                           2015 IL App (2d) 130874WC
                                No. 2-13-0874WC
                          Opinion filed February 19, 2015
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                                      SECOND DISTRICT

                    Workers’ Compensation Commission Division
______________________________________________________________________________

LANYON PRYOR,                          ) Appeal from the Circuit Court
                                       ) of Winnebago County.
               Appellant,              )
                                       )
         v.                            ) No. 12-MR-821
                                       )
ILLINOIS WORKERS’ COMPENSATION         )
COMMISSION et al.                      ) Honorable
                                       ) J. Edward Prochaska,
(Cassen Transport, Appellee).          ) Judge, Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
       Justices Hoffman, Hudson, Harris, and Stewart concurred in the judgment and opinion.

                                            OPINION

¶1     The claimant, Lanyon Pryor, filed an application for adjustment of claim under the

Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)), seeking benefits for an

injury to his lower back which he sustained on July 21, 2008, while he was employed by Cassen

Transport (employer). After conducting a hearing, an arbitrator found that the claimant had

failed to prove that he sustained an accident that arose out of and in the course of his

employment. In so ruling, the arbitrator rejected the claimant’s argument that he was acting as a

“traveling employee” at the time he was injured. The arbitrator also found that the claimant

failed to prove that the injuries he sustained, if any, were causally connected to his employment.
2015 IL App (2d) 130874WC


¶2     The claimant appealed the arbitrator’s decision to the Illinois Workers’ Compensation

Commission (Commission), which unanimously affirmed and adopted the arbitrator’s decision.

The Commission found that the risk which resulted in the claimant’s alleged injury was a

personal risk that was “not sufficiently connected to [his] employment in order to be a risk

peculiar to his work.”    Moreover, like the arbitrator, the Commission also found that the

claimant’s “travel for work had not yet begun when the accident occurred.”

¶3     The claimant then sought judicial review of the Commission’s decision in the circuit

court of Winnebago County, which confirmed the Commission’s decision.                  This appeal

followed.

¶4                                          FACTS

¶5     The employer delivers new automobiles to various car dealerships for Chrysler. The

claimant works for the employer as a car hauler.            His responsibilities include loading

automobiles onto an 18-wheel car-hauling truck at the employer’s terminal in Belvidere, Illinois,

driving the truck to various dealerships, and unloading the cars at those dealerships. Sometimes

the claimant picks up vehicles on his return trip, loads them on the truck, and delivers them to

another location on his way back to Belvidere. The claimant usually drives his personal vehicle

from his home to the employer’s Belvidere terminal and back.

¶6     One to two nights per week, the claimant spends the night at a hotel while he is on the

road delivering cars to dealerships. The employer provides each car hauler with a list of motels

so he can book an overnight stay at one of those hotels while he is on the road. When the

claimant anticipates that he will be staying overnight at a hotel, he packs a suitcase with a change

of clothes. The claimant usually drives to the employer’s terminal in his personal vehicle, takes




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2015 IL App (2d) 130874WC


the suitcase out of his vehicle, and puts it into an 18-wheeler. He then loads the 18-wheeler with

cars and drives it to the various dealerships where he delivers the cars.

¶7     On July 21, 2008, the claimant arose at 4 a.m. to get ready for work. He testified that he

planned to drive to the Belvidere terminal that morning to “start [his] work.” Because he

anticipated being out of town overnight for work that evening, the claimant packed a suitcase

with a change of clothes and other items for the trip. The claimant carried the packed suitcase to

his personal car, opened the car door, reached down to pick up the suitcase, and “bent and turned

to the back seat of the car.” At that moment, the claimant felt an “unbearable” pain through his

back and down his legs which caused him to drop to his knees. The claimant stated that he had

to “crawl into [his] house screaming for [his] wife” because he “thought [he] was paralyzed.”

