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Keefe: When Is an Accident 'Accidental'?

By Eugene Keefe

Tuesday, December 5, 2017 | 841 | 0 | min read

Is a patrol officer sitting in a car “chilling” acting in the line of duty when randomly struck by another car?

Eugene Keefe

Eugene Keefe

In Martin v. Board of Trustees of the Police Pension Fund of the Village of Shiloh, No. 15-MR-404, issued 11/29/2017, a police officer for the Village of Shiloh was on duty and sitting as a passenger in an unmarked car when it was struck from behind by another vehicle. He became “disabled” due to Illinois’ odd rule that he gets an increased pension to police and firefighters if they are injured “in the line of duty,” versus a non-line-of-duty pension.

Former Officer Martin worked for the Village of Shiloh Police Department as a detective. In May 2012, Martin was a passenger in the front seat of an unmarked squad car when another vehicle struck the car from behind. Martin suffered injuries to his neck and back that were claimed to be permanently “disabling.”

Claimant Martin filed a work comp claim and received a tidy, tax-free settlement from the village of $121,761.50, for 35% body as a whole. To me, this means he not only gets paid a generous government pension the rest of his life, our local governments also provide a “going away” present in the six-figure range.

What we find challenging is that former Officer Martin may use the money to buy his own business or help run a bar or whatever new occupation he likes. Again, our state doesn’t require him to be disabled from all work to get a generous pension, just work as a patrol officer.

One has to also wonder: Could former Officer Martin work at a desk at a 911 call center to provide value for taxpayers for the money he is being paid? Isn’t that police work? No village/town/city in this nutty state ever brings injured police officers and firefighters back to sedentary jobs. It is almost as if such jobs magically don’t exist.

The battle then turns to whether Martin was injured in the line of duty. Remember — he was certain to receive a non-line-of-duty pension, which pays moderately lower benefits. Former Officer Martin filed an application for line-of-duty disability retirement benefits with the Board of Trustees of the Police Pension Fund of the Village of Shiloh.

The pension board denied the application for a line-of-duty disability pension, confirming its view that he was not performing an act of duty at the time of the being struck by a wayward motorist. The Illinois Pension Code defines an act of duty as one “of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life.”

The pension board reasoned that the act of sitting in a car at a complete stop is a situation that is “repeated and experienced numerous times by many citizens within the community.”

Former Officer Martin sought judicial review, and a very well-paid Circuit Court judge reversed the pension board, relying on the Illinois Supreme Court’s ruling in Johnson v. Retirement Board of the Policemen’s Annuity & Benefit Fund. The Johnson case involved a police officer who slipped and was injured while crossing an intersection from his assigned post in response to a citizen’s request for assistance in a traffic accident.

In Johnson, our state Supreme Court found the reporting officer’s actions were an act of duty within the meaning of the Illinois Pension Code because the officer was discharging his duties by responding to the citizen’s call. The increased work risk faced by the officer in Johnson was slipping while crossing an ordinary intersection.

I don’t consider the ruling in Johnson to be analogous to this claim at all. In this claim, former Officer Martin was merely sitting in a car when randomly struck. While that doesn’t happen a lot, it does happen to all of us in a random fashion.

That said, the Illinois Appellate Court panel ruled that a police officer does not perform an act of duty by merely engaging in action while on duty.

“The crux is the capacity in which the police officer is acting,” not the precise manner in which the officer was injured, the decision outlines. Former Officer Martin was injured while returning from the St. Clair County courthouse, where he had performed duties not delegated to any members of the general public. He was also a passenger in a squad car, and the Appellate Court majority reasoned it meant he was in a “position” to have to perform his duties to protect life and property, if need be.

The court opined that a police officer “faces special risks when driving in a squad car, as they must have their attention and energies directed towards being prepared to confront any eventuality.” I note that Claimant Martin wasn’t driving the car — he was sitting, basically doing nothing.

The Appellate Court concluded that former Officer Martin was engaged in the performance of an act of duty at the time of his injury, affirming the Circuit Court.

Trust me — rulings like this highlight how dysfunctional Illinois local government can be. The cost of this award is already well into six figures and may eventually be well into the millions for Shiloh taxpayers, depending on how long Martin lives. When I learn that former police officers and firefighters then go on to other jobs/work and prosper as bartenders, private detectives and truck drivers, I can only shake my head about it.

Remember: There is a dual workers' compensation requirement of an accidental injury arising out of and in the course of employment. The concept is called AOO/ICO for veterans. This is one of the most difficult areas of law for a non-lawyer to understand. The concept of what comprises an accident in U.S. workers’ compensation law is difficult to define and harder to predict.

Of these two legal terms, “in the course of” is much easier for the layperson to understand. This concept is best defined by the idea the employee has to be working or about to work for the injuries to be considered covered under workers’ compensation.

