7-18-2016; Getting One's Mind Around "Causation" in IL WC; Matt Wrigley on Important Traveling Employee Ruling; Brittany Pendry on Review of Must-Read ADA Decision and more

Synopsis: Trying to Get One’s Mind Around The Troubling Issue of “Causation” In IL Workers’ Comp.


Editor’s comment: We had several readers recently bring this issue up and we wanted to give everyone our best thoughts. As you read this, Governor Rauner and the IL State Republican reform forces are struggling to change our IL WC Act to reform the concept of “causation” in this state. Our great Governor’s “Turnaround Agenda” says:


Workers’ compensation is a no-fault system. To recover on a workers’ compensation claim, the employee bears the burden of showing s/he has sustained accidental injuries arising out of and in the course of employment. Currently, if the employment is related at all to the injury, no matter how indirectly, the employee’s injury is compensable. If a work injury aggravates a pre-existing condition even slightly, the employer is 100% liable for the workers’ compensation claim. Twenty-nine states have a higher causation standard than Illinois. Missouri, Kansas, Oklahoma and Tennessee recently passed laws requiring the workplace to be the primary cause for workers’ compensation to be compensable. Florida’s major contributing cause standard is identical to the one we are proposing. Proposal • The causation standard should be raised from an “any cause” standard to a “major contributing cause” standard. The accident at work must be more than 50% responsible for the injury compared to all other causes.  


In our view, the problem with the IL WC Act isn’t the language (or actually the lack of any language) on causation, it is the hearing officers. Again, in our respectful view, if you make the language “major contributing cause,” liberal hearing officers can make any problem at work into a major contributing cause. If you change the language to “predominant cause” or 50% responsible for the injury, liberal hearing officers and our reviewing courts can still find any typical kneel, twist, lift, strain to be the predominant cause or 50% responsible for the injury.


Remember There Are Many Illinois WC Terms/Concepts Made Up and Sometimes Modified By Liberal Hearing Officers and Reviewing Courts


Please note the legal terms “traveling employee” and “odd-lot total and permanent disability” and “risk of the street” don’t appear anywhere in the IL WC Act. The liberal reviewing courts who started these concepts and later changed/expanded or sometimes ended the concepts did so at their whim. They weren’t reviewing any legislation in doing so—there was no legislation to review. These are made-up terms by hearing officers and reviewing courts to supposedly define something in the IL WC arena.


In the last year, for the first time in over 100 years of IL WC history, the shoulder suddenly and without any warning became part of the “body” instead of part of the arm. Literally thousands of earlier and very routine decisions ruled the shoulder was part of the arm. The Appellate Court, WC Division unanimously ruled the dictionary required that outcome, as if the dictionary suddenly changed what an arm is, after over 100 years of the shoulder being part of the arm! We assure our readers most people still think if you punch someone in the shoulder, you have struck then in the bicep muscle that we all feel is part of the arm. Only in Illinois WC does a punch to the shoulder magically mean you have punched them in the “body.”


In Beelman Trucking v. IWCC, the IL Supreme Court, for the first time in IL history, allowed a claimant who clearly was a statutory total and permanent disability claimant to also assert a claim for amputation of one of three limbs, as the complete loss of the first two limbs clearly entitled him to lifetime benefits. As all IL WC benefits are paid weekly, this is the first time anyone ever conceived of the idea of someone being entitled to a weekly benefit for T&P along with a “stacked” weekly benefit for amputation loss. This largesse from our highest court provides the staggeringly high T&P benefits to some claimants along with our staggeringly high amputation values. As we have told our readers, it is hard to be cheap in providing high benefits to someone with what was hopefully a rare but catastrophic injury, as suffered by Claimant in Beelman Trucking but such benefits cause our state to be out of whack when comparing us to our sister states.


