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06/22/88 Joseph Buchino, v. the Industrial Commission

June 22, 1988

JOSEPH BUCHINO, APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (THE CITY OF CHICAGO, APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, INDUSTRIAL COMMISSION DIVISION

526 N.E.2d 425, 172 Ill. App. 3d 162, 122 Ill. Dec. 166 1988.IL.982

Appeal from the Circuit Court of Cook County; the Hon. Alexander P. White, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. BARRY, P.J., and WOODWARD, McCULLOUGH, and CALVO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

The Industrial Commission (Commission) denied compensation to claimant, Joseph Buchino, for injuries sustained in a car accident while returning from the annual St. Patrick's Day parade. The trial court set aside the decision of the Commission. On appeal, the employer, the City of Chicago (City) maintains that the trial court erred in finding claimant's injury arose out of and in the course of his employment as a matter of law, and also that the trial court erred in reversing the decision of the Commission where that decision was not against the manifest weight of the evidence.

Claimant was an employee of the City department of streets and sanitation as an asphalt cut-out foreman. He was required to supervise a crew of laborers, drivers and engineers, and normally spent the greater part of his day traveling in his personal car. On March 17, 1980, claimant was asked to participate in the City's St. Patrick's Day parade. He agreed and arranged for the participation of two employees under his supervision. Claimant left his car at the 15th Ward sanitation office and rode to the parade with the two other employees, in a car belonging to one of them. Claimant checked in at the beginning of the parade and marched under the streets and sanitation banner. He was paid for eight hours of work on the day of the parade, and other department employees who did not march in the parade were required to work.

After the parade, which ended at approximately 3:30 p.m., claimant returned to the car he had arrived in to return to the 15th Ward office. Claimant's co-workers were not at the car and he began to look for them in nearby bars. Claimant found the two employees between 5 and 5:30 p.m. in a bar and joined them for two or three beers before leaving with them between 6 and 6:30 p.m. Employees of the department are prohibited from drinking alcohol during working hours.

On the ride back to the ward office in the other employee's automobile, the car struck a steel pole at an overpass intersection. Claimant sustained injuries, and he returned to work on March 31, 1980.

An arbitrator found that claimant had failed to prove the accident of March 17, 1980, arose out of and in the course of his employment. The Commission adopted the findings of the arbitrator and affirmed the arbitrator's decision denying compensation. On review, the trial court set aside the decision of the Commission finding that, as a matter of law, claimant was a traveling employee working within the scope of his employment. The City appeals.

In compensation actions, it is the function of the Commission to determine disputed issues of fact and any factual determinations are not to be disturbed unless contrary to the manifest weight of the evidence. (Eagle Sheet Metal Co. v. Industrial Comm'n (1980), 81 Ill. 2d 31, 405 N.E.2d 762.) However, when the facts are undisputed, the issue of whether an injury arises out of and in the course of one's employment becomes a question of law and any decisions of the Commission on questions of law are not binding on courts of review. (Osborn v. Industrial Comm'n (1971), 50 Ill. 2d 150, 277 N.E.2d 833; Stevenson Olds Sales & Service v. Industrial Comm'n (1986), 140 Ill. App. 3d 703, 489 N.E.2d 328.) In the present case, the facts and reasonable inferences to be drawn therefrom are undisputed. The unresolved issues are whether claimant's accident arose out of and in the course of his employment and whether claimant's actions were reasonable or foreseeable. We agree that such determinations under these circumstances present questions of law. Just as it was proper for the trial court to independently determine the pending questions of law, this court too, may review the evidence and independently determine the questions of law presented.

We do not disagree with the trial court's characterization of claimant as a traveling employee. In Wright v. Industrial Comm'n (1975), 62 Ill. 2d 65, 338 N.E.2d 379, the court refused to distinguish between an employee who is continuously traveling and one who travels to a job location only to return when the work is completed. Also, in Hoffman v. Industrial Comm'n (1985), 109 Ill. 2d 194, 486 N.E.2d 889, the claimant, a traveling employee, was similar to claimant herein in that as a director of health services, her position required her to travel to schools throughout two counties to meet with health aides and school nurses. In the present case, claimant used his car in connection with the everyday duties of his job. Furthermore, on the day of the accident, his trip downtown for the parade was incidental to his job with the City.

Even a finding that a claimant is a traveling employee, however, does not exempt him from proving that an injury arose out of and in the course of his employment. (Hoffman v. Industrial Comm'n, 109 Ill. 2d 194, 486 N.E.2d 889; Wright v. Industrial Comm'n, 62 Ill. 2d 65, 338 N.E.2d 379.) The Wright court stated that the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) was not intended to insure employees against all accidental injuries but only "those which arise out of acts which the employee is instructed to perform by his employer; acts which he has a common law or statutory duty to perform while performing duties for his employer . . .; or acts which the employee might be reasonably expected to perform incident to his assigned duties." (Emphasis added.) (Wright, 62 Ill. 2d at 69.) Relying on this principle, the Wright court stated that the test for determining whether an injury to a traveling employee arose out of and in the course of his employment is the reasonableness of the conduct in which he was engaged and whether it might normally be anticipated or foreseen by the employer. Wright, 62 Ill. 2d 65, citing David Wexler & Co. v. Industrial Comm'n (1972), 52 Ill. 2d 506, 288 N.E.2d 420.

Here, the Commission held that claimant's accident did not arise out of and in the course of his employment. After a review of the record, we agree that the decision of the Commission is not against the manifest weight of the evidence. Claimant participated in the St. Patrick's Day parade, which clearly was incidental to his position with the City. The parade ended at approximately 3:30 p.m. Claimant was unable to find his companions to return to the ward office, and began to look for them in nearby bars. Claimant found his companions between 5 and 5:30 p.m. and remained with them in a bar consuming two or three beers until approximately 6:30 p.m. Claimant was aware that alcohol consumption violated the rules of the ...


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