A recent Illinois Appellate court had occasion to consider a mental-mental claim in Moran v. Illinois Workers’ Compensation Comm’n, 2016 IL App. (1st) 151366WC. The facts of the claim are as follows: the petitioner, a firefighter, responded to a fire with reports of a man trapped inside. Upon arrival to the scene, the petitioner was told by radio to take command of the incident. While in the petitioner’s command, a flash over occurred as firefighters were in the house. A firefighter was carried out of the house, suffered severe injuries, and later died at the hospital. Thereafter, the petitioner was told that he could not return to work until he was cleared by psychiatrists. The petitioner was diagnosed with Post Traumatic Stress Disorder, for which he began treatment within a month of the fire.
The claim went to arbitration. The Arbitrator found that the claimant did not prove that he sustained accidental injuries that “arose out of and in the course of” his employment with the employer and the petitioner was not awarded any benefits. The claim was appealed to the Commission who affirmed and adopted the Arbitrator’s decision striking one sentence. The claim was later appealed to the circuit court which confirmed the Commission’s decision.
Before we delve into the Appellate court’s decision, let’s first discuss the basics of a mental-mental theory of recovery. In such a case, an employee who suffers a sudden, severe emotional shock traceable to a definite time, place, and cause, which causes psychological injury or harm has suffered an accident within the meaning of the act, though no physical trauma or injury was sustained. A mental-mental recovery was first recognized by the Supreme Court in Pathfinder v. Industrial Comm’n, 62 Ill. 2d 556, 562 (1976). Since then, Illinois courts allowed recovery under a mental-mental theory.
Accordingly, using the standard enunciated above, the appellate court reversed the lower court’s ruling. The court found that the petitioner suffered an accidental injury as a result of the fire. It was of no consequence that the petitioner did not immediately seek treatment from a psychiatrist. The court found that although the claimant’s psychological injury was not immediately apparent, he suffered a sudden, severe emotional shock, which caused a psychological injury that manifested itself sometime after the shock. The court relied on Chicago Transit Authority v. Illinois Worker’s Compensation 2013 Il App. 120253WC, which held that if the claimant showed that he suffered a sudden, severe, emotional shock which caused a psychological injury may be compensable even if the resulting psychological injury did not manifest itself until sometime after the shock.
The Appellate court in this case is clear. When evaluating a mental-mental claim, the question of whether a petitioner’s psychological injury must be immediately apparent to recover for traumatically induced mental-mental injuries need not follow a rigid time line. Instead, courts should evaluate the circumstances surrounding the alleged accident. This fire and death that it caused in this case was a very traumatic experience. For the first time in the history of the fire department, the department ceased performing fire suppression emergency medical service operations and referred all calls to mutual aid companies for a period of approximately 10 days. In addition the petitioner was not permitted to return to work until cleared by the psychiatrist. Based up on all the evidence, the Appellate court ruled that the petitioner suffered a severe emotional shock that could be traced to the fire, and the resulting emotional shock occurred in a reasonable amount of time.
Kids’ Chance of America believes that a significant difference can be made in the lives of all children affected by a workplace injury by helping them pursue and achieve their educational goals. Kids’ Chance is a national non-profit organization which provides educational opportunities and scholarships for the children of workers seriously or fatally injured on the job.
Cumulatively, since their inception in 1988, Kids’ Chance organizations have awarded 5,479 scholarships totaling almost 14 million dollars. Kids’ Chance Awareness Week is designed to increase our visibility through special outreach events in each state that will spread the word about Kids’ Chance scholarship opportunities.
Both the City of Chicago and State of Illinois have recognized the importance of this issue and have partnered with the Illinois Chapter of Kids’ Chance and issued separate Proclamations declaring November 14-18 to be designated as “Kids’ Chance Awareness Week.”
