7-25-2016; IL Appellate Court "Pops" OccDisease Claim for COPD; David DePaolo of WorkCompCentral RIP; State Work Comp Payout May Not Be The Measure of Employer Liability Under This Administration

Synopsis: IL Appellate Court, WC Division Affirms IWCC Denial of Claim for Lung Issues Allegedly Caused by “Popcorn-Worker’s-Lung.”

Editor’s comment: When it comes to Frye and IL Rule of Evidence 702, all IL WC attorneys on both sides and risk managers/adjusters/brokers should read this precise and well-reasoned but complex Appellate Occupational Disease decision.

In Durbin v. IWCC, issued July 17, 2016, a unanimous Illinois Appellate Court, WC Division ruled an Archer Daniels Midland factory worker failed to establish the compensability of obstructive lung disease because he did not adequately or scientifically link his condition to the workplace exposure to a buttery-smelling chemical compound named Diacetyl.

The majority ruling by Justice Harris accurately pointed out such claims aren’t actually “workers’ comp” rulings—this is an occupational disease claim where the worker has to demonstrate an “exposure” to an arguably deleterious chemical or other substance due to work.

There was no dispute Claimant Durbin worked for Archer Daniels Midland for approximately 30 years. During most of that tenure, Petitioner Durbin claims he was exposed to Diacetyl, a chemical used as butter flavoring that has been occasionally linked to lung problems in workers. Claimant also admitted to being a cigarette smoker.

NIOSH or the National Institute for Occupational Safety and Health has suggested Diacetyl, when used in artificial butter flavoring (as used in many consumer foods), may be hazardous when heated and inhaled repeatedly over a long period. Workers in several factories that manufacture artificial butter flavoring have been diagnosed with bronchiolitis obliterans, a rare and serious disease of the lungs. The cases found have been mainly in young, healthy, nonsmoking males. As with other end-stage lung diseases, lung transplantation is currently the most viable treatment option. However, lung transplant rejection is very common and happens to be another setting in which bronchiolitis obliterans is  expected to occur.

The disease has been called "popcorn worker's lung" because it was first seen in former workers of a microwave popcorn factory in Missouri but NIOSH refers to it by the more general term "flavorings-related lung disease.” People who work with flavorings that include Diacetyl are at risk for flavorings-related lung disease, including those who work in popcorn factories, restaurants, other snack food factories, bakeries, candy factories, margarine and cooking spread factories, and coffee processing facilities.

Either way, Claimant Durbin testified he first began having breathing or lung problems around year 2000 or 2001, and after he retired from ADM in 2003, his problems worsened. Things in the occupational disease litigation sat around for a long time. By the time of the WC arbitration in 2013, Durbin said he was unable to engage in activities that required exertion because he would lose his breath.

Former Arbitrator Zanotti found Claimant Durbin failed to prove an occupational disease caused by a workplace exposure. The Illinois Workers' Compensation Commission panel upheld the Arbitrator’s decision, as did the Circuit Court judge.

The IL Appellate Court, WC Division found the causation opinion of Claimant Durbin's medical expert was not clearly admitted or rejected from evidence under the ruling in Frye and IL Rule of Evidence 702. The majority decision took up the issue to provide clarity and they ruled the opinions were properly excluded from evidence. The Court carefully and thoroughly explained the admissibility of any expert's opinion depends on whether the underlying method used to generate the opinion by the expert is one reasonably relied upon by the experts in the field.

In this case, the Court noted the opinion of Claimant's expert was based on two publications regarding Diacetyl exposure at microwave popcorn plants. The majority opinion ruled the New England Journal of Medicine article upon which the expert relied was peer-reviewed, the Court’s decision further noted that article involved workers with a specific condition known as bronchiolitis obliterans, whereas Claimant Durbin had been diagnosed with chronic obstructive pulmonary disease or COPD.

"While there may be evidence that exposure to Diacetyl can cause bronchiolitis obliterans," the Court said the expert's "leap to finding a causal connection between Diacetyl exposure and COPD is arguably supported only by an editorial." The Court’s ruling said "an editorial in a medical journal is not the equivalent of a peer-reviewed article based upon medical studies" and as such, it is insufficient to [legally] serve as a basis for an expert's opinion on causation.

The Appellate Court’s members further found the medical expert's theory Claimant Durbin suffered a harmful exposure by simply “smelling” a buttery scent was "speculative and lacked support in the relevant scientific literature."

As the only evidence Claimant presented to support a causal link between his work and his COPD was the opinion of this expert, and the opinion was inadmissible, the Court ruled the IL WC Commission's denial of his claim was supported by the evidence in the record.

As defense attorneys, we have numerous claims brought by Petitioner’s attorneys for occupational disease claims. Our common response follows this great decision’s review of such claims—what is the exposure? How long or how much is the exposure? What is the scientific literature supporting a medical condition related to such an exposure? For most OD claims, if the other side doesn’t have a solid expert, the claim is usually going nowhere fast.

