I&F Champaign Celebrates Second Anniversary

View of downtown Champaign including I&F South

View of downtown Champaign including I&F South

Inman & Fitzgibbons was founded over 24 years ago with the goal of delivering the highest quality legal services throughout the entire state of Illinois in a timely and cost-effective manner.  In support of that goal, I&F opened the doors to its Champaign office, led by Partner and Danville native Colin Mills, in the summer of 2012.

Since 1990, Inman and Fitzgibbons has grown to become a regional firm representing Illinois, Iowa, Wisconsin, Missouri, and Indiana employers in the areas of workers’ compensation, subrogation and general liability defense.  Client service has always been, and remains, the firm’s first priority.

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Exaggeration and Misrepresentations by Petitioner Result in Reduction of Award by Commission

In a victory for Respondents at large, the Commission reduced an Arbitrator’s award from 30% loss of use to the man as a whole to 22.5% loss of use to the man as a whole.

In this case, the petitioner, a certified nursing assistant, was injured in a motor vehicle accident. An FCE ultimately limited her to occasionally lifting 14.8 pounds at the chair to floor height, and occasionally lifting 20 pounds from desk to chair height. Additionally, the FCE limited the petitioner to standing for 40 minutes duration for up to a total of 4 hours. The petitioner was unable to return to work as a certified nursing assistant and obtained a different job within her restrictions through vocational rehabilitation. Based upon the foregoing, the Arbitrator awarded “loss of occupation” benefits pursuant to Section 8(d)(2) of the Act in the amount of 30% loss of use to the man as a whole.

The respondent appealed the Arbitrator’s award to the Commission. The Commission concluded that the petitioner exaggerated the true nature of her physical condition at trial to such a degree that the Arbitrator’s award of 30% loss of use to the man as a whole was excessive.

Specifically, the Commission noted that at trial on May 13, 2013, the petitioner testified that her then present symptoms were severe, including a feeling that her veins were bursting, that her legs would swell up, that she would lose her balance, and that she would have to sit for an hour or two before work due to pain.  Notwithstanding this testimony that would appear to warrant medical attention, the petitioner had not treated since 2011. In addition, the Commission noted that the petitioner’s then testified to condition had dramatically worsened as compared to her condition upon discharge from physical therapy on December 8, 2011. The Commission found it incredible that the petitioner chose to live with her claimed symptoms rather than seek medical treatment for her claimed worsening of symptoms.

The evidence the Commission found most telling was misrepresentations the petitioner made to her treating physicians while actively treating. The evidence adduced at trial established that the petitioner repeatedly told one treating physician that she was scheduled to follow up with a surgeon for a surgical consultation but she never did so. Furthermore, the petitioner told another treating physician that she was going to seek chiropractic care but she never did so. Finally, the petitioner failed to inform one of her physicians that this physician’s colleague had previously discharged her from his care after testing negative for opiates (despite having been prescribed them for a year) and after the petitioner failed to provide a urine sample for a toxicology test and then tried to obtain a urine sample from a third person.

This case demonstrates how important it is for defense counsel to adduce evidence at trial that impugn a petitioner’s credibility. Here, the misrepresentations made by the petitioner and her exaggeration of her symptoms at trial that did not comport with the medical evidence allowed for sufficient evidence to warrant a reduction in the award by the Commission.

Thanks to Scott McCain for the summary.

Commission’s Reversal Illustrates “Kneed” for Careful Investigation of Pre-Existing Degenerative Conditions

Our office is pleased to report the receipt of a favorable Decision and Opinion on Review from the Commission modifying the original decision of the Arbitrator.   In this case, the petitioner, a firefighter, sustained a compensable work related accident injuring his right knee and underwent surgery.  Following surgery, therapy, and an FCE, the treating doctor found the petitioner to be at MMI. Four  months later, the petitioner returned to his treating doctor who noted end-stage degenerative changes and recommended a  total knee replacement.

Our client denied the need for the total knee replacement based on the opinion of our IME, who opined that the accident only temporarily aggravated the chondromalacia and that the need for the procedure was not related to the accident.  At trial the Arbitrator  found the petitioner’s right knee condition causally related to the work accident and awarded prospective medical care including a total knee replacement and further found our IME opinion to be not persuasive. The Arbitrator further awarded  over 100 weeks of TTD benefits.

