3-14-2011; Trying to make sense of what is happening in Illinois workers’ compensation and the recent ruling in Metropolitan Water Reclamation District v. IWCC

Similar to what outlined in the Illinois Government Vortex section above, please also remember judges and justices in this state are also political candidates. Please remember Illinois government unions and ITLA strongly and legally support the political candidacy of many judges and justices who are then asked to issue impartial rulings, despite having accepted donations and endorsements from potentially interested parties or groups. We feel this may create a potential for criticism when we see rulings where police officers get WC benefits when they turn around to answer questions or firefighters get WC benefits from fighting like school children in hotel rooms during conventions and clerks get benefits when they fall down without apparent reason going to the bank to deposit checks, as in this current claim.

In further considering Metropolitan Water Reclamation District v. IWCC, we wanted to follow-up on this challenging appellate ruling to provide some thoughts from our readers and ourselves about last week’s article. Several readers feel this ruling is pointing to expansion of workers’ compensation coverage in this state when every economic and political indicator from Springfield is pointing against such expansion as running contrary to economic indicators, job creation and job maintenance. We point out several of our sister states are already advertising on Illinois highways heralding their tax structures are so much more business-friendly. It is our hope to avoid similar billboards from our sister states to point out they are much more reasonable in providing their workers’ compensation benefits.

We caution our readers the MWRDistrict may be authorizing their defense counsel to seek certification to the Illinois Supreme Court by the members to the Appellate Court, Workers’ Compensation Division—two of the justices have to approve the request. Thereafter, the Supreme Court has to take the case—appeals at this level are not automatic. We have no idea what the Supreme Court might do with the case but, if the matter is certified and our highest court takes this claim, we hope they may take a long hard look before signing off on a ruling which greatly expands coverage in a fashion not contemplated in over 100 years of workers’ compensation benefits in our state.

If the Illinois Supreme Court takes the claim, we assure our readers we will poll our clients and ask leave to file an amicus curiae brief in support of reversal of the Appellate Court ruling. While we are certain the MWRD has a very solid and capable defense attorney, our focus would be the impact such a ruling has upon Illinois business, certainty of coverage and the spiraling cost of workers’ compensation claims in our state if coverage is expanded to “presume risk” is present in fall-down claims.

From a reader, we received a photo of the driveway where claimant asserts she fell and suffered injury. We can forward it to our readers upon your request—this is from the public record. Looking at the photo, we don’t see any apparent or latent defect with this commercial driveway. Comparing the photo to the record, we don’t see what the reference in the ruling to a “6 inch dip in the driveway” might refer to but we want our readers to understand our perspective there isn’t a hidden “trench” or large gap in the pavement. We do not see any signs of damage or disrepair. The driveway is configured for drainage and appears intact without visible cracks, concrete spoilage or other signs of unusual wear or breaks.

From reviewing the photo, we feel the chances of a premises liability suit for this fall-down to be minimal to non-existent; claimant would have to sue for defective design which is a very difficult claim in the Circuit Courts. In a similar vein, we have again reviewed the ruling and we don’t see any specific testimony by claimant pointing to a defect or aspect of the driveway which might have caused the fall-down. We are fairly confident a premises liability claim brought on this record would be dismissed on motion. The point of this is to advise our readers of our view there was no apparent or increased risk to this claimant in crossing the driveway—in our view, she wasn’t watching what she was doing or where she was going and sadly, suffered the consequences. The work didn’t increase the risk you or I face every day we go for a walk in the city, whether we are at work or play.

The reason we are pointing out our view of the ruling, facts and the record is a concern from several readers about whether our Illinois reviewing courts are going to start “presuming risk” or more aptly put “presuming increased risk” in workers’ compensation fall-down claims. And if they are going to do this in fall-down claims, how long will it take to presume risk in all injuries that “arise out of” the employment? We feel the new concept outlined in the majority ruling which is called “street risk” may be signaling that intention.

