5-15-12; WC Benefits for Activities of Daily Life will Massacre the Golden Goose

As fast as we reported on the report from the Office of Attorney General Madigan about issues facing our State’s WC program for its workers, we saw another impossible-to-understand WC claim and ruling out of, you guessed it, the Menard Correctional Center!!! We will provide more thoughts on the OAG report next week.

Defense observers were elated to recently hear seven consecutive claims for carpal tunnel had been zeroed by an Arbitrator because prison guards don’t do “repetitive work” that should cause irritation of their hands and wrists. The hearing officer also noted claimants were going to doctors to “create” the claims even before reporting the condition.

Today, we learned there are now claims being filed and WC benefits being awarded to State of Illinois workers for “repetitive walking.” We consider that an even more “revolting development” than questionable carpal tunnel issues. We strongly urge our Governor, Speaker Madigan, Senate President Cullerton and Chairman Weisz to consider what an awful idea this is and tell these hearing officers to rethink decisions like this.

If you aren’t sure, lots of scientists don’t think most Americans walk as much as they should. A 2003 published study tracked the steps of 1,136 adults around the United States who wore pedometers for two days. The results were compared to similar pedometer studies in Switzerland, Australia and Japan. The data collected showed Americans, on average, took 5,117 steps a day, far short of the averages in western Australia (9,695 steps), Switzerland (9,650 steps) and Japan (7,168 steps).

The fitness gap detected by the pedometer studies is equal to about 30 to 40 minutes of walking each day. One mile of walking covers about 2,000 steps, researchers say. The health community typically urges people to take at least 10,000 steps a day to maintain good health, which is equal to about five miles of walking. The study found if you walk more than 10,000 steps each day, you should be in top shape.

Therefore, statistically, you and I and most adults in this country walk about 2.5 miles each day. The vast majority of scientists in numerous fields assert the average American is much too sedentary and needs to walk more. The lack of walking is one reason so many Americans are obese and have diseases and deleterious conditions related to being overweight.

In a stunning ruling in Howell v State of Illinois/Menard Correctional Center, (09 WC 39531, issued March 20, 2012), the Illinois Workers’ Compensation Commission awarded benefits for “repetitive walking” due to what they ruled was the “stress” of walking and climbing stairs. The Commission’s opinion is based upon the claim Petitioner spent most of his day walking on floors and climbing steps over a period of 15 years. They ruled these activities placed him at a greater risk of injury than the “general public.” Based on those facts, they ruled Petitioner’s achilles tendinosis was compensable.

A quick summary is Petitioner worked as correctional officer for 15 years and testified he spent 80-90% percent of the day on his feet walking on floors and stairs, and testified he needed to travel a quarter of a mile to each house. He further testified he wore a pedometer which showed on a slow day he walked 3-5 miles while on a busy day he could walk up to 10 miles. Petitioner testified based upon the amount of walking he eventually underwent two surgeries. The Arbitrator believed Petitioner suffered repetitive/cumulative trauma as a result of the job duties. The Arbitrator awarded and the Commission affirmed $62,062.11 for medical expenses, and TTD for 16 weeks.

The problem with rulings such as this is simple and patent—the IL Workers’ Compensation Act is designed to provide benefits for accidents occurring at work. We can understand the concept of “repetitive trauma” where one’s job requires a worker to do something that is unusual and stressful and clearly causes a work-related condition. That said, ordinary actions of daily life and their sequalae can never, ever be covered under Workers’ Compensation.

Why do we make that statement? Well, let’s sit back and think for a minute.

·         Most folks need eyeglasses as they age. If you aren’t sure, “repetitive reading” can be blamed, in part, on work. Can we require Illinois employers and taxpayers to owe each employee for a lifetime of vision loss, eyeglasses/contacts, Lasik and other vision correction techniques under workers’ compensation? Does anyone have any idea what the cost would be?

·         Hey, many folks engage in “repetitive eating” and can blame it, in part, on work. Most of us gain weight as they age. Similarly, some of us have the opposite of what prison guard Howell complained of at work--we are “repetitive sitters.” When we suffer the problems with weight gain like needing girdles, expanded clothing, orthotics for shoes—are all of those concepts going to be 100% the cost of Illinois employers and taxpayers with some permanency added in?

·         How about hair loss? Some folks are “repetitive hat/helmet wearers” and suffer scalp issues and problems from it. Do Illinois employers and taxpayers now have to pay for a lifetime of wigs/toupees, hair plugs and Rogaine®?

·         Some workers go outside as part of their jobs and become “repetitive tanners.” Can Illinois employers and employers now owe for skin creams, sun blocks, protective clothing/hats and all your skin care for the rest of your life?

