7-21-14; Confusion about Intrusion into Seclusion--When/How can Adjusters Record Statements by Joe D'Amato, JD; Matt Ignoffo Reports Great News for RUMC; Did the OD Act End for Some Workers and more

Synopsis: Can We Record or Not? Here is the Current State of Confusion for IL Claims Adjusters and Risk Managers. Analysis by Joseph F. D’Amato, J.D.

Editor’s comment: Constitutional challenges to IL eavesdropping statute leave our’ “two party consent status” up in the air. As risk managers, investigators and adjusters who regularly read this space are aware, Illinois was one of a dozen states where it was illegal to record a conversation you are having with another person (we are a so-called “two party consent” state). All parties to the conversation must agree to the recording to avoid liability in Illinois.

The statute criminalizing this behavior was known as the “eavesdropping statute.” The statute made it a crime to use an "eavesdropping device" to overhear or record a phone call or personal face-to-face conversation without the consent of all parties to the conversation. The law defined an "eavesdropping device" as "any device capable of being used to hear or record oral conversation or intercept, retain, or transcribe electronic communication whether such conversation or electronic communication is conducted in person, by telephone, or by any other means." The law made no distinction as to whether the conversation is face-to-face or over the phone. Actually, cell phones memo applications could be used in a fashion that might cause legal liability under the old legislation.

In practice, if you were investigating an alleged accident and decided to take a claimant’s or witness’s recorded statement without his or her consent, you faced a class four felony and one to three years in prison. While Illinois is in the minority of states on this issue, it is unlikely we will be for long due to two relatively recent Illinois Supreme Court Decisions.

In People v. Melongo, Defendant serendipitously recorded three conversations between herself and the Assistant Administrator of the Cook County Court Reporter’s Office and posted the audio to her website. In People v. Clark, Defendant recorded a child support hearing without obtaining the consent of either the judge presiding over the hearing or the opposing attorney. Although the procedural methods in both cases differed, both Defendants challenged the Illinois Eavesdropping Statute on both First Amendment and so-called Substantive Due Process grounds. The Circuit Courts of Cook and Kane County, respectively, agreed the Illinois eavesdropping statute was unconstitutional. Attorneys for the state appealed the decisions all the way to the Illinois Supreme Court.

Without taking our readers on a journey through the academic trappings of both cases, the Illinois Supreme Court agreed the eavesdropping statute violated the First Amendment to the United States and Illinois Constitutions, primarily because the legislation was overly broad. The Court noted the public policy of the statute was to protect conversational privacy. However, the statute as written criminalized conversations never meant to be private. For example, the Court noted the statute criminalized and prohibited recording a loud argument on the street, a political debate in a park and any other conversation loud enough to be overheard by others whether in a private or public setting.

What does this mean for risk managers, investigators and claims adjusters looking to quickly take recorded statements without worrying about uncooperative claimants or witnesses? We point out the IL statute, although currently held to be unconstitutional, is still on the books but the situation is a little murky.

This does not mean, however, that recording of all communications is now universally permitted in Illinois:

• Recordings may still be subject to the one-party consent rule of the Federal wiretap act.
• Communications electronically reaching into other states may be subject to the wiretapping laws of the second state and not just Illinois.
• Secret recordings may still support an Illinois common-law claim for “intrusion into seclusion” or the privacy of another.
• Another Illinois statute, not necessarily affected by the decision in the Melongo case, makes it illegal to "videotape, photograph, or film" people without their consent in "a restroom, tanning bed, or tanning salon, locker room, changing room or hotel bedroom.”

At present, if you attempt to record a conversation without all parties’ consent you may be violating the precise terms of the law and you might still be subject to criminal prosecution. In practice, we feel it’s highly unlikely prosecutors will try to enforce the law as currently written in light of the IL Supreme Court’s rulings. Our advice to claims adjusters and risk managers taken statements in post-accident investigations—continue to ask for everyone’s consent. This is the best path to avoid litigation.

We also suspect these two decisions by our IL Supreme Court have sent the folks in Springfield scrambling to either amend the statute to make Illinois a “one party consent” state or try to create boundaries or rules where two-party consent may still be appropriate.. Stay tuned to this space for further updates.

This article was researched and written by Joe D’Amato, JD. Joe can be reached for questions and comments at jdamato@keefe-law.com or (312) 756-3708.

