                                  Illinois Official Reports

                                          Appellate Court



                 Village of Villa Park v. Illinois Workers’ Compensation Comm’n,
                                   2013 IL App (2d) 130038WC



Appellate Court              THE VILLAGE OF VILLA PARK, Appellant, v. THE ILLINOIS
Caption                      WORKERS’ COMPENSATION COMMISSION et al. (John Simons,
                             Appellee).



District & No.               Second District
                             Docket No. 2-13-0038WC

Filed                        December 31, 2013
Rehearing denied             February 6, 2014


Held                         The decision of the Workers’ Compensation Commission awarding
(Note: This syllabus         benefits to claimant for the back injury he suffered when he fell down
constitutes no part of the   stairs after his knee buckled was upheld where the evidence
opinion of the court but     established that he worked as a community service officer at a police
has been prepared by the     station, he was forced to use the stairs at the station for his personal
Reporter of Decisions        comfort and to complete his work, and even though he had injured his
for the convenience of       knee in a prior fall and had been seen walking with a limp, the
the reader.)                 conclusion that his employment placed him at a greater risk of falling
                             was supported by the evidence and thereby satisfied the exception to
                             the general rule of noncompensability for injuries resulting from a
                             personal risk and established that he was exposed to a greater risk of
                             injury than the general public and that his injury arose out of and in the
                             course of his employment.


Decision Under               Appeal from the Circuit Court of Du Page County, No.
Review                       10-MR-000027; the Hon. Kenneth L. Popejoy, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Daniel W. Arkin and Jeffrey N. Powell, both of Rusin, Maciorowski &
     Appeal                   Friedman, Ltd., of Chicago, for appellant.

                              Francis J. Discipio, of Law Offices of Francis J. Discipio, Ltd., of Oak
                              Brook, for appellee.



     Panel                    JUSTICE HOFFMAN delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Holdridge and Justices Hudson, Harris, and Stewart
                              concurred in the judgment and opinion.




                                               OPINION


¶1         The Village of Villa Park (Village) appeals from an order of the circuit court confirming a
       decision of the Illinois Workers’ Compensation Commission (Commission) that awarded the
       claimant, John Simons, benefits under the Workers’ Compensation Act (Act) (820 ILCS 305/1
       et seq. (West 2006)), after finding that his injury arose out of and in the course of his
       employment. For the following reasons, we affirm the judgment of the circuit court.
¶2         The following facts are taken from the evidence presented at the arbitration hearing
       conducted on September 17, 2008, and October 8, 2008. The claimant testified that he was
       employed by the Village as a community service officer. His duties included handling
       ordinance complaints, theft reports, various noncriminal in-progress calls, accident reports,
       parking enforcement, police officer backup, and other duties.
¶3         On April 5, 2007, the claimant was at work and on duty in the police station to which he
       was assigned. Around 6 or 7 p.m., he was upstairs in the watch commander’s office for a
       briefing, after which the claimant and another officer began walking toward the back side of
       the building. The claimant stated that he turned and started walking down the rear stairwell to
       the locker room on the lower level. When he reached the third step, his right knee “gave out,”
       causing him to fall down about seven stairs to the landing below, sustaining injuries to his right
       knee and lower back.
¶4         The claimant testified that the back stairwell consisted of about 10 steps, a landing, and
       then another 10 steps to the lower level. The lower level contained the locker rooms, the
       briefing room, the lunch area, and the shooting range. The locker rooms were for the use of the
       police officers and were not open to the general public. The claimant described the lower level
       as a secured area and stated that the building entrance was accessible only with a pass key.


