I&F Announces Opening of Michigan Office

I&F is extremely happy to announce that we have extended our services to the state of Michigan with the opening of a new office in Lansing.


Our new office is located at 120 North Washington, Suite 300, in Lansing and can be reached at 517-234-4700.

Attorneys Jynnifer Bates and Lauren Waninski will serve the firm’s clients from the Michigan office and, like our offices in Illinois, Wisconsin, Missouri, Indiana, and Iowa, all areas of the state are covered.

Rauner Vetoes Bill to Create Illinois State Chartered NFP WC Insurance Company

On Friday August 18, 2017,  Illinois Governor Bruce Rauner vetoed HB 2622, which created a state-chartered, not-for -profit workers’ compensation insurance company.


*Photo credit to Chicago Tribune

Rauner said, “Today I veto House Bill 2622 from the 100th General Assembly, which will create a state-sponsored workers’ compensation insurance company. This bill will also require the Department of Insurance to provide a loan of $10 million out of the operations fund of the Workers’ Compensation Commission to capitalize the new organization.

Illinois currently has the most competitive market for workers’ compensation insurance in the country with over 300 participants. Maintaining this state of affairs is in the best interest of every employer and job creator required to purchase this insurance.

This legislation would instead disrupt the functioning market by inserting new and unnecessary layers of government interference due to an unfounded belief that the current competitive system is broken. Furthermore, this bill would divert needed funds from the Workers’ Compensation Commission, which could impact the backlog of cases and increase the cost of claims. The $10 million loan it this legislation demands of the Commission is not likely to have any meaningful impact in providing better access to affordable insurance.

This bill does nothing to address the actual cost drivers and broken aspects of our workers’ compensation system, which are significant contributors to the flight of businesses and jobs from Illinois and obstacles to the efficient and effective system that injured workers deserve. Instead it directs attention at a fabricated problem.

Therefore, pursuant to Section 9(b) of Article IV of the Illinois Constitution of 1970, I hereby return House Bill 2622, entitled “AN ACT concerning regulation,” with the foregoing objections, vetoed in its entirety.”

IWCC Announces passing of Arbitrator Robert Falcioni

From the IWCC:

The Illinois Workers’ Compensation Commission and the entire Workers’ Compensation community are saddened at the passing of Arbitrator Robert Falcioni.  Robert joined the Commission as a staff attorney in 1994.  He became an Arbitrator in 1997 and loyally served the State of Illinois for over 20 years.   On behalf of the entire Workers’ Compensation community we would like to extend our deepest sympathies to the Falcioni family.  

Arrangements for services are:

Visitation – Tuesday, August 22, 2017; 2:00PM-8:00PM

Location- Kerr-Parzygnot Funeral Home, 540 Dixie Highway (at Orr Road), Chicago Heights, Il 60411, Glenwood, Illinois

A mass will follow on August 23.

Inman & Fitzgibbons joins the workers’ compensation and legal community in Illinois in offering our condolences to Arbitrator Falcioni’s family.

I&F Prevails where Illinois Appellate Court Upholds Finding that Firefighter’s Need for New Knee Not Related to Work Accident

Our office is pleased to report the receipt of a favorable Decision from the Illinois Appellate Court, First District.  In this case, the petitioner, a firefighter/paramedic, sustained a compensable work related accident injuring his right knee and underwent surgery.  Following surgery, therapy, and an FCE, his treating doctor found him at MMI. Four months later, the petitioner returned to the doctor who noted end-stage degenerative changes and recommended a  total knee replacement (TKR). Our client denied the need for the TKR based on the opinion of our IME, who opined that the accident only temporarily aggravated the chondromalacia and that the need for a TKR was not related to the accident.  The case proceeded to trial and 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. She further awarded over 100 weeks of TTD benefits.

After 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 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.

The petitioner took this case to the Circuit Court of Cook County where the decision of the Commission was affirmed.  The petitioner then appealed the matter to the Appellate Court. Following the filing of briefs and the oral argument, the Appellate Court unanimously agreed to confirm the decision of the Circuit Court and Commission.  In the decision, the Court affirmed the Circuit Court’s judgment, confirming the Commission’s decision and remanding the matter to the Commission for further proceedings. The Court found that there was evidence that claimant’s work-related accident caused only a temporary aggravation to a preexisting degenerative knee condition and no evidence directly linking claimant’s current condition of ill-being in his right knee (and his need for knee arthroscopy) to the work-related accident. The Court found that the Commission’s determination of no causal connection was not against the manifest weight of the evidence. The Court further found the IME’s opinion as to MMI credible, persuasive, and supported by the medical records. Therefore, it found that the record supported the Commission’s finding that claimant was only entitled to TTD benefits from July 20, 2011, through February 17, 2012, and its decision was not against the manifest weight of the evidence The court also found that there was no evidence in the record that petitioner’s need for prospective medical care is related to his work injury.

The Appellate Court’s decision provides a significant savings for our client in regard to TTD benefits as well as  future medical expenses including the need for a total knee replacement.

Congratulations to attorney Jill Baker for the excellent result.  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at jbaker@inmanfitzgibbons.com.

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Village’s Denial of PSEBA Benefits Upheld by Illinois Appellate Court

In Wilczak v. The Village of Lombard, 2016 IL App (2d) 160205 (December 5, 2016), the Second District Appellate Court affirmed a Village’s denial of benefits under the Illinois Public Employee Benefits Act (“PSEBA”) (820 ILCS 320/1, et seq.). Under PSEBA, Illinois municipalities and fire protection districts must provide lifetime health insurance benefits to public safety officers, and their spouses and dependents, who receive a line-of-duty pension for an injury sustained while responding to what is reasonably believed to be an emergency. In Wilczak, the Court determined that the firefighter applicant failed to show that he was responding to what was reasonably believed to be an emergency.

