Purcell v. Illinois Workers' Compensation Comm'n

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Appellate Court Date: 2022.02.23

14:04:46 -06'00'

Purcell v. Illinois Workers’ Compensation Comm’n,

2021 IL App (4th) 200359WC

Appellate Court EMILY PURCELL, Appellant, v. THE ILLINOIS WORKERS’

Caption COMPENSATION COMMISSION et al. (University of Illinois,

Appellee).

District & No. Fourth District, Workers’ Compensation Commission Division

No. 4-20-0359WC

Filed April 27, 2021

Decision Under Appeal from the Circuit Court of Champaign County, No. 19-MR-

Review 867; the Hon. Thomas J. Difanis, Judge, presiding.

Judgment Affirmed.

Counsel on Sandra K. Loeb, of Spiros Law, P.C., of Danville, for appellant.

Appeal

Joseph K. Guyette, of Heyl, Royster, Voelker & Allen PC, of

Champaign, for appellee.

Panel PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the

court, with opinion.

Justices Hoffman, Hudson, Cavanagh, and Barberis concurred in the

judgment and opinion.

OPINION

¶1 The claimant, Emily Purcell, appeals a decision of the Illinois Workers’ Compensation

Commission (Commission) denying her claim for benefits under the Workers’ Compensation

Act (Act) (820 ILCS 305/1 et seq. (West 2016)). The Commission affirmed the arbitrator’s

decision with changes, finding that the claimant failed to prove that her accident arose out of

her employment. The claimant sought review of the Commission’s decision before the circuit

court of Champaign County. The court confirmed the Commission’s decision.

¶2 I. FACTS

¶3 The following factual recitation is taken from the evidence presented at the arbitration

hearing conducted on July 11, 2018.

¶4 The claimant provided the following testimony. She was employed as an administrative

assistant on a temporary or “extra help” basis by the University of Illinois (University). Her

regular work hours were 8:30 a.m. to 5 p.m., Monday through Friday, and she was paid for 7.5

hours per day. The claimant’s primary job duty was to facilitate the day-to-day operations of

the Mortensen Center, which focused on international libraries. Her job required her to leave

her office located in the undergraduate library on a daily basis to perform various duties around

campus. The claimant worked with departments on and off campus for purposes of event

planning and coordination. When she had to go to other campus buildings, she would generally

walk, but would also take the bus. The claimant occasionally gave tours of the campus, which

involved walking around with international visitors. She managed her own daily schedule and

decided when to complete various tasks and what route to take. However, the claimant later

clarified that, on the occasions she would go out on campus in conjunction with her

employment, it was done at the direction of her supervisor, Clara Chu, or another supervisor.

¶5 As a temporary employee, the claimant was required to turn in her time card at the

Personnel Services Building every other Friday. She described this as a job duty. The claimant

described that she would typically walk from her office to the Personnel Services Building or

take the bus through campus and that she was not directed by the University as to the route she

had to take to complete this task. She was not required to drop off the time card at any particular

time of day and she “always” did so during her work hours. However, sometimes she turned

in her time card before she went to her office in the morning but never during her lunch hour.

¶6 On September 9, 2016, the claimant took the bus to campus for work and arrived at

approximately 8:20 a.m. After she exited the bus, she intended to walk to the Personnel

Services Building to drop off her time card. The claimant noted that the Personnel Services

Building was in the opposite direction from her office located in the library. She crossed a

street as she walked in the direction of the Personnel Services Building and approached a chain

barrier/fence. She attempted to “hop” over it, the heel of her shoe got caught, and she fell onto

her right elbow. The claimant was taken by ambulance to Presence Covenant Medical Center,

and she ultimately had surgery on her right elbow on September 19, 2016.

¶7 The claimant admitted that there was no defect with the fence or the ground around it where

she fell and that she fell before her workday began. Although the route she took was the most

direct route, approximately 10 to 15 feet to the left of where she fell was an area without a

fence. She admitted that there were no obstructions or anything else that would have prevented

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her from taking a route that would have allowed her to avoid the chain fence. She also admitted

that it would have been safer to use a route that did not require her to cross the chain, and it

would have only taken a couple of extra seconds for that route. The claimant stated that there

were no other errands that she completed for the University before arriving to her office.

