6-4-2018; IL WC Appellate Court Denies Fall-Down--I can't figure out the rules; Circuit Court Commends Arb. Andros on Causal Relation Claim; IL WC E-Notices to Start July 2 and more

Synopsis: IL WC Appellate Court Denies Stair Fall Down Claim. I remain baffled about the rules in IL WC slip-fall claims.

Editor’s comment: In Lampert v. The Illinois Workers’ Compensation Commission, et al. (Ferrell Hospital, Appellee) facts of the event are simple. Petitioner was a registered nurse for Ferrell Hospital. On November 26, 2012, after working a full shift at the hospital, she clocked out at approximately 8:00pm and headed to the parking lot where she usually parked her personal car. She exited the hospital to a set of carpeted stairs. As she descended the stairs, she reported she held on to the handrail because the stairwell was dark.

Without any apparent reason, she slipped off the top step and fell all the way down the flight of stairs, causing a serious injury to her left ankle. She was x-rayed and then diagnosed with a left ankle fracture. She underwent not one but two separate ankle/leg surgeries.

At the time of the event, she had a personal bag over her shoulder but her hands were free; she wasn’t holding anything. She described the outside weather at the time of the fall to be “misting and kind of sleety.” She also testified it was dark at 8pm on a November night. She admitted the stairs and parking lot were both open to the general public, patients as well as employees, but noted most non-employees used Ferrell Hospital’s front entrance or its emergency room door to enter and exit the hospital.

At arbitration before Arbitrator Lindsay, Petitioner’s claim was denied as she failed to establish her injury “arose out of” employment. Petitioner appealed the decision to the IL WC Commission panel headed by then-Commissioner Mario Basurto. The IWCC panel affirmed the denial. The matter went to the Circuit Court and then the Appellate Court, WC Division. In a unanimous but “non-published” Rule 23 opinion, the five-justice Appellate Court affirmed the decisions of the Circuit Court, Commission panel and Arbitrator.

The basis of the appeal was three-fold—Petitioner claimed she was exposed to a “neutral risk” on the staircase to a greater degree than the general public because

(1)   It was dark outside (doesn’t it get dark outside most nights?)

(2)   The “rained-on” stairs were wet and slippery, creating a dangerous condition (rain has a tendency to do that)

(3)   She traversed the stairs more often than the general public. (Twice a day isn’t a lot more than the “public”)

The Appellate Court dispensed with the initial arguments confirming Petitioner had the burden of proof and she never attributed darkness or weather conditions to the reasons that she fell. The ruling notes she simply testified she slipped on the top step of the staircase. I wonder if she needed a surface analysis/expert on this subject.

The appellate ruling uniquely dealt with her argument she was exposed to an increased risk of injury, compared to the general public because she traversed these stairs more “often.” The decision ruled there was no evidence presented to distinguish the outdoor stairs Claimant was traversing, even if those stairs were potentially wet from rainfall, similar to any other typical outdoor stairway, across the globe.

The Court felt it did not have any evidence suggesting Petitioner was more likely to slip and fall on her employer’s premises than she or any other member of the public would be likely to fall on any other outdoor stairway that was exposed to rainfall (citing Dukich v. Illinois Workers’ Compensation Comm’n, 86 N.E.3d 1161.)

This ruling demonstrates the willingness of some Arbitrators/Commissioners and our reviewing courts to reign in compensability and the cost of workers’ comp in our State. I am sure our state WC costs are going down for this reason and that should be reflected in the 2018 State of Oregon WC Premium survey due this November or thereabouts. I have seen fall-down claims like this one ruled compensable and consider all fall-down rulings in Illinois to be unpredictable.

On fascinating aspect of this decision is how the Appellate Court ruled regarding Petitioner’s assertion she was exposed to an increased risk because she used the stairs more often than the general public. The Court did not agree with Petitioner that just because she used the stairs at least twice a day (if not more as it was not clear from the opinion) she was somehow exposed to an increased risk of a work injury. Instead, the Appellate Court ruling analyzed the specific facts of this event. Petitioner did not present any evidence this particular set of stairs was more likely to cause a slip and fall as opposed to any other set of outdoor stairs used by the public.

You can read the ruling at Lampert v. IWCC

Synopsis: Circuit Court affirms IL WC Arbitrator and Commission award of benefits/surgery despite gap in care after first MMI.

Editor Comment: IL WC Defense practitioners and claim handlers are encouraged to resolve cases promptly upon claimant reaching MMI, thereby avoiding the return for care which may be deemed related to the injury.

