2016 IL App (1st) 152116WC
FILED: November 10, 2016
NO. 1-15-2116WC
IN THE APPELLATE COURT
OF ILLINOIS
FIRST DISTRICT
WORKERS' COMPENSATION COMMISSION DIVISION
MARK MYTNIK, ) Appeal from
) Circuit Court of
Appellant,
) Cook County
v. ) No. 14L50836
THE ILLINOIS WORKERS' COMPENSATION )
COMMISSION et al. (Ford Motor Company, )
Appellees). ) Honorable
) Carl Anthony Walker,
) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Holdridge and Justices Hoffman, Hudson, and Stewart
concurred in the judgment and opinion.
OPINION
¶1 On June 23, 2009, claimant, Mark Mytnik, filed an application for adjustment of
claim pursuant to the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West
2008)), seeking benefits from the employer, Ford Motor Company, for injury to his back caused
by "[e]xcessive twisting and bending on job." Following a hearing, the arbitrator found claimant
sustained a compensable injury and awarded him benefits under the Act. On review, the Illinois
Workers' Compensation Commission (Commission) reversed the decision of the arbitrator,
finding that claimant failed to establish his injury arose out of and in the course of his
employment. On judicial review, the circuit court confirmed the Commission's decision. This
2016 IL App (1st) 152116WC
appeal followed.
¶2 On appeal, claimant challenges the Commission's finding that he failed to prove
an accident arising out of and in the course of his employment. We reverse the circuit court's
judgment confirming the Commission's decision, reverse the Commission's decision, and
reinstate the decision of the arbitrator.
¶3 I. BACKGROUND
¶4 The following evidence was elicited at the February 25, 2013, arbitration hearing.
¶5 Claimant testified that he had worked for the employer on the assembly line since
October 1994. On May 21, 2009, he was working the "moon buggy" job which involved
installing rear suspensions on vehicles as they moved along the assembly line. The moon buggy
job required the employee to stand on a platform which moved in a circular fashion, step on a
foot pedal to raise the rear suspension up to the vehicle, reach back and grab an articulating arm,
load the articulating arm with two bolts, and then raise the articulating arm up to the vehicle and
press a button on the arm which secured the rear suspension with bolts. According to claimant,
the moon buggy job required him to twist and turn to grab equipment like bolts and brackets, and
to reach behind him to grab the articulating arm. Claimant stated that sometimes the bolts would
fall out of the articulating arm and had to be retrieved quickly to avoid the rotating platform from
running over the bolts and jamming, which would result in the assembly line shutting down.
When a bolt fell, claimant would have to "run down there, bend over, reach and *** pick it up
before the [rotating platform] runs it over." According to claimant, if the assembly line stopped,
"you would usually get reamed out by the supervisor."
¶6 Claimant testified the moon buggy job allowed approximately 48 to 52 seconds to
install the rear suspension on one vehicle before the assembly line moved. He estimated that he
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installed rear suspensions on approximately 62 vehicles per hour. In addition, he had to lift
approximately 20 to 25 boxes of parts per day that weighed "anywhere from 30lbs, a lot heavier
if you're doubling them up, 70 pounds per box." Claimant worked on the assembly line five days
per week, approximately 10 hours per day with two breaks.
¶7 Claimant further testified that he started his workday at 6 a.m. on May 21, 2009.
At approximately 10 a.m., he "noticed [his] back was starting to bother [him]." Claimant
explained that he had sustained a prior back injury at the employer's plant in 2002 or 2003. He
continued to do his job that morning, but later, as he was reaching down to grab a bolt that had
fallen on the assembly line, he felt "a real sharp, almost like needle pains down [his] right side,
[he] knew something *** was just out of the ordinary." Within 10 to 15 minutes of this,
claimant flagged down his supervisor, Zack Bozanic, and informed him that his back was
hurting. After Bozanic found someone to take over claimant's job, he sent claimant to the
employer's medical department. Claimant testified that once at the medical department, he
reported sharp pains down the right side of his leg and that his back was bothering him. As he
was sitting on a table, he noticed his leg started getting "a little numb." The report from the
medical department indicated claimant was seen at 12:17 p.m. and lists the time of onset of pain
as 8:30 a.m. The report noted that claimant was "working on the moon buggy and [his right] leg
stays on the foot paddle and as the moon buggy moves it twists [his] body and now [he] has
[pain] in [his right] hip." In addition, claimant complained of "low back [pain] radiating down
the right hip and back of upper leg." Claimant was diagnosed with a sprain and strain of his
lumbar spine and pelvis. He was given ibuprofen and returned to work. Later that day, claimant
filled out an accident report in which he stated: "moonbuggy move[s] and you have your [right]
leg on foot [pedal,] your [left] leg does not move so your body [turns.] I [felt] it when I was
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picking up bolts off the floor. Twisting of body felt pain in [right] hip and leg."
