Orsini v. Industrial Commission

JUSTICE BARRY,

dissenting:

I disagree with the result reached by the majority. Also I believe that Mazursky v. Industrial Com. (1936), 364 Ill. 445, 4 N.E.2d 823, even though a 1936 decision, is viable and controlling. I must observe, however, that the potential benefit to Mazursky’s employer might today be given more consideration.

The majority fails to acknowledge that the overriding two-pronged test for determining compensability is whether the injury arose out of and in the course of the employment. However, certainly within a proper factual setting the evidence of acquiescence by the employer may determine whether the injury arose out of his employment. Even unreasonable or unusual conduct, if known and acquiesced in as a matter of custom or practice, may result in liability.

The cases standing for the latter proposition are decisions affirming the Commission’s determinations on questions of fact regarding the existence of knowledge or acquiescence. The determinations of the Commission control the outcome in each case, and in each case the occurrence was upon employer premises. See Sunnyside Coal Co. v. Industrial Com. (1920), 291 Ill. 523, 126 N.E. 196, where the question was whether exchange of work by employees was acquiesced in by the employer — award granted; Payne v. Industrial Com. (1920), 295 Ill. 388, 129 N.E. 122, where the question was whether horseplay causing death was known to the employer — award denied; Bradway v. Industrial Com. (1984), 124 Ill. App. 3d 983, 464 N.E.2d 1139, where the question was whether employer acquiesced in practice of using company materials to make personal items — award denied.

However, in the instant case we have a question of law, as indicated by the majority opinion, with the facts not in dispute. The same was true in Mazursky, where a laundry truck driver was injured while repairing his personal auto tire on the employer’s premises during work hours. On occasion he would use his auto for late deliveries while enroute home. These practices were acquiesced in by the employer. The supreme court there said that the injury must both arise out of the employment and must occur while in the course of the employment, that ‘ ‘[i]t is not alone sufficient that the injury was received by the employee in the course of his employment but it must arise while he was acting within the duties of his employment or in some act incidental thereto.” (Emphasis added.) (Mazursky v. Industrial Com. (1936), 364 Ill. 445, 448, 4 N.E.2d 823, 825.) The court indicated that to justify an award of compensation the injury must come from a hazard to which the employee would not have been equally exposed apart from his employment and that “[ejven though the accident happens on the employer’s premises, yet if it occurs while the employee is doing something there for his own personal benefit it does not arise out of his employment.” (Mazursky v. Industrial Com. (1936), 364 Ill. 445, 449, 4 N.E.2d 823, 825-26, citing Industrial Com. v. Enyeart (1927), 81 Col. 521, 256 P. 314; Board of Education v. Industrial Com. (1926), 321 Ill. 23; Angerstein on Workmen’s Compensation sec. 117, at 255 (1930).) The court also found that Mazursky was performing an act of a personal nature for his own convenience, not within the sphere or scope of his employment, an act outside a risk connected with his employment. The court confirmed the Commission’s denial and found that the award of compensation was not warranted, thus reversing the circuit court.

Through the decades Mazursky has been often cited with approval, and occasionally distinguished. In City of Chicago v. Industrial Com. (1941), 376 Ill. 207, 210, 33 N.E.2d 428, 429, where the uncontroverted facts were insufficient to find a causal connection between an election clerk’s authorized duties and his death, the supreme court reversed an award indicating ”[a]n injury may be said to arise out of the employment when, upon consideration of all the circumstances, there is apparent to the rational mind a causal connection between the injury and a danger peculiar to the work, and it does not result from a hazard to which the employee would have been equally exposed apart from his employment. [Citations.]” In Farley v. Industrial Com. (1941), 378 Ill. 234, 37 N.E.2d 787, the facts were not in controversy. The question was whether the injury which arose out of a slip and fall accident on the ice on a public way when the employee was enroute to work with the employer’s cash receipts from the prior day’s business activity, as ordered by the employer, was compensable. The supreme court reversed the award, approving the findings in prior cases, and said the injury must arise while acting within the duties of employment — which impose a greater danger upon the employee than upon other persons using the streets. (Obviously, as in Mazursky, benefit to the employer was given little consideration.)

In a 1947 common law setting case the First District Appellate Court described Mazursky as an injury arising out of an act of a personal nature and not compensable even though occurring on the employer’s premises. (Lyons v. Michigan Boulevard Building Co. (1947), 331 Ill. App. 482, 73 N.E.2d 776.) At the same time, that court recognized that the Workmen’s Compensation Act should be liberally interpreted to attempt to bring an employee’s claim within the Act. The court quoted with approval from Illinois Country Club, Inc. v. Industrial Com. (1944), 387 Ill. 484, 488, 56 N.E.2d 786, 788: “The mere fact that an employee was present at the place of injury because of his employment will not suffice unless the injury itself is a result of some risk of the employment. [Citations.] [A]n injury *** which comes from a hazard to which the employee would have been equally exposed apart from the employment, does not arise out of the employment, as the causative danger must be peculiar to the work and not common to the neighborhood and the public.”

