6-16-2014; IL Appellate Court Upholds Coal-Miner Denial, analysis by Jim Egan, JD; Does IL WC Still Have a Notice Defense?; IL Supreme Court to Rule on Need for IL Treasurer to File WC Bond and more

Synopsis: In a Ruling We Consider Positive for Illinois Business and the Coal Mining Industry, the IL Appellate Court Upholds Denial of Coal Miner’s Claim under the Occupational Diseases Act. Analysis by James F. Egan, JD.

Editor’s Comment: In a positive decision which effects numerous employers in the State of Illinois, the Illinois Appellate Court, Workers’ Comp Division upheld the IWCC’s denial of benefits based upon the Statute of Limitations. In Carter v IWCC, the Appellate Court upheld the Commission’s denied of a claim for COPD or chronic obstructive pulmonary disease under Section 6(c) as time-barred as it was not filed within the three-year Statute of Limitations. In Carter, the claimant was a 22-year coal miner who had worked mainly underground during that period. The mine in question closed on September 24, 2004 which was also the claimant’s last day at the mine and last exposure to coal dust. While he told his foreman he was having breathing problems/congestion, he never mentioned that he had black lung or coal workers’ pneumoconiosis. Claimant filed an Application for Adjustment of Claim with the IWCC on September 3, 2008, nearly four-years after the last claimed exposure.

Competent medical evidence presented by Respondent, which included chest x-rays negative for coal workers’ pneumoconiosis  revealed the claimant was diagnosed with COPD. While the diagnosis did confirm Mr. Carter’s COPD was secondary to the inhalation of coal dust along with his smoking history, there was no diagnosis of pneumoconiosis. It is important to note claimant’s own treater also diagnosed COPD and not pneumoconiosis.

In March 2009, the Department of Labor issued an SSAE in connection with Mr. Carter’s concurrent claim for federal black lung benefits indicating he did not have coal workers’ pneumoconiosis and did not have a totally disabling respiratory or pulmonary impairment caused in part by pneumoconiosis. Clearly the DOL had no other logical alternative upon reflection of the medical evidence. Accordingly the DOL denied federal benefits.

The Arbitrator denied benefits under the IL Occupational Disease Act as untimely as the Act places a three-year Statute of Limitations on benefits with an exception for pneumoconiosis which extended the Statue to five-years. 

Pursuing benefits under the Occupational Disease Act, Petitioner presented a case in chief in which his expert opined no distinction could be made between COPD and coal workers’ pneumoconiosis and argued that as such one could not deny the claim as untimely. Claimant argued that based upon this argument the five-year Statute must include COPD caused by exposure to coal dust.

The Appellate Court, WC Division disagreed; holding the plain terms of the exception to the Statute of Limitations was for coal miners’ pneumoconiosis and not COPD. The Court held the exception clearly does not apply to all disabilities caused by exposure to coal dust and had the legislature intended to include all disabilities to do so, they could have done so.  The Court went on to distinguish claimant’s expert noting that his doctor had not provided any scientific reason to apply different limitation periods to coal miners alleging COPD, as opposed to pneumoconiosis and that claimant’s own doctor agreed with Respondent’s expert in his diagnosis.

The Court also rejected an equal protection argument that by setting the Statute of Limitations as it has been set, miners with COPD were being treated differently that “similarly situated” miners with coal workers’ pneumoconiosis. The Court held that the two diagnosis were clearly shown to be different and therefore claimant was not similarly situated as with workers’ with pneumoconiosis.

The author notes this to be a solid decision in which the IL WC Appellate Court upheld the plain reading of the Section 6(c), rather than re-interpreting the legislative intent. The decision also appears to continue a recent, positive trend in which the Commission, the Circuit Courts along with the Appellate Court have resisted an urge to reverse well-thought out opinions by Arbitrators which are supported by the manifest weight of the evidence.

This article was researched and written by James F. Egan, JD who is our coal mining defense expert, along with handling numerous defense roles. Feel free to contact Jim about this article at jegan@keefe-law.com.

            ------------------------------------------------

Synopsis: Does IL WC Still Have a Statutory Notice Defense?

Editor’s comment: Last week’s article about the IL Appellate Court, WC Division ruling in Tolbert v. Illinois Workers’ Compensation Commission, Plaintiff/Petitioner suffered an alleged and questionable occupational exposure to pigeon and sparrow droppings. The ruling appears to have led some observers to question whether our statutory notice requirement is still valid due to the strident pro-Petitioner tone of the Appellate Court’s ruling.

