Confirmation of Illinois Workers’ Compensation Commission Chairman and Commissioner Appointments

On April 30th 2015, the Illinois General Assembly took action on IWCC Executive Appointments. The appointments of Chairman Joann Fratianni, and Commissioner Joshua Luskin and the re-appointments of Commissioners Charles DeVriendt, David Gore, and Kevin Lamborn were voted out of the Senate Executive Appointments Committee and immediately sent to the full Senate where they all passed without any opposition.   This was the final step to officially serve in their capacity as IWCC Chairman and Commissioners.   

Applying Credits for Prior Cases in IL is Simple, Except When it’s Not

If a claimant has had a prior settlement or award for a loss of a body part, other than for a loss of the person as a whole, you can and should apply that credit to any future settlement or award to the same body part.  Generally speaking, you can apply this credit by deducting the prior percentage of loss from the new percentage.  For instance, if a case is being settled for 15% loss of the right hand and the petitioner was previously awarded 5% loss of the right hand, then the amount of the settlement should be reduced to a net 10% loss of the right hand.

However, there are some additional considerations to keep in mind.  When applying a credit for an injury that occurred prior to February 1, 2006 (the effective date of the IWCA amendments from that year), except for dates of injury between July 20, 2005 and November 15, 2005, you have to deduct the number of weeks of loss from that prior credit rather than the percentages.  This is due to the fact that those amendments altered the total number of weeks for each body part.  This rule was applied recently in the Arbitration decision for Robert W. Smith, Petitioner v. Cont’l Tire of N. Americas, Inc., Respondent, 11 IL. W.C. 37913 (Ill. Indus. Com’n Oct. 27, 2014).

Also, keep in mind that that for shoulder injuries that resulted in an award or settlement for loss of the arm prior to Will County (decided February 17, 2012), a credit can be applied to future awards or settlements for that same arm.  For more information, see Stanford Dorsey, Petitioner v. City of Chicago, Respondent, 13 IL. W.C. 03624 (Ill. Indus. Com’n Jan. 3, 2014).  Unfortunately, a shoulder award or settlement from before Will County cannot be applied to another injury to that same shoulder, due to the fact that the more recent shoulder injury would now be classified as a loss of the person as whole.

Thanks to attorney Michael Bantz for this succinct summary.  If you have any questions or concerns regarding the application of a credit, don’t hesitate to contact us!

Pre-Existing Rotator Cuff Tear Not Compensable

In September 2013, I&F attorney 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 filed a review to the Circuit Court of Morgan County.  The parties proceeded with oral arguments and in February 2015, Lauren Waninski received an Order affirming the Decision of the Illinois Workers’ Compensation Commission finding that the petitioner did not sustain an accident and rendering all other issues moot.

The dispute over the alleged rotator cuff injury was based on the medical evidence.  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.  The Arbitration Decision was affirmed unanimously by the Illinois Workers’ Compensation Commission and now by the Circuit Court of Morgan County.  In defeating the claimed injury to the right shoulder, Lauren saved the employer potential trial exposure up to $47,000.00.

The case has not been appealed to the Appellate Court.

Arbitrator Rejects Petitioner’s Claim of Permanent & Total Disability

We are pleased to announce the receipt of a favorable arbitration decision finding that the petitioner failed to prove he was permanently and totally disabled.  The petitioner, a pipefitter, injured his right knee and underwent surgery but continued to have problems.  He had a second surgery without much improvement.  He was eventually released to return back to work with restrictions which could not be accommodated by the insured.  Vocational rehabilitation was initiated without success.

After a pre-trial before the Arbitrator, the Respondent agreed to pay for the petitioner to return to school to learn surveying.  Schooling issues arose regarding the appropriate program for the petitioner to attend and the petitioner quit school and settlement negotiations ensued without success.  Additional job efforts were not successful.  Following another pre-trial recommendation , the petitioner returned to school and received a welding certificate.  Again, vocational efforts were fruitless and the petitioner claimed he was permanently and totally disabled. Settlement attempts were not successful and the case proceeded to trial.  At trial, we argued, using the testimony of our vocational experts, that the petitioner was uncooperative with vocational efforts and the Arbitrator agreed.    Prior to trial, the permanent total settlement demand was $500,000 and full payment of a permanent total award over the petitioner’s lifetime exceeded $1 million.  Congratulations to veteran attorney Jill Baker for the outstanding result.

