Heyl Royster

Workers' Comp Update: Illinois Appellate Courts Expand Risk Analysis

By: Jim Manning, jmanning@heylroyster.com

Recently, there has been a troubling trend in the Illinois Appellate Court pertaining to workplace injuries and whether an employee's injury on the employer's premises "arises out of" his work for the employer such that the injury becomes compensable under the Illinois Workers' Compensation Act. A recent decision in Young v. Illinois Workers' Compensation Comm'n suggests that the appellate court has departed from the increased risk analysis previously set forth by the Illinois Supreme Court. In other words, a neutral risk such as reaching, bending, walking or stooping may potentially be compensable as long as the employee was performing an act the employer might reasonably have expected him to perform in the course of his usual duties. The necessity of an increased risk peculiar to the employment appears to have been completely disregarded.

This is further compounded in cases where an employee is deemed to fall within a class defined as a "traveling employee." Cases which at first blush appear to be non-compensable may very well be found compensable where they involve injured workers who are deemed to be "traveling employees." For example, an employee who is provided a company vehicle and works out in the field (so to speak) such that he has to drive from one location to another for inspections or the like would likely be considered a traveling employee. The test for determining whether an injury to a traveling employee "arises out of" and "in the course of" employment is the reasonableness of the activity or conduct in which the employee was engaged and whether it might normally be anticipated or foreseen by the employer.  In most instances, the mere act of stepping over a curb and tripping would not make for a compensable claim where the curb does not, itself, present a defect or increased risk. Traveling employees, however, are deemed at increased risk by virtue of injuries that occur while exposed to "street risks" that can be reasonably anticipated to occur.

The appellate court, in the recent Nee v. Illinois Workers' Compensation Comm'n opinion, concluded that as a traveling employee, the claimant was subjected to an increased risk of tripping over a curb due to the nature of his employment as a plumbing inspector and, therefore, his injury "arose out of" his employment and was deemed compensable. The Nee case illustrates the distinct analysis that must be undertaken when determining whether a traveling employee's injury "arises out of" and "in the course of" their employment.

However, the neutral risk analysis may have found new life in the recent 2015 decision in the Adcock v. Illinois Workers' Compensation Comm'n case. There, a welder injured his left knee while merely turning in a chair he was required to use as the result of permanent restrictions to his right knee. The appellate court appeared to step back from the analysis used in the Young case which suggested that a neutral risk analysis was not necessary where the employee was injured while performing his work duties. The Adcock court held that the act of turning in a chair was one of everyday life (similar to the act of walking, bending, or turning) and therefore a neutral risk, but found the claim compensable because the claimant was exposed to this risk to a greater degree by virtue of his employment which required him to perform those activities more frequently than members of the general public.

Although an unfavorable outcome occurred, Adcock can be viewed as a good decision from the standpoint that the court may have set a more clear demarcation of the law involving increased risks where an injured worker encounters a neutral risk, whether an activity or condition of the premises. The court still recognized the burden of proving that the risk or condition was encountered more frequently or to a different extent than the general public by virtue of the employment.

As the outcome of every case depends on the specific facts, it is important to consult with your attorney so that a complete investigation can be conducted to provide you with the best defense in these questionable claims.

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