1-31-2023; First Covid-19 Ruling from IL WC Comm; New IL Laws (with one old one) and more

Synopsis: The first Covid-19 ruling has been dispatched by the IL WC Commission, affirming the Arbitrator’s finding of work-related exposure.

Editor’s Comment: Nearly three years into the Covid-19 pandemic, the IWCC has considered and now published the first litigated IL OccDisease Covid-19 claim. In Lucero v. Focal Point, LLC, 20WC018985, 22IWCC0231, the Commission affirmed the Arbitrator’s finding of occupational workplace exposure, ruling Petitioner’s Covid-19 infection/illness arose out of employment. We note the ruling was correctly classified as an Occupational Disease Act case vs. a Workers’ Compensation Act matter; a relatively minor, but proper distinction.

Petitioner worked as a machine operator for an aluminum and steel fabricator, testing positive in April 2020. The alleged exposure date is within the timeframe of the rebuttable presumption under Section 19(g) for workplace exposure during the current Governor’s Executive Order 2020-10 for “essential workers”. The COVID-19 rebuttable presumption provides any employee developing occupational disease resulting from an exposure to COVID-19, the exposure and contraction shall be rebuttably presumed to have arisen out of and in the course of the employee’s employment.   This presumption creates a prima facie case that the exposure arose out of and in the course of the employment. Left unrebutted and uncontested, the worker is entitled to benefits. However, employers may rebut the presumption via three avenues:

1. Demonstrating that it complied with recommended CDC or Illinois Public Health guidelines in the 14 days prior to the diagnosis (including sanitation, masks, other protective gear, barriers, social distancing, etc.)

2. Presenting evidence claimant contracted the virus elsewhere; or

3. Demonstrating the claimant worked solely from home or was off work at the employer’s facility in the 14 days prior to the Covid-19 diagnosis.

In our view, this Respondent offered fairly substantial evidence to adequately rebut the presumption of exposure under the first item above. The Arbitrator actually commended Respondent’s efforts, which included hand-washing stations, masks, limited in-person meeting attendance, contact tracing, as well as a significant financial commitment to Covie-19 response and safety. In fact, defense evidence was sufficient to compel the Arbitrator to find Respondent to have successfully rebutted the presumption of work-place exposure. However,  this is not an automatic “win” for Respondent… the successful rebuttal of the presumed workplace exposure simply returns the burden of proof to Petitioner and the Arbitrator weighs the totality of evidence, as would be considered in any claim.

While Respondent implemented several protections for workplace safety, it was noted that a number of these measures were taken after Petitioner was already infected. There was also no evidence to suggest an exposure occurred outside of work. Notably, at least one co-worker confirmed to be infected before Petitioner, who would have been in relatively close contact with that worker each day.

In our view, this may be (and continue to be) the most persuasive element for Commission consideration in these claims. Absent evidence of direct exposure outside of work (e.g., evidence that a family member was positive just before the claimant), we believe it will continue to be challenging to defend an IL Covid-19 claim where direct evidence exists of co-worker infection just prior to claimant’s illness.

Covid-19 claims are certainly a challenge for IL Respondents, particularly for claims made during the rebuttable presumption period. The rebuttable presumption will apply to all cases in which the diagnosis of COVID-19 was made on or after March 9, 2020, and on or before June 30, 2021 when Exec. Order 2020-10 expired. Regardless of when the claim of infection is asserted, a thorough investigation is critical to the defense of the claim, just as with any work injury or exposure alleged. In addition to demonstrating safety protocols at the workplace, an employer’s ability to demonstrate the absence of any other positive Covid-19 employees may be the key to establishing a sufficient defense worthy of denial. Absent the evidence of other co-workers’ infection(s) prior to Petitioner, the Arbitrator may have had a much more difficult time finding sufficient basis to award benefits in this case. The Covid-19 positive co-workers may often prove the “smoking gun” triggering an award. Therefore, a thorough investigation is key.

This article was researched and written by John P. Campbell, Jr., partner at Keefe, Campbell, Biery & Associates, LLC. We appreciate your thoughts and comments, please post them on our award-winning blog at www.keefe-law.com/blog.

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Synopsis: “When Congress is in Session, no one is safe” -Mark Twain

Editor’s Comment: A series of new (and one old) Illinois laws went into effect on January 1st 2023. These new and fully enacted IL laws address workplace issues and employers in this State should be aware of each:

Time Off for Miscarriage (SB 3120)

Permits women who have a miscarriage, still birth, or other adverse diagnosis affecting pregnancy or fertility to use up to 10 days of unpaid leave.