We caution our readers and law students and others, the IWCC and courts don’t necessarily need an expert opinion if the relationship is clear and well-settled. That said, they are typically skeptical to leap to contusions, we mean conclusions over causal connection when such claims are presented.

If you are a risk manager or claims adjuster with questions or concerns about OD claims, please send them along and the defense team at KCB&A can provide strong guidance on testing, experts and strategies to best defend such claims.

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Synopsis: God Bless and Keep the Memory of Great U.S. WC guru David DePaolo.

Editor’s comment: David DePaolo, founder, president and chief executive officer of WorkCompCentral, died too early this month. He was 56.

DePaolo was riding his motorcycle—a Honda 250 that he had nicknamed "The Sewing Machine"—in the Santa Monica Mountains near Malibu Hills, California on Sunday afternoon. He veered right into shoulder of Yerba Buena Road, hitting a dirt embankment shortly after 4 p.m., according to a report in the Ventura County Star.

The cause of the accident and DePaolo's death was still under investigation as we go to press.

We remember David calling KCB&A about 5 years ago and asking to be able to use our articles and assistance for the WorkCompCentral wonderful publication. We have always treasured our working relationship with David and this wonderful national industry resource and encourage all WC industry folks to consider subscribing to it.

DePaolo obtained a Juris Doctor from Pepperdine University School of Law in 1984, a Master’s in Business Administration from California Lutheran University in 1997 and a Bachelor of Arts in English from San Diego State University in 1981. He practiced as a workers' compensation defense attorney and as a sole practitioner, before founding WorkCompCentral in 1999. DePaolo is survived by his wife Anne, daughter Nichole and son Anthony.

A public memorial service for David DePaolo will be held Saturday, Aug. 6 at the Camarillo Airport in Southern California. The memorial service is scheduled for 1-5 p.m. at Channel Islands Aviation Hanger 265 on Durley Avenue. From U.S. Highway 101, exit Los Posas Road southbound, turn right on Pleasant Valley Road and right on Airport Way to Durley Avenue.

DePaolo was a pilot who often blogged about his adventures in "41 Mike," a 1979 Beechcraft Bonanza. He also volunteered for Angel Flight, a charity that provides transportation for families with medical emergencies. In lieu of flowers, the family would appreciate donations to Kids Chance of California or Angel Flight.

For planning purposes, persons wishing to attend the services are asked to email or call Valeria Garcia at vgarcia@workcompcentral.com or 805-484-0333, ext 127. Your editor may be there—let us know if you plan on attending.

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Synopsis: State Work Comp Payout May Not Be The Measure of Employer Liability Under This Administration.

Editor’s comment: We were mildly amazed to see a Federal Judge ordered an IL employer to make a payment of $350,000 in “restitution” to decedent’s family following a worker's death. We are uncertain how the federal judge measured the proper amount in restitution that appears to us to be “additional damages” over and above the statutorily required state workers’ comp payout. We have no true idea if court-ordered “restitution” would be a benefit covered under a typical workers’ comp insurance policy—the insurance brokers among our readers might want to reply with their thoughts. Some of our readers assume the extent of state WC benefits is your only concern when a worker suffers an untimely death in your workplace—this assumption may not be accurate in light of rulings like this one.

News from South Beloit, IL confirms a federal judge has ordered a scrap-processing company based in Rockford to pay $350,000 in “restitution” to the family of a man killed in year 2014 at one of its plants. Behr Iron & Steel Inc. also was placed on five years of probation under the sentence handed down in U.S. District Court for the Northern District of Illinois, based in Chicago.

Federal prosecutors charged the company with violations of OSHA or Occupational Safety and Health Administration requirements in connection with the untimely death of decedent Reynaldo Hernandez-Ortega, following a March 2014 accident at Behr’s plant in South Beloit. Decedent Hernandez-Ortega, 39, was cleaning a discharge pit for a metal-shredding machine when his arm was caught and he was pulled into machinery, the Rockville Register Star reported. Behr's plant recycles items such as refrigerators and cars. Behr Iron & Steel Inc. was cited for one serious and seven willful safety violations by the U.S. Department of Labor’s Occupational Safety and Health Administration following the death in March of a worker at the company’s scrap metal shredding and sorting facility in South Beloit.

A willful violation is committed with intentional disregard for the law’s requirement or “plain indifference to employee safety and health.” A serious violation is determined if death or serious physical harm could result from a hazard an employer knew or should have known exists. According to OSHA, Behr Iron & Steel knowingly exposed Hernandez-Ortega and at least three other workers to highly dangerous equipment with no safeguards during cleaning operations. Hernandez-Ortega and other workers were responsible for shoveling metal scrap material accumulated in a shredder discharge pit onto a conveyer system as part of their cleaning duties. OSHA found when workers entered the pit, the conveyor was running and the OSHA requirement to “lock out” the shredder, or ensure that no energy flowed to the machine, was not being followed.

