12-14-2015; Are IL Police Now Covered Under WC When Moving Equipment Off-Duty?; Grrrr--Feral Animal Attacks Might Be Covered Under WC; Great New Medical Device Coming to a WC Claim Near You and...

Synopsis: What Do You Do About a Work Injury from an Employee Moving Business Equipment to their Car at Home; All Illinois Police Officers May Now Be Telecommuters.

Editor’s comment: We can’t respectfully disagree more but the IL WC Appellate Court are the sworn judiciary and you have to take notice of their ruling. Our HR/Safety and WC industry now defines telecommuting, remote work or telework as a work arrangement in which employees do not commute to a central place of work. A person who telecommutes is known as a "telecommuter", "teleworker", and sometimes as a "home-sourced," or "work-at-home" employee. Telecommuting brings accident investigation challenges for risk managers and this claim is a new one for IL government and other risk managers. This ruling appears to indicate no employer should allow an employee to take business equipment home without understanding the consequences of that decision.

In Bolingbrook Police Department v. Illinois Workers' Compensation Comm'n, a divided 3-2 majority of the Court considered a claim where a  police officer supposedly injured his back while loading his duty bag (weighing about 40 pounds) into his personal vehicle in preparation for reporting to the police station for work. While Claimant was dressed for work, he wasn’t on duty or anywhere close to being on duty. He wasn’t paid while at home and isn’t entitled to overtime for work performed at home. He still had to get in his own car and drive it to work. In our view, none of his actions while at his own home should be considered “work duties.”

The Court majority ruled testimony in the record established the duty bag contained items necessary for performance of job duties, and as part of his job duties as a sworn police officer, he was responsible for safekeeping of his duty bag, and keeping duty bag in his garage at home was acceptable to employer. We don’t agree leaving a bag of police equipment lying on a garage floor is “safekeeping.” The Appellate Court ruled the IL WC Commission was within its prerogative to find the accident aggravated or accelerated this officer's preexisting back condition and was a causative factor resulting in later back surgery.

Hey, There is a Real Dissent In This Ruling!!

For the first time in several decades, we see the Appellate Court minority file an actual dissent that is well-reasoned and researched. As court watchers, the reason this is both unusual and refreshing is this Court has been ruling in unison for years. We truly don’t remember the last time a single member of the Court disagreed with the majority. We feel it unsettling to see claim after claim where all five of the Court’s members totally align and act as a body to constantly expand the scope and coverage of the IL WC Act and Rules. When we see a dissent like this one, we assume there may be a chance a liberal or radical concept can be overruled in the future.

This dissent is excellent, in our view. The dissent notes the legal phrase “in the course of” refers to the time, place, and circumstances of the injury. Injuries sustained on an employer's premises, or at a place where the employee might reasonably have been while performing his duties, and while the employee is at work, are generally deemed to have been received in the course of the employment. 

At the time of the alleged injury in the present case, the dissent notes Claimant was employed as a police officer. He alleged he injured his back as he was placing his duty bag in the trunk of his personal vehicle prior to leaving his home for work. Thus, the alleged injury did not occur on respondent's premises or at a place where Claimant was reasonably expected to be in the performance of his duties. 

The Commission, in affirming and adopting the decision of the Arbitrator, acknowledged the accident occurred while Claimant was at home, but reasoned Claimant was “specifically engaged in an activity performed for the benefit of Respondent, an activity the Respondent could reasonably expect [claimant] to perform.” As court watchers and law professors, we hate any factual finding of the WC Commission when they find an activity is performed “for the benefit of the employer” because you can’t do any activity of daily life that isn’t arguably a “benefit to your employer.” Breathing, eating, brushing your teeth, taking a bath, using deodorant are all a benefit to your employer because if you don’t do them, your employer will arguably suffer.

The dissent also noted the IL WC Commission further explained “[claimant's] testimony that the duty bags were to be kept with officers for safekeeping even while off duty was not contradicted.” This justice disagreed with these findings by the Commission. First, there was no evidence regarding how Claimant's decision to bring his duty bag home after each shift specifically benefitted his employer. In fact, Claimant expressly acknowledged he was not required to bring his duty bag home and the police department provided a locker at the police station for each officer to safely store his or her equipment. Nevertheless, Claimant elected to take the duty bag home so he would not have to carry it back and forth from his locker at the beginning and end of each shift. In other words, evidence of record clearly established it was Claimant's own decision to take his duty bag home after each shift and he did so for his own convenience, not for the benefit of the municipality.

The dissent next noted, contrary to the Commission's finding, Claimant's testimony the duty bags were to be kept with officers for “safekeeping” even while off duty was contradicted. Initially, Claimant did state he was required to keep the duty bag “with [his] person.” However, he later indicated he was not required to bring his duty bag home and Respondent provided a locker at the police station for each officer to store his or her equipment. Moreover, Claimant did not keep his duty bag with him at all times. In this regard, Claimant testified he kept the duty bag sitting out in his garage while not on duty. If Respondent provided a locker with a lock for its officers to store their equipment and if Claimant kept his duty bag in his garage, he was clearly not required to keep his duty bag with him at all times. At most, Claimant's testimony establishes officers were required to keep their duty bags with them during their work shifts.

