I&F Prevails in IL WC Claim where Petitioner’s Bilateral Carpal Tunnel found Unrelated to Work Duties

I&F Attorney Michael Bantz recently prevailed in a trial over the disputed issue of the Petitioner’s bilateral carpal tunnel conditions.  The Petitioner alleged that his diagnoses were due to repetitive trauma from his work as a Patrolman and Correctional Officer for a Sheriff’s Department.  The Petitioner testified that his duties involved a wide variety of tasks, including responding to calls, writing tickets, escorting inmates, monitoring security cameras, and processing new inmates.

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

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

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

Congratulations to Michael Bantz. Michael works out of the Champaign office of Inman and Fitzgibbons and can be reached at mbantz@inmanfitzgibbons.combbons.com.

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I&F’s Mark Carter admitted to practice in the State of Iowa

lawyer-markcarter_tnInman & Fitzgibbons Partner Mark Carter recently had the honor of appearing before Iowa Supreme Court Justice Thomas D. Waterman. Upon confirmation that Mark had been admitted to practice law in the State of Illinois for the requisite amount of time and was of good moral character, Justice Waterman administered the Iowa Lawyer’s Oath, at which time Mark was sworn in to the Iowa Bar on an Admission on Motion.

Mark Carter joins partner Terry Donahue in the firm’s Iowa practice located in Des Moines, Iowa and will cover the entire state and provide a full range of Workers’ Compensation Defense and General Liability Defense services.


Study suggests opioids had no pain-relieving advantage in a yearlong clinical trial

The L.A. Times reported yesterday that researchers now have hard data that challenges the view that opioids’  pain-relieving benefits justify their risks.  According to the Times, in the first randomized clinical trial to make a head-to-head comparison between opioids and other kinds of pain medications, patients who took opioids fared no better over the long term than patients who used safer alternatives. Researchers concluded in the Journal of the American Medical Assn that “there was no significant difference in pain-related function between the 2 groups over 12 months.”

The Times reported that the study’s authors concluded that “by some measures, the people using non-opioid drugs such as Tylenol, ibuprofen and lidocaine experienced more pain relief than people using medications like morphine, Vicodin and oxycodone — though the differences weren’t large enough to be considered statistically significant.”

The trial — Strategies for Prescribing Analgesics Comparative Effectiveness, or SPACE — was funded by the Department of Veterans Affairs and enrolled patients who were treated by the Minneapolis VA. All of the patients had pain in their backs, hips or knees for at least six months, and that pain was bad enough to interfere with their daily activities and enjoyment of life. A total of 240 patients were randomly assigned to either the opioid or nonopioid group. About two-thirds of them had back pain, and the rest had osteoarthritis pain in their knees and hips.  According to the Times, the study authors cautioned that these results might not apply to pain patients in general, since VA patients aren’t representative of the country as a whole.

“Overall, opioids did not demonstrate any advantage over nonopioid medications that could potentially outweigh their greater risk of harms,” wrote the team led by Dr. Erin Krebs of the Minneapolis Veterans Affairs Health Care System’s Center for Chronic Disease Outcomes Research.

Of potential and particular significance to the WC industry, the Times noted that Dr. Krebs and her colleagues conclude that “treatment with opioids compared with non-opioid medications did not result in significantly better pain-related function over 12 months,” and that, “Results do not support initiation of opioid therapy for moderate to severe chronic back pain or hip or knee osteoarthritis pain.”

Thank you to The L.A. Times and reporter Karen Kaplan (karen.kaplan@latimes.com) for bringing this important study to our attention.

Inman and Fitzgibbons Announces New Partners

Inman & Fitzgibbons is pleased to announce that Jill Baker and Kristin Thomas have been named as partners with the firm.

jbaker-37_color-200x300 Jill has been with the firm since 2000 and currently serves the firm’s clients in both Illinois and Missouri.  Jill is has long set the standard for exemplifying the firm’s motto of making client service our top priority. You can read some of Jill’s WC  industry updates from our blog here, and here and also read about her recent appellate court win.



Lawyer-KristinHofer_tnKristin joined the firm in in 2010 and since that time has established herself as one of the leading attorneys in the practice.  She routinely presents on behalf of the firm as you can read about here. You can also read more about Kristin from our blog here.


We congratulate them on this achievement and wish them continued success. Please join us in congratulating both Jill and Kristin.

