I&F Prevails as IL WC Arbitrator Finds that Routine Job Duties are Not Necessarily “Repetitive”

In a recent case before an arbitrator at the Illinois Workers’ Compensation Commission, Partner Steve Murdock prevailed in defense of an alleged claim for repetitive trauma, both on issues of accident and medical causal connection.  Claimant alleged that as a machine operator for more than two decades on a packaging line she frequently used her hands and wrists to handle packaging stock and packaging rejects daily.  Over time, she claimed to have developed symptoms of numbness and tingling in both hands and wrists, which was subsequently diagnosed as bilateral carpal tunnel syndrome.  Claimant’s treating physician performed bilateral carpal tunnel releases and released the claimant to return to work full-duty following same.

The employer’s independent medical examiner, noting that the claimant had underlying risk factors for the development of idiopathic carpal tunnel syndrome, reviewed the essential job functions analysis noting that the job duties were not those that are medically associated with the development of carpal tunnel syndrome and show a variety of tasks performed throughout the day breaking up any alleged repetition.  The treating surgeon provided a report with an equivocal statement on causation that the job duties “likely” contributed to her underlying idiopathic condition.  During the claimant’s testimony, she admitted that approximately half her day is simply spent watching the machine operate to see that it operates smoothly.

The arbitrator found that the job tasks and the timing in which they were performed varied enough in nature that there was no evidence of exposure to repetitive trauma in ruling that the claimant was not involved in an accident arising out of and in the course of her employment.  The arbitrator also found the causation opinion of the employer’s IME to be more convincing than that of the employee’s treating physician on that issue in finding no causal connection existed between the work duties and the bilateral CTS.

Congratulations to Partner G. Steven Murdock  and to our client on this victory, which was accomplished through diligent teamwork on the part of the employer, its third-party claims administrator and our office. Steve works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and chairs the Firm’s Legislative Watch Committee.


Wisconsin Court of Appeals hold Expert Medical Opinion from Unlicensed Doctor Admissible at Trial

Under Wisconsin law, a WKC-16-B certified practitioner’s report is admissible at trial as evidence of the diagnosis, necessity of the treatment, and cause and extent of the disability so long as the practitioner consents to and is available for cross examination . On November 8, 2017, the Court of Appeals (First District)  held that a WKC-16-B is admissible if it is certified by a doctor licensed in the State of Wisconsin, regardless of the doctor’s status at the time of the hearing. American Family Mutual Insurance Company and Preferred Metal Products v. Robert Haas and LIRC, ( Appeal No. 2017AP59).

Robert Haas was injured at work on March 1, 2001. This accident was accepted as compensable, as was an initial surgery. On January 26, 2015, the ALJ held a hearing regarding the nature and extent of Haas’ injury. In dispute was liability for three e subsequent surgeries that were performed by Dr. Cully White in 2011. Dr. White completed a WKC-16-B on both May 4, 2011, and October 3, 2013. In each WKC-16-B, Dr. White related the need for  the three disputed surgeries to the work injury.  At trial, the employer objected to the admission of Dr. White’s WKC-16-B forms, arguing that they were inadmissible because Dr. White was no longer licensed to practice medicine (Dr. White voluntary surrendered his license to practice medicine in December 2013).   The administrative law judge overruled the objection and allowed White’s 16-B reports into evidence and found White’s opinion more credible than the expert’s written report filed by the employer. The employer  appealed. LIRC upheld the decision of the administrative law judge, and the circuit court upheld the decision of LIRC.

The Court of Appeals affirmed the judgement of the LIRC, noting that Wisconsin law requires only that the doctor certifying the WKC-16-B consents to being subjected to cross-examination. It noted that the employer did not subpoena nor seek to cross-examine White, and  that there was no dispute that at the time White filed the 16-B reports, he was both licensed and practicing medicine. The Court found that the relevant time frame for matters contained in the 16-B reports is when  they were written, and that there was no evidence in the records that Dr. White did not consent to being cross examined or that he was unavailable at trial.  The Court did acknowledge that the lack of licensure and cause for same might be relevant to an opinion set forth in a WKC-16-B, but that this factgoes to weight, not admissibility.

In view of this decision, counsel for respondent would be well advised to assess the credentials and licensure status of a practitioner certifying a WKC-16-B well in advance of trial. For while lack of a license at the time of trial will not impact the admissibility of the WKC-16-B, the certifying doctor should be subpoenaed  so that he/she can be cross examined as to the cause for lack of a license in order to impact the weight of any opinion rendered.

