The Illinois
Industrial Commission held that claimant was entitled to benefits for a
fractured tooth sustained while using his mouth to cut tape, even though
he was violating a safety rule by not using scissors, where his
activities were related directly to work, were a benefit to defendant
and were done with his supervisor’s knowledge and acquiescence. Also, a
majority of the Commission awarded 20 weeks of disfigurement benefits
under section 8(c) of the Workers’ Compensation Act. (David Ahamons
v. Kmart, (Ill.Ind.Com.), Nos. 95 WC 54641, 01 IICC 0028, Jan.9,
2001.)
Claimant, a
receiving clerk for defendant’s retail store, testified that on the day
of his alleged accident, he was packing and taping boxes. He further
testified he requested a knife or scissors from the manager in order to
cut the tape, as management were the only personnel allowed to have a
knife or scissors. He testified that the manager working with him
declined his request. Therefore, claimant used his teeth to cut the
tape, which caused him to fracture his tooth. He eventually had the
tooth extracted.
The
arbitrator found claimant sustained serious and permanent disfigurement
to the extent of 20 weeks under section 8(c) and also awarded medical
expenses under section 8(a), penalties under section 19(k) and attorney
fees under section 16.
A majority
of the Commission affirmed the award of disfigurement and medical
benefits, distinguishing Saunders v. Industrial Commission. In
Saunders, the Illinois Supreme Court held that claimant’s conscious
violation of a safety rule by riding double on a forklift was purely for
his own personal convenience, was in no way required by or benefited his
employer and therefore did not arise out of his employment. The majority
noted that unlike the situation in Saunders directly to work,
were of a benefit to his employer and were done with his supervisor’s
knowledge and acquiescence. The majority further noted that any written
work policy forbidding such conduct was not placed into evidence.
The majority
went on to vacate the award for penalties and attorney fees, finding
defendant had a basis to dispute the claim based on claimant’s
preexisting root canal problems.
The dissent
would have denied benefits for disfigurement, contending the arbitrator
erred in relying on claimant’s testimony "that he is embarrassed and
self-conscious...he feels he will not get hired due to the appearance of
his mouth." The dissent argued disability must be awarded on an
objective basis and prior Commission decisions must be regarded as
precedent under section 19(e). The dissent explained that the Commission
had two cases involving fracture and loss of a tooth in 1999 and denied
compensation for disfigurement in both.
