10-2-2017; IL WC "Video Replay" Reversed; Claimants and Claimant Attorneys--Exercise Caution Riding on Zombie Dragons and more

Synopsis: Work Comp “Video Replay” Reversed!!! Another WC Claim Gets Clawed Through IL WC’s “Corrected Decision” Grinder.

Editor’s comment: The purpose of Section 19(f) of the IL WC Act is to basically allow the equivalent of the NFL or Major League Baseball’s video replay in relation to decisions of the IL WC Arbitrators or Commission panels. If they obviously mess something up via improper calculation or other mistake, either party can file a “Petition to Correct Clerical Error” to have a decision recalled and corrected, similar to correction of a call of an umpire or referee. Similar to instant replay review, the IWCC version is limited to technical/mathematical but not substantive errors.

What I call the “Corrected Decision” Grinder is this “replay concept” effectively cancels the first ruling, as if It never happened. In my view, the IWCC procedure is mildly confusing and someone, someday might want to make it simpler for everyone in the system to understand and/or implement. If you file a 19(f) Petition, you can’t motion it for hearing--the matter sits for an undetermined period until someone from the IWCC considers it. At some random and unstated time that might be a day or a week or months and months, someone at the IWCC will issue either a

·         Denial of the Petition to Correct or

·         Order recalling the decision with the mistake in it.

If they issue a denial of a Petition to Correct an Arbitrator’s ruling, you have 30 days to file an appeal to the IWCC. In this instance, you are appealing the initial decision of the Arbitrator.

If they issue an order recalling the decision of an Arbitrator’s ruling, you are supposed to physically return the original decision of the Arbitrator, basically making it disappear—POOF! Then you need to wait an undetermined amount of time for the new and corrected decision to be filed/served on you. At that time, if you remain unhappy with the ruling, you must appeal the corrected ruling and ignore the first ruling.

In Eddards v. IWCC, No. 3-15-0757WC, issued 09/28/2017, Claimant filed an IL WC claim, asserting she injured her shoulder working for a nursing home. Four years ago, in September 2013, Arbitrator Dollison found Claimant suffered a compensable injury. The Arbitrator awarded Claimant six weeks of temporary total disability benefits and 12.65% BAW for permanent partial disability benefits, along with $34,177.75 for medical expenses.

The employer filed a motion to recall the Arbitrator’s decision to correct a clerical error. The Arbitrator recalled the initial decision and issued a corrected decision in October 2013, and the employer filed a petition for review of the Arbitrator’s decision in November 2013. It appears someone put the date of the first or recalled decision on the Petition for Review—OOPS!

The Illinois Workers’ Compensation Commission reversed the Arbitrator, finding Claimant had not suffered a compensable work-related injury. After the Circuit Court of La Salle County confirmed the Commission’s decision, Claimant sought review by the Appellate Court, WC Division.

The Appellate Court, WC Division reversed the denial and reinstated the Arbitrator’s award. Their ruling explained an IL WC arbitrator’s decision becomes final unless a petition for review is filed within 30 days after the party’s receipt of the decision.

In this claim, the employer timely filed a petition for review within 30 days of receipt of Arbitrator Dollison’s corrected decision, but the Petition mistakenly requested review of the original decision, listing the date of the original but later vacated decision.

The Appellate ruling confirms the Arbitrator’s original decision was not final or appealable, since it was recalled and corrected, and because the employer never specifically requested review of the corrected decision, the Court ruled the corrected decision became final. The decision indicates Illinois WC law “requires strict compliance with the requirements for filing a petition for review of the arbitrator’s decision to the commission,” so the employer’s failure to seek review of the corrected decision within 30 days left the Commission without jurisdiction to review the finding of compensability.

The Court also asserted it could not treat the employer’s mistake as “a minor mistake or inadvertence when writing or when copying something on the record,” as the employer’s minor typographic mistake supposedly failed to provide Claimant or the Commission panel with requisite notice of which decision was being appealed. With respect to the members of our Appellate Court, I consider this statement/position to be something of a stretch—I am sure counsel for Claimant was fully on notice of what was being appealed and I am sure all issues were fully briefed and reviewed before the IWCC panel, prior to the panel making its ruling.

