June 2024; Staggering New Judicial Increase to PTD Claims in Illinois; New IL WC legislation and more

Synopsis: Navigating the Impact of American Coal Company v. Illinois Workers’ Compensation Commission: Important Insights for Defense Attorneys, Claims Handlers and Risk Managers. Please note, after 31 years of writing this “blog,” this is the first KCB&A Update that employed AI or Artificial Intelligence!!!

Editor’s comment: The recent ruling in American Coal Company v. Illinois Workers’ Compensation Commission et al. (2024) by the Appellate Court of Illinois, Workers Comp Division, marks a pivotal moment in our State’s workers' compensation law and practice. This decision, which upholds a comprehensive and extraordinary award to Claimant, David McCain Jr., has profound implications for WC defense attorneys, claims handlers and risk managers. As we delve into this case, we’ll explore the Court’s unusual legal reasoning, the implications for our industry, and practical steps for navigating similar claims in the future.

Case Snapshot: The Injuries and Claims

Petitioner David McCain Jr. was an underground coal miner for American Coal Company, and suffered life-altering injuries on November 5, 2016. Our sympathies go to him and his family.

The unfortunate accident led to total blindness, severe abdominal injuries requiring multiple surgeries, spine fractures, and psychological trauma. McCain’s pursuit of workers' compensation resulted in an IL WC Arbitrator awarding him both permanent total disability (PTD) and significant “unscheduled” permanent partial disability (PPD) benefits. This “dual award” was challenged by Respondent American Coal Company, leading to the recent IL Appellate Court, Workers Comp Division decision.

As a court observer, I strongly question why this serious but truly simple claim was tried/then unnecessarily appealed to three more levels to lose badly each time and create very poor precedent for Illinois businesses and local governments. I suggest to defense counsel in such claims—settle at the Circuit Court level to avoid having a “rubber stamp” which is then published (or non-published?) from a unanimous IL WC Appellate panel.

Key Legal Issues and the Court's Rationale

Nature and Extent of Injuries:

• McCain was awarded PTD benefits for his blindness under section 8(e)(18) of the Illinois Workers' Compensation Act. That part of this award is simple.

• In addition, he received unscheduled PPD benefits for his spinal, hip, abdominal, and head injuries under sections 8(d)(2), 8(c), and 8(e) of the Act. The “additional” benefits are impossible to predict/define and they are challenging. If you want to better understand the new challenge, please keep reading or reply via email.

Employer's Argument:

The American Coal Company argued Claimant McCain should not receive PPD benefits for non-scheduled body parts or “body as a whole” in addition to PTD benefits for blindness. Such benefits are now starting to appear more and more like “pain and suffering,” as a blind person doesn’t really have measurable industrial loss other than the obvious loss of vision.

And while we are on it, how does one accurately measure and/or reserve for loss of “body as a whole” in such a setting—does such claimant receive lifetime permanent total benefits and 100% BAW and 100% of all other affected body parts? Doesn’t the fact of blindness mandate 100% loss of everything?

The Appellate Court, WC Division cited the Illinois Supreme Court’s decision in Beelman Trucking v. Illinois Workers’ Compensation Commission, contending the Beelman ruling outlines the IL WC Act permits recovery under section 8(e)(18) and scheduled losses, but not for non-scheduled losses. In Beelman, claimant sadly lost both legs and one arm and after more than a decade of litigation, he was provided both a statutory total and perm plus 100% loss of some of the absent limbs. While that was a gigantic award, like this one, it was somewhat predictable and the insurer/employer could more accurately reserve for that loss.

From the outside looking in, this Respondent in McCain didn’t strongly mind paying for a PTD and 100% loss of use of the eyes that appear to “double” the award at a very high and unpredictable cost to the employer.

When the IWCC and courts know the award is doubling benefits to add lifetime benefits and the scheduled loss of the individual eyes and lots of other things, it is almost impossible to predict what a fair award might be. As I said above, for literally decades before these two rulings, a total and permanent award was the “highest” award a living Claimant could receive.