I&F Prevails as IL WC Arbitrator Awards a “Zero” for PPD and Orders TTD Credit for Employer

In a recent case before an arbitrator at the Illinois Workers’ Compensation Commission, Attorney Allison Mecher prevailed in defense of an alleged claim for permanent partial disability benefits for eye injuries. The claimant, a cook, alleged that he was pulling a grease scraper brush out of a cabinet and a cleaning chemical fell onto the floor and splashed chemicals into his eyes. The employer accepted the accident as compensable and paid for the claimant’s time off of work and related medical expenses. The claimant was initially diagnosed with a minor chemical superficial keratitis, but later claimed issues with ocular itching and burning, vision loss, glaucoma, and headaches, which he related to the work accident. He missed two weeks of work, although it was revealed at trial that he had never been authorized off of work by any doctor. His treating doctors confirmed that his acute keratitis had resolved shortly after the chemical splash and questioned the etiology of his continued complaints, noting inconsistencies on his objective testing.

The employer’s independent medical examiner, an ophthalmologist, performed extensive testing of the claimant and gave a detailed causation opinion with regard to each alleged condition of ill being. Most notably, the IME doctor concluded that the claimant did not have any vision loss secondary to the chemical splash and that he was magnifying his symptoms. She opined that there was no significant chemical injury to the right eye and no chemical injury to the left eye, and that any injuries sustained resolved completely within about a week of the work accident. She opined that the claimant could perform his full duties without any ocular restriction, and that he had no disability, disfigurement, or loss of vision secondary to the work accident.

The arbitrator found the employer’s IME opinion to be credible and adopted the IME doctor’s opinion on the issue of permanency. The arbitrator found that claimant sustained 0% permanent partial disability to the right eye and 0% permanent partial disability to the left eye as a result of the work accident. In addition to the zero award, the arbitrator also ordered that the employer shall be given a credit for the temporary total disability benefits that were paid for the lost time from work, finding that the claimant was not entitled to compensation for any period of TTD and that an overpayment was made to the claimant for two weeks of TTD.

No Petition for Review has been filed, so this decision will be entered as the final decision of the Commission.

Congratulations to Allison Mecher for the excellent result.  Allison works out of the firm’s Chicago office.

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I&F and the Illinois Chamber of Commerce to Present on Revised Workers’ Compensation Manual

2018 Illinois Workers’ Compensation by the Book – Seminar and New Book

March 15 – Naperville


April 10 – Effingham

9am – 4pm

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This full day interactive workshop, presented by attorneys from the law firm of Inman &  Fitzgibbons Ltd. will explore Illinois’ confusing Workers’ Compensation System in depth.

The newly revised Workers’ Compensation Manual (authored by attorneys from Inman & Fitzgibbons Ltd.) will serve as the guide for the day and participants will take home their own copy of the book.

Member Rate – $339

Non-member Rate – $389

Save $50 if you register within 10 days prior to the event

Register at the Chamber’s website.

The Involvement of Nurse Case Managers in Indiana Claims

When discussing medical benefits for work-related injuries in Indiana, it is often said that the employer is responsible for directing medical care for injured workers.  Members of the Indiana Worker’s Compensation Board are often quick to correct the common misconception that the employer “directs” medical care.  Instead, pursuant to Indiana Code 22-3-3-4, it is the responsibility of the employer to “furnish” an attending physician for the treatment of an employee’s work-related injuries.  The attending physician then directs the medical care.

To assist with furnishing medical care and adjusting their worker’s compensation claims, employers or their insurance carriers sometimes enlist the services of a nurse case manager (“NCM”).  Generally, a NCM should act as a liaison among the involved parties including the employee, employer/carrier, and medical provider.

The Indiana Worker’s Compensation Act does not contain specific provisions governing the involvement of nurse case managers in worker’s compensation claims.  However, by way of a written notice on its website, the Board has provided that:

A NCM may be involved in a claim to schedule appointments, help facilitate care suggested by the medical provider, and to report back to the employer and/or carrier.  However, a NCM should not express opinions, to either the injured worker or the medical provider, regarding an injured worker’s course of medical care or otherwise attempt to influence the process.  Additionally, a claims adjuster should not attempt to direct the care provided to an injured worker by the authorized treating doctor.

