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

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

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

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

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

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

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

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

Thanks to attorney Michael Bantz for the summary of this very important element of the practice.  Michael works out of the Champaign office of Inman and Fitzgibbons and can be reached at

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Recent Indiana Slip & Fall Claim Expands the Definition of “Neutral Risk”

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

Compensable WC claim?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This case highlights the importance for employers to seek post-surgical IMEs in cases involving documented pre-existing arthritis prior to surgery. Thanks to Partner Scott McCain for bringing this study to our attention.  Scott works out of the Chicago and Milwaukee offices of Inman and Fitzgibbons.  If you have any questions about workers’ compensation claims in Wisconsin , please feel free to reach out to Scott.


2017 Iowa WC Changes Now in Play!

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


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



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



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


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


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



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


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


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


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


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


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


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


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


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


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


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

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


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

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

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

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

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


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

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

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

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

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


IL Gov. Rauner Vetoes HB 2525

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


Photo courtesy of Chicago Tribune

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

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

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

We will continue to monitor the status of this bill.

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

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I&F Announces Opening of Michigan Office

I&F is extremely happy to announce that we have extended our services to the state of Michigan with the opening of a new office in Lansing.


Our new office is located at 120 North Washington, Suite 300, in Lansing and can be reached at 517-234-4700.

Attorneys Jynnifer Bates and Lauren Waninski will serve the firm’s clients from the Michigan office and, like our offices in Illinois, Wisconsin, Missouri, Indiana, and Iowa, all areas of the state are covered.

Rauner Vetoes Bill to Create Illinois State Chartered NFP WC Insurance Company

On Friday August 18, 2017,  Illinois Governor Bruce Rauner vetoed HB 2622, which created a state-chartered, not-for -profit workers’ compensation insurance company.


*Photo credit to Chicago Tribune

Rauner said, “Today I veto House Bill 2622 from the 100th General Assembly, which will create a state-sponsored workers’ compensation insurance company. This bill will also require the Department of Insurance to provide a loan of $10 million out of the operations fund of the Workers’ Compensation Commission to capitalize the new organization.

Illinois currently has the most competitive market for workers’ compensation insurance in the country with over 300 participants. Maintaining this state of affairs is in the best interest of every employer and job creator required to purchase this insurance.

This legislation would instead disrupt the functioning market by inserting new and unnecessary layers of government interference due to an unfounded belief that the current competitive system is broken. Furthermore, this bill would divert needed funds from the Workers’ Compensation Commission, which could impact the backlog of cases and increase the cost of claims. The $10 million loan it this legislation demands of the Commission is not likely to have any meaningful impact in providing better access to affordable insurance.

This bill does nothing to address the actual cost drivers and broken aspects of our workers’ compensation system, which are significant contributors to the flight of businesses and jobs from Illinois and obstacles to the efficient and effective system that injured workers deserve. Instead it directs attention at a fabricated problem.

Therefore, pursuant to Section 9(b) of Article IV of the Illinois Constitution of 1970, I hereby return House Bill 2622, entitled “AN ACT concerning regulation,” with the foregoing objections, vetoed in its entirety.”

IWCC Announces passing of Arbitrator Robert Falcioni

From the IWCC:

The Illinois Workers’ Compensation Commission and the entire Workers’ Compensation community are saddened at the passing of Arbitrator Robert Falcioni.  Robert joined the Commission as a staff attorney in 1994.  He became an Arbitrator in 1997 and loyally served the State of Illinois for over 20 years.   On behalf of the entire Workers’ Compensation community we would like to extend our deepest sympathies to the Falcioni family.  

Arrangements for services are:

Visitation – Tuesday, August 22, 2017; 2:00PM-8:00PM

Location- Kerr-Parzygnot Funeral Home, 540 Dixie Highway (at Orr Road), Chicago Heights, Il 60411, Glenwood, Illinois

A mass will follow on August 23.

Inman & Fitzgibbons joins the workers’ compensation and legal community in Illinois in offering our condolences to Arbitrator Falcioni’s family.