After reviewing our brief and listening to our oral argument, the Commission disagreed with the decision of the Arbitrator and found that the petitioner had evidence of bone-on-bone anterior compartment osteoarthritis at the time of surgery.  The Commission further found the petitioner was at MMI on February 17, 2012, despite indications that there was significant arthritis which would severely impact his ability to work as a firefighter. The Commission relied on the opinion of the IME and found that the work accident only temporarily aggravated the petitioner’s  pre-existing chondromalacia.  The Commission concluded that the petitioner reached MMI on February 17, 2012 and awarded only 30 weeks of TTD benefits.  The Commission further vacated the award for prospective medical care including the knee replacement.

Congratulations to veteran attorney Jill Baker for this outstanding result.

I&F 2014 Golf Outing

On June 13 and 14 the attorneys from Inman and Fitzgibbons participated in the annual I&F Golf Outing at Geneva National Golf Club in Lake Geneva, Wisconsin. We were fortunate to have beautiful weather on both days for the second year in a row and, per tradition, no injuries were reported.

Here are the pictures of the foursomes from Day 1.

Steve Murdock, Steve McClary, Lauren Waninski, Paul Tsukuno

Steve Murdock, Steve McClary, Lauren Waninski, Paul Tsukuno

Michael Bantz, Kevin Deuschle, Jack Shanahan, Mark Carter

Michael Bantz, Kevin Deuschle, Jack Shanahan, Mark Carter

Tom Fitzgibbons, Jynnifer Bates, Michael Inman, Colin Mills

Scott McCain, Kristin Thomas, Jill Baker and Terry Donohue

Scott McCain, Kristin Thomas, Jill Baker and Terry Donohue



Section 5(a) of the Illinois WC Act Recently Amended

Section 5(a) of the Illinois WC Act was recently amended, removing the exemption from civil liability of “any service organization retained by the employer . . .to provide safety service, advice or recommendations for the employer.”  The new law now allows an injured worker to sue such an entity, unless the entity is “wholly owned by the employer, his insurer or his broker.”

For example subsequent to this amendment, if a safety service company goes onsite and makes recommendations in a factory as to machine placement, guards, flooring surfaces, etc. so as to avoid worker injures, a worker at a company to which the safety service company provided service can now civilly sue the safety service company when they are hurt because of alleged negligence in the provision of those services. The injured worker could not sue the safety service company if it is wholly owned by the employer, insurer or broker.

These issues were discussed shortly before the amendment in the Mockbee case, in which our office was involved, where the claimant was injured when she fell into a vertical manlift that was surrounded by a railing on only two sides.  The plaintiff sued two companies that were involved in service and maintenance of the manlift, on the basis that they performed inspections and made recommendations regarding safety aspects of the lift’s operation.  The trial court granted summary judgment against one defendant on the basis that its involvement ended following its inspection and report in 1991, when the configuration of the manlift was different than at the time of the accident in 2002, and summary judgment for the other defendant on the basis that the unguarded floor opening around the manlift into which the claimant fell was open and obvious.

On plaintiff’s appeal to the appellate court, the court took up an issue raised only by the second defendant in the trial court, and ignored by the trial judge, that it was immune from liability as a safety service organization under section 5(a) of the Act.  The other defendant joined in this argument on the appeal, and the court upheld the dismissal of both defendants, but on the basis of the immunity provided in section 5(a).

The Court noted the plaintiff’s argument that only entities that contribute to the worker’s compensation system, such as employers, insurers, etc, should enjoy the benefit of the immunity of section 5(a), but stated that if the legislature intended that, then they could have written that qualifier into section 5(a).  The Court then noted other states that have specifically done that, such as providing immunity to safety consultants that furnish safety services “incidental to the workers’ compensation or employers’ liability coverage.”  The Court cited statutes from three states that have similar provisions, and said if Illinois intended to limit the immunity like that, the General Assembly could have written that into section 5(a).

As we now see, the Illinois General Assembly has responded and amended section 5(a) as indicated above, limiting the immunity to safety services provided by a company “wholly owned by the employer, his insurer or his broker and that provides safety service, advice or recommendations for the employer or the agents or employees of any of them. . . ”

As such, in Illinois, if an insurance company were to hire an outside safety service company to provide services for an insured, that company would not be immune from civil suit by the injured worker under the amended section 5(a), as it is not wholly owned by the insurance company.  The insurance company, on the other hand, would still be immune as the employer’s insurer.

If the insurance company has its own safety department to perform these tasks, it remains immune from civil liability as it is the insurer providing these services.  Likewise, a broker that provides these services with its own employees, or wholly owns such a company, retains its immunity from civil liability.

