Lead Opinion
delivered the opinion of the court:
Claimant, Larry Bagley, filed a claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) for injury he sustained while employed by A. E. Staley Manufacturing Company. An arbitrator awarded claimant $202.53 per week for four-sevenths of a week for temporary total disability; $202.53 per week for 15 weeks for permanent partial disability for 10% loss of vision in his left eye; and $300.95 for necessary medical expenses. The employer sought review, аnd the Industrial Commission affirmed the arbitrator’s decision. The employer appeals from a judgment of the circuit court of Macon County confirming the Commission’s decision.
On December 13, 1979, claimant drove to work and parked in the employee lot which is part of the Staley industrial complex in Decatur. Claimant walked past the lot, through the main gates, across two sets of railroad tracks embedded in white rock, and into the parking lot next to “No. 20 building,” where employees punched the time clock each morning. The lot is approximately 100 to 150 feet past the main gate.
The Building 20 parking lot surface is three-fourths gravel and one-fourth сoncrete. The lot is used by semitrailer trucks to remove industrial trash, raw materials, powdered starch and metal shavings from the buildings. These materials spill out and are scattered across the lot, along with cinders, rock particles, dust and dirt. George Witt, claimant’s co-worker, also testified that the lot is located partially under a viaduct which creates a constant artificial wind condition.
Claimant walked across the lot with his brоther, Carl Bagley. George Witt also was present. Claimant suddenly grabbed his eye and told the others that he had something in his eye. Claimant went to his employer’s first aid department where a nurse washed out his eye. An hour later, whеn the pain continued, the nurse sent him to Dr. Frank Snell, a local opthalmologist. Dr. Snell found that claimant had a scratch on the corneal epithelium of his left eye.
Claimant was later treated by Dr. James Kammer, аn opthalmologist, who in turn referred him to Dr. James M. Gordon, an opthalmologist in St. Louis, Missouri. Both Drs. Kammer and Gordon diagnosed claimant’s condition as recurrent corneal erosion syndrome, and stated that the conditiоn resulted from the injury in question. The syndrome manifests itself in claimant by intermittent episodes of pain, burning, tearing and foreign body sensation requiring long term use of medication and medical care.
Our review is limited to determining whether thе Commission’s findings, drawing inferences from the undisputed facts, are against the manifest weight of the evidence. (Eagle Discount Supermarket v. Industrial Com. (1980),
The finding that the injury occurred in the course of employment is not in dispute here, but that fact is not sufficient to establish that it arose out of the employment. The injury must have its origin in some risk connected with or incident tо the employment so as to create a causal connection between the employment and the injury. The injury does not arise out of the employment if it results from a hazard that the employee would hаve been exposed to separate from his employment. Greene v. Industrial Com. (1981),
All company parking lot injuries are not compensable. The injury must be incidental to the normal use of the lot. (Hiram Walker & Sons, Inc. v. Industrial Com. (1968),
In finding that the injury arose out of the employment, it would be еnough to say that the public neither uses the lot nor is exposed to it. (Chmelik v. Vana (1964),
The employer contends that the record is devoid of testimony regarding the surface and wind conditiоns on the day in question, and is devoid of testimony regarding exactly what object entered claimant’s eye.
The record, however, reveals that Witt was asked to describe the surface conditions “when [Bagley] reached for his eye.” Witt stated that the lot was “gravel, white rock, whatever, cinders spilled out from hauling with the trucks *** and there is a lot of dust and rock, because the semis drag it on there ***. [I]t is white rock, dirt, cinders, what blows up from the truсks going by.” Claimant’s brother Carl, when asked what materials were on the ground “that day,” stated, “At Staley’s there is always a lot of stuff. I mean there is cinders, there is rock. They load out all their trash in trucks, and it blows off on the roads and, yоu know, there is just a lot of stuff, all different types and all the time about anything you want to find.” Again, he was asked if those materials were present “at the point where your brother clutched his eye.” He replied, “It is there ***. You hаve to see it to believe it, you know. There is really a lot of stuff out there.” A third time, he was asked whether that debris was “on the surface of the parking lot at the time you saw your brother clutch his eye.” He answered, “Yes, likе I say, there is stuff on there all the time.” This testimony provided the Commission with evidence from which it could determine the debris-covered condition of the lot on the day claimant was injured.