I&F Prevails where Illinois Appellate Court Upholds Finding that Firefighter’s Need for New Knee Not Related to Work Accident

Our office is pleased to report the receipt of a favorable Decision from the Illinois Appellate Court, First District.  In this case, the petitioner, a firefighter/paramedic, sustained a compensable work related accident injuring his right knee and underwent surgery.  Following surgery, therapy, and an FCE, his treating doctor found him at MMI. Four months later, the petitioner returned to the doctor who noted end-stage degenerative changes and recommended a  total knee replacement (TKR). Our client denied the need for the TKR based on the opinion of our IME, who opined that the accident only temporarily aggravated the chondromalacia and that the need for a TKR was not related to the accident.  The case proceeded to trial and the arbitrator found the petitioner’s right knee condition causally related to the work accident and awarded prospective medical care including a total knee replacement and further found our IME opinion to be not persuasive. She further awarded over 100 weeks of TTD benefits.

After oral argument, the Commission disagreed with the decision of the Arbitrator and found that the petitioner had evidence of bone-on-bone anterior compartment osteoarthritis at the time of surgery.  The Commission further found the petitioner was at MMI on February 17, 2012, despite indications that there was significant arthritis which would severely impact his ability to work as a firefighter. The Commission relied on the opinion of the IME that the work accident only temporarily aggravated the petitioner’s  pre-existing chondromalacia.  The Commission concluded that the petitioner reached MMI on February 17, 2012 and awarded only 30 weeks of TTD benefits.  The Commission further vacated the award for prospective medical care including the knee replacement.

The petitioner took this case to the Circuit Court of Cook County where the decision of the Commission was affirmed.  The petitioner then appealed the matter to the Appellate Court. Following the filing of briefs and the oral argument, the Appellate Court unanimously agreed to confirm the decision of the Circuit Court and Commission.  In the decision, the Court affirmed the Circuit Court’s judgment, confirming the Commission’s decision and remanding the matter to the Commission for further proceedings. The Court found that there was evidence that claimant’s work-related accident caused only a temporary aggravation to a preexisting degenerative knee condition and no evidence directly linking claimant’s current condition of ill-being in his right knee (and his need for knee arthroscopy) to the work-related accident. The Court found that the Commission’s determination of no causal connection was not against the manifest weight of the evidence. The Court further found the IME’s opinion as to MMI credible, persuasive, and supported by the medical records. Therefore, it found that the record supported the Commission’s finding that claimant was only entitled to TTD benefits from July 20, 2011, through February 17, 2012, and its decision was not against the manifest weight of the evidence The court also found that there was no evidence in the record that petitioner’s need for prospective medical care is related to his work injury.

The Appellate Court’s decision provides a significant savings for our client in regard to TTD benefits as well as  future medical expenses including the need for a total knee replacement.

Congratulations to attorney Jill Baker for the excellent result.  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at

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Village’s Denial of PSEBA Benefits Upheld by Illinois Appellate Court

In Wilczak v. The Village of Lombard, 2016 IL App (2d) 160205 (December 5, 2016), the Second District Appellate Court affirmed a Village’s denial of benefits under the Illinois Public Employee Benefits Act (“PSEBA”) (820 ILCS 320/1, et seq.). Under PSEBA, Illinois municipalities and fire protection districts must provide lifetime health insurance benefits to public safety officers, and their spouses and dependents, who receive a line-of-duty pension for an injury sustained while responding to what is reasonably believed to be an emergency. In Wilczak, the Court determined that the firefighter applicant failed to show that he was responding to what was reasonably believed to be an emergency.

The firefighter applicant in this case sustained an injury to his shoulder while lifting a disabled man from the floor to the bed. He was unable to work following treatment for his injury, and was granted line-of-duty disability benefits, pursuant to the Illinois Pension Code. He then applied for PSEBA benefits, but the Village declined his request. The firefighter filed a complaint for declaratory judgment, arguing that he was entitled to PSEBA benefits because his injury occurred during what he reasonably believed to be an emergency. The trial court granted the Village’s motion for summary judgment, and the firefighter appealed.

