The opinion of the court was delivered by: Justice Rakowski
Industrial Commission Division
(Annunciation Greek Orthodox Church, Appellee)
Appeal from the Circuit Court of Cook County. Honorable Joanne L. Lanigan, Judge Presiding.
Claimant was hired by a Greek Orthodox church to work at the church's annual picnic. At 11:30 p.m., as the picnic was winding down, claimant went on break and joined picnic guests and other employees who were doing a Greek dance. While dancing, claimant fell and injured his knee. Under the circumstances, did the injury arise out of claimant's employment? Because we find that the risk of injury from dancing was personal to claimant and neither peculiar to his job nor a risk to which he was exposed to a greater degree than the general public, we conclude that the Industrial Commission properly determined that his injury did not arise out of his employment.
Claimant, Michael Karastamatis, was hired by employer, Annunciation Greek Orthodox Church, to work at the church's annual picnic, to be held in the church's parking lot. On Thursday, Friday, and Saturday, claimant put up tents, drove a van, cleaned, and stocked beer and food. On Sunday, July 28, the last day of the picnic, claimant served food and beer. Claimant took a break at 2 p.m. He resumed work and took his next break at 11:30 p.m. At this time, the picnic was winding down and claimant asked John Pronus, the church's vice president and the chairman of the picnic, whether he could join other workers and guests who were dancing. Pronus told claimant "Go ahead." Claimant then joined the other dancers and apparently became the leader. He performed a Greek dance wherein he kicked his leg forward hitting his hand on his foot in front, kicked his leg behind him hitting his hand on his foot behind, and then flipped around. Claimant danced like this for five to six minutes and then slipped and fell backwards to the ground, injuring his knee. Claimant testified that the parking lot had oil spots on it. He offered the testimony of Dexter Allen to corroborate this. Allen stated that he observed claimant fall. He also observed the area in which claimant was dancing and stated it contained paper cups and plates, and soil and grease stains.
Paul Gebhard testified on behalf of employer. He was a volunteer at the picnic and observed claimant leading others in a Greek line dance. He saw claimant's knee give way and claimant fell. After claimant fell, Gebhard examined the area and found no oil or other unusual substances on the ground.
Employer also presented testimony of another volunteer, Dr. Peter Poulos, who spoke to claimant on July 26, two days before the accident. Claimant was limping and stated his leg hurt. Dr. Poulos agreed to look at claimant's knee. Claimant was wearing an Ace bandage and when he removed it, claimant's knee was all banged up. Claimant said that he had banged it up while working as a bouncer and wrestler.
Claimant then offered testimony to show that his knee was not previously injured. First, Mary Mayweather, a nurse's aide who worked for claimant's mother, stated that she observed claimant walking around his mother's house in shorts and that he was not wearing an Ace bandage nor did she see any injuries. Another individual, whom claimant worked out with, testified that just prior to July 26, she observed claimant doing leg squats and presses with 500 to 600 pounds without difficulty. Finally, Mike Ecklund, claimant's neighbor and an individual whom claimant trained for wrestling with, testified that he observed claimant doing exercises, including squats, with 400 pounds, which claimant did without difficulty.
Claimant filed an application for adjustment of claim pursuant to the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 1996)) for the injuries to his left knee. The arbitrator found that claimant failed to prove he sustained an accidental injury arising out of and in the course of his employment. The Industrial Commission (the Commission) did not directly address whether claimant's injury arose in the course of employment, but nevertheless affirmed the arbitrator's finding that claimant's injury did not arise out of his employment. On administrative review, the circuit court of Cook County confirmed.
I. Arising Out Of Employment
In order for claimant to recover, he must demonstrate that his injuries arose out of and in the course of his employment. "In the course of" refers to time, place, and circumstances of the injury. Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 44 (1987). For an injury to arise out of the employment:
"[T]he risk of injury must be a risk peculiar to the work or a risk to which the employee is exposed to a greater degree than the general public by reason of his employment. *** [A]n injury is not compensable if it resulted from a risk personal to the employee rather than ...