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Synopsis: Orthopedic Program at Rush University Medical Center Named Highest Ranked Program in Illinois and #6 in the Nation!!! Analysis by Matthew Ignoffo, J.D.

Editor’s Comment: U.S. News & World Report just released its 2014 rankings for the best hospitals in the nation and we are pleased to report our long-time client at Rush is right at the top. The Report reviewed 1,646 hospital orthopedic programs nationwide. All of these programs treat significant numbers of complicated inpatient cases. Rush is ranked in seven of 16 categories included in the magazine’s 2014-15 “America’s Best Hospitals” issue, which became available online on July 15, and is one of the two top-ranked hospitals in Illinois overall.

Rush remains among a small group of hospitals that rank highly in multiple specialties. Only 144 of the approximately 5,000 hospitals in the United States — approximately 3 percent — scored high enough this year to rank in even one specialty nationally by U.S. News.

Rush’s orthopedics program was ranked No. 6 nationwide, making it the highest ranked orthopedics program in Illinois. Rush’s other ranked programs were geriatrics (No. 17); neurology and neurosurgery (No. 17); nephrology (No. 31); urology (No. 43); cardiology and heart surgery (No. 46); and cancer (No. 48).

U.S. News also noted that the following Rush specialty services are “high-performing”: diabetes and endocrinology; ear, nose and throat; gastroenterology; gynecology; and pulmonary.

In fact, a hospital is reviewed only if it treated at least 338 such inpatients in 2010, 2011 and 2012. Other criteria used in the ranking were reputation with specialists, survival, patient safety, patient volume, nursing intensity and nurse magnet recognition.

As noted in the rankings article, Rush University Medical Center is a 669-bed general medical and surgical facility with 30,810 admissions in the most recent year reported. It performed 10,780 annual inpatient and 9,537 outpatient surgeries. Its emergency room had 55,519 visits. Rush University Medical Center is a teaching hospital.

RUMC It is also accredited by the Commission on Accreditation of Rehabilitation Facilities (CARF). As many of you know, Rush's orthopedic program is entirely staffed by physicians from Midwest Orthopaedics at Rush, also the team physicians for the Chicago Bulls and Chicago White Sox.

This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C. Please feel free to contact Matt at mignoffo@keefe-law.com.

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Synopsis: Did the Folta v. Ferro Engineering ruling end the IL OD Act for hundreds, even thousands of workers? What is the correct insurance coverage for these new claim—GL or EL?

Editor’s comment: We had one of our long-time readers ask an very important question after reading our article on the ruling in Folta. Illinois OD law states (in pertinent part): 

(f) No compensation shall be payable for or on account of any occupational disease unless disablement, as herein defined, occurs within two years after the last day of the last exposure to the hazards of the disease…

If you read that carefully, please note numerous IL OD claims, not just asbestosis, may be drawn into this new “exception” to the OD Act, if the Appellate Court’s ruling isn’t reversed. The provision above confirms IL OD claims require an employee to show “disablement” within two years of the date of exposure to a pathogen. The IL OD Act says nothing about “knowledge” of the ailing worker about the exposure to the pathogen.

In other IL OD rulings, “disablement” is defined as missing one day of work due to the exposure.

This new ruling appears to open up civil liability for OD claims against employers when the worker doesn’t know the link between the pathogen and the later illness until they become sick and/or suffer from an exposure but didn’t know the cause.Consistent with what we feel is the strained logic of Folta, it would appear their medical problems would have to extend past the OD statute of limitations/repose so they “weren’t covered” but could now sue the employer directly in circuit court.

This new ruling would appear to find the employee could sue their employer if they were exposed to a pathogen at work and didn’t know of the bad effects of exposure for a couple/three years. In our view, that happens a lot, particularly in the health care or nursing home field.

Again, if that theory remains IL law, it could open up hundreds of new civil claims for things like “bad building syndrome” where workers claim to be sick for years. To the extent this theory may be opening up lots of new litigation, what do you feel the appropriate coverage might be to protect Illinois employers from such claims?

We would love your thinking. Either way, we feel you need to let your underwriters know about it.

