Illinois Official Reports
Appellate Court
Adcock v. Illinois Workers’ Compensation Comm’n, 2015 IL App (2d) 130884WC
Appellate Court DAVID ADCOCK, Appellant, v. THE ILLINOIS WORKERS’
Caption COMPENSATION COMMISSION et al. (Knaak Manufacturing,
Appellee).
District & No. Second District
Docket No. 2-13-0884WC
Filed August 14, 2015
Decision Under Appeal from the Circuit Court of McHenry County, No. 12-MR-527;
Review the Hon. Thomas A. Meyer, Judge, presiding.
Judgment Reversed; cause remanded.
Counsel on Francisco J. Botto and Alex C. Wimmer, both of Botto Gilbert Gehris
Appeal Lancaster, P.C., of Crystal Lake, for appellant.
Marc J. Cairo, of Garofalo, Schreiber & Storm, Chtrd., of Chicago, for
appellee.
Panel PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the
court, with opinion.
Justices Hoffman and Hudson concurred in the judgment and opinion.
Justice Stewart specially concurred, with opinion, joined by Justice
Harris.
OPINION
¶1 The claimant, David Adcock, sustained an injury to his left knee when he was working as
a welder for the employer, Knaak Manufacturing. The claimant sought benefits under the
Illinois Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2010)). The
employer disputed the claimant’s assertion that he sustained an accident that “arose out of”
his employment. The arbitrator found in favor of the claimant. The employer appealed the
arbitrator’s decision to the Illinois Workers’ Compensation Commission (Commission). The
Commission reversed the arbitrator and found that the claimant failed to prove that he
sustained a workplace accident that arose out of his employment. The claimant appealed to
the circuit court, which held that the Commission’s decision was not against the manifest
weight of the evidence. This appeal followed.
¶2 BACKGROUND
¶3 The claimant testified that, on May 10, 2010, he sat on a rolling chair that the employer
provided in order to accommodate a condition of ill-being in his right knee while performing
work-related tasks. He had worked in a seated capacity since May 2007. The chair that the
employer provided had wheels, and the claimant sat on the chair as he welded lock systems.
At the time of the accident, the claimant used his left leg to turn his stool in an attempt to turn
to his right in order to perform a welding task. He was not pushing the stool, but instead, he
rotated his left knee inward and turned his body to weld. When he turned, his left knee
popped. At that time, he experienced immediate pain and a burning sensation in his left knee.
He reported the accident to his supervisor immediately after it happened. The claimant put
ice on his knee and attempted to continue working for the next three days. He then went on a
three day vacation. When the claimant’s symptoms did not subside thereafter, he sought
treatment at an occupational health clinic on May 18, 2010.
¶4 At the clinic, the claimant reported that he injured his left knee when he internally rotated
his left leg and left knee when he turned to weld to his right while sitting on a chair with
wheels. He reported that he felt a pop and a burning sensation laterally into his patella. For
the remainder of the day, he used his arms to move his chair around his work station and
stayed stationary to perform welding tasks. The claimant stated that, prior to the accident, he
had been working under permanent restrictions due to conditions of ill-being in his right
knee. Because of these right knee conditions, the claimant was unable to twist, kneel, or walk
extensively. At the clinic, Dr. Alexander Jablonowski examined the claimant and diagnosed
him as having a left knee sprain. Dr. Jablonowski placed the claimant on light duty work
restrictions. Thereafter, the claimant continued to follow up with Dr. Jablonowski and
worked light duty.
¶5 On May 28, 2010, the claimant had a follow up visit with Dr. Jablonowski. The doctor
believed that the claimant’s left knee sprain had worsened and ordered an MRI. The MRI
showed “[f]indings suspicious for vertical tear of the medial meniscus” and “[p]artially
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discoid lateral meniscus.” Dr. Jablonowski referred the claimant to Dr. Steven Rochell, an
orthopedic surgeon.
¶6 The claimant saw Dr. Rochell on June 16, 2010, and the doctor diagnosed the claimant as
having a probable medial meniscus tear as a result of his work history. The doctor ultimately
recommended arthroscopic surgery and took the claimant off work on July 12, 2010.
¶7 On August 10, 2010, the claimant was examined by Dr. Preston Wolin, the employer’s
independent medical examiner (IME). Dr. Wolin testified at the arbitration hearing by way of
an evidence deposition, and his IME report was admitted into evidence.
¶8 In his IME report, Dr. Wolin stated that he viewed a video that depicted the claimant’s
job duties. He opined: “I do not believe that the activities depicted in the video of [sic]
sufficient loading and torque to cause a medial meniscus tear.” Dr. Wolin wrote in his report
that he did not believe that “the mechanics or environment in which the [claimant] was
working [were] sufficient to cause or aggravate a tear.” He believed that the claimant’s
“partially discoid lateral meniscus is a congenital condition” and was not contributing to his
symptoms. At the time of his report (August 10, 2010), Dr. Wolin was “somewhat
concerned” about the proposed surgery and did not believe that it would improve the
claimant’s symptoms. He believed that the claimant’s meniscal pathology was more than
likely unrelated to “the work episode of 05/10/10.”