Last week, Alderman Patrick J. O’Connor of the 40th Ward, joined Mayor Rahm Emanuel of Chicago and Alderman Howard Brookins, Jr. of the 21st Ward and Chairman of the Committee on Education and Child Development at City Hall in meeting with representatives of the Board of Kids’ Chance of Illinois to celebrate the issuance of the Proclamation.
The Illinois chapter of Kids’ Chance is proud to have been able to award eight scholarships earlier this year and are currently looking forward to the spring semester when they anticipate awarding more.
In a case heard earlier this year, the Indiana Court of Appeals found that the Indiana Worker’s Compensation Board and its single hearing member was not required to follow the recommendations of a Board appointed independent medical examiner.
In Steven Bush v. Robinson Engineering & Oil, Co. Inc, 54 N.E.3d 1073 (2016), the employee appealed an order by the Board finding that the employee did not sustain a work-related cervical injury. It was undisputed that the employee suffered a compensable work-related lower back injury on August 13, 2010. The employee was diagnosed with lumbar spondylosis and the treating physician opined that he had suffered an “exacerbation of an existing injury.” The employer authorized medical treatment and paid temporary total disability (“TTD”) benefits until April of 2013, when the treating physician placed the employee at maximum medical improvement (“MMI”).
Shortly thereafter, the employer provided notice of its intention to terminate TTD benefits. The employee disagreed with the termination and filed its written objection with the Board. Pursuant to Indiana Code section 22-3-3-7, when such a disagreement cannot be resolved by the parties, the Board “shall immediately arrange for an evaluation of the employee by an independent medical examiner.” Accordingly, the employee underwent an independent medical examination (“IME”) with a Board appointed physician.
The independent medical examiner opined that the employee’s continued symptoms were related to the August 2010 accident. Further, he opined that the employee was not at MMI and required additional treatment including MRI studies of the lumbar and cervical spine. Based on the MRI findings, the independent medical examiner recommended further evaluation by a spine surgeon with expertise in cervical spine disorders. The employer disagreed with the IME opinions related to the cervical spine and properly applied for a hearing before the Board.
At hearing, the employer presented evidence that the employee never complained of cervical injuries during his recorded statement or in his medical records prior to the IME. Despite the opinions of the IME physician, the single hearing member found for the employee and opined that he had reached MMI with respect to any work-related lumbar injuries. With regard to the cervical spine, the single hearing member found that the employee failed to prove that he sustained any injuries to his cervical spine as a result of the August 2010 accident. The Full Board affirmed the decision and employee appealed.
On appeal, the employee argued that the Board substituted its own medical judgment and erroneously disregarded the opinions from the Board appointed IME. Further, the employee argued that the language of the Indiana Worker’s Compensation Act created a presumption that the Board appointed independent medical examiner’s opinions were “presumed correct, and if a party does not present contrary evidence to rebut that presumption, the independent medical examiner’s recommendations must be followed.” The Court of Appeals disagreed with the employee and found that the Board was not bound by the findings of an independent medical examiner and can rely on other evidence in determining the credibility of the independent medical examiner.
The Appellate Court recently decided that the petitioner’s act of stepping off a concrete island onto the employer’s parking lot, while carrying a sack, did not establish a risk greater than that of the general public in McLean County Sch. Dist., Unit 5 v. Illinois Workers’ Comp. Comm’n, 2016 IL App (4th) 150248WC-U.
The petitioner, a bus driver, was walking through a parking lot to retrieve a logbook from her bus before clocking out at the end of the day. As she stepped down from a slightly raised concrete island in the parking lot, onto the normal pavement, she fell and suffered head injuries. The petitioner was carrying a sack with personal food and drink, was not in any hurry, and testified that she had not lost her balance. The evidence showed that there were no defects in the concrete island or the parking lot itself.
The Arbitrator, Commission, and Circuit Court had all found this to be a compensable accident, and in support of a finding that the petitioner had been exposed to a risk of harm greater than that to which the general public is exposed, cited four facts:
“(1) there may have been some ice on the edge of the concrete island that caused claimant to fall; (2) the accident occurred in an area not open to the general public, (3) claimant told emergency-room personnel that she “turned around quickly,” and (4) claimant was carrying a sack with food used for nourishment while she was driving the bus.”