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


Illinois Appellate Court Revisits the issues of Traveling Employees and Increased Risk

A recent Illinois appellate decision, Kenaga v. Village of Hoffman Estates, 2017 IL App (1st) 161859WC-U, is interesting as it not only touches on a hot-button topic in the Workers’ Compensation field, but also for the analysis of the various courts involved.

The claimant was a police officer for 24 years. As part of his duties, he was required to testify at the courthouse on his day off. He was compensated for his time in court, but not for the time spent traveling to and from the courthouse. He used his personal vehicle to get to the courthouse and parked in the municipal garage that was reserved for law enforcement officers. After appearing in court, the claimant descended a flight of stairs in the parking garage and missed a step. As a result, he grabbed the hand rail and felt an immediate pain in his right arm. He found to have suffered a complete tear of the distal bicep tendon.

An issue in this particular case was whether the claimant was a traveling employee. In Illinois, an employee is considered a traveling employee if his job duties require travel away from the employer’s premises. According to the decision in *this* case, if the petitioner is considered a traveling employee, then any act the employee is directed to perform by the employer, any action the employee has a common-law duty to perform, and any act that the employee can reasonably be expected to perform are all compensable. The Arbitrator concluded that the claimant fell into this classification, both in terms of his ordinary duties and the specific tasks that he was performing for the respondent at the time of the accident. The case was appealed to the Commission, who reversed, finding that the fall down the stairs was the result of a neutral risk and there was no evidence of a defect. The Commission did not address whether the claimant was a traveling employee. The Circuit Court affirmed the decision of the Commission, applying a similar analysis.

The Appellate Court reversed the Commission and Circuit Court decisions. It noted that the undisputed facts established that the claimant qualified as a traveling employee at the time of the injury. It first noted the general rule that an employee traveling to or from work is generally not within the scope of employment. However, it stated that an exception exists where an employer causes (or requires) its employee to travel away from a regular work place. The duties of a police officer, particularly within these facts, fall under this exception. As such, it found that his conduct was both reasonable and foreseeable to the respondent, stating that “we have little trouble concluding that traversing a flight of stairs between the place the claimant was performing his work-related duties and the place designated for him to park while performing those duties was both reasonable and foreseeable. The case was remanded to the Commission for further proceedings to determine what benefits the claimant was entitled.

This case is interesting for a couple of reasons. Initially, there were multiple layers that reviewed these facts (Arbitrator, 3 Commissioners, Circuit Court Judge, and 5 Appellate Court Justices) Of those that reviewed this case, 4 (3 members of the Commission and the Circuit Court Judge) did not mention nor analyze this issue under the traveling employee doctrine, while 6 opined that this claim clearly involved a traveling employee. The take away is that the traveling employee doctrine is a complex issue and even the experts are in disagreement as to whether to apply this standard, let alone the actual analysis of the standard.

As to the actual analysis, in this case, the Appellate Court explicitly stated that a risk analysis is not necessary under the traveling employee doctrine, a position that is squarely at odds with prior Illinois Appellate Court decisions on similar issues, namely the recent case of Nee v. Illinois Workers’ Compensation Comm’n, 2015 IL App (1st) 132609WC, where the necessity for a risk analysis was discussed at length.  As is evident here, this issue is nowhere near resolved, though it should be pointed out that Nee was a published decision, whereas the instant case was not and, thus, cannot be cited as precedent.

Stay with us as we continue to monitor the developments of the traveling employee doctrine on this blog.

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

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I&F Presents at 10th Annual Illinois Chamber of Commerce Workers’ Compensation and Safety Conference

Inman & Fitzgibbons attorneys Terry Donohue and Allison Mecher recently presented on the topic of Lost Time Benefits at the 10th Annual Illinois Chamber of Commerce Workers’ Compensation and Safety Conference. In this presentation, they discussed the basics of temporary total and temporary partial disability benefits, the current case law governing TTD/TPD, and common situations that arise involving payment of TTD/TPD and how to handle those situations from a defense standpoint.

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, Michigan, and Missouri.


What’s Happening with Illinois’ Medical Marijuana Experiment?

In late 2014 and early 2015 we first began reporting on Illinois’ Compassionate Use of Medical Cannabis Pilot Program Act. Now that this Act has been in effect since January 1, 2015 and with the national uptick on the legalization of cannabis, both medicinally and recreationally, we thought it time for an update on where Illinois stands and where it is going.

