cost. Employer's owner asserted he had nopolicy as to where his employees parked their cars. He testified "everybody parks backthere" in reference to the back lot. Claimant testified on the first day she worked foremployer, she parked her car in the front lot. The next day the manager of the salon toldher "it was a 'no-no' to park in the front parking lot" and that she had to park in the backlot with the rest of the people.

On December 11, 1996, claimant arrived at work at approximately 8:45a.m. and parked in the back lot. She went into work by the back door and began settingup her supplies at her work station. She realized she needed a second case that was stillin her car and went back out to the lot to retrieve it. The case measured approximatelytwo and one-half feet by one and one-half feet and contained such items as a hand dryer. Carrying the case in her left hand, claimant slipped on some ice in the lot about five feetfrom employer's door. She and the case both went flying and claimant attempted tobreak her fall with her left hand. She immediately felt great pain in her left wrist andremained on the ground for "a long time." She eventually was able to get up and walkinto the salon. She asked for ice and wrapped her hand in a towel. A coworker droveher to a drug store and purchased a wrist brace for her to wear. Claimant did not haveany money with which to purchase it herself. She returned to work and finished hershift. She continued to suffer pain in her wrist but worked the next two days wearing abrace. She then approached the manager and asked for time off because she was not ableto work properly as her hand hurt so badly. She also told the manager she had anopportunity to visit her son and would only be gone a few days. The manager refused thetime off and further informed claimant that her job would not be waiting for her if shetook the time off anyway. Claimant did not return to work because of the pain. She alsodid not travel to visit her son because her hand was "swollen terribly." Claimant had nomoney or health insurance, and therefore, did not seek medical assistance until she wasable to find a doctor who would treat and bill her later. Claimant first sought treatmentwith Dr. Paschal Panio, an orthopedic surgeon, on April 28, 1997. Dr. Panio notedswelling in her left wrist and 20 degrees lack of both supination and pronation and only20 degrees of dorsiflexion and palmar flexion. X-rays revealed a healed Colles fractureto the left wrist with relatively good alignment. Dr. Panio opined the fracture wassecondary to claimant's fall on December 11. He recommended occupational therapy anda wrist splint for heavy lifting. Claimant underwent therapy between May and July of1997. Claimant was discharged from his care in August with the advice she continue herstrengthening program and using the splint. Claimant informed him she still had somepain and limitation of motion, and Dr. Panio informed her this was to be expected giventhe nature of the fracture. Claimant testified she has not worked anywhere since leavingemployer. She continues to experience pain in her left wrist and has difficulty lifting andpushing things. She also wears an elastic glove on her left hand at all times.

On June 30, 1997, claimant was examined by Dr. Richard Shermer at therequest of employer. Dr. Shermer opined that claimant's x-rays showed advancedhealing of a fracture to her left wrist with no malalignment and at a stage of healing thatcould be dated to within three or four months prior to the x-ray. He noted, however, fullpronation and supination of the wrist with shoulder abduction. He also noted claimantcould not perform internal rotation and opined her complaints were "largely subjectivewith a non-organic component."

The arbitrator concluded claimant sustained an accident on December 11,1996, that arose out of and in the course of her employment. The arbitrator specificallynoted claimant was performing a task at the time of her fall that was both reasonablyforeseeable and incidental to her duties. Additionally, the arbitrator found that employercontrolled the rear parking lot and required its employees to park there rather than infront of the salon. After awarding benefits and medical expenses, the arbitrator alsodetermined employer was subject to penalties and fees because of its unreasonable andvexatious refusal to pay any benefits and its misguided reliance on the opinion of Dr.Shermer who never opined that claimant's wrist fracture was unrelated to her fall or thatshe could resume her regular work duties. The majority of the Commission reversed thearbitrator's decision after finding that claimant failed to prove she sustained an accidentalinjury arising out of and in the course of her employment. The majority pointed out thatemployer did not own, maintain or control the parking lot in which claimant fell. Employer also did not limit claimant to a designated lot separate and apart from thatutilized by the general public. Accordingly, the Commission concluded claimant was notexposed to a greater risk than the general public. Commissioner Kinnamon in her dissentconcluded claimant was entitled to benefits because she parked in the area designated byemployer for that purpose and because she was carrying a case containing work toolswhen she fell. The circuit court believed claimant sustained her burden of proving heraccident occurred in the course of her employment by showing employer provided therear parking lot and required her to park there. The court confirmed the Commission'sdecision not to award benefits, however, because claimant failed to meet the "arising outof" requirement. The court based its ruling on the fact that there was no evidencepresented the case claimant was carrying at the time of her fall contributed to heraccident.