¶8 The claimant initially testified that she was told by her supervisor, Chu, that she was

allowed to turn in her time card during work hours. Additionally, she stated that a human

resources representative for the University, Skye Arseneau, also told her that she could turn in

her time cards during work hours. The claimant stated that she understood that turning in her

time card was a function of her job, she was required to physically turn it in, and she was able

to turn it in during her workday. However, she later stated that she did not know if anyone

actually told her that she was able to turn her time card in during work hours.

¶9 Chu testified that the claimant’s job duties required her to leave the office “at times” and

that she would walk between the buildings on campus when completing those duties. Chu

stated that temporary employees, like the claimant, were required to turn in time cards at the

Personnel Services Building to get paid. She noted that the claimant typically turned in her

time card every other Friday, but that it could be done at any time prior. Chu stated that she

did not instruct the claimant to turn in the time card at a certain time of day or outside of work

hours. She assumed the claimant would turn it in during her breaks, like lunch, or after.

¶ 10 Arseneau testified that time reporting must be done very accurately and that temporary

employees could be marked off for as little as one minute. Arseneau stated that these employees

were supposed to complete their time cards during non-work hours and that they were not paid

for the time it took to physically drop off their time cards. She noted that the time cards were

to be turned in before work, at lunch, or after work. Arseneau explained that there is an exterior

drop box at the Personnel Services Building so that employees could turn in time cards even

when the department was closed. She stated that temporary employees are told during their

information session on their first day of employment that time cards are not to be turned in

during work hours. Arseneau had no personal knowledge that the claimant was so informed.

¶ 11 The claimant testified on rebuttal that she never attended any training prior to being

employed as extra help and that she was never asked to attend a training session described by

Arseneau. She also stated that she was not advised by anyone that her time cards were to be

turned in during non-work hours. However, the claimant admitted that her time card for her

first day of work reflected three hours of work that she spent with Arseneau filling out

paperwork.

¶ 12 The arbitrator analyzed the claimant’s case under a traveling-employee framework and

concluded that the claimant failed to establish that she was a traveling employee. Specifically,

the arbitrator noted that the testimony demonstrated that the claimant’s tasks outside of the

building that housed her office were uncommon; when the claimant worked outside of the

library, those tasks were at Chu’s specific direction; and Chu did not direct the claimant to

undertake any task outside of the library on the morning of her injury. Further, the arbitrator

noted that, the claimant’s understanding that she could turn in her time card during work hours

was her misunderstanding and did not make the activity work-related. The arbitrator also found

that, even if the claimant was a traveling employee, her decision to hop over the fence was a

personal risk unrelated to her employment. Therefore, the arbitrator concluded that the

claimant’s injury neither arose out of nor occurred in the course of her employment.

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¶ 13 The claimant sought review of the arbitrator’s determination before the Commission,

which affirmed the arbitrator’s decision with changes. The Commission disagreed with the

arbitrator’s finding that the claimant was not acting in the course of her employment at the

time of the accident because the claimant was injured on the University’s premises within a

reasonable time period before commencing her job duties. However, the Commission agreed

that the claimant failed to prove that the accident arose out of her employment.

¶ 14 The claimant sought review of the Commission’s decision before the circuit court of

Champaign County. Following a hearing, the court confirmed the Commission’s decision.

¶ 15 II. ANALYSIS

¶ 16 On appeal, the claimant argues that the Commission’s finding that her injury did not arise

out of her employment was against the manifest weight of the evidence. She argues that she

proved this element as either a non-traveling employee or a traveling employee.

¶ 17 We first turn to whether the claimant satisfied the “arising out of” requirement as a non-

traveling employee. If we answer that question in the negative, then we will decide whether

she qualified as a traveling employee and satisfied the element in that capacity. “The

determination of whether an injury arose out of and in the course of one’s employment is

generally a question of fact.” Hosteny v. Illinois Workers’ Compensation Comm’n, 397 Ill.

App. 3d 665, 674 (2009). A factual finding by the Commission will not be set aside on appeal

unless it is against the manifest weight of the evidence. City of Springfield v. Illinois Workers’

Compensation Comm’n, 388 Ill. App. 3d 297, 315 (2009). A finding of fact is against the

manifest weight of the evidence when an opposite conclusion is clearly apparent. Gross v.

