3-14-2011; Trying to make sense of what is happening in Illinois workers’ compensation and the recent ruling in Metropolitan Water Reclamation District v. IWCC

Similar to what outlined in the Illinois Government Vortex section above, please also remember judges and justices in this state are also political candidates. Please remember Illinois government unions and ITLA strongly and legally support the political candidacy of many judges and justices who are then asked to issue impartial rulings, despite having accepted donations and endorsements from potentially interested parties or groups. We feel this may create a potential for criticism when we see rulings where police officers get WC benefits when they turn around to answer questions or firefighters get WC benefits from fighting like school children in hotel rooms during conventions and clerks get benefits when they fall down without apparent reason going to the bank to deposit checks, as in this current claim.

In further considering Metropolitan Water Reclamation District v. IWCC, we wanted to follow-up on this challenging appellate ruling to provide some thoughts from our readers and ourselves about last week’s article. Several readers feel this ruling is pointing to expansion of workers’ compensation coverage in this state when every economic and political indicator from Springfield is pointing against such expansion as running contrary to economic indicators, job creation and job maintenance. We point out several of our sister states are already advertising on Illinois highways heralding their tax structures are so much more business-friendly. It is our hope to avoid similar billboards from our sister states to point out they are much more reasonable in providing their workers’ compensation benefits.

We caution our readers the MWRDistrict may be authorizing their defense counsel to seek certification to the Illinois Supreme Court by the members to the Appellate Court, Workers’ Compensation Division—two of the justices have to approve the request. Thereafter, the Supreme Court has to take the case—appeals at this level are not automatic. We have no idea what the Supreme Court might do with the case but, if the matter is certified and our highest court takes this claim, we hope they may take a long hard look before signing off on a ruling which greatly expands coverage in a fashion not contemplated in over 100 years of workers’ compensation benefits in our state.

If the Illinois Supreme Court takes the claim, we assure our readers we will poll our clients and ask leave to file an amicus curiae brief in support of reversal of the Appellate Court ruling. While we are certain the MWRD has a very solid and capable defense attorney, our focus would be the impact such a ruling has upon Illinois business, certainty of coverage and the spiraling cost of workers’ compensation claims in our state if coverage is expanded to “presume risk” is present in fall-down claims.

From a reader, we received a photo of the driveway where claimant asserts she fell and suffered injury. We can forward it to our readers upon your request—this is from the public record. Looking at the photo, we don’t see any apparent or latent defect with this commercial driveway. Comparing the photo to the record, we don’t see what the reference in the ruling to a “6 inch dip in the driveway” might refer to but we want our readers to understand our perspective there isn’t a hidden “trench” or large gap in the pavement. We do not see any signs of damage or disrepair. The driveway is configured for drainage and appears intact without visible cracks, concrete spoilage or other signs of unusual wear or breaks.

From reviewing the photo, we feel the chances of a premises liability suit for this fall-down to be minimal to non-existent; claimant would have to sue for defective design which is a very difficult claim in the Circuit Courts. In a similar vein, we have again reviewed the ruling and we don’t see any specific testimony by claimant pointing to a defect or aspect of the driveway which might have caused the fall-down. We are fairly confident a premises liability claim brought on this record would be dismissed on motion. The point of this is to advise our readers of our view there was no apparent or increased risk to this claimant in crossing the driveway—in our view, she wasn’t watching what she was doing or where she was going and sadly, suffered the consequences. The work didn’t increase the risk you or I face every day we go for a walk in the city, whether we are at work or play.

The reason we are pointing out our view of the ruling, facts and the record is a concern from several readers about whether our Illinois reviewing courts are going to start “presuming risk” or more aptly put “presuming increased risk” in workers’ compensation fall-down claims. And if they are going to do this in fall-down claims, how long will it take to presume risk in all injuries that “arise out of” the employment? We feel the new concept outlined in the majority ruling which is called “street risk” may be signaling that intention.

We read the ruling to state the legal principle that an employee who is in the course of employment and exposed to the normal and ordinary risks of the “street” and suffers injury is entitled to full benefits. It does not appear this employee had to define any heightened defect, negligence or arguable fault on the part of the keeper of this driveway. And we point out just about every driveway we have seen is inclined and has gutters built in as drainage features for obvious reasons. We simply don’t feel benefits being awarded for falling down on an intact, well-maintained and typical commercial driveway has ever been compensable to the extent Illinois has never adhered to the “positional risk” doctrine. With respect to the four members who joined in the majority ruling we feel this new ruling is a dramatic departure from prior Illinois WC law in a number of ways.

