Synopsis: Case Law Update on IL WC Court rulings and interpretation. Thoughts and comments from John P. Campbell and Shawn R. Biery of Keefe, Campbell, Biery & Assoc.

Editor’s comment: By way of review, in McAllister v. IWCC, the IL Appellate Court, WC Division was divided regarding the extent to which injuries caused by everyday activities were compensable under the IL WC Act. The majority favored the analysis contained in Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52 (1989). This was an injury when Claimant stepped of a street curb going to his car and popped an ankle.

Two concurring Appellate Court justices, however, preferred the analysis contained in Adcock v. Illinois Workers’ Compensation Comm’n, in which Claimant asserted he was injured simply pivoting in a swivel chair. In Adcock, the Court ruled Claimant had to establish his or her job duties required the claimant to engage in the everyday activity that caused the injury to a greater degree than the general public, even in situations where the activity was directly related to the claimant’s job duties.

The IL Supreme Court rejected and reversed the Adcock test. They agreed with the Appellate Court majority and held Caterpillar Tractor “prescribes the proper test for analyzing whether an injury ‘arises out of’ a claimant’s employment, when a claimant is injured performing job duties involving common bodily movements or routine everyday activities.” What is odd about the Court’s recognition of Caterpillar Tractor is WC benefits were denied in that claim!

Ruling Rationale:

The Supreme Court explained, consistent with Caterpillar Tractor, common bodily movements and everyday activities at or near work are compensable and employment-related if the activity that caused the injury “had its origin in some risks connected with, or incidental to, employment so as to create a causal connection between the employment and the accidental injury.” The Court then overruled Adcock and its progeny to the extent that they require a claimant to additionally prove he or she was exposed to a risk of injury to a greater extent than the general public. The Court further found McAllister’s injury was the result of a risk that was distinctly associated with his employment and, as such, was compensable, and held the Commission’s finding claimant was injured by a neutral risk that was not related to his employment was against the manifest weight of the evidence.

So, how far does McAllister go???

Synopsis: In some recent rulings, our IL WC Commission awards benefits based on “traveling employee” classification. While this aspect of the ruling is unfavorable, we are more troubled by the Commission’s further adoption of the McAllister ideology and offering an “alternative” basis for compensability.

Editor’s comment: Take a look at Iniquez v. Town of Cicero, 21 IWCC 0300 (7/18/21).

The Iniquez claim involved an inspector who was injured when he slipped on an unremarkable set of stairs. Since his job involved building inspections, the nature of work did involve travel. However, this incident occurred at his office, where he returned to get more assignments. Therefore, defense argued he was not traveling when injured. Since there was no design flaw or debris on the stairs, it was argued by defense this incident did not arise out of his employment. Stairs are stairs.

Facts and Ruling: Please note the term “traveling employee” is a creation of the challenging members of the IL WC Commission and reviewing courts—the two words do not appear in the IL WC Act so the courts can use and, in Gene’s view, “abuse” the term as they see fit. Every worker “travels” as an ordinary part of every-day work. As we have advised our hearing officers, attorneys on both sides, claims handlers and readers, if all a worker has to do to be entitled to IL WC benefits is to “travel,” we can drop the pretense of defending claims in this State and just hand out claims forms to be completed and signed by all workers to then calculate and pay benefits. In that model, which would parallel group health claims, we won’t need attorneys for either side or Arbitrators, Commissioners and reviewing courts because everything that happens will be universally compensable. I don’t know why Claimant lawyers feel that is a solid model but I am happy to discuss it with any of them—please note the corporate risk managers and adjusters can communicate with and resolve disputes with Claimants long before they consider hiring a lawyer. I don’t feel it has happened yet but the more liberal the Commission and Courts get, the more likely this “global coverage” scenario will play out—in my view, you can’t have a litigation system with no defenses.

