Synopsis: JOIN US!! Please join KCB&A By Adding Your Company Name To Our Amicus Curiae Brief to the IL Supreme Court!
Editor’s comment: The “traveling employee” concept is soon to take over and insure wildly increased WC coverage and costs for all IL employers. As we have advised our readers, the Venture-Newburg-Perini Stone and Webster ruling along with a similar ruling in Mlynarczyk have set a new standard for WC coverage in this state. The rulings provide global WC coverage for any “traveling employee”—the worker doesn’t have to be “traveling” at the time of the injury; they simply have to have a job where they don’t work “on the premises of their employer.” Anyone who doesn’t work on the “premises of their employer” gets global WC coverage for any injury, including injuries resulting from their own negligence when they are performing any “reasonable and foreseeable” task from the moment they leave the door of their home until the moment they return home.
Claimant in Venture-Newburg-Perini was a pipefitter who was going to work at a nuclear power plant and was injured in a motor vehicle accident as a passenger while traveling from his motel to the jobsite. He wasn’t on the clock nor had he appeared at the plant for a single minute of work—the employer or insurance carrier may have to pay over $1M in medical benefits for a claim that may eventually be worth over $2-3 million in value.
In Mlynarczyk, Claimant was a cleaning lady walking to her own vehicle to return to work after her lunch break. She slipped and fell on snow in her own driveway and fractured her left wrist. The employer or insurance carrier will now have to pay substantial WC lost time, medical and PPD benefits. Please note her potential negligence in cleaning ice and snow from her own driveway and failing to apply salt is now the “fault” of her employer.
In the third such “traveling employer” ruling, the same panel in Kertis v. Workers’ Compensation Commission considered a Claimant who was a bank branch manager for WaMu® or Washington Mutual®. He fell in a pothole on admittedly public walkway. This manager had to “travel” between two bank branches. The Arbitrator, IWCC and Circuit Court denied the claim, asserting the potential of stepping in a pothole in a street was a risk common to the public. The Appellate Court, Workers Comp Division has unanimously reversed and awarded substantial benefits.
In Kertis, the appellate panel ruled, as a matter of law, bank managers covering two work locations now are covered for all “reasonable and foreseeable” injuries, even those arising from their own negligence, from the moment they leave home until they return home. Their logic indicates bank managers covering one location would not receive such IL WC coverage. No other state does this--only in the IL WC system does that make any sense. Don’t take our word for it, please read http://www.illinoiscourts.gov/Opinions/WorkersComp/2013/2120252WC.pdf.
Please note the term or phrase “traveling employee” doesn’t appear at all in the IL WC Act or Rules—it has all been defined by our Commission and courts in what many critics feel is “judicial legislation.” Our hearing officers and courts can make it up as they feel best and leave the rest of us to guess where they will take the concept. For one example, we are wholly uncertain what the “premises of the employer” might be. Isn’t a truck driver driving in the company vehicle working on the premises of the employer? Does the employer have to own the “premises” or can they lease it? Can construction companies force their workers to move to and live in trailers on their job sites to avoid this expanded coverage and risk? Are municipal workers traveling within the municipality on the “premises of the employer” or does that only include City Hall? What if the cleaning lady in Mlynarczyk works most of the time cleaning her employer’s premises but then goes to your house or my house later in the day—is she a “traveling employee” all the time or some of the time?
The “traveling employee” concept was supposed to be for workers being sent overnight to odd and potentially dangerous foreign places. When they arrive, they would face unusual food, currency, kidnapping, disease and other extraordinary risks—our clients understand the reasons to expand WC coverage for such high-risk workers. What is now happening in IL WC is we are extending extraordinary WC coverage afforded to folks who variously face the risks of extraordinary travel to folks that may not even be “traveling” and don’t face any unexpected risks. We assure our readers virtually all members of the municipal/government, construction, road building and transportation industries will be provided this unusual and wildly expanded “traveling employee” WC coverage. Most members of the legal industry travel to courts, other hearing locations and client meetings and will also receive the expanded coverage. At-home workers will also get such coverage which may cause IL employers/TPAs/insurance carriers to seek at-home workers from other states to avoid the increased WC coverage and heightened costs—are IL at-home workers covered under WC the moment they wake up until they return to bed? If they fall out of bed but do so thinking about work, are they covered?
We don’t feel any of this will be good for IL business in this rotten economy. We also feel Illinois will soon have the most expensive of all WC state systems, if this concept remains IL WC law. Local and state taxes may have to be increased. WC premiums and reserves are certain to dramatically rise. We have already predicted a “WC fraud-fest” because the injuries don’t have to occur in the workplace or while traveling—a miscreant who injures their ankle playing ball with their friends can simply say it happened in their driveway while going to work a la Mlynarczyk.
