Noted authority of workers’ compensation, Thomas Robinson, J.D., Lexis Nexis primary upkeep writer, has found an interesting case this week for us. Lexis Nexis Workers Comp Law Center has many interesting writings about current cases.
Here’s what happened
Claimant, a bartender at one of her employer’s restaurants, sought workers’ compensation benefits for injuries she suffered when she was struck in the back by a stray bullet. The incident occurred near midnight, when claimant was standing at the bar near the front of the employer’s premises. The stray bullet was fired from outside the restaurant. It shattered the employer’s large front window before striking claimant. It was later learned that the shooting was gang-related; two men were charged and convicted in connection with the incident. Following a hearing, at which the employer introduced expert evidence that anybody in the restaurant or passing by it that evening faced the same risk of injury as claimant, an arbitrator nevertheless found claimant proved that she sustained accidental injuries arising out of and in the course of her employment and awarded claimant permanent total disability (PTD) benefits for life pursuant to section 8(e)(18) of the Act (820 ILCS 305/8(e)(18) (West 2004)). The arbitrator also ordered employer to pay $ 80,108.19 for necessary medical expenses incurred by the claimant. The Workers’ Compensation Commission affirmed and adopted the arbitrator’s decision. The circuit court confirmed the Commission’s decision and the employer appealed.
Here’s how the court decided
An Illinois appellant court, in Restaurant Dev. Group v. Oh, 2009 Ill. App. LEXIS 407 (June 16, 2009), affirmed. The court observed that there are three types of risks to which an employee might be exposed, namely: 1) risks distinctly associated with the employment; 2) risks which are personal to the employee; and 3) “neutral risks which have no particular employment or personal characteristics.” Noting further that stray bullets were generally considered to be neutral risks, the court indicated compensability centered on whether the conditions of the employment increased the risk of being struck by a stray bullet over the risk faced by the general public. The court found that the manifest weight of the evidence established that claimant was exposed to a stray bullet risk to a greater degree than that to which the general public was exposed. The employer’s restaurant was located in a high crime area with rival street gangs feuding over turf. Crime data revealed that the restaurant was located in a police district whose crime rates for violent crimes and shootings placed it in the top 25% to 33% of all police districts in the City of Chicago. The assailants lived a short distance form the restaurant and were shooting at a rival gang member driving in the neighborhood. Claimant bartended near the restaurant’s floor-to-ceiling windows, adjacent to the street, where her body was exposed. Further, there was a history of gunfire in the neighborhood spanning many years. Claimant’s employment required her to work late at night, on weekends, when most of the shootings were taking place. All this supported a finding that claimant faced an increased risk of being struck by a stray bullet.
See generally Larson’s Workers’ Compensation Law § 7.01.
Author: Tom Robinson, J.D.
Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Attorney Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: [email protected].
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