¶9 On September 30, 2010, the claimant underwent a left knee arthroscopy as well as medial
and lateral meniscectomies performed by Dr. Rochell. The claimant then underwent a course
of physical therapy and continued to treat with Dr. Rochell until January 5, 2011, when he
was released from Dr. Rochell’s care and for full duty with respect to the left knee. During
the arbitration hearing, the claimant testified that, although he was released to full duty, he
occasionally experiences stiffness and soreness in his left knee when standing or walking for
prolonged periods or when attempting to squat or kneel.
¶ 10 Dr. Wolin’s evidence deposition was taken after the claimant’s arthroscopic surgery.
During his deposition, Dr. Wolin testified that the claimant had a body mass index of 53.3
and opined that the claimant’s weight caused an increased load across the meniscal cartilage
of both knees. Dr. Wolin again opined that he did not believe that the job duties demonstrated
in the video depicted sufficient loading or torque to cause a medial meniscus tear. He
testified that “pushing off of one foot and using a sliding chair to move from the right to the
left” was not “enough of an energy to produce a meniscus tear.” Dr. Wolin further opined
that a lateral meniscus tear was not possible with an internal rotation of the knee because of
the “screw hole mechanism of the knee.” He explained that with internal rotation, if there is
torque, it is going to be applied to the lateral meniscus, not the medial meniscus.
¶ 11 Dr. Wolin testified that the claimant told him that the employer’s job video accurately
reflected his workstation. However, Dr. Wolin acknowledged that the job video depicted an
employee other than the claimant and did not appear to demonstrate the employee planting
his left foot and pivoting, which was the mechanism of injury that the claimant had described
to Dr. Wolin. Moreover, Dr. Wolin admitted that he did not know the condition of the
concrete floor upon which the claimant rolled his chair or how much force was required to
push the chair across the floor. Nor did Dr. Wolin know the condition of the chair itself or the
condition of its wheels.
¶ 12 At the time of the evidence deposition, Dr. Wolin was unaware that the claimant had
undergone arthroscopic surgery on his left knee. After reviewing Dr. Rochell’s postoperative
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findings, Dr. Wolin agreed that the claimant’s complaints of medial and lateral left knee pain
and the MRI films of the claimant’s left knee were consistent with Dr. Rochell’s
postoperative diagnosis.
¶ 13 The claimant testified that his work duties required him to weld approximately 70 locks
during one workday, which required more rapid movements than were depicted in the
employer’s job duties video. He stated that his job required nonstop movement in the chair,
including moving back and forth along the length of the workstation and swiveling from one
point to another. He also testified that the cement floor upon which his chair rolled was
cracked, uneven, and littered with metal pieces from welding, which made it difficult to
maneuver across the floor’s surface. Moreover, the claimant stated that, due to his previous
right knee injury, he was unable to push off with his right leg. Accordingly, the claimant used
his left leg to turn the chair from side to side or when moving the chair itself.
¶ 14 Although the claimant agreed that the video viewed by Dr. Wolin showed the claimant’s
workstation, he testified that the person welding in the video did not perform the work duties
in the same fashion that the claimant did. The welder in the video did not demonstrate how
he used his left leg to maneuver the chair. Moreover, according to the claimant, the welder’s
pace in the video was slower that what the claimant was required to perform. However, the
employer’s witness, Benjamin Fisher, testified that, based upon the employer’s production
logs, the claimant repeatedly missed his production quotas and actually performed his job
more slowly than the welder depicted in the video.
¶ 15 Dr. Rochell also testified at the arbitration hearing by way of an evidence deposition. Dr.
Rochell stated that he had treated the claimant’s right knee condition in 2006 and 2007 and
had released him from his care with permanent work restrictions of seated work as indicated
by a functional capacity evaluation (FCE) dated May 27, 2007.
¶ 16 With respect to the claimant’s left knee, Dr. Rochell testified that the claimant reported
that he injured his left knee while he was seated at his job and performing a twisting and
turning action in order to weld at his workstation. Dr. Rochell opined that this twisting and
turning caused the injury to the claimant’s left knee which resulted in the tear of the medial
and lateral menisci. During cross-examination, Dr. Rochell testified that a similar injury
could have occurred while the claimant exited his car or got up from a table. Dr. Rochell was
not aware of anything specific in the claimant’s workplace that increased the risk of a left
knee injury.
¶ 17 The arbitrator found that the claimant sustained an accidental injury that arose out of and
in the course of his employment. In support of this finding, the arbitrator stated:
“[The claimant] presented detailed testimony regarding his work station,
including the rough and uneven surface of the concrete floor upon which his stool
must roll, the debris that was routinely covering the floor, the insufficiency of the
wheels on the stool and the mechanism by which he was required to move himself
about on the stool. Conducting welding duties from a rolling stool would simply not
be a risk to which the general public would likewise be exposed. Furthermore, it is
clear that [the employer]’s exhibits detailing [the claimant]’s daily production quotas
were irrelevant and should be given no weight, as they are not at all indicative of the
mechanism of injury. Accordingly, the Arbitrator finds that [the claimant] met the
burden of proving that the injury arose out of [the claimants] employment with [the
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employer], that his job duties went beyond normal daily activities and that the risk to
which he was exposed was beyond that of the general public.” (Emphasis in original.)
