2-16-2025; John Campbell and Shawn Biery's Thoughts on Important Positional Risk ruling; Wacky New IL WC Legislation, Possibly Ending the Role of Attorneys in the System and more

Synopsis: The Appellate Court of Illinois, Workers’ Compensation Division takes another mighty leap toward, and arguably beyond, the Positional Risk Doctrine in the Tazewell County ruling. Tazewell Country v. The Illinois Workers’ Compensation Commission, et. al., 2025 Il App (4th) 230754WC. Thoughts and opinions by John Campbell, JD and Shawn Biery, JD.

Editor’s Comment: Petitioner Potts worked as a dental hygienist for Tazewell County, performing teeth cleaning and sealing patients’ teeth which involved what she described as “a lot of hunching over” patients where her arms would be held at approximately shoulder level while working. Hired in 2005, she asserted she began to feel pain in 2019 while her arms were elevated in this capacity. She described pain progressing throughout the work week. An MRI revealed a small full-thickness distal supraspinatus tendon tear and small labral tear with impingement of the rotator cuff. Pursuant to an orthopedic consultation, surgery followed.

Of particular note, and central to the defense argument, Petitioner never specifically described a work injury and even stated she was not making a workers’ compensation claim initially. In fact, the lead orthopedic surgeon completed a disability form and documented that the left shoulder conditions were not due to injury or sickness arising out of the claimant’s employment.

Thereafter, the surgeon offered further opinion that the work activities “were a contributory cause of pain at her left shoulder” based on pre-existing rotator cuff pathology. Therefore, the doctors did not attribute the shoulder tears to work… only the pain from the condition, which was pre-existing.

The IME examining physician offered a consistent diagnosis but also pointed out that the job duties would not cause, accelerate or permanently aggravate the rotator cuff condition and as such, did not contribute to the injury or need for surgery. He was clear in his opinion that the manifestation of pain itself at work was temporary, but the condition was pre-existing and not related.

Arbitration/IWCC Panel/Circuit Court and Appellate Court Rulings:

This claim was initially denied at arbitration, however the Commission panel reversed on review, finding sufficient evidence of a repetitive trauma injury. In support of their ruling, the Commission panel appeared to find causation without any clear evidence of acceleration of the underlying condition. It was sufficient that Petitioner simply felt pain at work and as such, this was enough of an aggravation to trigger compensability.

Upon further review, the IL Appellate Court, WC Division noted a split in other jurisdictions on this question and acknowledged it was a case of first impression as to whether pain alone can substantiate a compensable accident.  Ultimately, the Court affirmed the Commission ruling with partial reliance on the principle in Sisbro, Inc., that causal connection is established if the work injury can be shown to have played a role in aggravating or accelerating a preexisting condition. The Court reasoned that “when a preexisting condition is asymptomatic and then becomes painful as the result of  work-related activity, that symptomatic condition is compensable under the Act as an aggravation of the preexisting condition even in the absence of an organic or structural change in the preexisting condition. When a preexisting asymptomatic condition becomes painful for reasons other than an organic or structural change or natural progression, it follows that the preexisting condition was aggravated by something. If the aggravation is work-related… we hold that the pain suffered is, in and of itself, a compensable aggravation of the preexisting condition.”

We would be remiss to forego mention of Justice Mullen’s well-reasoned dissent. He points out that the majority’s reliance on Sisbro is misplaced, in as far as Sisbro demands that where a preexisting condition exists, recovery depends on the employee ability to show a work-related aggravation or acceleration of that preexisting condition. There is a notable absence of any evidence that the rotator tears in this case were aggravated or accelerated by work. There was simply pain when using the arm based on a pre-existing condition identified and agreed by all doctors.

Editor’s Further Comment:

From Respondent’s perspective, this is an alarming ruling which greatly expands the concept of an “accident or injury” under Illinois legal jurisprudence. We suspect this is ripe for certification to the Illinois Supreme Court, but we shall see.

We have a number of questions but let’s start with a simple one; if all doctors agree that the shoulder tears were not caused by work duties and not even accelerated at all by work duties, why is the medical treatment and disability found to be legally related?  How can any employer defend any case as long as the employee simply claims pain while working in the presence of a pre-existing condition?

If an employee’s first headache or torso pain from manifestation of cancer is experienced while at work, does that make the cancer a work-related disease?

Does the aging, de-conditioned attorney, sitting at his office computer 10 hours per day writing newsletter articles have a compensable claim for back surgery due to degenerative disc disease because the pain allegedly manifested for the first time at work? Does anyone need health insurance anymore as long as you have a job?... just say it all started at work.

