NO. 3-12-0820WC Opinion filed May 8, 2014

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

WORKERS' COMPENSATION COMMISSION DIVISION

JANE R. BRAIS, ) Appeal from the ) Circuit Court of Appellant, ) Kankakee County. ) v. ) No. 10 MR 650 ) THE ILLINOIS WORKERS' COMPENSATION ) Honorable COMMISSION, et al., (County of Kankakee, Circuit ) James B. Kinzer Clerk's Office, Appellees.) ) Judge, presiding.

JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, and Hudson concurred in the judgment and opinion. Justice Harris specially concurred, with opinion.

OPINION

¶1 The claimant, Jane R. Brais, filed an application for adjustment of claim against her

employer, the Kankakee County Circuit Clerk's Office, seeking workers' compensation

benefits for an injury to her left wrist she allegedly sustained at work on December 20,

2006. The claim proceeded to an arbitration hearing under the Workers' Compensation

Act (the Act) (820 ILCS 305/1 et seq. (West 2006)). The arbitrator found that the claimant failed to meet her burden of proving that she sustained accidental injuries which

arose out of and in the course of her employment.

¶2 The claimant appealed to the Illinois Workers' Compensation Commission

(Commission), which affirmed and adopted the decision of the arbitrator. The claimant

filed a timely petition for review in the circuit court of Kankakee County. The circuit

court confirmed the Commission's decision, and the claimant appealed.

¶3 BACKGROUND

¶4 The following factual recitation is taken from the record and the evidence presented

at the arbitration hearing.

¶5 The claimant began working for the employer as a child support coordinator on

April 15, 2002. Her office is located in the Kankakee County Courthouse. The claimant

testified that on December 20, 2006, at about 11:00 a.m., she was returning to her office

from a work-related meeting at the administration building. The administration building

is about 2 blocks from the courthouse. Typically employees enter the courthouse through

an employee entrance at the back of the courthouse. The employee entrance is locked at

9:30 a.m. so the claimant had to enter through the front door to the courthouse. The

claimant testified that she took that path every day. She was wearing 2 inch high heels

and, when she was less than two feet from the stairs leading to the front entrance to the

courthouse, her heel caught in a defect in the sidewalk and she fell. She described the

sidewalk where she fell as having huge cracks, being broken up, and "you could pretty

much see the gravel that they put down underneath the concrete." The claimant stated that

2 there was a one-half to a one inch difference in the level between the smooth concrete

leading up to the crumbled concrete. The claimant struck her left wrist and right knee

when she fell. She felt a sharp pain in her wrist.

¶6 The claimant entered the courthouse and told her department head, Circuit Clerk

Kathy Thomas, about the accident. Ms. Thomas took her to the emergency room at

Provena St. Mary's Hospital. The claimant had an x-ray of her left wrist. Dr. Robert

Marshall wrote that the x-rays showed arthritic changes throughout the wrist mainly on the

radial side of the wrist and a lineal lucency through the proximal scaphoid. The claimant

was seen at Provena St. Mary's Hospital on December 22, 2006, January 2, 2007, and

January 9, 2007. She was diagnosed with a left wrist scaphoid fracture and referred to Dr.

Muhammad.

¶7 Dr. Kermit Muhammad started treating the claimant on January 5, 2007. X-rays

were taken. Dr. Muhammad wrote in his patient notes that the x-rays showed that the

claimant had a left proximal pole scaphoid fracture, nondisplaced, of her left wrist. He

examined her again on February 2, 2007, March 2, 2007, April 13, 2007, and June 1, 2007.

During this time, the claimant was treated with a wrist brace, a bone stimulator, and

physical therapy. On July 17, 2007, Dr. Muhammad examined the claimant and noted

that her left wrist had a persistent lucency and fracture line. He referred her to Dr. John

Fernandez.

¶8 Dr. John Fernandez examined the claimant on August 9, 2007. He diagnosed her

with scaphoid nonunion with avascular necrosis and early dorsal intercalated segment

3 instability. He recommended either a left wrist total fusion, a left wrist scaphoid excision

with partial fusion, or a left wrist proximal row carpectomy.

¶9 On March 14, 2008, Dr. Fernandez performed a left wrist total fusion with proximal

row carpectomy and scaphoid excision, and a left carpal tunnel release on the claimant.

He wrote that multiple x-ray views of the left hand and wrist revealed excellent alignment

of the fusion plate. He referred her for therapy.

