NCSI Scoop - 2021/Q2

Page 1

NCSI Scoop NCSI JOINS BUSINESS COALITION | BLURRING THE LINES BETWEEN ACCOMMODATIONS | OSHA ADOPTS EMERGENCY TEMPORARY STANDARD FOR HEALTH CARE SETTINGS | ILLINOIS SUPREME COURT CLARIFIES “ARISING OUT OF” ANALYSIS IN MCALLISTER V. ILLINOIS WORKERS’ COMPENSATION COMMISSION | MARK YOUR CALENDARS - 2022 NCSI ANNUAL CONFERENCE

2021/Q2

NCSI 2022 ANNUAL CONFERENCE Hyatt Regency Scottsdale Resort & Spa at Gainey Ranch, Scottsdale, AZ June 12-15, 2022


NCSI

NCSI Joins Business Coalition in Opposing COVID Presumption in Federal Legislation (Again)

On June 11, 2021, NCSI joined a business coalition opposing the Longshore and Harbor Workers’ COVID-19 Compensation Act of 2021 (H.R. 3114). The bill would create a presumption of work-relatedness for COVID-19 illness for maritime employees covered by the U.S. Longshore and Harbor Workers’ Compensation Act (the Longshore Act). The coalition opposing H.R. 3114 was organized by Douglas Holmes, President of the UWC – Strategic Services on Unemployment & Workers’ Compensation. In a letter addressed to the Chairman and Ranking Member of the House Committee on Education and Labor and to the Chair and Ranking Member of the Senate Committee on Health, Education, Labor and Pensions, Mr. Holmes wrote on behalf of the group:

We are writing to express opposition to the Longshore and Harbor Workers’ COVID-19 Compensation Act of 2021 (H.R. 3114). Specifically, H.R. 3114 would establish a presumption of coverage and compensability under the Longshore Act for maritime workers who contract COVID-19 at any time between January 27, 2020 and January 27, 2023. [The bill] would create a presumption that an employee who contracted COVID-19 is not required to show that the illness arose at work and provide medical proof of the illness. Further, a no-fault workers’ compensation system is effective only if it is limited to illness and injury “arising out of and in the course of employment”. [The bill] would convert workers’ compensation from a system that provides benefits to workers suffering workplace injuries to a form of guaranteed income replacement for non-workers. Extending the presumption for almost three years, until January 27, 2023, is impossible to justify since employees are engaged in social activities outside of work. It is therefore unreasonable to assume an individual must have contracted COVID-19 at work. In some cases, individuals have been working and continue to work from home in environments that are not within the control of the employer.

2 / N ATIO NAL CO UNC I L OF S E LF -I N S U R E RS’


Scoop

Written by: Buz Minor, Executive Director, NCSI

For almost all non-federal employers and employees, workers’ compensation is a creature of state law. Most states have not adopted any COVID-19 presumption legislation, although there have been bills presented in a number of jurisdictions. The concern with H.R. 3114 is that the bill would encourage COVID-19 presumptions without limitation or scientific basis. In those few states where a legislative presumption has been created, the presumption was narrowly tailored. For example, some states have extended the presumption only to first responders or healthcare providers, those workers who are demonstrably in the line of encountering or treating COVID-19 patients. Other states have placed similar restrictions on allowance or compensation issues. Most states have within their workers’ compensation laws provisions for awarding compensation and benefits to those who contract an illness at work, even where the illness is commonly seen in the public such as tuberculosis, Legionnaire’s disease, cumulative trauma disorder and the like. We remember that Justice Louis Brandeis referred to the states as laboratories of social democracy:

It is one of the happy incidents of the federal system, that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. In other words, and in our context, the issues that arise under workers’ compensation are not unique to one state; we are the better for having 50 potential ways to address such challenges. State legislatures have long wrestled with identifying those diseases that are common to the public but are yet sufficiently tied to a particular occupation so as to be properly compensated under the provisions of the states’ workers’ compensation laws. For example, the original Ohio statute included a schedule of covered diseases that were so plainly work-related that to deny compensation to a victim of the disease would have been grossly inconsistent with the purpose of the law. Those scheduled diseases included anthrax, glanders, coal miner’s pneumoconiosis, baker’s asthma, etc. To hear the name of the disease is to know what the afflicted worker did for a living. The Ohio General Assembly had the wisdom to recognize that it could not identify every disease that should be compensated under the workers’ compensation laws and so it created a “catch-all” description in the Revised Code. R.C. 4123.68 (BB) All other occupational diseases: A disease peculiar to a particular industrial process, trade or occupation and to which an employee is not ordinarily subjected to or exposed outside of or away from his employment. Other states have similar provisions for compensating commonly seen diseases as occupational diseases for certain classifications of workers. Those statutory provisions uniformly include safeguards or gatekeepers to ensure that the illness or disorder that is being compensated is a work-related disability and not something that is a general malady of life. Congress would do well to look at how the various states have addressed such issues instead of creating an ill-considered presumption that may remove work-relatedness from the compensation equation.

Q2 2021 / 3


Written by Shawn Johnson, managing director, workforce absence and Adam Morell, JD, director, national compliance, ADA accommodations

(Originally published: https://www. sedgwick.com/blog/2021/04/30/ blurring-the-lines-betweenaccommodations)

Blurring the Lines Between Accommodations As employers reimagine their return to work programs and strategies, they often wonder about the difference between traditional return to work programs and accommodations afforded under the Americans with Disabilities Act (ADA). At RIMS LIVE 2021, we answered common questions on the topic. Read on to learn more. Definitions What is an ADA accommodation? Individuals who cannot perform a job due to an impairment are offered an accommodation that allows them to complete the essential functions of the job. Generally speaking, there are three types of accommodations: • An accommodation within the job • An accommodation with a leave of absence • An accommodation based on job reassignment

What is a traditional return to work program? A traditional return to work program is a formal plan that helps employees return to work as soon as possible after an injury or illness. These programs typically focus on transitional, light or modified duty job assignments. The structure of transitional duty, for instance, can vary. One size does not fit all; rather, these options should be tailored to each organization. If successful, these programs can sometimes eliminate the need for an ADA accommodation. Differences What’s the difference between a traditional return to work program vs. an ADA accommodation? An important distinguishing factor when it comes to return to work programs is that they are intended to serve as temporary solutions, designed to run for a for a specified time. An ADA accommodation on the other hand does not have a set end date and is often more individualized.

4 / N ATIO NAL CO UNC I L OF S E LF -I N S U R E RS’

A common component of return to work programs relates to compensation. Most programs pay the injured employee at the same rate during this period as they were earning beforehand. This practice simplifies administration and can also contribute to employee morale and productivity. If at the end of the specified period, the employee is not able to return to work full time, the ADA will kick in. At that point, an individualized assessment is conducted and an interactive dialogue should be held between the employer and employee to determine next steps. Benefits What are the benefits of a traditional return to work program? One of the most significant benefits of a return to work program is an increase in productivity. Return to work programs can also result in cost reductions, as an employer avoids onboarding or training costs that would otherwise be associated with hiring a new employee. These programs can also create higher levels of employee


engagement, increase workplace morale and promote faster recovery. If the employee continues working, their workload doesn’t need to be shared, which would have been the case had the employee been on leave. As a result, this program has a positive impact on both the injured worker and their team. A study released by the Disability Management Employers Coalition (DMEC) in 2020 echoes these sentiments. The study found that 60% of employees say if they could access a robust return to work program, it would increase their likelihood of staying with their employer. Thus, the study reaffirmed that employees themselves recognize the benefits of return to work. Trends What have we recently learned about traditional return to work programs and accommodations? While ADA accommodations and return to work programs are separate, they have converged noticeably in recent years. In 2019, for the first time in the ADA’s 30year history, disability was alleged more often in Equal Employment Opportunity Commission (EEOC) charges than any other type of discrimination. From this, we can discern employees are becoming more aware of their rights under ADA. When employers have a consistent approach to the ADA and return to work policies, they can minimize this type of legal exposure. Additionally, the COVID-19 pandemic put a spotlight on the importance of these programs and practices. According to the 2020 DMEC survey, 68% of respondents noted an increase in accommodation requests in 2020 versus 2019. Moreover, the number one request was remote work or work from home arrangements.