Safer Food Prep (HB209)

Latex gloves are now banned for use in handling and preparing food, as well as for emergency responders like paramedics, reducing risk of reaction for people with latex allergies.

Crown Act (SB 3616)

This new addition to the Illinois Human Rights Act is intended to address hair discrimination in the workplace. We are not making this one up folks. In our view, this one is really pushing the boundaries of what should qualify as a “protected right”.

This law prohibits discrimination/adverse employment decisions based on hair texture and protective hairstyles like braids, locks and twists. Perhaps well-intended, but in our view, this law exemplifies the micro-management tendencies of the very liberal IL State Legislature over employers which have a cumulative suffocating effect on Illinois business. We will be sure to watch and report on the first IL. Department of Human Rights case litigated over a bad haircut…

Family Bereavement Leave Act (“FBLA”)

This new went into effect on January 1, 2023. It broadens the scope of the Child Bereavement Leave Act by covering additional family members and reasons for leave. The FBLA requires that covered employers (i.e., employers with 50 or more employees during 20 or more workweeks in the current or previous calendar year) provide up to 10 workdays of unpaid leave to eligible employees who are absent due to any of the following: (1) a miscarriage; (2) an unsuccessful intrauterine insemination or assisted reproductive technology procedure; (3) a failed adoption; (4) an adoption match that is not finalized because it was not contested; (5) a failed surrogacy agreement; (6) a diagnosis that negatively impacts pregnancy or fertility; or (7) a stillbirth.

The FBLA also requires employers to provide 10 workdays of unpaid leave for employees attending the funeral of, grieving the death of, or making arrangements due to the death of a “covered family member.” Under the FBLA, a “covered family member” includes children, stepchildren, spouses, domestic partners, siblings, parents, parents-in-law, grandchildren, grandparents, and stepparents.

An employer may require the employee provide documentation supporting the leave request, but the employer cannot require that the employee identify which category of leave they are requesting to take under the FBLA.

To be eligible for leave under the FBLA, an employee must have 1) been employed by the employer for at least one year; 2) worked at least 1,250 hours for the employer during the prior 12-month period; and 3) worked at a worksite with at least 50 employees within a 75-mile radius.

IL Sexual Harassment Prevention Training Program

Since 2020, all Illinois employers are required to do an annual Sexual Harassment Prevention Training program. Enforcement rules/requirements are various and sundry.

If you aren’t doing this, bad things may happen in your workplace. If you need help with this program, send a reply.

1-13-2023; Will City of Chicago WC Claims Start to Make Sense Under this Mayoral Administration?; PFLAW Coming to the IL Workplace; New IRS Mileage Rates and more

Synopsis: Will City of Chicago WC Claims Start to Make Sense Under this Mayoral Administration?

Editor’s comment: For decades, City of Chicago WC claims were mis-managed by a former Alderman who is now facing federal criminal charges. He has pleaded not guilty to the charges and trial is set for the fall.

In my opinion, this Alderman used the WC system along with the police/fire disability program to recruit and help political cronies—he is not facing any charges for those actions. The saddest and most obvious example of this mis=management technique was a police cadet who was placed on disability while in the Academy and remained on the dole for decades, using his disability pay to put himself through law school and then started a law practice in the south suburbs. If you want details, send a reply.

Now that the former Alderman has been charged, he is no longer seeking office and the City’s WC program is being run much more professionally. For one thing, a national WC claims management group is now handling the claims. We hope they are bringing claims to a reasonable close and City workers aren’t allowed to get life-time or decades-long benefits from City taxpayers. In my view, they are cutting City WC claims costs to the tune of hundreds of millions of dollars because the politics have been removed from claims management.

With that in mind, I can report the Illinois Appellate Court, WC Division recently upheld a determination that an injured worker was not entitled to wage-differential benefits, penalties or fees, but said further proceedings are necessary to determine the employer’s entitlement to a credit.

Claimant Haepp worked for the City of Chicago as a carpenter. He allegedly injured his left knee at work in May 2010, and again in January 2011. Haepp filed two separate workers’ compensation claims, which were consolidated for a hearing before an arbitrator. The arbitrator found Haepp sustained compensable injuries on each of the alleged dates and awarded him temporary total disability benefits. The arbitrator also awarded attorney fees and penalties for the 2010 injury, but not for the 2011 injury.

