1-19-15; Will IL Reviewing Courts Ever "Hear the Other Side?"; Oops, Employer Lists EEOC Charge in SEC Filing, by Brad Smith; Choice Between Brain Specialist or Internist, review by John Karis and...
/Synopsis: Will the IL Supreme Court and Appellate Court, WC Division Ever “Hear the Other Side?”
Editor’s comment: Way back in October 2013, the Illinois Chamber of Commerce was increasing efforts to reform Illinois’ workers' compensation system. They issued a comprehensive report that took aim at reviewing court justices and their court opinions for "activism" the business group says hurt our state's economy. In the report called "The Impact of Judicial Activism in Illinois," our State Chamber detailed 19 reported ruling in which it confirmed decisions by the Illinois Workers’ Compensation Commission would have limited benefits to injured workers but the rulings were overturned or otherwise eviscerated by our venerated Appellate and Supreme Court justices. The report can be viewed online at:
http://ilchamber.org/wp-content/uploads/2012/05/1WorkersComp.pdf.#sthash.UHiFD4yl.dpuf
As a result, the report says, at least some of the benefits or cost-reductions promised and adopted by the Illinois Legislature from the 2011 Amendments to the IL WC Act had not arrived. "The pattern of adverse decisions being rendered by Illinois courts in workers' compensation cases is such that an employer or insurance company may well conclude that, no matter how egregious the indignity" it has no choice but to settle and pay, the report says. "The judiciary is not in line with policy objectives aimed at promoting job growth."
Illinois now has the seventh-highest workers’ compensation insurance premiums of the 50 states, when it used to be somewhere in the middle. Political squabbling over the judiciary and its rulings on workers' rights is far from new in Illinois. In 11 of 19 cases reviewed in the report, IWCC rulings denying benefits were overruled, the report says. In seven of those cases "the court overturned or significantly departed from long-standing precedent."
Audi Alteram Partem – Hear the Other Side
We were looking up other things when we saw the Latin phrase above that is at the top of the Illinois Courts website. We have surveyed numerous lawyers on both sides in an informal setting to ask the last time the Illinois Supreme or Appellate Court returned a ruling for the defense side of the bar. The last one anyone could recall was Airborne Express v. IWCC. That decision limited overtime as part of the average weekly wage unless it was mandatory—the ruling was published in March 2007 which is almost eight years ago. In our view, the “other side” has almost disappeared when it comes to workers’ compensation rulings by our reviewing courts.
We did have one person who responded to the survey point out the IL Supreme Court reversed the Venture-Newberg Perini Webster & Stone ruling and they felt that was a defense outcome. We point out it might be construed in that fashion and salute the august members of the Supreme Court for getting it right, in our respectful view. However, it is hard to be happy about a claim that had to go all the way to our highest court to avoid having a truly anomalous legal concept cause the Illinois workers’ compensation system to completely ruin our state’s economy. What we are looking for is a decision, like Airborne Express above that limited WC costs and/or benefits in a favorable way from the start to the end.
What We Continue to See
Case after case where benefits are still being unanimously increased due to the phenomenon of what we call “judicial legislation” or new and unprecedented decisions which expand IL WC benefits. We point to the
· Village of Deerfield v. IWCC in which the worker was provided a doubled-up award of lifetime wage loss differential benefits along with weekly PPD for the body-as-a-whole for his shoulder.
· Beelman Trucking v. IWCC ruling where an injured worker could receive an award of lifetime total and permanent disability benefits along with a very expensive doubled-up weekly PPD benefit for statutory loss;
· Forest Preserve District of Will County v. IWCC where the Illinois courts redefined the “shoulder” to no longer be part of the “arm” so as to strip out the credit employers had for decades for multiple shoulder/arm injuries;
· Village of Villa Park v. IWCC where walking a staircase at work six times in an eight hour shift was considered to be frequent and the ruling actually indicated Petitioner was somehow “forced” to use the stairs in a police station(?) so as to cause the fall-down on clean, dry, well-lit stairs to be compensable;
· Interstate Scaffolding v. IWCC and Matuszczak v. IWCC where workers on light work can’t be cut off from TTD when they disqualified themselves from work due to the commission of acts that were criminal in nature.