7-14-2014; IL Appellate Court WC Div "Reaches" to Award Benefits; Brad Smith, JD Analyzes EPLI Ruling; David Harrison RIP and more

Synopsis: Illinois Appellate Court, WC Division Reversal of Commission/Circuit Court based on manifest weight of the evidence standard appears to be a “reach” but the unique risk created by the nature of claimant’s job compelled reversal. Analysis by John P. Campbell, Jr., J.D.

Editor’s Comment: This ruling may be a harbinger of things to come, if Bruce Rauner who is the leading candidate for IL Governor is elected in November and appoints more conservative hearing officers at the IWCC. We may then see numerous denied claims at the IWCC move to the Appellate Court, WC Division to be scrutinized by the justices there. If that scenario plays out, it make take a very long time to get challenging IL WC claims closed.

Generally, it is rare to see a reversal at the Appellate Court level based on the manifest weight of the evidence standard. The last two IL Supreme Court rulings on this issue, Sisbro and Twice Over Clean specifically discouraged such reversals. However, we are seeing the Appellate Court, WC Division doing this more and more—substituting their judgment on the facts for that of the IWCC and lower courts. However, both cases cited above were awards by the IWCC that were reversed in the Appellate Court to deny benefits. Since those rulings several years ago, a number of Appellate Court, WC Division unanimous rulings have reversed denials to insure benefits were awarded. We predict this track record will embolden the claimant’s bar to continue appeals to the Appellate level in hopes for reversal, despite the otherwise difficult standard of review. A concern about a reviewing court interposing their judgment on the facts over that of the Arbitrator is the reviewing court is analyzing a transcript where the Arbitrator had the advantage of hearing and seeing Claimant testify. It is similar to reading a text message rather than hearing/seeing someone talk. We feel that seeing a person testify in person and weighing their body language and mannerisms is a dramatically better vantage point to evaluate their truth-telling. Psychology Today confirms 55% of communication is body language and 30% is tone of voice and 7% is the spoken word.

Since this standard of review does not permit a substitution of factual interpretation, the appealing party may often try to argue for reversal based on a question of law, which permits a de novo review of the decision and therefore, a lower bar to hurdle while arguing for reversal. Despite an argument by claimant in this case for de novo review, the Appellate Court actually reversed under the manifest weight of the evidence standard. However, their supporting argument reads more like a reversal based on a de novo review of undisputed facts with a legal analysis of what constitutes an employment-related risk vs. “neutral risk” which would otherwise be common to the general public.

In the case of Don Young v. IWCC 2014 Il App (4th) 130392WC, Claimant sought benefits for a shoulder injury involving surgery after he felt a “pop” in his shoulder while reaching into a narrow, 3-foot deep box and retrieving an item of approximately 15 lbs.. At trial, the arbitrator found the act of reaching for an item, without more, did not impart an “increased risk” unique to the job an therefore, benefits were denied. However, it is important to also note the arbitrator specifically found claimant’s testimony was not credible, as his version of events was described as inconsistent throughout the medical and trial record. This is important, as the arbitrator’s conclusion in this regard was also attacked by the Appellate Court.

The Appellate Court rejected the Commission finding the mechanism of reaching down into a box was no greater than a risk common to the general public. Rather, the Appellate Court found the risk of injury in this case was distinctly associated with claimant’s employment and therefore, cannot be considered a “neutral risk”. A neutral risk has no employment related characteristics. However, in this case, the Court explained that “although the act of ‘reaching’ is one performed by the general public on a daily basis, the evidence in this case established the risk to which claimant was exposed was necessary to the performance of his job duties at the time of injury. His action in reaching and stretching his arm into a deep, narrow box to retrieve a part for inspection was distinctly associated with his employment.”

The Court also found the accident reports, medical records and testimony to be far more consistent and credible than the Commission’s ruling. Where the Commission found there to be embellishment and inconsistency regarding the level of stretching and overreaching performed, the Appellate Court noted the accident report described “over extended reaching limits” which was consistent with the medical records and testimony of claimant. In this regard, the Court here appears to havesubstituted their interpretation of facts for that of the Commission in further support of their reversal. That said, it does not appear the Court had to dive into a further analysis of the credibility issue here. Once the Court found the mechanism of injury to be a unique risk of employment (reaching into a narrow 3 foot box to retrieve an item), they had grounds to reverse this decision based on those undisputed facts, regardless of what relative minor inconsistencies there may have been regarding the injury as described. The vast majority of facts were undisputed regarding the size of the box, the weight of items and the mechanism of injury. Therefore, in our reasoned view, this could have been a de novo reversal based on undisputed facts.