Tire Technician’s Claim Falls Flat

Veteran attorney Scott McCain recently prevailed  in defense of a repetitive trauma claim filed by a tire technician.  In this case, the claimant alleged that removing and installing tires with an air gun, in conjunction with the use of a torque wrench to tighten nuts, resulted left carpal tunnel syndrome, lumbar radiculopathy, cervical radiculopathy, and left ulnar neuropathy.  Prior to trial, we thoroughly investigated the petitioner’s job duties by speaking with the claimant’s supervisor and the claimant’s co-workers. Moreover, a complete set of medical records was obtained and meticulously reviewed.

A complete understanding of the claimant’s job duties and an intimate familiarity with the medical records  allowed for productive cross examination of the claimant. The claimant testified that the number of cars that he worked on varied on a daily basis, and that the maximum number of cars he worked on per day was  8.  The claimant also acknowledged that there was a maximum of 32 tires changed in an 8 hour work day. While not working on cars, the claimant would stock the warehouse and change flat tires.  Furthermore, I & F  elicited an admission from the claimant that he never experienced cervical pain or left elbow pain at work.  The Arbitrator concluded that the level of work the petitioner testified to was insufficient to have caused a repetitive trauma injury, and found that the petitioner did not sustain an accident arising out of and in the course of his employment. The petitioner has appealed the decision to the IWCC.

As employers in Illinois are well aware,  disputed repetitive trauma cases are difficult to win.  But, as we see here, and in I&F’s other recent repetitive trauma wins,  it is certainly not impossible. This case clearly illustrates how a well laid trial strategy can produce superior results.  We welcome the opportunity to pursue similar results for all of our clients.

I&F and the Illinois Chamber of Commenrce add Effingham date for Traveling Employee Seminar

We recently announced our upcoming March 25 seminar at the Illinois Chamber of Commerce covering issues related to traveling employees.  For our downstate readers who cannot make it to this event in West Chicago, we are happy to announce that we will also be presenting this seminar with the Chamber on April 28, 2014 in Effingham.

if.seminar

Like the first session, this two-part seminar hosted by partners Kevin Deuschle and Colin Mills will present attendees with the general rules applicable to defining a compensable slip and fall claim as well as the exceptions. We will also discuss current trends in the law and anticipated changes in how the compensability of a slip and fall is defined.

In the second part, we will look to the issue of traveling employees, including a history of evolving case law on this topic and discuss recent key decisions at the Illinois Supreme Court and Appellate Court levels assessing whether an employee is a traveling employee and when an accident involving a traveling employee is compensable.

 

REGISTRATION INFORMATION

Tuesday, April 28, 2015

11:00 am – 1:00 pm

Hampton Inn, 1305 N. Keller Dr., Effingham, IL 62401

Early Bird – (For everybody) – Sign up before April 18 – $40.00

Member – (For members of Illinois Chamber and local chamber partners) – $50.00

Retail – $60.00

**Registration includes lunch

 

This seminar has been pre-approved to offer 1.25 HRCI credits.

This seminar has been submitted for approval to offer 1.25 CLE credits.

This seminar has been pre-approved to offer 1.25 SHRM Professional Development Credits (PDCs).

 

To register or for more information call Pam Holleman, HR Specialist/ Event & Publication Sales

at 855-239-6150 or pholleman@ilchamber.org.

Governor Rauner Announces IWCC Appointments

On Friday, Governor Rauner announced that Arbitrator Joann Fratianni-Atsaves has been named Chair of the Illinois Workers’ Compensation Commission. He also announced several Commissioner appointments: Management Commissioner Kevin Lamborn, Labor Commissioner David Gore have been reappointed. Replacing public member Dan Donohoo will be arbitrator Joshua Luskin. Labor Commissioner Charles DeVriendt remains serving although his term expired last month. Public Commissioner Steve Mathis was confirmed last week by the State Senate for a term ending January of 2017.  Below are background information for each of the Commissioners appointed on Friday:

  • Joann Fratianni-Atsaves: Chair of the Illinois Workers’ Compensation Commission (IWCC).

