12-12-2022; Update on IL WC Fall Claims As Part of the Coming Winter Season; Happy Holidays to all!!!!

Synopsis: UPDATE ON McAllister v. IWCC--The IL Supreme Court ruling and interpretation in a “stand-up” injury claim.

Editor’s comment: By way of review, in McAllister, Claimant felt pain standing up at work. The IL WC Appellate Court was divided on causation. The majority favored the analysis contained in Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52 (1989). This was an injury when Claimant stepped off a street curb and fell going to his car after work.

Two concurring IL WC Appellate Court justices, however, preferred the analysis contained in Adcock v. Illinois Workers’ Compensation Comm’n, in which Claimant asserted he was injured simply pivoting in a swivel chair. In Adcock, the Court ruled Claimant had to establish his or her job duties required the claimant to engage in the everyday activity that caused the injury to a greater degree than the general public, even in situations where the activity was directly related to the claimant’s job duties.

The IL Supreme Court rejected and reversed the Adcock test. They agreed with the IL WC Appellate Court majority and held Caterpillar Tractor “prescribes the proper test for analyzing whether an injury ‘arises out of’ a claimant’s employment, when a claimant is injured performing job duties involving common bodily movements or routine everyday activities.”

Ruling Rationale:

The IL Supreme Court explained, common bodily movements and everyday activities at or near work are compensable and employment-related if the activity that caused the injury “had its origin in some risks connected with, or incidental to, employment so as to create a causal connection between the employment and the accidental injury.” The Court then overruled Adcock and no longer require a claimant to additionally prove he or she was exposed to a risk of injury to a greater extent than the general public.

So, how far does McAllister go???

Iniquez v. Town of Cicero, 21 IWCC 0300 (7/18/21).

Synopsis: In this claim, the IL WC Commission awards benefits based on “traveling employee” classification. While this aspect of the ruling is unfavorable, we are more troubled by the Commission’s further adoption of the McAllister ideology and offering an “alternative” basis for compensability.

Iniquez involved an inspector who was injured when he slipped on normal stairs. Since his job involved building inspections, the nature of work did involve travel. However, this incident occurred at his office, where he returned to get more assignments. Therefore, defense argued he was not “traveling” when injured. Since there was no design flaw or debris on the stairs, it was argued by defense this incident did not arise out of his employment.

Facts and Ruling: The IL WC Commission reasoned the nature of this employee’s work involved travel, and during the work-day, the fact that he stopped in the office for assignments did not change the nature of his classification as a “traveling employee.” From the defense perspective, we are troubled by this logic, as the original intent of the so-called traveling employee concept is that workers who are at greater risk due to “travel” will be compensated. Here, the worker was merely at his office. Therefore, there was no greater risk in our view.

More troubling is the fact that the IL WC Commission went on to comment on the application of McAllister here, concluding that compensability would be found regardless of the traveling employee classification. The Commission explained the employee was performing acts reasonably expected in furtherance of his job duties and was therefore exposed to a risk associated with his employment. The IL WC Commission found descending stairs on his way to an off-site inspection was a risk distinctly associated with his employment and reasonably foreseeable. The Commission concluded therefore compensability was found based on the McAllister theory of compensability.

Again, we disagree with this aspect of the ruling, as we find this to be a further expansion of the McAllister ruling. At least in McAllister, the chef was kneeling to find products for work and injured his knee due to that mechanism. Here, the employee was simply walking down stairs… no flaw, debris or other identifiable increased risk was apparent. We don’t agree that walking down a set of stairs, with no work materials to affect one’s view or balance, is a risk “distinctly associated” with the job.

Troubling trend… are we “stumbling” toward creating a new “positional risk” doctrine in Illinois?

Lullo v. State of Illinois (IWCC 2022)

Synopsis: IL WC Commission continues to expand what is considered compensable where workers are performing acts “reasonably expected” in furtherance of job.

