                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




   Mlynarczyk v. Illinois Workers’ Compensation Comm’n, 2013 IL App (3d) 120411WC




Appellate Court            STANISLAWA MLYNARCZYK, Appellant, v. THE ILLINOIS
Caption                    WORKERS’ COMPENSATION COMMISSION, et al., (Sophie
                           Obrochta d/b/a Janitorial By Sophie, Appellee).



District & No.             Third District
                           Docket No. 3-12-0411WC


Filed                      May 30, 2013
Rehearing denied           August 6, 2013


Held                       The appellate court reversed the Workers’ Compensation Commission’s
(Note: This syllabus       decision that claimant did not suffer a compensable injury when she fell
constitutes no part of     and broke her wrist while walking to a van provided to her and her
the opinion of the court   husband by their employer to travel to cleaning assignments,
but has been prepared      notwithstanding the fact that they had parked the van at their residence
by the Reporter of         during a break, since claimant was a “traveling employee,” her walk to
Decisions for the          the van initiated her journey to a work assignment, and claimant
convenience of the         sufficiently established that her fall occurred on a “public sidewalk”
reader.)
                           where she was exposed to the “hazards of the street.”


Decision Under             Appeal from the Circuit Court of Will County, No. 11-MR-766; the Hon.
Review                     Barbara Petrungaro, Judge, presiding.



Judgment                   Reversed and remanded with directions.
Counsel on                 Frank I. Gaughan, of Steven B. Salk & Associates, Ltd., of Chicago, for
Appeal                     appellant.

                           Michael S. Powalisz, of Roddy, Leahy, Guill & Zima, Ltd., of Chicago,
                           for appellee.


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




                                             OPINION

¶1           Claimant, Stanislawa Mlynarczyk, appeals from the judgment of the circuit court of Will
        County confirming a decision of the Illinois Workers’ Compensation Commission
        (Commission). The Commission determined that claimant failed to prove that she sustained
        an accident arising out of and in the course of her employment with respondent, Sophie
        Obrochta, d/b/a Janitorial by Sophie. On appeal, claimant argues that she was a “traveling
        employee” and therefore was entitled to benefits under the Workers’ Compensation Act (Act)
        (820 ILCS 305/1 et seq. (West 2006)). We agree. Therefore, we reverse the judgment of the
        trial court, reverse the decision of the Commission, and remand this cause for further
        proceedings.

¶2                                        I. BACKGROUND
¶3           The following factual recitation is taken from the evidence presented at the arbitration
        hearing held over the course of several dates beginning on September 29, 2009. Respondent
        operates a cleaning service run by Walter Obrochta and his wife, Sophie. Claimant testified
        through a Polish interpreter that she became employed by respondent in September 2007.
        Claimant’s duties involved cleaning churches, homes, and offices. Claimant testified that she
        was paid by the job. Claimant’s husband, Edward Mlynarczyk, also worked for respondent.
        As part of his employment, Edward occasionally drove respondent’s employees to and from
        jobsites. Edward used a minivan provided by Walter and Sophie to transport the employees.
        Neither respondent’s name, logo, nor telephone number appears on the minivan.
¶4           At the time claimant and Edward were hired by respondent, they did not own an
        automobile. Accordingly, Edward also used the minivan to drive himself and claimant to
        work, to visit family, to shop, and to do other personal errands. Edward testified that he paid
        for the gasoline when he used the minivan for personal trips. At all other times, however, the
        Obrochtas paid or reimbursed him for fuel. The Obrochtas also paid the other costs