"This isn't the turn of the century. This should never happen in 2014 in this country," U.S. Magistrate Judge Iain D. Johnston claimed during the sentencing. The company already paid Decedent’s family $268,000 through a workers' compensation settlement and $19,369 in workers' compensation expenses, according to court documents. We cannot find that settlement listed on the IWCC’s website but not it appears very low based on normal exposures/benefits due in an IL WC death claim.

In addition, the company paid $520,000 in fines to the federal Occupational Safety and Health Administration, and agreed to correct 36 safety violations.

If you need assistance defending OSHA claims, Brad Smith of KCB&A is our top defense team member and knows the ropes. You can reach Brad at bsmith@keefe-law.com.

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Synopsis: Short but Sweet Update on Indiana Worker’s Comp from Kevin Boyle, J.D.

Editor’s comment: We were somewhat surprised to hear the IN WC Board has provided notice effective Monday, August 1, 2016, the mileage reimbursement rate is increasing from $0.36 per mile to $0.38 per mile.

If you have questions or concerns on any IN WC claim, please direct them to our IN Defense Team Leader Kevin Boyle, Esq. at kboyle@keefe-law.com.

7-18-2016; Getting One's Mind Around "Causation" in IL WC; Matt Wrigley on Important Traveling Employee Ruling; Brittany Pendry on Review of Must-Read ADA Decision and more

Synopsis: Trying to Get One’s Mind Around The Troubling Issue of “Causation” In IL Workers’ Comp.

Editor’s comment: We had several readers recently bring this issue up and we wanted to give everyone our best thoughts. As you read this, Governor Rauner and the IL State Republican reform forces are struggling to change our IL WC Act to reform the concept of “causation” in this state. Our great Governor’s “Turnaround Agenda” says:

Workers’ compensation is a no-fault system. To recover on a workers’ compensation claim, the employee bears the burden of showing s/he has sustained accidental injuries arising out of and in the course of employment. Currently, if the employment is related at all to the injury, no matter how indirectly, the employee’s injury is compensable. If a work injury aggravates a pre-existing condition even slightly, the employer is 100% liable for the workers’ compensation claim. Twenty-nine states have a higher causation standard than Illinois. Missouri, Kansas, Oklahoma and Tennessee recently passed laws requiring the workplace to be the primary cause for workers’ compensation to be compensable. Florida’s major contributing cause standard is identical to the one we are proposing. Proposal • The causation standard should be raised from an “any cause” standard to a “major contributing cause” standard. The accident at work must be more than 50% responsible for the injury compared to all other causes.  

In our view, the problem with the IL WC Act isn’t the language (or actually the lack of any language) on causation, it is the hearing officers. Again, in our respectful view, if you make the language “major contributing cause,” liberal hearing officers can make any problem at work into a major contributing cause. If you change the language to “predominant cause” or 50% responsible for the injury, liberal hearing officers and our reviewing courts can still find any typical kneel, twist, lift, strain to be the predominant cause or 50% responsible for the injury.

Remember There Are Many Illinois WC Terms/Concepts Made Up and Sometimes Modified By Liberal Hearing Officers and Reviewing Courts

Please note the legal terms “traveling employee” and “odd-lot total and permanent disability” and “risk of the street” don’t appear anywhere in the IL WC Act. The liberal reviewing courts who started these concepts and later changed/expanded or sometimes ended the concepts did so at their whim. They weren’t reviewing any legislation in doing so—there was no legislation to review. These are made-up terms by hearing officers and reviewing courts to supposedly define something in the IL WC arena.

In the last year, for the first time in over 100 years of IL WC history, the shoulder suddenly and without any warning became part of the “body” instead of part of the arm. Literally thousands of earlier and very routine decisions ruled the shoulder was part of the arm. The Appellate Court, WC Division unanimously ruled the dictionary required that outcome, as if the dictionary suddenly changed what an arm is, after over 100 years of the shoulder being part of the arm! We assure our readers most people still think if you punch someone in the shoulder, you have struck then in the bicep muscle that we all feel is part of the arm. Only in Illinois WC does a punch to the shoulder magically mean you have punched them in the “body.”

In Beelman Trucking v. IWCC, the IL Supreme Court, for the first time in IL history, allowed a claimant who clearly was a statutory total and permanent disability claimant to also assert a claim for amputation of one of three limbs, as the complete loss of the first two limbs clearly entitled him to lifetime benefits. As all IL WC benefits are paid weekly, this is the first time anyone ever conceived of the idea of someone being entitled to a weekly benefit for T&P along with a “stacked” weekly benefit for amputation loss. This largesse from our highest court provides the staggeringly high T&P benefits to some claimants along with our staggeringly high amputation values. As we have told our readers, it is hard to be cheap in providing high benefits to someone with what was hopefully a rare but catastrophic injury, as suffered by Claimant in Beelman Trucking but such benefits cause our state to be out of whack when comparing us to our sister states.

