March 07, 2016

3-7-2016; Matt Ignoffo Outlines Important WI WC Changes; IL Appellate Court Refines Rights Under Section 19G; OSHA Attacks Rapid Accident Reporting Req'ment and much more

March 07, 2016/ Eugene Keefe

Synopsis: Crucial Changes to Wisconsin Work Comp!!!! Agreed Bill 724 Signed into Law on Leap Day February 29, 2016 by Wisconsin Gov. Scott Walker. Analysis by Matt Ignoffo, JD, MSCC.

Editor’s Comment: If you are a Cheeseland workers’ comp adjuster or risk manager, this article is required reading.

The bill was written by the Wisconsin Worker’s Compensation Advisory Council and makes several noteworthy changes, including, but not limited to the following:

Modestly increases the maximum weekly permanent partial disability rate from $322.00 to $342.00, effective March 2, 2016 and to $362.00 for injuries on or after Jan. 1, 2017;
Decreases the statute of limitations: It starts from the date of injury or date of last payment, for traumatic injuries and is reduced from 12 years to 6 years. The statute of limitations for occupational exposure claims remains 12 years;
Allows for a system of apportionment regarding permanent disability with the intention that businesses pay what proportion of an injury they caused and not on any pre-existing injury or disability;
Employers can now suspend TTD when an employee is brought back to light duty and subsequently is terminated for “misconduct” or “substantial fault,” as defined under the unemployment insurance law;
Provides a defense for indemnity where an employee was found in violation of a drug or alcohol policy and there was a direct causation between the violation and the injury. The worker may still pursue medical treatment expenses;
The Department of Justice will prosecute workers’ compensation fraud. This could be fraud by an employee, employer, insurance carrier, or health care provider;
Allows workers during retraining to earn part-time wages to supplement their income.

The bill passed the Wisconsin Assembly with a vote of 97-0 and was concurred by the Senate with a vote of 32-0.

Time soon enough will tell if the Illinois workers’ comp system will be implementing any changes of its own. We do feel our IL WC leaders may be able to learn something from the important WC Amendments outlined above.

This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C. licensed in IL and WI who can be reached at mignoffo@keefe-law.com.

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Synopsis: Illinois Appellate Court Finds Injured Worker May Not Bring 19G Petition While Employer Maintains Appeal of Award.

Editor’s comment: In Reed v. IWCC, Nos. 1-13-0681 & 1-13-2138, issued 2/18/2016, Claimant Reed suffered injuries in a motor vehicle accident twelve years ago while working as a truck driver for Respondent. In year 2012, Arbitrator Dollison issued an award for a significant six-figure claim for medical expenses and seven years of temporary total disability benefits. Reed's employers and insurance carrier appealed this decision to the Workers' Compensation Commission and the Commission panel in a decision penned by Commissioner DeVriendt upheld the Arbitrator's decision.

For reasons of which we are unaware, defense counsel or someone then apparently told Claimant Reed or his attorney they planned to seek judicial review of the Commission's calculation of his wages, but not the award of medical expenses. We aren’t sure how that conversation or reference might have made it into the record on appeal because there is no opportunity to add to the record at that point. We also note that statement is later contradicted in the Appellate Court’s opinion where Respondent indicated they wanted the Commission to reconsider the medical expense award on remand.

Either way, after the employers filed their petition for judicial review, Reed’s counsel filed a 19G complaint in the Circuit Court seeking a partial judgment on only the medical expense portion of the workers’ compensation award. Counsel for the employer moved to dismiss Reed's complaint, arguing Claimant Reed could not enforce the Commission's order when part of the Commission's decision was still properly protected by an appeal bond and was pending on appeal.

Circuit Court Judge Lopez-Cepero agreed with the employer and dismissed the 19G complaint.

Counsel for the employers then filed a Supreme Court Rule 137 request for sanctions against counsel for the injured worker. In response, the trial judge denied the motion. Counsel for Claimant Reed appealed from the dismissal order, and attorneys for the employer appealed the denial of their request for Rule 137 sanctions.