Facts and Ruling: Petitioner worked as a custodian and was dumping garbage. He actually completed that task, and was simply walking down-stairs with a roll of new garbage bags to replace in the cans he emptied, when he tripped and fell, injuring his knee.

Petitioner alleged he could not catch himself on the railing because he was carrying the roll of bags… the arbitrator awarded benefits accordingly.

The IL WC Commission affirmed, but offered a more troubling explanation of compensability, again, based on the McAllister theory.

The Commission explained that the compensability here was not based on the fact Petitioner was carrying items for work… in fact, the Commission found no need to go into a “qualitative or quantitative” assessment to determine if the job duties increased the risk of fall (carrying items) or if he had to navigate stairs often (quantitative risk). Rather, the Commission explained the mere fact Petitioner was performing acts “reasonably expected to perform incident to his assigned duties… and instructed to do by his employer” then the analysis ends and the event is compensable.

We find such analysis to be an even greater expansion of the McAllister theory. In the past, we would observe the Commission require at least some work-related link to the fall, such as flaws or debris on stairs, or citing the carrying of items which increased the risk of fall. Our fear is that now, all a Petitioner need show is that they were navigating ordinary stairs as part of their job. We don’t believe this is the true intent of the IL WC Act or even the true intended expansion contemplated in McAllister.

So, do we now have Positional Risk in Illinois??  Not so fast…                                                                                                  

Vaughn v. IWCC and Memorial Medical Center (2021)

Synopsis: Our IL Appellate Court, WC Division outlined a clear path for a parking lot/curb fall down claim to be defended and won.

The parties stipulated claimant fell in a parking lot on Memorial’s premises and suffered injuries. The arbitrator admitted into evidence various photographic exhibits depicting the condition of the sidewalk, curb and slanted asphalted surface where claimant stepped, stumbled and fell. We understand the photos indicated the curb, sidewalk and asphalt were in ordinary condition and there was no indication of defects or foreign objects/substances that would increase the risk of injury. For risk and claims managers, it is crucial to have such documentation in all your WC claims.

Facts and Ruling: On the morning of the incident, claimant had clocked out for the day. She exited the medical center through an employee door, as previously instructed by her immediate supervisor. Upon exiting, claimant, accompanied by a co-worker, began walking on the sidewalk toward her assigned parking lot. Claimant claimed the sidewalk in that area was not commonly used by members of the general public

Claimant alleged the concrete on the sidewalk where it met the asphalt was uneven, and it was about an inch and-a-half to two inches difference, causing the trip and fall.

She also testified that outside lights, located on nearby buildings and landscaping, illuminated the area where she fell. However, at the time of her fall, one of the lights was not working and others were partially obscured by a parked security van, which resulted in a shadow that made that area darker. Claimant suffered a comminuted fracture along the inferior aspect of the patella or kneecap with surgery.

On cross examination, claimant admitted that she was permitted to park in any of the employee parking lots, but it was suggested that she park in Lot #3. Additionally, claimant admitted she was permitted to use any entry door, but it was suggested that she use the closest door. Claimant acknowledged that two public sidewalks leading to the employee parking lot were available for her to use. Claimant was familiar with the area, sidewalks, buildings and available entry ways because she initially worked as a “traveler” at Memorial from January 2015 through June 2015. Claimant admitted that she was cutting across the walkway at the time of her fall, rather than walking farther down the sidewalk and turning to use the nearby access ramp. Claimant admitted that she had traversed the area many times over a span of several months and had stepped off the same curb before but in different places. Claimant further admitted the area where she fell was clear of rocks, debris, water, snow, ice, holes or other surface-type defects. 

The arbitrator found claimant had encountered a hazardous or defective condition, an uneven surface while she was walking to an employee parking lot immediately after leaving work. The Commission issued a decision unanimously reversing the arbitrator’s decision. The Commission panel found the arbitrator’s findings of hazard or defect and determination that claimant’s injury arose out of her employment were both erroneous, noting that the arbitrator’s reliance on precedent was misplaced. The Commission observed the height differential between the sidewalk and the asphalt where claimant fell was by design, not a defect. The Commission, stressing its agreement with Memorial’s argument, stated: 

Common sense dictates that sidewalk slabs should be even or at the same height; whereas curbs are, by nature, raised boundaries. Thus, demonstrating height differences between slabs within the same sidewalk evidence defectiveness, where demonstrating height differences between the curb and the area it borders does not. 