The firefighter applicant in this case sustained an injury to his shoulder while lifting a disabled man from the floor to the bed. He was unable to work following treatment for his injury, and was granted line-of-duty disability benefits, pursuant to the Illinois Pension Code. He then applied for PSEBA benefits, but the Village declined his request. The firefighter filed a complaint for declaratory judgment, arguing that he was entitled to PSEBA benefits because his injury occurred during what he reasonably believed to be an emergency. The trial court granted the Village’s motion for summary judgment, and the firefighter appealed.

On appeal to the Illinois Appellate Court, the issue was whether the shoulder injury was sustained in response to what was reasonably believed to be an emergency. The Court cited Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL 110012, wherein the Illinois Supreme Court defined an emergency under PSEBA as an “unforeseen circumstance involving imminent danger to a person or property requiring an urgent response.”

In applying this definition, the Court noted that the injury occurred while the firefighter was dispatched for an invalid assist, and that the firefighter should have been aware from the beginning that the dispatch call did not involve an emergency. Notably, the Court acknowledged that the firefighter subjectively believed that he was responding to an emergency, but that even if the firefighter did believe there was an emergency initially, once he arrived at the scene, he would have known it was not an emergency as the disabled man was not injured and did not require medical attention. The Court also noted that although the man needed to be moved, he was not in imminent danger and no unforeseen circumstances arose during the response. The Court concluded that the firefighter’s belief that he was responding to an emergency was not reasonable and upheld the Village’s denial of PSEBA benefits.

Generally, the scope of PSEBA’s applicability has been construed liberally in Illinois courts. The Wilczak case is an example of a case where the Appellate Court limited the scope of PSEBA, and is an important case for municipalities and fire protection districts to be aware of.

Thanks to attorney Allison Mecher for the excellent summary of this important case.  Allison works out of the Chicago offices of I&F.

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Smoking breaks, pigeons lead to the eventual death of a County Investigator and a cloudy workers’ compensation claim in Missouri

Terry Lankford brought a workers’ compensation claim in Missouri for the development of pneumonia and chronic obstructive pulmonary disease due to developing a breathing fungus and bacteria associated with pigeon droppings. Lankford, a heavy smoker, worked as an investigator for the county. He stated that when he started working for the county that he would initially smoke in a basement area provided for that purpose. He was subsequently advised that he had to smoke outside.  He began going up to the courthouse roof to smoke as he claimed it helped him clear his mind. He stated that he also worked up there meeting with prosecutors and witnesses.  He denied any prior lung issues. The roof contained pigeon droppings which have bacteria that have been known to cause lung infections and lung damage such as COPD and pneumonia. The claimant claimed that he developed pneumonia and recurrent bronchitis symptoms because of the exposure to the fungus in the pigeon droppings on the roof.   During his case, Lankford died and his wife continued with the claim.

Earlier this year, the Missouri Court of Appeals found that in the case of Lankford v. Newton County, the claimant sustained an injury arising out of and in the course of his employment which led to his death from complications of pneumonia and COPD.

The facts showed that Lankford was a heavy smoker. It was determined that the county allowed him to initially smoke in the basement of the building. He was subsequently told that he had to smoke outside.  While he chose to smoke on the roof of the courthouse, he did often meet with other county employees and prosecutors to discuss cases. The claimant’s medical expert testified that while the smoking made him more susceptible to developing the lung issues, the prevailing factor causing his COPD and pneumonia was his frequent exposure to the pigeon droppings.   The defense experts testified that the pigeon droppings could also be could be found elsewhere and that he may have been exposed just as much while he was away from work. In addition, an infectious disease doctor testified that the claimant could have contracted the disease from occupational or non-occupational exposure and he could not conclude that it was more likely work related.  An internist also concluded that the prevailing factor was the claimant’s smoking.

The Missouri ALJ hearing the case ruled that the frequent exposure to the pigeon droppings while at work on the roof of the courthouse was the prevailing factor that caused his COPD and pneumonia that infected him and eventually killed him. He was awarded total disability benefits and the employer was ordered to pay back benefits of $167,811 as well as benefits to the widow.  The case was appealed to the Missouri Labor & Industrial Relations Commission.  The employer argued that the claimant failed to prove he was exposed to the pathogens that caused his occupational disease to a greater extent or degree than workers in normal, nonemployment life. The Commission found that rather than proving equal exposure, in occupational disease cases, the claimant must simply demonstrate that the disease he suffered is not an “ordinary disease of life to which the general public is exposed outside of employment.” The ALJ decision was affirmed. The case was brought before the Southern District Missouri Court of Appeals.  The employer argued that the Commission erred when it reached the legal conclusion that the claimant had no burden to show he had a greater exposure at work than exposure away from work applying the “equal exposure” defense.   The Appellate Court affirmed that this was not a required element to prove an occupational disease.  It affirmed the decision and found that the occupational disease contracted by the claimant was not “an ordinary disease of life to which the general public is exposed outside of the employment.

This decision certainly appears to open the door for additional occupational claims and further lessens the causation standard in that the claimants may not need to show that they have an increased exposure at work but only that they have a disease which is not an ordinary disease in which the general public is exposed.  We will continue to monitor these types of cases to determine if future Missouri cases continue down this path of lessening the causation standards.

Thanks to attorney Jill Baker for summarizing this important new development in Missouri..  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at jbaker@inmanfitzgibbons.com.

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Use of Opioids in Wisconsin WC is Low and Aims to go Lower

As everyone involved in the administration of workers’ compensation claims knows, pain medication, particularly opioids, are notorious medical cost-drivers.  This is especially true when calculation potential liability or exposure for taking the interest of Medicare into account.  Wisconsin, however, seems to be making progress with respect to curbing the tide of opioid abuse. According to a recent multi-state study of non-surgical workers’ compensation claims between 2009-2015 by the Workers Compensation Research Institute, injured workers’ in Wisconsin are using fewer opioids for pain than in the other states studied (Arkansas, California, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, and Virginia).

