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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I&F Presents 2016 Illinois Workers’ Compensation Case Law Year in Review Webinar

On February 16, 2017, Jynnifer Bates and Mark Carter hosted a webinar entitled “2016 Illinois Workers’ Compensation Case Law Year in Review” through the Illinois Chamber of Commerce. From case law to legislation, as well as the overall direction of the practice, they reviewed the landscape of Illinois WC law.  The webinar included a discussion of procedural rulings involving credits for prior injuries.  They also evaluated decisions regarding independent contractors, impairment of earning capacity, the inclusion of overtime earnings in average weekly wage calculation. Last but not least, they addressed trends and court rulings in the hottest topic of all:  impairment ratings.  If this seminar or any other topic in WC interests you, please contact us to discuss how we can meet your business’s needs.

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Elimination of WC Review Board Sought by Governor Walker of Wisconsin

On February 8, 2017 Wisconsin Governor Scott Walker  submitted his 2017-2019 budget recommendations under Assembly Bill 64 and Senate Bill 30.  Therein, Governor Walker has proposed the elimination of the State’s Labor and Industry Review Commission (LIRC).

Under current law, administrative law judge workers’ compensation decisions can be appealed to the LIRC, which is a three-person review board whose members are appointed by the governor. The LIRC has the power to confirm, overturn, or remand the issues presented to it. Decisions of the LIRC can be appealed to the state’s circuit courts. The new law would provide for appeal and review of administrative law judge workers’ compensation rulings to the administrator of the Division of Hearings and Appeals (DHA), but does no go into further detail.  The overall goal of the  proposed legislation is to speed up the appellate process.

The Joint Finance Committee will hold public hearings on the proposal and ultimately prepare its own budget recommendation. Then both houses of the legislature will debate until there is a compromise version of the bill voted on by each house. The Governor gets the final review where he can make line-item vetos. The final review is to occur by July 1, 2017.

Please feel free contact us with any Wisconsin worker’s compensation questions. Thanks to Partner Scott McCain for bringing this news to our attention.  Scott works out of the Chicago and Milwaukee offices of Inman and Fitzgibbons.
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New Appointments to the Illinois Workers’ Compensation Commission

Governor Rauner has appointed Ms. Deborah Simpson and Ms. L. Elizabeth Coppoletti to the Illinois Workers’ Compensation Commission. Commissioner Simpson will be assuming the vacancy on Panel C but handling the case load formerly assigned to Commissioner White.  Commissioner Coppoletti will be assuming the vacancy on Panel B but handling the case load formerly assigned to Commissioner Basurto.

A CMS Policy for LMSA Reviews is Imminent

The Centers for Medicare & Medicaid Services (CMS) recently issued documentation signaling that Liability Medicare Set-Asides (LMSAs) and No-Fault Medicare Set-Asides (NFMSAs) will be notated fields in CMS’ Common Working File. Effective October 1, 2017, Medicare Administrative Contractors will begin denying payment for services associated with an open LMSA or NFMSA record. The CMS Manual Update can be found here.

This update follows closely to other recent indications in the past year from CMS that it was working toward creating a voluntary LMSA/NFMSA review process. On June 9, 2016, CMS issued an Alert that it was considering expanding its voluntary MSA review process to include the review of LMSAs and NFMSAs.

Please follow our blog for updates to this developing issue.

Update on Illinois Workers’ Compensation Reform

At Inman & Fitzgibbons, our Legislative Watch Group continues to monitor pending legislation in Springfield and, when the opportunity arises, we provide input through the Illinois Chamber’s Workers’ Compensation Committee on language contained within proposed legislation and input on what issues should or need not be addressed in the current efforts to continue reform of the Illinois Workers’ Compensation Act and the administrative process.  We most recently blogged about Senate Bill 12 (SB 0012), which is included in the “Grand Bargain” of twelve senate bills that must all pass or none shall pass.

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It may surprise many of you that there are actually 12 bills pending in the State House of Representatives and 14 bills (including SB 0012) pending in the State Senate that in one way or another, some to a greater degree than others, impact Illinois workers’ compensation.  All of these bills are currently assigned to committees or subcommittees, which in pending legislation terms means they are being discussed among a group of senators or representatives, with the discussion focused on the merits of the proposed legislation, the language in the bill, and the process for advancing or not advancing the legislation.  Many bills die in committee, but others may take new form and gain some support.  We should also note to you that several of the bills are somewhat duplicative, in that the proposed changes impact the some of the same elements of the Act or the administration of Illinois workers’ compensation cases, benefits and insurance.

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So without being overly cumbersome with all of the gritty details, here are some of the main points proposed in the various bills noted in parenthesis.  If you would like to read more on any one of these bills, you can go to the Illinois General Assembly website and do a search for the bill and click on “full text” or the synopsis to read more about them:

