January 02, 2008

Appellate Court Finds That Attack on Jewel Food Stores Truck Driver While Making a Delivery Was Compensable as Traveling Employee -Reverses Commission Denial of Benefits

January 02, 2008

Potenzo v. IL Workers’ Compensation Comm. No. 1-07-0077-WC

On February 27, 1995, Thomas Potenzo, a truck driver for Jewel Food Stores, was attempting to make a delivery at the Jewel store located at 4355 North Sheridan Road, Chicago.  The claimant backed his truck up to a hydraulic lift used in the process of unloading trucks making deliveries at the store.  He had placed two pallets of goods on the platform and was attempting to lower the device with a hand control when he felt someone grab his ankle.  As he turned, he was struck in the back of the head, immediately lost consciousness and next remembers waking up in a hospital two days later.

His injuries were substantial and included a parietal skull fracture, a compression fracture at L3, a right radial arm fracture, a nasal fracture, a facial fracture, a liver laceration, damage to several teeth and other contusions and sprains.  He lost slightly more than three months from work and returned to work without restrictions.

The loading dock is located in the rear on an alleyway which separates the store building from a condominium structure.  The alleyway had gates, which were controlled at both ends by the condominium building.  The claimant had no knowledge as to any reason for the attack.  Nothing was missing from the delivery items nor was the truck or trailer damaged.  After regaining consciousness, the claimant was unable to locate his wedding ring or his watch, thereby hinting at a possible robbery.  However, he admitted that he had no way of knowing that the items were taken by his assailant.

The claimant testified to circumstances which would suggest that the attack occurred in an area of greater risk. He had seen vagrants rummaging in dumpsters.  He had seen the victim of a stabbing, witnessed a theft from a truck and observed “a lot of police activity” in the neighborhood surrounding the Jewel store.  He claimed that “several of us” complained “on and off” about a security problem in the dock area.  However, he had no specific recollection of making a prior complaint.  Over objection, he made an offer of proof that if the lift would have included a rail, it could have prevented him from falling.

Jewel produced four witnesses to controvert the claimant’s testimony.  The condominium building manager reviewed the records and found no evidence of any other incidents occurring in the alley.  The condominium property manager testified that she was not personally aware of any other incidents, nor did her condominium records have any reference to any other incidents occurring in the alleyway.  Jewel’s Fleet Maintenance Supervisor had previously repaired various items of equipment at the store but had never been requested to investigate any altercation.  Jewel’s vice president for real estate also testified to the absence of any knowledge of any altercation occurring in that alleyway.

The arbitrator, the full Commission and the circuit court all found that the injuries did not arise out of the claimant’s employment with Jewel.  The appellate court conceded that the claimant had failed to establish that the area in which he was working was in a high crime area or a dangerous neighborhood.  The court also conceded that, in assault cases, the injured employee had the burden of showing that the assault was work related in order to be entitled to benefits under the Act.  However, the court agreed with the plaintiff’s argument that, as a traveling employee, he was exposed to all street risks to a greater degree than the general public.  The court felt that this assault did arise out of the employment and that the Commission finding was against the manifest weight of the evidence:

The undisputed evidence in this case establishes that the claimant was a traveling employee whose duties required him to travel the streets and unload a truck in areas accessible to the public.  The risk of being assaulted, although one to which the general public is exposed, was a risk to which the claimant, by virtue to his employment, was exposed to a greater degree than the general public.  See C.A. Dunham Co., 16 Ill.2d at 111.  Unlike the circumstance present in Greene v. Industrial Comm’n, 87 Ill.2d 1, 428 N.E.2d 476 (1981), there is no evidence in this case which would support an inference that the attack upon the claimant was based on a purely personal motive.  Finally, it is undisputed that, when he was assaulted, the claimant was in the process of unloading his truck, an activity which was reasonably foreseeable by Jewel.

Editor’s Note:

The evidence provided by the respondent would suggest that the claimant suffered his injuries in an area which was probably safer than the surrounding streets and alleyways.  The court is seemingly expanding ­­­­­­­­­­­­­­­­­the definition of traveling employee.  Based on this philosophy, it would seem that any employee who is on the public way as a part of his employment would be considered as being at a greater risk than any employee whose work does not take him out on the public way.  The employer would need to prove that the reason for the attack was personal in nature.

From the employer’s view, this case is certainly disappointing.  The arbitrator, the Industrial Commission and the Circuit Court all agreed that the injury did not arise out of the employment.  Nevertheless, the Appellate Court has found that there could not be a reasonable inference except for the conclusion that the injuries did arise out of the employment.

Potenzo v. IL Workers’ Compensation Comm., No. 1-07-0077-WC, decided December 18, 2007

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