The IL Workers' Compensation Commission panel affirmed the award for the 2010 injury and modified the award for the 2011 injury to include an award of penalties and fees. Neither party appealed from this decision.

In 2014, Haepp filed two more workers’ compensation claims; one for a hernia and one for a right shoulder injury. The two claims were consolidated and an arbitrator found both injuries were compensable. The arbitrator awarded permanent partial disability benefits, along with penalties and fees.

The IL Workers’ Compensation Commission panel made some modifications to the arbitrator’s decision, but upheld it. A circuit court judge then confirmed the Commission’s decision.

Haepp appealed, seeking additional benefits, penalties and fees. Among other things he argued that the Commission erred as a matter of law by failing to award him lifetime wage-differential benefits.

The IL Appellate Court, WC Division said the Commission’s decision to award permanent partial disability benefits instead of wage-differential benefits was not against the manifest weight of the evidence. The Court explained wage-differential benefits are available to a worker who can prove an impairment of earning capacity by showing actual earnings for a substantial period before the accident and after returning to work with or without “reasonable accommodation” required by the ADA. Section 8(d-1) of the IL WC Act provides such benefits.

Here, the Appellate Court noted, Haepp had permanent work restrictions, but he was able to continue working for the City as a union carpenter, earning the identical compensation as the all other union carpenters. The Court also said the Commission did not err in discounting the opinion of Haepp’s vocational expert since he failed to identify any jobs similar to Haepp’s chosen field of work, and completely disregarded Haepp’s prior work experience.

The decision states “In our view, the Commission's finding that Claimant failed to establish an impairment of earning capacity was a reasonable determination based on the evidence presented at the arbitration hearing.” The Court went on to find that Haepp did not establish an entitlement to additional penalties or fees, as his arguments pertaining to these issues were not clearly defined and were not supported by sufficient authority to warrant consideration.

The Court also said it was unclear from the record whether the Commission had intended to award the City a credit for medical expenses paid by Haepp’s group health insurance. The arbitrator sustained Haepp’s objection to the admission of a document that itemized the benefits and payments made by group health insurance, the Court said, and the Arbitrator found the city failed to prove entitlement to a credit. The Commission’s decision did not address the credit issue other than stating that the city "shall receive credit for medical bills paid through its group medical plan.” Under these circumstances, the Court said, the matter would have to go back to the Commission to clarify its decision on the issue of the city’s entitlement to credit.

I salute the august members of the IL Appellate Court for a solid and well-written decision. I also salute current Mayor Lightfoot for her professionalism in dealing with the City’s WC claims.

To read the court’s decision in Haepp v. IWCC, No. 1-21-0634WC, 12/09/2022, published, click here. I appreciate your thoughts and comments, please post them on our award-winning blog.

Synopsis: Illinois Passes A New Bill, Starting Next New Year’s Day, Guaranteeing Up to 1 Week of Paid Leave for All Workers. Please note it isn’t necessarily “sick leave.”

Editor’s comment: As I have advised my readers, Illinois is a one-party State and will be for a generation. In my view, it is going to be almost impossible to block social legislation like this, regardless of the costs or impact on Illinois business.

On January 10, 2023, the Illinois legislature passed the Paid Leave for All Workers (PLFAW) Act, making Illinois just the third state in the U.S. to require private employers to provide earned paid leave to employees to be used for any reason. Our Governor signed it.

The PLFAW Act will take effect on next year on January 1, 2024, and, once enacted, will provide nearly all Illinois workers with a minimum of 40 hours of paid leave, or a pro rata number of hours, during a designated twelve-month period. Employers can choose to frontload the leave on the first day of employment or the first day of a designated twelve-month period, or use an accrual method. Under the new Act, leave accrues at the rate of one hour of paid leave for every forty hours worked. The law will deem exempt employees to have worked 40 hours in each workweek for purposes of PLFAW Act accrual, unless their regular workweeks are less than 40 hours. Once enacted, the law will permit employees to use the PLFAW Act leave after 90 days on the job, unless an employer allows them to utilize leave earlier. Employees may determine how much leave to use, but employers may set a reasonable minimum of increment of no less than two hours per day.

