Random Attack on Delivery Driver Held Compensable Under Traveling Employee Doctrine

Potenzo v. Illinois Workers' Compensation Com'n
--- N.E.2d ----, 2007 WL 4439704, Ill.App. 1 Dist., December 18, 2007 (NO. 1-07-0077WC)

The petitioner was employed by Jewel Food Stores as a delivery truck driver.  During one of his visits to a Jewel Store, he was attacked from behind by an unknown assailant.  The petitioner did not know who attacked him or why.  The arbitrator and Industrial Commission denied compensability based on the lack of any evidence that the attack was related to his employment.

The appellate court reversed the Commission and found the case compensable.  It determined the attack was neither a risk distinctly associated with his employment nor was it personal to him.  The attack was a result of a neutral risk.  It further held that since the petitioner was a traveling employee, the risk of being assaulted, although one to which the general public is exposed, was a risk to which the claimant, by virtue of his employment, was exposed to a greater degree than the general public.  Thus, the case was found compensable.

Repetitive Trauma Claim Denied Based on Lack of Notice
White v. Workers' Compensation Com'n
374 Ill.App.3d 907, 873 N.E.2d 388, 313 Ill.Dec. 764, Ill.App. 4 Dist., July 05, 2007 (NO. 4-06-0566WC)

The petitioner alleged repetitive trauma injuries to his right and left shoulders and back. He alleged date of accident of July 17, 2000, the last date that he worked for the respondent. The arbitrator found the case compensable but the Industrial Commission reversed unanimously and held that the petitioner failed to give the respondent timely notice of his accidental injuries. The appellate court affirmed the Industrial Commission, finding that the petitioner failed to give notice of his alleged work injury within 45 days of the accident date. It noted that the accident date is the date on which the injury "manifests itself" meaning that the date on which both the fact of the injury and the causal relationship of the injury to the petitioner’s employment would have become plainly apparent to a reasonable person. The court noted that although the employer knew the petitioner was injured within 45 days of the alleged accident, the record did not show notice of "industrial injuries."

It further held that respondent was not required to show undue prejudice because the prejudice requirement is not required unless some notice is given. The fact that the respondent knew of the injury but not of the industrial injury did not constitute defective notice under the Act. Finally, the court held that the 45 day notice period runs from the date of the injury alleged by the petitioner.



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