6-5-2017; Springfield Scorecard--Nothing But More Debt-Uncertainty; Spine Problems Attributed to Fall as Aggravation of Existing Condition; Important Ruling about Barring Recording at Work and...

Synopsis: Springfield Scorecard—Nothing Happened But We Can Expect Spiraling Debt and Rampant Uncertainty.

Editor’s comment: As a quick note on the 2017 Spring Legislative Session for the IL General Assembly, they couldn’t basically agree on just about anything of value that might be considered or signed into law by Governor Rauner.

On the WC front, as we reported last week, the IL Senate was considering House Bills and the House was considering Senate Bills and they basically passed a bunch of hooey everyone agrees will quickly be placed into the legislative scrap-heap. As we have repeatedly advised our readers, if Governor Rauner wants lower WC costs, all he has to do is tell the hearing officers to make it so. He doesn’t need any of the comedians in our General Assembly in Springfield to cut these costs.

On other fronts, we are not aware of anyone truly taking on the 800lb. Gorilla—IL State Government’s unfunded and sometimes unfundable fake government pensions that are now at least $130B in debt. A recent study indicated there are about 480,000 IL gov’t pensioners in Illinois who collect $17B a year from taxpayers. The cost of investing the fake gov’t pension dollars appears to greatly exceed the pension investment returns! Whose Brother’s-Cousin’s-Uncle gets that wacky investment deal?

Senate President Cullerton has a solid and well-thought plan that would save $1B a year on spiraling gov’t pension costs. As you can imagine, every State union is now secretly fighting it with emails and robo-calls. With respect to Senate Pres. Cullerton who is a veteran and hard-working legislator, we vote pay off the current pensioners and quickly stop the entire fake pension process. Please, please stop giving away billions of our tax dollars on fake gov’t pensions that have never been properly funded and never will be. Consider 401K programs like the rest of our entire country does.

We want our readers to understand the Illinois/Chicago anomaly—they are both approaching “bankruptcy” when neither can actually end up in Federal Bankruptcy Court—federal law would have to change to allow a State to declare bankruptcy. Basically, the State of Illinois can stiff its creditors indefinitely without ever having to worry about it.

At present, the State of IL has about $14.5B in unpaid bills with a carrying cost that is about $800M a year. That number continues to skyrocket and should hit something like $25B by the time of the next state-wide election.

As silly as this all might seem, it is tragic for every one of our Illinois readers and basically anyone in this sorry State. Our taxes are unquestionably going to have to skyrocket and our legislators are certain to levy lots of new taxes on things that have never been taxed before. While we don’t see the changes to the IL workers’ compensation to be dramatic, what may be dramatic is the out-flow of jobs and citizens to other states that has already started and may accelerate sharply in the next 2-3 years. Please don’t shoot this messenger but be forewarned and forearmed.

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

Synopsis: Challenging WC Causation Ruling Finds Compensability Following Fall-Down. What would be the outcome in your state?

Editor’s comment: The Illinois Appellate Court, WC Division ruled last a worker’s ongoing back problems were related to her on-the-job accident, even though no clear objective medical evidence confirmed regression in her medical condition after she fell on a patch of ice at work.

It is a well-established principle that “(a) chain of events which demonstrates a previous condition of good health, an accident, and a subsequent injury resulting in disability may be sufficient circumstantial evidence to prove a causal nexus between the accident and the employee's injury,” the decision said. The unanimous majority also said the same concept holds true even if the worker was not in “a previous condition of good health” prior to the accident. The Appellate Court explained the “chain-of-events” principle is “nothing but a common-sense, factual inference” not a statement of law. So long as a worker was in a better condition before her injury than after, the decision said, “it is plainly inferable that the intervening accident caused the deterioration.”

In Petitioner Schroeder’s case, the Court noted, it was undeniable she had significant back problems before her December 2013 accident, but it was also undeniable that she was no longer able to work as a truck driver after her fall. The Court ruled the IL Workers’ Compensation Commission could draw a reasonable inference her fall was the cause of her continuing disability.

Claimant Schroeder had worked as a truck driver for Swift Transportation for a few months in 2005, and she was re-hired in May 2013. During the interim, Schroeder started collecting Social Security disability benefits for fibromyalgia. She also had two back surgeries, and her doctor recommended a third. Although Schroeder declined the surgery, she was still able to pass the physical exams required by Swift and by the Illinois Department of Transportation in order to return to work as a truck driver.