However, the study indicated that 6% of workers injured in Wisconsin received a potentially deadly mix of drugs; particularly opioids mixed with benzodiazepines or other central nervous system depressants. This deadly mix increases the chances of overdose death.

In April 2017, a prescription drug monitoring program law went into effect; urging doctors to “start slow and go low”  with respect to the amount and time frame of opioid prescriptions.  This law was not in effect at the time of the study.

Thanks to Partner Scott McCain for bringing this study to our attention.  Scott works out of the Chicago and Milwaukee offices of Inman and Fitzgibbons and will continue to monitor the effects of this new law.  If you have any questions about workers’ compensation claims in Wisconsin , please feel free to reach out to Scott.


Illinois’ General Assembly to Override Governor Vetoes to Pass a Balanced Budget, but Forgot About WC Reform

Happy birthday, United States of America, land of the free, home of the brave!  We hope all of you enjoyed a nice holiday weekend and a fireworks extravaganza for the 4th of July.  While most of you were relaxing with family and friends, we continued to monitor the activities in Springfield, which included the Senate remaining in special session on our national holiday.  (Too many of the House reps played hooky that day to have a quorum, so the House took the day off.)


You’ve been following our posts regarding proposed workers’ compensation reform bills that have been offered by both sides of the aisle.  Some of these represent true workers’ compensation reform, and some of the bills are basically “fake reform,” essentially formalizing existing case law.  At the beginning of the year, the plan was called the “Grand Bargain,” in which both parties would give and take to come to a balanced budget and at the same time enact some of the Governor’s “Turnaround Agenda” items, which included terms limits, pension reform and workers’ compensation reform among others.

What you may not realize, that two of the bills within the Grand Bargain, Senate Bill 6 (spending/allocation bill) and Senate Bill 9 (revenue bill) (SB 6 and SB 9) were included in that 14-bill package of the Grand Bargain where “this bill only become law if” all other bills in the Grand Bargain also become law.  (Workers’ Compensation reform was included in SB 12.)  But in May, House Democrats took the Senate Democratic sponsored bills 6 and 9 and unbundled them from the Grand Bargain. And the push to pass those bills continued through June.  When the legislation was presented in June it was $5B out of balance in the red, and it was clear that this would not pass the Governor’s desk, if it would even pass both houses.  Oh, by the way, all talk of pension reform, term limits, and workers’ compensation reform fell on deaf ears once the days leading up to the end of the fiscal year on June 30th began to tick into single digits.

So SB 6 was amended by permanently increasing personal and business income tax by . . . yes, $5B in revenue.  Viola!  The legislature now had a valid balanced budget without any spending reform.  If you think about it, this could have been proposed two years ago, but I digress.

The bills as amended passed in the House on July 2nd with the Senate concurring with the House amendments on July 4th sending the bills to Governor Rauner for signature the same day.  Then came the figurative fireworks in Springfield.  Governor Rauner as promised vetoed both bills on July 4th, and the Senate promptly that same afternoon passed a Motion on each bill to override the vetoes.  The bills then were sent to the House, which was not in session that day, for the same process.  Apparently the House was not as aggressive about its override as it took all of July 5th to add to the anticipation of what is to come, and that brings us to today, July 6, 2017.  The House is expected today to debate and vote on its Motions filed to override the Governor’s vetoes, and based upon the votes the House had on each bill on July 2nd, it is expected to be a done deal by the end of the day.

What does this mean for Illinois citizens and businesses?  Quite simply, it’s going to cost more to reside and do business here, and the State will continue to spend as it has for decades.  But the good thing is that with a balanced budget for the first time in years, the State will thrive and continue on, avoiding junk bond status.  Or will it?  That debate will continue for some time to come, but as the Wall Street Journal reported yesterday, “Indeed, a major rating firm said Wednesday that it continues to look at a possible downgrade of the state’s credit rating to a level no state has ever seen.” (“Illinois Budget Deal Would Leave Many Problems Unaddressed,” Quint Forgery and Heather Gillers, July 5, 2017).Illinois Junk State

Let’s hope the state’s citizens remember next election how we got here and that we make the effort to cure decades of mismanagement in Springfield by electing legislatures that will take responsibility to make those hard decisions, not the ones that assure reelection.  As for workers’ compensation reform?  We’ll let you know if they pull those bills out of the file cabinet in which they were tossed a few weeks ago.

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G. Steven Murdock has been an attorney with Inman & Fitzgibbons for 20 years, a partner for 13 of those and named Vice President in 2015. He also serves as the firm’s liaison to the Illinois Chamber of Commerce’s Employment Law and Worker’s Compensation Committee and monitors and provides input on pending legislation in Springfield affecting our practice.

Appellate Court Reevaluates Post-termination TTD

The Illinois Third District Appellate Court has taken another look at whether TTD is warranted when a claimant with restrictions is fired.   In the recent case of Holocker v. Illinois Workers’ Comp. Comm’n, 2017 IL App (3d) 160363WC, the Court found that the claimant’s restrictions did not significantly interfere with his ability to find a new job after being terminated.  TTD benefits for that period were not awarded.

In this case, the claimant was a transportation operator who suffered an accident while operating a crane, when a broken strap from the crane struck him in the face and chest, causing broken teeth, multiple facial fractures, and chest bruises.  After the petitioner has been released to full duty work for his physical capabilities, he began experiencing anxiety and panic attacks when having to operate a crane at work.  The claimant underwent psychological treatment for this anxiety and was restricted from operating cranes.  Respondent accommodated this restriction, providing him with other duties until the claimant was eventually fired because he had failed to show up for work or to call in for three days in a row.