In this claim, the Commission reasoned that the nature of this employee’s work involved “travel,” and during the work-day, the fact that he stopped in the office for assignments did not change the nature of his classification as a “traveling employee.” From the defense perspective, we are troubled by this logic, as the original intent of the so-called “traveling employee” concept is that workers who are at greater risk due to extraordinary work travel will be compensated. Here, the worker was at his office. Therefore, there was no greater risk in our view.

More troubling is the fact that the Commission went on to comment on the application of McAllister here, concluding that compensability would be found regardless of the “traveling employee” classification. The Commission explained that the employee was performing acts reasonably expected in furtherance of his job duties and was therefore exposed to a risk associated with his employment. The Commission found that descending stairs on his way to an off-site inspection was a risk distinctly associated with his employment and reasonably foreseeable. The Commission concluded therefore that compensability is found based on the McAllister theory of compensability.

Again, we disagree with this aspect of the ruling, as we find this to be a further expansion of the McAllister ruling. At least in McAllister, the chef was kneeling to find products for work and injured his knee due to that mechanism. Here, the employee was simply walking down ordinary stairs… no flaw, debris or other identifiable increased risk was apparent. We don’t agree that walking down a normal and ordinary set of stairs, with no emergency or work materials to affect one’s view or balance, is a risk “distinctly associated” with the job.

So, do we now have Positional Risk in Illinois?? Not so fast…

Synopsis: Our IL Appellate Court, WC Division outlined a clear path for a parking lot/curb fall down claim to be defended and won.

Editor’s comment: In Vaughn v. IWCC and Memorial Medical Center (2021), the parties stipulated claimant fell in a parking lot on Memorial’s premises and suffered injuries. The arbitrator admitted into evidence various photographic exhibits depicting the condition of the sidewalk, curb and slanted asphalted surface where claimant stepped, stumbled and fell. We understand the photos indicated the curb, sidewalk and asphalt were in ordinary condition and there was no indication of defects or foreign objects/substances that would increase the risk of injury. For risk and claims managers, it is crucial to have such documentation in all your WC claims.

Facts and Ruling: On the morning of the incident, claimant had clocked out for the day. She exited the medical center through an employee door, as previously instructed by her immediate supervisor. Upon exiting, claimant, accompanied by a co-worker, began walking on the sidewalk toward her assigned parking lot. Claimant claimed the sidewalk in that area was not commonly used by members of the general public

Claimant alleged the concrete on the sidewalk where it met the asphalt was uneven, and it was about an inch and-a-half to two inches difference, causing the trip and fall.

She also testified that outside lights, located on nearby buildings and landscaping, illuminated the area where she fell. However, at the time of her fall, one of the lights was not working and others were partially obscured by a parked security van, which resulted in a shadow that made that area darker. Claimant suffered a comminuted fracture along the inferior aspect of the patella or kneecap with surgery.

On cross examination, claimant admitted that she was permitted to park in any of the employee parking lots, but it was suggested that she park in Lot #3. Additionally, claimant admitted she was permitted to use any entry door, but it was suggested that she use the closest door. Claimant acknowledged that two public sidewalks leading to the employee parking lot were available for her to use. Claimant was familiar with the area, sidewalks, buildings and available entry ways because she initially worked as a “traveler” at Memorial from January 2015 through June 2015. Claimant admitted that she was cutting across the walkway at the time of her fall, rather than walking farther down the sidewalk and turning to use the nearby access ramp. Claimant admitted that she had traversed the area many times over a span of several months and had stepped off the same curb before but in different places. Claimant further admitted the area where she fell was clear of rocks, debris, water, snow, ice, holes or other surface-type defects.

The arbitrator found that claimant had encountered a hazardous or defective condition, an uneven surface while she was walking to an employee parking lot immediately after leaving work. The Commission issued a decision unanimously reversing the arbitrator’s decision. The Commission panel found the arbitrator’s findings of hazard or defect and determination that claimant’s injury arose out of her employment were both erroneous, noting that the arbitrator’s reliance on precedent was misplaced. The Commission observed the height differential between the sidewalk and the asphalt where claimant fell was by design, not a defect. The Commission, stressing its agreement with Memorial’s argument, stated:

Common sense dictates that sidewalk slabs should be even or at the same height; whereas curbs are, by nature, raised boundaries. Thus, demonstrating height differences between slabs within the same sidewalk evidence defectiveness, where demonstrating height differences between the curb and the area it borders does not.

