5-19-14; New Fall-Down Rule for Gov't Workers?; Respondent Loses its 'Compass,' the Right to Depose Their Expert and the WC Claim; WCLA CLE Update to Include Amish WC Insurance Req'ment and much more

Synopsis: What Continues to Kill Illinois—Out-of-Control Gov’t Fringe Benefits, Including Workers’ Comp, for Many Public Sector Workers.

Editor’s comment: We write this article with all the appropriate respect for our Appellate Court, Workers’ Compensation Division’s five members. Having outlined our respect for the Court, from a purely academic perspective, we can’t disagree more with this ruling. In Brais v. The Illinois Workers' Compensation Commission, 2014 IL App (3d) 120820WC, issued May 8, 2014, the Court considered a record which indicated the worker was a government employee of Kankakee County. Claimant Brais worked as a child support coordinator in the Kankakee County Courthouse.

The Arbitrator and IWCC on review found the worker sustained a left wrist fracture when her heel caught in a groove in a public sidewalk and she fell, suffering injury. She filed a claim for workers compensation benefits for an injury to her wrist. Please note your editor and all the defense attorneys at Keefe, Campbell, Biery & Associates have gone to this wonderful old courthouse on a monthly basis for many decades. We are aware the sheriff and other security personnel have limited access for security purposes—you can only enter the building through a single door to insure everyone goes through a metal detector or other search. This Circuit Court venue dates back to November 1908 when county voters approved the construction of what was then a new courthouse. Zachary Taylor Davis was awarded the commission for the building. It was built by Lafayette, Indiana contractor W. F. Stilwell for $187,000. Construction began on October 2, 1909 and finished in July 1912, about three months after the sinking of the Titanic. The courthouse has remained in continuous use since its 1912 opening. On March 7, 2007, the building was recognized by the National Park Service with a listing on the National Register of Historic Places.

In the Brais ruling, the record further indicated Claimant fell while walking from a work meeting at an administration building to her office. It appears she had to enter through the front door of the courthouse, which was only means of access for employees and the public alike. The record indicates Claimant took this route daily. We point out everyone who goes to this court building with any regularity, such as bailiffs, judges, IWCC Arbitrators, attorneys on both sides, paralegals, court reporters, visiting school children, criminal defendants, claimants, families, county officials, effectively thousands of people take the same path and crossed this same sidewalk most days of the year. If you didn’t read that list carefully, please note former Arbitrator James Giordano who was assigned to this claim had to walk that sidewalk every day they had hearings in the building. We are all going to assume former Arbitrator Giordano didn’t feel the sidewalk he used every day was the equivalent of a WWI war zone to cross when he denied the claim.

The appellate ruling found even though the general public regularly used this sidewalk and faced the identical hazard of the “groovy” sidewalk, the Court’s members found Claimant faced a “special hazard” which became part of her employment. The decision indicates her work requirement that she attend meetings at the administration building increased the risk of injury on this otherwise ordinary public sidewalk.

In response, we note former Arbitrator Giordano and IWCC panel didn’t specifically find there was a “defect” in the sidewalk—they simply denied the claim as a risk common to the public. The Appellate Court basically ignored the Arbitrator and Commission’s view of the record and substituted their own judgment to characterize the sidewalk as “defective.” In our view, they are basically injecting their view of the facts over that of the hearing officers below—the Illinois Supreme Court in two landmark rulings in Twice Over Clean and Sisbro ruled this panel isn’t supposed to substitute their own judgment for that of the Commission when it comes to the facts.

For law students and other academic observers, we grin to see the Court’s analysis of the last ruling of the IL Supreme Court on fall-down claims such as this in Caterpillar Tractor v. Industrial Commission. In that ruling, Claimant tripped on a street curb and fell down to suffer injury, similar to Ms. Brais in this claim. Benefits were denied because the curb was a risk common to the public. In order to distinguish this ruling from Caterpillar Tractor, this appellate majority found the sidewalk here was “defective” where they opined the curb in Caterpillar Tractor wasn’t “defective.” In our reasoned legal view, this is something of a logical stretch—we feel you can readily find the curb in Caterpillar Tractor to be “defective” if you were so inclined. Claimant in that claim tripped on the curb, didn’t he? Couldn’t that Claimant argue, like Claimant Brais in this current ruling whenever you fall, there must be a defect? Couldn’t the reviewing court find the curb in Caterpillar Tractor was too high or too low or too new or too old or not painted yellow or painted with slippery yellow paint or whatever you want to make it compensable?

