8-28-2017; Tiny IL WC Insurance Carrier Law Vetoed by Gov Rauner--Whew!; Important PTSD Ruling with Analysis by Tim O'Gorman JD; OSHA Update and more

Synopsis: Creation of Tiny IL State WC Insurance Company Vetoed by Gov. Rauner—Opposition Promises Fight to Override For Reasons Known Only to Them.

Editor’s comment: Gov. Rauner was busy last week taking action on several pieces of legislation—he has to veto the ones he dislikes to avoid them automatically becoming Illinois law.

The bill of most interest to the IL WC community was HB2622. HB2622 (sponsored by Fine/Biss) was vetoed by Gov. Rauner in its entirety. This weird proposed IL WC “reform” measure would use IL employer and insurer fees set up to fund the IL WC Commission to capitalize the creation of a state established, mutual insurance company to compete with the over 300 insurers that already provide workers' compensation coverage in this State. As I have advised my readers in the past, this whole concept started with ITLA or the IL Trial Lawyers Ass’n claiming the problem with IL WC isn’t high benefits, the problem is profit-scrounging insurance carriers. Someone at ITLA started the odd story to claim the internationally focused, multi-zillion dollar insurance companies somehow hoard more profits in IL than they do in other states—the factual basis for this unusual claim comes from a Ouija Board, Crystal Ball or Witch’s Cauldron. Obviously, the ITLA team and the legislators that report to them feel this completely unfounded public relations concept sells to the media and innocent public.  

I truly don’t understand how the funding would work. The $10 million of startup insurance carrier money would be a one-time check taken from the levy on self-insured employers and insurers that currently goes to operate our IL Workers' Compensation Commission. The legislation provides that the funds are a "loan" to be paid back with interest. Even as a loan, I am unsure how one-third of the IWCC funding could be immediately severed out for this odd purpose and not cause complete havoc with their payroll and operations. They have about 150 employees and, in my view, would have to lay off about 50 workers due to this House Bill. If you have some idea how they can do this and not disrupt operations, please let me know.

Lots of folks have commented about the abysmal track record of our State regarding any effort to operate in an appropriate manner, particularly involving finances. You can also point to the IL State Workers’ Comp claims management program as one that can and should be improved with system-wide cost-cutting. I am unaware of any other agency of IL State Gov’t that operates a private and competitive business. I am sure they are not set up to do so with the hilarious level of overcompensation and impossible-to-fund benefits all IL State employees receive. In short, this tiny “low-profit” IL WC insurance carrier, if it ever actually was funded and the work started, would almost certainly fail in weeks or months. In my view, the goals of this legislation will never and can never be met.

The IL State Chamber, myself and others feel it is difficult to believe the loan would be ever be paid. One has to also wonder if the legislature would keep funneling more money to this stupid and unsupportable venture. The IL State Chamber and I also feel removing money meant to support the Commission jeopardizes the entire adjudication of workers' compensation for both injured workers and IL employers. I join with our State Chamber and strongly support Gov. Rauner's veto. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: IL WC PTSD Claim Fails Due to Treatment Delay, Analysis and Research by Timothy O’Gorman, J.D.

Editor’s comment: We salute the Arbitrator, Commission panel and the Appellate Court ruling. In RPRD Dykman, Inc. v. Illinois Workers’ Compensation Commission, Claimant was an over-the-road truck driver who witnessed a horrific accident en route to making a delivery. Claimant was driving truck northbound on I-57 when a fellow truck driver (according to the police report) instigated a crash which resulted in a fatality. Claimant continued to work and drive for six months subsequent to the incident however eventually sought treatment with a psychiatrist when he no longer felt able to continue driving due to PTSD or post-traumatic stress. In claims such as this, we always point out there is no reason a truck driver couldn’t transition to logistics or desk work, with his training and background as a trucker. There are literally thousands of such jobs in the Illinois labor market. Obviously, this Claimant simply wanted to go on the dole, like most PTSD claimants.

Claimant testified he felt “in shock,” “sick” and “horrified” from what he witnessed at the scene of the incident. Claimant did not treat with anyone until 6 months after the occurrence. Claimant also failed to return to work as a truck driver subsequent to his treatment and began performing a failed job search, alleging he could not return to work in his pre-injury employment capacity.