Mrs. Fratiani-Atsaves has 34 years of experience in workers’ compensation law and is currently an arbitrator on the IWCC.  Mrs. Fratianni-Atsaves has worked for the IWCC for the past 27 years. She began her career as an arbitrator in 1987 and was appointed to be a commissioner from 1990 to 1993. She continued her work as an arbitrator after her term as a commissioner was complete. She currently hears workers’ compensation matters by trial or settlement, and renders written decisions and approves settlement contracts.

Prior to her work for the IWCC, Mrs. Fratianni-Atsaves worked in private practice at the law offices of Anthony V. Fanone where she handled insurance defense litigation for workers’ compensation matters, often trying cases within the IWCC. She began her legal career at Osterkamp, Jackson & Hollywood.

Mrs. Fratianni-Atsaves is a graduate of the University of Illinois and earned her law degree at Northern Illinois University.

 

  • Kevin Lamborn: Management Commissioner – IWCC

Kevin Lamborn will serve his third term as a commissioner of the IWCC. He has served on the board since 2007 as a Business Member Appointee. In this position, he conducts hearings and issues written decisions on litigation appealed from arbitration.

Prior to his work on the IWCC, Mr. Lamborn was an associate attorney at Storino, Ramello & Durkin where he practiced municipal law. He represented local municipalities in civil actions, and also served as an Administrative Hearing officer in property impoundment and code violations.   Mr. Lamborn’s legal career also included being a partner at McAauley & Lamborn. In that practice, Mr. Lamborn focused on a large range of the law including civil litigation, property transactions, work-related injury, and criminal defense, among others. Mr. Lamborn began his career as an Assistant State’s Attorney in Cook County. He worked his way up from traffic court to the felony trial division and spent his final two years in the Special Prosecutions Bureau, where he investigated and tried cases involving public officials accused of misconduct.

Mr. Lamborn received his law degree from The John Marshall Law School in Chicago. He earned two bachelor’s degrees in political science and criminal justice from Valparaiso University.

 

  • Joshua Luskin: Public Commissioner – IWCC

Mr. Luskin is currently an arbitrator with the IWCC and has more than 15 years of law experience.

Prior to his work at the IWCC, Mr. Luskin was a partner at the law firm Nyhan, Bambrick, Kinzie & Lowry, where he specialized in workers’ compensation law.  Mr. Luskin also served as a Lieutenant in the U.S. Navy Judge Advocate General’s Corps, where he handled military prosecution and offered legal service to members of the military. He also worked in the Champaign County State’s Attorney’s office, and in the State’s Attorneys Appellate Prosecutor’s office.

Mr. Luskin graduated from Macalester College in 1994 with a degree in philosophy. He earned his law degree from the University of Michigan

 

  • David Gore: Labor Commissioner – IWCC

This will be Mr. Gore’s fourth term as a commissioner and he has served on the IWCC since 2006.

Mr. Gore has more than 20 years of experience as an attorney, previously serving as a partner at the law firm Gore & Gore which specialized in workers’ compensation cases. He also worked as an Assistant Attorney General for the Illinois Attorney General and a staff attorney with the Illinois Legislative Reference Bureau.  Mr. Gore also has experience working on workers’ compensation matters as a staff representative for the United Steel Workers of America, AFL-CIO-CLC. He handled unfair labor practice charges and represented the union before the National Labor Relations Board.

Mr. Gore holds a bachelor’s degree in marketing, a law degree and an M.B.A. from the University of Illinois at Urbana-Champaign.

Special thanks to our friends at the Illinois Chamber of Commerce for providing these brief biographies.

I&F to Present Traveling Employee Seminar at IL Chamber of Commerce

chamber announcement

 

When is a slip and fall compensable? When is an employee a “traveling employee,” and what does the law allow as a compensable accident for those employees? This two-part seminar hosted by partner Kevin Deuschle and veteran attorney Scott McCain will present attendees with the general rules applicable to defining a compensable slip and fall claim as well as the exceptions. We will also discuss current trends in the law and anticipated changes in how the compensability of a slip and fall is defined.

