1-18-16; IL WC Appellate Court May Be Our Super-Commission?; Facebook Retraction Can't Be Ordered by Courts, analysis by Ellen Keefe-Garner; John Karis on Important Ruling about Intentional Acts...

Synopsis: IL Appellate Court, WC Division Continues to Define Its Role as What May Be Our Super-WC-Commission.


Editor’s comment: We have seen so many unanimous rulings from the current five-member IL WC Appellate panel, it almost seems like we are dealing with a single justice and not five separate men. We also just saw another “manifest weight of the evidence” reversal to insure claimant receives the highest possible IL WC benefits after the IWCC awarded less than the highest amount. We continue to await the first manifest weight reversal from the members of this panel to see an IL WC Commission benefits award lowered even a penny or fully vacated. We assure our readers from the business, claims and legal community, this panel hasn’t gotten the quiet message that some members on both sides of the IL WC matrix quietly want Illinois WC awards and benefits to be brought back to the middle of the pack of U.S. WC systems. We assume the claimant bar is watching and when a claim is denied by a conservative IL WC Commission award, an appeal to this panel for more do-re-mi will be a viable option. On the other side, we see no reason for any Illinois employer or WC insurance carrier to bring an appeal to this activist, liberal and pro-labor group unless you like losing and truly losing big.


What Happened to Sisbro and Twice Over Clean?


About a decade ago, the IL Supreme Court went back and forth on these somewhat famous rulings. The clear and abiding message was our penultimate reviewing court wasn’t supposed to interject their own view of the facts in handling WC appeals. In Sisbro, our highest court said


The Commission must decide whether there was an accidental injury which arose out of the employment, whether the accidental injury aggravated or accelerated the preexisting condition or whether the preexisting condition alone was the cause of the injury. Generally, these will be factual questions to be resolved by the Commission. However, the Commission's decision must be supported by the record and not based on mere speculation or conjecture. If there is an adequate basis… the Commission's award…must be confirmed.


In short, it seems to us the reviewing courts aren’t supposed to reverse an IWCC ruling without a very, very strong basis to do so. That said, we have seen at least five rulings in the last couple of years where the Appellate Court, WC Division is obviously and unanimously substituting their view of the facts for that of the Commission. In each and every claim, they are doing so to insure benefits are either awarded or enhanced for a claimant. With respect to the members of the Court, we think they are acting as a “Super-Commission” when they ignore the Commission and do what they feel they want to do with even the simplest set of facts.


What Just Happened?


Well, the Court just flipped another reasonable award by the IWCC to insure the highest conceivable WC benefits are awarded. Wage-differential awards are one of the two forms of PPD compensation provided by the Illinois Workers' Compensation Act. Section 8(d)(1) of the Act provides that a worker is entitled to a wage differential award when her or she is partially incapacitated from pursuing their usual employment when there is a difference between the average amount Claimant would be able to earn in their job and in the average amount which they would be able to earn after the accident.


Alternatively, if the IWCC doesn’t use their discretion to award wage differential benefits, Section 8(d)(2) or the “person as a whole” provision provides for a PPD award based on a percentage-of-the-person-as-a-whole when the worker is partially disabled from continuing their job but also suffers a limit on earning capacity.


Is it Section 8(d-1) or 8(d-2), Who is Supposed to Make the Call?


The IL WC Appellate Court, in its decision for Jackson Park Hospital v. IWCC was dealing with an employer in the poorest part of Chicago. In our view, Jackson Park Hospital is hanging on by a thread and a prayer. We don’t truly know but we doubt they are paying hourly fees to their defense lawyer with any regularity. We assure our readers, most of their patients are on Medicare/Medicaid/ACA or some government medical program and they are patiently waiting to get paid at every step of the treatment process.


Claimant  worked as a stationary engineer for Jackson Park Hospital on the east side Chicago. It was her job to address plumbing, heating, and electrical maintenance issues throughout the hospital facility. She had to have training needed to understand these mechanical concerns. Claimant hurt her back in October 2005 while trying to climb into a locked office through a sliding glass window. Her treating doctor authorized her to return to sedentary work in February 2007. Jackson Park Hospital offered Claimant a clerical position in its accounting department. The hospital later moved Claimant to another clerical position in its employee health department, and then to its security department. Even though she wasn’t working as a stationary engineer, the Hospital continued to pay Claimant at the same rate she had earned as a stationary engineer in each of these positions. Claimant still filed a request for lifetime wage loss benefits based on Section 8(d)(1) of the IL WC Act. There is no evidence in the record of any effort of the Hospital to locate work for her outside the Hospital. We don’t see any evidence of a voc rehab provider testifying she can and should be working today.


Arbitrator Cronin carefully considered the facts and determined Section 8(d)(1) which provides for wage loss differential benefits was inapplicable to Claimant because she suffered no actual reduction in her income. He instead awarded Claimant substantial “person as a whole” PPD benefits based on Section 8(d)(2). Like Section 8(d-1), this section of the IL WC Act also clearly covers loss of wages.