For some background, you may recall that this legislation was passed as a “pilot” program, which means it has an expiration date.  Initially set to expire on January 1, 2018, this was extended to July 1, 2020 simply because the program really did not get up and running until the early part of 2016 because of all of the regulations that had to be put in place and then the licenses that had to be approved for the growers, transporters and dispensaries. The Act allows for persons called “qualified registered patients” (QRP’s) with one or more of several qualifying conditions (which you can find at http://www.dph.illinois.gov/) to be authorized for the use of limited quantities of medicinal marijuana, which in turn can only be obtained from a limited number of dispensaries and only by prescription from a physician specifically licensed by the State to prescribe cannabis.  It is a heavily regulated system with a limited number of regional growers, distributors and dispensaries throughout the State.  Meanwhile, cannabis remains a Schedule 1 controlled substance under Federal law.  This means that all cannabis must be purchased and consumed within the State of Illinois. Under the Act, Employees who become qualified registered patients are not required to inform Employers of this, but if a QRP Employee tests positive for THC (the primary ingredient in cannabis) in a post-accident or random drug test for a “zero tolerance” Employer, the Employer’s drug policy is not restricted from terminating that employee simply because she is a QRP.  The Employer, however, if it learns of the QRP status of the Employee is not allowed to discriminate against that employee simply because of her QRP status. There are many more details and exceptions, but that is the Act in a nutshell.

So what’s new?  We predicted back in 2015 that within the next five years, we should not be surprised to see Illinois follow the path of states such as Colorado and Washington in legalizing the use of cannabis for recreation.  We are two plus years down the road, and the discussions have already begun fueled by an increasing number of other states (California, Nevada, Maine, Massachusetts, Oregon and Alaska) having legalized recreational use of cannabis and at least six more states likely to do so within the next year. The tax revenue reported in Washington and Colorado is enticing for any state in a debt crisis like it’s never seen before. While the federal government within the past couple of months refused to declassify cannabis as a Schedule 1 Controlled Substance (which makes the use, sale and transport of cannabis anywhere within the U.S. illegal), Washington D.C. also joined the ranks of the eight states that have now legalized the recreational use of cannabis.  Ironic isn’t it that those that have decided not to declassify cannabis can actually light up a joint at their homes in our country’s capitol?

The U.S. Attorney General’s Office has issued a memorandum that allows the Federal Controlled Substance Act and the states’ cannabis acts to co-exist stating that it will not seek to prosecute those persons within the states where the use of cannabis has been legalized, either medicinally or recreationally.  This does not mean it allows those residents to transport the goods across state lines or use cannabis in states where it is not legalized. That is still strictly forbidden.  Bottom line, stay within the state where it is legalized and follow the rules for that state, and we (the feds) will not bother you.

Illinois has introduced legislation (HB 2353 and SB 316), but not spoken seriously at this point, about legalizing recreational cannabis. The legislation did receive committee hearings, but was rather summarily tabled this year.  That said, the light is clearly turned on and there is discussion with some saying it could very well happen in 2018.

Bur for now, let’s start with the decriminalization of marijuana in Illinois in July 2016.  Although not mainstream news, in July 2016 Governor Rauner signed into law a bill that reduced punishment for individuals that possess up to 10 grams of marijuana to fines of $100 to $200.  Local governments can add other penalties as they choose, but state laws which would have previously treated such possession as a class B misdemeanor with up to six months in jail and fines of up to $1,500 have been removed.  Additionally, the state will expunge records of these fines every six months, automatically.  And, in addition to the possession, the law changed the DWI requirement from the presence of “any amount” of THC in driver thought to be intoxicated to require the presence of 5 nanograms of THC in the blood for a DWI conviction. Mind you, the possession of cannabis for anyone aside from the QRP’s and their registered caregivers in Illinois is still currently illegal, but this reduction in the illegality of it is a second step.

But what about the medical program?  Where is that at, and how is it working?  You can follow this program, including current updates and whether any new conditions are added to the list (PTSD was just recently approved to be on this list) at the website for Illinois Compassionate Use of Medical Cannabis Pilot Program Act found here: https://www.illinois.gov/gov/mcpp/Pages/default.aspx.  You will find the following reported as of October 4, 2017:  Retail sales in August 2017 alone totaled $7,765,672.87 (yes, that is millions of dollars) serving 15,650 patients who purchased a total of 390,553 grams of dry cannabis.  There are currently 53 licensed dispensaries in Illinois serving those 15,650 current QRP’s, and total retail sales from November 2015 through September 30, 2017 from those dispensaries is $96,348,861.29.  30,000 applications for QRP status have been filed since November 2015.