¶8 Claimant testified that he finished his shift, but when he woke up the next day, he
was "in excruciating pain." He returned to work on May 26, 2009, and reported he was unable to
bend, twist, or stand. Claimant was sent back to the employer's medical department and from
there, he was sent to Ingalls Urgent Care (Urgent Care). Medical reports from Urgent Care
indicated that claimant noted "NO SPECIFIC TRAUMA," but reported "that he was using a foot
pedal repetitively with his right foot and twisting and turning when he began with right lower
back pain that radiated down the posterior lateral aspect of his right thigh to his right foot." A
magnetic resonance imaging (MRI) scan of claimant's lumbar spine was performed that day and
compared with a previous MRI dated December 3, 2003. The new MRI revealed a broad
posterocentral and right paracentral disc herniation at L4-L5 that was not present on the 2003
MRI, and a preexisting broad posterocentral disc herniation at L5-S1.
¶9 Claimant testified that he returned to work the following day and reported directly
to the medical department. According to claimant, he stayed in the medical department for
approximately six hours. At one point, Michelle Gregory, the employer's workers' compensation
administrator spoke with him. Claimant stated that he told her his back "was bothering [him],"
that "there [was] twisting involved, picking up of stock" and when he "pick[ed] up that bolt[, he]
felt that sharp pain." Claimant testified that Gregory returned a few hours later and told him
"there [was] no way [he] could have got hurt on this job," and that he needed to find his own
physician. The report from the medical department stated that upon observation of the moon
buggy job, "[t]here [was] no bending, twisting or heavy lifting involved" and "[t]he case is
denied as occupational after the above observation."
¶ 10 On May 27, 2009, claimant saw his primary care physician, Dr. William Luebbe,
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for his back pain. Dr. Luebbe referred him to Dr. Mark Chang for a surgical consultation.
¶ 11 Claimant first saw Dr. Mark Chang at Midwest SpineCare on June 4, 2009. In a
letter addressed to Dr. Leubbe of the same date, Dr. Chang indicated claimant had reported pain
in his low back radiating down his right leg which began two weeks prior after a work-related
accident "when he was picking up some bolts while working on an assembly line." Dr. Chang
also noted claimant had a history of low back pain in 2003, but had completed physical therapy
and had experienced no further back problems prior to the recent injury. Dr. Chang diagnosed
claimant with an "[a]cute right L5 radiculopathy secondary to a new L4-5 disc herniation causing
significant nerve impingement, [and an] old L5-S1 disc herniation not causing radiculopathy."
He recommended physical therapy and epidural injections for pain.
¶ 12 On June 8, 2009, claimant first saw Dr. Rajive Adlaka for management of his
pain. At that time, Dr. Adlaka noted claimant presented with complaints of low back pain with
right side-dominant radiculopathy which began after he "ben[t] down to pick something up." On
June 9 and June 30, 2009, Dr. Adlaka administered epidural steroid injections.
¶ 13 On June 16, 2009, claimant presented for an initial physical therapy evaluation at
Accelerated Rehabilitation Centers. The office report from that date indicated claimant reported,
"he was lifting and pulling equipment at work [on May 21, 2009, when] he started feeling a
sharp pain in his [right] hip and [right] leg. *** [T]he following weekend, [he] started
experiencing more pain on the quadrates lumborum and his [right] buttock."
¶ 14 On July 20, 2009, claimant saw Dr. Edward Goldberg for a second opinion. On
that date, Dr. Goldberg indicated claimant reported developing right leg radicular pain on May
21, 2009. Dr. Goldberg's records note, "[claimant] was working on the line at Ford Motor
Company. He twisted an arm of a machine and developed acute low back and right leg radicular
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pain. *** [I]t became progressively severe over the weekend. He could not move." Dr.