Unlike other states, our IL WC Act has relatively few statutory defenses. The “45-day” notice requirement in Illinois is one such statutory defense. Section 6(c) of the IL WC and OD Acts require the claimant to give notice of the accident or occupational exposure "to the employer as soon as practicable, but not later than 45 days after the accident." Section 6(c) further provides that "[n]o defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings on arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy."

In the Tolbert ruling, the unanimous majority ruling noted the Commission found Claimant's last day of work for the employer was August 31, 2010. Therefore, Claimant was required to give the employer notice of a work injury or exposure at least by October 15, 2010.

The Arbitrator and Commission found Claimant did not give requisite statutory notice until November 9, 2010, when the employer received a letter from the claimant's attorney well beyond the 45-day requirement of Section 6(c).

The majority opinion confirmed the legal standard of whether a given claimant gave the employer timely notice required by section 6(c) of the Act is a finding to be made by the Commission which will not be disturbed on appeal unless it is against the manifest weight of the evidence. The Court’s members noted the purpose of the notice requirement is "both to protect the employer against fraudulent claims by giving him an opportunity to investigate promptly and ascertain the facts of the alleged accident and to allow him to minimize his liability by affording the injured employee immediate medical treatment." The requirement the employee provide notice is jurisdictional, and the failure of the claimant to give notice will bar the workers’ comp claim. However, a claim is only barred if no notice whatsoever has been given. If some notice has been given, but the notice is defective or inaccurate, then the employer must show they have been unduly prejudiced.

From our perspective, the Appellate Court majority then looks to an undisputed phone call that took place on September 1, 2010. In that call, the employee advised the supervisor he thought he had cancer. There was a significant factual dispute present. To the extent the Commission ruled against Plaintiff/Petitioner, we would assume the reviewing court would give deference to the IWCC’s findings. In our respectful view, we don’t feel that occurred. Actually, it doesn’t appear the supervisor was rude or disrespectful to the worker—when/if a report of cancer was provided, it would appear the supervisor would not typically feel that might be related to the normal work at Respondent and would not have inquired further.

However, we also note there are numerous mistakes and problems caused by the handling of this matter by the defense attorney assigned. As we advised last week, someone had to stipulate this seasonal worker was an “employee” for a date of exposure long after the worker left the employ of Respondent. As veteran defense lawyers, we would never enter into such a stipulation.

Similarly, it does not appear defense counsel was aware in presenting a statutory notice defense consistent with Section 6(c) of our IL WC Act, the employer may have an affirmative duty to demonstrate prejudice. In our view, demonstrating prejudice due to late reporting of an accident or exposure is a simple but necessary task. The employer or its supervisor should have been called at the hearing to testify to their accident/exposure reporting protocols and what they could or might have done if an appropriate report had been provided. It is hard to criticize the reviewing courts when the employer and its defenses were not properly presented in the first instance.

In summary, we feel the ruling provides an excellent review of the statutory notice defense and emphasizes it remains a vibrant and valid statutory defense. While we don’t agree with the outcome, we are sure there are many court observers who do. We appreciate your thoughts and comments.

            -------------------------------------------------------

Synopsis: IL Supreme Court to Decide Bond Requirement for State Treasurer in WC Setting; analysis by Michael L. Shanahan, JD.

Editor’s comment: The Illinois Supreme Court will soon take up a workers’ comp case to determine whether the State Treasurer as ex officio custodian of the Injured Workers’ Benefit Fund is required to post an appeal bond for review of Commission cases.

To provide some background on Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n., the claimant worked as an at-home care-giver for an elderly blind man. The claimant testified that she normally wore slippers around the house; however, she would change into regular shoes before walking downstairs. Claimant testified she was putting on her shoes at the top of the stairs when she fell, hit her head against a wall, and lost consciousness.

Claimant subsequently filed a workers’ compensation claim against her employer, the elderly man. Since he did not have workers’ comp insurance, the Illinois State Treasurer was named a co-Respondent as custodian of the Injured Workers’ Benefits Fund. The IWBF was created in 2005 to provide benefits to workers whose employers do not have insurance and it’s funded by penalties and fines collected by the Commission from uninsured employers.