The record indicates Schroeder worked full time, living out of her rig and driving all over the country.

In December 2013, Schroeder slipped on a patch of ice while making a delivery to a Wal-Mart distribution center. She landed on her back. We do not see any contrary evidence indicating this event didn’t occur. Following the fall, Claimant Schroeder never returned to work for Swift, and the company eventually terminated her. Meanwhile, Schroeder continued to receive treatment for her back. She underwent surgery in April 2014.

The Arbitrator later found Schroeder’s fall-down at work was a compensable accident, and she was entitled to benefits for the temporary aggravation of pre-existing back problems caused by her fall. However, the Arbitrator further opined Schroeder’s need for the 2014 surgery hadn’t been caused by that accident. Her doctor recommended the same procedure in 2013 and no objective medical evidence disclosed a marked change in Schroeder’s medical condition after the fall.

The Illinois Workers’ Compensation Commission panel reversed the Arbitrator’s decision. Since Schroeder had been able to work full time before her fall and wasn’t able to work afterwards, the Commission panel reasoned the “chain-of-events” principle established Schroeder’s condition of ill-being related to her accident.

Swift appealed the Commission panel’s decision. McLean County Circuit Court Judge Paul Lawrence reversed the Commission. He determined none of the essential facts were disputed, which allowed him to use a “de novo” standard of review, giving no deference to the Commission panel’s findings. From his review of the evidence, Lawrence concluded Schroeder’s present condition of ill-being was not related to the December 2013 fall.

The IL Appellate Court was not persuaded by Judge Lawrence’s approach, finding the “manifest weight of the evidence” supported the Commission’s decision on causation. The Appellate ruling said it didn’t matter that Schroeder wasn’t a picture of health before she was hurt, because Illinois workers’ compensation law allows a claimant with a pre-existing condition a recovery if the job aggravates or accelerates that condition.

The court said that, “if a claimant is in a certain condition, an accident occurs, and following the accident, the claimant’s condition has deteriorated,” then it is reasonable factual inference that the accident was the cause of the “deterioration from whatever the previous condition had been.”  

While the court acknowledged that there was conflicting medical evidence as to the cause of Schroeder’s back problems, the court said it was up to the commission to resolve such conflicts. The court said there was a “clear basis in the record” for the Commission to disregard the absence of changes in objective medical tests, since Schroeder’s doctor testified there is not always a clear correlation between objective changes and symptomatic changes, and the absence of the former doesn’t necessarily mean the latter did not occur.

The main issue I have with challenging compensability is the unquestioned accident and the clear disintegration of Claimant’s condition thereafter. I can see why the Arbitrator and Circuit Court judge denied causation but the final decision is supposed to come from the IWCC panel.


I am wondering how a claim like this might be viewed in your state—please let me know your thoughts, on or off the record.


Synopsis: No Recording at Work Ban – Too Broad To Pass Federal Muster. Thoughts and Analysis by Lindsay R. Vanderford, JD. 


Editor’s comment: On June 1, 2017, the Federal 2nd Circuit Court of Appeals upheld the NLRB’s ruling a Whole Foods Market, Inc. policy barring employees from making audio or video recordings at work is unlawful because it could interfere with activity protected by Section 7 of the NLRA.


In 2015, the National Labor Relations Board used the standard adopted under Lutheran Heritage Village-Livonia to review a challenge to the Whole Foods’ recording policy. In considering employees’ rights under Section 7, the NLRB determined the policy was too overbroad. Section 7 guarantees employees the right “to engage in… concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.


On Thursday, a unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals affirmed that ruling, stating it was reasonable for the NLRB to have considered the no-recording policy to be so broad as to be construed to prohibit all relevant employees from “recording employee picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting   and   publicizing   discussions   about   terms   and   conditions   of   employment,   or   documenting inconsistent application of employer rules without management approval.” Whole Foods Market Group Inc v. NLRB, 2nd U.S. Circuit Court of Appeals, No. 16-0346, 4. The Court reminded everyone these are all protected activities within Section 7 under the umbrella of collective bargaining/mutual aid/protection.


Under the 2004 Lutheran Heritage standard, the NLRB determines whether a rule will constitute a violation if it meets any of the following three tenets:


(1) if employees would reasonably construe the language to prohibit protected activity,

(2) if the rule was promulgated in response to union activity, or

(3) if therulehasbeenappliedtorestricttheexerciseofprotected rights.