The IL WC Appellate Court confirmed Injuries sustained on an employer’s premises, or at a place where claimant might reasonably have been while performing her duties, and while a claimant is at work, or within a reasonable time before and after work, are generally deemed to have been received in the course of employment, citing Caterpillar Tractor Co. The focus shifted to the “arising out of” requirement. 

The Court further ruled when an employee is injured on the usual route to the employer’s premises and there is a special risk or hazard on the route, the hazard becomes part of the employment. Quoting the decision: “Special hazards or risks encountered as a result of using a usual access route satisfy the ‘arising out of’ requirement of the Act.”

The Appellate Court noted the Commission’s finding claimant “stumbled over a curb” is entirely consistent with the evidence and absence of flaw in the ground. Accordingly, they found the Commission’s finding as to the nature of the accident is not against the manifest weight of the evidence.

Take-away:

Despite the shift in analysis compelled by the McAllister ruling where the act of an employee simply standing up somehow could comprise a compensable accident, this ruling adheres to the plain language of the IL WC Act—for an accidental injury to be compensable, it has to both “arise out of” and occur “in the course of” employ. There are still defenses to some injuries occurring in the workplace!

We note however, in this case, there was no task being performed at the time of the trip… if claimant had been walking to retrieve an item for work, we fear there is a potential link allowing a finding of compensability based on the McAllister doctrine.

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11-29-2022; Oregon WC Premium Study is Published and IL WC is Actually Close to the Middle; Another “Never-Ending” Story of an IL WC/OD claim and more

Synopsis: Illinois WC Premiums Remain in the Middle of the Pack.

Editor’s comment: The “every-other-year” Oregon WC Insurance Premium Rankings are out. It is difficult to find a metric for WC costs around our great country but Oregon has what I, and most WC observers feel is the most scientifically significant ranking for WC insurance premiums.

New Jersey maintained its spot as the most expensive state in the U.S. for purchasing workers’ compensation coverage in the ranking by the Oregon Department of Consumer and Business Services.

While the top half of the list remains populated by California, New York and Hawaii, Wyoming, of all states, is now in the top 10 following a more than 29% increase in average costs in 2022.

Average premiums of $2.44 per $100 of payroll in New Jersey were 192% of the study median — $1.27 per $100 of payroll set in Pennsylvania. New Jersey also topped the year 2020 analysis with average costs of $2.52.

Hawaii, which ranked fifth in 2020, jumped to second place in 2022 with average premiums of $2.27. California jumped from fourth in 2020 to third in 2022 with average costs of $2.26. New York dropped two spots to fourth in 2022 with average costs of $2.15. And Louisiana, which ranked eighth in 2020, rounds out the top five in 2022 with average costs of $2.13.

The Illinois WC premium costs moved up five spots to 19th with an index rate of $1.39. Noting number 25 is half, our IWCC has kept costs reasonable for the last study period. We are sure they are working to be fair and reasonable in evaluating accidental injuries.

In my view, the biggest and most expensive continuing issues with IL Work Comp are

• The new focus on “body as a whole” for anyone with any arguable job restriction, even if the employer fully accommodates. When a restriction is present, regardless of its validity, PPD spirals up in a fashion I struggle to understand. As I have told my readers repeatedly, don’t use or pay for FCE’s—they don’t help IL WC defense at all. If you are not sure why, send a reply.

• The never-ending litigation where no Arbitrator is willing to put their foot down and start dismissing claims when nothing is happening from a Claimant attorney for years on end.