First, as we outlined in last week’s KC&A Update, the Illinois Supreme Court considered a very similar issue in Caterpillar Tractor v. Industrial Commission. In Caterpillar Tractor, claimant fell stepping over a street curb. While their ruling isn’t particularly detailed as to the status and upkeep of the curb, we feel it is safe to assume the curb was an ordinary street curb in an ordinary state of repair.

It is also our understanding the issue of “in the course of” employment was not disputed. Comparing the Supreme Court’s ruling in Caterpillar Tractor to MWRD v. IWCC, it is hard to understand how the risk of stepping over a curb wouldn’t be a “street risk” as the very concept of what a ‘curb’ might be is a drain or border on a city street. It is our view the Supreme Court ruling denied benefits in Caterpillar Tractor for precisely such “street risks” in their last ruling on this topic. We consider it amazing to see Appellate Court Justice Thomas Hoffman, who authored the majority ruling in MWRD v. IWCC and has an “IBM® Watson-like” encyclopedic mind for judicial rulings wouldn’t mention or seek to put this new ruling into alignment with the prior Supreme Court ruling on a very similar set of facts.

Second, the Appellate Court, Workers’ Compensation Division itself issued a ruling named First Cash Financial v. IWCC a couple of years ago. The facts in First Cash Financial involved a worker who fell in a bathroom. The problem with the record on appeal is claimant did not testify to a reason for the fall down—she simply indicated she fell and suffered injury and had no idea what caused the fall down. The Appellate Court’s well-reasoned ruling clearly outlined their position at the time about a refusal to “presume risk” in a fall-down claim. They very carefully indicated the failure of claimant to meet the burden of proving a cause for the fall-down doomed the claim for benefits.

Comparing First Cash Financial to this ruling, it is our humble view the cases cannot be countenanced—it appears the Court’s majority has created a term of art called “street risk” which causes one to wonder why they couldn’t have used a similar concept for “bathroom risk” to find the earlier ruling compensable. Workers fall in both bathrooms and on streets for any variety of reasons. From the earlier ruling in First Cash Financial, it appeared incumbent on claimant to come forward to provide the Arbitrator and Commission with evidence of an increased risk. We again find it fascinating to see this ruling wasn’t mentioned at all in the Appellate Court majority’s opinion.

Finally, we look to the concurring opinion of Justice Holdridge who is one of the most academic and veteran of the five-member justices who comprised our Workers’ Compensation Division of the Appellate Court in this claim. His detailed and well-reasoned concurrence outlines what we feel is his discomfiture with the new and unprecedented legal theory being presented.

All in all, we will have to see where things go moving forward. As we have advised our readers in the past, it is very difficult to predict outcomes when you ask questions about compensability in fall-down claims. Starting with the ruling in Chicago Tribune v. Industrial Commission in 1980 where our reviewing courts found completely differing interpretations of the synonyms “idiopathic” and “unexplained,” it has been a continuing puzzle, wrapped in a conundrum surrounded by an enigma to figure out what they will do. Our main advice is to investigate, investigate and investigate to get the best sense of what really happened. After completing your investigation, contact one of our defense attorneys at KC&A and get their best thoughts on accepting, defending or settling the matter.

We appreciate your thoughts and comments. Please do not hesitate to reply or post them on our award-winning blog.

3-14-2011; Can Illinois Government Workers Rein In Illinois Government Workers—Can Correcting Government Workers’ Comp Mismanagement Be a Litmus Test?

We heard a fascinating speech by Chicago Mayor-elect Rahm Emanuel in which he posited the theory government workers should be more efficient or at least as efficient as private workers providing the same services to taxpayers at competitive cost. Without meaning to discourage a guy who may become a great city official, we consider that challenge to be ludicrous and just about impossible in this state. We feel Illinois government at every level, state, county and city, has a “durable competitive disadvantage” in providing simple government services in relation to private companies for at least five reasons:

1.     Illinois government workers get more than double the paid holidays of private workers;

2.     Illinois government workers get as much as six weeks of paid vacation which, if not used, can be accrued and kept for years—no private company does this;

3.     Illinois government workers get “Cadillac©” health care benefits paid by Illinois taxpayers at low or no cost to the government worker in a fashion no private company provides;

4.     Illinois government workers get generous lifetime pensions at a fraction of the cost in relation to similar employees in the private sector;

5.     Illinois government workers get workers’ compensation benefits in a fashion which would rapidly bankrupt any private company.

