Industrial Commission Division

JUSTICE RAKOWSKI delivered the opinion of the court:

Claimant was hired by a Greek Orthodox church to work at the church's annual picnic. At 11:30 p.m., as the picnic was winding down, claimant went on break and joined picnic guests and other employees who were doing a Greek dance. While dancing, claimant fell and injured his knee. Under the circumstances, did the injury arise out of claimant's employment? Because we find that the risk of injury from dancing was personal to claimant and neither peculiar to his job nor a risk to which he was exposed to a greater degree than the general public, we conclude that the Industrial Commission properly determined that his injury did not arise out of his employment.

FACTS

Claimant, Michael Karastamatis, was hired by employer, Annunciation Greek Orthodox Church, to work at the church's annual picnic, to be held in the church's parking lot. On Thursday, Friday, and Saturday, claimant put up tents, drove a van, cleaned, and stocked beer and food. On Sunday, July 28, the last day of the picnic, claimant served food and beer. Claimant took a break at 2 p.m. He resumed work and took his next break at 11:30 p.m. At this time, the picnic was winding down and claimant asked John Pronus, the church's vice president and the chairman of the picnic, whether he could join other workers and guests who were dancing. Pronus told claimant "Go ahead." Claimant then joined the other dancers and apparently became the leader. He performed a Greek dance wherein he kicked his leg forward hitting his hand on his foot in front, kicked his leg behind him hitting his hand on his foot behind, and then flipped around. Claimant danced like this for five to six minutes and then slipped and fell backwards to the ground, injuring his knee. Claimant testified that the parking lot had oil spots on it. He offered the testimony of Dexter Allen to corroborate this. Allen stated that he observed claimant fall. He also observed the area in which claimant was dancing and stated it contained paper cups and plates, and soil and grease stains.

Paul Gebhard testified on behalf of employer. He was a volunteer at the picnic and observed claimant leading others in a Greek line dance. He saw claimant's knee give way and claimant fell. After claimant fell, Gebhard examined the area and found no oil or other unusual substances on the ground.

Employer also presented testimony of another volunteer, Dr. Peter Poulos, who spoke to claimant on July 26, two days before the accident. Claimant was limping and stated his leg hurt. Dr. Poulos agreed to look at claimant's knee. Claimant was wearing an Ace bandage and when he removed it, claimant's knee was all banged up. Claimant said that he had banged it up while working as a bouncer and wrestler.

Claimant then offered testimony to show that his knee was not previously injured. First, Mary Mayweather, a nurse's aide who worked for claimant's mother, stated that she observed claimant walking around his mother's house in shorts and that he was not wearing an Ace bandage nor did she see any injuries. Another individual, whom claimant worked out with, testified that just prior to July 26, she observed claimant doing leg squats and presses with 500 to 600 pounds without difficulty. Finally, Mike Ecklund, claimant's neighbor and an individual whom claimant trained for wrestling with, testified that he observed claimant doing exercises, including squats, with 400 pounds, which claimant did without difficulty.

Claimant filed an application for adjustment of claim pursuant to the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 1996)) for the injuries to his left knee. The arbitrator found that claimant failed to prove he sustained an accidental injury arising out of and in the course of his employment. The Industrial Commission (the Commission) did not directly address whether claimant's injury arose in the course of employment, but nevertheless affirmed the arbitrator's finding that claimant's injury did not arise out of his employment. On administrative review, the circuit court of Cook County confirmed.

ANALYSIS

I. Arising Out Of Employment

In order for claimant to recover, he must demonstrate that his injuries arose out of and in the course of his employment. "In the course of" refers to time, place, and circumstances of the injury. Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 44 (1987). For an injury to arise out of the employment:

"[T]he risk of injury must be a risk peculiar to the work or a risk to which the employee is exposed to a greater degree than the general public by reason of his employment. *** [A]n injury is not compensable if it resulted from a risk personal to the employee rather than incidental to the employment." (Emphasis added.) Orsini, 117 Ill. 2d at 45.