On appeal to the Illinois Appellate Court, the issue was whether the shoulder injury was sustained in response to what was reasonably believed to be an emergency. The Court cited Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL 110012, wherein the Illinois Supreme Court defined an emergency under PSEBA as an “unforeseen circumstance involving imminent danger to a person or property requiring an urgent response.”

In applying this definition, the Court noted that the injury occurred while the firefighter was dispatched for an invalid assist, and that the firefighter should have been aware from the beginning that the dispatch call did not involve an emergency. Notably, the Court acknowledged that the firefighter subjectively believed that he was responding to an emergency, but that even if the firefighter did believe there was an emergency initially, once he arrived at the scene, he would have known it was not an emergency as the disabled man was not injured and did not require medical attention. The Court also noted that although the man needed to be moved, he was not in imminent danger and no unforeseen circumstances arose during the response. The Court concluded that the firefighter’s belief that he was responding to an emergency was not reasonable and upheld the Village’s denial of PSEBA benefits.

Generally, the scope of PSEBA’s applicability has been construed liberally in Illinois courts. The Wilczak case is an example of a case where the Appellate Court limited the scope of PSEBA, and is an important case for municipalities and fire protection districts to be aware of.

Thanks to attorney Allison Mecher for the excellent summary of this important case.  Allison works out of the Chicago offices of I&F.

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Smoking breaks, pigeons lead to the eventual death of a County Investigator and a cloudy workers’ compensation claim in Missouri

Terry Lankford brought a workers’ compensation claim in Missouri for the development of pneumonia and chronic obstructive pulmonary disease due to developing a breathing fungus and bacteria associated with pigeon droppings. Lankford, a heavy smoker, worked as an investigator for the county. He stated that when he started working for the county that he would initially smoke in a basement area provided for that purpose. He was subsequently advised that he had to smoke outside.  He began going up to the courthouse roof to smoke as he claimed it helped him clear his mind. He stated that he also worked up there meeting with prosecutors and witnesses.  He denied any prior lung issues. The roof contained pigeon droppings which have bacteria that have been known to cause lung infections and lung damage such as COPD and pneumonia. The claimant claimed that he developed pneumonia and recurrent bronchitis symptoms because of the exposure to the fungus in the pigeon droppings on the roof.   During his case, Lankford died and his wife continued with the claim.

Earlier this year, the Missouri Court of Appeals found that in the case of Lankford v. Newton County, the claimant sustained an injury arising out of and in the course of his employment which led to his death from complications of pneumonia and COPD.

The facts showed that Lankford was a heavy smoker. It was determined that the county allowed him to initially smoke in the basement of the building. He was subsequently told that he had to smoke outside.  While he chose to smoke on the roof of the courthouse, he did often meet with other county employees and prosecutors to discuss cases. The claimant’s medical expert testified that while the smoking made him more susceptible to developing the lung issues, the prevailing factor causing his COPD and pneumonia was his frequent exposure to the pigeon droppings.   The defense experts testified that the pigeon droppings could also be could be found elsewhere and that he may have been exposed just as much while he was away from work. In addition, an infectious disease doctor testified that the claimant could have contracted the disease from occupational or non-occupational exposure and he could not conclude that it was more likely work related.  An internist also concluded that the prevailing factor was the claimant’s smoking.

The Missouri ALJ hearing the case ruled that the frequent exposure to the pigeon droppings while at work on the roof of the courthouse was the prevailing factor that caused his COPD and pneumonia that infected him and eventually killed him. He was awarded total disability benefits and the employer was ordered to pay back benefits of $167,811 as well as benefits to the widow.  The case was appealed to the Missouri Labor & Industrial Relations Commission.  The employer argued that the claimant failed to prove he was exposed to the pathogens that caused his occupational disease to a greater extent or degree than workers in normal, nonemployment life. The Commission found that rather than proving equal exposure, in occupational disease cases, the claimant must simply demonstrate that the disease he suffered is not an “ordinary disease of life to which the general public is exposed outside of employment.” The ALJ decision was affirmed. The case was brought before the Southern District Missouri Court of Appeals.  The employer argued that the Commission erred when it reached the legal conclusion that the claimant had no burden to show he had a greater exposure at work than exposure away from work applying the “equal exposure” defense.   The Appellate Court affirmed that this was not a required element to prove an occupational disease.  It affirmed the decision and found that the occupational disease contracted by the claimant was not “an ordinary disease of life to which the general public is exposed outside of the employment.