  • Creation of a state-run Illinois Employers Mutual Insurance Company, a state WC/OD insurance company, as an alternative to private WC/OD insurance (HB 2622)
  • Immediate creation of a “Workers’ Compensation Transparency Task Force” to collect and review information and data on the effects of the changes in workers’ compensation law to make as transparent as possible all information relating to the medical treatment, legal representation, and benefits paid to injured workers in this State (HB 0412)
  • Reduction in WC insurance ratings for employers implementing a state-certified safety training and return to work program (HB 2645, SB 1349, SB 1504)
  • Restriction on allowable prescription reimbursements to medical providers (HB 2892, SB 1660)
  • Elimination of Kotecki exclusive remedy protection for borrowing employers and prohibition of reimbursement to the loaning employer when the borrowing employer fails to cover the claim (HB 3075, SB 1571)
  • Repeal of the “rebuttable presumption” provision for firefighters, EMT’s and paramedics currently afforded under Section 6(f) of the Act (HB 3526)
  • Return of scheduled PPD values to pre-2006 amendment values along with reduction of minimum TTD and PPD rates, amputation maximums, burial and death benefits to pre-2006 values (HB 3526, HB 3653, HB 3764)
  • Strict PPD evaluation based solely on AMA ratings using most current edition of AMA guide (HB 3526)
  • Supplemental funding of the Injured Workers Benefit Fund from surpluses in the IWCC Operations Fund, the Rate Adjustment Fund, the Settlement Fund and/or the Second Injury Fund (HB 3566, SB 1315)
  • Entitle and require the IWCC Compliance Division to perform on-site job inspections to determine Section 4 compliance (SB 1237)
  • Legislatively define “accident arising out of and in the scope of” employment, particularly addressing idiopathic, personal and neutral risks and traveling employee definitions (HB 0411, SB 0862, SB 1309, SB 1358)
  • Reverse the holding in Will County Forest Preserve District confirming that a shoulder is part of the arm and that a hip is part of the leg for determining PPD values (SB 0862, SB 1309, SB 1358)
  • Create a stricter “major contributing cause” standard (HB 0411, SB 1358)
  • Set a maximum cumulative PPD compensation for the life of an employee at 500 weeks (SB 1358)
  • Reverse the rulings in Interstate Scaffolding and Matuszek by stating that employees on accommodated restrictions that are terminated for cause shall not be entitled to receive TTD (SB 1358)
  • Establish a method for calculating workers’ compensation and liability insurance premiums for the construction industry based upon work hours rather than payroll (SB 1454)
  • Statutorily confirm that a 14-delay in payment of benefits as rebuttable presumption of unreasonableness in determining whether penalties are warranted (SB 0862)
  • Set statutory cap on employees’ attorneys’ fees at 15%, rather than the current 20%, of 364 weeks of PTD benefits (SB 1863)
  • Clarifies some of the appeal deadlines for recalled decisions and extends the time for correcting clerical errors in IWCC Decisions (SB 0640)

It sounds like a lot, and it is.  But keep in mind that many of these are still in committee and drafting/re-drafting phase, and some have little hope of seeing the floor of either house.  (It took the Cubs 108 years to win a World Series – it will likely be at least that long to get a “major contributing cause” standard in Illinois.)  We will continue monitoring the legislation and provide updates as any of these advance.  Please continue to follow our blog or call to communicate with our office regarding any concerns you have with these pending bills.

WCRI Study Shows High Worker’s Compensation Medical Costs in Wisconsin

According to a recent study from the Worker’s Compensation Research Institute (WCRI) comparing the price of providing worker’s compensation treatment in 31 large American states,  Wisconsin stands apart as far as the cost of treating injured workers. The study revealed that Wisconsin’s treatment prices were the highest of all the 31 states. To be sure, the results reveal that Wisconsin insurers paid 138% more than the median prices for treatment in 2014 and 2015. Additionally, between 2008 and 2015, the cost of treatment rose by 30% in Wisconsin, transcending the price hikes in all other status. Obviously this is cause for concern to Wisconsin employers and insurers. The study can be accessed by going to the WCRI website at http://www.wcrinet.org/

Please feel free contact us with any Wisconsin worker’s compensation questions. 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.
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Refused Drug Test Results In No Benefits

As we discussed back in October 2016, Section 11 of the Act provides, in part, that there is a “rebuttable presumption that an employee was intoxicated and that the intoxication was the proximate cause of the injury if at the time of the injury the employee refuses to submit to testing of blood, breath, or urine. However, the rebuttable presumption may be overcome by the preponderance of the admissible evidence that the intoxication was not the sole proximate cause or proximate cause of the accidental injuries.” This very issue was at the heart of a case recently tried by Colin Mills.

While it was not disputed that the claimant slipped and fell on ice injuring his back and head while taking out trash during his shift, the claimant refused a drug test after he presented to the Emergency Room immediately following the incident. The Emergency Department records reflected that “there was neither drug use nor alcohol use involved in the accident,” and that on physical examination the claimant had “a normal level of alertness and no evidence of intoxication.”  However, these notations were made before being advised of the need for the drug test.  After being notified of the need for the drug screen, the Emergency Room notes indicate that the claimant then became anxious and insistent that the  drug screen was not necessary. In fact, the claimant went so far as to change the insurance information that he provided to the Emergency Department (to Medicaid) so that no drug screen would be required for treatment. In addition, when questioned about the refusal to submit to screening during cross-examination at trial, the Arbitrator astutely noted that the claimant was evasive in his answers.

After considering  the Emergency Room records and the claimant’s testimony, the Arbitrator was not persuaded that the claimant had rebutted the presumption of intoxication by a preponderance of the evidence and, as such, the Arbitrator found that the claimant failed to meet his burden of establishing that he sustained accidental injuries which arose out of and in the course of his employment with the insured.

Congratulations to I&F Partner Colin Mills for another outstanding result.

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Illinois General Assembly Revisiting Illinois Workers’ Compensation Reform . . . or Is It?

