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Positional Risk Routinely Rejected in Workers' Compensation Cases

Posted on in Workers' Compensation

Positional Risk Routinely Rejected in Workers' Compensation CasesIn order to receive workers’ compensation benefits, an employee must show that his or her injuries arose out of his or her employment. In other words, the worker's job in some way put him or her at risk of injury. Courts have differing opinions on when a job constitutes a specific injury risk. There are three standards of risk assessment that courts consider:

  • Positional risk;
  • Actual risk; and
  • Increased risk.

Illinois courts have traditionally applied the increased risk standard, which states that workers’ compensation claimants must show that they were at greater risk of injury than the public because of the requirements of their jobs. Some appellate courts have used the actual risk standard, in which employees must only show that their injuries arose out of actions that they are expected to do as part of their work. However, Illinois courts have consistently ruled that the positional risk standard is insufficient to obtain workers’ compensation.

Positional Risk

The positional risk standard states that an employee is entitled to workers’ compensation if his or her job was responsible for him or her being at the location of the accident. The cause of injury is generally a neutral force, whether it is as simple as tripping on a sidewalk or as catastrophic as being hit by a stray bullet. In either case, the claimant is arguing that he or she was injured because of being at work. The positional risk standard, which some states allow, puts less of a burden of proof on claimants because:

  • They are not required to have been performing a work-related action; and
  • The risk of injury does not have to be any greater for them than it would be for a visitor on the property.

In 1991, the Illinois Supreme Court ruled that a neutral force argument does not qualify a claimant for workers’ compensation benefits. In order for an injury to arise out of employment, its cause must be directly related to job functions, and the risk must be unique to employees at the job. Simply being at work does not show that the injury was related to the worker’s employment.

Filing Workers’ Compensation Claim

Illinois courts require a stricter burden of proof in workers’ compensation cases in order to protect employers and insurance companies from what may be viewed as frivolous claims. Whether or not you agree, you should be prepared to meet the increased risk standard when filing a workers’ compensation claim. A McHenry County workers’ compensation attorney at Botto Gilbert Lancaster, PC, can explain how your injury arose out of your employment. Schedule a free consultation by calling 815-338-3838.



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