¶ 18 The arbitrator awarded the claimant medical expenses, temporary total disability benefits,
and permanent partial disability (PPD) benefits to the extent of “a 20% loss of use of his left
leg, or 43 weeks of PPD at the rate of $464.64 per week.”
¶ 19 The employer appealed the arbitrator’s decision to the Commission. The Commission
disagreed with the arbitrator’s analysis with respect to whether the claimant sustained an
accident that “arose out of” his employment and concluded that the claimant failed to sustain
his burden on this issue. The Commission, therefore, denied the claim and did not address the
issues the employer raised regarding the compensation awarded to the claimant.
¶ 20 In evaluating the “arising out of the employment” element, the Commission stated as
follows:
“The evidence establishes that the [claimant] did sustain a left knee injury. The
[claimant] testified that he was sitting on his swivel chair and turning when he felt a
pop in his knee. The [claimant] testified specifically that at the time of his injury, he
was not pushing his chair, rather he was turning his body. Furthermore, Dr. Rochell
testified that there was nothing specific at [the claimant]’s workplace that increased
the risk to a left knee injury as it could have happened anywhere.
The act of turning, even in a chair, is an activity of everyday life and does not
constitute a compensable injury under the Illinois Workers’ Compensation Act. ***
The Commission finds no evidence that the injury was caused by an increased
risk connected with the [claimant]’s work duties, or a defect in the chair or floor. The
[claimant]’s act of turning in his swivel chair did not expose him to a greater risk than
that to which the general public is exposed, and it was not a risk distinctive to his
employment.”
¶ 21 The Commission, therefore, concluded that the claimant failed to carry his burden of
proving “that his injury arose out of and in the course of his employment.”
¶ 22 The claimant appealed the Commission’s decision to the circuit court, which confirmed
the Commission’s decision. In so ruling, the circuit court noted:
“[T]he Commission received evidence from Dr. Rochell that the injury could have
happened anywhere and that he was not aware of anything that increased the
[claimant]’s risk of a knee injury. Dr. Wolin testified that the mechanics of the
[claimant]’s work were insufficient to cause the injury in question.
Ultimately, the Commission found that there was no evidence that the
[claimant]’s injury was caused by an increased risk connected to the [claimant]’s
work duties. This finding was supported by the testimony of Dr. Rochell and Dr.
Wolin above. The Commission’s finding that the act of turning in a chair is an
activity of everyday life was also supported by the testimony of Drs. Wolin and
Rochell. As a result, there was competent evidence supporting the decision by the
Commission that the [claimant]’s act of turning his swivel chair did not expose him to
a greater risk than that faced by the general public and was not a risk unique to his
employment.”
¶ 23 The claimant now appeals the circuit court’s judgment.
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¶ 24 ANALYSIS
¶ 25 In order to recover benefits under the Act, a claimant bears the burden of proving by a
preponderance of the evidence that his injury “ar[ose] out of” and “in the course of” his
employment. 820 ILCS 305/2 (West 2010). Both elements must be present to justify
compensation. First Cash Financial Services v. Industrial Comm’n, 367 Ill. App. 3d 102, 105
(2006).
¶ 26 The “in the course of employment” element refers to the time, place, and circumstances
surrounding the injury. Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 203 (2003). “That
is to say, for an injury to be compensable, it generally must occur within the time and space
boundaries of the employment.” Id.
¶ 27 The requirement that the injury arise out of the employment concerns the origin or cause
of the claimant’s injury. Id. The occurrence of an accident at the claimant’s workplace does
not automatically establish that the injury “arose out of” the claimant’s employment. Parro v.
Industrial Comm’n, 167 Ill. 2d 385, 393 (1995). “The ‘arising out of’ component is primarily
concerned with causal connection” and is satisfied when the claimant has “shown that the
injury had its origin in some risk connected with, or incidental to, the employment so as to
create a causal connection between the employment and the accidental injury.” Sisbro, Inc.,
207 Ill. 2d at 203.
¶ 28 In the present case, the parties do not dispute that the claimant’s injury occurred “in the
course” of his employment. The disputed issue in this appeal concerns the “arising out of”
element of a workers’ compensation claim.
¶ 29 Whether an injury arose out of and in the course of a claimant’s employment is a question
of fact to be resolved by the Commission, and its determination will not be disturbed on
review unless it is against the manifest weight of the evidence. Illinois Institute of
Technology Research Institute v. Industrial Comm’n, 314 Ill. App. 3d 149, 164 (2000). For a
finding of fact to be against the manifest weight of the evidence, a conclusion opposite to the
one reached by the Commission must be clearly apparent. Caterpillar, Inc. v. Industrial
Comm’n, 228 Ill. App. 3d 288, 291 (1992). Although we are reluctant to disturb a factual
determination made by the Commission, we will not hesitate to do so when the clearly
evident, plain, and undisputable weight of the evidence compels an opposite conclusion. Dye
v. Illinois Workers’ Compensation Comm’n, 2012 IL App (3d) 110907WC, ¶ 10.