We came across this ruling and felt it was report-worthy, because of the lesson to be learned for the IL WC claims handler/defense community.

In Berkeley School District #87 v. IWCC and Salvador Maldonado (17 L 50476) Petitioner worked long hours shoveling snow over several days after a particularly heavy snow-storm in early 2015. He treated conservatively and all medical treatment wrapped up by March of that year. However, several  months later in July, he asserted his symptoms returned and an MRI identified a tear and a concomitant need for surgery.

Respondent School District was understandably upset with this dramatic change in a simple back strain claim, as no new injury occurred and there had been an MMI release previously. However, a detailed assessment of the record and fact notes symptoms never fully resolved, leading to an arbitration award by Arbitrator George Andros for the requested surgery. The IWCC panel headed by Commissioner Stephen Mathis affirmed the award.

Upon confirming the Arbitrator and Commission award, Circuit Court Judge McGing complimented the careful and detailed analysis of Arbitrator Andros, which explained Petitioner’s lingering complaints, lack of any intervening event and expert medical support for causation and the reasonableness and necessity of surgery. It does appear from the IWCC computer this claim is moving to the Appellate Court, WC Division so watch this space for further news—please note the burden on Respondent will be demonstrating the ruling is against the “manifest weight of the evidence” or the decision of the court below is obviously wrong—that burden will be very challenging to meet.

It is our impression this award comes down to a temporal perspective. If the gap in care after the original MMI finding had been 14 or more months rather than 4 months, we may have seen a different conclusion. However, in the instance in which similar symptoms never fully resolve, or otherwise return within a relatively shorter time-frame, we can expect Arbitrators and other hearing officers, including the reviewing courts will find causal connection to the work-injury and the reasonableness and necessity of surgery.

From a defense perspective, the defense team at KCB&A recommends you institute prompt settlement negotiations upon the finding of MMI to seek avoid such complex situations.

Synopsis: E-Notice Announcement from IWCC.

Editor’s comment: IWCC Chairman Joann Fratianni announced another important step forward in the IWCC's modernization and technological upgrade of operations. Pursuant to the IWCC's Rules, as found in Section 50 of the Illinois Administrative Code, parties will receive case activity notices electronically beginning in about a month on July 2, 2018.  

The IWCC will no longer send most case notices via U.S. Mail as of this date.*  All parties (law firms on behalf of clients and pro se litigants) will be required to maintain a designated electronic mail ("e-mail") address for receiving case notices, just as they are now required to maintain a physical address to receive them by U.S. Mail. You only need to fill out the "E-Mail Registration Form" once (just like providing us your physical address), so they can update their system.  

PLEASE NOTE that it does not matter if you already have an e-mail on file or in use with the IWCC – they are populating the system with new and updated information.  So, please submit a law firm/pro se e-mail address to the IL Commission again.

* The only exception to electronic notices is Respondent parties at the time a case is initially filed will be notified that a case has been filed against them by U.S. Mail at the address provided by Petitioner. This is the current practice and won’t change.

Attorneys – Their system links cases before the IWCC to the law firm, not the individual practitioner.  So, please provide the IWCC your firm's e-mail address for receipt of electronic notices. If one of your attorneys "updates" your firm e-mail address with their own, all firm notices will go to the most updated address.

If you have questions on this process, send me an email.

5-28-2018; Illinois WC Required Forms and Notices; Top Ten Things everyone should know about Illinois Work Comp Law and Claims Practice and more

Synopsis: Illinois Work Comp Required Forms and Notices That You Need to Use.

Editor’s comment: I recommend all IL employers print and post the following notices, both in English and Spanish in a conspicuous location frequented by employees such as the break room, lunch room or time clock. If you have multiple business locations be sure to post the notices at each location.

·        Workers’ Compensation Insurance Notice  (English and Spanish).

·        Anti-WC Fraud Notice (English and Spanish).

I also recommend all IL employers/carriers, print and review the following forms and information:

·         IC45 First Report of Injury (FROI). Section 6(b) of the Workers’ Compensation Act requires that employers or insurers acting on your behalf send paper or electronic reports to the Illinois Workers’ Compensation Commission on all covered accidents involving more than three lost work days. 
 
As soon as you have been notified of a work-related injury or illness, fill out this form and submit it to the Illinois Workers’ Compensation Commission and your carrier. This form must be completed within five days from notice of an accident.