The Court found it reasonable for the NLRB to have considered the no-recording policy to meet the first of the three and thus to violate protected employee rights.   


In court filings, Whole Foods argued its policy was meant to encourage employee communication in the workplace, and not meant to target protected activity. The Court disagreed. 


Whole Foods attempted to challenge the legality of the Lutheran Heritage test, but failed to do so until the case had reached the appellate level. As such, the court rejected that challenge as forfeited


The NLRB has considered other recording bans under the Lutheran Heritage standard, and the Court made it clear passing muster was possible. The final footnote of the decision reads:


That is to say not every no-recording policy will infringe on employees’ Section 7 rights. It should be possible to craft a policy that places some limits on recording audio and video in the work place that does notviolatetheAct. WholeFoods’ interestsinmaintainingsuchpoliciescanbeaccommodatedsimplybytheir narrowingthepolicies’  scope. See FlagstaffMed.  Ctr., Inc. (holdingthat no photographypolicywaslawfulwherehospitaldemonstratedpatientprivacyinterest);  TargetCorp.359N.L.R.B. No. 103, slip op. at 2–3 (Apr. 26, 2013) (holding that reporting policy of unknown visitors in parking lot was lawful where rule was an employee safety policy).


Though the challenge to the Lutheran Heritage standard went unconsidered, its future may hang in the balance as well. Not only may the next employer challenge its legality at the administrative law level thus ensuring its consideration upon appeal, but inevitably the political tides are turning.


In its appeal, Whole Foods alleged under former President Barack Obama, the NLRB expanded its definition of “reasonably” so that practically any policy could be struck down. Further supporting filing argued the Lutheran Heritage standard upset the balance between management and employee rights the NLRA was designed to ensure. Other businesses agree.


President Trump is scheduled to fill the two vacancies on the Board, and one would expect this to result in a Republican majority especially with news outlets labeling his choices as “union-busters” and “pro-business.” Such a majority would be expected to revise or reconsider the standard altogether.


Synopsis: Join Shawn R. Biery, J.D., MSSC for a nationally broadcast Webinar July 17th, 2017 3:00 PM to 4:15 PM ET

Editor’s comment:  Workers’ Compensation: Return to Work Issues & Strategies

Can't attend live? By registering, you will be able to view the course live, view a recording at any time for 12 months, or both. This webinar will provide an overview of strategies and tips for reintegrating injured workers to production. In addition, the course will also provide tools for effectively managing claimants’ expectations and implementing protocols for claim management.

Upon completion of this course, you will be able to:

  • Analyze options which can be utilized on a claim by claim basis to set targets for return to work
  • Understand avenues to develop relationships with key stakeholders to assist in management of claim issues with focus on rapid return to work
  • Set targets for accommodated and full duty return to work for injured workers
  • Determine more specific strategies for your industry to minimize lost time claims
  • Describe HIPAA compliance issues

Receive a 35% discount for being a friend of the firm by using the promo code: SPKR35

You can sign up to attend at:


Please contact Shawn at sbiery@keefe-law.com with any questions or to find out how to have one of the KCBA attorneys provide a presentation to your office!


Workers’ Compensation in Illinois is complicated . . . Do you know everything you need to know about the Illinois WC system? Attorney Jim Egan of Keefe, Campbell, Biery & Associates will begin with a review of the basics of Workers’ Compensation in Illinois, including benefits, the Workers’ Compensation Commission, and handling a claim of injury from the beginning to end. He will then analyze and discuss in-depth important topics such as Temporary Total/Partial Disability, Nature and Extent of Injury, Wage Loss Differential, Discovery, Liens and related claims against WC benefits in Illinois, Surveillance, Retaliatory Discharge and How to Handle WC Death Claims.


The final section of the day will include a number of essential factors to be considered when you are dealing with any workers’ compensation claim. You will receive helpful information on pushing your claim targets, using real time examples. Keeping in touch with your workers and how to drive claim closure are key, so these will also be discussed.


This is a not to be missed workshop for anybody who handles Workers’ Compensation claims in Illinois.


Registration Information:

Tuesday, June 20, 2017

10:00 am - 4:00 pm

Holiday Inn Express, 1000 Plummer Drive, Edwardsville, IL 62025

Early Bird - (For everybody) - Sign up before June 10 - $249.00

Member (For members of the Illinois Chamber & local chamber partners) - $299.00

Retail Price - $349.00