Where are we going?  Illinois currently collects 7% tax revenue on the wholesale of medical cannabis, which according to the link above has been $55,825,656.71 since November 2015.  That is a total tax revenue in two years of $3,907,795.97 from a total of 15,650 people.  The population of Illinois as of July 2016 was 12.8 million, approximately 23% of which are under the age of 18. So if we conservatively estimate 65% of the population is over 21 (the age used as the legal age for use of recreational cannabis) and then assume 30% of that population decides to use recreational cannabis regularly, we could see 15,650 purchasers increase to 2.5 million purchasers.  Perhaps more than would actually use cannabis recreationally, but you get the idea.  A State in a budget crisis looking for more revenue . . .   We will hold to our prediction that by 2020, Illinois may very well join the ranks of other states legalizing the use of recreational cannabis.

Finally, we are seeing courts in other states find in favor of injured employees that medicinal marijuana is a “reasonable and necessary” medication for treatment of work injuries and ruling that the insurance company, third-party claims administrator or employer must reimburse the employee for money spent to pay for this.  Because, again, the federal government does not condone the use of cannabis, federally regulated banks and insurance companies are having a hard time with this because it essentially means that these federal institutions could be considered laundering money for an illegal drug trade.  Hmm. Regardless, the state courts in Maine, Connecticut and New Jersey have recently ruled that under their state laws the employer is liable for the payment of the costs for legally prescribed medicinal cannabis, and we do not see that this will be viewed any differently in any of the other states.  Now how those payors work out the payment for this is another matter, but for the time being it will most likely be a reimbursement to the employee, who in most all cases is paying cash at the dispensaries for those medications.

This is still developing law across the country, and we encourage an open dialogue and further investigation into the merits, or lack thereof, of medicinal cannabis as well as a discussion into whether it should be declassified by the federal government as a Category 1 Controlled Substance.  We will continue to follow these developments and keep our readers informed of any cases in Illinois that address medicinal cannabis.

Thanks to Partner G. Steven Murdock for the summary of these new developments.  Steve works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and chairs the Firm’s Legislative Watch Committee. .


Illinois Gov. Rauner’s Veto of “WC Reform Bills” Sustained by Override Vote

illinoishousechamberDuring the veto session yesterday in Springfield, the Governor’s veto of HB 2622 was sustained by a vote of 65-50-1. This bill would have establish a statewide workers compensation insurance company.  Governor Rauner also vetoed a Democratic  sponsored “workers’ compensation reform bill,” HB 2525.  This has not yet been called for a vote to override the veto, but we expect this to be called during the current session.  We will continue to monitor these activities, and keep our readers posted.

Illinois Update: *Petitioners* also Required to Provide Treating Records More Than 48 Hours Prior to Hearing

Most Workers’ Compensation practitioners and claims handlers from Illinois are aware of the fact that the Illinois Workers’ Compensation Act (IWCA) requires the Respondent to provide all of the reports from an IME expert more than 48 hours before the deposition of that IME expert or a trial, but it is a lesser known fact that Petitioners and their attorneys also have a duty to provide all of the treating records more than 48 before a trial.

The last paragraph of Section 12 of the IWCA states that, “in all cases where the examination is made by a surgeon engaged by the injured employee…it shall be the duty of the surgeon making the examination at the instance of the employee, to deliver to the employer, or his representative, a statement in writing of the condition and extent of the injury…said copy to be furnished the employer, or his representative, as soon as practicable but not more than 48 hours before the time the case is set for hearing… If such surgeon refuses to furnish the employer with such statement to the same extent as that furnished the employee, said surgeon shall not be permitted to testify at the hearing next following said examination.”

The language in section 12 states that the surgeon must themselves be providing the records to the Respondent, however, in practice it is the Petitioner that would realistically be supplying the records.  In a similar fashion, it is usually the Respondent that supplies the reports from an IME expert more than 48 hours prior to the deposition.

It is also important to note that while the language used in that paragraph of section 12 states that the Petitioner’s treating surgeon shall not be permitted to testify at the next hearing after an examination, the Commission has interpreted this to also mean that such a surgeon’s treating records would also not be admissible in these circumstances.