In Fisher Body Division, General Motors Corp. v. Industrial Com. (1968), 40 Ill. 2d 514, 240 N.E.2d 694, the petitioner, an employee of the Fisher Body Division of the General Motors Company, at 1:30 a.m. after having worked an overtime shift, tried unsuccessfully to start his car in the company parking lot. The temperature was below zero. The company made available a maintenance truck and booster battery for starting such employees’ stalled cars and on this occasion, in addition, three men were furnished to help. One of the men connected the cables and when his hands got cold the claimant took over. His auto battery blew up in his face. Obviously there was more than mere acquiescence on the part of the employer; there was active approval with men and equipment supplied. The supreme court held that it was a risk personal to the employee and not compensable, that the risk was not one connected with what the workman had to do in fulfilling his duties, and that the accident did not result from some risk incidental to his employment. Citing Mazursky v. Industrial Com. (1936), 364 Ill. 445, 4 N.E.2d 823, the court said:

“[Wjorking on one’s personal automobile is not ordinarily related or incidental to the duties for which he is employed, even though the work may be done on the employer's premises. [Citations.]
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[N]either the duties of his employment nor the fact that his car was in the parking lot significantly increased the danger of injury from working on his own car, a strictly personal activity.
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The purpose of the Workmen’s Compensation Act is to protect the employee against risks and hazards which are peculiar to the nature of the work he is employed to do. [Citation.] Injuries resulting from risks personal to the employee are not compensable.” (Fisher Body Division, General Motors Corp. v. Industrial Com. (1968), 40 Ill. 2d 514, 516-17, 240 N.E.2d 694, 695-96.)

Observing the question to be one of law because the facts were not in dispute, the court reversed and ordered the award set aside.

In Material Service Corp., Division of General Dynamics v. Industrial Com. (1973), 53 Ill. 2d 429, 212 N.E.2d 367, the deceased employee, Mrs. Hedrick, as authorized to do during meal break time, went to the employer parking lot on a bitterly cold night, and it appears drove her car into an adjoining canal, and drowned. Justice Underwood, distinguishing risks and circumstances, stated, “Mrs. Hedrick was not engaged in the kind of strictly personal activity giving rise to the type of risks personal to the employee involved in the Mazursky and Fisher Body cases,” (53 Ill. 2d 429, 436, 292 N.E.2d 367, 371) and affirmed the trial court order awarding benefits. Justice Underwood described Mazursky and Fisher as cases where the employees undertook to repair their own automobiles, assuming risks that were strictly personal, unrelated to the duties of employment or the condition of the employer’s premises.

In 1973, Justice Eberspacher for the Fifth District Appellate Court, in a common law setting, Martin v. Kralis Poultry Co. (1973), 12 Ill. App. 3d 453, 297 N.E.2d 610, cited Mazursky v. Industrial Com. (1936), 364 Ill. 445, 4 N.E.2d 823, with approval and said, “[I]f it occurs while the employee is doing something there for his own personal benefit, it does not arise out of his employment.” (12 Ill. App. 3d 453, 461-62, 297 N.E.2d 610, 616.) Thereafter in 1973, in Moss Equipment v. Industrial Com. (1973), 55 Ill. 2d 261, 302 N.E.2d 271, Justice Underwood for the court refused to reject the Commission’s resolution of conflicting facts, thereby finding Mazursky and Fisher distinguishable.

Union Starch, Division of Miles Laboratories, Inc. v. Industrial Com. (1974), 56 Ill. 2d 272, 307 N.E.2d 118, was decided by our supreme court in 1974. The “material” facts were not disputed. The claimant was working the 3 p.m. to 11 p.m. shift in a refinery building, and there was no set time for the evening meal or a break period. About 5:30 p.m. the claimant got himself a soft drink and exited the building to an adjoining roof area “to get fresh air,” as appeared was the practice. Customarily, it was some other roof areas where the employees ventured to get fresh air. There were no warning signs, and the claimant did not know that the roofs were differently constructed. The roof in question gave way, and he was injured by his fall to the ground. The court decided that the Commission could reasonably infer that the condition of the premises (roof) was a causative factor and that the employment did increase the risk exposure as in Material Service, thereby satisfying the “arising out” element. As to the “in the course of” element, the court decided that since there was no general prohibition against seeking refuge on the roofs for fresh air, an act of reasonable personal comfort, the element was satisfied. The court refused to set aside the award. I would distinguish this case on the ground that the court found that the claimant was doing something necessary to satisfy his employment duties; that the risk exposure was increased by the condition of the employment premises. Therefore, a causative connection with the injury properly was found for an award.

Though it appears that the benefit, or lack of benefit, to the employer may not be determinative, whether there is an identifiable risk from the employment that contributes to the injury is most significant. In the instant case, certainly there was no “greater danger” circumstance presented by the employment premises that contributed to the injury. Obviously, in fact, just the opposite circumstances are here the case. Orsini was merely allowed to do something solely for his own benefit. The testimony was that he had nothing to do for his employer, that he had overhauled the “junkyard” transmission on his car about three months earlier, that the transmission was defective because of a missing retaining pin, and that the absence of the retaining pin was the reason for the lurching of the automobile, causing his injury. Also, the automobile was about 14 years old, a 1967 Oldsmobile 442. It does not appear that to develop expertise in the repair of such an antique vehicle would be of even slight benefit to the operation of the auto repair business of this respondent employer.

I cannot agree that mere acquiescence without an identifiable risk of employment or a greater danger as an incident of the employment should mandate compensability when the act performed is for purely personal purposes. • Though the injury here occurred during working hours on the employer’s premises, thereby satisfying the “in the course” prong, the same cannot be said with regard the “arising out of” prong. I would deny any award.