In short, we will now possibly see more litigation stemming from workplace injuries against companies that provide safety services, advice or recommendations to employers, but employers, insurers and brokers themselves retain the exclusive remedy protection they always had.  The new battleground will be likely be confined to whether safety services provided by these entities come from its employees and wholly owned entities (immune from civil liability) or separate companies that provide these services (likely not immune).

Should you have any other questions, please contact Attorney Jack Shanahan, who was involved with the Mockbee case on behalf of Inman and Fitzgibbons

Commission Finds Wage Differential Award Speculative, Awards § 8(d)2 MAW Instead

In Nebelsick v. Smith Specialized Heavy Hauling, 10 IL.W.C. 17711 (Ill. Indus. Com’n Oct. 24, 2013), the Commission found that the Arbitrator’s wage differential award based upon a hypothetical $12.00 per hour job for the claimant was not substantiated by the evidence, and replaced it with a PPD award of 45% loss of the person as a whole under section 8(d)2 instead.

in this case, the claimant fell on his shoulder on October 14, 2009, causing a rotator cuff tear.  Following surgery and conservative treatment, the claimant was given permanent restrictions of no lifting or carrying more than ten pounds with the right arm, no more than twenty-five with both arms, and no reaching or use of the right arm above shoulder or head height.  The respondent provided vocational rehabilitation beginning in October of 2011 and lasting through June of 2012.  The claimant testified that he completed approximately 200 applications during his vocational rehabilitation and another 200 during his self-directed job search, and that most of these were submitted online and involved jobs in the trucking industry.

The vocational counselor testified that there were seven viable open positions in the claimant’s area as of August of 2012, and that these ranged in pay from $10.00 per hour to $1,100 per week.  She also testified that the claimant was merely “going through the motions” regarding his efforts and that the claimant was resistant to constructive feedback on how he could his improve his job search.  Lastly, she opined that the claimant was employable and that a stable labor market existed for him.

The Arbitrator found that the claimant was not entitled to permanent total disability benefits, but that he was capable of obtaining a position that would pay $12.00 an hour.  Accordingly, he was awarded wage differential benefits of $533.33 per week.

However, the Commission found that the evidence was insufficient to establish a wage differential award.  The Commission noted that the vocational expert opined that that the claimant could obtain a job paying up to $25.00 per hour and stated, “We do not find any persuasive evidence that Petitioner is only able to earn wages at the lowest end of the income spectrum in entry level positions that are outside of his areas of training and experience, and we find the Arbitrator’s award to be speculative.”  Id. at 1.  The Commission replaced the wage differential award with an award for 45% loss of the person as a whole, or $149,562.00, based upon section 8(d)2 of the Act.

This case indicates that in claims where a vocational expert testifies that the claimant could obtain employment in a range of different wages, the respondent may be able to obtain a loss of the whole person award based upon section 8(d)2 of the Act, rather than a wage differential award that is foundered on a hypothetical wage that the claimant could earn and provided the petitioner has a questionable job search and no other evidence in his favor.

Thanks to attorney Michael Bantz for this summary.  If readers have any questions regarding this case, they can be sent to Michael at mbantz@inmanfitzgibbons.com.

I&F Ran for GiGi

As promised, on Sunday, June 8th, the I&F Volunteers (Steven Murdock, Kevin Deuschle, and Mark Carter), ran in the annual GiGi’s Playhouse 5k and raised well over $1,00 for the Fox Valley Playhouse, of which Steve is currently the Board President.  GiGi’s Playhouses are Down syndrome awareness and educational centers that provide resources, specialized teaching, and support to individuals with Down syndrome, their families and the community.

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Mark Carter finishes his race

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I&F race volunteers: Grace Bogdan, Mrs. Chepon, and Jillian Chepon

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The Main Stage

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Steve Murdock, Kevin Deuschle, and Mark Carter in a post-race selfie

I&F Runs for GiGi

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Last year, I&F ran in ran in the annual GiGi’s Playhouse 5k and raised over $900 for the Fox Valley Playhouse, of which Steve Murdock is currently the Board President.  GiGi’s Playhouses are Down syndrome awareness and educational centers that provide resources, specialized teaching, and support to individuals with Down syndrome, their families and the community.

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On Sunday, June 8, 2014, many of our attorneys will once again be participating in this event in support of this cause.  If you are interested in learning more, or participating, please click here.

Cost of Workers’ Compensation in Illinois Decreased from 2009 to 2011, Still Higher Than Other States

The Workers’ Compensation Research Institute has published, in graph form, some of their findings comparing Worker’s Compensation statistics across several states.

