{
  "id": 3546233,
  "name": "DAVID MURRAY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Commonwealth Edison Company, Appellant)",
  "name_abbreviation": "Murray v. Industrial Commission",
  "decision_date": "1987-12-10",
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  "last_updated": "2023-07-14T17:50:46.695850+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "DAVID MURRAY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Commonwealth Edison Company, Appellant)."
    ],
    "opinions": [
      {
        "text": "JUSTICE McNAMARA\ndelivered the opinion of the court:\nClaimant David Murray sought worker\u2019s compensation benefits after injuring his knee at work. An arbitrator awarded benefits. The Industrial Commission, with one commissioner dissenting, reversed after finding that a co-worker assaulted claimant and that the assault was unrelated to the employment. The circuit court of La Salle County reversed the Commission\u2019s decision, finding that the record contained no evidence of an assault, and instead only demonstrated horseplay, which is compensable.\nOn April 30, 1981, claimant worked for respondent Commonwealth Edison Company as a garage man. As he stood at his supervisor\u2019s desk, a co-worker, Richard Baker, approached claimant from behind and hit him in the back of the thighs. Claimant fell forward and could not catch himself because of oil on the floor. His full weight landed on his right knee. Claimant did nothing to provoke Baker\u2019s conduct. \u201cNo I did not. I didn\u2019t even know the guy was behind me.\u201d Claimant and Baker had never had any disagreements or arguments. Neither man had ever touched, struck, or attacked the other man. In December 1981, a surgical operation was performed on the knee.\nVernon Bean testified for claimant that on April 30, 1981, he saw Baker come up from behind claimant and tap him in the back of the knee area. Claimant fell directly onto his right knee.\nBaker testified for respondent that on the day of the accident, he walked up behind claimant. Baker tapped claimant on the back of the right thigh with the back of his hand, saying, \u201cHow you doing, Murray.\u201d Baker denied striking claimant hard enough to cause his knees to buckle. \u201cI\u2019m saying I tapped him on the leg.\u201d He did not intend to harm claimant. He helped claimant up, and claimant said not to worry, that it was just an old football injury. Claimant then walked away. He was not limping or favoring the leg. Baker had previously engaged in similar acts of horseplay or practical jokes, but this was the first incident with claimant. He and claimant had never argued.\nThomas E Bunn, a foreman for respondent, testified for respondent that he was present at the incident in April 1981. Bunn saw Baker come up behind claimant and tap claimant on the right thigh. It was just a friendly gesture. Claimant grabbed his right knee, saying, \u201cYou hurt my bad knee.\u201d He sat down on the floor. Claimant did not strike his right knee on the ground. They helped claimant to his feet. Claimant did not walk or move in an unusual manner.\nAn accident report completed by a foreman for respondent, Charles Smith, stated that it was his opinion that the accident was caused by Baker\u2019s \u201cunnecessary horseplay.\u201d\nDr. James H. Wilson testified in an evidence deposition that he examined claimant in August 1983. He diagnosed a tear of the anterior cruciate ligament of the right knee and osteoarthritis of the right knee secondary to that diagnosis. He opined that the condition of ill-being was permanent. The instability and osteoarthritic changes will become worse with time. The condition was most likely related to the accident which occurred in April 1981.\nAn arbitrator found that the accident arose out of and in the course of his employment. He also found that there was no provocation shown for Baker\u2019s conduct. He awarded $186.20 per week for 11 weeks as temporary total disability benefits, and for an additional 70 weeks as permanent partial disability benefits for the complete loss of use of the right leg to the extent of 35%.\nThe Commission reversed the arbitrator\u2019s decision. The majority found that claimant failed to prove he sustained accidental injuries arising out of and in the course of his employment.\n\u201cBased on the fact that a fellow employee assaulted [claimant] for no apparent reason, and the failure to show that the assault was in any way occasioned by or related to the performance of his duties as a garageman or that his employment was such as to particularly subject him to the hazard of attack by fellow employees, the Commission finds that [claimant] failed to prove that he sustained accidental injuries arising out of and in the course of his employment.\u201d\nThe circuit court of La Salle County reversed the Commission\u2019s decision, finding it to be against the manifest weight of the evidence on the basis that \u201chorseplay\u201d is compensable in Illinois, and that the record contained no evidence that the co-worker \u201cassaulted\u201d claimant. Respondent appeals.\nIllinois permits the nonparticipating victim of horseplay to recover worker\u2019s compensation benefits. (American Brake Shoe Co. v. Industrial Comm\u2019n (1960), 20 Ill. 2d 132, 169 N.E.2d 256; International Harvester Co. v. Industrial Comm\u2019n (1933), 354 Ill. 151, 187 N.E. 916; see also Health & Hospital Governing Comm\u2019n v. Industrial Comm\u2019n (1975), 62 Ill. 2d 28, 338 N.E.2d 402 (injury compensable even where it is uncertain whether the act was horseplay or simply an act of negligence).) An assault is not compensable unless it arises out of the work environment. Ford Motor Co. v. Industrial Comm\u2019n (1980), 78 Ill. 2d 260, 399 N.E.2d 1280.\nIt is within the province of the Commission to weigh the evidence and resolve conflicts in the testimony, and this court will not reject permissible inferences drawn by the Commission or substitute its judgment for that of the Commission on such matters unless its findings are contrary to the manifest weight of the evidence. Health & Hospitals Governing Comm\u2019n v. Industrial Comm\u2019n (1975), 62 Ill. 2d 28, 338 N.E.2d 402.\nIn the present case, the record is completely devoid of any evidence which might indicate that Baker assaulted claimant. Both claimant and Baker agree that they had never argued or disagreed. Baker testified that he did not intend to harm claimant and had previously been reprimanded for inappropriate horseplay. The foreman\u2019s report found that the cause of the accident was horseplay. We conclude that the Commission\u2019s finding that claimant was assaulted by a co-worker is against the manifest weight of the evidence.\nThe cases relied upon by respondent are not persuasive. (See, e.g., Thurber v. Industrial Comm\u2019n (1971), 49 Ill. 2d 561, 276 N.E.2d 316; American Brake Shoe Co. v. Industrial Comm\u2019n (1960), 20 Ill. 2d 132, 169 N.E.2d 256.) In those cases, the court found an absence of any evidence demonstrating that the injuries were caused by horseplay instead of an unexplained assault.\nFor the foregoing reasons, the judgment of the circuit court of La Salle County is affirmed. The cause is remanded to the Industrial Commission for further proceedings consistent with the holdings of this opinion.\nJudgment affirmed and remanded.\nBARRY, P.J., and WOODWARD, McCULLOUGH, and CALVO, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE McNAMARA"
      }
    ],
    "attorneys": [
      "Michael E. Rusin, of Stevenson, Rusin & Friedman, Ltd., of Chicago, for appellant.",
      "Mark A. Schindler, of Law Offices of Peter F. Ferracuti, P.C., of Ottawa, for appellee."
    ],
    "corrections": "",
    "head_matter": "DAVID MURRAY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Commonwealth Edison Company, Appellant).\nThird District (Industrial Commission Division)\nNo. 3\u201487\u20140094WC\nOpinion filed December 10, 1987.\nMichael E. Rusin, of Stevenson, Rusin & Friedman, Ltd., of Chicago, for appellant.\nMark A. Schindler, of Law Offices of Peter F. Ferracuti, P.C., of Ottawa, for appellee."
  },
  "file_name": "0841-01",
  "first_page_order": 863,
  "last_page_order": 866
}