This decision certainly appears to open the door for additional occupational claims and further lessens the causation standard in that the claimants may not need to show that they have an increased exposure at work but only that they have a disease which is not an ordinary disease in which the general public is exposed.  We will continue to monitor these types of cases to determine if future Missouri cases continue down this path of lessening the causation standards.

Thanks to attorney Jill Baker for summarizing this important new development in Missouri..  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at

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Use of Opioids in Wisconsin WC is Low and Aims to go Lower

As everyone involved in the administration of workers’ compensation claims knows, pain medication, particularly opioids, are notorious medical cost-drivers.  This is especially true when calculation potential liability or exposure for taking the interest of Medicare into account.  Wisconsin, however, seems to be making progress with respect to curbing the tide of opioid abuse. According to a recent multi-state study of non-surgical workers’ compensation claims between 2009-2015 by the Workers Compensation Research Institute, injured workers’ in Wisconsin are using fewer opioids for pain than in the other states studied (Arkansas, California, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, and Virginia).

However, the study indicated that 6% of workers injured in Wisconsin received a potentially deadly mix of drugs; particularly opioids mixed with benzodiazepines or other central nervous system depressants. This deadly mix increases the chances of overdose death.

In April 2017, a prescription drug monitoring program law went into effect; urging doctors to “start slow and go low”  with respect to the amount and time frame of opioid prescriptions.  This law was not in effect at the time of the study.

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 and will continue to monitor the effects of this new law.  If you have any questions about workers’ compensation claims in Wisconsin , please feel free to reach out to Scott.


Illinois’ General Assembly to Override Governor Vetoes to Pass a Balanced Budget, but Forgot About WC Reform

Happy birthday, United States of America, land of the free, home of the brave!  We hope all of you enjoyed a nice holiday weekend and a fireworks extravaganza for the 4th of July.  While most of you were relaxing with family and friends, we continued to monitor the activities in Springfield, which included the Senate remaining in special session on our national holiday.  (Too many of the House reps played hooky that day to have a quorum, so the House took the day off.)


You’ve been following our posts regarding proposed workers’ compensation reform bills that have been offered by both sides of the aisle.  Some of these represent true workers’ compensation reform, and some of the bills are basically “fake reform,” essentially formalizing existing case law.  At the beginning of the year, the plan was called the “Grand Bargain,” in which both parties would give and take to come to a balanced budget and at the same time enact some of the Governor’s “Turnaround Agenda” items, which included terms limits, pension reform and workers’ compensation reform among others.

What you may not realize, that two of the bills within the Grand Bargain, Senate Bill 6 (spending/allocation bill) and Senate Bill 9 (revenue bill) (SB 6 and SB 9) were included in that 14-bill package of the Grand Bargain where “this bill only become law if” all other bills in the Grand Bargain also become law.  (Workers’ Compensation reform was included in SB 12.)  But in May, House Democrats took the Senate Democratic sponsored bills 6 and 9 and unbundled them from the Grand Bargain. And the push to pass those bills continued through June.  When the legislation was presented in June it was $5B out of balance in the red, and it was clear that this would not pass the Governor’s desk, if it would even pass both houses.  Oh, by the way, all talk of pension reform, term limits, and workers’ compensation reform fell on deaf ears once the days leading up to the end of the fiscal year on June 30th began to tick into single digits.

So SB 6 was amended by permanently increasing personal and business income tax by . . . yes, $5B in revenue.  Viola!  The legislature now had a valid balanced budget without any spending reform.  If you think about it, this could have been proposed two years ago, but I digress.

