New Case Law: Rare IWCC Reversal on Slip/Fall Case

First Cash Financial Services v. IC

In a 4-1 opinion, the appellates reversed the arbitrator, Commission and circuit court on the issue of arising out of. The claimant slipped and fell, dislocating her elbow, while entering the bathroom at the end of her shift to retrieve a personal item (a lunch container.) She did not notice any defect or debris on the floor. Three co-workers testified that they did not notice any debris on the floor, although they could not recall the last time the bathroom had been cleaned prior to the accident. The case was found by the arbitrator to be compensable, and the Commission and circuit court affirmed without comment.

The appellate majority analyzed the three types of risks that occur in the workplace: employment-related risks (such as defective or debris-laden surfaces; or duties that increase the risk of injury), employee-related risks (such as idiopathic physical conditions in an employee that could cause one to fall), and neutral risks (not increased by any employment-related factors). The latter two are not generally compensable. The court held that the arbitrator improperly speculated that it was possible that the floor was dirty, and required the employer to prove that it was not:

In his findings, the arbitrator noted that no evidence was presented that the bathroom tiles were dry or free of hair, dust, debris, make-up, tissue, oil, water droplets or of the many other possible substances. The arbitrator appears to have improperly shifted the burden of proof to First Cash to disprove the existence of a defect in the bathroom floor. The claimant, and not First Cash, had the burden of proving that her injury arose out of her employment. See Ghere v. Industrial Commn, 278 Ill. App. 3d 840, 847, 663 N.E.2d 1046 (1996).

In her brief before this court, the claimant argues that the record contains sufficient circumstantial evidence from which it can be inferred that the bathroom floor was dirty on August 8, 2003, and that this was the cause of her fall. However, circumstantial evidence can only support an inference which is reasonable and probable, not merely possible. Mann v. Producers Chemical Co., 356 Ill. App. 3d 967, 974, 827 N.E.2d 883 (2005); Stojkovich v. Monadnock Building, 281 Ill. App. 3d 733, 739, 666 N.E.2d 704 (1996). Where the evidence allows for the inference of the nonexistence of a fact to be just as probable as its existence, the conclusion that the fact exists is a matter of speculation, surmise, and conjecture, and the inference cannot reasonably be drawn. Carter v. Azaran, 332 Ill. App. 3d 948, 961, 774 N.E.2d 400 (2002); Wiegman v. Hitch-Inn Post of Libertyville, 308 Ill. App. 3d 789, 795-96, 721 N.E.2d 614 (1999).

Therefore, the Court held that the risk of the petitioners fall was neutral, and she failed to prove her accident arose out her employment. The decisions below were reversed. Justice Goldenhersh dissented, arguing that under the manifest weight standard, the arbitrator/Commissions inferences should have been given deference.

Assuming this survives an anticipated supreme court appeal, this will be some rare good case law for employers.