Synopsis: IL WC Parking Lot Fall-Downs Can Be Defended and Won.
Editor’s comment: In Vaughn v. IWCC and Memorial Medical Center, our IL Appellate Court, WC Division outlined a clear path for a parking lot/curb fall down claim to be defended and won.
In this opinion, the parties stipulated claimant fell in a parking lot on Memorial’s premises and suffered injuries. The arbitrator admitted into evidence various photographic exhibits depicting the condition of the sidewalk, curb and slanted asphalted surface where claimant stepped, stumbled and fell. To my understanding, the photos indicated the curb, sidewalk and asphalt were in ordinary condition and there was no indication of defects or foreign objects/substances that would increase the risk of injury. For risk and claims managers, it is crucial to have such documentation in all your WC claims.
Claimant was 60 years old at the time of the accident and testified to the following.
On October 29, 2015, claimant was employed by Memorial as a central processing technician.
She testified her job duties included assembling and wrapping trays used to sterilize surgical equipment.
She was required to load several trays, weighing 10 to 15 pounds, onto carts before pushing the carts into an autoclave. The carts were typically heavy, weighing as much as 300 pounds.
Claimant also emptied trash and laundry bags, weighing up to 20 pounds.
On the morning of the incident, claimant had clocked out for the day. She exited the medical center through an employee door, as previously instructed by her immediate supervisor. Upon exiting, claimant, accompanied by a co-worker, began walking on the sidewalk toward her assigned parking lot. Claimant claimed the sidewalk in that area was not commonly used by members of the general public—not sure what that might mean.
Claimant next described the following events leading to her fall:
Well, I was walking out and it looked to me like the concrete on the sidewalk met even with the blacktop but it didn’t, and it was about an inch and-a-half to two inches, and I stepped down normal like I was just walking and it made me trip and I stumbled. And when I fell, I hit the lip of concrete that is about 2, 2 and-a-half feet away from there. I landed on my knee.
Additionally, at the time of her fall, claimant testified it was still dark outside, and the temperature was at or near freezing. She also testified that outside lights, located on nearby buildings and landscaping, illuminated the area where she fell. However, at the time of her fall, one of the lights was not working and others were partially obscured by a parked security van, which resulted in a shadow that made that area darker.
Claimant next identified a photograph which showed the sidewalk, curb and slanted blacktop area where claimant fell. Claimant testified that, as she stepped off the curb with her left foot, her foot did not “land like it was supposed to,” causing her to trip, stumble and fall. Claimant further testified that the darkness made the sidewalk and the blacktop appear even, or “level.”
Claimant suffered a comminuted fracture along the inferior aspect of the patella or knee cap. This is a serious injury.
Claimant underwent corrective surgery to her right knee and she later returned to work with restrictions. Claimant testified she began experiencing difficulty performing her work-related duties, which required prolonged periods of standing, lifting trays and pushing heavy carts. Claimant accepted an alternate position with Memorial that paid approximately $2.17 less per hour but involved lighter lifting and preparing linen packs. Claimant further testified regarding the lingering issues resulting from her knee injury. Claimant used a cane while walking to and from her work building, because the path to her particular building requires her to traverse a hill. Additionally, her knee was generally stiff and occasionally popped, which temporarily relieved the stiffness.
On cross examination, claimant admitted that she was permitted to park in any of the employee parking lots, but it was suggested that she park in Lot #3. Additionally, claimant admitted she was permitted to use any entry door, but it was suggested that she use the closest door. Claimant acknowledged that two public sidewalks leading to the employee parking lot were available for her to use. Claimant was familiar with the area, sidewalks, buildings and available entry ways because she initially worked as a “traveler” at Memorial from January 2015 through June 2015. Claimant admitted that she was cutting across the walkway at the time of her fall, rather than walking farther down the sidewalk and turning to use the nearby access ramp. Claimant admitted that she had traversed the area many times over a span of several months and had stepped off the same curb before but in different places. Claimant further admitted the area where she fell was clear of rocks, debris, water, snow, ice, holes or other surface-type defects.
The arbitrator found claimant sustained an accidental injury. In rendering his decision, the arbitrator relied on precedent which the arbitrator believed involved a similar fact pattern. The arbitrator found that claimant had encountered a hazardous or defective condition, an uneven surface while she was walking to an employee parking lot immediately after leaving work. The arbitrator concluded claimant’s risk of tripping presented a neutral risk, which was somehow greater than that encountered by the general public. Accordingly, the arbitrator awarded claimant TTD, medical bills and PPD.
The claim was appealed to the Commission panel. The Commission issued a decision unanimously reversing the arbitrator’s decision. The Commission panel found the arbitrator’s findings of hazard or defect and determination that claimant’s injury arose out of her employment were both erroneous, noting that the arbitrator’s reliance on precedent was misplaced. The Commission observed the height differential between the sidewalk and the asphalt where claimant fell was by design, not a defect. The Commission, stressing its agreement with Memorial’s argument, stated:
[C]ommon sense dictates that sidewalk slabs should be even or at the same height; whereas curbs are, by nature, raised boundaries. Thus, demonstrating height differences between slabs within the same sidewalk evidences defectiveness; where demonstrating height differences between the curb and the area it borders does not.
Again, the Commission determined that, unlike the Litchfield precedent cited the photographs, admitted into evidence by both parties (depicting the parking lot, sidewalk, asphalted area and purported spot of claimant’s fall), “show that the premises were neither defective nor hazardous.” In particular, the Commission found that “the height differential (diminishing towards the access ramp at the end of the sidewalk) between the curb and the blacktop was by design (emphasis added by me) and not a defect.” The Commission, instead, noted claimant’s case was factually similar to the circumstances in Caterpillar Tractor Co. v. Industrial Comm’n.
Claimant sought judicial review of the Commission’s decision in the circuit court. The circuit court judge affirmed denial. Claimant appealed to the IL Appellate Court, WC Division.
The Appellate Court confirmed Injuries sustained on an employer’s premises, or at a place where claimant might reasonably have been while performing her duties, and while a claimant is at work, or within a reasonable time before and after work, are generally deemed to have been received in the course of employment, citing Caterpillar Tractor Co. The focus shifted to the “arising out of” requirement.
The Court further ruled when an employee is injured on the usual route to the employer’s premises and there is a special risk or hazard on the route, the hazard becomes part of the employment. Quoting the decision: “Special hazards or risks encountered as a result of using a usual access route satisfy the ‘arising out of’ requirement of the Act.”
The Appellate Court noted the Commission’s finding claimant “stumbled over a curb” is entirely consistent with the evidence adduced at the arbitration hearing. Accordingly, they found the Commission’s finding as to the nature of the accident is not against the manifest weight of the evidence.
In short, despite the confusion caused by the McAllister ruling where the act of an employee simply standing up somehow could comprise a compensable accident, this ruling adheres to the plain language of the IL WC Act—for an accidental injury to be compensable, it has to both “arise out of” and occur “in the course of” employ.
Please note the employer did what I feel was an excellent job investigating and photographing the area where the injury occurred. The defense team at KCB&A has a presentation to help your company improve their incident/event investigation to either document compensability or provide you the tools to fight a questionable claim—if you are interested, send a reply.
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