9-28-2020; Has the IL Supreme Court Ended Accident Defenses in IL WC?; Kevin Boyle on Important New Indiana IWCB Rule and more

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Synopsis: Has the IL Supreme Court Ended Accident Defenses in Illinois? Are We Now a “Positional Risk” State?

Editor’s comment: Please note Illinois is a one-party State. Republicans don’t have a seat at our State’s table (and may not ever be back). Like Chicago, the only election of note is the Democratic primary. In my view, decisions like this are felt to be “liberal” or pro-labor. I don’t agree with that view. I consider this an “anti-lawyer” ruling, as it is going to render claims that were previously defensible to now be compensable—please trust me, Illinois business/TPA’s and insurance carriers are certain to drop relevant accident disputes, accept claims and pay benefits quickly. When this happens, Claimants aren’t going to need or go to Petitioners’ attorneys and TPA’s/Insurance carriers won’t need defense attorneys. Only time will tell.

In McAllister v. The Illinois Workers’ Compensation Comm’n, after six years of litigation involving an simple operated knee, our highest Court changed the test used to determine whether injuries caused by common bodily movements and everyday activities at work, such as bending, twisting, reaching, or standing from a kneeling position, are compensable under the IL Workers’ Compensation Act. From my position, this is intended to overrule earlier rulings from the Supreme Court that placed a small additional burden of proof on claimants. If you have such claims pending in your active IL WC claims, send a reply if you want my view on whether you might continue to dispute/defend them. Please assume if you don’t review and reconsider handling, you are sure to get petitions for penalties and attorney’s fees so loved by the Claimant bar in this State.

I have taught several hundred law students who are now WC lawyers on both sides. In teaching them to evaluate challenging accident claims, we reviewed the 1969 ruling by the IL Supreme Court in The Board of Trustees of the University of Illinois ruling where someone injured themselves putting their coat on at work. That claim was denied as a risk common to the public. In 1991, the decision in Hansel & Gretel Day Care, claimant injured herself standing up from a stool in a preschool. Again, the act of simply standing was not found to be compensable.

In this ruling, Claimant McAllister injured his right knee working as a sous-chef and filed a claim under the IL WC Act. McAllister testified at arbitration his job duties included arranging food in the restaurant’s walk-in cooler. On the day in question, suffered pain in his knee while moving from a kneeling to a standing position while searching the cooler for a misplaced item. He admitted under oath he didn’t slip, trip, slide or suffer any trauma. There was no asserted safety failure by Respondent, his employer. Basically, he simply stood up and felt pain. That description of an event hasn’t been an “accident” in this State since the inception of workers’ comp as a system of benefits in 1909.

Please also note the IL WC system hasn’t ever used the “positional risk” theory that other states have—in a positional risk state, if the worker is “positioned” at work when they suffer pain, it may be compensable because they are at work, regardless of cause. I believe IL WC is moving or has moved to that situation. In my view, our IL Supreme Court has judicially changed the common reading/meaning of our IL WC Act which requires both “arising out of” and “in the course of” employment—they are now only going to require “in the course of” for a physical problem to be work-related. Trust me, that is a giant expansion of IL WC claims, coverage and costs. It is also going to require fewer and fewer lawyers on both sides, as TPA’s/Insurance carriers simply drop disputes and pay, pay, pay.

In McAllister, the Arbitrator found in Claimant McAllister’s favor. The IL WC Commission panel followed traditional law and reversed that decision and found the injury did not arise out of the claimant’s employment. The Circuit and Appellate Courts affirmed. However, the Appellate Court was divided regarding the extent to which injuries caused by everyday activities were compensable under the IL WC Act. The majority favored the analysis contained in Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52 (1989). This was an injury when Claimant stepped of a street curb going to his car.

Two concurring Appellate Court justices, however, preferred the analysis contained in Adcock v. Illinois Workers’ Compensation Comm’n, in which Claimant asserted he was injured simply pivoting in a swivel chair. In Adcock, the Court ruled Claimant had to establish his or her job duties required the claimant to engage in the everyday activity that caused the injury to a greater degree than the general public, even in situations where the activity was directly related to the claimant’s job duties.

