7-1-13; Ford Offer of Multi-Disciplinary Pain Program Ignored on Appeal; HB 3390 Now Law; FMLA now 20-yrs old and much more

Synopsis: A Voice of Reason in the Wilderness that is Illinois Workers’ Compensation??—too bad it was a dissent to another of a string of recent unfavorable decisions for Illinois employers. Analysis by Shawn R. Biery, J.D., MSCC.
 
Editor’s comment: In Kawa v IWCC, (issued June 3, 2013) Claimant, Bryon Kawa was employed as a launch engineer for Ford Motor Co., when he was involved in a job-related vehicle accident. As a result of the accident, the claimant underwent treatment for injuries to his right shoulder, right knee and low back. Claimant indicated he experienced continuous shoulder, back, and knee pain since the date of the accident. While multiple issues were present, the record reflects Petitioner appeared to be exaggerating at times and refused or failed to attempt portions of recommended treatment. The heart of the claim goes to that issue and whether he should have continued to receive benefits or if MMI was appropriately declared.
 
After a hearing pursuant to section 19(b) of the Workers' Compensation Act, the Arbitrator found Claimant engaged in an injurious practice, which both imperiled and retarded his recovery, by declining to participate in a multidisciplinary pain management program that included psychological treatment. As a result, the Arbitrator ruled Claimant failed to prove his conditions of ill-being were causally related to the work accident and the Arbitrator found him MMI as of February 25, 2008, the day his treating physician recommended the multidisciplinary pain management program.
 
The Arbitrator also found "any and all treatment after February 25, 2008, was and is neither necessary nor reasonable unless and until claimant fully complied with the prescription of participation in a multidisciplinary pain management program with strong psychological elements." Based upon those findings, the Arbitrator denied TTD after June 4, 2008, and denied entitlement to further TTD until Claimant completed the multidisciplinary pain management program. The Arbitrator also denied vocational rehabilitation, maintenance benefits and Claimant's request for penalties and attorney fees. Finally the Arbitrator found no overtime was included in the wage rate due to lack of being mandatory.
 
Upon appeal, the Commission affirmed and adopted the Arbitrator's decision, except the Commission found Claimant did not engage in an injurious practice by declining to participate in the multidisciplinary pain management program. The Commission found, however, Claimant had reached MMI because he "chose not to avail himself of further treatment." Claimant appealed and the Circuit Court entered a judgment confirming the Commission's decision.
 
Claimant appealed and the Appellate Court, Workers’ Compensation Division reversed the portions of the Circuit Court's judgment that confirmed the Commission's findings on the issues of causation, MMI, TTD benefits, medical benefits, and vocational rehabilitation and maintenance benefits, and affirmed the Commission's denial of penalties and attorney fees and its calculation of the claimant's average weekly wage.
 
The Appellate Court majority focused on the Commission decision noting the employer failed to prove the RIC pain management program was reasonably essential to promote the claimant's recovery or that the claimant's refusal to attend the RIC's program was in bad faith or outside the bounds of reason. Based upon that rationale, the Appellate Court majority indicated claimant's refusal to participate in the RIC program cannot be a basis for denying him further TTD benefits and furthermore noted the RIC program was the only multidisciplinary program Claimant declined to participate in. The Appellate majority held it against the employer that they did not suggest or approve any other multidisciplinary program despite treating MD Dr. Koh's recommendation that an alternative program be considered. They reversed on the finding of MMI based upon a variety of reasons which essentially indicate because he still had recommendations for care and ongoing restrictions, he wasn’t MMI—although it would seem to be a bit circular to refuse to grant MMI when a claimant refuses to work toward any more “Improvement” via recommended “Medical” treatment.
 
In the interesting dissent, Justice Turner noted the Supreme court has noted in the past that "[t]he Act provides incentive for the injured employee to strive toward recovery and the goal of returning to gainful employment by providing that TTD benefits may be suspended or terminated if the employee refuses to submit to medical, surgical, or hospital treatment essential to his recovery, or if the employee fails to cooperate in good faith with rehabilitation efforts" citing Interstate Scaffolding, Inc. v. The IWCC and Hayden v. Industrial Comm'n where TTD was properly terminated when the injured employee was unwilling to cooperate with vocational placement efforts. The dissent concluded based upon the record before the Appellate Court, the Commission's decision to deny benefits to claimant was not an abuse of discretion as it was clear the Commission found Claimant refused to submit to treatment reasonably essential to promote his recovery so the Commission's error on the issue of causation would not be dispositive and does not require reversal on the denial of benefits noting settled Appellate case law confirms "We will affirm a decision of the Commission if there is any basis in the record to do so, regardless of whether the Commission's reasoning is correct or sound" citing Ameritech Services, Inc. v. Illinois Workers' Compensation Comm'n.
 
While other issues were discussed and the Appellate Court majority again confirmed that OT must be mandatory to be considered for the average weekly wage, the reading of the case and the strong arguments provided in the dissent which cites IL Supreme Court rulings which remain law appear to more closely follow previous Illinois holdings. It is slightly incredible to believe Petitioner can refuse treatment, doesn’t seek alternative treatment himself and then the employer is effectively punished for not attempting to force Petitioner to undergo some similar alternative to treatment he is already refusing to undergo.
 
We also ask our readers the underlying but obvious question—isn’t the Appellate Court, Workers’ Compensation Division simply substituting their own view of the proper medical outcome by reversing on “manifest weight of the evidence” grounds. Isn’t that precisely what the IL Supreme Court said wasn’t supposed to happen in both Sisbro and Twice Over Clean?
 