¶ 30 In the present case, the Commission made certain factual findings that are not disputed by
the parties in their briefs. Those factual findings include a finding that the claimant sustained
a left knee injury when he turned in his chair to perform a welding task. Although Dr. Wolin
opined that the internal rotation movement was insufficient to cause the meniscal damage,
the Commission, nonetheless, disagreed and found that the claimant did sustain a left knee
injury at the time and in the manner in which he testified. The parties disputed the
mechanism of the claimant’s injury in the proceeding before the Commission, but neither
party has argued that the Commission’s finding that the claimant injured his left knee when
he turned to weld is against the manifest weight of the evidence.
¶ 31 After determining the mechanism of the claimant’s injury, the Commission’s first task in
determining whether the injury arose out of the claimant’s employment is to categorize the
risk to which the claimant was exposed in light of its factual findings relevant to the
mechanism of the injury. First Cash Financial Services, 367 Ill. App. 3d at 105. There are
three types of risks to which employees may be exposed: (1) risks that are distinctly
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associated with employment; (2) risks that are personal to the employee, such as idiopathic
falls; and (3) neutral risks that do not have any particular employment or personal
characteristics. Potenzo v. Illinois Workers’ Compensation Comm’n, 378 Ill. App. 3d 113,
116 (2007); Homerding v. Industrial Comm’n, 327 Ill. App. 3d 1050, 1056 (2002).
¶ 32 With respect to the third category, “[i]njuries resulting from a neutral risk generally do
not arise out of the employment and are compensable under the Act only where the employee
was exposed to the risk to a greater degree than the general public.” Springfield Urban
League v. Illinois Workers’ Compensation Comm’n, 2013 IL App (4th) 120219WC, ¶ 27.
The increased risk may be either qualitative (i.e., when some aspect of the employment
contributes to the risk) or quantitative (such as when the employee is exposed to the risk
more frequently than members of the general public by virtue of his employment).
Metropolitan Water Reclamation District of Greater Chicago v. Illinois Workers’
Compensation Comm’n, 407 Ill. App. 3d 1010, 1014 (2011).
¶ 33 In this case, the claimant was injured while turning in his chair, which is an activity of
everyday life. There is no evidence that his injury was caused by a risk personal to the
employee, such as an idiopathic fall. Moreover, the risk of injury that the claimant confronted
was not “distinctly associated” with the claimant’s employment; rather, it was a neutral risk
of everyday living faced by all members of the general public. Thus, as the Commission
noted, the claimant’s injury is compensable only if the claimant was exposed to this risk to a
greater degree than the general public. Springfield Urban League, 2013 IL App (4th)
120219WC, ¶ 27.
¶ 34 The claimant made that showing here. The claimant’s work duties required him to weld
approximately 70 locks during one workday. Since May 2007, the claimant had to perform
his welding duties from a seated position, using a chair with wheels to maneuver as a result
of a separate condition in his right knee. To perform his welding duties, the claimant had to
move and turn in his chair repeatedly. The claimant testified that his job required “non-stop”
movement in the chair, including “swiveling.” The employer does not dispute this testimony.
Moreover, the claimant performed his job duties under time constraints. Although the parties
dispute how fast the claimant actually worked in comparison to the welder depicted in the
“job duties” video, there is no question that the claimant’s job involved time pressure. Thus,
under a neutral risk analysis, the claimant’s injury arose out of his employment because he
was exposed to the risks inherent in an everyday activity (turning in a chair) to a greater
degree than the general public by virtue of his employment. See Illinois Institute of
Technology Research Institute, 314 Ill. App. 3d at 163-64; see also Springfield Urban
League, 2013 IL App (4th) 120219WC, ¶ 27; Nascote Industries v. Industrial Comm’n, 353
Ill. App. 3d 1056, 1061 (2004). The claimant’s job required him to turn in a chair more
frequently than members of the general public while under time constraints, which increased
the risk of injury both quantitatively and qualitatively. The Commission’s finding that the
claimant’s injury did not “arise out of” his employment was therefore against the manifest
weight of the evidence.
¶ 35 The employer cites Board of Trustees of the University of Illinois v. Industrial Comm’n,
44 Ill. 2d 207 (1969), in support of its argument that the Commission’s decision should be
affirmed. In that case, the employee was a teaching assistant who was working at a desk
preparing examination questions. He heard a noise, turned in his chair, and felt a “ ‘snap’ ” in
his back. Id. at 208-09. The claimant then underwent a course of medical treatments for
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conditions of ill-being in his back. The Commission found that the employee’s injury arose
out of his employment, but the supreme court held that this finding was against the manifest
weight of the evidence. Id. at 214. The supreme court reasoned as follows: “The appellant
simply turned in his chair and suffered the injury. There was no suggestion that the chair was
defective or unusual in any way. The medical evidence was that because of its degenerated
condition any simple and normal activity would have caused the appellant’s disc to rupture.
The injury was not caused by a risk incidental to the employment.” Id. at 214-15.