As we reported last week in Chlada v. IWCC, for the first time in IL WC history, what we feel is a very liberal IL Appellate Court, WC Division, “stacked” or awarded simultaneous wage loss differential benefits and total and permanent disability benefits for the same claimant. As we have told everyone, it makes literally no sense to us at all how a claimant can get “wage loss” benefits when the Court’s distinguished members agreed claimant will not have any “wages” but will be getting T&P benefits from the same employer. The Court’s members justified this decision because of their unusual view that Claimant’s T&P weekly award would be lower due to the earlier claim. This anomaly makes their award into “total and permanent disability differential benefits.” Again, there is no provision in the IL WC Act which we feel provides for such benefits—in our respectful view, the concept was made up for the first time by this reviewing court—they reversed the IWCC precisely because the Commission’s administrative hearing officers wouldn’t do what the reviewing justices decided to do.

The definitions of all these terms can be changed on a whim because all of isn’t in the IL WC Act or Rules. For the IL WC Appellate Court to blame the change on evaluating shoulder claims from “shoulder” to “body” on the dictionary was unusual to say the least. We assure you no one on the defense side saw that one coming. We can say the same thing about the unusual, unprecedented and sweeping  changes to  made in Beelman Trucking and Chlada, as outlined above.

Looking at the bigger picture, we assure you not one of those WC concepts above are defined or otherwise appear in the IL WC Act. For example, what in tarnation is an “odd lot” as it relates to IL WC total and permanent disability awards. Are there “even lots?” Why and how did this concept start in our courts in the early 90’s and how does IL business and local government make sense of whatever-it-might-be?

In the unusual ruling in Chlada mentioned above, while writing for a unanimous majority, one of our illustrious Appellate Court justices who has been on the WC Division of that court for decades wrote a plea to our legislature asking for guidance, as if the IL General Assembly ever provides guidance to our courts in this arena. For anyone who knows what is happening in Springfield with the General Assembly and our current Governor, almost nothing may happen for the next six years while the Governor and the Democrats fight out the simplest things one can imagine these two branches of government could disagree on. We are confident clarifying unusual judicial rulings aren’t high on the agenda when our legislative and executive branches can’t agree on a plan to fund our schools!

Solid Causation Concepts and Enforcement Need to Come From IL WC Hearing Officers—Forget the General Assembly

Our worry for IL business and local governments is we all might think legislatively changing the causation standard might “work.” Without intending to talk down to you, the proposed causation standard change only works if the hearing officers follow the simple language that you are reading and expect the legal terms to mean what our grade school and high school teachers told us they mean. The defense team at KCB&A would expect the new hearing officers appointed by our Governor to provide a similar outcome but we have years and years of dealing with this silly system and some of the IL WC hearing officers don’t always follow common sense or what you might expect. If you see a current and challenging IL WC causation ruling that makes your head spin—please send it along and we are happy to write about it.

In short, Governor Rauner may not have to change the language of the IL WC Act to effectively change the causation standard, he may need to change the people who are enforcing the IL WC Act to match what we think is common sense. That is the simple point, we are trying to make—causation is common sense. If you aren’t “injured” in an unforeseen work “accident,” you shouldn’t get WC benefits.

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

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Synopsis: A police officer is denied benefits under the Illinois Workers’ Compensation Act for injuries sustained driving his personal vehicle to a mandatory training session in hazardous weather conditions and outside normal workhours. Analysis by Matt Wrigley, J.D.

Editor’s comment: In Allenbaugh v. Illinois Worker’s Compensation Comm’n and City of Peoria Police Dep’t, 2016 IL App (3d) 150284WC (decided July 12, 2016), the Illinois Appellate Court, WC Division upheld a decision of the Peoria County Circuit Court which denied benefits to Petitioner holding the “traveling employee” doctrine does not cover a Claimant injured on his way to or from his normal workplace when he is not performing duties incidental to his employment and when Claimant’s regular work shift was different that day.  

Petitioner was a sworn police officer employed by the City of Peoria (Respondent). Petitioner was ordered to report for mandatory training at police headquarters outside his usual duty hours. Petitioner was directed to bring various items of police gear to the training session. The weather was poor and roads were hazardous.

While en route from home to the training session a motor vehicle struck the left front side of Petitioner’s personal vehicle, which caused injuries to Petitioner’s neck and back. At arbitration Petitioner testified police officers were on duty 24 hours per day. The Assistant Police Chief testified Petitioner was not on duty at all times. 

The Arbitrator found Petitioner sustained injuries which arose out of and in the course of his employment. The IWCC reversed this decision, holding at the time of the accident Petitioner was not responding to a report of unlawful conduct or an emergency. Petitioner was required to travel to and attend training outside his normal duty hours but this was insufficient “to avoid the general rule that an ‘employee’s trip to and from work is the product of his own decision as to where he wants to live, a matter in which his employer ordinarily has no interest.’” At the time of the accident Petitioner was not required to drive a particular route, he was not performing any employment activities, and Respondent did not retain control over Petitioner. The IWCC held the “traveling employee: doctrine does not apply when a Petitioner is simply driving his personal vehicle to his normal workplace for whatever mundane reason.