In Connie Love, Petitioner v. Rgis Inventory, Respondent, 15 IL. W.C. 013194 (Ill. Indus. Com’n Apr. 8, 2016), that is exactly what the Commission ruled.  The Petitioner attempted to admit records into evidence that were not disclosed to the Respondent more than 48 hours prior to trial.  Respondent objected to same and that Arbitrator allowed the records into evidence, but was then overruled by the Commission on this issue.  The Commission cited Section 12 and referred to the Respondent’s citations of Ghere v. Indus. Comm’n, 278 Ill. App. 3d 840, 663 N.E.2d 1046 (4th Dist. 1996) and Mulligan v. Illinois Workers’ Comp. Comm’n, 408 Ill. App. 3d 205, 946 N.E.2d 421 (1st Dist. 2011).  Factually, the Commission also noted that it did not matter that Respondent was “fully aware” of who the Petitioner’s treating physicians were and noted that the “Petitioner was seen on the eve of the commencement of the arbitration hearing…”

Interpreting Section 12 to require that Petitioners must provide treating records prior to a deposition or hearing is also supported by the famous Appellate Court case, Ghere v. Indus. Comm’n, 278 Ill. App. 3d 840, 845, 663 N.E.2d 1046, 1050 (4th Dist. 1996), in which the Court stated, “We believe the purpose of section 12 would be frustrated if we read section 12 to only apply to examining physicians. It seems to us from the language of section 12 that the purpose of having the employee’s physician send a copy of his records to the employer no later than 48 hours prior to the arbitration hearing is to prevent the employee from springing surprise medical testimony on the employer. Cf., Cook v. Optimum/Ideal Managers Inc., 130 Ill.App.3d 180, 188, 84 Ill.Dec. 933, 939, 473 N.E.2d 334, 340 (1984). With this purpose in mind, we see no justification in limiting section 12 of the Act to examining doctors and we now so hold.”

It is crucial to protect the rights of Respondents in any trial setting, and keep in mind that Petitioners are not allowed to surprise the Respondent with records that are not provided until the time of hearing.  For more practice tips and pointers, stay tuned to the I&F blog!

Thanks to attorney Michael Bantz for the summary of this very important element of the practice.  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 Indiana Slip & Fall Claim Expands the Definition of “Neutral Risk”

In a recent Indiana Court of Appeals case, McBride v. Midwest Estate Buyers, LLC, the Court delved into whether an employee’s slip and fall resulted in an injury that “arose out of” her employment.  In this case, the claimant was employed at a jewelry store and liked to wear nice, stylish clothing to work.  On the date of the incident, the claimant was wearing boots with zippers on the inside of the leg.  As she stood to greet a customer, the zippers hooked together causing her to fall and break her leg.

Compensable WC claim?

In Indiana, an injury arises out of one’s employment if a reasonably prudent person would consider the injury to have been born out of a risk incidental to the employment.  Indiana courts place risks incidental to employment into three categories: (1) employment risks, (2) personal risks, and, (3) risks neither distinctly employment nor distinctly personal in nature (i.e., neutral risks).

The compensability determination is different depending on the category of the risk.  Naturally, injuries resulting from employment risks are compensable.  On the other hand, injuries resulting from risks distinctly personal in nature are not compensable.  What about risks that lie somewhere in between – risks containing both elements of employment and personal risks?  These risks falling within the third category, neutral risks, are compensable in Indiana.

In the McBride case, the employer denied the claim because the claimant’s fall and injuries resulted from a personal risk, which is not compensable.  At trial, the Single Member and the Board agreed with the employer.  The Board relied on the fact that the claimant fell because of her boots.  The same boots that she selected and purchased on her own, that she chose to wear on the date of the incident, and that she was not required to wear.  The Court of Appeals reversed the Board’s decision.

Surprisingly, the Court of Appeals acknowledged that the claimant’s injuries were the result of her personal choice of attire.  Based on this acknowledgement, one would have expected the Court of Appeals to categorize this as a personal risk.  The Court then took its analysis a step further.  The Court of Appeals also determined that the claimant dressed up to look stylish at work when she interacted with customers.  Accordingly, the Court concluded that the claimant’s injuries stemmed from a risk that was “neither distinctly employment related nor distinctly personal in character,” a neutral risk.  Therefore, the claimant’s injuries were deemed compensable.

It should be noted that the McBride case does not change the standard by which categories of risks are analyzed in Indiana.  While the risk analysis remains the same, this decision seems to broaden the definition of what constitutes a neutral risk.  In this case, the Court of Appeals seemed to go to great lengths to find that there was some element of risk beyond the obvious personal risk.  The unfortunate result for employers is that more claims involving slip and fall injuries may be deemed compensable if the Board follows the precedent established by the Court of Appeals in this case.