Before the COVID-19 pandemic, many employers claimed that letting people work from home would create an undue burden. However, the pandemic forced many employers to reevaluate this policy and many found success. As a result, it will be harder for employers to claim undue burden, logistical complications or the absence of collaboration. Attitudes have changed and it is not as easy to dismiss this type of accommodation request when made. Employers must look at requests for remote work accommodations more openmindedly as this trend is expected to continue. Success What do organizations need to deploy a successful return to work program? In order to succeed, a return to work program needs support from senior management. This traditionally isn’t challenging, as increasing productivity and decreasing costs are top business priorities. Return to work programs already align well with overarching goals. Once management buy-in is achieved, the program’s purpose and design can be communicated throughout the organization. It is also helpful for employers to implement a single system of record that documents and timestamps every single interaction with employees. This helps document programs, accommodations and the steps taken in the interactive process. Should a defensible case ever make its way to court, the documentation created within such a system makes it easier to prove that administrative processes and procedures were followed consistently and appropriately.

Here to Help As employers weigh the merits of their existing return-to-work and accommodation programs, they can be assured Sedgwick is here to help every step of the way. The employee is at the heart of everything we do, and there is value in taking a holistic approach when addressing workers’ compensation and workforce absence matters. We will continue to provide guidance to our clients as they work through industry challenges and look for ways to improve their claims management, productivity and employees’ experience. You can always reach out to us for further support or learn more at www.sedgwick.com.

Q2 2021 / 5


OSHA Adopts Emergency Temporary Standard for Health Care Settings In January 2021, President Biden issued an Executive Order directing the Occupational Safety and Health Administration (OSHA) to take action to reduce the risk that workers may contract COVID-19 in the workplace. On June 11th, OSHA finally released its Emergency Temporary Standard (ETS) implementing that directive. Notably, the ETS applies only to health care settings because OSHA determined that those workers face the highest COVID-19 hazards. Below is an overview of the ETS. To whom does the ETS apply? The ETS generally applies to any settings where health care services are performed. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care facilities. Importantly, the ETS does not apply in non-hospital ambulatory care facilities where all nonemployees are screened for COVID-19 symptoms prior to entry and individuals with suspected or confirmed COVID-19 are not permitted to enter. The ETS also does not apply to the provision of first aid by an employee who is not a licensed health care provider, the dispensing of prescriptions by pharmacists in retail settings, health care support services not performed in a health care setting (e.g., off-site laundry, off-

site medical billing), and telehealth services performed outside of a setting where direct patient care occurs. Where a health care setting is embedded within a non-health care setting (e.g., medical clinic in a manufacturing facility, walk-in clinic in a retail setting), the ETS applies only to the embedded health care setting and not to the remainder of the physical location. Similarly, where emergency responders or other licensed health care providers enter a non-health care setting to provide health care services, the ETS applies only to the provision of the health care services by that employee. OSHA created a flowchart to help employers determine whether they are covered by the ETS. What does the ETS require of employers? The ETS requires that employers develop and implement a COVID-19 plan (in writing if the employer has more than 10 employees). The plan must designate a safety coordinator with authority to ensure compliance and must include a workplacespecific hazard assessment along with policies and procedures to minimize the risk of transmission of COVID-19 to employees. The plan must be developed with input from non-managerial employees and their representatives (if applicable). In addition to the plan, employers must implement all of the following:

6 / N ATIO NAL CO UNC I L OF S E LF -I N S U R E RS’

• Patient screening and management: Limit and monitor points of entry to settings where direct patient care is provided and screen and triage accordingly. • Standard and TransmissionBased Precautions based on CDC guidelines. • Personal protective equipment (PPE): Provide and ensure that each employee wears a medical procedure grade facemask when indoors or when occupying a vehicle with other people for work purposes (subject to certain listed exceptions); provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19, and for aerosolgenerating procedures on a person with suspected or confirmed COVID-19. The ETS also includes a “mini respiratory protection program” for voluntarily respirator use. • Aerosol-generating procedures on a person with suspected or confirmed COVID-19: Limit employees present to only those essential; perform procedures in an airborne infection isolation room, if


available; and clean and disinfect surfaces and equipment. • Physical distancing: Keep employees at least 6 feet apart from all other people when indoors, unless such distancing is not feasible for a specific activity. • Physical barriers: Install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least 6 feet. • Cleaning and disinfection: Follow standard CDC practices for cleaning and disinfection. • Ventilation: Ensure that employer-owned or controlled existing HVAC systems are used properly and fitted with MERV 13 or higher filters if possible. • Health screening and medical management: 1. Screen employees for COVID-19 symptoms before each workday and shift. 2. Require each employee to promptly notify the employer if the employee is COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms. 3. Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive. 4. Follow requirements for removing employees from the workplace if the employee has or is suspected to have COVID-19. 5. For employers with more than 10 employees, provide medical removal protection benefits to workers who must isolate or quarantine. Of note, these benefits include paid leave in an amount up to $1,400 per week. • Vaccinations: Provide reasonable paid time off for COVID-19 vaccinations and vaccine side effects.

Written by Benjamin A. Shepler & Michael C. Griffaton

• Training: Ensure all employees receive training on the ETS and COVID-19. • Recordkeeping: Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 and follow requirements for making records available to employees/ representatives. Note that this log must contain all employee COVID-19 cases, not just cases where occupational exposure is suspected. • Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA. • Anti-Retaliation: Inform employees of their rights to the protections required by the ETS and do not retaliate against employees for exercising their rights under the ETS. What about vaccinated employees? The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements only when those employees are in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. Unfortunately, the ETS does not provide any guidance on how

that should be determined. In related explanatory guidance, OSHA lists administrative offices, break rooms, and meeting areas as potential spaces where the exemption could apply. When is the ETS effective? The ETS is effective immediately upon publication in the Federal Register. Employers must comply with most provisions within 14 days, and with provisions involving physical barriers, ventilation, and training within 30 days. OSHA has indicated that it will utilize enforcement discretion for employers who are making a good faith effort to comply with the ETS. What about state requirements? OSHA State Plan states with their own COVID-19 rules (i.e. California, Michigan, Oregon, and Virginia) must show that their standards are “at least as effective” as the new ETS or amend their standards to meet that threshold. Will there be further changes to the ETS? Probably. OSHA says that it will update the ETS as needed as more of the workforce and the general population become vaccinated and the pandemic continues to evolve. Additionally, there is the possibility of litigation challenging whether OSHA properly issued these regulations under its emergency rule making authority.

Q2 2021 / 7


Illinois Supreme Court Clarifies “Arising out of” Analysis in McAllister v. Illinois Workers’ Compensation Commission

Introduction Work injuries come in all shapes and sizes. Slips, trips and falls. Injuries while lifting a heavy box. Injuries while lifting overhead. Injuries due to defective equipment. Injuries due to operator error while using brand new equipment. And injuries caused by what would be considered common bodily movements and everyday activities, such as bending, twisting, turning, running, walking. No matter the nature of the cause of the injury, such cause must have arose out of and in the course of employment to be considered a compensable work accident or injury.