¶ 36 Board of Trustees is distinguishable from the present case. The claimant in Board of
Trustees suffered a ruptured disc when he turned in his chair in response to a noise. There
was no evidence that the claimant’s job duties required him to turn in a chair on a regular
basis, i.e., more frequently than members of the general public. Here, by contrast, it is
undisputed that the claimant’s job required him to move and turn in his chair continually.
Thus, unlike claimant in Board of Trustees, the claimant in this case confronted a neutral risk
of daily living to a greater degree than members of the general public by virtue of his
employment.1 Under such circumstances, a finding that the injury did not arise out of the
employment is against the manifest weight of the evidence.
¶ 37 The special concurrence takes issue with our analysis. Specifically, the special
concurrence maintains that, if an employee is injured while “performing a common bodily
movement that is required by his job duties” (infra ¶ 57), then the injury “arose out of” his
employment, even if the physical action that caused the injury is something that virtually
everyone does on a daily basis (such as walking or turning while sitting in a chair). For the
special concurrence, all that matters is that the physical action is required by the employee’s
job duties; if so, then the risk posed by the activity is assumed to be connected to the
claimant’s employment, and would be “improper *** to engage in a neutral-risk analysis.”
Infra ¶ 63.
¶ 38 We disagree. “The purpose of the Illinois Workers’ Compensation Act is to protect the
employee against risks and hazards which are peculiar to the nature of the work he is
employed to do.” (Emphasis added.) Orsini v. Industrial Comm’n, 117 Ill. 2d 38, 44 (1987).
Accordingly, “[f]or an injury to have arisen out of the employment, the risk of injury must be
a risk peculiar to the work or a risk to which the employee is exposed to a greater degree than
the general public by reason of his employment.” Id. at 45; see also Karastamatis v.
Industrial Comm’n, 306 Ill. App. 3d 206, 209 (1999) (ruling that “in order for an injury to
arise out of one’s employment, the risk must be: (1) a risk to which the public is generally
not exposed but that is peculiar to the employee’s work, or (2) a risk to which the general
public is exposed but the employee is exposed to a greater degree”). If neither of these
factors apply, i.e., if the injury is caused by an activity of daily life to which all members of
the public are equally exposed (or by a risk personal to the employee), then there can be no
recovery under the Act, even if the employee was required to perform that activity by virtue
of his employment. See, e.g., Hopkins v. Industrial Comm’n, 196 Ill. App. 3d 347, 348-52
1
Moreover, the act that caused the claimant’s injury in Board of Trustees (turning in his chair) was
not incidental to his employment, and there was medical evidence suggesting that the injury was caused
by a personal risk because, prior to the accident, the condition of the claimant’s back had degenerated to
such an extent that “any simple and normal activity would have caused the appellant’s disc to rupture.”
Board of Trustees, 44 Ill. 2d at 215.
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(1990) (holding that claimant’s back injury, which the claimant suffered at work while
turning in his chair to answer a question posed by another employee the claimant was
training, did not arise out of the claimant’s employment, even though the employer required
the claimant to train the other employee). In such cases, the risk leading to the injury is not
“connected with” or “incidental to” the employment; rather, it is merely a personal risk or a
risk of everyday living. See, e.g., id. at 352.
¶ 39 In support if its analysis, the special concurrence cites Caterpillar Tractor Co. v.
Industrial Comm’n, 129 Ill. 2d 52, 58 (1989). Infra ¶¶ 51-52. In that case, our supreme court
ruled that “[t]ypically, an injury arises out of one’s employment if, at the time of the
occurrence, the employee was performing acts he was instructed to perform by his employer,
acts which he had a common law or statutory duty to perform, or acts which the employee
might reasonably be expected to perform incident to his assigned duties.” (Emphasis added.)
Caterpillar Tractor Co., 129 Ill. 2d at 58. Although we agree that injuries caused by such
acts “typically” arise out of the employment, we do not join the special concurrence’s
conclusion that this is always the case. The 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 the risk. In other words, a “neutral risk” analysis
should govern such claims.
¶ 40 We have applied a neutral risk analysis to these types of claims in several prior decisions.
For example, in Kemp v. Industrial Comm’n, 264 Ill. App. 3d 1108 (1994), the claimant was
injured at a construction site while squatting down to read an air gauge which was 10 to 15
inches off the ground. The claimant was required to perform this task as part of his job
duties. Id. at 1111. Nevertheless, we analyzed the claimant’s claim under neutral risk
principles. We affirmed the Commission’s award of benefits because we found that the type
of bending and squatting required by the claimant’s job “differ[ed] both in type and
frequency from the type of bending and stooping in which the average member of the general
public could be expected to ordinarily engage.” Id. We found the claimant’s injury
compensable because it was “the result of being exposed to a risk to a greater degree than the
general public.” Id.