This reversal, although surprising based on the difficult standard of review, is notable for rather specific circumstances of injury which imparted a risk unique to the employment. Had claimant in this case been reaching down to the floor to pick up a pencil, bag or other innocuous item, we doubt the Court would have ever dispensed a reversal, as such actions are not distinctly associated with the employment. However, where a worker must reach or stretch in a more unusual fashion ( into the bottom of a 3 foot box, which was only 16 inches wide, to pick up an item of about 15 lbs.,) we can understand how this is a mechanism unique to the job and therefore, created an increased risk of injury.

This article was researched and written by John P. Campbell, Jr. J.D. You can reach John any time at jcampbell@keefe-law.com.

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Synopsis: Employment Practices Claim Gets “Tanked.” Important Seventh Circuit National Origin and Race Discrimination Ruling with analysis by Bradley J. Smith, J.D.

Editor’s comment: A former Indian-American T-Mobile employee alleged pay discrimination, wrongful termination, and retaliation pursuant to 42 U.S.C. § 1981. Tank v. T-Mobile USA, Inc., 2014 WL 3360476 (7th Cir. 2014).

The Seventh Circuit affirmed the Northern District of Illinois trial court ruling that granted summary judgment for Defendant T-Mobile. On appeal, the Seventh Circuit held: 1) the timing of the internal investigation was not suspicious; 2) the investigator’s questions were not discriminatory; 3) the investigator was not a decision maker; 4) T-Mobile’s proffered reason for termination was not pretext; and 5) Tank’s memorandum to investigator did not allege discrimination.

INVESTIGATIONS THAT ARE PROPERLY PERFORMED SHIELD EMPLOYERS

Initially, Plaintiff Tank alleged T-Mobile discriminated against him based on his race and national origin, but the Court held he failed to provide sufficient evidence to demonstrate discrimination to a jury. Particularly, Tank failed in his attempt to provide circumstantial evidence through his allegations of suspicious timing and pretext. Here, T-Mobile sent an HR employee to investigate what caused a tumultuous relationship between Tank and another employee. Two complaints from separate sources were submitted as a result of a subsequent meeting about Tank’s behavior with other employees. Consequently, the Vice-President of T-Mobile decided to terminate Tank because he defied his employer’s directive, authorized questionably expenditures of T-Mobile funds, and engaged in favoritism amongst his staff. Tank presented no evidence the HR employee orchestrated the two (2) independent complaints. Ultimately, the Court reasoned a reasonable jury could not find the timing of the investigation suspicious.

Next, Tank alleged T-Mobile’s investigation was conducted in an “extraordinary” manner. Nonetheless, Plaintiff failed to offer any corporate policy or other evidence that forbade Corporate Investigations and the HR Department from conducting joint investigations. Further, Tank failed to point to any policy, procedure or other evidence that demonstrated that it was improper for HR to personally select a Corporate Investigations investigator to handle the investigation.

Attempting to survive summary judgment, Tank further alleged discriminatory comments by an HR employee and a Vice President. Undoubtedly, a remark can raise an inference of discrimination if it is: 1) made by the individual terminating Tank; 2) at or near the time of the termination decision; and (3) in reference to the termination or other adverse action. Regardless, Tank alleged comments occurred more than three (3) years prior, which even if taken as true, were too remote in time to constitute evidence of discriminatory animus. Furthermore, the Court reasoned the HR employee was not an individual terminating Tank, and thus, even if the comments he made were taken in a light most favorable to Tank, T-Mobile would not be liable for discrimination. Tank attempted to use the cat’s paw theory in the Seventh Circuit, but waived it by not raising it in the District Court.  

Next, Tank alleged T-Mobile retaliated against him for complaining about racist conduct towards other employees. Unquestionably, it is against the law to retaliate against an employee for opposing impermissible discrimination. In an attempt to demonstrate retaliation, Tank cited pretext in T-Mobile’s reasoning for his termination. However, the Court determined T-Mobile’s reasons for termination were factually supported by the record. Particularly, T-Mobile’s reasons for termination were consistent.

