{ "id": 4286556, "name": "CIRCUIT CITY STORES, INC., Appellee, v. ILLINOIS WORKERS' COMPENSATION COMMISSION (Clinton Dwyer, Appellant)", "name_abbreviation": "Circuit City Stores, Inc. v. Illinois Workers' Compensation Commission", "decision_date": "2009-05-21", "docket_number": "No. 2-08-0722WC", "first_page": "913", "last_page": "925", "citations": [ { "type": "official", "cite": "391 Ill. App. 3d 913" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "251 Miss. 261", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1833581 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/miss/251/0261-01" ] }, { "cite": "179 Ill. App. 3d 683", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2607487 ], "year": 1989, "pin_cites": [ { "page": "695" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/179/0683-01" ] }, { "cite": "278 Ill. App. 3d 59", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156844 ], "year": 1996, "pin_cites": [ { "parenthetical": "when an administrative assistant was injured on a Mexican yacht cruise while trying to protect her boss's niece from roughhousing by her boss's sons, the protective action was reasonable and foreseeable, thus falling within the scope of her employment" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0059-01" ] }, { "cite": "272 Ill. App. 3d 732", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 252647 ], "weight": 2, "year": 1995, "pin_cites": [ { "parenthetical": "when a lockmaster on the Chicago River was injured while attempting to rescue someone who fell into Lake Michigan, his actions were not outside the scope of his employment" }, { "page": "737" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0732-01" ] }, { "cite": "32 Ill. 2d 386", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2840812 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0386-01" ] }, { "cite": "224 Ill. 2d 53", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3607004 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "64" }, { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/224/0053-01" ] }, { "cite": "306 Ill. App. 3d 206", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336140 ], "year": 1999, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0206-01" ] }, { "cite": "56 Ill. 2d 272", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404985 ], "year": 1974, "pin_cites": [ { "page": "277", "parenthetical": "describing a personal comfort issue as \"[t]he more difficult question\" after finding sufficient evidence to support an \"arising out of' determination" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0272-01" ] }, { "cite": "82 Ill. 2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476196 ], "year": 1980, "pin_cites": [ { "page": "339-40" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0331-01" ] }, { "cite": "77 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5489971 ], "year": 1979, "pin_cites": [ { "page": "84", "parenthetical": "\"injuries sustained by an employee while in the performance of reasonably necessary acts of personal comfort may be found to have occurred 'in the course of his employment, since they are incidental to the employment\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0081-01" ] }, { "cite": "66 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464913 ], "year": 1977, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0361-01" ] }, { "cite": "129 Ill. 2d 52", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567377 ], "year": 1989, "pin_cites": [ { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0052-01" ] }, { "cite": "117 Ill. 2d 38", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545084 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "44-45", "parenthetical": "noting that, since the elements are conjunctive, both must be present at the time of injury" }, { "page": "45" }, { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/117/0038-01" ] } ], "analysis": { "cardinality": 1275, "char_count": 31621, "ocr_confidence": 0.77, "pagerank": { "raw": 5.72892633419842e-08, "percentile": 0.35914062943438013 }, "sha256": "09f2a3f81838d62f24401130c2f2159d6f1e3b37b49fb49e5803527ebc39f72f", "simhash": "1:ec9f289b3e15cb9d", "word_count": 5284 }, "last_updated": "2023-07-14T21:50:16.782503+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CIRCUIT CITY STORES, INC., Appellee, v. ILLINOIS WORKERS\u2019 COMPENSATION COMMISSION (Clinton Dwyer, Appellant)." ], "opinions": [ { "text": "JUSTICE HOLDRIDGE\ndelivered the opinion of the court:\nClinton Dwyer filed an application for adjustment of claim against his employer, Circuit City Stores, Inc., seeking workers\u2019 compensation benefits for an injury to his right leg. The matter proceeded to an arbitration hearing, where the arbitrator found that Dwyer\u2019s injury was compensable under the Workers\u2019 Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2006)). Accordingly, the arbitrator issued the following awards: medical expenses totaling $60,306.83; temporary total disability benefits of $182.62 per week for 12 4/7 weeks (March 6 through June 1, 2005); and permanent partial disability benefits of $164.36 per week for 70 weeks (representing 35% loss of use of the right leg). The arbitrator denied Dwyer\u2019s request for penalties and attorney fees.