One significant statistic is that the average cost of incurred benefits in Illinois, for claims with more than seven days of lost time, decreased from $59,907 in 2009, to $44,145 in 2011.  However, of the 15 states involved in the study, Illinois had the highest average cost in both 2009 and 2011.  In 2011, of the 15 states studied, Iowa ranked fourth highest ($37,798), California ranked eighth highest ($32,032), and Wisconsin ranked ninth highest ($31,419).  In all of these states, the cost decreased in 2011, compared against 2009 costs.

The WCRI also examined the number of claims with more than seven days of lost time, as a percentage of all paid claims.  This study was for claims that arose from October 2010 through September 2011.  Of the sixteen states studied here, Illinois ranked second highest, with 26% of all paid claims involving more than seven days of lost time.  California ranked third highest (25%), Iowa ranked eighth highest (18%), Wisconsin ranked twelfth highest (16%), and Indiana ranked the lowest (16th at 13%).

Also of note is the average duration of temporary disability.  The same sixteen states were studied for claims arising in the same time period.  In Illinois, the average temporary disability for a claim with more than seven days of lost time was 14 weeks (tied at fifth/sixth highest).  California averaged 16 weeks (second highest), Indiana averaged 10 weeks (three way tie 12/13/14th), and Iowa and Wisconsin tied for the shortest duration of temporary disability (15/16th at an average of 9 weeks).

The graphs that the WCRI has published can be found here.

 

Thanks to attorney Michael Bantz for following this important issue.  If readers have any questions regarding this study, they can be sent to Michael at

mbantz@inmanfitzgibbons.com.

Attorney Loses Claim for Benefits when Injured on the Way to Work

The Commission recently affirmed the Arbitrator’s decision in a case – Djokic v. National Union Fire Insurance, in which benefits were denied after the Arbitrator found that the Petitioner was not a “traveling employee,” that she was not required to take work home from the office, and that her briefcase full of files was not the cause of her accident.

Injuries that occur off the employer’s premises are generally not compensable unless (1) the employee’s presence was required in the performance of his or her duties, and (2) the employee is thereby exposed to a risk common to the general public but to a degree greater than other persons. Both elements must be fulfilled in order for an injury to be compensable.

In this case, the Petitioner sustained an injury to her leg when she slipped on ice and fell while crossing a street near her office building on the morning of Tuesday, January 18, 2011. The Petitioner worked as an attorney for an insurance company in Chicago. She had taken a train from her residence in northwest Indiana and exited at a stop near her Chicago office. The Petitioner testified that she was carrying a briefcase full of files that she had taken home to review over the weekend, which weighed between 10 and 20 pounds. She testified that she sometimes goes directly to the Illinois Workers’ Compensation Commission instead of going to her office first. However, on the day of the accident, the Petitioner testified that she planned to drop off the files that she had in her briefcase and to pick up the file that she needed for a hearing at the Commission.

The Petitioner was carrying her own personal briefcase. Her accident occurred on a public sidewalk on a public street. The Petitioner testified that there was a light snow on the ground and the reason that she fell was because of a patch of ice. The petitioner denied that there were any specific work hours in regard to her employment, but acknowledged that regularly scheduled workdays were Monday through Friday. The Petitioner testified that she had a company-issued Blackberry that she usually turned on at 7:00 a.m. to respond to emails, but that she was not using same at the time of her slip and fall. In addition, there was testimony from two of the Petitioner’s co-workers, both attorneys, that they sometimes took work home, but that it was not required.

The Arbitrator noted that there was no evidence presented that Petitioner was required to carry files back and forth from the office and rejected the Petitioner’s argument that she was working on those files for the benefit of her employer. Furthermore, the Arbitrator found that the evidence indicated that the patch of ice on a public street had caused the petitioner’s fall and not the briefcase.

The Arbitrator found that the Petitioner’s accident did not “arise out of” her employment since the accident occurred on a public sidewalk on a public street and that the risk of injury was the same as the risk assumed by the general public. The Arbitrator also found that the Petitioner’s accident did not occur “in the course of” her employment because the act of coming from and going to work is not in the course of employment.

The Arbitrator cited Caterpillar Tractor Co. v. Industrial Commission, 129 Ill.2d 52, 133 Ill.Dec. 454, 541 N.E.2d 665 (1989) in finding that “the Courts have held that injuries that occur on an employer’s premises within a reasonable time before or after work are generally considered to occur in the course of employment . . . However, in order for the claim to be compensable, there must be a risk associated with the employment and not a risk common to the general public.” The Arbitrator found that the petitioner was not engaged in her employment at the time of the injury, but was rather simply traveling to her place of employment.