After evidence was taken, the Arbitrator found Claimant did not meet the burden of proof required to establish a compensable psychological injury under Pathfinder v. Industrial Comm’n, relying mainly on another similar ruling in General Motors Parts Division v. Industrial Comm’n, which interpreted Pathfinder as being “limited to the narrow group of cases in which an employee suffers a sudden, severe emotional shock which results in immediately apparent psychic injury…” (emphasis added). In Pathfinder, a supervisor was next to a worker whose hands were traumatically amputated—the supervisor suffered immediate psych issues, as one might imagine. We have no idea why someone would fight work-related psych care for that shocking event.

In this ruling, the Arbitrator essentially created 2 elements necessary for proving a compensable injury in its review and application of General Motors:

1. A sudden, severe emotional shock
2. Immediately apparent and lasting psychic injury

The Arbitrator found Claimant clearly may have suffered a sudden and severe emotional shock, however the six month delay in treatment failed to appropriately establish an “immediately apparent psychic injury,” as required by IL WC law.

A Petition for Review was timely filed along with a motion to cite authority asking the Commission to take judicial notice of the Appellate Court’s decision in Chicago Transit Authority v. Workers’ Compensation Comm’n, an opinion rendered subsequent to the Arbitrator’s decision however prior to the Commission’s decision.

The Appellate Court, WC Division in Chicago Transit Authority may have ended the absolute necessity that a “immediately apparent psychic injury” be proved. Claimant in Chicago Transit Authority was a bus driver who was involved in a fatal accident. He was able to easily establish a sudden, severe emotional shock, did not seek psychiatric treatment until two months after the alleged incident.

In this claim, the Appellate Court distinguished Chicago Transit Authority from General Motors on the basis of a gradual development of psychic injury in the latter, rather than a single identifiable incident. The Appellate Court in Chicago Transit Authority noted

Under Pathfinder, the emotional shock needs to be “sudden,” not the ensuing psychological injury. Thus, if the claimant shows that she suffered a sudden, severe emotional shock which caused a psychological injury, her claim may be compensable even if the resulting psychological injury did not manifest itself until sometime after the shock. To the extent that General Motors holds otherwise, we reject that aspect of the court's holding and decline to follow it.

The Commission then rendered a decision affirming and adopting the decision of the Arbitrator however provided no comment on the application of the decision in Chicago Transit Authority.

The case was appealed to the Circuit Court which found the Commission’s failure to address the apparent change in case law

1. Allowed for a de novo reviewing of the case and

2. Resulted in an incorrect application of case law to the facts.

The Circuit Court reversed the decision of the Commission and directed the Commission to award benefits. The Commission issued a decision awarding 5% of a person as a whole and 34-5/8 weeks of TTD, refusing to award Claimant wage differential benefits. Claimant and Respondent appealed whereupon the Circuit Court affirmed the decision of the Commission and ultimately resulted in an appeal to the Appellate Court, WC Division.

The Appellate Court answered the question of whether benefits are owed in this instance by stating correctly, “we don’t know.” The Appellate Court pointed to the one judicial body to make the controlling ruling: the Illinois Workers’ Compensation Commission. The Appellate Court found the Circuit Court, in remanding the matter back to the Commission with directions to award benefits improperly supplanted the function of the Commission in finding certain facts to be true. The Appellate Court agreed the Commission’s simple adoption of the Arbitration decision was an improper application of law in failing to address Chicago Transit Authority. However the Appellate Court felt the remand should not have included directions to award benefits. Instead, the Circuit Court should have remanded the issue back to the Commission with instructions to simply address the new case law and come to a conclusion itself.

The question of whether benefits should be awarded to a truck driver who claims to have suffered an unexpected and severe shock but then waits six months to treat for a psychic injury is still unclear. The defense team at KCBA will be watching intently to see if six months is “immediately apparent” enough to warrant an award of benefits.

This article was researched and written by Timothy O’Gorman, JD. Tim is a top-notch defense expert and can be reached at togorman@keefe-law.com.

Synopsis: OSHA Update for WC Industry.