Please also note Illinois business and local governments also fund the IL WC Rate Adjustment Fund https://iwcc.illinois.gov/resources/raf.html that can exponentially increase permanent benefits for living Claimants and, in case of death, the spouse or dependents can get also obtain dramatically higher and spiraling benefits by making a claim against this Fund. This money isn’t paid directly by the employer/insurer to Claimant or remaining dependents—it comes from a fund all Illinois employers contribute to.

IL Appellate Court, Workers’ Comp Decision:

The IL Appellate Court upheld the Arbitrator and Commission’s decision, emphasizing the remedial purpose of the Act—to provide comprehensive financial protection for injured workers.

Gene Keefe’s Comments/Thoughts:

As a veteran defense attorney, I assure my readers for decades the IL WC Act was read to have a PTD or permanent total disability be an encompassing award that swept other statutory and non-statutory losses into the PTD award. The goal of the initial workers comp act in 1909 was to insure injured/deceased workers and their families were taken care of.

With that in mind, I ask the rhetorical question—What if David McCain were to pass from the injuries? Could his estate/dependents then claim 100% loss of use of his fingers, toes, hands, feet, legs, arms and Body as a Whole? Isn’t it a simple fact that a deceased claimant has lost 100% of the use of all of those “parts?” On top of Illinois’ high death benefits, would it provide “comprehensive financial protection” to award each and every part of a decedent’s body? I feel the rationale of both Beelman Trucking and this award would support such a staggering award that I am sure would cause WC claims to skyrocket.

What Happened to the IL Legislature and the Agreed Bill Process?

Please also note my feeling these staggeringly expensive and unexpected changes shouldn’t be “created” by our courts. Our Circuit, Appellate and Supreme Courts are making unpredictable and immense changes to the IL WC Act without even a nod to the folks we send to Springfield to work together to provide guidance. Part of the legislative process is to consider all the stuff I am writing about on one side or another and find the best path to protect our workers but also look out for the companies they work for. I feel the legislature should bet engaged on this path right now. I also call on the Illinois State Chamber and other business groups to find out what is happening and rein it in to make things reasonable and fair to all sides.

The American Coal Company case underscores the importance of a holistic approach in handling workers' compensation claims. As defense attorneys, claims handlers and risk managers, it is crucial to recognize the potential for combined PTD and PPD awards and adapt strategies accordingly. Staying informed about judicial interpretations of the IL WC Act is essential for effectively managing risks and ensuring compliance in an evolving legal landscape.

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

Synopsis: SB 1996, Workers Compensation was signed into law by Governor Pritzker. Guess what?—It doesn’t have anything of value for Illinois business or local governments.

Editor’s comment: This bill amends the Illinois Insurance Code and it provides for increases in the rate of the annual Illinois Workers' Compensation Commission Operations Fund Surcharge.

Please remember Illinois is going to remain a “blue state” for decades to come. In my view, this State is not a democracy. If you are not sure why I say that, send a reply. Things like this legislation that doesn’t help IL businesses or local governments at all will remain the norm.

Along with the changes above, the new legislation also amends the Workers' Compensation Act, as it provides for increases in the rate of the Illinois Workers' Compensation Commission Operations Fund Fee and payments to the Rate Adjustment Fund. I am fairly sure the first increase is going to cost Illinois business more to pay for the IWCC operations. The second part of the bill puts more money in the Rate Adjustment Fund that continues to force Illinois business to pay cost of living increases to death and total and permanent disability beneficiaries.

The bill also provides for transfers from the Self-Insurers Security Fund to the Illinois Workers' Compensation Commission Operations Fund, to the extent that there are insufficient funds in the Illinois Workers' Compensation Commission Operations Fund to pay the operating costs of the Illinois Workers' Compensation Commission or the salaries and benefits of employees of the Illinois Workers' Compensation Commission. You may recall our hearing officers got salaries that are tied, to some extent, with the salaries of Circuit Court Judges/Justices. If you aren’t sure this means all of these hearing officers are given substantial annual increases without having to ask the IL legislature to take action.

The legislation also makes changes in provisions concerning the collection of civil penalties or reimbursements for amounts paid by the Injured Workers' Benefit Fund due under an order of the Illinois Workers' Compensation Commission.

