Dukich v. Ill. Workers' Comp. Comm'n

• Citation: 86 N.E.3d 1161,2017 IL App (2d) 160351 WC
• Decision Date: 19 September 2017
• Docket Number: No. 2-16-0351WC,2-16-0351WC
• Parties: Barbara J. DUKICH, Appellant, v. The ILLINOIS WORKERS' COMPENSATION COMMISSION, et al. (Fenton Community High School District 100, Appellee).
• Court: United States Appellate Court of Illinois

2017 IL App (2d) 160351 WC

86 N.E.3d 1161

Barbara J. DUKICH, Appellant,

v. The ILLINOIS WORKERS' COMPENSATION COMMISSION, et al.(Fenton Community High School District 100, Appellee).

No. 2-16-0351WC

Appellate Court of Illinois, Second District, Workers' Compensation Commission Division.

Opinion filed September 19, 2017

John W. Powers of Cullen, Haskins, Nicholson & Menchetti, P.C., of Chicago, for appellant.

Kelly M. Wiggins, of Brady, Connolly & Masuda, P.C., of Chicago, for appellee.

PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.

¶ 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.

¶ 6 FACTS

¶ 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.¹ 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, 2012.² 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 shoulder was still bothering her. Dr. Freedburg noted that additional therapy, injections, or even surgery might be warranted if her complaints continued. However, the claimant did not subsequently return to Dr. Freedburg or seek any further treatment for her right shoulder.

¶ 15 During the arbitration hearing, the claimant testified that she continued to work for the employer in the same position. She noticed some pain in her right shoulder at the end of the work day and either took Advil or iced it to relieve the pain. On cross-examination, the claimant admitted that she had sustained a work injury to her right shoulder three years before the incident in question.

¶ 16 Walter Glomp, a former groundskeeper for the employer who worked in that capacity for 34 years, testified on behalf of the employer. Mr. Glomp stated that he recalled the claimant's February 23, 2012, work accident. Glomp testified that, during the winter months, his job duties including removing all ice and snow from sidewalks and parking lots on the employer's premises. On the morning of February 23, 2012, Glomp arrived to work at 6 a.m. and checked all 35 entrance doors to the school for ice before the buses arrived with students. Glomp found no ice or snow at that time. He checked again at approximately 11:30 a.m., and there was still no ice. Glomp testified that the temperature that day was cool but above freezing, and it was raining. He noted that the snow had melted. He estimated that the temperature may have been between 35 and 40 degrees Fahrenheit.

¶ 17 Glomp testified that, at approximately 1 p.m., he was directed to go the "Door 2" sidewalk. Door 2 was at the front of the school building. According to Glomp, in order to reach the parking lot after exiting Door 2, a person must first walk down a handicap ramp, cross the bus run (which is a two-lane road), walk along a 15-foot sidewalk, and then enter the parking lot. When he arrived at Door 2 after the claimant's accident, Glomp walked from Door 2 to the parking lot, checking the premises for ice and snow. He found no ice and no snow. Glomp also inspected the sidewalk for defects, seams, or splits in the concrete and found none. However, Glomp noted that it was raining and the sidewalk in front of Door 2 was damp and wet from the rain.

¶ 18 Ruben Angel Perez, another groundskeeper for the employer, also testified. Perez testified that, on February 23, 2012, he was working with Glomp at approximately 1 p.m. when he was directed to inspect Door 2. When he arrived, Perez noticed blood on the sidewalk between the bus run and...