Industrial Commission Division

Filed: 9/28/00

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JUSTICE HOFFMAN delivered the opinion of the court:

The claimant, Jack Rodin, filed an application for adjustmentof claim under the Workers' Compensation Act (Act) (820 ILCS 305/1et seq. (West 1992)), seeking benefits for injuries he received asa result of an allergic reaction he experienced after eating foodat a luncheon he was directed to attend by his employer, P & SEnterprises. Following a hearing, an arbitrator determined thatthe incident giving rise to the claimant's injuries occurred in thecourse of his employment. However, the arbitrator also found that:1) the claimant suffered from a pre-existing condition, 2) hisallergic reaction could have happened at any time or anywhere, and3) the claimant was not exposed to a greater risk because of hisemployment. Based upon these findings, the arbitrator deniedbenefits to the claimant.

The claimant sought a review of the arbitrator's decisionbefore the Industrial Commission (Commission). The Commissionaffirmed and adopted the decision of the arbitrator, and theclaimant sought judicial review in the circuit court of CookCounty. The circuit court confirmed the Commission's decision, andthe claimant filed the instant appeal. For the reasons whichfollow, we affirm.

The facts necessary for a resolution of this appeal are not indispute. On January 27, 1993, the claimant was employed by P & SEnterprises (P&S), an electrical contractor, and was working as aforeman on a project at O'Hare International Airport. The claimanttestified that, on that date, Pete Segura, the owner of P&S,directed him and P&S's general foreman, Mike Rovner, to attend aluncheon the following day that was being hosted by T-5, theproject's general contractor. Segura directed the claimant andRovner to attend the luncheon as representatives of P&S and to tellthe other employees to attend also.

On January 28, 1993, at approximately 11:45 a.m., the claimantand Rovner went to the area where the buffet lunch hosted by T-5was being served. The claimant selected salad, chicken, potatoes,and a diet soda. After eating the food he had selected, theclaimant ate a second salad, which one his co-workers brought tohim at his request. After eating, the claimant noticed nothingunusual, and he worked the remainder of the day, leaving for homeat approximately 3:30 p.m.

According to the claimant, he felt fine when he arrived homefrom work at 4:30 p.m. on January 28, 1993. At about 5:00 to 5:30p.m., he ate a light dinner, consisting of scrambled eggs and bakedbeans, that his wife prepared. The claimant testified that, aboutan hour after he finished eating, his forehead "felt like it was onfire" and he had an urge to go to the washroom. When he enteredthe washroom and looked in the mirror, he saw that he had a rash onhis face. The claimant stated that he told his wife that he was"burning up" and that he had "terrific cramps" in his stomach. While in the washroom, the plaintiff passed out, fell, and struckhis nose on the bathtub.

The claimant was taken to Humana Hospital by paramedics. X-rays taken at the hospital revealed that he had a fractured nose. According to Humana's records, the claimant suffered ananaphylactic reaction. He was released from the hospital on thefollowing morning.

On January 30, 1993, the claimant began to experience pains inhis back. He testified that the pain started in his lower back andwent down his left leg. His wife transported him back to HumanaHospital, where he was admitted. While in the hospital, theclaimant underwent a number of tests. Significant among these wereX-rays of his lumbosacral spine, which revealed moderatedegenerative hypertrophic spurring at L3-4 and L4-5, and an MRI ofhis lumbosacral spine, which revealed central disc bulge at L4-5and L5-S1 with some spurring. The claimant was hospitalized for 23days. According to the claimant, he had never injured his lowerback prior to January 28, 1993, and he never had any medicaltreatment for his back or left leg prior to that date.

The claimant had a history of allergies dating back to when hewas seven or eight years old. He had several allergic reactionsprior to January 1993 which resulted in his hospitalization. Afterbeing released from Humana Hospital in February 1993, the claimantcame under the care of Dr. Anne Szpindor-Watson, a physicianspecializing in the treatment of allergies.