Workplace Fatalities must be reported within two days of the death. The Illinois Workers’ Compensation Commission also accepts the International Association of Industrial Accident Boards and Commissions (IAIABC) first report of injury form: IA-1 IAIABC W.C. First Report of Injury.

·         IC85 Employers Supplementary of Injury (FROI). This is a supplemental form you can ignore. The Illinois Workers’ Compensation Commission does monitor filing of the form IC45). To my understanding, they don’t monitor compliance with filing of this form. If that should change, we will advise.

·         IL WC PPP Form or PPP Preferred Provider Program Mandatory Notice (6/13) [Word]. If you have an IL WC PPP, you need to use this notice. I am happy to consult at no charge if you need it for starting a WC PPP for this State. All you will do by starting one is save a LOT of money.

·         Use and implement an Incident/Accident Investigation Form—If you need one or aren’t comfortable with yours, send a reply. Don’t use the IC45 (the IL WC State Form) as your incident/accident investigation form—it doesn’t work well. Our basic incident/accident form is completed by employee and the employee’s supervisor/manager as soon after the accident as possible. Once completed, please send the report to your carrier and save a copy to your file.

·         HIPAA/GINA Compliant Medical Release—every employer in the U.S. should have a HIPAA/GINA Compliant Release and ask your employee sign it when they report any workplace accident or disease. By doing so, you will have open and crucial access to medical records and bills. I can send you a free copy of our release—just send a reply.

In addition to providing workers’ compensation benefits, Illinois employers are obligated to:

·        Post a notice in each workplace explaining workers’ compensation rights and providing the name, policy number, and contact information of the employer’s insurance carrier. If you need this notice, send a reply.

·        Maintain records of work-related injuries and report injuries involving more than 3 lost work days to the IWCC.

·        Refrain from harassing, discharging, refusing to rehire or in any way discriminating against an employee who exercises his or her rights under the law. This follows the IL Supreme Court ruling in Kelsay v. Motorola.

·        Refrain from charging employees for any part of the workers’ compensation insurance premiums or benefits.

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

Synopsis: Top Ten Things everyone should know about Illinois Work Comp Law and Claims Practice.

Editor’s comment: I consider this some critical common sense thoughts about the WC Legal Battlefield in which we are all deployed.

1.      It’s a no fault law. Unless your injured worker is drunk or reckless (e.g. the worker jumps off a roof for fun instead of using an employer-provided ladder), their fault doesn’t matter if you get hurt at work.  The employee doesn’t have to prove the company was negligent and the employer isn’t off the hook if the worker is careless.

2.      IL WC Plaintiff/Petitioner Lawyer fees are 20% and don’t exceed that amount without special and truly extraordinary circumstances.

3.      100% of reasonable, necessary and related medical bills should be paid for any treatment directly related to an accepted and related job injury or disease.  IL WC has no co-pays, no out of pocket medical expenses or other costs.

4.      Without a signed HIPAA-GINA compliant release, an WC insurance company and the employer may not talk directly to the injured worker’s doctor. Again, without a signed HIPAA-GINA compliant release, employer/insurance carrier reps should not be in WC medical appointments. This includes any nurse case managers. If you want my form, send a reply. Happy to analyze any questions and concerns about this with all you curious medical care managers.

5.      You can and should tell your injured workers, any lawyer who tells them what their case is “worth” right after they’ve been hurt is probably full of it and telling them that just to try and get them to sign up. There is no accurate way to tell an injured worker for certain what the case is worth until they are finished with medical care and at maximum medical improvement and back to work.

6.      The value of any WC case is determined in part based on the severity of the injury, how it will affect the worker in the future, the medical care they have, how much money they were earning when hurt, their age, the job they can return to, whether or not they have any permanent work restrictions and the need for future medical care.

7.      Work comp isn’t truly a “law suit.” Workers’ compensation cases in Illinois are not lawsuits, but instead are claims for benefits like any other insurance claim. There is no Judge or lawsuit—everything is determined by a state agency, not a judge in a courtroom.

8.      Any IL employer can drug test an injured worker after an accident.  If they test positive it creates a “rebuttable presumption” that the drugs caused the accident. The worker can overcome this presumption based on the facts of how they got injured, medical records and witness testimony.

9.      Any injured worker needs to provide notice to their employer within 45 days of when they knew or should have known their injury or disease was work related.

10. An injured worker can switch attorneys if the first one isn’t doing the job and it won’t cost the worker anything. Lots of case law confirms Plaintiff/Petitioner lawyer fees can’t exceed 20%. The new firm and old firm will have to work it out to split the 20% or the Arbitrator will decide.

