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Workers’ Compensation FLASHPOINTS June 2019

June 14, 2019Print This Post Print This Post

Joseph P. Basile | E-mail Joseph Basile

The Workers’ Compensation Division of the Illinois Appellate Court issued a decision that unanimously affirmed the Illinois Workers’ Compensation Commission’s decision denying benefits to a claimant. McAllister v. Illinois Workers’ Compensation Commission, 2019 IL App (1st) 162747WC. Three of the Justices, Harris, Hudson, and Moore, filed an opinion overturning the decision in Adcock v. Illinois Workers’ Compensation Commission, 2015 IL App (2d) 130884WC, 38 N.E.3d 587, 395 Ill.Dec. 401, and its neutral risk analysis. Justices Holdridge and Hoffman specially concurred, arguing their support of the Adcock analysis. The McAllister opinion is 61 pages. It is probably the longest workers’ compensation opinion in Illinois. The decision must be read and carefully analyzed. Hopefully, this review will provide assistance in understanding the justices’ analyses.

Appellate Court Rejects Adcock Neutral Risk Analysis

The court addressed the definition and application of a neutral risk analysis in McAllister. The claimant, a sous chef, sustained a right knee injury. His job duties included checking orders, arranging the restaurant’s walk-in cooler, making sauces, “prepping,” and cooking. One of the cooks was looking for a pan of carrots he had earlier cooked. The claimant had some spare time and assisted the cook in looking for the carrots. He searched in the cooler by checking the shelves. He knelt down on his knees to look for them under the shelves but found nothing on the floor. As he stood up, his right knee popped and locked up.

Additional undisputed facts were that nothing struck or fell on the claimant’s knee. He did not trip. There were no cracks or defects on the floor. While the cooler was always wet, he did not notice anything out of the ordinary. He did not claim that he slipped on a wet surface. He was standing up from a kneeling position. He agreed that the kneeling position was similar to the position he would be in while looking for something under a bed.

The arbitrator found the case compensable and awarded temporary total disability benefits, medical expenses, permanent partial disability benefits, and penalties and attorneys’ fees. On review, the Commission reversed, finding the claimant failed to prove he sustained an accidental injury arising out of his employment. The Commission determined the injury did not result from an employment-related risk because he was injured after “simply standing up after having kneeled one time” and such activity “ was not particular to [claimant’s] employment.” 2019 IL App (1st) 162747WC at ¶17. The Commission found the claimant was subjected to a neutral risk “which had no particular employment or personal characteristics.” Id. The Commission also found the evidence failed to show that he was exposed to that neutral risk to a greater degree than the general public. On judicial review, the circuit court confirmed the Commission.

The appellate court first determined that the manifest weight of the evidence standard of review applied. The majority opinion pointed out that while the facts relating to the circumstances of the injury were undisputed, those facts were subject to more than a single inference. The facts could support different inferences as to whether looking for the carrots was required by or incidental to the claimant’s job duties. They also could support different inferences as to whether the risk of injury was peculiar to or enhanced by his employment.

Once the Commission determines the mechanism of injury, its first task in determining whether the injury arose out of the employment is to categorize the risk to which the claimant was exposed. The three types of risk are (1) risks distinctly associated with the employment, (2) risks personal to the employee such as an idiopathic fall, and (3) neutral risks that do not have any particular employment or personal characteristics.

Risks distinctly associated with the employment are compensable under the Workers’ Compensation Act, 820 ILCS 305/1, et seq. These are acts that the employer instructs the employee to perform, acts that the employee has a statutory duty or common-law duty to perform while performing duties for the employer, and acts that the employee might reasonably be expected to perform incident to his or her assigned duties.

Neutral risks — risks that have no particular employment characteristics — “generally do not arise out of the employment and are compensable under the Act only where the employee was exposed to the risk to a greater degree than the general public.” 2019 IL App (1st) 162747WC at ¶28, quoting Metropolitan Water Reclamation District of Greater Chicago v. Illinois Workers’ Compensation Commission, 407 Ill.App.3d 1010, 944 N.E.2d 800, 804, 348 Ill.Dec. 559 (1st Dist. 2011). The increased risk can be qualitative, in which some aspect of the employment contributes to the risk, or quantitative, in which the employee is exposed to a common risk more frequently than the general public.