The concept of an accident having to “arise out of and in the course of” one’s employment in order to be found compensable is a universal tenet of workers’ compensation law. As stated by Professor Arthur Larson: “The right to compensation benefits depends on one simple test: was there a work-connected injury? Negligence, and, for the most part, fault, are not in issue and cannot affect the result. Let the employer’s conduct be flawless in its perfection, and let the employee’s be abysmal in its clumsiness, rashness and ineptitude: if the accident arises out of and in the course of the

8 / N ATIO NAL CO UNC I L OF S E LF -I N S U R E RS’

employment, the employee receives his award. Reverse-the positions, with a careless and stupid employer and a wholly innocent employee: the same award issues. Thus, the test is not the relation of an individual’s personal quality (fault) to an event, but the relationship of an event to an employment.” Arthur Larson, Nature and Origins of Workmen’s Compensation, 37 Cornell L. Rev. 206 (1952), p. 208. The “arising out of” element concerns the question of causation, whereas the “in the course of” element concerns the question of time, place and circumstances of the injury in question. It is not an either/or proposition: an injured employee must (among other things) prove that the accident in question both “arose out of” the employment and occurred “in the course of” employment. A body of case law has developed in Illinois over the years concerning the “arising out of” element. The courts have noted “it must be shown 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. v.


Written by: James M. Byrnes & Zachary M. March, Ganan & Shapiro, P.C.

Industrial Comm’n, 207 Ill. 2d 193, 203 (2003), citing Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill.2d 52, 58 (1989). In addition, it has been noted that there are three categories of risk to which an employee may be exposed: “(1) risks distinctly associated with the employment; (2) risks personal to the employee; and (3) neutral risks which have no particular employment or personal characteristics.” Illinois Institute of Technology Research Institute v. Industrial Comm’n, 314 Ill. App. 3d 149, 162 (2000). Recognizing the three distinct categories of risk, the question then becomes how to define each category. In the Caterpillar Tractor decision, the Illinois Supreme Court defines the employment risk as involving one of three possible circumstances: “Typically, 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.” Caterpillar Tractor Co., 129 Ill. 2d at 58 (emphasis added). Contrarily, risks personal to the employee are just like they sound: an idiopathic condition, a nonoccupational disease or “injuries caused by personal infirmities such as a trick knee, and injuries caused by personal enemies….” Illinois Institute of Technology Research Institute, 314 Ill. App. 3d at 162-63. “Injuries resulting from personal risks generally

do not arise out of employment. An exception to this rule exists when the work place conditions significantly contribute to the injury or expose the employee to an added or increased risk of injury.” Rodin v. Industrial Comm’n, 316 Ill. App. 3d 1224, 1229 (2000). The third category of risk, neutral risk, has no particular employment or personal characteristics. Injuries caused by a neutral risk are generally considered non-compensable, unless the employee was exposed to the neutral risk in question to a greater degree than the general public. “Such an increased risk may be either qualitative, such as some aspect of the employment which contributes to the risk, or quantitative, such as when an employee is exposed to a common risk more frequently than the general public.” Metropolitan Water Reclamation District of Greater Chicago v. Illinois Workers’ Compensation Comm’n, 407 Ill. App. 3d 1010, 1014 (2011). Over the years, the appellate courts in Illinois developed two distinct lines of thought when dealing with accidents arising out of common bodily movements. One line of thought states that claims involving common bodily movements and everyday activities should be analyzed per Caterpillar Tractor and if the accident fit within one of the three categories set forth in that case, there is no requirement to engage in an additional neutral-risk analysis. A second line of thought treated such accidents as inherently neutral risks,