¶ 41 Similarly, in Komatsu Dresser Co. v. Industrial Comm’n, 235 Ill. App. 3d 779 (1992), the
claimant’s job required him to lift parts weighing between 30 and 40 pounds from a box
located next to a machine and place the parts into the machine for processing. The box
containing the parts was on a skid, which placed the box waist high and required the claimant
to bend from his waist to lift the part out of the box. Id. at 780-81. The claimant was injured
when he bent over to pick up a part out of the box. Id. at 781. In affirming the Commission’s
award of benefits, we held that “it was a reasonable inference that the claimant’s acts of
bending required by his work exposed [him] to a greater degree of risk than that of the
general public” because witness testimony established that “the claimant’s work required him
to regularly bend from the waist and lift parts weighing between 15 and 40 pounds out of a
box and that the location of the box did not enable the claimant to bend his knees while doing
this activity.” Id. at 788. We noted that “[t]he frequency of this activity and the method in
which the claimant had to bend and lift without bending his knees increased the claimant’s
exposure to risk of injury from the bending than that of the general public, and, thus, the fact
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that bending is a normal activity did not preclude a finding that the claimant’s injury arose
out of his employment.” Id. We have applied a similar analysis in other cases. See, e.g.,
Nabisco Brands, Inc. v. Industrial Comm’n, 266 Ill. App. 3d 1103, 1107 (1994).2
¶ 42 In each of these cases, the claimant was injured while performing bodily movements that
were required by his job duties. Nevertheless, we did not stop our analysis there and affirm
on that basis alone, as the special concurrence would have us do in this case. Instead, because
the bodily movements at issue could arguably be characterized as activities of everyday
living (such as bending, stooping, squatting, and walking), we analyzed the claims under
neutral risk principles. In each case, we affirmed the award of benefits because we
determined that the claimant’s employment required him to perform an 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.
¶ 43 The same analysis should govern here. In the special concurrence’s view, 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. In our view,
this expansive interpretation of the Act departs from the precedents noted above and
threatens to erode the distinction between “arising out of” and “in the course of” the
employment.
¶ 44 Thus, we decline to apply the analysis endorsed by the special concurrence. However,
because we hold that the claimant has established an entitlement to benefits under neutral risk
principles, we agree with the special concurrence that the Commission’s decision must be
reversed.
¶ 45 CONCLUSION
¶ 46 For the foregoing reasons, we reverse the judgment of the circuit court of McHenry
County confirming the Commission’s decision, vacate the Commission’s decision, and
remand to the Commission with instructions to determine the compensation to be awarded to
the claimant.
¶ 47 Reversed; cause remanded.
¶ 48 JUSTICE STEWART, specially concurring.
¶ 49 I agree with the ultimate disposition reached by my distinguished colleagues in this case.
However, I do not agree with the analysis the majority uses in determining whether the
2
As the special concurrence notes, we did not apply a neutral risk analysis in Young v. Illinois
Workers’ Compensation Comm’n, 2014 IL App (4th) 130392WC, or in Autumn Accolade v. Illinois
Workers’ Compensation Comm’n, 2013 IL App (3d) 120588WC. See infra ¶¶ 58-63. In fact, those
cases suggest that a neutral risk analysis is unnecessary where the employee is injured while performing
his or her required work duties. Young, 2014 IL App (4th) 130392WC, ¶ 23; Accolade, 2013 IL App
(3d) 120588WC, ¶ 19. We note that both of those cases would likely have been decided the same way
under a neutral risk analysis (i.e., a neutral risk analysis supports our judgment in each case).
Nevertheless, to the extent that Young and Accolade conflict with our analysis in this case, we decline to
follow them.
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claimant’s injuries arose out of his employment. Specifically, the majority concludes that
“the risk of injury that the claimant confronted was not ‘distinctly associated’ with the
claimant’s employment; rather, it was a neutral risk of everyday living faced by all members
of the general public.” Supra ¶ 33. I disagree. The claimant’s risk of injury was distinctly
associated with his employment and was not simply a neutral risk. Therefore, the majority
analysis improperly saddled the claimant with the burden of proving that he was exposed to
the risk of injury “to a greater degree than the general public.”
¶ 50 The first step in analyzing whether the claimant’s injury arose out of his employment is
to determine in which of the three categories his risk fell. The three categories are: (1) risks
that are distinctly associated with employment; (2) risks that are personal to the employee,
such as idiopathic falls; and (3) neutral risks that do not have any particular employment or
personal characteristics. Baldwin v. Illinois Workers’ Compensation Comm’n, 409 Ill. App.
3d 472, 478 (2011).
¶ 51 With respect to risks that are distinctly associated with employment, the supreme court
has stated that an injury arises out of a claimant’s employment when he is injured while
“performing acts which he was instructed to perform by his employer, acts which he had a
common law or statutory duty to perform, or acts which the employee might reasonably be
expected to perform incident to his assigned duties.” Caterpillar Tractor Co. v. Industrial
Comm’n, 129 Ill. 2d 52, 58 (1989). “A risk is incidental to the employment where it belongs
to or is connected with what an employee has to do in fulfilling his duties.” Id.
¶ 52 The difference in my analysis and the analysis employed by the majority lies in
determining the category of risk which results in a worker’s injury. I would first examine the
facts to determine if the acts that caused the injury were “connected with what an employee
has to do in fulfilling his duties.” Id. If so, the acts that caused the injury are an employment
risk, and the claim is compensable. Thus, the first step in risk analysis should be to determine
if the risk is one distinctly associated with the employment. If it is, then it cannot be either a
personal risk or a neutral risk.
