Keefe, Campbell & Associates, LLC

Editor’s comment: We invite our readers’ thoughts and comments on these concepts. In the last week we have learned:

1. A treating doctor actively referred his patient to an attorney to insure the doctor’s medical bills were paid.
2. There is an Illinois mesothelioma physician who is advertising to seek patients with meso while simultaneously telling the world his son; the lawyer will handle their personal injury claims.
3. There is a medical clinic in California that is trying to become a one-stop-shop for workers’ compensation claimants—providing primary post-accident care, recommending surgeons, lawyers, physical therapists, every professional an “injured worker” needs.
4. We had a Petitioner’s attorney direct his client not to see one doctor he was referred to, and then quietly call the primary care physician to have that physician refer the patient to a doctor of counsel’s choice.
5. We reviewed a Petitioner’s attorney’s website where they are actively recommending and thereby advertising their approved list of physicians.
6. We are aware of a number of physicians that donate gifts or money to bar association functions in order to allow their names to be presented at attorney golf outings, dinners or other bar association events.

We note these issues continue to spring up and we want to hear how Illinois business and our various readers think of the many moral, legal and ethical issues raised by these interesting facts. We are certain it is illegal for:

• Lawyers and doctors to split fees or otherwise “kickback” monies to each other in handling the needs of a client/patient.
• Doctors to own diagnostic, physical therapy or other medical facilities and send all their patients to such facilities, and then receive secondary compensation.

The rest of this falls into a strange ethical netherworld. We have no true idea if any or all of this may be both ‘legal’ and ethical—whatever that may mean.

Do you feel:

• A doctor should be ethically able to refer a patient to a specific attorney to allow the doctor to get his bills paid?

Please assume there is no fee-splitting agreement in practice or in principle

The doctor is simply telling all his patients to go to a specific attorney for their legal needs and one of those needs is to get their bills paid.

Please note the attorney may be able to advise the doctor how to get monies for interest consistent with our Act. A sharp Illinois attorney may also be able to get penalties and fees on unpaid medical bills in a fashion considered punitive for the employer or insurance carrier.

• A doctor should join with a lawyer to jointly advertise their respective services for patients/clients with a specific medical condition.
• A doctor or medical clinic should be able to create a list of preferred providers for post-surgical physical or occupational therapy, legal work, vocational counseling or other services?
• It would be a conflict of interest for an attorney to take an active role in recommending physicians/surgeons their clients treat with?

Again, assume the attorney is not making any money in the process but is actively directing patient care. Please also assume the patient and primary care physician is not asking the attorney for such services.

• An attorney can create and promulgate an approved physician panel and advertise such doctors on their firm’s website? Can the same attorney “require” or actively encourage their clients to only treat with certain doctors?
• Physicians can ethically donate to bar association functions to advertise their practices?

On these issues, we don’t have the answers, we just know there are very troubling questions. The defense industry should address all of them and consider rule-making to insure your interests are protected.

We hate to see doctors actively befriending attorneys and then both work together to treat patients in the image and likeness of what the lawyers want done. We also dislike the spectre of treating doctors fomenting litigation against Illinois employers in the workers’ comp setting.

On the other side, we truly feel it is a conflict of interest for attorneys to actively guide or direct medical care of a client by telling them not to see one doctor and then seek referrals to specific physicians or surgeons who are not IME providers. It is no surprise that extensive medical care leads to higher awards and settlements.

Please reply with your thoughts and comments.

Editor’s comment: This ruling confirms the four-part McDonnell Douglas test known as the indirect method to prove discrimination. It also confirms seniority will tend to make two employees dissimilar for purposes of plaintiff’s prima facie case and forces an individual arguing discrimination to present more than simple allegations to survive summary judgment. It should also be noted the documentation in company files appears to have provided ample evidence for affidavits disputing charges which were the strong backbone of the defense in successfully achieving summary judgment.

