The Illinois Supreme Court dealt an apparent blow to employers last fall in McAllister v. Illinois Workers’ Compensation Commission when it held injuries arising out of everyday actions could be compensable under the Illinois Workers’ Compensation Act, so long as the everyday action created an employment-related risk of injury. In its holding, the court essentially shifted the burden of proof from the employee to prove a work-related accident to the employer to prove a non-work-related accident.
Prior to McAllister, these everyday actions―also known as “neutral risks”―were not compensable unless the employee could demonstrate they were quantitatively or qualitatively exposed to these risks to a greater degree than the general public by virtue of their employment. Now that the dust has settled, both the Commission and Appellate Court have had an opportunity to consider McAllister. These decisions offer some insights for employers navigating a post-McAllister world.
In Flex-N-Gate Logistics v. Ill. Workers’ Comp. Comm’n, a truck driver sustained multiple injuries when he tripped ascending a flight of stairs on his way to the shipping and receiving office at one of his employer’s facilities. During a typical shift, the employee traveled to multiple hubs owned by his employer, where he was required to go up and down stairs eight to 10 times per shift to complete paperwork. The employer disputed compensability on the theory traversing stairs was a neutral risk.
At trial, the arbitrator determined the accident was compensable because the employee quantitatively had to traverse stairs in the exercise of his employment duties more often than the general public. On review, the Commission agreed the accident was compensable, 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.
On appeal, the Fourth District affirmed the Commission’s decision, but it went a step further and held the accident to be compensable based on McAllister without even analyzing the neutral risk and traveling employee doctrines. The court reasoned the employee was performing an act he would reasonably have been expected to perform incidental to the exercise of his job duties, given he was required to traverse stairs in order to get to the shipping and receiving offices. Although the Fourth District upheld the Commission’s decision on other grounds, it in no way found that the Commission’s traveling employee analysis or the arbitrator’s neutral risk analysis were incorrect. However, this decision emphasizes the McAllister analysis is the starting point for compensability determinations before exploring the applicability of the traveling employee, neutral risk, or other compensability doctrines.
The Commission also had an opportunity to apply the McAllister holding in the December 2020 decision in Dunn v. Cook County. In Dunn, the injured employee worked as a nurse. Her job required her to travel to various clinics and supervise staff. In her testimony, she characterized her work as primarily a “desk job.” The employee was injured when she sat in a backless rolling stool as she prepared to answer a phone call. She also alleged the linoleum floor was freshly waxed and slippery, presenting a hazard.
The arbitrator performed a detailed analysis under the McAllister framework and concluded the accident was not compensable because she was not injured from a risk distinctly associated with her employment. The arbitrator reasoned the employee was not required or instructed to sit in that particular stool in performance of any of her job duties, did not have a duty to sit in that stool, and the act of sitting in the stool was too remote from her supervisory responsibilities to be considered incidental to her assigned duties. The arbitrator concluded falling while attempting to sit on the particular stool at issue was a neutral risk that the employee failed to prove she encountered more frequently than the general public. The Commission reversed the arbitrator’s decision and found the accident compensable.
Though the Commission acknowledged the applicability of the McAllister risk-categorization framework, it failed to explain how the employee’s mechanism of injury fell within the definition of an employment-related risk. Rather, the Commission seemingly skipped directly to a neutral risk analysis (i.e., perhaps signaling agreement with the arbitrator’s analysis and conclusion under McAllister) when they concluded the stool was not a chair commonly used among the general public and that the employee had to sit in this type of stool frequently throughout the day, which put her at a greater risk of injury than the general public. This case is currently pending judicial review to the Circuit Court of Cook County.
Though aggressive claimant’s attorneys may take McAllister to mean almost any activity performed while on the clock could be “incidental” to employment, these decisions suggest the McAllister holding is not quite so automatically broad. Rather, McAllister suggests the importance of context, specifically, that the mechanism of injury does not exist in a vacuum and must be evaluated relative to the claimant’s occupation. These decisions underscore how even in light of McAllister each compensability determination is still extremely fact specific. Both the Flex-N-Gate Logistics and Dunn decisions focused on whether a risk was “incidental to” a job duty, emphasizing the importance of clearly establishing the requirements and responsibilities of any given position.
In investigating the compensability of an alleged work injury, employers and adjusters should prioritize obtaining written statements from the claimant, any and all potential witnesses, and the claimant’s supervisor. The written statements should detail precisely what activity the claimant was performing at the time of the alleged injury, an explanation of why the claimant was performing that activity, whether the activity was something the employer required the claimant to complete, the alleged mechanism of injury with specificity, the entire list of body parts allegedly involved, a description of any alleged hazards or defects contributing to the accident, and a detailed description of the claimant’s job duties. To help ensure compensability denials are based on evidence that will be admissible at trial, any audio recorded or written interview statements from the claimant and witnesses should be preserved in their original form and forwarded to defense counsel, rather than solely documented in a claim-note summary. Employers would also be well-served to obtain a written job description, especially one created in advance of any alleged work accident, to help determine the true scope of a claimant’s job duties.
The Commission and lower courts will continue to address the legal questions left open by McAllister. Wherever possible, multiple lines of legal defenses need to be established by fully analyzing all potentially applicable compensability doctrines. The McAllister analysis is a first step procedurally, but these cases show that there are multiple paths of legal reasoning a decision-maker may use to reach a compensability determination. We encourage employers and carriers to contact our highly skilled workers’ compensation litigators for assistance in preparing an investigation strategy into claims arising out of apparent neutral risks.
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