|Life is a risk - embrace it, don't dispute it.|
It is amazing to me, though, how many states introduce fault as a concept. A recent Illinois appellate case is a prime example.
The Illinois Appellate Court last week ruled against an employer and said that a welder who injured his knee while pivoting on the wheeled stool he used at work was entitled to benefits.
The employer argued that using the stool was not a peculiar risk and that activities associated with "daily living" aren't supposed to be the subject of workers' compensation.
Illinois law provides that workers "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."
This is the "increased risk" doctrine that several other states embrace.
The "increased risk" test was the prevalent standard for compensation in the United States 40 years ago, but most states use "positional risk" standard, which applies a presumption that an injury "arises out of" employment if it occurs while the employee is at work. The reason is that the benefit of greatly reduced litigation outweighs the risk that once in a while a non-legitimate case gets through the system.
In Adcock v. Workers' Compensation Commission, Adcock injured his right knee on the job, and his doctor imposed limitations on his ability to twist, kneel, or walk extensively.
In order to accommodate his restrictions, Knaack, Adcock's employer, provided him with a wheeled stool so he could move about his workspace in a seated position. I have to commend Knaack for this proactive return to work accommodation.
Adcock said he was constantly moving along the length of the workstation on the stool, and swiveling from side-to-side, as he worked.
He said he was unable to maneuver the stool using his right leg because of his knee injury, so he always had to use his left leg to propel the chair.
Adcock said he felt his left knee "pop" while he was twisting towards his work station in May 2010. His doctors later determined he had torn the meniscus in his left knee.
The arbitrator determined this injury was compensable.
"Conducting welding duties from a rolling stool would simply not be a risk to which the general public would likewise be exposed," he opined.
The Workers' Compensation Commission reversed, finding "(t)he act of turning, even in a chair, is an activity of everyday life," so it was "a hazard to which the employee would have been equally exposed apart from the employment."
The Circuit Court judge upheld this decision, but the Appellate Court on Friday reversed, finding compensability.
Presiding Justice William Holdridge wrote for the majority.
He noted that the act of turning while in a seated position is "an activity of everyday life" which is regularly "faced by all members of the general public."
Thus, he said, it was not “distinctly associated” with the Adcock's employment, and an injury from engaging in this act would only be compensable if something about Adcock's job exposed him to a risk of harm that was greater degree than the risk faced by the general public.
Since Adcock performed his job duties under time constraints, and his job duties undisputedly required that he be constantly moving in his chair, Holdridge reasoned Adcock was moving the chair more frequently than members of the general public would, which increased his risk of injury "both quantitatively and qualitatively."
Under such circumstances, Holdridge said, Adcock clearly confronted a neutral risk of daily living to a greater degree than members of the general public by virtue of his employment.
The ruling comes at a unique time in Illinois work comp history as political activity is focused on a more refined attempt at amending the system. Business leaders want cheaper work comp insurance. Labor wants better protection. It seems both are losing right now.
I don't know the specific statistics, but my educated guess is that litigation is a major contributing cost factor to the Illinois system. Litigation arises out of disputes. One big dispute is whether or not an injury arises out of and occurs in the course of employment.
As I said, in most states, with rare exception (such as horseplay) if one gets hurt at work then benefits are due; i.e. "no fault."
A concurring opinion was written in the Adcock case, which I think explains why having any sort of "risk" qualification increases disputes, which thus increases costs.
As the concurrence noted, "almost everything we do at work, we can do at home," but the difference is at work, "you are doing what employer hired you to do," so an injury in the course of engaging in that activity should be compensable.
If Adcock's employer didn't want to take on the risk that he'd hurt himself using the stool, then it could just pay total disability benefits and let Adcock stay home, the concurring opinion stated. But the employer "asked him to come to work an tool around on the seat" doing as much work as he could despite his medical restrictions, and "they got what they bargained for."
It's too bad that Adcock got hurt during a work accommodation. Knaack did the right thing, and I can understand the frustration. But sometimes bad stuff happens. The goal of work comp gets defeated when fault is introduced, and the Illinois standard creates its own extraneous costs by creating disputes when none should exist.