The bills as amended passed in the House on July 2nd with the Senate concurring with the House amendments on July 4th sending the bills to Governor Rauner for signature the same day.  Then came the figurative fireworks in Springfield.  Governor Rauner as promised vetoed both bills on July 4th, and the Senate promptly that same afternoon passed a Motion on each bill to override the vetoes.  The bills then were sent to the House, which was not in session that day, for the same process.  Apparently the House was not as aggressive about its override as it took all of July 5th to add to the anticipation of what is to come, and that brings us to today, July 6, 2017.  The House is expected today to debate and vote on its Motions filed to override the Governor’s vetoes, and based upon the votes the House had on each bill on July 2nd, it is expected to be a done deal by the end of the day.

What does this mean for Illinois citizens and businesses?  Quite simply, it’s going to cost more to reside and do business here, and the State will continue to spend as it has for decades.  But the good thing is that with a balanced budget for the first time in years, the State will thrive and continue on, avoiding junk bond status.  Or will it?  That debate will continue for some time to come, but as the Wall Street Journal reported yesterday, “Indeed, a major rating firm said Wednesday that it continues to look at a possible downgrade of the state’s credit rating to a level no state has ever seen.” (“Illinois Budget Deal Would Leave Many Problems Unaddressed,” Quint Forgery and Heather Gillers, July 5, 2017).Illinois Junk State

Let’s hope the state’s citizens remember next election how we got here and that we make the effort to cure decades of mismanagement in Springfield by electing legislatures that will take responsibility to make those hard decisions, not the ones that assure reelection.  As for workers’ compensation reform?  We’ll let you know if they pull those bills out of the file cabinet in which they were tossed a few weeks ago.

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G. Steven Murdock has been an attorney with Inman & Fitzgibbons for 20 years, a partner for 13 of those and named Vice President in 2015. He also serves as the firm’s liaison to the Illinois Chamber of Commerce’s Employment Law and Worker’s Compensation Committee and monitors and provides input on pending legislation in Springfield affecting our practice.

Appellate Court Reevaluates Post-termination TTD

The Illinois Third District Appellate Court has taken another look at whether TTD is warranted when a claimant with restrictions is fired.   In the recent case of Holocker v. Illinois Workers’ Comp. Comm’n, 2017 IL App (3d) 160363WC, the Court found that the claimant’s restrictions did not significantly interfere with his ability to find a new job after being terminated.  TTD benefits for that period were not awarded.

In this case, the claimant was a transportation operator who suffered an accident while operating a crane, when a broken strap from the crane struck him in the face and chest, causing broken teeth, multiple facial fractures, and chest bruises.  After the petitioner has been released to full duty work for his physical capabilities, he began experiencing anxiety and panic attacks when having to operate a crane at work.  The claimant underwent psychological treatment for this anxiety and was restricted from operating cranes.  Respondent accommodated this restriction, providing him with other duties until the claimant was eventually fired because he had failed to show up for work or to call in for three days in a row.

Due to his restriction that prohibited him from operating cranes, the claimant asserted that, after being fired, he was entitled to TTD.  The Commission and Appellate Court disagreed.  The Appellate Court gave significant weight to the employer’s vocational expert, who testified that being restricted from operating cranes did not impact the claimant’s ability to find a new job.  Of crucial importance, the Court here distinguished this case from Interstate Scaffolding and Matuszczak (two cases where TTD was awarded after a claimant with restrictions was fired), stating that, “in each of those cases, it was undisputed that, at the time of termination, the claimant’s condition had not stabilized, that the claimant was unable to perform the job he had been performing for the employer prior to the work accident, and that when the claimant returned to work after the accident, it was in a light duty capacity. Thus, in each case, it was undisputed that the claimant’s work injury had diminished his ability to work, thereby entitling him to collect TTD benefits at the time of his termination.”