Dr. Watson testified that the claimant is allergic to wheat,shellfish, and preservatives. She stated that the allergy testsshe performed on the claimant were negative for eggs, and she didnot believe that baked beans could be the cause of the anaphylacticreaction he experienced on January 28, 1993. Dr. Watson opinedthat the claimant's allergic reaction was caused by preservativesin the food that he ate at the luncheon hosted by T-5. She basedher opinion that the luncheon food contained preservatives on herbelief that the law required catered food to contain preservatives. She could not, however, state which of the food items that theclaimant consumed at the luncheon contained the preservatives thatcaused his allergic reaction.

An employee's injury is compensable under the Act only if itarises out of and in the course of his or her employment. 820 ILCS305/2 (West 1998). Both elements must be present at the time ofthe claimant's injury in order to justify compensation (IllinoisBell Telephone Co. v. Industrial Comm'n, 131 Ill. 2d 478, 483, 546N.E.2d 603 (1989)), and it is the claimant's burden to establishboth elements by a preponderance of the evidence (O'Dette v.Industrial Comm'n, 79 Ill. 2d 249, 253, 403 N.E.2d 221 (1980)).

In this case, the Commission found that the claimant sufferedan allergic reaction in the course of his employment, but deniedhis claim for benefits on the basis that his injuries did not ariseout of his employment. The claimant argues that the Commission'sdetermination in this regard is against the manifest weight of theevidence. Although P&S argues in support of the Commission'sdetermination that the claimant's injuries did not arise out of hisemployment, it also contends that there is no evidence in therecord which can support a finding that the claimant sustainedinjuries in the course of his employment. However, because of ourresolution of the issue raised by the claimant, we need not addressP&S's latter contention. Even assuming for the sake of analysisthat there is sufficient evidence in the record to support afinding that the incident which gave rise to the claimant'sinjuries occurred in the course of his employment, the Commission'sdetermination that those injuries did not arise out of theclaimant's employment is neither against the manifest weight of theevidence nor erroneous as a matter of law.

For an injury to arise out of a claimant's employment, it musthave its origin in some risk incidental to the employment. EagleDiscount Supermarket v. Industrial Comm'n, 82 Ill. 2d 331, 338, 412N.E.2d 492 (1980). The risk of injury must be peculiar to theclaimant's work or it must be a risk to which the claimant, byreason of his employment, is exposed to a greater degree than thegeneral public. Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 45,509 N.E.2d 1005 (1987). When the injury results from a hazard towhich the claimant would have been equally exposed apart from hiswork, the injury cannot be said to arise out of his employment. Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542,550, 578 N.E.2d 921 (1991). The Commission's determination that aninjury arose out of a claimant's employment involves a question offact, and its decision on the matter will not be disturbed onreview unless it is against the manifest weight of the evidence. Dodson v. Industrial Comm'n, 308 Ill. App. 3d 572, 574, 720 N.E.2d275 (1999).

The facts relevant to this issue are simple. The claimant,who has had allergies since early childhood, suffered an allergicreaction to food he ate at a luncheon he was directed to attend byhis employer. Nothing in the record suggests that the food whichthe claimant ate was in any way contaminated or unwholesome.

Several cases cited by the arbitrator in his decision, whichwas adopted by the Commission, and by the parties in their respective briefs seem, at first blush, to be factually similar tothe circumstances present in the instant case. However, a closerexamination of these cases reveal that they can be distinguished.

In Schwartz v. Industrial Comm'n, 379 Ill. 139, 39 N.E.2d 980(1942), benefits were denied to the surviving children of anindividual who died as a result of having ingested poisonous food. The decedent consumed the food in a restaurant of his own selectionto which he went for dinner during working hours. See Schwartz,379 Ill. at 141-42. Although the decedent ingested the food in thecourse of his employment, the Illinois Supreme Court held that hisdeath did not arise out of his employment, as there was noconnection between his employment and the ingestion of thepoisonous food. Schwartz, 379 Ill. at 146. Unlike the facts inthis case, however, the employer in Schwartz exercised no controlover the location where its employee ate his meal and gave him noinstructions in that regard. Further, the deceased employee inSchwartz paid for his own meal. Schwartz, 379 Ill. at 143.

