Keefe: I Can't Figure Out the Rules

Monday, June 25, 2018 | 0

In Lampert v. Illinois Workers’ Compensation Commission, et al. (Ferrell Hospital, Appellee), facts of the event are simple: Petitioner was a registered nurse for Ferrell Hospital. On Nov. 26, 2012, after working a full shift at the hospital, she clocked out at approximately 8 p.m. and headed to the parking lot where she usually parked her personal car.

Eugene Keefe

She exited the hospital to a set of carpeted stairs. As she descended the stairs, she reported she held on to the handrail because the stairwell was dark.

Without any apparent reason, she slipped off the top step and fell all the way down the flight of stairs, causing a serious injury to her left ankle. She was X-rayed and diagnosed with a left ankle fracture. She underwent not one but two separate ankle/leg surgeries.

At the time of the event, she had a personal bag over her shoulder but her hands were free; she wasn’t holding anything. She described the outside weather at the time of the fall to be “misting and kind of sleety.” She also testified it was dark at 8 p.m. on a November night.

She admitted that the stairs and parking lot were both open to the general public, patients as well as employees, but noted most non-employees used Ferrell Hospital’s front entrance or its emergency room door to enter and exit the hospital.

At arbitration before Arbitrator Lindsay, petitioner’s claim was denied, as she failed to establish her injury “arose out of” employment. Petitioner appealed the decision to the Illinois Workers' Compensation Commission panel headed by then-Commissioner Mario Basurto.

The IWCC panel affirmed the denial. The matter went to the Circuit Court and then the Appellate Court. In a unanimous but “non-published” Rule 23 opinion, the five-justice Appellate Court affirmed the decisions of the Circuit Court, commission panel and arbitrator.

The basis of the appeal was threefold. Petitioner claimed she was exposed to a “neutral risk” on the staircase to a greater degree than the general public because:

1. It was dark outside (doesn’t it get dark outside most nights?).
2. The “rained-on” stairs were wet and slippery, creating a dangerous condition (rain has a tendency to do that).
3. She traversed the stairs more often than the general public (twice a day isn’t a lot more than the public).

The Appellate Court dispensed with the initial arguments confirming that petitioner had the burden of proof and never attributed darkness or weather conditions to the reasons why she fell. The ruling notes she simply testified that she slipped on the top step of the staircase. I wonder if she needed a surface analysis/expert on this subject.

The appellate ruling uniquely dealt with her argument that she was exposed to an increased risk of injury compared to the general public because she traversed these stairs more “often.”

The decision ruled that there was no evidence presented to distinguish the outdoor stairs claimant was traversing, even if those stairs were potentially wet from rainfall, similar to any other typical outdoor stairway, across the globe.

The court felt it did not have any evidence suggesting that petitioner was more likely to slip and fall on her employer’s premises than any other member of the public would be likely to fall on any other outdoor stairway that was exposed to rainfall (citing Dukich v. Illinois Workers’ Compensation Commission).

This ruling demonstrates the willingness of some arbitrators and commissioners and our reviewing courts to reign in compensability and the cost of workers’ comp in our state. I am sure our state comp costs are going down for this reason, and that should be reflected in the 2018 State of Oregon WC Premium survey due this November or thereabouts.

I have seen fall claims like this one ruled compensable and consider all fall rulings in Illinois to be unpredictable.

One fascinating aspect of this decision is how the Appellate Court ruled regarding petitioner’s assertion that she was exposed to an increased risk because she used the stairs more often than the general public.

The court did not agree with petitioner that just because she used the stairs at least twice a day (if not more, as it was not clear from the opinion), she was somehow exposed to an increased risk of a work injury. Instead, the Appellate Court ruling analyzed the specific facts of the event.

Petitioner did not present any evidence that this particular set of stairs was more likely to cause a slip and fall as opposed to any other set of outdoor stairs used by the public.

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