The court found the Commission’s finding that the claimant was not injured from an employment-related risk was supported by the record and that an opposite conclusion was not clearly apparent. The record was such that the Commission could properly conclude that the risk to the claimant was too far removed from the requirements of his employment to be considered an employment-related risk.

The court also found the Commission’s analysis of a neutral risk and the finding that claimant failed to establish he was exposed to such a risk to a greater degree than the general public were supported by the record.

The court found the Commission’s determination that the claimant failed to prove his injury arose out of his employment was not against the manifest weight of the evidence. At this point the majority went on to address the special concurrence’s contention that only a neutral risk analysis should govern claims such as this, i.e., those that involve “everyday activities” or common bodily movements. The majority found that proposition of law is flawed and rejected its application in both this case and those cases that are similarly situated.

The majority’s analysis discusses at length the concurring opinion’s reliance on Adcock and how the majority came to reject Adcock and its legal analysis. The majority opinion, in this case, observes that, under Adcock, a claimant who is injured while performing “everyday activities” or common bodily movements can obtain compensation under the Act only by comparing the activities or movements to those of the general public. Under Adcock, this is true even in situations in which the activity or movement is directly related to the specific duties of the employment. The majority found that Adcock’sstatement of law is contrary to the intentions of the Act and the requirement that the Act be liberally construed.

The majority opinion pointed out that an Adcock analysis will, in effect, place an extra evidentiary burden on many employees who are injured while performing their job duties or activities closely connected with the fulfillment of their assigned duties by requiring those employees to present evidence comparing their activities with those of the general public. The nature of an employee’s work and the specific duties that must be performed are what determine whether an employee is subjected to an employment risk rather than a neutral risk. The analysis employed by both Adcock and the special concurrence is flawed because it would require injuries resulting from “everyday activities” or common bodily movements to automatically have resulted from neutral risks, i.e., those that have no particular employment characteristics and are common to the general public, without any inquiry into, or consideration of, the nature of the employee’s work for the employer and the specific job duties.

According to the majority, Supreme Court precedent is clear that an injury should be deemed to have resulted from an employment risk when the risk causing the injury originates from one of the following three types of acts: (1) an act that the claimant is instructed to perform by the employer; (2) an act that the claimant has a common-law or statutory duty to perform; or (3) an act that is incidental to the claimant’s assigned duties. They disagreed with the special concurrence’s position that once one of the three types of acts is established, Supreme Court precedent requires an additional analysis be undertaken to determine whether the case involves a risk that is distinct or peculiar to the employment versus a risk common to the general public. The majority commented that Sisbro, Inc. v. Industrial Commission, 207 Ill.2d 193, 797 N.E.2d 665, 278 Ill.Dec. 70 (2003), contradicts the special concurrence position.

The majority found it is clearer and more straightforward to focus the employment risk inquiry on whether the injury-producing act was required by the claimant’s specific job duties and not whether it could be considered an “activity of everyday living.” 2019 IL App (1st) 162747WC at ¶48. Activities necessary to the fulfillment of a claimant’s job duties present risks that are distinct or peculiar to the employment and, as a result, are not common to the general public. The opinion relies on language from Young v. Illinois Workers’ Compensation Commission, 2014 IL App (4th) 130392WC, ¶23, 13 N.E.3d 1252, 383 Ill.Dec. 131:

[W]hen a claimant is injured due to an employment-related risk — a risk distinctly associated with his or her employment — it is unnecessary to perform a neutral-risk analysis to determine whether the claimant was exposed to a risk of injury to a greater degree than the general public. A neutral risk has no employment-related characteristics. . . . Where a risk is distinctly associated with the claimant’s employment, it is not a neutral risk. 2019 IL App (1st) 162747WC at ¶61.