The Arbitrator noted that there were exceptions to the general rule that accidents that occur while an employee is traveling to or from work are not compensable. The exception applies when the employee is traveling to or from work and the course or method of travel is determined by the demands or exigencies of the job rather than by the personal preference as to where the employee chooses to live. Chicago Bridge & Iron v. Industrial Commission (1993), 248 Ill.App.3d 687, 618 N.E.2d 1143, 188 Ill.Dec 573). In this case, the Arbitrator found that there was no evidence presented that the petitioner’s course or method of travel was required by the Respondent.

The second exception indicated by the Arbitrator concerning travel to and from work is the exception of the “traveling employee.” In Wright v. Industrial Commission, 62 Ill.2d 65, 338 N.E.2d 379 Ill. (1975), the Supreme Court of Illinois determined that a traveling employee was defined as one who is required to travel away from the employer’s premises in order to perform his job. In this case, the Petitioner testified that she worked regularly at her office location from Monday through Friday, that she was not compensated for her travel time and that she admitted that she was not a traveling employee at the time of this accident. In addition, the Petitioner’s supervisor testified that taking work home was never required.

Pursuant to the above-cited case law, the Arbitrator found that the petitioner’s injuries were not compensable.  The Arbitrator’s decision was affirmed and adopted upon review by the Commission.

Thanks to attorney Mark Carter for following this case and providing the summary.

I&F Establishes PTSD Not Related to MVA Involving Death of Pedestrian

I&F successfully defends claim for PTSD allegedly caused by accident in which petitioner, a medical supply driver, struck and killed a pedestrian while making a delivery. Following the accident, the petitioner received six months of treatment for anxiety. He then stopped treating for  1 ½ years. When he resumed treatment, he was diagnosed with PTSD by his primary care physician, a psychiatrist, and a psychologist. He embarked on a lengthy course of treatment that involved counseling. The petitioner’s psychologist testified that PTSD was caused by the accident and recommended EDMR (eye movement desensitization and reprocessing). She also testified that the petitioner was unable to work and may never be able to do so.

The evidence adduced  at the 19(b) trial by our firm established that none of the treating providers ever restricted the petitioner from driving. Furthermore, at trial, the petitioner admitted that during the course of his treatment he engaged in recreational driving to California, recreational driving to Florida, and weekly motorcycle club meetings to which he drove his motorcycle.  The Arbitrator adopted the opinion of the respondent’s IME doctor, who testified that someone who continues to drive a car and ride a motorcycle does not fit the diagnosis of PTSD incurred while driving a vehicle. The Arbitrator noted that both of those put the petitioner in situations similar to or perhaps more dangerous from a risk perspective than his actual driving behavior in the context of this claim. The Arbitrator also found the significant gap in treatment to be telling.

I&F also established that none of the petitioner’s providers fulfilled the DSM-IV criteria by assessing the petitioner for exaggeration or malingering through utilization of objective pathology to look at whether the petitioner had a credible response pattern.  The respondent’s IME doctor was the only medical professional in this case that actually assessed the validity of the petitioner’s symptom presentation. The respondent’s IME doctor testified that the petitioner failed multiple objective tests, establishing a pattern of a malingering approach to presentation of symptoms indicating non-credible simulation for secondary gain.

The Arbitrator concluded that the accident caused a “temporary period of upset,” but that the petitioner failed to prove that the accident caused PTSD. Prior to trial, the settlement demand was in excess of $500,000.00.  The petitioner has appealed the Arbitration Decision.  Congratulations to veteran attorney Scott McCain for the excellent result.

Municipal Employees – Appellate Court Considers the Overlap between (some) Duty Disability & WC Claims

A recent appellate court ruling discussed the interaction of the Worker’s Compensation Act with the Pension Code as it relates to work injuries sustained by firefighters and, by inference, policeman.  In The City of Chicago v. Illinois Workers’ Compensation Commission2014 IL App (1st) 121507 WC (January 6, 2014), the claimant suffered kidney failure while undergoing training to become a  paramedic with the Chicago Fire Department.  He was restricted from working following his May 6, 2008 incident and then later released to work at various degrees on separate dates by different doctors. The claimant filed for a duty disability pension with the city’s Pension Board, which determined that he was capable of returning to work as a firefighter as of August 3, 2009.  The Board therefore denied the claimant’s application for a disability pension. The claimant did not resume employment with the fire department, however, and on October 6, 2009, he began part-time work with a different employer.  He filed an Application with the Worker’s Compensation Commission, and his case went to hearing on his claim for  TTD through October 5, 2009 and TPD benefits for his diminished earnings in his new job.