In the second part, we will look to the issue of traveling employees, including a history of evolving case law on this topic and discuss recent key decisions at the Illinois Supreme Court and Appellate Court levels assessing whether an employee is a traveling employee and when an accident involving a traveling employee is compensable.

 

  • REGISTRATION INFORMATION

Wednesday, March 25, 2015

7:30 am – 9:30 am

Western DuPage Chamber – 306 Main St., West Chicago, IL 60185

Early Bird – (For everybody) – Sign up before March 16 – $40.00

Member – (For members of Illinois Chamber and local chamber partners) – $50.00

Retail – $60.00

**Registration includes breakfast

 

This seminar has been pre-approved to offer 2 HRCI credits.

This seminar has been submitted for approval to offer 2 CLE credits.

This seminar has been pre-approved to offer 2 SHRM Professional Development Credits (PDCs).

 

To register or for more information call Pam Holleman, HR Specialist/ Event & Publication Sales

at 855-239-6150 or pholleman@ilchamber.org.

Steve Murdock Preserves Two Wins Before Commission

Partner and Vice President Steve Murdock recently received two affirmations from the Illinois Workers’ Compensation Commission in companion cases he tried in March 2013 that then resulted in victories in both cases.  At the Arbitration level, the Arbitrator made clear in the Decisions that she found the claimant to be not credible, in one case resulting in a significant limitation on the extent of the benefits claimed and in the other case resulting in a finding of no accident.  Although the claimant had medical opinions to support both claims, because the Arbitrator found those opinions were based on discredited statements from the claimant, the Arbitrator gave those medical opinions less weight than those of respondent’s IME.

On Review, Steve continued to argue that the Arbitrator was in the best position to assess the credibility of the claimant’s testimony at trial, and in these two cases the Illinois Workers’ Compensation Commission agreed by affirming the Arbitration Decisions without any modification.  Congratulations to Steve and our client, who avoided significant medical and temporary disability exposure as well as a wage differential or permanent total disability liability exposure well above $300,000.

Illinois Commissioner and Arbitrator Appointments Confirmed

On February 17, 2015 the full Illinois Senate confirmed Stephen Mathis as Commissioner and the following Arbitrator Appointments:

  • Milton Black;
  • Maria Bocanegra;
  • Stephen Friedman;
  • Steven Fruth;
  • Jessica Hegarty;
  • David Kane;
  • Lynette Thompson Smith;
  • Anthony Erbacci;
  • Robert Falcioni;
  • Joann Fratianni; and,
  • Michael Nowak.

I&F Prevails in Appellate Court

Partner Kevin Deuschle recently argued and prevailed before the Appellate Court of Illinois, Fifth District.  You can find the Court’s decision here and audio of the argument before the Court can be found here.

In this case, the petitioner was employed with the Respondent in the capacity of a Sales Account Executive.  She was making a sales visit to an elementary school and was on her way to another appointment when her accident occurred.  The Petitioner specifically testified that she was walking on a sidewalk upon exiting the school when she caught her footing on an area of concrete which came up over the grass and fell down.  She stated that she fell off of the sidewalk and into the grass, twisting her left ankle and falling on her knee and left side.  At trial, the Petitioner testified that she sustained scrapes to her “arms and knees”.   She further stated that she was in a hurry as she had to drive an hour to get to her next appointment and also had paperwork to do that day.

Although the Petitioner’s accident occurred in April of 2008, she did not feel hip symptoms under December of 2008 and did not seek medical care and provide a history of injury to a treating doctor while seeking treatment for the hip until February of 2009.  She ultimately underwent a hip replacement procedure.

We disputed both that the petitioner’s condition was medically causally related to her fall and that she was subjected to an increased risk of harm when the accident occurred.

On the issue of medical causation, we argued that the following three factors warranted a finding that the Petitioner’s claimed condition of ill-being was not causally related to her alleged accident:

  • No notable trauma at the time of the fall;
  • No treatment until 10 months after the accident;
  • Following depositions, no competent medical testimony establishing a medical causal relationship between the accident and the treatment sought.