After receiving the Arbitrator’s award, Claimant appealed to the Illinois Workers' Compensation Commission. For reasons unstated in the record, the Hospital coincidentally terminated her while her administrative appeal was pending. She filed an emergency motion to remand the case to the arbitrator in order to reopen proofs to allow additional evidence relating to termination. The Commission carefully considered the motion but denied it. The Commission panel later affirmed Arbitrator Cronin’s award and adopted the arbitration decision as its own ruling.


Clamant sought judicial review, and the Cook County Circuit Court judge reversed the Commission. The Judge said the Commission's decision to award benefits under Section 8(d)(2) instead of 8(d)(1) was against the manifest weight of the evidence and the opposite conclusion was clearly apparent. He ordered the case remanded for the Commission to issue Claimant a wage-differential award. Please note both Section 8(d-1) and Section 8(d-2) unquestionably provide for loss of income in a post-injury setting. There is no legislative guidance on which Section of the IL WC Act that prevails in a dispute. In essence, the Commission and reviewing courts randomly get to do whatever they want. In trying to resolve this legislative discrepancy, ten years have passed.


On remand, the Commission panel ruled they thought there was no evidence in the record that warranted altering its prior decision but it complied with the Judge’s order and awarded Claimant $389.60 per week, from Feb. 19, 2007, through the duration of her disability which most folks would feel will be the end of her life. She is going to be paid $20,259.20 a year on a tax-free basis by this struggling hospital from now on. We can’t tell how long that exposure will last as we can’t learn Claimant’s age from the web or the IWCC website. We also don’t see the IWCC or courts outlining the needed voc rehab and job search efforts in the decision on appeal.


The Hospital appealed the wage loss award, but the Circuit Court upheld the award. The Hospital’s attorney then made what we consider a mistake to take the claim to the activist IL Appellate Court, WC division. The unanimous five-member IL WC Appellate panel ruled the Hospital now has to pay Claimant that money on a weekly basis for life. Instead of owing her for 200 weeks, they could pay her for 20, 30 or 40 years, depending on how long she lives.


In short, we have no idea when wage loss under Section 8(d-1) should be awarded in contradistinction to similar PPD benefits under Section 8(d-2). We are sure Section 8(d-2) provides lesser monies for IL WC wage loss awards but it appears the reviewing courts are putting themselves in the place of the Commission, as what may be a “Super-Commission” in making such policy decisions.


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Synopsis: IL Courts Can’t Require Facebook Messages to Retract Prior Posts. Analysis by Admitted Facebooker Ellen Keefe-Garner, RN, BSN, JD.

Editor's comment: Facebook is an online social networking service headquartered in Menlo Park, California. Its website was launched February 4, 2004, by Mark Zuckerberg with his Harvard College roommates Eduardo Saverin, Andrew McCollum, Dustin Moskovitz and Chris Hughes. The founders initially limited the website's membership to Harvard students, but later expanded it to other colleges. It gradually added support for students at various other universities and later to high-school students. Since 2006, anyone who is at least 13 years old was allowed to become a registered user of the website, though the age requirement may be higher depending on applicable local laws. Its name comes from the “face book” directories often given to American university students.’


No one can disagree with the premise Facebook has changed our lives forever. Information posted on Facebook is out on the Internet forever and is there for everyone to read. There is no doubt controversial subjects often find their way into a Facebook post. Lawyers have learned they can discover information on Facebook that can be used to help or hurt a litigant's position in a legal matter, such as a workers’ comp or employment law claim. In fact, courts on all levels are considering legal issues related to Facebook postings. Recently the United States Supreme Court heard arguments about whether violent statements posted on Facebook show proof of a person's intent to commit harm.

An interesting issue concerning a Facebook post was recently litigated in the Illinois Fourth District case of In Re Marriage of Weddigen. In Weddigen, a divorcing father published a Facebook post in which he claimed to have secretly recorded a hearing in his child custody case. His wife subsequently filed a motion requesting the court hold the father in contempt of court for writing the post and for recording the child custody hearing. Several hearings were subsequently held, after which the court ultimately entered an order holding the father in contempt of court. In addition, the court required the father publish a Facebook post to apologize to "everyone" as well as to encourage others to refrain from making recordings of child custody proceedings.


Although the majority chose not to address any First Amendment and/or freedom of speech issues, it did overturn the contempt order for other reasons. The most interesting discussion in the opinion was in Judge Steigmann's special concurrence. In his concurrence, Judge Steigmann made a colorful argument in which he called the order to publish an apology "compelled speech" reminiscent of that demanded in totalitarian regimes in which there is no right to free speech. In his concurrence, Steigmann made sweeping statements to express his dismay the contempt order violated the father's First Amendment rights. In his written opinion, Steigmann referenced the case of Brandenburg vs. Ohio State, in which the court stated: “The right to think is the beginning of freedom, and speech must be protected from government because speech is the beginning of thought." Steigmann went on to conclude requiring the father to publish an apology on Facebook was reminiscent of the Vietnam "reeducation camps" and he stated the trial court was completely without legal justification to impose such an order.