We could go on and on with more absurd examples, but we digress; you get the point. We find this to be a poor ruling that greatly expands compensability in ways completely unintended by our legislature based on the plain language of the Act as well as decades of prior legal jurisprudence that never entertained simple pain as a compensable “injury”.

In light of this ruling, it is perhaps more important than ever to conduct a thorough accident investigation and utilize experienced legal defense counsel to develop possible defenses based on pre-existing causes and treatment.

If you have questions or concerns, contact John Campbell at jcampbell@keefe-law.com. You can reach Shawn Biery at sbiery@keefe-law.com.

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Synopsis: Wacky New IL WC Legislation That Is Continuing the Trend of Ending the Need for Lawyers on All Sides.

Editor’s comment: IL Statutes Amended In Order of Appearance

820 ILCS 305/6

from Ch. 48, par. 138.6

Synopsis As Introduced

This new and unprecedented legislation amends the IL Workers' Compensation Act to make defense of a class of future IL WC claims impossible to defend. As I have advised, when work injuries are impossible to defend, employers don’t want their employees to go to claimant lawyers and won’t want to have “defense” attorneys if defense is completely impossible. The insurance carriers and self-insured administrators are going to have workers in these job classes fill out forms and pay whatever is needed to avoid any need for claimant lawyers, defense lawyers and hearing officers. Why would a government need a defense attorney to represent them in an indefensible setting?

If this legislation becomes Illinois law, it provides that the rebuttable presumption concerning specified conditions or impairments of health of an employee employed as a

• Firefighter

• Emergency medical technician

• Emergency medical technician-intermediate

• Advanced emergency medical technician or

• Paramedic

Is openly intended to totally shift the burden of proof to the “employer” or employing entity. In most cases, this is going to apply to local governments who hire the employees in the classes above. Local taxes are certain to spiral way up under this legislation.

Any party seeking to defend the new presumption must establish by clear and convincing evidence an independent and wholly non-work-related cause for the condition or disability and prove that no aspect of the employment contributed to the condition.

The proposed law provides that the rebuttable presumption in the IL WC Act relating to hearing loss cannot be overcome with evidence allegedly showing that the injured employee did not meet specified exposure thresholds. Please note this new proposed law is going to make most local governments owe the described workers for a lifetime of “free” or taxpayer paid hearing aids for the workers employed above.

One way to counter this new legislation, if it becomes law, is to start combining your workers into “Public Safety” workers that provide dual and triple certification for your workers and quietly limit your workforce. Trust me, the number of live fires in your town are minimal. “Firefighters” rarely fight fires but they don’t want you to know that. Fire codes have greatly ended or limited the number of live fires across the U.S. This union-backed legislation is going to continue to make “firefighting” and EMT costs dramatically higher. If you have interest in this cost-cutting approach, send a reply to Gene Keefe at ekeefe@keefe-law.com.

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2-8-25; John Campbell JD on Shocking New IL Law/Ruling; Tim O'Gorman JD on Important TPD Ruling and more

Synopsis: Is it Christmas Again Already? The Illinois Supreme Court drops a giant gift into the stockings of the Plaintiff’s bar, allowing resurrection of a host of IL occupational exposure claims… against Illinois employers!  Wait… What?  It appears the exclusive remedy provision is now only exclusive until the IL plaintiff’s bar starts running out of people to sue.

Editor’s comment: Let’s take a deeper look at Martin v. Goodrich Corp., 2025 IL 13509.

Facts and Ruling: Rodney Martin was an employee of Goodrich Corp. allegedly working for a time with vinyl chloride monomer (VCM), a substance believed to cause angiosarcoma of the liver. Rodney stopped working at Goodrich in 1974 but was not diagnosed with the disease until 2019. Martin died in year 2020. In this case, after 1976, under section 1(f), Rodney or his family no longer had the ability to seek compensation under the IL Occupational Disease Act or ODA for his employment-related exposure. To our understanding, vinyl chloride is also contained in second-hand smoke.

His wife Candice filed a wrongful death case in 2021, asserting there was a relatively new exception to the exclusivity provisions of the IL Occupational Disease Act (ODA).

Remember, the exclusivity provisions of the IL ODA contain an employee’s sole remedy for work-related occupational disease through the IL Workers’ Compensation system and used to bar any civil negligence action against employers. The ODA has its own limitations under 1(f) and 6(c). If a disease manifests after the statutory time-frame, the claim for benefits under the IL OccDisease Act was supposedly barred.

