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The Illinois Workers Compensation Blog

Thursday, March 16, 2017

DO YOUR EMPLOYEES SIT, BEND AND REACH? When does doing so constitute a compensable work-related accident?

In the past few months, the Illinois Appellate Court has rendered two different decisions addressing whether simple acts of sitting, bending over. The Court reached two different results. The earlier decision in Noonan v. Illinois Workers' Compensation Commission, 2016 IL App (1st) 152300WC (Oct. 21, 2016) contained  a lengthy analysis of types of risk and increased risks as well as discussion of several prior cases.

The Noonan Facts and History

The claimant was a city clerk with responsibilities to fill out forms and answer phones. On the day in question, he knocked a pen off his desk as he sat down to complete a work form. Reaching sideways down to the pick the pen off the floor, the chair went out from under him and he put his right hand down to brace himself. The chair was not on a slope or slant. The claimant testified he reached sideways due to limited motion from a prior work-related back injury. In this case, he injured his right wrist and required surgery.

The Arbitrator found that the claimant failed to prove an accident arising out of his employment as the simple act of sitting in a rolling chair and reaching for the pen did not expose him to an increased risk of injury beyond that to which the general public is exposed.  The Commission affirmed and adopted the Arbitration decision. Ultimately, the Circuit Court did as well.

The Appellate Court's Analysis

The Appellate Court's decision contains a lengthy discussion of its analysis and prior court cases. Initially, the court defined "arising out of" as a risk incidental to the employment belonging to or connected with what an employee has to do in fulfilling his or her duties. A work-related risk is either peculiar to the work or the employee is exposed to it to a greater degree than the general public. Conversely, the Court stated an injury is not compensable if it results from a risk or hazard to which an employee and the general public are equally exposed or the risk is personal to the employee.

The Court categorized the three types of risks:

  • risks distinctly associated with the employment which are compensable,
  • risks personal to the employee which are not compensable, and
  • neutral risks having no particular employment or personal characteristics but which generally do not arise out of employment.

However, the Court went on to state that neutral risks (to which general public is equally exposed) may be compensable if the risk is increased either qualitatively or quantitatively. Qualitative involves some aspect of the employment contributing to the risk and would include some defect to the employer's premises while quantitative refers to an employee being exposed to a common risk more frequently than the general public.

The Noonan Holding and Analysis

The Court first found that the act of reaching for a dropped pen while sitting in a chair was not distinctly associated with the claimant's employment noting it was not part of his specific duties and he was not instructed to do so. The Court next found that reaching to retrieve a dropped object while sitting in chair was not an act the employer might reasonably have expected him to perform incident to his clerk duties. While at least one dissenting judge disagreed with that statement, the majority concluded the risk of falling from a chair while reaching to the floor was a neutral risk to which the claimant would be equally exposed to apart from work.

The Court noted that as a neutral risk, it would be compensable only if the claimant was quantitatively or qualitatively exposed to the risk to a greater degree than the general public. Qualitatively, there was no defect or condition of the premises that contributed to the accident. Quantitatively, he was not performing a work-related task more frequently than the general public and faced the same risk as reaching for something wholly personal. The Court concluded the claimant was sitting in an ordinary chair and on an ordinary surface and that his employment did not expose him to a neutral risk to a greater degree than the general public. Lastly, the Court noted that the claimant’s previous work-related back injury - for which he bent sideways - was not a factor as it was not a progression of multiple injuries to the same body part.

Prior Compensable Cases That Are Factually Distinguishable

The Appellate Court distinguished several prior cases where similar acts were found compensable including some recent decisions of its own.

Young v. Illinois Workers' Compensation Commission, 2014 IL App (4th) 130392WC  A parts inspector injured his shoulder while reaching into a deep, narrow box to retrieve a part for inspection. There, the Court found the act of reaching was necessary for fulfillment of job duties and the risk of injury distinctly associated with the claimant's duties.

Accolade v. Illinois Workers' Compensation Commission,  2013 IL App (3d) 120588WC. A caregiver at an assisted-living facility was assisting a resident in the shower and believing it a safety hazard, reached for a soap dish and felt a pop in her neck. The Court found the act of reaching was reasonably expected and incidental to the assigned duties.

O'Fallon School Dist. No. 90 v. Illinois Industrial Commission, 313 Ill. App. 3d 413, 729 N.E. 2d 523 (2000). A teacher, assigned to hall duty and specifically instructed to stop students from running in the hallway, was injured when she turned and twisted to pursue a running student. The Court found the risk of injury was increased due to the specific order to pursue running students.