What we aren’t hearing is “the other side.” We hope there may someday be a single Appellate Court justice of the five venerated members of that judicial body who will present the “other side” in a dissent or in a majority opinion. As we have indicated on many occasions, our IL Supreme Court has three Republicans on the seven-member panel. They control the makeup of the penultimate reviewing panel. We again ask why are there no business representatives on the “activist” appellate panel below?
We appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: Proceed With Caution When Disclosing EEOC Charges in SEC Filings! Important Seventh Circuit Ruling Reversing Employer’s Summary Judgment Victory Due to Employer Including Employee’s EEOC Complaint in SEC Filing. Analysis by Bradley J. Smith, J.D.
Editor's Comment: The Seventh Circuit recently reversed the United States District Court for the Eastern District of Wisconsin’s grant of summary judgment to International Monetary Systems Ltd. (“IMS”). In Greengrass v. International Monetary Systems Ltd., the employee sued her former employer, IMS, alleging it retaliated against her for filing a charge with the Equal Employment Opportunity Commission (“EEOC”), when IMS named her in its annual SEC filings and casted her complaint as “meritless.” As a result, the employee argued she was unable to obtain new employment.
The Eastern District Court granted summary judgment in favor of IMS finding the employee lacked evidence demonstrating a causal link between her EEOC filing and the alleged retaliatory act. In reversing the District Court, the Seventh Circuit reasoned the employee did make out a prima facie case of retaliation by showing she engaged in a statutorily protected activity, and further demonstrated IMS engaged in an adverse employment action when it disclosed her name in its SEC filings. The Court reasoned this could allow a jury to find IMS listed her name because she filed the EEOC charge of discrimination.
The Seventh Circuit found in 2008, IMS never mentioned the employee filed a charge in its SEC disclosures. The Court further found an email sent by IMS’s general counsel stating it could avoid a “large damages award,” because without the EEOC’s involvement, the employee “likely [will not] have the resources for a lengthy court fight.” Thus, the Seventh Circuit held, a reasonable jury could find IMS intended to retaliate against the employee when IMS finally learned the EEOC was giving credence to the employee’s charge of discrimination, and subsequently filed its SEC disclosure in April 2009 listing the EEOC charge.
It seems from the tenor of the opinion the general counsel’s email to the management team was the driving force behind reversing the District Court’s entry of summary judgment for IMS and determining IMS’s alleged intent to retaliate. Moreover, the timing of the SEC filing also drew into question the employer’s decision to subsequently include the employee’s charge in its SEC disclosure in April 2009. The Seventh Circuit viewed the continuous shifts in policy by not including and then including the employee’s charge in the SEC filings as evidence of pretext.
Consequently, public companies should be cautious about what they include in their public filings regarding charges or employment lawsuits pending against them. This information could be deemed retaliatory as it makes it difficult for former employees to find future re-employment opportunities.
We appreciate your thoughts and comments. The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding Title VII, employment law, and general liability defense at bsmith@keefe-law.com.
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Synopsis: IL WC Appellate Court Confirms Physician selected by Petitioner’s Lawyer Trumps Nationally Renowned Physician Selected by Respondent. Thoughts and analysis by John A. Karis, J.D.
Editor’s comment: In Bob Red Remodeling Inc. v. IWCC (issued December 31, 2014) our Workers’ Compensation Division of the Appellate Court of Illinois explained the basis for not suspending benefits and locking in a total and permanent disability award when an employee chose to follow advice of his treating internist rather than a prominent expert. Petitioner suffered an accepted and serious work-related accident on July, when he fell 11 feet from a rooftop. He was transported by ambulance to Advocate Illinois Masonic Hospital where a CT scan revealed small temporal lobe contusions and a seven millimeter hemorrhage. Petitioner speaks Polish but not English.
