The Circuit Court Ruled That A Flight Officer’s Shoulder Injury Caused By Massage At Hotel While On Layover Arose Out Of And In The Course Of Employment

The Circuit Court of Cook County affirmed the Commission’s holding that a flight officer’s shoulder injury, which was caused by a massage at a hotel while on layover in Guatemala, arose out of and in the course of employment. A reasonable inference could be drawn that it was foreseeable by defendant that there was a risk associated with his fitness program and that an injury might occur.

Claimant, a flight office, worked on a flight which departed from New York, went to Los Angeles and then to Guatemala City, Guatemala, finally returning to New York approximately five days after its departure. He had a 24 hour layover in Guatemala City, and defendant provided accommodations at hotel. The hotel had a health club facilities on site or access to an off-site location. Claimant further testified that based on defendant-provided information of civil unrest in Guatemala, he chose to stay within the hotel compound. On the date at issue. Claimant worked out at the hotel health club and then went for a massage within the club. He stated that while lying face down, the masseuse manipulated his elbows in such a manner that he heard a pop in his right shoulder. He felt sharp pain and told the masseuse to end the massage. Claimant reported for work the next day, claiming that he mentioned the incident to his supervisor, the main pilot. He completed a written report of the incident 18 months after the date of accident. Following the accident, he underwent surgery for a torn rotator cuff.

The arbitrator found no accident, notice or causal relationship. In a decision reported, the Commission reversed on the issues of accident and notice and affirmed on the issue of causal relationship. One Commissioner affirmed and on Commissioner reversed

The Circuit Court of Cook County confirmed the decision of the Commission. The court held, first, that the finding of the Commission that claimant proved an accident arising out of and in the course of his employment was not against the manifest weight of the evidence. The court explained that claimant was a traveling employee and, as such, faced certain risks that would not be compensable if his status was that of a non-traveling employee. Further, the court found evidence that claimant had to maintain his fitness to perform his pilot duties. His involvement in a physical fitness was foreseeable by defendant. A reasonable inference could be drawn that it was foreseeable by defendant that there was a risk associated with such a program and that an injury might occur.

Next the court held that the Commission properly found that claimant proved notice was given to defendant. The court explained that the Commission found the evidence that claimant reported an accident to his supervisor credible. Although no report was tendered to defendant and claimant did not report to the nearest company medical facility, notice was given to defendant.

The court went on to reject claimant’s argument that there was undisputed facts in the record which established, as a matter of law, that he met his burden of proving causal relationship. The court found that the facts were disputed and were susceptible to more than one inference. The court noted that despite claimant’s argument to the contrary, he was able to fully perform his duties as a pilot for two years following the accident. The court also noted that claimant sought no medical treatment for his right shoulder until one and one-half years after the accident. During this period, he continued to engage in extensive physical activities, including swimming, jogging, riding a stationary bike and using workout equipment. There was no evidence that during the course of his medical examinations, he reported his shoulder complaints to defendant.