I.         STATUTORY REQUIREMENT

A.        Illinois Workers’ Compensation Act (Act)

According to the Act, in order for a claimant to be entitled to workers’ compensation benefits, the injury must “arise out of” and occur “in the course of” the claimant’s employment.  820 ILCS 305/1(d).  These are separate elements and both must be present at the time of the accidental injury in order to justify compensation.  Thus, in order to obtain compensation under the Act, a claimant bears the burden of proving by a preponderance of evidence two elements:  (1) that the injury occurred in the course of the claimant’s employment; and, (2) that the injury arose out of the claimant’s employment.

B.        Course of Employment

The phrase “in the course of employment” refers to the time, place and circumstances of injury.  “A compensable injury occurs ‘in the course of employment’ when it is sustained while a claimant is at work or while he performs reasonable activities in conjunction with his employment.”  Wise v. Industrial Commission, 54 Ill.2d 138 (1973).

C.        Arising out of Employment (Pre-McAllister Decision)

Prior to the Supreme Court’s Decision in McAllister, for a claimant to establish that his accident arose out of the employment the claimant must establish that the risk of injury was peculiar to the work or a risk to which the employee was exposed to a greater degree then the general public by reason of his employment.  Orsini v. Industrial Commission, 117 Ill.2d 38 (1987).  In other words, for the accident to have arisen out of the employment the claimant had to establish that he or she was exposed to a risk of injury, either qualitatively or quantitatively, to a greater degree than the general public.

II.       SUPREME COURT DECISION – McALLISTER V. THE ILLINOIS WORKERS’ COMPENSATION COMMISSION

A.        Facts

The facts of the claimant’s injury in this case are fairly straightforward.  The claimant worked as a sous chef for the respondent (North Pond) and his job duties included checking in orders, prepping and making food, making sauces, and arranging the restaurant’s walk-in cooler.  During one of his work shifts a co-worker told the claimant he had misplaced a pan of carrots in the walk-in cooler.  The claimant went to the walk-in cooler to look for the carrots, and kneeled down on both knees to look on the bottom shelves for the missing pan of carrots.  When he tried to return to standing the claimant experienced a pop in his knee and it locked up, and he reported the injury immediately.  The claimant testified that he did not slip or trip while getting up, that he did not strike his knee getting up, and that there was no other condition or defect that caused his knee to pop and sustain injuries.

The respondent elected to dispute liability on the grounds that the claimant’s accident did not arise out of his employment.  After a hearing the Arbitrator found that the claimant’s act of looking for the misplaced pan of carrots was an act the employer reasonably could have expected the claimant to perform in order to fulfill his job duties, and therefore found that the accident arose out of the employment.  On review, the Commission reversed the Arbitrator’s decision and found that the accident did not arise out of the employment.  The Commission held that the claimant’s actions that resulted in the injury were a neutral risk that had no particular employment or personal characteristics.  Because the injury resulted from a neutral risk, the Commission found that the accident was not compensable because the petitioner was not exposed to this neutral risk to a greater degree than the general public.  The claimant appealed to the Circuit Court, which affirmed the Commission.

On appeal to Workers’ Compensation Division of the Appellate Court, the five justices affirmed the decision of the Commission, but there was a split regarding the proper analysis to determine whether the accident arose out of the employment.  A three justice majority argued that an accidental injury arises out of the employment if the claimant was performing an act that he might reasonably be expected to perform incident to his employment or causally connected to what the claimant must do to fulfill his assigned job duties.  The majority, however, found that the accident did not arise out of the employment because the act of standing from a kneeling position while looking for something that had been misplaced by a co-worker was not a risk distinctly related to the employment.  A two justice minority argued that the act of standing up from a kneeling position was a neutral risk, since it is an activity of daily living and not a risk peculiar to the employment.  For an accident from a neutral risk to be compensable, a claimant must show that their work required them to perform this activity of daily living more often or to a greater degree than the general public.  Since the claimant did not demonstrate he performed the activity of kneeling regularly as part of his job, his accident resulted from a non-compensable neutral risk.  The analysis by the two justice minority is what our firm has followed and advised clients regarding such injuries based on the case law.

B.        Course of Employment

The Supreme Court maintained the same definition of “in the course of employment”; to wit: the phrase in the course of employment refers to the time, place and circumstances of the injury.  A compensable injury occurs in the course of employment when it is sustained while the claimant is at work or while performing reasonable activities in conjunction with employment.  McAllister at p.8.

C.        Arising Out of Employment

The Supreme Court changed the definition of when an accident arises out of the employment.

1.         McAllister Definition of Arising Out Of:

According to the Supreme Court in McAllister, the arising out of component is primarily concerned with causal connection.  To satisfy this requirement it must be shown that the injury had its origin in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury.  McAllister at p.9.