At Respondent’s behest, Petitioner was examined by Dr. Felise Zollman who is a national specialist and teacher in the field of closed head trauma with a resume and accomplishments of the highest order. Right now, she is the Lead on Memory Disorders and Co-Lead in the Head Injury Program at NorthShore University HealthSystem. She diagnosed moderate brain trauma; a right-knee meniscus tear; and left shoulder pain and stiffness with no range-of-motion limitation. She also diagnosed mild degenerative lumbar spine changes and depression, “likely secondary to” traumatic brain injury. She believed Petitioner’s condition was causally related to his work injury. She recommended a neuropsychological assessment to be conducted by a doctor fluent in Polish to evaluate residual cognitive impairment. Respondent authorized the course of treatment recommended by Dr. Zollman. Petitioner refused to participate in anything but the exam.
Petitioner was examined by Dr. Forys, at the request of his attorney. Dr. Forys is board-certified in internal medicine but is not a brain/head injury specialist that we can tell. General internal medicine physicians or internists are primary-care doctors who perform physical exams and treat a wide spectrum of common illnesses in adult men and women—to our understanding, they wouldn’t take the lead on a brain injury claim but would typically refer such a patient and a chart to a specialist for obvious reasons. Dr. Forys diagnosed Petitioner with a traumatic brain injury, knee pain, and shoulder pain. He recommended Zoloft which is used for anxiety. A physical examination revealed a depression in Petitioner’s skull. Dr. Forys opined Petitioner’s condition was permanent and would not improve. He felt Petitioner would need assistance with all activities of daily living.
Thereafter Dr. Zollman reevaluated Petitioner and she opined his treatment “should be geared towards psychological and psychiatric care.” Dr. Zollman believed Dr. Forys was not providing appropriate care and he was not “current in his understanding of traumatic brain injury.” She disagreed Petitioner’s condition would worsen, as a traumatic brain injury is not a degenerative event. Respondent moved to terminate payment of benefits under the IL WC Act, arguing Petitioner’s failure to obtain appropriate care in accordance with Dr. Zollman’s recommendations constituted an injurious practice.
The Arbitrator denied Respondent’s motion to terminate benefits, and he found Petitioner was permanently and totally disabled. He noted Respondent was arguing Petitioner’s failure to follow Dr. Zollman’s recommendations regarding appropriate treatment constituted an injurious practice. Specifically, Dr. Zollman recommended vestibular rehabilitation for vertigo; further neuropsychological testing; speech therapy; and psychological testing and perhaps counseling for depression. The Arbitrator then observed Petitioner had, in fact, “undergone a long course of treatment by qualified physicians and therapists.” Further, after stating the credentials of Drs. Zollman and Forys, the Arbitrator expressly found Dr. Forys more “credible.” As such, the Arbitrator concluded Respondent had not shown Dr. Zollman’s careful recommendations offered a reasonable prospect of restoring Petitioner to a level at which he could perform work. Accordingly, he found Petitioner’s failure to follow her recommendations was not a basis for terminating benefits in accordance with section 19(d) of the Act. The IWCC affirmed. The Circuit Court went on to find the IWCC did not abuse its discretion in denying Respondent’s motion to terminate benefits in accordance with section 19(d) of the Act. The Commission noted Petitioner had, in fact, “undergone a long course of treatment by qualified physicians and therapists.” After reciting Drs. Zollman’s and Forys qualifications, the Commission found Dr. Forys more credible.
On appeal to the Appellate Court, Respondent outlined the Commission should have granted its motion to suspend benefits due to Petitioner’s refusal to follow Dr. Zollman’s recommendations regarding medical treatment. Section 19(d) of the Act provides, in pertinent part, “If any employee shall persist in insanitary or injurious practices which tend to either imperil or retard his recovery or shall refuse to submit to such medical, surgical, or hospital treatment as is reasonably essential to promote his recovery, the Commission may, in its discretion, reduce or suspend the compensation of any such injured employee.” In accordance with this provision, “benefits may be suspended or terminated if the employee refuses to submit to medical, surgical, or hospital treatment essential to his recovery, or if the employee fails to cooperate in good faith with rehabilitation efforts.” Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Comm’n. They also cited our IL Supreme Court which has stated, “[i]f a Petitioner’s response to an offer of treatment is within the bounds of reason, his freedom of choice should be preserved even when an operation might mitigate the employer’s damages.” Rockford Clutch Division, Borg-Warner Corp. v. Industrial Comm’n.