The Illinois Appellate Court unanimous majority ruled Section 19G of the IL Workers' Compensation Act expressly provides a party cannot obtain a judgment enforcing a decision of the IL WC Commission if any proceedings for review of the decision are pending. The opinion noted although the Illinois Supreme Court has said an application under Section 19G for judgment will not barred by review proceedings pending on “unrelated matters,” the Appellate Court ruling indicated this case involved a request for "enforcement on the same matter that was the subject of review proceedings." The ruling further indicated the panel was "not unsympathetic to (Reed's) natural desire for closure, even if only for a portion of this matter," but confirmed his employers had a right to seek judicial review of the Commission's decision. Thus, in accordance with Section 19G, the court said, Reed could not bring his Circuit Court enforcement action at that time.

The court also agreed with the trial judge this attempt to bring a Section 19G enforcement action did not warrant the imposition of Rule 137 sanctions.

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Synopsis: The Obama Administration Hates Rapid Accident Reporting Rules. KCB&A Still Recommends Them With a Caveat on Cautious Enforcement.

Editor’s comment: In our view, state-of-the-art in work accident reporting is to ask all workers to report any accident or injury, no matter how minor, as soon as possible. The problem isn’t that goal—the concern is what do employers do to enforce the rule?

We are sad to report our current administration doesn’t appear to like the whole concept and specifically hates enforcement. The U.S. Department of Labor sued United States Steel Corp. to reverse disciplinary actions taken against two employees for reporting workplace injuries in violation of the company's immediate-reporting policy and to force the company to amend the policy. The two employees were suspended without pay for failing to immediately report workplace injuries, per the company's policy, according to the lawsuit, which was filed in U.S. District Court in Wilmington, Delaware, on Feb. 17, 2016.

In February 2014, Jeff Walters, a full-time utility technician at the Pittsburgh steel manufacturer's Clairton, Pennsylvania, plant found a small splinter lodged in his thumb and extracted it himself, according to the lawsuit. The technician completed his shift without further incident, but the thumb and hand were noticeably swollen two days later, necessitating medical treatment for an infection. When Mr. Walters reported the incident to his supervisor, the company imposed a five-day suspension without pay — later reduced to two days — for violating the company's injury reporting policy, according to the lawsuit.

Later that month, John Armstrong, a full-time laborer at the company's Irvin Plant in West Mifflin, Pennsylvania, bumped his head on a low beam, feeling no pain or discomfort at the time as he was wearing a hardhat, according to the lawsuit. However, he experienced stiffness in his right shoulder and sought medical treatment several days later and was eventually suspended for five days without pay.

Both workers filed complaints with the OSHA or the U.S. Occupational Safety and Health Administration alleging U.S. Steel suspended them in retaliation for reporting workplace injuries, with the agency finding the company violated the anti-discrimination provision of the Occupational Safety and Health Act in both cases. But U.S. Steel failed to rescind its discipline of either worker in addition to refusing to alter or amend its immediate-reporting policy to allow for a reasonable period of time for employees to report worksite injuries, according to OSHA.

The lawsuit seeks to stop U.S. Steel from violating the Act, direct the company to rescind and nullify its immediate-reporting policy and permanently bar U.S. Steel from enforcing a reporting policy that requires employees to report their workplace injuries or illnesses earlier than seven calendar days after the injured or ill employee becomes aware of his or her injury or illness. The lawsuit also seeks to force the company to rescind its discipline and sanction of the two employees, direct it to compensate the employees for any lost wages and benefits, including interest and compensatory damages, and post notices at all worksites for 60 days stating it will not discriminate or retaliate against employees involved in activities protected by the Act.

In our view, we feel urgent work accident reporting and investigation is critically important. The faster you learn of a claim, the better chance you have to scrutinize and authenticate it. So we feel you want to have such a policy but enforce it as wisely as you possibly can. In our view, OSHA picked two test cases with what they feel are strong facts to allow a challenge to the entire reporting rule. If you read the facts above, we assume you see the problem. If you have minor “bumps and bruises” injuries that are late-reported, consider simply writing the worker up but don’t suspend or terminate. If you have an unquestioned traumatic event with immediate consequences, enforcement can and should be stronger. We are happy to consult on your program, simply send a reply.

Either way, please assume this administration is going to keep fighting and fighting and won’t provide a pro-business approach to accident reporting and investigation. We appreciate your thoughts and comments. Please post them on our award-winning blog.

