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Orsini v. Industrial Com.

OPINION FILED APRIL 9, 1986.

LEONARD ORSINI, APPELLEE,

v.

THE INDUSTRIAL COMMISSION ET AL. (WILMETTE TEXACO, APPELLANTS).



Appeal from the Circuit Court of Cook County; the Hon. Irwin Cohen, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Respondent, Wilmette Texaco, appeals from a judgment of the circuit court of Cook County reversing a decision by a three-to-two majority of the Industrial Commission denying a claim for workers' compensation benefits by petitioner, Leonard Orsini. The question is whether the trial court erred in finding as a matter of law that petitioner was entitled to benefits "because of the employer's acquiescence in the allowing of Orsini to work on his own vehicle during regular work hours." We affirm.

The essential facts are undisputed. Petitioner was employed by respondent as a mechanic at respondent's service station. When there was no other work to do, petitioner was permitted to work on his own automobile on the premises of the service station during regular work hours. On July 3, 1981, while waiting for parts needed to complete a job, petitioner was working on his own automobile during regular work hours. Peter Van Houton, owner of respondent, was aware that petitioner was doing this. Petitioner was adjusting the carburetor when the automobile lurched forward and pinned petitioner between the automobile and a work bench. This accident caused the injuries which are the subject of petitioner's workers' compensation claim. It was established by expert testimony for respondent that a defect in the transmission of petitioner's automobile caused it to lurch forward.

• 1 Where undisputed facts permit only one inference with respect to an issue, the issue becomes a question of law to be determined by the court. (Union Starch, Division of Miles Laboratories, Inc. v. Industrial Com. (1974), 56 Ill.2d 272, 275.) In the case at bar there is no dispute as to how petitioner was injured. The question is rather whether the undisputed facts entitle petitioner to workers' compensation benefits. Accordingly, the circuit court was correct in characterizing the question presented as one of law.

• 2, 3 When an employee is injured while working on a personal project at his place of employment during regular work hours, his employer may be held liable if the employer had knowledge of or acquiesced in the employee's practice. (Bradway v. Industrial Com. (1984), 124 Ill. App.3d 983, 985, 464 N.E.2d 1139, 1141; see 1A A. Larson, Workmen's Compensation Law sec. 27.31(b) (1982).) In the case at bar, petitioner's employer knew that petitioner was working on his own automobile during working hours when there was no other work to be done, and had acquiesced in this practice by petitioner. The circuit court was therefore correct in its decision that petitioner was entitled to workers' compensation benefits as a matter of law.

The two cases respondent relies upon most heavily as precluding recovery are inapposite. In Fisher Body Division, General Motors Corp. v. Industrial Com. (1968), 40 Ill.2d 514, the injuries to the employee occurred after working hours. In Mazursky v. Industrial Com. (1936), 364 Ill. 445, a laundry truck driver, apparently during working hours, was injured while repairing a tire for his own car in his employer's garage. The employer had acquiesced in employees repairing their own cars in the garage in the past; however, the Mazursky court did not find this to be significant. The continuing validity of this aspect of Mazursky is questionable in light of more recent cases broadening the workers' compensation liability of employers based on acquiescence. (See, e.g., Union Starch, Division of Miles Laboratories, Inc. v. Industrial Com. (1974), 56 Ill.2d 272, 277.) Also, the Mazursky opinion does not reveal whether the repairs previously acquiesced in had been made during or outside of working hours, so it is impossible to ascertain whether the claimant's repairs were performed in the manner his employer had permitted. (See Bradway v. Industrial Com. (1984), 124 Ill. App.3d 983, 986, 464 N.E.2d 1139, 1141-42.) We therefore do not believe Mazursky controls the issue in this case.

Finally, we note that courts in several other States have allowed recovery for injuries incurred by employees working on personal projects at their places of employment during regular work hours where the employer had knowledge of or acquiesced in the practice of their employees. See, e.g., Parker v. Travelers Insurance Co. (1977), 142 Ga. App. 711, 236 S.E.2d 915; Penzara v. Maffia Brothers (1954), 307 N.Y. 15, 119 N.E.2d 570; W.R. Grace & Co. v. Payne (Ky. 1973), 501 S.W.2d 252; Hanchette v. Brezner Tanning Co. (1966), 107 N.H. 236, 221 A.2d 246; Lee v. F.M. Henderson & Associates (1973), 284 N.C. 126, 200 S.E.2d 32; Watkins v. City of Wilmington (1976), 290 N.C. 276, 225 S.E.2d 577; Chrisman v. Farmers Cooperative Associates (1966), 179 Neb. 891, 140 N.W.2d 809; J. & G. Cabinets v. Hennington (1980), 269 Ark. 789, 600 S.W.2d 916.

The foregoing is sufficient to dispose of the issue raised. Certain points made in the dissent, however, merit further comment.