Lastly, Tank alleged comparators were treated more favorably given similar circumstances. Nonetheless, the Court reasoned Tank failed to point to similarly situated employees who were treated more favorably under similar circumstances. Tank also alleged he told the HR employee about racist behavior in a memorandum, however, the memorandum demonstrated no complaint relating to race or national origin.

Tank’s pay discrimination claim also failed, as he was unable to point to valid comparators that were similarly situated under the McDonnell Douglas burden-shifting approach. Accordingly, Tank failed to demonstrate a prima facie case of pay discrimination.

PROPERLY TRAINING EMPLOYEES/MANAGERS ON HANDLING EMPLOYMENT PRACTICES COMPLAINTS WILL SAVE YOU UNWANTED HEADACHES

Although the employer defeated this claim through an expensive summary judgment motion, properly training your employees on handling various types of complaints will undoubtedly limit your liability. Although Plaintiff failed to demonstrate a valid complaint of racist behavior, employers should properly train their staff on handling similar complaints. It will help if and when the EEOC comes knocking.

This article was researched and written by Bradley J. Smith, who is our employment law defense team leader. Fully ready to service your legal defense needs, Mr. Smith also manages the firm’s general liability department. Feel free to contact Bradley about this article atbsmith@keefe-law.com.

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Synopsis: David Harrison, Rest in Peace.

Editor’s comment: The IL WC community mourns the passing of David C. “Dave” Harrison of Scheele, Cornelius & Harrison. Dave Harrison , age 65, was a resident of Willowbrook, IL, formerly of Matteson, IL. He died unexpectedly on Friday, July 4, 2014 at Adventist Hinsdale Hospital, Hinsdale, IL. He was born March 13, 1949 in Albany, NY. He was licensed to practice law on November 5, 1981. David C. Harrison concentrated his entire legal practice representing injured workers. He  personally handled over 4,000 cases.

The defense team at Keefe, Campbell, Biery & Associates knew Dave Harrison to be a quiet and hard-working advocate for his clients. He is the last surviving founding member of the firm. He will be missed.

7-7-14; "Dusty" New Asbestos Ruling Creates End-Run Around Exclusive Remedy Provision; Is It WC Fraud to Own/Operate a Business and Collect TTD?; New Indiana WC Rates from Kevin Boyle, JD and more

Synopsis: “Dusty” New Illinois OD Appellate Court Ruling May Cause Hundreds of New Asbestos Filings Against Employers.

Editor’s comment: Sometimes we hate to report what is happening in our state because it is so challenging and “activist.” But report we must and we will let the dust fall around us.

Unless The IL Supreme Court Takes This Case and Flips It, the “Mesothelioma Bar” Can Now Sue U.S. Employers With Illinois Operations for Asbestos Exposures to Your Employees!

In Folta v. Ferro Engineering, 2014 IL App (1st), issued June 27, 2014, the IL Appellate Court issued a game-changing ruling involving the exclusive remedy protection offered to employers when their employees become injured or sick due to work. It appears there is a new trend from the troops at the Illinois Trial Lawyers Association or ITLA and the legislators/judges/justices they legally support for election to strip away such protections to allow IL employers or their vendors to be sued in Circuit Court. The most recent legislative change was SB 3287 which now allows for direct actions against “safety consultants” or anyone providing “safety advice” to an employer—prior to June 5, 2014, such folks couldn’t be sued directly and the injured worker received WC benefits only. As we have reported, our legislature changed the law in a fashion we consider counterproductive for both jobs in our state and safety in the IL workplace.

Now it appears our courts are re-writing the law to allow IL and all U.S. employers with Illinois workers to be sued for decades-old asbestos exposures. In the Folta ruling we cite above, the worker may have worked with asbestos products about fifity years ago in the late 1960’s. It appears he contracted mesothelioma in the 1990’s and passed away sometime after 2011. The IL Occupational Diseases Act would traditionally provide whatever benefits he might be due from his employer for exposure to asbestos products at work. There is no question the limitations period for making a claim for an occupational  disease arising from exposure to asbestos is crystal-clear. The employee is provided 25 years to make a claim for asbestos-related “injuries” under our law and 3 years for asbestos-related diseases. By the time of the illness and passing of decedent James Folta, any potential occupational disease claim against Ferro Engineering was possibly time barred by the OD Act’s 25-year statute of repose for asbestos-related injuries and the three-year statute of repose for asbestos-related diseases. Thus, instead of filing a workers’ comp claim, Folta filed a direct action against his employer Ferro Engineering and other Defendants who supposedly supplied Ferro Engineering with products or equipment containing asbestos.

