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.

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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

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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!

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WI Supreme Court takes first look at 2013 law that disqualifies claimants from receiving unemployment benefits for “substantial fault.”

The May 4, 2017 Wisconsin Supreme Court decision in Lela Operton v. LIRC, 2017 WI 46, highlights the need going forward for employers denying unemployment benefits to present evidence that employee errors resulting in termination were not inadvertent.

In Lela Operton v. LIRC, 2017 WI 46,  the Court interpreted, for the first time, a 2013 law that disqualifies claimants from receiving unemployment insurance benefits for “substantial fault.”

“Substantial fault” includes those acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the employee’s employer but does not include any of the following:

  1. One or more minor infractions of rules unless an infraction is repeated after the employer warns the employee about the infraction.
  2. One or more inadvertent errors made by the employee.
  3. Any failure of the employee to perform work because of insufficient skill, ability, or equipment.  (Wis. Stat. Section108.04 (5g))

Lela Operton worked as a full-time service clerk for Walgreens from July 17, 2012 until her termination on March 24, 2014 for multiple cash handling errors and the inability to improve despite warnings.  She averaged hundreds of cash handling transactions per day during her employment. Operton made eight (8) cash handling errors during her time with Walgreens that led to her termination on March 24, 2014.

Subsequent to her termination,  Operton filed for unemployment benefits. An Administrative Law Judge (ALJ) denied Operton unemployment benefits and concluded that she was terminated for “substantial fault.”  The Labor and Industry Review Commission (Commission) affirmed the ALJ. The Court of Appeals reversed the Commission’s finding. The Supreme Court accepted review.

The Supreme Court agreed with the Court of Appeals and remanded the matter back to the LIRC for a determination as to the amount of benefits owed. The Supreme Court did indicate that fault existed because Operton did exercise “reasonable control” over the cash handling transactions and that the employer “reasonably required” her to handle these transactions. However, the Supreme Court took issue with what it stated was the Commission’s failure to assess whether the errors were “one or more inadvertent errors,” which would preclude a finding of substantial fault.  In assessing this issue, the Court determined that the errors were inadvertent and not reckless or intentional. It noted that there was no evidence that Operton willfully disregarded the employer’s interests or that she was so careless or negligent to be guilty of misconduct. The Supreme Court thus concluded that “substantial fault” did not exist to deny benefits.

Operton shows that an employer must be prepared to present evidence countering the application of the substantial fault exceptions. Certainly counsel for employees will be keen to present evidence of inadvertence and lack of intent.

Thanks to Partner Scott McCain for bringing this new case to our attention.  Scott works out of the Chicago and Milwaukee offices of Inman and Fitzgibbons.

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Iowa WC Bill Signed by Governor

Iowa Gov. Terry Branstad has signed a workers’ compensation bill that reduces benefits for injured workers, notably benefits for shoulder injuries, and decreases coverage for injuries tied to a pre-existing condition.

Des Moines, Iowa – Photo Credit to Des Moines Register

A proposal to end permanent total disability benefits at age 67 was ultimately removed from measure, but Iowa Republicans added an amendment creating a vocational rehabilitation program for some workers with shoulder injuries. Under this provision, an employer would pay up to $15,000 toward a retraining program for qualified workers, according to a report by the Iowa Legislative Services Agency (LSA).

Beginning in the 2018 budget year, payouts from the state Workers’ Compensation Fund are expected to decrease by about $1.8 million annually under the bill, the LSA reported. The LSA said it’s unknown what the fiscal impact of the retraining program will be, but it is expected to increase some costs to the state fund.

In a statement released by his office, Branstad said the Iowa workers’ comp system over the past decade had “mutated into a system benefiting trial lawyers at the expense of Iowa businesses and Iowa workers.”

He said the bill acts “to ensure employees are compensated fairly for being injured on the job, while ensuring that abuses are curtailed. This legislation prevents attorneys from taking fees from injured workers when the employer was voluntarily giving benefits, ends the burden on the employer to demonstrate that intoxicated workers incurred injuries as a result of the intoxication, and ends an individual’s ability to receive workers’ compensation while receiving unemployment insurance.”