From the perspective of IL business it is further frustrating when the refusal to begin participation in the program appears to be the reason the program was not yet clearly defined—it is impossible to prepare a treatment plan when someone refuses to present for evaluation!! The appellate dissent and the rational, well-thought decisions of the Arbitrator, IWCC and Circuit Court give hope that someone is noticing that a WC system stretching to provide benefits regardless of valid defenses is not a sustainable proposition. This article was researched and written by Shawn R. Biery, J.D. MSCC. Email Shawn at sbiery@keefe-law.com for a copy of this case or with any questions.

Synopsis: HB3390 signed into law. Yaaaawn....
 
Editor’s comment: Last Friday June 28, 2013, Governor Quinn signed HB3390 into law. The bill becomes law effective immediately (PA98-0040). Please note the new procedure for filing review in the Circuit Court applies to decisions entered by the Commission after the effective date, which is June 28, 2013.
 
The bill makes technical changes by deleting language pertaining to Arbitrators made obsolete due to the 2011 Amendments. For example, because Arbitrators are now appointed by the Governor with advice and consent of the Senate, they are no longer subject to the Personnel Code.
 
Also, unless a pro se Petitioner who does not either read or communicate in English provides his or her own translator, the Commission shall provide a translator.
 
The bill makes a substantial change to 19(f) that practitioners must be aware of now that the Governor has signed the bill into law. Because 19(f) deals with filing review of the Commission's decision in the circuit court, strict compliance is required to confer jurisdiction to the Circuit Court.  
 
The bill does away with the provisions requiring the appealing party to exhibit to the Clerk of the Circuit Court proof the $35.00 charge for the probable cost of the record has been paid to the Commission. Instead, when parties file a review in the circuit court they will have to file proof that Notice of Intent to File Review in the Circuit Court has been filed with the Secretary or Assistant Secretary of the Commission. Proof may be either
 
(1)  a file stamped copy of the Notice of Intent form, which the Commission is currently drafting, or
(2)  an affidavit stating the Secretary or Assistant Secretary of the Commission has received the Notice of Intent to File Review.
 
The changes to Section 19(f) will be effective for all decisions the Commission enters after the effective date of the amendment.  As we all know, the 20 day limit to file a review to the Circuit Court begins from the time the Commission's decision is received rather than filed/entered. Therefore, those attorneys filing reviews of Commission decisions/Orders in the near future should pay close attention to the date the Commission files its decision to determine whether they need to pay $35.00 for the probable cost of the transcript versus filing a Notice of Intent.
 
If you are still awake after reading all this, please feel free to send your thoughts and comments. Please also post them on our award-winning blog.    
 
  
Synopsis: FMLA Had Its Twentieth Anniversary This Year and U.S. Employers Still Groan to Hear the Four Letters Together
 
Editor’s comment: For the last twenty years, U.S. employers still have many concerns with the Family and Medical Leave Act. Washington lawmakers, the U.S. DOL and family advocates marked the 20th anniversary of the signing of the unpaid federal leave law last week with the release of a report on the use of FMLA leave and renewed calls for paid leave initiatives.
Our recommendation to all risk, claims and HR managers on the workers’ compensation front is to insure you always run workers compensation leave concurrent with FMLA leave. The FMLA specifically provides that unpaid leave under the Act runs concurrently with other forms of legally protected absences from work, including Workers' Compensation leave. Any eligible employee who suffers a “Serious Health Condition” as defined under the FMLA as the result of a workplace injury should immediately be placed on FMLA leave. By running the FMLA leave concurrently with the Workers' Compensation leave, the employer can eliminate the potential that an employee returning from Workers' Compensation leave claims the full FMLA leave entitlement for an unrelated absence. If you aren’t sure how or why you should do this, please send a reply and the defense team atKCB&A will be happy to assist.? ?The FMLA provides workers with 12 weeks of unpaid leave to care for themselves or a family member with a serious illness or after the birth or adoption of a child. However, the law only applies to workplaces with at least 50 employees, and workers must have been at their job for at least a year and have worked at least 1,250 hours in the year prior to the leave. As a result, only 59 percent of surveyed employees in a national study reported they met the qualifications to take FMLA leave. The US DOL report, Family and Medical Leave in 2012, consists of survey results by Abt Associates, a Cambridge, Mass.-based consulting firm. The firm surveyed 1,812 worksites and 2,852 employees last year, including both employers and employees who are covered by the FMLA and those who are not.? ?The survey found 13 percent of all employees, both those who were covered under the FMLA and those who were not, took leave for an FMLA-covered reason in 2012. That figure was unchanged since the last time a similar survey was conducted, in 2000. Among workers who were eligible for FMLA leave last year, 16 percent took leave, while only 10 percent of ineligible employees did so.? ?Some 57 percent of the leave workers took was due to their own illness, the report said, while 22 percent took leave in connection with the birth or adoption of a child and 19 percent said they took leave to care for a spouse, child, or parent. Another 2 percent took leave for other reasons. Of the leave that was taken, 42 percent was for a period of 10 days or less, the survey found, and only 17 percent lasted for more than 60 days. Those findings were similar for both FMLA-eligible and non-eligible employees, the report found.? ?Although the FMLA only mandates that covered employers provide workers with unpaid leave, the survey found that most workers who took leave for FMLA-covered reasons received some pay, with 48 percent receiving full pay and another 17 percent receiving partial pay. However, for leaves of more than 10 days, only 40 percent of workers received pay, while 60 percent were paid during leaves of 10 days or less.? ?Please feel free to send your thoughts and comments. Please also post them on our award-winning blog.

Synopsis: KCBA welcomes general liability, employment law and litigation defense specialist Chris St. Peter from the law firm of Winston & Strawn LLP??

Editor’s comment: Keefe, Campbell, Biery & Associates proudly announce the addition of Christopher H. St. Peter, J.D. to our legal team. Chris joins us from Winston & Strawn LLP, where his practice involved all aspects of complex commercial litigation in state and federal court.  Chris graduated with honors from Chicago-Kent College of Law, where he was an executive articles editor of the Chicago-Kent Law Review and an extern for the Honorable Magistrate Judge Arlander Keys in the U.S. District Court, Northern District of Illinois. Chris will focus his practice on a full range of defense work, including general liability, employment law, product liability, and contract disputes.  Chris can be contacted at any time at (773) 301-7244 or cstpeter@keefe-law.com.?