As you and most of our readers are focused on workers’ compensation issues, we will maintain that singular focus and leave other daunting issues to civic leaders like Mr. Emanuel and Doug Whitley, the President of the Illinois State Chamber.

What may be the main problem with administration of workers’ compensation for Illinois government workers? We simply cannot expect them to police themselves sufficiently, and while we are starting to see some positive things happening, we are worried about the Illinois Government Vortex:

·         Almost all Illinois government workers at every level of management are in unions;

·         State, county and municipal unions collect millions of dollars in union dues;

·         State, county and municipal unions take the dues and use them to donate heavily to political candidates and telephone their union members and demand they vote for their candidates;

·         Those political candidates win office and do whatever union members want.

What is the problem with all of this? Well, we assure you many Illinois government entities don’t use simple, ordinary workers’ compensation investigative and management measures to insure they are paying benefits reasonably owed. For one simple example, Cook County does not require their injured workers to fill out work accident forms. Why would they eschew this simple investigative technique? Well, a couple of years back, a worker filled out an accident investigation form in a fashion inconsistent with his medical records. His benefits were denied and it appeared he committed workers’ compensation fraud—after that happened, you would think the County would ramp up their successful investigation techniques. To the contrary, the County stopped “allowing” their workers to fill out such forms and lock themselves into a story!! So, we assure you some percentage of WC fraud is expected in their WC program—they aren’t taking simple steps to root it out.

On another level, having accepted a claim, we are certain the City of Chicago has not used surveillance to check on its injured workers for years. Why would they avoid surveillance? They don’t want to catch workers who are malingering or otherwise abusing their right to TTD. Similarly, very few governments at every level in this state provide light duty for their workers to minimize TTD and get them back to work. Many agencies allow the workers to make liberal use of the “one-year-off-with-full-pay” rule to allow hundreds of workers to get even more time off than anyone in the private sector would ever allow. We feel this creates a “ghost workforce” with a hefty percentage of government workers who are perennially off work and getting workers’ compensation benefits along with the “full pay” differential which is all being paid by the taxpayers.

This clearly isn’t limited to the County of Cook or the City of Chicago, news from southern Illinois disclosed Lt. Jay Ziegler, a lieutenant at the Menard Correctional Facility received his temporary total disability check for $2,092 and that same day was in his boat on Carlyle Lake helping the Murphysboro High School Red Devils’ bass fishing team at the state finals last May. Ziegler was off work after he underwent surgery for an undisputed repetitive trauma injury to his wrists and elbows. On Jan. 13, 2011, he received a tax-free check funded by you and I as taxpayers for $76,326 based on his workers’ compensation claim. This settlement followed a similar $42,043 settlement he received Dec. 23, 2009, for an injury he stated resulted when he supposedly sprained his right shoulder performing the only-in-Menard-is-it-dangerous to carry "food trays up stairs" at the prison. In just over one year, Ziegler collected $118,369 for injuries while on the job. He also collected a total of $17,397 after being paid temporary total disability during two periods, one in 2009 and the one in 2010. In all, he received $135,766 in taxpayer-funded workers' comp payments. Ziegler is the vice-president of the Southern Illinois Bass Club—even the simplest of surveillance operatives would have readily located him on their club website. Oops, it appears clear no one is following up or performing such simple surveillance techniques to insure benefits are paid when due. Illinois government workers don’t check up on their brethren.

State Rep. Dwight Kay has called for a full investigation of the WC program at the prison facility and, last week, the Illinois House voted 111-0 for his resolution for an audit and investigation of workers’ compensation awards to state workers. One problem for them to consider is at least one CMS/state WC claims adjuster who is supposed to be reining in costs on such claims has already received a “repetitive trauma” settlement herself. The Arbitrator who used to consider such claims got about $50,000 for a settlement before recently being suspended with pay for other reasons. The warden at the same prison got about $75,000 for his “non-accident” shoulder claims. Doesn’t it appear those government managers would want other government workers to get the same generous benefits they got from the taxpayers? Is there a “limit switch” anywhere on this stuff?

