Franklin v. INDUSTRIAL COM'N, 1-02-2236 WC.

• Citation: 274 Ill.Dec. 760,341 Ill. App.3d 128,791 N.E.2d 1171
• Decision Date: 04 June 2003
• Docket Number: No. 1-02-2236 WC.,1-02-2236 WC.
• Court: United States Appellate Court of Illinois
• Parties: Sandra FRANKLIN, Appellant, v. The INDUSTRIAL COMMISSION (Carson Pirie Scott, Appellee).

791 N.E.2d 1171

341 Ill. App.3d 128

274 Ill.Dec. 760

Sandra FRANKLIN, Appellant, v. The INDUSTRIAL COMMISSION (Carson Pirie Scott, Appellee).

No. 1-02-2236 WC.

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

June 4, 2003.

Rehearing Denied July 3, 2003.

Richard J. Barr, Jr., Lannon, Lannon & Barr, Chicago, for Appellant.

Thomas J. Fitzgibbons, Inman & Fitzgibbons, Chicago, for Appellee.

Justice CALLUM delivered the opinion of the court:

Claimant, Sandra Franklin, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)) for injuries to her left arm. The arbitrator found that claimant's injuries did not arise out of and in the course of her employment with Carson Pirie Scott (employer). The arbitrator concluded that claimant's injuries arose out of a fight between herself and a co-worker, that the altercation was of a personal nature, and that claimant was the aggressor. The Commission denied compensation, finding that the altercation was not of a personal nature, but that both claimant and her co-worker were aggressors. The circuit court confirmed the Commission's decision. Claimant appeals. We reverse and remand.

I. BACKGROUND

Claimant began working for employer at its River Oaks store in Calumet City as a cosmetic artist and counter manager for the Elizabeth Arden cosmetic line in early 2000. Claimant's co-worker, Geniver Mohan, sold a different cosmetic line from a bay directly across from claimant's bay.

Employer's sales policy provided that, if a customer purchased cosmetics at an employee's sales counter, the employee was permitted to go to a different sales counter to sell another cosmetic line's products. However, if a customer did not purchase cosmetics at the employee's counter, then the employee could not follow the customer to a different counter to sell a different product line. The foregoing rules applied to all cosmetics sales staff, and claimant testified that she and Mohan were aware of the rules.

Claimant further testified that she knew Mohan "vaguely" before claimant started working for employer. She also testified that she did not know Mohan before she started working at employer, but would occasionally purchase cosmetics from her. Claimant further testified that both her and Mohan's salaries were based in part on commissions from cosmetics sales.

Claimant stated that she began experiencing problems with Mohan in August 2000, when Mohan sold products from claimant's counter area. Claimant told her manager, Annette Simmons, about the incidents and filed a complaint. Simmons called a meeting. Claimant complained that Mohan did not have sales at her counter to permit her to sell at claimant's counter. Claimant testified that Mohan stated that she had heard complaints about claimant stealing sales.

About four or five days later, claimant testified that she and Mohan were walking past each other and that Mohan hit claimant with her shoulder and dared claimant to push her or to put her hands on her. Claimant testified that she extended her hands to push Mohan away. Claimant further testified that Mohan did not ask her to refrain from putting her hands on her. Claimant felt threatened by the encounter because Mohan was so close to her that claimant could smell Mohan's breath. On August 19, 2000, claimant reported the incident to store security and to the store manager, Terry Turner. However, in her written report, claimant wrote that Mohan asked claimant to refrain from touching her.

Claimant testified that she had about four or five similar physical encounters with Mohan. Claimant submitted her second report on August 23, 2000. Claimant testified that she also submitted reports in September and November of 2000 and that she turned in her November report to security agent Mr. Haskell.

On February 18, 2001, both claimant and Mohan were working for employer. At about 4 p.m., three or four customers were standing by claimant's bay. Claimant testified that she had acknowledged the customers and told them that she would take care of them all as soon as possible. She stated that all of the customers told her that they would wait their turn. Claimant testified that Mohan approached one of claimant's customers, asking if she could assist the customer. Claimant told Mohan that the customers had agreed to wait for her. Mohan then became angry and told the customer that she did not have to wait for claimant. The customer stated that she would wait for claimant. Claimant stated that Mohan became verbally abusive and that the customer asked for a piece of paper and to speak to the manager.