In Tyson v Gannett Co., Inc. (No. 07-2832 August 19, 2008), the Seventh Circuit Court of Appeals on appeal from the United States District Court for the Southern District of Illinois decided a claim where Plaintiff Angela Tyson sued her employer Gannett Company, Inc., alleging it had discriminated against her on the basis of her race and disability and further retaliated against her for filing a disability charge of discrimination by refusing to let her return to work at her discretion after she had suffered a back injury. It should be noted that during the course of the litigation, Tyson abandoned all avenues of relief except for her two race discrimination claims. The district court granted summary judgment in favor of Gannett on both claims after they found Tyson failed to make out a prima facie case because she failed to present sufficient evidence to establish that a similarly situated white employee was treated more favorably.

Tyson’s employer, Gannett, owns the Indianapolis Star and News newspaper. Tyson was hired in 1998 as a mailer helper and was promoted to mailer assistant. Like all mailer assistants at the Star, Tyson is a member of the Teamsters Indiana Mailers Union Local 2001. The collective bargaining agreement between the Union and the Star required tasks be assigned to mailer assistants on the basis of “priority” (seniority). Thus, the most senior mailer assistant on a shift is allowed to choose the task she or he wishes to perform.

It should also be noted, when it is available, special “light duty” work can be given to mailer assistants who are injured or who have medical restrictions because of health problems. On October 3, 2002, Tyson slipped and fell at work and was injured. She took sick leave and returned to work with medical restrictions, so she was assigned light work. In December 2002, her doctor discovered she had injured her arm in the fall and imposed additional work restrictions. In February 2003, Tyson had surgery to remove a cyst on her tail bone, unrelated to her fall. After that surgery, she claims to have had chronic back pain. Tyson took short-term disability leave beginning in February 2003. In June 2003, Tyson was released to return to work, but the Star had no openings for her that she could perform at that time with her restriction of not lifting more than 25 pounds. A medical report of October 2003 stated she could work if she was provided with a counter brace for her right upper extremity and a lifting restriction of 35 pounds. When she no longer needed the brace, Tyson returned to work as a mailer assistant in November with a 25-pound lifting restriction and was assigned light duty work. Then, in 2004, her back began to cause her discomfort. At that time, no light duty work assignments were available and she sought and obtained both short and long-term disability benefits. She remains on long-term disability to this day while still an employee of the Star.

Tyson sued Gannett under §1981 and Title VII of the Civil Rights Act of 1964. Gannett argued Tyson cannot bring a Title VII claim because, it says, she did not file a charge of race discrimination with the Equal Employment Opportunity Commission (EEOC) and, thus, has failed to exhaust her administrative remedies. For reference, a plaintiff can sue under Title VII only if she first has filed a charge of discrimination with the EEOC. See Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 726 (7th Cir. 2003). Tyson failed to present any evidence disclosing whether she filed a Title VII race discrimination claim, thus Gannett was entitled to summary judgment on Tyson’s Title VII claim because she failed to comply with the EEOC requirement.

Please note an amendment to the Illinois Human Rights Act made significant changes to Illinois law on January 1, 2008. The amended law allows Illinois employees to have employment law disputes heard by a jury. The most significant change was the newly created option for a plaintiff to have the claim in civil court upon completion of an investigation by the IDHR. Prior to the amendment, the only judicial forum for employment discrimination disputes was federal court. State law had no judicial remedies. If you need details on this issue, send a reply.

The Section 1981 claim initially survived, however, because the filing of a discrimination charge with the EEOC is not a prerequisite to pursuing that claim in court. The Court then turned to the question of whether there was any evidence to support her claim of race discrimination.

Tyson chose to prove her case using the indirect method set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). The four-part McDonnell Douglas test is

(1) Is the complaining party a member of a protected class?

(2) Was the complaining party meeting defendant’s legitimate job requirements?

(3) Did the complaining party suffer an adverse employment action?