Due to his restriction that prohibited him from operating cranes, the claimant asserted that, after being fired, he was entitled to TTD.  The Commission and Appellate Court disagreed.  The Appellate Court gave significant weight to the employer’s vocational expert, who testified that being restricted from operating cranes did not impact the claimant’s ability to find a new job.  Of crucial importance, the Court here distinguished this case from Interstate Scaffolding and Matuszczak (two cases where TTD was awarded after a claimant with restrictions was fired), stating that, “in each of those cases, it was undisputed that, at the time of termination, the claimant’s condition had not stabilized, that the claimant was unable to perform the job he had been performing for the employer prior to the work accident, and that when the claimant returned to work after the accident, it was in a light duty capacity. Thus, in each case, it was undisputed that the claimant’s work injury had diminished his ability to work, thereby entitling him to collect TTD benefits at the time of his termination.”

The Court further found that, by the time the claimant here was terminated, his work injuries had “no effect” on his employment situation.  The Court emphasized that, when analyzing TTD, “the test is whether the employee remains temporarily totally disabled as a result of a work-related jury and whether the employee is capable of returning to the work force” 

This case is a significant development in case law regarding TTD, and indicates an increased willingness of the Courts to not merely ask whether or not a claimant has restrictions, but to instead examine and analyze the type of restrictions that a claimant has, and whether it realistically impacts their employment situation.  Be sure to stay tuned to the I&F blog for regular updates on the changes and clarifications affecting Workers’ Compensation law throughout the Midwest!

Thanks to attorney Michael Bantz for the summary of this very important case.  Michael works out of the Champaign office of Inman and Fitzgibbons and can be reached at mbantz@inmanfitzgibbons.combbons.com.

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IL Special Legislative Session and Competing Workers’ Compensation Bills

Governor Bruce Rauner called a 10-day Special Session of the Illinois Legislature. The purpose of the Special Session is to address the on-going budget stalemate. In preparation for the Special Session, Republican Legislators unveiled a package of bills to address multiple issues, including Workers’ Compensation Reform. HB 4068 is the Republicans’ compromise bill in response to HB 2525, a Democratic backed bill that was previously approved by both chambers along a party line vote (the bill has not been sent to Governor Rauner’s desk for signature for fear of veto). Without going into the minutiae of both bills, HB 4068 can be viewed as being more favorable for Employers, while HB 2525 can be viewed as being more favorable for Employees.

The Special Session began on June 21, 2017 and can last up to 10 days, which brings it up against the start of the 2018 fiscal year. Both sides have expressed a sense of urgency at starting the 2018 fiscal year without a budget, and the Workers’ Compensation bill is a large piece of the budget. HB 4068 is currently being heard in the House Labor Committee and more testimony is expected.

Inman & Fitzgibbons supports HB 4068. Registered Employers can show their support for HB 4608 here.

Stay with us as we will continue to provide updates of this legislation.

Thanks to I&F Legislative Watch Group member Frank Johnston for providing the above summary.  Frank practices out of I&F’s Champaign office.

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Missouri WC Repetitive Trauma Update – Statute of Limitations: When does the clock start ticking?

There are often issues relating to the statute of limitations in carpal tunnel and other repetitive trauma cases.  When does the clock actually start ticking?  The Missouri Court of Appeals recently addressed this exact issue in the case of Lisa Cook v. Missouri Highway & Transportation Commission.   The claimant worked as a secretary for a government agency and spent between 85-90% of her time performing data entry on a computer.  She began working as a secretary for the agency in 1997.   She first started having wrist issues in 2005 and sought medical treatment. Her family doctor noted that her work involved repetitive movements of the wrist.  The claimant suspected she had bilateral carpal tunnel syndrome. She underwent a nerve conduction study which was normal and she was advised that she did not have carpal tunnel syndrome. In September of 2007, she had wrist pain and swelling and was sent by her employer for treatment. She was diagnosed with extensor tendinitis of wrists and right elbow and over-use tendinitis. She was treated with splints and anti-inflammatories. By late November 2007, she had no symptoms.  She was not diagnosed with carpal tunnel syndrome.  In 2011, she sought additional medical treatment for wrist problems in 2011 and a nerve conduction test revealed nerve damage in her wrists and she was diagnosed with carpal tunnel syndrome. She underwent bilateral surgeries in 2012.  She filed her claims in 2012.

The case was denied by the employer based on an opinion that there were underlying medical risk factors which caused the carpal tunnel syndrome including diabetes, hypertension, age, sex, and gender.  The claimant sought medical treatment on her own.  She underwent bilateral carpal tunnel releases in 2012 and her doctor opined that the bilateral carpal tunnel syndrome was primarily caused by her 14 years of repetitive work for her employer.

Depositions were taken and the case proceeded to trial before an administrative law judge who found that that her work was the primary cause of the carpal tunnel syndrome.  The decision was appealed and subsequently affirmed with the court finding a compensable injury and also finding that she had filed a timely claim.  The employer appealed the decision to the Missouri Court of Appeals arguing that the work was not the prevailing cause of the carpal tunnel and that the statute of limitations barred her claim.  The employer argued that the claim should be barred by the statute of limitations as her condition was reasonably discoverable both in 2005 and 2007, more than two years prior to the 2012 filing of her claims.  The employer argued that the statute of limitations started running as soon as the employee found out that she had carpal tunnel syndrome.

Missouri statute states that the 2-year claim filing deadline does “not begin to run on an occupational disease such as carpal tunnel until it becomes reasonably discoverable and apparent that an injury has been sustained relative to such exposure [to repetitive motion work].”