At trial, the arbitrator found the injury to be compensable and awarded benefits. The Commission unanimously affirmed the arbitrator’s decision. The Treasurer appealed. Normally, section 19(f)(1) of the Workers’ Compensation Act (820 ILCS 305/19(f)(1)) requires the party seeking review to obtain an appeal bond. The appeal bond provides security to ensure payment on appeal. The bond also vests the circuit court with jurisdiction to review an award made by the Commission. However, the Act expressly exempts “every county, city, town, township, incorporated village, school district, body politics or municipal corporation against whom the Commission shall have rendered an award for the payment of money.” 

On review, the IL WC Appellate Court reversed the Commission’s decision after concluding the Claimant had “failed to present evidence supporting a reasonable inference that her injuries arose out of a risk associated with her employment.” However, Claimant filed a motion for rehearing and asserted the court lacked jurisdiction on two separate grounds. First, Claimant argued the Court was barred from review as it involves a claim against the state. Next, the court did not obtain jurisdiction since the Treasurer failed to file an appeal bond. The Appellate Court did not find the first argument persuasive but the second posed a more difficult question.

With regard to the failure to obtain a bond, the Treasurer argued it was exempt from the bond requirement under section 19(f)(2). The Court disagreed based on the plain language of the Act. Essentially, the Court found that if the legislature intended to limit the requirement to employers, it would have simply said so. Plus, since the Act specifically lists certain entities who are exempt, it is unlikely the Treasurer was an intended exemption as it was not specifically listed. Nonetheless, the issue will ultimately be decided by the Illinois Supreme Court.

At the outset, an appeal bond must be considered in terms of the strategy of litigation if an adverse decision is rendered. For us, this is a reminder of the importance of communication with our clients. If there is an adverse decision, we have twenty days to meet all of the preliminary requirements prior to taking the work comp fight to state court for review. The State Treasurer may very well have won in the Appellate Court; however, now the focus has shifted to whether the Treasurer is exempted from the bond requirement.

Please direct all questions or comments to Michael L. Shanahan at mshanahan@keefelaw.com

6-9-2014; Sometimes You're the Pigeon, Sometimes You're the Statute in IL WC; SB 3287 Becomes Law; Important Mental Health Records Privacy Ruling and much more

Synopsis: Plop!! IL Appellate Court, Workers’ Compensation Division Reverses a Pigeon Droppings Exposure Claim on Manifest Weight.

Editor’s comment: Our office wags were thinking of all the pigeon jokes we could remember but this ruling isn’t that funny for this Illinois employer who may feel the ruling is COO-COO. Kidding aside, this claim involves a one-pack-a-day cigarette smoker who admitted to smoking since age 15. He was a seasonal worker. The employer operates grain elevators.

As an academic thought, we note the reviewing court’s ruling uniformly refers to the onset of this condition as an “accident.” With respect to the members of the Appellate Court, this claim is much more accurately analyzed as an occupational disease claim---Illinois has a parallel series of benefits for occupational exposures called the Occupational Disease Act. This man didn’t suffer an accidental injury, he has a disease.

As a second academic thought, we are chagrined to see Petitioner’s counsel and the Arbitrator, IWCC, the Circuit and Appellate Courts all allowed this claim to move forward on a date of exposure which everyone agrees was after employment with Respondent ended. In our respectful view as law school professors and long-time court watchers, we feel this is technically inappropriate and makes our WC/OD system appear confusing and chaotic to people in other states. If the WC/OD coverage had changed during the interim period, this ruling would lead to expensive coverage litigation on who would owe for the risk. In our view, the Arbitrator should have told Petitioner’s counsel at the beginning of the claim or during the hearing to amend the Application to plead a date of exposure when Petitioner was actually employed by Respondent. In our experience, the most liberal Illinois arbitrators across the years have uniformly demanded that occur. In our view, it is a constitutional issue—it is our view the Commission and courts are taking property without due process of law or equal protection under the law to award OD benefits for an exposure that arguably didn’t occur while this worker was employed by Respondent.

At the time of the alleged exposure, the claimant's job duties included cleaning and maintaining grain flats, elevators, and bins. The work environment exposed Claimant to airborne dust particles that included dried pigeon droppings. Claimant began suffering from respiratory problems without a clear cause. There is a dispute about what Petitioner may have said about his departure from employment with Respondent—the supervisor testified Claimant told him Claimant had cancer.