While NCMs often provide a useful tool for adjusting claims in Indiana, it is important for claims handlers and NCMs to be familiar with and to follow the guidelines set forth by the Board.  To that end, it is plainly apparent from the above guidelines that the role of the NCM should be limited to that of a facilitator or liaison and that any attempts to direct or influence an injured worker’s medical care may be in direct conflict with the Board’s guidelines.

The above guidelines were handed down by the Board quite some time ago; however, the involvement of NCMs in worker’s compensation claims continues to be a topic of discussion among attorneys and the Board.  Recently, it has been suggested that the Board is considering amending these guidelines.  Please continue to follow our blog for further updates on this topic and feel free to contact us to discuss this and any other topics involving worker’s compensation claims in Indiana.

Thanks to attorney Dane Kurth for this important summary.  Dane represents employers in both Illinois and Indiana on behalf of the firm.

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Iowa Supreme Court Reverses and Remands $25 Million WC Bad Faith Jury Award

In the case of Thornton vs. American Interstate Insurance Company, (May 19, 2017) the Iowa Supreme Court agreed that a workers compensation insurer had acted in bad faith as a matter of law in opposing an undisputed PTD claim at hearing, but disagreed that   its opposition to a partial commutation was also in bad faith.  The jury had  awarded  $25 million in punitive damages and $284,000 in compensatory damages.

The facts are complicated but important in order to understand the bad faith behavior claimed. In June 2009, the Employee was paralyzed below his chest, leaving him with no use of his left hand and limited use of his right hand, from a work related driving  accident. The insurance carrier’s conduct in addressing the claim included the following: The adjuster went to the hospital within two days, met with the family, and advised that  benefits would begin immediately. Two weeks after the accident the insurer received a medical opinion from Employee’s examining  physician that Employee was permanently and totally disabled (PTD). The carrier internally acknowledged and reserved his claim as PTD and began benefits that week. These benefits continued through trial. The Employee’s attorney requested wage documentation multiple times over two months, which was eventually provided, and which resulted in a $7 per week increase based on the new agreed wage.  When released from the hospital, the Employee moved into his in-laws’ home and the insurer arranged for modifications including installing a shower and hospital bed.  The insurer provided a wheelchair and van which was specially modified to the Employee’s height and weight.  In June of 2010, the carrier hired a home health care nurse so the Employee’s wife could return to work. Then, when the Employee separated from his wife and needed to move out, the carrier arranged for home health care and  modifications to his new apartment. The carrier also arranged for the Employee to take a disabled driver’s test.

In March 2011 the treating doctor opined that the Employee was at MMI. The carrier continued paying weekly benefits, assuming this was a PTD case. The insurer made two structured settlement proposals to Employee at that point (with Medicare Set-Aside provisions), but the Employee did not wish to discuss settlement until his divorce was finalized.  In May of 2012 , the Employee filed its Petition, alleging that he was PTD.  The carrier denied the PTD claim in its Answer.  In subsequent discovery, the Employee testified that he would like to get a job someday. Additionally, a vocational report was obtained by the Employer/Carrier in February of 2013 indicating that jobs may be available to the Employee.   Discovery further revealed that in March of 2013, defense counsel had met with the treating doctor regarding his opinion the the Employee was permanently and totally disabled, and, following that, the attorney reported that the treater was not going to be changing his PTD opinion.  He recommended that the carrier agree to settlement on a PTD basis, and warned that they may  face sanctions if they failed to do so. Nevertheless, the Employer/Carrier proceeded to hearing and contested the claim of a PTD, with the adjuster explaining that they felt they had at least the right to go to hearing. On May 23, 2013 the Deputy found the Employee to be permanently and totally disabled.

Shortly after the PTD award, the Employee filed a petition seeking partial commutation of the PTD award in a lump sum of $761,957 in order to buy a home, pay attorney’s fees,  and invest. The record demonstrated that the Defendants felt that although there was a good chance the Employee might be awarded the partial commutation, they also believed he was not  entitled to it.  As such, the Defendants resisted the petition. The Defendants offered evidence that the Employee had a history as a poor money manager.  They also presented experts who opined that commutation was not in his financial best interests and he did not have a sound game plan to protect or justify the lump sum commutation. The Employee presented his own experts who opined that the commutation was in his best interests if did not invade the principal. In May of 2014, the  Deputy granted partial commutation in a decision sharply critical of Defendants, and also awarded the costs of the Employee’s two experts.

