dissenting:
I disagree with almost every aspect of the majority opinion. I disagree with the manner in which the facts are presented; I have many concerns about the procedural posture of this case; and I disagree with the majority’s analysis.
My factual disagreement with the majority opinion is the omission of certain testimony that undermines the majority’s later attempt to classify the decedent’s fall as employment related. I believe the following testimony of Virginia Griffith, the woman who found decedent at the bottom of the stairs, is very relevant and needs to be included in the opinion for a full understanding of this case:
"Q. After you observed her, what did you do?
A. I went over to her and asked her if I could help her, and was kneeling down. And she said, 'Yes, I need some help.’
And then she started explaining to me she had to get out of there, she had to get to the Federal Express box to deliver a package, she had to get home, it was either a meeting or an appointment or she had to give the car to somebody, but she was in a great hurry, she was very nervous, and at this point she was still lying down and said she just needed to rest for a minute.
Q. Now, after she pulled herself up, what happened?
A. Well, Karl at this point was probably doing most of the talking, but he was, you know, very kindly saying, 'We need to have someone look you over before you can leave.’
And she kept saying, 'Absolutely not,’ and somehow she was able to get herself up without the aid of Karl and myself and absolutely ran out the door, took a right to get to the Federal Express box, got in her car and took off.
Q. How is it that you drew the impression that she was in a hurry?
A. Oh, she kept saying it, she kept saying, 'I’ve got to get out of here.’ It was either to meet somebody or go to an appointment or something, but she was in a rush.
Q. Do you recall anything about the manner in which she was driving at that time?
A. Well, she took off very quickly.
Q. Took off quickly in her car?
A. Yes. I mean, again, I got the impression she was racing to get somewhere.”
The above testimony clearly shows that the decedent was still in a hurry after posting the Federal Express packages. The majority opinion does not explain why, if the decedent’s haste was employment related, the decedent was still in a hurry after all job tasks had been completed.
My next disagreement with the majority opinion concerns the majority’s explanation of the procedural posture of this case. The majority correctly states that on March 19, 1993, an opinion was filed by this court reversing the decision of the circuit court, that a petition for rehearing was granted, that the opinion was withdrawn, and that a majority of the court has now concluded that the Commission was correct. That, however, only begins to tell the story. On March 19, 1993, a unanimous opinion of this court was issued, agreeing with the Commission on the factual issues (that the decedent suffered an unexplained fall on the employer’s premises), but finding that as a matter of law unexplained falls are not compensable injuries in a State that rejects the positional risk doctrine. The appellees then filed a petition for rehearing. The court granted the petition, withdrew the opinion, and asked the parties to submit additional briefs discussing out-of-State authority on the issues of unexplained falls, positional risk, and the relationship between the two subjects. Then a majority of this court, for whatever reason, concluded that the decedent had suffered a compensable injury because she was in a hurry at the end of the day and affirmed the Commission and circuit court on an issue entirely unrelated to the one the parties were directed to address.
After requiring the attorneys to go to the considerable time and expense of researching the law of 49 jurisdictions on a complex issue of law, it is interesting to note the amount of space the majority has given to that issue in its opinion. One paragraph? One sentence? No, not even one word. An outside reader of the majority’s opinion would have no idea that the issue on which the original unanimous opinion was decided had even been raised.
Under Supreme Court Rule 367(d) (134 Ill. 2d R. 367(d)), when a petition for rehearing is granted the nonmoving party is entitled to file a response to the petition. In this case, when the petition was granted this court entered an order directing the parties to file additional briefs solely on the issue of out-of-State authority on the subjects of positional risk and unexplained falls. This sent a message to the attorneys that the scope of our review on rehearing was limited to the correctness of our decision in light of the law of other jurisdictions. Granting the rehearing petition in this manner indicated to the appellants that it was not necessary to respond to the other issues raised in the petition. For this court to subsequently blindside the appellants with an opinion decided on a basis on which the case could have been disposed of originally is clearly unfair. Only one petition for rehearing is allowed, and the appellants should have been entitled to address the other issues.
Without stating so, the majority has apparently concluded that the issue of the relationship between unexplained falls and positional risk is irrelevant to its decision. The question the attorneys must now be asking themselves is, "If those issues are irrelevant, then why did the court order us to research the law in forty-nine jurisdictions on those issues?” Because I do believe those issues are relevant, and because I did not think that out-of-State authority was necessary to the decision, I leave that question for the majority to answer.