The Appellate Court, WC Division confirmed Injuries sustained on an employer’s premises, or at a place where claimant might reasonably have been while performing her duties, and while a claimant is at work, or within a reasonable time before and after work, are generally deemed to have been received in the course of employment, citing Caterpillar Tractor Co. The focus shifted to the “arising out of” requirement.

The Court further ruled when an employee is injured on the usual route to the employer’s premises and there is a special risk or hazard on the route, the hazard becomes part of the employment. Quoting the decision: “Special hazards or risks encountered as a result of using a usual access route satisfy the ‘arising out of’ requirement of the Act.”

The Appellate Court noted the Commission’s finding claimant “stumbled over a curb” is entirely consistent with the evidence and absence of flaw in the ground. Accordingly, they found the Commission’s finding as to the nature of the accident is not against the manifest weight of the evidence.

Take-away:

Despite the shift in analysis compelled by the McAllister ruling where the act of an employee simply standing up somehow could comprise a compensable accident, this ruling adheres to the plain language of the IL WC Act—for an accidental injury to be compensable, it has to both “arise out of” and occur “in the course of” employ. There are still defenses to some injuries occurring in the workplace!

Are AMA Impairment Ratings being considered properly?

Synopsis: Arbitrator issues higher range award on a leg claim, despite solid recovery and AMA rating. It begs the question, are the arbitrators properly considering AMA ratings?

Editor’s comment: Take a look at Murdoch v. Village of Park Forest, 18 WC 9447, 21 IWCC 0344 (IWCC July 6, 2021)

Facts and Ruling: Petitioner worked as a paramedic and suffered an undisputed ACL tear with surgical repair. Petitioner returned to his employment at full duty, without restriction, and the IME offered an AMA impairment rating of 0%.

Changes to Section 8.1(b) of Act in 2011 compel five (5) factors to be considered when assessing PPD value.

Impairment Rating
Occupation/Job requirements
Age of employee at time of injury
Employee future earning capacity
Evidence of disability supported by treating medical records

The Arbitrator addressed the 5 factors as required by Statute, and while asserting “proper weight” was given to the AMA rating, we have to question whether this is the case. We have a worker returning to full duty with no limitations and the only rating provided was for 0%!!

The Arbitrator cited Petitioner’s ongoing complaints of pain and swelling and alleged difficulty with kneeling to offer greater weight to the last factor. You may note those factors aren’t outlined in the IL WC Act above. The Commission affirmed and adopted the finding of the Arbitrator.

Take-away: While we view the 30% award here disappointing in light of the AMA impairment rating of 0%, we nevertheless continue to recommend obtaining such rating in higher dollar value claims to contain exposure. If the defense/insurance industry “gives up” on the value of such ratings, we give the Petitioner’s Bar the victory they hope to secure by minimizing this aspect of PPD analysis.

Limits of “Traveling Employee” doctrine…

Synopsis: Devil is in the details of job assignment, duties, requirements, etc., when debating “traveling employee” status. IL WC Commission offers hope to employers looking for limits to this otherwise blanket coverage.

Editor’s comment: See Winston v. North Star, 16 WC 018477, 21 IWCC 0262 (IWCC June 2, 2021)

Facts and Ruling: Petitioner worked as a production supervisor for Respondent and would be advised via text or phone as to the job site to report. On the date of loss, Petitioner parked, and while walking up a normal set of stairs, Petitioner alleged he felt a pop in his right knee, suffering a right quadriceps tendon tear with eventual repair. There is no way to confirm Claimant’s account of the “pop.”