In order for accidental injuries to be compensable under the Act, a claimantmust show that his or her injuries both "arose out of" and "in the course of" his or heremployment. Caterpillar Tractor Co. v. Industrial Comm'n, 129 Ill. 2d 52, 57, 541N.E.2d 665, 667 (1989); Knox County YMCA v. Industrial Comm'n, 311 Ill. App. 3d880, 884, 725 N.E.2d 759, 762 (2000). "In the course of" employment refers to the time,place and circumstances under which the accident occurred. Knox County, 311 Ill. App.3d at 884, 725 N.E.2d at 762. "Arising out of" one's employment requires an injury'sorigin to be in some risk connected with, or incidental to, the employment so as to createa causal connection between the employment and the accidental injury. Nabisco Brands,Inc. v. Industrial Comm'n, 266 Ill. App. 3d 1103, 1106, 641 N.E.2d 578, 581 (1994). Typically, an injury arises out of one's employment if, at the time of the occurrence, theemployee was performing acts he or she was instructed to perform by the employer, actswhich he or she had a common law or statutory duty to perform, or acts which theemployee might reasonably be expected to perform incident to his or her assigned duties. 266 Ill. App. 3d at 1106, 641 N.E.2d at 581.

The determination of whether an injury arose out of and in the course ofemployment is a question of fact for the Commission which will not be set aside unless itis contrary to the manifest weight of the evidence. Knox County, 311 Ill. App. 3d at 885,725 N.E.2d at 763. Generally we are not easily moved to set aside a Commission'sdecision on a factual question, but must do so when the indisputable weight of theevidence compels an apparent, opposite conclusion. Montgomery Elevator Co. v.Industrial Comm'n, 244 Ill. App. 3d 563, 567, 613 N.E.2d 822, 825 (1993). Such is thecase in this instance.

At the time of the accident claimant had already begun her workday andwas injured while performing a task that advanced employer's interests and allowed herto carry out her usual employment duties. She had already begun to set up her workstation when she realized she needed additional supplies. These supplies were in a casein her car. Claimant went out to her car to retrieve the case and slipped on the ice in herefforts to return to the salon. It is clear that claimant fell while working, carrying out atask that was quite foreseeable and necessary to her job. Accordingly, her injurynecessarily arose out of and in the course of her employment. Additionally, the risk ofinjury to which claimant was exposed was connected to her employment. Claimant wasrequired to park in the rear of employer's business on a lot employer financiallycontributed to maintain, and she needed certain supplies to perform her job. But for thedemands of her job, she would not have needed to make a second trip to her car nornegotiate the ice between her car and the salon door while carrying a large case. Her riskof injury accordingly was greater than that of the general public. See De Hoyos v.Industrial Comm'n, 26 Ill. 2d 110, 114, 185 N.E.2d 885, 887 (1962). See alsoBommarito v. Industrial Comm'n, 82 Ill. 2d 191, 196-97, 412 N.E.2d 548, 550-51(1980). The arbitrator interpreted the evidence correctly and therefore the arbitrator'sdecision should be reinstated. We elect, however, not to reinstate that portion of thearbitrator's decision pertaining to penalties given the history of the case. Penalties shouldnot be imposed when an employer reasonably and in good faith believed that a claimantwas not entitled to workers' compensation on the grounds the injury did not arise out ofand in the course of the employment. See Complete Vending Services, Inc. v. IndustrialComm'n, 305 Ill. App. 3d 1047, 1050-51, 714 N.E.2d 30, 32-33 (1999).

For the aforementioned reasons, we reverse the decisions of theCommission and the circuit court denying claimant benefits and reinstate that portion ofthe arbitrator's decision awarding benefits. No penalties and/or fees are to be assessed.

Circuit court affirmed in part and reversed in part; Commissioin reversed;Arbitrator's decision reinstated in part.

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

JUSTICE HOFFMAN, specially concurring; JUSTICE O'MALLEY joins:

I agree with the result reached by the majority in this case. However, because Ibelieve that the majority's opinion might be misinterpreted as adopting a theory ofrecovery grounded in positional risk, which was repudiated by our supreme court inBrady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 578 N.E.2d 921(1991), I have elected to write separately.

As the majority correctly notes, an employee's injury is compensable under theWorkers' Compensation Act (Act) only if it arises out of and in the course of heremployment. 820 ILCS 305/2 (West 1998). Both elements must be present at the timeof the claimant's injury in order to justify compensation. Illinois Bell Telephone Co. v.Industrial Comm'n, 131 Ill. 2d 478, 483, 546 N.E.2d 603 (1989).