¶8     Later that day, the claimant’s wife drove the claimant to his chiropractor, Dr. Irshad

Kassim.     Dr. Kassim’s July 21, 2008, treatment record reflects that the claimant reported

“severe,” “sharp,” and “burning” pain in his lower back radiating into his right leg. The claimant

rated the pain as a 10 on a scale of 0 to 10. Dr. Kassim’s treatment record notes that “since his

last visit, [the claimant’s] lower back pain has been worse.” 1 The claimant reported feeling a


       1
           The claimant had been treating with Dr. Kassim for lower back pain beginning on July

15, 2008. The claimant testified that this pain was triggered when he strained his back at work

on July 10, 2008, while chaining a car onto a car-hauling truck. However, Dr. Kassim’s July 15

and 17 medical records do not make any note of a work-related accident, and the claimant did

not report a work-related injury to the employer until July 25, 2008. The claimant testified that

he did not think that the July 10, 2008, work injury was serious and he was hoping to resolve it

without involving the employer and without missing time at work. The claimant’s alleged July


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2015 IL App (2d) 130874WC


sharp burning pain in his lower back “while he was picking up a suitcase to go to work.” Dr.

Kassim noted that the claimant was “acutely inflamed and needed assistance to walk.” The

doctor recommended that the claimant go to the emergency room. He also noted that the

claimant should “continue with the prescribed home care.”

¶9     The claimant’s wife then drove him to the emergency room at St. Alexis Hospital. At the

emergency room, the claimant was given an injection for pain relief and told to follow up with

his family doctor, Dr. Pocholo Florentino. On July 23, 2008, Dr. Florentino examined the

claimant and ordered an MRI, which revealed disc bulging at L2-L5. The following day, Dr.

Florentino reexamined the claimant and prescribed medication and physical therapy. During the

initial physical therapy session, the therapist instructed the claimant in a home exercise

program. 2 After performing these exercises at home, the claimant returned to Dr. Florentino,

who released the claimant for work as of August 18, 2008. The claimant returned to work on

that date. During the arbitration hearing on March 14, 2011, the claimant testified that his lower

back was “fine.”

¶ 10   The claimant testified that he never had lower back pain before July of 2008. However,

Dr. Kassim’s June 4, 2005, medical record indicates that, “[o]n this visit, [the claimant] stated

that he was experiencing constant mild to moderate lower back pain which was sharp in quality.”


10, 2008, work injury was the subject of a separate claim. Although that claim was consolidated

with the instant claim, the arbitrator issued a separate decision addressing the former claim

which is not included in the record.
       2
           The claimant did not undergo any additional physical therapy sessions because he was

denied insurance coverage for those sessions.


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2015 IL App (2d) 130874WC


According to Dr. Kassim’s June 4, 2005, medical record, the claimant’s pain was radiating into

his left leg, and the claimant rated the pain as a 5 on a scale of 0 to 10. Dr. Kassim diagnosed the

claimant with “lumbar somatic dysfunction” and sciatica and prescribed biweekly chiropractic

treatments. Dr. Kassim's June 10, 2005, medical record reflects that, although the claimant’s

lower back pain was getting better, the claimant was still experiencing “constant mild to

moderate diffuse lower back pain which was sharp and tingling in quality.” Dr. Kassim’s June

24, 2005, medical record notes that the claimant’s “lower back pain has remained unchanged.”

¶ 11    The employer presented the evidence deposition of Charles Anderson, the employer’s

operations manager. Anderson testified that the claimant called in sick on July 14, 15, and 16

2008, and left a message stating that he was having “sciatic nerve problems due to a motorcycle

ride.” The claimant testified that he spoke with his employer on July 16, 2008, and reported that

he had hurt his back while loading cars at work. However, when asked on cross-examination

“[i]f the note or Mr. Anderson *** would testify that you called him and told him you were

having sciatic nerve problems due to a motorcycle ride and you need to be off a couple days[,]

would that be incorrect?”, the claimant responded “I am not—I don't recall that. It could be and I

don’t remember because we are talking two and a half or three years ago.” The claimant

admitted that he rode his motorcycle approximately 250 miles to Wisconsin and back on July 12,

2008.

¶ 12    The arbitrator found that the claimant had failed to prove that he sustained an accident

that arose out of and in the course of his employment on July 21, 2008. The arbitrator concluded

that the claimant “would be considered a traveling employee from when he arrives at [the

employer’s] terminal, loads his vehicle, delivers his vehicles to a destination, and returns to the

terminal.” However, the arbitrator found that “lifting an overnight bag is not sufficient to put

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2015 IL App (2d) 130874WC


[the claimant] in the course of his employment.” In support of this finding, the arbitrator cited

our supreme court’s decision in Orsini v. Industrial Comm'n, 117 Ill. 2d 38 (1987).