The bill makes changes to penalties for any person, company, corporation, insurance carrier, healthcare provider, or other entity that intentionally prepares or provides an invalid, false, or counterfeit certificate of insurance as proof of workers' compensation insurance or intentionally assists, abets, solicits, or conspires with any person, company, or other entity to intentionally prepare or provide an invalid, false, or counterfeit certificate of insurance as proof of workers' compensation insurance.

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

May 2024; Odd IL WC Death Claim--Still Pending Decades after Passing of Decedent; Another Anti-Lawyer Ruling from our Appellate Court, WC Division and more

Synopsis: IL Appellate Court, WC Division Awards WC Death Benefits From Passing in year 2006 in Odd Dispute.

Editor’s comment: In Cronk v. IWCC, the IL Appellate Court awarded IL WC Death Benefits to the son of a construction manager who passed 18 years ago!!

The facts indicate Decedent Cronk worked for Kimball Hill Homes as a construction manager. He complained of difficulty breathing shoveling snow at a build site in December 2006. Co-workers summoned paramedics, and Cronk went into cardiac arrest in front of them while they were at work. Decedent was taken to the hospital and passed there.

The coroner concluded the cause of death was hypertensive cardiovascular disease with coronary atherosclerosis as a significant contributing factor.

Dr. Richard Carroll a noted cardiologist based in Westmont, IL reported because of the "temporal relationship between [Cronk’s] shoveling activities and his development of chest pain, it would make sense that the two were related,” but he later testified Decedent Cronk’s coronary artery disease was most likely due to genetic factors, low “good” cholesterol and daily cigarette smoking. He suggested that the immediate cause of death was likely fatal cardiac arrhythmia and an abnormal heart muscle.

Decedent Cronk’s wife applied for IL WC death benefits. She supported her claim with a report from another cardiologist, Dr. Thomas Tamlyn, who opined that Cronk’s death was “obviously brought on or aggravated by physical exertion.”

Kimball Hill settled the wife’s claim in 2009, but the company maintained that Cronk’s death was unrelated to his employment.

With respect to the risk manager and others at this Respondent along with the hearing officer and IL WC Commission panel, I cannot imagine these facts would be the basis for a dispute—Claimant died on the job. That is about a 99.99% chance of a compensable death claim in this nutty “blue” state. Having settled with the wife, I cannot imagine why this employer didn’t bring it all to a reasonable close years ago.

Decedent Cronk’s son later filed a claim for IL WC death benefits. An Arbitrator found that Decedent Cronk’s death was not related to his employment. The Arbitrator also found that the son was not entitled to survivor benefits, even if Cronk’s death was work-related, since the son was not enrolled full time in school and over the age of 18 when Decedent Cronk passed. The Appellate Court ruling indicates the son enrolled in school, although not until after turning 18.

The Workers’ Compensation Commission affirmed the denial.

The Slowest Claimant Attorney in IL WC History?

I struggled to make sense of this claim and denial of death benefits to the son of Decedent Cronk. Then I looked it up and learned who Claimant’s counsel is. I assure my readers, in my opinion, this attorney is possibly the slowest Claimant attorney of all time—many of his claims are not resolved because he is rarely prepared and never seems to want to proceed in a timely fashion, regardless of prodding by the Arbitrators and Commissioners before whom he appears.

It is comical to see a claim as simple and as forthright as this go on more than 18 years. Our IWCC and courts are still litigating this simple claim. I want to assure you, if you look at the IL WC Commission’s call sheets, this attorney has lots and lots of claims go on for decades.

It Remains Challenging to Understand Denial by the IWCC

The Appellate Court ruling is simple and clear in providing the son limited death benefits, that he may now receive decades after filing!!!!???

The Illinois Appellate Court, WC Division said an injury occurs “in the course” of employment when it happens during employment, at a place where the employee may reasonably perform employment duties and while a worker fulfills those duties or engages in some incidental employment duties. The court noted Decedent Cronk’s condition set in as he was shoveling show leading to the entrance of a home built by the employer in anticipation of the arrival of prospective buyers. The court said the son did not need not prove some particular amount or weight of snow to show that Cronk was engaged in employment duties.