Goldberg's records were later corrected to state claimant "twisted his waist to reach back for the
arm of a machine he uses to complete his job; then he developed acute low back right leg
radicular pain." Dr. Goldberg reviewed an MRI of claimant's spine and diagnosed a disc
herniation at L4-5 and a small herniation or annular bulging at L5-S1. Dr. Goldberg felt that
claimant's pain was caused by the herniated disc at L4-5 and he recommended a
microdiskectomy at L4-5. He also noted it would be reasonable to perform a hemilaminotomy at
L5-S1. Dr. Goldberg performed these procedures on August 4, 2009. Claimant continued to
treat with Dr. Goldberg postoperatively. On February 1, 2010, Dr. Goldberg found claimant had
reached maximum medical improvement (MMI) and released him to return on March 1, 2010,
with a permanent restriction of lifting no more than 25 pounds.
¶ 15 Claimant returned to work on March 1, 2010. However, by March 2, 2010,
claimant testified he "ended up hurting [him]self again" and, thereafter, he was unable to work
due to pain and an inability to stand, twist, or bend for very long.
¶ 16 On March 8, 2010, claimant saw Dr. Martin Luken, a board-certified neurologist.
At his deposition, Dr. Luken testified that claimant reported having developed right-sided low
back pain and sciatica while at work in May 2009 "as he engaged in his usual routine involving
repetitive bending and light lifting while attending to automobiles passing him on the assembly
line." Dr. Luken testified that claimant continued to have pain in his right buttock and leg which
persisted in spite of postoperative physical therapy. He further noted that claimant had suffered a
work-related low back injury "a decade or more earlier," but that it had responded well to
conservative treatment. Following a physical examination and a review of prior medical records,
Dr. Luken diagnosed claimant with "persisting mechanical back pain and right lumbar
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radiculopathy status post lumbar discectomy and foraminotomy for a work-related disc
herniation." Dr. Luken prescribed pain medication and physical therapy, and suggested a
functional capacity evaluation. Dr. Luken felt claimant could return to work at that time in a
sedentary capacity involving no bending, stooping, twisting, or lifting more than 10 pounds.
¶ 17 Dr. Luken reviewed a video of claimant's job, but based on information provided
by claimant, he did not feel the video accurately portrayed claimant's job duties. For example,
Dr. Luken testified that based on information provided to him by claimant, he understood
claimant's "usual work routine involved a repetitive bending and light lifting [as well as] holding
a pedal down with one foot while reaching behind him to grasp and deal with a power tool of
some sort." Dr. Luken continued, "[claimant] had to keep one foot planted on a pedal while
twisting to retrieve this instrument that deal[s] with each passing car." According to Dr. Luken,
the activities described by claimant were not portrayed in the video. Based on the history
provided by claimant, Dr. Luken opined, "the repetitive mechanical stresses which [claimant's]
work likely brought to bear to his lower back, in my opinion, very plausibly accounted for lower
lumbar injury and either precipitation or exacerbation of the demonstrated disc herniation which
we believe was responsible for [the] symptoms [claimant] reported as having developed in the
course of his work" in May 2009. Dr. Luken last saw claimant on May 17, 2010, at which time
he continued to be of the opinion that claimant could return to light-duty work while waiting for
a functional capacity evaluation.
¶ 18 On June 2, 2010, claimant saw Dr. Jesse Butler, a board-certified orthopedic
surgeon, at the request of the employer. At his deposition, Dr. Butler testified that claimant
provided a history of being an assembly line worker who, "during the course of his occupation,
*** has to pick up stock for assembly and place bolts on an articulating computer arm." In
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addition, "he's required to push a foot pedal during the course of this assembly operation, and
that there's a twisting motion involved in completing this job assignment. He states he injured
his back." Dr. Butler acknowledged that claimant underwent a microdiscetomy surgery in
August 2009 which improved his overall pain. However, Dr. Butler testified that as of June 2,
2010, defendant continued to complain of having low back pain "between a 5 and 6 out of 10"
with minimal activity, as well has numbness in his right calf into the foot, with occasional
buckling of the right leg.
