IL Appellate Court Finds for Employer in Nurse’s Slip Down Stairs

Although we monitor the appellate court for all cases of importance in the states we cover, we are especially pleased to report on those cases where the courts carefully conduct the compensability analysis and produce a logical decision that can guide us in future cases. Lampert v. The Illinois Workers’ Compensation Commission, et al. (Ferrell Hospital, Appellee) is such a case. The facts of the accident are simple. The petitioner worked as a registered nurse for the Respondent. On November 26, 2012, after working a full shift at the hospital, she “clocked out” at approximately 8:00pm and headed to the parking lot where she typically parked her car. She exited the hospital to a set of carpeted, concrete stairs. As she descended the stairs, she reported that she held on to the handrail because it was dark. She slipped off the top step and fell all the way down, causing an injury to her left ankle. She was diagnosed with a left ankle fracture and underwent two surgeries.

At the time of the accident, she had a bag over her shoulder but had nothing in her hands. She described the weather at the time of the fall to be “misting and kind of sleety.” She also testified that it was dark. She admitted that the stairs and parking lot were both open to the general public as well as employees, but noted that most nonemployees used the hospital’s front door or its emergency room door to enter the hospital.

At Arbitration, the petitioner’s claim was denied as she failed to establish that her injury “arose out of” her employment. The petitioner appealed the decision to the appellate court. In a Rule 23 opinion, the appellate court affirmed the decision of the circuit court, commission, and arbitrator.

The basis of the petitioner’s appeal was two-fold: she was exposed to a neutral risk to a greater degree than the general public because (1) it was dark and the stairs were wet and slippery, creating a dangerous condition and (2) she traversed the stairs more often than the general public. The appellate court disposed of the initial argument in that the petitioner never attributed the darkness or weather conditions to the reason that she fell. Instead she simply testified that she slipped on the top step of the staircase. The interesting facet of this case has to do with how the appellate court dealt with the second aspect of her argument that she was exposed to an increased risk as compared to the general public because she traversed the stairs more often.

The court found that there was no evidence presented to distinguish the outdoor stairs claimant was traversing, even if those stairs were wet from rainfall, from any other outdoor stairway. The court did not have any evidence suggesting that the petitioner was more likely to slip and fall on her employer’s premises than she or any other member of the public would be likely to fall on any other outdoor stairway that was exposed to rainfall (citing Dukich v. Illinois Workers’ Compensation Comm’n, 86 N.E.3d 1161.)

This is a good result for all employers. As noted above, the interesting part of this decision is how the appellate court ruled regarding the petitioner’s position that she was exposed to an increased risk because she used the stairs more often than the general public. The appellate court did not blindly agree with the petitioner that just because she used the stairs at least twice a day (if not more as it was not clear from the opinion) she was exposed to an increased risk. Instead, the appellate court looked at the specific facts of the accident. The petitioner did not present any evidence that this particular set of stairs was more likely to cause a slip and fall as opposed to any other set of outdoor stairs used by the public. Interestingly, the appellate court did not conduct an analysis as to how often this particular petitioner used this particular set of stairs, limiting its review of the facts to the specifics of the stairs and the accident.

While the value of this opinion is limited as it was released under Rule 23 (cannot be cited), it does present a framework for disputing accidents for similar situations.

            Lawyer-FrankJohnston_tninman-fitzgibbons-logo-272x144Thanks 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 at the Champaign and Vermilion County Bar Associations.

Temporary Transitional Employment in Illinois WC

Few on the Respondent side of the bar would argue that there is no benefit to bringing employees back to work in a light duty capacity where that work is available.  Does the Respondent have any good available options where the employer does not have a position available within employee’s work restrictions?

Some companies, insurers, and TPAs in Illinois and other states utilize Temporary Transitional Employment programs (TTE) to facilitate an employee’s return to work in this scenario. The typical TTE scenario involves an employer unable to accommodate an employee’s light duty restrictions, but offers light duty work through another entity (i.e. a volunteer position at a non-profit such as the Red Cross). Employers will offer work through another entity in two distinct scenarios: 1) when an employer cannot accommodate an employee who has work restrictions on a temporary basis prior to reaching MMI; or, 2) when an employer cannot accommodate an employee who has work restrictions on a permanent basis after reaching MMI. This post will focus on TTE issues associated with the first scenario.