(4) Was another employee of a different race who was similarly situated treated more favorably?

The parties do not dispute that Tyson met the first three prongs. They disagreed about whether Tyson could establish the fourth prong by proving that a Caucasian employee, Janet Harvey, was similarly situated and she was treated more favorably. Tyson asserted Harvey was allowed to work as a mailer assistant when she had a 25 pound lifting restriction. To be similarly situated, Harvey and Tyson must be alike “in all material respects,” so as to suggest that Tyson “was singled out for worse treatment.” Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007) (quoting Crawford v. Ind. Harbor Belt R.R. Co., 461 F.3d 844, 846 (7th Cir. 2006)).

The record demonstrated Tyson and Harvey were not similarly situated because they had different seniority status which was the determining factor in job assignment under the union’s collective bargaining agreement. Harvey began working for the Star approximately three years before Tyson. An affidavit confirmed Harvey was in the top half of mailer assistants in terms of seniority, while Tyson was in the bottom half. Harvey had enough seniority to ensure she would only have to work on tasks within her restrictions. It was noted the Seventh Circuit recently ruled in Filar v. Board of Education of the City of Chicago, 526 F.3d 1054, 1061-62 (7th Cir. 2008), that: “In some circumstances, differences in seniority will preclude a showing that two employees are ‘similarly situated’. . . . To the extent that seniority is a simple proxy for something like the length of employment and is something that an employer must credit when making employment decisions, differences in seniority will tend to make two employees dissimilar for purposes of the plaintiff’s prima facie case.” Under this reasoning, Tyson and Harvey are not similarly situated and, therefore, summary judgment was appropriate because Tyson failed to prove her prima facie case of race discrimination.

This case is also another example of a company following set guidelines—in this case, a collective bargaining agreement—and documenting a situation effectively to avoid liability for claims via summary judgment with appropriate evidence to support their defenses rather than proceeding to the whims of a judge or jury for a determination on the merits without appropriate evidence. We again remind all employers to follow your guidelines and ALWAYS DOCUMENT to provide the company with defenses in these types of litigation. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.

Editor’s comment: It is hard to argue with this ruling and we point out all Illinois lawyers are being asked to take professional responsibility CLE courses that address civility in all proceedings. A federal judge in Philadelphia has refused to reconsider substantial sanctions imposed on a Chicago lawyer for failing to rein in a foul-mouthed client during a deposition.

In a decision in GMAC Bank v. HTFC Corp., U.S. District Judge Eduardo Robreno imposed sanctions of more than $29,000 on attorney Joseph R. Ziccardi of Chicago and his client whose alleged misconduct included dropping 73 “F bombs” during his deposition. Judge Robreno found the client who is the chief executive officer of Defendant HTFC, engaged in “hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony.” The record indicates the client dropped an “F-Bomb” or variations of it 73 times during the deposition, Judge Robreno noted the video showed his lawyer at one point “snickered” at his client’s conduct. Throughout the deposition, Judge Robreno said, the client “sought to intimidate opposing counsel by maintaining a persistently hostile demeanor, employing uncivil insults, and using profuse vulgarity.” The attorney was also to blame, Judge Robreno found, because he failed to stop his client’s tirades and persuade him to definitively answer questions.

Soon after, Ziccardi moved to withdraw as counsel. Ziccardi hired a different attorney to represent him in seeking to have the sanctions lifted. In his motion for reconsideration of sanctions, Ziccardi argued he was deprived of his right to due process because Judge Robreno failed to put Ziccardi on notice “as to the particular tool that the court was considering employing to sanction him.” And since the notice was deficient, Ziccardi argued, his “opportunity to be heard was meaningless.” The evidence, Ziccardi argued, shows he never joined in his client’s offensive conduct “by chuckling or otherwise.”