\nCircuit City appealed to the Illinois Workers\u2019 Compensation Commission (Commission), which affirmed and adopted the arbitrator\u2019s decision, with one member dissenting. Circuit City then appealed to the McHenry County circuit court, which reversed the Commission\u2019s decision. According to the court, the Commission erred in finding that the \u201cpersonal comfort doctrine\u201d applied to the instant facts and that Dwyer\u2019s injury was compensable under the Act. Dwyer responded by filing the instant appeal. He claims: (1) the personal comfort doctrine applies to the instant facts, as found by the arbitrator and the Commission; (2) the doctrine should be extended, as a matter of law, to cover an employee who is injured while coming to the aid of a coworker seeking personal comfort; and (3) the Commission did not err in finding that his injuries arose out of and in the course of his employment. We reverse the circuit court\u2019s judgment and reinstate the Commission\u2019s decision.\nBACKGROUND\nA medical report from Doctor Walter Virkus dated June 11, 2003, reads: \u201cClint Dwyer is an 18-year-old male who approximately one week ago began having pain in the right groin. He relates this to being after he pitched a game of baseball. He has had no prior complaints of pain in this hip. The pain also seems to be activity related.\u201d X-rays showed a lesion in the right femoral neck with no evidence of acute fracture or stress fracture. A magnetic resonance imaging study showed a corresponding lesion with no evidence of stress fracture. Doctor Virkus attributed the lesion to a unicameral bone cyst that must have been present for a number of years but was \u201cjust now becoming symptomatic.\u201d He observed, \u201cThis may be related to the fact that the patient recently began his summer job in landscaping and basically spends all day pushing a lawnmower.\u201d Recognizing a possible need for curettage and grafting, Doctor Virkus prescribed a short trial of rest because the lesion had previously been asymptomatic. The trial period included two weeks on crutches, another four weeks with no baseball or landscaping work, and then resumption of regular activities.\nDuring a follow-up visit on July 30, 2003, Dwyer reported feeling fine except for a recent episode of pain that resolved after one day. He had no pain at the time of the visit. Doctor Virkus\u2019s examination revealed full range of motion and no tenderness to stress with internal and external rotation. His report from the visit reads:\n\u201cIf he [Dwyer] is asymptomatic I do not think this needs to be curettaged and grafted. I informed him that this could be done at any time if he decided he wanted to stop worrying about it. I stringently cautioned both him and his mother that if he were to ignore persistent symptoms of pain in the hip that he would likely have a stress fracture through the femoral neck, and this would be a potentially disastrous situation considering his age. He indicated to me that he had absolutely no interest in having surgery and that he would address his activities appropriately.\u201d\nDwyer testified that, per Doctor Virkus\u2019s permission, he resumed normal activities (including baseball and work) and performed those activities without returning for medical care until March 6, 2005 \u2014 the date of accident in the instant case.