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11/28/89 Thomas R. Brady, v. the Industrial Commission

November 28, 1989

THOMAS R. BRADY, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (LOUIS RUFFOLO & SONS CONSTRUCTION COMPANY, APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

548 N.E.2d 441, 192 Ill. App. 3d 1, 139 Ill. Dec. 56 1989.IL.1831

Appeal from the Circuit Court of Will County; the Hon. Herman S. Haase, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. McNAMARA and McCULLOUGH, JJ., concur. JUSTICE BARRY, Dissenting. WOODWARD, J., joins in the Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The claimant, Thomas Brady, claimed benefits under the Workers' Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) (hereafter referred to as the Act) for injuries received while he was employed by the respondent Louis Ruffolo & Sons Construction Company. Following a hearing pursuant to section 19(b-1) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b-1)) of the Act, the arbitrator denied his claim, finding that he had failed to prove he had sustained accidental injuries arising out of his employment. In a split decision, the Illinois Industrial Commission (hereafter referred to as the Commission) affirmed the decision of the arbitrator, expressly adopting the arbitrator's findings as its own. Thereafter the circuit court of Will County confirmed the decision of the Commission. This appeal followed. The Attorney General of the State of Illinois has filed a brief as amicus curiae in support of the claimant's position.

On appeal the claimant presents three issues for review:

"I. Is the Industrial Commission decision, that the accident did not 'arise out of' Petitioner's employment, contrary to the undisputed facts and all permissible [ sic ] inferences drawn therefrom? II. Is the holding, that the accident and injuries of Thomas R. Brady

did not 'arise out of' his employment, a question of law which may be reconsidered by the Court without deference to the decision of the Industrial Commission? III. Did the Petitioner prove by a preponderance of the evidence that he

sustained accidental injuries on November 18, 1986 'arising out of' and in the course of his employment for the Respondent, Louis Ruffolo & Sons Construction Company?"

The claimant makes no argument specifically addressing the third issue he presents for review.

On November 18, 1986, the claimant was seriously injured when a truck loaded with gravel and weighing 71,220 pounds struck the respondents' building as claimant worked inside. After the truck had been struck by an automobile, its steering wheel "locked" and it crashed into that part of the building where the claimant worked as an "estimator engineer" for the respondent. At the time he was injured, claimant appears to have been working at or near a drafting table. As a consequence of the injury, the claimant's small and large bowel had to be removed.

At the hearing before the arbitrator the claimant testified that the building in which he worked was located on the west side of Route 53 in Bolingbrook, Illinois. His office was located in the northeast corner of the building, the exterior of which was constructed of a corrugated metal about one-eighth of an inch thick. The building served in part as the respondent's garage. The claimant's job was to prepare bids and to maintain "job costs as they progressed." A drafting table 42 inches high was attached to the south wall of his office. When claimant was standing, the table reached, he said, "just below the stomach" at the bottom of his rib cage. His job required him to work at the drafting table. His "last recollection" prior to being injured at about 10:15 a.m. was "working with the set of plans at the drafting table." He next became conscious while lying on his back in the parking lot north of the building.

The claimant described Route 53 as "a designated truck route." He indicated, however, that he had never seen a sign on Route 53 with any such designation. In front of the respondent's building, Route 53 is a four-lane highway divided by a median. Route 53 curves as it passes the respondent's building. Approximately three quarries are located in the area. Gravel trucks traveling south on Route 53 past the claimant's workplace are empty; gravel trucks traveling north at that location are full. Asked to describe the kind of vehicles that traveled in front of the place where he worked, claimant responded, "Well, the early morning and late afternoon commuters, the automobiles and all day long the gravel trucks were quite high frequency. Both loaded and empty."

The claimant called as a witness Louis Ruffolo, Jr., who together with his father employed the claimant. Following the impact the witness had found the claimant lying outside the building. The respondent has been in business at that location since 1971, when the building was erected. At that time Route 53 was a two-lane highway. In approximately 1984 or 1985, Route 53 was widened to four lanes. Upon the widening of the highway, the north-south grade of the road was altered so that there is a 30-degree slope from the highway toward the respondent's building. The elevation of Route 53 is about 2 1/2 feet higher than the entrance to the respondents' building. The witness described traffic at rush hour as "heavy" and during the day as "medium."

The claimant called as another witness Jeffrey Scott Williams, who is by occupation a "model maker" for purposes of litigation. He had prepared a drawing of the area where the incident occurred, admitted as respondent's exhibit No. 1. He testified that the distance between the west edge of Route 53 to the east door of the respondent's building is 47 feet; the distance between the west edge of the northbound lanes of Route 53 and the east edge of the respondent's building is 86 feet. The distance to Route 53 from the only other building shown on the drawing is 88 feet. As one travels north on Route 53 in the vicinity of the respondent's building, Route 53 curves from west to east.

The claimant called as his final witness Drew Peterson, a police officer for the Village of Bolingbrook, who responded to the call pertaining to this incident. He testified that on the day in question it was snowing and roads were icy and "extremely hazardous." As an automobile traveling south on Route 53 was passing the respondent's building, the driver, approaching the incline there, shifted to a lower gear to afford more power to his car. When he accelerated, his vehicle spun out of control, crossed the median, and struck the cab of a northbound "semi Mack Truck," fully loaded and traveling at about 40 miles per hour. The truck crossed the median, both lanes of southbound traffic, and a ditch before striking respondent's building. The witness described the curve of the highway near respondent's building as "gradual, it would not be extreme." There are, he said, no weight limitations for vehicles traveling on Route 53, which he described as "the main artery." Route 53 in that area has "some residences on it but primarily it's a commercial type roadway"; the area in front of the respondent's building is heavily traveled by trucks. The witness was unaware of any signs on Route 53 designating it as a truck route. Without a special permit, however, the loaded truck could not have been driven on the residential streets of the area; given its weight, it would have been permitted to travel on two other streets within a mile of the respondent's building. The car and truck collided about 275 feet south of the respondent's building. The officer found the claimant lying face-up in debris north of the building.

The respondent called as a witness Bruce Nagel, the driver of the truck that struck the respondent's building. At the time of the incident he was transporting a load of gravel from a quarry in Plainfield, Illinois. He testified that the car struck his truck "in the front end and steering axle." After the impact between car and truck, the steering wheel of the truck was unable to be turned at all and was "locked in position," veering slightly to the left.

In his decision the arbitrator found:

"There is no dispute that Petitioner, at the time of the accident, was in the course of his employment with Respondent. Petitioner, as an estimating engineer was at his place of employment in a corrugated metal building; the building being 47 feet from a heavily-traveled roadway, Highway 53.

The central issue is whether this injury to the Petitioner can be said to arise out of the employment; specifically whether the circumstances of Petitioner's employment amounted to subjecting Petitioner to an increased risk beyond that to which the general public is subjected. It is the Arbitrator's Conclusion that the circumstances of Petitioner's employment here ...


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