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McAllister v. The Illinois Workers' Compensation Commission

Court of Appeals of Illinois, First District, Workers Compensation Commission Division

March 22, 2019

KEVIN McALLISTER, Appellant,
v.
THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (North Pond, Appellee).

          Rehearing denied April 11, 2019

          Appeal from the Circuit Court of Cook County, No. 16-L-50097; the Hon. Ann Collins-Dole, Judge, presiding.

          Karolina M. Zielinska, of Elfenbaum Evers & Amarilio, P.C., of Chicago, for appellant.

          Jason D. Kolecke, of Hennessy & Roach, P.C., of Chicago, for appellee.

          Panel JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Hudson and Moore concurred in the judgment and opinion.

          OPINION

          HARRIS JUSTICE

         ¶ 1 Claimant, Kevin McAllister, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2014)), seeking benefits for a knee injury he sustained on August 7, 2014, while he was working as a sous chef for the employer, North Pond. Following a hearing, an arbitrator found that claimant sustained an accidental injury arising out of and in the course of his employment and awarded him temporary total disability (TTD) benefits, permanent partial disability (PPD) benefits, and medical expenses. Additionally, the arbitrator imposed penalties under sections 19(k) and 19(l) of the Act (id. § 19(k), (l)) and attorney fees under section 16 of the Act (id. § 16), finding the employer's prior refusal to pay TTD and medical expenses related to the August 7, 2014, work accident was dilatory, retaliatory, and objectively unreasonable.

         ¶ 2 The employer sought review of the arbitrator's decision before the Illinois Workers' Compensation Commission (Commission). The Commission, with one commissioner dissenting, found that claimant had failed to prove that his August 7, 2014, knee injury arose out of his employment and reversed the arbitrator's decision. Claimant appealed the Commission's decision to the circuit court of Cook County, which confirmed the Commission's decision.

         ¶ 3 This appeal followed.

         ¶ 4 I. BACKGROUND

         ¶ 5 Claimant worked for the employer as a sous chef. His job duties included checking orders, arranging the restaurant's walk-in cooler, making sauces, "prepping," and cooking.

         ¶ 6 On August 7, 2014, claimant was at work getting ready for service while the other restaurant employees were beginning to set up their stations. One of the cooks was looking for a pan of carrots he had cooked earlier in the day. Claimant testified that the cook was "busy doing other things" and claimant "had some time," so claimant began looking for the carrots. Claimant began his search in the walk-in cooler because that was where the cook said he had put the carrots. He checked the top, middle, and bottom shelves in the cooler, but he was unable to locate the carrots. Claimant testified that he then knelt down on both knees to look for the carrots under the shelves because "sometimes things get knocked underneath the shelves *** on[to] the floor." He did not find anything on the floor. As claimant stood back up, his right knee "popped" and locked up, and he was unable to straighten his leg. He "hopped" over to a table where he stood "for a second," and then hopped another 20 or 30 feet to the office where he told his boss about the injury.

         ¶ 7 During cross-examination, claimant testified that he was not carrying or holding anything when he stood up from a kneeling position and injured his knee. Nothing struck his knee or fell on his knee. He did not trip over anything, and he noticed no cracks or defects on the floor. Although claimant testified that it was "always wet" in the walk-in cooler, he did not notice "anything out of the ordinary" at the time of his injury. He did not claim that he slipped on a wet surface. Rather, he was simply standing up from a kneeling position when he felt his knee pop. Claimant agreed that the kneeling position he assumed while looking for the carrots was similar to the position he would be in while "looking for a shoe or something under the bed."

         ¶ 8 Shortly after the accident, the employer's general manager took claimant to the emergency room (ER) at St. Joseph's Hospital. Claimant reported experiencing a pop in his knee and a sudden onset of right knee pain after rising from a kneeling to standing position. After taking X-rays and evaluating claimant, the ER physicians assessed claimant as suffering from right knee pain and a possible ligamentous injury. They provided claimant with crutches and an Ace bandage and advised him to follow up with an orthopedic doctor and obtain a magnetic resonance imaging (MRI) scan.

         ¶ 9 On August 11, 2014, claimant saw Dr. David Garelick, an orthopedic surgeon at the Illinois Bone and Joint Institute. Dr. Garelick noted that he had surgically repaired the medial meniscus of claimant's right knee approximately one year earlier, on August 26, 2013. The doctor noted that claimant was doing well following that surgery until August 7, 2014, when he reinjured his right knee while standing up from a squatting position. Dr. Garelick diagnosed a possible recurrent medial meniscus tear of the right knee and ordered an MRI of that knee.