\nAt the time in question, Dwyer was employed by Circuit City installing car stereos and other equipment. He performed his duties in an installation bay, which was connected to an employee break room by a hallway. The hallway contained a snack vending machine and a soda machine. There were also four rooms off the hallway: two management offices, a men\u2019s washroom, and a women\u2019s washroom. The washrooms were open to the public. Dwyer testified that the snack vending machine was fairly large with a glass front and metal sides. He used the machine two or three times per week and had experienced some problems with products getting stuck. When a product got stuck, he either shook the machine to dislodge it or simply purchased it again. He had occasionally seen other employees shake the machine as well, but he could not recall their names. To the best of Dwyer\u2019s knowledge, no employee was reprimanded for shaking the machine. No rules were posted near the machine explaining a protocol if a product got stuck; nor did Circuit City have any written forms or policies covering this situation. If an employee simply lost money in the machine, however, the store had a protocol for the employee to submit a form to management. Dwyer had never lost money in the machine.\nRegarding his accident, Dwyer testified that on March 6, 2005, he was working in the installation bay when a coworker named Jessica Hubner asked him for help dislodging a bag of chips she had purchased from the vending machine. Dwyer went with Hubner to the hallway and saw the bag stuck in the machine. He shook the machine from the front, but to no avail. He then shook it from the side, again to no avail. As to what happened next, the transcript of his testimony reads:\n\u201cQ. Can you stand up and show \u2014 Would you stand up and show the Arbitrator, please, what you did next ***.\n* * *\nA. I was facing the side of the machine this way and I pretty much stood right here and I took one step forward and I hit the machine with my shoulder and it did not move and my hip followed and I pretty much fell to the ground. (Indicating.)\nTHE ARBITRATOR: Let the record reflect that the petitioner is indicating basically that he was assuming what I would call a fencing or even a self-defense posture with his right arm at mid chest level and indicating he stepped towards and apparently made contact with the machine. And I infer that he made contact with his shoulder and I infer that his hip moved forward, but I couldn\u2019t make any other inferences as to what happened with the hip that he referenced.\u201d\nThe matter was revisited on cross-examination as follows:\n\u201cQ. *** So you only shook it once from the front and then you shook it again from the side and then you hit it with your shoulder?\nA. Yes.\nQ. *** How many steps did you take before you struck the machine with your shoulder?\nA. Like half a step. It wasn\u2019t even a full step.\u201d\nCounsel for Circuit City then read the following statement from a medical report: \u201cThis morning he was trying to bang some snacks out of a machine with his shoulder and struck his hip on the machine.\u201d Dwyer agreed that the statement accurately described what happened. The following colloquy shortly ensued:\n\u201cQ. Clint, this accident occurred when you were attempting to forcefully remove potato chips from the machine, correct?\nA. Yes.\n***\nQ. Would it be accurate to state that you took a running start towards the machine?\nA. No.\nQ. You took one step?\nA. Yes.\u201d\nDwyer testified that, upon falling to the floor, he felt \u201ca very high level of pain\u201d in his right hip unlike any he had felt before. Hubner promptly notified the store manager, whereupon an ambulance was called and Dwyer was taken to Centegra Northern Illinois Medical Center. X-rays revealed an impacted, slightly displaced fracture through the right femoral neck. Dwyer was then sent to Rush University Medical Center for immediate treatment by Doctor Virkus, who performed surgery that day (March 6, 2005).\nThe operative report states: \u201cThe patient is a 21-year-old man, who had a know[n] cyst in the femoral neck. He suffered an impact to the hip and suffered immediate fracture. *** X-rays revealed a displaced fracture of the femoral neck through the cyst. *** Please note that this procedure was done urgently due to the patient\u2019s young age and the displaced femoral neck fracture.\u201d The procedure involved open reduction and internal fixation of the right femoral neck with curettage of the cyst and bone grafting. Dwyer remained in the hospital through March 9, 2005, when he was discharged on crutches with a leg brace and prescriptions for medication.\nDoctor Virkus administered follow-up care and kept Dwyer off work until May 10, 2005, when he allowed resumption of work with crutches, a 10-pound lifting restriction, and frequent rest. Circuit City did not provide work within these restrictions, and Dwyer consequently returned to Doctor Virkus\u2019s clinic requesting a full-duty release. A physician at the clinic obliged, and Dwyer resumed his regular job on June 2, 2005. He next returned to Doctor Virkus on April 6, 2006, and was advised that he did not need additional care.