Treating doctors subsequently performed a biopsy and diagnosed Claimant  as having a lung condition called histoplasmosis, which is caused by a fungus usually associated with pigeon droppings. The Arbitrator found Claimant failed to give timely notice of the exposure to the employer and Claimant failed to prove his current conditions of ill-being, which include chest pain and breathing problems, were causally related to his exposure to a fungus that causes histoplasmosis at the workplace. The Arbitrator also found Claimant was not entitled to recover for medical expenses or temporary total disability (TTD) benefits. The Illinois Workers' Compensation Commission affirmed and adopted the arbitrator's decision and made an additional finding Claimant failed to prove he was exposed to histoplasmosis at his workplace. The circuit court entered a judgment confirming the Commission's decision.

If you read the unanimous ruling, we have lots of other academic and legal concerns. From our reading of the decision, you will note Petitioner worked from July 28, 2010 and left employ in less than one month, on August 26, 2010. That is 21 work days. We don’t feel that is a long time for someone to be exposed to anything. We also note there is no scientific evidence from the lung biopsy that provided a level of exposure to the bad stuff in pigeon droppings or the chronicity of the disease. The Appellate Court ruling indicates in two places Petitioner was allowed to testify he was still suffering the effects of the exposure—for any veteran defense attorney, such unfounded, unscientific and self-serving testimony should have been immediately objected to and a request to strike presented to the Arbitrator. Without that proper objection, the reviewing court is correct to consider the evidence for its worth.

There is also no question Petitioner was provided breathing masks and actually changed them regularly during the course of a day. From our review, no one provided any testimony on either side whether the undefined breathing masks would slow or stop an exposure to contaminants in airborne pigeon dung. Further, there is no evidence from any expert in the record outlining the incidence and prevalence of histoplasmosis in such workers, either at this employer or elsewhere.

Another concern is the ruling says things like this: “The flat (or silo where Petitioner worked) contained a lot of debris, including bird droppings, and the cleaning work produced a lot of airborne dust. The claimant testified that he saw a lot of pigeons inside the flat.” We ask the rhetorical question—what’s a “lot”? Is that bird droppings seven feet deep or the occasional bit that might upset a sensitive type? What are a “lot” of pigeons—hundreds, tens, three?

Having started the facts in that fashion, the ruling then goes on to attack the IME report of Respondent, ruling it is confusing. The part that isn’t felt to be confused is this statement “Dr. Bruyntjens (the IME doctor) then opined, in general terms, that "normal hosts with primary pulmonary histoplasmosis recover eventfully more than 99% of the time." The decision also states “the doctor acknowledges that it takes minimal exposure to contract histoplasmosis, but that it is an "extremely common and almost invariably benign infection." He opines that "a large majority of pulmonary or infectious disease specialists would have elected not even to treat the [claimant]" and that the claimant's "history of smoking with a near normal pulmonary function test with exposure in a benign condition like histoplasmosis, is a concern due to the smoking not the histoplasmosis." We don’t see anything from the treaters that counters these opinions. Either way, it is hard to say there is no scientific evidence to support denial and the decision of the Commission is patent error.

If you read between those lines and review the web research on histoplasmosis, the condition sounds like something nasty but note the IME doctor says it is a “benign infection.” If you look at the dictionary reference to a disease as ‘benign;’ it means the condition isn’t harmful or disabling. In short, the IME doctor says Petitioner didn’t and doesn’t need medical care or lost time for pigeon dropping exposure.

Finally, what happened to those IL Supreme Court rulings in Sisbro and Twice Over Clean—in those two major cases, our highest court said the reviewing courts weren’t supposed to substitute their judgment on facts for those of the IWCC. For all the reasons outlined above, it is our respectful view this decision does precisely that. In the frankest terms possible, we feel the Arbitrator and Commission carefully considered the record and ruled this man’s problems are due to smoking or an unknown non-work-related issue.

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

            --------------------------------------

Synopsis: Governor Quinn Signed SB 3287 last week.

Editor’s comment: Ouch. Remember whatever ITLA wants, ITLA gets.

Section 5 of the IL WC Act now says:

Be it enacted by the People of the State of Illinois,

represented in the General Assembly: 
 

    Section 5. The Workers' Compensation Act is amended by

changing Section 5 as follows:
 

    (820 ILCS 305/5)  (from Ch. 48, par. 138.5)

    (Text of Section WITHOUT the changes made by P.A. 89-7,

which has been held unconstitutional)

    Sec. 5. (a) No common law or statutory right to recover

damages from the employer, his insurer, his broker, any service

organization that is wholly owned by the employer, his

insurer or his broker and that provides safety

service, advice or recommendations for the employer or the

agents or employees of any of them for injury or death

sustained by any employee while engaged in the line of his duty

as such employee, other than the compensation herein provided,

is available to any employee who is covered by the provisions

of this Act, to any one wholly or partially dependent upon him,

the legal representatives of his estate, or any one otherwise

entitled to recover damages for such injury.

