Becker v. INDUSTRIAL COM'N

• Decision Date: 18 October 1999
• Docket Number: No. 3-98-0889 WC.,3-98-0889 WC.
• Citation: 719 N.E.2d 792,241 Ill.Dec. 663,308 Ill. App.3d 278
• Parties: John BECKER, d/b/a Becker Brothers. Detasseling, Appellant, v. The INDUSTRIAL COMMISSION et al. (Phyllis Jean Russell, as Mother and Friend of Randall S. Russell, Appellee).
• Court: United States Appellate Court of Illinois

719 N.E.2d 792

308 Ill. App.3d 278

241 Ill.Dec. 663

John BECKER, d/b/a Becker Brothers. Detasseling, Appellant, v. The INDUSTRIAL COMMISSION et al. (Phyllis Jean Russell, as Mother and Friend of Randall S. Russell, Appellee).

No. 3-98-0889 WC.

Appellate Court of Illinois, Third District, Industrial Commission Division.

October 18, 1999.

Brad A. Elward, Karen L. Kendall, Bradford B. Ingram, Craig S. Young, Heyl, Royster, Voelker & Allen, Peoria, for John Becker.

Tym J. Kerr, Kewanee, for Phyllis Jean Russell.

Justice RAKOWSKI delivered the opinion of the court:

Employer John Becker, d/b/a Becker Brothers Detasseling, customarily provided transportation for his employees for his own benefit. In this particular case, employer drove claimant's son Randall S. Russell home from work in a school bus. Instead of pulling onto Randall's driveway, the driver parked on the shoulder of the county highway across the road from the driveway. The bus' left tires remained on the road near the white line. Randall stepped off the bus, walked 5 to 10 feet to his mail box to get the newspaper, and then proceeded to cross the county highway when he was struck by a car coming around the bus. The issue is whether Randall's resulting injuries arose out of and in the course of his employment. Concluding that they do, we affirm the circuit court's confirmation of the Commission's award.

I. Facts

On July 17, 1995, Randall, a 15 year-old, began working for employer as a detasseler.¹ Employer testified that he employed high school students as well as older adults and that it was customary for him to provide transportation for his employees. Accordingly, at approximately 4 p.m., a yellow school bus rented by employer picked Randall up at his house. The bus took Randall to the jobsite, where he worked until approximately 7 p.m.

Kim Becker, another employee, drove Randall home in the school bus. Employer was also on the bus. Upon reaching Randall's residence, Kim positioned the bus on the paved shoulder across the road from the driveway. Kim testified that the left wheels were on the white line. However, Randall testified the bus was half on the shoulder and half on the roadway. Similarly, his father, Chuck Russell, who was also one of the police officers called to the accident scene, testified that almost half the bus encroached onto the roadway.

Randall exited the bus and walked 5 to 10 feet ahead of the bus where the mailbox was located. He retrieved a newspaper and then began to cross the street when a car coming around the bus struck him. Randall testified that, before exiting the bus, he asked for and received Kim's permission to go to his mailbox before crossing the street. Neither Kim nor employer could recall whether Randall made this request.

Randall, through Phyllis Jean Russell, as mother and friend, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1998)), seeking compensation for his injuries. The arbitrator awarded compensation, and the Commission affirmed. The circuit court confirmed the Commission's decision, and employer appeals. We have jurisdiction pursuant to Supreme Court Rule 301. 155 Ill.2d R. 301.

II. Analysis

Employer contends that the injuries Randall suffered when he was hit by a car while crossing the highway did not arise out of or in the course of his employment. Specifically, employer contends that case law does not extend an employer's obligations for workers' compensation to cover situations where the employee has departed the employment premises, both in time and space.

The Commission's determination of whether an injury arose out of and in the course of employment is a question of fact that will not be disturbed on review unless it is against the manifest weight of the evidence. Flynn v. Industrial Comm'n, 302 Ill.App.3d 695, 701, 236 Ill. Dec. 363, 707 N.E.2d 208 (1998). "`The test is not whether this or any other tribunal might reach the opposite conclusion, but whether there was sufficient factual evidence in the record to support the Commission's determination.'" Divittorio v. Industrial Comm'n, 299 Ill.App.3d 662, 671, 234 Ill.Dec. 6, 702 N.E.2d 172 (1998), quoting Beattie v. Industrial Comm'n, 276 Ill.App.3d 446, 450, 212 Ill.Dec. 851, 657 N.E.2d 1196 (1995).

"Arising out of" and "in the course of" employment are two separate and distinct elements. The latter element of "`in the course of refers to the time, place and circumstances under which the accident occurred." Caterpillar Tractor Co. v. Industrial Comm'n, 129 Ill.2d 52, 57, 133 Ill.Dec. 454, 541 N.E.2d 665 (1989); Orsini v. Industrial Comm'n, 117 Ill.2d 38, 44, 109 Ill.Dec. 166, 509 N.E.2d 1005 (1987). "Arising out of," on the other hand, refers to the causal connection between the injury and the employment. See Caterpillar Tractor Co., 129 Ill.2d at 58, 133 Ill.Dec. 454, 541 N.E.2d 665; Orsini, 117 Ill.2d at 45, 109 Ill.Dec. 166, 509 N.E.2d 1005. Whether an injury arises out of the employment may be determined under two different approaches.

