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Majority Favors Neutral Risk Analysis Where Injury Results from Act of Everyday Life

The Appellate Court, Workers' Compensation Commission Division, recently handed down a decision which seems to pull back the court's prior approach to the "arising out of" element of accident when an injury is caused by a neutral risk. While the decision finds against the employer, the majority moves away from what has been viewed by the defense bar as an expansive application of the "arising out of" element through cases such as Young v. Illinois Workers' Compensation Comm'n, 2014 IL App (4th) 130392WC and Autumn Accolade v. Illinois Workers' Compensation Comm'n, 2013 IL App (3d) 120588WC.

In Adcock v. Illinois Workers' Compensation Comm'n, 2015 IL App (2d) 130884WC, the claimant injured his left knee while turning in a chair he used continuously to perform his work duties as a welder for the employer because of permanent restrictions due to a right knee condition. The employer argued that the claimant's claim did not "arise out of" his employment because the act of turning in a chair is one of everyday life. In denying compensability, the Commission found no evidence that the injury was due to an increased risk connected to the claimant's work or a risk incidental to the employment. The Commission's decision was supported by the medical testimony of the treating and examining physicians that the claimant's injury could have happened anywhere and that nothing about the claimant's work increased his risk of a knee injury.

The claimant appealed all the way to the appellate court, which reversed the Commission's decision and found the claim compensable. In a 3-2 opinion in which two justices filed a special concurrence, the majority held the claimant had proved that he was exposed to the neutral risk of turning in his chair to a greater degree than the general public. The court agreed with the Commission that the act of turning in a chair was one of everyday life faced by all members of the general public, but found the claim compensable because the claimant was exposed to the risk to a greater degree by virtue of his employment. The claimant was required to perform his welding duties in a chair. His testimony that his job required non-stop movement in his chair, was unrebutted by the employer. Thus, the claimant proved that his employment exposed him to this increased risk of injury.

According to the majority, "[t]he Commission should not award benefits for injuries caused by everyday activities like walking, bending, or turning, even if an employee was ordered or instructed to perform those activities as part of his job duties, unless the employee's job required him to perform those activities more frequently than members of the general public or in a manner that increased risk." The majority specifically stepped back from the analysis utilized in prior cases such as Young v. Illinois Workers' Compensation Comm'n, 2014 IL App (4th) 130392WC and Autumn Accolade v. Illinois Workers' Compensation Comm'n, 2013 IL App (3d) 120588WC, which suggested that a neutral risk analysis is unnecessary where the employee is injured while performing his or her required work duties.

The two justices who did not sign off on the majority opinion argued that the activity of turning in a chair was one distinctly associated with the claimant's employment, which would make the injury compensable without further analysis. The special concurrence concluded that an injury suffered while performing an activity of everyday living is compensable so long as the activity is required by the employment, even if nothing about the employment increases the risk of the activity beyond that which is faced by members of the general public. Thus, if an employee is injured while performing a common bodily movement that is required by his job duties, the injury thus "arose out of" the employment, even if that activity is a common activity performed by the general public.

Going forward, our focus in claims involving everyday activities must be to argue the activity is a neutral one which requires the quantitative and qualitative analysis and then developing evidence that the employment does not expose the claimant to a greater risk of injury from the activity. Additionally, as we have said in the past, accident and causation defenses go hand in hand in these difficult "arising out of" claims. Developing a credible medical opinion that the activity did not cause the condition may help solidify a finding of no compensability.

Adcock is a good decision from the standpoint that it sets a clear demarcation of the law involving increased risks and reiterates the employee's obligation to prove that common acts performed at work are compensable. Adcock makes it clear for employers that a worker encountering a neutral risk, whether an activity or a condition of the premises, will only be compensable where the employee, because of his or her employment, encounters that risk or condition more frequently or to a different extent.

Adcock further makes it clear that the analysis in such cases is not simply whether the claimant was performing an activity required by his or her job – rather, the activity in question must be examined and then compared to the general public. If the activity is a common one faced by the general public, the inquiry must then be whether the employment required the worker to perform the everyday activity more frequently than members of the general public or in a manner that increased the risk of the activity beyond the risk normally faced by the general public.

© 2023 Heyl, Royster, Voelker & Allen, P.CNational Law Review, Volume V, Number 237
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About this Author

Associate

Dana concentrates her practice on protecting the rights of employers at the Illinois Workers' Compensation Commission and in state and Federal courts, including employment, third party, and subrogation claims. Dana's civil practice also includes defending businesses and individuals in property damage claims, motor vehicle accidents, construction and premises liability cases.

815.963.4454
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