In Permanent Construction Co. v. Industrial Comm'n, 380 Ill.47, 43 N.E.2d 557 (1942), an employee and the dependents of anotheremployee were awarded benefits under the Act by reason of theemployees having contracted typhoid fever from drinkingcontaminated water furnished by their employer. PermanentConstruction, 380 Ill. at 48-49. However, unlike the circumstancein Permanent Construction, nothing in the record of this casesuggests that the food served to the claimant was in any waycontaminated or otherwise unfit for consumption by the generalpublic.

In Williams v. Industrial Comm'n, 38 Ill. 2d 593, 232 N.E.2d744 (1967), our supreme court held that the injuries which theclaimant suffered after choking on a doughnut he was eating whileworking did not arise out of his employment. Although Williamsappears to have been decided based on an application of the"personal-risk rule" (see 38 Ill. 2d at 596), the court pointed outthat the claimant supplied the doughnut upon which he choked (see38 Ill. 2d at 595). Unlike the facts in Williams, the claimant inthis case did not supply the food which caused his allergicreaction; rather, it was given to him by the host of a luncheon hisemployer directed him to attend.

In an effort to determine whether it can be said that theclaimant's allergic reaction arose out of his employment, we mustfirst categorize the risk. "[R]isks that an employee may beexposed to are categorized into three groups: (1) risks distinctlyassociated with employment, (2) risks personal to the employee, and(3) neutral risks that have no particular employment or personalcharacteristics." Illinois Consolidated Telephone Co. v.Industrial Comm'n, 314 Ill. App. 3d 347, 352, 732 N.E.2d 49 (2000)(Rakowski, J., specially concurring, joined by McCullough, P.J.).

The risk of an allergic reaction to wholesome food was not arisk inherent in the claimant's employment as a foreman of anelectrical contractor. Consequently, the risk is not an employmentrisk or one distinctly associated with his employment. Neither canit be said that it is totally neutral or void of personalcharacteristics. In this case, the risk to which the claimant wasexposed was one personal to him. See Illinois ConsolidatedTelephone Co., 314 Ill. App. 3d at 352 (Rakowski, J., speciallyconcurring, joined by McCullough, P.J.).

Injuries resulting from personal risks generally do not ariseout of employment. An exception to this rule exists when the workplace conditions significantly contribute to the injury or exposethe employee to an added or increased risk of injury. See IllinoisConsolidated Telephone Co., 314 Ill. App. 3d at 352-53 (Rakowski,J., specially concurring, joined by McCullough, P.J.). Whether aninjury resulting from personal risk arises out of a claimant'semployment is determined by whether he was exposed to a riskgreater than that to which the general public is exposed. IllinoisConsolidated Telephone Co., 314 Ill. App. 3d at 352-53 (Rakowski,J., specially concurring, joined by McCullough, P.J.).

In its "Decision and Opinion on Review," the Commission foundthat the claimant "suffered a [sic] allergic reaction which waspersonal to him and not the result of an increased risk of hisemployment." Based on the record, it cannot be said that theCommission's determination in this regard is against the manifestweight of the evidence.

Nothing in the record even suggests that the food which causedthe claimant's allergic reaction was unwholesome or unfit forconsumption or that it posed any risk to the general public. Therisk that the claimant might have an allergic reaction to foodcontaining preservatives is unrelated to his employment and is arisk to which he would have been equally exposed apart from hiswork. If, as in this case, a claimant's injury is the result of arisk to which he would have been equally exposed apart from hisemployment, it is not compensable. Caterpillar Tractor Co. v.Industrial Comm'n, 129 Ill. 2d 52, 62-63, 541 N.E.2d 665 (1989). The fact that the claimant would not have consumed the food whichcaused his reaction had he not been ordered to attend the T-5luncheon does not, standing alone, mandate a finding that hisallergic reaction arose out of his employment, as Illinois hasnever adopted the positional risk doctrine. Brady, 143 Ill. 2d at552.

Based upon the foregoing analysis, we affirm the judgment ofthe circuit court confirming the Commission's decision in thismatter.

Affirmed.

McCULLOUGH, P.J., and COLWELL, HOLDRIDGE, and RARICK, JJ.,concur.