Captain Caterpillar: The Final Word on McAllister

October 2020

By: Rachel E. Smith

A workers’ compensation case concerning carrots, coworkers, and common courtesy, Kevin McAllister’s claim for benefits sent the Illinois courts down a path of self-reflection when considering whether injuries involving common bodily movements arise out of employment.

On August 7, 2014, Kevin McAllister was preparing for the dinner rush at North Pond Restaurant, where he worked as a sous-chef. Part of his process was arranging the restaurant’s walk-in cooler, making sauces, and prepping food items; so, when a co-worker mentioned misplacing a pan of carrots in the walk-in cooler, Mr. McAllister offered help. He thoroughly checked the walk-in cooler, finally kneeling down to search under the shelves. When he stood up, there was a “pop” and his knee “locked up.” He hopped over to a table to try and straighten his leg, failed, and was taken to the emergency room. After presenting his claim for benefits, the Arbitrator found that the injury arose out of his employment, as the act of looking for the carrots in the walk-in was one the employer reasonably could have expected him to perform in order to fulfill his duties as a sous-chef. The Arbitrator found Mr. McAllister’s position so clear and convincing, that it rendered the Respondent’s refusal to pay benefits dilatory, retaliatory, and objectively unreasonable, warranting the imposition of penalties and attorney’s fees, in addition to awarding TTD, PPD, and medical benefits.

On appeal, the Commission set aside the Arbitrator’s decision, finding in favor of the employer, who argued that the act which gave rise to the injury was simply that of standing up from a kneeling position, one time, rather than the carrot pan search. As such, the employer argued that Mr. McAllister had been exposed to a neutral risk, and had failed to establish that his employment exposed him to that risk to a greater degree than the general public, thereby precluding recovery. On Mr. McAllister’s appeals, both the Circuit Court of Cook County and the Appellate Court agreed with the neutral risk assessment and the Commission’s decision denying recovery. The Appellate Court majority applied the Caterpillar Tractor risk test, but determined that the risk posed from the act of standing from a kneeling position while looking for something misplaced by a coworker was arguably not distinctly related to Mr. McAllister’s employment, and therefore neutral in nature. In a special concurrence, two justices argued for the proposition that the Adcock case imposes a requirement that the neutral risk analysis be automatically enlisted when an injury arises from an everyday activity, even if the activity is directly related to the employment duties.

The Supreme Court of Illinois (the Court) granted the petitioner’s leave to appeal, and its decision addresses three issues raised by the specific facts in question and the judgments and opinions rendered by the lower courts. In addressing whether the Commission’s finding was against the manifest weight of the evidence, the Court demonstrated the proper approach for determining whether a claimed injury arises out of the claimant’s employment, while simultaneously commenting on the detrimental impact to business interests which would inevitably flow from discouraging cooperative work environments. Following this analytical process and the resulting decision, the Court addressed the conflicting case law cited by the lower courts, and firmly established the applicable method by which risk should be analyzed in determining whether an accidental injury involving common bodily movements arises out of a claimant’s employment.

On September 24, 2020 the Court filed its decision and held the Commission’s finding to be against the manifest weight of the evidence, reversed its decision and the judgments of the lower courts, and remanded the case with directions. Kevin McAllister v. The Illinois Workers' Compensation Commission et al.

To reach this conclusion, the Court looked carefully at the facts presented at arbitration, particularly concerning Mr. McAllister’s reported work duties and the activity he was performing at the time of injury. The Court’s decision turns on Mr. McAllister’s testimony that his job duties included “arranging the restaurant’s walk-in cooler.” The Court found that the petitioner’s responsibility for the arrangement of the walk-in cooler created a duty to locate food therein, and that the acts which caused his injury (kneeling on the floor of the walk-in cooler to look for food and then standing up from that position), were risks incidental to his employment because his employer might reasonably expect him to perform such acts in fulfilling his assigned job duties as a sous-chef.