The Fourth District Appellate Court disagreed, found that the prior decisions had been contrary to the manifest weight of the evidence, and addressed all four supporting facts. The Appellate Court clarified that the reference to ice being involved in the fall was in regard to a different fall and workers’ compensation accident that the petitioner had previously suffered, as established by a closer examination of the evidence. The Appellate court then found that whether the parking lot was off limits for the general public was irrelevant to an analysis of whether the risk faced by the petitioner was greater than that faced by the general public.
The Appellate Court also found that the ER records indicating that the petitioner had “turned around quickly” had been taken out of context, and that this finding was refuted by the petitioner’s own testimony that she was not in a hurry. The petitioner’s act of holding a sack was also found to be a red herring by the Appellate Court, as there was no evidence that holding the sack had caused the petitioner to lose her balance or to fall. Finally, the Appellate Court stressed the importance of the fact that there were no defects in the concrete island or in the parking lot pavement.
Please note that this case is both “unpublished” and was issued as a Supreme Court Rule 23 decision, meaning that it cannot be cited as precedent for future cases. However, this decision does help to clarify where the line is between situations where employees are or are not exposed to a risk greater than the risks faced by the general public. We here at I&F will be sure to keep you up to date on any future case law that indicates where the threshold is for whether an employee was exposed to a risk greater than the general public!
Thanks to attorney Michael Bantz for this case law update.
I&F partners Steve Murdock and Kevin Deuschle (pictured below with attorney Kristin Thomas) were honored to join our friends at the Illinois Chamber of Commerce for their 9th Annual Workers’ Compensation and Safety Conference on October 15, 2016.
Steve and Kevin conducted a workshop entitled Navigating a Workers’ Compensation Claim in which an audience of Illinois employers and insurance industry representatives participated in an interactive “choose you own path” work comp adventure and navigated through two typical WC claim scenarios from accident to settlement or trial with the audience voting on key decision points along the way.
In Illinois, evidence of an injured worker’s intoxication does not automatically bar entitlement to workers’ compensation benefits. However, the 2011 Amendments to the Illinois Workers’ Compensation Act did change the law in this area to make it an uphill battle for an employee to recover for injuries sustained while intoxicated. Pre-2011, the Act provided that to deny benefits, the employer had to prove that an injured worker’s intoxication was the sole cause of the accident, or the employee was so intoxicated at the time of the injury that the intoxication constituted a departure from employment. By contrast, the 2011 Amendments to the Act provide that if an employee’s intoxication is the proximate cause of the employee’s accidental injury, or the employee was so intoxicated at the time of the injury that the intoxication constituted a departure from employment, no compensation shall be payable to the employee.
Section 11 of the Act also now codifies 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: (1) there was .08% or more by weight of alcohol in the employee’s blood, breath or urine; (2) if there is any evidence of impairment due to the unlawful or unauthorized use of a controlled substance; or (3) if an employee refuses to submit to testing of blood, breath, or urine. The employee may overcome the rebuttable presumption by the preponderance of the admissible evidence that the intoxication was not the sole proximate cause or proximate cause of the accidental injuries.
Any test purporting to show intoxication must be completed by an accredited or certified testing laboratory if it is to be used as evidence at trial to determine whether the employee was intoxicated at the time of injury. The specific rules on alcohol and drug sample collection and testing adopted by the Illinois Workers’ Compensation Commission can be found at Part 92140 of the Rules Governing Practice Before the Illinois Workers’ Compensation Commission.
What does this mean for Illinois employers? From an employer’s perspective, the 2011 Amendments regarding injuries involving intoxication or drug use are certainly favorable. However, as discussed above, the rebuttable presumption only applies if there is actual evidence of the intoxication. As always, the best defense is a early and thorough investigation. During the investigative phase of any potential workers’ compensation injury, it is important for the employer to note if there is any suspicion of drug or alcohol use at or around the time of injury so that testing is completed as soon as possible and/or witness statements are taken to preserve any evidence.