An update from Partner G. Steven Murdock and the I&F Legislative Watch Committee:

As the battle of Rauner vs. Madigan continues in Springfield over pension reform and the state budget, one may think that workers’ compensation reform, one of the priorities on Rauner’s Turnaround Agenda, has been lost in the mix.  Well, one would be wrong, at least to some degree.

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Currently the General Assembly is kicking around at least one of which we are aware that purport to provide some of the workers’ compensation reform sought by Illinois businesses.  For those keeping track, a former reform proposal,  Senate Bill 2901 (SB2901) last heard to exist in the last General Assembly session (the 99th General Assembly) and sponsored by Senate President Thomas Cullerton (D-23rd Dist.) quite literally died on January 10, 2017.  It fell short, from business’ perspective, of true reform, but showed some promise as at least an olive branch from the Senate Democrats to Governor Rauner in an effort to get past the current stalemate in Springfield.

Senate Bill 12 (SB12) sponsored by Senator Christine Rodogno (R-41st Dist.) reportedly amends the Workers’ Compensation Act by defining accidental injuries considered to be “arising out of and in the course of the employment” if an employee is required to travel away from the employer’s premises, sets a cap on maximum compensation rate for a period of temporary total incapacity and a max limit on wage differential benefits to professional athletes, establishes limitations on the number of chiropractic, occupational therapy, or physical therapy visits an injured worker may receive for injuries, confirms that PPD compensation awards for injuries to the shoulder and hip are to be for loss of the arm and leg, respectively, rather than man as a whole, sets the maximum allowable payment for certain service categories, establishes a new process for the assignment and reassignment of arbitrators to hearing sites, requires the creation of an evidence based drug formulary for establishing reasonableness and necessity of those charges, lays out the duties of the Workers’ Compensation Edit, Alignment, and Reform (WEAR) Commission, allows for additional compensation awards where there has been a vexatious delay in the authorization of medical treatment or the payment or intentional underpayment of compensation, and requires annual reports on the state of self-insurance for workers’ compensation in Illinois in addition to some other matters. (We say “reportedly” because this is what is stated on the official website of the Illinois General Assembly as a summary of this bill.)

Both of these bills and what they reportedly propose (or proposed in the case of SB2901) are not all that they seem.  In other words, some of what is proposed as stated above sounds much better than what we have actually read in the proposed legislation.  In fact, much of the proposed reform is not supported by the Illinois Chamber and the business industry, because the changes actually fall short of the what business believes to be “true reform.”   One will note that neither bill makes mention of a new medical causation standard, a main point raised repeatedly since the efforts at reform prior to the 2011 amendments.  It is also important to note that SB12 cannot pass without Senate Bills 1-11 passing.   Those eleven Senate bills, not surprisingly, deal with the following topics:  education, minimum wage, consolidation of three collar counties, issuance of $7B in bonds for the State’s financial obligations, pension reform, state agency appropriations, changes to state gambling licensing, amends the Illinois Procurement Code, taxation on sugary beverages, and municipalities’ control over State funds they receive or are due.  In short, if we work out the pension code and economic woes of the State along with the contested increase in the minimum average weekly wage and a proposal to make local governments more efficient, we may get workers’ compensation reform.  Yes, it sounds like an old song stuck on repeat for the past two years.  The odds of seeing one of these pass is fairly slim unless we see eleven other bills get worked through, but it is happening.

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So when you hear about the political wrangling taking place between Team Rauner and Team Madigan over pension reform, a balanced budget, minimum wage and workers’ compensation, know that it is still present and ongoing much like the 100-years War.  We continue to watch the process, and we will continue to keep our readers up to date on the pending efforts to change the Illinois Workers’ Compensation laws and procedures in Illinois.  If you would like to learn more, we are happy to speak with you or your team in more detail, so please do not hesitate to contact us.

Illinois Workers’ Compensation Commission Finds Psychologist Qualified under Section 12 of the Act to perform an Independent Medical Examination

Following petitioner’s objection to the scheduling of a comprehensive pain management IME, a hearing was held before the IWCC pursuant to I&F’s Motion to Compel and Enforce Rights Under Section 12.  This case was a long-settled matter in which petitioner retained his rights under Section 8(a) for future medical care.  At issue specifically was petitioner’s objection and argument that a psychologist who holds a Ph.D., but not a medical license, is not qualified under Section 12 of the Act to perform an Independent Medical Examination. The relevant language in Section 12 of the Illinois Workers’ Compensation Act requires an employee, if requested by the employer, to submit to an examination by a duly qualified “medical practitioner or surgeon”. 820 ILCS 350/12 (2013).  He also correctly pointed out that the term “medical practitioner” is not defined in the statute.

Citing Texaco-Cities Service Pipeline Co. v. Sam McGaw, the Commission noted that, “Each undefined word in a statute must be ascribed its ordinary and popularly understood meaning.”  Texaco-Cities Service Pipeline Co. v. Sam McGaw, 182 Ill. 2d 262, 270 (1998).  The Commission stated that “the ordinary and popular understanding of the word “practitioner”is one who practices a profession and a “medical practitioner” is one who practices a profession in the medical field.”  The Commission noted that I&F argued that the professional activities of Dr. Neil Mahoney, Ph.D., include diagnosing and treating the disease of the brain, emotional disturbances, and behaviors.”  Agreeing with I&F’s argument, the Commission held that given Dr. Mahoney’s professional responsibilities, they would be “hard pressed to find Dr. Mahoney is not a medical practitioner under the Act.”  In so holding, the Commission rejected the argument of the petitioner that the term “medical practitioner” is limited to either a medical doctor or a Doctor of Osteopathy and distinguished the instant situation from that presented in the case of W.B. Olson v. Illinois Workers’ Compensation Commission where it was held that a physical therapist is not a medical practitioner in light of the fact that physical therapy is administered under the prescription and supervision of a physician.