As the IL WC Commission lacked subject matter jurisdiction over the appeal, the Appellate Court, WC Division said the Circuit Court also lacked such jurisdiction, so neither the Commission decision nor the Circuit court decision could stand and both were vacated.

To read the decision, click here. We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: When Riding a Zombie Dragon, Try Not to Get Eaten--IL Worker Hit With $100K “Balance Bill” Medical Bill Due to Failing to Respond to Suit.

Editor’s comment: As part of making a PI or WC claim, some Claimants and their attorneys encourage high medical bills to make “special damages” respectively high for settlements—I feel that strategy, like the zombie dragon from Game of Thrones, may come back to bite you. We assure our readers and I am sure you can tell if you read this decision, it is my opinion this medical/surgical provider is aggressive about billing and then uncompromising about collecting their bills.

We recently reviewed a ruling in which the Illinois Appellate Court ordered an injured worker to pay more than four times the IL WC Medical Fee Schedule value for surgical services because he failed to respond to a lawsuit from a medical provider while he pursued resolution of a third-party lawsuit. One Golden Rule to tell your kids, never ignore litigation against you.

If you review the decision in Illinois Neurospine Institute v. Carson, you will note how forceful and assertive IL WC medical billers can be. This unusual outcome started  began when a merchandiser for Coca-Cola, slipped and fell at a grocery store while at work on Dec. 21, 2010. It appears clear he herniated a disc as part of the slip/fall. He filed a workers' compensation claim on Feb. 1, 2011. He also started treating with Dr. Ronald Michael at the Illinois Neurospine Institute. Dr. Michael performed successful spine surgery on Claimant on March 24, 2012.

Claimant continued treating with Dr. Michael for more than a year until May 8, 2013, racking up a total medical/surgical/rehab bill of $124,743.71.

Shortly before Claimant's surgery and extensive post-surgical care, Illinois Neurospine Institute and Dr. Michael gave the patient a "financial responsibility statement." It filed the document on Feb. 9, 2012, with Claimant's name handwritten on the line labeled "Patient Name." The document required Claimant to  be sure Illinois Neurospine Institute was paid for its medical/surgical services. Illinois Neurospine Institute and Dr. Michael later used the document against their patient in court. Claimant asserted he never signed it.

On Feb. 27, 2014, Claimant settled his workers' compensation claim with Coca-Cola for $100,000. At the time of settlement of the WC claim, he paid the Illinois Neurospine Institute and Michael $27,003.59, in keeping with Illinois' Workers' Comp Medical Fee Schedule. Please note my opinion any further billing after a partial payment was accepted by a medical provider should have been statutorily prohibited “balance billing.” If you review the IL WC Act, it doesn’t provide any penalty for “balance billing,” it just prohibits such actions.

Almost two years later, Dr. Michael filed a breach of contract complaint on Jan. 13, 2016. Having been served with process, Claimant did not file an answer or seek any extension. Four months later, a default judgment was entered in the Institute and doctor's favor, confirming Claimant owed him the balance arguably outstanding or $98,276.78.

It appears Claimant was watching a third-party personal injury lawsuit; he sued the store where he slipped and fell in 2010. After that lawsuit wrapped up in October 2016, he moved to vacate the trial court's default judgment against him. Please note the judgment was now over 30 days old. The only relief from such a judgment is a Section 2-1401 Petition. When Claimant's attorney filed the response to the Section 2-1401 petition, it was missing an affidavit and language indicating Claimant swore the facts were true under the penalty of perjury. It did not claim Claimant acted with due diligence in answering the complaint or filing the response to the petition. Instead, it said, "A petition [for relief] may be granted even in absence of a showing of due diligence where justice or good conscience require."

Illinois Neurospine Institute filed a response asserting the petition should be denied on lack-of-due-diligence grounds. Claimant hadn't explained why he hadn't answered the initial complaint or why there was a delay in his filing of the Section 2-1401 petition, Illinois Neurospine Institute argued. Both factors showed a lack of due diligence, the Institute and Dr. Michael said.

Illinois Neurospine Institute’s attorney attached Dr. Michael's affidavit and a copy of the Financial Responsibility Statement to its response. A few weeks later, the trial court entered an order granting Claimant's petition to vacate the default judgment. Illinois Neurospine Institute and Dr. Michael appealed.