Thereafter, the Employee filed a civil action for bad faith claims handling against the insurance carrier, alleging bad faith in disputing whether the Employee was PTD, and in contesting his petition for a partial commutation (lump-sum) award. 

The district court instructed the jury that the insurer, by contesting the PTD claim and commutation, had acted in bad faith as a matter of law by March 11, 2013 (nearly four years after the accident), and that the jury was to determine to what extent the carrier had acted in bad faith prior to that time. The jury then found the insurer had committed bad faith as of September 1, 2009, coinciding with its refusals to give wage information and its internal recognition of a PTD claim. The jury awarded $284,000 in compensatory damages and $25 million in punitive damages.

On appeal of that decision, the Supreme Court first agreed that the insurer knew or should have known it lacked any reasonable basis to dispute that the Employee was  permanently and totally disabled, and, therefore, held that portion of the jury instruction was not in error.

The Supreme Court then analyzed the issue of whether a workers’ compensation insurer that pays weekly benefits can still be found in bad faith. It rejected the insurer’s argument that since the insurance contract was not introduced into evidence, and since all PTD benefits were paid, bad faith could not be found due to no showing of a denial of a right  guaranteed  in the contract.  The Court explained that insurance contracts contain an implied covenant of good faith that neither party will do anything to injure the rights of the other in receiving the benefits of the agreement. The Court further stressed that the reason the tort of bad faith claims handling is recognized in Iowa is  because traditional damages for breach of contract will not always adequately compensate an insured for an insurer’s bad faith conduct.  The Court also noted that insurance policies are contracts of adhesion, with unequal bargaining power between the insurer and insured.  The Court explained that to establish a first-party bad-faith claim against a workers’ compensation insurer, the plaintiff must show: (1) that the insurer had no reasonable basis for denying benefits under the policy and, (2) the insurer knew, or had reason to know, that its denial was without basis.

The Court concluded that the workers’ compensation insurer unreasonably contested the Employee’s PTD status at hearing despite early opinions from a medical professional and its own claims adjuster that the Employee, a quadriplegic, was permanently and totally disabled.

However, the Court  did find that the lower court erred by instructing that the insurer was in bad faith as a matter of law for resisting the partial commutation.  The Court disagreed that settlement negotiations rather than immediate stipulation to PTD was  bad-faith conduct, explaining that negotiations can be mutually beneficial to both employees and insurers, and that all parties are entitled to engage in settlement negotiations.  Regarding resisting commutation, the Court explained that commutation is different than the payment of weekly benefits, which are commanded by statute.  Commutation is only appropriate if the Employee demonstrates that commutation is in his best interests and therefore involves a weighing by the Commissioner of the worker’s preference and the benefits to the worker of receiving a lump sum payment against the potential detriments that would result if the worker invested unwisely, spent foolishly, or otherwise wasted the funds.  The Court concluded the insurer was not in bad faith for resisting commutation because the Employee’s petition for commutation was fairly debatable on its facts due to omissions in his proposed budget, his past spending habits, and his lack of experience with investments.

The Court held that the district court erred by instructing the jury that the insurer acted in bad faith by opposing the Employee’s commutation. Therefore, the Court concluded that the trial was fatally tainted by the erroneous instruction.  As such, the Court remanded the matter for a new trial on liability and damages, although the separate instruction that the insurer acted in bad faith in opposing the PTD claim was upheld.

This case illustrates the many pitfalls potentially facing an insurance carrier when handling a  catastrophic claim of this nature, and the painstaking care which must be taken with every claims handling decision in order to demonstrate reasonableness and  compliance with  Iowa  workers compensation law.  Thanks to I&F Partner Terry Donohue for thus summary of this 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.


WI Appellate Decision Erodes Exclusive Remedy Protection for Employers

In Re the Estate of Carolos Esterly Cerrato Rivera v. West Bend Mutual Insurance Company (No. 2017AP142),  Carlos Rivera was employed by Alex Drywall. Alex Drywall provided him as a temporary worker to Alpine Insulation. Carlos Rivera was a passenger in an Alpine owned vehicle involved in an accident while traveling from one Alpine job site to another. Carlos Rivera was killed in the accident.  The driver employed by Alpine was found to have been negligent.

