specially concurring:
I agree with the result reached by the majority in this case. However, because I believe that the majority’s opinion might be misinterpreted as adopting a theory of recovery grounded in positional risk, which was repudiated by our supreme court in Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 578 N.E.2d 921 (1991), I have elected to write separately.
As the majority correctly notes, an employee’s injury is compensable under the Workers’ Compensation Act (Act) only if it arises out of and in the course of her employment. 820 ILCS 305/2 (West 1998). Both elements must be present at the time of the claimant’s injury in order to justify compensation. Illinois Bell Telephone Co. v. Industrial Comm’n, 131 Ill. 2d 478, 483, 546 N.E.2d 603 (1989).
An injury occurs “in the course of” employment when it is sustained while the claimant is at work or while she is performing activities in conjunction with her employment. Wise v. Industrial Comm’n, 54 Ill. 2d 138, 142, 295 N.E.2d 459 (1973). In this case, the claimant was injured while retrieving a case containing work supplies from her car, which was parked in a parking lot behind her employer’s premises. She fell during working hours and at a place where she might reasonably have been while performing her duties. Clearly, her injuries were sustained in the course of her employment. However, the fact that she was injured in the course of her employment is not sufficient to impose liability under the Act. To be compensable, her injury must also have arisen out of her employment. Orsini v. Industrial Comm’n, 117 Ill. 2d 38, 45, 509 N.E.2d 1005 (1987).
“For an injury to ‘arise out of the employment its origin must be in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury.” Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 58, 541 N.E.2d 665 (1989). “There are three categories of risks an employee may be exposed to: (1) risks distinctly associated with the employment; (2) risks personal to the employee; and (3) neutral risks which have no particular employment or personal characteristics.” Illinois Institute of Technology Research Institute v. Industrial Comm’n, 314 Ill. App. 3d 149, 162, 731 N.E.2d 795 (2000).
In this case, the claimant slipped and fell on ice in a parking lot. The risk of such a fall is not distinctly associated with her employment, nor is it personal to the claimant. The risk to which the claimant was exposed is a neutral risk. As a consequence, the question of whether her injury arose out of her employment rests on a determination of whether she was exposed to a risk of injury to an extent greater than that to which the general public was exposed. Illinois Institute of Technology, 314 Ill. App. 3d at 162. The Commission found that she was not and denied her compensation. For the reasons which follow, I believe that the Commission’s decision on this issue must be reversed as being against the manifest weight of the evidence, and the arbitrator’s award, void of penalties and fees, reinstated.
The mere fact that the claimant’s duties took her to the place of injury and that, but for her employment, she would not have been there, is not sufficient, of itself, to support a finding that her injuries arose out of her employment. Illinois Bell Telephone Co. v. Industrial Comm’n, 131 Ill. 2d 478, 485-86, 546 N.E.2d 603 (1989); Caterpillar Tractor Co., 129 Ill. 2d at 63. Further, contrary to the dissenting commissioner’s assertion, there is nothing in the record which could support a finding that the case of supplies which the claimant was carrying in any way contributed to her fall. This case is, therefore, distinguishable from Knox County YMCA v. Industrial Comm’n, 311 Ill. App. 3d 880, 725 N.E.2d 759 (2000). Nevertheless, I believe that the facts of this case clearly demonstrate that the claimant was exposed to a greater risk of injury than were members of the general public.
The beauty salon at which the claimant was employed is located in a strip mall. Two parking lots are available to the customers of the stores located in the mall, one lot in the front of the stores and another in the rear. The claimant testified that her manager, the owner’s wife, told her that she could only park in the lot to the rear of the salon. The ice upon which the claimant slipped was located in the rear lot, approximately five feet from the rear door to her employer’s premises.
The Commission found that “whether or not *** [the claimant] was directed not to park in the front of the store is of no consequence.” However, I find that fact to be central to a determination of whether the claimant’s injury arose out of her employment.
The rear lot in which the claimant fell was available for use by members of the public and there is no doubt that, had a member of the public chosen to park in that lot, he or she would have been exposed to the same risk of falling to which the claimant was exposed. The critical difference is that the public was free to use the front lot and the claimant was not. By compelling the claimant to use the rear lot, her employer chose the route she would use to enter and leave the premises. The only practical way that the claimant could enter and leave was by the rear door which, on the day of her fall, exposed her to the hazards of the ice in the rear parking lot. Since the claimant was required to use the rear lot, she was exposed to a risk common to the general public to a greater degree than other persons who were free to use the front lot. It is for this reason that I believe that the uncontradicted evidence in the record supports only one reasonable conclusion; namely, that the claimant’s injury arose out of her employment. See Bommarito v. Industrial Comm’n, 82 Ill. 2d 191, 412 N.E.2d 548 (1980).
O’MALLEY, J., joins in this special concurrence.