The National Council on Compensation Insurance has found the Iowa system overall is fair for employers, according to the Associated Press. The NCCI last year proposed overall decrease in voluntary and assigned risk rates of 4.7 percent that became effective in Iowa on Jan. 1. Rates increased by about 2.2 percent in 2016.

Republicans, echoing arguments in states such as Illinois, argued that that workers’ compensation rates for Iowa businesses are so much higher than rates in neighboring states that it makes it difficult to compete.  Democrats overwhelmingly spoke out against the bill, saying it is a bad deal for injured workers.

The bill goes into effect on July 1.

I&F thanks the Insurance Journal for the summary of the changes on Iowa.

Kevin Deuschle wrote this article and is the Chair of the firm’s Information Technology Practice Management group, including the firm’s Committee on Digital Ethics.  He has managed the firm’s blog since its inception in 2009.

I&F Partner Terry Donohue handles Iowa claims for the firm and works out of the Chicago and Des Moines offices of Inman and Fitzgibbons.  Please feel free contact Terry with any Iowa workers’ compensation questions.

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Indiana Court of Appeals Holds Termination of Employment does NOT Bar Entitlement to TTD Benefits in Indiana

The Indiana Court of Appeals recently weighed in on an issue that could prove troublesome for Indiana employers.  In March, the Court addressed the issue of whether an injured employee was entitled to temporary total disability (“TTD”) benefits after being terminated for misconduct on the job.  Both the Indiana Worker’s Compensation Board and the Court of Appeals said “yes.”

In Masterbrand Cabinets v. Douglas Waid, the employee suffered a compensable injury to his back when he slipped and fell at work on June 6, 2014.  The employee sought medical care two weeks after the fall when his condition had not improved.  The treating physician released him to return to work full duty and the employee returned to work the following day.  After completing his first shift, the employee missed work because he could not get out of bed.  When he returned a day later, the employee engaged in a verbal altercation and cursed his supervisor.  He also threw an ice pack that nearly struck another employee.  The injured employee was later terminated from his employment.

Although the employee received medical benefits, the employer denied TTD benefits because the employee’s termination was related to his own misconduct.  In part, the employer relied on Indiana Code 22-3-3-7(c), which provides that TTD benefits can be terminated when “the employee is unable or unavailable to work for reasons unrelated to the compensable injury.”  The employer argued that his own conduct, not the work injury, rendered him unable or unavailable for work.

The parties proceeded to hearing on the TTD issue before the Single Hearing Member.  The Judge agreed that the employee’s conduct fell well below the expected standards of conduct in the workplace.  Nonetheless, the Judge opined that the relevant inquiry was whether the employee’s inability to work was related to his injury.  The Judge found that the employee was unable to perform work of the same kind or character due to the work injury.  Accordingly, the Judge awarded TTD benefits.  The Full Board agreed and noted in its decision that the employee had a very limited capacity to work and was limited to performing work of a sedentary nature.

Despite the employer’s arguments to the contrary, the Court of Appeals opined that the relevant inquiry was not the reason for the employee’s termination, but rather “whether his inability to work, even for other employers, was related to his injury.”  To that end, the Court agreed with the Board’s determination that the employee’s inability to work was related to his work-injury.

In its analysis, the Court of Appeals found that I.C. 22-3-3-7(c) did not apply because it pertained to termination of TTD benefits whereas this appeal concerned the issue of entitlement to TTD benefits.  The Court added that the legislature had proven capable of limiting or barring an employee’s claims to worker’s compensation benefits and had done so in other circumstances.  Thus, if the legislature wanted to limit or bar an employee’s entitlement to TTD benefits following a termination from employment, then the legislature could have done so.  In the absence of any such provisions, the Court essentially disregarded the employer’s argument that this section of the Act justified its denial of TTD benefits.

While the Masterbrand Cabinets v. Waid case may make it difficult for Indiana employers to deny TTD benefits for injured workers following termination of their employment, each situation warrants a thorough, fact-specific inquiry.  It is uncertain how narrowly subsequent Courts will construe this decision in the future.  Furthermore, this Court focused on the employee’s entitlement to TTD benefits, not termination of TTD benefits that had already begun.  In that regard, it is unclear if the Court would have reached a different conclusion if TTD benefits been initiated.  Likewise, it is unclear if the outcome would have differed had the employee been deemed capable of performing more than sedentary-type work at the time of his employment termination and subsequent hearings.

