IWCC Announces New Arbitrator Assignments

Effective November 1, Arbitrator Stephen Friedman will take over the Chicago call formerly handled by Arbitrator Kelmanson, and Arbitrator Michael Nowak will take over the Collinsville/Belleville call formerly handled by Arbitrator Zanotti.

The IWCC is creating new Chicago calls for Arbitrators Bocanegra and Fruth that will take effect January 1, 2015. Because cases are continued for 90 days at a time, some cases are now being reassigned for the January calls. According to the IWCC, their computer database may show the new arbitrator, but until January 1 the current arbitrator retains jurisdiction.

2015 Fee Schedule Rates to Increase by 1.70%

According to news published by the IWCC, 2015 medical fee schedule rates will increase 1.70% on January 1, 2015.  According to the IWCC, the 2015 rates will be 38% lower than medical inflation since the fee schedule took effect in 2006.

Section 8.2(a) of the Illinois Workers’ Compensation Act provides that, each year, fee schedule rates shall increase or decrease by the percentage change in the Consumer Price Index-U (CPI-U) in the previous year.

The 2015 rates will be posted as soon as the vendor, Optuminsight, calculates them and obtains information about new and deleted codes. The rates are usually posted at the end of the year. The IWCC will give notice on their web page when the new rates are available.

Commission Unanimously Affirms PTSD Not Related to MVA Involving Death of Pedestrian

As we previously reported, I&F successfully defended a 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 appealed the Arbitration Decision. In a unanimous decision, the Commission affirmed and adopted the Arbitration Decision in its entirety.

Congratulations to Scott McCain for the excellent result.

I&F Presenting at 7th Annual Workers’ Compensation Conference on September 24

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Partners Thomas Fitzgibbons and Steven Murdock, along with our friends at the Illinois Chamber of Commerce, will be discussing the AMA Impairment Ratings used in determining Permanent Partial Disability and Workers’ Compensation Fraud at the 7th Annual Workers’ Compensation Conference for Illinois Employers at the Hilton in Lisle on September 24, 2014.

If you are interested in attending, please contact Pam Holleman at (855)239-6150 or pholleman@ilchamber.org

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I&F Opens Three New Offices

We are excited to announce that we have opened the following new offices:

• Milwaukee, Wisconsin
• Indianapolis, Indiana
• Des Moines, Iowa

Inman & Fitzgibbons was founded with the goal of delivering the highest quality legal services in a timely and cost-effective manner. The firm has since grown to become a regional firm representing employers in the areas of workers’ compensation, subrogation and general liability defense. Throughout that time, client service has remained the firm’s first priority. Our new offices, together with our offices in Chicago, Champaign, and St. Louis, Missouri, will ensure that the firm continues to achieve rapid and cost efficient solutions for our clients.

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Governor Quinn Appoints Four New Arbitrators

Governor Pat Quinn appointed four new arbitrators to the Commission:

Maria Bocanegra is an attorney at Katz Friedman, specializing in workers’ compensation. She previously worked as a judicial assistant to the Honorable David Furman and as a case administrator for the United States Bankruptcy Court in the District of Colorado. Ms. Bocanegra was also appointed to the Illinois Department of Labor’s Labor Advisory Board in 2013. She holds a J.D. from DePaul University and a B.A. from Quincy College.

Stephen Friedman is currently a Managing Partner of Rusin, Maciorowski & Friedman, Ltd., specializing in workers’ compensation defense. Previously, he was an associate and a partner at Rooks, Pitts and Poust practicing workers’ compensation and personal injury defense. He earned both a J.D. and a B.A. from the University of Illinois.

Steven Fruth is currently a trial attorney at the Chicago Transit Authority. Previously, he served as a Circuit Judge in the Circuit Court of Cook County and as the Staff Counsel at Allstate Insurance Company. He holds a J.D. from the John Marshall Law School and a B.A. from Southern Illinois University.

Michael Nowak is an attorney at Becker, Paulson, Hoerner & Thompson, P.C., focusing primarily on workers’ compensation law. Previously, he was a partner in his own firm, representing injured workers. Mr. Nowak has served as an arbitrator for the St. Clair County Arbitration Center as well as a member of the Judicial Nominating Committee for the U.S. District Court, Southern District of Illinois. He holds a J.D. from Northern Illinois University and a B.A. from Eastern Illinois University

Claimant’s Involvement with Family Business not Considered “Return to Work”

This recent case illustrates one facet of the limits of the Respondent’s ability to mitigate TTD exposure prior to a claimant reaching MMI.  In Sunny Hill of Will County. v. Illinois Workers’ Comp. Comm’n, 2014 IL App (3d) 130028WC, the claimant’s ownership of and contributions to a business that was run with her two daughters did not represent “a return to work” and did not preclude TTD.  The Third District Appellate Court relied on the fact that the claimant did not follow a regular schedule, did not draw a paycheck, did not keep track of her hours, and did not distribute any of the profit from the store to herself.