The full text of the decision can be found at the following link: fesanco-v-snap-on

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I&F Prevails where IWCC Arbitrator Finds Intervening Accident Breaks Chain of Causation

In an Illinois case recently tried by I&F Partner Colin Mills, the claimant was seeking over six months of medical benefits, as well as PPD benefits, resulting from a lifting injury that occurred while working as a nurse for the insured. However, the Arbitrator agreed with our position that the claimant’s treating medical records clearly showed that she suffered an intervening accident which broke the chain of causation regarding any work-related conditions and the need for further medical care.

Under an independent intervening cause analysis, compensability for an ultimate injury or disability is based upon a finding that the employee’s condition was caused by an event that would not have occurred “but-for” the original injury. To that end, the Courts have held that increased complaints of pain coupled with new and different symptoms will support a finding that a second accident constitutes an independent, intervening cause that breaks the chain of causation between an original work-related accident and condition of ill-being. In this matter, the claimant alleged that she injured her back while lifting soiled linens as part of her job duties as a nurse on October 30, 2014. During initial medical treatment rendered subsequent to the accident, the claimant complained of only right-sided pain to the spine, hip, and leg. She made no complaints of radicular symptoms, numbness, or tingling. However, at a medical appointment on November 10, 2014, the claimant described an event at home the day prior (November 9) that caused her to  twist her back and result in symptoms down the bilateral lower extremities. It was evident in the medical records that followed that the claimant’s symptomatic and clinical presentation had changed dramatically in that she had new symptoms, increased symptoms, and new treatment recommendations from her treating physicians. As time went on, the claimant reported that the pain was at that point actually worse on the left side than on the originally affected right side.

Given the claimant’s myriad of increased symptoms and complaints following the November 9, 2014 intervening accident, the Arbitrator found that the record clearly demonstrated that there was clearly not a “but-for” relationship between the claimant’s diagnoses rendered subsequent to November 9, 2014 and the injuries sustained while working on October 20, 2014. Therefore, the November 9, 2014 incident constituted an independent intervening accident that broke the chain of causation.  The claimant was awarded minimal PPD benefits and medical benefits through November 9, 2014 only. The claimant did not seek Commission review of the Arbitrator’s decision.

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Congratulations to Colin Mills on this favorable outcome!

 

The State of Social Media and “News”: A Message from the Vice-President of I&F

Happy New Year 2017! If any of you are like me, the flood of “news” we received on through social media in 2016 left my head spinning and created a new level of frustration with what is clearly uninformed and irresponsible “reporting.”  Countless times over the past several months, I’ve had to debate with people on what is and is not true, much of which was started by a social media post.  As I’ve told friends and family, there are ignorant people everywhere, and some of them write social media and blog posts!  (You are fortunate in subscribing to the I&F blog that we have no ignorant or uninformed bloggers!)

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Which then brings me to what was finally the trigger to influence the writing me writing this blog about this troubling issue of social media and fake news.  I received a copy of a blog that is currently trending social media, and with the headline, “CA Democrats Usher in 2017 By Making Child Prostitution Legal” as you will see below once you’ve finished reading my responsible blog.  It is no doubt getting thousands of v

iews with that “headline.”  It is just one of thousands of similar sensationalizing headlines much akin to the last generation print seen on The National Enquirer and similar tabloids.

Now most of us, at least I would hope most of us, would read that headline, then re-read that headline and then say, “That cannot be true; it makes no sense.”  But what we are seeing currently is that so many do not have time or the desire to read past the stated headline and simply take the headline as news.  And I now anticipate a social gathering where I will be asked about California legalizing childhood prostitution.  (Funny?  True.)  Finding the good in most, I have to believe that the blogger wants you to question this and then read on, which is what I did.  (Chalk up another view for the blogger!)   What I had thought would be a pretty benign blog after successfully drawing me in with this ridiculous headline was not what I found.

What I found angered me to the point of blurting out the “WTF?!”  (Only I did not say, “WTF”)  The blogger actually reported that child prostitution will soon be legal in California, and what are the state legislators thinking?!  More accurately, to this blogger (whose name I will not print here but is atop her blog), what are you thinking in misstating the facts and reporting it as news?!

Let’s face it, in these politically charged and inflammatory times, some people have put a spin on everything. Some are just lazy.  And in this blog, we have what sounds what that is not.  So being one not to take news at face value (even with mainstream media these days), I reviewed the actual bill, and rather than reprint the entire bill, which you can see here.

I provide just the digest (ie summary intent) of the bill:

DIGEST: This bill (1) provides that a minor engaged in commercial sexual activity will not be arrested for a prostitution offense; (2) directs a law enforcement officer who comes upon a minor engaged in a commercial sexual act to report the conduct or situation to county social services as abuse or neglect; and (3) provides that a commercially sexually exploited child (CSEC) may be adjudged a dependent child of the juvenile court and taken into temporary custody to protect the minor’s health or safety.

So California Senate bill 1322 is actually designed so that minors put into sex trafficking are not prosecuted like adult prostitutes (who are, I guess, presumed to all be voluntarily engaged in that trade, but that opens a whole other debate) and allows the state to put them into protective custody to get them out of the trade.  Technically, under current law, the state has no clear means to get them away from sex traffickers, some of whom are actually parents or legal custodians with rights over those minors.  Also, this new bill does nothing to protect the scum that put the minors into this trade and those who solicit minors for sex.  They are, should be and will still be fully accountable under the existing law.