Finally, as the “arising out of” and “in the course of” requirements are being discarded for millions of IL workers who don’t work on “the premises of their employer,” we assert all aspects of IL WC law and practice will have to change as the “stip sheet” and Commission decision forms and their IWCC handbook will have to change to include this new game-changing “traveling employee” concept.
We seek your corporate participation to allow us to add your name as a party amicus to the IL Supreme Court brief due on July 3, 2013. There is no charge to be added—we are simply trying to support the great attorneys who seek to get the IL Supreme Court to reverse or greatly modify the Venture-Newburg-Perini Stone and Webster ruling and return Illinois to the rules we have followed for 104 years. We appreciate your thoughts and comments; please post them on our award-winning blog.
Synopsis: How Can Reaching for a Soap Dish Become an Accident When Petitioner’s Story isn’t “Squeaky Clean?” Analysis by Ellen Keefe-Garner, J.D., R.N.
Editor’s comment: We feel the IL Appellate Court, Workers’ Compensation Division overlooks inconsistent evidence to arrive at the conclusion indicating the injury arose out of employment when the employee felt pain supposedly reaching for a soap dish. We have seen different outcomes in prior cases involving claimants reaching and moving in normal ways. For instance, see Hansel & Gretel Day Care Center v Industrial Commission in which a teacher’s assistant injured her leg standing up from a chair.
In Accolade v. The Illinois Workers' Compensation Commission, issued May 30, 2013, a caregiver at an assisted-care facility claimed she suffered a neck injury from reaching to remove a soap dish while helping a resident shower. More than a year after the incident, Claimant testified at trial she felt something in her neck pop when she reached out to remove a soap dish because she was concerned about it causing a “safety risk” since the resident might slip on suds while showering. Documents and testimony admitted at trial revealed very different and often inconsistent histories of how her pain had begun.
For instance, claimant’s incident report—which had been completed on the day of the alleged event--did not mention any safety concern caused by the soap dish and instead merely stated claimant felt pain and popping in her neck while assisting a resident with a shower. On another part of the same incident report, the manager in the facility also did not record any safety concern and instead recorded claimant felt a popping sensation when she simply moved her head. Similarly, Claimant’s Form 45 merely stated, “She [claimant] turned her head and something popped.” In a like manner, one day after the alleged incident, a doctor’s history indicated claimant felt pain in her neck when she had “reached” at work the previous day. Notably again, there was nothing in the doctor’s history about reaching for a soap dish or about protecting a patient.
Strangely, an x-ray report from the same day (the day after the alleged incident) gave an entirely different and conflicting history, indicating claimant felt a popping sensation with pain when she lifted a patient under the shower yesterday. A few days after the alleged incident, another doctor noted claimant had a “long history” of neck and back pain. This doctor used an MRI to diagnose the presence of a large C6-7 disc herniation with severe radicular symptoms. He referred her to a neurosurgeon for possible surgery and admitted her to the hospital the same day. Again, the neurosurgeon’s history from the claimant makes no mention of any soap dish or patient safety concerns and instead indicates claimant experienced a popping feeling with radiating pain into the right arm when she simply bent over at work. After Claimant underwent discectomy/fusion surgery, claimant’s attorney arranged an IME during which claimant for the first time asserted she had slipped and twisted her back helping a resident in the shower at work. During a subsequent IME performed at the request of her employer, claimant reported yet another story indicating the pain had developed as she bent over in the shower to reach for a bar of soap.
So, which one is it? Did claimant slip, twist, fall, lift, bend, reach, feel spontaneous popping or pain, or did she suffer from chronic spinal abnormalities? No one will ever know since despite all of the inconsistent and contradictory evidence, the Arbitrator subsequently concluded Claimant sustained an injury that arose out of and in the course of her employment. Ignoring the evidence which indicated the pain had arisen spontaneously and from normal bodily movements, like bending or reaching, the Arbitrator’s decision discussed the position of the soap dish under the shower head and how the location of it could or did allegedly create an increased risk to which the general public is not exposed.
The pivotal question on appeal was whether the act of reaching for a soap dish (the risk) was a risk to which this employee was exposed to a greater degree than the general public. The employer rightly noted if the injury arose from a hazard or risk to which the employee would have been equally exposed apart from her employment; the injury did not arise out of the employment. Defense counsel for the employer categorized the reaching as “not in any way peculiar to her [Claimant’s] employment.” Furthermore, respondent emphasized the documentary evidence-- which had been created on the date of the incident--was entirely and completely without any mention of any holding of the resident, lifting, reaching or moving in an awkward fashion.