“In our opinion, it is a reasonably expected duty of decedent, as construction manager, to clear snow from the driveway and sidewalk of a newly built house in anticipation of prospective buyers,” the court said. “Therefore, the manifest weight of the evidence demonstrates that decedent’s cardiac arrest while shoveling snow at one of employer’s newly built homes occurred in the course of his employment.”

The court also said the manifest weight of the evidence shows that Cronk’s employment-related activity was a causative factor in his cardiac arrest, citing Tamlyn’s report and Carroll’s initial report.

“Here, we cannot agree with the commission’s reliance on Dr. Carroll’s testimony, where the manifest weight of the evidence, as acknowledged in the testimonies of both medical experts, demonstrates that shoveling the snow was a contributing factor in decedent’s resulting condition of ill-being,” the court said. “This reveals a causal relationship even if such physical activity is not the sole or primary causative factor.”

The court said the IL WC Commission further erred in finding the son was not eligible for benefits.

The Workers’ Compensation Act provides that a child qualifies for benefits if “he or she is (1) under the age of 18; (2) under the age of 25 and a full-time student; or (3) physically or mentally handicapped,” the court said.

The evidence was that the son was 18 and a recent high school graduate when Cronk died, the court said. The son took a year off before enrolling in college after Cronk’s death.

The court said the brief interruption in the son’s education while under the age of 25 did not preclude him from benefits.

To read the court’s decision send a reply.

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Synopsis: Another Anti-Lawyer Ruling from our Appellate Court, WC Division.

Editor’s comment: I have told my readers before and I will keep telling you, appellate rulings like this completely strip away any defense to “accident” and are certain to end litigation of IL WC accident disputes. In short, all workers can’t be “travelers” with global and irrefutable WC coverage for anything that happens to them.

The Illinois Appellate Court, WC Division ruled a municipal worker was a “traveling employee” and entitled to benefits for his injuries from falling down stairs as he was leaving his office. Please note the actions that led to Claimant magically obtaining “traveling employee” status was the simple and ordinary act of traversing a staircase.

Please note the words “traveling employee” do not appear in the IL WC Act or Rules—a “traveling employee” is whatever you want it to be. The problem with the entire debate about “traveling employee” is once you decide a worker is a “traveler,” anything that happens to him or her is related to work and is an “accident.” We can then have IL workers fill out forms and get benefits like group health because the main accident defense is stripped away.

In traditional workers’ comp law and practice, a “traveling employee” is someone sent on a trip to a far-off place—somewhere where there are unusual or unexpected dangers that might cause injury.

If you make an inspector walking on stairs a “traveler,” I ask the rhetorical question, aren’t all workers “travelers?” Don’t we all walk across rooms and stairs and ramps and ladders?? What would it take NOT to be a “traveler?”

It is my seasoned legal view, if you can’t reasonably fight or dispute WC accidents, you don’t need lawyers on either side, nor do we need hearing officers.

Claimant Iniquez worked for the Town of Cicero as a blight inspector. According to Iniquez, he normally began his workday at Cicero’s Town Hall. He would enter the building using a key card, then use the south stairwell to ascend to the second floor to his office. Iniquez would retrieve his work phone and download his assignments for the day from Cicero’s computer. To leave town hall, he would use the south stairwell, go to his town-provided vehicle and then drive around identifying blighted properties.

During his workday, Iniquez would be required to return to the Town Hall to receive further work assignments, and he would go up and down the south stairwell three or four times per day. I don’t consider this a dangerous or unusual job.

On July 2, 2018, Claimant Iniquez slipped and fell while descending the stairwell, suffering multiple injuries. There is no indication in the record of any problem with the stairs and we can therefore assume they were clean, free of debris, well-lit and were in reasonably good state of repair.

Claimant Iniquez filed a workers’ compensation claim. An IL WC Arbitrator denied the claim, finding Iniquez failed to meet his burden of proving that he sustained an accident that arose out of and in the course of his employment. The Arbitrator specifically found that, at the time of his fall, Iniquez was not a traveling employee, and although Iniquez’s injuries were incurred in the course of his employment, they did not arise out of his employment. In my view, that is an accurate statement of Illinois workers comp law, particularly as there were no construction/maintenance issues with the staircase.