Finally, I disagree entirely with the analysis in the majority opinion. The majority initially concludes that the Commission was correct in determining that decedent suffered an unexplained fall. Sometime during the course of the next six paragraphs the fall undergoes a metamorphosis and emerges as an explained fall. By creatively selecting certain portions of the record, the majority has put together what it believes to be an employment-related reason for the decedent’s fall. The employer apparently gave the employee too many tasks to complete near the end of the day and that somehow caused her to be in a hurry on her way home from work. This is not what the Commission found. The Commission found this fall to be unexplained. That was a factual finding to be reviewed under the manifest weight of the evidence standard and there is no basis for this court to disagree with that finding as it was not against the manifest weight of the evidence. Rather than deal with the difficult question of whether an unexplained fall is compensable in Illinois, given our supreme court’s rejection of the positional risk doctrine, the majority decides to have its cake and eat it too by finding that the fall was both explained and unexplained.
Further, even if it was permissible for this court to disagree with the Commission and find this to he an explained fall, the majority’s "explanation” makes no sense. There was no testimony that indicated that the employer asked the decedent to stay after work or gave her any tasks outside of regular business hours. Also, to the extent the majority is claiming that the employee’s haste was to get to the Federal Express box, the testimony of Virginia Griffith clearly indicated that the decedent was in a hurry even after posting the Federal Express envelopes. The employee was still in a rush after completing all job tasks and told witnesses that she was in a hurry to either go to an appointment or to give someone else the car. The majority’s conclusion, in light of these facts, that the decedent’s haste was employment related is nothing short of incredible.
Perhaps the most curious assertion in the majority opinion is the statement, "the record does not indicate that decedent was going anywhere but home, after dropping off the envelopes.” (261 Ill. App. 3d at 637.) Even if this statement were true, it begs the question of whether an employee who falls because she is rushing to get home suffers an injury arising out of her employment. If the decedent was rushing home to watch a television program, would that be a compensable injury? Apparently so, if the employer dared to give her any job tasks too close to quitting time. The message the majority opinion sends to employers is that they now have to always be aware of which employees will be in a hurry to leave work on certain days. On those days they should be cautious not to give those employees any assignments too close to quitting time, even if it is still during regular business hours and even if the employee is being paid for that time. After all, requiring an employee who is in a hurry to attend to personal business to put together envelopes for mailing during business hours could place "resulting stress” on the employee causing a fall. I strongly disagree with the majority’s conclusion that this employee’s haste was employment related.
I believe that the Commission’s decision that the decedent suffered an unexplained fall on the employer’s premises was not against the manifest weight of the evidence, but as a matter of law I do not believe such falls arise out of the employment. For an employee’s injuries to be compensable, those injuries must arise out of and in the course of his or her employment, and both elements must be present at the time of the accident to justify compensation. (Hatfill v. Industrial Comm’n (1990), 202 Ill. App. 3d 547, 560 N.E.2d 369.) "Arising out of’ refers to the origin or cause of the accident and presupposes a causal connection between employment and the accidental injury; "in the course of’ refers to the time, place, and circumstances under which the accident occurred. Illinois Bell Telephone Co. v. Industrial Comm’n (1989), 131 Ill. 2d 478, 546 N.E.2d 603.
This case can be distinguished from others in which compensation was awarded for unexplained falls. My review of other unexplained-fall cases indicates that in those cases, the Commission was able to infer that the fall was caused by some condition of the employer’s premises. For instance, in Chicago Tribune Co. v. Industrial Comm’n (1985), 136 Ill. App. 3d 260, 483 N.E.2d 327, the claimant slipped and fell in the lobby of the employer’s building. There was no idiopathic explanation for the claimant’s fall, and the Commission was able to infer that the floor of the lobby was slippery from ice and water being tracked in by other employees. In Rysdon Products Co. v. Industrial Comm’n (1966), 34 Ill. 2d 326, 215 N.E.2d 261, the claimant, a spot welder, fell while working at a table. There was a gallon container of glue open on the table, the floor was uneven, and it was a hot, humid day. The Commission was able to infer that those factors caused the claimant’s fall. In the instant case, there were no employment-related inferences for the Commission to draw from the decedent’s fall; the fall was entirely unexplained. And, as already demonstrated above, the majority’s eleventh-hour attempt to attribute the fall to the decedent’s haste is not helpful because both the record and common sense indicate that her haste was not employment related.