 The Appellate Court held that the Commission’s adoption of the IME report over the opinion of the treating doctor was not against the manifest weight of the evidence.  That, in and of itself, was sufficient for us to win the case as it means that we prevailed on the issue of medical causation.  As to the thorny legal issue of whether the petitioner was exposed to an increased risk of harm when the accident occurred (an issue on which we had prevailed at every level), the Appellate Court specifically noted the finding of the Commission, but stated that it was not necessary for them to rule on that issue as we prevailed on the former.

In so holding, the Court avoided having to make a decision as to whether the petitioner, a traveling employee, was exposed to an increased risk of harm when her injury occurred. It should be noted that the fact pattern of this case is quite similar to that presented in the seminal case of Caterpillar v. Industrial Comm’n., 129 III.2d 52 (1989). In that case, the petitioner, who was not a traveling employee, was injured when he twisted his ankle after stepping from curb to a driveway. The Supreme Court, in finding that the case was not compensable stated, “In our opinion, the only reasonable inference which can be drawn from the evidence in the record is that the condition of the premises was not a contributing cause of [the petitioner’s] injury… we do not find that claimant has established that he was exposed to a risk not common to the general public…Curbs, and the risks inherent in traversing them, confront all members of the public.”

The question presented by the instant case was whether the compensability analysis is altered due to the petitioner’s status as a traveling employee.

A review of the relevant case law will certainly lead to the conclusion that a relaxed criteria for analyzing compensability is used when analyzing cases involving a traveling employee, specifically with regard to the increased risk component. Nearly 40 years ago, in Wright v. Industrial Comm’n., the Court stated, “The test for determining whether an injury to a traveling employee arose out of and in the course of his employment is the reasonableness of the conduct in which he was engaged and whether it might normally be anticipated or foreseen by the employer.”

As you can see, however, the effect of relying upon that broad statement is that it collapses the traditional two-prong analysis of “arising out of” and “in the course of” to a simple one step test: Was the conduct in which the employee was engaged in at the time of the accident reasonable and foreseeable?

If, however, one examines the analysis, a few things become apparent: Adopting this analysis is no different that stating that traveling employees can avail themselves of the positional risk doctrine. As questions of “reasonableness and foreseeability” are, at heart, questions of whether an activity occurs in the course of one’s employment — in other words, whether the employee was engaged in the work of the employer at the time of the accident –  ­the court is essentially electing not to conduct a separate risk analysis.

It is essential to examine the rationale for this step, as  this can provide the argument for the application of a separate risk analysis. The court, in these cases, finds that the employee is subjected to an increased risk as a traveling employee because, presumably, there is something inherently “risky” about being required to confront the unknown hazards on the open road. Underlying this is perhaps the idea that the act of traveling exposes this employee to the risks of the road with a greater degree of frequency than member of the general public.

In the current climate, the examination of the underlying risk analysis is too often ignored. Although there is good reason for a relaxed risk standard  for the travelling employee to satisfy than her workplace bound counterparts, an argument can be made, should be made, that there is still an underlying risk analysis to be performed as there is no rational basis to simply conclude that an employee is exposed to an increased risk of harm in every instance in which an injury is sustained:

  • What is the risk of the road presented to the employee?
  • Was the employee exposed to that risk with a greater degree of frequency than members of the general public.

Failure to perform the above analysis on the assumption that an increased risk of harm exists simply because an employee is a traveling employee, is no different than finding that traveling employees can avail themselves of the positional risk doctrine.  This is obviously a difficult issue for employers in Illinois.

Please feel free to contact us with any questions you might have regarding traveling employees.

 

 

 

 

I&F Alerts Employers to New Issues Raised by Medical Marijuana Act

On February 10, 2015, Partner Steve Murdock and Attorney Michael Bantz hosted a seminar with the Champaign County Chamber of Commerce regarding the new Compassionate Use of Medical Cannabis Pilot Program Act.  The seminar raised awareness of how the Act may affect employers, both generally and specifically in terms of Workers’ Compensation claims.  The seminar was attended by several local and regional employers.

I&F

Following the seminar, Steve Murdock was interviewed by Jasmine Anderson of WCIA-3 in Champaign:

WCIA Interview

Attorneys from I&F are available to present seminars on this and many other topics for employers and local organizations.  Feel free to let us know if you are interested!