The estate of Carlos Rivera filed a wrongful death action against Alpine and its insurance carrier. Alpine was successful with a summary judgement motion, and the estate appealed.

The Court of Appeals determined that a temporary worker can opt not to make a workers’ compensation claim and bring a tort claim against a host employer. The court acknowledged that, pursuant to the Wisconsin Workers’ Compensation Act, a temporary worker “who makes a claim for compensation” cannot sue the employer who hosted him in tort.  However, the court found that not allowing a temporary worker to bring a tort claim where he or she decided to not bring a workers’ compensation claim would require it to ignore the phrase “who makes a claim for compensation” or read words into the statute.

Thus, for the time being, temporary workers in Wisconsin can now sue their host employers in tort. This decision erodes the  Wisconsin Worker’s Compensation Act’s exclusive remedy provision and  exposes employers in Wisconsin to tort liability that they previously did not have or anticipate having. An appeal to the Wisconsin Supreme Court is quite possible.

Thanks to Partner Scott McCain for this update.  Scott handles both Illinois and Wisconsin claim on behalf of the firm and works from the firm’s offices in those states.


Wisconsin WC Advisory Council Recommends Medical Fee Schedule

The Wisconsin Worker’s Compensation Advisory Council, created to advise the DWD and the legislature on policy matters concerning worker’s compensation law, is recommending legislators create a medical fee schedule to reduce workers’ compensation medical costs, according to a news release from mid to late 2017.

Worker’s compensation medical costs are rising quickly in Wisconsin. According to Wisconsin Business Voice, costs in WI were 60 percent above average for injuries that required seven or more days off of work in 2014/15, the latest years studied, and 47 percent above average for all injuries, including those with less than seven days lost time. Moreover, according to Wisconsin Business Voice, if you take a three year average, medical costs in Wisconsin remained the highest in the nation at 39 percent above average; the overall amount spent on worker’s compensation medical bills in Wisconsin has more than doubled since 1994, from $314 million to $648 million in 2014.

Forty-four states have implemented a medical fee schedule to control worker’s compensation medical costs. It’s unclear whether it will gain traction in the Wisconsin Legislature.

Thanks to Partner Scott McCain for this news update.  Scott handles both Illinois and Wisconsin claim on behalf of the firm and works from the firm’s offices in those states.


Indiana Court of Appeals Broadens the Definition of Earnings in Calculating the AWW

It is well settled in Indiana that worker’s compensation is meant to benefit employees and that the Indiana Worker’s Compensation Act should be construed liberally.  According to a recent opinion issued by the Indiana Court of Appeals, in Midwest Equipment & Supply, Co. v. Garwood, this liberal construction appears to be especially true as it relates to calculating average weekly wages in Indiana.

The main issue in the Garwood case was whether bonuses should be considered earnings for purposes of calculating the employee’s average weekly wage, a calculation that is critical in determining the amount of benefits an employee receives.  It was undisputed that the employee received two bonuses totaling $21,750.  The first bonus, in the amount of $1,750, was an individual performance-based bonus.  The employee also received a $20,000 profit sharing bonus that had nothing to do with the employee’s individual performance.  The Indiana Worker’s Compensation Board and the Court of Appeals agreed that both bonuses should be included as earnings in the average weekly wage calculation.

According to Section 22-3-6-1(d) of the Act, an employee’s “average weekly wage” is defined as “the earnings of the injured employee in the employment in which the employee was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of injury, divided by fifty-two (52).”  The Act does not define earnings, nor does it specifically address whether bonuses constitute earnings pursuant to the Act.  Since the Act is silent on this issue, the Court of Appeals liberally construed the Act in favor of the employee in this case.

In its analysis, the Court of Appeals rejected the employers’ argument that the bonuses should be excluded because they were not regulated by any formal agreement, they were entirely discretionary, and the profit sharing bonus was not based on the employee’s output or performance.  While these statements may have been accurate, the Court of Appeals rejected the employer’s arguments and found that both bonuses constituted earnings, even the $20,000 bonus that had nothing to do with the employee’s individual job performance.

Given that the Act was ambiguous on the issue of including bonuses as earnings, it is not surprising that the Court of Appeals resolved this issue in favor of the employee.  Unfortunately for the employer, had this injury occurred only a few months later, beyond the fifty-two week period, the bonus would not have been included in the employee’s average weekly wage.