Summarizing the supreme court’s holding in Orsini, the arbitrator noted that (1) “[f]or an injury

to have arisen out of the employment, the risk of injury must be a risk peculiar to the work or a

risk to which the employee is exposed to a greater degree than the general public by reason of his

employment”; and (2) “[i]f the injury results from a hazard to which the employee would have

been equally exposed apart from the employment, then it does not arise out of [the

employment].”

¶ 13   The arbitrator also found that, “[e]ven arguing that the [claimant’s] activity was ‘arising

out of’ [his employment], *** the [claimant] failed to prove that the low back condition at the

time of this alleged injury was causally connected to a lifting incident on July 21, 2008.” The

arbitrator noted that “the medical records, the [claimant’s] testimony, and the testimony of

Chuck Anderson persuade the Arbitrator to find that [the claimant’s] low back symptoms were

causally connected to activities outside of his employment.” Accordingly, in addition to his

finding that the injuries the claimant suffered on July 21, 2008, did not arise out of and in the

course of his employment, the arbitrator also specifically found that “the [claimant] failed to

prove that the injuries he sustained on July 21, 2008, if any, were causally connected to his

employment with [the employer].” The arbitrator denied benefits.

¶ 14   The claimant appealed the arbitrator’s decision to the Commission.            The claimant

disputed both the arbitrator’s finding that he failed to prove an accident arising out of and in the

course of his employment and the arbitrator’s finding of no causal connection. Regarding the

accident issue, the claimant argued that he was a “traveling employee” because his job required

him to travel. Accordingly, he was acting in the course of his employment from the moment he

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2015 IL App (2d) 130874WC


left his house, not merely from the time he arrived at the employer’s Belvidere terminal.

Moreover, the claimant argued that his injury arose out of his employment under a traveling

employee analysis because it was reasonable and foreseeable that he would load a bag into his

car in preparation for his upcoming work trip. Regarding the causation issue, the claimant

argued that: (1) the employer had stipulated that the claimant’s current condition of ill-being is

causally connected to the injury he suffered on July 21, 2008; and (2) the claimant “established

his burden of proof regarding causation based upon a chain of events theory.”

¶ 15   The Commission unanimously affirmed and adopted the arbitrator’s decision. The

Commission expressly noted that it had considered the issues of “accident” and “causal

connection,” among other issues. Although the Commission did not separately comment on the

arbitrator's causation finding, it explained its finding on the accident issue as follows:

               “The Commission separately notes that *** [the claimant] admits

               that his accident occurred when he lifted his personal suitcase into

               his personal vehicle – [the claimant] had not left his home at the

               time of the accident. The risk of injury in this case was a personal

               risk, and was not sufficiently connected with the employment in

               order to be a risk peculiar to his work. [The claimant’s] travel for

               work had not yet begun when the accident occurred.”

¶ 16   The claimant then sought judicial review of the Commission’s decision in the circuit

court of Winnebago County. Although the claimant asked the circuit court to reverse the

Commission’s decision “in its entirety,” his petition for administrative review expressly

referenced only the Commission’s finding that the accident did not arise out of and in the course

of his employment. The employer’s response brief in the circuit court addresses that issue only

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2015 IL App (2d) 130874WC


and does not ask the court to affirm the Commission’s finding of no causal connection. The

circuit court affirmed the Commission’s decision. The circuit court’s order discusses only the

traveling employee issue (i.e., the “arising out of” issue) and does not address the causation

issue. This appeal followed.

¶ 17                                        ANALYSIS

¶ 18      The issue raised by the parties to this appeal is whether the lower back injury that the

claimant suffered on July 21, 2008, arose out of and in the course of his employment. Whether a

claimant’s injury arose out of or in the course of his employment is typically a question of fact to

be resolved by the Commission, and the Commission’s determination will not be reversed unless

it is against the manifest weight of the evidence. Kertis v. Illinois Workers’ Compensation

Comm’n, 2013 IL App (2d) 120252WC, ¶ 13; Cox v. Illinois Workers' Compensation Comm’n,

406 Ill. App. 3d 541, 546 (2010). However, when the facts are undisputed and susceptible of but

a single inference, as in this case, the question is one of law subject to de novo review. Kertis,

2013 IL App (2d) 120252WC, ¶ 13; Joiner v. Industrial Comm’n, 337 Ill. App. 3d 812, 815

(2003).