In a footnote in his February opinion, Judge Robreno said the video showed Ziccardi “chuckling at the client’s abusive behavior” and GMAC’s lawyer commented on the record “your snickering, counsel, is not appropriate either because all you’re doing is encouraging the behavior of your client.”

Judge Robreno rejected all of Ziccardi’s arguments, finding the technical flaw claimed by Ziccardi did not amount to a violation of the lawyer’s due process rights and none of the factual issues would change the judge’s mind. Judge Robreno found Ziccardi “allowed the deposition to drag on for over two days and nearly 12 hours of testimony, much of which was an unmitigated waste of time and resources,” and that he “never once suggested that the ill-fated deposition be adjourned.” As a result, Judge Robreno concluded “although courts would be wise to hesitate in close cases before second-guessing an attorney’s judgment as to when a deposition should be terminated, no such pause is warranted here.”

The decision to appeal the sanctions remains pending. It is difficult to imagine the cost of the appeal would match the chances of reversal.

Editor’s comment: This ruling is a classic example of how employers should deal with employees who want to work “short shifts” or reduced hours due to medical problems. The Court confirmed companies have the right to expect and require documentation of medical necessity for FMLA and also noted, as they have many times in the past, that simply being terminated with a WC claim pending does not provide sufficient evidence that the termination is in retaliation for filing a WC claim.

In Ridings v. Riverside Medical Center (No. 06-4328 August 11, 2008), the Seventh Circuit Court of Appeals on appeal from the United States District Court for the Central District of Illinois decided a claim where a worker was terminated under company and FMLA guidelines for refusal to complete appropriate FMLA forms after repeated opportunities to provide the information. The district court granted summary judgment for Defendants, finding the request to complete information was appropriate and termination was neither interference with FMLA rights nor retaliation by the employer.

Plaintiff was an employee of Riverside Medical Center from October 1998 until May 13, 2004 and was classified as full-time exempt. Riverside required full-time exempt employees to “swipe in” to the time-keeping system every day, but the employees’ hours were not tracked. In December 2002, Ridings was diagnosed with Graves’ disease, which is a disorder of the thyroid. In January 2003, Ridings’ doctor advised her to have her thyroid removed & Ridings applied for FMLA leave, completed an FMLA leave form and submitted a medical certification form to her doctor, as required by Riverside. Riverside granted the FMLA leave for two weeks and later permitted Ridings to extend the leave for one additional week after surgery. Ridings returned to work after surgery and worked from about 8:00 a.m. until 12:00 p.m. for a few weeks gradually increasing hours until she was working nearly a full day. On two occasions in 2003, Ridings nearly fell asleep while driving home; thereafter, she did not work past 4:30 p.m. unless she had a ride home.

In June 2003, Ridings received an annual employee evaluation of “Key Contributor” which is one step below the highest possible ranking. In July 2003, Ridings submitted a claim under the Illinois Workers’ Compensation Act, asserting that she had developed Graves’ disease due to workplace stress. Ridings worked less than eight hours on premises and regularly took work home in the evenings and on weekends. On January 25, 2004, her supervisor Kyle Hansen discussed Ridings’ work schedule with her, and expressed the need for Plaintiff to begin working a full eight-hour day on premises. On February 25, 2004, Hansen again confirmed and Ridings did not comply after either meeting. On March 11, 2004, Hansen drafted a “corrective action report” (“CAR”) regarding Ridings’ work schedule. After HR review, a modified CAR was presented to Ridings March 22, 2004 stating Ridings’ attendance was unsatisfactory because she had not been working a full eight-hour day, that she must begin working full eight-hour days immediately and advised her that the next action taken, if she did not comply, would be to place a warning in her personnel file.