The court first addressed, and rejected, the city’s argument that the claimant could not file for benefits under the Worker’s Compensation Act, due to the unique status of Chicago firefighters under the Act, whose claims are barred by statute other than for disfigurement claims. This prohibition does not apply to firefighters elsewhere in the State.

The city next argued that by virtue of the Pension Board’s determination denying petitioner’s duty related disability benefit, his claim for benefits for work-related injury before the Commission was barred by res judicata and collateral estoppel. The Court’s ruling on this issue does apply to firefighters (and policeman) throughout the State.

The court rejected the res judicata argument, which would have barred the claim entirely, relying on the fact that the Pension Board did not determine whether petitioner was or was not injured in the course and scope of his employment.  In fact, the Court found that the implication from the Board’s decision was that he was injured in the line of duty.  Regardless, the Pension Board’s determination that the claimant could resume the full duties of a firefighter as of August 3, 2009 – based on the medical examinations conducted by the Board and introduced into evidence during the hearing of the pension claim – meant that he was not disabled from duty as a firefighter and therefore could not receive a duty disability pension. This was a different issue than determining whether petitioner was injured in the course and scope of his employment. The court thus allowed the petitioner to proceed on his claim for benefits under the Act.

In further ruling, however, the court found that the claimant was barred from relitigating certain issues in his workers’ compensation claim, due to collateral estoppel.  Specifically, the claimant was barred from relitigating whether he was disabled after August 3, 2009 and whether he was able to return to work.  The Court ruled that the petitioner was prevented from claiming entitlement to benefits after August 3, 2009 at the Commission because the Pension Board had found that he was not disabled after that date and could return to work with the fire department.  Because this issue was identical in both cases, the parties in both proceedings were the same or in privity with each other, and because the claimant had a full and fair opportunity to contest the issue before the Board, his claim for benefits after August 3, 2009 was barred by collateral estoppel.

It is important that municipal employers consider the similarities and differences between a workers’ compensation claim and proceedings before the city’s pension board involving its firefighters and police personnel.  Even though claimants will be able to seek benefits from both sources simultaneously, decisions made in a proceeding for a disability pension may prevent a claimant from attempting to litigate those issues a second time before the IWCC.

Thanks to Partner Jack Shanahan and attorney Michael Bantz for the summary and discussion.

Legislative Update: “Major Contributing Cause” Measure Advances in IL House

According to our friends at the Illinois Chamber of Commerce, HB 6218 was sent to the House Labor Committee earlier this week. HB 6218 amends the Workers’ Compensation Act and establishes a new causation standard.  In addition to defining the terms “accident” and “injury,” the bill provides that “injury” includes the aggravation of a pre-existing condition by an accident arising out of and in the course of the employment, but only for so long as the aggravation of the pre-existing condition continues to be the major contributing cause of the disability. An injury resulting directly or indirectly from idiopathic causes also would not be compensable.

 

The measure is sponsored by Republican Leader Jim Durkin with co-sponsors Dwight KayDarlene J. SengerKeith P. SommerC.D. Davidsmeyer, Ed Sullivan, Jr., David Reis, John D. Cavaletto, Chad Hays, Mike Fortner, Michael Unes, Adam Brown, John D. Anthony, Bill Mitchell, David Harris, Kay Hatcher, Thomas Morrison, Patricia R. Bellock, Jeanne M Ives, John M. Cabello, Dan Brady, JoAnn D. Osmond, David McSweeney, Ron Sandack, Michael W. Tryon and Barbara Wheeler

I&F AMA Impairment Rating Seminar on April 17th

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Partner Steven Murdock, along with our friends at the Illinois Chamber of Commerce and Dr. Babak Lami, will be discussing the AMA Impairment Ratings used in determining Permanent Partial Disability. Topics  include:

  • What is the law in Illinois?
  • Impairment vs. Disability?
  • How is the law applied?
  • When should an Impairment Rating be obtained?
  • Possible “Rules” for use of AMA Ratings?
  • Examples from the IWCC.
  • What should we expect from this new law?
  • Use of the AMA Guide and definitions.
  • When are Impairment Ratings performed?
  • General concepts and Case Studies – And More

*REGISTRATION INFORMATION*

Thursday, April 17, 2014 7:30 am – 9:30 am Western DuPage Training Center, 306 Main St., West Chicago, IL 60185