We here are Inman & Fitzgibbons find it important to keep up to date on legislative matters that are not necessarily related to our areas of practice, but are still important nonetheless. The Illinois Independent Map Amendment is one such case.
The Independent Map Amendment is a citizen led effort to establish a non-partisan, independent commission responsible for drawing state legislative districts. Right now, legislative districts are drawn by state legislators. The re-drawing of districts occurs every 10 years after the Census is completed to ensure that elected officials represent roughly the same number of citizens. As part of the Amendment, the Auditor General was tasked as the reviewer of applications for the commission selection process to the proposed independent board. This detail would play a crucial role in the amendment’s fate.
In an effort to get the Amendment on the November ballot, the Independent Map Coalition collected over 563,000 signatures. The Independent Map Coalition submitted its proposal to the Secretary of State. Within five days, a lawsuit was filed to deny access to the November ballot. The lower court ruled that the Amendment was unconstitutional. Subsequently, the lawsuit was expedited through the Illinois court system until the Illinois Supreme Court, which issued its opinion on August 25, 2016.
In a split decision along partisan lines 4-3, the Illinois Supreme Court affirmed the circuit court. The Court found that the Amendment was unconstitutional and relied on Article XIV, section 3 of the Illinois Constitution, which limits any citizen-led ballot initiative to “structural and procedural subjects contained in Article IV.” The Court wrote that the Auditor General is not mentioned anywhere in Article IV of the Illinois Constitution and therefore the amendment was not limited to those structural and procedural subjects contained in this article.
The Independent Map Coalition filed a petition asking the Supreme Court to reconsider its decision, but the Court is quickly refused to do so.With this decision, it appears that the Independent Map Amendment is dead for 2016. At this stage, the issues lies with the process of an Independent Map Amendment but not with the Independent Map Amendment itself.
We will continue to update this important citizen-led initiative as developments warrant. This definitely will not be the last we hear of this effort.
Each year, the Indiana State Bar Association (ISBA) recognizes individuals for their contributions to the legal profession and the citizens of Indiana. This year, Sonia Das of I&F’s Indianapolis office received a Presidential Citation Award at the annual awards luncheon in Indianapolis on Sept. 9, 2015. The Citation was presented by ISBA President Carol M. Adinamis.
Sonia is actively involved in promoting diversity and inclusion in the legal profession. She is the current chair of the Indiana State Bar Association Diversity Committee. By special appointment, she also served on a committee, which analyzed on behalf of the ISBA, a proposed amendment to the state constitution defining marriage. Additionally, she participated in the 2015 ISBA Conclave on the Future of Legal Education and served as an at-large member of ISBA Board of Governors in 2015.
In a recent Missouri case involving “horseplay,” the claimant, Hedrick, was a mechanic who suffered serious burns resulting in a coma when he intentionally lit a can of adhesive which a coworker was holding. It caused an explosion and serious injuries to both the coworker and himself. The claimant required substantial treatment and incurred medical expenses exceeding $250,000. The claim (Hedrick vs. Big O Tires) was denied by the insurance company and the case proceeded to trial.
The claimant argued that lighting the can on fire was horseplay but that horseplay was prevalent at the workplace and therefore, the risk of injury arose out of and in the course and scope of his employment. The claimant did testify that setting a can of glue on fire was not part of his job duties, although employees sometimes used open flames as part of their job duties when safety measures were taken to ensure that no flammable materials were close by. In Missouri, a claimant is usually not entitled to workers’ compensation benefits if the claimant was involved in horseplay at the time of the accident. In this case, it was reported that injuries due to other acts of horseplay had been accepted by the employer such as greasing door knobs, blowing air at another employee in the bathroom, snapping a rag towards an employee, and placing inappropriate objects in a toolbox.