It is important to first note that TTE programs are not expressly addressed within the Illinois Workers’ Compensation Act, so guidance on this issue must come from prior Commission Decisions. There also have not been any Illinois Appellate Court decisions that directly analyze issues regarding TTE programs.

The most common issue involving TTE programs is the termination of benefits when an employee refuses a TTE assignment with another company. Employers argue that the employee’s refusal to accept the position is a valid basis to terminate benefits, but the Commission has consistently rejected with that argument. In Eric Alvarez v. Foodliner, Inc., the Arbitrator held that an employee has the right to refuse a TTE assignment and an employer cannot terminate an employee’s TTD benefits based on employee’s refusal of a TTE assignment. He further stated that “an injured worker is not required to perform TTE under the Act.” It should also be noted that if an employer terminates benefits based on an employee’s failure to participate in a TTE program, they could face additional exposure for penalties and fees.

What amount of compensation is owed to an employee who is working in a TTE program? Given that these are almost always unpaid “volunteer” positions, the employee participating in a TTE program should arguably continue to receive compensation that equals the amount of his/her TTD rate.

Bottom line for the Respondent:

Ultimately, at the current time it appears to be up to the employee to decide whether they are willing to participate in a TTE program.  That said, there is nothing in the Act that prevents an employer from offering employment through these types of programs.


Thanks to attorney Jack Arnold for the review of this issue.  Jack is based in the firm’s Chicago, Illinois office and has been an Associate Attorney with the firm since 2016 and practices in Employers Liability Defense, General Insurance Defense and Workers’ Compensation Defense.



The Illinois Workers’ Occupational Diseases Act versus the Workers’ Compensation Act

Claims under the Illinois Workers’ Occupational Diseases Act (820 ILCS 310/1, et seq.), do not arise as frequently as those under the Illinois Workers’ Compensation Act (820 ILCS 305/1, et seq.), but it is important to understand the similarities and differences between the two laws and best practices when an employee initiates a claim under the Occupational Diseases Act.

Under the Occupational Diseases Act, diseases caused by workplace exposure to hazardous conditions or substances, such as noise, chemicals, or dust, are compensated in a similar manner to accidents under the Workers’ Compensation Act. The Occupational Diseases Act is a separate law from the Workers’ Compensation Act, but is also administered through the Illinois Workers’ Compensation Commission, and the remedies provided therein are almost identical to those provided in the Workers’ Compensation Act.

Occupational disease” is defined in the Occupational Diseases Act as a “disease arising out of and in the course of the employment or which has become aggravated or rendered disabling as a result of the exposure of the employment.”  In order to establish an “aggravation” of a disease, it must “arise out of a risk peculiar to or increased by the employment and not common to the general public.”

This is similar to the “accident” element of a Workers’ Compensation Act claim, where the employee is required to show proof that he or she has sustained accidental injuries arising out of and in the course of the employment, which includes proof of an “increased risk” of injury connected with, or incidental to, the employment.

But, there are differences between the two Acts. While a disease may be compensable under the Workers’ Compensation Act if it is either aggravated or caused by accidental injury or trauma, the Occupational Diseases Act applies to diseases caused or aggravated by a “gradual insidious process.” To illustrate, compare several years of exposure to a chemical causing health problems ten years later, versus a slip and fall at work resulting in an immediate injury with a readily identifiable date of accident. The focus in occupational diseases is on “exposure” rather than on a physical accident, and the “accident date” we are familiar with in workers’ compensation claims is actually the “date of last exposure” for occupational diseases.

As another example of a difference between the two laws, the Occupational Diseases Act explicitly includes overtime earnings in the calculation of average weekly wage.

Thanks to Attorney Allison Mecher for this helpful guide to the differences between the two Acts. For more on this topic, please let us know if you would be interested in our full presentation entitled The Illinois Workers’ Occupational Diseases Act versus the Illinois Workers’ Compensation Act- Contrasts and Comparisons. In this presentation, we will discuss the Occupational Diseases Act and compare it to the Workers’ Compensation Act, highlighting similarities and differences, and the practical impact of the differences for Illinois employers.


I&F Prevails as IL WC Arbitrator Finds Petitioner is Not Permanently Totally Disabled

In a recent case before an arbitrator at the Illinois Workers’ Compensation Commission, Associate Attorney Lauren L. Waninski prevailed in defense of an alleged claim by the claimant for permanent total disability benefits. The claimant alleged that a slip and fall at work caused injuries to her knee, cervical spine and lumbar spine. The claimant testified that as a result of her injuries she required surgeries and work restrictions which rendered her unable to work for the employer.

