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06/10/87 Leonard Orsini, v. the Industrial Commission

June 10, 1987

LEONARD ORSINI, APPELLEE

v.

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



SUPREME COURT OF ILLINOIS

509 N.E.2d 1005, 117 Ill. 2d 38, 109 Ill. Dec. 166 1987.IL.789

Appeal from the Industrial Commission Division of the Appellate Court; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Irwin Cohen, Judge, presiding.

APPELLATE Judges:

CHIEF JUSTICE CLARK delivered the opinion of the court. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK

Leonard Orsini filed a claim under the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) (the Act), for injuries allegedly sustained while he was employed by defendant Wilmette Texaco. An Industrial Commission arbitrator found that as a result of the accidental injuries arising out of and in the course of his employment on July 3, 1981, Orsini lost 45% of the use of his right leg and 50% of the use of his left leg. Accordingly, Orsini was awarded compensation benefits. The Industrial Commission reversed the arbitrator's award, finding that Orsini had failed to prove that he sustained accidental injuries arising out of and in the course of his employment. Orsini appealed to the circuit court of Cook County, which set aside the decision of the Industrial Commission. The Industrial Commission Division of the appellate court, with one Judge Dissenting, affirmed the circuit court (142 Ill. App. 3d 540), and thereafter declared that the instant case involved a substantial question warranting consideration by this court. Wilmette Texaco filed a petition for leave to appeal in this court pursuant to our Rule 315(a) (94 Ill. 2d R. 315(a)), and we granted its petition.

The issue presented in this appeal is whether the injury complained of arose out of and in the course of Orsini's employment.

The material facts in this case are not in dispute. Leonard Orsini was employed as an automobile mechanic at the Wilmette Texaco service station in Wilmette, Illinois. On July 3, 1981, while awaiting the delivery of parts needed for the completion of a brake job he was performing for his employer, Orsini began to adjust the carburetor on his personal automobile, which was parked in one of Wilmette Texaco's service bays. The engine in his car was running. Orsini was standing in front of his car, leaning over to adjust the carburetor, when the car suddenly lurched forward, pinning both of his legs between the car and a work bench, and fracturing both of his femurs. It is these injuries which form the basis of Orsini's workers' compensation claim.

At the hearing before the arbitrator, Orsini testified that his car was a 1967 Oldsmobile 442, a "collector's item" which he used only in the summertime. In the wintertime, the car was stored in a garage. Orsini stated that he had acquired the car secondhand in 1976, and that he had completely rebuilt the car's transmission in the spring of 1981, because its torque converter "blew up." Orsini denied having removed the parking mechanism, but acknowledged his removal of all parts of the transmission which activate the car forward and backward. Orsini stated that he had put four "junkyard" transmissions into the car since 1976.

Orsini further testified that throughout the six-year period he had worked at Wilmette Texaco, his employer routinely permitted him to work on his personal automobile. On many of these occasions, he worked on his car during his normal 8 a.m. to 5 p.m. shift when business was slow or there was no station work to be done. On other occasions he would work on his car after he had completed the regular workday.

Peter Van Houten, the owner and manager of Wilmette Texaco, testified that he knew Orsini was working on his personal automobile on July 3, 1981, and that Orsini had done so on previous occasions with Van Houten's knowledge and permission. He stated that Orsini would work on his own car approximately once a month, 90% of the time after work hours, but occasionally during the workday while waiting for parts or when work was slow.

The record reveals that after the accident the car was taken to North Shore Automotive Transmission, where the transmission was inspected and repaired by William Dominic, the owner of North Shore Transmission. However, prior to Dominic's inspection and repair, the transmission was also inspected by an automotive engineer, Robert Tarosky, who prepared a written report detailing the results of his inspection. Tarosky's written report, together with the pictures of the transmission taken during his inspection, were admitted into evidence. At the hearing before the arbitrator, Tarosky testified that the absence of the retaining pin, a "failsafe" device designed to prevent a car from slipping gears from park to drive, was the cause of the accident. Dominic subsequently corroborated Tarosky's Conclusion as to the cause of the accident. How or why the retaining pin was absent from the transmission was never determined.

The Industrial Commission reversed the arbitrator's award, finding that Orsini's accident did not arise out of his employment. The Commission found that Orsini's injury arose from a risk peculiar to his car and not to his employment as a mechanic with Wilmette Texaco. It further found that no benefit in the form of additional knowledge, experience and skill as a mechanic accrued to Wilmette Texaco as a result of the repair activities Orsini was engaged in at the time of the accident. Lastly, the Commission determined that knowledge and consent of the employer to the activity out of which the harm arises does not convert a personal risk case into an employment case.

Wilmette Texaco challenges Orsini's characterization of the issue presented in this appeal as being one of law. If undisputed facts upon any issue permit more than one reasonable inference to be drawn therefrom, the determination of such issue presents a question of fact, and the Conclusion of the Industrial Commission will not be disturbed on review unless it is against the manifest weight of the evidence. (Eagle Discount Supermarket v. Industrial Com. (1980), 82 Ill. 2d 331, 337; see also Union Starch v. Industrial Com. (1974), 56 Ill. 2d 272, 275.) Since more than one reasonable inference can be drawn from the undisputed facts concerning the issue on appeal, we reject Orsini's argument that this case presents an issue of law to be determined by the reviewing court, and we will not reverse the decision of the Industrial Commission unless we find it to be contrary to the manifest weight of the ...


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