¶ 19      An employee’s injury is compensable under the Act only if it arises out of and in the

course of the employment. 820 ILCS 305/2 (West 2008). “ ‘The general rule is that an injury

incurred by an employee in going to or returning from the place of employment does not arise

out of or in the course of the employment and, hence, is not compensable.’ “ The Venture—

Newberg-Perini, Stone & Webster v. Illinois Workers’ Compensation Comm’n, 2013 IL 115728,

¶ 16 (quoting Commonwealth Edison Co. v. Industrial Comm’n, 86 Ill. 2d 534, 537 (1981)). The

rationale for this rule is that that the employee’s trip to and from work is the product of his own

decision as to where he wants to live, a matter in which his employer ordinarily has no interest.

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2015 IL App (2d) 130874WC


The Venture—Newberg-Perini, Stone & Webster, 2013 IL 115728, ¶ 16.

¶ 20   An exception applies, however, when the employee is a “traveling employee.” Id. ¶ 17.

A “traveling employee” is one whose work duties require him to travel away from his

employer’s premises. Id.; see also Kertis, 2013 IL App (2d) 120252WC, ¶ 16. Courts generally

regard traveling employees differently from other employees when considering whether an

injury arose out of and in the course of employment. The Venture—Newberg-Perini, Stone &

Webster, 2013 IL 115728, ¶ 17; Hoffman v. Industrial Comm’n, 109 Ill. 2d 194, 199 (1985). A

traveling employee is deemed to be in the course of his employment from the time that he leaves

home until he returns. Kertis, 2013 IL App (2d) 120252WC, ¶ 16; Mlynarczyk v. Illinois

Workers’ Compensation Comm’n, 2013 IL App (3d) 120411WC, ¶ 14; Cox, 406 Ill. App. 3d at

545. An injury sustained by a traveling employee arises out of his employment if he was injured

while engaging in conduct that was reasonable and foreseeable, i.e., conduct that “might

normally be anticipated or foreseen by the employer.” (Internal quotation marks omitted.)

Robinson v. Industrial Comm’n, 96 Ill. 2d 87, 92 (1983); see also Kertis, 2013 IL App (2d)

120252WC, ¶ 16; Cox, 406 Ill. App. 3d at 545-46.

¶ 21   Whether a traveling employee was injured while engaging in conduct that was reasonable

and foreseeable to his employer is normally a factual question to be resolved by the Commission,

and where the facts or inferences are in dispute, we should affirm the Commission’s

determination unless it is against the manifest weight of the evidence. Kertis, 2013 IL App (2d)

120252WC, ¶ 17. However, where the relevant facts and inferences are undisputed, as here, we

review this issue de novo. Id.; see generally Joiner, 337 Ill. App. 3d at 815.

¶ 22   In this case, the claimant argues that he is a traveling employee. It is undisputed that his

job duties required him to travel away from his employer’s premises at the Belvidere terminal to

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deliver cars to various dealerships and that he typically stayed overnight at a motel from one to

two nights per week while he was traveling for work. What is less clear is whether the claimant

was traveling for work at the time of his injury. An injury suffered by a traveling employee is

compensable under the Act if the injury occurs while the employee is traveling for work, i.e.,

during a work-related trip. However, the work-related trip at issue must be more than a regular

commute from the employee’s home to the employer’s premises. Otherwise, every employee

who commutes from his home to a fixed workplace owned or controlled by his employer on a

daily basis would be deemed a “traveling employee,” and the exception for traveling employees

would swallow the rule barring recovery for injuries incurred while traveling to and from work.

Thus, the threshold question in this case is: had the claimant embarked on a work-related trip at

the time he was injured on July 21, 2008, or was he merely beginning his regular commute to his

employer’s premises at that time?

¶ 23   The claimant argues that his work accident occurred in the course of his employment

because he was injured after he had left his home and begun his work-related trip. In support of

this argument, the claimant relies principally on our decisions in Mlynarczyk and in Complete

Vending Services, Inc. v. Industrial Comm’n, 305 Ill. App. 3d 1047 (1999). We will address

each of these cases in turn.