On review, the 1st District Appellate Court agreed with Illinois Neurospine Institute and Dr. Michael. It found Claimant had not shown due diligence, and the due diligence requirement is relaxed only "under extraordinary circumstances." No extraordinary circumstances appeared to be present here, the Court wrote.

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

Synopsis: Join KCBA at the IL Chamber of Commerce 2017 Workers' Compensation and Safety Conference! Wednesday, October 25, 2017 at the Hilton l 3003 Corporate Drive West l Lisle, IL 60532.  The program runs from 8:30 am – 3:30 pm.

Editor’s Comment: As part of the program, there are several Workshops which will include a presentation on Ethical Management of Disability & Employment Law Concerns Arising in Workers’ Comp Claims presented by our own John Campbell, Shawn Biery, & Brad Smith

The IL State Chamber also wants you to know:

This is the most important annual Workers’ Compensation Conference for Illinois employers!

·        The 10th Annual Workers’ Compensation and Safety Conference will include valuableinformation for all Illinois Employers with all new topics and fresh presenters.  

Workers' Comp. Reform is being debated at the state Capitol.

·        Get the latest analysis and thoughts on WC reform at the conference, along with cost-controlling measures, safety issues to prevent workers’ injuries, and discussion of court cases as well as much more.

Continuing Education Available!

·        This conference has been pre-approved to offer 3 HRCI credits.

·        This conference has been pre-approved to offer 4 SHRM Professional Development credits.

·        This conference has been submitted for approval to offer 4 CLE credits for attorneys.

- Learn More -

You may also contact Shawn Biery at 312-756-3701 or sbiery@keefe-law.com or the Chamber directly via Laurie Silvey at (217) 522-5512 ext 223 or lsilvey@ilchamber.org

9-25-2017; Appellate Court Shocker!!! IL WC Costs Should Be Dropping; Do We Truly Need Tens of Hundreds of New IL Arbitrators?? and more

Synopsis: IL WC Appellate Court Shocker—We See a Clear Turn to What Should Be Lower IL WC Costs from the IL Appellate Court, WC Division.

Editor’s comment: As part of our role as being the best possible WC defense team in five states, we closely watch new legislation but more important, court rulings. Please note most IL WC “reforms” come from new rulings by our reviewing courts—happy to explain if you don’t understand.

As we have advised, last year, our Illinois workers’ comp system was tied with Oklahoma for 7th most expensive in the United States. The legislature in Oklahoma responded with a number of reforms that clearly cut their WC costs without greatly minimizing important medical and lost time benefits for their injured workers. Illinois needs to keep pace with other similar states in our overall WC costs and benefits to remain competitive. In my view, we don’t want to be like cheap-o Indiana but let’s keep up with great States like Oklahoma and Alabama (‘Bama was considered the median in the last national survey mentioned above).

Earlier this year, the OK Council of Public Affairs reported:

In hard dollar terms, workers' comp premiums paid by Oklahoma employers in 2013 before the reforms passed totaled $961.5 million. In 2015, premiums totaled $792.7 million, despite an increase in employment in those two years of 2.45 percent. When you adjust for that increase, the amount paid by employers for workers' comp insurance dropped in the first two years under the new system by 19.5 percent.

One important development or “reform” that we can and should consider in Illinois and other states is to cut the length of time needed to arbitrate or resolve disputes. IL WC arbitration takes literally forever where other States streamline their litigation. The Director of the OK WC system Robert Gilliland confirmed “most cases are now adjudicated within 8 to 10 months, compared to the year or two that was common under the old system. That boosted medical costs significantly to the point where amounts paid out by insurers were dramatically out of balance. Today, that balance has been largely restored.”

As I have advised my readers many times, our IL WC system has cases that last decades without anyone taking affirmative action to adjudicate them. We have a “three-year” go-to-hearing rule that is routinely ignored by our hearing officers, in my view, the three-year-rule is a joke. What I don’t understand is why a simple WC claim can go on for four, five, six or more years and have no one complain to the ARCD or the IWCC that all sides aren’t guilty of letting their files lapse to the detriment of the clients. In my view, almost any other active legal concern that would sit for 5-10 years would result in consideration of suspension of the attorney involved—I don’t know why that doesn’t happen in IL WC. We challenge Chairperson Joann Fratianni, her top counsel Ron Rascia and the entire IWCC to start getting injured workers’ claims resolved faster.

