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Appellate Court Pulls Neutral Risk from a Dumpster in Grayslake, Breathing and Very Much Alive
YOLO, they say. Stop worrying about the potholes in the road and simply enjoy the journey, they say. For a workers’ compensation defense attorney, every road travelled by an employee is an important one. Especially in mysterious slip and fall cases, every detail of an employee’s journey must be carefully examined, from the slipperiness of the tiles to the exact amount of fluffiness in the carpets.
The concept of “risk” is a heavily debated and nuanced topic in Illinois workers’ compensation. With no risk, there should be no award. An injury should not be compensable if there is no risk connected with or incidental to the employment.
“Risk” doesn’t have to include anything particularly risky. Activities of daily living can qualify as employment risks and wildly risky events may not lead to compensable claims. Is that clear enough?
Rodney Buckley, Petitioner, and former Lieutenant at the Grayslake Fire Protection District, had a bad day at work on August 31, 2015. He started his shift at 7:00 am and journeyed through the day as follows:
At 6:00 am, Buckley arrived at the station, used the treadmill, and showered. Buckley’s knee felt stiff after his workout.
Sometime after 7:00 am, Buckley responded to a call involving a car accident and assisted medical personnel at the scene. This required him to run, hurry, pivot, sit in a vehicle with tight space, and exit a vehicle. Petitioner testified that he was uncomfortable but didn’t feel any pain during any of the maneuvers.
Petitioner went to a meeting upon return to the fire station. After the meeting, Petitioner testified that his leg gave out, that he was unable to straighten his right knee all the way and that he walked with a limp. He proceeded to conduct a verbal training session while sitting down.
Now comes the juicy part, when Petitioner did nothing more than walk down a hallway to speak to the Deputy Chief. Walking at a normal pace, he tried to extend his knee and heard a popping sound. His knee gave way and he fell to the ground. Buckley then got back up, hobbled to his office and was unable to weight-bear on his right leg.
Petitioner’s histories of injury were all over the place. He reported to the ER that he felt his knee pop when stepping down from an engine. To the next provider, the history of the “pop” was missing. To his physical therapist, Petitioner reported that he felt a snap in his right knee while responding to an auto accident and walking. To the IME physician, Petitioner reported that he felt a snap in his knee while running. Petitioner underwent a second IME with the same physician and reported that the knee pain stemmed from walking, after exiting his truck. In his recorded statement, Petitioner stated that his right knee injury occurred in stages on the date of accident. Respondent’s witness (the Deputy Chief) testified that Petitioner never reported an incident involving jumping off an engine or during his fire run. Petitioner advised the Deputy Chief that he experienced soreness after running on the treadmill that morning.
The Arbitrator found that Buckley’s accident arose out of his employment and the Commission unanimously reversed. In doing so, the Commission applied a neutral risk analysis and determined that there was no evidence to show that Petitioner’s employment had anything to do with his knee giving out.
After receiving the Commission decision, the Petitioner then filed a motion to reconsider based on the decision in McAllister v. Illinois Workers’ Compensation Commission, 2020 IL 124848 (2020). The Circuit Court denied the motion and the Petitioner appealed.
Petitioner, of course, argued on appeal that he was ultra-credible and that the Commission erred in applying a neutral risk analysis instead of an employment risk analysis.
In a Rule 23 decision, the Appellate Court in Rodney Buckley v. Illinois Workers’ Compensation Commission (2022 Ill. App. 2d 210055WC-U) first examined the categories of employment risks under McAllister and determined that the Commission’s application of the neutral risk analysis was appropriate. Specifically, since the evidence failed to show that Petitioner sustained any kind of accident or injury, the Commission appropriately examined the specific task of walking, which was subject to the neutral risk analysis. The Appellate Court cited two cases for the proposition that the act of walking across a floor does not establish a risk greater than that faced by the general public. The Appellate Court also did not disturb the Commission’s judgement of Petitioner’s credibility as it related to the varying histories of injury.
One dissenting Justice argued that the Commission should have analyzed the accident under the personal risk doctrine. While personal risk injuries do not generally arise out of the employment, one exception exists when the conditions of the workplace significantly contribute to the injury or expose the employee to an added or increased risk. The majority disagreed, noting that the dissenting Justice’s theory hinged on the assumption that Petitioner’s collective testimony was credible. On paper, Buckley’s case seemed pretty good. On the date of accident, he appeared to perform a collection of knee-compromising tasks that swayed the Arbitrator and dissenting Appellate Justice towards a conclusion that would have been favorable to him. The Commission, however, took a deeper look into the actual task that caused Petitioner’s pain, which was the simple act of walking.
Buckley shows that with the birth of McAllister, neutral risk did not die. Not only does the decision in Buckley demonstrate the importance of the fine details of accident mechanics, but also illustrates the importance of credibility in the risk assessment.
If you are an employer questioning compensability in any claim, or are wondering if your employee’s boots were made for walking and if that’s just what they did, please feel free to reach out to our attorneys here.