7-15-13; Important Ruling on Non-Competes--Analysis by Shawn Biery, JD, MSCC; Jim Egan, J.D. Reviews Important Black Lung Ruling; Arik Hetue, J.D. on "Traveling Employee" concept and much more

Synopsis: Illinois Appellate Court confirms non-solicit and non-compete agreements continue to need adequate legal consideration or extended employment to be enforceable. DO IT RIGHT OR GET NO BENEFIT WHEN YOUR STAR EMPLOYEE LEAVES. Analysis by Shawn R. Biery, J.D., MSCC.

Editor’s comment: The Illinois courts have upheld non-compete and non-solicitation agreements for a variety of reasons. However, the scope is generally narrow and there are many pitfalls which can render your “agreement” to be found partially or completely null if you don’t meet the elements necessary for enforcement. Recently in Fifield & Enterprise Financial Group, Inc. v. Premier Dealer Services, Inc. 2013 IL App (1st) 120327, available at here, the Appellate Court indicated Illinois companies cannot require newly hired workers to sign a non-compete agreement with no consideration and expect it to be enforceable if the employee leaves within two years for any reason (or no reason at all). The unanimous June 24, 2013 decision appears to have affirmed what was considered conventional wisdom about non-competes. We have routinely advised clients to provide some form of separate consideration for non-compete agreements. In Fifield, had the employer provided some form of consideration, the courts may have enforced the agreement.

The case at hand involved an appeal from a Circuit Court of Cook County dismissal of non-solicitation and non-competition clauses in Fifield’s employment agreement. Prior to October 2009, Fifield was employed by Great American Insurance Company (GA). As an employee of GA, Fifield was assigned to work exclusively for Premier Dealership Services (PDS), a subsidiary which marketed finance and insurance products to the automotive industry. PDS was sold to Premier in 2009 and Premier made an offer to continue employment if Fifield signed an employment agreement which included non-solicitation and non-competition provisions for two years past any termination of employment. Fifield even negotiated the agreement to void if terminated without cause in the first year of employment. He then resigned In February 2010 and in March 2010, along with his new employer, filed for injunctive relief. After a counterclaim was also filed by Premier, the trial court addressed the non-solicit and non-compete portions by declaring them unenforceable due to lack of adequate consideration.

Regardless of any personal feelings with respect to non-solicit/non-compete agreements, Illinois maintains one of the more employee-friendly venues for these types of agreements and employers should take heart when attempting to achieve and enforce such agreements. This reviewing court has made it very clear (as they had in the past cases cited in the decision) that two years of employment or some other consideration for the agreement to be enforced. We note this is particularly of importance in the insurance industry because so many companies and brokerages use non-solicit/non-compete requirements to hamstring their employees from performing even routine services after leaving.

The twist in this case is that prior cases generally dealt with an employee already having the job and having been employed at least two years so they were deemed to have received adequate compensation for entering into a non-compete agreement. This case clarifies the same standard should apply to a newly hired worker and makes it very clear two years of employment or some other adequate consideration is at the minimum necessary to successfully enforce these types of agreements. Following this ruling, one might assume unhappy workers will not stay more than two years to render non-solicit and non-compete agreements worthless.

The case is still eligible for possible appeal to the Supreme Court. However, we have some doubts the Supreme Court in Illinois will change the decision based upon the facts of this case. In the end, make sure there is some adequate consideration (such as a signing bonus, a prior agreed severance payment, a year-end bonus or some other actual specific value) if you want to enforce these types of agreements. This article was researched and written by Shawn R. Biery J.D., MSCC and he is available at sbiery@keefe-law.com or 312-756-3701 for any questions or to review and advise on these types of agreements or any other Employment or WC issues employers may be dealing with in Illinois.

Synopsis: Federal 7th Circuit Court of Appeals clarifies use of the “15-year presumption” in “change of condition” Black Lung coal miner claims. Analysis by James F. Egan, J.D.

Editor’s comment: The 7th Circuit Court of Appeals issued a ruling holding a claimant can use the “15-year presumption” in proving change of condition in Black Lung claims. In Consolidation Coal v. OWCP and George Bailey No. 11-3, the 7th Circuit Court of Appeals held an ALJ could apply the presumption to change of conditions claims and an ALJ is not required to address insignificant rebuttal evidence. The ruling is online at:

Black Lung Ruling

In 1972 the Black Lung Benefits Act was enacted as an amendment to the Health and Safety Act to compensate coal miners who were totally disabled due to pneumoconiosis. The Act contained a provision creating a rebuttable presumption that a coal miner who had worked for at least 15 years in underground mines or surface mines with similar conditions and who suffered from a totally disabling respiratory or pulmonary impairment were totally disabled due to pneumoconiosis. In 1981 the presumption was removed for new claims, but then revived in 2010 for claims filed after January 1, 2005 which were still pending on or after March 23, 2010.

Claimant George Bailey (no, this Claimant is not Jimmy Stewart) was employed by Consolidation Coal for 26 years, primarily operating bulldozers to load coal in dusty conditions. He did smoke several cigarettes per day for year, however; the actual pack years was disputed at hearing. Claimant had been diagnosed with COPD and was seeking benefits under the BLB Act. In order to be awarded benefits, the claimant would have to satisfy four elements: 1) that he suffers from pneumoconiosis; 2) that pneumoconiosis was caused by coal mine employment; 3) that he was totally disabled by a pulmonary or respiratory impairment; and 4) the impairment was caused, at least in part, by pneumoconiosis. The claimant had filed three prior claims for black lung benefits when the 15-year presumption was no longer part of the Act. The first two were denied and the third was withdrawn.