\nRegarding his physical condition at the time of arbitration, Dwyer testified that he experienced problems with his right hip after sitting on a hard surface or crouching for a couple of hours. He could not cross his right leg to sit cross-legged. Weather changes and high humidity caused discomfort, and he experienced numbness and pain in the area of his surgical scar. Prior to the injury of March 6, 2005, he played baseball and jogged about a mile for exercise without incident. By comparison, he tried to run a half mile shortly before the arbitration hearing and felt pain in his right hip the following day.\nPursuant to subpoena by Circuit City, Jessica Hubner testified that she and Dwyer were both working in the store on March 6, 2005. Like Dwyer, Hubner worked as an installer of \u201cstereo systems, remote starts, things like that.\u201d Shortly after beginning her shift, she put money into the vending machine and purchased a bag of Fritos, but the bag got stuck and did not fall. She unsuccessfully tried to dislodge the hag by shaking the machine and then asked Dwyer for help because he was the nearest coworker. Regarding Dwyer\u2019s actions toward the machine, the following colloquy occurred on direct examination:\n\u201cQ. Prior to hitting it from the side, did he strike it at all?\nA. I think so. I\u2019m not positive. I don\u2019t remember exactly. He may have hit it once or twice with his hand, but it didn\u2019t come out.\nQ. Describe what happened when he hit it from the side.\nA. He took a few steps back and *** kind of jumped a little bit into the machine with his side to try and shake it loose. And that is when it came loose.\n***\nQ. You said he took a few steps back. Do you recall specifically how many steps back he took?\nA. Two or three, maybe.\nQ. Did he run towards the machine or walk?\nA. I would say he just walked. He didn\u2019t \u2014 There wasn\u2019t enough room in between him and the machine that he would have ran at it. He just kind of leaped into it to try and give it a good nudge.\nQ. He left his feet?\nA. Yes.\u201d\nWhen asked on cross-examination how she knew to shake the machine before seeking Dwyer\u2019s assistance, Hubner replied: \u201cLogically, in my mind, something was stuck right there, so I shook it a little bit to try to shake it loose.\u201d She agreed that shaking the machine was a \u201cfirst logical reaction to get the product.\u201d No one at Circuit City ever told her not to shake or bump the machine if a product got stuck, and no one ever told her what should be done in that situation. Hub-ner testified that the machine was for store employees. At the time in question, neither the money in the machine nor the Fritos belonged to Dwyer; \u201chis involvement was simply to assist a co-employee.\u201d The accident occurred during his work hours.\nJennifer Ritter, Circuit City store director, testified that on March 6, 2005, Jessica Hubner approached her on the sales floor advising that Dwyer was hurt and needed an ambulance. Based on subsequent discussions with Hubner and Dwyer about the incident, Ritter described Dwyer\u2019s manner of attempting to remove the chips as \u201cimproper.\u201d Ritter acknowledged instances where customers had purchased bags of chips that got stuck in the machine. When asked if the store had a protocol for such instances, she replied: \u201cYes. I would give them the money to get another bag of chips out.\u201d She said the same protocol was conveyed to employees \u201cwith respect to what happened when money got stuck.\u201d As to products getting stuck, however, no employee had ever brought such an instance to her attention. Neither had she seen any employee shake or strike the machine, reprimanded any employee for doing so, or even heard of an employee doing so.\nRitter acknowledged on cross-examination that, if individuals had been able to dislodge products by shaking the machine, she would not have been contacted about the problem (meaning there would be no reason for her to know the practice was occurring). The store had no policy prohibiting employees from shaking the machine to dislodge products. Ritter said the machine was for customers and \u201cthe convenience and comfort of employees.\u201d However, since Dwyer was not on break at the time in question, Ritter said he violated company protocol by going to the machine. Ritter acknowledged that, despite being responsible for enforcing company protocol, she did not discipline Dwyer for the violation.