Either way, we are starting to finally see some evidence our IL WC Commission and reviewing courts are turning to a more conservative focus. If you have been reading this KCB&A Update the last several weeks, we feel our top WC reviewing court is starting to get the message to cut IL WC costs.

IL WC Courts Determine Wet Pavement Is a Risk of Life and Not a “Hazardous Condition”

In Dukich v. IWCC, an employee slipped and fell on wet pavement walking to her car to take a lunch break. She was still on her employer’s premises but not working at the time of the fall. The IL WC Appellate Court ruled she was not eligible for workers' compensation benefits because she was not exposed to any greater risk than the general public.

The Appellate Court, WC Division upheld the Circuit Court of Cook County's decision to deny benefits to Claimant. The Circuit Court's decision adhered to the ruling of the Illinois Workers' Compensation Commission, though the IWCC ruling was a split decision. The IWCC overturned the Arbitrator who found the injury compensable.

The facts are fairly simple. Claimant was an attendance clerk at Fenton Community High School District 100. On a rainy day in February 2012, she left the school to get lunch off premises. When descending a ramp, she slipped on the wet pavement and fell face-first onto a crosswalk. The fall left her with a concussion, a nasal bone fracture and severe headaches. She claimed she aggravated a previous work injury to her right shoulder. Two doctors ordered her off work and recommended physical therapy. She treated with a physical therapist for three months but claimed she had to stop as she had two jobs and didn’t have time.

The School District brought in three co-workers to testify; two groundskeepers and an on-campus police officer. The groundskeepers testified there were no “defects,” unusual pavement or other issues with the sidewalk Claimant slipped on. The police officer testified Claimant told him she slipped on wet pavement. All three workers confirmed the pavement was wet from normal rainfall.

Arbitrator Doherty awarded medical benefits, temporary total disability benefits for her time off work, and 10% of the body as a whole. In finding the fall-down compensable, Arbitrator Doherty reviewed the preliminary WC issues of AOO/COO or arising out of and in the course of employ. There would be little dispute over COO—Claimant was unquestionably in the course of employ as she was at work and doing something she would be expected to do, leave for lunch.

Arb. Doherty considered AOO or arising out of employ to be present as Claimant was walking to a parking spot designated by the employer. She ruled the ramp was "(an employer)-controlled designated pathway" Claimant had to traverse to reach her car, whose position the employer also “controlled.” Therefore, even though the rain was a "neutral risk" — meaning it posed the same risk to the general public as it did to Claimant; Claimant was at an increased risk of being susceptible to normal rainfall because of her employment. Had Arbitrator Doherty found Claimant faced the exact same risk as the general public, Claimant would not have been entitled to workers' comp benefits.

The employer, Fenton Community High School District 100 appealed the decision. The Commission panel reversed. The Commission majority determined Claimant faced no greater risk than the general public when she set out to her car. She wasn't carrying anything the employer had told her to carry, wasn't rushing to complete a work task, the walkway was not defective and there was no accumulation of ice on the walkway. As such, the IWCC majority found Claimant "was not at an increased risk for injury over that faced by any member of the general public in traversing wet pavement."

The Circuit Court of Cook County agreed with the IWCC majority. In response to Claimant's argument a wet sidewalk created a hazardous condition, the Circuit Court found "there was no defect in the sidewalk where the claimant fell and no ice, snow or puddled rain that would constitute a hazardous condition." Unlike rain, snow and ice "can be made safe by plowing or laying down salt," while "there is no such option for rain," the Circuit Court ruled.

The Appellate Court agreed and unanimously affirmed the Circuit Court's analysis. Their decision indicates: "The dangers created by rainfall are dangers to which all members of the public are exposed on a regular basis. These dangers, unlike defects or particular hazardous conditions located at a particular worksite, are not risks distinctly associated with one’s employment."

The Court analyzed Claimant's situation under “neutral-risk” principles, asking whether Claimant was exposed to the risks of injury from rainfall to a greater degree than the general public by virtue of her employment. The Court determined that she was not. "Although the employer provided the claimant a designated parking space, there is no evidence that the employer exercised any control over the particular route the claimant took to her car or required the Claimant to traverse the particular handicap ramp on which she was injured," the Appellate Court wrote. "Nor is there any evidence suggesting that the claimant’s employment duties somehow contributed to her fall or enhanced the risk of slipping on wet pavement," the Appellate Court continued. "For example, the claimant was not carrying any work-related items or hurrying to complete a work-related task at the time she slipped and fell."

