Being hit by a stray bullet in Chicago is a compensable injury in Illinois. We consider this a new spin on the “risk common to the public when you compare life in Chicago to a cornfield outside Mendota” approach.
Editor’s comment: Business observers may ‘draw your own contusions’ but we again feel Illinois workers’ compensation claims are invariably being drawn toward global coverage of all injuries. Our heart goes out to the unfortunate claimant who, regardless of the legal analysis, suffered a life-changing injury.
In Restaurant Development Group v. Hee Suk Oh, (No. 1-08-2143WC June 16, 2009). a unanimous Appellate Court, Workers’ Compensation Division ruled claimant’s job as a bartender in the Bucktown area of Chicago exposed her to a higher risk of injury than the “general public.” The record indicated the Bucktown neighborhood was a “high crime area” with a history of gang violence. A Chicago police officer was called to testify and indicated the neighborhood was in the top 25-33% of Chicago neighborhoods for violent crimes. There also appears to be a lot of evidence presented indicating the Bucktown area was “gentrifying” or improving rapidly and the gangs were being moved out. Obviously, that process didn’t happen fast enough.
The court also noted the property had floor to ceiling glass near which claimant worked on evenings and weekends. We point out you don’t build restaurants with floor to ceiling glass in poor neighborhoods—the presence of such restaurants signaled the improving neighborhood. Regardless, the members of the court felt the presence of such glass placed claimant at an increased risk of injury from gunfire. Therefore, injuries she suffered when a stray bullet pierced the window and paralyzed her arose out of and in the course of her employment. The court affirmed a permanent total disability award as not being against the manifest weight of the evidence.
We initially note claimant lived in the Wicker Park neighborhood and worked in an area called Bucktown. For our readers from outside the Chicago area, in the 60’s and 70’s, both areas were pretty run down but had similar transformations where gangs were pushed out and nicer folks who like Starbucks® moved in during the late 1990’s and into this century. From our view of the Wicker Park and Bucktown neighborhoods, the risks of getting hit by a stray bullet were a 24/7/365 issue for this worker whether at home, work or play. But also understand it is a wildly uncommon thing for someone to be hit and seriously injured while at work in this fashion.
The question faced by the court is when something is “a risk common to the public” versus a work-related risk. We point out the adjective ‘stray’ in the term ‘stray bullet’ means random and unexpected. Employers aren’t supposed to owe workers’ compensation benefits for random and wholly unexpected events that cause injury. We assert the reasoning provided in this ruling would render all actions leading to anyone becoming a victim of any crime at work compensable. We also point out Chicago doesn’t have a neighborhood that doesn’t have violent crime and gang issues, some have more and others have less. President Obama’s neighborhood is closely watched for violent crime and gang issues—they won’t let you or I travel within six blocks of his home due to appropriate concerns for his safety. We are in Chicago that has violent crime and, sadly, stray bullets—that is why many of our readers don’t live there. With deference to the court, they clearly don’t compare apples to apples—they say they are comparing the risk of being in Chicago to the risk of being in rural Illinois. We agree there are not a lot of stray bullets in the cornfields outside Bloomington, Mendota or Marengo. In contrast, we assert the risk of stray bullets is a “risk common to the public” that lives, works and plays in this city, like this claimant.
We had a claim where a woman’s purse was snatched near her job in front of twelve co-workers. As the unlucky victim, she claimed injury. While we are sorry to hear it, there are purse-snatchings in that area. Are all such events going to be work-related? When is it a work-related risk and when is it a risk of being a human in this state? Folks in Mendota and Marengo don’t have their purses snatched so is it compensable?
Our problem with the reviewing courts in this state is they do a solid job of legal and factual analysis. As a group, they tell us why cases are compensable, in their view. As a matter of fact, on the issue of accidental injuries being compensable, we can’t remember any case coming from the reviewing courts that wasn’t eventually found to be compensable. In this ruling, they don’t give anyone any guidance on when a victim of any crime who is at work in a shady or run-down area of cities like Chicago, Rockford or Aurora won’t get benefits. We want our readers to understand we can’t have a system of litigation if our hearing officers and the reviewing courts are going to make all events uniformly compensable under the repetitive trauma concept, the traveling employee model or the “risk common to the great public that doesn’t live in a cornfield in Mendota” approach.
We appreciate your thoughts and comments.