The court held that the issue as to when the clock on the filing deadline begins to run is not when the employee first realizes they have carpal tunnel syndrome, but when the employee should first become aware that their carpal tunnel syndrome was caused by their exposure to repetitive work.  The court noted that the doctor hired by the employer told her that she had carpal tunnel syndrome but he also stated that it was not primarily related to her work.  The court held that the statute of limitation clock does not start running for carpal tunnel cases when the injured worker is diagnosed with carpal tunnel but it starts running when it becomes reasonably apparent to the employee that the carpal tunnel syndrome was work-related and related to the repetitive work.  In this case, the statute did not start running until 2012 when she was diagnosed with carpal tunnel syndrome and a doctor opined that the condition was related to her work.

This case requires a close watch on the time of the medical diagnosis and causation opinions. It may also require employers to keep repetitive trauma cases, without filed Claims for Compensation, open longer as the statue may not necessarily run two years after the carpal tunnel diagnosis.  Please contact us with any questions about this case or any other Missouri workers’ compensation issues.

Please feel free contact us with any Missouri workers’ compensation questions. Thanks to attorney Jill Baker for the summary of this case.  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at jbaker@inmanfitzgibbons.com.

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Indiana Employer and Its Subsidiaries Protected by the Exclusive Remedies Provision of the Act

In Brenda Hall v. Dallman Contractors, LLC, 51 N.E.3d 261 (2016), the Indiana Court of Appeals recently addressed whether an employee could pursue a negligence action against a subsidiary of AT&T, Inc., after she had already received a worker’s compensation settlement from her employer, Ameritech.  The Court of Appeals answered in the negative, barring further recovery pursuant to the exclusive remedies provision of the Indiana Worker’s Compensation Act.

In this case, there was no dispute regarding the fact that the employee injured her arm while working for Ameritech.  The injury occurred when she fell over the snow-covered legs of a construction sign located in a walkway that was adjacent to a construction project at the Indianapolis AT&T building.  As a result of said injuries, the employee received worker’s compensation benefits and eventually settled her claim.

In addition to settling her worker’s compensation claim, the employee filed a third party negligence claim against Dallman Contractors, LLC and AT&T Services.  In 2012, AT&T Services argued that the employee should be barred from recovery under the exclusive remedies provision of the Act.  The trial court agreed and granted summary judgment for AT&T Services.  Thereafter, the Court of Appeals reversed and remanded the case to the trial court to address the factual question of whether AT&T Services was a joint employer.

Pursuant to Section 22-3-6-1(a) of the Act, “a parent corporation and its subsidiaries shall each be considered joint employers of the corporation’s, the parent’s, or the subsidiaries’ employees.”  The exclusive remedies provision of the Act, located at I.C. 22-3-2-6, states that the rights and remedies granted to an employee under the Act “on account of personal injury or death by accident shall exclude all other rights and remedies of such employee … at common law or otherwise, on account of such injury or death.”  In its second motion for summary judgment, filed in 2014, AT&T Services presented evidence that both Ameritech and AT&T Services were subsidiaries of AT&T, Inc.  The trial court also found that Ameritech and AT&T Services were joint employers.  Once again, the trial court granted summary judgment for AT&T Services and the employee appealed.

In its opinion, the Court of Appeals affirmed the trial court’s summary judgment.  In so finding, the court agreed that AT&T Services was a subsidiary of AT&T, Inc. and, as a result, was also a joint employer.  As a joint employer, AT&T Services was protected by the exclusive remedies provision of the Act and the employee was barred from further recovery from AT&T Services.

Thanks to attorney Dane Kurth for this important case law update.  Dane covers both Illinois and Indiana for the firm.

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IL WC Alert – Rebutting the 6(f) Presumption

The Appellate Court recently issued a decision that clarifies how to apply the rebuttable presumptions referred to in section 6(f) of the Illinois WC Act, when firefighters and various medical professionals are diagnosed with hernias, hearing loss, or “any bloodborne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis, or cancer.”

In Johnston v. Illinois Workers’ Comp. Comm’n, 2017 IL App (2d) 160010WC, which is still subject to revision or withdrawal, the Court analyzed a case involving a firefighter who had suffered a heart attack.  The Court goes into significant detail to address the section 6(f), which states that there is a rebuttable presumption that the above conditions arise out of and in the course of the claimant’s employment if they work as a firefighter or in one of several medical professions, including paramedics.

The Appellate Court examined the nature of this rebuttable presumption and how exactly to interpret and apply that presumption.  The Court even reviewed the legislative history,  legislative debate, and the statements of the bill’s sponsor, Representative Hoffman, who said, “So what this does is if you have it you could bring your action, it doesn’t mean you’re going to get compensated, it doesn’t mean you’re going to win, it doesn’t mean that you have proven beyond any doubt or conclusively that this happened on the job, it only means that the employer can then come in and bring contrary evidence as to whether or not it happened on the job.” (emphasis added by the Court) 95th Ill. Gen. Assem., House Proceedings, Apr. 27, 2007, at 68-69 (statements of Representative Hoffman).

The Court further quoted the bill sponsor as saying, “[s]o don’t think it’s conclusive that simply because you have lung cancer, you’re going to get compensation of the Worker’s Compensation Act. What we’re saying is, we’ll get you to the hearing. Then the other side can bring in evidence that you smoked for thirty (30) years and therefore, it wasn’t a result of the actions taken at work.” Id. at 82.

The Appellate Court then ruled that, “Based on the above legislative history, we find that section 6(f) does not involve a strong rebuttable presumption, requiring clear and convincing evidence. Rather, we conclude that the legislature intended an ordinary rebuttable presumption to apply, simply requiring the employer to offer some evidence sufficient to support a finding that something other than claimant’s occupation as a firefighter caused his condition.”  Johnston v. Illinois Workers’ Comp. Comm’n, 2017 IL App (2d) 160010WC, ¶ 45 (emphasis added).