¶ 19 In addition to conducting a physical examination, Dr. Butler also reviewed
claimant's medical records and a video of the moon buggy job. At the time of Dr. Butler's
examination of claimant, claimant had already undergone a microdiscectomy and completed
several months of postoperative physical therapy. Dr. Butler reviewed claimant's May 2009 and
December 2003 MRIs. He noted that the May 2009 MRI revealed a disk herniation at L4-5
which was not present on the December 2003 MRI, as well as a disk herniation at L5-S1 which
was present in the December 2003 MRI. Dr. Butler opined that claimant had reached MMI as he
had undergone surgery, completed "an appropriate amount of therapy," and was able to work
based on "the physical therapist's determination of his functional capacities." According to Dr.
Butler, the degenerative changes noticeable on the MRI "most likely, preceded the accident," but
"it's difficult to know when [the disk herniation] may have occurred." Further, Dr. Butler
testified that people with degenerative changes in the spine may become symptomatic by merely
bending over or lifting something.
¶ 20 Regarding the video, Dr. Butler testified the moon buggy job did not appear to
involve "any twisting movement during this assembly operation, and the pace with which the
bolts were drilled seemed to be at a very comfortable pace for someone doing this job." Dr.
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Butler testified the activities depicted in the video were not sufficient to cause claimant's injury
because "[t]here's really no loading of the spine, *** no occupational exposure, if you will, when
you look at that job video." In his opinion, claimant had reached MMI and could perform the
activities he had viewed in the video.
¶ 21 On cross-examination, Dr. Butler testified it was a possible that a herniated disc
could result from bending over to pick up a bolt by someone with degenerative changes to their
spine.
¶ 22 On June 1, 2011, claimant saw Dr. Andrew Zelby, a board-certified neurosurgeon,
at the request of the employer. In addition to conducting a physical examination of claimant, Dr.
Zelby also reviewed claimant's medical records. Dr. Zelby testified that claimant told him he
was performing his regular job duties on May 21, 2009, and "did not have any specific event or
injury but felt pain in the low back radiating into the right buttock and down the right leg."
Claimant "notice[d] that when he bent to pick up a bolt the pain seemed sharper for a couple of
seconds." Following his examination of claimant, Dr. Zelby was of the opinion that, other than
self-directed stretching and core-strengthening exercise, claimant needed no further treatment
and could return to work in the medium-physical-demand level without any increased risk for
injury.
¶ 23 On June 26, 2011, claimant saw Dr. Michael Treister, an orthopedic surgeon, on
his own accord. At his deposition, Dr. Treister testified that in addition to performing a physical
examination of claimant and obtaining x-rays of his lumbar spine, he also reviewed claimant's
medical records, including those from Dr. Luken, Dr. Chang, Dr. Adlaka, Dr. Luebbe, Dr.
Butler, and Dr. Goldberg, the depositions of Dr. Butler and Dr. Luken, and a report issued by Dr.
Zelby. Dr. Treister stated that at the time of the examination, claimant reported he was injured
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while working on an assembly line. According to Dr. Treister, claimant explained that his job
required him to step on a pedal with one foot while simultaneously reaching back to pull the
articulating arm forward to secure the suspension with two bolts. Claimant told him that
sometimes a bolt would fall and he would have to retrieve it quickly. He also had to pick up
boxes of bolts, sometimes two at a time, weighing 20 to 30 pounds, so that he was frequently
lifting and twisting with 40 to 60 pounds. Dr. Treister continued, claimant told him, "on the day
that he was injured, he began to have sharp low back pains, not while he was standing on the job,
but while he was eating lunch. Pain began in the center of his *** right lower back and radiated
down into his right buttock and then into the right posterior leg." After he reported to the
employer's medical clinic, he returned to his job and his pain increased throughout the day as he
worked, and throughout the following days. Following his examination of claimant, Dr. Treister
diagnosed failed back syndrome and opined that claimant's condition was causally related to a
May 21, 2009, work accident. Dr. Treister based his causation opinion on the fact that claimant
had preexisting degenerative disc disease which put him at risk of herniation, and that he then
had a sudden onset of pain while working. In Dr. Treister's opinion, it did not matter how the
injury came to be, whether from twisting, lifting, or bending, because in any case, the injury was
related to one of his job activities.
¶ 24 Terrance Purdy testified that he had worked for the employer for 19 1/2 years and,
most recently, had been working "general utility" which required him to be able to perform all of
the jobs in the area. Purdy stated that he had worked the moon buggy job on and off for three or
four years, but he had been consistently working the moon buggy job since claimant was injured.