See also Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 550 (1991); Illinois Bell Telephone Co. v. Industrial Comm'n, 131 Ill. 2d 478, 483 (1989); Pryor v. Industrial Comm'n, 266 Ill. App. 3d 497, 499 (1994). Thus, in order for an injury to arise out of one's employment, the risk must be: (1) a risk to which the public is generally not exposed but that is peculiar to the employee's work, or (2) a risk to which the general public is exposed but the employee is exposed to a greater degree. A peculiar risk is one that is peculiar to a line of work and not common to other kinds of work (Ohio Building Safety Vault Co. v. Industrial Comm'n, 277 Ill. 96, 109 (1917)) and one that is not common to the general public. Mueller Construction Co. v. Industrial Board, 283 Ill. 148, 154 (1918). One is exposed to a common risk to a greater degree than the general public when the circumstances of the employment "make the danger of receiving a[n] injury *** an exceptional risk." Central Illinois Public Service Co. v. Industrial Comm'n, 291 Ill. 256, 265 (1920).

In Orsini, claimant was employed as an automobile mechanic at a service station. While awaiting the delivery of parts necessary for completion of a brake job claimant was performing for employer, claimant began to adjust the carburetor on his personal car, which was parked in one of the service bays. The engine in the car was running. Claimant was standing in front of the car and leaning over to adjust the carburetor when the car suddenly lurched forward, pinning his legs against a work bench and fracturing both of his femurs. Finding that the injury did not arise out of claimant's employment, our supreme court held that simply because employer acquiesces or allows the conduct, this "alone cannot convert a personal risk into an employment risk." Orsini, 117 Ill. 2d at 47. Second, the court concluded that claimant's risk was not increased by any condition of his employment or the employment premises; it was the car malfunction that caused his injuries and this could have occurred anywhere at any time. According to the court, "[claimant] voluntarily exposed himself to an unnecessary danger entirely separate from the activities and responsibilities of his job, and was performing an act of a personal nature solely for his own convenience, an act outside of any risk connected with his employment." Orsini, 117 Ill. 2d at 47. The court pointed out that it has consistently been held that "where the injury results from a personal risk, as opposed to a risk inherent in the claimant's work or workplace, such injuries are not compensable." Orsini, 117 Ill. 2d at 47. In sum, the court stated that Orsini's injuries "resulted from [an] assumed risk[], strictly personal and totally unrelated to the duties of employment or the conditions of the employer's premises." Orsini, 117 Ill. 2d at 48.

Similarly, in the instant case, claimant's injuries did not result from some risk or hazard peculiar to his employment. Claimant was hired to set up and stock the picnic and serve beer and food. He was not hired to dance. The risk of injury from dancing was not peculiar to claimant's work or incidental to his employment "because it did not belong to, nor was it in any way connected with, what [claimant] had to do in fulfilling his contract of service." Schwartz v. Industrial Comm'n, 379 Ill. 139, 147 (1942). See also Orsini, 117 Ill. 2d at 45. Claimant voluntarily exposed himself to an unnecessary danger entirely separate and apart from the activities and responsibilities of his job. His act of dancing was a personal act, solely for his own convenience; an act outside any employment risk. Further, claimant presented no evidence to show he was at an increased risk of injury from dancing because he was working at a picnic sponsored by a Greek church where his duties were to stock the picnic and serve food and beverages. Simply put, the risk of injury claimant was exposed to while dancing was neither peculiar to nor increased by the nature of his employment.

Claimant does not seriously dispute the aforesaid rule. Rather, he contends that we should nevertheless find that his injuries arose out of his employment because he was injured while on break and, therefore, the personal comfort doctrine is applicable. The crux of claimant's argument appears to be that the requirement that an injury must arise out of one's employment is not applicable in personal comfort cases. In support of his position he relies on Union Starch, Division of Miles Laboratories, Inc. v. Industrial Comm'n, 56 Ill. 2d 272 (1974), and Eagle Discount Supermarket v. Industrial Comm'n, 82 Ill. 2d 331 (1980). We disagree.

The personal comfort doctrine provides:

"Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the *** method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment." 2 A. Larson & L. Larson, Workers' Compensation Law