Common Sense Stuff from Me

The IL WC website confirms Claimant only missed 3-5/7s weeks off of work for this fall down. Medical bills were about $4,200, were paid under group insurance, and probably would be about half that much if processed under the IL WC Medical Fee Schedule. The Arbitrator awarded 50 weeks of permanency for injuries that were basically complaints of headaches. From my perspective, the Arbitrator could easily have awarded lost time, bills under the IL WC Schedule and 2% BAW. If she had done so, I think this claim would have ended in 2012, obviating five years of appeals.

Another thought to remember—this ruling probably won’t greatly change IL WC handling of fall downs in ice and snow. While we are melting in the current heat wave, winter is coming. If you are an employer, be diligent in efforts to clear ice and snow and salt the employee walkways to avoid serious and difficult to defend IL WC claims.

View the appellate court's opinion here. We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Does IL WC Really Need Tens of Hundreds of Arbitrators?

Editor’s comment: Almost as fast as I stopped whining about the secret process to select IL WC Arbitrators, I learn we just added two more!! Again, no one tells me or any other IWCC watcher when the Secret-Powers-That-Be-That-Run-The-Commission decide they need even more Arbitrators or why that decision might be made.

It was my impression the numerous IL WC advisory panels don’t want to openly discuss who to pick for the Arbitrator jobs. I am sure my readers know I disagree with that concept but I can and will live with it.

My beef this week is why we are adding two more new IL WC Arbitrators without any open discussion by any advisory panel or the IWCC itself of what the right number might be and/or what benefit new Arbitrators will mean to IL business who pays every penny of the cost of the IWCC. I consider hiding that process from me, my clients and the entire industry to be objectionable and inappropriate.

I point out about ten-fifteen years ago, there were almost 250,000 pending IL WC claims at the IWCC. Today, there are around 110,000. If we put our minds to it, we could easily work hard to get that pending number under 100,000. In short, with unquestionably fewer claims, why do we have so many more Arbitrators?

Either way, Governor Rauner just appointed Attorneys Tiffany Kay and Charlie Watts as our newest IL WC Arbitrators. I am sure their appointments have to be approved by the Senate.

I looked them up and Ms. Kay was Labor & Employment Counsel at the State of Illinois - Illinois Department of Central Management Services. She attended John Marshall Law School in Chicago, as I did. She will clearly add to much-needed diversity among IWCC hearing officers. She was licensed in May 2012. We wish new Arbitrator Kay all the best in her new position.

The other new Arbitrator is Charlie Watts who apparently goes by the name “Charlie Watts” because that is what is in the IWCC News on their website. I don’t want to in any way upset new Arbitrator Watts but I can’t locate any social media or other information about this new hearing officer other than to be able to confirm his business address is with the IL House Republicans and appears to have a home office in Chicago. He was licensed in 2001. We also wish new Arb Watts all the best in his new position.

We are happy to send any new or veteran IL WC Arbitrator or Commissioner a courtesy copy of our KCB&A IL WC textbook and other helpful materials.

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

Synopsis: Join KCBA at the IL Chamber of Commerce 2017 Workers' Compensation and Safety Conference! Wednesday, October 25, 2017 at the Hilton l 3003 Corporate Drive West l Lisle, IL 60532.  The program runs from 8:30 am – 3:30 pm.

Editor’s Comment: As part of the program, there are several Workshops which will include a presentation on Ethical Management of Disability & Employment Law Concerns Arising in Workers’ Comp Claims presented by our own John Campbell, Shawn Biery, & Brad Smith

The IL State Chamber also wants you to know:

This is the most important annual Workers’ Compensation Conference for Illinois employers!

·        The 10th Annual Workers’ Compensation and Safety Conference will include valuableinformation for all Illinois Employers with all new topics and fresh presenters.  

Workers' Comp. Reform is being debated at the state Capitol.

·        Get the latest analysis and thoughts on WC reform at the conference, along with cost-controlling measures, safety issues to prevent workers’ injuries, and discussion of court cases as well as much more.

