Refused Drug Test Results In No Benefits

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Congratulations to Colin Mills on this favorable outcome!

 

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

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

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

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

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

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

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

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

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

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

Now go ahead and read that blog post.

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

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

Japanese Insurance Company to Replace Claim Reps with Artificial Intelligence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Thanks to partner Terry Donohue for the summary of this important Iowa case. Terry handles Iowa claims for the firm and works out of the Chicago and Des Moines offices of Inman and Fitzgibbons.  Please feel free contact Terry with any Iowa workers’ compensation questions.

 

I&F secures favorable decisions in 3 consolidated cases

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

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

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

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

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

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

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

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

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Subsequent Injuries: Breaking the Chain of Causation

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

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

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

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

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

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

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

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

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

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

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

The case, Fogerty v. Armstrong, can be found here. Please feel free contact us with any Missouri workers’ compensation questions. Thanks to attorney Jill Baker for the summary of this case.  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at jbaker@inmanfitzgibbons.com.

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Repetitive Trauma Cubital Tunnel Claim Rejected by Arbitrator

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

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

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

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

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

Congratulations to Dane for the excellent result.

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I&F Convinces Commission to Reinstate Permanency Award in lieu of Permanent Total

In a case appearing for the 3rd time before the IWCC, the Commission reinstated its prior permanency award instead of original Permanent Total award. In a case that was initially tried in September 2007, the Arbitrator found the claimant to be permanently and totally disabled and the decision was affirmed by the Commission.

Following our successful appeal to the Circuit Court, the Commission’s original decision was set-aside and remanded by the Circuit Court due to “a substantial sparsity of objective evidence . . . most, if not all of the physicians’ findings are based on petitioner’s subjective statements.” In this case, the petitioner, a 41-year old nurse, was assisting a resident when the resident fell backward on top of the petitioner on a carpeted floor on May 1, 2004. Accident was not disputed. The petitioner experienced immediate pain in her tailbone area. X-rays taken on that day did not reveal a coccyx fracture. Later x-rays, MRI scans and bone scans all revealed no fractures. The petitioner was diagnosed with a tailbone contusion but claimed extreme disability and never returned to work.

In a March 2010 decision, the Circuit Court further noted that the Arbitrator based her permanent and total disability award on a September 26, 2006 letter to the petitioner’s attorney from a treating physician who indicated that he did not believe that [the petitioner] could work as she appeared disabled and could not sit or stand for any length of time.” However, the Arbitrator did not address the rest of the same letter, in which the doctor indicated that “he did not have any objective findings, either radiological or physical, to explain her symptoms.” The Arbitrator did not comment on the seven medical opinions advising that the petitioner did not need further treatment and was at MMI. The Circuit Court was very critical of the lower courts in its decision setting aside the Commission’s decision. The Circuit Court advised the Commission on remand to “weigh the medical evidence and draw inferences from the testimony of the claimant and exhibits admitted into evidence.” The Court noted that it was “concerned about the disconnect between the lack of objective findings and the subjective complaints of [the petitioner] together with the lack of discussion of this important factor by either the Arbitrator or the Commission.”

In 3+ years following the Circuit Court set-aside the decision and remanded the case back to the Commission, in which time the claimant did not secure a briefing schedule or oral argument date, the Commission issued a new decision in April 2013 and awarded 20% MAW and 97 weeks of TTD benefits. The claimant appealed to the Circuit Court, and in October 2015, argued that the claimant’s due process rights were violated since she was not allowed to file a brief or participate in oral arguments at the Commission before a new decision was rendered. The Circuit Court agreed and vacated the April 2013 Commission decision and remanded the case back to the Commission for briefs and oral argument.

Following briefs and oral arguments by both parties before the Commission, the Commission issued a decision (for the 3rd time) in November 2016 and essentially reinstated its complete and well-reasoned decision to award permanency benefits in lieu of a Permanent Total award.

The Petitioner has appealed to the Circuit Court for a 3rd time.

Congratulations to I&F Partner Mark Carter for the excellent result.

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Governor Rauner Announces New Arbitrator Appointment

Governor Bruce Rauner has appointed Mr. Michael Glaub as an arbitrator for the Illinois Workers’ Compensation Commission.  Mr. Glaub brings nearly 30 years of experience in workers’ compensation law to the Commission.  Mr. Glaub is a graduate of the Southern Illinois University and DePaul University Law School.

Illinois Appellate Court Examines Mental-Mental Claim

A recent Illinois Appellate court had occasion to consider a mental-mental claim in Moran v. Illinois Workers’ Compensation Comm’n, 2016 IL App. (1st) 151366WC. The facts of the claim are as follows: the petitioner, a firefighter, responded to a fire with reports of a man trapped inside. Upon arrival to the scene, the petitioner was told by radio to take command of the incident. While in the petitioner’s command, a flash over occurred as firefighters were in the house. A firefighter was carried out of the house, suffered severe injuries, and later died at the hospital. Thereafter, the petitioner was told that he could not return to work until he was cleared by psychiatrists. The petitioner was diagnosed with Post Traumatic Stress Disorder, for which he began treatment within a month of the fire.

