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Karastamatis v. Industrial Commission6/15/1999
on of the employment environment. See also 2 A. Larson & L. Larson, Workers' Compensation Law §21.21(b), at 5-13 through 5-15 (1998) (detailing that injuries occurring from a danger inherent in the work environment or due to a defect on the employer's premises are compensable even though employee is on break).
In Eagle Discount Supermarket, claimant was injured while playing frisbee on a nighttime lunch break. The store manager let the employees into the parking lot and turned on the parking lot's lights so the employees had sufficient light to play. Again, the crucial question was whether claimant's injuries occurred "in the course" of his employment. The court stated that even if the claimant's conduct was unreasonable, employer "knew, acquiesced and possibly participated in the employees' routine games." (Emphasis added.) Eagle Discount Supermarket, 82 Ill. 2d at 340-41.
Eagle Discount Supermarket likewise does not assist claimant. The court does not state that when the personal comfort doctrine applies, claimant need not demonstrate his or her injuries arise out of the employment. In fact, the opinion reiterates that claimant must show both arising out of and in the course of. The focus of the Eagle Discount Supermarket case is on "in the course of" employment; the opinion neither raises nor discusses the issue of "arising out of" employment. Moreover, Eagle Discount Supermarket is cited by Orsini with approval. Finally, Eagle Discount Supermarket is distinguishable from the instant case on the facts. There is no evidence in the instant case that it was the church's practice to allow its employees, working the annual picnic, to dance on break. For employer's acquiescence to amount to in the course of, the activity must be a practice, habit, or custom. See 2 A. Larson & L. Larson, Workers' Compensation Law §22.12, at 5-100 to 5-101 (1998) ("the course of employment does not embrace every spontaneous or unprecedented frolic that might be undertaken on the premises"; rather, "the activity must be shown to have achieved some standing as a custom or practice either in the industry or in this particular place"). See also Union Starch, 56 Ill. 2d at 277-78; 2 A. Larson & L. Larson, Workers' Compensation Law §22.11, at 5-93 (1998). Likewise " mployer acquiescence alone cannot convert a personal risk into an employment risk." Orsini, 117 Ill. 2d at 47. In Orsini, employer's acquiescence was far greater than in the instant case. There, employer often allowed claimant to work on his personal car during normal business hours. The Orsini court nevertheless stated that this was insufficient to render the risk an employment risk.
Because the Act utilizes "arising out of" and "in the course of" conjunctively, both elements must be present for claimant to be entitled to compensation. See Orsini, 117 Ill. 2d at 45. Even assuming, arguendo, that claimant's injuries occurred in the course of his employment, this is not sufficient to award compensation. Claimant must also show his injury arose out of his employment, that is, he must show the injury occurred as a result of some risk incidental to his employment. There is no evidence that the conditions of the employment or the premises caused claimant's injury nor is there any evidence that claimant was at an increased risk. Therefore, the Commission's decision finding claimant's injuries did not arise out of his employment is not against the manifest weight of the evidence.
II. Cross-Appeal
On cross-appeal employer contends that, if this court affirms the Commission's decision that no compensable injury occurred, then employer shall be entitled to recoup from claimant $8,800.44 which apparently was the amount pa
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