7-8-13; Traveling Employee Rulings May Be the "Bermuda Triangle" Where IL WC Gets Lost; Sean Brogan on Wage Loss Ruling; New Federal Definition of "Supervisor" and much more

Synopsis: Will the Three New “Traveling Employee” Rulings Become the new Bermuda Triangle Where Illinois’ Work Comp System Gets Lost?

Editor’s Comment: If you haven’t heard, the IL WC system is reeling from three new Appellate Court rulings that have basically flipped our whole state and our WC system on its ear. As you read this, Illinois no longer truly has a requirement of “arising out of and in the course of” employment for millions of workers. What the three Appellate Court, Workers’ Compensation Division decisions in

1.Venture-Newberg Perini Stone & Webster v. IWCC (rehearing denied, January 29, 2013);

2.             Mlynarczyk v. IWCC (issued May 30, 2013); and

3.            Kertis v. IWCC (issued June 18, 2013)

combine to rule is:

•   Any Illinois worker who doesn’t work on the “premises of their employer” is a “traveling employee.” Please note transportation workers who drive trucks, buses and cabs don’t ever actually work on any “premises.” We have no idea whether a police officer, firefighter or streets/sanitation worker is on the “premises of their employer” when they are working on the city streets of the municipality they work for. Following the reasoning of our Appellate Court, Workers’ Compensation Division, almost all construction workers are now “traveling employees.” Any stay-at-home worker is a “traveling employee” and may be globally covered when they get out of bed until they go back to sleep. We don’t know if you work on the “premises of your employer” when you and your employer are permitted users of someone else’s premises, like the cleaning lady in Mlynarczyk.

•   A “traveling employee” confusingly doesn’t have to be traveling when injured. They also don’t have to be working or on the clock. We aren’t making this up, folks. A traveling employee would be covered sitting at a restaurant or waiting for a bus. They are covered from the moment they leave their homes to go to work until they return home at the end of the day for all risks of any reasonable nature during the time they are traveling to work or on coffee/lunch break or when they are going home from work.

Actually, here is a scenario for you to consider:

•   Your company hires a secretary.

•   He/she calls and accepts work and will report for the first day of work at 8am today Monday, July 8.

•   You get a call from a lawyer in the afternoon.

•   He tells you the secretarial candidate passed away this morning.

•   Turns out the candidate was from Milwaukee and was coming to work at your Chicago office.

•   He or she was staying at a hotel on their own dime until they could get permanent housing.

•   On the way from the hotel to your office, your new worker was tragically killed by a hit and run driver.

•   The attorney tells you that you owe over $1M in WC death benefits as a matter of law.

•   You tell him she never worked one minute for your company and have no idea why you would owe anything, as the employee was simply on the way to work but never worked for you.

If you aren’t sure—those facts above closely mirror the facts of the Venture-Newberg Perini Stone & Webster v. IWCC ruling. The Appellate Court already awarded Claimant in that claim $1,000,000+ in medical benefits with lots more to follow if the matter isn’t reversed by our IL Supreme Court.

In our view, all of this is “judicial legislation.” The Commission and courts aren’t supposed to over-write the law provided by the legislature. Ever. Every aspect of the “traveling employee” concept is made up by some of the members of the Commission and our courts—in our view, they don’t try to justify it through some compelling public policy or in any other way. As a veteran legislative lobbyist for the IL State Chamber of Commerce pointed out, effective June 28, 2011 or just over two years ago, our Illinois legislature and our Governor reaffirmed their command to everyone in our IL WC system that all injuries have to “arise out of and in the course of employment.” To us, the simple but clear legislative reaffirmation is being completely ignored by some at the Commission and in our reviewing courts in a random and confusing way. We feel the new case law on “traveling employee” has nothing to do with the statute—the word “traveling” doesn’t appear in our IL WC Act or Rules. The word “traveling” isn’t in the Commission’s handbook or any of their claim management forms; the handbook and forms need to be rewritten. As “traveling employee” status clearly trumps the requirement of “arising out of and in the course of,” it should be immediately added to the “stip sheet” or IWCC’s request for hearing form. If you don’t add this new, mandatory and unprecedented legal issue, the parties may not be trying the real issues before the hearing officer.

The definition of “traveling employee” was unquestionably created by our courts and not our legislature. Please also note the “traveling employee” concept has been called “an exception” to the “arising out of and in the course of” requirement by some court rulings—the “exception” is now the wildly expensive new rule for millions of workers in our state.

We have filed an amicus curiae or “friend of the court” brief before our IL Supreme Court on behalf of many of our clients, readers and interested IL business people who consider these new rulings to be over-the-top on providing expensive WC coverage for personal and non-work-related risks Illinois business has never covered. We assert no state in the United States provides workers’ compensation coverage in this global fashion. We further assert if these rulings aren’t reversed, this is going to have a very, very chilling impact on our IL economy and is certain to cause taxes to rise to provide this new and expanded WC coverage.

Our amicus brief was drafted by your editor along with Chris St. Peter, J.D., John P. Campbell, Jr., J.D. and Shawn R. Biery, J.D., MSCC. You can read it by clicking on this link or asking us for an electronic or printed copy.

Brief of Amicus Curiae 

The brief of the solid defense lawyer for the employer in Venture-Newberg Perini Stone & Webster is Ted Powers, J.D. His IL Supreme Court brief can be reviewed by clicking on this link:

Venture-Newberg-Perini Stone & Webster  IL Supreme Court Brief

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

Synopsis: An IL WC wage differential award must be calculated as a fixed number at the time of Arbitration of the claim.