The employer’s independent medical examiners noted the claimant had preexisting pathology to the knee, cervical spine and lumbar spine. The independent medical examiners opined the claimant’s conditions were not work related.

Additionally, the employer’s vocational rehabilitation counselor identified employment opportunities the claimant qualified for noting that she obtained advanced degrees while off of work.

The arbitrator in this case found that the claimant failed to prove the injuries sustained resulted in permanent total disability benefits. The arbitrator noted that the claimant failed to return to work for the employer and failed to show she attempted a return to work in any capacity.

Congratulations to Associate Attorney Lauren L. Waninski  and to our client on this victory, which was accomplished through diligent teamwork on the part of the employer, its third-party claims administrator and our office. Lauren works out of the Chicago, IL and Lansing, MI offices of Inman and Fitzgibbons and serves on the Firm’s Client Education Committee.


New Missouri bill proposes several workers’ compensation reforms.

Missouri State Representative Bruce DeGroot (Chesterfield) introduced a bill to the Missouri House of Representatives on January 3, 2018, which seeks to modify the state’s workers’ compensation law.  If H.B. 1693 is passed, it would become effective in August of 2018.  The bill includes numerous modifications to the Act.

The bill would require that in order for work-related stress to be compensable, the stress must be compared to the stress of employees working in the same position as the claimant.   For example, it would require the stress of a first responder to be compared to the stress of first responders in general as opposed to being compared to a general worker.

It would further prohibit any injuries sustained while traveling from the claimant’s home to work from being found to be compensable.

The bill also would eliminate the reactivation provision which allow claims to be re-opened for several reasons related to prosthetics and life-threatening procedures.

When liability is disputed, the bill allows review of temporary or partial awards by the Appellate court.

The bill further requires that the prevailing factor on occupational causes be compared to all non-occupational factors combined rather than a single non-occupational factor

The bill also would repeal a provision which prohibits employers from subrogating the rights of an employee or their dependents in certain claims in which a third party is liable to the employee or dependents.

In addition, the bill would eliminate the requirement to find recreational activities compensable when the employee is paid wages or travel expenses.

Finally, the bill surprisingly includes opening a new city Division office in Chesterfield and the potential closing of the Division office in St. Louis.

As outlined above, if passed, the bill will have significant effects on employees and employers.  While it has been read for the second time, it is not currently on the house calendar. We will continue to follow the progress, if any, of this bill.

This Missouri legislative update was brought to you by Partner Jill Baker.  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at Please feel free contact Jill with any Missouri workers’ compensation questions.

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

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

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

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

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

Congratulations to Michael Bantz. Michael works out of the Champaign office of Inman and Fitzgibbons and can be reached at

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

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

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


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

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

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

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

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

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

Thank you to The L.A. Times and reporter Karen Kaplan ( for bringing this important study to our attention.

Inman and Fitzgibbons Announces New Partners

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

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



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


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

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

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

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

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

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

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

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

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

March 15 – Naperville


April 10 – Effingham

9am – 4pm

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

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

Member Rate – $339

Non-member Rate – $389

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

Register at the Chamber’s website.

The Involvement of Nurse Case Managers in Indiana Claims

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This case illustrates the many pitfalls potentially facing an insurance carrier when handling a  catastrophic claim of this nature, and the painstaking care which must be taken with every claims handling decision in order to demonstrate reasonableness and  compliance with  Iowa  workers compensation law.  Thanks to I&F Partner Terry Donohue for thus summary of this case.  Terry handles Iowa claims for the firm and works out of the Chicago and Des Moines offices of Inman and Fitzgibbons.  Please feel free contact Terry with any Iowa workers’ compensation questions.


WI Appellate Decision Erodes Exclusive Remedy Protection for Employers

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

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

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

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

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


Wisconsin WC Advisory Council Recommends Medical Fee Schedule

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

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

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

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


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

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

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

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

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

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

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

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Efforts to Increase Illinois Medical Fee Schedule Thwarted by the IWCC

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

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

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



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

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

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

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

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

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

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

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I&F Presents at Illinois Chamber of Commerce


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

If this presentation or any other topic in WC interests you, please contact us to discuss how we can meet your association or company’s needs.  We are available to provide either live presentations or webinars on legal issues in any of the states we cover – Illinois, Wisconsin, Iowa, Indiana, Michigan, and Missouri.