Illinois has recently proposed legislative reform to the Illinois Workers’ Compensation Act. The ultimate goal of the proposed legislation is to reduce costs of litigation and exposure for workers’ compensation injuries. While it is important to deliberate proposed legislation, it is also important to remember its impact is undecided. The following is an analysis of one particular proposed amendment regarding neutral risk, which may not meet the goals of legislative reform.
The proposed amendment, Illinois Senate Bill 12, attempts to provide more guidance regarding the neutral risk doctrine, but may actually create more ambiguity. The bill states, “Accidental injuries resulting from a neutral risk arise out of and in the course of the employment if the employment quantitatively or qualitatively contributes in any way to the neutral risk.” 820 ILCS 305/1(f) (Emphasis added). The Illinois legislature appears to seek more structure for neutral risk analysis by providing quantitative and qualitative factors for neutral risk analysis.
Under the Illinois Workers’ Compensation Act, an injured worker must show he sustained an injury that arose out of and in the course of employment. The injury must have its origin in some risk connected with the employment, creating a causal connection between the employment and the work injury. The category of neutral risks have no particular employment or personal characteristics. Neutral risks occur every day in the workplace whether it is falling while walking, reaching to retrieve a dropped object, tripping on sidewalk, or bending down to pick up an item. These risks are compensable where the action was necessary for the fulfillment of job duties and distinctly associated with employment. Neutral risk cases are extremely fact based and have varied results at trial and on appeal. This largely occurs because decisions at Arbitration or Commission levels may not have precedential authority and circuit and appellate courts have declined to follow those decisions.
The proposed amendment was illustrated in Noonan v. Illinois Workers’ Compensation Com’n, 2016 IL App (1st) 152300WC, where the First District Appellate Court of Illinois determined that the employee’s injury was not compensable. In Noonan, an employee was working at his desk to complete paperwork when he dropped his pen on the floor, reached to retrieve the pen, fell from his chair, landed on the palm of his right hand, and injured his arm. The court determined that this was a neutral risk because the incident was not “distinctly associated” with his employment. The court denied the accident and reasoned that a neutral risk is compensable only when the employee proves he was qualitatively or quantitatively exposed to the risk to a greater degree than the general public. The court determined the injury did not present a qualitative risk because there was no defect on the employer’s premises or with any of the work equipment that could have caused it. The injury did not present a quantitative risk because the employee could have injured himself in the same manner while completing a wholly personal task rather than a task required of his employment.
Although the Noonan case denied compensability, it is still unclear whether the proposed amendment would strengthen our defense of a neutral risk injury. The addition of qualitative and quantitative elements to a neutral risk assessment may erode the neutral risk doctrine and require an ad hoc analysis. Such an analysis would require evidence of the frequency and duration a certain movement was performed; evidence which could hinge on the injured worker’s testimony. We will continue to monitor the proposed