The claim went to arbitration. The Arbitrator found that the claimant did not prove that he sustained accidental injuries that “arose out of and in the course of” his employment with the employer and the petitioner was not awarded any benefits. The claim was appealed to the Commission who affirmed and adopted the Arbitrator’s decision striking one sentence. The claim was later appealed to the circuit court which confirmed the Commission’s decision.

Before we delve into the Appellate court’s decision, let’s first discuss the basics of a mental-mental theory of recovery. In such a case, an employee who suffers a sudden, severe emotional shock traceable to a definite time, place, and cause, which causes psychological injury or harm has suffered an accident within the meaning of the act, though no physical trauma or injury was sustained. A mental-mental recovery was first recognized by the Supreme Court in Pathfinder v. Industrial Comm’n, 62 Ill. 2d 556, 562 (1976). Since then, Illinois courts allowed recovery under a mental-mental theory.

Accordingly, using the standard enunciated above, the appellate court reversed the lower court’s ruling. The court found that the petitioner suffered an accidental injury as a result of the fire. It was of no consequence that the petitioner did not immediately seek treatment from a psychiatrist. The court found that although the claimant’s psychological injury was not immediately apparent, he suffered a sudden, severe emotional shock, which caused a psychological injury that manifested itself sometime after the shock. The court relied on Chicago Transit Authority v. Illinois Worker’s Compensation 2013 Il App. 120253WC, which held that if the claimant showed that he suffered a sudden, severe, emotional shock which caused a psychological injury may be compensable even if the resulting psychological injury did not manifest itself until sometime after the shock.

The Appellate court in this case is clear. When evaluating a mental-mental claim, the question of whether a petitioner’s psychological injury must be immediately apparent to recover for traumatically induced mental-mental injuries need not follow a rigid time line. Instead, courts should evaluate the circumstances surrounding the alleged accident. This fire and death that it caused in this case was a very traumatic experience. For the first time in the history of the fire department, the department ceased performing fire suppression emergency medical service operations and referred all calls to mutual aid companies for a period of approximately 10 days. In addition the petitioner was not permitted to return to work until cleared by the psychiatrist. Based up on all the evidence, the Appellate court ruled that the petitioner suffered a severe emotional shock that could be traced to the fire, and the resulting emotional shock occurred in a reasonable amount of time.

 

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I&F Celebrates Kids’ Chance Awareness Week

Kids’ Chance of America believes that a significant difference can be made in the lives of all children affected by a workplace injury by helping them pursue and achieve their educational goals. Kids’ Chance is a national non-profit organization which provides educational opportunities and scholarships for the children of workers seriously or fatally injured on the job.

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Cumulatively, since their inception in 1988, Kids’ Chance organizations have awarded 5,479 scholarships totaling almost 14 million dollars. Kids’ Chance Awareness Week is designed to increase our visibility through special outreach events in each state that will spread the word about Kids’ Chance scholarship opportunities.

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Ald. Howard Brookins, Jr. (21st Ward), Kevin Deuschle, Kelly Watkins (Vice President, Market Development, Rehabilitation Institute of Chicago and President of Kids’ Chance of Illinois), Mayor Rahm Emanuel, Lisa Ulrich (Director Market Development, Rehabilitation Institute of Chicago and Secretary of Kids’ Chance of Illinois), Ald. Patrick J. O’Connor (40th Ward)

Both the City of Chicago and State of Illinois have recognized the importance of this issue and have partnered with the Illinois Chapter of Kids’ Chance and issued separate Proclamations declaring November 14-18 to be designated as “Kids’ Chance Awareness Week.”

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Last week, Alderman Patrick J. O’Connor of the 40th Ward, joined Mayor Rahm Emanuel of Chicago and Alderman Howard Brookins, Jr. of the 21st Ward and Chairman of the Committee on Education and Child Development at City Hall in meeting with representatives of the Board of Kids’ Chance of Illinois to celebrate the issuance of the Proclamation.

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The Illinois chapter of Kids’ Chance is proud to have been able to award eight scholarships earlier this year and are currently looking forward to the spring semester when they anticipate awarding more.

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Inman & Fitzgibbons is a proud supporter of Kids’ Chance and Partner Kevin Deuschle has served on the Board of Kid’s Chance of Illinois for several years.  He currently serves as the Vice President.

 

 

 

 

Court of Appeals finds Indiana Worker’s Compensation Board Not Bound by the IME

In a case heard earlier this year, the Indiana Court of Appeals found that the Indiana Worker’s Compensation Board and its single hearing member was not required to follow the recommendations of a Board appointed independent medical examiner.

In Steven Bush v. Robinson Engineering & Oil, Co. Inc, 54 N.E.3d 1073 (2016), the employee appealed an order by the Board finding that the employee did not sustain a work-related cervical injury.  It was undisputed that the employee suffered a compensable work-related lower back injury on August 13, 2010.  The employee was diagnosed with lumbar spondylosis and the treating physician opined that he had suffered an “exacerbation of an existing injury.”  The employer authorized medical treatment and paid temporary total disability (“TTD”) benefits until April of 2013, when the treating physician placed the employee at maximum medical improvement (“MMI”).