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

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Understanding Medicare’s Secondary Payer Private Cause of Action against Primary Payers

As a “secondary payer,” Medicare has an interest in any workers’ compensation claims where it may have paid for medical care that might be related to the workers’ compensation injury. Medicare calls payments it makes to a Medicare beneficiary “conditional payments.” The condition is that Medicare will seek reimbursement for the payments made if it turns out that a “primary payer,” such as a workers’ compensation insurer, should have paid for the treatment, pursuant to 42 USC 1395y(b)(2)(B).

The Third Circuit and Eleventh Circuit Courts have established that Medicare has a right to recover double damages through a Medicare Secondary Payer private cause of action against primary payers for failure to timely reimburse the conditional payments, pursuant to 42 USC 1395y(b)(3)(A). This cause of action is ripe and actionable 60 days after the settlement check is issued.

Thus, it is imperative that whenever a petitioner in a workers’ compensation claim is Medicare-eligible or likely Medicare-eligible, the insurer or TPA complete a “Conditional Payments Check” as soon as practicable in order to reveal any payments made by Medicare that might be related to the claim. If the search reveals that such payments were made, the parties will need to account for any reimbursement to Medicare for the bills it paid prior to settlement of the claim. If this process is not completed and reimbursement is not made within 60 days of the issuance of the settlement check, there is a risk that Medicare will seek to recover double damages through the Medicare Secondary Payer Act private cause of action.

We will continue to monitor the development of case law in this area as the courts rule on the boundaries of this cause of action, including what entities or individuals this cause of action can be brought against.

Thanks to attorney Allison Mecher for the excellent summary of this important issue.  Allison works out of the Chicago offices of I&F and joined the firm after working at the Social Security Administration, Office of Disability Adjudication and Review,

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Wisconsin Supreme Court Ruling a Win for Employers in Cases with Documented Pre-Existing Degenerative Conditions prior to Surgery

The decision of the Wisconsin Supreme Court in Flug v. LIRC, 2017 WI 72 (decided on June 30, 2017), is a clear win for the employer side in cases involving pre-existing degenerative conditions that lead to surgery.

In Flug, a retail store supervisor was changing merchandise prices with the use of a hand-held scanner when she experienced pain in her neck radiating down her right arm. The respondent accepted compensability at the start and paid for medical expenses and TTD.

The petitioner ultimately underwent a discectomy in the cervical spine. Her post-surgical disability rating was rated at 22% body as a whole.

After surgery, the respondent obtained an IME. The IME physician opined that the work accident caused only a temporary neck strain, and not the need for surgery and its resulting permanent disability. Diagnostic testing prior to surgery had revealed pre-existing degenerative arthritis in the cervical spine.

The ALJ, LIRC, and Circuit Court ruled in favor of the employer. The Wisconsin Court of Appeals remanded the case to the LIRC to assess whether the petitioner undertook surgery in good faith.

The Wisconsin Supreme Court held that “[b]ecause Ms. Flug’s surgery treated her pre-existing condition, not her compensable injury, her claim must be disallowed.”  The majority further held that “. . . an employee is not eligible for benefits under Wis. Stat. § 102.42(1m) if the disability-causing treatment was directed at treating something other than the employee’s compensable injury.”

This case highlights the importance for employers to seek post-surgical IMEs in cases involving documented pre-existing arthritis prior to surgery. 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.  If you have any questions about workers’ compensation claims in Wisconsin , please feel free to reach out to Scott.


2017 Iowa WC Changes Now in Play!

We are just now beginning to see  newer claims with  injury dates that  make them subject to the recent legislative changes made to the Iowa Workers Compensation Act in 2017. For any  new claims, it is  crucial to be aware of these changes, and how they might impact the claim. The following significant changes in Iowa WC law  went into effect on July 1, 2017:


  • A shoulder injury is no longer  a BAW injury, and the claimant no longer receives industrial disability benefits.  Once functional impairment through a rating has been determined, a worker is entitled to receive that percent of impairment applied to a maximum of 400 weeks.  
  • The Act now provides for retraining at community colleges for employees who cannot return to employment due to shoulder injuries. The change provides for an evaluation by the state workforce department to determine if the employee would benefit from vocational training.  If so, and if the employee chooses to enroll in the plan, the employer would have to pay for tuition and fees up to $15,000.  



  • There is now a presumption that if an employee has a positive drug or alcohol test  at the time of injury, that  intoxication was a substantial factor in causing the injury.
  • The employee now has the burden of  proof to overcome the presumption by showing  it did not rise to level of intoxication, or that intoxication was not the cause of the injury.



