Synopsis: In IL Work Comp, Is An Employer Provided Credit for Prior “Arm as a Whole” Awards/Settlements When There Is A New Arm Injury?
Editor’s comment: Illinois workers’ comp is a very odd place to work sometimes. For reasons known only to our Appellate Court, Workers’ Comp Division, in a controversial ruling in 2012 titled Will County Forest Preserve District v. Illinois Workers’ Compensation Comm’n, 1-14-3044WC they unexpectedly ruled the ‘shoulder’ was no longer to be considered part of the “arm.” In so doing, they reversed about one hundred years of prior and otherwise unremarkable workers’ comp law, rulings and settlements where the shoulder was always considered part of the arm. With respect to the members of this panel, we also think their ruling simply doesn’t match our version of common sense—if you punch someone in the shoulder, most folks think you have struck them in the arm.
Why did the “shoulder” suddenly get legally divorced from the arm in IL WC? Well, we feel there are lots of theories that start with the Plaintiff/Petitioner bar and then somehow make it into law. There can be no area of jurisprudence in this state where the Appellate Court “legislates” more than in workers’ compensation. Many folks feel this comes from ITLA and its leaders who have enormous say before the IL Courts, as they legally donate millions of dollars to IL judicial campaigns. ITLA is also credited with creating what may soon be the highest judicial salaries in the nation with an annual 3% kicker every year. Illinois judges also have the highest “fake” judicial pension program on this planet—we call it “fake” because it is wildly unfunded and most judges/justices who have been retired for a couple of years aren’t receiving pension benefits from the fake pension fund, they are getting paid by you and I from current tax dollars.
So what’s wrong with the concept of judicial legislation in work comp? Well, judges/justices can only decide the new law based on the facts in front of them—unlike legislators, judges/justices cannot consider all the nuances and impact their rulings will have in the future when different facts are presesnt. What does that have to do with taking injuries to the shoulder away from being considered injuries to the “arm”—well, under the new “division” of an arm, do IL employers get credit for prior “arm as a whole” injuries? We are jokingly using the phrase “arm as a whole” because in “body as a whole” awards under Section 8(d-2), there is no legislative language which provides credit for prior awards or settlements. In our view, the reason the Will County Forest Preserve claim was brought to the Appellate Court, WC Division with precisely that idea in mind—strip out any credit for prior shoulder awards/settlements so each IL WC shoulder claim occurs in a vacuum.
Well, what if the injured worker had a prior shoulder claim that was awarded before 2012 for loss of use of the arm?
In Dorsey v. Illinois Workers' Compensation Comm'n, (decided April 8, 2016), the Appellate Court, WC Div., considered a claim by a City of Chicago street light maintenance electrician employee who filed a claim for workers' compensation benefits for undisputed injuries to his left arm. Claimant acknowledged he had a previous injury to his left shoulder (rotator cuff) which resulted in a settled WC claim with his employer for 30% loss of use of left arm. Under traditional analysis, any new injury to the same wing would come with a credit to the employer for that settlement.
In the new claim, the IL WC Commission awarded Claimant benefits for 15.57 weeks, which was for 37.5% of loss of use of left arm minus a credit for 30% loss of use of same arm as a result of prior settlement. Medical records from the prior injury indicate that surgery was limited to an area near the elbow, supporting the IL WC Commission's finding of prior injury to the arm and not the “shoulder.” The unanimous Appellate Court majority ruled the IL WC Commission properly awarded this municipal employer a credit per Section 8(e)(17) of Workers' Compensation Act, as the prior settlement was under Section 8(e) of the Act, for partial loss of use of left arm.
We think the whole thing is a model for how odd IL workers’ comp claims can be. We wish this reviewing court would simply return to the days where the shoulder was part of the arm so these anomalies would end. If they won’t, we hope some day the IL Legislature would consider the issue and legislatively “re-attach” the shoulder to the arm.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: “Mind-Speak” From the Workers’ Comp Section of the IL Bar Ass’n.
Editor’s comment: Like the article above, we saw an analysis of the “traveling employee” doctrine in the ISBA Section on Workers’ Compensation Law Quarterly Report for April 2016. The long-time and hardworking newsletter editor Rich Hannigan of Hannigan & Botha, Ltd. http://www.illinoisworkerscomplawyer.com/ is a strident and otherwise brilliant Plaintiff-Petitioner attorney from Lake County and the northern part of our state published this statement:
An injury that occurs when an employee is traveling from his home to work is not compensable because it does not occur in the course of the employment. An exception to this rule applies when employee qualifies as a “traveling employee.” A traveling employee is one whose work duties required him to travel away from his employer’s premises and therefore the traveling employee is considered to be in the course of his employment from the time he leaves his home until the time he returns.
What we take issue with is the summary fashion in which Editor Hannigan defines the term “traveling employee” as if that term appears in the IL WC Act or the IL Rules Governing Practice Before the Workers’ Comp Commission. We assure all of our readers it doesn’t. Again, you can take what you want from the “judicial legislation” that may or may not follow what he writes but we truly feel he should indicate he is providing you his personal theory or version of what he wants a “traveling employee” to be and why he wants it that way.
Please also remember lots of claims handlers mistakenly ask Claimant attorneys what they thing about a set of facts—from our experience, many claimant lawyers simply tell you how they think a situation is compensable. They rarely add the fact they are putting forward their theories or versions of what may be complex factual and legal questions. You can’t blame them for doing this—their job is to make money for their clients! We urge our readers including claims handlers, adjusters, risk managers, brokers, consultants to send an email for the KCB&A answer to any legal issue. We promise we won’t summarily tell you our version—we will give you research and case law on all situations or versions with the strengths and weaknesses of each. Just send a reply!!!