March 01, 2016

2-29-16; IL Supreme Ct Abandons "Public Duty Rule" to Allow New Suits Against Local Gov'ts; John Karis on Shocking Workplace Ruling Against a GC and Others; Athletico Starts New WC Customer Service...

March 01, 2016/ Eugene Keefe

Synopsis: IL Supreme Court Follows ITLA Lead and Party Affiliation to Abolish the "Public Duty Rule" and Allow Unprecedented New Lawsuits Against Your Town and Mine—Higher Taxes Are Sure to Follow.

Editor’s comment: This isn’t truly a WC issue so if you aren’t concerned about higher local taxes in your town, skip this one. For insurance brokers among our readers, this is a new and unparalled risk your government clients will now have to deal with, for the first time—call your underwriters!

A divided Illinois Supreme Court recently abolished the common-law "public duty rule." This standard, widely known as the "public duty rule," was conceived by the U.S. Supreme Court more than 150 years ago and has been firmly in place in Illinois for at least 50 years. The rule had long provided local governments and their first-responder and other government employees owe no duty of care to rapidly provide emergency or other government services to individual members of the public—they owe a general duty to all. In short, this rule meant the many government workers couldn't be sued for negligence, like failing to arrive rapidly.

The split Supreme Court panel in Coleman v. East Joliet Fire Protection District, 2016 IL 117952, found the rule is somehow no longer viable based on "the interplay between the public duty rule and governmental tort immunity.” Justice Kilbride wrote the lead opinion, with Justice Burke concurring. Justice Freeman wrote a specially concurring opinion, which was joined by Justice Theis. Justice Thomas dissented, and was joined by Chief Justice Garman and Justice Karmeier. You may easily note the majority was entirely from the IL Democratic Party and the minority was from the Republican side.

In Coleman, Plaintiff filed claims for wrongful death and survival against Defendant East Joliet Fire Department on behalf of the estate of Decedent Coleman, who died of cardiac arrest in the process of seeking EMS or emergency medical service. After extensive pretrial motion practice, the only remaining counts in the complaint were ones alleging willful and wanton conduct on behalf of Defendants. Those counts were disposed of by the trial judge on summary judgment under the “public duty rule.” The Appellate Court affirmed the trial court's ruling.

From the view of IL Business and Government, this is where this case should have ended. We note the “public duty rule” has been affirmed by Illinois courts, including prior panels of our Illinois Supreme Court, for well over 50 years. In short, no one has ever successfully claimed the “public duty rule” was discordant with local government tort immunity.

Surprisingly, the Coleman majority took a radical and different view. After analyzing the history of state governmental immunity in Illinois, our highest court turned to the history of the “public duty rule,” which has existed in some form across the United States since 1855. The majority found it was time to abandon it for three reasons:

· Jurisprudence was muddled and inconsistent in the recognition of the public duty rule and its special duty exception;

· Application of the public duty rule was incompatible with the legislature's grant of limited immunity in cases of willful and wanton conduct; and

· Determination of public policy is primarily a legislative function and the legislature's enactment of statutory immunities rendered the public duty rule obsolete.

Wow, most business and government leaders would strongly disagree with each and every thought above. Previously, a plaintiff's only means of demonstrating liability in the face of Illinois’ statutory governmental immunity was to show the government entity engaged in willful and wanton conduct. This is considered a challenge and also a protection to your town and mine. ITLA and the Plaintiff bar complained the public duty rule eliminated even that path for Plaintiffs, with very rare exceptions. Basically, the now-defunct rule exempted local governmental entities from any liability in connection with providing emergent services even if they were found to have committed willful and wanton conduct.

The Coleman majority also found our legislature carved out liability for cases of willful and wanton misconduct and the common law public duty rule was incompatible with the legislature's decision. Ultimately, the lead opinion left it to the legislature to determine whether it was necessary to retain the public duty rule, noting that it could always codify the existing rule or create a new rule.

Supreme Court Justice Thomas's scathing dissent took both the lead and specially concurring opinions to task for abandoning stare decisis with regard to the public duty rule. His opinion discounts the majority argument the application of the law was muddled. Justice Thomas also notes statutory tort immunity existed for decades prior to the Coleman ruling.