Despite the history of horseplay at work, the ALJ found the claimant “failed to demonstrate a causal connection between the duties of his employment at Big O Tires and intentionally lighting a can of glue held in a co-worker’s hand on fire with a lighter. Mr. Hedrick himself testified that there was no function of his employment at Big O Tires that involved setting a can of glue on fire.” The ALJ further stated that lighting the can on fire was an intentionally dangerous act that had nothing to do with his job duties and was extraordinarily dangerous, unlike the prior instances of horseplay which were obviously not life threatening. The Commission affirmed the denial of benefits finding that the injury did not arise from a risk associated with the claimant’s employment. It stated that “the risk bears almost no relation to the employment whatsoever. Any employee can choose to mishandle or misuse dangerous materials in such a way as to introduce new risks and hazards into the workplace; but this choice, standing alone, is insufficient to implicate workers’ compensation liability for consequent injuries sustained by such an employee.”
Interestingly, a co-worker who was also burned in the incident did receive benefits because his injury arose from an unprovoked and neutral assault. Fortunately, the Missouri Commission was able to make the correct decision in this case despite the significant injuries sustained by the claimant.
Recently, Liberty Mutual Insurance brought a $17 million insurance and common law fraud lawsuit against Marque Medicos, a Chicago-based medical practice known for treating neck and back injuries of worker’s compensation claimants, alleging fraudulent billing practices.
In its August 17, 2016 complaint against Marque Medicos, Liberty Mutual Insurance alleged that Marque Medicos billed for therapy that they did not perform and billed at inflated rates. Liberty Mutual alleged that its investigation showed that Marque Medicos had billed at higher rates for such procedures as “attended electrical stimulation,” when “unattended electrical stimulation” was actually performed, and billed for “multiple units per visit of direct one-on-one” physical therapy, when they actually performed “single-unit-per-visit group therapy.” The lawsuit alleged the practice also billed for “hands-on therapy” that was never actually performed.
Liberty Mutual was joined by 17 other insurance companies. The insurance companies seek approximately $17 million for reimbursement of payments already made and for payments “wrongfully attempted to be obtained through the use of fraud.”
Obviously, any workers’ compensation claims involving treatment from this facility (or any, really) should be carefully scrutinized. Employers or their agents should carefully review the type, frequency, reasonableness, and necessity of treatment, utilizing a medical expert if necessary. Employers or their agents should also carefully review each medical bill, analyzing whether it matches the type of treatment being rendered and whether the bill appears to have already been paid.
We are hopeful for a positive outcome in this lawsuit for Liberty Mutual and the 17 other insurance companies that have joined in the lawsuit. If Liberty Mutual is successful, it can be expected that similar lawsuits will be filed against similar medical facilities. Either way, the suit will hopefully serve as a warning for medical facilities engaging in similar practices and will quell the amount of fraudulent billing that appears to be all too common in the area of workers’ compensation.
Missouri’s Appellate Court recently ruled on a mental stress case* involving a woman who worked for the Missouri Department of Transportation and whose job required her to respond to traffic accidents. She claimed to have witnessed many disturbing events during her 20 years on the job. For example, she testified that she accidentally kicked the decapitated head of a car crash victim and listened to a child screaming while being burned to death. The employer denied the claim using the “similarly situated worker” defense and contending that her experiences were no different from other employees doing the same job. Previously, Missouri courts required that mental injury cases must be “extraordinary and unusual” when compared to “similarly situated employees.” In this case, the Commission disagreed with the employer and awarded the claimant benefits in the amount of 50% partial permanent disability. Both sides had agreed that the claimant had depression but the employer’s expert set her disability rating at 2 ½% while the claimant’s doctor set her rating between 90% and 95%. The employer appealed the decision.
On appeal, the claimant argued that based on the 2005 statutory reforms that it was no longer necessary to prove that a mental injury was extraordinary and unusual compared to other employees doing the same work to qualify for benefits. The argument required a strict reading of the law which states “Mental injury resulting from work-related stress does not arise out of and in the course of employment, unless it’s demonstrated that the stress is work related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events.” The claimant argued that there is no mention of having to compare the stress to a similarly situated employee.