 

6-24-13; Please Join Us!!!; Soap-reaching is Now an Accident in IL WC, analysis by Ellen Keefe-Garner JD, RN; The IL WC Community Mourns Barb Kalobratsos and Sandi Usselmann and more

Synopsis: JOIN US!! Please join KCB&A By Adding Your Company Name To Our Amicus Curiae Brief to the IL Supreme Court!

Editor’s comment: The “traveling employee” concept is soon to take over and insure wildly increased WC coverage and costs for all IL employers. As we have advised our readers, the Venture-Newburg-Perini Stone and Webster ruling along with a similar ruling in Mlynarczyk have set a new standard for WC coverage in this state. The rulings provide global WC coverage for any “traveling employee”—the worker doesn’t have to be “traveling” at the time of the injury; they simply have to have a job where they don’t work “on the premises of their employer.” Anyone who doesn’t work on the “premises of their employer” gets global WC coverage for any injury, including injuries resulting from their own negligence when they are performing any “reasonable and foreseeable” task from the moment they leave the door of their home until the moment they return home.

Claimant in Venture-Newburg-Perini was a pipefitter who was going to work at a nuclear power plant and was injured in a motor vehicle accident as a passenger while traveling from his motel to the jobsite. He wasn’t on the clock nor had he appeared at the plant for a single minute of work—the employer or insurance carrier may have to pay over $1M in medical benefits for a claim that may eventually be worth over $2-3 million in value.

In Mlynarczyk, Claimant was a cleaning lady walking to her own vehicle to return to work after her lunch break. She slipped and fell on snow in her own driveway and fractured her left wrist. The employer or insurance carrier will now have to pay substantial WC lost time, medical and PPD benefits. Please note her potential negligence in cleaning ice and snow from her own driveway and failing to apply salt is now the “fault” of her employer.

In the third such “traveling employer” ruling, the same panel in Kertis v. Workers’ Compensation Commission considered a Claimant who was a bank branch manager for WaMu® or Washington Mutual®. He fell in a pothole on admittedly public walkway. This manager had to “travel” between two bank branches. The Arbitrator, IWCC and Circuit Court denied the claim, asserting the potential of stepping in a pothole in a street was a risk common to the public. The Appellate Court, Workers Comp Division has unanimously reversed and awarded substantial benefits.

In Kertis, the appellate panel ruled, as a matter of law, bank managers covering two work locations now are covered for all “reasonable and foreseeable” injuries, even those arising from their own negligence, from the moment they leave home until they return home. Their logic indicates bank managers covering one location would not receive such IL WC coverage. No other state does this--only in the IL WC system does that make any sense. Don’t take our word for it, please read http://www.illinoiscourts.gov/Opinions/WorkersComp/2013/2120252WC.pdf.

Please note the term or phrase “traveling employee” doesn’t appear at all in the IL WC Act or Rules—it has all been defined by our Commission and courts in what many critics feel is “judicial legislation.” Our hearing officers and courts can make it up as they feel best and leave the rest of us to guess where they will take the concept. For one example, we are wholly uncertain what the “premises of the employer” might be. Isn’t a truck driver driving in the company vehicle working on the premises of the employer? Does the employer have to own the “premises” or can they lease it? Can construction companies force their workers to move to and live in trailers on their job sites to avoid this expanded coverage and risk? Are municipal workers traveling within the municipality on the “premises of the employer” or does that only include City Hall? What if the cleaning lady in Mlynarczyk works most of the time cleaning her employer’s premises but then goes to your house or my house later in the day—is she a “traveling employee” all the time or some of the time?

The “traveling employee” concept was supposed to be for workers being sent overnight to odd and potentially dangerous foreign places. When they arrive, they would face unusual food, currency, kidnapping, disease and other extraordinary risks—our clients understand the reasons to expand WC coverage for such high-risk workers. What is now happening in IL WC is we are extending extraordinary WC coverage afforded to folks who variously face the risks of extraordinary travel to folks that may not even be “traveling” and don’t face any unexpected risks. We assure our readers virtually all members of the municipal/government, construction, road building and transportation industries will be provided this unusual and wildly expanded “traveling employee” WC coverage. Most members of the legal industry travel to courts, other hearing locations and client meetings and will also receive the expanded coverage. At-home workers will also get such coverage which may cause IL employers/TPAs/insurance carriers to seek at-home workers from other states to avoid the increased WC coverage and heightened costs—are IL at-home workers covered under WC the moment they wake up until they return to bed? If they fall out of bed but do so thinking about work, are they covered?

We don’t feel any of this will be good for IL business in this rotten economy. We also feel Illinois will soon have the most expensive of all WC state systems, if this concept remains IL WC law. Local and state taxes may have to be increased. WC premiums and reserves are certain to dramatically rise. We have already predicted a “WC fraud-fest” because the injuries don’t have to occur in the workplace or while traveling—a miscreant who injures their ankle playing ball with their friends can simply say it happened in their driveway while going to work a la Mlynarczyk.

Finally, as the “arising out of” and “in the course of” requirements are being discarded for millions of IL workers who don’t work on “the premises of their employer,” we assert all aspects of IL WC law and practice will have to change as the “stip sheet” and Commission decision forms and their IWCC handbook will have to change to include this new game-changing “traveling employee” concept.

We seek your corporate participation to allow us to add your name as a party amicus to the IL Supreme Court brief due on July 3, 2013. There is no charge to be added—we are simply trying to support the great attorneys who seek to get the IL Supreme Court to reverse or greatly modify the Venture-Newburg-Perini Stone and Webster ruling and return Illinois to the rules we have followed for 104 years. We appreciate your thoughts and comments; please post them on our award-winning blog.