An injury occurs "in the course of" employment when it is sustained while theclaimant is at work or while she is performing activities in conjunction with heremployment. Weiss v. Industrial Comm'n, 54 Ill. 2d 138, 142, 295 N.E.2d 459 (1973). In this case, the claimant was injured while retrieving a case containing work suppliesfrom her car, which was parked in a parking lot behind her employer's premises. She fellduring working hours and at a place where she might reasonably have been whileperforming her duties. Clearly, her injuries were sustained in the course of heremployment. However, the fact that she was injured in the course of her employment isnot sufficient to impose liability under the Act. To be compensable, her injury must alsohave arisen out of her employment. Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 45, 509N.E.2d 1005 (1987).

"For an injury to 'arise out of' the employment its origin must be in some riskconnected with, or incidental to, the employment so as to create a causal connectionbetween the employment and the accidental injury." Caterpillar Tractor Co. v. IndustrialComm'n, 129 Ill. 2d 52, 58, 541 N.E.2d 665 (1989). "There are three categories of risksan employee may be exposed to: (1) risks distinctly associated with the employment; (2)risks personal to the employee; and (3) neutral risks which have no particularemployment or personal characteristics." Illinois Institute of Technology v. IndustrialComm'n, 314 Ill. App. 3d 149, 162, 731 N.E.2d 795 (2000).

In this case, the claimant slipped and fell on ice in a parking lot. The risk of sucha fall is not distinctly associated with her employment, nor is it personal to the claimant. The risk to which the claimant was exposed is a neutral risk. As a consequence, thequestion of whether her injury arose out of her employment rests on a determination ofwhether she was exposed to a risk of injury to an extent greater than that to which thegeneral public was exposed. Illinois Institute of Technology v. Industrial Comm'n, 314Ill. App. 3d at 162. The Commission found that she was not and denied hercompensation. For the reasons which follow, I believe that the Commission's decisionon this issue must be reversed as being against the manifest weight of the evidence, andthe arbitrator's award, void of penalties and fees, reinstated.

The mere fact that the claimant's duties took her to the place of injury and that, butfor her employment, she would not have been there, is not sufficient, of itself, to supporta finding that her injuries arose out of her employment. Illinois Bell Telephone Co. v.Industrial Comm'n, 131 Ill. 2d 478, 485-86, 546 N.E.2d 603 (1989); Caterpillar TractorCo., 129 Ill. 2d at 63. Further, contrary to the dissenting commissioner's assertion, thereis nothing in the record which could support a finding that the case of supplies which theclaimant was carrying in any way contributed to her fall. This case is, therefore, distinguishable from Knox County YMCA v. Industrial Comm'n, 311 Ill. App. 3d 880, 725N.E.2d 759 (2000). Nevertheless, I believe that the facts of this case clearly demonstratethat the claimant was exposed to a greater risk of injury than were members of thegeneral public.

The beauty salon at which the claimant was employed is located in a strip mall. Two parking lots are available to the customers of the stores located in the mall, one lotin the front of the stores and another in the rear. The claimant testified that her manager,the owner's wife, told her that she could only park in the lot to the rear of the salon. Theice upon which the claimant slipped was located in the rear lot, approximately five feetfrom the rear door to her employer's premises.

The Commission found that "whether or not *** [the claimant] was directed notto park in the front of the store is of no consequence ***." However, I find that fact tobe central to a determination of whether the claimant's injury arose out of heremployment.

The rear lot in which the claimant fell was available for use by members of thepublic and there is no doubt that, had a member of the public chosen to park in that lot,he or she would have been exposed to the same risk of falling to which the claimant wasexposed. The critical difference is that the public was free to use the front lot and theclaimant was not. By compelling the claimant to use the rear lot, her employer chose theroute she would use to enter and leave the premises. The only practical way that theclaimant could enter and leave was by the rear door which, on the day of her fall,exposed her to the hazards of the ice in the rear parking lot. Since the claimant wasrequired to use the rear lot, she was exposed to a risk common to the general public to agreater degree than other persons who were free to use the front lot. It is for this reasonthat I believe that the uncontradicted evidence in the record supports only one reasonableconclusion; namely, that the claimant's injury arose out of her employment. SeeBommarito v. Industrial Comm'n, 82 Ill. 2d 191, 412 N.E.2d 548 (1980).