with such injuries only considered compensable if claimant can prove the employment increased the risk either qualitatively or quantitatively. It was under these circumstances in which the case of McAllister v. Illinois Workers’ Compensation Commission 2020 IL 124848 (2020) came before the Illinois Supreme Court. The court accepted this case in order to resolve the conflict between these two competing lines of thought which had developed in the lower courts. Facts The claimant, Kevin McAllister, worked as a sous chef for the employer, North Pond Restaurant. As a sous chef, his duties included checking orders, arranging the restaurant’s walk-in cooler, making sauces, and preparing and cooking food. At the time of the accident, claimant was voluntarily helping another cook look for misplaced carrots, he knelt down to check the shelves in the walk-in cooler, and while standing up from kneeling on the floor he felt pain in his knee, which ultimately required surgical repair. Notably, he did not have anything in his hands as he stood up. On cross-examination, the claimant agreed his position on the floor was similar to the position he would be in if looking for something under his bed. He did not notice any cracks in the floor, did not trip over anything or strike his knee on anything. He simply stood from a kneeling position and felt his right knee “pop” and “lock up.”

Q2 2021 / 9


Procedural History After considering the trial testimony and evidence presented by the parties, the arbitrator found claimant sustained a compensable work-related injury which arose out of his employment. In finding the injury compensable, the arbitrator reasoned looking for carrots in the walk-in cooler constituted an act the employer reasonably could have expected claimant to perform in order to perform his usual work duties. On review, the Commission reversed the arbitrator’s ruling and determined the accident was not compensable as it did not arise out of his employment. In reaching their decision, the Commission determined the activity claimant was performing at the time he felt pain in his knee (standing from a kneeling position) constituted a neutral risk which had no particular employment or personal characteristics. The Commission found the neutral risk of standing up was not qualitatively or quantitatively increased by the employment. On appeal, the circuit court affirmed the Commission’s decision, and the appellate court affirmed the circuit court and Commission decisions. The majority for the appellate court stated, “The risk posed to claimant…while looking for something that had been misplaced by a co-worker was arguably not distinctly related to his employment.” McAllister, 2019 IL App (1st) 162747WC, ¶73. The majority applied the test set forth in Caterpillar Tractor and found searching for carrots misplaced by a co-worker did not fall under any of the three employment-related categories. The court further found

the Commission’s decision the accident constituted a neutral risk with no particular employment characteristics was not against the manifest weight of the evidence. Citing to Adcock v. Illinois Workers’ Compensation Comm’n, 2015 IL App (2d) 130884WC, Justices Holdridge and Hoffman stated in their special concurrence that even in situations where the activity is directly related to the claimant’s job duties, if the injury is caused by an “everyday” activity, the courts must apply a quantitative analysis and determine whether claimant was required to perform the activity to a greater degree than the general public. 2019 IL App (1st) 162747WC, ¶80-81. The claimant thereafter filed a petition for leave to appeal to the Supreme Court, which the court granted. Supreme Court Analysis The Supreme Court began its analysis by recognizing that in order to satisfy the “arising out of” requirement, “it must be 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.” McAllister, 2020 IL 124848, ¶36. The court further states: “A risk is incidental to the employment when it belongs to or is connected with what the employee has to do in fulfilling his or her job duties.” Id. The next step in the analysis was to set forth the three categories of risk, as noted above. The court explained the differences between employment risks, risks personal to the employee and neutral risks. Id., ¶¶ 39-44. After laying out the three recognized categories of risk, as

1 0 / NATIO NAL CO UNCI L OF S E LF -I N S U R E RS’

set forth Caterpillar Tractor Co., the court noted the first step in the risk analysis is to determine whether the claimant’s injury arose out of an employment-related risk. Id., ¶ 46. A risk is distinctly associated with employment if, at the time of the occurrence, the employee was performing: (1) acts he or she was instructed to perform by the employer; (2) acts he or she 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. Id. The Supreme Court, in applying the Caterpillar Tractor test, held the claimant’s injury arose out of an employment-related risk because “evidence establishes that at the time of the occurrence his injury was caused by one of the risks distinctly associated with his employment as a sous-chef.” Id., ¶ 47. The court reasoned an employee who sustains an injury while rendering reasonably needed assistance to a coworker in furtherance of the employer’s business is considered to have sustained an injury arising out of their employment. Id., ¶ 48. The court further reasoned, as one of Petitioner’s job duties was to arrange the walk-in cooler, he had a duty to find misplaced food; as such, he was performing an act in fulfillment of his duties. Id., ¶ 50. Turning to the question as to whether additional analysis is required for those injuries which arise out of common bodily movements or everyday activities, the court stressed the test set forth in Caterpillar Tractor is still the law of the land: “If it is established that the risk of injury falls within one of the three