We ask the rhetorical question: can Illinois government workers rein in Illinois government workers? Isn’t there an environment present in which our government officials know this is happening and don’t truly care because their government union brethren are benefiting from it at taxpayer expense? Isn’t that one reason for all the workers’ compensation secrecy in this state—shhhhhhh, don’t let the dopey taxpayers know and we can reap in millions?

We salute Dwight Kay and our plea to both him and the Illinois House is to not stop at this prison with its ludicrous situation of paying out hundreds of “non-accident” WC claims to managers and line employees. Start to look at workers’ compensation in government across Illinois and compare it to systems in the private sector. And remember, if you can’t bring the Illinois public workforce into alignment with the private sector, consider bringing in the private sector to replace Illinois government workers. For an example, lots of states use private contractors to run prisons—private contractors wouldn’t and couldn’t put up with such silliness. For another simple example, Indiana doesn’t have government workers on its tollways anymore and Illinois could save millions in tax dollars if we would mirror the private managers or hire them to run out tollways.

The research and articles on the Menard situation are credited to the ground-breaking and stellar work of George Pawlaczyk and Beth Hundsdorfer of the Belleville News-Democrat. As to the rest of it, we appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog at www.keefe-law.com/blog.

3-14-2011; Incompatible, Irreconcilable, Unlike, Differing, Opposite, Contrary, Reverse--Ooops, did Illinois just judicially drop the “arising out of” requirement for workers’ comp claims and reach...

Editor’s comment: Color us totally confused. Your editor didn’t go to a law school class on workers’ comp because our law school didn’t have one at the time. To learn and grasp basic workers’ compensation concepts, he grew up keeping his mouth shut and listening to great workers’ compensation lawyers talk over coffee on breaks like Thomas D. Nyhan, John P. Roddy, W. Daniel Leahy, Richard E. Aleksy, Arthur O. Kane, Albert Priebis and Mark A. Braun. They all advised Illinois workers’ compensation was liberal in this state but it only covered claims where the employee suffered an injury which both “arose out of” and occurred “in the course of” employ. Over and over, they confirmed the worker in this state couldn’t just be at work or “in the course of” employ; they also had to suffer injury due to a risk which wasn’t “common to the public” but fell prey to something over and above normal risks of daily life to be work-specific. So, for a number of examples, it wasn’t a work-related injury to be working and get hurt

·         Stepping over and tripping on a typical street curb;

·         Arising from a chair;

·         Turning around; and

·         Getting hit by a completely random but runaway truck.

If you aren’t sure, there are landmark Appellate and Supreme Court rulings denying each and every claim outlined above on the simple language in our Act based on the facts in the bullet points. For about 100 years, Illinois has had the same requirement as many states that employees are only compensated with workers’ compensation benefits when they suffer injury from specifically “work-related” risks. As we have told our readers, coverage of the Illinois WC Act has recently exponentially grown due to two concepts—“repetitive trauma” which we feel now incorporates the “eggshell worker” and the wildly expanded concept of “traveling employee” which basically has extended coverage to anyone on the move and not at a fixed desk or work station when injured. We now have to tell you of a new expansion of coverage using a new and shiny term “street risk,” as we outline below. Please note these new words “street risk” don’t appear in the WC Act and some academicians may again feel this is judicial legislation.

In our humble view, the ruling is the “complete opposite” or inverse of numerous prior legal rulings—if an Illinois worker confronts the risks of daily life at work, it appears such risks are now ‘abnormal’ risks solely due to the fact the worker may confront them more than once. Doesn’t this mean Illinois is now a “positional risk” state where all one has to do is show you are “in the course of” employ and have a malady to be entitled to benefits? If we aren’t magically a positional risk state, what does AOO now mean?

In a ruling we respectfully consider unnecessary and unprecedented, our five-member Appellate Court, Workers’ Compensation Division might have dropped half of the AOO/ICO (“arising out of and in the course of”) WC concept. The only way to figure out what they have done will be to wait and see where they are going to take what they called the “street risk” concept over the weeks and months to come. In our view, the four bullet points above outline “street risks” or other similar personal risks we all face whether at work or going to church/temple/place of worship or at home or wherever there is human discourse and interaction. As you will see below, we are concerned there may potentially be lots of new “risk” concepts to emasculate or simply end the AOO requirement in this state. Our main concern is the term “arising out of” comes directly from the Workers’ Compensation Act. We feel it is somewhat hard for our reviewing courts to somewhat “skip” or clearly redefine a 100-year old legislative imprimatur. But this is Illinois, correct?