         ¶ 10 Two days later, an MRI was performed on claimant's right knee. The MRI showed a low-grade injury of the ACL without any complete disruption. There was also a bucket-handle tear of the medial meniscus and moderate knee joint effusion. Dr. Garelick opined that the recent MRI showed a re-tear of medial meniscus consistent with a bucket-handle medial meniscus tear. He recommended surgery.

         ¶ 11 On August 15, 2014, Dr. Garelick performed an arthroscopy and a partial medial meniscectomy on claimant's right knee. Dr. Garelick removed approximately 80% of claimant's medial meniscus because he concluded that the meniscal tear was not repairable. The postsurgical diagnosis was a bucket-handle medial meniscal tear of the right knee.

         ¶ 12 After the surgery, Dr. Garelick prescribed medication and physical therapy. Claimant testified that he attended only four of eight therapy sessions because therapy was expensive and he had to pay out of pocket, and because he was already familiar with the exercises from undergoing physical therapy in the past.

         ¶ 13 On September 15, 2014, Dr. Garelick released claimant to work without restrictions. He discharged claimant from care one week later. Claimant did not return to Dr. Garelick or to any other doctor for further treatment to his right knee.

         ¶ 14 As a result of the accident and his subsequent surgery, claimant was taken off work from August 8, 2014, until September 15, 2014, and he incurred $10, 454.25 in medical expenses. Claimant paid out of pocket for his surgery, medication, and physical therapy. The employer took the position that claimant's right knee injury did not arise out of his employment, and it refused to pay claimant TTD benefits or medical expenses.

         ¶ 15 Claimant returned to work on September 15, 2014, and was working at the time of the arbitration hearing. He testified that he typically worked no more than 10 hours per day but that he sometimes worked up to 16 hours. His job required him to stand for all but one hour of each workday. Claimant's right leg felt sore and achy at times, and he sometimes experienced sharp pain after working all day. His leg felt sore after work. Claimant took Ibuprofen or aspirin for his pain three or more days per week.

         ¶ 16 The arbitrator found claimant sustained an accidental injury arising out of and in the course of his employment on August 7, 2014. She determined claimant was injured due to an employment-related risk because he "was injured while performing his job duties, i.e., looking for food products to prepare the food for service that evening." The arbitrator found that "[t]he act of looking for a food product was an act that the employer might reasonably have expected [claimant] to perform so that he could fulfill his assigned duties as a sous chef." She also found that claimant's current condition of ill-being was causally related to the work-related injuries he sustained on August 7, 2014, and awarded him TTD benefits, PPD benefits, and medical expenses. As stated, the arbitrator further imposed penalties under sections 19(k) and 19(l) of the Act and awarded claimant attorney fees under section 16 of the Act.

         ¶ 17 The employer sought review of the arbitrator's decision before the Commission. Ultimately, the Commission reversed, finding claimant failed to prove that he sustained an accidental injury arising out of his employment. It determined claimant's injury did not result from an employment-related risk as claimant was injured after "simply standing up after having kneeled one time" and such activity "was not particular to [claimant's] employment." The Commission, instead, found that claimant had been subjected to a neutral risk, "which had no particular employment or personal characteristics." Further, it found that the evidence failed to show that claimant was exposed to that neutral risk to a greater degree than the general public. Thus, it determined claimant was not entitled to compensation under the Act. On judicial review, the circuit court of Cook County confirmed the Commission's decision.

         ¶ 18 This appeal followed.

         ¶ 19 II. ANALYSIS

         ¶ 20 On appeal, claimant argues that the Commission erred in finding that he failed to prove that he sustained an accidental injury arising out of his employment.

         ¶ 21 As an initial matter, the parties dispute the standard of review that should govern our analysis. Claimant argues that we should review the Commission's decision de novo because the relevant facts are undisputed and susceptible to only one reasonable inference. The employer contends that the undisputed facts give rise to multiple reasonable inferences. Thus, the employer argues that we should affirm the Commission's decision unless it is against the manifest weight of the evidence. We agree with the employer.

         ¶ 22 "Whether a claimant's injury arose out of or in the course of his employment is typically a question of fact to be resolved by the Commission, and the Commission's determination will not be reversed unless it is against the manifest weight of the evidence." Kertis v. Illinois Workers' Compensation Comm'n, 2013 IL App (2d) 120252WC, ¶ 13, 991 N.E.2d 868. "However, when the facts are undisputed and susceptible to but a single inference, the question is one of law subject to de novo review." Suter v. Illinois Workers' Compensation Comm'n, 2013 IL App (4th) 130049WC, ¶ 15, 998 N.E.2d 971.

