August 03, 2013

Reaching Injury Found Compensable

August 03, 2013

Autumn Accolade v. IWCC No. 2013 IL App (3d) 120588WC

Petitioner Joan Shannon was employed as a caregiver at an assisted-care facility operated by Respondent, Autumn Accolade.  While assisting a female resident with a shower, she felt it necessary to remove a soap dish located under the shower head so that the resident would not slip on the soap suds which were forming because of dripping water.  With her right hand holding the resident, she turned left to reach for the soap dish and experienced a shooting pain down her right arm.  She was diagnosed with degenerative disc disease at C5-6 and a lateral central disc herniation at C6-7 which required a two-level cervical fusion.

The surgery was considered causally connected to Shannon’s employment by her treating and examining physicians.  Respondent’s IME found the herniated disc causally connected to the incident; however, he found the degenerative condition at C5-6 not related to the injury.  All physicians’ reports were introduced at trial, along with several reports of the accident which set forth slightly differing versions of what occurred in the shower on the day of the accident.  Among these were statements that Petitioner had merely turned her head when she felt a pop in her neck.

  1. The Arbitrator found the claim compensable, citing three factors:the placement of the ledge holding the soap dish created an increased risk of injury because it was located directly below the shower head, making it more likely to produce soap suds which would create a slippery condition;
  2. assisting a resident to prevent a fall while showering was a necessary part of Petitioner’s job, one that she might reasonably be expected to perform incident to her assigned duties; and
  3. the job duty of ensuring the safety of the resident required Petitioner to hold her to prevent her from falling and, at the same time, required Petitioner to bend forward to reach awkwardly to retrieve the soap dish, creating an increased risk.

The Arbitrator also found that Petitioner’s condition of ill being was causally connected to the injury and awarded medical expenses, TTD, and permanency benefits.  The Commission adopted the arbitrator’s decision which the Circuit Court affirmed on review.

On appeal to the Appellate Court, the employer argued that Petitioner failed to prove an accident “arising out of” her employment because the act resulting in her injury was not a risk peculiar to her employment, but rather a risk peculiar to her and one to which members of the public are equally exposed.  The court cited relevant case law which requires a claimant to show that the origin or cause of an injury is in a risk connected with, or incidental to, her employment so as to create a causal connection between the employment and the injury.  Generally, if an employee is performing acts she is instructed to perform by her employer, or acts which she might reasonably be expected to perform incident to her assigned duties, a resulting injury would arise out of the employment.  A risk is incidental to the employment when it belongs or is connected with what the employee must do in fulfilling her duties.  If an employee is exposed to a risk to a degree greater than is the general public, the injury would be considered to arise out of the employment.  However, if the injury results from a hazard to which the employee would have been equally exposed apart from the employment, the injury would not arise out of the employment.

The Appellate Court affirmed, noting Shannon’s duties included helping residents in activities of everyday living.  Consequently, she took action to remove the soap dish to prevent potential injury.  An injury while attempting to ensure the safety of a resident was an act Shannon might reasonably be expected to perform incident to her assigned duties.  Therefore, the Commission’s finding that she sustained an injury arising out of her employment was consistent with the evidence.

Next, the court rejected the employer’s argument that the act of “reaching” was personal in nature and not peculiar to Shannon’s employment.  The court found the act was not personal but rather something Shannon would have been expected to perform to ensure the safety of a resident.  Additionally, the employer argued that Shannon made no claim that she was holding the resident or moving in an awkward manner.  The court conceded that there were certain inconsistencies in the histories, which were not as detailed as Shannon’s testimony.  Nonetheless, these inconsistencies were not sufficient to overturn the Commission’s finding that Shannon’s injuries arose out of her employment.

In sum, the Court took the position that notwithstanding what appeared to have been a significant preexisting condition of Petitioner’s cervical spine, the event in question was causally connected to Shannon’s employment.  Noting other cases where compensation was denied, the Court stated that in those cases the claimants’ condition had degenerated to the point that any normal activity could have resulted in the injuries in question.


It is apparent that injuries such as those Shannon sustained will be found compensable if the claimant can show they result from a risk incidental to employment.  Cases where the courts have denied compensation (Hansel & Gretel Day Care Center, Board of Trustees, and Greater Peoria Mass Transit) involved facts different than Shannon.  The lesson of Shannon is that an employer must show that the preexisting degenerative condition is the sole cause of an ‘accident,’ something the employer could not do here – the IME found the herniated disc causally connected to the work-related incident.

Your editors gain the impression that if the employer could have produced facts or a medical opinion that Shannon’s condition had deteriorated to the point where symptoms could appear at any time there may have been a different result.  Your editors also note, ruefully, that being able to show that a condition has deteriorated to the point where almost any activity of daily living would cause symptoms to emerge is a relatively steep hill to climb.