12-12-2022; Update on IL WC Fall Claims As Part of the Coming Winter Season; Happy Holidays to all!!!!

Synopsis: UPDATE ON McAllister v. IWCC--The IL Supreme Court ruling and interpretation in a “stand-up” injury claim.

Editor’s comment: By way of review, in McAllister, Claimant felt pain standing up at work. The IL WC Appellate Court was divided on causation. The majority favored the analysis contained in Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52 (1989). This was an injury when Claimant stepped off a street curb and fell going to his car after work.

Two concurring IL WC Appellate Court justices, however, preferred the analysis contained in Adcock v. Illinois Workers’ Compensation Comm’n, in which Claimant asserted he was injured simply pivoting in a swivel chair. In Adcock, the Court ruled Claimant had to establish his or her job duties required the claimant to engage in the everyday activity that caused the injury to a greater degree than the general public, even in situations where the activity was directly related to the claimant’s job duties.

The IL Supreme Court rejected and reversed the Adcock test. They agreed with the IL WC Appellate Court majority and held Caterpillar Tractor “prescribes the proper test for analyzing whether an injury ‘arises out of’ a claimant’s employment, when a claimant is injured performing job duties involving common bodily movements or routine everyday activities.”

Ruling Rationale:

The IL Supreme Court explained, common bodily movements and everyday activities at or near work are compensable and employment-related if the activity that caused the injury “had its origin in some risks connected with, or incidental to, employment so as to create a causal connection between the employment and the accidental injury.” The Court then overruled Adcock and no longer require a claimant to additionally prove he or she was exposed to a risk of injury to a greater extent than the general public.

So, how far does McAllister go???

Iniquez v. Town of Cicero, 21 IWCC 0300 (7/18/21).

Synopsis: In this claim, the IL WC Commission awards benefits based on “traveling employee” classification. While this aspect of the ruling is unfavorable, we are more troubled by the Commission’s further adoption of the McAllister ideology and offering an “alternative” basis for compensability.

Iniquez involved an inspector who was injured when he slipped on normal stairs. Since his job involved building inspections, the nature of work did involve travel. However, this incident occurred at his office, where he returned to get more assignments. Therefore, defense argued he was not “traveling” when injured. Since there was no design flaw or debris on the stairs, it was argued by defense this incident did not arise out of his employment.

Facts and Ruling: The IL WC Commission reasoned the nature of this employee’s work involved travel, and during the work-day, the fact that he stopped in the office for assignments did not change the nature of his classification as a “traveling employee.” From the defense perspective, we are troubled by this logic, as the original intent of the so-called traveling employee concept is that workers who are at greater risk due to “travel” will be compensated. Here, the worker was merely at his office. Therefore, there was no greater risk in our view.

More troubling is the fact that the IL WC Commission went on to comment on the application of McAllister here, concluding that compensability would be found regardless of the traveling employee classification. The Commission explained the employee was performing acts reasonably expected in furtherance of his job duties and was therefore exposed to a risk associated with his employment. The IL WC Commission found descending stairs on his way to an off-site inspection was a risk distinctly associated with his employment and reasonably foreseeable. The Commission concluded therefore compensability was found based on the McAllister theory of compensability.

Again, we disagree with this aspect of the ruling, as we find this to be a further expansion of the McAllister ruling. At least in McAllister, the chef was kneeling to find products for work and injured his knee due to that mechanism. Here, the employee was simply walking down stairs… no flaw, debris or other identifiable increased risk was apparent. We don’t agree that walking down a set of stairs, with no work materials to affect one’s view or balance, is a risk “distinctly associated” with the job.

Troubling trend… are we “stumbling” toward creating a new “positional risk” doctrine in Illinois?

Lullo v. State of Illinois (IWCC 2022)

Synopsis: IL WC Commission continues to expand what is considered compensable where workers are performing acts “reasonably expected” in furtherance of job.

Facts and Ruling: Petitioner worked as a custodian and was dumping garbage. He actually completed that task, and was simply walking down-stairs with a roll of new garbage bags to replace in the cans he emptied, when he tripped and fell, injuring his knee.

Petitioner alleged he could not catch himself on the railing because he was carrying the roll of bags… the arbitrator awarded benefits accordingly.

The IL WC Commission affirmed, but offered a more troubling explanation of compensability, again, based on the McAllister theory.

The Commission explained that the compensability here was not based on the fact Petitioner was carrying items for work… in fact, the Commission found no need to go into a “qualitative or quantitative” assessment to determine if the job duties increased the risk of fall (carrying items) or if he had to navigate stairs often (quantitative risk). Rather, the Commission explained the mere fact Petitioner was performing acts “reasonably expected to perform incident to his assigned duties… and instructed to do by his employer” then the analysis ends and the event is compensable.

