8-27-12; When exactly is enough, enough?

On August 7, 2012 the Belleville-News Democrat reported the State of Illinois had filed “suit” in Circuit Court to challenge the “settlement” obtained by former Arbitrator Jennifer Teague which resulted from a repetitive trauma claim she filed in 2010. The “settlement” was actually an award which was handed down by an outside arbitrator specially appointed by the State of Illinois to hear and decide cases involving IWCC employees, including arbitrators in order to avoid the appearance of impropriety.

The BND pointed out the outside arbitrator was appointed as one of the results of a series of articles which focused on the Menard Correctional Center workers’ compensation abuses which did not involve Arbitrator Teague. Those stories also lead to a series of stories regarding the tragic Matt Mitchell case in which the former Arbitrator unsuccessfully tried to steer the case out from under the watchful eye of the press. That mistake lead to the uncovering of a series of emails in which the former Arbitrator was advising plaintiff’s attorneys how to proceed with cases not in front of her.

This series of missteps lead to her ultimate dismissal and a complaint filed before the ARDC which is yet to be decided. Currently former Arbitrator Teague is not practicing law and it is likely her privileges will be suspended for a period of time. In an effort to avoid a certain level of scrutiny she has even resumed the use of her maiden name.

Which leads the commentator back to the original question: When exactly enough, enough? Former Arbitrator Teague’s mistakes have likely cost her law license and her job. Even in the event her law license is re-instated she will have to answer to the loss of her job and will likely have a difficult time re-building a practice. So now the State is going to make a further example of her by taking their new amendment to the Workers’ Compensation Act out for a test-drive and try to vacate the award which was written by their special arbitrator.

And how are they going to justify this exactly? And because of perceived abuses or lack of accountability, the State appointed outside arbitrators to hear these cases; BUT THEN THEIR OUTSIDE ARBITRATOR FOUND THE CASE TO BE COMPENSABLE! So how do they justify vacating that award? It’s difficult to find case law that supports turning over the award simply because the State doesn’t like the claimant. And how much more tax money exactly, will the State waste with this crusade? By the time this case wends itself through the Circuit Court and Appellate Courts, very likely more than the award itself.

We are not privy to the decision of the Arbitrator or the evidence presented in former Arbitrator Teague’s case, but it would seem from the article the “independent” Arbitrator was presented with convincing enough evidence in the way of medical opinions to justify the award. Rather than waste crucial attorney hours, which are paid by the State taxpayers, chasing this red-herring, maybe it’s time for the AG’s office to actually work at defending cases like this one. As noted, we don’t have the decision before us, but In the current climate it is clear that had they presented any reasonable evidence rebutting her claim, the claim would have been denied.

It’s time to let this sorry chapter in the IWCC history be put to rest, let Jennifer Teague get on with her life and for the AG’s office to focus on the real task at hand, cleaning up how they handle State of IL workers’ compensation claims. This article was researched and written by James F. Egan, J.D., please send your thoughts to Jim at jegan@keefe-law.com.

8-27-12; Hold Off on Appeal Until All Issues Resolved—Another Important WC Practice Rule from Our IL Appellate Court, WC Division

This is a straight-forward holding on a relatively simple issue: Orders remanding cases to an Arbitrator for further factual findings relative to vocational rehabilitation efforts and awards are not final orders, and are not appealable. Period. Stop asking; because the Court clearly is growing tired of repeating itself. So why do our lower courts and IL WC Commission so routinely get it wrong?

In Supreme Catering v The Illinois Workers’ Compensation Commission, No. 1-11-1220WC (August 20, 2012) the Illinois Appellate Court, First District, Workers’ Compensation Commission Division addressed the issue of remand for the purpose of vocational rehabilitation efforts, effectively finding every possible remand for the purpose of addressing vocational rehabilitation issues is an interlocutory order – that is, it is not final and therefore not appealable. There appears no exception.

The facts of the underlying Supreme Catering workers compensation injury claim are not germane to the Court’s holding, and were not addressed in detail by the Appellate Court in its holding, as they were irrelevant to the issue decided.

Petitioner sustained injuries he alleged were work related; Respondent defended on the sole theory Petitioner was not Respondent’s employee. The Arbitrator ruled in favor of Respondent on the issue of employment, and upon appeal the Commission reversed the denial, found an employment relationship, and remanded the case for further factual determinations including Petitioner’s need for vocational rehabilitation and maintenance. Supreme appealed to the circuit court and then the Appellate Court, First District, who issued this decision. On its own initiative the First District Appellate Court addressed the issue of jurisdiction, noting circuit and appellate courts possessed jurisdiction over only those Commission decisions that are final and appealable. Because the Commission’s decision contained an order to remand the case for vocational rehabilitation findings, the Court found the decision was not final.

The Court noted it has long been held that remand for a determination of vocational benefits is interlocutory and not appealable. Citing International Paper Co. v Industrial Comm’n the question is “whether the administrative involvement in the case has been terminated the Commission has ordered further administrative proceedings,” the Court determined a remand order for the purpose of vocational rehabilitation determinations cannot be a final order. In every case analyzed on the issue of remand orders for vocational rehabilitation, the Court found the order interlocutory and not appealable.