         ¶ 23 In this case, the facts relating to the circumstances and mechanics of claimant's injury are undisputed, i.e., the parties agree that claimant injured his right knee at work while standing up from a kneeling position after looking for a missing pan of carrots in the walk-in cooler. However, those undisputed facts were subject to more than a single inference. Specifically, the facts could support different inferences as to whether looking for the misplaced carrots was required by or incidental to claimant's job duties. The facts could also support different inferences as to whether the risk of injury that claimant confronted at the time of his injury was peculiar to or enhanced by his employment. Accordingly, we review the Commission's decision under the manifest weight of the evidence standard. See Young v. Illinois Workers' Compensation Comm'n, 2014 IL App (4th) 130392WC, ¶ 18, 13 N.E.3d 1252 (applying a manifest weight standard of review where the facts presented were subject to more than a single inference as to whether the claimant's act of reaching into a box was "one to which the general public was equally exposed or whether claimant was exposed to an increased risk by reaching beyond normal limits by virtue of his employment"). 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, 591 N.E.2d 894, 896 (1992).

         ¶ 24 We now turn to the merits of claimant's argument. 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 305/1(d) (West 2014). Both elements must be present to justify compensation. First Cash Financial Services v. Industrial Comm'n, 367 Ill.App.3d 102, 105, 853 N.E.2d 799, 803 (2006). In the present case, the parties do not dispute that 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.

         ¶ 25 The requirement that the injury arise out of the employment concerns the origin or cause of the claimant's injury. Sisbro, Inc. v. Industrial Comm'n, 207 Ill.2d 193, 203, 797 N.E.2d 665, 672 (2003). 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, 212 N.E.2d 882, 885 (1995). Rather, "[t]he '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, 207 Ill.2d at 203.

         ¶ 26 After determining the mechanism of a claimant's injury (which is undisputed in this case), 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 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, 881 N.E.2d 523, 527 (2007); see also Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill.2d 542, 552, 578 N.E.2d 921, 925 (1991) (noting that "neutral" in workers' compensation terms means "neither personal to the claimant nor distinctly associated with the employment" (internal quotation marks omitted)).

         ¶ 27 "Injuries resulting from a risk distinctly associated with employment, i.e., an employment-related risk, are compensable under the Act." Steak 'n Shake v. Illinois Workers' Compensation Comm'n, 2016 IL App (3d) 150500WC, ¶ 35, 67 N.E.3d 571. "Risks are distinctly associated with employment when, at the time of injury, '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.'" Id. (quoting Caterpillar Tractor Co. v. Industrial Comm'n, 129 Ill.2d 52, 58, 541 N.E.2d 665, 667 (1989)); see also The Venture-Newberg-Perini, Stone & Webster v. Illinois Workers' Compensation Comm'n, 2013 IL 115728, ¶ 18, 1 N.E.3d 535 (stating the supreme court "has found that injuries arising from three categories of acts are compensable: (1) acts the employer instructs the employee to perform; (2) acts which the employee has a common law or statutory duty to perform while performing duties for his employer; (3) acts which the employee might be reasonably expected to perform incident to his assigned duties"). "A risk is incidental to the employment when it belongs to or is connected with what the employee has to do in fulfilling his duties." Orsini v. Industrial Comm'n, 117 Ill.2d 38, 45, 509 N.E.2d 1005, 1008 (1987).

         ¶ 28 Alternatively, neutral risks-risks that have no particular employment characteristics- "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." Metropolitan Water Reclamation District of Greater Chicago v. Illinois Workers' Compensation Comm'n, 407 Ill.App.3d 1010, 1014, 944 N.E.2d 800, 804 (2011). "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 the employee is exposed to a common risk more frequently than the general public." Id.; see also Campbell "66" Express, Inc. v. Industrial Comm'n, 83 Ill.2d 353, 357, 415 N.E.2d 1043, 1045 (1980) (finding the Commission could reasonably conclude from the evidence presented "that the necessity for a truck driver to be on the highway at all times of the day and night, and in all kinds of weather, subjected the claimant *** to a greater risk of injury from [a] tornado than that to which the general public in that vicinity was exposed"); Chmelik v. Vana, 31 Ill.2d 272, 280, 201 N.E.2d 434, 439 (1964) (stating that "[t]he regular and continuous use of the parking lot by employees, most particularly at quitting time when there is a mass and speedy exodus of the vehicles on the lot, would result in a degree of exposure to the common risk beyond that to which the general public would be subjected").

         ¶ 29 When categorizing risk, the "first step *** is to determine whether the claimant's injuries resulted from an employment-related risk." Steak 'n Shake, 2016 IL App (3d) 150500WC, ¶ 38. "[W]hen 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." Young, 2014 IL App (4th) 130392WC, ¶ 23.

