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Illinois Supreme Court Finds in Favor of Petitioner in McAllister, Changing Interpretation of “Risk” in Illinois Workers’ Compensation
The concept of risk is a heavily debated, highly contentious, and extremely nuanced area of Illinois Workers’ Compensation law. On Thursday morning, the Illinois Supreme Court published a long-awaited decision in McAllister v. Illinois Workers’ Compensation Commission (2020 IL 124848) with far-reaching and distressing implications for employers in Illinois. In its analysis of compensability for injuries caused by common bodily movements, the Supreme Court gutted the decisions of the Commission, the Circuit Court and Appellate Court, finding in favor of the Petitioner.
In Illinois, an injury sustained at work is theoretically not compensable if the claimant cannot demonstrate that the risk of injury is peculiar to the employment, or if the risk of injury is increased as a consequence of the employment. The recent decision in McAllister overhauls the entire risk analysis, subtly shifting our state closer to a positional risk posture, where injuries are compensable simply because they occur at work.
The Appellate Court in McAllister was fraught with confusion. Although seemingly favorable to the employer, the Appellate Court concluded that a neutral risk analysis was entirely unnecessary if the risk to which the employee was exposed was an employment risk. The Appellate Court in McAllister found that standing up from a kneeling position (the task that Petitioner was performing when he injured his knee) was not a duty uniquely associated with Petitioner’s employment as a sous chef. Therefore, a neutral risk analysis was unnecessary. In making such a conclusion, the Appellate Court tasked the Commission with making a factual determination on the connection between job duties and risk.
The rationale of the Appellate Court was somewhat followed by the Supreme Court in McAllister, with the opposite conclusion reached on the issue of compensability. According to the Supreme Court, kneeling and standing were tasks that were incidental to Petitioner’s employment as a sous chef. Specifically, since the claimant testified that his job duties included arranging food in the walk-in cooler, he was fulfilling his work-related duties and engaged in work that his employer would have reasonably expected him to perform.
The Court specifically addressed “Injuries Caused by Common Bodily Movements” in the decision. After reciting the most pivotal Appellate Court cases on this issue, including Steak n’ Shake (2016), Mytnik (2016), Young (2014) and Adcock (2015), the Court went on to explain that Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52 (1989) “prescribes the proper test” for analyzing whether an injury arises out of the employment when common bodily movements or everyday activities are involved.
The Supreme Court in McAllister specifically concluded that Adcock and its progeny were overruled to the extent that injuries attributable to common bodily movements were not compensable without a neutral risk analysis. In Adcock, the Appellate Court determined that compensation should be denied for injuries caused by activities of daily living, even if the Petitioner was instructed to perform those duties. The Adcock Court concluded that in such cases a neutral risk analysis should govern.
If an injury is not caused by one of the three categories of employment risk identified in Caterpillar Tractor, the Supreme Court in McAllister concluded that only then is a neutral risk analysis appropriate. Caterpillar Tractor categorized employment-risks into three categories: (1) acts the employee was instructed to perform by the employer; (2) acts that the employee had a common law or statutory duty to perform; or (3) acts that the employee might reasonably be expected to perform incident to his or her assigned duties. The Court also noted that it was “generally recognized” that an injury arises out of the employment when the employee is rendering reasonably needed assistance to a co-worker in furtherance of the employer’s business.
According to the Supreme Court, the Commission’s decision (finding that the claimant’s injury did not arise out of the employment) was against the manifest weight of the evidence. The Supreme Court also rejected the Appellate Court’s conclusion that the act of searching for the misplaced pan of food was too remote from the specific requirements of Petitioner’s employment.
If common bodily movements can be construed as employment risks, the McAllister Court leaves a murky path for determining when a neutral risk analysis should ever be done. Citing to Illinois Institute of Technology Research Institute, 314 Ill. App. 3d 347 (2000), the Supreme Court seemed to infer that neutral risks are those that are entirely unrelated to the Petitioner’s employment, such as “a stray bullet, dog bite, a bombing injury, or a hurricane injury.” (Illinois Institute at 163) The Supreme Court’s categorization of the act of kneeling and standing as an employment risk seems to contradict its own definition of employment risks as “obvious kinds of industrial injuries and occupational diseases that are universally compensated.” (citing to Illinois Institute at 162)
Virtually, any bodily movement and/or activity of daily living can be morphed into employment-related tasks by the time of trial and on the date of trial. In carefully evaluating the mechanism of injury, contemporaneous medical records may now hold less weight than the Court’s factual assessment of job duties and risk. The details of risk can develop over time, to the detriment of the employer. “Qualitative neutral risk” also fades away, with no meaningful distinction from employment risk.
Although the McAllister Court claims to follow Caterpillar Tractor regarding the risk analysis, the McAllister Court is much more far-reaching in favor of the Petitioner. In denying compensation to the claimant, the Caterpillar Court specifically stated that it was not prepared to adopt the position that an injury is compensable whenever an injury is suffered on work premises during working hours. The Court in Caterpillar Tractor never discussed the rejection of a neutral risk analysis for common bodily movements.
The theory of neutral risk should not be overhauled. Central to the neutral risk theory is the recognition that work-relatedness matters in the assessment of compensability, and that activities common to the general public must be carefully distinguished. With McAllister, such a distinction is diluted, to the detriment of the employer.