According to Purdy, the job requires twisting, bending, reaching, and lifting between 20 to 30
boxes of bolts per day. He further testified that sometimes a bolt will fall and when it does, it
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must be retrieved before the moving platform runs over it in order to prevent the assembly line
from shutting down. In Purdy's experience, a bolt would fall twice per hour.
¶ 25 Hugh Ferguson III, testified on behalf of the employer. He had worked for the
employer for 44 years, most recently as the government regulation coordinator. Furguson stated
he also takes videos of certain jobs within the assembly plant when requested by the employer.
While he never knows the purpose of the videos, the workers' compensation department shows
him exactly what to record. According to him, the employer asked him to take a video of the
moon buggy job in this case, which he did during normal business hours. Prior to taking the
video, he was not provided with a description of the job, any information pertaining to the
employee depicted on the video, or told how long to record for.
¶ 26 Claimant testified that the video did not accurately depict the moon buggy job.
According to claimant, the line was not going nearly as fast as it should have been and the video
showed the line actually stopping. Further, he stated the person depicted in the video was not
putting nearly the number of parts on the vehicle as claimant did when he performed the job.
(We note that the video was not included in the record.)
¶ 27 Zachary Bozanic, testified last on behalf of the employer. He had worked for the
employer for 19 years, most recently as a senior process coach. In May of 2009, he was a
production supervisor who supervised the moon buggy job. Bozanic described the moon buggy
job as a preferred job because it is less complex and physically demanding than other jobs. He
agreed that if a bolt dropped in the middle of the track, it would stop the moon buggy and stall
the line.
¶ 28 Claimant testified at arbitration that he continued to have pain in his lower back
area, down the hip area, and into the leg. In addition, his right knee sometimes buckled.
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Claimant stated that Dr. Luken had recommended a fusion surgery, but claimant testified he did
not want to undergo another surgery at that time.
¶ 29 On June 13, 2013, the arbitrator issued his decision in the matter. He found
claimant sustained an accident that arose out of and in the course of his employment and that
claimant's current condition of ill-being in his back was causally related to the work accident.
The arbitrator found the employer liable for claimant's medical expenses, and awarded him 79
1/7 weeks temporary total disability (TTD) benefits, and permanent partial disability (PPD)
benefits to the extent of 25% of the person as a whole.
¶ 30 On October 7, 2014, the Commission unanimously reversed the decision of the
arbitrator, finding that claimant failed to prove an injury arising out of and in the course of his
employment. Prior to stating it reasons, the Commission noted as follows:
"So that the record is clear, and there is no mistake as to the
intentions or actions of this Commission, we have considered the
record in its entirety. We have reviewed the facts of the matter,
both from a legal and a medical/legal perspective. We have
considered all of the testimony, exhibits, pleadings and arguments
submitted by [claimant] and the [employer]. And after a complete
review of the record, the Commission finds that [claimant's] varied
and inconsistent histories of the May 21, 2009[,] incident
undermine his claim that he suffered accidental injuries arising out
of and in the course of his employment with [the employer] on
May 21, 2009."
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The Commission then recounted all of the histories claimant had provided to the various medical
providers and noted,
"despite all of the histories provided by [claimant] through this
treatment, [he] testified at hearing that his low back pain with
radiation down the right lower extremity started when he reached
down to retrieve a bolt that had fallen to the floor. [Claimant]
chose to proceed to trial with this history. Accepting [claimant's]
chosen history of the accident, despite the multiple accounts he had
provided, the Commission finds that [claimant] failed to prove that
he suffered [a compensable injury]."
While the Commission acknowledged that claimant's May 2009 MRI revealed a herniation at
L4-L5 that was not present on the December 2003 MRI, it found that claimant's "degenerative
lumbar discs gave way with the simple act of bending forward," demonstrating that his "lumbar
condition was so deteriorated that any activity of normal life was sufficient to cause [his] spine to
break down further." The Commission also found that claimant's act of bending down to retrieve
a bolt did not expose him to a greater risk of injury than the general public.
¶ 31 On June 24, 2014, the circuit court of Cook County confirmed the Commission's
decision.
¶ 32 This appeal followed.
¶ 33 II. ANALYSIS
¶ 34 On appeal, claimant challenges the Commission's finding that he failed to prove
an accident arising out of and in the course of his employment. In contrast, the employer
maintains that the Commission properly denied compensation for three different reasons, each of
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which it claims was sufficient on its own to support the decision.
