Illinois Supreme Court ‘Chops’ Neutral Risk Defense
Knowledge

Illinois Supreme Court ‘Chops’ Neutral Risk Defense

Key Takeaways

  • The Illinois Supreme Court has overturned the long-standing holding that an injury arising out of an “everyday risk” is not typically compensable under the Workers’ Compensation Act

  • A respondent may no longer deny a claim solely based upon evidence a claimant was performing an everyday physical motion at work and the claimant did not perform this everyday physical motion significantly more frequently than the general public

  • This decision could lead to an increase in claims involving injuries that could have occurred anywhere but allegedly happened at work

 

In a major departure from existing legal precedent, on September 24, 2020, the Illinois Supreme Court overturned the long-standing holding in Adcock that an injury arising out of a neutral, everyday risk is not compensable under the Workers’ Compensation Act unless the claimant’s job required a more frequent performance of those everyday activities. In McAllister v. Ill. Workers’ Comp. Comm’n, the Illinois Supreme Court held that an employee was performing solely a physical motion of daily living at the time of his alleged work injury and was not a sufficient bar to compensability―even if he was not required to perform that motion more frequently than a member of the general public.

In McAllister, the claimant was a sous-chef in a kitchen who was required to arrange items in a walk-in cooler. The claimant was in the walk-in cooler helping a coworker who was looking for a misplaced pan of carrots and got down on the ground to look for the carrots. He was not carrying anything and admitted there were no hazards or defects. When the claimant stood up, he put his weight on his right knee in a kneeling position. He felt his right knee “pop,” and then it “locked up.” In its holding, the Illinois Supreme Court specifically overruled Adcock to the extent “that injuries attributable to common bodily movements or routine everyday activities, such as bending, twisting, reaching, or standing up from a kneeling position, are not compensable unless a claimant can prove that he or she was exposed to a risk of injury from these common bodily movements or routine everyday activities to a greater extent than the general public.” This decision arguably raises the bar for respondents to assert such defenses and will have broad, lasting impacts on the adjustment of workers’ compensation claims throughout Illinois.

IMPACT

Based on the holding in McAllister, a respondent may no longer deny a claim solely based upon evidence a claimant was performing an everyday physical motion at work and the claimant did not perform this everyday physical motion significantly more frequently than the general public. Rather, a respondent must now show that at the time of the occurrence of the injury, the claimant was not performing “(1) acts he or she was instructed to perform by the employer, (2) acts he or she had a common-law or statutory duty to perform, or (3) acts the employee might reasonably be expected to perform incident to his or her assigned duties.” Only after a respondent meets that extremely high bar would the Commission and courts consider whether the “no-greater-risk” or “activity of daily living” defense may possibly apply under a neutral risk analysis.

The McAllister decision also takes a very petitioner-friendly approach to fitting generalized descriptions of job duties into the first category of “acts he or she was instructed to perform by the employer” and specifically holds that assisting a coworker in the performance of their own job duties fits within the third category as an “act that the employee might reasonably be expected to perform incident to his or her assigned duties and other actions that benefit the employer in some fashion.”

RECOMMENDATIONS

We anticipate this decision will lead to an increase in claims involving injuries that could have occurred anywhere, but allegedly just so happened to occur at work. While the McAllister decision certainly changes the way such claims are approached, these claims can still be defended with aggressive claims-handling procedures and litigation strategies. The experienced workers’ compensation defense attorneys at Goldberg Segalla can provide detailed investigation strategy tips. Do not hesitate to contact us as soon as possible if you are considering denying the compensability of a claim based on a “no-greater-risk” defense. We will stand firm against the inevitable efforts by petitioner attorneys to expand the scope of McAllister. It is important to bear in mind that this decision only impacts one part of the compensability analysis. There is also the question of medical causation, which can be addressed by a strong, credible independent medical examiner (IME) opinion.

We note the respondent in McAllister chose not to obtain an IME opinion relied solely upon a so-called “no-greater-risk” or “activity of daily living” defense, so the court did not consider this factor. To that end, we strongly encourage a full, detailed investigation into every element of a claim, early engagement of defense counsel in claims where McAllister may apply, and, where appropriate, timely setting an IME to develop multiple lines of defenses. Our attorneys at Goldberg Segalla can assist you in selecting an IME physician specialty, finding a local doctor with a high reputation at the Commission, handling the logistical and technical requirements for setting the appointment, and submitting the claim materials and cover letter. Our proven strategies provide the best chance at obtaining a favorable, defensible IME opinion.

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