Ridings provided a note from her doctor on the same day, March 22, 2004, which stated that she could not work an eight-hour day because of a medical condition until further notice. On April 1, 2004, Hansen met with Ridings and informed her that based on her doctor’s note, she needed to provide Riverside with FMLA paperwork. He gave Ridings an FMLA leave application to complete and an FMLA medical certification form for her physician to complete. On April 16, 2004, Hansen asked Ridings about the FMLA forms. She presented Hansen with her attorney’s business card and stated her attorney needed to handle the matter. On April 21, 2004, Hansen provided Ridings with another CAR. The CAR stated Ridings failed to adhere to policy because she “[d]id not complete FMLA paperwork as requested in 15 day period.” The CAR stated the “expected improvement” for Ridings would require “FMLA paperwork requesting intermittent leave . . . be completed by her physician and presented back to her supervisor by April 28, 2004.” The CAR stated the next action taken if the FMLA forms were not completed would be to place Ridings on suspension for three days without pay. If she returned to work after the suspension without presenting the FMLA paperwork to Hansen, then she could be terminated. Ridings signed the CAR, objecting to the disciplinary process. On May 10, 2004, Hansen provided a third CAR to Ridings. At that time, Ridings was suspended for three days without pay because she “did not turn in FMLA paperwork requesting intermittent leave by April 28, 2004.” The CAR identified the next action that would be taken: “Upon returning to work after the suspension, if the FMLA paperwork is not presented then further action, up to and including termination may be taken.” Ridings signed the CAR, again objecting to the disciplinary process. On May 13, 2004, Ridings returned to work after her suspension without the completed FMLA paperwork, and Riverside terminated her employment.

As a brief refresher of FMLA, eligible employees are allowed up to twelve work weeks of leave during a twelve-month period where the employee has a serious health condition that renders them unable to perform the functions of their position. To prevail on an FMLA interference claim, an employee must show their employer deprived her of an FMLA entitlement. The FMLA permits an employer to require a request for leave due to a serious health condition be supported by certification issued by the health care provider of the employee. See 29 U.S.C. § 2613(a).

Ridings asserted the requests for documentation were not proper. The Court concluded Ridings’ obligations under Riverside’s policies were also essentially identical regardless of which type of leave she was taking. She would have filled out the same forms, checked the same boxes, and had the same obligations to provide medical certification. The only difference would have been Ridings’ need to answer one alternate fill-in-the-blank question on Riverside’s application form. The Court acknowledged the CARs were clear that Ridings was directed to apply for “intermittent leave.” However, the Court determined they could not conclude from the evidence presented the term “intermittent” was used, as Ridings contends, in an attempt to force her to cease taking a reduced schedule leave and apply anew for intermittent leave. The application form was used for all types of leave, including extensions of leave. The Court found if Ridings had presented any evidence that the use of the term “intermittent” had in any way influenced her decision not to turn in the FMLA forms, they would consider that fact and the reasonable inferences drawn therefrom in favor of Ridings. However, Ridings’ own complaint, summary judgment exhibits, and deposition testimony indicated her reasons for failing to turn in the FMLA forms were entirely unrelated to the use of the term “intermittent.” Especially damaging–Ridings’ own complaint stated: “[Ridings] refused to apply for FMLA leave and declined to provide the requested medical certification.”

Ridings also argued Riverside was obviously aware of her condition from the prior issues and leave and noted her doctor’s note regarding the inability to work 8 hours also provided certification. The Court noted that, even assuming the doctor’s note constituted “certification,” Riverside certainly gave Ridings a reasonable opportunity to cure any deficiency in it, when it repeatedly told her from April 1, 2004, until her termination on May 13, 2004, that she needed to fill out the FMLA paperwork.

Ridings further argued she could not be forced to take FMLA leave. As written in a recent KC&A Update, the court addressed a similar argument recently in Dotson v. BRP U.S. Inc., 520 F.3d 703, 708 (7th Cir. 2008). If an employee does not wish to take FMLA leave but continues to be absent from work, then the employee must have a reason for the absence that is acceptable under the employer’s policies, otherwise termination is justified.