¶ 35 Initially, the employer contends that the Commission found claimant failed to
establish a work accident based on his inconsistent histories of the incident. However, we must
reject the employer's suggestion that the Commission rejected the claim on this basis. Although
the Commission stated, claimant's "varied and inconsistent histories of the May 21, 2009[,]
incident undermine his claim that he suffered accidental injuries arising out of and in the course
of his employment," it did not deny claimant compensation on that basis. (Emphasis added.)
Rather, the Commission continued its analysis and ultimately denied the claim after finding (1)
claimant "was not engaged in an activity which presented a greater risk of injury to him than to
the general public" and (2) had a preexisting lumbar condition that "was so deteriorated that any
activity of normal life was sufficient to cause [his] spine to break down further." Accordingly,
we focus our analysis on the two bases determined by the Commission to be dispositive.
¶ 36 The purpose of the Act is to protect employees against risks and hazards which
are peculiar to the nature of the work they are employed to do. Orsini v. Industrial Comm'n, 117
Ill. 2d 38, 44, 509 N.E.2d 1005, 1008 (1987). "To obtain compensation under the Act, a
claimant bears the burden of showing, by a preponderance of the evidence, that he has suffered a
disabling injury which arose out of and in the course of his employment." Sisbro, Inc. v.
Industrial Comm'n, 207 Ill. 2d 193, 203, 797 N.E.2d 665, 671 (2003). "Both elements must be
present at the time of the claimant's injury in order to justify compensation." Springfield Urban
League v. Illinois Workers' Compensation Comm'n, 2013 IL App (4th) 120219WC, ¶ 25, 990
N.E.2d 284. An injury occurs "in the course of employment" when it "occur[s] within the time
and space boundaries of the employment." Sisbro, 207 Ill. 2d at 203, 797 N.E.2d at 671. An
injury "arises out of" employment when "the injury had its origin in some risk connected with, or
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incidental to, the employment so as to create a causal connection between the employment and
the accidental injury." Id.
¶ 37 Whether an injury arose out of and in the course of one's employment is generally
a question of fact and the Commission's determination on this issue will not be disturbed unless
it is against the manifest weight of the evidence. Brais v. Illinois Workers' Compensation
Comm'n, 2014 IL App (3d) 120820WC, ¶ 19, 10 N.E.3d 403. "In resolving questions of fact, it
is within the province of the Commission to assess the credibility of witnesses, resolve conflicts
in the evidence, assign weight to be accorded the evidence, and draw reasonable inferences from
the evidence." Id. "The test is whether the evidence is sufficient to support the Commission's
finding, not whether this court or any other tribunal might reach an opposite conclusion." Land
& Lakes Co. v. Industrial Comm'n, 359 Ill. App. 3d 582, 592, 834 N.E.2d 583, 592 (2005). "For
the Commission's decision to be against the manifest weight of the evidence, the record must
disclose that an opposite conclusion clearly was the proper result." Land & Lakes, 359 Ill. App.
3d at 592, 834 N.E.2d at 592.
¶ 38 Because we reject the employer's contention that the Commission found claimant
did not suffer a work accident, we turn our focus to whether claimant's injury "arose out of" his
employment. To determine whether a claimant's injury arose out of his employment, we must
first determine the type of risk to which he was exposed. Baldwin v. Illinois Workers'
Compensation Comm'n, 409 Ill. App. 3d 472, 478, 949 N.E.2d 1151, 1156 (2011). This court
has recognized three categories of risk to which an employee may be exposed: (1) risks that are
distinctly associated with one's employment; (2) neutral risks that have no particular employment
or personal characteristics, such as those that the general public is commonly exposed; and (3)
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risks that are personal to the employee. Springfield Urban League v. Illinois Workers'
Compensation Comm'n, 2013 IL App (4th) 120219WC, ¶ 27, 990 N.E.2d 284.
¶ 39 In analyzing risk, the first step is to determine whether a claimant's injuries arose
out of an employment-related risk. A risk is distinctly associated with employment "if, at the
time of the occurrence, the employee was performing acts he was instructed to perform by his
employer, acts which he had a common law or statutory duty to perform, or acts which the
employee might reasonably be expected to perform incident to his assigned duties." Caterpillar,
129 Ill. 2d at 58, 541 N.E.2d at 667. "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." Id. If a claimant's
injury is determined not to have resulted from an employment-related risk, we must then
consider whether it was a result of a neutral risk or a personal risk. See e.g., Young v. Illinois
Workers' Compensation Comm'n, 2014 IL App (4th) 130392WC, ¶ 23, 13 N.E.3d 1252 ("When
a claimant is injured due to an employment-related risk *** it is unnecessary to perform a
neutral-risk analysis.").