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

5-21-2018; Holy Subro! IL Appellate Court Rules IL WC Lien Recovery is Absolute!; Illinois Hospitals Now Have to Search All Patients for Weapons, analysis by John Karis and more

Synopsis: Holy Subro! IL Appellate Court Rules IL WC Lien Recovery is Absolute! This Ruling is Required Reading for All IL WC Insurance Subro Departments.

Editor’s comment: Throughout my legal career, I faced circuit court judges who fought to cut and cut IL WC lien recovery. The judges usually treat workers’ comp payments as being “insurance” and therefore have little value when trying to get a self-insured employer or insurance carrier their money back, regardless of the statutory imprimatur. The judges always feel and would argue insurance companies don’t need their money back, as they were paid premiums and could therefore afford the “loss.”

Now, in a very recent ruling In re Estate of Rexroad, 2018 IL App (5th) 170342 (issued May 15, 2018), the IL Appellate Court, in the most liberal District in this state, ruled a workers' compensation lien, pursuant to Section 5(b) of the Workers' Compensation Act, cannot be subject to reduction or elimination due to

·        Conduct on the part of the insurer in its handling of the workers' compensation claim itself,

·        Or in its cooperation with an investigation of 3rd-party causes of the injury, or

·        In its negotiations with the employee as to satisfaction of its lien.

Under Section 5(b) of the IL WC Act, they found an employer's right to reimbursement of full amount of benefits paid or to be paid to worker is absolute. They further found there was no basis in Illinois law to hold that alleged conduct on part of lienholder (workers' compensation insurer of employer) outweighs absolute right that it has to reimbursement of its IL WC lien.

In this claim, the worker sadly was killed. His widow applied for and is receiving IL WC death benefits. The claim is still pending on arbitration.

The third party claim was pending in Indiana. An action appears to have been started to adjudicate the WC lien to end or otherwise be blocked from enforcement, despite the continuing payment of death benefits. On October 26, 2016, the Estate filed a motion to adjudicate the workers’ compensation lien, in which it requested the remainder of the employer’s workers’ compensation lien be stricken in its entirety. The Estate argued the employer was not entitled to the remainder of its lien due to the following allegations of wrongdoing on the part of the employer:

(1)   Direct communications with the family of Decedent despite knowing the Estate was represented by counsel;

(2)   Obstructing the Estate’s counsel in investigating the wrongful death action by prohibiting the Estate from interviewing its employees, refusing to produce the truck and trailer the decedent was driving for inspection, and providing its inaccurate “alive and well” investigative reports to the defense;

(3)   Supposedly failing to pay Decedent’s widow the full amount of workers’ compensation benefits owed;

(4)   Demanding a distribution toward its lien from the interim settlement;

(5)   Objecting to an unspecified amount of court costs claimed by the Estate as required to effect a settlement of the remainder of the Indiana action; and

(6)   Seeking to recalculate its pro rata share of costs in light of the settlement of the remainder of the Indiana action, which the Estate characterized as a “reneg” of its prior agreement to pay its share of costs at the time of the interim settlement.

After complete briefing was filed by both sides, the Circuit Court struck the workers’ comp lien in its entirety. The appeal followed.

The IL Appellate Court unanimously ruled:

According to this plain language of section 5(b), an employer’s right to reimbursement of the full amount of benefits paid or to be paid to the injured or deceased worker is absolute. This is because the workers’ compensation lien is a crucial foundation of workers’ compensation law in Illinois. See, e.g., Taylor v. Pekin Insurance Co., 231 Ill. 2d 390, 397 (2008); Harder v. Kelly, 369 Ill. App. 3d 937, 942 (2007). This important public policy, that an employer, even if it is not negligent, should compensate the employee for an injury incurred on the job, is predicated upon there being no other recovery available. Denius v. Robertson, 98 Ill. App. 3d 83, 87 (1981). However, when recovery is obtained from the parties actually responsible for the employee’s injury, fairness and justice require that the employer be reimbursed for the workers’ compensation benefits he has paid or will pay. Id. There is no basis under Illinois law to hold that the alleged conduct on the part of [the employer], even if true, outweighs the absolute right, pursuant to statute, that [employer] has to reimbursement of its lien and the public policy underlying that right.

I assure all my readers on both sides the language in the paragraph above should be required reading and part of any IL WC law school course on the issue of subrogation recovery of IL WC liens. If a motion is made attacking an IL WC lien, this most recent ruling is crystal clear—our IL WC Act provides no discretion in cutting or evading WC lien recovery. Click on the link above if you want to read the Appellate ruling.

