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Jeffrey Cox v. the Illinois Workers' Compensation Commission

December 20, 2010

JEFFREY COX,
APPELLANT,
v.
THE ILLINOIS WORKERS' COMPENSATION COMMISSION, ET AL., (BERGER EXCAVATING CONTRACTORS), APPELLEE.



The opinion of the court was delivered by: Justice Hoffman

Workers' Compensation Commission Division

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 08 L 51316 HONORABLE LAWRENCE O'GARA, JUDGE PRESIDING.

JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Presiding Justice McCullough and Justices Hudson, Holdridge and Stewart concurred in the judgment and opinion.

OPINION

The claimant, Jeffrey Cox, appeals from an order of the Circuit Court of Cook County which confirmed a decision of the Illinois Workers' Compensation Commission (Commission) denying him benefits under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)), for injuries he allegedly received while in the employ of Berger Excavating Contractors (Berger) on July 27, 2006. For the reasons which follow, we reverse the judgment of the circuit court, vacate the Commission's decision, and remand this matter to the Commission for further proceedings.

The following factual recitation is taken from the evidence presented at the arbitration hearing.

Berger is an excavating and sewer contractor, and at all times relevant to this case, the claimant was employed by Berger as a foreman of a six-man crew that was assigned to work at job sites away from Berger's premises. A truck belonging to Burger was assigned to the claimant in which he carried tools, equipment, and supplies for use at various job sites. Burger's company name is printed on both sides of the truck, and Burger pays for the truck's licensing fees, insurance, and fuel. The claimant has possession of the vehicle 24 hours per day and drives it to and from work. According to Berger's owner, Dale Berger, the truck was to be used for company business and other permitted uses, including to perform personal side jobs with permission.

According to Mr. Berger, employees are expected to carry money to pay for incidental expenses which they incur for the company, and they are reimbursed out of Berger's petty cash fund. Burger does not advance cash to its foremen for the payment of incidental expenses.

On July 27, 2006, the claimant arrived to open Berger's office at 5 a.m. After turning in his daily reports, fueling his truck from Berger's diesel fuel tank, and obtaining supplies for the day's work, he drove to a job site. At approximately 1 p.m., he left work with Mr. Berger's permission, to see his physician. The claimant testified that he left the job site driving the Berger truck and traveled northbound on Route 12 on his way home to pick up his personal vehicle.

On his way home, the claimant made a stop at the Fifth Third Bank on the corner of Route 12 and Hartigan Road. The claimant turned off of Route 12 onto Hartigan Road and entered the bank's parking lot from Hartigan Road. He estimated the distance at several hundred feet. The claimant admitted that, if he had not gone to the bank, he would not have turned off of Route 12 onto Hartigan Road.

The claimant exited his work truck, went into the bank, and made a withdrawal. Although he was unable to remember the exact amount of money which he withdrew, the claimant testified that his main purpose in going to the bank was to get money to buy a cooler to place in his work truck for the storage of cold drinks for his crew. He also stated that he withdrew money to pay the carpenters who were performing work in the kitchen of his residence. According to the claimant, he owed the carpenters $4,300. Records from the Fifth Third Bank established that the claimant withdrew $4,200 on July 27, 2006.

After making the withdrawal, the claimant got back into his work truck and drove out of the bank's parking lot onto eastbound Hartigan Road. As he was in the process of making a left turn onto Route 12, a southbound vehicle on Route 12 traveling at approximately 65 miles per hour disobeyed the red light at Hartigan Road and struck the truck that the claimant was driving. The claimant sustained injuries to his face, left shoulder, left ribs, chest, left buttock, both knees, and his left foot. He was taken to a hospital by ambulance.

Dennis Brady, a construction superintendent employed by Berger, testified that he went to the scene of the claimant's accident. According to Brady, the truck that the claimant had been driving was in the intersection of Hartigan Road and Route 12, approximately in the center of Route 12's southbound lanes.

Later that evening, Brady went to the hospital to see the claimant. Brady testified that he had a conversation with the claimant who told him that he stopped at the bank to ...


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