¶ 10 On July 9, 2008, Dr. Fernandez examined the claimant. He wrote in his patient

notes that multiple x-rays of the left wrist revealed a successful fusion with no hardware

migration or failure. He advised that she could discontinue her supervised therapy and

engage in a home program on her own. He wrote that she was currently at maximum

medical improvement. He permanently restricted her to "light use in the 10- to 15-pound

range without significant exposure to repetition beyond 2 to 3 hours total in a day without

significant use of tools." He noted that in the future the claimant may require removal of

the deep hardware including the plate and screws.

¶ 11 On March 4, 2009, at the employer's request, the claimant underwent an

independent medical evaluation with Dr. Charles Carroll IV. He diagnosed her with

scaphoid fracture with avascular necrosis which necessitated fusion. He found that her

treatment had been reasonable and necessary and that it related to her industrial injury. He

found that she had reached maximum medical improvement and he agreed with her 15

pound lifting restriction. Dr. Carroll opined that hardware removal was not required at

that time.

4 ¶ 12 At the time of the arbitration hearing, all the medical bills incurred as a result of the

claimant's medical treatment had been paid. The claimant testified that the employer had

accommodated all of the work restrictions placed on her by her physician and that she did

not lose time from work due to her injury. She stated that she is working in the same

position as prior to her injury.

¶ 13 The claimant testified that, at the time of the arbitration hearing, the sidewalks in

front of the courthouse had been replaced. After her fall, she spoke before the safety

committee about the condition of the sidewalk. She stated that the area where she fell was

specifically addressed in safety meetings after December 20, 2006, and the issue was

discussed until the county had the funds to make the repairs.

¶ 14 The arbitrator found that the claimant did not sustain injuries that arose out of and in

the course of her employment. He found that the claimant's accident occurred when she

was walking along a public pathway going in to the county courthouse. In doing so, she

was not subjected to a risk to which the general public is not exposed or that was peculiar to

her work. He found that the risk to the claimant which caused her injuries was no greater

to her than to the general public.

¶ 15 The claimant sought review of the arbitrator's decision. The Commission affirmed

and adopted the arbitrator's decision. The claimant appealed the Commission's decision

to the circuit court. Following a hearing, the circuit court confirmed the Commission.

The claimant filed a timely notice of appeal.

¶ 16 ANALYSIS

5 ¶ 17 The claimant argues that the Commission erred in its determination that her wrist

injury did not arise out of and in the course of her employment.

¶ 18 To be compensable under the Act, an injury must be one "arising out of and in the

course of the employment." 820 ILCS 305/2 (West 2006). "An injury is sustained 'in the

course' of employment when it occurs during employment, at a place where the worker

may reasonably perform employment duties or engage in some incidental employment

duties." Baggett v. Industrial Comm'n,

,

(2002). An injury "arises out of" one's employment if it originates from a risk connected

with, or incidental to, the employment, so as to create a causal connection between the

employment and the accidental injury.

,

. "Typically, an

injury arises out of one's employment if, at the time of the occurrence, the employee was

performing acts he or she was instructed to perform by the employer, acts which he or she

had a common law or statutory duty to perform, or acts which the employee might

reasonably be expected to perform incident to his or her assigned duties." Homerding v.

Industrial Comm'n,

,

(2002). "A risk

is incidental to employment where it belongs to or is connected with what an employee has

to do in fulfilling his duties." Caterpillar Tractor Co. v. Industrial Comm'n,

,

(1989).

¶ 19 Generally whether a claimant's injury arose out of or in the course of her

employment is a question of fact for the Commission, and its determination will not be

disturbed on review unless it is against the manifest weight of the evidence. Nascote

6 Industries v. Industrial Comm'n,

,

(2004). However, when the facts are undisputed and susceptible to only one single

inference, the question is one of law and is subject to de novo review.

¶ 20 In the instant case, the facts are undisputed. The claimant was the only witness to

testify at the hearing. Her undisputed testimony established that on December 20, 2006,

at around 11:00 a.m. she was walking back from a meeting at the administration building;

she was walking up the sidewalk towards the steps leading to the front entrance to the

courthouse; she takes that path every day; normally she enters the courthouse through the

employee entrance at the back of the courthouse; the employee entrance is locked at 9:30

a.m., so she had to enter through the front entrance; as she was approaching the steps to the

courthouse, her heel caught in the broken and cracked sidewalk causing her to fall and

injure her wrist; the concrete was not level with adjacent concrete slabs; and at the time of

the arbitration hearing, the sidewalk had been replaced. The employer did not dispute any

of this evidence.

