Joseph P. Basile | E-mail Joseph Basile
This month presents a review of an appellate court opinion that found an Illinois Workers’ Compensation Commission award was incorrect. This is a parking lot case that presents a nice refresher of the general premises rule and exceptions to it.
Commission’s Finding That Claimant’s Accident Arose Out of and in the Course of Employment Was Erroneous
The Workers’ Compensation Commission Division of the Illinois Appellate Court reversed the judgment confirming a Commission finding that a claimant sustained a compensable accidental injury in Walker Bros. v. Illinois Workers’ Compensation Commission, 2019 IL App (1st) 181519WC. The claimant was employed as a cook. On February 13, 2013, he parked his car in an Ace Hardware parking lot near his employer’s restaurant. Ace had given permission to park in its lot. The claimant’s employer posted a note stating that the employees could park in the Ace lot but not between Thanksgiving and Christmas. The claimant exited his vehicle and rushed to follow a coworker so that he would punch in on time. He slipped and fell on snow and ice in the Ace parking lot.
He suffered an injury to his left shoulder and left hip. He was seen in an emergency room and later by his primary care physician, who diagnosed contusions of the left shoulder and hip. His doctor kept him off work until February 19, 2013. In April 2013, he was referred to Dr. Dairyko, an orthopedic surgeon who administered a cortisone injection and prescribed physical therapy. Following an MRI, Dr. Dairyko performed a left shoulder arthroscopy. The postoperative diagnosis was a left shoulder rotator cuff tear and left shoulder AC joint arthritis.
The claimant returned to work on November 4, 2013, with a restriction of pushing, pulling, and lifting no more than five pounds. Dr. Dairyko released him to full duty on November 25, 2013, and noted that there was some improvement in the left shoulder and continued pain. The claimant was later terminated from his employment.
At the arbitration hearing, the claimant testified he was 63, had difficulty sleeping on his left shoulder and hip, and had difficulty raising his left shoulder. He also described back pain. He was not having treatment for his hip and back. The claimant’s coworker testified that he saw the claimant in his car but did not see him fall. He testified employees were not allowed to park in the employer’s parking lot because it was too small. The coworker normally parked in the Ace lot, which was a two- or three-minute walk from the restaurant or he would park on a side street. He testified employees were not required to park in the Ace lot and that most employees parked on side streets. Some used a Subway lot. The coworker explained that they were allowed to use only a certain part of the Ace lot and could not park there in November and December.
The employer’s human resources director testified that the employer did not have a designated parking lot. Pursuant to an “informal agreement with Ace,” some employees parked in the Ace lot across the street and down a half a block. 2019 IL App (1st) 181519WC at ¶12. The employer did not pay Ace for use or maintenance of the lot. The HR director said the employees were allowed to use only the section of parking spots farthest away from the Ace entryway and that employees did not receive priority over Ace customers. He explained that employees had other options for parking, such as the side streets, and that not all employees used the Ace lot. A sign was posted in the restaurant stating employees could not park in the restaurant lot or next door at the ski shop but they could use the Ace lot. He testified the claimant was terminated for poor performance.
The owner of the Ace store and parking lot testified. He estimated the distance from the store to the restaurant was one to two blocks. The claimant’s employer’s employees were allowed to park in the lot free of charge, as a courtesy, as long as there was no special event occurring in the lot. There were 13 available spaces for the restaurant employees, and these were also available to the general public. The owner paid for snow removal and maintenance costs for the lot.
The arbitrator filed a decision finding the claimant failed to prove he sustained an accident that arose out of and in the course of the employment. The Commission reversed and awarded 12 and 4/7 weeks of temporary total disability, medical expenses, and 62.5 weeks of permanent partial disability. The employer appealed the judgment of the circuit court, which confirmed the Commission’s decision.
On appeal, the employer raised issues on accident, causal connection, and the award of benefits. The court addressed the issue of accident. The parties agreed that this was a case of undisputed facts that presented a question of law subject to de novo review.
The general premises rule is that, when an employee slips and falls at a point off an employer’s premises while traveling to or from work, the injuries do not arise out of and in the course of the employment. To this rule there is an exception when an employer “provides” a parking lot to its employees. DeHoyos v. Industrial Commission, 26 Ill.2d 110, 185 N.E.2d 885 (1962). If an employer provides a lot to its employees, and an employee is injured on that lot, the employee is entitled to recover under the Workers’ Compensation Act. This exception has been narrowed. “The decisive issue in parking lot cases usually is whether or not the lot is owned by the employer, or controlled by the employer, or is a route required by the employer.” Maxim’s of Illinois, Inc. v. Industrial Commission, 35 Ill.2d 601, 221 N.E.2d 281, 283 (1966). The employer’s control or dominion over the parking lot is a significant factor in the analysis, and “[r]ecovery has . . . been permitted for injuries sustained by an employee in a parking lot provided by and under the control of an employer.” [Emphasis added by Walker Bros. court.] Walker Bros., supra, 2019 IL App (1st) 181519WC at ¶22, quoting Illinois Bell Telephone Co. v. Industrial Commission, 131 Ill.2d 478, 546 N.E.2d 603, 606, 137 Ill.Dec. 658 (1989).
The uncontroverted evidence in this case established that there was a long-standing agreement between the employer and Ace in which Ace allowed the employer’s employees use of 13 parking spaces from January to October. Those spaces were open to the general public. There were no signs designating them for the employer’s employees. The employer did not own the lot and did not control the lot. The owner of Ace described the guidelines that were to be followed for parking in the lot. The employer did not contribute to the maintenance of the lot.
The court also found that the Ace lot was not part of a route required by the employer. The evidence established that the employees were not required to park in the Ace lot and that most of them parked on side streets. In addition, the Ace lot was not a part of a required lot because the employer communicated various other optional parking solutions, such as side street parking or other establishments’ parking lots.
Based on these determinations, the court held the Commission erred as a matter of law in finding the claimant sustained accidental injuries arising out of and in the course of his employment.
For more information on workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (ILLINOIS) — 2019 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.