The Commission Held That Claimant Who Fractured His Tooth Was Entitled To Benefits, Despite Violation Of Safety Rules

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, distinguishingSaunders 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.

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Donald W. Fohrman & Associates, Ltd.