\nAfter proofs were closed, the arbitrator issued a written decision outlining certain facts and then stating:\n\u201cThe true issue is whether the \u2018personal comfort doctrine\u2019 applies to the facts of this case. ***\n* * *\nIn the case before this Arbitrator, the facts do not squarely fit within the \u2018personal comfort doctrine\u2019 because the Petitioner [Dwyer] was not seeking refreshment for his own personal comfort but that of a co-employee. Further, the Petitioner was not on break. There was no testimony that employees were prohibited from assisting co-employees in helping them for their own personal comfort. Also, while Ms. Ritter testified that the Petitioner violated an unstated policy in that he was not to jostle product out of the vending machine, she was aware that there was a problem with the vending machine in that she admitted that customers had product hang up in the machine. No formal work rule violation was underscored by the witness.\nWhen making findings of fact, common sense and life experience are part of the decision making process. It is not unusual or outrageous that an individual, while looking at a product teetering o[n] the edge of a spindle, would *** shake or jostle the machine in order to procure what they set out to buy. In this case at bar, it was proved that the co-employee, Jessica Hubner, shook the vending machine prior to asking the Petitioner for help. It was proved that the Respondent [Circuit City] had notice that there was a problem with the vending machine in that other people had their product hang up in the machine. It was proved that the machine was there for the personal comfort and convenience of the employees of this Respondent. It is the finding of the Arbitrator that the action of the Petitioner was not so outrageous or unusual in that people, who encounter vending machines that hang up the desired product, jostle the machine to get the product.\nThe Arbitrator adopts the above findings of material facts in support of his conclusion of law as follows: Based upon long standing Illinois Appellate Court case law the Arbitrator concludes as a matter of law and fact that the Petitioner\u2019s injuries of March 6, 2005 \u2018arose out of and \u2018in the course of his employment.\u201d\nAccordingly, the arbitrator found a compensable accident. The Commission affirmed the arbitrator\u2019s decision, with one member dissenting. The dissenting commissioner argued that the personal comfort doctrine did not apply because: (1) Dwyer was not on break and not seeking his own comfort; and (2) even assuming, arguendo, that the doctrine covers third parties, Dwyer\u2019s actions were unreasonable and unforeseeable. Circuit City appealed to the McHenry County circuit court, which agreed with the dissenting commissioner\u2019s points and thus reversed the Commission\u2019s decision. Dwyer then filed the instant appeal.\nDISCUSSION\n\u20221 An accidental injury is compensable under the Act only if it arises out of and in the course of the claimant\u2019s employment. Orsini v. Industrial Comm\u2019n, 117 Ill. 2d 38, 44-45 (1987) (noting that, since the elements are conjunctive, both must be present at the time of injury); see 820 ILCS 305/2 (West 2006). The \u201carising out of\u201d requirement pertains to the origin and cause of the injury. Orsini, 117 Ill. 2d at 45. \u201cFor an injury to \u2018arise out of the employment its origin must be in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury.\u201d Caterpillar Tractor Co. v. Industrial Comm\u2019n, 129 Ill. 2d 52, 58 (1989). The \u201cin the course of\u201d requirement speaks to the time, place, and circumstances of the injury. Orsini, 117 Ill. 2d at 44. \u201cAn injury is received in the course of employment where it occurs within a period of employment, at a place where the worker may reasonably be in the performance of his duties, and while he is fulfilling those duties or engaged in something incidental thereto.\u201d Scheffler Greenhouses, Inc. v. Industrial Comm\u2019n, 66 Ill. 2d 361, 367 (1977).\nProfessor Larson\u2019s treatise on workers\u2019 compensation law articulates the personal comfort doctrine as follows:\n\u201cEmployees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the *** method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment.\u201d 2 A. Larson & L. Larson, Workers\u2019 Compensation Law \u00a721, at 21 \u2014 1 (2008).