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Gray Hill, Inc. v. Industrial Com.

OPINION FILED JUNE 11, 1986.

GRAY HILL, INC., APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (AUDREY LIETZ, APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Earl Arkiss, Judge, presiding.

JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Petitioner, Audrey Lietz, filed an application for adjustment of claim under the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) for arm, neck and back injuries which allegedly arose out of and in the course of her employment with respondent, Gray Hill, Inc. After the arbitration hearing, the petitioner was awarded temporary total disability compensation (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(b)) which had accrued intermittently between February 6, 1978, and August 10, 1981, reasonable and necessary medical expenses (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(a)) and $86.13 for a period of 400 weeks due to an 80% permanent disability (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(d)(2)). On review, the Industrial Commission affirmed the decision of the arbitrator. In doing so, the Industrial Commission found that petitioner was temporarily totally disabled for a period of 160 1/7 weeks and found reasonable and necessary medical expenses to be $69,686.90. The circuit court confirmed the decision of the Industrial Commission. The respondent has perfected the instant appeal.

The evidence establishes that beginning in August 1977, the 31-year-old claimant assembled electronic switches for the respondent. On February 6, 1978, at 4:30 p.m., claimant and a number of other employees punched the time clock, walked approximately 20 feet, and exited the building through a doorway which petitioner claims she was instructed to use. Petitioner stated that she was walking on the sidewalk outside the doorway toward the employee parking lot located across the street when she slipped and fell on ice and that her tailbone, head, and left arm came into contact with the surface of the sidewalk. According to claimant, she immediately felt pain in her neck and back. Claimant further asserts that she saw one of respondent's employees shoveling the sidewalk outside the door at 7:30 a.m. that morning. Claimant stated that after her fall, a man came over to assist her but that she refused assistance, walked away under her own power, and drove home. Upon arrival, she informed the supervisor of the accident. Her supervisor told her that the company would arrange for X rays the following morning.

When claimant reported for work the following day, she was sent to LaGrange Community Hospital for X rays. These X rays were negative. On March 28, 1978, claimant was examined by a physician at the insistence of respondent. This physician stated that claimant's complaints were "bizarre" and that she should resume gainful employment. Upon returning to work on April 10, 1978, claimant found that her left hand would not function properly and that her neck and back hurt. Claimant worked sporadically thereafter until she was informed that she must resume full-time employment or be terminated. According to claimant, she resumed full-time employment on May 30, 1978, even though she felt her condition was worsening.

On October 5, 1978, claimant saw her physician and discontinued full-time employment. From October 9 through December 15, 1978, claimant was hospitalized for back trouble; and she subsequently was hospitalized several times for back trouble. Two surgical operations were performed upon claimant during those periods of hospitalization: a lumbar laminectomy and a resection of the left rib to correct Thoracic Outlet Syndrome. In a medical report dated March 13, 1981, a physician who examined claimant at claimant's request concluded that in his opinion the claimant "has a total disability on an industrial basis." Claimant admitted that she had back and gall bladder trouble prior to the injury.

On review before the Industrial Commission, Roger Kulle, an employee of respondent, testified that on February 6, 1978, shortly after 4:30 p.m. he punched out and walked toward the employee parking lot located across the street. While on his way to the parking lot, he saw a woman fall on the street between two parked cars. He assisted this woman to her feet and she walked away without assistance. Mr. Kulle testified that the sidewalk upon which claimant allegedly fell was clear of any ice or snow. He further testified that the door by the time clock was not the required access for factory employees.

Several exhibits relating to the locality of the alleged injury and the nature and extent of claimant's medical treatment were also admitted into evidence on review. Photographs of the location where claimant asserts the injury occurred depict several benches on specially constructed stone and concrete with matching stone and concrete garbage containers, all of which are located between the company building and the street. The company plats and surveys show the removal of concrete walks and driveways with specially constructed sidewalks, crosswalks, carriage walks, driveways, fences, "new planting, landscaping by owner," new trees to be planted, and other items in a "Plan for Parkway Landscaping" plat and other plats. The voluminous medical exhibits detail plaintiff's medical treatment between the date of the injury and the date of the hearing on review. These exhibits show that the claimant's medical treatment expenses during this time were $69,686.90. Claimant testified that this treatment was for the injury she sustained. Respondent's objection to the admission of these records on the ground that the causal relationship between the treatment and injury was not established was denied.