¶ 21 The employer argues that whether the claimant was exposed to a special risk or

hazard requires the court to draw an inference from the facts, and therefore, this matter

involves a question of fact and should be subject to the manifest-weight-of-the-evidence

standard. The claimant argues that the undisputed facts are susceptible to a single

inference, and therefore, the Commission's decision should be reviewed de novo. We

agree with the claimant.

7 ¶ 22 "In the course of" the employee's employment refers to the time, place, and

circumstances under which she is injured. Litchfield Healthcare Center v. Industrial

Comm'n,

,

(2004). Injuries sustained on an

employer's premises, or at a place where the claimant might reasonably have been

performing her duties, and while a claimant is at work, are generally deemed to have been

received in the course of the employment.

In the instant case, the claimant had begun

her workday and was injured when returning to her office from a work-related meeting in

another building. The claimant's injury was sustained in the course of her employment.

Thus the sole issue is whether the claimant's injury arose out of her employment.

¶ 23 The instant case is similar to the line of cases that involve injuries to the claimant

resulting from exposure to a special hazard. In Bommarito v. Industrial Comm'n,

,

(1980), the claimant was walking from her car, down one of the

four entrances to the two alleyways which led to her employer's rear door when she stepped

in a hole and fell, fracturing her left elbow and spraining her right ankle and right wrist.

,

. All employees were required to enter and exit the

building through the rear door.

The court examined whether the claimant sustained

injuries arising out of and in the course of her employment. The court observed that when

an injury occurs "in an area which is the sole or usual route to the employer's premises, and

the route is attendant with a special risk or hazard, the hazard becomes part of the

employment."

,

. The court held that the special risks or

hazards encountered by the claimant, as a result of her employer's order to enter through

8 the rear door only, arose out of her employment.

,

. It further

held that the claimant's obedience to the employer's order placed her consequent injuries

within the course of her employment because had she not obeyed, she could not have

gained admittance to her place of employment.

¶ 24 In Litchfield Healthcare Center the claimant, after punching the time clock to start

work, returned to her car to get some equipment. Litchfield Healthcare Center,

,

. She testified that she would be disciplined if she

did not have the equipment.

,

. When walking back from her

car, the claimant tripped on uneven concrete and rolled her ankle off the sidewalk.

She suffered from a severe ankle and foot sprain.

The court examined whether the

claimant's injuries arose out of her employment. The court found that the claimant was

exposed to a defective sidewalk and that her regular use of the north parking lot at the

suggestion of her employer exposed her to the defective sidewalk to a degree beyond that

to which the general public would be subjected.

,

. The court

held that when "an injury to an employee takes place in an area which is the usual route to

the employer's premises, and the route is attendant with a special risk or hazard, the hazard

becomes part of the employment."

The court held that the "arising out of"

requirement of the Act is satisfied when special hazards or risks are encountered as a result

of using a usual access route.

¶ 25 In Metropolitan Water Reclamation District of Greater Chicago v. Illinois Worker's

Compensation Comm'n,

,

(2011), the claimant

9 stumbled while walking up an inclined driveway with a 6 inch "dip" on her way to make a

job-related bank deposit.

,

. She fractured both her

wrists.

,

. The sole issue on review was whether the

claimant's injuries arose out of her employment. The court held that "[u]nder the 'street

risk' doctrine, where the evidence establishes that the claimant's job requires that she be on

the street to perform the duties of her employment, the risks of the street become one of the

risks of the employment, and an injury sustained while performing that duty has a causal

relation to her employment."

,

. The court found that there

was undisputed evidence that the claimant had to traverse the public streets and sidewalks

to make bank deposits for her employment and that the hazards and risks inherent in the use

of the street became the risks of her employment.

,

. It held

that the "dip" in the driveway was a hazard and that while the public also faced a risk of

tripping and falling on such a hazard, the claimant, by virtue of her employment, was

exposed to the risk to a greater degree than the general public.

,

. The court found that the claimant's injuries arose out of and in the course of her

employment and, as a consequence, she was entitled to benefits under the Act.

,

.