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¶5       On a typical work day, the claimant would enter the building through the back door and
     descend the stairs to the locker room in order to change from his civilian clothes to his uniform.
     He would walk back up the stairs to the mailbox area to check for any pertinent information,
     then return downstairs to the lower level for his briefing meeting. The claimant testified that,
     before his shift even began, he would have traversed the back stairs at least two to four times.
     At the end of the day, the claimant would again descend the stairs to the locker room to change
     into his civilian clothes. According to the claimant, during most days, he would also traverse
     the stairs to go to the lunch room for his breaks or lunch to get a soda, or to get rain gear or
     other equipment he needed for his duties.
¶6       The claimant described an earlier accident which injured his right knee. On January 13,
     2007, he was at his vacation home in Wisconsin when he slipped on a patch of ice. Later that
     day, he fell off of a pile of wood and twisted the same knee. After one or two days, his knee still
     did not feel normal. According to the claimant, he then informed his supervisors about his
     injury and left to go to Elmhurst Hospital, where he was treated by his personal physician, Dr.
     Karim Yunez. An MRI was subsequently ordered which revealed a small joint effusion with
     complex tears to the anterior horn, posterior horn and body of the lateral meniscus. Dr. Yunez
     referred the claimant to Dr. William Hadesman, an orthopedic surgeon. On March 6, 2007,
     based upon the results of the MRI, Dr. Hadesman recommended that the claimant undergo
     knee surgery. The claimant agreed, and the surgery was scheduled for May 2, 2007. Dr.
     Hadesman also prescribed Norco for the claimant’s pain. The claimant subsequently returned
     to regular duty at work while waiting to undergo the recommended knee surgery.
¶7       The claimant testified that the injury to his right knee on January 13, 2007, was the only
     injury he sustained to the knee prior to his fall on April 5, 2007. He described his knee pain
     following the events of January 13, 2007, as intermittent and not incapacitating, but testified
     that when he engaged in strenuous activity, he would feel a burning, sore sensation.
¶8       Robert Budig testified that he was employed by the Village as the deputy chief of police
     and that he worked in the same police station as the claimant. According to Budig, on
     numerous occasions during the period between January 13, 2007, and April 5, 2007, he
     observed the claimant walking with a limp. Budig discussed the limp with the claimant, who
     told him that it was caused by the fall at his cabin in January. Budig’s testimony was
     contradicted by that of Officer Scott Schroeder, who testified that he did not notice the
     claimant limping prior to the April 5 accident.
¶9       The claimant stated that, on April 5, 2007, as he began descending the steps, he “knew
     something was wrong.” His knee then gave out in a way that it never had before. He stated that,
     after falling down the stairs and impacting the landing, he felt pain in his lower back and a
     sharp, throbbing pain in his knee, which began to swell. The claimant immediately sought
     treatment in the emergency room at Elmhurst Hospital. The following day, he saw Dr. Yunez
     for his back pain. He subsequently returned to Dr. Hadesman, who, on April 17, 2007,
     prescribed a lumbar MRI and a repeat MRI for his knee. The MRI on the claimant’s knee
     disclosed an undersurface tear in the posterior horn of the meniscus which was unchanged
     from the previous scan. The lumbar MRI disclosed some hypertrophy of the facet joints
     posteriorly at L4-L5 and L5-S1 and some focal disc herniation and spinal stenosis, but no
                                                  -3-
       significant disc desiccation, bulging or herniation The claimant testified that he was given
       authorization to be off of work by both Dr. Yunez for his back condition and Dr. Hadesman for
       his knee.
¶ 10       The claimant testified that, after the April 5 fall, he was no longer able to function the way
       he had previously. He suffered a loss of range of motion in his knee and initially walked with a
       limp. According to the claimant, he had never injured his back prior to the April 5 fall. He
       indicated that, prior to the April 5 fall, he was experiencing pain at a level of 1 or 2 out of 10
       and that, after the fall, the pain was elevated to an 8 or 9. The combination of the injury to his
       back and knee prevented him from performing any type of physical activity.
¶ 11       The claimant testified that, at the time of the hearing, he suffered from constant back pain
       which varied depending on the level of his physical activity. If he sat for long periods of time,
       he had to get up and stretch because his back was sore. He testified that his knee also becomes
       sore and needs to be stretched out when he is stationary for long periods. The claimant stated
       that he is no longer able to perform various activities around his home, such as those requiring
       heavy lifting, and that he is no longer able to run or squat. The claimant testified that, prior to
       the April 5 fall, he was able to run and squat and suffered none of the above limitations. After
       the claimant’s May 2, 2007, right knee surgery, Dr. Yunez prescribed physical therapy for the
       claimant’s back. According to the claimant, the prescribed therapy seemed to hurt more than it
       helped, so he discontinued the treatment. The claimant was prescribed Vicodin for pain, which
       he took only on an as-needed basis. The claimant returned to full duty on August 6, 2007.
