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A.e. Staley Mfg. Co. v. Industrial Com.

OPINION FILED FEBRUARY 4, 1986.

A.E. STALEY MANUFACTURING COMPANY, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (LARRY BAGLEY, APPELLEES).



Appeal from the Circuit Court of Macon County; the Hon. Scott B. Diamond, Judge, presiding.

JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Claimant, Larry Bagley, filed a claim under the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) for injury he sustained while employed by A.E. Staley Manufacturing Company. An arbitrator awarded claimant $202.53 per week for four-sevenths of a week for temporary total disability; $202.53 per week for 15 weeks for permanent partial disability for 10% loss of vision in his left eye; and $300.95 for necessary medical expenses. The employer sought review, and the Industrial Commission affirmed the arbitrator's decision. The employer appeals from a judgment of the circuit court of Macon County confirming the Commission's decision.

On December 13, 1979, claimant drove to work and parked in the employee lot which is part of the Staley industrial complex in Decatur. Claimant walked past the lot, through the main gates, across two sets of railroad tracks embedded in white rock, and into the parking lot next to "No. 20 building," where employees punched the time clock each morning. The lot is approximately 100 to 150 feet past the main gate.

The Building 20 parking lot surface is three-fourths gravel and one-fourth concrete. The lot is used by semitrailer trucks to remove industrial trash, raw materials, powdered starch and metal shavings from the buildings. These materials spill out and are scattered across the lot, along with cinders, rock particles, dust and dirt. George Witt, claimant's co-worker, also testified that the lot is located partially under a viaduct which creates a constant artificial wind condition.

Claimant walked across the lot with his brother, Carl Bagley. George Witt also was present. Claimant suddenly grabbed his eye and told the others that he had something in his eye. Claimant went to his employer's first aid department where a nurse washed out his eye. An hour later, when the pain continued, the nurse sent him to Dr. Frank Snell, a local opthalmologist. Dr. Snell found that claimant had a scratch on the corneal epithelium of his left eye.

Claimant was later treated by Dr. James Kammer, an opthalmologist, who in turn referred him to Dr. James M. Gordon, an opthalmologist in St. Louis, Missouri. Both Drs. Kammer and Gordon diagnosed claimant's condition as recurrent corneal erosion syndrome, and stated that the condition resulted from the injury in question. The syndrome manifests itself in claimant by intermittent episodes of pain, burning, tearing and foreign body sensation requiring long term use of medication and medical care.

• 1 Our review is limited to determining whether the Commission's findings, drawing inferences from the undisputed facts, are against the manifest weight of the evidence. (Eagle Discount Supermarket v. Industrial Com. (1980), 82 Ill.2d 331, 412 N.E.2d 492.) The sole issue before us, then, is whether the Commission's conclusion that claimant's injury arose out of and in the course of employment was against the manifest weight of the evidence. An injury must be sustained both "arising out of" and "in the course of" employment. Ill. Rev. Stat. 1983, ch. 48, par. 138.2; R.J. Reynolds Tobacco Co. v. Industrial Com. (1985), 133 Ill. App.3d 322, 478 N.E.2d 901.

• 2 The finding that the injury occurred in the course of employment is not in dispute here, but that fact is not sufficient to establish that it arose out of the employment. The injury must have its origin in some risk connected with or incident to the employment so as to create a causal connection between the employment and the injury. The injury does not arise out of the employment if it results from a hazard that the employee would have been exposed to separate from his employment. Greene v. Industrial Com. (1981), 87 Ill.2d 1, 428 N.E.2d 476.

• 3 All company parking lot injuries are not compensable. The injury must be incidental to the normal use of the lot. (Hiram Walker & Sons, Inc. v. Industrial Com. (1968), 41 Ill.2d 429, 244 N.E.2d 179. Cf. Aaron v. Industrial Com. (1974), 59 Ill.2d 267, 319 N.E.2d 820.) There is nothing in the record here to show that claimant's use of the lot was other than normal. The lot is the normal access route employees use to get to Building 20.

In finding that the injury arose out of the employment, it would be enough to say that the public neither uses the lot nor is exposed to it. (Chmelik v. Vana (1964), 31 Ill.2d 272, 201 N.E.2d 434.) It must be also noted, however, that the regular use of the lot by employees, the company trucks carrying powdered starch, white rock, metal shavings, and other debris which spills onto the lot, and the artificial wind condition combine to create a greater degree of exposure for possible eye injuries for the employees than for the general public. Although all people walking outdoors are subject to the wind blowing foreign particles in their eyes, here the employee was exposed to these extra dangers. See Brooks v. Carter (1981), 102 Ill. App.3d 635, 430 N.E.2d 566 (risk may be common to general public, but employees face same risk to a greater degree).

The employer contends that the record is devoid of testimony regarding the surface and wind conditions on the day in question, and is devoid of testimony regarding exactly what object entered claimant's eye.

The record, however, reveals that Witt was asked to describe the surface conditions "when [Bagley] reached for his eye." Witt stated that the lot was "gravel, white rock, whatever, cinders spilled out from hauling with the trucks * * * and there is a lot of dust and rock, because the semis drag it on there * * *. [I]t is white rock, dirt, cinders, what blows up from the trucks going by." Claimant's brother Carl, when asked what materials were on the ground "that day," stated, "At Staley's there is always a lot of stuff. I mean there is cinders, there is rock. They load out all their trash in trucks, and it blows off on the roads and, you know, there is just a lot of stuff, all different types and all the time about anything you want to find." Again, he was asked if those materials were present "at the point where your brother clutched his eye." He replied, "It is there * * *. You have to see it to believe it, you know. There is really a lot of stuff out there." A third time, he was asked whether that debris was "on the surface of the parking lot at the time you saw your brother clutch his eye." He answered, "Yes, like I say, there is stuff on there all the time." This testimony provided the Commission with evidence from which it could determine the debris-covered condition of the lot on the day claimant was injured.

In regard to the wind conditions on the day in question, Witt testified that "[t]here is always something blowing around that plant because of the building. That is the truth." He also stated that there were "little wind tunnels" and that the wind was constant. Carl Bagley stated that the weather was "about like normal" that day, "but out there you know * * * you always get a lot of wind in the face." This testimony provided the Commission with a sufficient basis for reasonably inferring that the constant wind was present on the day of the injury.

• 4 Although claimant cannot prove a particular foreign particle from the employer's lot flew into his eye, the exact particle causing this type of injury is often not susceptible to proof. The evidence regarding the artificial wind condition and the unique debris found in the middle of the industrial complex, away from areas frequented by the general public, together with the medical evidence of claimant's scratched cornea, was sufficient to create a reasonable inference that claimant was injured by a foreign particle which came from the employer's lot. For these reasons, we find that the ...


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