                                                  -2-
     associated with the minivan, including insurance and licensing fees.
¶5       On December 5, 2007, claimant, then 60 years old, left her home at 6:30 a.m. and was
     driven by Edward in the minivan to clean a church in Downers Grove, Illinois. After cleaning
     the church, Edward drove claimant in the minivan to clean two homes. Claimant and Edward
     finished cleaning the second home at about 2:30 p.m. Walter testified that claimant and
     Edward usually had a full day of jobs from 6 a.m. to 4 p.m. On December 5, 2007, however,
     there were some cancellations due to the holiday season. Walter informed claimant and
     Edward that there were no other assignments for them, but that if they were interested in
     assisting the evening crew on another job, they should return to the church at around 4:30
     p.m. Claimant and Edward agreed to return that evening. In the meantime, Edward and
     claimant traveled home in the minivan to eat lunch.
¶6       Typically, claimant and Edward took a 15-minute break for lunch. On the date in
     question, however, Edward and claimant remained home for about 90 minutes. Claimant was
     not paid for the time between the morning and evening jobs. Shortly after 4 p.m., Edward
     returned to the minivan to warm it up. The minivan was parked in the driveway of the house
     where claimant and Edward resided. At approximately 4:10 p.m., claimant left the house to
     return to work. Claimant testified that the ground was covered with snow, although she was
     not sure whether there was any ice beneath the snow. As claimant walked around the rear of
     the minivan, she slipped and fell. Claimant testified that the accident occurred adjacent to the
     driveway on a “public sidewalk” leading from the house to the driveway. Edward testified
     that although he did not see claimant fall, he found her lying behind the van, which was
     parked in the driveway. Claimant testified that she immediately felt “tremendous pain” in her
     left hand. She was unable to get up, so she called Edward for assistance. According to
     claimant, at the time of the fall, she had a purse on her shoulder but was not holding anything
     in her hands. En route to the hospital, Edward informed Walter of the accident. Claimant was
     diagnosed with a left wrist fracture, which required surgery to repair.
¶7       Claimant testified that because of lifting restrictions, she was unable to return to work
     for respondent, but found a position performing light housekeeping and cooking for an
     elderly woman. That job started on December 18, 2008. In September 2009, the woman fell
     and became unable to walk. Claimant had to quit that job because she could not lift the
     woman. Claimant testified that she sometimes has pain in her left wrist and feels pain when
     she attempts to lift anything heavy. She also notices that she does not have the same strength
     in the left hand as she did before the accident.
¶8       Walter testified that because claimant and Edward were “new in this country,” he and
     Sophie tried “to help them to stand on their feet.” Walter testified that he lent the minivan
     to claimant and Edward because he was not using it. Walter testified that claimant and
     Edward could use the minivan for “anything,” including work, shopping, and family visits.
     Walter stated that Edward returned the minivan in February 2008, after he purchased his own
     car. According to Walter, the minivan was not titled in the name of the business but rather
     in his name and the name of his wife. Walter also testified that he and Sophie, not the
     company, paid to insure the vehicle.
¶9       The arbitrator concluded that claimant sustained a compensable accident. The arbitrator


                                               -3-
       acknowledged the general rule that injuries incurred while traveling to or from the workplace
       are not considered to arise out of and in the course of one’s employment. Nevertheless, the
       arbitrator found claimant’s accident compensable on the grounds that claimant was a
       traveling employee and respondent provided claimant a means of transportation to and from
       work for its own benefit. The arbitrator also concluded that claimant’s current condition of
       ill-being is causally related to her employment. The arbitrator awarded claimant reasonable
       and necessary medical expenses (see 820 ILCS 305/8(a) (West 2006)), 54 weeks of
       temporary total disability benefits (see 820 ILCS 305/8(b) (West 2006)), and 133¼ weeks
       of permanent partial disability benefits, representing a 65% loss of use of the left hand (see
       820 ILCS 305/8(e)(9) (West 2006)). In addition, the arbitrator assessed attorney fees and
       penalties against respondent pursuant to sections 16, 19(k), and 19(l) of the Act. See 820
       ILCS 305/16, 19(k), (l) (West 2006).
¶ 10        Respondent sought review of the arbitrator’s decision before the Commission,
       challenging the arbitrator’s finding of a compensable accident and his imposition of attorney
       fees and penalties. The Commission reversed the decision of the arbitrator. The Commission
       found that claimant failed to prove that the injuries she sustained as a result of her fall on
       December 5, 2007, arose out of and in the course of her employment. The Commission
       explained as follows:
                 “[Claimant] testified that she fell on her personal driveway while walking to a vehicle
            to go to work. [Claimant] testified she did not know if there was ice under the snow on
            the sidewalk and driveway. The public sidewalk and private driveway were in the same
            condition as it related to the ice and snow. [Claimant] was not carrying anything when
            she fell; she had her purse on her shoulder. The Commission finds that the [claimant]
            failed to prove that she was exposed to a risk that was connected or incidental to her
            employment and therefore fails to prove that the injuries she sustained as a result of her
            fall on December 5, 2007 arose out of her employment.
                 Further, [claimant] fails to prove that the injuries she sustained due to the fall on her
            driveway were sustained in the course of her employment. [Claimant] had not yet left her
            personal property when the injury occurred. She had not been exposed to the hazards of
            the street or automobile as she had yet to get in a car or leave her own driveway.
            [Claimant] usually had a set schedule of cleaning jobs that she did daily that would cover
            the hours of 6:30 am to 4:00 pm and she did not normally take a lunch break of more
            than 15-30 minutes. She was never directed by her employer to take a lunch break.
            [Claimant] was not paid by the day or hour, but by the cleaning jobs she completed. On
            December 5, 2007 [claimant’s] normal routine was disrupted by cancellations of one or
            more of her usual cleaning jobs. [Claimant] and her husband were given the option by
            their employer to assist another cleaning crew on a job that evening if they wanted to
            make up the lost money from the cancellation. [Claimant] and her husband agreed to the
            additional cleaning job. It was during the time off from the period between her last
            scheduled job and before she started the extra evening cleaning job that [claimant] fell
            on her own driveway. [Claimant] was not on the employer’s premises or at a job location
            where she would have been performing her work duties when she fell. While the
            Commission does not find [claimant] to be a traveling employee, it notes that [claimant]