Continuing Education Available!

·        This conference has been pre-approved to offer 3 HRCI credits.

·        This conference has been pre-approved to offer 4 SHRM Professional Development credits.

·        This conference has been submitted for approval to offer 4 CLE credits for attorneys.

- Learn More -

You may also contact Shawn Biery at 312-756-3701 or sbiery@keefe-law.com or the Chamber directly via Laurie Silvey at (217) 522-5512 ext 223 or lsilvey@ilchamber.org

9-18-2017; Important Ruling Knocking out the Obama OT Rule; Brilliant IL WC Appellate Ruling on the Positional Risk Doctrine and more

Synopsis: No Go for Obama-era Federal Overtime Rule! Texas Federal Judge Strikes Down Federal Overtime Rule. Research and analysis by Bradley J. Smith, J.D.

 Editor's Comment: U.S. District Judge Amos Mazzant granted summary judgment to more than 55 business groups that challenged the Obama administration’s 2016 rule that more than doubled the minimum salary required to qualify for the Fair Labor Standards Act’s “white collar” exemptions. As you recall, I wrote an article in November of last year discussing the same court blocking the overtime rule from taking effect. The minimum annual salary would have increased in dramatic fashion, which would have crippled some businesses—it more than doubled from $23,660 to $47,476.00. The rule also required additional increases every three years. Instead, for now, the existing overtime regulations apply, which includes the $23,660.00 exempt salary threshold.

This means U.S. employers do not have to make any changes for now, because the ruling is final, rather than last year’s temporary injunction, which was only temporary. This decision creates more certainty for employers, because it assures employers the Obama rule will not see the light of day.

Although the ruling could be challenged, the new leadership in the U.S. Department of Labor will likely not challenge it. Alexander Acosta, Secretary of Labor under the Trump administration, already sent a request for information on the 2016 overtime rule to the Office of Information and Regulatory Affairs. Those types of requests generally signal a government agency is looking for information to determine whether there is a need for new rulemaking. Acosta said he recognizes the salary threshold needs to be increased. However, he seemingly understands the salary threshold for overtime should not be doubled.

One of the central arguments used by the business community in challenging the new rule was the threshold was increased too high. Plaintiffs also argued the 2016 overtime rule raised the minimum salary threshold so high it made the “duties test” irrelevant. This test also required employees to perform certain duties to qualify for the FLSA’s white collar (executive, administrative, and professional) exemption. The Federal District Court agreed in reasoning that, “Congress unambiguously intended the exemption to apply to employees who perform bona fide executive, administrative or professional capacity duties.” He further said the U.S. DOL does not have the authority to set a salary threshold that effectively eliminates the duties test. Instead, the District Court explained the DOL is supposed to set the minimum salary level as a floor in order to screen out obviously nonexempt employees.

Employers should prepare for an eventual increase to the salary threshold under FLSA. For now, employers can submit comments to the DOL, as the DOL’s request for information offers an additional opportunity for the public to submit comments about the salary threshold.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the FLSA, employment law, and general liability defense at bsmith@keefe-law.com.

Synopsis: An IL Worker Needs to Show More than Simply Being at Work to Get WC Benefits—IL WC Appellate Court Upholds IL WC Commission decision Denying Benefits Again Rejecting the “Positional Risk” Doctrine. Analysis and research by Tim O’Gorman, J.D.

Editor’s comment: In Herff Jones v. Illinois Workers’ Compensation Commission, 2017 IL App (4th) 160346WC-U, again confirms the IL Courts rejected the use of the “positional risk” doctrine in the Illinois WC System..

Claimant in Herff Jones alleged WC benefits were owed for a right hand injury as a result of an alleged fall while at work. Claimant testified initially she believed her fall was caused by a rock which she stepped on while taking a break from work and going on a walk on a normal city street with a co-worker. Claimant testified she felt she stepped on a rock however mentioned the probability of being too close to the edge of the walk. She admitted she could not recall seeing a rock and provided a prior recorded statement denying she saw any defects in the sidewalk or the walkway.

Respondent’s HR manager testified he spoke to Claimant after the incident where Claimant stated she was not sure what happened. Respondent’s HR manager inspected the area where the claimant fell and did not see any rocks and could not identify any defects in the sidewalk or the surrounding environs.

