Workers' Compensation - Risks Greater Than the General Public
A recent decision by the First District of the Illinois Appellate Court upheld the compensability of injuries suffered by a bartender at Coast Restaurant in Bucktown due to the increased danger to the worker in that particular area of the city.
Under the Workers’ Compensation Act, a worker can recover for injuries that “arise out of” and occur “in the course of” his or her employ. Unfortunately, these terms of art tend to be very case-specific and make it difficult to determine in some situations what is compensable under the Act.
In this particular case, Restaurant Development Group v. Hee Suk Oh, 1-08-2143WC, the claimant was working as a bartender at Coast. She testified she had heard gunfire many nights in the neighborhood, in which she lived, at the time in the late 1990s. On the night in question, rival gangs were chasing each other and during this melee, the claimant was struck by stray gunfire that shattered the full length glass windows of the restaurant. The gunfire hit her in the back and she was paralyzed from the waist down.
Testimony by an investigating Chicago Police Officer indicated that the area had one of the largest concentrations of rival gangs in the city. He further indicated in his testimony that often gunfights would occur between rival gangs over turf disputes. Also, increasing gentrification was leading to gangs being squeezed out of the area.
To be compensable, a risk to an employee must be 1) distinctly associated with the employment, or 2) risks which are personal to the employee, or 3) “neutral risks which have no particular employment or personal characteristics.” The risk of being struck by a stray bullet is a neutral risk.
Taken as a whole, it was determined that these factors increased the claimant’s risk of being injured while at work.