Pork, Sausage, & WC Legislation
A legislative update for our clients and Illinois employers and insurers from Partner G. Steven Murdock:
There is a well-known axiom that says, “Those with a taste for the law and sausage should not ask how either one is made.” As Inman & Fitzgibbons continues to monitor the activities of the General Assembly for any amendments to the Illinois Workers’ Compensation Act, we are often reminded of this statement and can truly appreciate the analogy.
Just this week on May 6, 2013, legislation was introduced in Springfield to amend the Act, and it has drawn the attention of our firm, the Illinois Chamber of Commerce and the Illinois business community. HB 3390 itself is simply a bill to amend the Illinois Condominium Property Act, and on its face has absolutely nothing to do with the Illinois Workers Compensation Act. It is Senate Amendment 1 to that House Bill, however, that tacks on proposed changes to the Illinois Workers’ Compensation Act.
So, you ask, how does an amendment to a bill addressing the right of condominium associations to install solar panels and wind turbines have any impact on workers’ compensation? This is precisely how some laws are made, validating the analogy to watching what goes into that sausage we enjoy on our pizzas.
Senate Amendment 1 to HB 3390 has no impact on the substance of HB 3390, but has everything to do with the Illinois Workers’ Compensation Act. Some of the proposed amendments to the Act are actually neutral or favorable for business, including an amendment to Section 8(e)(10) to confirm that the shoulder is considered part of the arm, not the whole person, in determining permanent partial disability. There are, however, certain provisions of the Senate Amendment that are intended to reverse some of the positive changes that occurred in 2011.
Perhaps the most noticeable amendment would be to Section 8.1b, which is the provision requiring the use of AMA ratings in determining permanent partial disability. The proposed amendment to this section is essentially to require that the IWCC consider the AMA rating with equal weight as it does with other factors, including the petitioner’s line of employment, age, etc. As Section 8.1b currently stands, the AMA rating is to be given greater weight than any of the other factors.
Two other amendments to the Act proposed in Senate Amendment 1 that would have a detrimental impact on employers include proposed amendments to Sections 19(k) (penalties provision) and 19(n) (interest accrual on review) of the Act. The amendment to Section 19(k) would be to allow for the payment of these penalties for unreasonable or vexatious delay in the authorization of medical treatment, not simply for the unreasonable or vexatious delay in the payment of compensation and medical benefits incurred.
The amendment to Section 19(n) sets the minimum interest to be accrued on an award for benefits while a case is pending on Review and appeal at 3% plus the average quoted prime rate on short-term commercial loans in effect on the day of the Arbitration Decision. The current interest rate is simply the quoted prime rate on the day of the Decision. Both of these proposed amendments mean only additional costs to employers.
HB 3390 Senate Amendment 1 has made it out of one Senate committee, and “negotiations” continue with the proposed language amending the Workers’ Compensation Act. Inman & Fitzgibbons continues to remain vigilant in its efforts to protect our clients’ interests before the IWCC as well as in the state legislature, and we will continue to keep you apprised of any efforts by our state legislators to increase employers’ costs of Worker’s Compensation in Illinois. Our office is a member of the Illinois Chamber of Commerce and its Workers Compensation Committee, which is actively involved in monitoring legislation such as this. If you have any questions regarding this proposed legislation, please do not hesitate to contact us.
I&F Welcomes Dane Kurth to our Champaign Office
Inman & Fitzgibbons is pleased to announce that Dane Kurth has joined the firm and will be based in our Champaign office. Dane was born and raised in nearby Danville, Illinois and attended the University of North Carolina at Chapel Hill where he graduated with a degree in Business Management. He then earned a joint JD/MBA degree from Southern Illinois University. Dane joins Inman & Fitzgibbons after spending five years prosecuting domestic violence and major felony cases at the Marion County Prosecutor’s Office in Indianapolis, Indiana, and is licensed in both Illinois and Indiana.
Dane will concentrate his practice on workers’ compensation and general liability defense in Central and Southern Illinois and Indiana.