The majority also addressed the concurrence’s position that its approach was “in tension” with decisions that involve the denial of compensation when the employee’s health has so deteriorated that the performance of any normal activity could have caused the claimant’s injury. 2019 IL App (1st) 162747WC at ¶65. After reviewing a number of decisions, the majority observed that the injuries at issue were found to be unrelated to employment and to have arisen, instead, from a risk personal to the employee as shown by the medical evidence. In particular, medical evidence demonstrated that each employee had prior health issues and such degenerated physical conditions that any activity could have caused the injuries the claimant’s ultimately experienced. The majority noted the concurrence also ignores the fact that the claimant bears the burden of establishing not only that a workplace accident occurred but, in addition, that it caused the injury. When the evidence presented supports a finding that the risk of injury was due to a degenerated physical condition, or was solely personal to the employee, recovery can and should be denied.

In this case and the others that the majority relied on that apply a similar analysis, issues of personal risk and degenerated physical condition do not appear to have been at issue. The Commission and reviewing courts were essentially presented with employment risk and neutral risk alternatives. Under such circumstances, it is appropriate to first consider whether the risk at issue had employment-related characteristics, and evidence of such should not be disregarded in favor of automatically finding that an injury arises from a neutral risk simply because the act involves a common bodily movement or “everyday activity.” This is the critical point on which the majority disagreed with Adcock and the special concurrence.

Ultimately, what makes a risk distinct or peculiar to the employment is its origin in, or relationship to, the specific duties of the claimant’s employment. A risk that is required by the claimant’s employment and necessary to the fulfillment of the claimant’s job duties removes it from the realm of what is common to the general public (a neutral risk) even if the activities attendant to the risk have neutral characteristics, i.e., involve common bodily movements. Although case law has defined neutral risks as those that have no particular employment or personal characteristics, it has not similarly defined employment risks as having no particular neutral characteristics. 2019 IL App (1st) 162747WC at ¶69.

The majority holding was that an “arising out of” determination requires an analysis of the claimant’s employment and the work duties he or she is required to perform. Only after it is determined that a risk is not employment-related should the Commission consider and apply a neutral risk analysis.

Justice Holdridge specially concurred and was joined by Justice Hoffman. He agreed with the Commission’s determination of the case; however, he considered the majority’s analysis to depart dramatically from governing precedent and felt it would lead to an unwarranted and unworkable expansion of the Act.

Justice Holdridge disagreed with the majority’s holding that an accidental injury “arises out of” a claimant’s employment as long as, at the time of the injury, the claimant was performing an act that was “incidental to” (or “necessary to the fulfillment of”) his work duties, even if the act at issue was an activity of daily living and even if the employment did not increase the risk of injury in any way. 2019 IL App (1st) 162747WC at ¶80. This holding contravenes the basic principle of workers’ compensation law: “the rule that a claimant may not recover benefits under the Act unless his employment subjected him to some risk or hazard beyond that which is regularly faced by members of the general public.” Id. His opinion referred to a number of decisions supporting this rule, and he commented that by disregarding it, the majority has collapsed the distinction between “arising out of” the employment and “in the course of” the employment, thereby extending the Act well beyond its intended scope.

For an injury to have arisen out of the employment, the risk of injury must be a risk peculiar to the work or a risk to which the employee is exposed to a greater degree than the general public by reason of the employment. If the injury results from a hazard to which the employee would have been equally exposed apart from the employment, or a risk personal to the employee, it is not compensable. Caterpillar Tractor Co. v. Industrial Commission, 129 Ill.2d 52, 541 N.E.2d 665, 133 Ill.Dec. 454 (1989).

The special concurrence argued the majority expanded the interpretation of Sisbro and pointed out that Sisbro suggests that only injuries sustained during the performance of work-related acts arise out of the employment, not that all such injuries always arise out of the employment. A claimant may not prove his or her injury “arose out of” his or her employment without showing that the injury occurred while he or she was doing something incidental to his or her job duties.

The dispositive question was whether the risk that led to the injury had its origin in the employment. Not all acts that are necessary to the fulfillment of an employee’s job duties (or otherwise incidental to those duties) present such risks. The employee might be required to perform activities of daily living such as walking, bending, or kneeling. Although these activities may be necessary to the fulfillment of the employee’s job duties, the risks presented by these everyday activities are not peculiar to any particular line of employment. Such risks have their origin in the employment only if the employment increased the risks beyond that which is faced by members of the general public, for example, by requiring they be performed more often than members of the general public or in a manner than enhances the risk of injury. Unless the employment increases or enhances the risk in one of these ways, injuries that occur while an employee is performing activities of daily living do not arise out of the employment, even if they are incidental to the employee’s job duties.