Ridings also asserted a claim against Riverside for retaliation in violation of the FMLA. The FMLA provides it is unlawful for any person to “discharge or in any other manner discriminate against any individual for opposing any practice made unlawful” by the FMLA. Ridings contended there was no “business justification” for needing her to work an eight-hour day or to work her full schedule on the premises. Riverside acknowledged it did not terminate Ridings because of poor work quality. However, this does not lead to an inference Ridings’ termination was retaliatory. Riverside was entitled to ask Ridings to work a full schedule on the premises because she was a full-time employee; an employee cannot simply inform the employer when and from where she would like to work. The Court noted Riverside was permitted by the FMLA to require Ridings to substantiate her continued need for a reduced schedule, and it terminated her in accordance with the FMLA and its employment policies, after giving her repeated opportunities to provide the information it had requested. An employer cannot be deemed to retaliate against an employee by asking her to fulfill her obligations under the FMLA.

In regard to the claim of workers’ compensation retaliation, Ridings asserted Riverside also retaliated against her in violation of the Illinois Workers’ Compensation Act. To prevail on a claim for retaliatory discharge under the Illinois Workers’ Compensation Act, Ridings must allege

(1) She was an employee of Riverside before or at the time of the injury;

(2) She exercised a right granted by the Act; and

(3) Her discharge was causally related to the exercise of that right under the Act.

If Riverside can demonstrate a valid basis for discharging Ridings that is not pretextual, the element of causation is not met. Here, there is no such evidence of pretext. Riverside admitted Ridings was not terminated for poor work performance. The evidence shows Ridings was terminated for failure to turn in FMLA paperwork which Riverside was lawfully entitled to ask her to complete

In regard to all claims, the Court found Riverside articulated a valid basis for terminating Ridings, and Ridings failed to demonstrate sufficient evidence to show that Riverside’s stated reason for the termination was pretext. Therefore, Ridings could not succeed on the claims.

This case again verifies an employer’s right to obtain documentation, including medical certification, as support for leave under FMLA. We again remind all employers to have a set policy regarding information necessary to support an FMLA claim and we recommend you follow company guidelines as strictly as possible in all cases to provide the company with defenses in these types of litigation. We also note that it is still appropriate to terminate employees who do not comply with company guidelines regardless of potential other pending claims as long as the termination is not related to the pending claims. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.

Editor’s comment: Following last week’s article on the topic, we received two great replies from our readers. The first reply was sent by a top-notch, veteran adjuster who is one of the more savvy people in our industry. We do want her to use better defense counsel and we will continue to keep trying to convince her to add KC&A to her list.

It was her goal to let us know the approximate amount one should properly reserve for a typical CTS claim. She would typically reserve for indemnity (temporary total disability and permanent partial disability)

1. Four weeks of TTD at an expected cost between $800-4,000.
2. PPD at a value of 25% LOU of the hand at an expected cost between $10-33,000.

Total indemnity would therefore range between about $11,000-37,000.

She would typically reserve for medical expense:

1. Hospital                                    5,500.00
2. Physician/surgeon                     7,500.00
3. Prescription                                 300.00
4. Diagnostics                               2,500.00
5. Medical supplies                           250.00
6. Physical therapy                      10,000.00
7. Field case management             3,500.00

Total medical costs are expected to be just under $30,000.00. Combined claim costs are expected in the range between $40-67K. Keep reading.