Claimant testified that the customer completed a complaint card and spoke to store manager Barbara Gerrard. Mohan threatened to get even with claimant and said that she was sick of claimant telling her what to do and where she could go on the sales floor. The parties were standing near claimant's bay during this conversation. Claimant stated that Mohan was pointing her finger at claimant and stated that she was going to get claimant and even the score because she was tired of claimant getting her in trouble. Claimant testified that she felt threatened because Mohan was reaching over and pointing at her. Claimant testified that Gerrard told Mohan to return to her bay and thanked claimant for not arguing.

Claimant further testified that, after Gerrard left, Mohan exited her bay and walked over to claimant's bay and started shouting at claimant. Mohan stated that she was going to finish the thing between them and show claimant who she was and what she could do. Mohan was shouting at claimant and pacing back and forth in front of claimant's bay. Claimant stated that she was scared, started crying, and then left the floor.

Claimant returned 20 minutes later with aspirin. She picked up a cup in her bay to obtain water. Mohan walked alone to claimant's bay and began shouting at claimant, stating that claimant was not "going to get away." Claimant walked to another bay and telephoned security. She was told to return to her bay. When she returned, claimant testified that Mohan was at claimant's bay pointing at claimant and shouting at her. Mohan stated that she was "going to finish what she should have finished a long time ago." Claimant stated that Mohan was "not going to let this be over with, so you need do what you do best." Claimant further testified that Mohan's arms were out-stretched. Mohan then walked around a promotional table near the entrance to claimant's bay. Claimant stepped back and Mohan then grabbed claimant's left arm and hair and pulled claimant toward her. Claimant picked up her cup and struck Mohan in the head. A co-worker pulled the two employees apart.

Upon review of a security videotape, claimant testified that it showed Mohan walking to the entrance of claimant's bay with her arms crossed.

Claimant testified that she felt a lot of pain in her arm. She was transported to a hospital. Claimant's doctor subsequently prescribed taking bone and artery from claimant's leg and transplanting it to her left arm, which he had previously treated for cancer. Claimant testified that she had not undergone the surgery because she had no health insurance.

Ellen Edwards, employer's loss prevention manager, testified that claimant never filed any incident or investigative reports with loss prevention in November 2000. However, investigative summaries can be turned in to supervisors. She further stated that an agent named Haskell did not work at the River Oaks store in November 2000.

Courtney Harris, a Lancome beauty advisor for employer, testified as follows. On February 18, 2001, at about 4:40 p.m., Mohan walked from the opening of her counter to the front of claimant's counter, about three to four feet away. At this time, Harris was about six to seven feet away. Harris testified that claimant said to Mohan, in a normal tone: "You don't intimidate me. I'm not afraid of you. If you're going to do something come do it." Harris did not believe that Mohan was walking over to strike claimant. Mohan said that claimant could not tell Mohan what to do and that Mohan could go wherever she wanted to go. Harris did not observe who made the first physical contact.

Barbara Gerrard, acting day manager for employer on February 18, 2001, at employer's River Oaks store, testified that she gave the customer comment card to the customer, and the customer did not return the card to Gerrard. In her written statement about the incident, however, Gerrard made no reference to giving the comment card to the customer.

Claimant testified on rebuttal that she observed the customer completing the comment card and claimant handed it to Gerrard. When Mohan approached her, claimant testified that she did not say to Mohan that she was not afraid of her. She also denied saying to Mohan, to go ahead and do it.

When called to testify, Mohan invoked her fifth amendment (U.S. Const., amend.V) privilege against self-incrimination.

In a decision dated July 13, 2001, the arbitrator denied claimant temporary total disability benefits and found that claimant's injury did not arise out of or in the course of her employment. Based on his review of the security videotape, the arbitrator found that claimant was the aggressor and that she attacked Mohan with a cup as soon as Mohan was near the bay opening. Mohan did not approach claimant in a threatening manner, but had her arms folded when claimant lunged at her. The arbitrator further found that Mohan did not pull claimant's hair or arm before the attack. Claimant was not credible. Claimant's injuries, thus, did not arise out of or in the course of her employment with employer. The dispute arose out of the parties' drive for sales commissions, and there was no causal relationship between claimant's injuries and a work incident. The arbitrator thus denied claimant's request for medical costs,...