We feel this ruling ending the public duty rule will open up lots of new litigation for plaintiffs' attorneys to sue local governmental entities for good, middle and poor outcomes that might have been arguably prevented by better law enforcement or faster ambulances and fire trucks. The Coleman decision likely will increase the number and duration of lawsuits filed against public employees, despite the immunity provisions of the Illinois Local Governmental Tort Immunity Act. In addition, public employees now are at risk of liability for willful and wanton conduct, unless the Illinois Legislature acts to counter this ruling. To summarize, your town’s insurance costs are going up and your taxes are certain to follow.

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

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Synopsis: Huge Award Against General Contractor for Workplace Injury Following OSHA Investigative Actions and Citations. Analysis by John Karis, J.D.

Editor’s Comment: Be Forewarned--earlier this month, a jury in Harris County, Texas, awarded $54 million to the family of an employee killed while building Kyle Field stadium. Despite having no OHSA violations and not managing the employee, the general contractor was found the most responsible party for the worker’s death.

The facts of the case involve the employee using a loader's bucket to catch concrete debris being removed from the stadium. His work was part of the $450-million renovation. The loader had a 2,700-pound carrying capacity but was bearing a 3,340-pound concrete section as another worker was using a circular saw to cut the piece from a support column. The weight caused the overloaded equipment to topple forward over the side of the stadium. Tragically, the worker was thrown from the loader—falling about four stories to the ground.

OSHA issued two willful citations and placed the employer into their Severe Violator’s Program (SVEP). Being placed into OSHA’s SVEP has immediate and damaging national consequences, but this placement also created potentially unfavorable public evidence against an employer.

The lawsuit involved several site employers, including the Joint Venture/General Contractor, the deceased employee’s employer and another company working on site. Generally, workers’ compensation is the exclusive remedy against an employee’s employer or an injured employee, unless the employer engaged in near-intentional bad conduct resulting in the injury or fatality. This is a tough standard to prove. In Texas, an employer can also chose not to subscribe to workers’ compensation and consequently, be subject to a civil suit.

An OSHA area director, Casey Perkins openly claimed "these experienced contractors failed to provide employees with safe demolition procedures despite concerns from workers." He also said "employees had to work under the load and directly beside the skid-steer where they could be struck by the equipment or heavy, concrete debris. This disregard for worker safety is unacceptable and will not be tolerated." We are sure he has a right to his opinions, as a government worker.

OSHA then rendered a willful citation with a hefty penalty of $56,000 to one of the companies on the site for exceeding the operating capacity of the skid-steer loader where the equipment was loaded with concrete until what OSHA felt were obvious signs of tipping were seen. Another site subcontractor was also cited for a willful violation with a penalty of $63,000 for exposing workers to the hazard of being struck-by the skid-steer loader and concrete.

Due to evidentiary issues, Plaintiff did not get the OSHA citations before the jury but their underlying theories were present. Shockingly, the jury awarded $54 million dollars and their award did not include punitive damages. Plaintiff’s counsel claimed even without the OSHA citations, “Defendants were felt to be callous—refusing to accept any responsibility” which he claimed made the jury mad.

Notably, the general contractor was found 75% responsible despite no OSHA citations. The GC understandably argued a lack of responsibility under the usual multiemployer theory. They did not directly manage the employee and asserted his employer should have been responsible for his safety.

The obvious lesson is general contractors on a site take an enormous risk to leave safety concerns and management to the other contractors on site. The suit involved a construction site but there are lessons for any U.S. employer. An errant supervisor or an unusual/dangerous work situation can lead to bad events at any site.

If you’re a General Contractor, you need to:

· Effectively prequalify your subcontractors and ensure they provide site-specific training and a safety plan;

· Conduct a daily documented walk around and take documented corrective actions;

· Bid the job with provisions for adequate safety professionals;

· Owners need to insure general contractors adequately staff their jobs with safety support;

· Train your site superintendents, project managers and engineers and foreman to recognize and respond to observed hazards; and

· Regardless of who makes the error, all employers on site can pay whether by attorney’s fees and costs of defending a legal action and/or any judgments.

This article was researched and written by John Karis, J.D. You can reach John 24/7/365 for questions about OSHA, general liability defense and workers’ compensation defense at jkaris@keefe-law.com

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Synopsis: Athletico Announces Their New Workers’ Compensation Customer Service Department.