In this case, the petitioner was an obese smoker, mildly diabetic, and with a family history of heart disease.  Accordingly, the presumption was rebutted, though the Court did note that if the employer is successful in rebutting the section 6(f) presumption, at that point “the claimant may, if the evidence supports it, assert that his occupational exposure was a cause of his condition of ill-being, along the lines of Sisbro, thus entitling him to an award of benefits.”  Id. at ¶ 51.

In this case, the Court also further specifically found that the petitioner failed to prove that he suffered a work accident that arose out of his employment, and that claimant failed to establish that a medical causal connection existed between his occupational exposure and coronary artery disease.

This case is a notable development in specifying the parameters for a section 6(f) rebuttable presumption, and also crucially outlines for Respondents how they can successfully rebut the presumption when 6(f) applies.  Stay tuned to the I&F blog for more updates on developments in workers’ compensation law affecting firefighters and paramedics.

Thanks to attorney Michael Bantz for the summary of this very important case.  Michael works out of the Champaign office of Inman and Fitzgibbons and can be reached at mbantz@inmanfitzgibbons.combbons.com.

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Recent Missouri Activity Appears Favorable for Employers

Employers in Missouri should expect a continued decrease in workers’ compensation insurance costs as the Missouri Department of Insurance has recently recommended a 4.6% decrease in workers’ compensation insurance loss costs for 2017.  The loss costs are intended to cover indemnity and medical payments for injured workers as well as expenses incurred for providing these benefits. This marks the third year in a row for reductions in costs for businesses.  The rates have been reduced by 9.8% over this period. According to the Department of Insurance, 225 out of 337 active insurer’s filed rate decreased in 2016. There was an average decrease of 2.9%. As insurers use loss costs to set their workers’ compensation rates, it is expected that there will be an overall reduction in rates.

It is further anticipated that the Missouri business community will push for additional employer friendly reforms in 2017, under the new administration. Following years of deadlock, it is projected that the new leadership in the Senate, House, and governor’s office will work jointly to bring positive changes for business.  “We believe 2017 could be a watershed year for Missouri job creators,” said Dan Mehan, Missouri Chamber president and CEO. “The election gave us the opportunity to put the team on the field that will enact the reforms we need to be competitive. We did and it’s time.”

Workers’ compensation is an area targeted for reform in Missouri.  Mehan specifically addressed this issue.  “The system, which was designed to provide an exclusive remedy so that workers could be made whole quickly and fairly, continues to be chipped away by the courts,” said Mehan. “Cases such as Templemire v. W&M Welding are undoing 30 years of established case law. We must ensure that injured workers are protected without causing harm to the state’s job creators.” The Templemire decision opened the door allowing almost any injured work to also have a valid workplace discrimination claim. The Missouri Chamber will concentrate on pushing for business-friendly changes in the workers’ compensation arena in 2017.

As evident of these efforts, earlier this month, Missouri Governor, Eric Greitens, signed right-to-work legislation into law. This move made Missouri the 28th state to adopt this legislation.  Previously, Mehan had claimed that Missouri was operating at only 60 percent of its capacity without right-to-work.  It is expected that this action will create jobs.   According to the U.S. Bureau of Economic Analysis, right-to-work states added 8.6% new jobs from 2005 to 2015. Non-right-to-work states grew by 5% during the same period.  In addition, GDP in right-to-work states increased by 15.3% while non-right-to-work states only grew by only 11.9% percent.

We will continue to monitor the developments in Missouri.

Please feel free contact us with any Missouri workers’ compensation questions. Thanks to attorney Jill Baker for this important update.  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at jbaker@inmanfitzgibbons.com.

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The Obstinate Children and the Illinois General Assembly

Having grown up in rural west central Illinois, surrounded by farmers and manufacturing laborers from John Deere and International Harvester, it was instilled in us even as children that we all have duties and responsibilities to make a contribution to our family, our community and the professions we serve.  As kids, these were “chores,” as teenagers these were “chores and part-time jobs,” and as adults they’ve become the backbone of our careers and raising our families.  As many of my family, friends and colleagues may recall, there were some kids and teenagers that would become obstinate, some for longer durations than others, against the general principle of living up to those duties and responsibilities.  We could go on and debate the reasoning behind the obstinate behavior, but that is another topic and another day.

The recent activity on the part of the Illinois State General Assembly takes me back to the “obstinate child” seen when I was growing up (yours truly included).  Similarly, we can debate the reason for the obstinate behavior of our state legislators, and I’m sure we all have an opinion.  (If you’d like to hear mine, do feel free to give me a call.  I have an opinion!) The point is that, like an obstinate child or teenager, our General Assembly has again shucked its duties and responsibilities in a classic end of the school year slacker routine much akin to that seen in “Fast Times at Ridgemont High,” and rushed out of Springfield heading home leaving a mess in its wake and nothing truly accomplished.


In a flurry of activity over the last few days of the 100th Session of the General Assembly, which ended on May 31st, the General Assembly managed to pass, largely along a party-line vote, what it has dubbed “workers’ compensation reform” in the form of two bills that we’ve been following: HB2525 and HB2622.  Why do we say this is not actually workers’ compensation reform?  There is no reform here, only codification of currently bad case law, with one exception, and the addition of an unnecessary state mutual insurance fund for workers’ compensation insurance. The Governor will now review these bills and either approve or veto them – we are urging our readers to contact the governor’s office asking for a veto of both.