The Workers’ Compensation Commission reversed, finding that Iniquez was somehow a “traveling employee” and that he did not lose that status merely because his accident occurred on stairs in Cicero’s facility. A circuit court judge affirmed the Commission’s decision.

The Illinois Appellate Court explained that a traveling employee is required to leave his employer’s premises to do his job. I would reply to this assertion to point out, the “employer’s premises” were the City of Cicero and Claimant didn’t leave Cicero!! Claimant had to be strongly familiar with the City in which he worked—there is no reason, none, to provide WC benefits if Claimant fell down a normal and ordinary set of stairs due to whatever he did to cause himself injuries.

“The uncontradicted evidence in the record established that travel away from Cicero’s Town Hall was an essential element of the claimant’s duties as a blight inspector,” the court said. The court also noted that Iniquez “was injured when he fell down stairs after he arrived at work, had retrieved his assignments from Cicero’s computer and was on his way to his Cicero-provided vehicle.” Based on this record, the court said, the IL WC Commission "correctly determined that the claimant was a traveling employee.”

An injury to a “traveling worker” arises out of his employment if he was injured while engaging in conduct that was reasonable and foreseeable by his employer, the court added. The court said it had no basis to disturb the Commission’s conclusion that Iniquez’s conduct on his way to his assigned vehicle to perform his inspections was reasonable, foreseeable and incidental to his job.

I again assert the vast majority of U.S. workers in all fields of endeavor are “traveling employees” by this Court’s challenging analysis. As I indicate above, I can’t think of a job that wouldn’t make most workers into whatever this Court’s version of a “traveling employee” might be.

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

3-25-2024; Successful Appellate Outcome for Atty Vanderford and KCBA!; Birth Defect Litigation Against Employers is Not Blocked by WC Exclusive Remedy and more

Synopsis: Successful Appellate Outcome for Defense Attorney Lindsay Vanderford and KCB&A! Court Rejects Petitioner’s Challenge to Appointment of Arbitrator and Ruling on His WC Claim.

Editor’s Comment: Please note this ruling isn’t “final” and might be subject to rehearing or a Petition for Certiorari to the Illinois Supreme Court. That said, we do feel the litigation will end.

In Osman v. IWCC, No. 2-23-0180WC, issued 03/18/2024, the Illinois Appellate Court, WC Division rejected the worker’s challenges to the appointment of the Arbitrator in his case and upheld a determination the worker failed to prove causation between a subsequent condition and a work-related accident.

Claimant Osman worked for a west suburban school district. The record indicates his foot was caught between a wall and two pallets while at work in December 2012 and he fell. He asserted injury to his right ankle.

Osman claimed he had no issues of instability with his right ankle or any problems with his knees and hips before the alleged accident. After walking with an altered gait because of his injured ankle, Osman alleged that he developed pain in both knees.

Claimant Osman was off all work for about 26 weeks, then returned to full duty.

A couple of years later, in January 2015, Osman saw Dr. Burgess, a podiatric surgeon who felt Claimant Osman had an altered gait, which Dr. Burgess felt "would causally relate the knee and hip to the accident." The problem with causal relation, in my view, is the several-year-gap from the DOL to the onset of knee/hip issues.

After a full hearing, the Arbitrator also found Osman had reached maximum medical improvement or MMI in May 2014 and he failed to prove the late-arising conditions of his knees and hips were related to his 2012 accident.

The Arbitrator also noted Osman had successfully returned to full-duty employment at the School District and had no loss of earnings. Nonetheless, the Arbitrator acknowledged Osman still had lasting complaints and wore a brace. The Arbitrator therefore awarded permanent partial disability for a 25% loss of use of the right foot. Benefits were not awarded for the leg(s).

The Illinois Workers’ Compensation Commission panel affirmed, as did a Circuit Court judge.

The Illinois Appellate Court, WC Division rejected Claimant’s argument the Arbitrator’s appointment as a state hearing officer was invalid.

