“The Hand That Feeds Us”

April 2019

By: Steven L. Miller

The Illinois Appellate Court recently addressed the issue of whether an employee’s repetitive movement while on the job constituted an “accident” as defined by the Illinois Workers’ Compensation Act.

The petitioner, best described as a “waitress/trainer/manager” was, on a busy day at a restaurant chain, keeping the dining room clean and moving quickly to keep up with the flow of customers. Although she was a manager, she started bussing tables herself and carrying tubs of dirty dishes out of the dining room to help keep things tidy. She testified that she was “busy as all get out,” which Merriam-Webster defines as “to the utmost conceivable degree.” While swiftly wiping down a table, she felt and heard a loud “pop” in her right hand. The petitioner ultimately was off of work for over 2 1/2 years and underwent five surgeries to her hand/thumb. After deciding to forego a recommended thumb amputation, she received permanent restrictions.

The respondent denied the petitioner’s WC claim, arguing that the act of wiping a table at work did not create a risk of injury greater than wiping a table in one’s own home. The arbitrator awarded benefits, however, concluding that the act of wiping down tables so as to keep the flow of customers moving in a busy restaurant exposed the petitioner to a risk of injury greater than that of the general public.

The arbitrator noted that, given the petitioner’s role in supervising the dining room operation, it would be reasonable to expect that she would perform the task of cleaning off tables in an expeditious manner to facilitate the efficient flow of customers. Thus, petitioner’s job duties required her to “hurriedly” wipe down multiple tables. The Commission and the Circuit Court both affirmed.

The case was appealed and the Appellate Court commenced its analysis by restating that there are three types of risks to which an employee might be exposed: (1) risks distinctly associated with the employment; (2) risks that are personal to the employee; and (3) neutral risks that have no particular employment or personal characteristics. Those injuries resulting from a risk distinctly associated with employment, i.e., an employment-related risk, are compensable under the Act. They include activities that the employer instructed the employee to perform, or which the employee might reasonably be expected to perform in order to complete an assigned duty.

Conversely, “neutral risks,” the Court reminded, were those risks that do not arise out of the employment but are compensable when the employee was exposed to the risk to a greater degree than the general public.

The Appellate Court affirmed the lower courts but decided that a neutral-risk analysis was unnecessary “as the injury stemmed from a risk distinctly associated with her work for the employer.” For support, the Court noted that the petitioner was injured while wiping down a table at work, which was part of her duties as a manager in order to keep the flow of customers moving efficiently. To do this, she testified that occasionally she needed to bus tables. The Court thus found that she was engaged in an activity that the employer might reasonably have expected her to perform in the fulfillment of her job.

Respondent’s second argument was an attempt at disputing medical causation with the use of a Section 12 examiner’s report. Respondent’s expert opined that while the symptoms manifested after she wiped the table, the petitioner’s condition of ill-being was not causally related to them as the wiping motions would not be sufficient to alter the natural progression of a likely degenerative arthritic condition. No causation opinion was offered by the petitioner and so the respondent argued that the court should only take into account the Section 12 examiner’s opinions. The Court disagreed noting that the Commission could infer causation “from a sequence of lack of symptoms prior to an accident, with symptom manifestation immediately following the accident.” Consequently, the Court related the condition based on the Section 12 examiner’s own acknowledgement that the petitioner was not only symptom free prior to the accident, but also conceded that the table wiping motion at least caused “symptom manifestation.”

It is noteworthy that both Justices Holdridge and Hudson concurred but agreed with the lower courts on the application of the neutral-risk analysis. Holdridge wrote that because the petitioner was performing an activity of everyday living (wiping a table), she would only be able to recover if she could show that she faced the risk of injury posed by wiping tables more frequently or in a qualitatively greater manner than do members of the general public. “We may not award benefits merely because wiping tables was part of her job duties. In other words, we must apply a neutral risk analysis to her claims.” But because the petitioner was hurriedly wiping the tables, Holdridge wrote that “the Commission reasonably concluded that the rapid nature of the [petitioner’s] activities might increase the risk that an injury would occur while she was performing her job duties.”