The IL Supreme Court went a different direction. They agreed with the Appellate Court majority and held Caterpillar Tractor “prescribes the proper test for analyzing whether an injury ‘arises out of’ a claimant’s employment, when a claimant is injured performing job duties involving common bodily movements or routine everyday activities.” What is odd about the Court’s recognition of Caterpillar Tractor is WC benefits were denied in that claim! I am mildly baffled to see the ruling used to support a claim for benefits. With deepest respect to our reviewing courts, in my view, rulings like this are almost impossible to make sense of. The act of “stepping off a curb” is something that happens literally millions of times every day across the globe—if you are a klutz and injure yourself stepping off a typical street curb, you shouldn’t be able to complain to your employer and get substantial benefits. Please also note lots of WC fraud may follow when Claimants find out how easy it is to “fake” such occurrences that I don’t consider “accidents.” Welcome to Illinois.

The Supreme Court explained, consistent with Caterpillar Tractor, common bodily movements and everyday activities at or near work are compensable and employment-related if the activity that caused the injury “had its origin in some risks connected with, or incidental to, employment so as to create a causal connection between the employment and the accidental injury.” The Court then overruled Adcock and its progeny to the extent that they require a claimant to additionally prove he or she was exposed to a risk of injury to a greater extent than the general public. The Court further found McAllister’s injury was the result of a risk that was distinctly associated with his employment and, as such, was compensable, and held the Commission’s finding claimant was injured by a neutral risk that was not related to his employment was against the manifest weight of the evidence.

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

 

Synopsis: A New IN Work Comp Board Rule for More Specificity in Applications and COVID claims update. Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D

Editor’s comment: Maybe you haven’t heard about this new rule change yet, but the Indiana Worker’s Compensation Board recently posted an important notice to help eliminate vague Applications for Adjustment of Claim. It’s been pretty common over the past decades for savvy Plaintiffs’ attorneys to file very bland Applications for Adjustment of Claim with only minimal language to describe the injuries. You’ve probably seen this kind of injury description: “injured on the job,” or “injured in the course and scope of employment” with no real description of what happened or what body part was injured. Plaintiffs’ attorneys would generalize for a variety of reasons including the ability to add additional injuries that may arise later since they did not specify a body part or type of incident.

That practice is not allowed any more. If you receive an unspecific Application, contact me and we’ll take appropriate action to get it fixed. Plaintiffs’ attorneys will have to amend with better descriptions now. Their new amended Application will be deemed to have been filed on the date of the original Application. But still, don’t let them get away with it. Make them specify at the outset of their claim.

I hope everybody is healthy and making it through the COVID-19 changes to just about every aspect of our lives in some form or other. In Indiana, we still have not had a published judge ruling in Indiana workers compensation cases on the virus since I updated you in April 2020. Our Legislature has not been in session for months, so legislation hasn’t been enacted except at the State and local level regarding masking and crowd sizes.

Indiana has not taken or followed the aggressive leads of surrounding states like Illinois, Michigan and Kentucky. So, still treat your claims as an occupational disease. Also, the IWCB’s notice issued in April that I previously covered in our newsletter is still helpful and remains good guidance regarding first responders, health care providers and others who may contract the disease in their work. If you need that information again, let me know.

We appreciate your thoughts and comments. Please post them on our award-winning blog. You can reach Kevin Boyle at kboyle@keefe-law.com for any concern related to Indiana or Illinois workers’ compensation, general liability or employment law.

Synopsis: Annual IL State Chamber WC Conference Goes Virtual—Shawn Biery & John Campbell to present.

 

Editor’s comment: The 14th Annual Workers' Compensation & Safety Conference set for November 4th is being held virtual this year. The 8:30 am to noon program features John Ruser, President & CEO of the Workers' Compensation Research Institute (WCRI) and Michael Brennan, Chairman of the Illinois Workers' Compensation Commission.

 

The program also will include the following breakout sessions:

 

  • Advances in the Diagnosis and Treatment of Carpal Tunnel Syndrome - Presented by Dr. Andrew Zelby and Dave Rusch, Vice President of Business Service Development, Ovation Hand Institute;

 

  • Medical Marijuana in the Workplace - Presented by AJ Sheehan, MVP Law

 

  • The Covid-19 Rebuttable Presumption - What is it and What Does it Mean for You? - Presented by Peter Stavropoulos, Brady Connolly and Masuda

 

  • 2020 Workers Compensation Case Law Update - Presented by Shawn Biery and John Campbell, Keefe Campbell Biery & Associates

 

  • Snakes, Leaches, and Tobacco Enemas - The Case for Evidence-Based Medical Treatment Guidelines - Presented by Patrick Robinson, Vice President, Government Affairs, ODG, an MCG Health Company

 

  • OSHA Updates for 2020 and Beyond - Presented by Matthew Horn, SmithAmundsen LLC

 

For more information and to register:

https://ilchamber.org/workerscompconference/