We are confident this is going to open up the flood gates to sue anyone who provides “safety service, advice or recommendations” for companies or individuals that aren’t “wholly owned” by the employer, insurance carrier or broker. We have several defense attorneys in our KCB&A defense team who don’t feel this legislative concept will expand to allow litigation against lots of “non-safety” advisors. For those of us who have watched what happened in the reviewing courts under the Scaffold Act, we assure you our judiciary can be wildly creative at the urging of the Illinois Plaintiff bar. In our view, there is a reason an Illinois judge can receive over $1M per year over their lifetime for only nine years of judicial service. If you want the math on that issue, send a reply.

You may want to watch this space to see what happens—we promise to continue to report it.

            ----------------------------------------

Synopsis: Mental Health Record Secrecy Waived Where Plaintiff Had Records Reviewed by Her Experts.

Editor’s comment: For claims adjusters, risk managers and newbie nurse case managers, please note mental health records aren’t amenable to a subpoena. In order to get them, you have to ask opposing counsel or the claimant. There are lots and lots of rules that both sides may have to follow if the litigation is to proceed without the psych records becoming public.

In the common law ruling in Deprizio v. MacNeal Memorial Hosp. Ass'n, our First District Appellate Court ruled the Plaintiff/Patient waived her privilege against disclosure of mental health records when they were reviewed by her experts.

The ruling notes the fact a patient's expert witness had not yet testified in the patient's medical negligence suit alleging the patient suffered from a lithium overdose did not preclude a finding the patient waived her privilege against disclosure of her private mental health records reviewed by her experts. The patient's designation of expert witnesses in discovery left no doubt the experts would testify as to certain records that would otherwise be privileged.

The Appellate Court also noted requiring the trial court to wait for live testimony before finding the statutory privilege waived not only would prove inefficient, but would be an illogical interpretation of the Mental Health and Developmental Disabilities Confidentiality Act. While we aren’t sure how an Arbitrator or Commissioner would handle the issue, we feel confident they might refer to this ruling for guidance.

The defense team at KCB&A is very familiar with handling psych claims in both the general liability and workers’ comp arenas. We have a number of solid defense experts for your consideration. Brad Smith is our IL liability team expert—he can be reached at bsmith@keefe-law.com Kevin Boyle is our IN defense pro and can be reached 24/7/365 at kboyle@keefe-law.com. If you have a WC psych issue, simply send a reply.

5-19-14; New Fall-Down Rule for Gov't Workers?; Respondent Loses its 'Compass,' the Right to Depose Their Expert and the WC Claim; WCLA CLE Update to Include Amish WC Insurance Req'ment and much more

Synopsis: What Continues to Kill Illinois—Out-of-Control Gov’t Fringe Benefits, Including Workers’ Comp, for Many Public Sector Workers.

Editor’s comment: We write this article with all the appropriate respect for our Appellate Court, Workers’ Compensation Division’s five members. Having outlined our respect for the Court, from a purely academic perspective, we can’t disagree more with this ruling. In Brais v. The Illinois Workers' Compensation Commission, 2014 IL App (3d) 120820WC, issued May 8, 2014, the Court considered a record which indicated the worker was a government employee of Kankakee County. Claimant Brais worked as a child support coordinator in the Kankakee County Courthouse.

The Arbitrator and IWCC on review found the worker sustained a left wrist fracture when her heel caught in a groove in a public sidewalk and she fell, suffering injury. She filed a claim for workers compensation benefits for an injury to her wrist. Please note your editor and all the defense attorneys at Keefe, Campbell, Biery & Associates have gone to this wonderful old courthouse on a monthly basis for many decades. We are aware the sheriff and other security personnel have limited access for security purposes—you can only enter the building through a single door to insure everyone goes through a metal detector or other search. This Circuit Court venue dates back to November 1908 when county voters approved the construction of what was then a new courthouse. Zachary Taylor Davis was awarded the commission for the building. It was built by Lafayette, Indiana contractor W. F. Stilwell for $187,000. Construction began on October 2, 1909 and finished in July 1912, about three months after the sinking of the Titanic. The courthouse has remained in continuous use since its 1912 opening. On March 7, 2007, the building was recognized by the National Park Service with a listing on the National Register of Historic Places.