To register or for more information call Pam Holleman, HR Specialist/Event & Publication Sales at (855) 239-6150 or pholleman@ilchamber.org

Continental breakfast will be served at 7:30 am – time for networking

Price includes breakfast, credits, and all materials for course

Early Bird – (For Everybody) – Sign up before April 10 – $35

Member Price – (For members of Illinois Chamber and local Chamber partners) – $55

Retail Price – $75

 

This seminar has been pre-approved to offer 1.5 HRCI credits

This seminar has been submitted for approval to offer 1.5 CLE credits

Seminar is approved for 2 Insurance Industry CEU credits (Texas) provided by ExamWorks

 

 

Everyday Job Stress Not Compensable

The Commission recently affirmed the Arbitrator’s decision in a recent case - Job v. State of Illinois/Ann Kiley Center - in which benefits were denied after the Arbitrator found that the Petitioner failed to prove a sudden, severe emotional shock traceable to a definite time, place and cause.

As we recently wrote,  a psychological disability can be compensable, without physical injury or physical contact, but it must arise in a situation of greater dimensions than the day-to-day emotional strain and tension that all employees experience.

In this case, the Petitioner worked as a supervisor for two state-run residential homes for adults with disabilities. She allegedly suffered disabling depression and anxiety due to harassment and stress caused by her supervisors and an increased workload. The Petitioner testified that she complained to her supervisors and requested that she supervise only one home because two homes were too stressful.

The Petitioner testified that she met with her supervisors in her office after she was given a 5-day suspension for disciplinary reasons. The supervisors questioned the Petitioner and assigned her additional work. When the petitioner objected, she was advised of the consequences of her failure to complete the assigned work. The Petitioner subsequently filed an incident report with the facility director and alleged that her supervisors yelled at her, harassed her and threatened her job. She indicated that she felt sick and anxious over the next 10 days and sought treatment. She was diagnosed with anxiety and major depression.

The Arbitrator noted that circumstances were limited for the compensability of a mental disability without any physical injury. In order to do so, a claimant must show that she suffered a severe, sudden, emotional shock traceable to a definite time, place and cause. In this case, the Arbitrator found that the evidence presented failed to reach that level and that the petitioner did not prove a compensable accident that arose out of and in the course of her employment. The Arbitrator’s decision was affirmed and adopted upon review by the Commission.

Thanks to I&F attorney Mark Carter for this case summary.

I&F Opens in Missouri

Inman & Fitzgibbons is excited to announce the opening of a new office in St. Louis, Missouri.  Inman & Fitzgibbons has represented employers, insurers and TPAs throughout the entire state of Illinois since it’s founding in 1990. This new office will enable the firm to offer these services to our clients throughout the state of Missouri.

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In addition to Illinois and Missouri, Inman and Fitzgibbons represents clients in Iowa, Wisconsin, and Indiana in the areas of Workers’ Compensation and General Liability Defense

Our Missouri practice will be led by Partner Steven Murdock and Attorney Jill Baker.

Illinois Courts Revisit Interstate Scaffolding

Workers’ Compensation claimants who are fired for reasons that are completely unrelated to their claim may still be entitled to TTD benefits, as established by the well-known Interstate Scaffolding Inc. v. Illinois Workers’ Compensation Comm’n, 236 Ill.2d 132, 923 N.E.2d 266 (2010). Since Interstate Scaffolding, there has been a lack of clarity whether employees who have work restrictions and are fired are always entitled to total temporary disability benefits. In late 2012, the IWCC issued a decision, Walter Matuszczak vs. Wal-Mart, 10 IL.W.C. 11819 (Ill. Indus. Com’n Oct. 5, 2012), that revisited Interstate Scaffolding, distinguishing and elaborating on the Illinois Supreme Court ruling in that case.

In Matuszczak, the claimant worked as a product stacker when, on March 7, 2010, containers that weighed 150-200 pounds fell on him, causing injuries to his neck, back, and right arm. On March 10, 2010, the claimant was given light duty work restrictions, which were accommodated by the employer. By June of 2011, the claimant continued to work with light duty restrictions and was still treating.

On June 12, 2011, the claimant was terminated due to the fact that he repeatedly stole cigarettes from his employer. The claimant was unable to find a job that would accommodate his work restrictions and demanded TTD benefits, which the employer denied.