Attorney Hannigan does properly report the last decision on the topic by the IL Supreme Court in a ruling we shorten to Venture-Newburg-Perini denies the injured worker “traveling employee” status and work comp coverage. The editor also accurately notes the last decision by our Appellate Court, Workers’ Compensation Division in United Airlines v. Illinois WC Commission also denies both traveling employee status and coverage to a flight attendant injured on a United Airlines flight.
In short, we think the definition of what is a “traveling employee” is in constant flux. In our respectful view, we believe Editor Hannigan may want to agree the definition he provides in the quote above doesn’t match his analysis of the last two rulings on the issue by our reviewing courts.
To any and all of our readers, we aren’t shy to tell you we despise the made-up term “traveling employee” because it is questionable as a tool and arises from quirky and unpredictable judicial legislation. We ask everyone on both sides of the IL WC matrix to stop using the goofy concept “traveling employee” that to a pure analysis makes little sense—no worker should get workers’ comp benefits for the simple/sole fact they are arguably “traveling” when injured.
We prefer you use the traditional legal analysis that actually is in our legislation along with that of many of our sister states—“arising out of and in the course of” employment.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: Kevin Boyle’s NEW Indiana WC RATE SHEETS ARE HERE, if you want the new one, just send an email!
Editor’s comment: We now have the even newer 2016 IN WC Rate Sheet, adding that recent Indiana WC mileage change. We are happy to send to anyone who asks. For IN WC adjusters, you still need to check your PPD Reserves and insure they are in line with the new rates. To get a complimentary copy, simply email Kevin at KBoyle@keefe-law.com and/or Alea at AMcNellis@keefe-law.com for Kevin Boyle’s Updated IN WC Rate-Sheet!
AGAIN—If you want just one or a dozen or more, simply reply to Kevin at KBoyle@keefe-law.com and/or Alea at AMcNellis@keefe-law.com They will get a copy routed to you before they raise the rates again! Please confirm your mailing address if you would like laminated copies sent to your home or office!
Synopsis: Are You NUTS?? When Can An Employer Demand a Worker Undergo a Psych Eval--Federal Appellate Court Finds No ADA Violation When the Facts Are There. Analysis by John Karis, J.D.
Editor’s Comment: Sometimes alarming statements made at work may justify a fitness examination. Earlier this month, the 6th Circuit Court of Appeals found the Ohio State University Medical Center did not violate the ADA with the use of a psychiatric examination to determine if Plaintiff was still capable of performing her job. The Federal Court found there was enough evidence to allow the employer to inquire whether the Plaintiff was still capable of performing her job.
In the case of Barnum v. The Ohio State University Medical Center, Plaintiff worked as a Certified Registered Nurse Anesthetist. In 2011, she was having issues at home due to a divorce and other family matters. A co-employee advised her supervisor that Barnum said, “…maybe I’d be better off (if) I wasn’t here, maybe I should just put a gun to my head, maybe I should just not be here.”
An anesthesiologist at the hospital also became concerned about the employee’s ability to concentrate on taking care of patients. A surgeon had to ask her twice to raise a patient’s operating table because she was not paying attention. When the surgeon got the employee’s attention, she said words to the effect that “I’m not worth anything or I’m worthless, what good does it do or what difference does it make, why should I even be here, maybe I should do everybody a favor and not be around.” For her part, the employee denied ever having this specific conversation with this doctor, but she did admit to being unable to adjust the height of the operating table and becoming frustrating and tearful.
Several doctors at the hospital became concerned about possible suicidal risk, leading the hospital to place the employee on sick time leave for one to two weeks in October 2011. The hospital requested a fitness-for-duty examination with a psychiatrist. The employee was concerned about doing this in part because her husband worked as a case manager for the OSU mental health department and he might see the medical records. Eventually the employee saw a psychiatrist, Dr. Masterson, on November 16, 2011. The hospital wanted to make sure this psychiatrist spoke with one of the physicians from the hospital who was aware of some of the comments that had been made at work.
Dr. Masterson prepared her report, which the employee delivered on February 22, 2012. In that report the doctor stated the employee was fit for duty and always had been. However, the doctor had not spoken with the key physicians at the hospital, so the hospital would not allow its employee to return to work. The employee filed a Charge of Discrimination with the Ohio Civil Rights Commission in April 2012 because she was not being permitted to return to work. Eventually, the employee signed an authorization allowing Dr. Masterson to speak with two doctors at the hospital about her behavior and comments at work. On July 31, 2012 the employee presented a second medical report from Dr. Masterson stating the conversations with the doctors did not change her opinion: The employee remained fit for duty.
On November 9, 2012, the employee was reinstated to her position. She then sued for discrimination on the basis of disability. She argued OSU violated the Americans with Disabilities Act by requiring her to undergo a medical examination that was not job related. The Sixth Circuit Court of Appeals disagreed:
An employer may request a medical examination when ‘there is significant evidence that could cause a reasonable person to inquire as to whether the employee is still capable of performing her job… The burden is on the Defendants in this case to show that the required mental-health evaluations were ‘job-related and consistent with business necessity.’
The Federal Court said in this case there were numerous and legitimate concerns about whether the employee could perform job tasks and concentrate at work. The hospital had been informed the employee had made a comment suggesting suicidal thoughts. “These circumstances constitute significant evidence that would cause a reasonable person to inquire whether the employee is still capable of performing her job.” The Court therefore dismissed Plaintiff’s suit.
It is important to consider this decision when handling delicate matters similar to this case. Psychiatric examinations are a sensitive topic but as this decision shows, if the warning signs are there and the employee is having difficulty completing their tasks, it is okay for an employer to request a psychiatric fitness examination to determine if an employee is capable of working.
This article was researched and written by John Karis, J.D. You can reach John 24/7/365 for questions about general liability, employment law and workers’ compensation at email@example.com