In the Brais ruling, the record further indicated Claimant fell while walking from a work meeting at an administration building to her office. It appears she had to enter through the front door of the courthouse, which was only means of access for employees and the public alike. The record indicates Claimant took this route daily. We point out everyone who goes to this court building with any regularity, such as bailiffs, judges, IWCC Arbitrators, attorneys on both sides, paralegals, court reporters, visiting school children, criminal defendants, claimants, families, county officials, effectively thousands of people take the same path and crossed this same sidewalk most days of the year. If you didn’t read that list carefully, please note former Arbitrator James Giordano who was assigned to this claim had to walk that sidewalk every day they had hearings in the building. We are all going to assume former Arbitrator Giordano didn’t feel the sidewalk he used every day was the equivalent of a WWI war zone to cross when he denied the claim.

The appellate ruling found even though the general public regularly used this sidewalk and faced the identical hazard of the “groovy” sidewalk, the Court’s members found Claimant faced a “special hazard” which became part of her employment. The decision indicates her work requirement that she attend meetings at the administration building increased the risk of injury on this otherwise ordinary public sidewalk.

In response, we note former Arbitrator Giordano and IWCC panel didn’t specifically find there was a “defect” in the sidewalk—they simply denied the claim as a risk common to the public. The Appellate Court basically ignored the Arbitrator and Commission’s view of the record and substituted their own judgment to characterize the sidewalk as “defective.” In our view, they are basically injecting their view of the facts over that of the hearing officers below—the Illinois Supreme Court in two landmark rulings in Twice Over Clean and Sisbro ruled this panel isn’t supposed to substitute their own judgment for that of the Commission when it comes to the facts.

For law students and other academic observers, we grin to see the Court’s analysis of the last ruling of the IL Supreme Court on fall-down claims such as this in Caterpillar Tractor v. Industrial Commission. In that ruling, Claimant tripped on a street curb and fell down to suffer injury, similar to Ms. Brais in this claim. Benefits were denied because the curb was a risk common to the public. In order to distinguish this ruling from Caterpillar Tractor, this appellate majority found the sidewalk here was “defective” where they opined the curb in Caterpillar Tractor wasn’t “defective.” In our reasoned legal view, this is something of a logical stretch—we feel you can readily find the curb in Caterpillar Tractor to be “defective” if you were so inclined. Claimant in that claim tripped on the curb, didn’t he? Couldn’t that Claimant argue, like Claimant Brais in this current ruling whenever you fall, there must be a defect? Couldn’t the reviewing court find the curb in Caterpillar Tractor was too high or too low or too new or too old or not painted yellow or painted with slippery yellow paint or whatever you want to make it compensable?

In our view, Illinois government is choking on the number one thing we are being forced to spend the majority of tax dollars on—we don’t spend the majority of our tax money on children or schools or teachers or poor people or medical care. Our Illinois Attorney General Lisa Madigan just filed a brief in the state government pension litigation confirming most of Illinois taxpayers’ money is being spent on inconceivably expensive government fringe benefits—government pensions which provide billions in benefits for people who don’t work for government any more or ever again. Similar to pensions, we feel hundreds of millions are also being spent to pay workers’ compensation benefits for government workers at the municipal, county, township and state level. This ruling combines with the ruling in Metropolitan Water Reclamation District to award substantial benefits for local government workers who suffer fall-downs in contrast to the legal analysis being provided for workers in the private sector. Rulings like the Braisdecision don’t come with a cost-accounting of this expanded WC coverage for county taxpayers—we assure you lots of government workers take the same paths when walking and, it makes no sense to us for government workers to get WC benefits where the rest of us fall prey to denials based on the “risk common to the public” rule.

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

            --------------------------------------

Synopsis: Illinois Appellate Court Ruling Adds Insult to Injury on Issues of Credits & a Request to Obtain Expert Medical Testimony. Analysis by Timothy J. O’Gorman, JD.