As we reported last week in Chlada v. IWCC, for the first time in IL WC history, what we feel is a very liberal IL Appellate Court, WC Division, “stacked” or awarded simultaneous wage loss differential benefits and total and permanent disability benefits for the same claimant. As we have told everyone, it makes literally no sense to us at all how a claimant can get “wage loss” benefits when the Court’s distinguished members agreed claimant will not have any “wages” but will be getting T&P benefits from the same employer. The Court’s members justified this decision because of their unusual view that Claimant’s T&P weekly award would be lower due to the earlier claim. This anomaly makes their award into “total and permanent disability differential benefits.” Again, there is no provision in the IL WC Act which we feel provides for such benefits—in our respectful view, the concept was made up for the first time by this reviewing court—they reversed the IWCC precisely because the Commission’s administrative hearing officers wouldn’t do what the reviewing justices decided to do.


The definitions of all these terms can be changed on a whim because all of isn’t in the IL WC Act or Rules. For the IL WC Appellate Court to blame the change on evaluating shoulder claims from “shoulder” to “body” on the dictionary was unusual to say the least. We assure you no one on the defense side saw that one coming. We can say the same thing about the unusual, unprecedented and sweeping  changes to  made in Beelman Trucking and Chlada, as outlined above.


Looking at the bigger picture, we assure you not one of those WC concepts above are defined or otherwise appear in the IL WC Act. For example, what in tarnation is an “odd lot” as it relates to IL WC total and permanent disability awards. Are there “even lots?” Why and how did this concept start in our courts in the early 90’s and how does IL business and local government make sense of whatever-it-might-be?


In the unusual ruling in Chlada mentioned above, while writing for a unanimous majority, one of our illustrious Appellate Court justices who has been on the WC Division of that court for decades wrote a plea to our legislature asking for guidance, as if the IL General Assembly ever provides guidance to our courts in this arena. For anyone who knows what is happening in Springfield with the General Assembly and our current Governor, almost nothing may happen for the next six years while the Governor and the Democrats fight out the simplest things one can imagine these two branches of government could disagree on. We are confident clarifying unusual judicial rulings aren’t high on the agenda when our legislative and executive branches can’t agree on a plan to fund our schools!


Solid Causation Concepts and Enforcement Need to Come From IL WC Hearing Officers—Forget the General Assembly


Our worry for IL business and local governments is we all might think legislatively changing the causation standard might “work.” Without intending to talk down to you, the proposed causation standard change only works if the hearing officers follow the simple language that you are reading and expect the legal terms to mean what our grade school and high school teachers told us they mean. The defense team at KCB&A would expect the new hearing officers appointed by our Governor to provide a similar outcome but we have years and years of dealing with this silly system and some of the IL WC hearing officers don’t always follow common sense or what you might expect. If you see a current and challenging IL WC causation ruling that makes your head spin—please send it along and we are happy to write about it.


In short, Governor Rauner may not have to change the language of the IL WC Act to effectively change the causation standard, he may need to change the people who are enforcing the IL WC Act to match what we think is common sense. That is the simple point, we are trying to make—causation is common sense. If you aren’t “injured” in an unforeseen work “accident,” you shouldn’t get WC benefits.


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




Synopsis: A police officer is denied benefits under the Illinois Workers’ Compensation Act for injuries sustained driving his personal vehicle to a mandatory training session in hazardous weather conditions and outside normal workhours. Analysis by Matt Wrigley, J.D.


Editor’s comment: In Allenbaugh v. Illinois Worker’s Compensation Comm’n and City of Peoria Police Dep’t, 2016 IL App (3d) 150284WC (decided July 12, 2016), the Illinois Appellate Court, WC Division upheld a decision of the Peoria County Circuit Court which denied benefits to Petitioner holding the “traveling employee” doctrine does not cover a Claimant injured on his way to or from his normal workplace when he is not performing duties incidental to his employment and when Claimant’s regular work shift was different that day.  


Petitioner was a sworn police officer employed by the City of Peoria (Respondent). Petitioner was ordered to report for mandatory training at police headquarters outside his usual duty hours. Petitioner was directed to bring various items of police gear to the training session. The weather was poor and roads were hazardous.