Illinois Workers’ Compensation Comm’n, 2011 IL App (4th) 100615WC, ¶ 21. The

appropriate test for our review is whether the evidence of record is sufficient to support the

Commission’s determination—not whether this court or another tribunal might have reached

an opposite conclusion. Pietrzak v. Industrial Comm’n of Illinois, 329 Ill. App. 3d 828, 833

(2002).

¶ 18 A. Non-Traveling Employee

¶ 19 To obtain compensation under the Act, a claimant must show, by a preponderance of the

evidence, that she suffered a disabling injury that “arose out of” and “in the course of” her

employment. Baggett v. Industrial Comm’n, 201 Ill. 2d 187, 194 (2002). “The ‘arising out of’

requirement is primarily concerned with causal connection.” McAllister v. Illinois Workers’

Compensation Comm’n, 2020 IL 124848, ¶ 36. Thus, to satisfy this requirement, the claimant

must show that the injury had its origin in some risk connected with, or incidental to, her

employment so as to create a causal connection between her injury and employment. Id. “A

risk is incidental to the employment when it belongs to or is connected with what the employee

has to do in fulfilling his or her job duties.” Id. There are three categories of risk recognized

by our supreme court: employment risks, risks personal to the employee, and neutral risks. Id.

¶ 38.

¶ 20 In the case before us, the claimant asks that we find that her injury arose out of an

employment-related risk, which is a risk distinctly associated with employment. See id. ¶ 40.

Generally, a risk arises out of one’s employment if, at the time of the occurrence, the employee

was performing an act (1) she was instructed to perform by her employer, (2) she had a

common law or statutory duty to perform, or (3) which the employee might reasonably be

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expected to perform incident to her assigned duties. Caterpillar Tractor Co. v. Industrial

Comm’n, 129 Ill. 2d 52, 58 (1989). “Examples of employment-related risks include tripping

on a defect at the employer’s premises, falling on uneven or slippery ground at the work site,

or performing some work-related task which contributes to the risk of falling.” (Internal

quotation marks omitted.) McAllister, 2020 IL 124848, ¶ 40.

¶ 21 Here, the claimant argues that the act that caused her injury (hopping over a chain barrier

along a sidewalk on her way to drop off her time card) was an act the University might

reasonably expect her to perform to fulfill her duties as a temporary employee who was

required to drop off her time card. The claimant attempts to distinguish her case from Dodson

v. Industrial Comm’n, 308 Ill. App. 3d 572 (1999), which the Commission relied on in finding

that her injury did not arise out of her employment as a non-traveling employee.

¶ 22 In Dodson, the claimant was exiting her employer’s premises through the employee exit.

Id. at 574. She proceeded down several steps of concrete sidewalk leading to the employee

parking area, and because it was raining hard, she left the sidewalk and walked across a grassy

slope to reach the driver’s side of her car. Id. The stairs and sidewalk were in good condition

and not blocked by an obstruction. Id. The claimant testified that she walked across the grass

because it was the most direct route to her car. Id. While walking on the grassy slope, she fell

and was injured. Id. On appeal, this court found that the claimant’s voluntary decision to

traverse the grassy slope, instead of the walkway, exposed her to an unnecessary danger

entirely separate from her employment responsibilities. Id. at 576. Further, it was the

claimant’s decision not to use the walkway, which was for her own benefit, and not that of her

employer. Id. at 577. Thus, the claimant’s injuries did not arise out of her employment. See id.

¶ 23 We agree with the Commission that the reasoning in Dodson applies here. The claimant

voluntarily hopped over the chain fence when the heel of her shoe got caught and she was

injured. This decision exposed her to an unnecessary danger entirely separate from her

employment responsibilities. The claimant did not assert that her decision to hop over the chain

fence was to avoid any defect or obstruction. Additionally, her decision not to use the walkway,

which she testified would have been safer and only taken an extra few seconds, was for her

own benefit and not to the benefit of the University. An injury does not arise out of employment

where an employee voluntarily exposes herself to an unnecessary personal danger solely for

her own convenience. Orsini v. Industrial Comm’n, 117 Ill. 2d 38, 47 (1987); see Hatfill v.

Industrial Comm’n, 202 Ill. App. 3d 547, 553 (1990) (the claimant’s injury did not arise out of

his employment when he took a shortcut by jumping across accumulated water instead of using

the designated walkways). Therefore, we find that the claimant’s injury did not arise out of her

employment as a non-traveling employee.