The appeals court agreed that the strict reading of the law does not require a comparison to a similarly situated employee and only requires that the work stress be “extraordinary and unusual“. The court found that the events witnessed by the claimant in this case and the stress that she was under was extraordinary and unusual. The 50% partial permanent disability was affirmed.
Despite the expected intention of the 2005 reforms to reduce the number of compensable claims, this case is an example where it is having the opposite effect.
* Linda Mantia v. Missouri Department of Transportation, Court of Appeals of Missouri, Eastern Dist., Div. 3, No. ED103016, 6/14/16
Thanks to veteran attorney Jill Baker for the summary of this new development. Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at email@example.com.
Section 8(c) of the Illinois Workers’ Compensation Act provides for benefits for work-related scarring and disfigurement. Specifically, recovery is provided for “any serious and permanent disfigurement to the hand, head, face, neck, arm, leg below the knee or the chest above the axillary line…”
So, what exactly is “disfigurement” in terms of workers’ compensation? The Illinois Supreme Court has defined disfigurement as “that which impairs or injures the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms in some manner.” The Court stressed that the disfigurement must be “serious and permanent,” noting that it was not intended under Section 8(c) “to authorize compensation for every trifling mark that could be discovered by the closest inspection.” Superior Mining Co. v. Industrial Comm’n, 309 Ill. 339, 340 (1923).
Evaluating disfigurement is a highly subjective task. According to the Act, the amount of compensation for disfigurement can be determined by agreement at any time or by arbitration at least six months after the date of injury. Recovery is based on a number of weeks, paid at a rate of 60% of the employee’s average weekly wage, subject to the caps stated in the Act. The recovery determination should be made after there has been sufficient time for healing. Generally, both parties will make arrangements for a scar viewing at least six months after the date of injury, and will negotiate settlement based on the appearance of the scarring. The employer or its agent may wish to wait longer to obtain maximum healing. If the parties cannot come to an agreement, the employee may be brought before the Arbitrator for his or her informal evaluation and settlement recommendation prior to a formal Hearing.
If an employee is awarded compensation for disfigurement under Section 8(c), he or she cannot also be awarded compensation for loss of use to the person as a whole, specific loss, or permanent total disability benefits for an injury to the same body part.
Thanks to attorney Allison Mecher for this informative overview.
In this case, the claimant, an Administrative Clerk, filed a claim for repetitive trauma to his right upper extremity as the result of work duties in an office environment where he worked essentially as a shipping clerk. To complicate the claim, the claimant was a lifelong sufferer of cerebral palsy that affects his entire left side, including his left upper extremity. At trial, the claimant emphasized the time he spends at work on the computer using only his right hand and arm, but through defense witnesses, we were able to show that “time on the computer” does not equate to keyboarding on the computer. Most of the time on the computer was doing point and click with a mouse, and not much of that even. We prevailed in showing that the claimant failed to establish exposure to repetitive trauma. Medical causation was also at issue, and we were able to show that the IME, who had a detailed description of the job duties, was more credible than the treating physician, who relied only upon what he was told by the claimant. It helped that the claimant mentioned a non-occupational activity as the starting point for the symptoms, as the IME also used that as the basis for finding the condition related to that activity rather than the work activities.
Congratulations to Partner and Vice President Steve Murdock for his win, which concluded in a denial of benefits for proposed elbow and wrist surgery and a year of TTD.
The Commission recently decided that being involved in horseplay at work is not necessarily a bar to obtaining benefits. In Lisa Richmond, Petitioner v. Cambridge House of Maryville, Respondent, 14 IL. W.C. 01857, the claimant was at work when a co-worker kneed her in the back of the leg as a practical joke, causing her to fall and to suffer a leg sprain. The Arbitrator denied benefits, finding that the incident did not arise out of the claimant’s employment and that the co-worker’s prank had nothing to do the claimant’s work.