\nThe Illinois Supreme Court has adopted this doctrine. See, e.g., Hunter Packing Co. v. Industrial Comm\u2019n, Ill. 2d 99, 104 (1953) (\u201can employee, while engaged in the work of his employer, may do those things which are necessary to his health and comfort, even though they are personal to himself, and such acts will be considered incidental to the employment\u201d); Chicago Extruded Metals v. Industrial Comm\u2019n, 77 Ill. 2d 81, 84 (1979) (\u201cinjuries sustained by an employee while in the performance of reasonably necessary acts of personal comfort may be found to have occurred \u2018in the course of his employment, since they are incidental to the employment\u201d); Eagle Discount Supermarket v. Industrial Comm\u2019n, 82 Ill. 2d 331, 339-40 (1980) (\u201cthe course of employment is not considered broken by certain acts relating to the personal comfort of the employee,\u201d but, \u201cif the employee voluntarily and in an unexpected manner exposes himself to a risk outside any reasonable exercise of his duties, the resultant injury will not be deemed to have occurred within the course of the employment\u201d).\nAs these authorities suggest, the personal comfort doctrine does not answer the whole question of compensability because it addresses only the \u201cin the course of\u2019 requirement; the \u201carising out of\u2019 requirement must be met independently. See also Union Starch, Division of Miles Laboratories, Inc. v. Industrial Comm\u2019n, 56 Ill. 2d 272, 277 (1974) (describing a personal comfort issue as \u201c[t]he more difficult question\u201d after finding sufficient evidence to support an \u201carising out of\u2019 determination). Along these lines, we have observed that application of the personal comfort doctrine \u201cwould only establish that [the] claimant is considered to be in the course of his employment\u201d and thus would not obviate an \u201carising out of\u2019 analysis. Karastamatis v. Industrial Comm\u2019n, 306 Ill. App. 3d 206, 211 (1999).\nIn the instant case, the Commission found that Dwyer\u2019s injury arose out of and in the course of his employment. We will not reverse the Commission\u2019s decision unless it is contrary to law or its factual determinations are against the manifest weight of the evidence. Durand v. Industrial Comm\u2019n, 224 Ill. 2d 53, 64 (2006). A factual determination is against the manifest weight of the evidence only when the opposite conclusion is clearly apparent (meaning no rational trier of fact could have agreed with the Commission). Durand, 224 Ill. 2d at 64.\nThe Commission\u2019s finding that Dwyer\u2019s injury arose out of his employment is not contrary to law. Regarding the manifest weight of the evidence, there is no question that Circuit City provided the vending machine for use by its employees. Jessica Hubner testified that the machine was for employees, while Jennifer Ritter testified that it was for customers and \u201cthe convenience and comfort of employees.\u201d There is also no question that the machine had a defect. All three witnesses described separate instances where products got stuck instead of being dispensed upon purchase. This defect precipitated Dwyer\u2019s injury by creating a need for action to dislodge the bag of Fritos. Under these circumstances, a rational trier of fact could have found that the injury originated in a risk incidental to his employment \u2014 thus creating the requisite causal connection. Accordingly, the Commission\u2019s finding on this matter is not against the manifest weight of the evidence.\nAs for the \u201cin the course of\u2019 requirement, the Commission found that Dwyer\u2019s injury qualified under the personal comfort doctrine. That finding is contrary to law. By its own terms, the personal comfort doctrine applies to employees who sustain injuries while seeking their own personal comfort (Jessica Hubner in the instant case, not Dwyer). The doctrine has never been applied, and does not apply, to injuries sustained by an employee while assisting a coworker who is seeking personal comfort. We need not belabor this point because a separate doctrine, the so-called \u201cgood Samaritan doctrine,\u201d is applicable instead.\nIn Ace Pest Control, Inc. v. Industrial Comm\u2019n, 32 Ill. 2d 386 (1965), the employee, Raymond Burns, was driving to Peoria from a service call in Bloomington when he noticed a vehicle parked beside the highway. It was near dusk and the temperature was below freezing. Burns stopped his work truck to offer assistance and discovered Mrs. Richard Kuntz and her four young children inside the vehicle. Kuntz had run out of gas. When Burns offered to take her to the nearest service station, she said her farmhouse was actually closer. Burns thus drove Mrs. Kuntz and the children home, a distance of about two miles, whereupon Mr. Kuntz obtained a can of gasoline and rode back to the stranded vehicle with Burns in the work truck. Burns exited the truck beside the highway and, while walking around to remove the can of gasoline, was struck and killed by a passing vehicle.