specially concurring:
I concur with my colleagues that the Commission’s decision that claimant’s injury arose out of her employment is not against the manifest weight of the evidence. Because claimant was wearing high heels, some of the stair treads were worn, hand rails were not provided where claimant fell, and the stairs were slippery, the Commission could properly conclude that claimant was exposed to a risk of injury greater than that to which the general public is exposed.
I write separately in an attempt to clarify the case law regarding falls in the work place and to disagree with certain language in the majority opinion relating to the personal-comfort doctrine and the concept of unexplained falls.
A. Personal-Comfort Doctrine
Unlike the majority, I believe the personal-comfort doctrine has no application to this case. For accidental injuries to be compensable, a claimant must show that such injuries arose out of and in the course of her employment. Orsini v. Industrial Comm’n, 117 Ill. 2d 38, 44 (1987). The personal-comfort doctrine relates only to the “in the course of employment” element and not the “arising out of employment” element. See Segler v. Industrial Comm’n, 81 Ill. 2d 125, 128 (1980); Chicago Extruded Metals v. Industrial Comm’n, 77 Ill. 2d 81, 84 (1979); Union Starch, Division of Miles Laboratories, Inc. v. Industrial Comm’n, 56 Ill. 2d 272, 277 (1974); Scheffler Greenhouses, Inc. v. Industrial Comm’n, 66 Ill. 2d 361, 368 (1977); Dodson v. Industrial Comm’n, 308 Ill. App. 3d 572, 575 (1999); Karastamatis v. Industrial Comm’n, 306 Ill. App. 3d 206, 211-12 (1999); All Steel, Inc. v. Industrial Comm’n, 221 Ill. App. 3d 501, 503-04 (1991); see also 2 A. Larson & L. Larson, Larson’s Workers’ Compensation Law, ch. 21, at 21 — 1 (1999) (stating employees who minister to personal comforts do not leave the course of their employment).
In the instant case, the parties have never disputed that claimant’s injury occurred in the course of her employment. To the contrary, the parties stipulated in the request-for-hearing form and before the arbitrator that the only issue in the case was whether her injury arose out of her employment. Moreover, appellant’s brief frames the sole issue on appeal as “[w]hether the decision of the Industrial Commission finding that the employee sustained an injury arising out of her employment was erroneous as a matter of law.” Thus, it is overwhelmingly clear that our only focus should be on whether claimant’s injury arose out of employment, specifically, whether the claimant’s act of traversing stairs exposed her to a risk of injury greater than that to which the general public is exposed. Because the personal-comfort doctrine is an “in the course of’ concept and the sole issue in this case is whether claimant’s injury arose out of her employment, the doctrine has no application.
B. Idiopathic Falls and Unexplained Falls
The arbitrator in this case held that claimant’s injuries arose out of employment solely because the fall was unexplained. The. Commission adopted the arbitrator’s decision. In a well-reasoned special concurrence Commissioner Gilgis conceded that, although dictum from some recent cases has implied that all unexplained falls arise out of employment, the statement is not accurate and is contrary to a well-established body of workers’ compensation law. For the reasons that follow, I respectfully submit that Commissioner Gilgis is correct.
As a general rule, risks that an employee may be exposed to are categorized into three groups: (1) risks distinctly associated with employment, (2) risks personal to the employee, and (3) neutral risks that have no particular employment or personal characteristics. Employment risks include the obvious kinds of industrial injuries and occupational diseases. Employment risks are those that are inherent in one’s employment. These are risks to which the general public is not exposed. In the context of falls, employment risks include tripping on a defect at employer’s premises or falling on uneven or slippery ground at the work site. Because the general public is not exposed to employment risks, such risks universally arise out of employment. 1 A. Larson & L. Larson, Larson’s Workers’ Compensation Law § 4.01, at 4 — 2 (1999).
Personal risks include exposure to elements that cause nonoccupational diseases, personal defects or weakness, and confrontations with personal enemies. Examples of personal risks include falls due to a bad knee or an episode of dizziness. Because such a fall is due to a personal defect or weakness, such falls, commonly known as idiopathic falls, usually do not arise out of employment. 1 A. Larson & L. Larson, Larson’s Workers’ Compensation Law § 4.02, at 4 — 2, ch. 9 (1999).