Respondent’s HR manager also testified he took photographs of the area in question. The photographs taken by Respondent’s HR manager were described as “lost forever” save for one, which was not provided at the time of hearing. Instead, photographs taken at an unknown date and unknown time were presented as evidence. It is odd to note the photos were admitted without objection.

The Arbitrator rendered a decision finding Claimant’s alleged injury did not arise out of or occurred in the course of Claimant’s employment. On review, the Commission affirmed unanimously.

On appeal to the Circuit Court, the Court reversed the Commission’s decision stating

There are disputed facts; namely what caused the fall [and] [t]his allows the court to consider this a question of law." The ruling goes on to state: "In this case, it is clear to this court that whether or not the [claimant] employee tripped on a rock is immaterial. The fact is that she was on an official break during her employment and remained on the [employer’s] premises. Thus, her accident arose out of and was in the course of her employment.

The IL WC Appellate Court’s decision on this statement speaks for itself:

The Circuit Court was correct in stating that the cause of the claimant's fall was a disputed question of fact. But that did not justify the circuit court considering the issue "as a question of law." It is the Commission that resolves disputed issues of fact (O'Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253 (1980)), not courts on review of its decisions. The Commission's resolution of a factual issue will not be disturbed on review unless it is against the manifest weight of the evidence. Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 44 (1987). Compounding the error was the circuit court's conclusion that, simply because the claimant was on a scheduled work break and on Herff's premises when she fell, her injury arose out of her employment and "automatic liability applies." The circuit court seems to have adopted positional risk whenever an employee is on the employer's premises and engaging in activities of personal comfort. The positional risk doctrine has been rejected in this State as being inconsistent with the requirements of the Act, and specifically the requirement that to be compensable an employee's injury must arise out of her employment. Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 552 (1991) (emphasis added). Herff Jones v. IWCC, at pg. 8 para 17.

In disagreeing with the Circuit Court’s seeming application of the “positional risk” doctrine, the IL WC Appellate Court found

1. Claimant’s alleged injury was not a result of a personal risk,

2. Claimant’s alleged injury occurring while walking across a sidewalk did not establish a risk greater than that faced by the general public and

3. Claimant’s alleged injury was not a risk incidental to her employment.

The Appellate Court examined the third potential risk in greatest detail. Claimant was not carrying anything in furtherance of her employment with Respondent. Claimant was not traveling from one place to another in furtherance of her employment with Respondent. Based on Claimant’s testimony, she was unable to establish that a defect occurring on Respondent’s premises was the cause of her alleged accident. As such, the Appellate Court vacated the decision of the Circuit Court and affirmed the decision of the Commission denying any and all benefits.

We salute the Court for following the traditional precepts of IL WC law and practice.

We appreciate your thoughts and comments. Please post them on our award-winning blog. This article was researched and written by Tim O’Gorman, JD and your editor.

Synopsis: Join KCBA at the IL Chamber of Commerce 2017 Workers' Compensation and Safety Conference! Wednesday, October 25, 2017 at the Hilton l 3003 Corporate Drive West l Lisle, IL 60532.  The program runs from 8:30 am – 3:30 pm.

Editor’s Comment: As part of the program, there are several Workshops which will include a presentation on Ethical Management of Disability & Employment Law Concerns Arising in Workers’ Comp Claims presented by our own John Campbell, Shawn Biery, & Brad Smith

The IL State Chamber also wants you to know:

This is the most important annual Workers’ Compensation Conference for Illinois employers!

·        The 10th Annual Workers’ Compensation and Safety Conference will include valuableinformation for all Illinois Employers with all new topics and fresh presenters.  

Workers' Comp. Reform is being debated at the state Capitol.

·        Get the latest analysis and thoughts on WC reform at the conference, along with cost-controlling measures, safety issues to prevent workers’ injuries, and discussion of court cases as well as much more.

Continuing Education Available!

·        This conference has been pre-approved to offer 3 HRCI credits.

·        This conference has been pre-approved to offer 4 SHRM Professional Development credits.

·        This conference has been submitted for approval to offer 4 CLE credits for attorneys.

- Learn More -

You may also contact Shawn Biery at 312-756-3701 or sbiery@keefe-law.com or the Chamber directly via Laurie Silvey at (217) 522-5512 ext 223 or lsilvey@ilchamber.org