Editor’s comment: In Compass Group v. Illinois Workers’ Compensation Commission, 2014 Ill.App.3d 121283WC, Petitioner alleged an injury while lifting a case of pop when he felt an onset of pain and purports to have heard a hissing sound. Petitioner worked the rest of the day and was seen by his physician the next morning whereupon he was diagnosed with a sprain and immediately referred to a chiropractor. Petitioner continued to work until being seen by an orthopedic specialist who ordered an MRI and diagnosed him with stenosis. Petitioner continued to work for 2 days and woke up on the 3rd workday after his alleged injury. While preparing to leave for work, Petitioner fell down his stairs at home suffering lacerations on several places of his body. Petitioner returned to work that day however was driven to the hospital mid-way through the work day.

Petitioner underwent x-rays while in the hospital which revealed olecranon bursitis in his left and right elbows. After Petitioner’s condition deteriorated, it was revealed Petitioner suffered a blood infection and was transferred to the intensive care unit. Petitioner underwent several surgical spine procedures and was placed on a respirator for a short amount of time. He did make a recovery and was discharged from the hospital several months after admittance.

In preparation for trial, Petitioner was seen by an infection disease expert at the request of Respondent pursuant to Section 12 of the Illinois Workers’ Compensation Act. Respondent’s doctor, a well-known and respected doctor specializing in internal medicine, disagreed with Petitioner’s treating doctor, a general orthopedic surgeon, as to the cause of Petitioner’s blood infection. When it came time for trial, the Arbitrator found the deposition of Respondent’s doctor to be unnecessary and refused to require the Section 12 expert to be deposed, instead finding submission of his report at trial would not prejudice Respondent’s case. When the time came for the parties to proceed Respondent and Petitioner stipulated to payment of Petitioner’s medical bills stating:

The parties hereby agree and stipulate that the following medical expenses would be due and owing pursuant to [Section] 8(a) and the fee schedule provisions of [Section] 8.2 of the Act in the event the matter is found compensable. However, by so stipulating, Employer does not waive any objection it may have as to liability (or the reasonableness and necessity) of said expenses.

We note the some-times defense, some-times Petitioner/Plaintiff firm of Slavin & Slavin successfully handled this seven-figure win for Petitioner while the Ganan & Shapiro firm was wholly unsuccessful in defense of Respondent.

In its appeal, Respondent argued several issues should be overturned by the Appellate Court. It argued the Appellate Court should overturn the findings of the Commission on the issue of causation, highlighting the expertise of Respondent’s Section 12 expert in comparison to Petitioner’s orthopedic surgeon on an issue of internal medicine. Second, they argued the order of the Arbitrator allowing the parties to proceed without the deposition of Respondent’s expert prejudiced the parties and the matter should be remanded for rehearing to allow for the deposition of Respondent’s expert. Third, Respondent argued any bills paid by 8(j) group health benefits should be capped at the negotiated rate and considered fully satisfied and the bills should not be paid pursuant to the Illinois Medical Fee Schedule.

In the decision, we aren’t shocked to note the Appellate Court, WC Division overwhelmingly found for Petitioner on each issue. The Appellate Court correctly summed up the positions of the parties stating “[t]he crux of the issue involves the divergent opinions of Claimant’s treating physician, [name omitted], and Respondent’s Section 12 examiner.” The Appellate Court refused to adopt the findings of Respondent’s Section 12 expert on the basis “we cannot say [Respondent’s expert] heightened expertise is so compelling that it renders a conclusion opposite to the Commission’s clearly apparent.” We must note the opinions of the experts being considered in this situation is not one of two members of the same field where one expert is seemingly more experienced. The two experts in this instance practice in two entirely different fields of medicine with Respondent’s examiner being an expert in internal medicine on an issue of a blood infection. We respectfully point out the expertise in question is not simply an issue of being “heightened;” it appears the question to us is whether Petitioner’s expert has any expertise on the issue at hand at all.

After affirming the decision of the Commission on the issue of causation on the basis of the experts’ respective medical testimony, the Appellate Court refused to allow for a rehearing to allow for the deposition of Respondent’s expert witness. The Appellate Court found the Arbitrator’s refusal to allow the deposition was not an abuse of discretion that would prejudice Respondent’s case.

We must note the arguments put forth by Respondent, as cited in the decision, state specifically the Arbitrator’s decision “scarcely addressed its concern that [Respondent’s expert’s] professional background in internal medicine and infectious disease be recognized and ignored the importance of a more detailed explanation by [Respondent’s expert] of the foundation and supporting evidence for his causal opinion.” The Appellate Court answers “Respondent never states what additional information would have been provided in a deposition. It never identifies any opinions in need of clarification, much less how they would have been clarified. It does not explain why [Respondent’s expert’s]curriculum vitae is insufficient to establish his credentials.”