Editor’s comment: Athletico is one of the top physical therapy providers in the U.S. They just announced the formation of a new WC Customer Service Dep’t to optimize services to their patients, doctors, claims handlers, risk managers and attorneys on both sides. We want our readers to know of this new transition to insure when your claimants need physical therapy after a work accident, your needs are fully served.

By providing Work Comp services, educating employees on safe work habits, and creating environments where injuries are preventable, Athletico Physical Therapy really does go to work for their component participants. From the time of injury through claim closure, their Work Comp services make the entire PT process a cost-effective and timely manner for everyone involved.

Athletico's Work Comp Services:

Work Conditioning
Physical Therapy
Occupational/Hand Therapy
Functional Capacity Evaluations
Ergonomics
Job Analysis
Post-Offer Testing

About Their Services:

Athletico works to develop a training protocol for the long-term success of occupational and Work Comp and safety programs by training, equipping, and supporting allied health and safety professionals.

Athletico also offers a number of preventative and educational services. Work Comp specialists are trained to assess the work environment and worker behaviors in order to customize intervention techniques and programs. Programs include the following:

Job-Site Evaluations
Job Analysis
Workplace/Ergonomic Assessment
Post-offer/Pre-employment Testing
Injury Prevention Strategies
Spine Control Classes

Benefits of Athletico’s Work Comp Services

Comprehensive: Athletico Physical Therapy offers timely, cost-effective Work Comp services designed to not only treat on-the-job injuries, but also return injured workers to the job with minimal risk of re-injury.

Convenient: Patients are guaranteed easy access to any of their convenient locations within 24-48 hours of their initial call. This allows them to minimize down time by quickly assessing injures and setting return-to-work goals.

Customized: Based on a valid job description and comprehensive interview of the injured worker, their rehabilitation specialist will develop return-to-work goals specific to each patient’s injury and on-the-job activities.

Coordinated Communication: Their comprehensive, convenient, and customized approach to Work Comp extends beyond the injured worker. Athletico staff provides timely communication to all involved parties, including employers, primary physicians, case managers, and legal representatives. In addition to the rehabilitation progress, we will provide 24-hour notice of patient cancellations or no-shows for scheduled appointments.

If you are a work comp professional and interested in learning more about Athletico’s WC Customer Service Dep’t, contact Michael Trombetta at michael.trombetta@athletico.com

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Synopsis: Need WC Training? Learn from the KCB&A Experts about New WC Rules and Decisions from 2015 and Beyond .

Editor’s comment: In our view, training and expertise in new work comp developments is critically important for you to keep ahead of your competition in claims and risk management. We have culled out the important decisions and changes to law for the last year to add to our 2016-17 IL WC Law Textbook. We can present the most important of them for you and your adjusting/risk management staff in a complimentary onsite lunch and learn at your office. We can also “webinar” your remote workers who want to keep pace with the office staff. Let us know if you are interested in a lunch hour presentation that we assure you will be informative and entertaining.

Here is the outline created by John P. Campbell, J.D. and Nathan Bernard, J.D. for your consideration:

When is a Physical Problem Repetitive Trauma versus Repetitive Working?

Question: How Exactly Do You Tackle an IL WC Fraud Claim? IL Courts Play the Laurel and Hardy Game of “Who’s on First?”

IL WC Wage Differential Exposure Expanding based on Recent Appellate Court Ruling.

Defense/Respondent Contact with Treating Doctors Met with Shocking Penalty and Sanction from Circuit Court Judge.

Traveling Employee Expansion When Handling Work Equipment While at Home.

Medicare Set-Aside Process as SMART Act is Implemented.

Comparing How Impairment Ratings are Considered at the IWCC.

We can also do a half-day or whole day seminar to teach all the nuances of IL WC. Let us know is you have interest—all you have to do is send a reply.

February 22, 2016

2-22-16; Can We Use AOO/ICO as the Proper Analysis and Drop the "Traveling Employee" Concept; Kevin Boyle on Important IN Ruling; Is the IWCC Cutting Costs?!!!; IL WC PPP May Save You Millions

February 22, 2016/ Eugene Keefe

Synopsis: Another Odd “Traveling Employee” Ruling—We Continue Criticism of the Confusing Concept.