As we previously informed our readers, HB2525, proposed by House Democrats in response to the Governor’s request for workers’ compensation reform in exchange for a realistic dialogue on budget and pension reforms, basically does the following:  Codifies Venture Newburg by establishing factors for determining traveling employee status and expands liability by also defining a traveling employee using a reasonable & foreseeable standard; Codifies current case law of “in the course of employment” & “arising out of the employment” and reinforcing the current “any” cause standard; and Allows AMA guideline submission for impairment rating for PPD benefit.  This is existing law already in use.  This is not reform.  The one glimmer of light in this passed legislation is that the bill reverses the ruling in Will County Forest Preserve District and returns us to over 100 years of precedent that the shoulder is not part of the whole person, but a part of the arm.  (It also states that the hip is part of the leg, not the whole person, just to make sure that does not become an issue with the courts in the future.)  HB2525 is not workers’ compensation reform. Like the obstinate child, the GA has thrown a comforter on the bed and said, “there, we’ve made the bed!”  It has been sent to the Governor for signature.  We are calling for the Governor to veto the bill.

The state legislature also passed HB2622, which is a bill that creates of a state-run Illinois Employers Mutual Insurance Company, a state WC/OD insurance company, as an alternative to private WC/OD insurance.  This is intended to control WC insurance premiums in Illinois by providing employers with a low-cost alternative to the premiums offered by more than 300 competing WC/OD insurers currently writing insurance in Illinois.  Anyone that knows the basics of marketing knows that in our capitalistic society, the market will generally self-regulate.  Insurers in Illinois do make a profit – why else would they write insurance in Illinois?  But the insurers also compete against one another for a limited ( and actually shrinking) market in Illinois as the number of employers continues to decrease.  What does that mean? To remain competitive, these 300 or so companies have to keep tight profit margins to remain competitive in the market and grab as much of that business as possible.  The market regulates itself and is employer driven.  What can a state-run insurance company do better than private insurers without any additional burdens on the Illinois taxpayer?

Both bills provide no promise of actually reducing the cost of workers’ compensation claims in Illinois, nor do they entail actual reforms. To me, this attempt at “reform” by the GA looks and sounds more like the kid throwing a tantrum in response to a simple request to propose true claims-cost reducing reform to make Illinois more competitive for business and employers.

Anyone with children has seen the messy room, the occasional tantrum when a child does not want to do what he or she has been asked to do, and the path of destruction left behind by that child. But all is not lost. There is still time and hope. Both bills still need the signature of Governor Rauner. Join other concerned constituents and call Governor Rauner’s office to demand that he veto these bills.

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G. Steven Murdock has been an attorney with Inman & Fitzgibbons for 20 years, a partner for 13 of those and named Vice President in 2015. He also serves as the firm’s liaison to the Illinois Chamber of Commerce’s Employment Law and Worker’s Compensation Committee and monitors and provides input on pending legislation in Springfield affecting our practice.

I&F Prevails in IL Claim where Medical Records Contradict Petitioner’s Testimony

I&F recently prevailed at arbitration in an Illinois WC claim with a ruling that saves the employer thousands of dollars. The petitioner, a laborer, suffered a work injury to his forearm. After a course of physical therapy and activity modification, he was discharged from care. The petitioner did not seek additional treatment for almost a year, and thereafter, sought treatment periodically for the next 3 years, including surgery. The petitioner sought payment of medical bills after initially being placed at MMI. At trial, he testified that he experienced pain every day since the work accident.

Attorney Frank Johnston meticulously reviewed medical records and employment related records. He was able to find numerous inconsistencies and outright contradictions of the petitioner’s trial testimony. During cross examination of the petitioner, he was able to show the Arbitrator that the petitioner was symptom free for close to a year and the treatment he sought later was not related to the original forearm strain.

The Arbitrator found this evidence to be persuasive. She found that the employer was not responsible for the payment of medical bills, TTD benefits, and a significant reduction in PPD benefits from what was sought from the petitioner.

Congratulations to Frank Johnston for the favorable result.  Frank practices out of I&F’s Champaign office.

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Continuing Education Opportunity: I&F to Conduct Mock WC Trial with Illinois Chamber of Commerce – June 13, 2017


Please join us as we conduct a mock trial for an Illinois worker’s compensation case.

We will demonstrate how to present a defense with strategic consideration of the burden of proof and evidentiary rules, and use of lay and expert witnesses. We will conduct direct and cross examination as well close proofs at the end of the hearing. We’ll see you in court!

Registration Information:
Tuesday, June 13, 2017
11am – 1pm
Offices of Connor & Gallagher
750 Warrenville Rd., Suite 400 Lisle, IL 60532

Member Price – $50.00
Non-Member Price – $75.00
Price includes lunch and any materials

Continuing Education Credits:

  • This seminar has been submitted for approval to offer 2.5 CLE credits for attorneys.
  • This seminar has been pre-approved to offer 2.5 HRCI credits.
  • This seminar has been pre-approved to offer 2.5 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.

I&F Prevails in IL Claim as Petitioner’s Bilateral Carpal Tunnel Held Unrelated to Work Duties

I&F recently prevailed in a trial over the disputed issue of the Petitioner’s bilateral carpal tunnel conditions.  The Petitioner alleged that her diagnoses and surgeries were due to repetitive trauma from her work as an English Teacher.  The petitioner testified that her duties during the school day required her to use her hands for attendance, grades, e-mail and for her teaching of the students during the course of the day.  She also testified that she typically stayed 3 hours after school and worked almost every weekend from home, creating 1,920 lesson plans on her computer from 2007 until her retirement in 2015.

The Petitioner’s surgeon testified that these job duties and regular computer use had caused or aggravated her bilateral carpal tunnel conditions; however, the very limited extent of his knowledge regarding the Petitioner’s job duties was brought to light through diligent cross-examination.

The Arbitrator found the Respondent’s expert witness and IME physician to be much more credible, knowledgeable, and convincing.  In his direct and redirect testimony, the Respondent’s IME physician was able to clearly and succinctly explain his detailed knowledge of the Petitioner’s job duties and the nature of her typing.  Based on the contrasting testimony of the two expert witnesses, the Arbitrator found that there was no causal relationship between the petitioner’s bilateral carpal tunnel and her work duties.