On appeal to the reviewing courts, Petitioner alleged at the time of the accident he was under Respondent’s control and he was a traveling employee. As the material facts were undisputed and susceptible to but a single inference, the courts ruled their review was de novo. The Appellate Court, WC Division noted “all employees are required to go to work . . . we fail to see how the fact that claimant was going someplace he was required to go for work distinguishes his situation from normal commuting.”

Petitioner proffered no evidence supporting the assertion his obligation to go to the place where he works supports an inference he was within the scope of employment while commuting. The Appellate Court, WC Division noted none of the items Petitioner was required to bring to the training session allowed Respondent to maintain control over him. Further, the Appellate Court, WC Division acknowledged the “traveling employee exception” to the general rule accidents which occur when an employee is traveling to and from work are non-compensable. However, Petitioner failed to establish the fact he regularly drives as part of his job duties brings his commute within the scope of employment. Although he was required to travel to the police station at the time of the accident he was merely driving from his home to the station.

Finally, the Appellate Court noted although Respondent required Petitioner to travel in hazardous conditions “we fail to see how this distinguishes claimant’s situation from that of any other commuter in the northern half of this country.”

This article was researched and written by Matt Wrigley, J.D. Please direct questions or concerns to Matt at mwrigley@keefe-law.com.

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Synopsis: First Things First! Are You Disabled under the ADA? Analysis by Brittany Pendry, J.D.

Editor’s Comment: Recently, the Illinois Appellate Court upheld a Circuit Court’s decision to grant defendant-employer’s motion for summary judgment, finding plaintiff could not meet her burden of showing she was a qualified individual under the Americans with Disabilities Act (ADA). What follows it an assessment of the basics of ADA accommodations in the workplace, and what to expect when an employee files a complaint.

In Plaintiff v. Factory Card & Party Outlet, No. 15-2083 (issued June 13, 2016), the Appellate Court affirmed the Circuit Court’s granting of summary judgment in favor of the defendant-employer. In doing so, the Appellate Court agreed with the Circuit Court in reasoning plaintiff failed to present sufficient evidence to allow a jury to find plaintiff was a qualified individual with a disability under the ADA.

Plaintiff injured her foot at home in March of 2009, and was subsequently off work while she treated with multiple doctors over the course of several months. Plaintiff treated with her first doctor, who said she could return to work without restrictions. After continued complaints, she was taken off work and eventually treated with a second doctor. He permitted her to return to work on July 6, 2009 with no restrictions. She disagreed with this assessment and saw a third doctor, Dr. Fleischli, who said she had no ability to work, and would need to be off until August 15, 2009. During this time period, Plaintiff was off on leave under FMLA, and after using up all of her leave, her employer granted her an additional four weeks. However, Plaintiff’s supervisor advised Plaintiff’s employment would be terminated if she could not return at the end of those four weeks, on July 11, 2009. Her supervisor stated Plaintiff would be eligible for re-hire when she could return to work.

However, Plaintiff contended she had a conversation with Dr. Fleischli, who said she could return to work on July 11, if her foot were in a medical boot. Plaintiff claimed she informed her employer’s Regional Resources Manager of this medical recommendation, and the manager indicated it would not be possible as Plaintiff would need to climb a ladder. Plaintiff also submitted an affidavit asserting these same statements of Dr. Fleischli. However, Plaintiff did not list Dr. Fleischli as a witness, but instead intended to assert her own testimony with regard to what the doctor stated. 

Subsequently, Plaintiff applied for disability benefits through Aetna Insurance, and the company determined she was totally disabled. Subsequently, Plaintiff filed a suit claiming a violation of the ADA by her employer.

In coming to its conclusion, the Court looked to the merits of the summary judgment motion granted by the Circuit Court, and found the Circuit Court was correct in holding “Plaintiff presented insufficient evidence to allow a jury to find that she was a qualified individual with a disability under the ADA.” The Court looked to Section 12112(a) of the ADA, stating discrimination is prohibited against a qualified individual, and defined a qualified individual, pursuant to the Act, as an individual who “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” The Court further stated there is a two-prong test in determining whether a person is a qualified individual, including:

(1) “whether the person satisfied the prerequisites for the position, such as possession of the proper educational background, employment experience, skills, or licenses”; and

(2) “whether or not the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation.”

Plaintiff acknowledged her evidence was limited to her own observations, and while “she stated in her affidavit that Dr. Fleischli had informed her that the use of the medical boot would allow her to return to work by the July 11 deadline, she chose not to present evidence from Dr. Fleischli to that effect.” Therefore, a jury would have been presented with evidence consisting of Plaintiff’s own statements, and while she contends her testimony would be enough to allow a jury to conclude she could perform the essential duties of her job while wearing a medical boot and delegating the task of climbing the ladder, the Court disagreed due to obvious hearsay and trustworthiness concerns with that testimony. 

While the Court admitted a plaintiff does not necessarily have to produce expert testimony in order to demonstrate she is a qualified individual, the need for the evidence depends on the facts of the case, and the Court found the evidence she presented failed to meet her burden.