Ultimately, the Appellate Court, Workers’ Compensation Division focused on the fact the soap-dish-reaching occurred while the claimant was allegedly trying to protect a resident from falling. Ignoring the same reaching would have occurred while doing numerous activities both inside and outside of work, the Appellate Court affirmed the award in favor of Claimant. Notably, in arriving at its conclusion for Claimant, the Appellate Court admitted it had to ignore the inconsistent renditions of events in the various documents created on the date of the alleged incident. The Appellate Court explained away these inconsistencies by stating it was within the province of the Commission to judge the credibility of the witnesses, determine the weight to assign the testimony, and resolve conflicts in evidence. Ultimately the Appellate Court indicated the inconsistencies in the documentary evidence were not sufficient to overturn the Commission’s decision. With respect to the members of this appellate panel, we feel the issue isn’t the obvious dispute over the facts, it is whether reaching for a soap dish can be defined as an accident when it is such a commonplace activity of daily life. We also cannot fathom how a worker can significantly herniate a disc when simply reaching for soap. Taking a broader view of this court, it is our view that if the appellate panel wants to affirm an award of compensation, they focus on the facts and confirm the manifest weight requires affirmance. If they want to reverse a denial to insure benefits are awarded, they appear to disregard the manifest weight of the evidence standard.
This article was researched and written by Ellen Keefe-Garner, J.D., R.N. who is our resident KCB&A lawyer-nurse. Ellen is licensed in both Illinois and Michigan. Feel free to contact her with questions or concerns at email@example.com.
Synopsis: The IL WC Community Mourns the Passing of Barbara Kalobratsos, J.D. and Sandi Usselmann, R.N.
Editor’s comment: Barb Kalobratsos was a brilliant defense lawyer and will be missed by hearing officers and attorneys on both sides of the practice. Barb received her Juris Doctor degree from The John Marshall Law School in Chicago, Illinois. While in law school, Ms. Kalobratsos participated in an internship with the Honorable Alexander White, Cook County Circuit Court Judge, Workers' Compensation Division. As an intern, her duties included researching and analyzing the law pertinent to workers' compensation matters, drafting judicial opinions and monitoring the various legislative proposals and their effect on the Illinois Workers' Compensation Act.
Throughout her career, Ms. Kalobratsos concentrated her practice in the defense of workers' compensation matters and subrogation claims. She also had vast experience in cases involving automobile negligence and product liability. As a seasoned trial attorney, Ms. Kalobratsos defended complex workers' compensation cases including death, heart attack and psychological stress-related claims at the Industrial Commission with favorable results. She has also handled cases in the Circuit Court of Illinois and in Federal Court, representing clients in both workers' compensation and civil matters. Her professional affiliations included the American Bar Association, the Chicago Bar Association, the Workers' Compensation Lawyers Association and the Hellenic Bar Association.
Barbara Kalobratsos was the beloved wife of Peter Wachowski and loving mother of Philip, Christina & William. Visitation is today from 3-9 pm Nelson Funeral Home 820 W. Talcott Rd. Park Ridge. Funeral Tuesday lying in state 9:30 am until time of service 10:30 am at St. John the Baptist Greek Orthodox Church 2350 E. Dempster St. Des Plaines. In lieu of flowers donations to www.wackywarriors.org will be appreciated.
Sandra Kay Usselmann was a nurse who worked with and for Illinois injured workers in the 35 years of her tireless work. She dedicated her life to assisting individuals in receiving quality medical care. Sandi owned Paragon Health Services and helped thousands of people return to work through her services. She touched and healed many more with her friendship, love, and tender loving care. Sandi battled breast cancer for approximately one and a half years.
Preliminary visitation arrangements are tonight Monday, June 24, 2013 at Valhalla Funeral Home. The website is: http://www.dignitymemorial.com/valhalla-gaerdner-holten-funeral-home.com It is located at 3412 Frank Scott Parkway West, Belleville, Illinois 62223. Sandi will be buried tomorrow Tuesday, June 25, 2013 at Green Mount Cemetery in Belleville, Illinois.
God bless and keep both of these great women and consummate professionals who lived and thrived in the IL WC system. We hope their family and friends find comfort in remembering their great work and achievements.
Synopsis: KCBA welcomes general liability, employment law and litigation defense specialist Chris St. Peter from the law firm of Winston & Strawn LLP.
Editor’s comment: Keefe, Campbell, Biery & Associates proudly announce the addition of Christopher H. St. Peter, J.D. to our legal team. Chris joins us from Winston & Strawn LLP, where his practice involved all aspects of complex commercial litigation in state and federal court. Chris graduated with honors from Chicago-Kent College of Law, where he was an executive articles editor of the Chicago-Kent Law Review and an extern for the Honorable Magistrate Judge Arlander Keys in the U.S. District Court, Northern District of Illinois. Chris will focus his practice on a full range of defense work, including general liability, employment law, product liability, and contract disputes. Chris can be contacted at any time at (773) 301-7244 or firstname.lastname@example.org.