However, the Illinois legislature amended the ODA in 2019 by adding section 1.1. This was in response to the IL Supreme Court’s decision in Folta v. Ferro Engineering, 2015 IL 118070 where there was strict adherence to the the 25-year limitation provision under section 6(c). This strict application led to a time-bar for the employee who developed mesothelioma from asbestos exposure over 40 years after departing the workplace. Thereafter, Section 1.1 of the ODA was enacted to allow employees (or heirs) to litigate against their current and former employers in circuit court if their claim was time barred under the ODA.

The first question asked the high court whether the period referenced in section 1(f) of the ODA is a “period of repose or repose provision” for purposes of the exception provided in section 1.1. The court found that by its plain language, section 1(f) is a statute of repose. Further the court found the legislative intent was to ensure that employees like the one in Folta were able to seek compensation even if they did not discover their alleged injury within the time limits provided under the ODA.

As of 2019, the new Section 1.1 of the IL Workers’ Occupational Diseases Act states the exclusivity provisions of the Act “do not apply to any injury or death resulting from an occupational disease as to which the recovery of compensation benefits under this Act would be precluded due to the operation of any period of repose or repose provision. As to any such occupational disease, the employee, the employee's heirs, and any person having standing under the law to bring a civil action at law, including an action for wrongful death and an action pursuant to Section 27-6 of the Probate Act of 1975, has the nonwaivable right to bring such an action against any employer or employers.” 820 ILCS 310/1.1 (West 2022).”

Our highest Court explained “under the plain language of this statute, when a statute of repose would operate to bar an employee from seeking compensation under the Workers’ Occupational Diseases Act based on an occupational disease, as it did in Folta, the employee would be allowed to seek compensation by filing a civil action.”

The High Court also found “application of section 1.1 must be prospective through section 4 of the Statute on Statutes” and further explained that  “Applying section 1.1 prospectively means to apply it to cases where an employee's claims under the Workers’ Occupational Diseases Act were barred due to the discovery of an illness after section 1.1 was enacted.

The Court further found the section 1.1 exception did not run afoul of the Illinois Constitution’s guarantee of due process since the Plaintiff’s case was filed after the Exception became effective, it did not take away any existing legal rights or reopen claims that were previously blocked by the Act. This ruling allows Candice Martin to pursue civil action for the death of her husband Rodney Martin from angiosarcoma of the liver that allegedly developed from him being exposed to dangerous material(s) on his jobsite more than 40 years ago.

Please also note Plaintiff-friendly Illinois courts recently received another new law that allows punitive damages in claims involving wrongful death. You can be sure all Plaintiffs in claims such as this will allege punitive damages to scare higher settlements out of Illinois employers.

This new law in Martin v. Goodrich and the ruling will no doubt impact and “create” claims for asbestosis, angiosarcoma and a host of other diseases which often manifest long after exposures may occur. The plaintiff’s bar will line up to resurrect claims against Illinois employers, alleging exposures from 30 and 40 years earlier, as soon as symptoms from a disease manifest for the first time. It is our reasoned impression that many of these claims will be incredibly difficult to both prosecute and defend, as machinery, equipment, data, records, human resources, managers and co-workers will be long gone. The resurrection of insurance claims under policies long-thought dormant is another wildly challenging issue faced by IL employers and insurance carriers alike.

Even if we assume it possible for a disease to arise from a workplace exposure decades after employment ended, we reckon the proper avenue to “correct” this statute of limitations/statute of repose concern would have been simply to extend the time frame for filing such claims under the IL Occupational Disease Act itself. Why shove the exclusive remedy aside entirely and create a new civil cause of action that literally begins 30-plus years after the last act of exposure? Are we soon to see claims filed for melanoma by a 60 year old man or woman who had a few sun burns while working as a lifeguard at the age of 17, who may or may not have been given proper sun screen or protection? Hold on tight, as the plaintiff’s bar sharpens their pens and gets creative with this one.

This article was researched and written by: John P. Campbell | A Founder and Managing Partner of Keefe, Campbell, Biery & Associates.

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Synopsis: KCB&A Veteran Defense Attorney Tim O’Gorman provides thoughts on the Illinois Appellate Court’s decision to affirm the IL WC Commission’s denial of TPD or temporary disability benefits finding Petitioner’s post-injury average weekly wage on which TPD benefits would have been calculated was too “speculative.”