Initially, remember you can’t “prevent” walking at work. Nothing claimant did in this case was a safety violation—he did his normal work in a normal way. Thousands of Illinois workers walk up and down stairs and across floors every working day of every year, just like this prison guard. Are they all now having daily “accidents”?

Please also note you truly won’t need lawyers, litigation or hearing officers for what we consider “non-injury” claims involving conditions of daily life. It is our strong assertion it is impossible to “defend” what prison guard Howell is alleging—he clearly has a job and if all conditions of daily life merely have to have the word “repetitive” in front of them, benefits are clearly owed. Please also note Officer Howell worked for 15 years and clearly could claim every day of work was the “cause” of the “accident”—there is no nagging 45-day notice requirement, no need for fussy accident reporting so the Statute of Limitations never starts or ends and clearly everything is related to work. You don’t need lawyers on either side to handle such claims, if and when liability becomes certain and irrefutable. The adjusters will just have to pay and pay.

Please note this Illinois correctional facility already has about 260 WC claims for 550 workers. As fast as some of the CTS claims were being denied, a whole new impossible-to-understand claim concept is being created to funnel even more money to the prison staff. It isn’t going to stop at Menard C.C. either--hundreds and thousands of other State workers should be signing up for these hefty budget-busting and indefensible WC benefits. These State employees aren’t stupid and are happy to slop at the new trough opened by the Commission panel’s misguided ruling. We assume literally every State employee should now file claims for repetitive walking, eating, sitting, standing, hat wearing, tanning and whatever else they do while employed. If they are going to give away money for getting old and having a job, why not? When we say public sector claims poison the private sector, this is a great example.

Please further understand the Commission’s decision in this claim will not and cannot be appealed to a higher authority. By statute, WC claims by State workers end at the Commission so this one is final.

The only problem is when Caterpillar®, Target®, Coca-Cola®, Ford® and all the other major Illinois employers in the private sector start to hear about this whopper. If you think they are mad now, you don’t have any idea how mad they can get. As we have advised, if and when they leave, they won’t be a-coming back.

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

5-8-12; Seventh Circuit orders demoted employee reinstated to previous position finding demotion was in response to employee’s protected activity which occurred two years prior

In Hicks v. Forest Preserve District of Cook County, Illinois, U.S. Court of Appeals for the Seventh Circuit, Case No. 11-1124 (Decided April 18, 2012), the employee filed a discrimination complaint against his supervisor in 2006. In 2008 the employee was demoted and claimed the demotion was in retaliation for his 2006 complaint. The court found the time between protected activity and the adverse employment actions was not a bright line rule and the employee had additional direct evidence of the supervisor’s animosity. The employer was ordered to pay a jury award of $30,000 and reinstate the employee to his former position.

As most managers know, Title VII and related Federal Statutes prohibit discrimination. The last few years have seen a rise in “retaliation claims.” To prevail on a retaliation claim, a Plaintiff must prove he/she opposed an unlawful employment practice; that he/she suffered an adverse employment action and the adverse employment action was caused by their opposition to the unlawful practice. In this recent Seventh Circuit case Plaintiff Hicks, participated in a 2006 investigation of discrimination leveled against his supervisor Thompson by another employee. Hicks later brought his own claim of discrimination against Thompson. During the two years while Hicks worked as a truck mechanic in his employer’s garage he received 28 disciplinary action forms from his supervisor. Eventually the employer offered Hicks a choice of either accepting a demotion to a non-mechanic position and a significant pay cut or potentially face further disciplinary action up to and including termination. Hicks accepted the demotion, but immediately filed a charge with the EEOC and brought suit against his employer.

Prior to his demotion in 2008, Hicks received three infractions or disciplinary write-ups in a single day. The evidence at trial further revealed Thompson instructed Hicks’ immediate supervisor to “write up Hicks any time, all the time if anything he does is incorrect, write him up.” Further, the immediate supervisor testified Thompson had said Hicks “needed to be fired,” and Hicks “needed to be gotten rid of” since he had filed a charge against Thompson. Following a jury trial, Hicks was awarded $30,000.00 on his retaliation claim. In addition to the money damages, the district court ordered Hicks reinstated to his previous position.

On appeal, the employer argued the only adverse employment action suffered by Hicks was a voluntary demotion. The District Court found that given a choice between demotion and Hicks’ belief he would be fired, a reasonable jury could find the demotion was involuntary. The employer further argued Hicks’ participation in a protected activity (supporting a co-worker’s claim and filing his own discrimination claim two years earlier) was too distant in time to causally connect the adverse employment action with the protected activity. However, the court held the evidence and testimony, including the supervisor’s statements that Hicks needed to be terminated because he had filed charges of discrimination against Thompson, were sufficient direct evidence of retaliation.