This Appellate Court opinion may make people believe they have an endless amount of freedom to publish anything they like on Facebook. However, the same people should remember their postings on Facebook can backfire in ways not protected by the First Amendment. Social media snooping has become very popular and is often done to garner information intended to be used against the person doing the posting. Notably, potential employers often look at an applicant's Facebook page to determine if the applicant is deserving of employment. If the potential employer observes Facebook posts revealing wild behavior like excessive drinking or drug usage, the employer may have reservations about extending a job offer to an applicant. Also, attorneys frequently search through social media sites to obtain "dirt" that can be used against adverse parties in legal cases. In fact, some legal ethicists have proposed that attorneys have an affirmative duty, and not just a right, to investigate facts they could or might find on Facebook or other social media sites in the context of performing discovery in a legal matter. So, even though the First Amendment might protect any speech found on Facebook, individuals should be careful about what they post in order to avoid embarrassment if an attorney or a potential employer decides to use the post against them.


This article was researched and written by Ellen Keefe-Garner, RN, BSN, JD. She can be reached for questions and concerns at emkeefe@keefe-law.com.




Synopsis: Important WC Ruling Where the Workers’ Compensation Act Bans Civil Claim for Failing to Show Employer’s Acts were Intentional. Analysis by John Karis, J.D.

Editor’s Comment: On December 4, 2015, the New Jersey Appellate Court upheld a trial court’s decision preventing a Plaintiff and her husband from suing plaintiff’s employer for assault and sexual harassment stating it was barred by the exclusive remedy provision within New Jersey’s Workers’ Compensation Act. Similar provisions apply in the five states KCB&A has licensed defense lawyers.

Claimant worked at a Burger King restaurant in the Monmouth Mall in Eatontown, New Jersey. On August 29, 2008, Claimant was working in a walk-in freezer when an assistant manager followed her into the freezer and proceeded to touch her through her clothes, kissing her.  While she was in the freezer, the BK manager of the restaurant, opened the door, looked at both employees, and then left.  When the door had been briefly opened, the assistant manager ceased touching Plaintiff, but later in the same day, this ass’t manager again touched her and kissed her while they were both at the workplace.

Clamant did not report either incident on the day the two incidents occurred.  However, the following day, Plaintiff’s husband called to complain about how his wife had been treated. Claimant’s husband then came to the restaurant the following day to provide more details of the alleged assault. Burger King had a written policy prohibiting workplace harassment, which all employees received.  The manager followed the policy and reported the allegations to the district manager, who conducted an investigation. The assistant manager was suspended, then transferred to another store, and eventually terminated when he did not report to work.  Plaintiff ceased her employment with Burger King two weeks after the alleged assault.

On September 10, 2008, Claimant reported the two incidents to the local police, who arrested the assistant manager and charged him with fourth-degree criminal sexual contact. He pled guilty to a lesser charge of violating an ordinance.

In March 2009, Plaintiff brought a workers’ compensation claim against the restaurant owner, alleging workplace injuries and sexual assault. That case was settled for $7,500. Claimant and her husband also brought a civil claim against the assistant manager, Burger King Corporation and their manager.  The claims against Burger King were dismissed and the claims against the manager were settled and dismissed. The remaining Defendants moved for summary judgment, arguing the civil suit was barred by the exclusive remedy provision of the NJ Workers’ Compensation Act.

Generally, when an employee's claimed injuries fall within the coverage of the WC Act, the employee is barred from seeking further legal redress from an employer or co-employee. The WC Act's exclusivity can be overcome if the case satisfies the statutory exception for an intentional wrong.

The trial judge dismissed the suits, and Claimant and her husband appealed. They relied on a 1988 federal case, Cremen v. Harrah’s Marina Hotel Casino, where the Court held the civil suit survived the workers’ compensation bar. The Appellate Division in this case held the facts in Cremen were distinguishable.

The Appellate Division held this case was simply a matter of negligence.  It felt the manager acted negligently in that he should have asked what was going on when he walked in to the freezer. To get past the exclusivity of the WC Act, Claimant had to prove intentional conduct, but the court said this sort of inaction is not intentional harm.  The Court also held the owner engaged in no intentional conduct. Instead, it acted consistent with its harassment policy once the claim was reported. Therefore, the WC Act barred the civil suit against both the manager and owner.

This article was researched and written by John Karis, JD. You can reach John 24/7/365 for questions about general liability and workers’ compensation at jkaris@keefe-law.com