In Steak ‘N Shake v. Illinois Workers’ Compensation Commission, 2016 IL App (3d) 150500WC Google Scholar | Illinois Courts PDF, the Appellate Court considered whether the Commission applied the proper risk analysis in finding that the claimant’s accident arose out of the course of her employment.
The claimant, a “waitress/trainer/manager” at the restaurant, testified that she experienced an excruciating pain in her thumb and hand while wiping down tables at work one day. She immediately notified another manager and sought medical treatment. An MRI later revealed degenerative changes (arthritis) and she eventually underwent a right thumb arthroplasty and further surgical procedures. She testified that she had never experienced pain or sought medical treatment for her hand before the wiping incident.
The employer required the claimant to undergo an independent medical exam by an orthopaedic specialist, who testified that the claimant’s current condition of ill-being was not causally related to her wiping tables. He did not believe the wiping motions were “significant enough to alter the natural progression of a likely degenerative arthritic condition in her thumb.” The doctor further did not believe that the wiping motion was “significant enough trauma” to aggravate a pre-existing condition.
An injury arises out of employment if it “had its origin in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury.” Sisbro, Inc. v. Industrial Commission, 207 Ill. 2d 193 (2003) Google Scholar | Illinois Courts.
There are three types of risks that might lead to an accident at work: (1) employment-related risks ; (2) personal risks; and (3) neutral risks that have no particular employment or personal characteristics. First Cash Financial Services v. Industrial Commission, 367 Ill. App. 3d 102 (2006) Google Scholar | Illinois Courts PDF.
Injuries from employment-related risks are compensable under the Illinois Workers’ Compensation Act. Risks are distinctly associated with employment when “the employee was performing acts he was instructed to perform by his employer, acts which he had a common law or statutory duty to perform, or acts which the employee might reasonably be expected to perform incident to his assigned duties.” “A risk is incidental to the employment where it belongs to or is connected with what an employee has to do in fulfilling his duties.” Caterpillar Tractor Co. v. Industrial Commission, 129 Ill. 2d 52 (1989) Google Scholar.
Injuries from personal risks are not compensable under the Act.
Injuries from neutral risks “are compensable under the Act only where the employee was exposed to the risk to a greater degree than the general public.” “Such an increased risk may be either qualitative, such as some aspect of the employment which contributes to the risk, or quantitative, such as when the employee is exposed to a common risk more frequently than the general public.” Metropolitan Water Reclamation District of Greater Chicago v. Illinois Workers’ Compensation Commission, 407 Ill. App. 3d 1010 (2011) Google Scholar. “Neutral risks include stray bullets, dog bites, lunatic attacks, lightning strikes, bombing, and hurricanes.” Illinois Institute of Technology Research Institute v. Industrial Commission, 314 Ill. App. 3d 149 (2000) Google Scholar.
The Commission applied a neutral-risk analysis to determine that the claimant suffered an accident arising out of her employment. While the Appellate Court agreed with the Commission’s conclusion, a 3-2 majority of the justices found that the claimant’s injury arose from a distinctly employment-related risk. The majority’s analysis is short enough to quote in full:
In this case, claimant was injured while wiping down a table at work. Her unrebutted testimony established that her duties as a manager were to keep the flow of customers moving in an efficient manner. She credibly testified that, to that end, she would on occasion clean and bus tables if necessary to keep the customer flow moving. The employer provided no evidence to rebut claimant’s credible testimony. Thus, the record establishes that claimant was injured while engaged in an activity that the employer might reasonably have expected her to perform in the fulfillment of her job duties. Claimant’s injury, therefore, resulted from a risk distinctly associated with her employment and the manifest weight of the evidence supports the Commission’s ultimate finding of a compensable injury.
Two justices, however, wrote a concurring opinion agreeing with the Commission’s application of a neutral-risk analysis, which they found was required by the decision in Adcock v. Workers’ Compensation Commission, 2015 IL App (2d) 130884WC Google Scholar | Illinois Courts PDF. In Adcock, the Appellate Court “held that, where an employee is injured on the job while performing an activity of everyday living (such as bending, stooping, walking, or reaching), a neutral risk analysis governs the employee’s claim, even if he was required to perform the act at issue as part of his employment duties.” Citing Kemp v. Industrial Commission, 264 Ill. App. 3d 1108 (1994) Google Scholar; Komatsu Dresser Co. v. Industrial Commission, 235 Ill. App. 3d 779 (1992) Google Scholar; Nabisco Brands, Inc. v. Industrial Commission, 266 Ill. App. 3d 1103 (1994) Google Scholar.
The concurring justices found that wiping down a table was an activity of everyday living and so a neutral-risk analysis was required. The justices agreed with the Commission that the claimant was exposed to this risk to a greater degree than that encountered by the general public from both a quantitative and qualitative perspective. Quantitatively, the claimant testified that she was wiping down tables, whereas the general public might only wipe down a single table at home. Qualitatively, the claimant testified that she was working at a hurried pace because the restaurant was busy. The concurring justices found it reasonable for the Commission to conclude that the hurried nature of her work might increase her risk of injury.
Additional cases cited by the Appellate Court:
Orsini v. Industrial Commission, 117 Ill. 2d 38 (1987) (“For an injury to have arisen out of the employment, the risk of injury must be a risk peculiar to the work or a risk to which the employee is exposed to a greater degree than the general public by reason of his employment.”) Google Scholar.
Karastamatis v. Industrial Commission, 306 Ill. App. 3d 206 (1999) (“in order for an injury to arise out of one’s employment, the risk must be: (1) a risk to which the public is generally not exposed but that is peculiar to the employee’s work, or (2) a risk to which the general public is exposed but the employee is exposed to a greater degree”) Google Scholar.