The Court further found that, by the time the claimant here was terminated, his work injuries had “no effect” on his employment situation.  The Court emphasized that, when analyzing TTD, “the test is whether the employee remains temporarily totally disabled as a result of a work-related jury and whether the employee is capable of returning to the work force” 

This case is a significant development in case law regarding TTD, and indicates an increased willingness of the Courts to not merely ask whether or not a claimant has restrictions, but to instead examine and analyze the type of restrictions that a claimant has, and whether it realistically impacts their employment situation.  Be sure to stay tuned to the I&F blog for regular updates on the changes and clarifications affecting Workers’ Compensation law throughout the Midwest!

Thanks to attorney Michael Bantz for the summary of this very important case.  Michael works out of the Champaign office of Inman and Fitzgibbons and can be reached at

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IL Special Legislative Session and Competing Workers’ Compensation Bills

Governor Bruce Rauner called a 10-day Special Session of the Illinois Legislature. The purpose of the Special Session is to address the on-going budget stalemate. In preparation for the Special Session, Republican Legislators unveiled a package of bills to address multiple issues, including Workers’ Compensation Reform. HB 4068 is the Republicans’ compromise bill in response to HB 2525, a Democratic backed bill that was previously approved by both chambers along a party line vote (the bill has not been sent to Governor Rauner’s desk for signature for fear of veto). Without going into the minutiae of both bills, HB 4068 can be viewed as being more favorable for Employers, while HB 2525 can be viewed as being more favorable for Employees.

The Special Session began on June 21, 2017 and can last up to 10 days, which brings it up against the start of the 2018 fiscal year. Both sides have expressed a sense of urgency at starting the 2018 fiscal year without a budget, and the Workers’ Compensation bill is a large piece of the budget. HB 4068 is currently being heard in the House Labor Committee and more testimony is expected.

Inman & Fitzgibbons supports HB 4068. Registered Employers can show their support for HB 4608 here.

Stay with us as we will continue to provide updates of this legislation.

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

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Missouri WC Repetitive Trauma Update – Statute of Limitations: When does the clock start ticking?

There are often issues relating to the statute of limitations in carpal tunnel and other repetitive trauma cases.  When does the clock actually start ticking?  The Missouri Court of Appeals recently addressed this exact issue in the case of Lisa Cook v. Missouri Highway & Transportation Commission.   The claimant worked as a secretary for a government agency and spent between 85-90% of her time performing data entry on a computer.  She began working as a secretary for the agency in 1997.   She first started having wrist issues in 2005 and sought medical treatment. Her family doctor noted that her work involved repetitive movements of the wrist.  The claimant suspected she had bilateral carpal tunnel syndrome. She underwent a nerve conduction study which was normal and she was advised that she did not have carpal tunnel syndrome. In September of 2007, she had wrist pain and swelling and was sent by her employer for treatment. She was diagnosed with extensor tendinitis of wrists and right elbow and over-use tendinitis. She was treated with splints and anti-inflammatories. By late November 2007, she had no symptoms.  She was not diagnosed with carpal tunnel syndrome.  In 2011, she sought additional medical treatment for wrist problems in 2011 and a nerve conduction test revealed nerve damage in her wrists and she was diagnosed with carpal tunnel syndrome. She underwent bilateral surgeries in 2012.  She filed her claims in 2012.

The case was denied by the employer based on an opinion that there were underlying medical risk factors which caused the carpal tunnel syndrome including diabetes, hypertension, age, sex, and gender.  The claimant sought medical treatment on her own.  She underwent bilateral carpal tunnel releases in 2012 and her doctor opined that the bilateral carpal tunnel syndrome was primarily caused by her 14 years of repetitive work for her employer.

Depositions were taken and the case proceeded to trial before an administrative law judge who found that that her work was the primary cause of the carpal tunnel syndrome.  The decision was appealed and subsequently affirmed with the court finding a compensable injury and also finding that she had filed a timely claim.  The employer appealed the decision to the Missouri Court of Appeals arguing that the work was not the prevailing cause of the carpal tunnel and that the statute of limitations barred her claim.  The employer argued that the claim should be barred by the statute of limitations as her condition was reasonably discoverable both in 2005 and 2007, more than two years prior to the 2012 filing of her claims.  The employer argued that the statute of limitations started running as soon as the employee found out that she had carpal tunnel syndrome.

