3-14-2011; Incompatible, Irreconcilable, Unlike, Differing, Opposite, Contrary, Reverse--Ooops, did Illinois just judicially drop the “arising out of” requirement for workers’ comp claims and reach...
/Editor’s comment: Color us totally confused. Your editor didn’t go to a law school class on workers’ comp because our law school didn’t have one at the time. To learn and grasp basic workers’ compensation concepts, he grew up keeping his mouth shut and listening to great workers’ compensation lawyers talk over coffee on breaks like Thomas D. Nyhan, John P. Roddy, W. Daniel Leahy, Richard E. Aleksy, Arthur O. Kane, Albert Priebis and Mark A. Braun. They all advised Illinois workers’ compensation was liberal in this state but it only covered claims where the employee suffered an injury which both “arose out of” and occurred “in the course of” employ. Over and over, they confirmed the worker in this state couldn’t just be at work or “in the course of” employ; they also had to suffer injury due to a risk which wasn’t “common to the public” but fell prey to something over and above normal risks of daily life to be work-specific. So, for a number of examples, it wasn’t a work-related injury to be working and get hurt
· Stepping over and tripping on a typical street curb;
· Arising from a chair;
· Turning around; and
· Getting hit by a completely random but runaway truck.
If you aren’t sure, there are landmark Appellate and Supreme Court rulings denying each and every claim outlined above on the simple language in our Act based on the facts in the bullet points. For about 100 years, Illinois has had the same requirement as many states that employees are only compensated with workers’ compensation benefits when they suffer injury from specifically “work-related” risks. As we have told our readers, coverage of the Illinois WC Act has recently exponentially grown due to two concepts—“repetitive trauma” which we feel now incorporates the “eggshell worker” and the wildly expanded concept of “traveling employee” which basically has extended coverage to anyone on the move and not at a fixed desk or work station when injured. We now have to tell you of a new expansion of coverage using a new and shiny term “street risk,” as we outline below. Please note these new words “street risk” don’t appear in the WC Act and some academicians may again feel this is judicial legislation.
In our humble view, the ruling is the “complete opposite” or inverse of numerous prior legal rulings—if an Illinois worker confronts the risks of daily life at work, it appears such risks are now ‘abnormal’ risks solely due to the fact the worker may confront them more than once. Doesn’t this mean Illinois is now a “positional risk” state where all one has to do is show you are “in the course of” employ and have a malady to be entitled to benefits? If we aren’t magically a positional risk state, what does AOO now mean?
In a ruling we respectfully consider unnecessary and unprecedented, our five-member Appellate Court, Workers’ Compensation Division might have dropped half of the AOO/ICO (“arising out of and in the course of”) WC concept. The only way to figure out what they have done will be to wait and see where they are going to take what they called the “street risk” concept over the weeks and months to come. In our view, the four bullet points above outline “street risks” or other similar personal risks we all face whether at work or going to church/temple/place of worship or at home or wherever there is human discourse and interaction. As you will see below, we are concerned there may potentially be lots of new “risk” concepts to emasculate or simply end the AOO requirement in this state. Our main concern is the term “arising out of” comes directly from the Workers’ Compensation Act. We feel it is somewhat hard for our reviewing courts to somewhat “skip” or clearly redefine a 100-year old legislative imprimatur. But this is Illinois, correct?
In Metropolitan Water Reclamation District of Greater Chicago v. Illinois Workers' Compensation Commission, (No. 1-09-2546WC February 22, 2011), the Illinois Appellate Court considered a claim in which a MWRD accounting clerk employee fractured both wrists when she claimed she stumbled and fell on what is described as a six-inch “dip” in an inclined commercial driveway walking to a bank to deposit checks in employer's account. From our review of the ruling, this was an open and obvious facet of the commercial driveway on a public street in downtown Chicago. There is no indication in the ruling of any defect, foreign substance, poor lighting or other problem with the driveway; we are betting the “dip” is the drain which runs down the middle of most driveways to allow water, ice and snow to easily collect and flow to the street. Claimant left the MWRD offices at 100 East Erie and was walking to Chase Bank® at 605 North Michigan Avenue on the Magnificent Mile—she had traversed this path for about 13 years and must have known it pretty well. Google Maps® indicates the total distance is 1/5th of a mile.
If you aren’t sure, literally thousands of Chicagoans and visitors to Chicago from all over the planet transverse this area every day of every year—numerous websites indicate 22 million visitors or Chicago natives like claimant walk, work and shop on Michigan Avenue every year. Risks inherent to walking near and on Michigan Avenue are almost by anyone’s definition risks common to the world’s public. If you fall down walking on a public street from some aspect of the street itself, like a curb, gutter, drain, sidewalk expansion joint or whatever, in our view, it has never been compensable in this state—well, it may be now.
The ruling indicates claimant was walking toward the bank to deposit checks in the District’s account. She walked east on Erie toward Michigan Avenue, crossed Erie in the middle of the block, and then stumbled walking up an inclined driveway that had a "dip" we describe above of about six inches. The Court’s majority concluded this was a “street risk” and reversed the Circuit Court below and found it compensable. The court’s members found claimant established her job duties exposed her to a risk somehow greater than that faced by the general public, as this dip in the driveway was a “street hazard” and therefore a job risk to claimant. What we find missing in the ruling is how her risk was arguably greater, other than the fact she walked the area more than you or I might. In our view, everyone who walks in the area suffers the identical risk every time you are in the area; just as anyone stepping over a curb runs the identical risk every time you step over the same curb—it doesn’t multiply or increase by each step. And in our view, after thirteen years of being in this area, she should clearly have known the risks she might face.
We ask the rhetorical questions
· If you fall over a typical street curb as claimant did in Caterpillar Tractor v. Industrial Commission, did he face a “curb risk” which would then be compensable? Don’t folks step over curbs every day?
· If you hurt yourself arising from a chair as claimant did in Hansel & Gretel Daycare Center v. Industrial Commission, would that be compensable? Don’t workers stand up from chairs every day of every year?
· If you strained yourself simply turning around in a chair; as claimant did in Board of Trustees of the University of Illinois v. Ind. Comm'n would that be a “turning risk” and therefore compensable? Aren’t we all turning in chairs these days?
· If you were hit by a completely random but runaway truck as claimant did in Brady v. Louis Ruffolo & Sons Construction Co. would that now cause claimant to be entitled to benefits due to “runaway truck risk”?
For reference, every one of those claims was denied by an Illinois reviewing court. None of those rulings are mentioned in this new decision. For future reference, we are all left to ponder where this new legal concept of “street risk” starts and ends? Which street risks faced by thousands or millions of normal citizens every day are now compensable and which risks are not? From our past training, “arising out of one's employment" referred to the origin or cause of the claimant's injury. A causal connection to the work was demonstrated if the claimant establishes if the conditions or nature of the employment increase his risk of harm beyond that to which the general public is exposed. We didn’t understand that to mean if you stepped over the same driveway or curb or arose from the same chair ten times, you faced ten times the risk of everyone else—we have always felt the risk of injury was the same.
In our view of this ruling we are missing the risk of harm to this worker beyond the risk to which 22 million visitors a year and all Chicago citizens are routinely exposed—you and I and everyone you know may walk upon and across this driveway any time you are on Erie near Michigan. Well, we will all have to wait and see where this ends up—if you ask us, the concept of “arising out of” in this state may have quietly and firmly ended unless some later clarification is provided.
The lawyers listed in the first full paragraph above did not participate in drafting, editing or publishing this article in any way and we are not outlining their opinions on this ruling. We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.