Editor’s comment: As expected under the new Administration, potential regulatory action from OSHA has been cut by more than half, according to the U.S. Department of Labor's updated agenda released July 20, 2017.

The report, typically published twice a year, lists the status of and projected dates for all OSHA regulations. The updated agenda lists 14 OSHA regulations in three different stages – pre-rule, proposed rule and final rule – compared with 30 on the fall 2016 agenda. Overall, 469 proposed federal regulations have been withdrawn and a combined 391 have been reclassified as “long-term” or “inactive” to allow for “further careful review.”

“This agenda represents the beginning of fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burden on the American people. By amending and eliminating regulations that are ineffective, duplicative and obsolete, the administration can promote economic growth and innovation, and protect individual liberty,” the agenda's preamble states.

President Donald Trump signed an Executive Order on Jan. 30 requiring federal agencies to cut two regulations for every new one that is proposed. The White House published a guidance memo three days later clarifying that the Executive Order would apply only to those regulations with a proposed cost of $100 million or more.

The Natural Resources Defense Council, fellow watchdog organization Public Citizen and the Communications Workers of America labor union filed a lawsuit on Feb. 8, claiming the order “directs federal agencies to engage in unlawful actions that will harm countless Americans.”

Only one OSHA regulation, Standards Improvement Project IV, is listed as being in the final rule stage, in part because the Occupational Exposure to Beryllium final rule was moved back to the proposed rule stage on June 27. Under the new administration, OSHA is seeking to remove specific provisions regarding worker exposure in construction and shipyard industries. The final rule on beryllium went into effect May 20. In the interim, OSHA stated it is not enforcing it in the two industries and is seeking comments on its new proposal until today.

President Trump also signed a Congressional Review Act resolution on April 4 to strike down the “Volks” rule, which was published in December 2016. That regulation allowed OSHA to issue citations for inadequate injury and illness recordkeeping for five-and-a-half years instead of the current six-month statute of limitations. In May, five members of Congress introduced the Accurate Workplace Injury and Illness Records Restoration Act, which would reinstitute the “Volks” rule, but that bill remains in committee.

Removed from the regulatory agenda:

·         Blood borne Pathogens

·         Combustible Dust

·         Preventing Backover Injuries and Fatalities

·         Revocation of Obsolete Permissible Exposure Limits (PELs)

·         1-Bromopropane (1-BP) Standard

·         Noise in Construction

·         Occupational Exposure to Styrene

·         Updating Requirements for the Selection, Fit Testing and Use of Hearing Protection Devices

Now listed under “long-term” actions:

·         Update to the Hazard Communication Standard

·         Amendments to the Cranes and Derricks in Construction Standard

·         Process Safety Management and Prevention of Major Chemical Accidents

·         Shipyard Fall Protection – Scaffolds, Ladders and Other Working Surfaces

·         Emergency Response and Preparedness

·         Infectious Disease

·         Tree Care Standard

·         Prevention of Workplace Violence in Health Care and Social Assistance

·         Occupational Injury and Illness Recording and Reporting Requirements – Musculoskeletal Disorders (MSD) Column

·         Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records

“In his first speech as President of the United States, Donald Trump pledged that every decision he made would be to benefit the nation's workers,” Christine Owens, executive director of the National Employment Law Project, said in a July 20 statement. “The administration's Spring Regulatory Agenda reflects yet again just how hollow the president's promise has been.”

Along with the rulemaking on beryllium, proposed rules carried over from fall 2016 or added to the agenda include:

·         Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection

·         Crane Operator Qualification in Construction

·         Cranes and Derricks in Construction: Exemption Expansions for Railroad Roadway Work

·         Technical Corrections to 16 OSHA Standards

·         Puerto Rico State Plan

·         Tracking of Workplace Injuries and Illnesses

·         Improve Tracking of Workplace Injuries and Illnesses

Five regulations remain in the pre-rule stage, a decrease from 16 this past fall: Communication Tower Safety, Mechanical Power Presses Update, Powered Industrial Trucks, Lock-Out/Tag-Out Update, and Blood Lead Level for Medical Removal.