The claim in question was filed in 2007 and three doctors agreed he was totally disabled by COPD. Because he had filed prior claims which were rejected, claimant was required to show a change in condition in this claim. The ALJ, using the 15-year presumption held Bailey could establish pneumoconiosis, caused in part by exposure to coal dust, both elements missing in his prior claims. In his analysis of the claim the ALJ awarded benefits for total pulmonary impairment applying the 15-year presumption. The ALJ discussed in his decision the claimant’s medical and work histories, as well as his cigarette smoking, finding Bailey’s working conditions were substantially similar to conditions in an underground mine. In its decision the ALJ did not consider if Consolidation had rebutted the presumption in the analysis.

Consolidation appealed arguing the presumption was incorrectly applied in using the 15-year presumption and the ALJ should have discussed the employer’s evidence which involved expert testimony regarding claimant’s cigarette smoking.

On appeal, the 7th Circuit first held the ALJ could apply the presumption stating the relevant statutory language and case law contained no language suggesting the presumption should not be applied to change in condition cases.

The second issue was summarily dismissed by the Court, with the Court holding the failure of the ALJ to discuss rebuttal evidence in the initial decision was at best harmless error as the 15-year presumption is very difficult to rebut and Consolidation had produced no significant evidence on the records to undermine the claim. It should be noted Consolidation’s expert did not state that a non-work-related condition caused Bailey’s lung condition and Consolidation’s defense asserting claimant smoked more than he testified to was insufficient to rebut the presumption.

Jim Egan, J.D. researched and wrote this analysis. Please feel free to contact Jim about BLB defense along with Longshore Harbor Workers’ Comp defense issues. He can be reached at jegan@keefe-law.com.

Synopsis: Is your defense lawyer properly advising you of the new IL WC traveling employee situation?

Editor’s comment: Right now, we have a strange situation in the IL WC system where our Appellate Court, Workers’ Comp Division has redefined the concept of “arising out of and in the course of employment” for several million workers. The reviewing court has designated anyone who doesn’t work “on the premises” of their employer to be a “traveling employee.” They have expanded coverage for such workers to provide global WC coverage from the point the worker leaves their home and starts the trip to work until the worker returns to their home at the end of the day. The IL Appellate Court has further indicated such workers are covered for any fall-down, any “risk of the street” or any negligent action or activity so long as the action causing injury is “reasonable and foreseeable.” In our view, almost everything a human does is “reasonable and foreseeable.”

What we have been advised is very few defense firms are reporting this new WC legal concept to their clients. It seems they are almost in denial on the topic.  In our view, they may be committing malpractice not to let you know the risks you are facing. Please also note the three IL Appellate rulings uniformly outline coverage is provided “as a matter of law.” This means if you controvert the claim, you are facing penalties and fees to do so.

We all hope the IL Supreme Court is going to reverse the Appellate Court’s ruling and IL WC will return to its normal version of sanity. Until the issue is addressed by our highest court, we will all have to wait and see what happens at the IWCC.

Arik D. Hetue, J.D. of our office drafted this new language we are adding to our opening reviews:

1.At present we have been maintaining denial of Petitioner’s claim based on the fact the accident did not occur “in the course of their employment.” Under the recent Venture-Newberg et. al. decision, we need to confirm whether Petitioner falls into the newly expanded “traveling employee” definition in order to continue this line of defense. As such, please confirm whether:

·        Petitioner works elsewhere than the premises of Respondent;

·        Petitioner works in multiple locations for Respondent;

·        Petitioner is required to leave that situs in the course of their duties;

·        Petitioner works from home, even in limited circumstances;

·        Petitioner is required to drive as a part of their position.

If any of these points are applicable to Petitioner’s position, the new standard will apply, and we caution penalty/fee exposure could be present in this matter if benefits are being denied due to accident denial under the former standard. Please advise as soon as possible in order to confirm any potential penalty exposure.

If you have questions or concerns, please send a reply or contact Arik Hetue, J.D. directly at ahetue@keefe-law.com. Please feel free to post comments on our award-winning blog.

Synopsis: Good bye and God Bless, William Ford Keefe.

Editor’s comment: William Ford “Bill” Keefe passed away peacefully on July 12, 2013. Bill Keefe was born June 2, 1921. He was a graduate of St. Ignatius High School and Loyola University in Chicago. In 1941-42, Keefe worked as a summer laborer in the Carnegie-Illinois Steel Corporation's South Works while studying for a law degree. He was called to service with the U. S. Army in 1943 and served until 1954. He was one of the first U.S. servicemen to enter Berlin after the suicide of the despot, petty thief and drug-addict Adolf Hitler in late April 1945. Bill Keefe was one of three Keefe brothers who fought in WWII, including Andrew J. Keefe, who was KIFA (or Killed in a Flight Accident) and Walter S. Keefe who fought the entire war from island to island across the Pacific Theater of Operations.

Bill Keefe worked as a free-lance writer in Spain and the United States after his military service. After returning to Chicago in 1961, he was an encyclopedia editor and communications consultant until 1967, when he founded his own organization, the Action Research Institute. At the Institute, he specialized in industrial consulting, writing and research. Bill Keefe was a journalist, a freelance writer and an author of 25 books, one of which he co-authored with your editor.

A Mass of Christian burial will take place this Tuesday, July 16 at 11 a.m., at St. Mary of the Lake Church in New Buffalo, MI with Father Craig Lusk officiating. Burial will follow in Pine Grove Cemetery, New Buffalo. Visitation is Monday, July 15 from 6 to 9 p.m. at Sommerfeld Chapel, 15 N. Barton St., New Buffalo. Memorial contributions may be made to the donor’s choice. Friends wishing to leave a message of condolence for the family can do so at www.sommerfeldchapel.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.?

7-8-13; 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.?