Homerding v. Illinois Industrial Commission, 327 Ill. App. 3d 1050, 765 N.E.2d 1064 (2002). A nail technician slipped and fell on ice while retrieving work-related supplies from her vehicle. The Court found that this neutral risk was increased due to the location where employees were told to park and the practice of keeping supplies in personal vehicles, both of which exposed her to a greater risk than the general public.

Prior Cases Supporting the Appellate Court's Determination

The Court cited the following cases to support its holding:

Board of Trustees v. Industrial Commission, 44 Ill. 2d 207, 254 N.E.2d 522 (1969). A teaching assistant seated at a desk, heard a noise and turned in his chair, snapping and injuring his back. The Court found this was a neutral risk and noted there was no suggestion the chair was defective or unusual.

Hopkins v. Industrial Commission, 196 Ill. App. 3d 347, 553 N.E.2d 732 (1990)               A police sergeant was seated while training another officer and turned in chair to answer a question, injuring his back. The Court found the act was a non-compensable personal risk with no indication the chair was defective.

Based on these cases, the Noonan Court noted that the act of turning in a chair - without more - was insufficient to render such act compensable. Similarly, it concluded that bending over in a chair and reaching - without more - was insufficient to find a work-related cause.

But Not So Fast

Less than a month later, the same Appellate Court issued its decision in Mytnik v. Illinois Workers' Compensation Commission, 2016 IL App (1st) 152116WC (Nov. 10, 2016).  There, the claimant worked on an assembly line at a Ford plant. Standing on a rotating platform, he secured rear suspensions to vehicles. Part of his duties was to load two bolts onto an articulating arm, raise the arm to the vehicle and press a button to secure the rear suspension to the vehicle with the bolts. He had to twist and turn to grab bolts and brackets as well as the articulating arm and installing each rear suspension took 48-52 seconds.

The evidence indicated that sometimes the bolts fell out of the articulating arm onto the rotating platform and that when a bolt fell, it had to be quickly retrieved before jamming the platform and shutting down the assembly line. The claimant said that on May 21, 2009, he noticed a sore back, having had a back injury six to seven years prior. However, he testified that he felt a sharp pain down his right side as he bent over and reached to pick up a fallen bolt on that date.

At Arbitration, the claim was found compensable, but the Commission reversed. Noting that the claimant had given multiple and varied accounts of the accident (though he testified to telling the employer's workers compensation director about reaching for a bolt and feeling sharp pain), the Commission found that even if his "chosen history of the accident" was accepted, the simple act of bending forward was not a compensable accident and he was not exposed to greater risk of injury than the general public. In addition, the Commission stated his lumbar spine was so deteriorated that any activity was sufficient to cause a breakdown.

The Mytnik Appellate Court Analysis

In an unusual move, the Appellate Court vacated the Commission determination and reinstated the Arbitration decision. Applying its three-risk analysis, the Court found the act of bending and reaching to pick up a bolt was an employment-related risk like that in its 2014 Young case and was distinctly associated with the job duties and tasks required to secure the rear suspension to vehicles. Noting it was not uncommon for bolts to fall out the articulating arm and onto the platform and that the platform could jam and result in stopping the line, the Court found that picking up bolts was an integral part of the job duties.

In finding that the claimant was exposed to a risk distinctly associated with his employment, it was not necessary for the Court to consider a neutral risk analysis.

Final Thoughts

So what's the takeaway? And how should such claims be assessed? This writer thinks the first inquiry should be whether the everyday act (sitting, bending, reaching, twisting/turning, etc.) is an integral part of the job duties? Is there a work-related task that contributed to the risk of injury? Is it distinctly associated with the employment? If so, the risk of injury is employment-related, the injury is compensable and no further analysis is necessary.

If it appears that the risk of injury is due to a neutral risk, then the issue is whether the employee was exposed to an increased risk due to qualitative or quantitative factors. The difficulty is that not all claims are immediately reported and the facts are not always known if and until a hearing is held. Our recommendation is to investigate the claimant’s allegations, observations of any witnesses and the premises as soon as practicable.

 While it is clear that a case-by-case factual analysis is inevitable, it appears the essential question is whether the act of sitting, bending, reaching and the like is an integral part of job duties distinctly associated to the injury or a neutral act similar to activities of a personal nature performed on a daily basis by the general public. It is not enough that the act might be reasonably expected to be performed while working, but look for an increased risk of injury distinctly associated with a specific employment task or duty.

Written by: Julie A. Garrison, Attorney

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