\nThe evidence showed that Burns\u2019s employer had no definite policy on stopping to help stranded motorists, leaving the decision to each employee. The company\u2019s president testified that he had stopped to render assistance on prior occasions and that the work truck was like a mobile billboard because it bore the company\u2019s name.\nObserving that Burns was not acting under express instructions from his employer, and was not under any legal duty to stop and render aid, the Illinois Supreme Court explained: \u201cThe issue thus narrows to whether the giving of such aid could have been reasonably expected or foreseen.\u201d Ace Pest Control, 32 Ill. 2d at 388. The court answered this question in the affirmative, specifically rejecting the employer\u2019s claim that Burns\u2019s assistance involved too much deviation from his regular duties to be foreseeable. See also Metropolitan Water Reclamation District of Greater Chicago v. Industrial Comm\u2019n, 272 Ill. App. 3d 732 (1995) (when a lockmaster on the Chicago River was injured while attempting to rescue someone who fell into Lake Michigan, his actions were not outside the scope of his employment); Johnson v. Industrial Comm\u2019n, 278 Ill. App. 3d 59 (1996) (when an administrative assistant was injured on a Mexican yacht cruise while trying to protect her boss\u2019s niece from roughhousing by her boss\u2019s sons, the protective action was reasonable and foreseeable, thus falling within the scope of her employment).\nIn discussing Ace Pest Control, we have observed that Burns\u2019s fatal injury was compensable because his \u201c \u2018good Samaritan\u2019 act was deemed foreseeable.\u201d Metropolitan Water Reclamation District of Greater Chicago, 272 Ill. App. 3d at 737. Accordingly, when an employee leaves his or her work duties to render aid to a third party, the \u201cin the course of\u201d determination hinges on whether the employee\u2019s departure was reasonably foreseeable. In the instant case, the Commission found that Dwyer\u2019s conduct while coming to Hubner\u2019s aid was reasonably foreseeable. This factual finding is germane to the good Samaritan doctrine and not against the manifest weight of the evidence.\nIn each of the above-cited cases, the cause for rendering aid was admittedly more urgent than in the instant case. However, none of those cases involved a request for assistance by a coworker, let alone a coworker stationed in the claimant\u2019s own department. What the instant case lacks in urgency (urgency being just one possible indicator of foreseeability), it makes up for in collegiality. There is no question that the vending machine was provided for the use and comfort of Circuit City\u2019s employees and that products were known to get stuck in the machine. Ritter\u2019s testimony established such knowledge at the management level. Moreover, the record contains evidence that employees shook the machine to dislodge products. Dwyer testified to occasions where he and other employees had done so. Even Hubner personally shook the machine before seeking help from Dwyer. When questioned in this regard, she testified: \u201cLogically, in my mind, something was stuck right there, so I shook it a little bit to try to shake it loose.\u201d She agreed that shaking the machine was a \u201cfirst logical reaction to get the product.\u201d\nIn light of this evidence, it was reasonably foreseeable that an employee might ask a coworker for assistance to dislodge a product from the machine. It was also reasonably foreseeable that the coworker would come to the aid of a fellow employee. The remaining question, then, is whether Dwyer\u2019s manner of rendering aid crossed the line of foreseeability and thus took him outside the scope of his employment.\nDwyer testified that he went with Hubner to the hallway and saw her bag of Fritos stuck in the vending machine. He shook the machine from the front, but to no avail. He then shook it from the side, again to no avail. As to what happened next, he said: \u201cI was facing the side of the machine *** and I took one step forward and I hit the machine with my shoulder and it did not move and my hip followed and I pretty much fell to the ground.\u201d The arbitrator then commented:\n\u201cLet the record reflect that the petitioner is indicating basically that he was assuming what I would call a fencing or even a self-defense posture with his right arm at mid chest level and indicating he stepped towards and apparently made contact with the machine. And I infer that he made contact with his shoulder and I infer that his hip moved forward, but I couldn\u2019t make any other inferences as to what happened with the hip that he referenced.