Finally, the Appellate Court examined the stipulations of the parties in regard to the payment of medical bills. Respondent contended any bills paid under 8(j) group health benefits should be considered fully satisfied at the rate paid by the group health carrier. Often times, group health carriers will negotiate a rate lower than the rate provided in the Illinois Medical Fee Schedule which could lead to a savings if the stipulations are made correctly. According to the decision provided by the Appellate Court, Respondent seemed to only stipulate that bills would be paid pursuant to Section 8(a) and Section 8.2. As such, the Appellate Court found all bills awarded in the decision of the Arbitrator pursuant to the fee schedule cannot be changed to include rates previously negotiated by Respondent’s group health carrier. The Appellate Court explained “having expressly agreed that these amounts were proper, Respondent will not now be heard to complain of them.”

To avoid such a finding by any level of administrative review, we recommend including five simple words when stipulating to the payment of medical bills at trial. If there is any issue of payments made by a group health carrier in a workers’ compensation matter, Respondents should routinely ensure the stipulation on the record includes “or any previously negotiated rate” in its statement of liability for medical bills. Including this statement effectively eliminates the need for further litigation around the liability of group 8(j) benefits and is adequately specific to ensure no credits are lost at trial.

This article was researched and written by Timothy J. O’Gorman, JD. Please direct questions to Tim at togorman@keefe-law.com. We appreciate your thoughts and comments. Please post them on our award-winning blog.

                ---------------------------------------------------

Synopsis: Our Report on the Recent WCLA Presentation Including the Amish WC Insurance Requirement. Thoughts and Analysis by Matthew G. Gorski, JD.

Editor’s comment: On May 14, 2014, recent IL WC Commission decisions, specifically issues from AWW to vocational rehab to WC insurance, were presented by WCLA in a continuing legal education format. These presentations are excellent and open to the public. We encourage our readers and attorneys on both sides to attend, participate and learn nuances and case precedents from some of the top lawyers in our state. Some highlighted cases are examined below.

(1)  Julie Meierdirks v. Northbrook School District #28, 07 WC 39919, 12 IWCC 647

This case involved a high school teacher who fell on newly installed carpet in her classroom injuring her left hip and head.  She was walking in normal fashion and the carpet was without apparent “defect.” The Arbitrator ultimately decided the accident did not arise out and in the course of Petitioner’s employment because Petitioner fell while walking in normal fashion.  In addition, the risk factor was neutral because it was not greater than that faced by the general public.

It is good to see IL employers may not be liable for employees who cannot adequately walk on normal walking surfaces in the realm of workers’ compensation. An interesting side note to this case was the Arbitrator ended up breaking down the AWW in a 40 week cycle instead of a 52 week cycle because some teachers decide to receive their checks in a 40 week cycle and some in a 52 week cycle.

(2)  Joshua Aubuchon v. M&M Tires, 11 WC 29530, 13 IWCC 972

Petitioner in this case received roughly $50.00 to $100.00 per week in tips.  The Arbitrator in this case allowed the tips to be included in his AWW, but the Commission found Petitioner failed to prove that his tips should be included. Ultimately, this decision was made on the basis there was no documentation of the amount of money he received in tips per week because these tips were received in cash from customers. 

Moral of the story from this case is if there is no documentation then the Commission views the tip money does not exist.  It is the Petitioner’s burden to prove income to be included in the AWW and without documentation that burden is not met.

(3)  IWCC Insurance Compliance v. Moses Miller (M&M Builders), 12 INC 537, 13 IWCC 986

Moses Miller owned M&M Builders, which was in the roofing business industry.  Mr. Miller’s position in this case was he did not have to obtain workers’ compensation insurance for his business because his religion (Amish) forbids it.  As you might predict this argument did not fly with the IL WC Commission which still wants Amish roofers to follow the law and insure for the risk of serious injury or death for their workers.

Mr. Miller cited Thomas Jefferson and the U.S. Constitution. The IL WC Commission denied his arguments on the basis the state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.  Therefore, if the government can find you need to protect your workers when they are injured, they can force you to insure for such risks. With respect to our Amish colleagues, we agree with the IWCC on this one.

This article was researched and written by Matthew G. Gorski, JD. Matt can be reached 24/7/365 for questions about IL WC at mgorski@keefe-law.com.