There appears to be no question Plaintiff, now decedent James Folta would have been challenged in making a claim for benefits, consistent with the IL OD Act’s requirements. The applicable section of IL law is in Section 1(f) of the OD Act which states:

(f) No compensation shall be payable for or on account of any occupational disease unless disablement, as herein defined, occurs within two years after the last day of the last exposure to the hazards of the disease, except in cases of occupational disease caused by berylliosis or by the inhalation of silica dust or asbestos dust and, in such cases, within 3 years after the last day of the last exposure to the hazards of such disease and except in the case of occupational disease caused by exposure to radiological materials or equipment, and in such case, within 25 years after the last day of last exposure to the hazards of such disease.

820 ILCS 310/1(f). Please note the legislation above does not say the OD Act doesn’t cover exposure to asbestos dust—in our view, it clearly covers the exposure and indicates no benefits/compensation are due from the employer unless the requirements of the law are met. Plaintiff and later his widow had an appropriate period after the last exposure to asbestos dust to get an OD claim on file or they are barred by the simple requirements of the OD Act. In our view, this occupational disease legislation has been kept in the same format it was started with for decades. Either decades ago or right now, the IL legislature could change the law to match current science and understanding of the effects of exposure to asbestos. Our legislature, in its wisdom, did not change the law so, in our view, the reviewing courts are now doing it.

What About the Durand Ruling?

We point out the IL Supreme Court in Durand v. Industrial Commission expaaaaanded the workers’ comp and, by analogy, the OD statute of limitations in Section 6 of the WC/OD Acts. Our highest court ruled the key “cut-off” date was not the date on which the injury and its causal relationship became apparent to a reasonable physician, but when it became plainly apparent to a reasonable employee. The Court stated the WC Commission, in evaluating an accident or manifestation date, should consider many factors, such as the employee’s medical treatment, the severity of the injury, and how the injury affects the employee’s performance.

The problem Plaintiffs in Folta have is they have never made a claim under either the IL WC Act or the IL OD Act. That potential appears to have been lost to Plaintiff’s counsel so the “activist” Appellate Court can’t expaaaaand the statute of limitations or statute of repose for them in a fashion similar to the Durand reasoning. It appears to us this new ruling is new judicial legislation that didn’t or couldn’t consider the earlier judicial legislation.

Where IL WC and OD May Be Going

In our view, confusion and chaos now abound. This ruling appears to state when an injured worker’s claim under the WC or OD Acts is time-barred in a fashion the statute contemplates but the worker or their survivors are consequently blocked from receiving benefits under our laws, the employee can sue their employer in circuit court, and the exclusive remedy provision of those Acts does not bar such a suit. With respect to our Appellate Court, we consider that approach another anti-jobs and anti-business concept.

You might ask “wait a minute—do you mean anyone blocked from receiving benefits by the operation of the limits of the WC or OD legislation can now sue the employer in Circuit Court?” The answer is—no one knows. The Folta court was asked and didn’t answer such questions in their ruling. While we are uncertain about that concept, we are certain hundreds of “asbestos-bar” plaintiff lawyers are sprinting to the courthouse as you read this to add the employer as a party defendant to all pending asbestos lawsuits.

If you aren’t aware, tiny Madison County IL, with a population of about 260,000 has the largest asbestos docket in the U.S. We assure our readers there is a potential for hundreds of new asbestos claims against IL employers—we predict the new filings will be focused there and if you need assistance, the KCB&A team in southern IL can help. Madison County had 752 asbestos exposure claims filed in 2010; 953 asbestos claims filed in 2011 and 1,563 in 2012—those numbers may double or triple but are certain to go up exponentially if this decision stands. As an aside, if every asbestos claim in Madison County were to be set for trial this year, every eligible adult in the county would have to appear as a juror on three to four or more jury trials before year-end.

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

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Synopsis: Full TTD Awarded Despite Admitted Part-time Work at Florist Shop for Nurse—In Many States This Might Be WC Fraud, in IL WC, It May Be Rewarded.