In our view, Illinois government is choking on the number one thing we are being forced to spend the majority of tax dollars on—we don’t spend the majority of our tax money on children or schools or teachers or poor people or medical care. Our Illinois Attorney General Lisa Madigan just filed a brief in the state government pension litigation confirming most of Illinois taxpayers’ money is being spent on inconceivably expensive government fringe benefits—government pensions which provide billions in benefits for people who don’t work for government any more or ever again. Similar to pensions, we feel hundreds of millions are also being spent to pay workers’ compensation benefits for government workers at the municipal, county, township and state level. This ruling combines with the ruling in Metropolitan Water Reclamation District to award substantial benefits for local government workers who suffer fall-downs in contrast to the legal analysis being provided for workers in the private sector. Rulings like the Braisdecision don’t come with a cost-accounting of this expanded WC coverage for county taxpayers—we assure you lots of government workers take the same paths when walking and, it makes no sense to us for government workers to get WC benefits where the rest of us fall prey to denials based on the “risk common to the public” rule.

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

            --------------------------------------

Synopsis: Illinois Appellate Court Ruling Adds Insult to Injury on Issues of Credits & a Request to Obtain Expert Medical Testimony. Analysis by Timothy J. O’Gorman, JD.

Editor’s comment: In Compass Group v. Illinois Workers’ Compensation Commission, 2014 Ill.App.3d 121283WC, Petitioner alleged an injury while lifting a case of pop when he felt an onset of pain and purports to have heard a hissing sound. Petitioner worked the rest of the day and was seen by his physician the next morning whereupon he was diagnosed with a sprain and immediately referred to a chiropractor. Petitioner continued to work until being seen by an orthopedic specialist who ordered an MRI and diagnosed him with stenosis. Petitioner continued to work for 2 days and woke up on the 3rd workday after his alleged injury. While preparing to leave for work, Petitioner fell down his stairs at home suffering lacerations on several places of his body. Petitioner returned to work that day however was driven to the hospital mid-way through the work day.

Petitioner underwent x-rays while in the hospital which revealed olecranon bursitis in his left and right elbows. After Petitioner’s condition deteriorated, it was revealed Petitioner suffered a blood infection and was transferred to the intensive care unit. Petitioner underwent several surgical spine procedures and was placed on a respirator for a short amount of time. He did make a recovery and was discharged from the hospital several months after admittance.

In preparation for trial, Petitioner was seen by an infection disease expert at the request of Respondent pursuant to Section 12 of the Illinois Workers’ Compensation Act. Respondent’s doctor, a well-known and respected doctor specializing in internal medicine, disagreed with Petitioner’s treating doctor, a general orthopedic surgeon, as to the cause of Petitioner’s blood infection. When it came time for trial, the Arbitrator found the deposition of Respondent’s doctor to be unnecessary and refused to require the Section 12 expert to be deposed, instead finding submission of his report at trial would not prejudice Respondent’s case. When the time came for the parties to proceed Respondent and Petitioner stipulated to payment of Petitioner’s medical bills stating:

The parties hereby agree and stipulate that the following medical expenses would be due and owing pursuant to [Section] 8(a) and the fee schedule provisions of [Section] 8.2 of the Act in the event the matter is found compensable. However, by so stipulating, Employer does not waive any objection it may have as to liability (or the reasonableness and necessity) of said expenses.

We note the some-times defense, some-times Petitioner/Plaintiff firm of Slavin & Slavin successfully handled this seven-figure win for Petitioner while the Ganan & Shapiro firm was wholly unsuccessful in defense of Respondent.

In its appeal, Respondent argued several issues should be overturned by the Appellate Court. It argued the Appellate Court should overturn the findings of the Commission on the issue of causation, highlighting the expertise of Respondent’s Section 12 expert in comparison to Petitioner’s orthopedic surgeon on an issue of internal medicine. Second, they argued the order of the Arbitrator allowing the parties to proceed without the deposition of Respondent’s expert prejudiced the parties and the matter should be remanded for rehearing to allow for the deposition of Respondent’s expert. Third, Respondent argued any bills paid by 8(j) group health benefits should be capped at the negotiated rate and considered fully satisfied and the bills should not be paid pursuant to the Illinois Medical Fee Schedule.

In the decision, we aren’t shocked to note the Appellate Court, WC Division overwhelmingly found for Petitioner on each issue. The Appellate Court correctly summed up the positions of the parties stating “[t]he crux of the issue involves the divergent opinions of Claimant’s treating physician, [name omitted], and Respondent’s Section 12 examiner.” The Appellate Court refused to adopt the findings of Respondent’s Section 12 expert on the basis “we cannot say [Respondent’s expert] heightened expertise is so compelling that it renders a conclusion opposite to the Commission’s clearly apparent.” We must note the opinions of the experts being considered in this situation is not one of two members of the same field where one expert is seemingly more experienced. The two experts in this instance practice in two entirely different fields of medicine with Respondent’s examiner being an expert in internal medicine on an issue of a blood infection. We respectfully point out the expertise in question is not simply an issue of being “heightened;” it appears the question to us is whether Petitioner’s expert has any expertise on the issue at hand at all.

After affirming the decision of the Commission on the issue of causation on the basis of the experts’ respective medical testimony, the Appellate Court refused to allow for a rehearing to allow for the deposition of Respondent’s expert witness. The Appellate Court found the Arbitrator’s refusal to allow the deposition was not an abuse of discretion that would prejudice Respondent’s case.