\u201d\nWhen asked how many steps he took toward the machine before striking it with his shoulder, he responded: \u201cLike half a step. It wasn\u2019t even a full step.\u201d When asked if he took a running start, he said, \u201cNo.\u201d\nDuring Hubner\u2019s testimony, the following colloquy occurred on direct examination by counsel for Circuit City:\n\u201cQ. Describe what happened when he hit it from the side.\nA. He took a few steps back and *** kind of jumped a little bit into the machine with his side to try and shake it loose. And that is when it came loose.\n***\nQ. You said he took a few steps back. Do you recall specifically how many steps back he took?\nA. Two or three, maybe.\nQ. Did he run towards the machine or walk?\nA. I would say he just walked. He didn\u2019t \u2014 There wasn\u2019t enough room in between him and the machine that he would have ran at it. He just kind of leaped into it to try and give it a good nudge.\nQ. He left his feet?\nA. Yes.\u201d\nIt is reasonably foreseeable that, after unsuccessfully shaking the machine to dislodge a product, an employee might resort to butting the machine with his or her shoulder. According to Dwyer\u2019s testimony, he did nothing more. Hubner\u2019s testimony, which adds detail, is amenable to a construction consistent with Dwyer\u2019s description of the event. For instance, she said he \u201ckind of\u2019 jumped or leaped into the machine \u201ca little\u201d just to \u201cgive it a good nudge.\u201d Even though he \u201cmaybe\u201d took two or three steps back, Hubner unequivocally testified that he did not run at the machine but \u201cjust walked.\u201d Under these circumstances, the Commission could have reasonably found that Dwyer\u2019s manner of assisting Hubner did not cross the line of foreseeability so as to take him outside the scope of his employment. Accordingly, the Commission\u2019s decision is not against the manifest weight of the evidence.\nCONCLUSION\nFor the foregoing reasons, we reverse the judgment of the McHenry County circuit court and reinstate the Commission\u2019s decision.\nCircuit court judgment reversed; Commission decision reinstated.\nMcCullough, P.J., and HOFFMAN, HUDSON, and DONOVAN, JJ., concur.\nAlthough the Commission decided the case on other grounds, we can uphold its decision on any legal basis supported by the record. See General Motors Corp., Central Foundry Division v. Industrial Comm\u2019n, 179 Ill. App. 3d 683, 695 (1989).\nThese observations, and the principles of law behind them, illustrate how Circuit City misses the mark in arguing the absence of imminent danger or exigent circumstances. The linchpin of the \u201cin the course of\u2019 requirement in this context is foreseeability, not emergency. Circuit City\u2019s argument replaces the end with a means.\nIn a similar vein, Circuit City cites Professor Larson\u2019s treatise for the proposition that when an employee renders aid to a co-employee, \u201c[i]f the aid takes the form of merely helping the co-employee with some matter entirely personal to the co-employee, it is outside the course of employment, unless the deviation involved is insubstantial.\u201d 2 A. Larson & L. Larson, Workers\u2019 Compensation Law \u00a727, at 27 \u2014 7 (2008). Immediately following this passage in the treatise, Professor Larson lists several cases where compensation was denied. The factual difference between the instant case and those cases is telling. In all but one (Bivens v. Marshall R. Young Drilling Co., 251 Miss. 261, 169 So. 2d 446 (1964)), the employee was not even injured during work hours. In Bivens, moreover, the employee left his employer\u2019s premises at work time to participate in a squirrel hunting expedition with two other employees who were off work, injuring himself in the process. The instant facts fall on the insubstantial, foreseeable side of the line.", "type": "majority", "author": "JUSTICE HOLDRIDGE" } ], "attorneys": [ "Richard D. Hannigan, of Hannigan & Botha, Ltd., of Mundelein, for appellant.", "Patrick W. Martin, of Chicago, for appellee." ], "corrections": "", "head_matter": "CIRCUIT CITY STORES, INC., Appellee, v. ILLINOIS WORKERS\u2019 COMPENSATION COMMISSION (Clinton Dwyer, Appellant).\nSecond District\nNo. 2\u201408\u20140722WC\nOpinion filed May 21, 2009.\nModified on denial of rehearing July 9, 2009.\nRichard D. Hannigan, of Hannigan & Botha, Ltd., of Mundelein, for appellant.\nPatrick W. Martin, of Chicago, for appellee." }, "file_name": "0913-01", "first_page_order": 927, "last_page_order": 939 }