Much of the agency's Walking-Working Surfaces and Personal Fall Protection Systems final rule, issued in November 2016 under the Obama administration, went into effect in January 2017, and three of its six remaining provisions are scheduled to be phased in by the end of this year.

Source: National Safety Council.

If you need help with any matter involving OSHA, send a reply.

8-21-2017; IL WC Arb's have a Crucial Role In this System; Robert E. Falcioni, RIP; Important "Repetitive Working" Claim Reviewed by Tim O'Gorman JD; KCB&A Welcomes Attorney Richard Zenz and more

Synopsis: IL WC Arbitrators Have a Crucial Role in This Benefit System--Former IL WC Arbitrators’ Federal Claim Dismissed by Seventh Circuit Federal Appellate Court.

Editor’s comment: It was great to hear names of some of our top hearing officers from years past. Former Arbitrators Kathy Hagan, Richard Peterson, John Dibble (now deceased) and Peter Akemann were named in the federal ruling. Sadly, they lost badly on just about every legal point.

We do feel the ruling is illustrative of the important role of our Arbitrators—we feel Governor Rauner (or his team) can and should meet with the current IL WC Arbitration staff to reinforce his message of bringing IL WC costs into the mainstream of U.S. work comp systems.

In Hagan v. Quinn, No. 15-1791 (issued August 14, 2017), the Federal Appellate Court ruled the District Court did not err in dismissing a Section 1983 action filed by Plaintiffs-Former Arbitrators of Illinois Workers' Compensation Commission, alleging Defendant-Former-Illinois-Governor Pat Quinn and others violated Plaintiffs' First Amendment rights by failing to reappoint them as IL WC Arbitrators in retaliation for Plaintiffs' filing of due process lawsuit that challenged imposition of House Bill 1698, which reformed workers' compensation statute and terminated their 6-year appointments as arbitrators.

The Federal panel ruled our IL Governor could properly decline to reappoint Plaintiffs to their positions, where:

(1)  Plaintiffs were policy-makers within workers' compensation statutory scheme;

(2)  As policy-makers, Plaintiffs could be terminated/not reappointed for engaging in speech on matter of public concern in manner that is critical of their supervisors or their policies; and

(3)  Former Governor Quinn could appropriately view Plaintiffs' underlying due process lawsuit as attempt to undercut his policy calling for workers' compensation reform.

Our favorite and most illustrative quote from the decision is:

Illinois workers’ compensation arbitrators are not and never have been ministerial employees. They exercise substantial discretion in adjudicating employer/employee disputes and may participate in rulemaking to the extent they serve on the Workers’ Compensation Commission. As adjudicators, they are also gatekeepers.

While the Illinois legislature enacted the state’s workers’ compensation scheme, as a practical matter it is the arbitrators who resolve conflicts over which employees should and should not benefit from this important state program. Over time, the decisions of the arbitrators, which are appealable to the Workers’ Compensation Commission and ultimately to the state courts, shape the direction of Illinois policy as it relates to workers’ and employers’ rights.

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

Synopsis: Arbitrator Robert Falcioni, Rest in Peace.

Editor’s comment: Robert E. Falcioni, age 60 of Monee, formerly of Chicago Heights, Illinois passed away on August 16, 2017.

Robert graduated from Kent College of Law, receiving a Juris Doctor Degree (JD). He worked for the State of Illinois for the past 23 years, first as a staff attorney and later Arbitrator for the Workers’ Compensation Commission.

He was an avid power lifter, receiving many awards; he had a passion for gardening and spending time with his two sons.

Bob Falcioni was a tough, highly professional and fair hearing officer. The members of our KCB&A defense team appeared in front of him at hearings on a regular basis. We assure our friends and readers he left all of us too soon and will be greatly missed for his humor and judicial demeanor.

Visitation Today, August 21, 2017 from 2:00PM to 8:00PM at Kerr-Parzygnot Funeral Home 540 Dixie Hwy. (at Joe Orr Road), Chicago Heights, IL 60411.