Another odd potential out there is the possibility things like “walking” at work would be deemed to be an “accident”—I reported this judicial anomaly recently and hope it doesn’t become a legal trend for this system, as costs will then staggeringly skyrocket. I also feel we may then see litigation levels drop, as certainty of indefensible claims may cause employers to pay everything and everyone. That means claim costs/reserves will go up. I ask everyone—how do you possibly reserve an IL WC claim if the only issue is Claimant was “walking” at work when they felt pain? In what language is walking an accident?

Florida and Texas saw little change in their rankings. Florida moved down one spot to 28th in the latest study with average premiums of $1.26. Texas moved up three spots to 46th with average costs of 88 cents.

Oregon moved up three spots to 42nd with average costs of 93 cents per $100 of payroll, tied with Colorado.

The Oregon stat-geeks said the U.S. national median index rate of $1.27 per $100 of payroll is the lowest value since it started conducting the national rate comparisons in 1986. In the first year of the study, the national median index rate was $3.18 and by 1994 it had increased to $4.35.

The Oregon Department also reported narrowing in the range of index rates during the history of the study. In 1988, for example, the index for the most expensive state, Hawaii, was $6.50, and the index for the cheapest state, Wyoming, was $1.04. The spread in the latest report is from $2.44 to 58 cents in North Dakota.

The Oregon study calculates rates for all 50 states and D.C. using a standard mix of the 50 industries with the highest workers’ compensation claims costs in Oregon. Although intended to inform Oregon lawmakers about how the state’s system is performing compared to others, the report is often used as a benchmark by legislators and regulators in other states as well.

The 2022 Oregon work comp premium rate study is here.

Reports from previous years are available here under the “workers’ compensation premium rate ranking summary” tab.

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

Synopsis: Another “Never-Ending” Story of an IL WC/OD claim. Is There Any Way to Move Such Claims Faster?

Editor’s comment: In Cummings v. IWCC, decided August 5, 2022, the IL WC Appellate Court considered a claim that started in November 2014 or about 8 years earlier. What is clearly odd about the claim is Petitioner is seeking benefits for an occupational disease of unknown identity. Please consider how strange that is—how can an Arbitrator and/or the IWCC review panel provide benefits when the disease remains unknown eight years later? To this moment, there is no strong proof of any scientifically documented “occupational disease” process in Claimant’s body.

After a hearing, the Arbitrator denied benefits, the IWCC review panel affirmed the denial and the Circuit Court confirmed denial also.

The IL WC Appellate Court, in its wisdom, focused on 109 pages of medical records. The problem with the records is defense counsel didn’t have a problem with their admission and put the lack of objection on the record. The Arbitrator, acting on his own, noted there was a lack of certification of some of the records and refused to consider them, regardless of the lack of objection by defense.

Please note the rejected records should have been placed into the record as a “rejected exhibit” and therefore could have been informally considered by the Commission, the Circuit Court judge and the Appellate panel. If there was blockbuster evidence in those rejected-but-attached records, I truly feel some one of the three Commissioners, single Circuit Court judge or five Appellate Court justices could have noted it and sought their admission.

Instead, the Appellate Court, WC Division unanimously considered the Arbitrator’s refusal to consider them as reversible error, mandating the entire claim be returned to the Commission for another several years of litigation for an occupational disease that still doesn’t have a name.

On remand, the IL WC Commission will consider the 109 pages, then issue a new decision to then possibly return to the Circuit Court to then return to the Appellate Court, hopefully before the end of the next decade.

All I can do is shake my head and ask everyone in this system to move things faster so employers/insurance carriers and local municipalities aren’t paying exorbitant carrying costs for endless litigation. If you want to read the Appellate Court’s ruling, please send a reply.

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11-18-2022; What Happened During the Election Last Week; Can Walking Now Be An "Accident" in This Nutty State?

Synopsis: What Happened in Illinois During the Election Last Week.

