Posted June 26, 2014 2:47 PM
   

Injured outside court, woman wins appeal

By Andrew Maloney
Law Bulletin staff writer

More than seven years after fracturing her wrist just outside a courthouse, Jane R. Brais was redeemed inside of one.

A panel of state appellate court justices published an opinion Wednesday backing the woman who tripped on a defective sidewalk outside the Kankakee County courthouse where she worked.

A workers’ compensation panel of the appellate court originally decided in May that the injury arose out of her employment as a child support coordinator for the Kankakee County circuit clerk’s office and remanded her claim to the Workers’ Compensation Commission. Now that it’s published, the ruling can be cited as precedent in future cases.

In the eight-page opinion, the judges reversed the rulings of the commission as well as Kankakee County Associate Judge James Kinzer.

The other rulings had said since the injury occurred on a public pathway in December 2006, Brais was at no greater risk for injury than the general public, and she could not meet her burden in proving the injury arose out of her employment.

The appellate panel determined that the front entrance — with cracked and broken concrete slabs that lead up to it — was the only route Brais could take because a back door where employees typically entered was locked. The panel also held that the injury arose in the course of her employment because she was returning from a work-related meeting in a nearby building.

In the opinion, Justice Bruce D. Stewart of the 5th District Appellate Court drew parallels to cases in which employees were injured while walking in spaces they were required by their employers to use.

An employee who sprained her ankle in the 1980 case Bommarito v. Industrial Commission was exposed to a “special hazard” because she had to enter through the rear door at the behest of her employer and stepped in a pothole there.

An employee who fractured both wrists while making bank deposits for her employer had to traverse the streets to do so, and the risks inherent in that action became employment risks in 2011’s Metropolitan Water Reclamation District of Greater Chicago v. Workers’ Compensation Commission.

The county clerk in this case argued it was more like 1989’s Caterpillar Tractor Co. v. Workers’ Compensation Commission, a case in which an employee twisted his ankle while walking to the parking lot after completing his shift but was ruled to not have been injured in the course of his employment.

The appellate court here said that case was different because there was no evidence the curb where the man was injured was defective.

“In the instant case, there was a special hazard. The sidewalk was cracked and uneven,” Stewart wrote. “In Caterpillar, there was no evidence of a defect and the court specifically found that the curb was like any other curb.”

Stewart concluded that those cases and the evidence presented in this one were enough to decide that the woman’s injury arose out of her employment.

“This case does not merely involve the risks inherent in walking on a sidewalk which confront all members of the public. This case involves a cracked and defective sidewalk which was a contributing cause of the claimant’s injury,” he wrote.

“Because the claimant encountered a special hazard or risk as a result of using a sole or usual access route, her injury arose out of her employment.”

Justices William E. Holdridge of the 3rd District, Thomas E. Hoffman of the 1st District and Donald C. Hudson of the 2nd District concurred.

Justice Sheldon A. Harris of the 1st District wrote a special concurrence, indicating that while he agreed with the majority, it should be noted that the evidence did not establish that Brais was using her usual route to work.

“However, the claimant does not have to prove it was both the sole and usual route,” Harris wrote.

“Given that Bommarito supports compensability if the injury occurs along the sole or usual route, the claimant here is able to satisfy the ‘in the course of’ requirement as the testimony was undisputed her injury occurred while attempting to access the only open entrance to the courthouse.”

Matthew T. Gubbins, a partner at Regas, Gubbins and Regas in Kankakee, represented Brais.

Jennifer L. Rizk, an associate at Rusin, Maciorowski & Friedman, Ltd., represented Kankakee County.

They could not be reached for comment today.

 

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