October 07, 2020

Illinois Supreme Court Decision Impacts the “Arising Out Of Elements of Compensability”

October 07, 2020

Kevin McAllister v. IWCC No. 20 IL 124848

Petitioner, Kevin McAllister, was employed as a sous-chef at Respondent’s restaurant, North Pond. Petitioner’s duties included checking orders, arranging the walk-in cooler, making sauces, prepping and cooking food. While setting up for the evening, Petitioner went into the walk-in cooler to locate a pan of carrots. While kneeling on both knees, petitioner checked the top, middle and bottom shelves. As petitioner attempted to stand up, he felt his right knee pop.

The Arbitrator found the claim compensable and awarded medical expenses, TTD and permanency benefits. Additionally, the arbitrator found respondent’s refusal to pay benefits was dilatory and unreasonable and awarded penalties and attorney’s fees pursuant to sections 19(k), 19(l) and 16a of the Act.

The Commission reversed the Arbitrator’s decision finding that Petitioner failed to prove that his knee injury arose out of his employment because he was subjected to a neutral risk (standing from a kneeling position), not to a greater degree than the general public. On appeal, the Circuit Court of Cook County affirmed the Commission decision.

The Appellate Court affirmed the decision of the Circuit Court, holding that Petitioner was not injured due to an employment related risk.  The appellate majority cited Caterpillar Tractor Co v. Industrial Commission, 129 Ill. 2d 52 (1989), for the proposition that an injury arises out of a claimant’s employment if at the time of injury, the claimant was performing an act reasonably expected to be performed for his employment,  or causally related to what the claimant must do to complete his job duties, even if the activity involves everyday activities. The majority determined that Petitioner’s knee injury did not arise out of his employment because the risk posed from standing from a kneeling position was not distinctly related to his employment.

The concurring justices cited Adcock v. Illinois Worker’s Compensation Commission, 2015 IL App (2d) 130884WC for the proposition that an injury arises out of a claimant’s employment only if it could be established that the job duties required him or her to engage in an every day activity to a greater degree than the general public,  which petitioner failed to do.

On Appeal, the Illinois Supreme Court overturned the Appellate Court decision. The Supreme Court found that when a claimant is injured performing job duties involving common bodily movement or routine everyday activities, an injury arises out of a claimant’s employment if the risk of injury is distinctly associated with the employment.

The Supreme Court held that the proper test for analyzing whether an injury arises out of a claimant’s employment when the claimant is injured performing  job duties involving common bodily movements or everyday activities is to determine whether the employee was injured performing an employment related act.

The Court noted that a risk is distinctly associated with a claimant’s employment if at the time of occurrence the employee was performing (1) acts he or she was instructed to perform by the employer, (2) acts that he or she had a common law or statutory duty to perform or (3) acts that the employee might reasonably be expected to perform incident to his or her assigned duties. Caterpillar Tractor, 129 Ill. 2d at 58.

The Court found that the petitioner’s knee injury arose out of an employment related risk because the evidence established that at the time of the incident petitioner’s injury was caused by a risk distinctly associated with his employment. Petitioner’s unrebutted testimony was that one of his job duties was to arrange food in the walk-in cooler.  As such, petitioner’s actions were acts his employer might reasonably expect him to perform in fulfilling his job duties as a sous chef.

The Court found that once a claimant establishes that an activity is work related, he or she is not required to present additional evidence for work related injuries that are caused by common bodily movements or activities of everyday living. The Court held that Adcock was overruled to the extent that it found that injuries attributable to common bodily movements or routine everyday activities are not compensable unless a claimant can prove that he or she was exposed to a risk of injury to a greater extent than the general public.


Following McAllister, the Commission is likely to find injuries from common bodily movements, e.g., reaching, squatting, kneeling, are compensable so long as the employee was engaged in an employment-related actMcCallister presents a factual scenario wherein the act of kneeling to find carrots in a cooler provides for a compelling argument that the petitioner was engaged in an employment-related act.  The most relevant question in assessing a particular case will relate to the activity performed by the petitioner when the bodily movement took place.  Close attention must still be paid to the activity itself, as it certainly remains open to dispute whether common activities, e.g., walking, stairclimbing, would be deemed to be employment-related activities absent a further showing.  The McAllister decision does expand the petitioner’s ability to establish the “arising out of” element of a claim, and close attention to McAllister’s impact must be paid in assessing both new and existing claims.

By: David Gore