¶ 53 Paragraph 34 of the majority’s decision establishes how the claimant’s risk of injury
arose directly from acts that his employer instructed him to perform. Supra ¶ 34. The
majority succinctly describes how the claimant’s work duties required him to weld from a
seated position, maneuvering in a chair, including swiveling, while under time pressure.
These are the acts that resulted in the claimant’s injury. Because the claimant proved that he
was injured while performing acts he was expected to perform incident to his assigned duties,
he proved that his risk of injury fell within the category of risks that are distinctly associated
with his employment.
¶ 54 In contrast to the analysis above, the majority first examines the acts that caused the
injury to determine if the worker was performing some bodily movement engaged in by the
general public. If so, the majority would categorize the risk as a neutral risk and employ a
neutral-risk analysis. In doing so, the majority would require the worker to prove that he was
exposed to the risk, either qualitatively or quantitatively, to a greater degree than the general
public, even though he was injured performing the very tasks required by his employment. In
fact, the majority states that “[t]he Commission should not award benefits for injuries caused
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by everyday activities like walking,[3] 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 the risk.” (Emphasis added.) Supra ¶ 39. That statement simply
cannot be squared with our courts’ long-adopted definition of a “neutral risk” as one with no
particular employment characteristics.
¶ 55 Generally, our courts have offered a far more narrow definition of neutral risks. “Neutral
risks include stray bullets, dog bites, lunatic attacks, lightning strikes, bombing, and
hurricanes.” Illinois Institute of Technology Research Institute v. Industrial Comm’n, 314 Ill.
App. 3d 149, 163 (2000). These examples are true neutral risks because they clearly have no
particular employment characteristics.
¶ 56 The problem with the majority’s analysis is that many workers are employed for the very
purpose of engaging in actions and movements performed by the general public. This method
of analysis then leads us, as in this case, to perform a neutral-risk analysis when a worker has
been injured performing the very tasks he was hired to perform. If workers’ injuries are first
examined to determine whether they were reaching, turning, bending, squatting, or engaging
in other common bodily movements at the precise moment of injury, virtually all industrial
injuries could be categorized as neutral risks.
¶ 57 As a result, in categorizing the risk of injury, we must first view the acts that cause an
injury within the context of a worker’s employment duties. If a worker is injured performing
a common bodily movement that is required by his job duties, the risk of injury is an
employment risk. To hold otherwise would greatly expand the number of cases subject to
neutral-risk analysis and subject injured workers to a level of proof beyond evidence that
they were injured performing their job duties.
¶ 58 I believe that we properly analyzed this issue recently in Young v. Illinois Workers’
Compensation Comm’n, 2014 IL App (4th) 130392WC, and that the majority’s analysis in
the present case directly conflicts with our analysis in Young. Regrettably, the majority now
disavows our unanimous analysis in Young.
¶ 59 In Young, we addressed the “arising out of” element in a case in which an employee
injured his shoulder while simply reaching for an object. The employee’s job duties required
him to inspect parts that he was required to retrieve from inside a box that was three feet
deep. Id. ¶ 22. The claimant injured his left shoulder by bending over into the box and
reaching down to the bottom to retrieve a spring clip for inspection. Id. The claimant felt a
“ ‘pop’ ” in his left shoulder as he reached for the part. Id. With respect to the “arising out of”
element of the claim, we noted that “[t]his evidence unequivocally shows claimant was
performing acts that the employer might reasonably have expected him to perform so that he
could fulfill his assigned duties on the day in question.” Id.
¶ 60 The Commission in the Young case engaged in a neutral-risk analysis and concluded that
the claimant’s act of reaching down for the part did not place him at a risk of injury beyond
3
The majority seeks to buttress its analysis by inserting “walking” into the discussion. This is a red
herring. In the context of falls, we have consistently held that walking on level ground or up and down
stairs is a neutral risk. I do not disagree with that analysis. My concern is isolating a specific bodily
movement required by an employee’s job duties, such as reaching or turning, and labeling it a neutral
risk.
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what he would experience as a normal activity of daily living, i.e., he was not exposed to a
risk to a greater degree than the general public. Id. ¶ 23. In reversing the Commission, we
unanimously held that the Commission erred in determining the category of risk to which the
claimant was exposed. Because the claimant was engaged in “acts the employer might
reasonably have expected him to perform incident to his assigned duties,” we concluded that
the risk the claimant faced had employment-related characteristics and that it was improper
for the Commission to engage in a neutral-risk analysis in determining whether the injury
arose out of his work for the employer. Id.
¶ 61 We noted that “when a claimant is injured due to an employment-related risk–a risk
distinctly associated with his or her employment–it is unnecessary to perform a neutral-risk
analysis to determine whether the claimant was exposed to a risk of injury to a greater degree
than the general public.” Id. We further concluded as follows: “Although the act of
‘reaching’ is one performed by the general public on a daily basis, the evidence in this case
established the risk to which claimant was exposed was necessary to the performance of his
job duties at the time of injury. His action in reaching and stretching his arm into a deep,
narrow box to retrieve a part for inspection was distinctly associated with his employment.”