Thanks to attorney Dane Kurth for this important case law update.  Dane represents employers in both Illinois and Indiana on behalf of the firm.

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Efforts to Increase Illinois Medical Fee Schedule Thwarted by the IWCC

Earlier this year, the Medical Fee Advisory Board to the Illinois Workers’ Compensation Commission passed a Motion (5-3) recommending that the IWCC increase certain medical CPT coded fees by 30%.  Section 8.2 of the Illinois Workers’ Compensation Act grants the IWCC authority to make changes in the Fee Schedule when there exists “a significant limitation on access to quality healthcare in either a specific field of healthcare services [defined by CPT codes] or a specific geographic limitation on access.”  The motion asked to increase E&M codes for Levels 3, 4, and 5 in all four state regions by 30%. None of those Section 8.2 reasons was delineated when or supported by the Board, which not ironically consists of three employee representatives and two medical representatives against three employer representatives on this issue.

On December 20, 2017, the Illinois Workers’ Compensation Commission in its scheduled meeting voted 5-4 against this Motion.  The reasoning on the part of the five Commissioners in striking this motion was on the grounds that it believes the Illinois Workers’ Compensation Commission does not have authority to simply increase (or decrease) the medical fee schedule, but that this is a task reserved for the legislature.  After all, it was a legislative action that was required to institute a 30% reduction in the fee scheduled back in 2011.  We agree with the decision of the Illinois Workers’ Compensation Commission.

Thanks to Partner G. Steven Murdock  for this important Illinois update. Steve works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and chairs the Firm’s Legislative Watch Committee.



Missouri Alert: Another Reason to Insure Your New Employee is Not Undocumented

The Missouri Division of Workers’ Compensation has recently issued a decision involving an illegal immigrant.  In this case, the 34-year old claimant with an 8th grade education fell off a ladder sustaining injuries to his legs, feet, ankles and back.  He was diagnosed with compression fractures requiring the daily use of narcotics to control this pain. He was also diagnosed with PTSD and depression related to the injury. The claimant was found to be at MMI and given permanent work restrictions of less than sedentary work. One of the doctors opined that the claimant was permanently and totally disabled.   A vocational expert also opined that the claimant was unemployable due to his work restrictions and the need to lie down to reduce his pain. The employer’s expert concluded that the claimant could work on a sedentary basis.

Evidence revealed that the employer had knowledge of the claimant’s questionable immigration status.  He was a not a new employee. He also had a questionable Social Security number and he was paid in cash.

The employer unsuccessfully argued that the claimant’s undocumented status and lack of proficiency in English were important reasons as to why the claimant could not find work.  The ALJ found the restrictions of having to lie down and take narcotics daily to be credible. Despite his illegal status, the ALJ awarded him permanent and total disability benefits as the State of Missouri does not have a statutory distinction regarding immigration status and entitlement to work place injuries.

While there have been debates on whether the risk of injury should fall on the undocumented workers or on the employers who hire them, there is no law prohibiting undocumented immigrants to be entitled to permanent total disability benefits.  In this case, the employer paid the claimant with cash and ended up having to pay lots of cash to this undocumented claimant. Sanchez-Rivera v. Jorge Calderon Construction Company. 

To avoid this costly situation, employers need to take necessary precautions to ensure that their employees are legal.  The price of hiring an undocumented worker can be quite high.

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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I&F Presents at Illinois Chamber of Commerce


I&F regularly presents to clients, insurers, TPAs and businesses on matters of interest including worker’s compensation law and related issues. Here I&F attorneys Lauren Waninski and Kristin Thomas share their experiences handling WC cases in Illinois with the Illinois Chamber of Commerce.

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.



Illinois Average Weekly Wage: You Don’t Owe What You Don’t Know

The Illinois Appellate Court recently affirmed a Commission Decision in favor of respondent on the issue of whether a claimant’s concurrent wages as a pastor should be included as part of his average weekly wage calculations, in Bagwell v. Illinois Workers’ Comp. Comm’n (Nestle USA, Inc. ), 2017 IL App (4th) 160407WC, 84 N.E.3d 1149, 1151.

