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Lynch Special Services v. Ind. Com.

OPINION FILED MARCH 20, 1979.

LYNCH SPECIAL SERVICES, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. — (LEO SHELLS, APPELLEE.)



Appeal from the Circuit Court of Cook County, the Hon. Richard L. Curry, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 30, 1979.

An Industrial Commission arbitrator awarded claimant Leo Shells $117.40 per week for a 10-week period of temporary total incapacity for work and the further sum of $91.80 per week for 58 3/4 weeks as compensation for a 25% permanent and complete loss of use of the left arm found to have resulted from an industrial accident on January 5, 1975. (Ill. Rev. Stat. 1973, ch. 48, par. 138 et seq.) Both claimant and the employer, Lynch Special Services (Lynch), sought review by the Commission which affirmed the award for temporary total incapacity and enlarged the award for loss of use of the left arm to 40%. Respondent employer sought certiorari from the circuit court of Cook County, which confirmed the Commission award. The case is before us pursuant to our Rule 302(a). 58 Ill.2d R. 302(a).

Claimant, who was employed by Lynch as a security guard, had been assigned to a vacant warehouse situated at 2222 South Calumet in Chicago for some three weeks at the time the accident occurred. He worked the 7 a.m. to 3:30 p.m. shift. The guard on duty was ordinarily alone in the warehouse. Clarence Sadler, Lynch's "Captain of the Guard," testified that when security guards were hired, their duties and the company rules were explained to them, including the rule prohibiting guards from leaving their posts during their tours of duty. He stated that "Every building has a different set of rules" and "The rules of the building are posted." He also testified that a copy of the building rules was in the guard's desk drawer although admitting he had not seen it there. Claimant's duties involved making "hours rounds," during which he punched clocks located at various spots in the warehouse. The witness also testified that there was a hot plate and coffee pot at claimant's "station" near the warehouse door, and that claimant was free to drink coffee "all day" at his station if he wanted to but could not leave the building to do so; that guards were not relieved for coffee or lunch breaks, and that they brought their lunches and ate them at their posts at whatever time they chose. The witness stated he had not examined the coffee pot or tested the hot plate; he also testified that he had not personally hired or instructed claimant, who was an "old employee" with six or eight years' experience whose hiring preceded the witness' employment with Lynch.

Claimant testified that he had worked for Lynch about nine years. On the day of the accident he arrived at the warehouse about 6:45 a.m. and left about 7:50 to go to a nearby restaurant for a cup of coffee and a donut, which he said was his breakfast. Six or seven minutes later, while walking back carrying the coffee and donut, he slipped and fell on the icy sidewalk, breaking his left arm. The restaurant, claimant stated, was on Prairie Street about a block and a half from the warehouse. Claimant further testified that on his first day at the warehouse a fellow employee, whose first name was Felix but whose surname was unknown to claimant, and who was a sergeant of the guard, told him what his duties were. When asked "What if you don't bring your lunch," claimant testified that Felix told him, "You can always go to the restaurant and pick up a cup of coffee or roll or sandwich, whatever you want and come straight back." Felix did not testify. Claimant also testified that Captain Sadler had told him he could leave the warehouse to get coffee. This was denied by Sadler, who testified that he had terminated claimant's employment with Lynch because of the violation of the rule against leaving his post. Claimant stated nine months later at the hearing, "I don't know whether I'm fired or not," although he hadn't tried to go back to work when told by his doctor to do so in May. Claimant commenced receiving unemployment compensation payments in July.

It is fundamental in our workmen's compensation law that only injuries "arising out of" and "in the course of" employment are compensable. (Ill. Rev. Stat. 1975, ch. 48, par. 138.2.)

"The phrases `arise out of' and `in the course of' are used conjunctively, thus requiring the existence of both elements to make the Workmen's Compensation Act applicable. The phrase `in the course of' relates to the time, place and circumstances of the injury, while the phrase `arising out of' refers to the requisite causal connection between the injury and the employment." (Fire King Oil Co. v. Industrial Com. (1976), 62 Ill.2d 293, 294.)

Those phrases were discussed at greater length in Chmelik v. Vana (1964), 31 Ill.2d 272, 277-78, cited by both parties, where the court said:

"The words `arising out of' refer to the origin or cause of the accident and presuppose a causal connection between the employment and the accidental injury [citations], and in order for an injury to come within the act it must have had its origin in some risk connected with, or incidental to, the employment, so that there is a causal connection between the employment and the injury. [Citations.] The injury need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence. [Citation.] Ordinarily, an injury does not arise out of the employment unless the danger causing the injury is peculiar to the work and the risk is not one to which the public generally is subjected [citation]; however, if an employee is exposed to a risk common to the general public to a greater degree than other persons by reason of his employment, the accidental injury is said to arise out of his employment. [Citations.]

The words `in the course of the employment,' on the other hand, refer to time, place and circumstances under which the accident occurred [citations], and it is stated generally that an accidental injury is received in the course of the employment when it occurs within the period of employment at a place where the employee may reasonably be in the performance of his duties, and while he is fulfilling those duties or engaged in something incidental thereto. [Citations.]"

While these principles of workmen's compensation law determine the compensability of injuries, there is considerably greater uniformity in their statement than in their application. To the limited extent that generalities are appropriate, it can fairly be said that lunchtime injuries suffered away from the employer's premises by employees with fixed hours and place of employment and unpaid lunches, and who are not engaged in employer errand running or other employment-related activity, are not compensable. Again in a general way, such injuries can be characterized as governed by the rules applicable to injuries suffered while going to or from work. (1 A. Larson, Workmen's Compensation sec. 15.51 (1978).) Conversely, an employee injured while going to or from or during, paid or unpaid lunches on the employer's premises will usually be compensated. (1A A. Larson, Workmen's Compensation sec. 21.21(a) (1979).) Within the broad area between these two extremes are many differing factual situations with varied judicial holdings.

For the purpose of resolving this case, claimant's trip to the restaurant must be viewed as having been made with the employer's consent, and we need not be concerned about deviations from the terms of employment. Claimant testified that sergeant of the guard Felix, his immediate superior, had told him he could get coffee, donuts or anything he wanted from the restaurant and that Captain Sadler told him the same thing. Although the latter denied this conversation, claimant's testimony regarding his conversation with Felix was not denied, and the arbitrator and the Commission apparently accepted it. We cannot say their action in doing so was contrary to the manifest weight of the evidence. County of Cook v. Industrial Com. (1977), 69 Ill.2d 10, 19; Warren v. Industrial Com. (1975), 61 Ill.2d 373, 376; Rysdon Products Co. v. Industrial Com. (1966), 34 Ill.2d 326, 330.

The question we must answer, then, is whether a Commission award to an employee injured in a fall on an icy sidewalk while returning from a permissive trip to a restaurant for coffee and a donut is contrary to the manifest weight of the evidence. In a somewhat similar case, Schwartz v. Industrial Com. (1942), 379 Ill. 139, this court denied compensation. There the deceased employee was manager or assistant manager of a store which on Saturdays remained open until midnight. Decedent was on continuous duty from its opening to closing. No food or place to eat it was provided by the employer, but the employees were at liberty to go out for meals when and where they chose. When decedent went out for a meal he always left word where he could be reached if his presence at the store was required. On the Saturday afternoon in question his fiancee joined him at the store and they proceeded to a nearby restaurant after decedent informed another employee where he would be. After eating his meal decedent returned to the store. He subsequently died of food poisoning resulting from the restaurant food. This court held the death occurred in the course of employment since the contaminated food was ingested at a time when decedent's employment was ...


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