¶ 12       At the conclusion of the hearing, the arbitrator found that, while the claimant’s fall did not
       appear to be idiopathic in nature, the act of walking down stairs by itself did not establish a risk
       greater than those faced outside the work place. Thus, the arbitrator concluded that the
       claimant failed to prove that his injuries arose out of and in the course of his employment.
¶ 13       In a decision with one commissioner dissenting, the Commission reversed the arbitrator’s
       decision as to the claimant’s back injury only, finding that it was caused by an accident arising
       out of and in the course of his employment. The Commission reasoned that, at the time of the
       April 5 fall, the claimant’s use of the stairs fell within the “personal comfort doctrine” and,
       therefore, arose out of and in the course of his employment. The Commission focused on the
       claimant’s testimony that he used the stairs numerous times per day in order to access the
       police locker room and for personal breaks. Further, the Commission concluded that the
       claimant’s necessary and repeated use the stairs for his employment exposed him to a greater
       risk than the general public. With regard to his knee, however, the Commission found that the
       claimant’s injury and subsequent surgery were not causally related to his workplace accident
       of April 5, 2007, but rather caused by his fall on January 13, 2007. The Commission pointed
       out that the second MRI of the claimant’s knee reflected no change from the original MRI on
       March 6, 2007. Accordingly, the Commission ordered the Village to pay the claimant
       permanent partial disability benefits in the amount of $456.43 per week for a period of 25
       weeks under section 8(d)(2) of the Act, reflecting the claimant’s loss of 5% of the person as a
       whole. 820 ILCS 305/8(d)(2) (West 2006).
¶ 14       The dissenting commissioner was of the opinion that the evidence did not support the
       majority’s finding because the claimant testified he fell due to his knee buckling. He explained
                                                     -4-
       that no evidence indicated that the stairs were defective, that the claimant was carrying
       anything related to his employment when he fell, or that he was rushing down the stairs for any
       work-related reason. Rather, the dissenting commissioner opined that the evidence supported a
       finding that the claimant fell because of his preexisting knee condition and that the act of
       walking down the stairs at work did not expose the claimant to a risk greater than that faced by
       the general public.
¶ 15       The Village sought judicial review of the Commission’s decision in the circuit court of
       Du Page County. On October 1, 2010, the circuit court confirmed the Commission’s decision,
       and this appeal followed.
¶ 16       On appeal, the Village argues that the Commission’s determination that the claimant’s
       back injury arose out of a risk inherent in his employment is against the manifest weight of the
       evidence. Specifically, the Village contends that the Commission erred in relying on the
       personal-comfort doctrine because there was no evidence that the claimant’s use of the stairs
       was related to anything necessary for his health or comfort. The Village also contends that the
       Commission erred in determining that the claimant’s daily, frequent use of the stairs exposed
       him to a greater risk than that to which the general public is exposed when traversing stairs. We
       disagree.
¶ 17       To obtain compensation under the Act, a claimant bears the burden of showing, by a
       preponderance of the evidence, that he has suffered an injury which arose out of and in the
       course of his employment. Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 203-04 (2003).
       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 (1989).
¶ 18       “In the course of employment” refers to the time, place and circumstances surrounding the
       injury, meaning that, generally, the injury must occur within the time and space boundaries of
       the employment. Sisbro, 207 Ill. 2d at 203. In this case, the claimant was working in the police
       station to which he was assigned at the time of his fall on April 5, 2007. Consequently, there is
       no dispute on the question of whether his injury occurred “in the course of” his employment.
¶ 19       Additionally, however, the injury must also “arise out of” the employment. To satisfy the
       “arising out of” requirement, “it must be shown that the injury had its origin in some risk
       connected with, or incidental to, the employment so as to create a causal connection between
       the employment and the accidental injury.” Sisbro, 207 Ill. 2d at 203. “Stated otherwise, ‘an
       injury arises out of one’s employment if, at the time of the occurrence, the employee was
       performing acts he was instructed to perform by his employer, acts which he had a common
       law or statutory duty to perform, or acts which the employee might reasonably be expected to
       perform incident to his assigned duties. [Citations.] A risk is incidental to the employment
       where it belongs to or is connected with what an employee has to do in fulfilling his duties.’ ”
       Sisbro, 207 Ill. 2d at 204 (quoting Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52,
       58 (1989)). The question of whether a causal relationship exists between a claimant’s
       employment and his workplace injury is a question of fact to be resolved by the Commission
       (Certi-Serve, Inc. v. Industrial Comm’n, 101 Ill. 2d 236, 244 (1984)), and its resolution of the
       issue will not be disturbed on appeal unless it is against the manifest weight of the evidence