2.         Three Categories of Risk:

According to the Supreme Court in McAllister, all risks to which a claimant may be exposed fall within 1 of 3 categories.  The 3 categories of risk recognized by case law are “(1) Risks distinctly associated with the employment; (2) Risks personal to the employee; and, (3) Neutral risks that have no particular employment or personal characteristics.  McAllister at p.9.

            i.          Employment Risks:

The first category of risks, according to the Supreme Court, involves risks that are distinctly associated with employment.  These are referred to as “employment risks.”  A risk is distinctly associated with an employee’s employment if, at the time of the occurrence, the employee was performing: (1) acts that he or she was instructed to perform by the employer, (2) acts that he or she had a common law or statutory duty to perform, or (3) acts that the employee might reasonably be expected to perform incident to his or her assigned duties.  McAllister at pp.10-11.  Injuries resulting from a risk distinctly associated with employment are deemed to arise out of the claimant’s employment and are compensable under the Act.  McAllister at p.10.

            ii.        Risks Personal to the Employee

The second category of risks involves risks personal to the employee.  Personal risks include non-occupational diseases, injuries caused by personal infirmities such as a trick knee, and, injuries caused by personal enemies.  Injuries resulting from personal risk generally do not arise out of the employment.  An exception to this rule exists when the workplace conditions significantly contribute to the injury or expose the employee to added or increased risk of injury.  McAllister at p.10.

            iii.       Neutral Risks

The third category of risks involve neutral risks that have no particular employment or personal characteristics.  Neutral risks include stray bullets, dog bites, lunatic attacks, lightening strikes, bombing and hurricanes.  Injuries resulting from neutral risks generally do not arise out of the employment and are compensable under the Act only where the employee was exposed to a risk to a greater degree then the general public.  Such an increased risk may be either qualitative, such as some aspect of the employment which contributes to the risk, or quantitative, such as when the employee is exposed to a common risk more frequently then the general public.  McAllister at p.11.

D.       Supreme Court Application of Arising Out of to Facts

The Supreme Court stated that the first step in risk analysis is to determine whether the claimant’s injuries arose out of an employment related risk – a risk distinctly associated with the claimant’s employment.  As noted above, a risk is distinctly associated with the employee’s employment if, at the time of the occurrence, the employee was performing (1) acts that he or she was instructed to perform by the employer, (2) acts that he or she had a common law or statutory duty to perform, or (3) acts that the employee might reasonably be expected to perform incident to his or her assigned duties.  McAllister at p. 11.

Applying this definition of arising out of to the facts of the case, the Supreme Court held that the claimant’s knee injury arose out of an employment related risk because the evidence established that at the time of the occurrence his injury was caused by one of the risks distinctly associated with his employment as a sous chef.  The evidence established that the acts that caused the claimant’s knee injury (kneeling down on the floor in the walk-in cooler to look for a pan of carrots misplaced by a coworker and then standing up from the kneeling position injuring his knee) were risks incident to his employment because they were acts his employer might reasonably expect him to perform in fulfilling his assigned job duties as a sous chef.  McAllister at p.11.

III.     CRITIQUE OF SUPREME COURT DECISION

To say the Supreme Court Decision in McAllister changed the arising out of analysis and significantly expanded the scope of compensable work related accidents is not an understatement.  By using the definition of arising out of set forth above, the Supreme Court “threatens to collapse the distinction between ‘arising out of’ the employment and ‘in the course of’ the employment, and that would arguably authorize compensation for positional risks.”  Quoting Justice Holdridge in McAllister v. Industrial Commission, 2019 Ill.App.1^st (162747WC) 2019 p.545.

A.        Conflation of In The Course of Employment and Arising out of Employment

1.         Act:

As previously noted, Section 1(d) of the Act expressly requires that for a claimant to be entitled to workers’ compensation benefits, the injury must arise out of and in the course of the claimant’s employment.  820 ILCS 305/1(d).  The Supreme Court concedes that both elements must be present and thus, the claimant bears the burden of proving by a preponderance of evidence that: (1) that the injury occurred in the course of the claimant’s employment; and, (2) that the injury arose out of the claimant’s employment.  McAllister at p.8.

2.         In The Course of Employment:

The Supreme Court stated that “a compensable injury occurs in the course of employment when it is sustained while a claimant is at work or while performing reasonable activities in conjunction with his employment.”  McAllister at p.8.

3.         Arising Out Of:

According to the Supreme Court, when determining whether an accident arose out of the employment, the first step in the risk analysis is to determine whether the claimant’s injuries arose out of an employment-related risk – a risk distinctly associated with the claimant’s employment.  A risk is distinctly associated with the employee’s employment if, at the time of the occurrence, the employee was performing (1) acts he or she was instructed to perform by the employer (2) acts that he or she had a common law or statutory duty to perform, or (3) acts that the employee might reasonably be expected to perform incident to his assigned duties.