Editor’s comment: In Menefee v. IWCC, 2025 IL App (4th) 240375WC-U, this latest opinion appears to follow a pure common-sense logic that you can’t make something out of nothing when TPD benefits were denied to a claimant that submitted so little evidence, the Arbitrator nicely described it as “scant.” Generally, in Illinois, TPD benefits are owed when a claimant obtains new employment, either with their employer or with another, that is within the restrictions suggested by an expert in the case (either a treating doctor or Section 12 examiner). Benefits are calculated with the formula 2/3 x (A-B) where A represents the pre-injury average weekly wage and B represents the post-injury average weekly wage.

What can our hearing officers do if B doesn’t exist? In Menefee v. IWCC, Petitioner was awarded medical and TTD benefits for a shoulder injury that was surgically repaired twice. Petitioner was, at one point in the claim, released to work with restrictions by his surgeon and Respondent was able to accommodate. For reasons not described in the decision, Petitioner was eventually terminated from this light duty position whereupon TTD benefits were issued.

Petitioner was issued (and awarded) TTD benefits until August 31, 2021 when Petitioner began working with a second employer. Petitioner testified he earned $5,200.00 from his post-injury employer between August 31, 2021 and February 13, 2022. That appears to be the last bit of evidence that suggests a calculation could be made. Petitioner testified he worked as a “fill-in” employee, not as a “regular” employee. Additionally, Petitioner testified he would “sometimes go 2 or 3 weeks and then [he] went a few months with nothing.”

Petitioner also testified he owned a business however that business did not supplement his lost income from Respondent. Petitioner was also captured on surveillance video working and operating a dump truck, apparently for a friend’s company. Petitioner explained he worked at that job for three hours before leaving for the day due to an increase in pain.

In the decision, the Arbitrator stated specifically “While an award of TPD might be available to Petitioner from August 31, 2021, through the time of arbitration, the amount of such benefits is too speculative to discern based upon the scant evidence provided about Petitioner’s current earnings.” Petitioner summarized his earning as $250 a week (attempting to average how much he made per week) however the IL WC Commission and Appellate Court, Workers’ Comp Division found this testimony to be contradictory to Petitioner’s prior testimony that he would go weeks or possibly months without working for his second employer.

Additionally, Petitioner did not submit any evidence of wages for his supposed owned business and the work for his friend involving operating a dump truck. Without evidence, even evidence in the form of consistent testimony about how much Petitioner was making, benefits are impossible to calculate and award. Without any coherent post-injury wages to use as a basis to calculate Petitioner’s TPD benefit, Petitioner was denied his request at trial.

We expect this opinion to reinforce our routine expectation that a claimant will testify to what they thought they were making at the time a case is tried. In some cases, this testimony may be taken at face value and be used as the basis of an award of TPD and/or wage differential benefits. The IL WC Commission and Appellate Court, WC Division in Menefee asks claimants to, at least, provide one of two corroborating pieces of evidence before TPD/wage differential benefits are awarded:

1. A coherent weekly or monthly summary of approximate hours worked at a rate of pay or;

2. Documentary evidence of wages to support a claimant’s testimony.

To clarify these situations, subpoena practice should be a necessary step in defending, reserving and understanding these types of claims. Should a post-injury employer comply with a subpoena, our ability to accurately predict potential trial exposure can vastly assist our decision-making processes and help answer questions about the appropriate next steps in handling a claim. Should a post-injury employer refuse to comply with a subpoena and if a claimant doesn’t provide this evidence himself, the Appellate Court has given a framework by which to argue unsubstantiated TPD/wage differential benefits should be denied.

This article was researched and written by: Timothy O’Gorman | A Veteran Defense Lawyer at Keefe, Campbell, Biery & Associates.

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1-27-25; Updated IL WC Rate Chart from Shawn Biery, JD; John Campbell on another new law and more

Synopsis: AS WE ARE NOW IN 2025—IL WC BENEFIT RATES STILL SPIRAL HIGHER??— SHAWN BIERY’S UPDATED IL WC RATE SHEETS AVAILABLE FOR ACCURATE WC RATES AND RESERVING!!! 

Editor’s comment: The IWCC has posted a new max TTD rate of almost $2,000 per week going into 2025 and max PPD RATE is growing higher, at $1,045.92.

FYI, Illinois WC rates have updated again so please be aware of the New IL WC Rates or your claims handling will suffer & penalties may ensue. Please also note that the IL State Min Wage also did rise another dollar on New Year’s Day, 2025. On January 1, 2025, the minimum wage in Illinois increased to $15 per hour and $9 per hour for tipped workers. This is the minimum wage for workers 18 years and older, or workers under 18 who work more than 650 hours in a calendar year—this is important in IL WC wage differential claims.