         ¶ 30 Here, the Commission determined claimant was not injured as the result of an employment-related risk. That finding is supported by the record and an opposite conclusion from that reached by the Commission is not clearly apparent.

         ¶ 31 The record shows claimant worked for the employer as a sous chef. His job duties included checking orders, arranging the employer's walk-in cooler, making sauces, "prepping," and cooking. Claimant was injured as he stood up from a kneeling position after volunteering to look for a misplaced pan of carrots for a coworker. However, he did not establish that he was instructed to perform, or that he had a duty to perform, that particular activity. Further, it does not appear the activity was incidental to his employment, in that it was not necessary to the fulfillment of his specific job duties. Ultimately, it was for the Commission to decide whether the risk to which claimant was subjected was incidental to his work for the employer. In this instance, the record was such that the Commission could properly find that the risk to claimant was too far removed from the requirements of his employment to be considered an employment-related risk. We find no error in the Commission's determination that the activity at issue had no particular employment characteristics and, therefore, claimant was not injured as the result of an employment-related risk.

         ¶ 32 Next, the Commission did characterize the risk to which claimant was exposed as a neutral risk; however, it also found that claimant failed to establish that he was exposed to that neutral risk to a greater degree than the general public and, therefore, his injury was noncompensable. Again, the record contains support for that decision, and an opposite conclusion is not clearly apparent.

         ¶ 33 Claimant testified that he was not carrying or holding anything when he stood up from a kneeling position and injured his knee. Nothing struck his knee or fell on his knee. Claimant did not trip over anything, and he did not notice any cracks or defects in the floor. Although claimant testified that it was "always wet" in the walk-in cooler, he did not notice "anything out of the ordinary," and he did not claim that he slipped on a wet surface. Rather, he was simply standing up from a kneeling position when he felt his knee pop. Claimant agreed that the kneeling position he assumed while looking for the carrots was similar to the position he would be in while "looking for a shoe or something under the bed." Ultimately, claimant failed to establish that his employment increased or enhanced his risk of injury in any way. See Caterpillar Tractor, 129 Ill.2d at 62-63 (finding the claimant, who was injured while traversing a curb to reach his vehicle, was subjected to a noncompensable neutral risk); Noonan v. Illinois Workers' Compensation Comm'n, 2016 IL App (1st) 152300WC, ¶ 30, 65 N.E.3d 530 (finding the claimant was not exposed to the neutral risk of reaching to retrieve a dropped pen to a greater degree than the general public); Dukich v. Illinois Workers' Compensation Comm'n, 2017 IL App (2d) 160351WC, ¶ 36, 86 N.E.3d 1161 (denying compensation where the claimant, who fell on pavement that was wet from rainfall, presented no evidence suggesting her employment duties contributed to her fall or enhanced her risk of slipping).

         ¶ 34 We hold the Commission's determination that claimant failed to show that his injury arose out of his employment was not against the manifest weight of the evidence. Although that holding is dispositive of claimant's appeal, we take this opportunity to address the special concurrence's contention that only a neutral-risk analysis should govern claims like the one in the case at bar, i.e., those that involve "everyday activities" or common bodily movements. For the reasons that follow, we find that proposition of law is flawed and reject its application in both this case and those cases that are similarly situated.

         ¶ 35 As support for its contention, the special concurrence relies heavily on this court's decision in Adcock v. Illinois Workers' Compensation Comm'n, 2015 IL App (2d) 130884WC, 38 N.E.3d 587. There, the claimant welded locks while seated on a rolling chair. Id. ¶ 3. "He stated that his job required nonstop movement in the chair, including moving back and forth along the length of [his] workstation and swiveling from one point to another." Id. ¶ 13. Ultimately, the claimant injured his left knee as he attempted to turn his chair and his body to perform a welding task. Id. ¶ 3. The Commission denied the claimant benefits under the Act, finding his injury did not arise out of his employment as 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.'" Id. ¶ 20.

         ¶ 36 On review, a divided panel of this court characterized the mechanism of the claimant's injury-turning in a chair-as "an activity of everyday life." Id. ¶ 33. Further, it held the claimant's risk of injury was not one that was distinctly associated with his employment but, instead, "a neutral risk of everyday living faced by all members of the general public." Id. As a result, to obtain compensation, the claimant had to show that he was exposed to that neutral risk to a greater degree than the general public. Id. In the end, the majority held the claimant made such a showing by presenting evidence that his job "required him to turn in a chair more frequently than members of the general public while under time constraints" and reversed the Commission's decision. Id. ¶ 34.

         ¶ 37 In reaching its decision, the Adcock majority set forth the following proposition of law:

"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 ...

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