We read the ruling to state the legal principle that an employee who is in the course of employment and exposed to the normal and ordinary risks of the “street” and suffers injury is entitled to full benefits. It does not appear this employee had to define any heightened defect, negligence or arguable fault on the part of the keeper of this driveway. And we point out just about every driveway we have seen is inclined and has gutters built in as drainage features for obvious reasons. We simply don’t feel benefits being awarded for falling down on an intact, well-maintained and typical commercial driveway has ever been compensable to the extent Illinois has never adhered to the “positional risk” doctrine. With respect to the four members who joined in the majority ruling we feel this new ruling is a dramatic departure from prior Illinois WC law in a number of ways.


First, as we outlined in last week’s KC&A Update, the Illinois Supreme Court considered a very similar issue in Caterpillar Tractor v. Industrial Commission. In Caterpillar Tractor, claimant fell stepping over a street curb. While their ruling isn’t particularly detailed as to the status and upkeep of the curb, we feel it is safe to assume the curb was an ordinary street curb in an ordinary state of repair.

It is also our understanding the issue of “in the course of” employment was not disputed. Comparing the Supreme Court’s ruling in Caterpillar Tractor to MWRD v. IWCC, it is hard to understand how the risk of stepping over a curb wouldn’t be a “street risk” as the very concept of what a ‘curb’ might be is a drain or border on a city street. It is our view the Supreme Court ruling denied benefits in Caterpillar Tractor for precisely such “street risks” in their last ruling on this topic. We consider it amazing to see Appellate Court Justice Thomas Hoffman, who authored the majority ruling in MWRD v. IWCC and has an “IBM® Watson-like” encyclopedic mind for judicial rulings wouldn’t mention or seek to put this new ruling into alignment with the prior Supreme Court ruling on a very similar set of facts.

Second, the Appellate Court, Workers’ Compensation Division itself issued a ruling named First Cash Financial v. IWCC a couple of years ago. The facts in First Cash Financial involved a worker who fell in a bathroom. The problem with the record on appeal is claimant did not testify to a reason for the fall down—she simply indicated she fell and suffered injury and had no idea what caused the fall down. The Appellate Court’s well-reasoned ruling clearly outlined their position at the time about a refusal to “presume risk” in a fall-down claim. They very carefully indicated the failure of claimant to meet the burden of proving a cause for the fall-down doomed the claim for benefits.

Comparing First Cash Financial to this ruling, it is our humble view the cases cannot be countenanced—it appears the Court’s majority has created a term of art called “street risk” which causes one to wonder why they couldn’t have used a similar concept for “bathroom risk” to find the earlier ruling compensable. Workers fall in both bathrooms and on streets for any variety of reasons. From the earlier ruling in First Cash Financial, it appeared incumbent on claimant to come forward to provide the Arbitrator and Commission with evidence of an increased risk. We again find it fascinating to see this ruling wasn’t mentioned at all in the Appellate Court majority’s opinion.

Finally, we look to the concurring opinion of Justice Holdridge who is one of the most academic and veteran of the five-member justices who comprised our Workers’ Compensation Division of the Appellate Court in this claim. His detailed and well-reasoned concurrence outlines what we feel is his discomfiture with the new and unprecedented legal theory being presented.

All in all, we will have to see where things go moving forward. As we have advised our readers in the past, it is very difficult to predict outcomes when you ask questions about compensability in fall-down claims. Starting with the ruling in Chicago Tribune v. Industrial Commission in 1980 where our reviewing courts found completely differing interpretations of the synonyms “idiopathic” and “unexplained,” it has been a continuing puzzle, wrapped in a conundrum surrounded by an enigma to figure out what they will do. Our main advice is to investigate, investigate and investigate to get the best sense of what really happened. After completing your investigation, contact one of our defense attorneys at KC&A and get their best thoughts on accepting, defending or settling the matter.

We appreciate your thoughts and comments. Please do not hesitate to reply or post them on our award-winning blog.