Editor’s comment: In United Airlines v. IWCC, No. 1-15-1693WC, issued February 22, 2016,.the IWCC and IL reviewing courts had another back and forth about the “traveling employee” concept. We salute the IL WC Commission and courts for getting the ruling “right.” We caution our readers, students and others to remember out highest courts are always arguably ‘right’ because they set the law and we must respect their rulings. Perhaps the better way to analyze it is to indicate our feeling the IL and national business community will agree with this outcome but perhaps for different reasons. The reason we consider the ruling odd is the words “traveling employee” don’t appear in the IL WC Act or Rules. In contrast to our state, Florida and a few other states do have definitions of the words “traveling employee” and such definitions are used by their administrators and courts to openly and fairly implement the legal concept. Due to the lack of any legal definition in this state, almost any decision based on the term “traveling employee” is probably a political and not legal ruling. When we see the words “traveling employee” as the subject of IWCC and reviewing court rulings, we think of silly but comparable terms like “tumbling acrobat” or “drunken stevedore” and confirm there are no similar legal rules arising from these combination terms. Like the term “traveling employee” we assert if the IL WC Commission and Courts created a “tumbling acrobat” rule, it would also have no relevant legal definition or work comp meaning in our state.

Despite the unquestioned statutory absence of any definition of “traveling employee,” the IL Appellate Court framed their legal analysis as “The issue that we must decide is whether the claimant was a traveling employee when she injured her knee on the United flight from Denver to New York.” A layman’s answer to that simple question is easy—Claimant was unquestionably an airline employee and while flying in an airplane, she was clearly “traveling,” so why didn’t she get WC benefits? The inescapable response is their question and the whole “traveling employee” concept is, in our respectful view, logically and legally flawed. Instead of answering the question, the Court sort of analyzed the issue of what a traveling employee might or might not be but the unanimous opinion clearly reviews the accurate legal framework for all similar claims—AOO/ICO.

Arising Out Of and In the Course Of (or AOO/ICO) is the Accurate IL Legislative Analysis for Any “Traveling Employee” Claim—Please Stop Using the Political and Not Legal Term!

These terms—AOO and ICO are defined in our law. While a child might not immediately comprehend them, to veteran WC participants, they are generally easy to understand. We urge all jurists, administrators, attorneys, risk managers, claims adjusters and everyone else to adhere to them as the proper method to analyze this claim and all similar WC claims. In this claim, the Illinois Appellate Court ruled a flight attendant was not within the course and scope of her employment when she injured herself while traveling as an unpaid passenger going to work for the airline from a New York hub.

There is no dispute Claimant worked as a flight attendant for United Airlines. She lived in Boulder, Colorado, but she worked on United flights out of their hub in New York. In September 2011, she traveled from her home in Boulder, CO to the Denver International Airport. From there, she boarded a New York-bound United flight, traveling basically for free because she worked for the company. Although Claimant was not working on the flight, she wore her flight attendant uniform to the airport and on the plane so she could more easily bypass the TSA and other security stuff that tortures the rest of us while traveling. Once Claimant was on the plane, she went into the tiny airplane bathroom and changed into normal casual clothes.

On her way back to her seat in the airplane, Isern tripped and fell, injuring her knee. We are uncertain why that description of an accident would make it necessarily compensable but it appears the Arbitrator, IWCC and both reviewing courts didn’t question initial compensability of the occurrence.

IL WC Arbitrator David Kane ruled Claimant’s injury was compensable because she qualified as a "traveling employee." He ruled a "traveling employee" is a person whose work duty required her to travel “away from the employer's premises.” Again, in the case of a flight attendant, that definition in the context of this claim is nonsensical—she was in/on the “premises of the employer” or its airplane! The Arbitrator further ruled a “traveling employee” is mystically considered to be "in the course of" her employment from the time she left her Colorado home until she returned home, and any injury sustained by a traveling employee "arises out of" her employment if she is injured while engaging in conduct that was reasonable and foreseeable. Try to contemplate how much this wildly expanded WC coverage would affect the IL transportation industry.

The Illinois Workers' Compensation Commission panel, headed by Commissioner Stephen Mathis reversed Arbitrator Kane, finding Claimant did not qualify as a “traveling employee” under the legal standard established by the IL Supreme Court's 2013 decision in Venture-Newberg-Perini, Stone & Webster v. IWCC.