                                                  -4-
          had not yet left her property or even entered a vehicle when she was injured, was not paid
          for her time between jobs or mileage for travel and was not exposed to any of the risks
          of a traveling employee. Even if the Commission found [claimant] to be a traveling
          employee, it would not circumvent the requirement that the injury arise out of and in the
          course of her employment. If the Commission were to find accident in this case, then
          ANY movement by [claimant] at any time during the day or night would lead to a
          compensable claim.” (Emphasis in original.)
       The circuit court of Will County confirmed the decision of the Commission. This timely
       appeal followed.

¶ 11                                       II. ANALYSIS
¶ 12        On appeal, claimant argues that the Commission erred as a matter of law in finding that
       she was not a traveling employee. Claimant further contends that the Commission erred in
       finding that she failed to prove that she sustained an accidental injury arising out of and in
       the course of her employment with respondent.
¶ 13        An employee’s injury is compensable under the Act only if it “aris[es] out of” and “in the
       course of” her employment. 820 ILCS 305/2 (West 2006). Both elements must be present for
       the claimant’s injuries to be compensable. Illinois Bell Telephone Co. v. Industrial Comm’n,
       131 Ill. 2d 478, 483 (1989). “In the course of” refers to the time, place, and circumstances
       under which the accident occurred. Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill.
       2d 52, 57 (1989). An injury “arises out of” one’s employment if there is a causal connection
       between the employment and the accidental injury, i.e., the injury has its origin in some risk
       connected with, or incidental to, the employment or the injury is caused by some risk to
       which the employee is exposed to a greater degree than the general public by virtue of his
       employment. Caterpillar Tractor Co., 129 Ill. 2d at 58; Becker v. Industrial Comm’n, 308
       Ill. App. 3d 278, 281 (1999).
¶ 14        Generally, injuries incurred while traveling to and from the workplace are not considered
       to arise out of and in the course of one’s employment. Becker, 308 Ill. App. 3d at 282. The
       determination whether an injury to a traveling employee arose out of and in the course of
       employment, however, is governed by different rules than are applicable to other employees.
       Venture-Newberg Perini Stone & Webster v. Illinois Workers’ Compensation Comm’n, 2012
       IL App (4th) 110847WC, ¶ 12. Thus, for instance, a traveling employee is deemed to be in
       the course of his employment from the time the employee leaves home until he or she
       returns. Cox v. Illinois Workers’ Compensation Comm’n, 406 Ill. App. 3d 541, 545 (2010).
       Accordingly, we initially address whether claimant is a traveling employee.
¶ 15        The parties disagree as to our standard of review on the traveling-employee issue.
       Claimant argues that our review should be de novo, while respondent contends that we
       should apply the manifest-weight-of-the-evidence standard. We apply the manifest-weight-
       of-the-evidence standard when reviewing the Commission’s factual findings. Lenny Szarek,
       Inc. v. Illinois Workers’ Compensation Comm’n, 396 Ill. App. 3d 597, 603 (2009). We also
       employ the manifest-weight-of-the-evidence standard where the facts are undisputed, but
       more than one reasonable inference may be drawn therefrom. Federal Marine Terminals, Inc.