We also got a reply from one of the top hand surgeons and researchers in the United States, Dr. Jay Pomerance. Dr. Pomerance offices in Arlington Heights, IL and all of his relevant information is on the web at

http://orthodoc.aaos.org/drjaypomerance/

In 2007, he published a research study titled Outcomes of Carpal Tunnel Surgery With and Without Supervised Postoperative Therapy, Jay Pomerance, MD, Ilene Fine, BA in the Journal of Hand Surgery / Vol. 32A No. 8 October 2007. The study and its revolutionary results have not reached many workers’ compensation brokers, insurers, utilization review analysts or hand surgeons. We think it is a great read. In his study, Dr. Pomerance notes:

Using current reimbursement rates, the cost of therapy approximately doubles the professional cost of treatment (therapy plus surgeon’s fee) for Medicare and commercial plans. For all carriers in this study except workers’ compensation in Illinois, the cost of therapy is equivalent to the surgeon’s fee despite there being no benefit in the parameters measured. This disparity would increase with greater amounts of therapy other than the 6 visits used currently. There is no dispute as to the benefit of a carpal tunnel release in patients with documented carpal tunnel syndrome. The additional expense of therapy was not justified in the current study.

Dr. Pomerance reaches the conclusion:

In summary, the routine use of postoperative hand therapy for patients having contemporary small open incisions in the treatment of carpal tunnel syndrome uncomplicated by coexisting conditions such as arthritis, endocrinopathies, or advanced disease was not supported by the current study.

In layman’s terms, we are all wasting money by approving and paying for expensive post-surgical physical or hand therapy following a typical carpal tunnel release. From a scientific perspective, the patient, in ordinary circumstances, doesn’t need it and will return to normal function without it.

Cutting workers’ comp indemnity and medical costs in CTS claims in Illinois

Let’s go at this cost-cutting target one by one.

First, make a preliminary legal determination of whether you owe anything under WC for the problem. As we advised last week, the Illinois Workers’ Compensation Commission has demonstrated a willingness to listen to the defense side where there aren’t clear indications of CTS-producing activities in the workplace. They are also reluctant to provide benefits to part-time or short-term workers.  From a legal perspective, we have won a number of such claims and the legal fees may be worth the money and risk in the right case.

Contact a physician to consider ergonomic changes in your workplace

Second, from an ergonomic perspective, along with Dr. Pomerance who we mention above, another great source for worksite analysis is Dr. Michael Vender who is another solid hand surgeon that can bring detailed ergonomic analysts to your plant and each work station. His website is http://hsasc.com/. In central Illinois, Dr. David Fletcher at SafeWorks Illinois has done a number of onsite evaluations to ascertain when CTS is caused by the work and when it is not. Dr. Fletcher’s website is www.safeworksillinois.com.

Third, let’s go down the list of major expenses:

• Lost time–try like mad to get CTS repairs to be done on a no-lost-time basis. Try to set surgery on Thursdays or Fridays and have the employee back to one-hand or no-hand work on Monday. Transition them to full duty. You may save between $800-4,000 in TTD if you can do so.

• Permanency–always try to settle them cheap where you can. The Commission is now affirming pro se settlements as low as 12.5% of the hand and awarding 15% of the hand for typical, routine CTS repairs. Your organization can save $5,000-15,000 in this fashion. Keefe, Campell & Associates provides legal fees on a flat rate for pro se settlement approval at $250 in Cook County and $350 outside Cook County.

• Physican/Surgeon’s fees: We feel the combined cost of CTS repairs for both surgeon’s and hospital fees should be much less than $12,500. To the extent they feel it appropriate, we ask top-notch hand surgeons such as Dr. Pomerance, Dr. Vender and any other Illinois hand surgeons to publish their fees for routine short-incision CTS repairs. If possible, we would ask them what to expect from competitive hospital or outpatient surgical costs. We are confident there is a lot of money to be saved without compromising quality.

• Prescriptions: We note there are lots of new programs to dramatically cut generic prescription costs at Target® and other big box retailers. We strongly recommend the WC industry start to source low-cost prescriptions. To learn more about Target’s prescription drug program, go to: http://sites.target.com/site/en/health/page.jsp?contentId=PRD03-004033.

• Physical Therapy: Follow the research of Dr. Pomerance and cut this high cost out altogether. We suggest you find a UR provider who is aware of the updated research and will prospectively non-certify such care. Use such non-certifications in all CTS cases. When you rely on UR to deny care, there is a presumption you can’t be penalized. The savings would be dramatic.