Given the complexity of this issue and the likelihood of further litigation, our firm will continue to provide updates on any developments in the law related to entitlement to or termination of TTD benefits as it relates to termination of employees.

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

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I&F’s Lauren Waninski admitted to practice before the United States Supreme Court

Inman & Fitzgibbons Associate Attorney Lauren Waninski traveled to Washington, D.C. where she had the distinct honor of appearing before the United States Supreme Court. Lauren appeared on a Motion to Admit requesting that distinction to practice law in front of the highest Court in the nation.

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Lauren and Associate Justice Neil M. Gorsuch

Chief Justice of the United States, John G. Roberts, presided over the motion hearing. After Chief Justice Roberts heard the Motion to Admit and confirmed Lauren is in good standing to practice law in the State of Illinois, Lauren was admitted to practice law in front of the United State Supreme Court. After the swearing in ceremony, Lauren met Associate Justice Ruth Bader Ginsburg and Associate Justice Neil M. Gorsuch.

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Lauren shares the distinction of admittance to practice law at the United States Supreme Court with Associate Attorney Jill Baker and Partner Kevin Deuschle of Inman & Fitzgibbons.  Jill and Kevin served as Lauren’s sponsors to the Court.

Illinois WC Legislative Update – May, 2017

The Illinois Legislature has been busy with Workers’ Compensation related bills and we have been busy keeping our readers up to date. There are 3 bills that we have been following, and we want to take a few minutes to bring to our readers’ attention:

  • HB 2622 – Creates a non-profit, taxpayer funded mutual insurance company. The idea behind the bill is to create a new competitor with the hundreds of carriers providing coverage throughout the state of Illinois.
  • HB 2525 – A large rewrite of the Workers Compensation Act. The salient changes (not all inclusive) include:
    • Shoulder is paid out as an arm (reverses the Will County decision)
    • Hip is paid out as the leg
    • Codifies current case law of “in the course of employment” & “arising out of the employment” maintaining the “any” cause standard
    • Codifies Venture Newburg by establishing factors for determining traveling employee status and expands liability by also establishing a traveling employee through a reasonable & foreseeable standard
    • Allows AMA guideline submission for impairment rating for PPD benefit
    • Add new electronic billing penalty and new penalties for delay of authorization of medical care
  • HB 2703 – Eliminates the protections afforded by the Freedom of Information Act to self-insured groups. The proposed bill, if enacted, would remove the FOIA language that exempts self-insured groups from copying and inspection.

These bills are in varying levels of the legislative process. The first two bills passed along strict party lines in the House, but are still pending pursuant to a “Motion to Reconsider,” a parliamentary maneuver to allow more time for the sides to negotiate (or grandstand, be that as it may). The final bill has been introduced, gone through a second reading, but no final vote has occurred. Now as our savvy readers know (or those who grew up with School House Rock’s “I’m Just a Bill”), any piece of legislation must pass both the House and Senate before being signed into law by the Governor. As evident by the lack of a State budget for the past two years, getting approval by all three branches is no small feat. There is a long way to go before there is any semblance of workers’ compensation reform, but these 3 bills give a little insight into at least one parties’ thought process. Stay with us as we continue to provide updates on the Illinois Legislature and Workers’ Compensation reform.

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

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I&F and Illinois Chamber of Commerce present “The Life of a Workers’ Compensation Claim”

Inman & Fitzgibbons, Ltd. attorneys Allison P. Mecher and Lauren L. Waninski recently presented “The Life of a Workers’ Compensation Claim” to the Illinois Chamber of Commerce. In this presentation, they discussed the intricacies of handling a litigated workers’ compensation claim before the Illinois Workers’ Compensation Commission from start to finish, as well as what to expect when represented by defense counsel like Inman & Fitzgibbons, Ltd.
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If this presentation or any other topic in WC interests you, please contact us to discuss how we can meet your association or company’s needs.  We are available to provide either live presentations or webinars on legal issues in any of the states we cover – Illinois, Wisconsin, Iowa, Indiana, and Missouri.