Claimant appealed, and Circuit Court Judge Roberto Lopez Cepero reversed the IL WC Commission’s ruling. Judge Lopez Cepero found the Supreme Court’s rule from Venture-Newberg-Perini was inapplicable to this Claimant because that landmark decision supposedly involved a worker on a “temporary assignment” and this Claimant was somehow a “permanent” United employee. If you follow the Judge’s thinking, all construction workers would be on “temporary assignments” and they would all magically lose their purported status as “traveling employees” for that reason. Whatever a “permanent worker” might be would be then entitled to the expanded “traveling employee” WC coverage.

In considering the ruling from Judge Lopez Cepero, this Appellate Court, Workers’ Comp panel unanimously ruled the denial in Venture-Newberg-Perini applied to this Claimant. You may recall the Venture-Newberg-Perini case involved a union pipefitter who took a work assignment at a site 200 miles away from his “permanent” residence because there supposedly was no pipefitter work available locally. Please note many pipefitters are similar to gypsies and travel to their well-paid work when/where they can locate it—some of them live out of campers or their cars. Either way, Claimant in that case was not required to take the job and could have refused the assignment if his local pipefitter union had a closer position available. Claimant and a co-worker decided to stay at the Lynwood Lodge, a motel 30 miles away from the job site. Claimant made all the arrangements for his stay on his own. While traveling from the Lodge but still many miles to the job site, the worker’s auto slipped on ice and crashed. He suffered serious injuries with over $1M in medical bills from the motor vehicle accident.

After a relatively shocking decision awarding benefits from the IL Appellate Court, WC Division, the IL Supreme Court reversed and found the accident was not compensable because the pipefitter took the job and he chose where to stay at his own cost, rather than drive the lengthy distance back and forth from his home. In short, our highest court ruled the pipefitter's accident wasn’t “in the course of” employment as it occurred during his unpaid commute. We assure our readers this reversal in Venture-Newberg-Perini probably saved thousands of Illinois jobs because hundreds of employers may have left our state due to the skyrocketing costs such expanded WC coverage might have caused. We point the same criticism at the rulings of Arbitrator Kane and Judge Lopez Cepero—if you don’t understand why/how the “traveling employee” concept would kill jobs in this state, send a reply.

In comparing that ruling to the United Airlines v. IWCC facts, the IL WC Appellate Court reasoned Claimant’s situation was not distinguishable from the worker's situation in Venture-Newberg-Perini. The unanimous ruling noted Claimant made the decision to live in Colorado, and United Airlines had no control over her choice. United also did not pay Claimant a penny for her time traveling from Colorado to New York and she had to make all the arrangements for the trip on her own. Therefore, this Court said, at the time she injured her knee, Claimant "was engaged in her regular commute from her chosen residence to the city where her job assignment was located."

It is our hope the entire IL WC matrix drops the “traveling employee” concept as challenging, confusing and a jobs-killer. The legal terms in our IL WC Act are “arising out of” and “in the course of” employment. Neither the Claimant in Venture-Newberg-Perini or this claim were “in the course of” employment. It is a lot easier for John Q. Public to understand that idea. If we were to simply follow the traditional precepts of AOO/ICO that we all generally understand, there would be no reason for Governor Rauner and his team to try to rein in the “traveling employee” concept with a legislative amendment he continues to press for in Springfield.

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

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Synopsis: AT&T Gets a Solid Outcome in an Indiana Work Comp/General Liability Decision with Analysis by Kevin Boyle, J.D., Our IN Legal Guru.

Editor’s comment: Can a subsidiary avoid worker’s compensation liability under the exclusive remedy provision when your parent company is as huge as AT&T? In Indiana, the answer is yes. See Hall v. Dallman Contractors, LLC, 2016 WL 412984 (Ind. Ct. App. Feb. 3, 2016).

In this claim, Employee Brenda Hall sued AT&T Services, Inc. among others for her serious arm injuries when she tripped and fell on her way into work in 2007. She tripped over a construction sign placed in a walkway adjacent to an ongoing construction project at an AT&T building. In 2009, the Indiana Worker’s Compensation Board issued a stipulated award to Hall for 29% PPI to her right arm. She filed her civil damages suit in state court with subsequent amendments adding AT&T and its subsidiaries as parties defendant.