The dissent notes the IL WC Commission also pointed out, as a police officer, Claimant would be considered on-call 24 hours a day. We consider that concept an urban legend that had to be started by someone in a police force somewhere. Police aren’t on call 24/7/365. They aren’t paid the entire time they are on the police force—they are paid for the hours they are assigned and show up. 

Please also note there is a large class action lawsuit pending in the Circuit Court of Cook County right now by numerous members of the Chicago Police force demanding millions in unpaid overtime for their occasional “off-call” work making phone calls or sending/receiving texts while not actually on duty. We assure our readers there are lots of police departments that are trying to find a way under FLSA to avoid having to pay millions in overtime for police officers who aren’t on duty and aren’t “on-call.” We don’t feel the Bolingbrook Police Department should have to pay overtime for this police officer to put his duty bag into his car—if he isn’t entitled to pay for the work, why should he get WC benefits?

In summary, the dissent indicates he believes the majority's opinion could have far-reaching and unintended consequences. Conceivably, under the majority's reasoning, any employer who does not institute a policy expressly prohibiting an employee from taking home work-related equipment could potentially be liable for injuries occurring at the employee's residence while the employee is loading and unloading the equipment even if the purpose for taking the equipment is wholly unrelated to the employment. In essence, the holding espoused by the majority imposes a duty upon the employer to monitor the comings and goings of its employees. This brave justice does not believe that the scope of the IL WC Act was intended to be so broad.

We fully agree with the dissent. We hope the dissent may some day become the majority because workers who are admittedly off work and not being paid shouldn’t be afforded WC coverage when routinely handling equipment they brought home solely for their own convenience. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Grrrr--What Do You Do About a Worker Getting Bit by A Wild Animal?

Editor’s comment: We are talking about the situation where one of your employees randomly encounters a wild animal during regular work--we call it a feral animal attack. The legal standard/question is whether you have a significant issue at your work facility with lots of wild animals of a similar breed or type. By that, we mean are there way more wild dogs, coyotes or raccoons at your worksite than in surrounding areas due to waste/food or other business factors?

·         If not, we recommend you deny a feral animal attack as a risk common to the public.

·         If so, accept such a WC claim as your workplace presents a heightened risk of attack. 

·         And then tell management to start baiting traps and take reasonable steps to prevent the continued presence of these animals. 

Don't wait for OSHA or some other irritating gov't agency to get involved if lots of your folks are seriously bitten, infected or injured. The humans are more expensive to take care of than most common sense protective measures.

As an example of a challenging feral animal attack, we had a claimant get bit by a large rat at a distribution facility. Sadly, the worker suffered moderate emotional trauma along with a significant scar and the doctors had concerns about long-term infections. We asked the facility manager if the facility had lots of rats--he said it was a very significant issue and all the employees and managers were aware of it.

Based on that information, we accepted the WC claim. We then told our client’s managers to start to counter the infestation issue and they did so.

Example two, we had a guy get bit by and break his ankle running from a Canadian goose. The gaggle of geese landed in our facility to rest from their long migratory flight south. The flock could have landed anywhere.

This misguided claimant was baiting, running and yelling at the wild animal--it attacked and, while escaping, our claimant got hurt. We denied the claim and won. 

The hearing officer told Claimant not to yell at geese going forward but if he felt the uncontrollable urge to do so and he got hurt, it had nothing to do with his work.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Great New Medical Device, Now in Use At Edward Hospital!

Editor’s comment: We love when KCB&A clients break ground with new tools to improve medical care. Nurses on adult inpatient floors at Edward Hospital in Naperville recently began using Accuvein, a device that illuminates veins to make it easier to start an IV or draw blood. For any patient who’s ever been stuck multiple times by a nurse trying to start an IV, a medical device now in widespread use at Edward Hospital in Naperville is a welcome invention. Please look for it to be utilized in a WC claim of yours.

For any nurse who’s ever felt pressured to insert an IV accurately on the first try, the device called Accuvein is a big help. 

Using safe infrared light similar to the beam of a barcode scanner at a grocery store, Accuvein illuminates a patient’s blood vessels so medical professionals can see which ones would be suitable to insert an IV. The device comes mounted on a small cart so one nurse can operate it on her own, pointing it at the patient, then using the image it creates to guide her work. 

Accuvein has been in use for about five years in Edward’s pediatric emergency department. But the hospital recently bought 10 more of the expensive devices so one could be given to each unit. Soon Accuvein will be available at Edward’s immediate care clinics and its emergency room in Plainfield.

At a time when hospitals are evaluated based on patient satisfaction, the technology to make starting IVs easier is significant because multiple tries always seem to bother patients. Research has found the effect is especially pronounced among kids, who will remember a painful IV start for up to a year if it’s traumatic to them. Using technology to make the process easier reduces anxiety for the hospital’s youngest patients. 

The Accuvein technology is also beneficial because today’s nursing students don’t practice starting IVs as many times during school as those of the past did. Plus, an IV is often the delivery method for vital medication. 

Some patients present more challenges for IV starts, such as those who are dehydrated, obese, elderly or undergoing chemotherapy or any treatment that requires frequent access to veins, nurses said. And some veins are better hosts for IVs than others because they are straight and wide enough to contain the IV catheter.