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Synopsis: How Can Reaching for a Soap Dish Become an Accident When Petitioner’s Story isn’t “Squeaky Clean?” Analysis by Ellen Keefe-Garner, J.D., R.N.

Editor’s comment: We feel the IL Appellate Court, Workers’ Compensation Division overlooks inconsistent evidence to arrive at the conclusion indicating the injury arose out of employment when the employee felt pain supposedly reaching for a soap dish. We have seen different outcomes in prior cases involving claimants reaching and moving in normal ways. For instance, see Hansel & Gretel Day Care Center v Industrial Commission in which a teacher’s assistant injured her leg standing up from a chair. 

In Accolade v. The Illinois Workers' Compensation Commission, issued May 30, 2013, a caregiver at an assisted-care facility claimed she suffered a neck injury from reaching to remove a soap dish while helping a resident shower. More than a year after the incident, Claimant testified at trial she felt something in her neck pop when she reached out to remove a soap dish because she was concerned about it causing a “safety risk” since the resident might slip on suds while showering. Documents and testimony admitted at trial revealed very different and often inconsistent histories of how her pain had begun.

For instance, claimant’s incident report—which had been completed on the day of the alleged event--did not mention any safety concern caused by the soap dish and instead merely stated claimant felt pain and popping in her neck while assisting a resident with a shower. On another part of the same incident report, the manager in the facility also did not record any safety concern and instead recorded claimant felt a popping sensation when she simply moved her head. Similarly, Claimant’s Form 45 merely stated, “She [claimant] turned her head and something popped.” In a like manner, one day after the alleged incident, a doctor’s history indicated claimant felt pain in her neck when she had “reached” at work the previous day. Notably again, there was nothing in the doctor’s history about reaching for a soap dish or about protecting a patient.

Strangely, an x-ray report from the same day (the day after the alleged incident) gave an entirely different and conflicting history, indicating claimant felt a popping sensation with pain when she lifted a patient under the shower yesterday. A few days after the alleged incident, another doctor noted claimant had a “long history” of neck and back pain. This doctor used an MRI to diagnose the presence of a large C6-7 disc herniation with severe radicular symptoms. He referred her to a neurosurgeon for possible surgery and admitted her to the hospital the same day. Again, the neurosurgeon’s history from the claimant makes no mention of any soap dish or patient safety concerns and instead indicates claimant experienced a popping feeling with radiating pain into the right arm when she simply bent over at work. After Claimant underwent discectomy/fusion surgery, claimant’s attorney arranged an IME during which claimant for the first time asserted she had slipped and twisted her back helping a resident in the shower at work. During a subsequent IME performed at the request of her employer, claimant reported yet another story indicating the pain had developed as she bent over in the shower to reach for a bar of soap. 

So, which one is it? Did claimant slip, twist, fall, lift, bend, reach, feel spontaneous popping or pain, or did she suffer from chronic spinal abnormalities? No one will ever know since despite all of the inconsistent and contradictory evidence, the Arbitrator subsequently concluded Claimant sustained an injury that arose out of and in the course of her employment. Ignoring the evidence which indicated the pain had arisen spontaneously and from normal bodily movements, like bending or reaching, the Arbitrator’s decision discussed the position of the soap dish under the shower head and how the location of it could or did allegedly create an increased risk to which the general public is not exposed.   

The pivotal question on appeal was whether the act of reaching for a soap dish (the risk) was a risk to which this employee was exposed to a greater degree than the general public. The employer rightly noted if the injury arose from a hazard or risk to which the employee would have been equally exposed apart from her employment; the injury did not arise out of the employment. Defense counsel for the employer categorized the reaching as “not in any way peculiar to her [Claimant’s] employment.” Furthermore, respondent emphasized the documentary evidence-- which had been created on the date of the incident--was entirely and completely without any mention of any holding of the resident, lifting, reaching or moving in an awkward fashion.

Ultimately, the Appellate Court, Workers’ Compensation Division focused on the fact the soap-dish-reaching occurred while the claimant was allegedly trying to protect a resident from falling. Ignoring the same reaching would have occurred while doing numerous activities both inside and outside of work, the Appellate Court affirmed the award in favor of Claimant. Notably, in arriving at its conclusion for Claimant, the Appellate Court admitted it had to ignore the inconsistent renditions of events in the various documents created on the date of the alleged incident. The Appellate Court explained away these inconsistencies by stating it was within the province of the Commission to judge the credibility of the witnesses, determine the weight to assign the testimony, and resolve conflicts in evidence. Ultimately the Appellate Court indicated the inconsistencies in the documentary evidence were not sufficient to overturn the Commission’s decision. With respect to the members of this appellate panel, we feel the issue isn’t the obvious dispute over the facts, it is whether reaching for a soap dish can be defined as an accident when it is such a commonplace activity of daily life. We also cannot fathom how a worker can significantly herniate a disc when simply reaching for soap. Taking a broader view of this court, it is our view that if the appellate panel wants to affirm an award of compensation, they focus on the facts and confirm the manifest weight requires affirmance. If they want to reverse a denial to insure benefits are awarded, they appear to disregard the manifest weight of the evidence standard.

This article was researched and written by Ellen Keefe-Garner, J.D., R.N. who is our resident KCB&A lawyer-nurse. Ellen is licensed in both Illinois and Michigan. Feel free to contact her with questions or concerns at emkeefe@keefe-law.com.

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Synopsis: The IL WC Community Mourns the Passing of Barbara Kalobratsos, J.D. and Sandi Usselmann, R.N.

