Purcell v. Illinois Workers' Compensation Comm'n , 2021 IL App (4th) 200359WC ( 2021 )

FILED
April 27, 2021
Carla Bender
2021 IL App (4th) 200359WC 4th District Appellate
Court, IL
Opinion filed April 27, 2021.
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FOURTH DISTRICT
WORKERS’ COMPENSATION COMMISSION DIVISION
______________________________________________________________________________
EMILY PURCELL, ) Appeal from the Circuit Court
) of the Sixth Judicial Circuit
Appellant, ) Champaign County, Illinois
)
v. ) Appeal No. 4-20-0359WC
) Circuit No. 19-MR-867
THE ILLINOIS WORKERS’ )
COMPENSATION COMMISSION et al. ) Honorable
) Thomas J. Difanis,
(University of Illinois, Appellee). ) Judge, Presiding.
______________________________________________________________________________
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 Illinois 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.
I. FACTS
¶2 The following factual recitation is taken from the evidence presented at the arbitration
hearing conducted on July 11, 2018.
¶3 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 5:00 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.
¶4 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.
¶5 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
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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.
¶6 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 work day 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
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.
¶7 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 work day. 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.
¶8 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
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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.
¶9 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.
¶ 10 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.
¶ 11 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
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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.
¶ 12 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.
¶ 13 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.
¶ 14 II. ANALYSIS
¶ 15 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.
¶ 16 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
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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).
¶ 19 A. Non-Traveling Employee
¶ 20 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 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.
¶ 21 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
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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 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.
¶ 22 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.
¶ 23 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,
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the claimant’s injuries did not arise out of her employment. See id.¶ 24 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.
¶ 25 B. Traveling Employee
¶ 26 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] employment is the reasonableness of the
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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.
¶ 27 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.
¶ 28 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
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
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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.
¶ 29 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 decided
that the claimant was not a traveling employee, we need not address this argument.
¶ 30 III. CONCLUSION
¶ 31 For the foregoing reasons, we affirm the judgment of the circuit court of Champaign
County, which confirmed the Commission’s decision.
¶ 32 Affirmed.
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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