We note the passage of time between the protected activity and the adverse employment action is not a “bright line” rule, and the trial court’s consideration of the time between the protected activity (supporting a coworker’s discrimination charge and filing his own charge in 2006) and the adverse action (demotion in 2008) is a fact-intensive analysis left to the trial court’s discretion. Finally, the employer argued against reinstating Hicks to his old position, stating the position had already been filled and Plaintiff would again be supervised by Thompson with whom he had a decidedly less than ideal working relationship. The court again ruled against the employer, stating the remedy for victims of discrimination is reinstatement; to make the victim of discrimination whole he should be reinstated, even if that requires pushing out an employee hired to fill the Plaintiff’s old position.

The Hicks case provides a clear illustration to all supervisors/managers of what not to do. Thompson’s venting to the immediate supervisor and providing the “need to get rid of” instructions to the immediate supervisor were powerful evidence in the Plaintiff’s favor. Additionally, it is difficult to imagine a situation where the same employee would receive three write-ups for disciplinary action on the same working day. Once an employee has made a claim for discrimination the employee joins a protected class and the employer must ensure any discipline or adverse action is well grounded and not payback for an earlier claim. In response to the actions of the supervisor, the employer was not only forced to pay a $30,000.00 judgment, they were forced to reinstate the employee.

Although sexual harassment training for supervisors and new hires is common practice, the prudent employer will also train on discrimination and retaliation. The actions and words of the manager become the actions and words of the company for discrimination and retaliation purposes. If your supervisory staff is in need of an annual refresher on discrimination and retaliation prevention, our attorneys can provide the training and custom format the classes to fit your working schedule.

This article was researched and written by Rodney Phillipe, J.D. Please feel free to contact Rodney directly about it at rphillipe@keefe-law.com. We appreciate your thoughts and comments.

5-8-12; Appellate Court, Workers’ Compensation Division, upholds an award for black lung disease, despite the fact the U.S. Department of Labor previously concluded Petitioner failed to prove...

Section 1(f) of the Act provides a claimant cannot recover benefits for occupational exposure unless he or she can prove the condition was contracted within two years of the last day of being exposed to a condition that could bring about the disease.

In Edmonds v. Illinois Workers' Compensation Commission, 2012 IL App (5th) 110118WC (issued April 30, 2012) Franklin Co., a retired 30-year coal miner filed a claim under the Workers' Occupational Diseases Act, alleging shortness of breath and exercise intolerance as a result of inhaling coal mine dust. The Arbitrator awarded claimant 10% PPD to the person as a whole.

On review, the Commission affirmed the decision of the Arbitrator, but the Circuit Court of Franklin County overturned the Commission, holding the doctrine of collateral estoppel precluded any finding that claimant had CWP within two years after his last date of exposure because the United States Department of Labor found to the contrary in a proceeding for benefits under the Black Lung Benefits Act.

Collateral estoppel, or “issue preclusion,” is a common law doctrine that prevents a party from re-litigating an issue. In other words, once a court has decided an issue of fact or law necessary to its judgment, that decision precludes re-litigation of the issue in a suit on a different cause of action involving a party to the first case. The rationale behind issue preclusion is the prevention of legal harassment and the prevention of abuse of judicial resources.

In order for a party to assert its opponent is precluded from raising an issue previously decided, the following three factors must apply:

•           The issue decided in the prior adjudication must be identical to the issue in the current action;

•           The party against whom estoppel is asserted must have been a party or in privity with a party in the prior action; and

•           The prior adjudication must have resulted in a final judgment on the merits.

The Appellate Court of Illinois, Workers’ Compensation Division, overturned the Circuit Court’s ruling collateral estoppel was applicable in the case. The Court noted although the three requirements listed above were seemingly met, the United States Department of Labor’s ruling claimant failed to prove contracting the ailment within two years of the last day after he was exposed was not “a final judgment on the merits.”

In reaching its conclusion, the Court reasoned the Department of Labor's role was “investigative” in nature, rather than adjudicatory. The Court cited the informal nature of the federal proceeding, constraints on the nature of evidence for initial submission of the claim and Petitioner's supposed lack of incentive to fully and fairly litigate his claim before the District Director of the Department of Labor.

With respect to the members of the Court, we disagree and assert the Illinois WC Commission’s role can be characterized as “investigative”, “informal” and with constraints on evidence. To the extent claimant brought his claim to the U.S. DOL, we have no idea what the majority means about a lack of incentive.

This article was researched and written by Joseph D’Amato, J.D. For thoughts and comments, please send an email to jdamato@keefe-law.com.