The main thrust of the dissent is that mere acquiescence of the employer is not sufficient to satisfy the requirement that an injury arise out of a claimant's employment to be compensable. In the case at bar, there was more than mere acquiescence by the employer to indicate that the injury arose out of petitioner's employment. First, petitioner had permission from his employer to work on his own car when there were slack periods. Second, he was injured while performing a task which, if performed on a customer's car, would unquestionably have been within the ordinary scope of his employment duties.

Petitioner was a mechanic. He was not injured while repairing his television set or the like but rather while making an adjustment on his automobile. The dissent argues that any expertise developed by petitioner in adjusting the carburetor on such "an antique vehicle" as his 1967 Oldsmobile would not benefit his employer. The description of a 14-year-old automobile as an "antique" is a bit extreme. Moreover, although the Industrial Commission made a similar observation with respect to benefit to the employer, the record does not appear to support the dissent's implicit assumptions that (1) petitioner's employment did not require him to work on older cars and (2) adjustment of the carburetor in the 1967 Oldsmobile differs radically from the adjustments required in newer automobiles. The dissent also makes a point of the defective "junkyard" transmission which caused the accident. It is true petitioner obtained the transmission from an automobile boneyard — a logical place to look for a reasonably priced, used, major part for an old automobile. The fact is, however, irrelevant to whether the injury is compensable. If the injury had occurred while working on a customer's automobile, it would clearly have been compensable, regardless of the condition and origin of the offending transmission, and regardless of the age of the automobile.

The dissent goes through an extensive and illuminating discussion of the Illinois cases following and distinguishing Mazursky v. Industrial Com. (1936), 364 Ill. 445, and in so doing demonstrates the difficulty of reconciling them all. Mazursky and Fisher Body Division, General Motors Corp. v. Industrial Com. (1968), 40 Ill.2d 514, seem the closest to the case at bar; however, in both cases, the claimants were injured performing tasks outside of the ordinary scope of their employment duties. In Mazursky, the claimant was a laundry truck driver injured repairing a tire for his car. In Fisher Body, the claimant was a "fork and tier" truck driver injured by a battery which exploded while he was trying to start his car. In contrast, petitioner here was a mechanic, whose ordinary duties included mechanical work on automobiles, who was injured while doing mechanical work on an automobile. Most of the cases from other jurisdictions, which the dissent ignores, are factually similar to the case at bar in this regard. Parker v. Travelers Insurance Co. (1977), 142 Ga. App. 711, 236 S.E.2d 915 (employee whose duties included being a part-time mechanic injured working on his own car); Penzara v. Maffia Brothers (1954), 307 N.Y. 15, 119 N.E.2d 570 ("handyman" in automobile supply and machine shop injured while making a part for his car in machine shop); Lee v. F.M. Henderson & Associates (1973), 284 N.C. 126, 200 S.E.2d 32 (employee whose duties included working part time in a cabinetmaking shop injured while working in shop on a personal woodworking project); Chrisman v. Farmers Cooperative Association (1966), 179 Neb. 891, 140 N.W.2d 809 (service station manager whose duties included making adjustments and minor repairs on customers' automobiles injured repairing his own automobile); J. & G. Cabinets v. Hennington (1980), 269 Ark. 789, 600 S.W.2d 916 (worker in cabinet shop injured while using shop's equipment to make project for self).) Although the other foreign jurisdiction cases may support a broader rule, making employer acquiescence alone enough to satisfy the arising-out-of-the-employment requirement, it is unnecessary to consider the soundness of that rule in the case at bar where the employer gave his permission to the employee to work on his own car and where the injury occurred while petitioner was performing a task within the ordinary scope of his employment duties.

A final point about the implications of the dissent's position. In the case at bar, where there is no indication that the accident occurred as a result of the employer's negligence, the employer would not be liable under the worker's compensation act or a common law negligence theory. But if the accident had been caused by the negligence of the employer, if for instance the injury had occurred due to a negligently maintained lift malfunctioning while petitioner was changing his car's oil, the situation would be quite different. Presumably the employer, who was in effect providing a fringe benefit to petitioner by permitting him to work on his own automobile during slack times, would be liable to the full extent permitted under the tort system. By giving his employee the benefit of working on the employee's own car, the employer would have unwittingly exposed himself to a liability he could have avoided by being less benevolent. The dissent in distinguishing the case of Union Starch, Division of Miles Laboratories, Inc. v. Industrial Com. (1974), 56 Ill.2d 272, finds significant that "the risk exposure was increased by the condition of the employment premises." If this principle were to apply to the example just recited, the result would be antithetical to the whole premise on which the workers' compensation system is based. Then, if the employer was without fault, the workers' compensation act would not apply and the employer would have no liability whereas if the employer was at fault the act would apply and the employer would obtain the benefits of the recovery limits of the act. Such a "heads the employer wins/tails the employee loses" approach would obviously be unsound.

The judgment of the circuit court of Cook County is ...


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