We find such analysis to be an even greater expansion of the McAllister theory. In the past, we would observe the Commission require at least some work-related link to the fall, such as flaws or debris on stairs, or citing the carrying of items which increased the risk of fall. Our fear is that now, all a Petitioner need show is that they were navigating ordinary stairs as part of their job. We don’t believe this is the true intent of the IL WC Act or even the true intended expansion contemplated in McAllister.

So, do we now have Positional Risk in Illinois??  Not so fast…                                                                                                  

Vaughn v. IWCC and Memorial Medical Center (2021)

Synopsis: Our IL Appellate Court, WC Division outlined a clear path for a parking lot/curb fall down claim to be defended and won.

The parties stipulated claimant fell in a parking lot on Memorial’s premises and suffered injuries. The arbitrator admitted into evidence various photographic exhibits depicting the condition of the sidewalk, curb and slanted asphalted surface where claimant stepped, stumbled and fell. We understand the photos indicated the curb, sidewalk and asphalt were in ordinary condition and there was no indication of defects or foreign objects/substances that would increase the risk of injury. For risk and claims managers, it is crucial to have such documentation in all your WC claims.

Facts and Ruling: On the morning of the incident, claimant had clocked out for the day. She exited the medical center through an employee door, as previously instructed by her immediate supervisor. Upon exiting, claimant, accompanied by a co-worker, began walking on the sidewalk toward her assigned parking lot. Claimant claimed the sidewalk in that area was not commonly used by members of the general public

Claimant alleged the concrete on the sidewalk where it met the asphalt was uneven, and it was about an inch and-a-half to two inches difference, causing the trip and fall.

She also testified that outside lights, located on nearby buildings and landscaping, illuminated the area where she fell. However, at the time of her fall, one of the lights was not working and others were partially obscured by a parked security van, which resulted in a shadow that made that area darker. Claimant suffered a comminuted fracture along the inferior aspect of the patella or kneecap with surgery.

On cross examination, claimant admitted that she was permitted to park in any of the employee parking lots, but it was suggested that she park in Lot #3. Additionally, claimant admitted she was permitted to use any entry door, but it was suggested that she use the closest door. Claimant acknowledged that two public sidewalks leading to the employee parking lot were available for her to use. Claimant was familiar with the area, sidewalks, buildings and available entry ways because she initially worked as a “traveler” at Memorial from January 2015 through June 2015. Claimant admitted that she was cutting across the walkway at the time of her fall, rather than walking farther down the sidewalk and turning to use the nearby access ramp. Claimant admitted that she had traversed the area many times over a span of several months and had stepped off the same curb before but in different places. Claimant further admitted the area where she fell was clear of rocks, debris, water, snow, ice, holes or other surface-type defects. 

The arbitrator found claimant had encountered a hazardous or defective condition, an uneven surface while she was walking to an employee parking lot immediately after leaving work. The Commission issued a decision unanimously reversing the arbitrator’s decision. The Commission panel found the arbitrator’s findings of hazard or defect and determination that claimant’s injury arose out of her employment were both erroneous, noting that the arbitrator’s reliance on precedent was misplaced. The Commission observed the height differential between the sidewalk and the asphalt where claimant fell was by design, not a defect. The Commission, stressing its agreement with Memorial’s argument, stated: 

Common sense dictates that sidewalk slabs should be even or at the same height; whereas curbs are, by nature, raised boundaries. Thus, demonstrating height differences between slabs within the same sidewalk evidence defectiveness, where demonstrating height differences between the curb and the area it borders does not. 

The IL WC Appellate Court confirmed Injuries sustained on an employer’s premises, or at a place where claimant might reasonably have been while performing her duties, and while a claimant is at work, or within a reasonable time before and after work, are generally deemed to have been received in the course of employment, citing Caterpillar Tractor Co. The focus shifted to the “arising out of” requirement. 

The Court further ruled when an employee is injured on the usual route to the employer’s premises and there is a special risk or hazard on the route, the hazard becomes part of the employment. Quoting the decision: “Special hazards or risks encountered as a result of using a usual access route satisfy the ‘arising out of’ requirement of the Act.”

The Appellate Court noted the Commission’s finding claimant “stumbled over a curb” is entirely consistent with the evidence and absence of flaw in the ground. Accordingly, they found the Commission’s finding as to the nature of the accident is not against the manifest weight of the evidence.

Take-away:

Despite the shift in analysis compelled by the McAllister ruling where the act of an employee simply standing up somehow could comprise a compensable accident, this ruling adheres to the plain language of the IL WC Act—for an accidental injury to be compensable, it has to both “arise out of” and occur “in the course of” employ. There are still defenses to some injuries occurring in the workplace!

We note however, in this case, there was no task being performed at the time of the trip… if claimant had been walking to retrieve an item for work, we fear there is a potential link allowing a finding of compensability based on the McAllister doctrine.

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