The Illinois WC system still appears to have some of the highest max rates in the entire country. If you look online at https://secure.ssa.gov/poms.nsf/lnx/0452150045#c16, you may note our IL WC rates are double or more than our sister States and because of the statutory increases built into the IL WC Act, this anti-business disparity will only increase. It clearly appears our IL WC Rates are going up much faster than inflation.

Email Marissa at mpatel@keefe-law.com to Get a Free and Complimentary Email or Hard Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet! You can also send any questions to Shawn at sbiery@keefe-law.com

As we have mentioned in the past, since the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, WC rates continue to climb.

As we indicate above, rising minimum wages will strip value from Illinois’ expensive wage loss differential claims. We feel reserves and settlements need to reflect the legislative boost to anyone who has any job. If you aren’t sure how this works, send a reply to Shawn at sbiery@keefe-law.com

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is $1,045.92. However, this rate is retroactive to July 1, 2024 even though published in January 2025. Since this rate did change retroactively from July 1, 2024 forward, you need to check your reserves for cases with accident dates post July 1, 2024!!!!.  If you don’t make the change, your reserves will be incorrect--if this isn’t clear, send a reply.

The current TTD weekly maximum has risen to $1,936.86. An IL worker who earns over $2,905.29 per week or $151,075.08 per year will hit the new IL WC maximum TTD rate.

For WC Death Benefits: The new IL WC minimum still is well past the $900k floor for surviving widows/widowers. That amount is now 25 years of compensation or $726.34 per week x 52 weeks in a year x 25 years or $944,242!! The new maximum IL WC death benefit is over $2.5 million at the max over 25 years of benefits, plus burial benefits of $8K. IL WC death benefits are paid for 1,300 weeks—in contrast, IN WC death benefits are paid for 500 weeks.

IL WC death benefits also come with annual COLA increases which we feel can potentially make Illinois the highest in the U.S. for WC death claims—again if you aren’t sure about this issue, send a reply to Shawn. It is also possible to settle IL WC death benefits for a discounted lump sum—again, if you have interest, send a reply to Shawn.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet.  If you want just one or a dozen or more, simply send a reply to Marissa at mpatel@keefe-law.com  AND you can also send any questions to Shawn at sbiery@keefe-law.com    

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Synopsis: Disability no longer equates to Discounted Pay In Illinois; this change can impact minimum TTD and PPD rates for such claims. Researched and written by John P. Campbell, Jr., JD

Editor’s Comment: Gov. J.B. Pritzker has signed off on a law which will prohibit IL employers from paying less than the minimum wage to workers with disabilities. While well-intended, it may have unforeseen consequences.

Section 14(c) of the FLSA authorizes employers, after receiving a certificate from the Wage and Hour Division, to pay subminimum wages - wages less than the Federal minimum wage - to workers who have disabilities for the work being performed. Organizations receiving the exemption are allowed to pay a “commensurate wage” based on the worker’s individual productivity in proportion to the wage and productivity of workers who do not have disabilities but are performing the same or similar work. In essence, the rule appreciates an adjustment in wages where disabilities may affect productive capacity, such as blindness, mental illness, developmental disabilities, cerebral palsy etc.

While proffered as an equity issue to offer fair wages to the disabled, those opposed to the bill point out that the disabled may be pushed out of the workforce entirely if minimum wage laws are enforced. Some organizations who employ disabled workers as part of their business model, as well as people with family members participating in them, cautioned this new law may drive them out of business. Illinois has almost 60 employers operating under the federal exemption. Those programs employ about 2,500 people, according to the U.S. Department of Labor. If those businesses closed, or the disabled workers are replaced due to equal pay compulsion, it would defeat the well-intended purpose of the law.

To remedy this concern, the bill creates a transition grant program designed to provide financial support for organizations to continue employing people with disabilities while paying them at least the state minimum wage. It also establishes a task force to oversee the transition.

Money for the transition program would come from the Illinois Department of Human Services’ line item for transforming the state’s developmental and intellectual disability system. That line item includes $20 million for various programs for the current fiscal year, but lawmakers and advocates had previously discussed using $2 million to fund the transition grant program.

The impact on the workers’ compensation industry should be relatively moderate, appreciating an increase in wages and therefore benefit rates for qualified workers under this program.

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