However, an exception to the rule does exist. Injuries caused by an idiopathic fall arise out of one’s employment where workplace conditions significantly contribute to the injury by increasing the risk of falling or the effects of a fall. See generally Stapleton v. Industrial Comm’n, 282 Ill. App. 3d 12, 16 (1996); Nabisco Brands, Inc. v. Industrial Comm’n, 266 Ill. App. 3d 1103, 1106 (1994); Elliot v. Industrial Comm’n, 153 Ill. App. 3d 238, 244 (1987); Oldham v. Industrial Comm’n, 139 Ill. App. 3d 594, 596 (1985). The added risk may be due to some physical circumstance of the immediate vicinity or due to tools, implements, or apparatus the employee is required to use in his duties. 1 T. Angerstein, Illinois Workmen’s Compensation § 298, at 221 (1952); see Wilkes v. Dowell & Co., 21 T.L.R. 487 (1902) (fall into ship’s hold due to epileptic fit arose out of employment because duties required claimant to stand next to opening); Sears, Roebuck & Co. v. Industrial Comm’n, 78 Ill. 2d 231 (1979) (fall from forklift); Rockford Hotel Co. v. Industrial Comm’n, 300 Ill. 87 (1921) (fall into ash pit caused by epileptic fit); Peoria Ry. Terminal Co. v. Industrial Board, 279 Ill. 352 (1917) (fall from fire truck); see also Williams v. Industrial Comm’n, 38 Ill. 2d 593, 595-96 (1967) (injury arose out of employment where employment conditions increased risk of falling or the risk of injury due to falling from heights or onto a dangerous object). Thus, although the falls in the above cases were idiopathic in nature, the injuries nevertheless arose out of employment because work conditions exposed the employees to an added or increased risk of injury.
Neutral risks have no particular employment or personal characteristics and include stray bullets, dog bites, assaults, street risks, lightning, and hurricanes. In the context of falls, neutral risks include falls on level ground or while traversing stairs. Whether a neutral-risk injury arises out of employment depends on whether the employee was exposed to a risk greater than that to which the general public is exposed. 1 A. Larson & L. Larson, Larson’s Workers’ Compensation Law § 4.03, at 4 — 2 to 4 — 3, § 7.04(l)(a), at 7 — 15 (1999). Thus, because the general public and employees alike are equally exposed to the risks of walking and traversing stairs, injuries resulting from these acts generally do not arise out of employment. However, as with personal risks, there is an exception where employment conditions create a risk to which the general public is not exposed. In such cases, the injury arises out of employment. The increased risk may be qualitative, such as the dangerous nature of the stairs in the instant case, or quantitative, such as where the employee is exposed to a common risk more frequently than the general public. See City of Chicago v. Industrial Comm’n, 389 Ill. 592 (1945) (injury sustained by city inspector when he stubbed his toe on sidewalk curb arose out of employment because employee was required to spend much of his work day traversing city sidewalks). Falls arising from a “neutral” origin or risk have been characterized as “unexplained falls.” Elliot, 153 Ill. App. 3d at 242; Oldham, 139 Ill. App. 3d at 596.
Unexplained falls have often been contrasted with idiopathic falls. See Chicago Tribune Co. v. Industrial Comm’n, 136 Ill. App. 3d 260, 263 (1985). According to Professor Larson:
“[U]nexplained-fall cases begin with a completely neutral origin of the mishap, while idiopathic fall cases begin with an origin which is admittedly personal and which therefore requires some affirmative employment contribution to offset the prima facie showing of personal origin.” 1 A. Larson & L. Larson, Larson’s Workers’ Compensation Law § 9.01(1), at 9 — 3 (1999).
The above principle that the risk an employee is exposed to determines whether a fall arose out of employment was skewed in Chicago Tribune and inadvertently displaced by the oversimplified contentions that idiopathic falls do not arise out of employment because they arise from personal risks and that unexplained falls arise out of employment because they result from employment-related risks. In Chicago Tribune, claimant slipped and fell at the bottom of a ramp in the lobby of the building where she worked. The Commission held that the injury arose out of and in the course of employment and awarded benefits. On appeal, we rejected employer’s contention that the fall was idiopathic in nature and held that the injury arose out of employment. We noted that claimant was on a ramp and wearing narrow, high heel shoes, and testimony established that, when it is wet and snowy outside, people track snow and water onto the floor. In affirming the Commission’s finding of compensability, we stated that unexplained falls are compensable, citing Sears in support. Chicago Tribune, 136 Ill. App. 3d at 264. I submit that this statement was somewhat inaccurate and not totally supported by our supreme court’s opinion in Sears.
In Sears, claimant’s decedent, a forklift operator, was found next to the lift. He had died from a skull fracture. The Commission awarded benefits, finding the death arose out of employment. On appeal, the employer argued that because decedent had “looked sick” prior to the fall and had had a cold for approximately two weeks, the Commission should have inferred claimant’s fall was due to a personal risk and did not arise out of employment. Our supreme court rejected the employer’s contention and affirmed. “The testimony of the petitioner that the deceased had been suffering with a cold was a circumstance presumably considered by the Industrial Commission in reaching its decision.” Sears, 78 Ill. 2d at 234. Although the circumstances of claimant’s fall were unexplained, the court did not mention that term or say that unexplained falls are compensable. The court simply affirmed on a manifest weight of the evidence basis.
