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Workers’ Compensation Case Update – Fall 2009

By Christopher S. Crawford

Stray Bullet in High Crime Area is an Employment Related Risk

In Restaurant Development Group v. Hee Suk Oh 910 N.E.2d 718 (1st Dist. 2009), a petitioner was struck by a stray bullet and rendered a paraplegic. The central issue in the case is whether the petitioner’s injuries arose out of her employment. The petitioner must prove that she was exposed to a risk connected with or incidental to the employment. The three types of risks that are considered are risks connected to the employment, risks personal to the petitioner and neutral risks. Affirming the Commission, the Court concluded that petitioner’s injuries were caused by a neutral risk as a stray bullet had no personal or employment characteristics. The neutral risk arises out of employment if the petitioner’s exposure to that risk is greater than that of the general public.

The Court found that the petitioner’s injuries were compensable because she worked in a high crime area which included gang activity and struggles for turf. Petitioner was required to work nights and weekends when most of this activity took place. She performed her duties near floor to ceiling windows. Statistics demonstrated that the location of her employment was in one of the more violent crime districts in Chicago. Respondent’s expert testified that petitioner was exposed to the same risks as the customers inside the restaurant. The Court found this unpersuasive noting that a broad section of the public must be considered when evaluating whether the petitioner was exposed to a neutral risk greater than that of the general public. It is not enough to limit the evaluation to a locality, neighborhood or area. The Court re-affirmed Illinois’ rejection of the positional risk doctrine. The injury was not compensable just because the employee was at work. Rather, the petitioner was exposed to an increased risk of injury given increased crime in the area.

This case suggests that the courts are gravitating towards acceptance of the positional risk doctrine. Yet, the courts still emphasize that it is not the law. Cases which implicitly invoke the positional risk doctrine should be challenged. It is the petitioner’s burden to demonstrate the existence of the employment related risk.

Failed Fusion Claim Compensable Despite Petitioner’s Continued Smoking

In Global Products v. Hall. 2009 WL 1620461 (1st Dist. 2009), a petitioner fell at work. He injured his back resulting in two fusions. The fusions failed. Respondent’s examining physician testified that petitioner’s smoking led to the failure of the fusions. Benefits were awarded for the failed fusion. On appeal, respondent urged the court that it find that petitioner’s continued smoking after the fusions constituted an injurious practice. Respondent also argued that petitioner’s continued smoking led to the failure of the fusions and his failure to quit represented an intervening cause. The Court rejected respondent’s argument. The Court stated that an employer takes its employees as it find them. Petitioner smoked prior to the accident. The fusions (that ultimately failed) would not have been necessary had it not been for the fall. The evidence was not sufficient to break the causal connection chain.

Regarding injurious practices, the Court found respondent’s evidence insufficient. Whether petitioner’s action is an injurious practice under section 19(d) of the Act is a question of fact and will not be disturbed unless the Commission abused it discretion. The petitioner testified that he attempted to quit smoking. There was no evidence that he deliberately attempted to retard his recovery by continuing to smoke. In other words, petitioner continued to smoke in spite of its potential impact on his recovery, not because of it.

Smoking can complicate recovery efforts under most circumstances. This is especially true in cases involving spinal injuries. Significant evidence demonstrating that a petitioner deliberately ignored recommendations or failed to take steps to quit smoking may help in reaching a decision different from the one above. This type of evidence can be developed with the assistance of an examining physician and a rehabilitation plan.


Originally published in the Fall 2009 edition of Quinn Quarterly.

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