Court of Appeals of Illinois, Second District, Workers' Compensation Commission Division
BARBARA J. DUKICH, Appellant,
THE ILLINOIS WORKERS' COMPENSATION COMMISSION, et al. (Fenton Community High School District 100, Appellee).
from the Circuit Court of Du Page County, Illinois No.
15-MR-358 Honorable Paul M. Fullerton, Judge, Presiding.
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the
court, with opinion. Justices Hoffman, Hudson, Harris, and
Moore concurred in the judgment and opinion.
HOLDRIDGE PRESIDING JUSTICE.
1 The claimant, Barbara J. Dukich, filed an application for
adjustment of claim under the Workers' Compensation Act
(Act) (820 ILCS 305/1 et seq. (West 2012)), seeking
benefits for injuries she allegedly sustained while working
for respondent Fenton Community High School District 100. The
claimant sustained injuries to her face, right shoulder, and
right hip when she fell on wet pavement at the employer's
premises while walking to her car on her way to lunch. After
conducting a hearing, an arbitrator found that the claimant
had sustained accidental injuries arising out of and in the
course of her employment with the employer and awarded the
claimant temporary total disability (TTD) benefits, permanent
partial disability (PPD) benefits for 10 % loss of the person
as a whole, and medical expenses.
2 The employer appealed the arbitrator's decision to the
Illinois Workers' Compensation Commission (Commission),
which reversed the arbitrator's decision. The Commission
found that the claimant's injury "did not result
from an employment-related risk or from a neutral risk to
which [the claimant] was at increased exposure as a result of
her employment." Accordingly, the Commission concluded
that the claimant had failed to prove that her injuries arose
out of her employment with the employer and denied benefits.
3 Commissioner DeVriendt dissented. Commissioner DeVriendt
concluded that the claimant was exposed to a greater risk
than that faced by the general public at the time of her
injury because her accident was the result of a hazardous
condition (wet pavement due to rain) that the claimant
regularly had to traverse in order to access her car, which
was parked in a designated parking space in a lot controlled
by her employer.
4 The claimant then sought judicial review of the
Commission's decision in the circuit court of Cook
County, which confirmed the Commission's ruling.
5 This appeal followed.
7 The claimant worked for the employer as an attendance
clerk. She drove to work on a daily basis and usually drove
home for lunch. The employer provided the claimant a
designated parking space (space No. 48) in the school parking
lot, which was adjacent to the school.
8 At approximately 1 p.m. on February 23, 2012, the claimant
exited the school building to go home for lunch. Because it
was raining hard at the time, the claimant was carrying an
umbrella as well as her purse. After exiting the building,
the claimant began walking toward the parking lot where her
car was parked. As she walked down a handicap ramp between
the building's entrance and the street level, the
claimant lost her footing on the wet ramp and fell face first
onto the pavement of a crosswalk in an adjacent bus run,
striking her head and nose. When asked during the arbitration
hearing what caused her to fall, the claimant responded,
"[t]he rain. The water." During cross-examination,
the claimant acknowledged that, at the time of her fall, she
was wearing open-back, clog-like shoes, which had no strap or
support on the back of them.
9 The claimant's fall was recorded on the employer's
security video, which was introduced into evidence. The video
shows the claimant walking out of the school on the cement
pavement between the school building and the parking lot. The
claimant stumbles or slips and then struggles to regain her
footing before she falls face first onto the pavement. The
video depicts raining conditions and obviously wet pavement.
The arbitrator viewed the video both during and after the
arbitration hearing. The claimant identified herself as the
person falling in the video.
10 Immediately after the incident, the claimant was taken to
the school nurse's office in a wheelchair. She was
complaining of a headache, and the nurse noticed some
bleeding in her mouth. When paramedics from the Bensenville
fire department arrived on the scene, they found the claimant
sitting in a chair in the school nurse's office
complaining that her head hurt. The claimant stated that she
was walking to her car when she slipped on wet pavement and
hurt her head. A golf-ball-sized hematoma was noted on the
claimant's forehead, and a one-inch laceration was noted
on the bridge of her nose.
11 The claimant was taken by ambulance to the emergency room
at Elmhurst Memorial Hospital. Dr. Jeffrey Bohmer, the
examining physician, noted that the claimant had arrived via
ambulance after slipping on a wet surface. The claimant was
diagnosed with a contusion/hematoma on her head and was
referred for a computed tomography (CT) scan of her brain and
facial bones. The brain CT scan was normal, but the
maxillofacial CT scan revealed a nasal bone fracture. The
claimant was taken off work and instructed to follow up with
her primary care physician, Dr. Dorothy Prusek.
12 On February 27, 2012, the claimant treated with Dr.
Prusek. The claimant told Dr. Prusek that she had suffered an
injury when she was walking out of work and fell in the rain.
She complained of severe headaches and cervical spasms with
episodic vertigo. Dr. Prusek diagnosed the claimant with a
nasal bone fracture, severe headaches, and post-concussive
syndrome. She ordered the claimant off work until March 5,
2012. Dr. Prusek referred the claimant to Dr.
Jolanta Milet, a chiropractor, for physical therapy.
13 The claimant began treating with Dr. Milet on February 28,
2012. The claimant complained of severe headaches and pain
and stiffness in her upper neck and back. She also reported
experiencing pain in her right elbow, right shoulder, low
back, and both hips. The claimant continued to receive
therapy from Dr. Milet through May 9, 2012. On that date, Dr.
Milet noted that the claimant's condition was improving.
The claimant did not follow up with Dr. Milet thereafter.
14 On August 6, 2012, the claimant was evaluated by Dr.
Howard Freedburg, an orthopedic specialist. Dr. Freedburg
noted that the claimant had suffered a right shoulder injury
three years earlier, which resolved after eight weeks of
physical therapy. Dr. Freedburg suspected that the claimant
had now suffered a rotator cuff tear. He ordered an MRI of
the claimant's right shoulder, which was performed on
September 6, 2012. The MRI showed probable posterior labral
tearing and interstitial tearing of the supraspinatus and
infraspinatus tendons, as well as moderate acromioclavicular
(AC) degenerative change. Dr. Freedburg diagnosed a right
rotator cuff tear with AC joint degenerative joint disease.
He administered an injection to the claimant's right
shoulder. The claimant reported 50 to 60% improvement
following the first injection. She told Dr. Freedburg that
she did not have time for additional physical therapy because
she was currently working two jobs. On December 27, 2012, the
claimant returned to Dr. Freedburg and reported that her