Now go ahead and read that blog post.

While the headline has certainly brought her blog a lot of views, the truly irresponsible “reporting” seen in this as in thousands and thousands of posts, tweets and blogs worldwide is an epidemic for which the only solution presently is responsible reading and sharing.  Just remember: the world is full of ignorant people; some choose to be bloggers (just not bloggers at Inman & Fitzgibbons).

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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 Council’s Workers Compensation Committee and monitors and provides input on pending legislation in Springfield affecting our practice.

Japanese Insurance Company to Replace Claim Reps with Artificial Intelligence

According to The Guardian, Japanese carrier Fukoku Mutual Life Insurance is replacing 34 employees with a system that is based on IBM’s Watson Explorer. It is said that the system “possesses cognitive technology that can think like a human”, and will “analyze and interpret all of [their] data, including unstructured text, images, audio and video”. It will be able to read “tens of thousands of medical certificates and factor in the length of hospital stays, medical histories and any surgical procedures before calculating payouts”. Fukoku is saying that final payments will not be issued until the results are reviewed and approved by a human associate.

The company believes the move will increase productivity by 30% and provide them a full return on investment in less than two years and expects to have the system in place and running by the end of March, 2017.

The Guardian also reports that Dai-Ichi Life Insurance has already introduced a Watson-based system to assess payments – although it has not cut staff numbers – and Japan Post Insurance is interested in introducing a similar setup.

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Kevin Deuschle has been a partner with the firm since 2012 and is the Chair of the firm’s Information Technology Practice Management committee, including the firm’s Committee on Digital Ethics.  Kevin has also been the editor of the firm’s blog since its creation in 2009.

Independent Contractor vs. Employee: Control is Key for Determining Employment Relationship in Illinois

Salvador Esquinca injured his back as a result of a motor vehicle accident on April 29, 2010.  The employer, Romar Transportation Systems, Inc., denied benefits and argued that the claimant was an independent contractor.  As an independent contractor, the claimant would not be entitled to the protection of the Illinois Workers’ Compensation Act.  The Arbitrator found that the claimant failed to prove that an employer-employee relationship existed and that he was an independent contractor.  The claimant reviewed the Arbitrator’s decision and both the Commission and the Circuit Court affirmed.  An appeal to the Appellate Court followed.

FACTS:                    At trial, the parties presented significant evidence detailing the nature of their relationship.  The employer was a transportation company that engaged in warehousing, yard storage, truck brokering, and intermodal freight transport by rail and truck.  The employer worked with numerous drivers, some were employees and others were owner-operators hired as independent contractors.  The relationship between the parties began approximately two-and-a-half years before the accident.

The parties outlined the nature of their relationship in the “Contractor Service Agreement.  The Agreement labeled the claimant as an independent contractor and specified that he was not an employee or agent of the employer.  Pursuant to the Agreement, the claimant owned his own truck and was responsible for all operating costs including fuel, fuel taxes, tolls, permits, licenses, maintenance costs, and plate registration.  The claimant determined the method, means, and manner of performance of his duties.  Also, the claimant was responsible for obtaining insurance—including workers’ compensation insurance and “bobtail” insurance—for which the claimant paid the premiums.  The Agreement remained in effect for two years and expired about seven months prior to the accident.

ANALYSIS:           In examining the relationship between the parties, the Arbitrator provided a thorough analysis of the evidence presented at trial and the factors considered in determining that the claimant was an independent contractor.  In reviewing the Arbitrator’s decision, the Court of Appeals noted that there was no bright-line rule for differentiating between an employee and an independent contractor.  Instead, the courts must rely on a factor test previously outlined by the Illinois Supreme Court.  The relevant factors included the following:

(1) the employer’s control over the manner in which work is performed; (2) the employer’s control over the schedule; (3) the manner of compensation; (4) withholding of income, benefits, and social security taxes; (5) the employer’s ability to discharge at will; and (6) supplying materials and equipment.

In applying the above factors, it is well settled that no single factor is determinative, instead the totality of the circumstances must be considered.  That being said, significant weight is given to the amount of control the purported employer exerts over the actions of the individual.

In this case, the Court of Appeals reviewed the evidence presented in connection with the above factors.  In regard to control, the court found that the employer did not exert a notable degree of control over the claimant’s work performance or activities.  The claimant was told where to pick up shipments and when to deliver them.  However, the claimant determined the delivery routes and when and where to make rest stops and refuel.  If the claimant had been hired as an employee, his schedule would have been predetermined by the employer.  In addition, the claimant had the ability to decline a shipment, whereas an employee would not have had a refusal option.  In fact, the claimant testified that he declined shipments in the past, yet the employer enlisted his services for subsequent shipments.  Also, despite the fact that the claimant drove exclusively for the employer, the employer testified that the claimant was free to drive for other companies if he chose to do so.

The court also acknowledged the fact that the claimant owned his own truck and was solely responsible for operating expenses, maintenance, repairs, parking costs, and insurance.  If he were an employee, the employer would have paid these costs.  The Court of Appeals also examined the terms of the Agreement which labeled the claimant as an independent contractor.  Although this labeling did not carry significant weight, the court noted that the claimant’s insurance application indicated he was an owner-operator rather than employee.  Also, when he treated for his injuries after the accident, he listed his own incorporated trucking company as his employer.  The fact that the agreement expired prior to the accident did not impact the court’s decision as the parties acknowledged that their relationship remained the same.