Editor’s comment: What happened to temporary partial disability? In Sunny Hill of Will County, dba Sunny Hill Nursing Home v. IWCC, 2014 IL App 130028WC, filed June 26, 2014, Petitioner had a shoulder problem due to a work-related injury and was receiving care at her employer’s expense. The employer learned she was working at a flower shop she owned while getting full temporary total disability. They sent out surveillance that clearly documented Petitioner was working at her shop.

At the time of the initial injury, Claimant Mahoney-Tapella was a licensed practical nurse at Sunny Hill Nursing Home of Will County. In December 2008 she injured her right shoulder and lower back lowering an obese patient from a patient lift. Ms. Mahoney-Tapella was awarded TTD benefits for three periods between December 2008 and June 2011, and Respondent Sunny Hill terminated her employment in September 2010 because she had been continuously off work for them for more than one year.

Prior to her injury, she opened and operated a flower shop which appears to be called Blossoms and Blooms in Crest Hill, IL with her two daughters. Our research indicates their website is: http://www.blossoms-and-blooms.com/ From their website, it looks like a well-run company and there is an indication it has been in business for over two decades.

Claimant owns a majority stake in the business and her daughters run it with her. Despite working at the flower shop three days each week since getting injured at work in 2008, Ms. Mahoney-Tapella testified she was not “formally employed,” didn’t collect a paycheck, and doesn't follow a regular schedule. When at the flower shop, Ms. Mahoney-Tapella admitted she answered the phone, picked up faxed orders, helped her daughters prepare flower arrangements and babysat her grandchildren. We ask the rhetorical question--what else would someone do in a florist shop?

The arbitrator ruled “it is apparent that (Ms. Mahoney-Tapella's) partial ownership interest in a local flower shop that is operated on a day-to-day basis by her daughters does not constitute a 'return to work' in the sense of disqualifying her from receipt of TTD benefits.”

With respect to this solid and veteran hearing officer, we completely disagree—working disqualifies one from TTD but may still entitle the worker to TPD. There is no dispute Petitioner owns the company and clearly either actively makes money or is entitled to a portion of the profits of the company she owns. The fact her daughters appear to do the heavy lifting and hard work doesn’t mean Claimant isn’t working. Please also note “babysitting” her grandchildren also has value that can be easily ascertained.

In our view, you can’t have it both ways—Illinois WC law was amended in 2005-6 to provide workers with temporary partial disability or TPD. If a given claimant is working for someone else or operating a business they own for profit, the pro rata amount of money they make needs to be used to calculate temporary partial disability. When any other approach is used, it appears to us to take on the veneer of WC fraud. We salute the many attorneys on the other side of the practice who feel a duty to report to the adjuster or Respondent’s counsel when they learn their clients are working in any way and therefore TTD needs to be recalculated as TPD.

We thank the reader who gave us the heads up on this ruling. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Important Indiana WC Benefit Changes effective July 1, 2014 with analysis by our Indiana Defense Team Leader, Kevin Boyle, JD.

Effective July 1, 2014, the Indiana Worker’s Compensation benefit rates will increase for the first time in a number of years. You’ll need to update your old charts for injuries that occur after 6/30/14 due to the recent Indiana legislative changes from H.E.A. 1320.  Below is a chart to help.

There are also additional planned benefit changes for injuries on and after June 30, 2015 – 2017 as well. If you need those rates, contact Kevin at the email address below or call him at 312.662.9899or 812.369.7182.

                 Indiana PPI Value Increases

Date of Injury

1 - 10 degrees

11 - 35 degrees

36 - 50 degrees

51 - 100 degrees

7/1/10 - 6/30/14

$1,400

$1,600

$2,700

$3,500

7/1/14 - 6/30/15

$1,517

$1,717

$2,862

$3,687

Indiana Max. Dollars for Weekly Wages: TTD-TPD-PTD and DEATH BENS or any combo of these.

Date of Injury

Maximum Wage

Benefit Rate

Minimum Wage

Maximum Compensation

7/1/09 - 6/30/14

$975

$650

$75

$325,000

7/1/14 - 6/30/15

$1,040

$693.33

$75

$346,666.67

source: http://www.in.gov/wcb/files/ppiweeklybenefits.pdf

This article was researched and written by Kevin Boyle, JD. Kevin is our Indiana Defense Team Leader and is licensed in Indiana, not Illinois. He is available for answers to any questions about general liability, employment law or workers’ comp in Indiana at kboyle@keefe-law.com.