However, the Commission reversed, noting that the claimant had not been a willing participant in the prank and that “she was on the clock, on Respondent’s premises, waiting to retrieve her lunch pursuant to Respondent’s procedures, when she was excitedly greeted by a co-employee, who was also on the clock, and sustained an injury to her left knee.” The Commission cited case law supporting that the act of obtaining lunch on the employer’s premises is incidental to the employment. Most importantly, the Commission reiterated that an employee who has a practical joke played on them can still recover workers’ compensation benefits. The Commission then quoted the language from Murray v. Indus. Comm’n of Illinois, 163 Ill. App. 3d 841, 516 N.E.2d 1039 (3d Dist. 1987) that establishes that “Illinois permits the nonparticipating victim of horseplay to recover worker’s compensation benefits.”
It is crucial to examine the factual details of every claim in order to assess whether or not it is compensable. Many cases come down to small and easily overlooked facts, such as whether an injured employee was voluntarily participating in horseplay or not. As always, timely and thorough investigation of claims remains the best defense!
Thanks to attorney Michael Bantz for this case law update and if you ever have questions as to whether the facts of a case support an entitlement to benefits or a denial, don’t hesitate to contact us here at Inman & Fitzgibbons!
On Saturday, June 11th, I&F attorneys Steve Murdock, Kevin Deuschle, Lauren Waninski, Michelle Bryant and Allison Mecher, along with friends and family, ran in the annual GiGi’s Playhouse 5k to raise money for the Fox Valley Playhouse, of which Steve is currently a member of the Board. GiGi’s Playhouses are Down syndrome awareness and educational centers that provide resources, specialized teaching, and support to individuals with Down syndrome, their families and the community.
It is a basic principle of the Illinois Workers’ Compensation Act that when calculating an average weekly wage for a petitioner who has concurrent employment, and the respondent employer has knowledge of such employment prior to the injury, his wages from all such employers shall be considered as if earned from the employer liable for compensation. In other words, if a petitioner had a second job, and the employer was aware of that job, then we calculate the average weekly wage using his wages from all employers. The question is how far courts will take the concept of “concurrent employment”.
The Illinois Supreme Court was given the opportunity to address this question in the case of Flynn v. Industrial Commission, 211 2d. 546, 813 N.E.2d 119, 286 Ill.Dec. 62 (2004). In that case, the petitioner worked as an asphalt driver from early Spring through November or December for 17 years. In the off season, the petitioner would work odd jobs. During one of these odd jobs (blowing snow for the local township), the petitioner suffered a severe injury. A dispute arose as to whether to include the wages from the petitioner’s asphalt driving position or to only calculate the wages he earned blowing snow for the township.
Initially, the Court noted that despite being laid off from his position driving an asphalt truck, he had a long and consistent history of rehire as had been the case the prior 17 years. The Court found that his employment relationship was not wholly severed such that his earnings from the employment became irrelevant to the prediction of his lost future earnings and that his employment relationship with the asphalt company remained sufficiently intact such that the claimant’s past earning experience remains a valid predictor of future earning loss. Finally, the Court found that his AWW must include his earnings as an asphalt driver and for the position for which he was currently doing.
It is clear that the Supreme Court took an expansive view of the term “concurrent employment.” This provides some historical context for the rationale of the Appellate Court in the recent decision ABF Freight. The Court in Flynn did not give any additional direction to what it means when it stated that the “employment relationship remained sufficiently intact such that claimant’s past earning experience remains a valid predictor of future earning loss,” but the disagreement will turn into a factual dispute regarding the concurrent employment. In any event, Employers should heed this advice: Be aware of your employees’ work activity – all of it! – as you may end up paying for more than what you think you’re bargaining for.
Thanks to I&F attorney Frank Johnston for the reminder and update. Frank works out of the Champaign office and is a member of the Champaign County Bar Association, Vermilion County Bar Association, and a founding member of the Young Lawyers Network and Champaign County Young Lawyers division. He has presented topics to the Champaign and Vermilion County Bar Associations.
