Industrial Comm'n Division

JUSTICE COLWELL delivered the opinion of the court:

Claimant, Joseph S. Jensen, appeals from an order of the circuit court of Cook County confirming a decision of the Industrial Commission (Commission) finding that claimant's August 10, 1991, injury did not arise out of and in the course of his employment with respondent, Baldwin Aircraft Corporation. Claimant appealed, and we affirm.

On appeal, claimant contends that the Commission's conclusion that his injuries did not arise out of and in the course of his employment and that its calculation of his average weekly wage are against the manifest weight of the evidence. Based on our ruling, we need only address the issue of whether claimant's injuries arose out of and in the course of his employment.

FACTS

In August 1991, respondent was in the business of maintaining and operating a private jet-aircraft and providing air transportation for its owner, Tom Baldwin, and his guests to Baldwin's private 5,000 acre summer retreat, "Granot Loma," near Marquette, Michigan and, on occasion, to other destinations. Robert Purcell was respondent's chief pilot, and claimant was one of respondent's co-pilots.

Between December 1990 and August 1991, claimant co-piloted anywhere between 9 to 13 of respondent's 25 flights. Claimant testified that he had stayed over on most trips to Granot Loma. Purcell determined on a cost-effective basis whether claimant would stay over at Granot Loma before the return flight or whether he would fly a commercial airliner back and then return when he was scheduled to co-pilot the return flight. Claimant testified he was occasionally required to do paperwork during his stays at Granot Loma but his job was mostly to "get along" with Baldwin and his family and guests and to help clean up after meals.

During claimant's stays at Granot Loma, Baldwin allowed claimant to use his recreational vehicles, including two all-terrain vehicles (ATV), on the property at Granot Loma. Prior to working for respondent, claimant had never ridden an ATV. Purcell showed claimant how to operate an ATV, and they rode together on several occasions.

On August 7, 1991, claimant and Purcell flew Baldwin's wife and children to Granot Loma with a return trip scheduled for August 11. Claimant stayed at Granot Loma on this occasion.

On August 9, claimant and Purcell made plans to take an ATV ride to an unfamiliar area of Baldwin's property located across a state highway. Neither claimant nor Purcell had been to this area before.

The next day, August 10, between 3:00 p.m. and 3:30 p.m., claimant and Purcell began preparations for their ride. While Purcell wore a helmet, claimant did not, even though helmets were available for claimant to use. Claimant testified that he never wore a helmet when riding the ATVs. Purcell testified that he always wore a helmet when he left the courtyard and went out on the trails. Purcell further testified that when he asked claimant if he was going to wear a helmet, claimant said no in a joking fashion. Claimant denied that Purcell asked him if he was going to wear a helmet.

Purcell testified that he was driving a black, 185 CC Kawasaki, and claimant was driving a newer blue and white, 225 CC Kawasaki. Claimant testified that he was driving a black ATV.

Claimant and Purcell left the Granot Loma courtyard and proceeded to ride about three-quarters of a mile down a driveway to a gate. At this point, they were still on Baldwin's property. Claimant and Purcell then rode out of the gate and onto a road. Claimant did not know if the road was a county or public road but described it as a gravel, sand road. Purcell testified that the road was a public highway, either a county or a state road, but probably a county road. Both agreed that the road was dusty.

As they proceeded down the road, claimant drove in front of Purcell. Purcell testified that claimant was traveling too fast, and, even though his ATV did not have a speedometer, Purcell opined that claimant was traveling between 30 to 50 miles per hour. Purcell testified that he was not certain he could catch up to claimant even if drove with the ATV "wide open." Purcell testified that they were riding at an uncomfortably fast speed, that there was a lot of dust, that his vision was restricted, and that it was reckless to ride so fast in the dust. As a result, as soon as they got outside the gate and Purcell noticed that the speed picked up, he pulled over to the side of the road for about three to five minutes to let the dust clear.

Purcell then proceeded to the predetermined rendezvous point at the state highway they needed to cross to reach their intended destination, but claimant was not there. The state highway was located about 3 to 4 miles from the gate that separated Baldwin's property from the county road. Purcell believed that claimant would not cross the state highway without him, so he waited for about 30 minutes before he backtracked the county road and found claimant at about 4:20 p.m. Purcell testified that claimant had hit a tree.

Claimant testified that the last thing he remembered before waking up in the hospital was that he began to slow down on the road to make a left turn. Claimant suffered a basilar skull fracture, a left temporal skull fracture, a basal fracture, and a fracture of the first and second ribs on the left side with an apical hematoma.

