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Rodin v. Industrial Commission

September 28, 2000

JACK RODIN, PLAINTIFF-APPELLANT,
v.
THE INDUSTRIAL COMMISSION, ET AL., (P & S ENTERPRISES, APPELLEES ).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 99 L 50512 HONORABLE JOHN A. WARD, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Hoffman

Industrial Commission Division

The claimant, Jack Rodin, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1992)), seeking benefits for injuries he received as a result of an allergic reaction he experienced after eating food at a luncheon he was directed to attend by his employer, P & S Enterprises. Following a hearing, an arbitrator determined that the incident giving rise to the claimant's injuries occurred in the course of his employment. However, the arbitrator also found that: 1) the claimant suffered from a pre- existing condition, 2) his allergic reaction could have happened at any time or anywhere, and 3) the claimant was not exposed to a greater risk because of his employment. Based upon these findings, the arbitrator denied benefits to the claimant.

The claimant sought a review of the arbitrator's decision before the Industrial Commission (Commission). The Commission affirmed and adopted the decision of the arbitrator, and the claimant sought judicial review in the circuit court of Cook County. The circuit court confirmed the Commission's decision, and the claimant filed the instant appeal. For the reasons which follow, we affirm.

The facts necessary for a resolution of this appeal are not in dispute. On January 27, 1993, the claimant was employed by P & S Enterprises (P&S), an electrical contractor, and was working as a foreman on a project at O'Hare International Airport. The claimant testified that, on that date, Pete Segura, the owner of P&S, directed him and P&S's general foreman, Mike Rovner, to attend a luncheon the following day that was being hosted by T-5, the project's general contractor. Segura directed the claimant and Rovner to attend the luncheon as representatives of P&S and to tell the other employees to attend also.

On January 28, 1993, at approximately 11:45 a.m., the claimant and Rovner went to the area where the buffet lunch hosted by T-5 was being served. The claimant selected salad, chicken, potatoes, and a diet soda. After eating the food he had selected, the claimant ate a second salad, which one his co-workers brought to him at his request. After eating, the claimant noticed nothing unusual, and he worked the remainder of the day, leaving for home at approximately 3:30 p.m.

According to the claimant, he felt fine when he arrived home from work at 4:30 p.m. on January 28, 1993. At about 5:00 to 5:30 p.m., he ate a light dinner, consisting of scrambled eggs and baked beans, that his wife prepared. The claimant testified that, about an hour after he finished eating, his forehead "felt like it was on fire" and he had an urge to go to the washroom. When he entered the washroom and looked in the mirror, he saw that he had a rash on his face. The claimant stated that he told his wife that he was "burning up" and that he had "terrific cramps" in his stomach. While in the washroom, the plaintiff passed out, fell, and struck his nose on the bathtub.

The claimant was taken to Humana Hospital by paramedics. X-rays taken at the hospital revealed that he had a fractured nose. According to Humana's records, the claimant suffered an anaphylactic reaction. He was released from the hospital on the following morning.

On January 30, 1993, the claimant began to experience pains in his back. He testified that the pain started in his lower back and went down his left leg. His wife transported him back to Humana Hospital, where he was admitted. While in the hospital, the claimant underwent a number of tests. Significant among these were X-rays of his lumbosacral spine, which revealed moderate degenerative hypertrophic spurring at L3- 4 and L4-5, and an MRI of his lumbosacral spine, which revealed central disc bulge at L4-5 and L5-S1 with some spurring. The claimant was hospitalized for 23 days. According to the claimant, he had never injured his lower back prior to January 28, 1993, and he never had any medical treatment for his back or left leg prior to that date.

The claimant had a history of allergies dating back to when he was seven or eight years old. He had several allergic reactions prior to January 1993 which resulted in his hospitalization. After being released from Humana Hospital in February 1993, the claimant came under the care of Dr. Anne Szpindor-Watson, a physician specializing in the treatment of allergies.

Dr. Watson testified that the claimant is allergic to wheat, shellfish, and preservatives. She stated that the allergy tests she performed on the claimant were negative for eggs, and she did not believe that baked beans could be the cause of the anaphylactic reaction he experienced on January 28, 1993. Dr. Watson opined that the claimant's allergic reaction was caused by preservatives in the food that he ate at the luncheon hosted by T-5. She based her opinion that the luncheon food contained preservatives on her belief that the law required catered food to contain preservatives. She could not, however, state which of the food items that the claimant consumed at the luncheon contained the preservatives that caused his allergic reaction.

An employee's injury is compensable under the Act only if it arises out of and in the course of his or her employment. 820 ILCS 305/2 (West 1998). Both elements must be present at the time of the claimant's injury in order to justify compensation (Illinois Bell Telephone Co. v. Industrial Comm'n, 131 Ill. 2d 478, 483, 546 N.E.2d 603 (1989)), and it is the claimant's burden to establish both elements by a preponderance of the evidence (O'Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253, 403 N.E.2d 221 (1980)).

In this case, the Commission found that the claimant suffered an allergic reaction in the course of his employment, but denied his claim for benefits on the basis that his injuries did not arise out of his employment. The claimant argues that the Commission's determination in this regard is against the manifest weight of the evidence. Although P&S argues in support of the Commission's determination that the claimant's injuries did not arise out of his employment, it also contends that there is no evidence in the record which can support a finding that the claimant sustained injuries in the course of his employment. However, because of our resolution of the issue raised by the claimant, we need not address P&S's latter contention. Even assuming for the sake of analysis that there is sufficient evidence in the record to support a finding that the incident which gave rise to the claimant's injuries occurred in the course of his employment, the Commission's determination that those injuries did not arise out of the claimant's employment is neither against the manifest weight of the evidence nor erroneous as a matter of law.

For an injury to arise out of a claimant's employment, it must have its origin in some risk incidental to the employment. Eagle Discount Supermarket v. Industrial Comm'n, 82 Ill. 2d 331, 338, 412 N.E.2d 492 (1980). The risk of injury must be peculiar to the claimant's work or it must be a risk to which the claimant, by reason of his employment, is exposed to a greater degree than the general public. Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 45, 509 N.E.2d 1005 (1987). When the injury results from a hazard to which the claimant would have been equally exposed apart from his work, the injury cannot be said to arise out of his employment. Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 550, 578 N.E.2d 921 (1991). The Commission's determination that an injury arose out of a claimant's employment involves a ...


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