Shortly thereafter, the employer provided notice of its intention to terminate TTD benefits.  The employee disagreed with the termination and filed its written objection with the Board.  Pursuant to Indiana Code section 22-3-3-7, when such a disagreement cannot be resolved by the parties, the Board “shall immediately arrange for an evaluation of the employee by an independent medical examiner.”  Accordingly, the employee underwent an independent medical examination (“IME”) with a Board appointed physician.

The independent medical examiner opined that the employee’s continued symptoms were related to the August 2010 accident.  Further, he opined that the employee was not at MMI and required additional treatment including MRI studies of the lumbar and cervical spine.  Based on the MRI findings, the independent medical examiner recommended further evaluation by a spine surgeon with expertise in cervical spine disorders.  The employer disagreed with the IME opinions related to the cervical spine and properly applied for a hearing before the Board.

At hearing, the employer presented evidence that the employee never complained of cervical injuries during his recorded statement or in his medical records prior to the IME.  Despite the opinions of the IME physician, the single hearing member found for the employee and opined that he had reached MMI with respect to any work-related lumbar injuries.  With regard to the cervical spine, the single hearing member found that the employee failed to prove that he sustained any injuries to his cervical spine as a result of the August 2010 accident.  The Full Board affirmed the decision and employee appealed.

On appeal, the employee argued that the Board substituted its own medical judgment and erroneously disregarded the opinions from the Board appointed IME.  Further, the employee argued that the language of the Indiana Worker’s Compensation Act created a presumption that the Board appointed independent medical examiner’s opinions were “presumed correct, and if a party does not present contrary evidence to rebut that presumption, the independent medical examiner’s recommendations must be followed.”  The Court of Appeals disagreed with the employee and found that the Board was not bound by the findings of an independent medical examiner and can rely on other evidence in determining the credibility of the independent medical examiner.

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

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Stepping over the Greater Risk Line

The Appellate Court recently decided that the petitioner’s act of stepping off a concrete island onto the employer’s parking lot, while carrying a sack, did not establish a risk greater than that of the general public in McLean County Sch. Dist., Unit 5 v. Illinois Workers’ Comp. Comm’n, 2016 IL App (4th) 150248WC-U.

The petitioner, a bus driver, was walking through a parking lot to retrieve a logbook from her bus before clocking out at the end of the day.  As she stepped down from a slightly raised concrete island in the parking lot, onto the normal pavement, she fell and suffered head injuries.  The petitioner was carrying a sack with personal food and drink, was not in any hurry, and testified that she had not lost her balance.  The evidence showed that there were no defects in the concrete island or the parking lot itself.

The Arbitrator, Commission, and Circuit Court had all found this to be a compensable accident, and in support of a finding that the petitioner had been exposed to a risk of harm greater than that to which the general public is exposed, cited four facts:

“(1) there may have been some ice on the edge of the concrete island that caused claimant to fall; (2) the accident occurred in an area not open to the general public, (3) claimant told emergency-room personnel that she “turned around quickly,” and (4) claimant was carrying a sack with food used for nourishment while she was driving the bus.”

The Fourth District Appellate Court disagreed, found that the prior decisions had been contrary to the manifest weight of the evidence, and addressed all four supporting facts.  The Appellate Court clarified that the reference to ice being involved in the fall was in regard to a different fall and workers’ compensation accident that the petitioner had previously suffered, as established by a closer examination of the evidence. The Appellate court then found that whether the parking lot was off limits for the general public was irrelevant to an analysis of whether the risk faced by the petitioner was greater than that faced by the general public.

The Appellate Court also found that the ER records indicating that the petitioner had “turned around quickly” had been taken out of context, and that this finding was refuted by the petitioner’s own testimony that she was not in a hurry.  The petitioner’s act of holding a sack was also found to be a red herring by the Appellate Court, as there was no evidence that holding the sack had caused the petitioner to lose her balance or to fall.   Finally, the Appellate Court stressed the importance of the fact that there were no defects in the concrete island or in the parking lot pavement.

Please note that this case is both “unpublished” and was issued as a Supreme Court Rule 23 decision, meaning that it cannot be cited as precedent for future cases.  However, this decision does help to clarify where the line is between situations where employees are or are not exposed to a risk greater than the risks faced by the general public.  We here at I&F will be sure to keep you up to date on any future case law that indicates where the threshold is for whether an employee was exposed to a risk greater than the general public!

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Thanks to attorney Michael Bantz for this case law update.

I&F Presents at the Illinois Chamber of Commerce 9th Annual Workers’ Compensation and Safety Conference

I&F partners Steve Murdock and Kevin Deuschle (pictured below with attorney Kristin Thomas) were honored to join our friends at the Illinois Chamber of Commerce for their 9th Annual Workers’ Compensation and Safety Conference on October 15, 2016.

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Steve and Kevin conducted a workshop entitled Navigating a Workers’ Compensation Claim in which an audience of Illinois employers and insurance industry representatives participated in an interactive “choose you own path” work comp adventure and navigated through two typical WC claim scenarios from accident to settlement or trial with the audience voting on key decision points along the way.

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