AT&T Services, Inc. filed a summary judgment motion alleging Hall’s negligence claim was barred by the exclusive remedy provision under I.C. 22-3-2-6. The trial court granted summary judgment holding that Hall’s employers (AT&T Services, Inc. and Ameritech) were both subsidiaries of defendant AT&T Inc. Therefore, as joint employers of Hall, she was barred from suing them, since she already received worker’s compensation benefits from Ameritech.

The Indiana Court of Appeals affirmed. The Court of Appeals rejected Hall’s supporting cases decided before the 2000 statutory changes to the definition of an ‘employer’ under the Indiana Worker’s Compensation Act. The Court also noted the IN WC Act does not define “subsidiary.” However, under other Indiana statutes, subsidiary is defined as “a subsidiary of a resident domestic corporation “ which ‘means any other corporation of which a majority of the outstanding voting shares entitled to be cast are owned (directly or indirectly) by the resident domestic corporation.’

The Court noted that the designated evidence showed that Ameritech owned 8.15% of AT & T Services at the time of Hall's fall, which was clearly not a majority of the outstanding voting shares. Strangely, no further evidence was presented concerning the “complex corporate structure” involved, but the opinion containsa detailed flowchart to explain the complex corporate AT&T structure.

Either way, we feel IN employers have to be happy with the ruling that avoids a double-recovery for Claimant Hall.

Kevin Boyle, J.D. is our top IN GL/WC guru and he researched and wrote this article. He can be reached for further advice and counsel at kboyle@keefe-law.com.

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Synopsis: Is the IL WC Commission Continuing to Cut Costs and Unnecessary Expense?

Editor’s comment: We note the recent announcement from our IL work comp administrators indicating the Peoria satellite office is no longer going to be staffed on a full-time basis. We have always considered the concept of “satellite government offices” to be controversial and a waste of taxpayers’ money because most of the services provided, like printing and distributing IWCC forms is something almost anyone can do for themselves online.

Several years ago, we saw the Collinsville IWCC office appeared to have lost its full-time staffer but someone new might have again been added. We assume there will no longer be a full-time staff member at the IWCC’s Peoria office. We strongly suggest full-time staffers at both Rockford and Springfield be eliminated and/or given actual work to do. If cost-cutting is apace, we salute Chairperson Fratianni and General Counsel Ron Rascia. We hope the IWCC continues to carefully cut staff/costs/expenses wherever it can to save money in a state government that is over $100B in debt. The tax dollars they save all come from IL business.

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Synopsis: An Absolute No-Brainer—When Will Illinois Governments and Municipalities Get IL Work Comp Preferred Provider Programs to Cut Medical Costs and Save Taxpayers Millions?

Editor’s comment: We saw a national news source last week report Woodford County, outside Peoria was evaluating a WC Preferred Provider Program for their Injured Workers. In an effort to prevent doctor shopping by injured workers and tackle spiraling workers’ comp premiums, the County Board of Woodford County is mulling a Workers’ Comp Preferred Provider Program, according to The Woodford County Journal newspaper.

The Board was scheduled to vote on the proposal and, if approved, it would require injured county workers to seek care from physicians and facilities in the PPP network. Injured workers can refuse to see a doctor in the network, but it would count as one of their two choices of medical providers in Section 8(a-3) of the IL WC Act.

The Board noted besides giving the county more control over work-related medical treatment of injured workers, medical providers in their network would charge and accept lower medical reimbursements. In short, it is a win-win for this local government. The County Board also noted, all of the major medical facilities in the Woodford County area are members of the IL WC PPP network.

The PPP would be administered at no cost to the County, according to the newspaper. They report Woodford County’s workers’ compensation insurance premiums have exploded to $324,000 in the current budget year from $107,000 in 2009 due to increasing claims costs and higher claims frequency, according to the report. If they want free legal claims audits with action plans on how to save millions and close claims, we hope they send us a reply.

We urge Governor Rauner and his IL State WC administration to also get locked in to a WC PPP for the same cost-saving reasons. As they pay over $100M in annual WC costs, a WC PPP could literally save billions over the years.

If your local government or business wants the best thoughts from the legal team at KCB&A on how to save WC claim costs, please also feel free to send a reply.