Understanding what is and isn’t covered by Workers’ Compensation
By Mark Weissburg
What’s an accident? This might sound like a silly question, but it’s actually the subject of a great deal of case law. At the most basic level, the term “accident” encompasses anything that happens without design. It can also refer to an event which is unforeseen by the person to whom it happens. But in order for an accident to fall under the protections of the Illinois Workers’ Compensation Act it has to arise out of and in the course of the employment. What exactly this means will be discussed below. But before we get into the nitty gritty, I want to emphasize one thing. If your employer refuses to pay you benefits because they don’t think your accident qualifies under the Workers’ Compensation Act, find yourself a good Workers’ Compensation attorney and get their opinion. I’ve seen cases denied for good reasons, bad reasons, and no real reason at all.
Arising out of the employment
What does it mean for the injury to arise out of the employment? The case law focuses on whether there is a causal connection between the injury and the employment. In other words, is there some aspect of the employment that lead to or contributed to the accident? Many cases also discuss whether the injured worker was at an increased risk of being injured compared to the general public. So it’s not enough that you were injured while you were on the clock. There has to be some risk that you encounter as an employee that the general public is less likely to encounter.
The best way to understand the “arising out of” requirement is to read the case law that deals with the issue. Here are a few classic examples. (If the word “classic” brings to mind something that is old and boring, well, don’t say I didn’t warn you.)
1. The case of the crashing co-workers
Brooks v. Carter, 102 Ill.App.3d 635, 430 N.E.2d 566 (1st Dist. 1981). At the time of the accident, Rory Carter was pulling his car into the parking lot before beginning his work shift and Luke Brooks was leaving the parking lot after completing his work shift for the same employer. The parking lot was owned and operated by their employer. The court found that the accident was covered by the Workers’ Compensation Act. If an employee is exposed to a risk common to the general public, but to a greater degree than other persons by reason of his employment, the accidental injury is said to arise out of his employment.
Bear in mind, parking lot cases are all over the place, and the decisions are not always consistent. Nonetheless, the court in this case felt that—regardless of whether the employees were compelled to park in the lot—its use by them was certainly contemplated by the employer.
2. The case of the cranky carburetor and the runaway retainer pin
Orsini v. Industrial Commission, 117 Ill.2d 38, 509 N.E.2d 1005 (1987). Leonard Orsini worked as a car mechanic at the Wilmette Texaco service station. While awaiting the delivery of parts needed for the completion of a brake job he was performing for his employer, Orsini began to adjust the carburetor on his personal automobile, which was parked in one of Wilmette Texaco’s service bays. The engine in his car was running. Orsini was standing in front of his car, leaning over to adjust the carburetor, when the car suddenly lurched forward, pinning both of his legs between the car and a work bench. The accident fractured both of his femurs.
Throughout the six-year period Orsini had worked at Wilmette Texaco, his employer routinely permitted him to work on his personal automobile. On many of these occasions, he worked on his car during his normal 8 a.m. to 5 p.m. shift when business was slow or there was no station work to be done. On other occasions he would work on his car after he had completed the regular workday.
The court noted that an injury “arising out of” one’s employment may be defined as one which has its origin in some risk so connected with, or incidental to, the employment as to create a causal connection between the employment and the injury. For an injury to have arisen out of the employment, the risk of injury must be a risk peculiar to the work or a risk to which the employee is exposed to a greater degree than the general public by reason of his employment. 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. If the injury results from a hazard to which the employee would have been equally exposed apart from the employment, then it does not arise out of it.
The court noted that the risk of injury in repairing or working on one’s personal automobile is not ordinarily related or incidental to the duties for which he is employed, even though the work may be done on the employer’s premises. The risk of harm to Orsini was not increased by any condition of the employment. The injury came about solely as a result of a defect in Orsini’s own car—a missing retainer pin. The malfunction on Orsini’s car could have occurred anytime or anywhere, and only coincidentally occurred at the Wilmette Texaco service station. Orsini was not required to work on his personal automobile during working hours. Orsini’s car served no purpose relative to his employment duties at Wilmette Texaco.
Therefore, the court held that Orsini voluntarily exposed himself to an unnecessary danger entirely separate from the activities and responsibilities of his job, and was performing an act of a personal nature solely for his own convenience, an act outside of any risk connected with his employment. For that reason, the accident did not “arise out of” the employment, and was not compensable under Workers’ Compensation.
3. The case of Harold’s hot poker
Branch v. Industrial Commission, 95 Ill.2d 268, 447 N.E.2d 828, 829 (1983). Harold Branch worked for General Telephone Company. On the date of his accident he unlocked and pulled open his employer’s heavy metal door and removed his coat. A “hot poker” type pain hit him as he removed his coat.
The court noted that in order for the injury to be compensable there must be a showing that the cause is connected to the employment or incidental to it and that more is required than the fact of an occurrence at the employer’s place of work. The evidence showed Branch suffered a hot poker pain when he was in the process of removing his coat, an act that he would have performed no matter where he might be when he came in from the outside or upon returning home at the end of the day. Branch showed that this occurrence took place at work, but not that the cause of the injury was connected to his employment. It did not arise out of the employment, and therefore he did not have a compensable claim.
4. Additional issues regarding the “arising out of” standard
Two additional issues should be mentioned at this point. The first is the so-called “idiopathic fall.” Idiopathic means there is no known cause. So if you are walking down the stairs at work and suddenly fall, and there’s no defect in the stairs, nothing odd about them, no slippery surface, you may not have a compensable claim. The theory is that if the fall was idiopathic, then it did not arise out of the employment. It just happened. That might make sense in theory, but it certainly seems to go contrary to the remainder of Workers’ Compensation law. But keep in mind, if there is anything about the stairs that contributed to the fall, or anything about the employment that contributed, you most likely have a compensable claim. Don’t give up. If the work comp claim is denied, get an attorney.
Another important issue is psychological claims. If a claim is purely psychological, without any physical component, it can be difficult to show that it arose out of the employment. Read the Pathfinder case—which you can find in my book—for a start in understanding how psychological conditions can be related to the employment and the claim won. Getting legal help with this issue is a must.
I’ve thrown a lot of issues at you. The important concept to come away with here is that it’s not enough for an injury to happen at work. There has to be something about the employment that is connected to the accident and somehow caused it or placed the employee at greater risk than your average Joe. Or Josie. If you have an issue regarding whether your claim should be considered a work accident, please feel free to call me.
How to Win a Workers’ Compensation Claim in Illinois
This article is an excerpt from Mark Weissburg’s “How to Win a Workers’ Compensation Claim in Illinois”, which is available online at http://winworkerscomp.us/ and through Amazon.com. You can also pick up a free copy by making an appointment to see a qualified Workers’ Compensation attorney at Horwitz, Horwitz & Associates. Call 800-985-1819 for a free consultation and book today.