categories of employment-related acts delineated in Caterpillar Tractor – risks that are distinctly associated with employment – then it is established that the injury ‘arose out of’ the employment.” Id., ¶ 60. The court cited to various decisions which involved such activities as twisting while assisting a nursing home resident (Autumn Accolade v. Illinois Workers’ Compensation Comm’n, 2013 IL App (3d) 120588WC), and twisting and running to pursue a student running down a hallway (O’Fallon School District No. 90 v. Industrial Comm’n, 313 Ill. App. 3d 413 (2000)). The court also stressed that once it has been determined an accident falls within one of the three employmentrelated categories, the claim is compensable and that is the end of the analysis. It is not necessary to thereafter proceed to a neutral risk analysis: “Caterpillar Tractor does not require a claimant to provide additional evidence establishing that he was exposed to the risk of injury, either qualitatively or quantitatively, to a greater degree than the general public, once he has presented proof that he was involved in an employmentrelated accident.” McAllister at ¶ 63. In fact, the Court went so far as to overrule the Adcock case and its progeny: “to the extent that they find that injuries attributable to common bodily movements or routine everyday activities, such as bending, twisting, reaching, or standing up from a kneeling position, are not compensable unless a claimant can prove he or she was exposed to a risk of injury from these common bodily movements or routine everyday activities to a greater extent than the general public.” McAllister at ¶ 64. In sum, a claim will be deemed to have arisen out of employment if the facts establish an employee sustained an accident at work while performing (1) acts he or she was instructed to perform by the employer; (2) acts he or she 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. No further analysis of the issue is required. Ramifications The McAllister decision does not really set forth a new method of analyzing the question of whether an accident “arises out of” employment. Rather, it reiterates the need to focus initially on the employment-related factors set forth in the Caterpillar Tractor case and dispenses with the line of cases which have held that additional analysis was required if the accident involves a common bodily movement or everyday activity. After McAllister, the starting point for answering the question of whether an accident “arises out of” employment begins with the Caterpillar Tractor analysis, even for those accidents which involve common bodily movements and everyday activities. The neutral risk analysis is now only to be applied if the risk of injury for a worker on the job does not fall within one of the three categories of employment-related acts delineated in Caterpillar. So, the first step is to apply the Caterpillar test to determine whether the employee was engaged in an employment-related activity at the

time of injury. If the answer is yes, the analysis is over and the accident arose out of employment. If the answer is no, the next step is to determine if the accident involved a personal or neutral risk. If a personal risk, the question turns on whether workplace conditions significantly contributed to the injury or exposed the employee to an added or increased risk of injury. If yes, the accident arose out of employment; if no, the claim did not arise out of employment and is not compensable. If the accident involves a neutral risk, the accident is generally not compensable unless the employment exposed the employee to such risk to a greater degree than the general public, either qualitatively or quantitatively. So, what’s old is new again. We can expect future litigation to focus on the three factors set forth in Caterpillar Tractor, a case that was decided 32 years ago. We should especially expect questions to turn on the third factor: acts which the employee might reasonably be expected to perform incident to his assigned duties. Answering the question of whether the employee was performing an activity at the specific direction of his employer, or whether the activity was required by common law or statute, involves a fairly straight-forward analysis.