Missouri statute states that the 2-year claim filing deadline does “not begin to run on an occupational disease such as carpal tunnel until it becomes reasonably discoverable and apparent that an injury has been sustained relative to such exposure [to repetitive motion work].”

The court held that the issue as to when the clock on the filing deadline begins to run is not when the employee first realizes they have carpal tunnel syndrome, but when the employee should first become aware that their carpal tunnel syndrome was caused by their exposure to repetitive work.  The court noted that the doctor hired by the employer told her that she had carpal tunnel syndrome but he also stated that it was not primarily related to her work.  The court held that the statute of limitation clock does not start running for carpal tunnel cases when the injured worker is diagnosed with carpal tunnel but it starts running when it becomes reasonably apparent to the employee that the carpal tunnel syndrome was work-related and related to the repetitive work.  In this case, the statute did not start running until 2012 when she was diagnosed with carpal tunnel syndrome and a doctor opined that the condition was related to her work.

This case requires a close watch on the time of the medical diagnosis and causation opinions. It may also require employers to keep repetitive trauma cases, without filed Claims for Compensation, open longer as the statue may not necessarily run two years after the carpal tunnel diagnosis.  Please contact us with any questions about this case or any other Missouri workers’ compensation issues.

Please feel free contact us with any Missouri workers’ compensation questions. Thanks to attorney Jill Baker for the summary of this case.  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at

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Indiana Employer and Its Subsidiaries Protected by the Exclusive Remedies Provision of the Act

In Brenda Hall v. Dallman Contractors, LLC, 51 N.E.3d 261 (2016), the Indiana Court of Appeals recently addressed whether an employee could pursue a negligence action against a subsidiary of AT&T, Inc., after she had already received a worker’s compensation settlement from her employer, Ameritech.  The Court of Appeals answered in the negative, barring further recovery pursuant to the exclusive remedies provision of the Indiana Worker’s Compensation Act.

In this case, there was no dispute regarding the fact that the employee injured her arm while working for Ameritech.  The injury occurred when she fell over the snow-covered legs of a construction sign located in a walkway that was adjacent to a construction project at the Indianapolis AT&T building.  As a result of said injuries, the employee received worker’s compensation benefits and eventually settled her claim.

In addition to settling her worker’s compensation claim, the employee filed a third party negligence claim against Dallman Contractors, LLC and AT&T Services.  In 2012, AT&T Services argued that the employee should be barred from recovery under the exclusive remedies provision of the Act.  The trial court agreed and granted summary judgment for AT&T Services.  Thereafter, the Court of Appeals reversed and remanded the case to the trial court to address the factual question of whether AT&T Services was a joint employer.

Pursuant to Section 22-3-6-1(a) of the Act, “a parent corporation and its subsidiaries shall each be considered joint employers of the corporation’s, the parent’s, or the subsidiaries’ employees.”  The exclusive remedies provision of the Act, located at I.C. 22-3-2-6, states that the rights and remedies granted to an employee under the Act “on account of personal injury or death by accident shall exclude all other rights and remedies of such employee … at common law or otherwise, on account of such injury or death.”  In its second motion for summary judgment, filed in 2014, AT&T Services presented evidence that both Ameritech and AT&T Services were subsidiaries of AT&T, Inc.  The trial court also found that Ameritech and AT&T Services were joint employers.  Once again, the trial court granted summary judgment for AT&T Services and the employee appealed.

In its opinion, the Court of Appeals affirmed the trial court’s summary judgment.  In so finding, the court agreed that AT&T Services was a subsidiary of AT&T, Inc. and, as a result, was also a joint employer.  As a joint employer, AT&T Services was protected by the exclusive remedies provision of the Act and the employee was barred from further recovery from AT&T Services.

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

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