Funeral Mass at 10:00AM tomorrow at St. Mary Catholic Church, 227 Monee Road, Park Forest, Illinois. For info call (708) 754-0016. http://kerr-parzygnotfuneralhomes.com

Synopsis: IL Appellate Court, WC Divisions Upholds Excellent IL WC Commission decision Denying WC Benefits in “Repetitive Working” Death Claim. Research and analysis by Timothy O’Gorman, JD.

Editor’s comment: In Toon v. Illinois Workers’ Compensation Commission, Decedent was a “Lull” or forklift operator whose widow alleged his stomach rubbed up against the steering wheel with such frequency, it caused abdominal cellulitis. From the IWCC website, it appears the date of death was January 28, 2010.

At hearing, Decedent’s widow was allowed to describe Decedent’s daily routine explaining his work outfit/clothing and daily work routine with great specificity. Decedent’s friend also testified to the size of Decedent, explaining his experience in viewing Decedent inside the large forklift, an example image is included for description purposes.

In defense of the claim, Respondent’s safety manager testified, describing the ordinary use of a Lull and providing photographs and video of men who were allegedly the same size as Decedent operating the Lull without any part of their stomach in contact with the steering wheel. Respondent’s safety manager also testified the mechanics of using the lull, including operating the machine with the steering wheel knob, would be extremely difficult if an employee’s stomach constantly sat on top of the steering wheel. Both Respondent’s safety manager and Decedent’s friend confirmed Decedent never described having any difficulty or apparent dysfunction operating the Lull.

Not only was the mechanics behind Decedent’s use of the Lull in dispute, but the nature of Decedent’s untimely and tragic passing brought diametrically different diagnoses from two doctors/medical experts. Dr. Kolli, Decedent’s primary care physician, testified to Decedent’s numerous co-morbidities. Dr. Kolli confirmed Decedent first became a patient to establish care for a heart condition, emphysema, high blood pressure, high cholesterol, arthritis, GERD, allergies and anxiety. Dr. Kolli testified Decedent’s description of his work activities, including repeated abdominal contact between the steering wheel and his stomach, were based on a history rendered by Decedent himself.

Respondent’s Section 12 expert was infectious disease expert, Dr. Stephen Schrantz. Dr. Schrantz provided an expert opinion after reviewing Decedent’s medical records, Dr. Kolli’s deposition and employee-interview summaries. Dr. Schrantz is board-certified in internal medicine and came to the conclusion it was medically and scientifically impossible to confirm Decedent’s death was caused by his stomach being in contact with the Lull’s steering wheel, as claimed by the widow. Instead, Dr. Schrantz felt the much more plausible conclusion was Decedent’s passing was instead caused by the myriad of disparate health problems he suffered from—they are listed in the paragraph above.

After all evidence was entered, Arbitrator Gallagher provided a decision Decedent’s untimely death was caused by the repeated rubbing of the steering wheel to Decedent’s stomach however upon review, the Commission reversed. The case was timely appealed to the Circuit Court where the decision of the Commission was set aside and benefits reinstated. The Appellate Court, WC Division, properly applying the “manifest weight of the evidence standard,” reinstated the denial of the Commission. We salute the august members of the Appellate panel for this solid ruling.

The IL Appellate Court, WC Division found the Commission’s inferences/determinations:

·         Plaintiff’s expert Dr. Kolli’s testimony was speculative (as Dr. Kolli never viewed Decedent in the Lull)

·         Respondent’s safety manager was more credible than Decedent’s friend (as they found it was “highly improbable that Decedent would have been able to perform his job if the steering wheel, or the knob, or his hand was continually in contact with and rubbing his stomach”) and

·         Decedent’s use of the lull would have not been smooth as described by both his friend and Respondent’s operations manager (as his stomach and/or hand would have been in the way)

were reasonable. These reasonable inferences, coupled with the fact Decedent’s abdominal sores were only visible when the pant line was pulled down, led the Commission to conclude it was more likely than not Decedent’s sores were caused by his clothing rubbing against his abdomen. As the Appellate Court, WC Division is supposed to do, the Commission’s decision was upheld on a “manifest weight of the evidence” basis.