IL WC Update: Taking the “Voluntary” out of Voluntary Recreation Programs

Pursuant to Section 11 of the Illinois Workers’ Compensation Act, accidental injuries incurred while participating in “voluntary recreation programs” do not arise out of and in the course of one’s employment.  Section 11 even provides some examples of voluntary recreation activities that might be subject to this exclusion such as participation in “athletic events, parties and picnics.”

Despite the exclusion related to voluntary recreation programs, a recent Court of Appeals decision raises concerns about an employer’s liability for injuries incurred by its employees during such recreational activities.  In Calumet School District #132 v.  IWCC, a middle school teacher was injured while participating in a student/teacher basketball game.  The Arbitrator found that the employee was not engaged in a voluntary recreation program and awarded benefits to the injured employee.

Although the Commission affirmed the arbitration decision, the Circuit Court reversed.  In doing so, the Circuit Court concluded that the employee’s participation in the basketball game constituted precisely the type of voluntary recreation activity contemplated in the exclusionary provisions of Section 11.

Thereafter, the Court of Appeals reinstated the Commission decision.  It appears that the court placed significant weight on the employee’s subjective beliefs about how his refusal to participate in the basketball game would impact his employment.  At trial, the employee testified that he only agreed to play because he felt pressured to do so after receiving repeated requests from his principal.  Also, the employee believed that if he declined to participate, it might reflect poorly in his impending performance review.

It should be noted that Section 11 of the Act states that the exclusion does not apply if the employee is “ordered or assigned” to participate.  In this case, aside from the employee’s subjective beliefs, there was no evidence that he was ordered or assigned to participate.  In fact, the employee testified that he was not ordered to participate.  Likewise, the employer presented testimony that participation was strictly voluntary and that teachers were neither punished nor incentivized for their participation.  While the trial testimony suggested that the employee was not ordered to play, the Court of Appeals did not see it this way.  Instead, the court acknowledged that this may have been a “recreational” activity, but the employee’s participation was not voluntary.

Based on this ruling, it appears that the Court of Appeals has taken a narrow view of what constitutes a “voluntary recreation program.”  Of specific concern is that the court relied heavily on the employee’s subjective beliefs and speculation about how his participation might impact his continued employment.  The unfortunate implication derived from this decision and rationale is that employers may need to proceed with caution when asking or encouraging employees to attend and participate in recreational programs or activities such as those described in the Act.  Otherwise, their employees might think, feel or believe (or testify) that their participation is more mandatory than voluntary.

Thanks to attorney Dane Kurth for the update on this issue.  Dane can be reached at the Champaign office of I&F.

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I&F Illinois Legislative Update

In addition to our regular duties defending employers and insurers across the Midwest, I&F maintains a dedicated Legislative Watch Group that stays up to date on all relevant legislative and administrative matters in the jurisdictions in which we practice.

Although we are still waiting for a state budget(!), Illinois legislators are managing to stay busy and pass a multitude of bills, some of which could affect our readers. On January 1, 2017, 192 new laws went into effect. Here is a brief rundown of some of the recent legislation related to Employers, Insurance and general business matters:

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Illinois State Capitol

HB 6162 creates the Employee Sick Leave Act allowing employees to use personal sick leave benefits for absences due to an illness, injury, or medical appointment of an employee’s direct family members.

HB 3554 directs the Department of Labor (DOL) to conduct a good faith search to find aggrieved employees harmed by unpaid wages so they may recover what they are owed. If the DOL cannot locate the aggrieved employee, then the Department can deposit the amount recovered into a specified DOL fund.

SB 3163 creates the Illinois Freedom to Work Act and provides that no employer shall enter into a covenant not to compete with any low-wage employee defined as a wage earner making the greater of the applicable minimum wage or $13 per hour.

SB 2813 amends the Coal Mining Act by modifying mine safety standards in Illinois to be more in line those of our surrounding states, in an effort to make Illinois more competitive with surrounding states.

HB 4633 requires all authorized insurers in Illinois to locate and pay beneficiaries’ proceeds under unclaimed life insurance policies, annuity contracts, and retained asset accounts issued in the State or remit such proceeds to the Treasurer’s Unclaimed Property Division.