Editor’s comment: Barb Kalobratsos was a brilliant defense lawyer and will be missed by hearing officers and attorneys on both sides of the practice. Barb received her Juris Doctor degree from The John Marshall Law School in Chicago, Illinois. While in law school, Ms. Kalobratsos participated in an internship with the Honorable Alexander White, Cook County Circuit Court Judge, Workers' Compensation Division. As an intern, her duties included researching and analyzing the law pertinent to workers' compensation matters, drafting judicial opinions and monitoring the various legislative proposals and their effect on the Illinois Workers' Compensation Act.

Throughout her career, Ms. Kalobratsos concentrated her practice in the defense of workers' compensation matters and subrogation claims. She also had vast experience in cases involving automobile negligence and product liability. As a seasoned trial attorney, Ms. Kalobratsos defended complex workers' compensation cases including death, heart attack and psychological stress-related claims at the Industrial Commission with favorable results. She has also handled cases in the Circuit Court of Illinois and in Federal Court, representing clients in both workers' compensation and civil matters. Her professional affiliations included the American Bar Association, the Chicago Bar Association, the Workers' Compensation Lawyers Association and the Hellenic Bar Association.

Barbara Kalobratsos was the beloved wife of Peter Wachowski and loving mother of Philip, Christina & William. Visitation is today from 3-9 pm Nelson Funeral Home 820 W. Talcott Rd. Park Ridge. Funeral Tuesday lying in state 9:30 am until time of service 10:30 am at St. John the Baptist Greek Orthodox Church 2350 E. Dempster St. Des Plaines. In lieu of flowers donations to www.wackywarriors.org will be appreciated.

Sandra Kay Usselmann was a nurse who worked with and for Illinois injured workers in the 35 years of her tireless work. She dedicated her life to assisting individuals in receiving quality medical care. Sandi owned Paragon Health Services and helped thousands of people return to work through her services. She touched and healed many more with her friendship, love, and tender loving care. Sandi battled breast cancer for approximately one and a half years.

Preliminary visitation arrangements are tonight Monday, June 24, 2013 at Valhalla Funeral Home. The website is: http://www.dignitymemorial.com/valhalla-gaerdner-holten-funeral-home.com It is located at 3412 Frank Scott Parkway West, Belleville, Illinois  62223. Sandi will be buried tomorrow Tuesday, June 25, 2013 at Green Mount Cemetery in Belleville, Illinois.

God bless and keep both of these great women and consummate professionals who lived and thrived in the IL WC system. We hope their family and friends find comfort in remembering their great work and achievements.

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Synopsis: KCBA welcomes general liability, employment law and litigation defense specialist Chris St. Peter from the law firm of Winston & Strawn LLP.

Editor’s comment: Keefe, Campbell, Biery & Associates proudly announce the addition of Christopher H. St. Peter, J.D. to our legal team. Chris joins us from Winston & Strawn LLP, where his practice involved all aspects of complex commercial litigation in state and federal court.  Chris graduated with honors from Chicago-Kent College of Law, where he was an executive articles editor of the Chicago-Kent Law Review and an extern for the Honorable Magistrate Judge Arlander Keys in the U.S. District Court, Northern District of Illinois. Chris will focus his practice on a full range of defense work, including general liability, employment law, product liability, and contract disputes.  Chris can be contacted at any time at (773) 301-7244 or cstpeter@keefe-law.com.

6-17-13; Massive Employment Law Muddle Might Be Different With Veteran WC/EPLI Defense Approach; Joe Needham on Important Positional Risk Ruling; Shawn R. Biery on Double-Dip PPD Award and much more

Synopsis: IL Employment Law Muddle—When Is a Claim WC, EPLI or a Circuit Court battle? Our vote is to consult with our KCB&A defense team that can handle all such issues in your companies’ best interests.

Editor’s comment: We saw two very different outcomes in two very similar actions across our state in the last couple of weeks. The legal battlefield and potential costs have to make IL risk, safety and HR folks bewildered.

In Holland v. Schwan’s Home Service; No. 5-11-0560, issued May. 30, 2013, Plaintiff alleged his erstwhile employer Schwan's Home Service, Inc. (Schwan's) terminated his employment in retaliation for “exercising his rights” under the Illinois Workers' Compensation Act. After a seven-day trial, a jury returned a verdict in Holland's favor on his retaliatory discharge claim, awarding him a total of $4,260,400 in compensatory and punitive damages. The punitive damages portion of the award was $3.6 million. We consider that amount to be comical, ludicrous—you pick the adjective. Throughout the trial court proceedings in one of Illinois’ notoriously anti-business judicial areas, Defendant Schwan's denied Plaintiff Holland's assertion Schwan’s terminated his employment. Instead, Schwan’s maintained when Holland recovered from his work accident and was ready to return to work, it offered him an available position at the facility where he previously worked but he refused to report for work. At several stages of the lower court proceedings, Schwan's requested the Circuit Court decide the issue of whether it had terminated Holland in its favor as a matter of law, rather than letting the jury decide.

Prior to the trial, Schwan's made this request in a motion for summary judgment the Circuit Court denied. After the conclusion of Plaintiff Holland's case in chief, Schwan’s made the request for a directed verdict. Again, the Court denied the motion. In denying Schwan's motion for directed verdict, the Circuit Court found Holland presented sufficient evidence for the jury to conclude he was terminated. The Court noted Schwan's was "free to argue to the jury" Holland was not terminated but it was "up to the finder of fact to make that determination." Finally, after the jury considered the evidence and entered a verdict in Holland's favor, Schwan's raised this issue again in a post-trial motion requesting the Court enter judgment notwithstanding the jury's verdict and the lower court again denied Schwan's request.