This requirement is usually satisfied if the employee is on the clock or at or around his work station. You can usually assume a typical employee going to, and coming from, work is arguably not covered by workers’ compensation. There is some magical point at which they get close enough to work to say that an injury is a work-related accident. 

One controversy regarding this concept arises in claims occurring in parking lots, shopping malls or common areas of public buildings where the employee works. The question is, when does the employee arrive/depart from work? The answer changes on a case-by-case basis. A good general rule focuses on employer ownership or control of the property, and the exclusive nature of a designated employee parking area.

If the employer owns the parking lot or building and only employees are permitted to park in a particular area, the employee may be considered to be working when he or she is present there, and the risk of injury is unique to the employee, imparting liability on the employer. 

Another major concept when dealing with “in the course of” is the odd and controversial traveling employee concept. When an employee is sent on a mission for the employer that takes the employee away from his typical work site, he obtains what may be characterized as “expanded” workers’ compensation coverage for injuries.

An employee away from home and on the road might arguably be covered for any accident that can be said to result from any activity he could reasonably be expected to do while on the road. 

On the defense side, it is argued that not everything a worker does during travel for work can be said to occur in the course of employment while away from home and his typical work site. What if a worker has an allergic reaction eating a hot dog and coincidentally happens to be traveling?

Many states have statutory language that requires an injury occurring while on a routine trip has to occur while the worker is actually doing work for the employer. While Illinois doesn’t have any statutory imprimatur either way, we feel common sense requires some nexus to work duties for the employer to have to pay benefits if a worker becomes injured or disabled while traveling. 

As defense lawyers and observers, we were challenged by the Illinois Appellate Court’s 2012 ruling in Venture-Newberg Perini Stone and Webster v. Illinois Workers' Compensation Commission. In our reasoned view, this legal precedent turned thousands of Illinois workers into traveling employees and made their employers responsible for all reasonable activities performed while at, or going to, a jobsite, even when not working.

Most defense observers were very happy when, about one year later, our state Supreme Court tossed this legal concept, ruling it was flawed regardless of whether you looked at the facts or the legal issues presented by the penultimate reviewing court.

We do not feel the traveling employee concept should ever apply to an employee whose job is to constantly travel, such as a truck driver or traveling salesperson. Such workers face ordinary risks while doing their jobs and shouldn’t have extraordinary coverage for all activities, at work and at rest. If the reviewing courts and commission extend benefits to employees whose job is to travel, all such employees would then have global 24/7 coverage for all their actions — personal and professional — while on the road doing routine work or play.

We assure everyone that this expanded and indefensible coverage would dramatically increase workers’ comp costs in this state, and might render unnecessary the Workers' Compensation Commission and lawyers on both sides. 

Returning to the concept of “arising out of” employment, this idea has taken a broad turn in recent years. In analyzing this legal concept, workers’ compensation requires more than a showing that the employee was working when injured or disabled. The idea is that the injury has to arise from some job-specific risk versus a risk felt to be common to the public. 

This requirement focuses on the basic concept of what workers’ compensation coverage/insurance is supposed to be: monetary protection for the worker when he encounters risks specific to work. A clear illustration of this concept is a typical worker who becomes injured when an airplane unexpectedly and randomly crashes into the worksite. Assuming this employee doesn’t work around airport runways or airplanes, such injuries are risks we all face in modern society whether we are at work, at home or at play, and there is nothing an employer can do to protect employees from such risks.

Accordingly, such injuries should not be ruled compensable, regardless of how serious the injury. This has also been applied to cause denial of WC benefits where an employee suffered an injury putting on a coat, turning in a chair to answer the phone and tripping over a typical curb. 

While the “job-specific” risk may seem easy to understand and implement as a general rule, recent Appellate Court rulings have drawn what appear to be opposite conclusions based on strikingly similar facts. For example, in Mytnik v. IWCC, a factory worker who injured his back as he bent over to pick up a bolt was deemed to have suffered a compensable injury, since picking up bolts was part of the required job duties.

This was deemed compensable despite the fact that bending over to pick up a tiny item is a very innocuous day-to-day activity. Yet, weeks earlier, a decision by the same Appellate Court denied the claim of an office worker who was injured while reaching for a pen on the floor, in Noonan v. IWCC. The court’s ruling explained the office worker was not required to pick up pens as part of his regular job duties and, therefore, the mechanism of injury was not compensable, as the job itself did not impart an increased risk of such an injury. 

From the above analyses, one has to move to the more modern problems of accident definition. When workers’ compensation in Illinois was initially formed, the commission and courts required the employee to establish a definite time, place and cause of injury. The classic definition also required something unexpected and untoward to happen.

Eugene Keefe is a founding partner of Keefe, Campbell, Biery and Associates, a Chicago-based workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.


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