While en route from home to the training session a motor vehicle struck the left front side of Petitioner’s personal vehicle, which caused injuries to Petitioner’s neck and back. At arbitration Petitioner testified police officers were on duty 24 hours per day. The Assistant Police Chief testified Petitioner was not on duty at all times. 


The Arbitrator found Petitioner sustained injuries which arose out of and in the course of his employment. The IWCC reversed this decision, holding at the time of the accident Petitioner was not responding to a report of unlawful conduct or an emergency. Petitioner was required to travel to and attend training outside his normal duty hours but this was insufficient “to avoid the general rule that an ‘employee’s trip to and from work is the product of his own decision as to where he wants to live, a matter in which his employer ordinarily has no interest.’” At the time of the accident Petitioner was not required to drive a particular route, he was not performing any employment activities, and Respondent did not retain control over Petitioner. The IWCC held the “traveling employee: doctrine does not apply when a Petitioner is simply driving his personal vehicle to his normal workplace for whatever mundane reason.


On appeal to the reviewing courts, Petitioner alleged at the time of the accident he was under Respondent’s control and he was a traveling employee. As the material facts were undisputed and susceptible to but a single inference, the courts ruled their review was de novo. The Appellate Court, WC Division noted “all employees are required to go to work . . . we fail to see how the fact that claimant was going someplace he was required to go for work distinguishes his situation from normal commuting.”


Petitioner proffered no evidence supporting the assertion his obligation to go to the place where he works supports an inference he was within the scope of employment while commuting. The Appellate Court, WC Division noted none of the items Petitioner was required to bring to the training session allowed Respondent to maintain control over him. Further, the Appellate Court, WC Division acknowledged the “traveling employee exception” to the general rule accidents which occur when an employee is traveling to and from work are non-compensable. However, Petitioner failed to establish the fact he regularly drives as part of his job duties brings his commute within the scope of employment. Although he was required to travel to the police station at the time of the accident he was merely driving from his home to the station.


Finally, the Appellate Court noted although Respondent required Petitioner to travel in hazardous conditions “we fail to see how this distinguishes claimant’s situation from that of any other commuter in the northern half of this country.”


This article was researched and written by Matt Wrigley, J.D. Please direct questions or concerns to Matt at mwrigley@keefe-law.com.




Synopsis: First Things First! Are You Disabled under the ADA? Analysis by Brittany Pendry, J.D.

Editor’s Comment: Recently, the Illinois Appellate Court upheld a Circuit Court’s decision to grant defendant-employer’s motion for summary judgment, finding plaintiff could not meet her burden of showing she was a qualified individual under the Americans with Disabilities Act (ADA). What follows it an assessment of the basics of ADA accommodations in the workplace, and what to expect when an employee files a complaint.

In Plaintiff v. Factory Card & Party Outlet, No. 15-2083 (issued June 13, 2016), the Appellate Court affirmed the Circuit Court’s granting of summary judgment in favor of the defendant-employer. In doing so, the Appellate Court agreed with the Circuit Court in reasoning plaintiff failed to present sufficient evidence to allow a jury to find plaintiff was a qualified individual with a disability under the ADA.


Plaintiff injured her foot at home in March of 2009, and was subsequently off work while she treated with multiple doctors over the course of several months. Plaintiff treated with her first doctor, who said she could return to work without restrictions. After continued complaints, she was taken off work and eventually treated with a second doctor. He permitted her to return to work on July 6, 2009 with no restrictions. She disagreed with this assessment and saw a third doctor, Dr. Fleischli, who said she had no ability to work, and would need to be off until August 15, 2009. During this time period, Plaintiff was off on leave under FMLA, and after using up all of her leave, her employer granted her an additional four weeks. However, Plaintiff’s supervisor advised Plaintiff’s employment would be terminated if she could not return at the end of those four weeks, on July 11, 2009. Her supervisor stated Plaintiff would be eligible for re-hire when she could return to work.