The law will not require employees to give a reason for taking leave, and employers will not be permitted to require any documentation or certification of the need to take leave. Employers may require up to seven calendar days’ notice of foreseeable leave if they have a written policy provided to employees outlining notice requirements and procedures. If the leave is not foreseeable, employees must provide notice as soon as practicable.

Rate of Pay While on Paid Leave

Leave under the law will be paid at the employee’s hourly rate of pay for the hours of paid leave he or she takes. An employee who is paid gratuities and commissions must be paid at least the full minimum wage for the jurisdiction, or their hourly rate, whichever is greater.

Carry-over if Leave is Unused

Unused accrued PLFAW Act leave will carry over annually, but the employer will not be required to provide more than 40 hours of paid leave for an employee in the designated twelve-month period. Employers that choose to frontload the 40 hours will not be required to carry over unused paid leave to the next twelve-month period.

Termination of Employment

While the Illinois Wage Payment and Collection Act requires employers to pay out earned vacation time at the end of the employment relationship, the PLFAW Act expressly states IL employers will not need to pay unused paid leave under the PLFAW Act at the end of the benefit year or any other time, provided the employer has not credited PLFAW Act leave to an employee’s paid time off bank or employee vacation account. The new law will require employers to restore the PLFAW Act leave of employees who leave their employers but return to the same employer within twelve months.

Records

The law will require employers to create records documenting hours worked, leave accrued and taken, and remaining paid leave balances. Such records must be maintained for at least three years, and employers must allow the Illinois Department of Labor (IDOL) access to the records. Employers that provide PLFAW Act leave on an accrual basis must provide notice of the amount of leave accrued or used by an employee upon request. Failure to comply with the recordkeeping requirements subjects employers to a penalty of $2,500 per offense.

Posting Requirement

The law will require employers to post, where other notices are customarily posted, a notice (that IDOL will prepare) summarizing the requirements of the act and giving information on filing a charge. Employers that have workforces comprised of a significant portion of workers who do not read English will be required to request a notice in the appropriate language from IDOL. Violations of the posting requirements would subject employers to a penalty of $500 for the first violation and $1,000 for each subsequent violation.

Retaliation

The PLFAW Act, once enacted, will prohibit employers from taking adverse action against employees for:

• Exercising their rights under the PLFAW Act;

• Opposing practices the employee believes to be in violation of the PLFAW Act; or

• Supporting others’ exercise of rights under the PLFAW Act.

• In addition, the law prohibits employers from considering the use of leave under the PLFAW Act in making discipline, promotion, or evaluation decisions.

Remedies

The Il Department of Labor will be responsible for administering and enforcing the PLFAW Act. Employees may file complaints with the IDOL within three years of the alleged violation. Employers found to violate the PLFAW Act are subject to actual damages, compensatory damages, attorneys’ fees/costs, and civil penalties, as well as being subject to equitable relief. The IDOL can conduct investigations and refer matters to hearing. The state attorney general may enforce the collection of awards.

Exclusions

The New Act does not affect the validity or change the terms of bona fide collective bargaining agreements in effect on January 1, 2024. After January 1, 2024, the requirements may be waived by a collective bargaining agreement only if the agreement includes a clear and unambiguous waiver. The law does not apply to:

• school districts or park districts;

• students employed on a part-time, temporary basis by the college or university they attend;

• short-term employees of higher education institutions who are employed for less than two consecutive calendar quarters during a calendar year without a reasonable expectation that they will be rehired in a subsequent calendar year;

• employees working in the construction industry covered by a bona fide collective bargaining agreement;

• employees covered by a bona fide collective bargaining agreement with an employer that provides national or international services of delivery, pickup, and transportation of parcels, documents, and freight; or

• employers covered by municipal or county ordinances in effect on January 1, 2024, that provide for paid leave or paid sick leave. After January 1, 2024, any municipal or county ordinance enacted or amended must comply with the Act or give greater protections to employees.

Next Steps for IL Employers

While employers have about a year to prepare for the PLFAW Act to take effect, employers may want to consider thinking through processes and policies now. While employers that already have paid leave policies that provide at least forty hours of leave per year are not required to modify their policies as long as the leave can be taken for any reason, employers may want to consider creating a policy specifically addressing the PLFAW Act and may want to change existing accrual policies.

I appreciate your thoughts and comments, please post them on our award-winning blog.

Synopsis: IRS announces new mileage rates for your WC claims.