Justice Holdridge went on to cite decisions in support of his position and observed that “[i]n each of these cases, we held that it was the origin of the risk that produced the injury, not the fact that the claimant was performing some work-related act at the time of injury, that determined whether the claimant’s injury arose out of his employment.” [Emphasis in original.] 2019 IL App (1st) 162747WC at ¶92. If the majority’s approach were correct, he reasoned, there would have been no need to conduct a neutral risk analysis in those cases because, in each case, the claimant was injured while performing acts that were required by or incidental to his work duties. The fact that a particular activity is necessary or essential to the performance of a claimant’s job duties, without more, has no bearing on the origin or nature of the risk presented by the activity. The risk stems from the nature of the activity itself, not from its connection to an employment-related purpose.

Therefore, it is reasonable to say that the risk of a particular activity “has its origin in the employment” only if (1) the activity is unique to a particular line of work (e.g., welding or operating dangerous machinery), such that members of the general public do not perform the activity, or (2) the employment requires the claimant to perform a common activity more frequently than members of the general public or in a manner that increases the risk of the activity. 2019 IL App (1st) 162747WC at ¶94. Under those circumstances (and only under those circumstances), the risk of injury associated with the activity is directly affected by the employment.

The special concurrence discusses the tension between the majority approach and decisions in which compensation was denied to claimants who were injured while performing their work duties because their health had so deteriorated that the performance of any normal daily activity could have caused the injuries. Compensation was denied because the injury resulted from a hazard personal to the claimant and, therefore, did not arise out of the employment.

The special concurrence took the position that decisions of the court cited by the majority were wrongly decided because they applied the same analysis as the majority in this case, and Justice Holdridge would no longer follow them. These cases are Steak ’n Shake v. Illinois Workers’ Compensation Commission, 2016 IL App (3d) 150500WC, 67 N.E.3d 571, 409 Ill.Dec. 359, Mytnik v. Illinois Workers’ Compensation Commission, 2016 IL App (1st) 152116WC, 67 N.E.3d 946, 409 Ill.Dec. 491, Noonan v. Illinois Workers’ Compensation Commission, 2016 IL App (1st) 152300WC, 65 N.E.3d 530, 408 Ill.Dec. 308,Young, supra, and Autumn Accolade v. Illinois Workers’ Compensation Commission, 2013 IL App (3d) 120588WC, 990 N.E.2d 901, 371 Ill.Dec. 713. The opinion addresses how a neutral risk analysis should be applied to these decisions.

For the special concurrence, the Adcock decision applied a simple, analytically clear, and workable rule that provides clear guidance to the Commission, lower courts, and members of the bar. It pointed out that in this case the claimant’s act of looking for the misplaced carrots seemed to be undoubtedly “incident to” his duties as sous chef. The special concurrence continued: “Thus, if the majority’s analysis were correct (i.e., if all injuries sustained during the performance of acts incidental to one’s job duties arise out of one’s employment), I believe we would have no choice but to reverse the Commission’s decision and award benefits.” 2019 IL App (1st) 162747WC at ¶109. Instead, Adcock’s neutral risk analysis should govern the claim, the first step of the majority’s analysis should be skipped, and the Commission’s denial should be affirmed solely under neutral risk principles.

In sum, Justice Holdridge believed the Adcock analysis is sound and preferable to the majority’s analysis because (1) it upholds the well-established principle that a claimant may not recover under the Act for risks faced by members of the general public unless those risks are increased or enhanced by the employment; (2) it applies an analytically clear and workable rule that will provide clear guidance to the Commission, lower courts, and members of the bar, whereas the majority’s analysis will sow confusion and ad hocdecision-making; and (3) it would not unduly restrict eligibility for compensation under the Act, whereas the majority’s analysis would expand eligibility for benefits well beyond what the legislature intended by rendering any injury directly connected to the performance of an employee’s essential job duties potentially compensable, even if the employment did not increase the risk of injury in any way.

For more information on workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (ILLINOIS) — 2015 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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