The Appellate Court noted Respondent was complaining Petitioner chose to follow the advice of his treating physician rather than Dr. Zollman. The Appellate Court found Dr. Zollman’s credentials with respect to brain injuries were more “substantial” than those of Dr. Forys. The Appellate Court further found several other doctors agreed with Dr. Zollman’s assessment. Nevertheless, the Appellate Court stated Petitioner was following the advice of his own qualified physician, and held his choices were not unreasonable in this situation. The Appellate Court affirmed the Commission’s decision.
In our opinion this ruling puts a great deal more emphasis upon the opinions of a physician selected by Petitioner’s attorney over a nationally renowned specialist. In doing so, the Appellate Court agreed Dr. Zollman had better credentials and multiple doctors agreed with her extensive diagnosis and opinions. Nonetheless, the Appellate Court still found Petitioner’s actions were “reasonable” because he aligned with his selected physician’s advice. The Appellate Court indicated it was not a question of which treatment plan was superior; it was whether Petitioner’s behavior was reasonable under the circumstances. With respect to the Arbitrator, IWCC, Circuit Court and the members of the Appellate Court, WC Division, we see no reason why Petitioner could not have been pressed to at least attempt to participate in the treatment plan laid out by this great surgeon and teacher of surgeons.
We would appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: The World of IL Workers’ Compensation mourns the passing of one of our most colorful administrators, Ray J. Rybacki.
Editor’s comment: Ray J. Rybacki, age 83, passed away last week. Ray was a former IL WC Arbitrator and Commission Chairman. He is still known for the ruling in Berrios v. Rybacki where Ray tried to get IL WC claims to hearing or dismissed.
One example of Ray Rybacki at his toughest was handling attorneys and clerks at status calls. If you talked loudly enough to be heard by Ray or drank coffee or read a newspaper at his status calls, Ray would take the newspaper and fold it into a dunce cap and you had to sit on stage with the dunce cap on until the end of the call. Sometimes, if there were newbie lawyers at the call, he would have three-five lawyers/clerks on stage wearing dunce caps during the call. You can’t imagine how quiet the calls got when that happened—you could hear a mouse burp in the large Wheaton auditorium.
Kidding aside, Ray quit/resigned from the IWCC on Y2K. Your editor will always miss his toughness and humor. We consider him one of the best and fairest hearing officers of the last century.
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Synopsis: Engage Directly with Experts in the Workers' Comp Arena at this Year's Illinois Workers' Comp Forum.
Editor’s comment: Do you administer workers’ compensation claims? Are you involved in strategic planning? Concerned with medical costs and utilization? Looking for a better understanding of workers' compensation?
Then you won't want to miss the Illinois Workers' Comp Forum, now in its 5th year. Moved to downtown Chicago at Loyola's Quinlan School of Business on May 4-5, 2015, the event provides attendees the opportunity to hear perspectives from and engage directly with experts in the workers' comp arena including:
- Joan Vincenz, Managing Director – Workers’ Compensation and Managed Care, United Airlines
- Gene Keefe, Esq., Partner, Keefe, Campbell, Biery & Associates, LLC
- Don Phillips, Safety Coordinator, City of Naperville
- Devin Stoll, Human Resources Manager, Cintas Corporation
Download the brochure and view their complete list of speakers. Visit their website or call: (646) 807-8555 to reserve your seat today. We look forward to seeing you this May in Chicago.
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Synopsis: KCB&A is looking for:
· A nursing home defense lawyer and
· A veteran WC claims handler for both IL and IN claims—the position is located in downtown Chicago.
If you or someone you know is qualified and interested, please send resumes in confidence via reply to this Update.