¶ 40 Injuries arising out of neutral risks, which have no particular employment or
personal characteristics, are generally not compensable. Springfield, 2013 IL App (4th)
120219WC, ¶ 27, 990 N.E.2d 284. Neutral risks include stray bullets, dog bites, lunatic attacks,
lighting strikes, bombings, hurricanes, and falls while traversing stairs, public sidewalks and
commercial driveways. Illinois Institute of Technology Research Institute v. Industrial Comm'n,
314 Ill. App. 3d 149, 163, 731 N.E.2d 795, 807 (2000); Village of Villa Park v. Illinois Workers'
Compensation Comm'n, 2013 IL App (2d) 130038WC, ¶ 20, 3 N.E.3d 885; Metropolitan Water
Reclamation District of Greater Chicago v. Illinois Workers' Compensation Comm'n, 407 Ill.
App. 3d 1010, 1014, 944 N.E.2d 800, 804 (2011). However, injuries arising out of neutral risks
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may be compensable if the claimant can show he was exposed to a risk to a greater degree, either
qualitatively or quantitatively, from that of the general public. Metropolitan Water, 407 Ill. App.
3d at 1014, 944 N.E.2d at 804.
¶ 41 Finally, injuries arising out of personal risks, which "include exposure to elements
that cause nonoccupational diseases, personal defects or weakness, and confrontations with
personal enemies" are generally not compensable. Illinois Consolidated Telephone Co. v.
Industrial Comm'n, 314 Ill. App. 3d 347, 353, 732 N.E.2d 49, 54 (2000). An exception to this
general rule of noncompensability concerns injuries caused by idiopathic falls where "work place
conditions significantly contribute[d] to the injury by increasing the risk of falling or the effects
of a fall." Id.
¶ 42 In this case, the Commission found that claimant failed to prove a work accident
because his act of bending down to pick up a bolt did not expose him to a greater risk of injury
than the general public. In other words, the Commission determined claimant's injury was the
result of a noncompensable neutral risk. Implicit in its decision is a determination that claimant's
injury did not result from an employment-related risk. On review, claimant contends that the
Commission's decision on this issue was against the manifest weight of the evidence. According
to claimant, his injury arose out of a risk distinctly associated with his employment and,
therefore, a neutral-risk analysis was unnecessary.
¶ 43 In support of his contention, claimant relies on Young, 2014 IL App (4th)
130392WC, 13 N.E.3d 1252. In Young, the claimant was a parts inspector whose job, in relevant
part, was to examine parts to ensure they were made according to specifications. Id. ¶ 4. On the
day of his work accident, the claimant was inspecting parts contained in a deep, narrow box. Id.
As he was reaching for the last item in the box, he felt a "snap or pop" in his shoulder. Id. The
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Commission denied benefits on the basis " 'that the mere act of reaching down for an item did
not increase [the claimant's] risk of injury beyond what he would experience as a normal activity
of daily living.' " Id. ¶ 14. On review, however, this court found, "[a]lthough the act of
'reaching' is one performed by the general public on a daily basis, the evidence in this case
established the risk to which claimant was exposed was necessary to the performance of his job
duties at the time of his injury." Id. ¶ 28.
¶ 44 Similar to the risk involved in Young, in this case we find that the risk associated
with the act of bending down to pick up a fallen bolt was an employment-related risk.
Specifically, the evidence showed that claimant's job required him to load bolts into an
articulating arm, raise the arm up to the vehicle and press a button on the arm to secure the rear
suspension with the bolts. Witness testimony established that during this process, it was not
uncommon for bolts to fall out of the articulating arm and onto the floor. Claimant, along with
Purdy and Bozanic, testified that if the bolts were not retrieved from the floor before the rotating
platform ran them over, the rotating platform would jam which would then result in the entire
assembly line shutting down. According to claimant, in the event that the assembly line stopped,
he would be subject to discipline.
