An Illinois Supreme Court decision from September 2020 that shifted the burden of proof from the employee to the employer in workers’ compensation cases involving “everyday actions” is now affecting current case law in the state.
The court decided in McAllister v. Illinois Workers’ Compensation Commission that injuries from everyday actions, also known as “neutral risks,” could be compensable as long as they created an employment-related risk of injury.
Before this decision, such actions or risks weren’t compensable unless an employee could show they “were quantitatively or qualitatively exposed to these risks to a greater degree than the general public by virtue of their employment,” according to law firm Goldberg Segalla.
This change resulting from the McAllister decision affected two recent decisions by the state’s appeals courts and workers’ compensation commission.
Flex-N-Gate Logistics v. Illinois Workers’ Comp Commission
This November 2020 case involves a truck driver who was injured when he tripped while walking up a flight of stairs at one of his employer’s facilities.
During a typical shift, the driver would have to go up and down stairs eight to 10 times to complete paperwork.
Flex-N-Gate disputed the claim, arguing that traversing stairs is a neutral risk.
In court, an arbitrator found the injury was compensable because “the employee quantitatively had to traverse stairs in the exercise of his employment duties more often than the general public.”
On appeal, the commission agreed with the arbitrator, but “on the basis the employee was a traveling employee for whom traversing stairs to reach the shipping and receiving desk was a foreseeable activity to the employer.”
An appeals court affirmed the decision, and took it “a step further and held the accident to be compensable based on McAllister without even analyzing the neutral risk and traveling employee doctrines.”
Dunn v. Cook County
The nurse in this December 2020 case worked a desk job involving her traveling to various clinics to supervise staff.
She was injured when she fell after sitting sitting down on a backless rolling stool – which was situated on a freshly waxed and slippery linoleum floor – to answer a phone call.
An arbitrator found the injury wasn’t compensable because the risk wasn’t distinctly associated with her employment since she wasn’t specifically instructed to use that particular stool to perform her job duties.
The commission reversed the decision and found the injury was compensable because the stool wasn’t a chair commonly used by the general public, and the employee had to sit on this type of stool frequently throughout the day putting her at greater risk.
Some key things Goldberg Segalla says employers should remember:
- Compensability analysis of injuries related to everyday actions now need to be much more fact specific.
- In this type of case, employers should thoroughly investigate and document even the smallest of details of the incident regarding who was involved; what action they were specifically performing; and where, when and why the action was performed.
- Pre-accident job descriptions could become an important factor in considering whether or not the action leading to the injury was incidental to employment.