Editor’s comment: As I have advised our readers, Illinois is a “one-party” State and will remain same for at least a generation to come. In my view, Illinois is no longer a “democracy” because so many voters have an overridingly strong incentive to maintain their government benefits, in particular the fake and unfundable government pensions that are akin to winning the lottery. It is also truly odd for our Governor to admit he spent about $350 million of his own money to be Governor and do very little, almost nothing, in the office.

Along with that, our prior Speaker of the IL House “cooked the books” to gerrymander districts across our State to insure a one-party State was created. The districting will eventually change as the years go on but for now and decades to come, this State is going to be “blue.”

What Does It Mean to IL WC?

Well, the lack of a presence or any political strength by the IL State Republican party will probably mean our hearing officers will remain liberal. We still feel many of our IL WC Arbitrators bring strong common sense, fairness and perspective to what they do but if you read the “non-published” decision I provided below, as veteran defense counsel(s), we remain challenged on when to fight questionable claims and when to best settle. I feel the Arbitrator and Commission did their job to deny the claim to then have the IL WC Appellate Court flip it and provide six or seven-figure benefits. I am stunned to see a reversal if you understand our IL WC Appellate Court routinely allows the IWCC to make the call on medical issues and causal connection.

Most of my readers and I feel our IL State WC system is going to remain uncertain, expensive and unfriendly to businesses, local governments and WC insurers. If you need help with your IL WC defense agenda, send a reply and I assure you I can help.

Did They Change the IL State Constitution? Was That Amendment Truly Needed?

Please also note the so-called “Workers Rights Amendment” passed, creating another major issue for voters/taxpayers. Along with duplicating the fake pension protections already in the IL “pension clause,” the new Amendment will allow government unions to triple the pay and benefits given gov’t unions across the State. They will now be able to fight for taxpayers to subsidize their housing costs, working hours, travel expense, paid paternity/maternity leave, block layoffs and all sort of other benefits.

A New York Supreme Court Justice held:

To tolerate or recognize any combination of civil service employees of the government as a labor organization or union is not only incompatible with the spirit of democracy, but inconsistent with every principle upon which our government is founded. Nothing is more dangerous to public welfare than to admit that hired servants of the State can dictate to the government the hours, the wages and conditions under which they will carry on essential services vital to the welfare, safety, and security of the citizen. To admit as true that government employees have power to halt or check the functions of government unless their demands are satisfied, is to transfer to them all legislative, executive and judicial power. Nothing would be more ridiculous.

Trust me, our IL State Government just signed on to have government unions effectively take over. The only thing I am sure that is going to cause is more debt and taxes in a State already awash in red ink.

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

Synopsis: IL WC Appellate Court Awards Benefits for Garbage Truck Driver's Claim for Repetitive Trauma “Injuries” While Walking. Is “Walking” now an IL WC “Accident?”

Editor’s comment: As I have advised our readers repeatedly, if Illinois WC goes to a system where accidents cannot be defended, we aren’t going to need lawyers, Arbitrators, Commissioners or most others currently in the IL WC system. Like Group Healthcare, Claimants will be advised to fill out forms and benefits will follow.

Please also note my concern about the use of the term “injury” in this Appellate Court decision—With respect to the members of the Court, in my view, Claimant never described an injury and the way the Court uses the term is troubling, in my opinion. If a claimant tore up a shoulder playing baseball away from work but later noticed pain at work, that isn’t an “injury” and the employer should not have to pay for such claims. To keep Illinois a litigation system of resolving work “injuries” or problems, we can’t have “pain at work” translate into “injury.”

The Illinois Appellate Court awarded benefits to a garbage truck driver based solely on “repetitive trauma” problems. In Malecki v. IWCC, No. 1-21-0713WC, 09/23/2022, Claimant Malecki worked for Waste Management as a commercial garbage truck driver. His daily duties consisted of collecting garbage along a 75- to 125-stop route during a 10- to 12-hour workday.

Between January 2008 and April 2016, Malecki claimed he experienced pain in his lower back radiating down to his right thigh, for which he sought treatment from Dr. Neeraj Jain. A magnetic resonance imaging scan taken in January 2008 revealed degenerative disc and facet arthrotrocopy at L4-L5 and L5-S1; he also had tiny discs in his back that is typical for folks of his age and habitus.