In regard to the wind conditions on the day in question, Witt testified that “[tjhere is always something blowing around that plant because of the building. That is the truth.” He also stated that there were “little, wind tunnels” and that the wind was constant. Carl Bagley stated that the weather was “about like normal” that day, “but out there you know *** you always get a lot of wind in the face.” This testimony provided the Commission with a sufficient basis for reasonably inferring that the constant wind was present on the day of the injury.
Although claimant cаnnot prove a particular foreign particle from the employer’s lot flew into his eye, the exact particle causing this type of injury is often not susceptible to proof. The evidence regarding thе artificial wind condition and the unique debris found in the middle of the industrial complex, away from areas frequented by the general public, together with the medical evidence of claimant’s scratched cornea, was sufficient to create a reasonable inference that claimant was injured by a foreign particle which came from the employer’s lot. For these reasons, we find that the Commission’s decision that claimant’s injury arose out of his employment was based on reasonable inferences and is not against the manifest weight of the evidence.
The employer urges that the holding of Cummings v. Industrial Com. (1945),
For the reasons stated, the judgment of the circuit court of Macon County confirming the decision of the Industrial Commission is affirmed.
Judgment affirmed.
LINDBERG, BARRY and KASSERMAN, JJ., concur.
Dissenting Opinion
dissenting:
Although I am always acutely aware of the deference which must be given to factual findings of the Commission, еspecially in circumstantial cases, I cannot accede to its determination in this case and therefore respectfully dissent from the holding of the principal opinion.
About the only clear fact in this rеcord is the fortuitous occurrence that the injury happened on the employer’s premises, but, given the nature of the injury, that is not enough. Whatever it was which struck claimant’s eye had an unknown etiology. Witt’s testimony that thеre was always something blowing “because of the building” was altogether conclusory. A building cannot create a wind. The most it could do would be either to block it or alter its course. Wind is a natural phenomenon to which all persons are equally exposed, and it is characteristic of wind to pick up debris and carry it for long distances.
The effect of the Commission’s order in this case, as confirmed by the circuit court and affirmеd by this court, is to make the employer an insurer of all injuries resulting from natural phenomena. Such is not the law.
An extreme case involving a death from a tornado is found in Decatur-Macon County Fair Association v. Industrial Com. (1977),
“While the courts of this country have not reached entirely uniform conclusions in considering whether injuries resulting from tornadic winds arose ‘out of and in the course of employment’ as that phrase is used in workmen’s compensation acts (see Annot., Workmen’s Compensation: Injury or Death Due to Storms,42 A.L.R.3d 385 (1972); see also 1 A. Larson, Workmen’s Compensation sec. 8.00 et seq. (1972)), mоst jurisdictions have recognized that, before compensation ■ can be awarded, there must be some peculiar or increased risk in the employee’s duties which exposes him to special or greater danger from the elements (42 A.L.R.3d 385 , 391). This court has consistently adhered to that interpretation. Inland Steel Co. v. Industrial Com. (1968),41 Ill. 2d 70 ; Eisner Food Stores v. Industrial Com. (1965),33 Ill. 2d 474 ; Abell Chevrolet Co. v. Industrial Com. (1939),371 Ill. 76 ; Abell Chevrolet Co. v. Industrial Com. (1939),370 Ill. 460 ; Central Illinois Public Service Co. v. Industrial Com. (1920),291 Ill. 256 .”69 Ill. 2d 262 , 267,371 N.E.2d 597 .
In my opinion the rationale of Fair Association applies to the instant case.
I would reverse the award.