“[A]lthough labyrinthine, the appointment procedures were in order and comported with what is required by the law,” the IL Appellate Court found.

The Court also found the Arbitrator had not remained in the same county beyond the period allowed by WC law. Illinois law forbids an assignment to the same county for more than two years in each three-year term, the Court found, and the Arbitrator who heard this case had served for one year of one term and 22 months in another.

The Court went on to find the IL WC Commission’s decision was not contrary to the manifest weight of the evidence.

To read the court’s decision click here.

Synopsis: Need Starter/Intermediate or Expert-level Workers’ Comp Training for your claims/risk/safety/management staff?

Editor’s comment: The defense team at KCB&A regularly provides state-of-the-art training for companies like yours. We closely watch and report on any and every change to the law and practice. With the advent of Zoom, this can be scheduled and provided easily. We can tackle your team’s toughest questions and help you make sense of a system that is challenging to understand and implement.

If you have interest in WC training, please reach out to John Campbell at jcampbell@keefe-law.com or Shawn Biery at sbiery@keefe-law.com. Or just reply to this email.

Synopsis: Children May Proceed With Tort Suit Against Parents' Employer for Texas (?) Workplace Exposure(s) Arguably Resulting in Birth Defects.

Editor’s comment: This ruling is something of an exception to the concept of “exclusive remedy” in workers’ comp. What is odd is the children cannot file suit, as they are minors and don’t have standing to sue, so the parents/workers have to sue their employer for them. It is also truly odd to see alleged exposures in Texas being brought in Illinois by the zillionaire Plaintiff lawyers here. Please note these brain defects claims have multi-million exposure for U.S. employers and we will probably see lots more of them. Please also note they are civil claims and, unless the IL Supreme Court overrules the Appellate Court, they will not be decided in the various WC admin bodies across our country.

In Fernandez v. Motorola Solutions Inc., Nos. 1-22-0884 and 1-22-0892, issued 02/29/2024, the Illinois Appellate Court ruled summary judgment was not appropriate in deciding if birth defects in children are the result of their parents' workplace exposure to chemicals.

Infants/claimants Meg Fernandez and Jonathan Johnson were born with severe birth defects. They brought separate actions in an Illinois state court against Motorola Solutions Inc., alleging their fathers were exposed to toxic chemicals and gas at a semiconductor manufacturing facility in Texas.

The Illinois Circuit Court granted summary judgment for Motorola, finding it did not owe the infant plaintiffs a duty under Texas law.

The Illinois Appellate Court said Texas law applied to the plaintiffs’ claims. The Court ruled any legal duty in Texas depends in part on whether the injury to the plaintiff was foreseeable, the court continued. A finding of foreseeability requires

“(1) that the injury be of such a general character as reasonably might have been anticipated and

(2) that the injured party should be so situated with relation to the wrongful act that injury to him or one similarly situated reasonably might have been foreseen.”

The intermediary Appellate Court noted scientific evidence was conflicting as to whether paternal exposure to toxic chemicals during the manufacturing of semiconductors causes future offspring to be born with birth defects. Thus, the Court found the evidence raises a question of material fact as to whether plaintiffs’ birth defects were the reasonably foreseeable consequence of Motorola's alleged civil negligence.

“This question of material fact cannot be determined as a matter of law but must be resolved by the trier of fact in order to determine whether a duty existed,” the Appellate Court ruled.

Motorola moved to block, asserting the exclusive remedy provision of the Texas Workers’ Compensation Act supported summary judgment in the company's favor.

The Illinois Appellate Court found while the Texas WC Act generally bars civil suits for workplace injuries by the injured worker and his heirs, the court said derivative claims under the Texas workers' compensation statute "are those where the plaintiff was not physically injured [them]self but suffered emotional or economic harm due to the physical injury to the employee, e.g., claims for loss of consortium or wrongful death.”

Since the cases involve infant plaintiffs seeking recovery for their own injuries, separate and apart from any workplace injuries/exposures to their fathers, the exclusive remedy doctrine does not apply, the Appellate Court found.

To read the court’s decision, click here.