At arbitration, the claimant was awarded TTD benefits from the date of termination onward. The Arbitrator relied on Interstate Scaffolding, stating, “even when the employee has been discharged, whether or not the discharge was for cause … the inquiry for deciding his entitlement to TTD benefits remains, as always, whether the claimant’s condition has stabilized. More to the point, the court [in Interstate Scaffolding] noted that if the injured employee is able to show that he continues to be temporarily totally disabled as a result of his work related injury, the employee is entitled to these benefits.”

The employer appealed, and the Commission, providing a bit of hope to employers in Illinois, reversed and modified the Arbitrator’s decision on the issue of entitlement to TTD benefits. The employer had argued that the claimant’s decision to steal cigarettes amounted to a voluntary refusal of light duty work due to the fact that the claimant knew he might be fired for theft. The Commission then addressed Interstate Scaffolding in detail, asserting that Interstate Scaffolding does not prohibit a denial of TTD benefits in every situation where an employee with work restrictions is fired.  The Commission stated, “We do not believe that the Interstate Scaffolding decision stands for the proposition that an injured employee, whose employment has been terminated, has an unqualified or absolute right to temporary total disability benefits[.]”

The Commission elaborated that while Interstate Scaffolding establishes that claimants who are terminated do not necessarily lose their entitlement to TTD benefits, a claimant is not entitled to benefits if the claimant is offered work by the employer that would accommodate their restrictions and the claimant voluntarily refuses to accept that work.  The Commission noted that the claimant in this case testified that he knew that theft was a criminal act that could result in him being fired and that if he had not been fired then the employer would have likely continued to accommodate his work restrictions.  Accordingly, the Commission found that the claimant’s decision to steal cigarettes on multiple occasions was effectively a decision to not accept the light duty work that the employer had offered him. Therefore, the Commission concluded that the claimant was not entitled to TTD benefits.

Unfortunately for Illinois employers, this story does not yet have a happy ending.  On March 23, 2013 the DuPage County Circuit Court reversed the Commission, without providing a written decision, in 2012 MR 001631. The case has been appealed to the Second District Appellate Court, who will hopefully provide a clear and comprehensive analysis of the relationship between TTD benefits and the termination of an employee for cause. Check back with us soon, as we will be providing additional updates when the Appellate Court’s decision is published.

Thanks to I&F attorney Michael Bantz for the summary of this important case.

I&F In the News

Lauren Waninski was recently interviewed in the 2013-2014 e-book edition of Ms. J.D regarding her perspective as a young attorney who went straight from undergraduate studies to law school.  Lauren’s interview, which begins on page 10, can be accessed via the link joom.ag/iEUX

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Ms. JD seeks to support and improve the experiences of women law students and lawyers and strives to give voice to why it matters that women continue to overcome barriers to achieve gender parity in the legal profession. You can read more about Ms. JD here.

Commission Puts the Brakes on Truck Driver’s Mental-Mental Claim

In a recent case upheld by the Commission – Shea v. RPRD Dyckman, Inc. –  a truck driver’s claim for benefits was denied after the Arbitrator found that he failed to meet both prongs of the compensability analysis for claims of purely psychological injury, or a psychological injury with no associated physical trauma.

In these cases, a claimant must show that:

  • He experienced a severe and sudden emotional shock; and,
  • The psychological injury was immediately apparent.

In this case, the claimant, a semi-truck driver, was involved in a motor vehicle accident.  Immediately after the accident, he heard screams and saw a man lying in the road with horrific head injuries.  At trial, he testified that he experienced shock, felt sick, was irritable and agitated, worried constantly, and had trouble sleeping.

He also testified that he was able to perform his regular job duties within days of the accident, had looked for work as a truck driver after the accident, and did not seek psychological treatment until seven months after the alleged date of accident.

In denying benefits, the Arbitrator cited the above in finding that the claimant failed to prove he had sustained an accident arising out of and in the course of his employment.

Commission Adopts IME and Denies Lumbar Fusion

Colin Mills recently preserved a victory before the Commission on a claimant’s review of a favorable arbitration decision. In this matter, the petitioner sustained a herniated lumbar disc as a result of a work-related injury.  TTD and medical benefits were paid through the date that our Section 12 Examiner opined that the petitioner had reached maximum medical improvement and could return to work without restrictions. However, the petitioner continued treating and sought approval for a lumbar fusion and continued TTD benefits. After trial, the Arbitrator found no medical causal connection between the alleged accident and the petitioner’s condition of ill-being and need for further medical treatment. The petitioner filed a Review Petition, but after briefing and Colin’s oral argument, the Commission affirmed and adopted the Arbitrator’s Decision. Based on the recommended treatment, and the lost time and anticipated permanency that would have followed, the savings to our client totaled over $100,000.00.