It must be noted the Appellate Court’s and Commission’s findings were solely analyzed from the perspective of whether Decedent’s stomach actually rubbed up against the lull’s steering wheel. There was no analysis of quantitative or qualitative risk as the Commission determined Decedent’s stomach was not rubbing against the steering wheel. Had the Commission found Decedent’s stomach was in constant contact with the steering wheel, we imagine the case would have resulted in an opposite conclusion on the basis of a quantitative/qualitative risk analysis and we encourage all safety/risk managers and claims handlers to do their best to identify these types of risks and minimize employees’ exposures to them. This article was researched and written by Timothy O’Gorman, JD. Tim is a top-notch defense expert and can be reached at togorman@keefe-law.com.

Synopsis: Keefe, Campbell, Biery & Assoc welcomes Attorney Richard Zenz to our Defense Team.

Editor’s comment: We proudly announce the hiring of Mr. Zenz who was first licensed to practice law in Illinois in 1981. Virtually all of his entire legal career has been focused on the defense of major Illinois employers and insurance carriers. He brings a calm, veteran approach to fighting, defending and sometimes settling demanding IL WC claims.

Attorney Zenz was the lead defense attorney in the appeal leading to the 2012 Appellate Court WC Division ruling in Supreme Catering v. IWCC. He can be reached at rzenz@keefe-law.com.

8-15-2017; IL WC Arbitrator Shuffle Begins--Am I the Only Republican in the IL WC Industry?; 3 Rule 23 Decisions for the Defense Industry to Note; Kevin Boyle with New IN WC Rule and more

Synopsis: IL WC Arbitrator Shuffle Begins!—Is Gene Keefe the Only Republican in the WC Industry in Illinois?

Editor’s comment: The IL WC Commission abounds with gossip and silliness that we can’t confirm. My Secret Squirrels are telling me, again I can’t confirm, there are about six, count ‘em, six different Arbitrators being shown the door. I was hoping against hope the Governor and IWCC managers were cutting staff and trying to save IL business money.

Not so fast, not so fast!!!

As rapidly as we learn the termination of six sitting IL WC Arbitrators might save your company and mine about $700K in fees/taxes or whatever you call the IWCC Operations Fund, we then learned they are replacing some or all of the departing Arbitrators so the savings may be illusory. I salute the soon-to-be-departing Arbitrators and confirm they are all extremely solid, professional and well-versed in our IL WC Act.

The IL WC Operations Fund can be viewed online at Illinois Compiled Statutes, Ch. 820, Para. 305, Sec. 4d; Ch. 215, Para. 5, Sec. 416. This IWCC Operations Fund was almost secretly created in 2003 by the Blago Administration to pay for the administrative costs of the agency and take the cost out of our State’s General Revenue Fund. As soon as that happened, administrative costs skyrocketed without any objection from the defense industry, other than me. I haven’t seen any movement by Governor Rauner, the Illinois State Chamber, the IL WC Self-Insurers’ Ass’n, the IL Manufacturer’s Ass’n or any other entity to attack and cut this levy that is now $30M a year or more.

How the IL WC Operations Fund Assessment Occurs

·         IL WC Insurance carriers:  Each year, the Illinois Department of Insurance (IDOI) collects a 1.01% surcharge on workers’ compensation insurance premiums from insurance carriers.  It sends out an assessment letter each July.  Payment is due 30 days after the assessment is sent.

·         Self-insured employers:  Each year, the IWCC collects an assessment of .0075% of total IL payroll from self-insured employers.

Duh, if you cut the administrative costs of the IWCC, you and I can cut this punitive assessment on our biggest and smallest employers.

Is Gene Keefe the Only Republican in the WC Industry in Illinois?

I am a strong opponent of too much government in this nutty State. Sometimes, that makes me feel like a loner. I think normal people are in denial and don’t believe the State of IL has at least a quarter of a trillion in debt.

I am happy to confirm our State used to have about 75,000 new IL WC claims being filed each year—that occurred about fifteen years ago. Today, there are something like 40,000 new claims being filed—an amazing improvement. These aren’t my numbers—take a look at the IWCC’s annual reports that remain online at http://www.iwcc.il.gov/annualreport.ht

If you do the math or review the IWCC annual reports from the last Republican administration prior to Governor Rauner, our State had about 15 Arbitrators and six Commissioners who were able to handle over 225,000 pending IL WC claims. The IWCC budget was around $9M. Under the Blago Administration, the cost of the IWCC tripled to over $30M and that amount has never been adjusted for the dramatic drop in new claims.