Please note the attorneys or risk managers handling this matter appear to have a challenging understanding of IL WC claims handling. If you look on the IWCC website, Larry Holland settled his WC claim against Schwan’s amicably for a relatively meager 7.5% BAW in 2009. Obviously, they didn’t get a release/resignation as part of that settlement, leaving the option open for Plaintiff to seek millions. If there were disputes about TTD and return to work issues, they should have been compromised as part of that approved settlement. Actually, as you are reading this, we remain puzzled why defense counsel for Defendant Schwan’s haven’t raised that WC settlement as a bar to this seven-figure verdict and judgment. In our view, every aspect of this complaint and law suit presented issues that should have been heard by the Illinois Workers’ Compensation Commission. Return to work issues and the nature of a job offer being bona fide are decided in a routine fashion by our Arbitrators and Commissioners on a routine and daily basis. We cannot tell from the ruling whether that defense was presented to the lower or appellate court. If it wasn’t, it should have been.

Defendant Schwan's appealed the multimillion-dollar judgment entered on the jury's verdict to the Fifth District Appellate Court. They argued their many motions should have been granted. To no one’s surprise, the Fifth District followed the Circuit Court and ruled Plaintiff is entitled to over $4 million dollars despite the strong evidence of a job offer. We hope the IL Supreme Court will consider this appeal. We again urge all of our readers to understand this dispute should have been resolved at the IWCC.

In a starkly contrasting ruling that more closely follows our legal entreaties, in Schroeder v. RGIS; No. 1-12-2483, issued June 7, 2013, Plaintiff Schroeder asserted he suffered from intentional infliction of emotional distress because he was being treated poorly by supervisors due to the fact he is gay. Various epithets are contained in the records and we aren’t going to repeat them here. Defendant RGIS filed a combined motion to dismiss, brought pursuant to section 2-619.1 of the Illinois Code of Civil Procedure, arguing, among other reasons, Plaintiff Schroeder's complaint must be dismissed pursuant to section 2-619 of the Code because his claim of intentional infliction of emotional distress was preempted and, thus, barred by the Illinois Human Rights Act and by the exclusivity provision of the Illinois Workers' Compensation Act.

The First District Appellate Court noted the following issues were:

(1)  Whether Plaintiff was able to establish, independent of any duties created by the Human Rights Act, the elements of the tort of intentional infliction of emotional distress; and

(2)  Whether the exclusivity provision of the Workers' Compensation Act barred Plaintiff's claims.

The Appellate Court ruled the Circuit Court properly dismissed plaintiff's second amended complaint because his tort claim of intentional infliction of emotional distress was inextricably linked to a civil rights violation. They further ruled Plaintiff's claim was preempted and, thus, barred by the Human Rights Act. They also held Plaintiff's alleged injury was compensable under the Workers' Compensation Act. Therefore, Plaintiff's claim was also preempted and, thus, barred by the Workers' Compensation Act.

Our vote for our readers is don’t necessarily assume expensive defense counsel at $300-600 per hour are doing you a favor when the right WC/EPLI defense counsel could get the matter resolved rapidly as part of any resolution of the WC claim. Both of these cases should have the same outcome—resolution of the WC claim should resolve all other possible claims, if at all possible. The great defense team at KCB&A can provide such advice and counsel at rates less than $200 per hour.

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

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Synopsis: Illinois Appellate Court, Workers’ Compensation Division denies benefits for worker struck by errant vehicle as a neutral risk, while suggesting positional risk evidence may have altered the outcome. Analysis by Joe Needham, J.D.

Editor’s comment: When stray bullets are risks incidental to employment but a cashier’s injuries from being struck at her post by a car driven by the employer’s vendor is not, something is odd about the adjudication of WC liability in Illinois. Is positional risk becoming the new IL WC theory of compensability? 

In 95th Street Produce Market v Illinois Workers Compensation Commission, the facts involved a cashier at a produce market who was struck and injured when a vehicle driven by a vendor crashed through a store wall and into Petitioner’s work area. A co-worker and three customers were also injured. The facts of the occurrence were not disputed and the only question at trial was whether Petitioner’s injuries were sustained in the course and scope of employment as the consequence of a risk incidental to the employment, or whether it resulted from a risk common to all.

Photographic and testimonial evidence established the exterior of the 95th Street Produce Market and its relation to the roadway. Concrete parking blocks separate a span of pavement abutting the storefront from the parking lot, but were not bolted down and moved when struck by vehicles. Petitioner testified drivers occasionally drove their cars in this paved area abutting the storefront despite it not being a roadway, mistakenly thinking they could leave the parking lot by this route. Upon realizing their error, some drivers simply drove over the grassy parkway to exit the area while others attempted to reverse course by “go[ing] forward, back up, forward, back up, so they can turned [sic] around to go back where they got in through.” Essentially, drivers frequently mistake their avenue of egress and instead drive upon an asphalt area abutting the storefront. Further evidence revealed the offending vehicle properly left the premises and was traveling Eastbound on 95th Street when the driver lost control of the vehicle, left the roadway and drove across the store lot and into the storefront, striking Petitioner and others.

Relying on Brady v. Louis Ruffalo & Sons Construction Co., the Arbitrator denied benefits, finding Petitioner failed to establish her risk of injury “was incidental to her employment or that the work environment increased the risk so that she would be subject to such an accident to a greater degree than that to which other persons on the premises were exposed.” Petitioner was one of five people injured, three of whom were customers. The injury in Brady involved a single employee injured at his work station when an errant vehicle left an adjacent highway and struck the employer’s building. In the absence of evidence the work environment exposed the employee to an increased risk greater than the general public’s exposure, the Brady court found the denial of benefits proper. The knowledgeable Arbitrator followed suit.

Petitioner appealed and the Commission reversed, finding Petitioner’s injury the consequence of a risk incidental to her employment in that it resulted from traffic of the employer’s vendor, present on the premises to facilitate the employer’s business. Because Petitioner’s job duties “required her to spend virtually the entire workday in the front of the store….  the location within the store where [claimant] performed her job duties, namely, in front of the store and in close proximity to large glass windows facing Respondent’s parking lot, exposed her to a greater risk of injury compared to the general public.” That determination was affirmed by the Circuit Court, and the employer appealed.