                                                   -5-
       (Orsini v. Industrial Comm’n, 117 Ill. 2d 38, 44 (1987); Caterpillar, Inc. v. Industrial Comm’n,
       228 Ill. App. 3d 288, 291 (1992)).
¶ 20       “There are three categories of risk 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 (2000). A fall
       caused by a weak knee is a personal risk. Illinois Consolidated Telephone Co. v. Industrial
       Comm’n, 314 Ill. App. 3d 347, 352-53 (2000) (Rakowski, J., specially concurring). Injuries
       resulting from a fall caused by some personal weakness of the claimant, such as a weak knee,
       are not compensable under the Act unless the claimant’s employment significantly contributes
       to the injury by placing him in a position of greater risk of falling. Stapleton v. Industrial
       Comm’n, 282 Ill. App. 3d 12, 16 (1996). Falling while traversing stairs is a neutral risk, and the
       injuries resulting therefrom generally do not arise out of employment. Illinois Consolidated
       Telephone Co., 314 Ill. App. 3d at 353. As with personal risks, however, an exception to
       noncompensability under the Act exists where the requirements of the claimant’s employment
       create a risk to which the general public is not exposed. Id. “The increased risk may be
       qualitative *** or quantitative, such as where the [claimant] is exposed to a common risk more
       frequently than the general public.” Id. We believe that the facts of this case support the
       Commission’s finding that the claimant’s fall and resulting injury arose both out of and in the
       course of his employment with the Village and that its holding in this regard is not against the
       manifest weigh of the evidence.
¶ 21       The evidence of record supports the Commission’s finding that the claimant was
       “continually forced to use the stairway” both for his personal comfort and “to complete his
       work related activities.” Specifically, the evidence established that the claimant was required
       to traverse the stairs in the police station a minimum of six times per day. This fact, coupled
       with evidence that the claimant informed his superiors, prior to his fall on April 5, 2007, that he
       had injured his knee and the testimony of Deputy Chief Budig that he had seen the claimant
       walk with a limp on numerous occasions prior to April 5, 2007, certainly supports the inference
       that the Village required the claimant to continuously traverse the stairs in the police station,
       knowing that he had an injured knee. These facts are more than sufficient to support both the
       conclusion that the claimant’s employment placed him in a position of greater risk of falling,
       satisfying the exception to the general rule of noncompensability for injuries resulting from a
       personal risk, and that the frequency with which the claimant was required to traverse the stairs
       constituted an increased risk on a quantitative basis from that to which the general public is
       exposed.
¶ 22       In passing, the Village also argues in its brief that the Commission’s finding that the
       claimant’s low back injury is directly and causally related to his work injury on April 5, 2007,
       is against the manifest weight of the evidence. Its argument in this regard is grounded solely
       upon the proposition that the claimant’s injury did not arise out of his employment; a
       proposition we have rejected for the reasons stated above. Consequently we also reject its
       argument in this context.

                                                    -6-
¶ 23      Based upon the foregoing analysis, we affirm the judgment of the circuit court of Du Page
       County which confirmed the Commission’s decision.

¶ 24      Affirmed




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