I&F Prevails at Commission
Attorney Mark Carter recently obtained a victory for our client at the Arbitration and Commission levels in a case involving Co-Respondents representing the same employer, but through different insurance carriers. In this case, the petitioner sustained an accepted accident in November 2004 after falling on steps at work and was treated for a low back strain. The Respondent accommodated his temporary light duty restrictions and he did not miss work. He was released from treatment in March 2005. In February 2006, the petitioner fell again while carrying a 100-pound dresser and injured his back. The petitioner subsequently underwent three lumbar surgeries and a recommendation for continued treatment.
In support of our defense, our expert opined that the petitioner’s November 2004 accident was not the cause of his current condition and was not the cause of the need for three back surgeries and future medical treatment. The co-Respondent obtained multiple IME opinions that attributed the November 2004 accident to the petitioner’s need for multiple back surgeries years later.
The Arbitrator found the opinions of our IME doctor, who testified live at trial, and the treating physicians to be more persuasive than the co-respondent’s IME doctor’s opinions. The Arbitrator found that the petitioner’s lumbar injuries sustained in November 2004 were superseded by his later lumbar injuries in February 2006 and that while the petitioner did not have complete relief of his symptoms following the November 2004 date of accident, he continued working and stopped seeking medical care four months later. Moreover, he did not have work restrictions and was carrying a 100-pound cabinet in his subsequent accident when he tripped and fell. The petitioner testified at trial that he had more severe symptoms following his February 2006 accident, including more problems with his leg and foot.
The Arbitrator ordered the co-respondent (2nd accident) to pay 210 – 4/7 weeks of TTD benefits and all medical bills ($160,000+) following the February 2006 date of accident. The Arbitrator ordered our client to pay 1 – 2/7 weeks of TTD benefits for a brief period following the November 2004 date of accident. The Arbitrator denied a penalties petition against our client. The Arbitrator also found that the Petitioner failed to prove that a spinal cord stimulator was reasonable and necessary medical care to relieve the effect of the Petitioner’s work injuries.
On appeal at the Commission found that the Petitioner failed to prove that he was temporarily totally disabled for a 9-day period following his first accident and that there was no basis for the Arbitrator’s award, reversing the 9-day TTD award. The Commission otherwise adopted the decision of the Arbitrator against the co-Respondent. The Commission also affirmed the Arbitration award denying a spinal cord stimulator
The case is currently pending at the Circuit Court, pursuant to the appeals of the Petitioner and Co-Respondent.
Attorney Colin Mills recently persuaded the IWCC to reverse an arbitration decision in petitioner’s favor and find that the petitioner failed to establish that his accident arose out of and in the course of his employment. As a result of the Commission’s finding, the petitioner was awarded zero benefits.
In this case, the petitioner, a Paramedic, was returning to the employer’s station house in the employer’s ambulance when he decided to stop at his home in order to obtain equipment and materials to repair damage that he had caused to drywall at the station house. During his stop at home, the petitioner slipped in his own driveway and fractured his ankle. The petitioner underwent surgery, missed approximately four months of work, and filed a WC claim.
It was not disputed that the petitioner is considered a traveling petitioner in his capacity as a Paramedic. As a general rule, a traveling petitioner is held to be in the course of his or her employment from the time that he or she leaves home until they return. This type of employee may be compensated for an injury as long as the injury was sustained while engaged in an activity which was both reasonable and foreseeable to the employer.
It was the respondent’s position that this accident was not one that arose out of acts which the petitioner might be reasonably expected to perform incident to his assigned duties, and that the stop at home was unforeseeable. The employer had not directed the petitioner to make any repairs at the station house. As such, we argued that this deviation took the petitioner out of the course of his employment and that no benefits should be awarded. The Commission (in a 2-1 Decision) agreed. The Commission specifically found that the petitioner’s duties did not include fixing or repairing drywall and, furthermore, that the petitioner returned home on his own initiative, and for his own purposes, as he was never asked by the employer to fix the drywall. As such, the Commission found that it was neither reasonable nor foreseeable that the petitioner would then need to obtain repair materials from his home.
As the petitioner failed to establish that his accident arouse out of and in the course of his employment with his employer, he was awarded zero benefits. The petitioner has filed a Petition for Review at the Circuit Court of Winnebago County.