Finally, the Court of Appeals further examined the differences in the employer’s policies regarding its employees versus independent contractors.  The employer did not furnish the trucking equipment to its independent contractors.  The employer also compensated independent contractors differently.  Employees were paid hourly or received a small percentage of each shipment.  On the other hand, independent contractors were paid by the shipment and received a significantly higher percentage of each shipment.  Also, the employer did not deduct taxes or other benefits (health, medical, dental, disability, 401K) from the paychecks of its independent contractors, including the claimant.

Based on the totality of the circumstances and application of the factors test, the Court of Appeals agreed that the claimant was an independent contractor.  Therefore, the claimant was not awarded any benefits under the Act.

BOTTOM LINE FOR EMPLOYERS:         From a defense standpoint, it is important for employers in the trucking business, or any business that regularly enlists services of independent contractors, to take note of the court’s decision in Salvador Esquinca v. IWCC (Romar Transportation Systems, Inc.).  As evidenced by the Arbitrator’s findings and the written decision from the Appellate Court, a thorough analysis of the relationship between the purported employer and employee will be conducted in determining whether an employment relationship exists.  An employer cannot simply rely on the terms of an agreement labeling someone as an independent contractor.  Instead, the employer’s policies and general practices must be consistent with the factors necessary to establish an independent contractor relationship.

Thanks to I&F attorney Dane Kurth for the summary of this case.  Dane works out of the Champaign and Indianapolis offices of Inman and Fitzgibbons and can be reached at dkurth@inmanfitzgibbons.com.

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Matching Contributions to 401(k) not included in Wage Calculation in Iowa

The Iowa Supreme Court, in an issue of first impression,  recently held that an employer’s matching contributions to an employee’s 401(k) plan are not part of weekly earnings for wage and benefit rate purposes.  Evenson v. Winnebago Industries, No. 14-2097 (Iowa June 3, 2016) The deputy commissioner had initially held  the employer contributions to the employee’s  401k plan were a fringe benefit and therefore not included in the calculation of average weekly gross earnings in workers’ compensation claims. This was  affirmed by  the Commissioner, and then the  District Court.

In its analysis, the Court first examined the  terms used in  Section 85.36 of the Iowa Code, which  defines “weekly earnings” as including “gross salary, wages, or earnings.” The Court looked to  Webster’s Dictionary  for the commonly understood meaning of each of these three terms.  From the   ordinary meaning of the words salary, wage, and earnings, the Court concluded that an employer’s matching contribution to an employee’s 401k plan was not meant to be included in weekly earnings as defined in Section 85.36.   The Court  observed that, unlike salary, wage, or earnings, an employer’s contribution to a 401k plan is not dependent upon the hours the employee works, but rather  upon the employee’s choice and participation. It is the  employee who first chooses whether and how much to participate in the 401k plan, and only after that  choice does  the employer match the contribution to the plan.

The Court also examined the exclusionary language of Sec. 85.61(3),  which specifically excludes  an employer’s contribution for welfare benefits from gross earnings. The Court again relied upon Webster’s dictionary to arrive at this  conclusion.   After  discussing the dictionary definition of each separate word,  the Court  reasoned that welfare and benefits   should be considered together, and that together, welfare benefits mean something extra given to an employee for their well-being.  The Court stated that an employer’s matching contributions to a 401k plan are in fact something extra, since they are in addition to  the employee’s normal, earned wages, and they provide assistance for employees in planning for retirement.

The Court  further noted that Iowa Code Sec. 85.61(9)  defines  spendable weekly earnings  as “that amount remaining after payroll taxes are deducted from gross weekly earnings.”   The Court observed that an employer’s matching contribution does not fit this definition since it is not subject to payroll taxes, and an employee who receives a matching contribution to their 401k plan cannot immediately spend the contribution at the time it is paid, unlike a regular weekly wage.

Therefore  based upon the plain ordinary meaning  of salary, wage , and earnings used in Sec. 85.36 , coupled with the specific exclusion of welfare benefits from  weekly earnings in Sec. 85.61(3), and the definition of spendable earnings given  in  Sec. 85.61(9), the Court concluded that the legislature must have intended to exclude employer contributions to 401k plans from the definition of gross earnings.  As further support , the Court cited the leading U.S. Supreme Court case on fringe benefits Morrison-Knudsen, which held that an employer’s contributions to a union trust fund for health and welfare, pensions, and employee training were not considered wages for the purposes of calculating weekly benefits under  the District statute.   In so deciding, the Morrison-Knudsen Court explained that such benefit funds  cannot be readily converted to a cash equivalent in the same way as regular wages can.

The Evensen Court concluded that their decision is consistent with the  majority trend  to treat an employer’s matching contribution to a 401k plan as a welfare benefit that falls under the category of “fringe benefits,” and thus is not included in the calculation of weekly benefits for workers’ compensation purposes.  The Court acknowledged that a few states have changed their workers’ compensation statutes to include retirement plans in the definition of fringe benefits, however the Iowa legislature has not done so.

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Thanks to partner Terry Donohue for the summary of this important Iowa case. Terry 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.