Now, there are less than 125,000 pending IL WC claims. IL WC claims still move as slow as snails on opioids. Our Governor is Republican and the IWCC Chairperson is Republican and the IWCC budget hasn’t been cut a dime. For reasons I don’t understand, we have around 30 Arbitrators and 9 Commissioners and our plucky Chairperson meaning we have 40 hearing officers. None of our sister states have anything like that number—as one example, cheap-o Indiana to our east has just five such hearing officers.

The annual cost to IL business of those combined hearing officer salaries are well over $4M. The cost of those same folks with their fake “defunded” government pensions and lifetime healthcare will be double or triple (or more of) that cost to you, your kids and grandkids.

I suggest if we are cutting six Arbitrators, let them go and don’t replace them. Please don’t stop with that concept at the IL WC Commission. I am asking Governor Rauner and all IL business groups to start to act conservatively and cut the size and cost of IL Gov’t. In a state awash in billions and billions of red ink, start to cut not just the IWCC but all 88 IL State agencies. The tax dollars we save may be our own.

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

Synopsis: Three Rule 23 IL WC Claims of Note.

Editor’s comment: These recent rulings were all filed under IL Supreme Court Rule 23, are oddly considered “non-published” and may not be cited as precedent except in limited circumstances allowed under Rule 23(e)(1). We consider every ruling to be solid and have no true idea why our IL Appellate Court, WC Division files so many “non-published” rulings that are actually “published” on their website.

1.    Mitchell v The Illinois Workers’ Compensation Commission

Claimant Mitchell worked as a laborer where she removed dust and debris, vacuuming carpets, washing windows and floors and preparing residential units for occupancy. Claimant also served as a union steward where she was responsible for verifying the laborers on the job were members of the local union.

The issue became whether Claimant was engaged in union activities or her normal employer’s business at the time of injury.

There is no dispute Claimant left her regular job site to go investigate whether other workers in an adjacent building were members of the union. On her way back to her regular job site, as she was walking up a pathway to the door and slipped on a patch of ice and struck her left knee against the pavement. Claimant claimed she informed and received permission from a supervisor she called “Trish” to leave the job site, but other evidence established there was an employee by that name who worked for Respondent.

The Arbitrator and the Commission both held Claimant was engaged in union business at the time of the accident and therefore, the injury did not occur in the course of her employment with her regular employer. The IL Appellate Court, WC Division agreed the record contained enough evidence to support the Commission’s decision and by embarking on a purely union related errand that was not incidental to her regular employment, Claimant engaged in a deviation removing her from the course of her employment. Because she had not yet entered her assigned building and resumed typical employment duties, Claimant had not returned to the course of employment when the injury occurred. Although Claimant may have been on her way back to the job site, she had not completed the deviation from employment duties to perform union business.

2.    Douglas Yager v The Illinois Workers’ Compensation Commission

Claimant worked as a “slitter operator” and was responsible for loading, unloading, and operating such machines. Claimant testified while performing his duties, he experienced a sharp pain in his lower back, which he attributed to “repetitive lifting, bending and twisting.” After his shift, Claimant went to the locker room to change. Upon sitting down, Claimant alleged he experienced another sharp pain in his lower back which traveled to his right leg and made it “almost impossible” for him to change his clothes.

Claimant visited three doctors and was ultimately diagnosed with a disk herniation and congenital lumbar stenosis. The doctors noted Claimant reported he experienced a sharp pain in his low back when changing his clothes in the locker room. Claimant completed an accident report, noting the same history.

The IL WC Arbitrator and Commission found Claimant was not in the course and scope of his employment when simple changing his clothes.

The IL Appellate Court, WC Division felt the question became whether Claimant proved a repetitive trauma injury or whether the incident fell within the purview of the “personal comfort” doctrine. The Commission and Appellate Court both held the evidence did not support a repetitive trauma claim, given Claimant reported he first experienced pain in the locker room, while changing out of his uniform at the end of his shift.