Employers should have a basic understanding of what the ADA covers, and how it could affect their company. The ADA “prohibits discrimination and ensures equal opportunity for persons with disabilities in employment.” Under the ADA, a disability can be a physical or mental impairment that is so substantial it limits at least one major life activity of a person and there is record of an impairment; or, if the individual is regarded as having a physical or mental impairment. 42 U.S.C. § 12102 (1). A person is regarded as having a mental or physical impairment if that person can establish that she has been the subject of an action that is prohibited under the Act because of a perceived physical or mental impairment, regardless of whether impairment actually limits a major life activity. 42 U.S.C. § 12102 (3).

If an individual is covered under the ADA, no entity can “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112 (a). This includes not making “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.” Id.

The EEOC is responsible for enforcing Title I of the ADA with all employers who have 15 or more employees. Employers are responsible for providing reasonable accommodations to qualified individuals, unless the accommodation would cause undue hardship. If the accommodation causes an undue hardship, the employer must still try to identify another accommodation that will not pose such a hardship, including if there are high costs, whether funding for the accommodation is available. In the event that an employee files an ADA charge with the Commission, the Commission will investigate and initially attempt to resolve the charge through conciliation. The remedies under the ADA can be substantial, including hiring, promotion, reinstatement, back pay, compensatory damages, and attorneys’ fees. Employers should be aware that employees have 180 days to file a charge of discrimination, or 300 days in some states that provide for local or state laws.  

This article was researched and written by Brittany Pendry, J.D. You can reach Brittany at any time for questions about ADA accommodations, defending ADA complaints, EEOC charges, employment law, general liability defense, and workers’ compensation at bpendry@keefe-law.com.

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Synopsis: Short but Sweet Update on Indiana Worker’s Comp from Kevin Boyle, J.D.

Editor’s comment: We were somewhat surprised to hear the IN WC Board has provided notice effective Monday, August 1, 2016, the mileage reimbursement rate is increasing from $0.36 per mile to $0.38 per mile.

If you have questions or concerns, please direct them to our IN Defense Team Leader Kevin Boyle, Esq. at kboyle@keefe-law.com.

7-11-2016; IL Appellate Court Shocks the WC Industry with "Benefit Stacking"; Central IL WC Doc Hit With Contempt Order in Federal Court; OSHA Max Penalties to Skyrocket and more

Synopsis: Hard For the IL WC Defense Industry to Disagree More—IL Appellate Court, WC Division “Stacks” Wage Loss Differential and T&P Benefits.

Editor’s comment: As we advised our readers in this past year or so, the IL WC system is fighting to bring our benefits to the middle of U.S. systems. We expect the results of the State of Oregon every-other-year analysis of workers’ comp premiums to come this November or in four short months. We are certain the folks at the IL WC Commission are doing their level best to make WC decisions/awards and settlements reasonable and fair for all sides. We are also certain our reviewing courts might seem to have missed this message.

We just read what we feel is a somewhat shocking and unprecedented ruling. In Chlada v. Illinois Workers' Compensation Comm'n, decided July 8, 2016, Claimant filed for workers compensation benefits for injuries to his low back sustained in a 1999 work accident. The Arbitrator ordered the employer to pay temporary total disability, temporary partial disability or “maintenance” benefits during rehab. Claimant was working as a beer truck driver when injured and then took a lower-paid job as a warehouseman.

The IL WC Commission affirmed the Arbitrator's decision, but vacated temporary partial or maintenance benefits and awarded wage differential benefits. Claimant sought judicial review of Commission's decision. The Circuit Court affirmed the award but made a mistake in setting the wage differential rate by about $30 a week. The mistake was later corrected.

By 2002, Petitioner suffered another injury to his spine and later became an “odd-lot” total and permanent claimant. The IL WC Commission panel allowed for wage loss during the initial periods of disability and return to work as a warehouseman. When Claimant was adjudicated to be entitled to an “odd-lot” total and permanent award, the IWCC panel cut off the wage loss and allowed only T&P benefits going forward.

Just Because You Can Do Something New Doesn’t Mean It Is A Good Idea

The IL Appellate Court, WC Division ruled the wage loss differential provision in Section 8(d)(1) was created with the purpose of compensating a Claimant for diminished earning capacity caused by a work-related injury. They ruled the fact Claimant subsequently suffered unrelated and more disabling work injury to his neck in 2002 did not alter fact the 1999 back injury reduced his earning capacity. By cutting off wage loss differential benefits and substituting T&P benefits, the Appellate Court ruled the Commission's decision failed to “adequately compensate” Claimant for his first economic injury. For any number of reasons, we strongly dislike when our reviewing courts discuss and judicially enact their version of “adequate compensation.”

