12-8-14; PART II Rising Min. Wage Bad for Jobs--Good for Your IL WC Claims; Brad Smith, JD Reviews Important ADA Win for Business; WCLA CLE Review by John Karis and much more

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Synopsis: The IL Workers’ Comp Lawyers’ Ass’n Final 2014 CLE Presentation for the IL WC Industry. Thoughts and Analysis by John A. Karis JD.

 

Editor’s comment: On December 4, several crucial IL WC cases were presented by the great folks at WCLA in a continuing legal education format. Some of their key IL WC issues are discussed below. 

·         Fall down rulings compared

One of the cases discussed was Village of Villa Park, in which an employee, claimed he was injured while going down a flight of stairs in a police station. These stairs were only used by employees in the station and were not open to the public. Consequently there was no dispute on the question of whether his injury occurred “in the course of” his employment. The Appellate Court found falling while traversing stairs is a neutral risk and the injuries resulting therefrom generally do not arise out of employment. As with personal risks, the Court ruled compensability under the Act exists where the requirements of the Claimant’s employment create a risk to which the general public is not exposed. “The increased risk may be qualitative or quantitative such as where the claimant is exposed to a common risk more frequently than the general public.” Id.

 

The Arbitrator denied the claim stating the act of walking down stairs by itself did not establish a risk greater than those faced outside the work place. Thus, the Arbitrator concluded Claimant failed to prove his injuries arose out of and in the course of his employment. The Commission panel reversed the Arbitrator's decision, finding the event was “caused” by an accident. The Commission reasoned, at the time of the fall, Claimant's use of the stairs fell within the “personal comfort doctrine” and, therefore, arose out of and in the course of his employment. Further, the Commission concluded Claimant's necessary and repeated use the stairs for his employment exposed him to a greater risk than the general public.

 

The IL Appellate Court, agreed with the IWCC decision and found the injury was compensable. They believed the facts supported the Commission’s finding Claimant’s fall and resulting injury arose both out of and in the course of his employment and its holding in this regard was not against the manifest weight of the evidence. The Appellate Court reasoned the evidence of record supported the Commission’s finding that the claimant was “continually forced to use the stairway” both for his personal comfort and “to complete his work related activities.” Specifically, the evidence established Claimant was required to traverse the stairs in the police station a minimum of six times per day. This fact coupled with evidence Claimant informed his superiors, prior to his fall, and his supervisor had seen him limping prior to the work event supported the inference the Village required the claimant to continuously traverse the stairs in the police station, knowing he had an injured knee.

 

We disagreed with this ruling when it was filed and continue to disagree respectfully with our peers at WCLA. We do not feel walking on stairs six times a day means Claimant was “forced” to do anything—he did his job and walked around his work station like thousands of workers do and that isn’t an unusual number of times to ascend and descend stairs to cause an increased risk.

 

Not All IL WC Fall Downs are Compensable

 

What if the claimant was injured walking down a hallway or other flat surface instead of stairs, would the injury still be compensable? Interestingly, the WCLA group discussed Julie Meierdirks  v. Northbrook School District #2 a case decided before Village of Villa Park. This case involved a teacher who fell while walking in a normal fashion without carrying any items and on what was termed by all parties as “industrial carpeting without defect.” The Arbitrator stated Petitioner did present any evidence to explain the cause of her fall. In fact, Petitioner stated she was not carrying any items in her hands nor was she walking at an increased rate. Therefore there was no evidence presented establishing a cause for the Petitioner’s fall which is the Petitioner’s burden in every case. The claim was denied and the decision became final.

 

·         Interstate Scaffolding/Matuszcsak is still out there

 

The defense attorneys in Matuszcsak v. IWCC have filed for a rehearing on this case and are awaiting results. The parties disagreed on whether the Commission utilized the correct legal analysis in vacating the arbitrator’s award of TTD following the Claimant’s termination from his employment for admitted theft. The Appellate Court held Claimant's for-cause termination, arising out of theft from employer, did not amount to refusal of light-duty work and thus did not provide basis for denial of TTD benefits.

