Synopsis: IL WC Appellate Court Denies Stair Fall Down Claim. I remain baffled about the rules in IL WC slip-fall claims.
Editor’s comment: In Lampert v. The Illinois Workers’ Compensation Commission, et al. (Ferrell Hospital, Appellee) facts of the event are simple. Petitioner was a registered nurse for Ferrell Hospital. On November 26, 2012, after working a full shift at the hospital, she clocked out at approximately 8:00pm and headed to the parking lot where she usually parked her personal car. She exited the hospital to a set of carpeted stairs. As she descended the stairs, she reported she held on to the handrail because the stairwell was dark.
Without any apparent reason, she slipped off the top step and fell all the way down the flight of stairs, causing a serious injury to her left ankle. She was x-rayed and then diagnosed with a left ankle fracture. She underwent not one but two separate ankle/leg surgeries.
At the time of the event, she had a personal bag over her shoulder but her hands were free; she wasn’t holding anything. She described the outside weather at the time of the fall to be “misting and kind of sleety.” She also testified it was dark at 8pm on a November night. She admitted the stairs and parking lot were both open to the general public, patients as well as employees, but noted most non-employees used Ferrell Hospital’s front entrance or its emergency room door to enter and exit the hospital.
At arbitration before Arbitrator Lindsay, Petitioner’s claim was denied as she failed to establish her injury “arose out of” employment. Petitioner appealed the decision to the IL WC Commission panel headed by then-Commissioner Mario Basurto. The IWCC panel affirmed the denial. The matter went to the Circuit Court and then the Appellate Court, WC Division. In a unanimous but “non-published” Rule 23 opinion, the five-justice Appellate Court affirmed the decisions of the Circuit Court, Commission panel and Arbitrator.
The basis of the appeal was three-fold—Petitioner claimed she was exposed to a “neutral risk” on the staircase to a greater degree than the general public because
(1) It was dark outside (doesn’t it get dark outside most nights?)
(2) The “rained-on” stairs were wet and slippery, creating a dangerous condition (rain has a tendency to do that)
(3) She traversed the stairs more often than the general public. (Twice a day isn’t a lot more than the “public”)
The Appellate Court dispensed with the initial arguments confirming Petitioner had the burden of proof and she never attributed darkness or weather conditions to the reasons that she fell. The ruling notes she simply testified she slipped on the top step of the staircase. I wonder if she needed a surface analysis/expert on this subject.
The appellate ruling uniquely dealt with her argument she was exposed to an increased risk of injury, compared to the general public because she traversed these stairs more “often.” The decision ruled there was no evidence presented to distinguish the outdoor stairs Claimant was traversing, even if those stairs were potentially wet from rainfall, similar to any other typical outdoor stairway, across the globe.
The Court felt it did not have any evidence suggesting Petitioner was more likely to slip and fall on her employer’s premises than she or any other member of the public would be likely to fall on any other outdoor stairway that was exposed to rainfall (citing Dukich v. Illinois Workers’ Compensation Comm’n, 86 N.E.3d 1161.)
This ruling demonstrates the willingness of some Arbitrators/Commissioners and our reviewing courts to reign in compensability and the cost of workers’ comp in our State. I am sure our state WC costs are going down for this reason and that should be reflected in the 2018 State of Oregon WC Premium survey due this November or thereabouts. I have seen fall-down claims like this one ruled compensable and consider all fall-down rulings in Illinois to be unpredictable.
On fascinating aspect of this decision is how the Appellate Court ruled regarding Petitioner’s assertion she was exposed to an increased risk because she used the stairs more often than the general public. The Court did not agree with Petitioner that just because she used the stairs at least twice a day (if not more as it was not clear from the opinion) she was somehow exposed to an increased risk of a work injury. Instead, the Appellate Court ruling analyzed the specific facts of this event. Petitioner did not present any evidence this particular set of stairs was more likely to cause a slip and fall as opposed to any other set of outdoor stairs used by the public.
You can read the ruling at Lampert v. IWCC
Synopsis: Circuit Court affirms IL WC Arbitrator and Commission award of benefits/surgery despite gap in care after first MMI.
Editor Comment: IL WC Defense practitioners and claim handlers are encouraged to resolve cases promptly upon claimant reaching MMI, thereby avoiding the return for care which may be deemed related to the injury.
We came across this ruling and felt it was report-worthy, because of the lesson to be learned for the IL WC claims handler/defense community.
In Berkeley School District #87 v. IWCC and Salvador Maldonado (17 L 50476) Petitioner worked long hours shoveling snow over several days after a particularly heavy snow-storm in early 2015. He treated conservatively and all medical treatment wrapped up by March of that year. However, several months later in July, he asserted his symptoms returned and an MRI identified a tear and a concomitant need for surgery.
Respondent School District was understandably upset with this dramatic change in a simple back strain claim, as no new injury occurred and there had been an MMI release previously. However, a detailed assessment of the record and fact notes symptoms never fully resolved, leading to an arbitration award by Arbitrator George Andros for the requested surgery. The IWCC panel headed by Commissioner Stephen Mathis affirmed the award.
Upon confirming the Arbitrator and Commission award, Circuit Court Judge McGing complimented the careful and detailed analysis of Arbitrator Andros, which explained Petitioner’s lingering complaints, lack of any intervening event and expert medical support for causation and the reasonableness and necessity of surgery. It does appear from the IWCC computer this claim is moving to the Appellate Court, WC Division so watch this space for further news—please note the burden on Respondent will be demonstrating the ruling is against the “manifest weight of the evidence” or the decision of the court below is obviously wrong—that burden will be very challenging to meet.
It is our impression this award comes down to a temporal perspective. If the gap in care after the original MMI finding had been 14 or more months rather than 4 months, we may have seen a different conclusion. However, in the instance in which similar symptoms never fully resolve, or otherwise return within a relatively shorter time-frame, we can expect Arbitrators and other hearing officers, including the reviewing courts will find causal connection to the work-injury and the reasonableness and necessity of surgery.
From a defense perspective, the defense team at KCB&A recommends you institute prompt settlement negotiations upon the finding of MMI to seek avoid such complex situations.
Synopsis: E-Notice Announcement from IWCC.
Editor’s comment: IWCC Chairman Joann Fratianni announced another important step forward in the IWCC's modernization and technological upgrade of operations. Pursuant to the IWCC's Rules, as found in Section 50 of the Illinois Administrative Code, parties will receive case activity notices electronically beginning in about a month on July 2, 2018.
The IWCC will no longer send most case notices via U.S. Mail as of this date.* All parties (law firms on behalf of clients and pro se litigants) will be required to maintain a designated electronic mail ("e-mail") address for receiving case notices, just as they are now required to maintain a physical address to receive them by U.S. Mail. You only need to fill out the "E-Mail Registration Form" once (just like providing us your physical address), so they can update their system.
PLEASE NOTE that it does not matter if you already have an e-mail on file or in use with the IWCC – they are populating the system with new and updated information. So, please submit a law firm/pro se e-mail address to the IL Commission again.
* The only exception to electronic notices is Respondent parties at the time a case is initially filed will be notified that a case has been filed against them by U.S. Mail at the address provided by Petitioner. This is the current practice and won’t change.
Attorneys – Their system links cases before the IWCC to the law firm, not the individual practitioner. So, please provide the IWCC your firm's e-mail address for receipt of electronic notices. If one of your attorneys "updates" your firm e-mail address with their own, all firm notices will go to the most updated address.
If you have questions on this process, send me an email.