The Appellate Court noted Claimant’s wage loss benefits, capped at $485.65 a week plus the “odd-lot” total and permanent disability award, calculated at the lower warehouseman pay, combined to provide what they felt was “reasonable compensation” for Claimant. For the first time in IL WC history, with an WC Act created in 1909, the unanimous majority opinion held nothing prohibits awarding both PTD and wage differential benefits simultaneously and “indefinitely” under these circumstances. In our respectful view, common sense prohibits awarding Section 8(d-1) wage differential benefits to someone who unquestionably isn’t going to have a “differential” to make up on a weekly basis. In our view, the Court’s members are focusing on some altruistic version of “disability” being locked in without focusing at all on the legislative purpose of making an employer pay this benefit. We also feel any academic or legal scholar would appropriately criticize the majority’s use of the term “indefinitely” as it might be viewed as requiring continuing benefits be paid even after Claimant had passed.

It appears Claimant will receive $485.65 plus $862.80 or we can calculate a “base” combined $1,348.45 per week or $70,119.40 on a tax-free basis for life (please remember the word “base.”) Please also note this relatively middle base-amount is due to the fact this decision arises from injuries occurring more than a decade ago in the late 1990’s and 2002. The same award today could require an IL employer to pay as much as the current max of $1,005.80 per week for wage loss and $1,341.07 for a total and permanent disability award. The combined maximum base benefit could be $2,346.87 per week or $122,037.24 on a tax-free basis a year.

So What Happened to ANY Discussion of the RAF or Rate Adjustment Fund?

  Rate Adjustment Fund  

The Appellate Court, WC Division’s unanimous majority opinion was written by Justice Holdridge who we felt was a conservative Republican—we don’t consider this unprecedented decision to be conservative. What it appears may have been missed is any mention indicating Justice Holdridge or the other distinguished members of this appellate body knew there was a “Rate Adjustment Fund” in this state for total and permanent disability claimants. That Fund costs self-insured employers, carriers and local governments millions of dollars each year because it pays out lots of money to eligible workers.

The Rate Adjustment Fund was created to pay cost-of-living increases to individuals who are either permanently and totally disabled or the survivors of fatally injured workers. Individuals who receive awards for permanent and total disability or death benefits are eligible. Benefits are paid each month, beginning on July 15 of the second year after the award is entered by the Commission. Recipients are given an amount equal to the percentage increase in the statewide average weekly wage, as calculated by the Department of Employment Security. Twice each year, self-insured employers, insurance companies, and governmental units pay 1.25% of all workers’ compensation payments, excluding hospital, surgical, or rehabilitation payments, made in the six-month period preceding the payment date.

For our readers who are not familiar with Illinois’ unusual WC “Rate Adjustment Fund,” in this claim, it appears Claimant Chlada will also receive this added and ever-spiraling benefit that is currently going to bump up his weekly T&P benefit about 40.58%. You can find that calculation by looking here http://www.iwcc.il.gov/RAFCALCFY16.xlsx. The weekly T&P benefit of $862.80 above will actually be increased from the fund to the tune of $350.12 per week. To our understanding, this will bring the T&P award to $1,212.92 a week. The combined compensation for a T&P along with the RAF would bring Claimant to almost the amount this appellate decision felt would be “adequate compensation.” When adding that higher amount to the new wage loss diff amount, Claimant will get $1,698.57 a week or $88,325.64 on a tax-free basis. We consider that “more-than-adequate” compensation and remember the weekly amount will continue to go up and up, solely on the dime of Illinois business and local taxpayers.

As we outline above, please note the RAF or Rate Adjustment Fund bumps/increases don’t stop during a T&P Claimant’s lifetime—we assure you they will continue for the rest of Claimant Chlada’s life. If you search the link above, you will note a T&P claimant who started getting such benefits in 1987 or just 29 years ago is now getting double benefits!! That math isn’t going to stop. We note Claimant Chlada is 61 years old as you read this so while the Rate Adjustment Fund is already bumping up his T&P benefits at a current 40% clip, you can reasonably expect he will be at double in another 15 years and triple or more tax-free benefits if he lives to his nineties. We don’t feel any state in the United States provides such WC benefits. We also feel the IWCC panel knew of the RAF and their decision to award just a T&P in this case was predicated on that knowledge.

Don’t Wage Loss Benefits Assume One Has “Wages” That Are Being “Lost?”

As a final thought, we also feel the unanimous majority’s assertion their unprecedented view of this “benefit-stacking” issue needs to be addressed by the legislature is also a proper subject of respectful academic criticism. We feel the IWCC panel noted Claimant Chlada, once being provided total and permanent disability benefits would no longer have wages. To award “wage loss” benefits to someone who is never going to work again but live off the insurance carrier or self-insured employer makes literally no sense to us in a setting where the same benefactor is paying the worker tax-free benefits for the rest of his/her life and also contributing lots of money to the RAF to insure the benefit levels stay even with inflation.

What is Coming Soon to Serious IL WC Claims Near You

Now we hate to tell you but we are sure you can assume the entire Plaintiff-Petitioner bar is going to teach/coach and educate all current and future claimants to try to take advantage of these new and unprecedented “stacked” wage loss/total and permanent disability awards. Every guy or gal who is getting TPD is going to want wage loss and then “stacked” T&P benefits.