Professor Arthur Larson has explained that recovery in a pure unexplained fall case can only be justified by an acceptance of the positional risk doctrine. (1 A. Larson, Workmen’s Compensation § 10.31(a), at 3—94 (1990).) Our supreme court has explained:
"Under the positional risk doctrine, an injury may be said to arise out of the employment if the injury 'would not have occurred but for the fact that the conditions or obligations of the employment placed claimant in the position where he was injured by a neutral force, meaning by "neutral” neither personal to the claimant nor distinctly associated with the employment.’ ” (Brady v. Louis Ruffolo & Sons Construction Co. (1991), 143 Ill. 2d 542, 552, 578 N.E.2d 921, 925, quoting Larson, The Positional-Risk Doctrine in Workmen’s Compensation, 1973 Duke L.J. 761, 761.)
Professor Larson has explained that risks causing injury can be separated into three categories: risks personal to the claimant, risks distinctly associated with employment, and neutral risks. Personal risks are not compensable, while risks associated with the employment are compensable. The confusion is over what should be done when an injury is caused by a "neutral” risk. (1 A. Larson, Workmen’s Compensation §§ 7.00 through 7.30, at 3—12 through 3—14 (1990).) Professor Larson considers unexplained falls during the course of employment to be an example of a neutral risk. With regard to such falls, Larson states:
"If an employee falls while walking down the sidewalk or across a level factory floor for no discoverable reason, 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 by [sic] justified as a matter of causation theory except by a recognition that this but—for reasoning satisfies the 'arising’ requirement.” 1 A. Larson, Workmen’s Compensation § 10.31(a), at 3—94 (1990).
Illinois has never accepted the "but-for” reasoning of the positional-risk doctrine (see Brady, 143 Ill. 2d 542, 578 N.E.2d 921; Campbell "66” Express, Inc. v. Industrial Comm’n (1980), 83 Ill. 2d 353, 415 N.E.2d 1043; Decatur-Macon County Fair Association v. Industrial Comm’n (1977), 69 Ill. 2d 262, 371 N.E.2d 597), and therefore compensation would not be warranted in a pure unexplained-fall case. By rejecting the positional-risk doctrine and allowing recovery for unexplained falls, Illinois has adopted positions that are inherently inconsistent. In this case, it was generally agreed that there was nothing wrong with the condition of the stairs on which the decedent fell. Because the Commission could draw no inference that a defect in the stairs existed, this was a pure unexplained fall. As such, compensation was improper. Cases such as Chicago Tribune and Rysdon were not necessarily wrongly decided, because the inferences the Commission drew in those cases placed them in the category of risks associated with the employment. Those cases were only erroneous to the extent they suggested that compensation would be proper in a pure unexplained-fall case. I would also note here that the appellant’s supplemental brief on rehearing demonstrated a strong correlation in other jurisdictions between the concepts of positional risk and unexplained falls. Among jurisdictions that have addressed both issues, those that recognize positional risk as a theory of compensation generally compensate for unexplained falls and vice versa.
To recover in this case, the claimant must have shown that there was an increased risk of harm. The mere fact that an injured party was present at the place of injury because of employment duties will not by itself suffice to establish that the injury arose out of the employment. (Brady, 143 Ill. 2d 542, 578 N.E.2d 921.) A claimant must demonstrate that the risk of injury sustained is peculiar to his employment, or that it is increased as a consequence of the work. (Orsini v. Industrial Comm’n (1987), 117 Ill. 2d 38, 509 N.E.2d 1005.) If an industrial accident is caused by a risk unrelated to the nature of the employment, or is not fairly traceable to the workplace environment, but results instead from a hazard to which the claimant would have been equally exposed apart from his or her work, the injury cannot be said to arise out of the employment. Material Service Corp., Division of General Dynamics v. Industrial Comm’n (1973), 53 Ill. 2d 429, 292 N.E.2d 367.
The injury in this case occurred while the decedent was descending a flight of stairs. Descending stairs is not a hazard uniquely related to the decedent’s employment, but rather is an ordinary activity engaged in by the general public. As we noted in Elliot v. Industrial Comm’n (1987), 153 Ill. App. 3d 238, 505 N.E.2d 1062, an idiopathic fall case, the act of descending stairs does not establish a risk greater than those faced outside of work. Absent a showing of an increased risk, the Commission erred in finding that the accident arose out of the decedent’s employment.
Accordingly, I would reverse the judgment of the circuit court of Cook County. The majority has issued an opinion finding the decedent’s fall to be both explained and unexplained and has based its "explanation” on an inference not reached by the Commission and one that is thoroughly contradicted by the record.
I dissent.
McCULLOUGH, P.J., joins in this dissent.