It is also important to note that the Illinois Workers’ Compensation Commission recently adopted amendments to and new parts for its administrative rules. While too numerous to list here, the amended rules allow the IWCC to better serve its purpose in a more efficient, effective, fair and neutral manner. The administrative rules are the framework in which the Commission operates on a daily basis.

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

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Temporary Transitional Employment in Illinois

Transitional Temporary Employment plans or programs (TTE) are a tool used to address return to work issues. In these programs a third party vendor is typically used to locate temporary employment for the petitioner when their work restrictions cannot be accommodated by their employers. These programs come into play during two pivotal points in the handling of a case: (1) when the employee is first released to return to work with some restrictions but is still actively receiving treatment, and, (2) upon completing treatment, when the employee is released to return to work with permanent restrictions. In both instances, the employer cannot accommodate the employee’s restrictions.

There are two discrete separate issues here: the use of TTE before the petitioner is at MMI and still treating, and the use of a TTE program after the petitioner has reached MMI but given permanent restrictions.

It must be noted that the Illinois Workers’ Compensation Act does not explicitly authorize TTE. The petitioner is not required to accept a TTE position, nor can TTD benefits be reduced or terminated upon the petitioner declining a TTE position. The case law for those who are temporarily disabled is clear.  The petitioner is entitled to receive TTD where he is still receiving medical care, not working due to restrictions, and has not reached MMI.

Conversely, the Act also does not expressly forbid the use of TTE programs. TTE positions could potentially be used as part of a legitimate vocational rehabilitation program for those claimants that are placed on permanent work restrictions, with the key phrase being “legitimate vocational rehabilitation program.” Terminating maintenance benefits based upon the refusal of TTE position alone could lead to the imposition of penalties and attorneys’ fees.

The use of TTE programs is fairly new and developing part of the Illinois Workers’ Compensation law. The Act neither authorizes nor bar the use of TTE programs. However, the cases that have addressed it make one thing certain. Arbitrators have not treated TTE programs too kindly thus far. Perhaps, it is just a case of bad facts making bad law but the Commission has been clear that TTE is not part of the Act and the petitioner’s non-compliance with TTE cannot be used to terminate TTD benefits in the case of a petitioner who has not reached MMI. See Richard Lee, Petitioner, v. Fluid Management, Respondent,. 11 WC 48656 and 11 WC 48657.

With that said, it is possible to imagine a scenario where the TTE program is component of a comprehensive vocational rehabilitation program for those that have reached MMI with permanent restrictions as it provides the petitioner with transferable market skills, real job training, or could lead to a bona fide job offer. It is then no different than a vocational rehabilitation program in the sense that TTE can be another tool in limiting exposure. However, the devil is in the details. The Commission will not allow TTE programs to defeat permanent total disability exposure if it appears that the job offer is a sham. The Commission has found issue with TTE where the TTE program used sham companies (See Dan Perkins v. Turner Industries Group, 15 IWCC 0468) or the actions of the Respondent were so egregious, unreasonable, and vexatious, that the use of TTE program was of little consequence. See Eric Alvarez, Petitioner, v. Foodliner, Inc., Respondent, 15 IWCC 443.

  • Bottom Line:

The Commission has made it clear that TTE programs can be used prudently as a component of a legitimate vocational rehabilitation program in an effort to help a claimant return to work.

Thanks to attorney Frank Johnston for the summary of the current status of this developing issue.  Frank can be reached at the Champaign office of I&F.

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I&F Presents to Hotel Human Resources Association of Chicago

Inman & Fitzgibbons, Ltd. attorneys Steve Murdock and Allison Mecher recently presented to the Hotel Human Resources Association of Chicago on two topics related to Illinois Workers’ Compensation Law. They first presented on the topic of “Accident Investigation,” covering the basics of Illinois Workers’ Compensation Law, discussing best practices for accident investigation, and providing useful tips for the audience members to put into practice when conducting an accident investigation. The second topic was Workers’ Compensation Fraud, which covered the Illinois laws regarding fraud, what employers need to know, and what employers can do if fraud is suspected.

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If these presentations or any other topic in WC interests you, please contact us to discuss how we can meet your association or company’s needs.

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