The Court first determined the type of risk to which Mr. McAllister was exposed. In so doing, the Court cited the three areas of risk recognized by case law as (1) those distinctly associated with the employment [employment risks]; (2) those personal to the employee [personal risks]; and those which have no particular employment or personal characteristics [neutral risks]. As it is understood that injuries which stem from employment risks “arise out of” employment, the preliminary step in evaluating the compensability of the claimed injury must be by determining whether Mr. McAllister was exposed to an employment risk. Accordingly, the Court looked to Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52 (1989), which established that a risk is distinctly associated with employment if, at the time of the occurrence, the employee was performing acts which (1) he was instructed to perform by the employer, (2) he had a common-law or statutory duty to perform, or (3) he might reasonably be expected to perform incident to his assigned duties.

In evaluating the type of risk to which Mr. McAllister was exposed, the Court notes that the Commission sided with the employer in its argument isolating the physical mechanism of injury from the act of looking for the carrots, by highlighting the fact that Mr. McAllister was searching for the carrots on behalf of another chef, rather than for himself. This distinction was the basis upon which the Commission categorized the risk to which Mr. McAllister was exposed, as neutral, lacking any specific employment or personal characteristics, rather than one distinctly associated with his employment duties.

The Court rejected the Commission’s distinction stating that “[i]t is generally recognized that an employee who sustains an injury while rendering reasonably needed assistance to a coworker in furtherance of the employer’s business is considered to have suffered an injury arising out of and in the course of employment when the act performed is within the reasonable contemplation of what the employee may do in the service of the employer.”McCallister pg 12¶ 48. More simply, the Court confirmed that activities undertaken in good faith by employees assisting one another in performing their individual work duties are considered to fall within the course of employment. The Court explained that to exclude from the protections of the Workers’ Compensation Act injuries arising from assistive conduct, would be contrary to the public interest as it would create situations where employers might seek to limit liability for such injuries by forbidding workers from assisting each other, undermining the benefits which flow from the collaborative efforts of all employees to act in furtherance of the employer’s overall business interests. 

Further, the Court wrote that “[t]o come within the statute, the employee need only prove that some act or phase of employment was a causative factor of the resulting injury.” McCallister pg 13¶ 52, citing County of Cook v. Industrial Comm’n. Here, the Court identified Mr. McAllister’s role in arranging the walk-in cooler as a clear employment duty. It further confirmed that assisting his co-worker in locating a missing tray of carrots in that walk-in was incidental to said duty, and that the combination triggered his initiation of the physical act (kneeling on the floor of the walk-in to search for the carrots and then standing up from that position) which gave rise to his injury. Accordingly, the Court found that at the time of injury, Mr. McAllister was performing a job-related task which was causally related and incidental to his assigned duties as a sous-chef. Because his knee injury resulted from exposure to an employment risk, it arose out of his employment and falls under the protections of the Act.

To determine whether the Commission’s finding was against the manifest weight of the evidence, the Court looked to the reasoning underlying its decision. While the Court is reluctant to reach such a conclusion, it “will not hesitate to do so when the clearly evident, plain, and undisputable weight of the evidence compels an opposite conclusion” In its analysis, the Court stated that because the record contained no evidence rebutting Mr. McAllister’s testimony that one of his job duties was to arrange food in the walk-in cooler, he had proven by a preponderance of the evidence that his injury arose out of and occurred while he was acting within the course of his employment. The Court disagreed with the Commission’s finding that Mr. McAllister’s knee injury resulted from his exposure to a neutral risk requiring additional analysis, finding instead that the evidence more clearly established that the risk to which he was exposed was employment specific. Accordingly, the Court held the Commission’s contrary finding to be against the manifest weight of the evidence. 