¶ 26 The employer argues that the instant case is more analogous to Caterpillar. In

Caterpillar, the claimant completed his shift, left the building through doors normally used

by the employees, walked 30 feet toward his car in the employee parking lot, and stepped

off the curb onto the driveway. Caterpillar,

,

. There

10 was a slight cement slope between the curb and the driveway, and when the claimant

stepped off the curb his right foot landed half on the cement incline and half on the

driveway.

The claimant twisted his ankle.

The driveway was on the

employer's premises and was used by employees and the general public.

There was

no evidence of holes, rocks, or obstructions on the pavement.

The supreme court

examined whether the claimant's injuries arose out of his employment. It found that the

condition of the premises was not a contributing cause of the claimant's injury.

,

. The court further found that "[c]urbs, and the risks inherent in

traversing them, confront all members of the public."

,

. The

court found that while the claimant regularly crossed the curb to reach his car, there was

nothing in the record to distinguish the curb from any other curb.

,

. The court held that the claimant's injury did not arise out of his employment because

the injury resulted from a risk which is presented to the general public.

,

.

¶ 27 The instant case is distinguishable from Caterpillar. In the instant case, there was

a special hazard. The sidewalk was cracked and uneven. In Caterpillar, there was no

evidence of a defect and the court specifically found that the curb was like any other curb.

The court in Caterpillar further found that the condition of the premises was not a

contributing cause of the claimant's injury. The cracked sidewalk was a contributing

cause of the claimant's injury as her heel caught on the defective sidewalk causing her to

fall.

11 ¶ 28 Because the instant case involves a special hazard, it is analogous to Bommarito,

Litchfield Healthcare Center, and Metropolitan Water Reclamation District of Greater

Chicago. The claimant's presence on the sidewalk approaching the steps to the

courthouse's front door was occasioned by the demands of her employment, which

required her to attend a meeting in the administration building two blocks from her office.

Her attendance at the meeting was for the benefit and accommodation of her employer.

As in Bommarito, the claimant did not freely choose a certain route. It is undisputed that

the employee door was locked at 9:30 a.m. As a result, the front door was the only access

point to the courthouse at the time of the claimant's accident. The claimant testified that

she took this route daily. It does not matter that the general public used the same sidewalk

and faced the same hazard. When an employee is injured in an area which is the sole or

usual route to the employer's premises, and there is a special risk or hazard on the route, the

hazard becomes part of the employment. Litchfield Healthcare Center,

.

. The special hazards or risk encountered as a result of using the

sole or usual access route satisfy the arising out of requirement of the Act.

Here, the

front entrance to the courthouse was not only a usual access route for the claimant, it was

her sole route since the employee entrance was locked. Because of the demands of the

claimant's job that she attend meetings at the administration building, her risk of injury on

the defective sidewalk was greater than the general public. See Metropolitan Water

Reclamation District of Greater Chicago,

,

-05,

Litchfield Healthcare Center,

,

.

12 ¶ 29 This case does not merely involve the risks inherent in walking on a sidewalk which

confront all members of the public. This case involves a cracked and defective sidewalk

which was a contributing cause of the claimant's injury. Because the claimant

encountered a special hazard or risk as a result of using a sole or usual access route, her

injury arose out of her employment. Application of the existing case law to the

undisputed facts in this case reveals that the only reasonable inference that can be drawn

from the evidence is that the claimant's injuries arose out of her employment.

¶ 30 CONCLUSION

¶ 31 For the foregoing reasons, the judgment of the circuit court confirming the decision

of the Commission is reversed, the decision of the Commission is reversed, and this cause

is remanded to the Commission for further proceedings.

¶ 32 Reversed and remanded.

¶ 33 JUSTICE HARRIS, specially concurring:

¶ 34 I agree with the result reached by the majority. I write separately because while I

agree the evidence establishes the claimant's injury was sustained in an area which was the

sole route to her employer's premises, it does not establish the area was also her usual

route. The claimant did not normally use the main entrance located at the front of the

courthouse and, instead usually entered the building through a rear entrance reserved for

use by employees. Thus, the evidence does not establish the claimant was using her usual

route to access the courthouse at the time of her fall. However, the claimant does not have

13 to prove it was both the sole and usual route. Given that Bommarito supports

compensability if the injury occurs along the sole or usual route, the claimant here is able

to satisfy the "in the course of" requirement as the testimony was undisputed her injury

occurred while attempting to access the only open entrance to the courthouse. See

Bommarito,

,

.

14