The Court held, even assuming the “personal comfort” doctrine applied in this case, the doctrine does not obviate the requirement an employee prove the injury in question arose out of a risk incidental to the employment. For an injury to be considered as arising out of the employment and be compensable under the Act, the employee must have been exposed to the risk greater than that of the general public.

Here, Claimant’s injury occurred while he changed his clothes with the act of merely sitting down. Neither the act of sitting down, nor the act of changing clothes was unique to Claimant’s work as a machine operator. The Court held Claimant was exposed to no greater risk than that to which the general public is exposed. The risk was neutral and therefore the injury did not occur in the course of the employment.

The defense team at KCB&A is the top firm on defending “repetitive working” claims such as this—if you are facing such a claim, give us a call!

3.    City of Springfield v Illinois Workers’ Compensation Commission

Claimant worked as a lineman for the city’s Water, Light, and Power Division. Claimant testified his duties included grasping meters, tools, lineman pliers, and cable when pulling and performing other job tasks. Claimant alleged he developed bilateral carpal tunnel syndrome and left ulnar neuropathy due to repetitive trauma.

The treating physician opined Claimant’s condition was causally related to his work duties, while Respondent’s IME physician opined there was no causal connection between the work duties and the claimant’s condition of ill-being, as the degree of force and repetition in the work activities did not meet the criteria of the American Medical Association Guide to Evaluation of Disease and Injury Causation.

While the Arbitrator found Claimant proved a causal connection between his condition of ill-being and the work activities, the Commission disagreed and reversed. The Commission found Claimant lacked candor when testifying to his job duties and his reliance on the job description of a lineman and description of the tools used was “disingenuous.” The Commission found neither were indicative of Claimant’s actual activities/duties at work. The Circuit Court then reversed the decision of the Commission, reinstating the Arbitrator’s decision.

The IL Appellate Court WC Division affirmed the Commission’s decision, noting once again it was the province of the Commission to resolve disputed questions of fact and resolve conflicting medical evidence. The Court held the Commission’s determination Respondent’s evaluating physician had a better understanding of the work duties than the treating physician was supported by the manifest weight of the evidence. The Court vacated the judgment of the Circuit Court and reinstated the Commission’s decision, finding it was not against the manifest weight of the evidence.

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

Synopsis: Indiana WC Update by Kevin Boyle, J.D.

Editor’s comment: In case you didn’t hear about it, there is some important news just in from the Indiana Worker’s Compensation Board (the “Board”).

The IN WC Board just put out a notice that the Board is set to formally begin its enforcement protocol concerning the untimely filing of statutorily required IN WC forms and payment of WC benefits. You may have heard in early 2016 that this was eventually going to happen, and now it finally is here.

Please check your procedures for timely filing some of the basic Indiana WC forms like the First Reports of Injury, 1043s and others. A late filing may suddenly become a more real problem than it has in the past, as a result of the new plans for stronger statewide enforcement. But, there is a grace period on penalties through September 30, 2017 so you still have time to work on it. 

Their notice provides that “during this period, you may receive letters and notice of actions found to be in violation of IC 22-3-3-7, 22-3-7-16, 22-3-4-13(a) and 22-3-7-37 so that appropriate remedies can be put in place.”

After the grace period ends at the end of September, i.e. for all injury dates on or after October 1, 2017, penalties will be assessed. Pursuant to IC 22-3-4-15, escalation of penalties will apply where more than one violation occurs in a single cause concerning the same injured worker and the same injury date. The Indiana WC Board also noted that “in the future, violations of 631 IAC 1-1-26 shall also become the subject of notice by the Board” if the 15 day time frame is violated.

The IN WC Board also encourages your comments and concerns with this process so they may be addressed by the Board prior to October 1st, 2017. Their contact information is online at http://www.in.gov/wcb/2340.htm

You can also reach out to Kevin Boyle, J.D. at kboyle@keefe-law.com. Kevin has extensive experience and understanding of the internal workings of the IWCB. He can help with whatever an employer or insurance carrier might need in dealing with these intricate issues.

If you have any questions, or could use help with your forms, filings, these new rules, and/or violations, please contact Kevin to discuss.