Id. ¶ 28.
¶ 62 In Young, we also cited our recent decision in Autumn Accolade v. Illinois Workers’
Compensation Comm’n, 2013 IL App (3d) 120588WC, ¶ 18, in which we addressed the issue
of whether a caregiver’s injury arose out of her employment when she was injured while
assisting one of the facility’s residents in the shower. The caregiver was reaching to remove a
soap dish when she felt a pop in her neck and pain down her right arm. Id. We held that the
Commission’s finding that the caregiver sustained an accident that arose out of her
employment was not against the manifest weight of the evidence because the Commission
properly concluded that she was injured “while engaged in activities she might reasonably be
expected to perform incident to her assigned duties.” Id. We rejected the employer’s
argument that a reaching injury was not peculiar to the caregiver’s employment because the
caregiver “was engaged in an activity she might reasonably be expected to perform incident
to her assigned duties, i.e., ensuring the safety of a resident of the assisted living facility.” Id.
¶ 19. The majority also now disavows our unanimous analysis in Accolade.
¶ 63 The analysis used by this court in Accolade and Young applies equally in the present case.
Once it is established that the risk fits within the first risk category outlined above, i.e., risks
that are distinctly associated with employment, then it is established that the injury “arose out
of” the employment, and it is improper for the Commission to engage in a neutral-risk
analysis. Young, 2014 IL App (4th) 130392WC, ¶ 23 (“when a claimant is injured due to an
employment-related risk–a risk distinctly associated with his or her employment–it is
unnecessary to perform a neutral-risk analysis to determine whether the claimant was
exposed to a risk of injury to a greater degree than the general public”).
¶ 64 The majority cites Kemp and Komatsu Dresser Co. as examples of precedent where our
courts have applied a neutral-risk analysis when workers are injured performing a common
bodily movement required by their employment. Supra ¶¶ 40-42. However, there are similar
cases where a neutral-risk analysis was rejected. For example, in Interlake, Inc. v. Industrial
Comm’n, 161 Ill. App. 3d 704 (1987), the claimant was working with his supervisor who
instructed him to get a screwdriver. When the claimant bent over to retrieve a screwdriver
from his tool pouch on the floor, his back “ ‘snapped.’ ” The employer argued that
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“claimant’s act of bending over was a routine personal activity and that therefore claimant
has not shown that his injury arose out of and in the course of his employment.” Id. at
706-07. Noting that the claimant “bent over to pick up a screwdriver at the explicit direction
of one of his supervisors,” the court held that his injury “was the result of only employment
activities.” Id. at 711. Likewise, in O’Fallon School District v. Industrial Comm’n, 313 Ill.
App. 3d 413 (2000), the claimant was a sixth grade teacher assigned to hall duty. The
employer maintained a strict rule against students running in the halls. When the claimant
observed a student running, she “turned, twisted, and began to pursue the child when she felt
a pain in her lower back.” Id. at 415. The arbitrator and the Commission initially determined
that the injury “did not arise out of claimant’s employment, as the activities of turning,
twisting, and beginning to pursue a running child did not expose her to a risk greater than that
to which the general public could be exposed,” but the circuit court reversed. Id. Noting that
the claimant “was assigned specifically the task of stopping children from running in the
hallways,” this court affirmed the circuit court, and held that “[c]ontrary to the arbitrator’s
conclusion and the Commission’s initial decision, claimant’s injury did have an origin in a
risk arising out of her employment.” Id. at 416-17.
¶ 65 It is evident that the Commission and the courts have struggled to determine when to
employ a neutral-risk analysis and clear guidelines are needed. In my view, the supreme
court has provided us with the proper method for analysis: “A risk is incidental to the
employment where it belongs to or is connected with what an employee has to do in fulfilling
his duties.” Caterpillar Tractor Co., 129 Ill. 2d at 58. Thus, we should first determine
whether a worker was injured performing activities that were required by his job duties. If so,
the risk of being injured performing those activities is distinctly associated with his
employment, and a neutral-risk analysis is improper.
¶ 66 In the present case, since May 2007, the claimant had to perform his welding duties from
a seated position, using a chair with wheels to maneuver as a result of a separate condition in
his right knee. The employer provided the rolling chair to accommodate the claimant’s work
restrictions while performing work-related tasks. As the Commission found, on the day of the
injury, the claimant worked while sitting on his chair, turned to his right in order to perform
welding tasks, internally rotated his left knee, and experienced an immediate pop, pain, and a
burning sensation in his left knee. Based on these factual findings, the claimant’s risk of a left
knee injury as a result of an internal rotation was a risk that falls squarely within the risks that
are distinctly associated with his employment. The employer paid the claimant to weld lock
systems in a seated position under time constraints which, in turn, required him to maneuver
the chair and his body to his left and to his right. When we view the mechanism of the
claimant’s injury in the context of his assigned work duties, it is evident that he was injured
while performing a specific movement that he was assigned to perform by his employer.
Accordingly, under these facts, although I agree with the ultimate disposition in this case, I
believe that the majority’s neutral-risk analysis is incorrect.
¶ 67 JUSTICE HARRIS joins in this special concurrence.
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