We must note the arguments put forth by Respondent, as cited in the decision, state specifically the Arbitrator’s decision “scarcely addressed its concern that [Respondent’s expert’s] professional background in internal medicine and infectious disease be recognized and ignored the importance of a more detailed explanation by [Respondent’s expert] of the foundation and supporting evidence for his causal opinion.” The Appellate Court answers “Respondent never states what additional information would have been provided in a deposition. It never identifies any opinions in need of clarification, much less how they would have been clarified. It does not explain why [Respondent’s expert’s]curriculum vitae is insufficient to establish his credentials.”

Finally, the Appellate Court examined the stipulations of the parties in regard to the payment of medical bills. Respondent contended any bills paid under 8(j) group health benefits should be considered fully satisfied at the rate paid by the group health carrier. Often times, group health carriers will negotiate a rate lower than the rate provided in the Illinois Medical Fee Schedule which could lead to a savings if the stipulations are made correctly. According to the decision provided by the Appellate Court, Respondent seemed to only stipulate that bills would be paid pursuant to Section 8(a) and Section 8.2. As such, the Appellate Court found all bills awarded in the decision of the Arbitrator pursuant to the fee schedule cannot be changed to include rates previously negotiated by Respondent’s group health carrier. The Appellate Court explained “having expressly agreed that these amounts were proper, Respondent will not now be heard to complain of them.”

To avoid such a finding by any level of administrative review, we recommend including five simple words when stipulating to the payment of medical bills at trial. If there is any issue of payments made by a group health carrier in a workers’ compensation matter, Respondents should routinely ensure the stipulation on the record includes “or any previously negotiated rate” in its statement of liability for medical bills. Including this statement effectively eliminates the need for further litigation around the liability of group 8(j) benefits and is adequately specific to ensure no credits are lost at trial.

This article was researched and written by Timothy J. O’Gorman, JD. Please direct questions to Tim at togorman@keefe-law.com. We appreciate your thoughts and comments. Please post them on our award-winning blog.

                ---------------------------------------------------

Synopsis: Our Report on the Recent WCLA Presentation Including the Amish WC Insurance Requirement. Thoughts and Analysis by Matthew G. Gorski, JD.

Editor’s comment: On May 14, 2014, recent IL WC Commission decisions, specifically issues from AWW to vocational rehab to WC insurance, were presented by WCLA in a continuing legal education format. These presentations are excellent and open to the public. We encourage our readers and attorneys on both sides to attend, participate and learn nuances and case precedents from some of the top lawyers in our state. Some highlighted cases are examined below.

(1)  Julie Meierdirks v. Northbrook School District #28, 07 WC 39919, 12 IWCC 647

This case involved a high school teacher who fell on newly installed carpet in her classroom injuring her left hip and head.  She was walking in normal fashion and the carpet was without apparent “defect.” The Arbitrator ultimately decided the accident did not arise out and in the course of Petitioner’s employment because Petitioner fell while walking in normal fashion.  In addition, the risk factor was neutral because it was not greater than that faced by the general public.

It is good to see IL employers may not be liable for employees who cannot adequately walk on normal walking surfaces in the realm of workers’ compensation. An interesting side note to this case was the Arbitrator ended up breaking down the AWW in a 40 week cycle instead of a 52 week cycle because some teachers decide to receive their checks in a 40 week cycle and some in a 52 week cycle.

(2)  Joshua Aubuchon v. M&M Tires, 11 WC 29530, 13 IWCC 972

Petitioner in this case received roughly $50.00 to $100.00 per week in tips.  The Arbitrator in this case allowed the tips to be included in his AWW, but the Commission found Petitioner failed to prove that his tips should be included. Ultimately, this decision was made on the basis there was no documentation of the amount of money he received in tips per week because these tips were received in cash from customers. 

Moral of the story from this case is if there is no documentation then the Commission views the tip money does not exist.  It is the Petitioner’s burden to prove income to be included in the AWW and without documentation that burden is not met.

(3)  IWCC Insurance Compliance v. Moses Miller (M&M Builders), 12 INC 537, 13 IWCC 986

Moses Miller owned M&M Builders, which was in the roofing business industry.  Mr. Miller’s position in this case was he did not have to obtain workers’ compensation insurance for his business because his religion (Amish) forbids it.  As you might predict this argument did not fly with the IL WC Commission which still wants Amish roofers to follow the law and insure for the risk of serious injury or death for their workers.

Mr. Miller cited Thomas Jefferson and the U.S. Constitution. The IL WC Commission denied his arguments on the basis the state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.  Therefore, if the government can find you need to protect your workers when they are injured, they can force you to insure for such risks. With respect to our Amish colleagues, we agree with the IWCC on this one.

This article was researched and written by Matthew G. Gorski, JD. Matt can be reached 24/7/365 for questions about IL WC at mgorski@keefe-law.com.