On June 2, 2008, the claimant injured his low back at work while lifting a box of taffy off of the ground. He was diagnosed with an L4-L5 disc herniation that was confirmed by an MRI.  On September 2, 2008, the claimant underwent surgery for same. Thereafter, the claimant continued to complain of low back and leg pain, potentially related to his L5 nerve root.  The petitioner was awarded benefits but at issue in this case was what the appropriate average weekly wage for the claimant should be.  Specifically, the respondent disputed that his wages from being a pastor should be included in his average weekly wage.

The claimant served as the pastor of a Mt. Zion Missionary Baptist Church while he was working for the Respondent. He testified that he had been Mt. Zion’s pastor for 16 years.  He was serving as Mt. Zion’s pastor during the occurrence of the work accidents involved in this case, and he was still operating as a pastor at the time of trial.

The employer here was not disputing that they were not aware that the claimant actually operated as a pastor, however, they did not realize that he was actually paid for performing these services, and did not consider to be concurrent employment.  The key evidence on the issue actually came from the petitioner’s own testimony.

“When asked by his attorney whether his supervisors and employers at [the employer] knew that he was being paid for his job as a minister, the claimant responded:

“No, they didn’t know I was being paid, because my religious position had nothing to do with [the employer]. After I put in my eight hours at [the employer] that was all I owed to them. I didn’t owe them what else I was doing in my life. So, no, they didn’t know how much money I was making.”

The claimant confirmed this testimony on cross-examination during the following colloquy with the employer’s counsel:

“Q: In response to a question from your attorney today, you indicated that [the employer] wouldn’t have known what you were paid through the ministry because it was none of their business essentially or it was personal?

A: Yes, sir, because that was a side job, that wasn’t [the employer’s] concern, what I made.

Q: Okay. I just wanted to make sure I heard that correctly.

A: Yes, yes, sir.”

Id. ¶ 11

The Commission, now affirmed by the Appellate Court, found this to be substantial enough to find that the claimant’s wages from being a pastor should not be included in his average weekly wage for the purposes of benefit rates on the case.  The claimant argued that the employer should have known that he was being paid for being a pastor, but the Appellate Court disagreed, finding that, “Moreover, as noted above, the claimant admitted that he never told the employer that he was paid for performing religious services. It was therefore reasonable for the employer to assume that the claimant performed those services on a volunteer basis.”  Id.  ¶ 29

The Appellate Court went on to explain that it was not sufficient that the respondent merely knew that the claimant was performing the services of a pastor, but that the word “employment” necessarily requires that a respondent be aware that there was payment or wages for a particular activity.

Prevailing on an average weekly wage dispute can be complex, but keep in mind that in order for concurrent employment to be included for an average weekly wage, the respondent has be aware of not only what a claimant is doing but also has to have knowledge that the claimant is actually being paid for any other work done outside of employment with the respondent.  Be sure to stay tuned to the I&F blog for regular updates on the changes and clarifications in the law affecting average weekly wage issues throughout the Midwest!

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

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Michigan Board of Magistrates Dismisses Claim Based on Res Judicata

How many Applications can a claimant file in Michigan before he faces fines? In Michigan, an injured worker seeks benefits by filing an Application for Mediation or Hearing. This is known as Form WC-104A.

In Sheikh v. Pratt & Whitney AutoAir, Inc., the claimant filed his fifteenth application for mediation or hearing following a decision by the Workers’ Compensation Board of Magistrates that he had recovered from an injury he had sustained at work for the employer. The Commission affirmed the decision by the Board of Magistrates to dismiss the application because the claimant  described the same injury and claimed he had been looking for work. The claimant failed to allege that his condition had changed for the worse since the prior decision that he had recovered.

The claimant’s application that was dismissed included the same date of injury and nature of injury as provided in his previous applications. The claimant also claimed that he had been looking for but had not found a job.

The Board of Magistrates dismissed the case based on res judicata. Res judicata applies as this  matter had already been litigated.

The Commission agreed with the Board of Magistrates noting that the claimant had filed 16 applications in which he continued to allege the same date of injury and failed to allege any change of condition to the nature of the injury.  The Commission then cautioned the claimant he may be fined if he continues to file claims without pronouncing a change of condition to the nature of the injury or other relevant issue.

Thanks to I&F attorney Lauren Waninski for the summary of this interesting case.  Lauren handles cases in both Illinois and Michigan and practices out of the firm’s Chicago and Lansing offices.


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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