However, Plaintiff contended she had a conversation with Dr. Fleischli, who said she could return to work on July 11, if her foot were in a medical boot. Plaintiff claimed she informed her employer’s Regional Resources Manager of this medical recommendation, and the manager indicated it would not be possible as Plaintiff would need to climb a ladder. Plaintiff also submitted an affidavit asserting these same statements of Dr. Fleischli. However, Plaintiff did not list Dr. Fleischli as a witness, but instead intended to assert her own testimony with regard to what the doctor stated. 


Subsequently, Plaintiff applied for disability benefits through Aetna Insurance, and the company determined she was totally disabled. Subsequently, Plaintiff filed a suit claiming a violation of the ADA by her employer.


In coming to its conclusion, the Court looked to the merits of the summary judgment motion granted by the Circuit Court, and found the Circuit Court was correct in holding “Plaintiff presented insufficient evidence to allow a jury to find that she was a qualified individual with a disability under the ADA.” The Court looked to Section 12112(a) of the ADA, stating discrimination is prohibited against a qualified individual, and defined a qualified individual, pursuant to the Act, as an individual who “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” The Court further stated there is a two-prong test in determining whether a person is a qualified individual, including:


(1) “whether the person satisfied the prerequisites for the position, such as possession of the proper educational background, employment experience, skills, or licenses”; and

(2) “whether or not the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation.”


Plaintiff acknowledged her evidence was limited to her own observations, and while “she stated in her affidavit that Dr. Fleischli had informed her that the use of the medical boot would allow her to return to work by the July 11 deadline, she chose not to present evidence from Dr. Fleischli to that effect.” Therefore, a jury would have been presented with evidence consisting of Plaintiff’s own statements, and while she contends her testimony would be enough to allow a jury to conclude she could perform the essential duties of her job while wearing a medical boot and delegating the task of climbing the ladder, the Court disagreed due to obvious hearsay and trustworthiness concerns with that testimony. 


While the Court admitted a plaintiff does not necessarily have to produce expert testimony in order to demonstrate she is a qualified individual, the need for the evidence depends on the facts of the case, and the Court found the evidence she presented failed to meet her burden.


Employers should have a basic understanding of what the ADA covers, and how it could affect their company. The ADA “prohibits discrimination and ensures equal opportunity for persons with disabilities in employment.” Under the ADA, a disability can be a physical or mental impairment that is so substantial it limits at least one major life activity of a person and there is record of an impairment; or, if the individual is regarded as having a physical or mental impairment. 42 U.S.C. § 12102 (1). A person is regarded as having a mental or physical impairment if that person can establish that she has been the subject of an action that is prohibited under the Act because of a perceived physical or mental impairment, regardless of whether impairment actually limits a major life activity. 42 U.S.C. § 12102 (3).


If an individual is covered under the ADA, no entity can “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112 (a). This includes not making “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.” Id.


The EEOC is responsible for enforcing Title I of the ADA with all employers who have 15 or more employees. Employers are responsible for providing reasonable accommodations to qualified individuals, unless the accommodation would cause undue hardship. If the accommodation causes an undue hardship, the employer must still try to identify another accommodation that will not pose such a hardship, including if there are high costs, whether funding for the accommodation is available. In the event that an employee files an ADA charge with the Commission, the Commission will investigate and initially attempt to resolve the charge through conciliation. The remedies under the ADA can be substantial, including hiring, promotion, reinstatement, back pay, compensatory damages, and attorneys’ fees. Employers should be aware that employees have 180 days to file a charge of discrimination, or 300 days in some states that provide for local or state laws.  


This article was researched and written by Brittany Pendry, J.D. You can reach Brittany at any time for questions about ADA accommodations, defending ADA complaints, EEOC charges, employment law, general liability defense, and workers’ compensation at bpendry@keefe-law.com.




Synopsis: Short but Sweet Update on Indiana Worker’s Comp from Kevin Boyle, J.D.


Editor’s comment: We were somewhat surprised to hear the IN WC Board has provided notice effective Monday, August 1, 2016, the mileage reimbursement rate is increasing from $0.36 per mile to $0.38 per mile.


If you have questions or concerns, please direct them to our IN Defense Team Leader Kevin Boyle, Esq. at kboyle@keefe-law.com.