Editor’s comment: Please note this mileage rate is used for IL WC IME’s making it important to IL WC claims handlers. I don’t agree with that focus, as IRS publishes a “medical” rate but it isn’t worth fighting over it.

The IRS announced the 2023 business standard mileage rate is increasing to 65.5 cents, up 3 cents from the 2022 midyear adjustment of 62.5 cents. The agency made the rare midyear change in June—in addition to a regular annual adjustment announced last December that put the rate at 58.5 cents per mile for the first six months of 2022—as a way to combat inflation and high gas prices that have been taking a toll on employees.

The 2023 mileage rate took effect Jan. 1. In addition to the 65.5 cents per mile driven for business use, the IRS also announced the standard mileage rate for 2023 will be:

• 22 cents per mile driven for medical or moving purposes for qualified active-duty members of the armed forces, consistent with the increased midyear rate set for the second half of 2022.

• 14 cents per mile driven in service of charitable organizations; the rate is set by statute and remains unchanged from 2022.

These rates apply to electric and hybrid-electric automobiles, as well as gasoline- and diesel-powered vehicles, the IRS announced.

12-12-2022; Update on IL WC Fall Claims As Part of the Coming Winter Season; Happy Holidays to all!!!!

Synopsis: UPDATE ON McAllister v. IWCC--The IL Supreme Court ruling and interpretation in a “stand-up” injury claim.

Editor’s comment: By way of review, in McAllister, Claimant felt pain standing up at work. The IL WC Appellate Court was divided on causation. 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 off a street curb and fell going to his car after work.

Two concurring IL WC 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 IL WC 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.”

Ruling Rationale:

The IL Supreme Court explained, 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 no longer require a claimant to additionally prove he or she was exposed to a risk of injury to a greater extent than the general public.

So, how far does McAllister go???

Iniquez v. Town of Cicero, 21 IWCC 0300 (7/18/21).

Synopsis: In this claim, the 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.

Iniquez involved an inspector who was injured when he slipped on normal 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.

Facts and Ruling: The IL WC Commission reasoned 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 “travel” will be compensated. Here, the worker was merely at his office. Therefore, there was no greater risk in our view.

More troubling is the fact that the IL WC 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 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 IL WC Commission found 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 compensability was 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 stairs… no flaw, debris or other identifiable increased risk was apparent. We don’t agree that walking down a set of stairs, with no work materials to affect one’s view or balance, is a risk “distinctly associated” with the job.

Troubling trend… are we “stumbling” toward creating a new “positional risk” doctrine in Illinois?

Lullo v. State of Illinois (IWCC 2022)

Synopsis: IL WC Commission continues to expand what is considered compensable where workers are performing acts “reasonably expected” in furtherance of job.

Facts and Ruling: Petitioner worked as a custodian and was dumping garbage. He actually completed that task, and was simply walking down-stairs with a roll of new garbage bags to replace in the cans he emptied, when he tripped and fell, injuring his knee.

Petitioner alleged he could not catch himself on the railing because he was carrying the roll of bags… the arbitrator awarded benefits accordingly.

The IL WC Commission affirmed, but offered a more troubling explanation of compensability, again, based on the McAllister theory.

The Commission explained that the compensability here was not based on the fact Petitioner was carrying items for work… in fact, the Commission found no need to go into a “qualitative or quantitative” assessment to determine if the job duties increased the risk of fall (carrying items) or if he had to navigate stairs often (quantitative risk). Rather, the Commission explained the mere fact Petitioner was performing acts “reasonably expected to perform incident to his assigned duties… and instructed to do by his employer” then the analysis ends and the event is compensable.

We find such analysis to be an even greater expansion of the McAllister theory. In the past, we would observe the Commission require at least some work-related link to the fall, such as flaws or debris on stairs, or citing the carrying of items which increased the risk of fall. Our fear is that now, all a Petitioner need show is that they were navigating ordinary stairs as part of their job. We don’t believe this is the true intent of the IL WC Act or even the true intended expansion contemplated in McAllister.

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

Vaughn v. IWCC and Memorial Medical Center (2021)

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

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 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 IL WC Appellate Court 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!

We note however, in this case, there was no task being performed at the time of the trip… if claimant had been walking to retrieve an item for work, we fear there is a potential link allowing a finding of compensability based on the McAllister doctrine.

We appreciate your thoughts and comments. Please post them on our award-winning blog.