The Appellate Court, Workers’ Compensation Division reversed the award of benefits, agreeing with the Arbitrator the injury was not sustained in the scope of employment. While acknowledging Petitioner was clearly in the course of employment at the time of the injury, the First District Court found the manifest weight of the evidence affirmed the risk of injury was outside the scope of Petitioner’s employment, and reversed the lower courts to deny benefits to Petitioner. Noting a risk of injury must be peculiar to the work or must be a risk to which the employee is exposed to a greater degree than the general public as a consequence of the employment, the Court identified three categories of risk to which an employee might be exposed: (1) risks distinctly associated with the employment; (2) risks personal to the employee; and (3) neutral risks which have no particular employment or personal characteristics. Illinois Institute of Technology Research Institute v Industrial Commission. CitingIllinois Institute of Technology Research Institute, the Court noted:

·         Risks distinctly associated with the employment are universally compensated, and include “the obvious kinds of industrial injuries” that comes to mind when we think of a work injury.

·         Personal risks include non-occupational diseases, injuries caused by personal infirmities, and injuries caused by personal enemies. While personal risks are generally not compensable, they me be compensated where the employment increased the risk of injury (Id) such as aggravations of systemic disorders like carpal tunnel and myocardial infarction.

·         Finally, neutral risks include stray bullets, dog bites, lunatic attacks, lightning strikes, bombings, and hurricanes; injuries resulting from neutral risks do not arise out of the employment and are compensable only where the risk to which the employee was exposed was greater, as a consequence of the employment, than the risk to which the general public was exposed. Id.

In assessing the type of risk to which Petitioner was exposed, the Court found the facts of the case rendered the risk neutral - errant drivers pose a risk to the public generally -  necessitating Petitioner establish the employment rendered her risk of the specific injury greater than the risk shared by the general public. Because Petitioner presented no evidence on this issue, the Appellate Court found Petitioner failed to establish her neutral risk was heightened by her employment. In denying Petitioner’s employment increased her exposure to the neutral risk of a wayward vehicle crashing through the storefront beyond that to which the public is exposed, the Court discounted Petitioner’s argument the fact the offending vehicle was the employer’s vendor rendered the risk particular to the employment. The Court reasoned because the offending driver had reached the adjacent roadway and entered its stream of traffic before losing control of the vehicle and crashing through the storefront windows, he was no different than any other driver on the roadway and therefore presented a risk no greater than all other drivers on the road and did not present a risk incidental to the employment. Assessing the facts, the Appellate Court agreed with the Commission Arbitrator Petitioner’s risk of injury was not within the scope of Petitioner’s employment.

Distinguishing this case from Illinois Institute of Technology Research Institute v. Industrial Comm’n, and Restaurant Development Group v. Hee Suk Oh, each of which involved claimants working in high-crime areas struck by a stray bullet that breached the work station, the Court noted the 95th Street Petitioner presented no evidence the location of the employment presented an increased risk of injury rendering the neutral risk of an errant vehicle heightened to the point of presenting an employment risk. The court distinguished 95th Street Produce Market from the earlier rulings on the basis each of those claimants presented evidence to support a finding the location of the employment increased the risk of injury to the employee beyond the risk presented to the general public. In both cases claimants submitted police records or testimony showing an increased rate of crime in the area. Because those claimants produced evidence their places of employment were in high crime areas subject to gunfire, the Court reasoned those claimants presented evidence of a neutral gunfire risk specifically heightened by the employment. Essentially, claimants in Illinois Institute of Technology Research and Restaurant Development Group both established the location of their employment presented a heightened risk of injury, and the 95th Street Petitioner did not. While we agree completely with this result, we take issue with the logic employed to reach it.

Here’s our basic problem with the contrast between 95th Street Produce Market and the Illinois Institute of Technology Research and Restaurant Development Group cases. They are essentially the same risk as compared between employees and the area’s general public, with Petitioner denied benefits in 95th Street Produce Market for a risk that is clearly as foreseeable and possibly more-directly related to the employment than the injuries found compensable in the earlier rulings. Both of the earlier rulings involved employees injured as the result of an unforeseen errant bullet, while the risk which injured the 95th Street Petitioner was not only foreseeable based on prior errant vehicles in that very area, but possibly not even unlikely to occur for that same reason. This distinction overlooks what we believe to be an inconsistency in the reasoning to find crime in high-crime areas presents a risk of injuries to employees to a greater degree than the general public. If the employment is in a high crime area, isn’t the employment risk of being struck by a stray bullet in that area just as common as the risk to residents of the area? If the area is one of high crime, how can the employment present a greater risk of injury from that crime than the risk presented to the public? With no evidence as to how the employment created a greater risk of the employee being struck by an errant bullet than to residents and inhabitants in the area, how does the employment increase the neutral risk to an employment risk? And what if evidence established the claimant lived in a higher-crime area than he worked; would that then render the risk of being shot lower as a consequence of the employment? Would the risk fluctuate depending on from where the employee hails?

Our criticism isn’t with the Appellate Court’s determination the 95th Street Petitioner’s risk of injury was not increased beyond the general public’s exposure - it is clear the risk of errant vehicles is common to all in the area, and we submit significantly less common to individuals employed within brick and mortar structures than to those on the roadways and walkways adjacent to the roadway - but with their willingness to find the risk heightened by the employment if Petitioner had presented some evidence the location of the employment offered a heightened risk of injury from an errant vehicle. What about the customers in the store, the pedestrians present and all members of the public in the area; were they not exposed to the same risk regardless of the location of the employer’s shop? How can the risk be greater to the employee than to the customer standing beside her?