The key to the excellent result in this case was being able to attack the underlying foundation for the opinions of the Petitioner’s expert medical witness, while simultaneously ensuring that the Respondent’s expert witness was provided with thorough and detailed facts regarding the specifics of what the Petitioner’s job duties entailed.

Congratulations to attorney Michael Bantz for this excellent result.

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Missouri Commission Finds Horseplay Equals No Pay

Both in Missouri and in Illinois, accidents caused by horseplay in the workplace are usually not compensable.  Horseplay or “goofing off” is generally not acceptable behavior in the workplace as it may result in injuries to the employees.  It commonly has nothing to do with furthering the interests of the employer.  Generally, an employee actively involved in the horseplay incident is not successful in proving a compensable work related accident.  On the other hand, an employee who does not participate in the horseplay but is injured because of the horseplay will be entitled to benefits.   Additionally, if it is determined that the employer knew of the horseplay and tolerated it, benefits may be awarded even to the participant.

In the recent case decided in Missouri, Grayson v Thorne and Son Asphalt Paving Company, the claimant alleged that he sustained an injury to his shoulder which arose out of his employment when he was involved with an altercation with a co-worker and fell to the ground.  It was shown at trial that the 57-year-old worker began work in a morning in 2015 when a co-worker grabbed him and they wrestled.  Witnesses stated that there were no bad feelings between the two employees and that they continued to work after the incident although the claimant testified that he was not a voluntary participant to the assault.  In addition, another employee reported that people were often joking around but wrestling was not typical conduct.

After hearing the evidence at trial, the ALJ found that at the time of the claimant’s alleged injury on September 25, 2015, the employee was engaged in voluntary horseplay that was neither commonplace in the workplace nor condoned by employer.  The ALJ concluded that the employee did not sustain an injury arising out of and in the course of his employment Based on this finding, the claimant was denied benefits.  The Commission affirmed the denial of benefits finding that the risk source of the employee’s injury in this case was employee’s own voluntary consent to horseplay that was neither commonplace at work nor condoned by employer. Because the risk source of employee’s injury was personal and did not arise out of the work or the workplace, his injury was not compensable.

This is a favorable decision for the employer.  In order to increase the likelihood that injuries from horseplay are found not compensable, it is important for the employer to insure horseplay is not tolerated in the work place.

Please feel free contact us with any Missouri workers’ compensation questions. Thanks to attorney Jill Baker for the summary of this case.  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at jbaker@inmanfitzgibbons.com.

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I&F Upholds Prior Victories in Appeal before Madison County Circuit Court

Partner Kevin Deuschle previously obtained wins at Arbitration and before the Commission, awarding no benefits to the petitioner, in a case involving an allegedly work-related torn meniscus and eventual total knee replacement.

The Petitioner had worked as a truck driver for the Respondent and testified that he stepped out and of his truck and down, feeling numbness and pain in his right leg upon putting his right foot on the ground.  The next day, while walking across a parking lot on the Respondent’s premises, he collapsed and was brought to the ER via ambulance.  The Petitioner, who was noted to be 6’2” and weighing 375 lbs, was diagnosed with a meniscus tear and underwent a meniscectomy followed by a total knee replacement.

The Arbitrator awarded no benefits, finding that the petitioner failed to prove that he suffered an accidental injury that arose out of and in the course of his employment.  The Arbitrator specifically found the Petitioner not to be a credible witness due to a combination of reasons, including a conflict between the Petitioner’s testimony and the history that he gave to medical providers, the fact that the Petitioner did not give any medical provider a history of injuring himself while stepping out of the truck until almost two weeks after the accident, and also because the Petitioner did not identify his accident as being the act of stepping out of the truck when he gave a recorded statement to the claims handler.

The Arbitrator further found that, even if the Petitioner’s description of the circumstances was accepted, that it would not constitute an accidental injury arising out of and in the course of his employment, due to the fact that the petitioner failed to describe a specific event or accident.  The Arbitrator noted that there was no slip, fall, or twisting of the knee when he stepped out of the truck.  Lastly, the Arbitrator found that there was no evidence that the Petitioner was subjected to a risk of injury greater than that which the general public is subjected, citing Caterpillar Tractor Co. v. Indus. Comm’n, 129 Ill. 2d 52, 56, 541 N.E.2d 665, 666 (1989).

The Illinois Workers’ Compensation Commission affirmed and adopted the Arbitrator’s Decision in its entirety, including the Arbitrator’s specific finding that the Petitioner was not a credible witness.

The case was then appealed to the Madison Circuit Court, where it was argued by attorney Michael Bantz.  The Circuit Court found that the decisions of the Arbitrator and Commission were not against the manifest weight of the evidence; however, the Circuit Court focused on the Petitioner’s failure to properly report the accident and the lack of medical evidence that established a connection between the alleged trauma and his diagnosis, rather than on the credibility of the Petitioner.  The Court specifically found that the Petitioner’s condition was idiopathic and that he was not exposed to any risk of harm when his injury occurred.  The Petitioner then brought a motion to reconsider before a new Judge at the Circuit Court, and Michael Bantz again obtained a favorable ruling with further arguments before the Court.

In this instance we were able to prevail by bringing together a variety of arguments on separate issues.  It is essential to raise all possible defenses at the time of trial, including identifying inconsistent statements that undermine the credibility of witnesses, providing arguments that an incident did not legally arise out of a claimant’s employment, and also clearly detailing the weaknesses in any assertion of a medical causal connection between an accident and a diagnosis.

Congratulations to Partner Kevin Deuschle and Attorney Michael Bantz for their success on this case!