  • Rather than the prior 10% annual interest on unpaid benefits,   the interest rate will now be based on the annual rate for one year treasury constant maturity notes plus 2%, resulting in significantly lower interest. Presently that rate would be roughly a full 7% lower than the prior 10%.


  • Permanent partial disability benefits do not have to be paid until an injured worker has reached maximum medical improvement and you have an impairment rating. Prior to this  PPD was to be paid at MMI or when the employee returned to work.  


  • An injured worker can only receive either permanent partial disability benefits or permanent total disability benefits, but not both.
  • An injured worker cannot receive permanent total disability and unemployment compensation at the same time.
  • The worker forfeits their entitlement to permanent total disability for any week in which they receive a payment equal to or greater than 50% of the statewide average weekly wage from either: gross earnings from any employer; or payment for current services from any source.
  • Weekly compensation of permanent total disability benefits is payable until the employee is no longer permanently and totally disabled. The previous language provided that compensation is payable during the period of the employee’s disability.



  • For the  notice and limitations periods to begin to run, it is no longer required  that the worker  actually knows that the condition or injury is serious and related to work,  but rather  that they should have known.  This will significantly impact cumulative trauma claims.


  • If a worker’s job requires them to travel more than 50% of the time, then a light duty offer of work at the employer’s principal place of business, or an established place of operation where the employee has previously worked, is presumed to be geographically suitable.
  • Light duty work offered by the employer does not have to be work with that employer, and can be light duty  through a vendor that provides such services and places employees in temporary positions.
  • Offers of light duty work must be communicated in writing, as does a refusal by the employee. 


  • An employee forfeits their right to receive weekly benefits if they refuse to attend a medical exam set up by the employer. The employee will no longer receive retroactive benefits once they  ultimately do  attend the IME.
  • If the claim goes to trial and the deputy determines the claim is not compensable, the employee cannot recover the cost of the IME.


  • The employee’s loss of earning capacity will now take into account how long the claimant was expected to keep working at the time of the injury. This will likely decrease benefits available to older workers.  
  • If an employee returns to work or is offered work at the same or higher earnings, then the employee is only entitled to be compensated based upon the impairment rating. However, if that employee is later terminated by the employer, they can bring a re-opening procedure to have the injury reviewed for compensation based on the loss of earning capacity.


  • When an employee has successive injuries with the same employer, the employer is only responsible for compensating the employee for the disability resulting from the current injury.
  • Employer is only liable for the portion of an employee’s disability related directly to an injury that occurred at their company.


  • A worker can now only receive a commutation of an award as a lump sum if the employer and insurance company both agree. Previously a judge could award  commutation over the objection of the employer if it was  felt to be in  the best interests of the employee.


  • An attorney cannot recover fees for compensation which is voluntarily paid or agreed to be paid to an employee for temporary or permanent disability benefits.
  • An attorney must demonstrate that the benefits over which they are seeking a fee  would not have been paid to the employee, but for the actions of the attorney.


  • The extent of disability for all future scheduled injuries shall be based solely on impairment ratings according to the AMA Guides, making it clear that  consideration of additional testimony and evidence,  in an effort to go beyond the ratings, is barred.


  • The  changes repeal Iowa jurisdiction for the situation where an employer has a place of business in this state, and the worker lives in Iowa, but does not work out of the employer’s Iowa place of business.


  • If an employer makes an overpayment of indemnity benefits,  the employer will now get a credit for that overpayment  to apply towards liability for TTD, TPD, or PPD for either  the current injury, or a future injury with the same employer.


These changes are sweeping  and will likely  in some way impact  the majority of newer  claims. They will no doubt be the source of  confusion and uncertainty in the near future as  both employers and employees attempt to navigate the new  workers compensation landscape in Iowa. Please feel free to  contact us  regarding any questions you may have regarding these very significant changes to the law and how they might apply to your claim.

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.


New Definition for “MMI,”Rebuttable Presumption for Positive Drug Test, Changes to Death Benefit Beneficiaries, and Changes in Procedure for Compromise Settlements are Among Many Changes in Workers Comp Enacted in Missouri

We previously reported on June 5, 2017 that employers should expect to see further efforts to reform workers’ compensation laws in Missouri.  On August 28, 2017, Missouri will see a definition for “maximum medical improvement” (MMI) and new law for positive drug tests in workers’ compensation claims.  The State’s legislature recently passed a new law (originating as Senate Bill 66) that specifically states how MMI is to be determined by the administrative law judges at the Workers’ Compensation Division in Missouri and adds a defense for claims where employees test positive for illegal drugs.

