9-27-2011; Staircase fall-down dismissed on motion

In a major win for the Illinois “fall-down” defense industry, in Claimsone v Professional Property Management, et al. 2011 IL App (2d) 101115, No. 2-10-1115, (September 12, 2011), Plaintiff Lynn Brome slipped and fell on a rear apartment staircase covered with snow and ice from the previous night’s snowfall while working as a housekeeper for employer, Tri-County Opportunities.

She eventually filed a workers’ compensation claim. Claimsone, her employer’s comp carrier, later filed a subro action against the property’s apartment management company, the apartment complex as well and the apartment resident who had hired Brome, alleging they breached their duty of reasonable care by failing to remove the snow and ice from the staircase, as the defendants

·         In the past had voluntarily cleared the staircase from ice and snow and;

·         The agreement between management company and the complex’s caretaker provided for snow removal.

The Second Appellate District, addressing the issue of whether defendant’s breached their duty of care upon their voluntary assumption of a duty to maintain the premises free and clear of snow at the time, held even though Defendant’s had not done so early in the morning of the accident, Brome had twice observed the condition, which was obvious to a reasonable person, and she could thus not justifiably rely on defendant’s prior pattern of shoveling.

As for the agreement between the apartment’s management company and caretaker, the Court held Defendants owed no duty to clear snow and ice and had no contractual agreement under its terms, which specified only “walks” and “sidewalks” but not staircases, and the courts require express language to impose such a duty.

This article was researched and written by one of our fall-down defense experts, Patrick Cremin who can be reached at pcremin@keefe-law.com.

9-27-2011; If claimant has surgery, and not represented by an attorney, are we supposed to get a permanency rating from the doctor and pay it under pro se settlement contract or what??? Are we ...

As you read this, impairment ratings are now a mandatory part of the IL WC system. They have to be considered by the Arbitrators, as a part of the process. Trust us, the claimant attorneys and ITLA don’t want them and will tell gullible adjusters to ignore them.

In a prelitigation setting, if you get an impairment rating demonstrating some loss on the part of the claimant from a licensed Illinois physician

•           You can pay it and will receive credit for whatever you pay if claimant later files an Application but the payment won’t close medical rights or the ability of claimant to come back for more money in the future under Section 19(h).

•           Or you can do a pro se settlement for the amount of the impairment rating with us seeking approval before an Arbitrator at a flat rate—if approved, it will close medical rights and the ability of claimant to return.  We cannot predict how Arbitrators are going to view settlements in the amount of impairment ratings but they have to consider them.

Keefe, Campbell & Associates provides pro se settlement approvals at a flat rate of $250 in Cook County and $350 elsewhere in IL. In eight-plus years of existence, we have never raised the pro se rates.

You can also use a “zero impairment rating” to advise a claimant you are not going to offer any permanency. Again, that doesn’t mean an Arbitrator cannot award anything, using other factors mentioned in the IL WC Act.

If you have further questions or concerns about the 2011 Amendments to the IL WC Act, send a reply.

9-27-11; Appellate ruling overturning Pension Board finding on causation hard to figure. In our view, the reviewing courts are supposed to let pension boards decide the facts and not supplant...

The Appellate Court upheld the Circuit Court decision reversing a Pension Board’s denial of a police officer’s request for a line-of-duty pension in Rose v. The Board of Trustees of the Mount Prospect Police Pension Fund, No. 1-10-2157 (September 15, 2011). Officer Michael D. Rose was in an automobile accident on February 21, 2004 while on duty and driving his squad car. He was subsequently involved in an off-duty automobile accident on June 1, 2004. As a result of the February 2004 accident Rose contended he suffered permanent disabling injuries to his back and requested a line-of-duty pension. This request was denied by the Pension Board, but a non-duty disability pension was granted.

In denying the line-of-duty pension the board determined:

1)    The February 21, 2004 accident did not occur while Petitioner was performing an "act of duty"; and

2)    The February 21, 2004 accident was not a contributing cause of the petitioner's undisputed disability; rather the disability was caused by the injuries Petitioner sustained in the later June 1, 2004 off-duty accident.

The Circuit Court reversed the Pension Board’s decision and found Rose was entitled to a line-of-duty pension. On appeal the Appellate Court reviewed evidence regarding both automobile accidents and reports and deposition transcripts from a number of doctors who examined Rose.

Section 5-113 of the Pension Code defines the term "act of duty" as "[a]ny act of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman." 40 ILCS 5/5-113 (West 2006). In Johnson v. Retirement Board of the Policemen's Annuity & Benefit Fund, 114 Ill. 2d 518 (1986), the Supreme Court for the first time interpreted the definition of an "act of duty," as defined by section 5-113 of the Pension Code, and expressly rejected the notion the term "special risk" encompasses only inherently dangerous activities. The Supreme Court in Johnson held the capacity in which the officer is acting when he is injured will determine whether an officer is entitled to a line-of-duty pension.

In the present case, the Board found Rose was not performing an act of duty because the investigation he was working on did not involve special risks not ordinarily assumed by a citizen in ordinary walks of life. The Appellate Court noted at the time of the first accident Rose was in full gear inside his marked squad car, and was performing his patrol duties, which required special skills not ordinarily encountered by everyday citizens, namely “having his attention and energies directed towards being prepared to deal with any eventuality”. Johnson, at 522. As such the Court determined the Board’s conclusion Rose was not performing an act of duty to be clearly erroneous.

Regarding the cause of Rose’s disability the Pension Board held Rose’s disability did not result from the on-duty February 2004 accident, but solely from the off-duty June 2004 accident because Rose had fully recovered from the on-duty accident before the off-duty accident. The Appellate Court noted it is well established that "a disability may result from multiple causes," and that in order to obtain a full line-of-duty pension, "[a] claimant need not prove that a duty-related accident is the sole cause, or even the primary cause, of his disability." Luchesi v. Retirement Board of the Firemen's Annuity & Benefit Fund, 333 Ill. App. 3d 543, 550 (2002). Rather, a claimant must only prove that the duty related accident "is a causative factor contributing to the claimant's disability." Luchesi at 550.

The Appellate Court stated none of eight doctors involved in this case when informed of the second accident dismissed the first accident as a contributing factor to Rose’s disability. Four doctors opined the first accident was the cause of Rose’s permanent disability while the second accident merely exacerbated Rose’s symptoms. The remaining four physicians refrained from determining which accident, if any, caused Rose’s disability. The Board relied on one doctor’s opinion that Rose had fully recovered prior to the second accident. This opinion was based solely on a review of medical records and was contradicted by notes of Rose’s family physician which indicated Rose continued to have pain complaints. The Appellate Court held the Board’s conclusion Rose fully recovered from the 2004 accident, such that the injuries from this accident played no part in the ultimate disability, to be contrary to the manifest weight of the evidence and the Circuit Court decision was affirmed.

This article was researched and written by Matthew Ignoffo who can be reached at mignoffo@keefe-law.com.