¶ 24 B. Traveling Employee

¶ 25 Next, we consider whether the claimant’s injury arose out of her employment as a traveling

employee. A traveling employee is one for whom travel is an essential element of her

employment where she must travel away from her employer’s premises to perform her job.

Cox v. Illinois Workers’ Compensation Comm’n, 406 Ill. App. 3d 541, 545 (2010).

Accordingly, traveling employees are exposed to hazards of the street and to the hazards of

automobiles much more than the general public. Mlynarczyk v. Illinois Workers’

Compensation Comm’n, 2013 IL App (3d) 120411WC, ¶ 19. Therefore, “[t]he test for

determining whether an injury to a traveling employee arose out of and in the course of [her]

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employment is the reasonableness of the conduct in which [she] was engaged and whether the

conduct might normally be anticipated or foreseen by the employer.” Cox, 406 Ill. App. 3d at

545-46.

¶ 26 Here, the Commission found that the claimant failed to establish that she was a traveling

employee because (1) Chu testified that the claimant’s tasks outside of the library where her

office was housed were uncommon; (2) when the claimant worked outside of the library, it

was at the specific direction of her supervisor; (3) Chu did not direct the claimant to undertake

any tasks outside of the library on the morning she was injured; and (4) Chu and Arseneau

testified that temporary employees turned in time cards outside of their work hours. We note

that these statements the Commission relied on conflict with the claimant’s testimony that

(1) her job required her to leave her office on a daily basis to perform various duties around

campus and (2) it was understood that she could turn in her time card during work hours.

However, the claimant’s testimony was inconsistent as to whether she was actually told by

Chu or Arseneau that she could turn in her time card during work hours. Supra ¶ 9. Thus, there

was a clear factual dispute as to whether travel was an essential element of the claimant’s

employment and whether turning in her time card fell within the scope of that travel and her

job duties.

¶ 27 It is the function of the Commission to assess the credibility of the witnesses, resolve

conflicts in the evidence, assign weight to be accorded to the evidence, and draw reasonable

inferences therefrom. Bolingbrook Police Department v. Illinois Workers’ Compensation

Comm’n, 2015 IL App (3d) 130869WC, ¶ 52. For the reasons articulated by the Commission,

we cannot say that its determination that the claimant was not a traveling employee was against

the manifest weight of the evidence. 1 See Kertis v. Illinois Workers’ Compensation Comm’n,

2013 IL App (2d) 120252WC, ¶ 21 (the claimant was a traveling employee where his

unrebutted testimony provided that he was required to travel on a regular basis and that there

was rarely a day that he was not required to do so). There is evidence of record to support the

Commission’s resolution of the evidence against the claimant. Thus, we need not decide

whether the claimant’s act of traveling to other campus buildings constitutes traveling away

from her employer’s premises (Cox, 406 Ill. App. 3d at 545) because we find the record

supports the Commission’s conclusion that travel was not an essential element of the

claimant’s employment.

¶ 28 Last, the claimant raises issues pertaining to the so-called “street risk doctrine,” which

provides that where the evidence establishes that the claimant’s job required that she be on the

street to perform the duties of her employment, the risks of the street become one of the risks

of employment. Nee v. Illinois Workers’ Compensation Comm’n, 2015 IL App (1st)

132609WC, ¶ 26. In essence, this is the same as the traveling employee doctrine. Metropolitan

Water Reclamation District of Greater Chicago v. Illinois Workers’ Compensation Comm’n,

407 Ill. App. 3d 1010, 1016 (2011) (Holdridge, J., specially concurring). Since we have already

1

We note that the claimant takes issue with the Commission’s mere citation to Allenbaugh v. Illinois

Workers’ Compensation Comm’n, 2016 IL App (3d) 150284WC, in deciding that she was not a

traveling employee. She distinguishes her case, arguing that the claimant in Allenbaugh did not qualify

as a traveling employee at the time of his injury because he was injured during his regular commute

from his home to his employer’s premises. Id. ¶ 18. Without the Commission providing an explanation

or even a pinpoint citation, we do not know why it relied on such case, and we decline to speculate.

Moreover, we find that Allenbaugh is not pertinent in reaching our decision.

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decided that the claimant was not a traveling employee, we need not address this argument.

¶ 29 III. CONCLUSION

¶ 30 For the foregoing reasons, we affirm the judgment of the circuit court of Champaign

County, which confirmed the Commission’s decision.

¶ 31 Affirmed.

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