On August 13, 1992, the arbitrator found that claimant was an independent contractor and denied benefits. The Commission affirmed, and the circuit court confirmed the Commission's decision. This court found an employer-employee relationship existed and reversed and remanded the matter to the Commission. On remand, the Commission found that claimant failed to prove that he suffered injuries that arose out of and in the course of his employment and again denied benefits. The circuit court confirmed the Commission's decision, and claimant appealed.

STANDARD OF REVIEW

It is the claimant's burden to prove by a preponderance of the credible evidence that the injury complained of arose out of and in the course of employment. Johnson Outboards v. Industrial Comm'n, 77 Ill. 2d 67, 70-71 (1979). The issue of whether or not an injury arose out of and in the course of employment is for the Commission to decide, and its decision will not be reversed unless it is contrary to the manifest weight of the evidence. Humphrey v. Industrial Comm'n, 76 Ill. 2d 333, 336 (1979). In order for a finding to be against the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Price v. Industrial Comm'n, 278 Ill. App. 3d 848, 852 (1996).

ANALYSIS

A claimant's injury is not compensable unless it both "arises out of" and is "in the course of" the claimant's employment. Paganelis v. Industrial Comm'n, 132 Ill. 2d 468, 480 (1989). The phrase "in the course of" refers to the time, place, and circumstances under which the accident occurred. Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 44 (1987). An injury "arises out of" a claimant's employment when there is a causal connection between the employment and the injury; that is, the origin or cause of the injury must be some risk connected with, or incidental to, the claimant's employment. Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 548 (1991). Typically, an injury "arises out of" a claimant's employment if, at the time of the occurrence, the claimant was performing acts the employer instructed the claimant to perform, acts incidental to the claimant's assigned duties, or acts which the claimant had a common law or statutory duty to perform. Caterpillar Tractor Co. v. Industrial Comm'n, 129 Ill. 2d 52, 58 (1989).

In the present case, it is undisputed that claimant's employment required him to travel. A "traveling employee" is defined as an employee who is "required to travel away from the employer's premises in order to perform his job." See Chicago Bridge and Iron, Inc. v. Industrial Comm'n, 248 Ill. App. 3d 687, 694 (1993). Thus, claimant was a traveling employee.

Courts generally consider traveling employees differently from other employees when considering whether an injury arose out of and in the course of employment. Hoffman v. Industrial Comm'n, 109 Ill. 2d 194, 199 (1985). However, a finding that a particular claimant is a traveling employee does not exempt that claimant from proving that an injury arose out of and in the course of employment. Hoffman, 109 Ill. 2d at 199. Whether an injury to a traveling employee arises out of and in the course of employment depends upon the reasonableness of the specific conduct and whether it might normally be anticipated or foreseen by the employer. U.S. Industries v. Industrial Comm'n, 40 Ill. 2d 466, 474-75 (1968).

Here, the Commission found that claimant's participation in recreational activities and his use of recreational vehicles during the stay over was reasonable and foreseeable. Neither party challenges this ruling on appeal, and we note that a traveling employee may be compensated for injuries sustained while engaged in recreational activities as long as those activities were reasonable and foreseeable. Bailey v. Industrial Comm'n, 247 Ill. App. 3d 204, 208-09 (1993). Therefore, we agree with the Commission and find that claimant's use of the ATV was reasonable and foreseeable.

The Commission further found, however, that the manner in which claimant used the ATV was reckless and thus unreasonable. While we have been unable to locate any Illinois cases that directly address whether the Commission may find that the manner in which an activity is conducted is unreasonable or unforeseeable even though the activity itself is reasonable and foreseeable, we believe that such an analysis is appropriate.

For instance, while the recreational activities of a traveling employee may be compensable (see, e.g., Bagcraft Corp. v. Industrial Comm'n, No. 3-97-0901WC, slip op. at 2 (Ill. App. December 23, 1998)), our supreme court in U.S. Industries, 40 Ill. 2d at 475, found that a claimant's pleasure drive in unfamiliar, mountainous terrain was an unforeseeable and unreasonable activity. In other words, the manner in which the claimant in U.S. Industries sought recreation was unreasonable and unforeseeable. Additionally, Professor Larson, while comparing the U.S. Industries case with Schneider v. United Whelan Drug Stores, 284 N.Y. App. Div. 1072, 135 N.Y.S.2d 875 (1964), a case where the court found compensable the death of a traveling employee who drowned on a pleasure boat ride, stated that Illinois courts "would perhaps say that there is a difference in reasonableness between killing time by taking a boat ride and by 'undertaking a midnight pleasure drive in unfamiliar mountain terrain.'" 2 A. Larson, Larson's Workers' Compensation Law