Editor’s comment: In United Airlines v. IWCC et al. Claimant appealed a Cook County Circuit Court order reversing the IWCC and reinstating an arbitration decision which awarded him weekly wage differential payments of $277.06, decreasing annually over the course of ten years and terminating in April 2018.

Claimant sustained a compensable right wrist injury in December 2004. At the time of the injury claimant was a ramp service worker, earning $20.66 per hour. He was released to full duty on a trial basis in April 2006. Two day after his return to work, claimant sustained a compensable right shoulder injury while lifting a bag. In July 2007, claimant was released with permanent restrictions which precluded a return to his former position. However, claimant eventually returned to work as a station operations representative (SOR). While the position initially paid $20.63 per hour, 40 hours a week his hourly wage was reduced to $9.92 because of a union agreement. 

A labor relations analyst testified on behalf of United. She testified claimant would progress to the top of the SOR scale in March 2018, earning $21.77 per hour based on current union agreements covering 2005 through 2009. She admitted her projections did not take into consideration various market factors and new union agreements being negotiated. 

The Arbitrator found claimant was entitled to wage differential benefits under Section 8(d)(1) of the Act, but the benefits would decrease annually over the course of ten years and terminate in April 2018 at which time claimant would be earning more as an SOR than he would have had he remained a ramp service worker.

The Commission modified the arbitrator's wage differential award to provide Claimant would receive $277.06 per week continuing for the duration of his disability. The Commission noted "that wage differential can only be determined based on what [wages are] at the time of hearing." Thus, it was improper for the Arbitrator to calculate wage differential payments past the date of the arbitration hearing. On judicial review, the Circuit Court set aside the Commission's decision and reinstated the arbitration decision.

The Appellate Court, Workers’ Compensation Division reinstated the Commission's decision holding Section 8(d)(1) of the Act does not provide for a varying amount to be paid out at future dates. Rather, the award must be based on the average amount of the claimant's wages at the time of the accident and the average amount which the claimant is earning or able to earn in suitable employment following the accident. United was able to present evidence beyond current wages to establish long-term earning capacity such as wage increases, overtime and increased work hours; however, the award must be calculated as a fixed number at the arbitration hearing. The Appellate Court found the Commission's award of $277.06 per week was not against the manifest weight of the evidence as the labor relations analyst's testimony was speculative and did not consider changes in the union agreements or other market factors.

This colloquy again brings up the intention of our legislation in passing Section 19H which supposedly allows for wage differential awards to be modified for sixty months following an award. In the Cassens Transportation v. IWCC ruling, the Appellate Court, Workers’ Compensation Division effectively blocked what appears to be the intention of the statutory change.

This article was researched and written by Sean C. Brogan, J.D. You can reach Sean for comments at sbrogan@keefe-law.com.

Synopsis: SCOTUS Denotatively Limits the Definition of “Supervisor”—Ruling is Required Reading for HR managers.

Editor’s comment: In Vance v. Ball State University, the Supreme Court of the United States (or SCOTUS) adopted our IL Seventh Circuit’s narrow definition of “supervisor” under Title VII.  In doing so the Supreme Court rejected the EEOC and other federal appellate courts broader definition of “supervisor,” which included employees who lacked the authority to make tangible employment actions, but may have directed other employees’ day-to-day activities. 

In this new ruling, the Supreme Court provided U.S. employers a stronger dividing line between supervisors vis a vis co-workers and a better understanding of which employees fit within the scope of “supervisor” as defined in Title VII. This is critical for managers and employers as the standards for liability in employment practices discrimination and harassment cases may differ depending on whether the alleged offender is a supervisor or a co-worker. 

By narrowing the definition of “supervisor,” the U.S. Supreme Court in effect limited the liability employers can face under Title VII. Under the narrower definition of supervisor, in order to hold the employer vicariously liable for a supervisor’s actions in violation of Title VII, the supervisor must be an employee authorized by the employer to take tangible employment actions against another employee, such as

•   Hiring,

•   Firing,

•   Promoting,

•   Demotions,

•   Reassigning with significantly different responsibilities or

•   Causing significant changes in benefits.

This new definition should make it more difficult for employees to prevail on claims involving non-supervisory co-worker discrimination or harassment claims, unless the employer was aware of the alleged misconduct and did not take action to remedy it. To take advantage of the new Supreme Court ruling, employers and HR managers may want to review day-to-day operations and job descriptions to ensure they accurately reflect which supervisors or managers have the authority to make tangible employment action consistent with the bullet-points listed above. 

While the Supreme Court narrowed the definition of “supervisor,” it recognized an employer could still be held liable for effectively delegating tangible employment decision powers to an employee, even if he or she is not a supervisor in title or authority, by relying on the employee’s recommendations in making the important employment decisions outlined above. Moreover, employers should be aware state and local anti-discrimination statutes may not follow federal law or definitions with respect to who qualifies as a “supervisor.” For example, under the Illinois Human Rights Act, employers are subject to strict liability for any harassment or discrimination committed by a “supervisor.” Unlike this federal guideline, Illinois courts have tended to find “supervisor” status for a broader portion of your workforce.

KCB&A’s top EPLI defense lawyer is Chris St. Peter, J.D. He can be reached for questions or comment at cstpeter@keefe-law.com.

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.?

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.