In Metropolitan Water Reclamation District of Greater Chicago v. Illinois Workers' Compensation Commission, (No. 1-09-2546WC February 22, 2011), the Illinois Appellate Court considered a claim in which a MWRD accounting clerk employee fractured both wrists when she claimed she stumbled and fell on what is described as a six-inch “dip” in an inclined commercial driveway walking to a bank to deposit checks in employer's account. From our review of the ruling, this was an open and obvious facet of the commercial driveway on a public street in downtown Chicago. There is no indication in the ruling of any defect, foreign substance, poor lighting or other problem with the driveway; we are betting the “dip” is the drain which runs down the middle of most driveways to allow water, ice and snow to easily collect and flow to the street. Claimant left the MWRD offices at 100 East Erie and was walking to Chase Bank® at 605 North Michigan Avenue on the Magnificent Mile—she had traversed this path for about 13 years and must have known it pretty well. Google Maps® indicates the total distance is 1/5th of a mile.

If you aren’t sure, literally thousands of Chicagoans and visitors to Chicago from all over the planet transverse this area every day of every year—numerous websites indicate 22 million visitors or Chicago natives like claimant walk, work and shop on Michigan Avenue every year. Risks inherent to walking near and on Michigan Avenue are almost by anyone’s definition risks common to the world’s public. If you fall down walking on a public street from some aspect of the street itself, like a curb, gutter, drain, sidewalk expansion joint or whatever, in our view, it has never been compensable in this state—well, it may be now.

The ruling indicates claimant was walking toward the bank to deposit checks in the District’s account. She walked east on Erie toward Michigan Avenue, crossed Erie in the middle of the block, and then stumbled walking up an inclined driveway that had a "dip" we describe above of about six inches. The Court’s majority concluded this was a “street risk” and reversed the Circuit Court below and found it compensable. The court’s members found claimant established her job duties exposed her to a risk somehow greater than that faced by the general public, as this dip in the driveway was a “street hazard” and therefore a job risk to claimant. What we find missing in the ruling is how her risk was arguably greater, other than the fact she walked the area more than you or I might. In our view, everyone who walks in the area suffers the identical risk every time you are in the area; just as anyone stepping over a curb runs the identical risk every time you step over the same curb—it doesn’t multiply or increase by each step. And in our view, after thirteen years of being in this area, she should clearly have known the risks she might face.

We ask the rhetorical questions

·         If you fall over a typical street curb as claimant did in Caterpillar Tractor v. Industrial Commission, did he face a “curb risk” which would then be compensable? Don’t folks step over curbs every day?

·         If you hurt yourself arising from a chair as claimant did in Hansel & Gretel Daycare Center v. Industrial Commission, would that be compensable? Don’t workers stand up from chairs every day of every year?

·         If you strained yourself simply turning around in a chair; as claimant did in Board of Trustees of the University of Illinois v. Ind. Comm'n would that be a “turning risk” and therefore compensable? Aren’t we all turning in chairs these days?

·         If you were hit by a completely random but runaway truck as claimant did in Brady v. Louis Ruffolo & Sons Construction Co. would that now cause claimant to be entitled to benefits due to “runaway truck risk”?

For reference, every one of those claims was denied by an Illinois reviewing court. None of those rulings are mentioned in this new decision. For future reference, we are all left to ponder where this new legal concept of “street risk” starts and ends? Which street risks faced by thousands or millions of normal citizens every day are now compensable and which risks are not? From our past training, “arising out of one's employment" referred to the origin or cause of the claimant's injury. A causal connection to the work was demonstrated if the claimant establishes if the conditions or nature of the employment increase his risk of harm beyond that to which the general public is exposed. We didn’t understand that to mean if you stepped over the same driveway or curb or arose from the same chair ten times, you faced ten times the risk of everyone else—we have always felt the risk of injury was the same.

In our view of this ruling we are missing the risk of harm to this worker beyond the risk to which 22 million visitors a year and all Chicago citizens are routinely exposed—you and I and everyone you know may walk upon and across this driveway any time you are on Erie near Michigan. Well, we will all have to wait and see where this ends up—if you ask us, the concept of “arising out of” in this state may have quietly and firmly ended unless some later clarification is provided.

The lawyers listed in the first full paragraph above did not participate in drafting, editing or publishing this article in any way and we are not outlining their opinions on this ruling. We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.