The claimant had suffered two separate injuries to her right shoulder, in September of 2007 and on December 5, 2008, and had undergone three surgeries.  She had been restricted from working continuously and was still restricted at the time of arbitration.  The claimant opened the flower store with her daughters in 2007.  The claimant owned a 53% share of the business and was present at the store at least three days a week, with duties that consisted of answering the phone, taking the orders, taking faxes, assisting with preparing arrangements, and babysitting her grandchildren.  However, the Court noted that when the business had its first profitable year in 2010, the profits were distributed to her daughters, and also found that she had not taken a salary or income of any kind as of the time of Arbitration, in June of 2011.  The Court also emphasized the fact that her schedule was erratic and unrecorded.

The Respondent argued that the Commission failed to apply the “stable market test,” specifically whether there was a reasonably stable market for the claimant to work in.  However, the Court found that this issue was not pertinent, as, “the essence of the TTD determination is…whether the claimant’s condition has stabilized.”  The Court acknowledged that a claimant’s ability to work may be an indicator that they have reached MMI with a stabilized condition, depending on the physical demands of the type of work that they are doing.  The Court also responded to cited language from City of Granite City v. Indus. Comm’n (1996), 279 Ill. App. 3d 1087, at 1090, “to show entitlement to TTD benefits, claimant must prove not only that he did not work, but that he was unable to work,” finding that while a literal application of language would require TTD denial when a claimant was working, the Court declined apply the rule in such a way, stating that evidence that a claimant is working is only a factor in determining whether a claimant’s condition has stabilized.

The Court’s ruling here indicates that a claimant who is restricted from working one position is still entitled to TTD even if they are working at another, less physically demanding job so long as it is clear that their condition has not stabilized.  While the Court did not address temporary partial disability (TPD) here, likely because the claimant did not earn any wages from her work at the flower shop, the customary approach to such a situation would be to use TPD benefits. It should also be noted that the similar cases cited in the decision that involved alternative employment and entitlement to TTD were all from before 2005, when the Illinois Workers’ Compensation Act was amended to include TPD.

Thanks to Attorney Micahel Bantz for this excellent summary.

 

NCCI Recommending a 5.5% Drop to Advisory Rates for 2015

The National Council on Compensation Insurance (NCCI) advisory rates determine the premiums businesses pay for workers’ compensation insurance.  On July 30, 2014 Governor Quinn announced that NCCI has filed a request for lower workers’ compensation rates in Illinois, recommending a 5.5% drop in the advisory rate for 2015. With the implementation of the proposed rate reduction, the advisory rate level will have dropped 18.1% below the advisory rate level prior to the 2011 workers’ compensation reform legislation.  This will be the fourth rate reduction in five years since the reforms were enacted.

The Illinois Department of Insurance (DOI) estimates that the proposed reduction in advisory rates could result in overall reduction in premiums of up to $143 million in 2015, with the total savings since the reforms were enacted of $458 million. If the DOI accepts the filing, to be effective January 1, 2015, employers are advised to contact their insurance agent prior to their 2014 renewal date to determine the impact on their premium.

Thanks to attorney Scott McCain for the update on this issue.

I&F Preserves Arbitration Win before Commission

In September 2013, Lauren Waninski recorded a win in a disputed case involving a claimant who alleged a rotator cuff tear after an altercation at work.  The claimant had undergone a diagnostic study several days prior to his alleged date of injury which showed proof of a rotator cuff tear.  In a trial that included physician depositions and testimony from the claimant, the Arbitrator found that the claimant failed to meet his burden of proof that an accident arose out of and in the course of his employment with the employer with respect to the alleged right shoulder injury.  In defeating the claimed injury to the right shoulder, Lauren saved the employer potential trial exposure up to $47,000.00.

A Petition for Review was filed by the petitioner.  In July 2014, after reviewing the trial transcript, party briefs and listening to oral arguments on this highly disputed claim, the Commission affirmed the Decision of the Arbitrator finding that the petitioner did not sustain an accident and rendering all other issues moot.