¶ 24   In Mlynarczyk, the employer operated a cleaning service. The claimant and her husband

worked for the employer cleaning churches, homes, and offices in various locations.          The

claimant “did not work at a fixed jobsite.” Mlynarczyk, 2013 IL App (3d) 120411WC, ¶ 16. The

employer gave the claimant and her husband a minivan to use while driving to various jobs and

for personal purposes. Id. ¶ 4. On the date of the claimant’s injury, the claimant and her

husband drove the minivan to clean a church and two homes.              After they finished (at

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approximately 2:30 p.m.), the employer told them that, if they were interested in assisting the

evening crew on another job, they should return to the church at approximately 4:30 p.m. Id. ¶

5. The claimant and her husband returned home and had lunch. Shortly after 4 p.m., the

claimant left her house to return to work. As she walked around the rear of the minivan, which

was parked in the driveway of the home where she and her husband resided, the claimant slipped

and fell, fracturing her wrist. The claimant testified that the accident occurred adjacent to the

driveway on a “ ‘public sidewalk’ ” leading from the house to the driveway. Id. ¶ 6. The

employer did not rebut this testimony. We held that the claimant was a traveling employee. Id.

¶ 16. Applying the special rules applicable to traveling employees, we held that the claimant’s

injury occurred in the course of her employment because the injury occurred “after she left

home, while walking to a vehicle used to transport her to work.” Id. ¶ 19. Moreover, we held

that the conduct leading to the injury was “reasonable and foreseeable” because: (1) the claimant

testified that the accident occurred “as she was walking to the vehicle used to transport her to a

work assignment for [the employer]”; and (2) the claimant’s walk to the minivan “constituted the

initial part of her journey to her work assignment.” Id.

¶ 25   The employer argued that, even if the claimant was a traveling employee, her injury was

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.” Id. ¶ 20. In

rejecting this argument, we held that “the evidence does not support the premise that claimant’s

fall occurred on private property” because the claimant’s unrebutted testimony established that

the accident occurred on a “ ‘public sidewalk.’ ” We found this testimony sufficient to establish

that the accident “exposed [the] claimant to the hazards of the street.” Id. Moreover, we noted

that the employer had cited no authority in support of its claim that a traveling employee who has

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“left the physical confines of his or her home on the way to a job assignment” and sustained an

accident on private property cannot be subject to the hazards of the street. Id.

¶ 26   In Complete Vending Services, we held that an employee who was injured while driving

from his home to his employer’s office en route to an off-site service call was a traveling

employee whose injury arose out of and in the course of his employment. Complete Vending

Services, 305 Ill. App. 3d at 1050.       The claimant worked for the employer as a service

technician. He was on call 24 hours a day, 7 days a week, 365 days a year to repair the

employer’s vending machines in his designated service area. Id. at 1048. When he was not out

on service calls, his duties included repairing vending machines and rebuilding equipment in one

of the employer’s shops. Id. The claimant drove a company vehicle to and from work and for

all service calls. The employer paid for gas and the claimant was not allowed to use the vehicle

for any personal uses. Id. The night before the accident, the employer’s answering service

contacted the claimant and informed him that Central Du Page Hospital needed a machine fixed.

Id. The next morning, the claimant left home in the company vehicle. His intention was to “stop

in at the [employer’s] office on the way to Du Page Hospital to tell [the employer] where he was

going and to see if any other service calls had come in that he could make while [he was] out.”

Id. at 1048-49. The office was directly on the route to the hospital. On the way to the office, the

claimant rear-ended a garbage truck and suffered injuries.

¶ 27   We held that the Commission’s finding that the claimant’s injuries arose out of and in the

course of his employment was not against the manifest weight of the evidence for two separate

and independent reasons: (1) the claimant was a traveling employee who was injured after he

left his home “with the intention of making the service call” even though he had decided to “stop

in” at the office first, which was on the way to the service call, for the employer’s benefit; and

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(2) the employer provided the claimant with a means of transportation to or from work for the

employer’s own benefit.       Id. at 1049-50.      In so holding, we rejected the dissenting

Commissioner’s opinion that the claimant was not a traveling employee at the time of the

accident because the claimant’s commute to the office the morning of the accident was “no

different from any other employee’s commute to work or, for that matter, the claimant’s regular

commute to work” and the claimant therefore “encountered *** risks which were no greater than

those encountered by the general public each day traveling to and from work.” Id. at 1050-51.