Starting with International Paper, where the Arbitrator found a state of permanency and awarded PPD benefits, when appealed to the Commission and reversed with a remand order on the issue of vocational rehabilitation the Court found the Commission’s decision was not final because the order for additional findings on the issue of vocational rehabilitation necessitated further administrative involvement. The same was true for expedited proceedings under Section 19(b): When the Commission remanded the case to the Arbitrator for a determination of a vocational plan the decision was interlocutory and not appealable. Hunter Corp v Industrial Comm’n 86 Ill. 2d 489 (1981) Even a Section 19(b) trial where the Arbitrator’s order for a vocational rehabilitation plan appeared final and was appealed through the Commission and circuit court, the Third District Appellate Court determined that decision was not final, because the arbitrator would necessarily have to determine a specific vocational plan, which would necessitate remand for those findings and render the matter interlocutory. American Insulated Structured v Industrial Comm’n 265 Ill. App. 3d 171 (1994) The Court assessed over a half dozen cases concerning Section 19(b) proceedings, Section 19(b)1 proceedings and nature-and-extent trials dealing with the specific narrow issue of the interlocutory nature of remand orders for determinations concerning vocational rehabilitation, making clear under no circumstance is a remand order for findings concerning vocational rehabilitation final and appealable:

An analysis of the foregoing cases reveals that a decision of the Commission which remands the case to the arbitrator for further proceedings on the issue of vocational rehabilitation is not a final order. …it does not matter whether the remand is for the purpose of providing the specifics of a generalized plan ordered by the Commission or for a determination of whether vocational rehabilitation should be ordered. In either case, further proceedings are required before an administrative decision is final.

In any circumstance wherein a remand order necessitates findings concerning vocational rehabilitation, the order is not final and cannot be appealed. The Court therefore vacated the Circuit Court decision and each decision that followed as rendered by a court without jurisdiction, and remanded the matter to the Arbitrator for further proceedings as initially ordered.

So why the indignation in the Editor’s Comments above? Well, your editors have seen this issue from both sides of the argument, having been chastised by this same Court for appealing a non-final order only to turn around and be penalized by the Commission for non-payment of another non-final order remanding a claim for additional factual findings on vocational rehab issues. It stings when Respondents have to choose between being penalized by the Commission for being right and possibly being chastised by the Appellate Court for appealing a non-final order to avoid such penalties. It may be these matters are so often appealed not because of less-experienced defense attorneys who don’t know the law but because protecting against unwarranted penalties outweighs the need for defense counsel to save face before the industry.

This article was produced in large part – and the angry bits exclusively – by Joseph R. Needham, J.D. Please send all angry rants and responses to jneedham@keefe-law.com.

8-27-12; Illinois Appellate Court provides a primer for the industry on the “unnatural accumulation” theory of snow and ice in handling/accepting IL fall-down claims. Adjusters who handle such...

As a dedicated insurance defense law firm, we were happy to see our Appellate Court reverse a multiple six-figure jury award where Defendant gas station appeared to do everything they could to clear snow and ice and provide safe ingress and regress to their customers. While an unfortunate and no doubt painful injury, such accidents are not always the fault of the landlord, particularly when Old Man Winter creates the circumstances leading to the injury.

In Barber v. G.J. Partners, Inc., (2012 IL App (4th) 110992, issued 8/22/12), Plaintiff suffered a slip and fall while exiting her vehicle as she was entering a gas station, fracturing her ankle. Heavy snow the day prior compelled the gas station to clear the lot with a plow and salt the front areas of the store. Nevertheless, there were a few metal plates (4ft X 4ft), slightly below the concrete, which had snow and ice packed in them from the plow and subsequent traffic.

Plaintiff argued such areas of packed snow led to an unnatural accumulation near lined parking spots and Defendant failed to warn customers of the slippery condition. Defendant on the other hand, argued there was no evidence of an unnatural accumulation of snow or ice upon which Plaintiff fell. The jury found for Plaintiff and thereafter, the trial judge denied Defendant’s motion for judgment notwithstanding the verdict. Defendant’s appeal followed.

Despite testimony from employees who acknowledged slippery conditions were created by the snow-packed plates, the Appellate Court nevertheless reversed the jury award and agreed to enter a judgment notwithstanding the verdict in favor of Defendants. Citing precedent, the Court noted:

·         “[T]he mere removal of snow which may leave a natural ice formation on the premises does not constitute negligence.”

·         Further, “the mere sprinkling of salt, causing ice to melt, although it may later freeze, does not aggravate a natural condition so as to form a basis for liability on the part of the property owner.”

·         Perhaps most important to this case, the Court further cited case-law to note “ruts and uneven surfaces created by traffic in snow and ice are not considered unnatural and cannot form the basis for liability.”

The Court explained a property owner may be subject to liability if the voluntary snow removal is performed in a negligent manner. Such liability may arise where a “new, unnatural or artificial condition” were created by the snow removal. However, the shoveling of parking areas and sidewalks is generally beneficial to customers. Store owners should not be discouraged from doing so simply because such operations can rarely be done “perfectly” during winter months.

The ruling is on the web at: http://www.state.il.us/court/opinions/AppellateCourt/2012/4thDistrict/4110992.pdf. This article was researched and written by John P. Campbell, Jr., J.D., please feel free to send your thoughts and comments to John at jcampbell@keefe-law.com.