                                                -5-
       v. Illinois Workers’ Compensation Comm’n, 371 Ill. App. 3d 1117, 1127 (2007). In contrast,
       we review de novo the Commission’s decisions on questions of law. Otto Baum Co. v.
       Illinois Workers’ Compensation Comm’n, 2011 IL App (4th) 100959WC, ¶ 13. We also
       apply the de novo standard of review when the facts essential to our analysis are undisputed
       and susceptible to but a single inference and our review therefore involves only an
       application of the law to those undisputed facts. Johnson v. Illinois Workers’ Compensation
       Comm’n, 2011 IL App (2d) 100418WC, ¶ 17. With respect to the narrow issue of whether
       claimant is a traveling employee, we agree with claimant that the de novo standard of review
       applies. Here, claimant does not dispute the accuracy of the Commission’s factual findings.
       Rather, she insists that the Commission’s legal conclusion that she is not a traveling
       employee is erroneous. As such, there are no disputes as to the facts of the case or the factual
       inferences to be drawn therefrom, and all that remains for us is to determine if the facts
       satisfy this legal standard.
¶ 16        A traveling employee is one who is required to travel away from her employer’s premises
       to perform her job. Cox, 406 Ill. App. 3d at 545. It is not necessary for an individual to be a
       traveling salesman or a company representative who covers a large geographic area to be
       considered a traveling employee. Hoffman v. Industrial Comm’n, 128 Ill. App. 3d 290, 293
       (1984), aff’d, 109 Ill. 2d 194 (1985). In the present case, claimant did not work at a fixed
       jobsite. Rather, her duties required her to travel to various locations throughout the
       Chicagoland area. As such, we find that she qualifies as a traveling employee.1
¶ 17        A finding that a claimant is a traveling employee, however, does not relieve the employee
       of the burden of proving that her injury arose out of and in the course of her employment.
       Venture-Newberg Perini Stone & Webster, 2012 IL App (4th) 110847WC, ¶ 14. The test
       whether a traveling employee’s injury arose out of and in the course of employment is the
       reasonableness of the conduct in which she was engaged at the time of the injury and whether
       that conduct might have been anticipated or foreseen by the employer. Venture-Newberg
       Perini Stone & Webster, 2012 IL App (4th) 110847WC, ¶ 14. The question is one of fact for
       the Commission, and its determination will not be overturned on appeal unless it is against
       the manifest weight of the evidence. Venture-Newberg Perini Stone & Webster, 2012 IL App


               1
                Respondent concedes that claimant does not have a central job location and that claimant’s
       work for respondent requires her to travel to various sites. Respondent contends, however, that
       claimant’s travel “is analogous to that of a construction worker” and that “[c]onstruction workers
       routinely travel to and from work sites and injuries that occur in that travel are not compensable
       because construction workers are not traveling employees.” Respondent cites no authority for this
       proposition and we therefore do not address it. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008)
       (requiring appellant’s brief to include argument “which shall contain the contentions of the appellant
       and the reasons therefor, with citation of the authorities and the pages of the record relied on”
       (emphasis added)); Vallis Wyngroff Business Forms, Inc. v. Illinois Workers’ Compensation
       Comm’n, 402 Ill. App. 3d 91, 94 (2010) (holding that failure to comply with provision of Illinois
       Supreme Court Rule 341(h)(7) requiring citation to authority results in forfeiture of argument on
       appeal); Ameritech Services, Inc. v. Illinois Workers’ Compensation Comm’n, 389 Ill. App. 3d 191,
       208 (2009) (same).