 

I&F secures favorable decisions in 3 consolidated cases

In these cases, the claimant, a 14-year custodian for the Respondent, filed 3 claims for alleged injuries to her right shoulder on February 7, 2013, October 13, 2013 and March 17, 2014. She testified that her job duties included cleaning bathrooms and hallways, utilizing a vacuum sweeper and a heavy mop with a bucket. In the earliest claim, the claimant alleged an injury to her right shoulder when she tried to wring out her mop at work and felt a crack. She reported the injury later that day, was seen in the emergency room, underwent x-rays that were normal and was diagnosed with a right shoulder strain. She underwent conservative treatment and on March 28, 2013, she was released to full duty by her treating physician and advised to return as needed.

She returned to work on March 28, 2013 until October 13, 2013, at which time she complained of right shoulder pain to her supervisor. In her subsequent medical visit on October 18, 2013, she didn’t specify any specific accident or event. She was referred back to her treating physician and on October 28, 2013, she reported recurrent pain, but no specific trauma or incident that would have triggered or aggravated the right shoulder problem. She was given a steroid injection, taken off work and an MRI scan was ordered. The claimant also completed FMLA paperwork on October 18, 2013, but didn’t specify an injury, but rather, she cited her “own serious health condition.” On November 18, 2013, the treating physician interpreted the MRI scan to reveal minimal tendinitis of the supraspinatus without other significant findings and recommended. She underwent physical therapy and her treating physician returned her to work on January 2, 2014. In a February 17, 2014 visit, the claimant testified that she told her doctor that her shoulder pain was getting worse, but that records reflect that she was feeling significantly better and that the doctor released the claimant from treatment. The claimant alleged a third work accident on March 17, 2014. The treating physician recommended right shoulder surgery, but did not provide a specific causation opinion.

Both parties obtained IME opinions from respective physicians and both physicians were deposed prior to Trial. At Trial, the claimant testified that she sustained a work accident on March 17, 2014. Following a cross-examination, in which she was confronted with payroll records that reflected that she was not working on March 17, 2014, the claimant’s accident date was amended to March 23, 2014. However, in the claimant’s March 24, 2014 medical record, she provided a history of right shoulder pain for one week. The claimant even testified that she was a poor historian with admittedly poor memory.

In the Arbitrator’s decision, it was noted that the claimant failed to describe a specific event or work-related activity that approximated an accident in March 2014. In addition, the Arbitrator found that the claimant failed to provide a history of a specific work accident in October 2013.

The Arbitrator found our IME physician to be more credible that than the Claimant’s IME physician in that our physician reviewed a complete set of medical records, the actual right shoulder MRI scan, a job description and a job analysis video of the claimant’s job duties prior to rendering his opinion that the claimant’s condition was a natural progression of underlying degenerative changes. The Arbitrator noted that the cross-examination of the claimant’s IME physician confirmed that the doctor did not review a job description or job analysis, did not know how much time the claimant spent mopping as part of her job duties or how many times she squeezed a mop or pushed a handle of a bucket with her right arm on her first alleged accident date. On further cross-examination, the Arbitrator found that the claimant’s IME physician did not actually review the MRI scan, but rather the radiologist’s report. The Arbitrator noted that the Respondent’s IME physician was a practicing surgeon, while the claimant’s IME physician last performed surgery four years prior.

The Arbitrator found that the claimant reached MMI on March 28, 2013 in regard to the first accident and denied prospective medical treatment. The Arbitrator found in favor of the Respondent in the 2nd and 3rd cases on the issues of accident, medical causation, medical bills and prospective medical and denied all benefits.

We prevailed by showing that our IME opinion was significantly more informed than the claimant’s IME opinion. In addition, we were able to highlight the claimant’s failure to describe specific events or work-related activities in regard to the 2nd and 3rd accidents. Finally, we were able to provide evidence that the claimant was not working on her 3rd alleged accident date and the Arbitrator found that the changing of the alleged accident date and the claimant’s failure to describe a specific event or work-related activity lessened her credibility.

Congratulations to I&F Partner Mark Carter for another outstanding result.

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Subsequent Injuries: Breaking the Chain of Causation

The Illinois Workers’ Compensation Commission recently reversed the decision of an Arbitrator who found that a slip and fall accident that occurred several months after a work-related foot injury was not causally related to the original accident.  In so finding, the Commission confirmed that the chain of causation was not broken where the underlying work injury was a contributing cause in the subsequent incident.

In its discussion of this case, Timothy Shaughnessy v. City of Chicago, 16 I.W.C.C. 0099 (2016), the Commission noted that the petitioner suffered a right foot fracture on October 31, 2008.  The petitioner treated for several months regarding the foot injury and was later released back to work full duty in February of 2009.  The parties did not dispute that the initial foot injury arose out of and in the course of his employment.  While treating for his foot injury, the petitioner was instructed to use a walking boot on his right foot.  It was the petitioner’s use of this walking boot that was at the center of the dispute in this case.  Specifically, in December of 2008, following a doctor’s appointment for his right foot, the petitioner slipped and fell in the parking lot and suffered head injuries including a contusion, subdural hematoma, temporal bone fracture and hearing loss.  The petitioner testified that there was snow and ice in the parking lot and that he slipped with his right foot, on which he was wearing the walking boot.  The employer denied benefits related to the slip and fall incident and rejected the petitioner’s contention that the resulting head injuries were causally related to the underlying work accident.

At trial, the Arbitrator found that the petitioner sustained a work-related right foot injury in October of 2008.  However, the petitioner had failed to prove that the subsequent slip and fall incident was causally related to the underlying work accident and the Arbitrator awarded no benefits related to that incident.

