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October 31, 1997


Appeal from Circuit Court of Sangamon County. No. 96MR008. Honorable Donald M. Cadagin, Judge Presiding.

Petition for Rehearing Denied December 16, 1997. Released for Publication December 16, 1997.

The Honorable Justice Rarick delivered the opinion of the court. Holdridge and Colwell, JJ., concur. Rakowski, J., dissenting; McCULLOUGH, P.j., joins.

The opinion of the court was delivered by: Rarick

The Honorable Justice RARICK delivered the opinion of the court:

Claimant, John DeAngelo, sought benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1994)) for injuries he allegedly sustained on April 8, 1994, while in the employ of Springfield School District, employer. The arbitrator found that claimant suffered a work-related accident and awarded temporary total disability and medical benefits. On review, the Industrial Commission (Commission) affirmed the decision of the arbitrator and the circuit court of Sangamon County confirmed the decision of the Commission. Employer appeals, contending the finding of causal connection between claimant's employment and his injury is against the manifest weight of the evidence Employer also questions whether an employee who suffers an injury as a result of an unexplained assault by a stray dog in a residential area presents a compensable claim as a matter of law.

Claimant began working for employer in 1981 as a custodian. As a result of a back injury, claimant transferred to the position of security guard for employer in 1985 and continued in that capacity until the incident on April 8, 1994. As a security guard, claimant was responsible for maintaining security at an elementary school, three mobile classrooms and a service center all sitting on the same property located in a predominantly single-family residential area. His duties included checking doors and windows and looking for unsafe conditions. On April 8 at approximately 4:40 a.m., claimant was in the process of making his rounds when he encountered a dog near one of the mobile classrooms. The dog growled, sniffed claimant and walked away. Claimant continued walking around the classroom when the dog came back, ran up to him and grabbed him by the pant cuff. The dog then backed off and repeated his attack. Claimant kicked the dog as hard as he could with his left foot and immediately felt pain shooting up his left leg into his spine, neck and head and down his right arm. Claimant noticed no bruising or swelling to his other leg as a result of the dog attack but did experience some redness around the ankle, which later disappeared. Claimant testified the dog seized him but did not break the skin. Claimant completed his rounds, left a note for his supervisor and went home. Although claimant returned to work the following Monday, he stated the pain never abated, forcing him to stop working altogether on April 15. Claimant initially sought medical care on April 12 from Dr. F. William Schroeder. Dr. Schroeder took X rays and sent claimant to The Spine Center for evaluation. His diagnosis was chronic low back pain without evidence of nerve root compression. The doctor's records for the April 12 visit contain no reference to any incident involving a dog; later records, however, indicate claimant's injury was sustained on April 8. Claimant was enrolled in a pain management program and participated in physical and occupational therapy.

On June 7, 1994, claimant returned to his family physician, Dr. Bussing, for a physical examination. Dr. Bussing's report indicated claimant's neurological examination was normal for both arms and both legs. He also found no structural impairment to the neck. He then referred claimant to a neurosurgeon, Dr. McIlhany. Claimant saw Dr. McIlhany on June 21, 1994. Dr. McIlhany diagnosed claimant's condition as neck pain of myofascial origin and recommended continued therapy and exercise. At the time of the arbitration hearing, claimant had not yet returned to work and was still undergoing therapy.

Claimant's supervisor testified he met with claimant in late March 1994 to explain to him his position as security guard would be ending soon. He further advised him a custodian position was available to which he could transfer. Claimant told the supervisor he would have to check with his doctor to determine whether or not he could perform custodial work. The supervisor also testified he had never encountered any instances of security guards having problems with dogs at the location claimant watched, although there had been reports of such incidents at other locations. A fellow security guard confirmed the fact he never had encountered any dogs or wild animals while patrolling the same grounds to which claimant had been assigned.

In a workers' compensation proceeding, it is the function of the Commission to determine the credibility of witnesses, to weigh testimony and to decide the weight to be accorded the evidence. Parro v. Industrial Comm'n, 167 Ill. 2d 385, 396, 657 N.E.2d 882, 887, 212 Ill. Dec. 537 (1995); Rambert v. Industrial Comm'n, 133 Ill. App. 3d 895, 902, 477 N.E.2d 1364, 1369, 87 Ill. Dec. 836 (1985). Only the Commission has the responsibility to resolve conflicts in the testimony and to draw reasonable inferences from the evidence. Rambert, 133 Ill. App. 3d at 902, 477 N.E.2d at 1369. A court of review is not to disregard permissible inferences merely because other inferences might also be drawn from the same evidence. Holthaus v. Industrial Comm'n, 127 Ill. App. 3d 732, 736, 469 N.E.2d 237, 239, 82 Ill. Dec. 703 (1984). Given such principles, we must affirm the decision of the Commission as confirmed by the circuit court in this instance.

An injury may be said to arise out of one's employment when, upon consideration of all of the circumstances, there is apparent to the rational mind a causal connection between the condition under which the work is performed and the resulting injury. Holthaus, 127 Ill. App. 3d at 736, 469 N.E.2d at 239. See also Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 548, 578 N.E.2d 921, 923, 161 Ill. Dec. 275 (1991); Math Igler's Casino, Inc. v. Industrial Comm'n, 394 Ill. 330, 334, 68 N.E.2d 773, 775 (1946). In addition, an injury may be said to arise out of the employment if the conditions or nature of the employment increase employee's risk of harm beyond that to which the general public is exposed. Brady, 143 Ill. 2d at 548, 578 N.E.2d at 923; Kemp v. Industrial Comm'n, 264 Ill. App. 3d 1108, 1110, 636 N.E.2d 1237, 1238, 201 Ill. Dec. 805 (1994). Here the Commission concluded claimant was exposed to a risk greater than that of the general public and that a stray dog is a "natural" risk. While it is true the location to which claimant was assigned had not experienced problems with stray dogs before, other school grounds within the district had. More importantly, claimant was at a location when and where the general public would not and should not be located. The incident occurred at 4:40 in the morning on school grounds at a time when claimant was to protect the property against intruders. Claimant's confrontation with the dog occurred while he was in the performance of his watch duties, and his injuries accordingly resulted from protecting both the school grounds and himself. His injuries therefore are causally related to his employment, and, as a result, claimant is entitled to compensation for them. See Holthaus, 127 Ill. App. 3d at 736-37, 469 N.E.2d at 239-40.

For the aforementioned reasons, we affirm the decision of the circuit court of Sangamon County confirming the decision of the Industrial Commission awarding claimant benefits.



RAKOWSKI, J., dissenting; McCULLOUGH, ...

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