If you want thoughts on how to stop/defend such claims, send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: A federal judge in Springfield holds a Normal, IL doctor in contempt of court for misleading testimony about his credentials during a May federal trial.

Editor’s comment: The trial ended with a $300,000 jury verdict in favor of a prison inmate who claimed he received poor medical care at Taylorville Correctional Center. The case, however, has lived on as U.S. District Court Judge Sue Myerscough is demanding answers from Dr. Dru Hauter, a defense expert who presented himself as board-certified during the jury trial and filed a curriculum vitae with the federal court stating he held board certification.

“Are you board certified in any areas?” Michael Kokal, defense attorney, asked Hauter at the beginning of the doctor’s testimony.

“I’ve been board certified in internal medicine,” Hauter answered. “I’ve also been certified by the American Board of Independent Medical Evaluators.”

However, Dr. Hauter’s board certifications expired – records at the Illinois Department of Financial and Professional Regulation show his board certification for internal medicine ended in 2013. Judge Myerscough grew suspicious during a lunch break midway through the doctor’s testimony. When court reconvened, she announced outside the jury’s presence she’d been told by an attorney not connected with the case Dr. Hauter wasn’t currently certified as a medical evaluator and asked the doctor if that was true. Hauter answered he didn’t hold board credentials as a medical evaluator or in internal medicine.

Under questioning from Judge Myerscough during last month’s trial, Hauter said he had once been board certified in internal medicine but twice failed board exams, once in 1991 and again in 2013. The federal judge called Hauter’s testimony about his credentials misleading, “if not an outright lie,” and she warned both the doctor and Michael Kokal, attorney for the defense, they were both in trouble.

After the verdict came in, Judge Myerscough ordered Kokal to file an accurate resume for Dr. Hauter that included all current certifications for the physician as well as the dates of any lapses. Kokal subsequently filed a resume, but Myerscough wasn’t satisfied with the document, which included years but not specific dates showing when board certifications were granted and when they ended. The new resume also didn’t include dates showing when certifications had lapsed. Myerscough ordered the lawyer to file an updated resume with that information prior to the hearing set for July 7 in which she will hear testimony on whether the doctor should be held in contempt.

If you check out this link from this year, you will note it indicates Dr. Hauter continues to hold board-certification to conduct IME’s-- http://www.iwirc.biz/staff/dr-dru-hauter-md-cime-mro/

We were advised Judge Myerscough held Dr. Hauter in civil contempt of court. He was given ten days to respond to her finding. We will continue to report developments.

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Synopsis: Gotta Love the Anti-Business Zealots at OSHA—Maximum Fines to Go Up 78% in Three Weeks.

Editor’s comment: The U.S. Occupational Safety and Health Administration on Aug. 1 will increase the maximum penalty for serious violations from $7,000 to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709. The maximum penalties have not been increased since 1990, and the U.S. Department of Labor said the move is intended to modernize penalties that have lost ground to inflation.

“Civil penalties should be a credible deterrent that influences behavior far and wide,” U.S. Labor Secretary Thomas Perez said in a statement. “Adjusting our penalties to keep pace with the cost of living can lead to significant benefits for workers and can level the playing field (for) responsible employers who should not have to compete with those who don’t follow the law.”

But the Center for Progressive Reform wants OSHA to take things a step further. This anti-business organization has asked OSHA to establish national guidelines to discourage the agency’s area offices from informally settling cases by slashing penalties. They assert the practice has resulted in a substantial reduction in the amount of fines assessed. In 2012, for example, penalties resulting from fatality investigations at private companies were reduced by a total of $1.28 million from the original citation amounts, the organization said in a report released June 30. The group is especially concerned about reduced-fine settlements in cases involving what it calls “unconscionable violations,” such as those involving trench collapses, machine guarding, or hospitalizations or fatalities.

OSHA’s area offices routinely negotiate with employers to reduce penalties assessed on safety citations in exchange for the employer taking prompt action to correct the safety hazard. In the absence of a settlement, the employer can contest the citation and delay abatement of the hazard, the organization said. The organization also would like to see OSHA use the settlements to encourage employers to take steps beyond abating specific safety violations, for example by developing safety plans or undergoing third-party safety audits. CPR also wants workers to be more involved in the settlement process, and suggested OSHA reach out to them using modern communication methods such as email or text messages rather than just citation notices posted in a break room.

Many employers have been expecting OSHA to increase its maximum penalties and aren’t overly surprised by this move. Veterans know even though the maximum penalties are increasing, OSHA doesn’t necessarily assess the maximum fines for safety violations. OSHA’s increased maximum penalties may apply to citations for alleged violations occurring as far back as Feb. 1, under a six-month statute of limitations.

Our KCB&A law partner Brad Smith heads our OSHA team and recommends employers immediately begin correcting any safety violations or hazards identified during an inspection, even if they plan to challenge the citation. Doing so shows your company is acting in good faith and failure to correct the hazards could result in higher penalties, all the way up to the new maximum.

If you need advice and counsel on OSHA issues, send a reply or contact Brad directly at bsmith@keefe-law.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.