On review, the Commission found that the evidence supported the inference that the petitioner’s use of the walking boot made it more likely that he could slip and fall in the icy conditions.  This was based, in part, on the petitioner’s testimony that he fell because of both the slippery conditions and the walking boot.  The Commission added that but for the work injury to the right foot, the petitioner would not have been wearing the walking boot which, in addition to the ice and snow, contributed to causing the slip and fall incident.  The Commission found that even though the parking lot conditions may have contributed to the subsequent incident, these conditions did not constitute an “independent intervening cause” and the chain of causation was not broken.  Consequently, the Commission found that the petitioner was entitled to benefits for both the underlying injury and the subsequent head injuries and thus awarded additional medical and permanent partial disability benefits for the petitioner’s head injuries.

As a practical matter, in determining whether a subsequent injury is causally related to an underlying work-related injury, it is important to thoroughly investigate all of the facts and circumstances surrounding the subsequent incident.  In the end, if the claimant can establish that the subsequent injuries were caused, at least in part, by the underlying accidental injuries, the claimant may be entitled additional benefits.

Thanks to attorney Dane Kurth of I&F’s Champaign office for the summary of this case.

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Missouri Appellate Court finds that one employee may sue another employee for negligence

In a recent Missouri appellate court case, it was found that an employee could maintain a tort action against a co-employee for negligence.  This case involved co-employees at Wright Construction Company. On October 20, 2011, they were installing a fountain which required moving large stones using a front loader with forks. While one employer, Meyer,  was operating the machine, one of the forks dropped down onto another employee’s, Fogerty’s, back causing back and knee injuries. Fogerty argued that the co-employee had a duty to operate the forklift in a reasonably safe manner and that he breached this duty by lowering the forks without taking any steps to warn or protect him.

The question in this case is whether one co-employee owes another a personal duty of care separate and distinct from the construction company’s non-delegable duty to provide a safe workplace. The negligence claim asserted that Meyer had a duty to operate the forklift in a reasonably safe manner and that he breached this duty by lowering the forks without taking any steps to warn or protect Fogerty. This is not an allegation of a violation of employer’s non-delegable duty to provide a safe work environment, but rather a claim that Meyer was negligent in the operation of the fork-lift and in carrying out of the details of the work.

The court noted that in the majority of cases when injuries result from the place of work or the employer’s tools, directions, or standard operating procedures, the injury falls within the employer’s non-delegable duty to provide a safe workplace and the co-employee enjoys immunity.  It was found in this case that Fogerty sufficiently asserted violations of Meyer’s personal duty of care for which he could be liable at common law.  The court concluded that under Missouri’s narrow co-employee immunity rule, an employee may be liable at common law for injuries to a co-employee caused by his or her negligent actions if the plaintiff demonstrates that the defendant violated a personal duty of care separate from the employer’s duty to provide a safe workplace. The court concluded that the civil action could proceed.

Therefore, when the injury arises from a co-employee’s action not specifically directed by the employer or resulting from the malfunction of an employer-provided tool or workplace, the co-employee may be liable at common law.

The case, Fogerty v. Armstrong, can be found here. 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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Repetitive Trauma Cubital Tunnel Claim Rejected by Arbitrator

I&F Attorney Dane Kurth recently secured a favorable arbitration decision for our client in its defense of a repetitive trauma cubital tunnel claim.  The petitioner was employed for almost 20 years as a 911 Operator for the respondent.  The petitioner claimed that he developed cubital tunnel syndrome in his left elbow as a result of his repetitive job duties which included answering 911 calls, taking calls on the business line, handling radio traffic, and performing data entry using multiple keyboards and mousing devices at his work station.

At issue was whether the petitioner’s work activities constituted a compensable accident under the Illinois Workers’ Compensation Act and whether such activities caused him to develop cubital tunnel syndrome.  In attempting to establish a causal connection, the petitioner relied on the opinions of his treating physician who testified that the petitioner’s job duties played a contributing role in causing his diagnosed condition.  The IME doctor and, more importantly, the Arbitrator disagreed.

In finding for our client, the Arbitrator identified several deficiencies in the petitioner’s case.  First of all, the treating physician testified on cross examination that he had not reviewed any job descriptions or workspace photographs and he had a limited recollection of specific discussions with the petitioner about his actual job duties.  At trial, the petitioner confirmed that he never supplied his doctor with a written job description or photographs.  In addition, when cross examined at trial, the petitioner could not recall discussing his job duties with the treating physician.  Finally, the petitioner admitted that in the past he had been involved in computer gaming and had done a number of side jobs involving computer work outside of his regular employment.

While the Arbitrator commented that the treating physician had a limited understanding of the petitioner’s job, the Arbitrator found that the IME doctor’s written reports and deposition testimony demonstrated a more thorough review and clearer understanding of the petitioner’s job duties.  The Arbitrator noted that the IME doctor analyzed several job descriptions, examined work station photographs, and spoke with the petitioner about his job duties before rendering a causation opinion.  Ultimately, the IME doctor concluded that the petitioner’s job involved a variety of different activities, none of which were performed to such a degree that they would have caused him to develop cubital tunnel syndrome.

Based on the evidence presented at trial, the Arbitrator found that the IME doctor’s opinions were more persuasive and credible than the treating physician’s opinions and the Arbitrator denied all benefits.  As a result, our client avoided significant costs associated with payment of future medical expenses, temporary total disability benefits, and permanent partial disability benefits.

Congratulations to Dane for the excellent result.

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