First, an injury arises out of the employment where its origin stems from a risk connected with, or incidental to, the employment. Caterpillar Tractor Co., 129 Ill.2d at 58, 133 Ill.Dec. 454, 541 N.E.2d 665. "A risk is incidental to the employment where it belongs to or is connected with what an employee has to do in fulfilling his duties." Caterpillar Tractor Co., 129 Ill.2d at 58, 133 Ill.Dec. 454, 541 N.E.2d 665. Second, an injury arises out of the employment where it is caused by some risk to which the employee is exposed to a greater degree than the general public by virtue of his employment. Orsini, 117 Ill.2d at 45, 109 Ill.Dec. 166, 509 N.E.2d 1005. Under either approach, an injury does not arise out of the employment if it was caused by some hazard to which the employee would have been equally exposed notwithstanding his employment. Orsini, 117 Ill.2d at 45, 109 Ill.Dec. 166, 509 N.E.2d 1005; Hammel v. Industrial Comm'n, 253 Ill.App.3d 900, 902, 193 Ill.Dec. 201, 626 N.E.2d 234 (1993).

Generally, injuries incurred while traveling to or from the work place are not considered to arise out of and in the course of employment. Commonwealth Edison Co. v. Industrial Comm'n, 86 Ill.2d 534, 537, 56 Ill.Dec. 846, 428 N.E.2d 165 (1981); Hindle v. Dillbeck, 68 Ill.2d 309, 318, 12 Ill.Dec. 542, 370 N.E.2d 165 (1977); Stevenson Olds Sales & Service v. Industrial Comm'n, 140 Ill.App.3d 703, 705, 95 Ill. Dec. 107, 489 N.E.2d 328 (1986). "The rationale underlying the rule is that the employee's trip to and from work is the result of the employee's decision about where to live, which is a matter of no concern to the employer." Martinez v. Industrial Comm'n, 242 Ill.App.3d 981, 985, 183 Ill.Dec. 282, 611 N.E.2d 545 (1993). However, an exception to this rule exists where the employer expands the range of employment by providing the employee a means of transportation to and from work for the employer's own benefit. Beattie v. Industrial Comm'n, 276 Ill. App.3d 446, 450, 212 Ill.Dec. 851, 657 N.E.2d 1196 (1995); Stevenson Olds Sales & Service, 140 Ill.App.3d at 705, 95 Ill.Dec. 107, 489 N.E.2d 328. In such situations, the transportation is considered to expand the "in the course of" element while apparently providing a risk incidental to the exigencies of employment that satisfies the "arising out of" element. See Sjostrom v. Sproule, 33 Ill.2d 40, 43-44, 210 N.E.2d 209 (1965).

The instant case presents elements falling within the above exception. Employer testified that he employed high school students as well as other adults in his detasseling operations. It was reasonable for the Commission to infer from this evidence that employer benefited from providing transportation in that he was able to employ persons not yet eligible to drive to the work place. As such, the Commission's decision that the transportation provided by employer expanded Randall's employment is supported by the evidence. See Hindle, 68 Ill.2d at 320,12 Ill.Dec. 542,370 N.E.2d 165 (affirming Commission's decision that employer provided transportation for own benefit where some detasseling employees ranged in age from 14 to 16).

Employer contends, however, that the above exception does not support compensation here. Employer correctly observes that, unlike the typical case where the employee is injured while actually traveling between destinations, Randall was injured after he stepped off the bus at his home. See, e.g., Commonwealth Edison Co., 86 Ill.2d 534, 56 Ill.Dec. 846, 428 N.E.2d 165; Hindle, 68 Ill.2d 309, 12 Ill. Dec. 542, 370 N.E.2d 165; Sjostrom, 33 Ill.2d 40, 210 N.E.2d 209. Although employer's observation is correct, it does not preclude compensation in this case.

Instead of determining whether Randall remained within the course of employment after disembarking from the bus under the exception discussed above, we find analogous and apply the reasoning set forth in those cases where an employee is injured in an area near the employer's premises that is within the employer's control. The most common fact situation of this type is where the employee is injured in employer's parking lot or an immediate area surrounding the work place. See Peel v. Industrial Comm'n, 66 Ill.2d 257, 260, 5 Ill. Dec. 861, 362 N.E.2d 332 (1977); Hiram Walker & Sons, Inc. v. Industrial Comm'n, 41 Ill.2d 429, 431, 244 N.E.2d 179 (1968); Chmelik v. Vana, 31 Ill.2d 272, 280, 201 N.E.2d 434 (1964); Hammel, 253 Ill.App.3d at 903, 193 Ill.Dec. 201, 626 N.E.2d 234; American Electric Cordsets v. Industrial Comm'n, 198 Ill.App.3d 87, 91, 144 Ill.Dec. 464, 555 N.E.2d 823 (1990). Although not every accidental injury sustained on the employer's premises is compensable, compensation is awarded under this line of cases where the claimant proves his injuries arose out of the hazards attendant to those locations and were sustained within a reasonable time before or after work. Peel,...