 

The IL Appellate Court stated in their holding, per Interstate Scaffolding, the critical inquiry for the Commission when determining claimant's entitlement to TTD was whether his medical condition had stabilized and he had reached MMI. They ruled the Commission went beyond such considerations in vacating the Arbitrator's award of TTD and reversed to provide benefits. By this theory, anyone in light duty work can quit and still get benefits because almost all workers on restrictions are still under the care of a physician or other healthcare giver.

 

Please note our thought this ruling makes physician’s “off work” notes even more useless than in the past. We tell the attorneys on the other side and all claims handlers we never recommend paying any IL WC benefits based solely on a blind “off work” note from a doctor. If the legal standard above requires proof the worker needs continued medical attention and hasn’t reached MMI, a doctor can’t satisfy that standard simply by writing “off work” on a piece of paper and signing it.

 

This article was researched and written by John A. Karis, JD. The opinions John is voicing are his and not those of any member of WCLA or its board. John can be reached 24/7/365 for questions about WC at jkaris@keefe-law.com

 

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Synopsis: Quick Follow-up on Last Week’s Article about Refusing-to-Hire or Terminating Candidates/Workers with Criminal Convictions.

 

Editor’s comment: A number of readers asked about it and we have the answers as to what a federal “Statement of Rights” is if you don’t hire or actually fire someone with a prior criminal conviction.

 

“Statement of Rights” comes from the FRCA:

 

Under federal law, if an employer uses information from an investigative consumer report for an "adverse action" - that is, denying the job applicant, terminating the employee, rescinding a job offer, or denying a promotion - you must take the following steps, which are explained further in the Federal Trade Commission's web site, www.ftc.gov/bcp/edu/pubs/business/credit/bus08.shtm

 

  • Before the adverse action is taken, the employer must give the applicant a "pre-adverse action disclosure." This includes a copy of the report and an explanation of the consumer's rights under the FCRA.
  • A summary of consumer rights under the FCRA can be found at: http://www.esrcheck.com/file/CFPB_Summary-of-Rights-Under-FCRA.pdf
  • After the adverse action is taken, the individual must be given an "adverse action notice." This document must contain

 

    • The name, address, and phone number of the employment screening company,
    • A statement this company did not make the adverse decision, rather that the employer did, and
    • A notice that the individual has the right to dispute the accuracy or completeness of any of the information in the report.

 

Modified disclosure and adverse action procedures under the FCRA (§604(b)(3)(B)) apply to positions subject to U.S. Department of Transportation (DOT) regulations such as truck drivers. The DOT has independent authority to set qualifications for workers in transportation industries. (49 USC §31502).

 

We caution all of our readers to grab your employment applications and see if you ask candidates about criminal convictions. If you do, get that out of there or you will soon be breaking the law! Our defense team at KCB&A is happy to assist with any issues.

 

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Synopsis: JC Johnson of Dorsett, Johnson & Swift, our favorite Texas defense partner.

 

Editor’s comment: We get asked all the time who the best Texas defense lawyer may be and our response is uniform—JC Johnson of Dorsett, Johnson & Swift. Unlike Illinois, the State of Texas is booming with almost 400,000 new jobs in the Lone Star State this past year. Texas is getting more new jobs in a single month than Illinois has developed in the last year. JC Johnson is our go-to guy for national and regional clients needing solid defense advice.

 

Serving in senior management executive roles in the insurance and real estate industries, as well as serving as legal counsel for numerous companies within those industries, JC Johnson has extensive knowledge of both the business and legal issues that face companies in the modern business environment. This understanding allows him to offer legal solutions that are efficient and effective. Mr. Johnson manages the real estate, title insurance and workers compensation divisions of Dorsett Johnson & Swift, LLP and supports the firm’s liability defense litigation division in the North Texas region.

 

Additionally, Mr. Johnson assists clients with commercial contracts, commercial collections, entity formation, employment issues and business litigation. He also serves the business community as a speaker and educator on topics of legal issues, risk management and litigation. They are a one-stop shop with defense coverage for virtually the entire states of Texas and Oklahoma.

 

His great website with photo, background and contact information is http://dorsettjohnson.com/attorneys/jcjohnson/.