¶ 28   The claimant argues that Mlynarczyk and Complete Vending Services support his claim in

this case. He contends that, like the claimant in Mlynarczyk, he had left his home and was

injured while approaching the vehicle that he would use to drive to work. Moreover, like the

claimant in Complete Vending Services, the claimant planned to stop at the employer’s premises

(the Belvidere terminal) en route to a job at a different location. In essence, the claimant argues

that, like the injuries at issue in Mlynarczyk and Complete Vending Services, his injury occurred

during the first leg of a continuous work trip to a distant job location away from the employer’s

premises. Moreover, because he was a traveling employee, the claimant argues that he was

acting in the course of his employment from the time he left his home until the time he returned

home, regardless of whether he stopped at the employer’s premises in the interim. He notes,

correctly, that the fact that he was injured while loading his personal car, rather than a company

car, is irrelevant to the traveling employee analysis. 3     Thus, the claimant argues that the


       3
           The fact that an employer provides an employee with a company car demonstrates that

the employer “provide[d] [the claimant with] a means of transportation to or from work for the

employer’s own benefit.” Complete Vending Services, 305 Ill. App. 3d at 1049. That constitutes


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Commission erred as a matter of law in finding that his injury did not occur in the course of his

employment.

¶ 29   We disagree. Even assuming that the claimant had “left home” at the time of his injury,

(which is not entirely clear), he was preparing to begin his regular commute to his employer’s

premises at that time. Unlike the claimants in Mlynarczyk and Complete Vending Services, the

claimant in this case did not drive to his various work locations directly from his home; rather, he

was required to drive to the employer’s Belvidere facility first, load an 18-wheeler truck with

cars located at the employer’s facility, and then drive the truck to various dealerships from there.

Thus, when he drove to the Belvidere terminal, he was not making a brief and unnecessary stop

at his employer’s premises that was directly en route to his ultimate work destination (as was the

claimant in Complete Vending Services). Rather, he was making a regular commute to a fixed

jobsite as a necessary precondition to any subsequent work-related travel.          This fact also

distinguishes the claimant in this case from the claimant in Mlynarczyk, who had “no fixed job

site” and who traveled directly from her home to the various homes and churches that she

cleaned. Unlike the claimants in Mlynarczyk and Complete Vending Services, the claimant’s trip

to the Belvidere facility was not part of a continuous trip from his home to a jobsite away from




a separate exception to the general rule that an accident occurring while an employee is traveling

to or from work does not arise out of or in the course of his employment. Id. By contrast, the

“traveling employee” exception is predicated on entirely different facts, namely, facts

demonstrating that the employee’s job duties required him to travel away from the employer’s

premises. See, e.g., The Venture—Newberg-Perini, Stone & Webster, 2013 IL 115728, ¶ 16.


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the employer’s premises. 4 Nor was the claimant injured during a trip from his employer’s

premises to a distant work location (as in Kertis and other cases) or during a trip from a remote

jobsite to his home (as in Cox). Rather, the claimant was injured during a regular commute from

his home to his employer’s premises, before he embarked upon a work trip away from his

employer’s premises. Thus, the Commission’s finding that the claimant’s injury did not arise out

of or in the course of his employment was not against the manifest weight of the evidence.

¶ 30     Because we uphold the Commission’s decision on this basis, we do not need to address

whether the action the claimant was performing while he was injured was reasonable and

foreseeable to the employer or whether the Commission erred in finding that the claimant failed

to prove causation.

¶ 31                                      CONCLUSION

¶ 32     For the foregoing reasons, we affirm the judgment of the circuit court of Winnebago

County, which confirmed the Commission’s decision.

¶ 33     Affirmed.




4
    Moreover, Mlynarczyk is distinguishable for the additional reason that the injury in Mlynarczyk

occurred on a " 'public sidewalk' " in front of the claimant's house, thereby exposing the claimant

to the "hazards of the street." Mlynarczyk, 2013 IL App (3d) 120411WC, ¶ 20. Further, we note

that our holding in Mlynarczyk was based on a unique set of facts that is unlikely to recur.


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