Important points: The general manager for Respondent testified they do not direct or control how an employee gets to a job site. They do not pay travel expenses or parking. Respondent did not have any relationship with the parking facility where the accident occurred.

The manager testified he was meeting Petitioner but did not direct him where to park or pay for travel. Petitioner was not required to bring his personal bag or OSHA book. He testified that Respondent had all the required paperwork in the gang box.

The Arbitrator found that Petitioner failed to establish that he sustained an accidental injury arising out of and in the course of his employment, as the injury occurred due to Petitioner’s choice of parking and choice to carry his OSHA book and tools, and Petitioner was not required to bring his OSHA book to the job site.

Petitioner was not paid for his travel or parking, and Respondent did not control Petitioner’s method of travel to and from the job site. Further, Petitioner’s accident occurred one hour before work started and half a mile from the job site. Accordingly, Petitioner was not recognized as a “traveling employee,” whatever that might mean. On review, the Commission affirmed the ruling of and denial by the Arbitrator.

Does a “side-business” qualify as dual earnings for purposes of calculating AWW?

Synopsis: Even where the primary employer has knowledge of other work, it may not necessarily qualify as dual employment earnings.

Editor’s comment: See Smith v. Carillon at Cambridge Lakes, 19 WC 026973, 21 IWCC 0358 (IWCC July 14, 2021)

Facts and Ruling: Petitioner worked as a fitness trainer and coordinator for Respondent and suffered an undisputed foot fracture and also alleged a repetitive trauma knee and hip claim. The award of compensability does not warrant discussion per se.

However, there was also a question of Petitioner’s average weekly wage. Petitioner worked as a trainer independently as well, contracting herself out to clients/customers. The Arbitrator initially included concurrent employment earnings in Petitioner’s average weekly wage calculations, reasoning these were not business profits but rather, wages as an individual.

The Commission modified the Arbitrator’s decision regarding the average weekly wage calculation. The Commission found that Petitioner was an independent contractor and did not earn wages from an employer at her other “job.” Therefore, concurrent earnings were excluded from the calculation.

Language from the Commission ruling asserts:

Section 10 of the Workers’ Compensation Act states in pertinent part, “when an employee is working concurrently with two or more employers and the respondent employer has knowledge of such employment prior to the injury, his wages from all such employers shall be considered as if earned from the employer liable for compensation.” The Arbitrator expressly acknowledged that Petitioner’s income from Center of Elgin was paid to her as an independent contractor, but believed the Appellate Court case, Paoletti v. Industrial Comm’n, 279 Ill. App. 3d 988 (1996), provided an exception to the provision that concurrent income must be from a concurrent “employer,” and that the income be “wages.” The Commission views this issue differently than the Arbitrator. First, the plain language of Section 10 of the Act allows only wages from two or more employers to be considered in the AWW calculation. The Appellate Court has held that, when calculating the AWW of claimants having income from other sources, Section 10 of the WC Act protects, “persons who earn income from more than one job – as long as both jobs meet the definition of employer/employee under the Act.” In Dolce v. Industrial Comm’n, 286 Ill. App. 3d 117 (1st Dist., 1996), the court ruled that the claimant therein was not considered an employee under the Act because of his independent contractor status with Post. In addition, the Appellate Court in Mansfield v. Ill. Workers’ Comp. Comm’n, 2013 IL App (2d) 120909 WC (2nd Dist., 2013), refused to include a claimant’s earnings from self-employment in that claimant’s AWW calculation. That court stated, “The employer contends claimant’s business income should not be included in the calculation of the average weekly wage because it does not represent ‘wages’ earned while working for an ‘employer.’ We agree.

Take-away: Even where the employer has knowledge of the secondary earnings and can assess the nature of the secondary employment and determine if (1) it was at all interrupted due to the injury and (2) if it even qualifies as dual employment, where claimant may simply be an independent contractor, without actual formal wages from an employer to assert for dual earnings.

KCBA Blog

3-6-2022; IL WC Case Law Update from John P. Campbell and Shawn R. Biery and more