The Industrial Commission refused to allow an alleged eyewitness and an architect to testify before it for respondent because the witness should have been produced during the arbitration hearing. The record shows that the alleged eyewitness had informed the respondent's personnel office of claimant's fall approximately two days after it occurred. The Industrial Commission also refused to allow respondent to submit the results of a recent medical examination of claimant.

On appeal, Gray Hill, the respondent, raises four issues: (1) claimant's injuries are not compensable because they were sustained off the employer's premises; (2) the Industrial Commission improperly disallowed respondent's attempted presentation of additional medical and testimonial evidence on review of the arbitrator's decision; (3) the 80% permanent disability award under the "man as a whole" provision is contrary to the manifest weight of the evidence; and (4) the $69,686.90 medical-expense award is contrary to the manifest weight of the evidence.

It is the province of the Industrial Commission to judge the credibility of witnesses, draw reasonable inferences from the evidence, and determine the weight evidence is to be given. (Steiner v. Industrial Com. (1984), 101 Ill.2d 257, 260, 461 N.E.2d 1363, 1364.) Fact findings of the Industrial Commission will not be set aside unless they are contrary to the manifest weight of the evidence. (Rice v. Industrial Com. (1980), 81 Ill.2d 544, 547, 410 N.E.2d 860, 861.) In the instant case, the Industrial Commission found that: (1) claimant slipped and fell on the sidewalk; (2) the doorway through which claimant exited was the only permissible exit; (3) claimant exited during the rush hour period; (4) the property adjacent to the crosswalk had been improved by the employer; and (5) claimant's route was attendant with the dual hazards of icy conditions and the flurry of rushing employees.

• 1 Although the respondent in the instant case improved and maintained the sidewalk upon which the injuries occurred, the actual ownership of the sidewalk was not definitively established. Thus, we must assume that the injury occurred off the employer's premises. (Bommarito v. Industrial Com. (1980), 82 Ill.2d 191, 194, 412 N.E.2d 548, 549-50.) Injuries which occur off the employer's premises are generally not compensable unless (1) the employee's presence was required in the performance of his or her duties, and (2) the employee is thereby exposed to a risk common to the general public but to a degree greater than other persons. 82 Ill.2d 191, 194, 412 N.E.2d 548, 550.

In the instant case, the Industrial Commission found that the access claimant used was the required access for factory employees. Although there is some evidence in the record that this particular door was not the required access, the evidence establishes that the time clock was located twenty feet from this particular door, that the parking lot for claimant was located across the street from this door, and, as claimant asserts, that she was instructed to use this door by the personnel office. The Industrial Commission's finding that the door through which claimant left work was the required, or at least the only practical access to and from the respondent's factory, is therefore supported by the evidence. Since there is no evidence that claimant deviated from her path to the parking lot, we must assume that her presence at the situs where she contends the instant injury occurred was required by the respondent and incidental to her assigned duties. See Robinson v. Industrial Com. (1983), 96 Ill.2d 87, 449 N.E.2d 106.

• 2 The Industrial Commission found that the flurry of exiting employees, combined with the icy sidewalk conditions, created a risk to which claimant was more susceptible than the general public. Although there was conflicting testimony as to the condition of the sidewalk, the Industrial Commission chose to believe claimant's allegation that the sidewalk was lumpy with ice. Moreover, although there was no testimony as to the exact number of employees leaving work at the same time as claimant, claimant said that after she had fallen, "everybody was leaving work, they just walked around me." Roger Kulle, respondent's witness on review, testified that he also punched out at 4:30 p.m. The photographs of the doorway and adjacent sidewalk establish that the locality where claimant maintains she fell was within a few feet of the doorway. Thus, the Industrial Commission's finding that the claimant was exposed to a hazard to a greater degree than that to which the general public is exposed was not contrary to the manifest weight of the evidence. Consequently, we conclude that claimant's injury is compensable.

• 3 The second issue raised by respondent concerns the Industrial Commission's refusal on review to allow respondent (1) to present the testimony of an alleged eyewitness and an architect and (2) to admit a recent medical examination of claimant. Since the recent medical examination of claimant is related to the issue respondent raises regarding the medical ...


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