Neutral risk injuries have become a contentious topic in Illinois Workers’ Compensation law. In Illinois Senate Bill 12, the legislature attempted to codify recent trends that courts have taken by calling for an analysis of whether an injured worker’s employment quantitatively or qualitatively contributes to a neutral risk to determine a compensable injury. The First District Appellate Court of Illinois applied these factors in Noonan v. Illinois Workers’ Compensation Commission and determined that a neutral risk is compensable where the employee proves he was qualitatively or quantitatively exposed to the risk to a greater degree than the general public. Although the Noonan case denied compensability, it was still unclear whether the proposed legislation would aide a neutral risk defense.
As we previously discussed, it was anticipated that the proposed amendment may erode the neutral risk doctrine by requiring evidence of the frequency and duration a certain movement is performed; evidence which could create more questions of fact, and could hinge on the injured worker’s testimony. The appellate court again addressed the neutral risk doctrine in McAllister v. Illinois Workers’ Compensation Commission and limited when the doctrine should be applied through use of a qualitative or quantitative analysis.
In McAllister, the petitioner, a chef injured his right knee while looking for food ingredients in the employer’s cooler. The petitioner knelt down on both knees, stood back up, popped his right knee, and sustained a right knee medial meniscus tear requiring surgery. The employer denied the injury per the neutral risk doctrine. At trial, the arbitrator determined that the petitioner sustained an injury that arose out of the course of employment. The commission reversed, and found that the act of standing up after kneeling one time was a neutral risk, which had no particular employment characteristics and that the evidence failed to show that petitioner was exposed to a risk to a greater degree than the general public.
The circuit and appellate courts also affirmed the commission’s decision. The appellate court applied an employment risk analysis and determined that the petitioner did not establish that:
- He was instructed to perform the task that caused the injury.
- He had a duty to perform the task.
- The task was incidental to his assigned job duties.
However, the appellate court denied the commission’s contention that injuries sustained from everyday activities or common bodily movements such as kneeling, reaching, turning, bending, or squatting are categorically neutral risks. Although these activities are common to the general public or have neutral characteristics, they are subject to the aforementioned three prong employment risk analysis to determine causation. If an act falls within the employment risk criteria, it is a compensable injury and a neutral risk analysis should not be applied. The court reasoned that categorizing such activities as neutral risks would result in significant evidentiary issues. The court cited its neutral risk analysis in Noonan, and noted that requiring an employee to show that he was quantitatively or qualitatively exposed to an everyday activity or common movement more than the general public was too great an evidentiary burden.
The McAllister case used Noonan and controlling case precedent to limit the application of a neutral risk analysis. The court found that an employment risk analysis must be applied to everyday activities or common bodily movements. This requires further inquiry, consideration, and evidence of the nature of employment and an employee’s job duties to determine whether the seemingly neutral act itself is related to an employment risk. A neutral risk analysis should only be applied once it is determined that the act is not an employment-related risk. Thereafter, the defining factor for a neutral risk analysis is whether the employee was exposed to the activity to a greater degree than the general public.