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05/19/95 METROPOLITAN WATER RECLAMATION DISTRICT

May 19, 1995

METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER CHICAGO F/K/A THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (GERALD MARSHALL, APPELLEE).



Appeal from Circuit Court of Cook County. Honorable John Ward, Judge Presiding.

Presiding Justice McCULLOUGH delivered the opinion of the court: Rakowski, Colwell, Holdridge, and Rarick, JJ., concur.

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

Respondent employer Metropolitan Water Reclamation District of Greater Chicago, f/k/a Metropolitan Sanitary District of Greater Chicago, appeals from an order of the circuit court of Cook County confirming a decision of the Illinois Industrial Commission (Commission) which awarded claimant $266.68 per week for 3 5/7 weeks for temporary total disability (TTD) and $240 per week for 100 weeks for permanent partial disability (PPD) to the extent of 20% of the man as a whole, and directed respondent to hold claimant harmless for any claims and demands from medical benefit providers related to the September 2, 1981, accident. (Ill. Rev. Stat. 1991, ch. 48, pars. 138.8(b), (d)(2), (j).) The only issue is whether the claimant's injury arose out of and in the course of his employment with respondent. We affirm.

The facts are undisputed. Claimant, 48 years of age at the time of this incident, was employed by respondent in the position of electrical operator and was working as a lockmaster on September 2, 1981. On that date, claimant was working in a station house controlling the Chicago River Locks at the mouth of the Chicago River at its entrance to Lake Michigan. This station house is located away from land on a pier surrounded by water.

It was customary for employees to park their vehicles in a designated parking lot. Although respondent did not own the parking lot, it was aware of and condoned the use of the lot for employee parking. Respondent had secured the lot for its employees by the use of a locking chain at the entrance, as well as an intercom system connecting the parking lot with the station house.

The operation of the station house was a "two-man" job requiring the presence of two employees. On September 2, 1981, while awaiting his relief man in the station house, claimant heard commotion which was indiscernible over the intercom connected to the parking lot. Because there had been prior acts of violence and vandalism in the parking lot (causing respondent to install the intercom system), the commotion caused claimant to be concerned for the safety of his relief person. As a result, claimant signed himself out of the station house and walked down the pier to the parking lot. Upon his arrival at the lot, claimant heard a scream for help and observed a woman in an outstretched position leaning over a seawall into Lake Michigan. Claimant left the parking lot, entering upon a third party's adjacent premises, and went to the woman and noticed she was attempting to pull from the lake a person who had apparently fallen into the lake. She cried out to claimant for help to pull the man out of the water. Claimant laid down next to the woman, grabbed the man's arm, and they were both able to pull him out of the water on the third attempt.

Claimant thereafter went to his car and sat there for about 10 minutes, for, in his words, he was "totally exhausted" from the exertion. About 10 minutes into his drive home, claimant experienced pains in his chest. The pains increased once he arrived home, and thereafter claimant's wife called the paramedics. Claimant was subsequently diagnosed as having suffered an acute myocardial infarction, which caused serious and permanent damage to his heart.

Before the Commission, claimant has the burden of proving all the elements of his claim by a preponderance of the evidence. ( Parro v. Industrial Comm'n (1993), 260 Ill. App. 3d 551, 553, 630 N.E.2d 860, 862, 196 Ill. Dec. 695.) On judicial review, where the Commission has had to resolve questions of fact, the Commission's decision will not be set aside unless it is against the manifest weight of the evidence. ( Hansel & Gretel Day Care Center v. Industrial Comm'n (1991), 215 Ill. App. 3d 284, 292-93, 574 N.E.2d 1244, 1250, 158 Ill. Dec. 851.) If, however, the evidence is undisputed, the question may become a question of law, and the appellate court need not defer to the Commission's determination of a question of law. ( Scheffler Greenhouses, Inc. v. Industrial Comm'n (1977), 66 Ill. 2d 361, 366, 362 N.E.2d 325, 327, 5 Ill. Dec. 854; Puttkammer v. Industrial Comm'n (1939), 371 Ill. 497, 501, 21 N.E.2d 575, 577.) However, even though the facts are undisputed, a question of fact remains if conflicting inferences may reasonably be drawn from the undisputed facts. ( Orsini v. Industrial Comm'n (1987), 117 Ill. 2d 38, 44, 509 N.E.2d 1005, 1008, 109 Ill. Dec. 166; Scheffler, 66 Ill. 2d at 366, 362 N.E.2d at 327.) The appropriate standard of review in this case is the manifest weight standard.

This "sudden emergency" case is distinguishable from cases in which the nature of the employee's work requires him to respond to emergency calls and cases in which the employer called the employee out in response to an emergency at work. Nor is this an ordinary parking lot case since (1) the injury did not occur in the parking lot and (2) as a direct result of a hazardous condition on the employer's premises. See Caterpillar Tractor Co. v. Industrial Comm'n (1989), 129 Ill. 2d 52, 62, 541 N.E.2d 665, 669, 133 Ill. Dec. 454.

"In the course of" employment refers to the time, place, and circumstances under which the accident occurred, while "arise out of" employment means there is a causal connection between the accidental injury and some risk incidental to or connected with the activity an employee must do to fulfill her duties. ( Caterpillar, 129 Ill. 2d at 57-58, 541 N.E.2d at 667.)

"Typically, an injury arises out of one's employment if, at the time of the occurrence, the employee was performing acts he was instructed to perform by his employer, acts which he had a common law or statutory duty to perform, or acts which the employee might reasonably be expected to perform incident to his assigned duties. ( Howell Tractor & Equipment Co. v. Industrial Comm'n (1980), 78 Ill. 2d 567, 573[, 403 N.E.2d 215, 217, 38 Ill. Dec. 127].) A risk is incidental to the employment where it belongs to or is connected with what an employee has to do in fulfilling his duties." ( Caterpillar, 129 Ill. 2d at 58, 541 N.E.2d at 667.)

"An injury is not compensable unless it is causally connected to the employment." Caterpillar, 129 Ill. 2d at 62, 541 N.E.2d at 669.

Respondent initially argues that the claimant was not in the course of his employment because (1) he was not on the employer's time and (2) he was ...


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