Following its decision on the McAllister facts, the Court goes on to address the general question of whether injuries which result from the performance of job duties involving common bodily movements or everyday activities, can be said to “arise out of” the employment, standing alone. The Court agreed with the Appellate Court majority’s opinion that such claims should be analyzed under the Caterpillar Tractor test, without engaging in an additional neutral-risk analysis. In so doing, the Court explicitly stated that such claims should automatically trigger analysis under the neutral-risk doctrine, permitting recovery under the Act only if it can be established that some element of employment increased the degree to which the claimant was exposed to the risk of injury, beyond that to which the general public is exposed. The Court formally overrules Adcock and its progeny “to the extent that they find that injuries attributable to common bodily movements or routine everyday activities, such as bending, twisting, reaching, or standing up from a kneeling position, are not compensable unless a claimant can prove that he or she was exposed to a risk of injury from these common bodily movements or routine everyday activities to a greater extent than the general public.” McCallister pg 18 ¶ 64.

The primary take away from the Court’s opinion in McAllister, is that Caterpillar Tractor is the captain of compensability in risk analysis. Regardless of the nature of the physical movement, the first step in evaluating whether an injury arose out of the employment must be to determine whether the employee was exposed to an employment risk, i.e. whether the risk of injury falls within one of the three categories of employment-related acts delineated in Caterpillar Tractor. If it is confirmed that the risk meets any of those three categorical requirements, the “arising out of” element has been met and no further analysis is required. However, if it is determined that the risk is not distinctly associated with the employment, i.e. does not fall under any of the three Caterpillar Tractor categories, then the risk must be assessed for personal characteristics. If no personal characteristics can be identified, then, and only then, should a neutral-risk analysis be undertaken. The additional burden imposed by Adcock, requiring the automatic application of a neutral-risk analysis for injuries involving common bodily movements and everyday activities, is improper and therefore overruled. Caterpillar Tractor prescribes the proper test for analyzing whether an injury “arises out of” a claimant’s employment.

Illinois Institute of Technology Research Institute v. Industrial Comm’n, 314 Ill. App. 3d 149, 162 (2000) to confirm that neutral risks include those unrelated to employment such as a stray bullet, dog bit, a bombing injury or a hurricane injury, it does not create a concrete list of what risks are automatically considered neutral for the purpose of excluding other kinds of similar risks. In the same vein, the Court overrules Adcock and its progeny, so it does not compel any special treatment for the list of common bodily movements or routine everyday activities that Adcock lists out (bending, twisting, reaching, or standing up from a kneeling position). Further, while the Court had every opportunity to specifically address injuries arising from an employee’s use of stairways and the impact its decision in McAllister should have on the approach that existing case law requires in evaluating such claims, the Court chose not to do so. Accordingly, the absence of any discussion of stairway claims within the McAllister decision may be taken to mean that the Court found no reason to disturb the existing case law and its generally accepted guidance for the treatment thereof. As such, we should continue to approach stairway claims in accordance with the existing guidance, which is directly in line with the McAllister decision, i.e. Caterpillar categorization of employment specific risk as the first step.

In practice, little has changed for how we approach this type of compensability question. The decision by the McAllister Court has not expanded the realm of compensability to automatically include injuries arising from common bodily movements; rather, the Court has simply stated that the involvement of a common bodily movement does not change the analytical process by which compensability should be determined. The first question remains, “was the employee exposed to an employment specific risk?” The Court’s decision provides that Caterpillar Tractor is the tool required in order to answer that question. Because there are three Caterpillar categories of employment activities, the Court’s decision here calls for a wider field of vision when considering the facts most relevant to evaluating the nature of the act being performed at the time of the occurrence. Increasing the level of detail and precision in defining specific job duties, and gathering as much factual information as possible about the period surrounding the injury, will better equip employers to either completely sever any potential ties to the employment duties, or significantly dilute or diminish those ties in such a way that inclusion of the act within any of the three Caterpillar categories would be, at the very least questionable. Remember, the McAllister Court does not steal the neutral risk analysis from our defensive tool belt, it simply instructs us on its proper use so we can avoid the detrimental impact that will result by rushing its application.

It is expected that the Supreme Court’s decision in McAllister will certainly impact the number of claims filed at the Illinois Workers’ Compensation Commission. The attorneys of Brady, Connolly & Masuda, P.C. are prepared to discuss this case and its implications with you in greater detail and answer any questions you may have.