Sonia Das, who serves as the Chair of the Diversity Committee for the Indiana State Bar Association (ISBA), was recently interviewed by the Indiana Lawyer regarding diversity in the legal profession.
The ISBA is Indiana’s largest voluntary state bar association, with over 12,000 members. Sonia has served on the Diversity Committee since 2012, working with the bar association leadership addressing important diversity issues and discussing strategies to improve diversity in the legal profession. View the article here.
Sonia works out of I&F’s Indianapolis office and was recently named to the 2016 Indiana Super Lawyers list.
The WBAI held its Annual Installation Dinner on June 8, 2016 at the Hilton Chicago. Lauren will be serving a 2 year term.
The WBAI’s mission is to promote the interests and welfare of women lawyers throughout the State of Illinois. The 2016-2017 theme is “We Are the WBAI.” Adria East Mossing was installed as the 100th president of the WBAI.
The Missouri Court further muddied the 2005 reforms which attempted to restrict compensable work related injuries and awarded worker’s compensation benefits for a claimant who was injured on his lunch break based on the personal comfort doctrine. At the end of last year, the Missouri Court of Appeals affirmed an award of PTD finding that the personal comfort doctrine allowed compensation for an injury during an uncompensated lunch break. The claimant was in the employer’s lunch room eating lunch when a chair collapsed resulting in a serious back injury. The claimant had just returned to work following back surgery when he sat in the chair and it broke and he reinjured his back. Wright v Treasurer of Missouri.
The defense unsuccessfully argued that the claimant was engaged in a personal comfort of eating lunch and that the statutory reforms from 2005 abolished the personal comfort doctrine (Section 287.020.10). The personal comfort doctrine includes activities that the employer might reasonably expect employees to perform as those activities benefit the employer by allowing its workers to eat, take a coffee or cigarette break, or go to the bathroom. The respondent further unsuccessfully argued that the claimant’s weight could cause any chair to break and that he failed to show a specific work risk because he was equally exposed to collapsing chairs away from work.
The Commission found that the claimant was permanently and totally disabled as a result of his fall and prior injuries and that the injury was causally connected to the claimant’s work activities. They further found that the claimant was not equally exposed to the risk of that particular chair collapsing in his normal, non-employment life. Specifically, they stated that the only place that the claimant was exposed to that particular chair was at his employment. The Court concluded that the risk of the claimant’s injury was associated with his work and that the claimant was not equally exposed to this risk outside of his job. In effect saying, the injury occurred because the claimant was at work and not simply while he was at work.
The court further stated that the legislature did not expressly abolish the personal comfort doctrine in the 2005 reforms. “Nothing in Section 287.020.10 or in cases discussing it since indicates that the legislature sought to hinge recovery solely on the action of the employee, thereby eliminating recovery for injuries sustained during lunch on the employer’s premises.” The court found that 287.020.10 barred recovery under the personal comfort doctrine when an accident occurred off of the employer’s premises but was not a per se bar to injuries that occurred on premises when an employee is on an unpaid break. The Commission further found the collapsing chair a “hazard present in the workplace”.
In a more recent Commission case it was said “There is no provision of the Law that requires employee to prove he was “working” at the time of his accident”. The Commission will not “carve out artificial islands of non-compensability at the workplace, which islands have indistinct geographic and temporal boundaries. We deem such an approach impractical, inconsistent with the purposes of the Workers’ Compensation Law.”
This decision appears to removes the 2005 safety net that protected employers from worker’s compensation claims when a worker clocked out or went on a meal break on the premises. Now employers appear to face liability for activities not specifically work related. The only positive “break” for employers may be that they will not be sued in civil court for these injuries.
Thanks to veteran attorney Jill Baker for the summary of this new development. Jill works out of the Chicago and St. Louis offices on Inman and Fitzgibbons and can be reached at firstname.lastname@example.org.