If the accident is placed in this category, then according to the Supreme Court in McAllister, the injury “arose out of the employment.”  McAllister at p.16.  No longer does the claimant need to establish that he or she was exposed to a risk of injury either qualitatively or quantitatively to a greater degree then the general public.  McAllister at p.17.

It is difficult to see how the Supreme Court’s definition of “in the course of” is any different than its definition of “arising out of” the employment.  Please recall that the Supreme Court’s definition of in the course of employment is an accident that is sustained “while a claimant is at work or while he performs reasonable activities in conjunction with his employment.”  McAllister at p.8.  This definition sounds very similar to (1) Acts a claimant is instructed to perform by his employer, (2) Acts that a claimant had a common law or statutory duty to perform, or (3) Acts that a claimant might reasonable be expected to perform incident to his or her assigned duties.  McAllister at p.11.  The three subcategories all involve examples of reasonable activities a claimant might perform in conjunction with their employment, which is the definition of “in the course of” and is a distinction without a difference.  As stated by Justice Holdridge, the two requirements have been “collapsed” into one and, by so doing, the Supreme Court has extended the Act well beyond its intended scope and into the territory of the doctrine of positional risk.

B.        Positional Risk

1.         What does “positional risk” mean?

“Under the positional risk doctrine, an injury may be said to arise out of the employment if the injury ‘would not have occurred but for the fact that the conditions or obligations of the employment placed claimant in the position where he was injured by a neutral force, meaning by ‘neutral’ neither personal to the claimant nor distinctly associated with the employment.’”  Brady v. Louis Ruffolo & Sons Const. Co., 143 Ill. 2d 542, 552, 578 N.E.2d 921, 925 (1991), quoting Larson, The Positional–Risk Doctrine in Workmen’s Compensation, 1973 Duke L.J. 761, 761.

2.         Brady v Louis Ruffolo & Sons Const. Co.

In the Brady case cited in the above paragraph, the claimant was at work in his employer’s building, which was located near a highway.  A truck carrying gravel veered off the highway and crashed into the employer’s building, causing injuries to the claimant.  At the time of the injury, the claimant was working at a drafting table, where he performed most of his work.  The Supreme Court, in affirming the Commission and circuit court, found that the claimant’s accidental injuries did not arise out of the employment.  The Supreme Court specifically addressed arguments by the claimant to adopt the positional risk doctrine and rejected them, stating that was not the intent of the legislature when it created the Illinois Workers’ Compensation Act.

3.         Analysis of Brady under McAllister requirements.

If we apply the analysis set forth in McCallister to the facts in the Brady case, would the outcome be any different?  The claimant in Brady was in the course of his employment, he was at work and was performing his work duties at the time of the accident, so he satisfies that portion of the analysis.

The claimant in Brady was at a drafting table performing work-related tasks when he was injured. Since he was injured while performing either tasks he was specifically instructed to perform or tasks that would be considered incidental to his employment, would his accident now also arise out of his employment?

4.         Would the Brady case now be compensable under the Illinois Workers’ Compensation Act?

Is Illinois now a positional risk state?  The Supreme Court had the occasion to address this issue and specifically declined to do so.

IV.      BEST PRACTICES

We always recommend performing a detailed and thorough investigation of any claimed accidental injury, with the goal being to freeze the facts of the case as soon as is practical.  This will be critical to helping prove whether a claimant’s accidental injuries were caused by an employment related risk, a neutral risk, or a personal risk.  Some of the investigative steps that should be taken in each case include, but are not limited to, the following:

• A statement of the claimant in his or her own words, either a recorded statement or a written statement
• Statements of any witnesses to the accident
• Medical history of the claimant to look for evidence of a personal risk
• Speaking to the employer about any security camera or similar footage that may have recorded the accidental injury
• Conducting a social media search to see if the claimant was engaged in personal activities that could explain the injuries
• Conducting a past claims search to see if the claimant reported any other insurance claims
• Conducting a medical canvass to determine if the claimant was obtaining treatment for the supposed work-related condition

What can employers do now about this situation?  We submit that this is not going to be changed through the courts; there is an ample body of case law that would have supported a decision consistent with what the courts have been doing for decades.  Rather, we believe that the only effective change is going to be through a amendment to the Illinois Workers’ Compensation Act that codifies minority opinion expressed in the Appellate Court decision in the McCallister case, and also clearly expressed by the majority opinion in the Appellate Court case of Adcock v. Illinois Workers’ Compensation Commission, 2015 IL App (2d) 130884WC.  We encourage all stakeholders on the employer’s side of workers’ compensation to contact their state legislators to express concern about the Supreme Court’s change in the law to potentially add many more compensable claims under the Illinois Workers’ Compensation Act.

V.        CONCLUSION

Each case is unique and should be considered on the merits of the facts of each situation before making a determination as to whether an accident is compensable.  Please feel free to contact any of the attorneys at Garofalo, Schreiber, Storm & Grant, Chartered for specific questions on how the Supreme Court’s new case and analysis might apply to your new or pending claims.