Q2 2021 / 11


Whether the activity was “reasonably expected” to be performed is a trickier question. After all, the appellate court found the accident in McAllister to be non-compensable, as the employee was not directed by his employer to search for the carrots in question. The Supreme Court, however, ruled that under the circumstances, it was “reasonably expected” Mr. McAllister, as the sous chef responsible for arranging the restaurant’s walk-in cooler, would assist a co-worker in finding the missing carrots. After all, the carrots were intended to be served in a meal sold to a customer, thereby furthering the interest of the employer. Defending Illinois Claims in Light of McAllister Although Adcock has been overruled to the extent it found that injuries attributable to common bodily movements or other routine everyday activities are not compensable unless a claimant can prove he or she was exposed to a greater risk of injury than the general public, this does not automatically mean any injury that occurs at work will be compensable. For instance, activities considered to be horseplay, such as pranks, rough-housing or racing, are still considered not compensable, regardless of whether the injury occurred in the workplace. Same thing for assaults based on personal animus or a fight started by a claimant. Furthermore, if a claimant was not engaging in an employment-related activity at the time of the injury, personal risk and neutral risk defenses are still viable post-McAllister. In addition, even if an accident is found to arise out of and in the

course of employment, there is still the question as to medical causation. Was the mechanism of injury sufficient to cause the complained-of condition? Did the condition in question pre-date the accident? Or is the condition related to an idiopathic cause that was neither caused nor aggravated by the work accident? A claimant must still prove he or she not only sustained a work-related accident that arose out of and in the course of employment, but also the condition in question was caused by the accident from a medical perspective. The employer still has the right to present medical evidence to rebut any evidence presented by the claimant on that issue. Finally, the Supreme Court did not overrule Brady v. Louis Ruffolo & Sons, the case which specifically rejected the positional risk doctrine in Illinois. The court noted the mere fact that a claimant was present at the place of an injury because of his employment duties will not by itself suffice to establish that the injury arose out of the employment. Brady v. Louis Ruffolo & Sons Construction Company, 143 Ill. 2d 542 (1991), citing to State House Inn v. Industrial Commission, 32 Ill. 2d 160 (1965). Conclusion Overall, McAllister demonstrates the importance of context, as a claimant’s injury must be evaluated relative to the person’s job duties, and underscores the importance of performing a thorough investigation into all (and especially questionable) claims. An employer should establish a protocol for reporting and investigating accidents, and this protocol should be communicated to all employees and enforced by all management personnel.

1 2 / NATIO NAL CO UNCI L OF S E LF -I N S U R E RS’

This protocol should include, where possible: • A written or recorded statement from the claimant as to the who, what, where and why of the accident (e.g. what activity were they were performing at the time and why they were performing the activity, were they directed by the employer to do perform the activity, or did they decide to “take matters into their own hands” and perform tasks beyond what they would typically be expected to perform); • Witness statements from coworkers or management, when possible; • Written job descriptions which are as specific as possible for each position; • Photographs of the scene of the accident; and (even better) • Video of the accident in question if available. Such information will go a long in way in determining whether in fact the accident in question falls within one of the three employmentrelated factors set forth in Caterpillar Tractor and reiterated in McAllister. And such investigation will both mitigate the liability and exposure in questionable claims and ensure those employees who unfortunately sustain an accident arising out of and in the course of employment are provided with the workers’ compensation benefits they are entitled to under the law.


June 12-15, 2022

Looking forward to seeing you in Scottsdale! NCSI 2022 Annual Conference program will kick off on Sunday, June 12, 2022, at the Hyatt Regency Scottsdale Resort & Spa at Gainey Ranch and will run through Wednesday morning. As in years past the conference will feature a blend of medical, administrative and legal topics. A copy of the program agenda will appear on the NCSI website later. The NCSI Annual Conference is a great opportunity to renew friendships, make new business acquaintances, network and enjoy the company of workers’ compensation professionals. It’s been too long since we have been together. Let’s reconnect in Scottsdale!

2022 Annual Conference

MARK YOUR CALENDARS