 

Commission Adopts IME in Degenerative Knee Claim and Denies Knee Replacement

The Commission recently modified an Arbitrator’s decision in part in a case – Antonio Rice v. Chicago Construction Specialists, Inc., in denying prospective medical treatment, modifying an award of TTD benefits and determining a date in which the petitioner reached maximum medical improvement. The Commission found the opinion of the IME physician to be more persuasive and better supported by the facts than the opinion of the treating physician/surgeon.

In this case, the petitioner had been a construction laborer since 1986 and began working for the Respondent on November 7, 2011. On the first date of employment, the petitioner was assigned to push a full wheelbarrow to a dumpster and to empty it in the dumpster. The empty wheelbarrow weighed approximately 15 pounds and a full wheelbarrow weighed approximately 90 pounds. The petitioner testified that he pushed the wheelbarrow to the dumpster between 20 and 30 times during his first day on the job before he felt his left knee pop. He notified his supervisor and went to the emergency room on November 8, 2011 due to his pain. He subsequently underwent a partial medical meniscectomy on January 27, 2012 and the treating physician opined that the tear was small and frayed, but with no sharp edge, and could have occurred acutely or over time. The treating physician related the tear to the work accident based on the Petitioner’s history. The petitioner’s condition improved and eventually plateaued and he was released from physical therapy on June 30, 2012. On July 13, 2012, the Petitioner was seen by the treating physician and noted continued intermittent pain and swelling; lack of full extension of his left knee and medial joint line tenderness. The treating physician recommended a left total knee replacement.

On January 10, 2012, the petitioner underwent an IME, who noted no loose bodies and associated the Petitioner’s popping event on November 7, 2011 to no more than a patellofemoral event related to Grade IV arthritis. The IME physician opined that the work accident did not cause an aggravation or acceleration of the left knee problem and that his symptoms and problems were the same that he was having in 2011. The IME physician opined that the petitioner’s symptoms were related to degenerative arthritis, that knee replacement was in no way related to the accident and that he was at MMI. The IME physician later testified that given the Petitioner’s advanced arthritis, it was expected that his symptoms would wax and wane. He also testified that the Petitioner was going to need a total knee replacement regardless of the injury.

At Trial, there was witness testimony that the Petitioner walked with a limp prior to his work accident. There was also evidence of the Petitioner’s well-documented pre-existing left knee condition, including prior arthroscopic procedures in November 2006 and December 2009. The petitioner also underwent a left knee arthroscopy and partial medical meniscectomy on December 28, 2010 following left knee popping episodes in December 2010 while getting out of a chair and getting out of a car, respectively. The petitioner twisted his left knee again and underwent a left knee arthroscopy and lateral chondroplasty on May 10, 2011. Prior to his work accident in November 2011, the petitioner had an antalgic gain; diffused tenderness of the knee; mild degenerative changes and he lacked full extension of his left knee. It was also noted that the Petitioner sought treatment for his left knee one month prior to his work accident.

At Trial, the Arbitrator awarded TTD benefits through the hearing date and a prospective award for the total knee replacement. On review, the Commission found that the (meniscal) fraying and the need for the arthroscopic surgery to be causally related to the Petitioner’s work accident. However, the Commission determined that the petitioner returned to his pre-injury condition and reached MMI as of June 30, 2012 and was not entitled to TTD benefits beyond that date and that the left total knee replacement recommendation was not related to the Petitioner’s November 7, 2011 work accident.

It its decision, the Commission noted that the treating physician indicated that the Petitioner’s need for the total knee replacement was based on his degenerative condition and prior surgeries, along with the accident. However, the Commission found the opinion of the IME physician that the petitioner was going to need a total knee replacement regardless of his November 7, 2011 work injury to be more persuasive. The Commission noted that the IME physician’s opinion was supported by the fact that the Petitioner had Grade 4 degenerative left knee arthritis and had two prior surgeries. The Commission also noted that the Petitioner’s pre-accident medical examination findings from May 10, 20111 through October 10, 2011 were virtually identical to the post-accident findings beginning on March 5, 2012.

The Commission modified the Arbitrator’s decision and found that the petitioner was only entitled to TTD benefits from November 7, 2011 through June 30, 2012 and that he the Petitioner was not entitled to the total left knee replacement.

Thanks to Senior Attorney Mark Carter for this important summary of a recent decision illustrating effective reliance on an IME and perseverance through the Commission review level.

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.