                                                    -6-
       (4th) 110847WC, ¶ 14. A decision is against the manifest weight of the evidence only if an
       opposite conclusion is clearly apparent. Will County Forest Preserve District v. Illinois
       Workers’ Compensation Comm’n, 2012 IL App (3d) 110077WC, ¶ 5. Although we are
       reluctant to conclude that a factual determination of the Commission is against the manifest
       weight of the evidence, we will not hesitate to do so when the clearly evident, plain, and
       undisputable weight of the evidence compels an opposite conclusion. Dye v. Illinois
       Workers’ Compensation Comm’n, 2012 IL App (3d) 110907WC, ¶ 10.
¶ 18        In this case, the Commission determined that even if it had found claimant to be a
       traveling employee, it would still deny compensation. We conclude that this finding is
       against the manifest weight of the evidence.
¶ 19        The evidence establishes that claimant’s injury occurred after she left home, while
       walking to a vehicle used to transport her to work. Thus, because claimant is a traveling
       employee, the injury occurred in the course of her employment. See Cox, 406 Ill. App. 3d at
       545 (noting that a traveling employee is deemed to be in the course of his or her employment
       from the time the employee leaves home until he or she returns). In addition, we find that the
       injury arose out of claimant’s employment. As noted earlier, a traveling employee is one for
       whom travel is an essential element of his employment. Cox, 406 Ill. App. 3d at 545. As
       such, traveling employees “are compelled to expose themselves to the hazards of the street
       and to the hazards of automobile[s] *** much more than the general public.” Illinois
       Publishing & Printing Co. v. Industrial Comm’n, 299 Ill. 189, 197 (1921). Since claimant
       is a traveling employee, her exposure to the hazards of the streets is, by definition, greater
       quantitatively than that of the general public, as long as her conduct at the time of the injury
       was reasonable and foreseeable to the employer. Venture-Newberg Perini Stone & Webster,
       2012 IL App (4th) 110847WC, ¶ 14; Potenzo v. Illinois Workers’ Compensation Comm’n,
       378 Ill. App. 3d 113, 119 (2007). Claimant testified that the accident occurred as she was
       walking to the vehicle used to transport her to a work assignment for respondent. Claimant’s
       walk to the minivan constituted the initial part of her journey to her work assignment. As
       such, it was reasonable and foreseeable.
¶ 20        During oral argument, respondent asserted that even if claimant is a traveling employee,
       her injury is not compensable because she had not left her private property when the injury
       occurred and therefore had not yet been subjected to the hazards of the street or an
       automobile. We find, however, that the evidence does not support the premise that claimant’s
       fall occurred on private property. Edward testified that he did not observe claimant fall.
       Claimant testified that the accident occurred adjacent to the driveway on a “public sidewalk”
       leading from the house to the driveway. Respondent presented no evidence to the contrary,
       and we find claimant’s testimony sufficient to establish that the accident, which occurred on
       a “public sidewalk,” exposed claimant to the hazards of the street. Moreover, we note that
       respondent cites no authority in support of its claim that a traveling employee who has left
       the physical confines of his or her home on the way to a job assignment and sustains an
       accident on private property cannot be subject to the hazards of the street. See Illinois
       Institute of Technology Research Institute v. Industrial Comm’n, 314 Ill. App. 3d 149, 163
       (2000) (noting that the street-risk doctrine has been extended to cover inside structures if it
       is a place where the source of the risk could be expected to exist (citing C.A. Dunham Co.

                                                 -7-
       v. Industrial Comm’n, 16 Ill. 2d 102 (1959) (business traveler’s death in an explosion and
       crash of a commercial plane))).
¶ 21       In so holding, we find misplaced the Commission’s concern that such a holding would
       render compensable “ANY movement by [claimant] at any time during the day or night.”
       (Emphasis in original.) The Commission does not explain why it believes this would be the
       case, and we note that an employee seeking benefits under the Act would still be required to
       establish that his injury arose out of and in the course of his employment as well as the
       reasonableness of the conduct in which the employee was engaged at the time of the injury
       and whether that conduct might have been anticipated or foreseen by the employer. Venture-
       Newberg Perini Stone & Webster, 2012 IL App (4th) 110847WC, ¶ 14; see also Caterpillar
       Tractor Co., 129 Ill. 2d at 61-62 (“While the broad language of [the cited] cases might
       appear to imply that any accidental injury sustained on the employer’s premises is
       compensable, that is not the law in this State. An examination of the cases indicates this
       court’s continued adherence to the maxim that an injury is not compensable unless it is
       causally connected to the employment.” (Emphasis in original.)).

¶ 22                                    III. CONCLUSION
¶ 23        For the reasons set forth above, we reverse the judgment of the circuit court of Will
       County, which confirmed the decision of the Commission. We reverse the decision of the
       Commission and remand the matter to the Commission to reinstate the arbitrator’s awards
       of medical expenses, TTD benefits, and PPD benefits. In addition, the Commission is
       instructed on remand to address the propriety of the arbitrator’s imposition of attorney fees
       and penalties pursuant to sections 16, 19(k), and 19(l) of the Act (820 ILCS 305/16, 19(k),
       (l) (West 2006)).

¶ 24      Reversed and remanded with directions.




                                                -8-