The Sears case is in complete accord with supreme court precedent. Rysdon Products Co. v. Industrial Comm’n, 34 Ill. 2d 326 (1966) (unexplained fall arose out of employment because risk existed due to gas fumes in unventilated room or due to uneven floor); Siete v. Industrial Comm’n, 24 Ill. 2d 368 (1962) (unexplained fall but court stated claimant was at risk because he worked at heavy machine with blades); Ervin v. Industrial Comm’n, 364 Ill. 56 (1936) (unexplained fall arose out of employment because claimant was required to maintain fire and was at risk of injury therefrom); Vulcan Detinning Co. v. Industrial Comm’n, 295 Ill. 141 (1920) (unexplained fall arose out of employment because it could have resulted from the nature of the construction of toilet). Thus, even adopting employer’s contention in Sears that decedent’s fall resulted from dizziness due to a sick condition, decedent was nevertheless exposed to a risk of injury greater than that to which the general public is exposed because he was working several feet above the floor and thus was at a greater risk of injury if he fell. Although in each of these cases the exact cause of the fall was unexplained, the Commission or the court found evidence of increased risk.
Unfortunately, several recent cases have repeated the statement in Chicago Tribune that unexplained falls arise out of employment. By way of dictum, these cases imply that all such falls arise out of employment. Stapleton, 282 Ill. App. 3d at 16 (“If the fall is unexplained, resultant injuries are compensable. If the fall is idiopathic, resultant injuries are not compensable ***”); Nabisco Brands, 266 Ill. App. 3d at 1106 (idiopathic falls are “purely personal” to employee and are not compensable; unexplained falls are neutral and are compensable); William G. Ceas & Co. v. Industrial Comm’n, 261 Ill. App. 3d 630, 634 (1994) (noting that Illinois denies compensation for idiopathic falls but awards compensation for unexplained falls); General Motors Corp., Central Foundry Division v. Industrial Comm’n, 179 Ill. App. 3d 683, 695 (1989) (noting that idiopathic falls are not compensable in Illinois while unexplained falls are); Elliot, 153 Ill. App. 3d at 242 (“Illinois denies compensation for idiopathic falls” and “Illinois awards compensation for unexplained falls”). For the reasons that follow, these statements are inaccurate and contrary to established case law and principles underlying the Workers’ Compensation Act.
Initially, although these cases say idiopathic falls are not compensable and unexplained falls are compensable, it is inaccurate to say that an injury caused by a particular risk is or may be compensable. Compensability results when an injury arises out of and in the course of employment. Although increased risk may establish arising out of, that is only one element required for compensability. Claimant must also establish in the course of employment and proximate cause between the accident and the injury. It is not possible to determine the entire concept of compensability from risk alone.
Also, it is clear from the above discussion that idiopathic falls arise out of employment where conditions of the work place increase either the risk of falling or the danger of injury. Although idiopathic falls do not arise out of employment where claimant fails to show an increased risk, it is clearly wrong to say such falls never arise out of employment.
Further, because unexplained falls result from a neutral risk, resultant injuries arise out of employment only where claimant can show that he or she is exposed to a risk greater than that to which the general public is exposed. If claimant cannot make such a showing, the injury does not arise out of employment.
To be sure, we have made the misleading statement that unexplained falls are compensable. However, in every such case, we pointed to evidence in the record from which the Commission could have inferred that claimant was exposed to a greater risk of injury than that to which the general public is exposed. See Nabisco Brands, 266 Ill. App. 3d 1103 (claimant required to carry three 39-inch knives that weighed 50 pounds on stairway); William G. Ceas, 261 Ill. App. 3d 630 (boss’s last-minute preparations caused claimant stress and caused her to hurry down stairs upon which she fell); Chicago Tribune, 136 Ill. App. 3d 260 (fall could have been due to accumulation of water or ice on floor); General Motors Corp., 179 Ill. App. 3d 683 (fall from forklift could have been due to pothole or claimant’s attempt to avoid potholes). I cannot find any case where this panel or our supreme court has held that an injury arises out of employment solely because the fall was unexplained. To do so would necessitate adopting the positional risk doctrine:
“If an employee falls while walking down the sidewalk or across a level factory floor for no discoverable reasons, the injury resembles that from stray bullets and other positional risks in this respect. The particular injury would not have happened if the employee had not been engaged upon an employment errand at the time. In a pure unexplained-fall case, there is no way in which an award can be justified as matter of causation theory except by a recognition that this but-for reasoning satisfies the ‘arising’ requirement.” (Emphasis added.) 1 A. Larson & L. Larson, Larson’s Workers’ Compensation Law § 7.04(1), at 7 — 15 (1999).
Our supreme court, however, has consistently rejected the positional risk doctrine. See Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542 (1991).
At the risk of much repetition, I hope to make one point clear. Whether an injury arises out of employment is solely a function of risk, specifically, whether the employee was exposed to a risk of injury greater than that to which the general public is exposed. The terms “explained,” “unexplained,” and “idiopathic,” while useful to describe the nature of a fall, cannot accurately determine whether an injury arises out of employment. As previously discussed, some idiopathic falls arise out of employment; others do not. The same is true with explained and unexplained falls. Although employment risks always arise out of employment, whether personal risks (idiopathic falls) or neutral risks (explained or unexplained falls) arise out of employment is determined by whether the employee was exposed to a risk greater than that to which the general public is exposed. To put this another way, where conditions of employment expose the employee to a risk of injury greater than that to which the general public is exposed, the risk becomes one of employment and resulting injuries arise out of employment.