This article was researched and written by Joseph Needham, J.D. Please direct complaints/criticism and kudos to Joe at jneedham@keefe-law.com.

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Synopsis: Two Accidents Now Seem to Provide a “Double-Scoop” of PPD for IL Claimants. This controversial ruling appears to further extend the intention for Illinois employers to pay, pay, pay. Analysis by Shawn R. Biery, J.D., MSCC.

Editor’s comment: While Illinois courts have already found PPD can be awarded for separate accidents, in the case of National Freight Industries v IWCC et al., 1-2004-3-WC, published June 13, 2013, the Illinois Appellate Court Workers’ Compensation Division awarded what we feel is “double-PPD” for an old injury to the lumbar spine at L3-4 which was not MMI due to a new injury at L3-4 and L4-5 with a new employer.

In brief summary as noted in the opinion, on December 31, 2008, claimant, Andrew Smith, filed an application for adjustment of claim (08 WC 56873) seeking benefits for injuries sustained in a motor-vehicle accident on December 4, 2008 while in the employ of National Freight Industries. That same day, claimant filed a second application for adjustment of claim (08 WC 56874) alleging the occurrence of a work-related accident on November 6, 2006 (prior to the accident alleged in the first application), while in the employ of Fischer Lumber. Following a consolidated Section 19(b) hearing, the arbitrator determined claimant’s current condition of ill-being was not a natural consequence of the November 6, 2006 injury and the accident of December 4, 2008, constituted an independent, intervening accident that broke the chain of causation—and thus denied Fischer Lumber’s liability for TTD and medical expenses after December 4, 2008. The arbitrator further held National Freight liable for TTD benefits and medical expenses for the period from December 5, 2008, through the date of the arbitration hearing. The arbitrator also determined Petitioner was not entitled to PPD against Fischer Lumber because he had not reached maximum medical improvement prior to the date of the second accident.

The Illinois Workers’ Compensation Commission affirmed and adopted the decision and the circuit court of Madison County confirmed the decision of the Commission. Petitioner and National Freight filed separate appeals, which were consolidated with National Freight arguing the Commission’s finding the December 4, 2008, accident broke the chain of causation from claimant’s prior work accident was both contrary to law and against the manifest weight of the evidence. In his appeal, Petitioner argued the Commission’s finding that he was not entitled to a permanency award from Fischer Lumber was against the manifest weight of the evidence.

The court didn’t agree with National Freight’s argument which argued the motor-vehicle accident merely aggravated the injuries claimant sustained as a result of his initial work injury, while employed by Fischer Lumber—arguing the chain of causation from the November 6, 2006 accident was not completely broken. The Appellate court concluded the record supports a finding the December 4, 2008 motor-vehicle accident, which indisputably occurred while claimant was in the scope of his employment for National Freight, constituted an independent, intervening accident which broke the chain of causation between claimant’s original work-related injury and his current condition of ill-being noting the difference in complaints and distinguishing this case from the Vogel case (which in this writers opinion is mostly distinguishable because Petitioner Vogel didn’t have another employer to pay).

The Appellate Court also cited the language of Section 19(b) as their rationale for awarding permanency with the circular logic that Section 19(b) does not bar further hearing to determine permanency so it wasn’t technically denied. The IL WC Act states in pertinent part…. “The Arbitrator may find that the disabling condition is temporary and has not yet reached a permanent condition and may order the payment of compensation up to the date of the hearing, which award shall be reviewable and enforceable in the same manner as other awards, and in no instance be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability, but shall be conclusive as to all other questions except the nature and extent of said disability.”

As such, the Appellate court indicated they were sending the case back to award permanency as they had found it had been improper to address the propriety of permanency with respect to the injury claimant sustained while claimant was employed by Fischer Lumber at that stage of the proceedings and they found it would be inconsistent to determine the injury claimant sustained while working for National Freight constituted an independent, intervening cause and award no permanency for the injury claimant sustained while working for Fischer Lumber. The Appellate Court affirmed the findings that  the motor-vehicle accident in which claimant was involved while working for National Freight constituted an independent, intervening cause was based on the finding the second accident resulted in a change to claimant’s symptoms, the pathology of claimant’s condition, the type of surgical intervention, and his ability to work. In other words, the Appellate Court concluded that the second accident did not simply represent a continuation of the injury resulting from the first accident. Rather, it caused a separate and distinct injury that broke the causal chain. Since claimant suffered separate and distinct injuries arising from two different accidents, he should be allowed to seek a permanency award for each accident.

While confusing, the claim finds support for both parties arguments in case law and it is interesting to note our office recently argued a Central Rug case before an Arbitrator and were provided with a distinctly separate opinion than the Appellate Court found here. A jaded observer may see the contrary rulings as the continued reach of the Illinois WC system to provide benefits at a higher level than contemplated by the initial intention of Workers’ Compensation Acts when initially installed over a century ago. This article was researched and written by Shawn R. Biery, J.D. MSCC. Email Shawn at sbiery@keefe-law.com for a copy of this case or with any questions.

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Synopsis: KCBA welcomes general liability, employment law and litigation defense specialist Chris St. Peter from the law firm of Winston & Strawn LLP.

Editor’s comment: Keefe, Campbell, Biery & Associates proudly announce the addition of Christopher H. St. Peter, J.D. to our legal team. Chris joins us from Winston & Strawn LLP, where his practice involved all aspects of complex commercial litigation in state and federal court.  Chris graduated with honors from Chicago-Kent College of Law, where he was an executive articles editor of the Chicago-Kent Law Review and an extern for the Honorable Magistrate Judge Arlander Keys in the U.S. District Court, Northern District of Illinois. Chris will focus his practice on a full range of defense work, including general liability, employment law, product liability, and contract disputes.  Chris can be contacted at any time at (773) 301-7244 or cstpeter@keefe-law.com.

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