Detailed claim investigation results in denial of claim for multiple fusion surgeries and PTD benefits at trial
Inman and Fitzgibbons obtained a very favorable decision for a client in a recent case concerning the claim of a police officer for two cervical fusion surgeries and significant disability benefits. The arbitrator denied all benefits and agreed with our position that the petitioner did not sustain a compensable accident arising out of and in the course of his employment.
Petitioner was a correctional officer who alleged that two lengthy round-trip federal prisoner transports to Kentucky aggravated a pre-existing cervical condition. He testified that the squad car forced him into an uncomfortable position due to the prisoner cage in the back restricting his ability to adjust the seating. He further alleged that the roads they traveled were under construction and generally rough and bumpy. His treating surgeon had opined that the trips were an aggravation which set in motion the need for the surgery.
We subpoenaed all of the medical records and uncovered chiropractic and other treating records containing a history of neck pain from moving concrete blocks the weekend prior, in addition to the history of the prisoner transport trips. We cross-examined the surgeon extensively over this inconsistent history of which he was not aware, and gained significant concessions during his deposition. An early IME had been arranged by the claims handler with an occupational specialist who essentially opined that there was no accident within the meaning of the Act. The claims handler also obtained a valuable statement from the officer who accompanied the claimant on the trips. The statement revealed that the claimant told him during the drive that his neck was hurting from a recent fishing trip in which their trailer got a flat and they ended up having to lift tires and a boat battery. The co-worker also stated that the claimant made no complaints that the driving or positioning during the trip was causing his pain.
We enlisted the additional support of a neurosurgeon who authored a records review report and opined that the lengthy trips were not casually related to his need for surgery. The insured was able to provide detailed photographs of the interior of the vehicle traveled in, and these were provided to both of our doctors. Both doctors were deposed and were able to testify with authority to the lack of causation based on their review of all of the medical records, the photographs of the vehicle’s interior, as well as the statement from the co-worker.
At trial we subpoenaed in the co-worker officer, who no longer worked for the insured, and he provided credible testimony consistent with his statement, and also was able to provide testimony regarding the interior of the vehicle. Petitioner testified that the history in the records referring moving concrete blocks was simply wrong, and that although there was a fishing trip, that he never lifted a tire or a car battery. He testified that all he did was walk to a nearby farm and locate a cement block, which his son then came and carried back to the trailer in order to raise it up further while changing the tire. The claimant’s son then testified consistent with that version as well. We cross-examined them extensively regarding this version of events and how it simply did not square with the actual medical notes or common sense.
The Arbitrator completely agreed with our position and denied all claims for benefits. This is a final decision as the petitioner elected not to file a Review. Petitioner had undergone 2 cervical fusion surgeries and was claiming over $175,000.00 in medical bills, TTD benefits of $28,843.20, as well as permanent and total disability. Had petitioner prevailed at trial, the exposure would have totaled over $500.000.00. The case was tried by Terry Donohue of our office.
Governor Quinn appoints Chairman Michael Latz and reappoints Commissioners Basurto, Tyrrell, and White
Governor Quinn named Michael Latz as chairman of the IWCC, effective March 25, 2013. Chairman Latz has served as a commissioner since October 2011. Before that, he was an attorney in private and public practice. He holds a B.A. and a J.D. from Notre Dame.
Governor Quinn also renewed the appointments of Commissioners Basurto, Tyrrell, and White.
The positions of former Commissioners Dauphin and Latz are now open. Other commissioners will fill in until the positions are filled.
The IWCC also published the following message from New Acting Chairman Latz:
“I am honored to serve as chairman and grateful for this opportunity. I will do everything in my power to make the workers’ compensation program successful and to continue implementing the legislative reforms. I will enthusiastically work to insure that claims are resolved fairly and promptly. Please feel free to email me at michael.latz@illinois.gov or call 312/814-6560.“
I&F Welcomes Michael Bantz to our Champaign Office
Inman and Fitzgibbons is pleased to announce that Michael Bantz has joined the firm. Michael was born and raised in Champaign-Urbana, studied Philosophy and English at the University of Missouri-Columbia, and received his J.D. from Southern Illinois University School of Law. He joins Inman & Fitzgibbons after starting his career at another firm handling worker’s compensation cases.
Michael will be joining Colin Mills in our Champaign office where he will concentrate his practice on worker’s compensation defense in Central and Southern Illinois.