A February 2010 scan revealed degenerative changes and spinal stenosis at L4-L5. A November 2015 scan revealed a grade 1 anterolisithesis at L4-L5, spondylosis changes at L4-L5, mild arterolisthesis, severe spinal and bilateral recess stenosis at L4-L5, and multilevel neural foraminal stenosis. Claimant Malecki received chiropractic adjustments from September 2014 through June 23, 2016.

Malecki claimed he started to feel his right foot get “heavy” while walking to his truck during his route on July 6, 2016. He completed his work shift and went home, where he claimed he continued to have difficulty moving his right foot.

The next day, Malecki alleged he completed an incident report with Rich Sarac, a district manager. Sarac later denied filling out the report with Malecki or that Malecki reported any “injury.”

On July 12, 2016, Malecki saw Dr. Hamidanti, his primary care physician. The doctor’s notes state that Malecki was complaining of leg pain that started three weeks prior. Hamidanti also noted that Malecki was walking with a limp and had decreased sensation on the lateral leg and dorsum of the right foot and thigh. Malecki saw Dr. Darwish on Aug. 5, 2016. He completed a patient assessment form in which he recorded that his symptoms occurred on July 6, 2016, and that it was a work-related “injury.” Darwish made an initial diagnosis of spondylolisthesis.

On Aug. 25, 2016, Darwish diagnosed Malecki with right foot drop and recommended a transforaminal lumbar fusion of L4-L5 and L5-S1. Darwish performed the surgery a week later. He opined Malecki’s job duties have “some causal connection” to the condition for which he was treated.

Malecki filed a workers’ compensation claim, asserting he had suffered repetitive trauma injuries that manifested on July 6, 2016.

An arbitrator denied the claim and found Malecki failed to prove he sustained a compensable injury, did not provide notice of an injury to Waste Management, and that his current condition of ill-being was causally related to a work accident. The arbitrator specifically found Malecki was not credible as well.

The Workers' Compensation Commission affirmed, as did a circuit court judge.

The Illinois Appellate Court said the arbitrator erred in finding Malecki was unable to provide any specific testimony relating to the actual route or activities he was engaged in on July 6, 2016, when he noticed an increase in symptoms.

“Contrary to this finding, the record reflects that the claimant testified to his daily duties as a garbage truck driver and specifically stated that, on July 6, 2016, when midway through his route and after dumping two yard containers filled with cardboard, he started to feel his right foot get ‘heavy’ as he walked to his truck,” the court said.

The Court further said the discrepancy in evidence between whether Malecki worked on July 7, 2016, was not relevant to the issue of whether he had sustained an injury or gave proper notice.

“The arbitrator also relied upon the fact that the claimant did not demonstrate any increased risk of harm to which he was exposed which contributed to his symptoms while walking to his truck,” the court noted. “The finding is based upon the incorrect assumption that walking was a claimed contributing cause of the claimant's symptoms.”

The Court outlined Malecki’s testimony was that he started to feel his right foot get heavy walking to his truck, not that his symptoms were caused or contributed to by walking to his truck. The Court also said Dr. Darwish also testified that, to a reasonable degree of medical and surgical certainty, Malecki’s job duties have “some causal connection” to the condition for which he was treated.

The Court further said the causation opinion was insufficient to support a finding that Malecki failed to prove that his condition of right foot drop is causally related to his employment, since he never offered an opinion as to whether Malecki’s job duties on July 6, 2016, contributed to his condition.

The Court went on to find the commission’s determination that Malecki failed to give timely notice of an injury was against the manifest weight of the evidence.

“In this case, there is no disputing the fact that the claimant gave notice of his July 6, 2016, injury at the very latest on July 25, 2016, when he gave the completed employee report of injury form,” the Court said, noting this date fell within the 45-day notice period provided by Illinois law.

To read the court’s decision, click here.