As many of you know, “maximum medical improvement” is that crucial point in a workers’ compensation claim when an injured employee is deemed to have reached a plateau in the treatment of his/her work injury and the point when interim benefits generally cease and a determination of permanent partial disability can be made.  This is the point when we will typically obtain a rating from the treating physician and seek to bring the claim to closure.  As you would expect, this often comes down to “a battle of medical experts” as the employer secures an MMI opinion from a physician and the employee, seeking to obtain additional treatment if not simply to extend the period of temporary disability, obtains an opinion that he/she has not yet reached MMI.  The administrative law judge is then left to make a determination on which medical provider to believe.

Under the new law, the legislature has chosen to specifically define this elusive turning point in a claim as follows:  …”maximum medical improvement” shall mean the point at which the injured employee’s medical condition has stabilized and can no longer reasonably improve with additional medical care, as determined within a reasonable degree of medical certainty.  The Act will also now state that TTD shall be paid throughout the rehabilitation process until maximum medical improvement is reached or until the employee returns to work.  As you can see, however, this is simply a definition and does not conclusively state “as determined by the treating physician within a reasonable degree of medical certainty.”  This means that simply having this defined in the Act will not eliminate the age-old battle of the medical experts.  We do not anticipate this will impact much this factual dispute in future claims.

SB 66 also creates a rebuttable presumption defense to a workers’ compensation claim when an employee has a “positive test result for a nonprescribed controlled drug or … metabolite” so long as the following occurs:


  1. the test must be done within 24 hours of the accident;
  2. notice of the test result is given to the employee within 14 days of the insurer, TPA or employer receiving the test results;
  3. the employee is given the opportunity to have a second test performed on the initial sample; AND
  4. initial or any subsequent testing that forms the basis of the presumption was confirmed by mass spectrometry using generally accepted medical or forensic testing procedures.

When these things occur with a positive drug test, the employer shall have a defense in the form of “a rebuttable presumption, which may be rebutted by a preponderance of evidence, that the “tested nonprescribed controlled drug was in the employee’s system at the time of the accident or injury and that the injury was sustained in conjunction with the use of the tested nonprescribed controlled substance.”  In our opinion, this is a good start, but not a well-worded amendment to the Act.  The legislature failed to use the “prevailing factor” standard or even the word “caused” in setting out the correlation between the presence of the illegal substance and the work accident or injury, instead simply stating “the injury was sustained in conjunction with the use” of the substance.  This falls short of setting that the injury was caused by or the prevailing factor in the cause of the accident or injury.  While it does give us a start to a defense, we believe a causation opinion will still be needed tying the presence of the illegal substance to the work accident or injury, or this defense will be subject to a fairly easy rebuttal.

The amendment to the Act will also add a provision that states an employee who voluntarily resigns his/her position with the employer at a time he/she was under medically prescribed restrictions that the employer was able to accommodate, but for that resignation, then the employer is not liable for temporary total  and temporary partial disability benefits to that employee for that period during which the employee has those restrictions in place or any other periods of restrictions thereafter that the employer remained able to accommodate.

The bill makes several other changes to the Act having less impact on our defense handling of claims in Missouri, including a provision for allowing S corporation shareholders to exclude themselves from coverage, a provision allowing claimant’s 12 months to obtain a PPI rating in response to an employer-obtained rating, explicitly restricting employers from discriminating or discharging employees asserting rights under the Act, and gender-neutralization of the Act (i.e. adding “or her” and the like to the general terms of the Act).  While all of these changes are positive changes for employers, we believe the overall impact in costs and defense to claims will be minimal and hope to see further employer-friendly reform efforts in the future.

Thanks to Partner G. Steven Murdock for the summary of these new developments.  Steve works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and chairs the Firm’s Legislative Watch Committee. .


IL Gov. Rauner Vetoes HB 2525

On August 25, 2017, Governor Bruce Rauner vetoed in its entirety HB 2525, legislation that addresses the Illinois Workers’ Compensation System.


Photo courtesy of Chicago Tribune

We have previously discussed HB 2525 here, here and here. HB 2525 passed along party line vote in late May.

In his statement, Governor Rauner opined that this legislation did not represent real reform stating that it failed “to acknowledge the cost-drivers” that were putting the state at a competitive disadvantage for jobs or growth.

The General Assembly is currently in a Special Session to address school funding. If the General Assembly were to go into regular session, the 15 day veto clock begins. In that case, the Illinois constitution allows for 15 days for the General Assembly to override Governor Rauner’s veto.

We will continue to monitor the status of this bill.

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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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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