 

Inman & Fitzgibbons announces Mark Carter as Partner

Inman & Fitzgibbons is pleased to announce that Mark Carter has become a partner with the firm. He has served as associate attorney with our firm in the Chicago office since 2005 and has contributed to the success of our firm since that time by always making client service his first priority. We congratulate him on this achievement and wish him continued success .

Please join us in congratulating Mark, and if you would like to learn more about him, you can view his bio on our website.

Gov. Bruce Rauner gives his first State of the State

Gov. Bruce Rauner gave his first State of the State address Wednesday, setting the tone for the legislative session.  With a focus on fiscal responsibility, Gov. Rauner used his speech to talk about empowerment (right-to-work) zones, tax reform, pro-business initiatives like workers’ compensation reform and civil justice reform, a minimum wage hike, and tax code improvements.

The address can be seen here.

In response, our friends at the Illinois Chamber of Commerce issued a statement shortly after the speech:

“The Illinois Chamber and the business community it represents should be encouraged by what Gov. Bruce Rauner said in his first State of the State address. For example, [Gov.] Rauner identified several pro-business initiatives such as real worker’s compensation reform and civil justice reform. Businesses need to thrive if we want the state’s economy to improve, so this is good news. The bottom line for state government is fiscal stability.”

This is the bold change that job creators and job providers have been looking for. This is a sign to the state’s and the nation’s employers that this is a new day in Illinois. We remain committed to adding our voice to the legislative process as these proposals move forward. We hope this is the beginning of a new era of bi-partisan cooperation.”

According to the Chamber, a couple of other “must-do’s” are Medicaid reform and pension reform. Medicaid liabilities continue to grow despite the reforms we passed previously that were rolled back by the legislature. For example, the Chamber noted that Medicaid liability doubled between FY03 and FY15, growing from $6.4 million to $12.7 million.

Rauner speaks on workers’ compensation reform

As reported by Doug Finke of the Springfield State Journal-Register, in a speech at the University of Chicago last week, Gov. Bruce Rauner provided what he said was a preview of his upcoming State of the State speech.

Rauner ticked off a list of issues the state must address, including workers’ compensation reform. “This is about competitiveness,” Rauner said. “Workers’ compensation is a big issue, especially in manufacturing, construction, transportation. We are in the bottom 10 states. Why can’t we be at least average?”

The governor has not yet outlined what he proposes to do to lower those costs.

Passing of Former Industrial Commission Chairman and Arbitrator, Ray Rybacki

From the IWCC website:

“Ray Rybacki served 38 years with the Industrial Commission; 35 of which he was an Arbitrator and 3 years as Chairman. We thank him for his dedicated service to the employers and injured workers’ of the state. His efforts during his tenure as Arbitrator and Chairman will have a lasting impact on the Illinois workers’ compensation system. Our thoughts are with his family and friends at this difficult time.”

Services are as follows:

Wake:
Monday, January 19th
3 to 8 p.m.
Schmaedeke Funeral Home
10701 S. Harlem
Worth, IL 60482

Burial:
Tuesday, January 20th
9 a.m.
Our Lady of the Woods
10731 W. 131st St.
Orland Park, IL 60462

 

Stealing From Employer Still Not a Bar to TTD in Illinois

As we previously covered in greater detail here, Mr. Matuszczak, the petitioner, was fired for the repeated theft of cigarettes.  He testified that he knew that stealing was a crime and could lead to him being fired.  The petitioner had previously been prescribed light-duty restrictions that were being accommodated by his employer and he also testified that if he had not stolen cigarettes he might have still been working for his employer in light-duty capacity.  The employer denied the petitioner TTD benefits on the basis that his decision to steal amounted to a voluntary decision not work.  The case was litigated through Arbitration, Commission Review, and the Dupage County Circuit Court, with the Respondent prevailing at the Commission and the Petitioner prevailed at Arbitration and in Circuit Court.