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

Synopsis: Illinois Hospitals Now Have to Search All Patients for Weapons. Analysis by John Karis, J.D.

Editor’s Comment: The IL Appellate Court finds it was reasonably foreseeable to find liability upon a hospital if it did not search patient before being admitted, as the patient or others might be harmed. On May 14, 2018, the Appellate Court of Illinois ruled for viability of a wrongful death action, alleging Defendant hospital was arguably negligent in not searching Decedent for weapons on day of his admission was sufficiently established. The Court ruled a hospital owed decedent a duty to protect him from harming himself or someone else.

In the case of Coleman v. Provena Hospitals, a patient named Russell was admitted to defendant, Provena Hospital, doing business as Provena Mercy Medical Center. The day after patient Russell was admitted, a nurse discovered he had a gun. It appears police were called. Shortly thereafter, during a confrontation with the Aurora Police Department, Russell was shot to death. Plaintiff Coleman, Russell’s sister and the administrator of his estate, filed a wrongful-death action against Defendant, alleging it was negligent in not searching Russell for weapons on the day he was admitted. The Circuit Court of Kane County subsequently granted Defendant’s motion for summary judgment, finding Plaintiff could not establish Defendant had proximately caused Russell’s death, because there was no evidence Russell had a gun when he was admitted. The matter was appealed to the IL Appellate Court.

On appeal, Plaintiff argued the trial court erred in granting the defendant’s motion for summary judgment, because a question of fact remained as to whether the gun would have been recovered had a proper search been conducted. In response, Defendant maintained summary judgment in its favor was proper because, not only did its actions not proximately cause Russell’s death, it owed no duty to Russell to protect him from his own criminal acts. Defendant Hospital further argued summary judgment was proper because Plaintiff cannot recover any damages based on Russell’s criminal acts

In order to succeed in a negligence action, Plaintiff must prove three elements:

(1) Defendant owed a duty of care;

(2) Defendant breached that duty;

(3) Plaintiff’s resulting injury was proximately caused by the breach.

Whether Defendant owed a duty to Plaintiff is a question of law, to be decided by the court. Whether Defendant breached its duty and whether the breach was the proximate cause of the injury are factual questions, for a jury to decide, as long as there is a genuine issue of material fact about breach and causation.

A court will find a duty where a plaintiff and a defendant stand in such a relationship to one another that the law imposes upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. The “relationship” referred to in this context acts as a shorthand description for the sum of four factors:

(1) the reasonable foreseeability of the injury;

(2) the likelihood of the injury;

(3) the magnitude of the burden of guarding against the injury;

(4) the consequences of placing that burden on the defendant.

The Appellate Court noted it has long been recognized, hospitals are under a duty to exercise reasonable care to protect their patrons from harm. In their pleadings, Defendant insisted it owed no legal duty to Russell, because the harm that befell him was not reasonably foreseeable. Defendant maintained it was not foreseeable that a patient would engage in a series of bizarre acts that would ultimately result in his being shot and killed by police officers. The Appellate Court noted Defendant’s argument was undermined by its policy to search people going into its behavioral health unit. The apparent purpose of this policy is to prevent patients who are possibly mentally ill from harming themselves or others. Based on the existence of this policy, it was reasonably foreseeable someone would be injured if the policy were not adhered to. Plaintiff asserted there was no reason why the policy should not exist throughout the hospital. Therefore the court found allegations of their complaint sufficiently established Defendant owed the patient a duty to protect him from harming himself or someone else.

It is hard to wrap your head around this ruling as common sense would say the hospital owed no duty for someone who engaged in criminal acts. It is unclear what the result of this matter will as it is in the early stages of litigation. However the one take-away from the court ruling is that hospitals owe a duty to their patients to prevent them from harm.  Included in these duties is to search patients for anything that could harm them or others. From this ruling, we feel IL hospitals now have to search any patient regardless of whether they have a mental condition for weapons.

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

Synopsis: Marge (Keefe) Madden Kottcamp, Rest in Peace.

Editor’s comment: My Dear Aunt Marge passed away this past weekend. She was three weeks shy of her 95th birthday. She was an inspiration to me for always being healthy and athletic, well into her 90’s. Marge had 12 children and about one zillion grandkids and great-grandkids.

If you are someone who says prayers, please say a prayer for the passing of this wonderful person. There will always be a twinkle at the end of every rainbow when I think of her.