News

January 02, 2007

In the J.S. Masonry, Inc. case, the appellate court had occasion to consider a claim of Josef Piatek, a 52 year old bricklayer helper whose duties included the assistance to other workers in the construction of a scaffold.  The horizontal rail on the scaffold was to serve as a safety gate and was to be connected to a vertical rail.  If properly connected, the horizontal rail would then serve as a safety gate to prevent a fall from the scaffold.

The claimant’s duties included the relay of bricks, blocks and mortar to the bricklayers who were performing work on this scaffold.  The two rails were tied with wire whereas good safety procedure required a pin.  As each load was delivered, the claimant was required to undo the wire connection so that the machine lift operator could place the bricks directly on the scaffold.  Each time the load was delivered, the claimant would unfasten the horizontal rail from the vertical rail, after which he would refasten the rails with the wire.

Jan Staszael, the claimant’s employer, testified that he reminded the claimant to pin the safety gate rather than rely on the wire connection.  Staszael told the claimant that if he did not pin the gate, he would be sent home.  The claimant apparently failed to comply because when the claimant was on the scaffold carrying a brick, he tripped over another brick and fell onto the horizontal rail at which time the wire snapped from the barrier causing the claimant to fall approximately 12 feet to the ground, and as he did so, he sustained an injury to his left side.

The claimant was taken to the Christ Hospital and underwent surgery to repair a comminuted fracture of the distal radius, as well as the repair of a severe laceration to the left leg and foot.  Subsequent to the hospital confinement, the claimant continued under the treatment of Dr. Biorel Raducan, of the Parkview Clinic.  Approximately five months after the accident, but while the claimant remained under the regular care of Dr. Raducan, he complained of left shoulder pain and stiffness.  The claimant had not complained of his left shoulder pain until that date because the other injuries prevented him from trying to lift his left arm until that time. Treatment to the shoulder included manipulation under general anesthesia, followed by aggressive range of motion physical therapy.

The employer argued that the injuries did not arise out of the employment because of the claimant’s failure to fasten the safety gate, that failure amounting to a company rule violation, which took the claimant out of the scope of his employment.  The claimant contended that he was performing tasks for the benefit of the employer at the time of the accident and that his injuries occurred in the sphere of his employment.  The arbitrator denied the claim but, in the unanimous decision, the Commission reversed the arbitrator’s decision finding that “regardless of whether or not (the Company) had a safety rule and/or (the Claimant) violated (the Company’s) safety rule,” the claimant sustained an accidental injury on June 10, 2002, arising out of and in the course of his employment.  The circuit court affirmed the decision and the appeal was taken to the appellate court, which affirmed the Industrial Commission decision.

The parties relied on the language in two separate decisions.  The claimant relied on the Chadwick case where:

Death benefits under the Act were awarded to the estate of a pipefitter who fell to his death while he was working as a result of his failure to tether himself to the lifeline installed on the scaffold, in direct violation of a safety rule requiring the use of safety belts.

The employer relied on the Saunders case.  In Saunders:

The claimant was denied benefits when he fell from a forklift on which he was riding double as a passenger, a practice forbidden by his employer, for the sole purpose of traveling to the break room in order to retrieve his lunch.  Because the claimant’s job description did not include “hitching a ride on a passing forklift,” the supreme court found that the claimant’s act was purely for his own personal convenience and, therefore, did not arise out of his employment, and he was not entitled to benefits under the Act.

The court explained:

Contrary to the Company’s arguments, we find no conflict between the holding inSaunders and the holding in Chadwick.  Saunders stands for the proposition that an employee’s injury does not arise out of his employment when the injury is the result of an activity prohibited by company rules and conducted solely as a personal convenience.  In Chadwick, this court held that an injury suffered while an employee is performing duties for which he was hired arises out of the employment, without regard to the fact that the employee knowingly violated a safety rule.  The rule in Saunders is applicable in cases where the employee is acting outside the sphere of his employment when injured, and the analysis in Chadwick is applicable when an injury is sustained while the employee is engaged in an authorized work activity.

In reference to the employer’s claim that the claimant never complained of any left shoulder involvement until his visit to the treating physician five months after the accident, the employer noted that the Commission had not addressed the question of this delay in its opinion.  The court noted that the Commission had found a causal relationship and that the Commission’s finding was based upon the unrefuted medical evidence of the records, as well as the claimant’s testimony.  The court further noted that any alleged deficiency in the Commission’s written decision is due to the employer’s failure to request more specific findings, pursuant to Section 19(e) of the Act.

Editor’s Note:

The important language in the decision describes the claimant’s “sphere of his employment.”

Here, the claimant was performing the duties for which he was hired, namely to stand atop a scaffold and receive materials, and to relay bricks, blocks and mortar to the bricklayers.  He was not in an area in which he was forbidden to enter, and was not engaged in any activity which was unauthorized by the Company.  Although he may have been performing his duties in a negligent manner, the claimant was doing exactly the thing he was employed to do.

The only possible solace to the employer is that the Appellate Court opinion is not as strong as the Industrial Commission decision which stated that regardless of the employee’s violation of the employer’s safety rule, the claim would be compensable.  The Appellate Court agreed with the Commission finding that (the claimant) was not in an area in which he was forbidden to enter and was not engaged in any activity which was unauthorized by the Company.

General Rule … an employee who performs permitted work in a prohibited manner will not be denied compensation, but the employee may be denied if he is performing prohibited work.

J.S. Masonry, Inc. v. Industrial Commission, No. 1-06-0717WC, decided December 19, 2006

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, #1900 Chicago, IL 60606 (312) 855-1105