In Matuszczak v. Illinois Workers’ Comp. Comm’n, 2014 IL App (2d) 130532WC (Ill. App. Ct. 2d Dist. Sept. 30, 2014), the Appellate Court ruled in favor of the petitioner.  The Court reiterated the principle from Interstate Scaffolding that the crucial question when analyzing a potential entitlement to TTD benefits is whether the petitioner’s condition has stabilized at a point of maximum medical improvement.  Id. referencing Interstate Scaffolding, Inc. v. Illinois Workers’ Comp. Comm’n, 236 Ill. 2d 132, 141, 923 N.E.2d 266, 271 (2010).  The Court elaborated that TTD may be terminated for three reasons: If the employee (1) refuses to submit to medical, surgical, or hospital treatment essential to his recovery; (2) fails to give good faith efforts to rehabilitate; or (3) refuses to work in a position offered by the employer that accommodates the petitioner’s restrictions.

The Appellate Court also ruled that, not only does Interstate Scaffolding forbid that automatic termination of TTD when an employee has been fired, the employer cannot deny TTD even when a petitioner is discharged for cause as a result of the employee’s volitional actions.  Furthermore, even if the petitioner is aware that their conduct will result in their termination, TTD benefits still cannot be denied and added that an analysis of why a petitioner was fired is an issue that is “foreign to workers’ compensation cases” and that is “completely separate from issues related to an injured employee’s entitlement to TTD.  Id. at 25, partially quoting Interstate Scaffolding.

Based on the Court’s reasoning, no matter what an employee does to cause his own termination, even outrageous acts such assault or sexual harassment, he can still obtain TTD benefits.  Arguably, even if a petitioner explicitly stated that they wanted to be fired in order to obtain TTD benefits rather than working, the petitioner could still be entitled to TTD, given that the Appellate Court found that examining the reasons for a petitioner’s termination is disconnected from an analysis of whether TTD is warranted.

Thanks to attorney Michael Bantz for tracking this important legal issue.

Happy-New-Year-2015-Celebration-Wallpapers

Happy New Year to all of our friends!  I&F ended 2014 on a high note as the Commission recently affirmed an arbitration win in which the Arbitrator found that Petitioner failed to prove that his alleged injuries were caused, aggravated, or accelerated by the alleged accident.

In this matter, Petitioner alleged that he suffered a hand injury, for which he later underwent an operation, after unhooking a trailer.  The Arbitrator found that Petitioner’s treating physician failed to provide a basis for his opinions that the diagnosed condition and subsequent surgery were causally-related to the accident, as the doctor failed to account for a lack of findings on MRI or x-rays following the accident, or for a significant gap in treatment between the accident and the surgery. Instead, the Arbitrator relied on the thorough and well-based opinions of Respondent’s Section 12 Examiner that while Petitioner may have suffered a strain or sprain, the condition which warranted surgery was degenerative in nature and not the result of the alleged accident. Further, the Arbitrator found that the unrelated surgery constituted an intervening cause, precluding an award of any permanent partial disability benefits whatsoever.

After  being reviewed by the Petitioner, Partner Colin Mills successfully argued before the Commission which unanimously affirmed the Arbitration Decision.

 

Happy New Year!

I&F Prevails in Repetitive Trauma Claim

In a case recently tried by Partner Colin Mills, the Arbitrator found that Petitioner failed to prove by a preponderance of the evidence that she sustained accidental injuries to her bilateral hands due to repetitive work activities that arose out of and in the course of her employment with Respondent. As such, Petitioner’s claim for medical benefits, temporary total disability benefits, and permanent partial disability benefits was denied.

In support of her decision, the Arbitrator first found that Petitioner’s alleged “manifestation dates” did not correlate with the medical evidence introduced at trial. Further, the Arbitrator found that the opinions of Respondent’s Section 12 Examiner were more credible than those of the treating physician, as the Section 12 Examiner was better prepared and more informed to opine on the causal relationship of Petitioner’s job duties to her condition.   Specifically, the Arbitrator noted the importance of the fact that the Section 12 Examiner was provided with a job video analysis and written job description on which to base his causation opinions. Conversely, on cross-examination, Petitioner’s treating physician was only able to testify that he had a vague idea of Petitioner’s job duties, and that his opinions were not based on a thorough understanding of Petitioner’s job duties.

This excellent result netted a significant savings for Respondent, and reflects the importance of thorough expert witness preparation.