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05/26/88 Caterpillar Tractor v. the Industrial Commission

May 26, 1988

CATERPILLAR TRACTOR COMPANY, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (THOMAS PRICE, APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

524 N.E.2d 250, 170 Ill. App. 3d 148, 120 Ill. Dec. 485 1988.IL.844

Appeal from the Circuit Court of Peoria County; the Hon. Robert E. Manning, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. BARRY, P.J., and CALVO, J., concur. JUSTICE McNAMARA, Dissenting. McCULLOUGH, J., joins in this Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Claimant, Thomas Price, filed his application for adjustment of claim against his employer, respondent Caterpillar Tractor Company. Claimant alleged that he stepped off a curb after leaving work and sustained injuries to his right side. The arbitrator denied benefits. The Industrial Commission (Commission) reversed the decision of the arbitrator finding that the employee sustained accidental injuries and awarded 12 1/2% loss of the use of the foot plus 21 weeks of temporary total disability. The circuit court of Peoria County confirmed the decision of the Commission. The respondent now appeals.

The sole issue raised on appeal is whether the claimant in this case was exposed to an unusual risk of injury by his employment. We affirm.

Claimant testified at the hearing before the arbitrator as follows. On July 7, 1979, he was employed by the respondent. On that date, he was leaving work at the end of his shift and going to his car in the parking lot, which is located on the respondent's property. The parking lot is maintained by the respondent for the employees to park their vehicles in. Claimant exited the building normally used by employees. Immediately outside the exit is a sidewalk. At the edge of the sidewalk is a curb running parallel to the sidewalk. Running parallel to the curb is a sloped cement incline apparently used for drainage. Running parallel to the incline is a blacktop drive used by persons who come to pick up employees. The incline is between the curb and the blacktop drive. Beyond the drive is the employee parking lot where claimant's car was parked. While proceeding to his car, claimant stepped off the curb, with his right foot landing half on the cement incline and half on the blacktop driveway, twisting his right ankle. The result was a fractured medial malleolus of the claimant's right ankle. Claimant was hospitalized at St. Francis Medical Center from July 10, 1979, to July 12, 1979, where a closed manipulation of the right ankle was performed with the application of a right leg cast. As a result of the injury and subsequent hospitalization, claimant remained off of work for five months. After he had returned to his regular duties, he continued to experience pain and discomfort in connection with his right leg.

In determining that claimant had failed to prove accidental injuries arising out of his employment, the arbitrator stated:

"The arbitrator finds that stepping from the curb and twisting the ankle was not resultant from a risk peculiar to the employment of the Petitioner. The employee was not exposed to a risk of injury greater than that of the general public based on the evidence submitted in this cause."

In reversing the arbitrator's decision, the Commission made the following finding:

"Petitioner was a 38 year old laborer. It is undisputed that on July 7, 1979, Petitioner was leaving the building where he worked and was still on company premises when he stepped off a curb in order to reach a parking lot provided by Respondent for its employees. There was a slight slope for drainage between the curb and the driveway adjacent to the parking lot and Petitioner twisted his right ankle as he stepped down off this curb. Petitioner had to step off the curb to get to the parking lot."

Relying on Chicago Tribune Co. v. Industrial Comm'n (1985), 136 Ill. App. 3d 260, the Commission concluded that the injury sustained by claimant on July 7, 1979, arose out of and in the course of his employment. On review, the circuit court of Peoria County found that the Commission's decision was not against the manifest weight of the evidence and confirmed the decision. This appeal followed.

"The purpose of the Illinois Workers' Compensation Act is to protect the employee against risks and hazards which are peculiar to the nature of the work he is employed to do. [Citation.] An injury is compensable under the Workers' Compensation Act only if it '[arises] out of' and 'in the course of' employment. [Citation.] The phrase 'in the course of' refers to the time, place, and circumstances under which the accident occurred. [Citation.] . . . The words 'arising out of' and 'in the course of' are used conjunctively, and therefore both elements must be ...


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