¶ 45 Here, we find the manifest weight of the evidence establishes claimant's injuries
occurred as a result of a risk distinctly associated with his employment. While the act of
"bending" may be an act performed by the general public on a daily basis, the evidence
established that bolts would regularly fall out of the articulating arm during the assembly
process. When a bolt would fall, claimant had to "run down there, bend over, reach and *** pick
it up before the [rotating platform] r[an] it over." In other words, picking up fallen bolts was an
integral part of claimant's job. Because the risk associated with claimant's act of bending to pick
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up the bolt was a risk distinctly associated with his employment, he established that his injury
"arose out of" his employment. The Commission's failure to find an employment-related risk is
against the manifest weight of the evidence.
¶ 46 We also find that the record does not support the Commission's determination that
claimant's injury was not compensable because his "preexisting back condition was so
deteriorated that his back simply gave out during a basic daily activity." In reaching its decision,
the Commission relied on County of Cook v. Industrial Comm'n, 69 Ill. 2d 10, 370 N.E.2d 520
(1977). The Cook court recognized a limitation to the general rule that "the employee need only
prove that some act or phase of the employment was a causative factor of the resulting injury," to
be compensable under the Act Id. at 17, 370 N.E.2d at 523. Specifically, the court noted, "[t]he
sole limitation to the above general rule is that where it is shown the employee's health has so
deteriorated that any normal daily activity is an overexertion, or where it is shown that the
activity engaged in presented risks no greater than those to which the general public is exposed,
compensation will be denied." Id. at 18, 370 N.E.2d at 523. In this case, the Commission, citing
the above limitation, concluded that claimant's injuries were not compensable because his
"degenerated lumbar discs gave way with the simple act of bending forward" which
"demonstrate[d] that his lumbar condition was so deteriorated that any activity of normal life was
sufficient to cause [his] spine to break down further."
¶ 47 Based on our review of the record, we find the manifest weight of the evidence
shows that claimant's health was not so deteriorated that any normal daily activity would
constitute "an overexertion." Initially, we note that the employer presented no evidence which
established claimant's back condition was so deteriorated that any normal daily activity would
have caused the disc herniation at L4-5. The lack of evidence on this matter is understandable
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because the employer did not advance this theory before the Commission. During arbitration,
the closest evidence provided that would support the Commission's finding on this issue was
during Dr. Butler's deposition when he testified, hypothetically, that a herniated disc could result
from bending over to pick up a bolt in a person whose "spine [was] in the condition that
[claimant's] spine was in." On cross-examination, Dr. Butler testified that a herniated disc could
result under the above described circumstances, however, he stated, "[i]t depends on how he bent
over, how often that happened. I mean, anything is possible, sure. But I don't know. It's hard to
say." Dr. Butler did not specifically testify as to the type or extent of the degenerative changes in
the hypothetical patient's lumbar spine or suggest that claimant's back was similarly degenerated
prior to his work injury in May 2009. On the other hand, the evidence established that while
claimant had suffered a previous back injury in 2003, that injury had been successfully treated
using conservative modalities. Until the time of the injury at issue here, claimant worked on the
assembly line five days per week, 10 hours per day and he had not missed any significant amount
of time from work between his 2003 injury and the May 2009 injury. Further, there is no
evidence in the record that claimant sought treatment for any low back or right hip issues
between his 2003 injury and the May 2009 injury or that he suffered any low back or right hip
discomfort whatsoever in that timeframe.
¶ 48 Although we are reluctant to set aside the Commission's decision on a factual
question, we will not hesitate to do so when, the clearly evident, plain, and indisputable weight
of the evidence compels an opposite conclusion. Potenzo v. Illinois Workers' Compensation
Comm'n, 378 Ill. App. 3d 113, 119, 881 N.E.2d 523, 529 (2007). Here, the Commission's
finding that claimant's lumbar spine had deteriorated to the point of collapse prior to his May
2009 accident is against the manifest weight of the evidence.
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¶ 49 III. CONCLUSION
¶ 50 For the reasons stated, we reverse the circuit court's judgment confirming the
Commission's decision, reverse the Commission's decision, and reinstate the decision of the
arbitrator.
¶ 51 Judgment reversed, and arbitrator's decision reinstated.
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Mytnik v. Illinois Workers' Compensation Comm'n
Court: Appellate Court of Illinois
Date filed: 2016-11-10
Citations: 2016 IL App (1st) 152116WC
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