A similar approach should cut costs in all repetitive trauma claims. If you have other thoughts, questions or comments about cutting lost time, medical and other costs in managing CTS and other repetitive trauma claims, please send a reply.

Editor’s comment: A causal relationship is not established by the fact one even precedes another. The timing of an employer’s promotion of an employee is generally controlled by vacancies beyond an employer’s control. Therefore, an employee who alleges her non-promotion was retaliatory must produce evidence which demonstrates more than a mere temporal link.

In Hall v. Forest River, Inc., (No. 07-2653 July 30, 2008), a female employee (Plaintiff) was passed over for promotion both before and after she complained to her employer (Defendant) of alleged sexual harassment by a male coworker. Promoted coworkers included those with less seniority than her. Plaintiff filed suit which alleged retaliation under Title VII. The U.S. District Court for the Northern District of Indiana granted judgment as a matter of law in favor of Defendant. It found no legally sufficient evidentiary basis upon which a reasonable jury to find for Plaintiff. Plaintiff appealed.

The U.S. Court of Appeals for the Seventh Circuit (Seventh Circuit) reviewed de novo the District Court’s order. The sole issue on appeal was whether the evidence as a whole when combined with all reasonable inferences permissibly drawn from this evidence was sufficient to allow a reasonable jury to find in favor of Plaintiff.

Success on a retaliatory discharge claim requires sufficient evidence which shows an employee

1) opposed an unlawful employment practice,

2) The employee suffered an adverse employment action, and

3) This adverse action was caused by the employee’s opposition to the unlawful employment practice.

In the present case, the parties agreed Plaintiff met the first two prongs. She complained of alleged sexual harassment by a male coworker and Defendant decided not to promote her. Thus, the question was whether Plaintiff presented sufficient evidence of casual relationship to reach a jury.

The Seventh Circuit noted Plaintiff produced no evidence to show longevity equated to superior qualifications or that Defendant promoted on the basis of seniority. The record indicated the opposite – longevity was not a factor in promotions. The Seventh Circuit also noted federal anti-discrimination laws were not intended to legislate seniority rights where none existed in the contract of employment. It further held an employee must also do more than present her own subjective “self-appraisal” to create a genuine issue of fact. Finally, the Seventh Circuit found “none” of the evidence relied upon by Plaintiff indicated her sexual harassment complaints were related to Defendant’s promotion of her male coworker. Simply put, no evidence was presented which spoke to Defendant’s motivation in promoting. The Seventh Circuit held that in the absence of evidence of pretext or retaliation Plaintiff could not prevail as a matter of law. The Judgment of the District Court was affirmed.

This article was researched and written by Matthew A. Wrigley, J.D. If you have thoughts and comments or need the case citation, please send a reply to mwrigley@keefe-law.com.

Editor’s comment: As we have repeatedly advised, the current administration now has a number of required funds that drive Illinois business batty. They were creations of the current administrators who got them enacted or reinstated while we weren’t looking. These funds cost Illinois employers well over $20 million per year. When and if Illinois business ever returns to power, we hope to make substantial changes or eradicate some of the funds altogether.

If you go to the Commission’s website, they are listed as:

- IWCC Operations Fund—this is effectively the “workers’ comp tax” designed to fund the Commission at the sole cost of Illinois business.

- Rate Adjustment Fund—this fund provides COLA increases to total and permanent claimants along with widows and dependents. We have pointed out Illinois already has the highest such benefits in the U.S.; is it truly necessary to tack on annual increases?

- Second Injury Fund—this arcane fund provides lots of expense to Illinois employers and benefits to about 100 citizens in a state of 7-8 million.

- Self-Insurers Security Fund—this fund provides “insurance” to employees of insolvent self-insured companies.

- Injured Workers’ Benefit Fund—this is now being trumpeted as “insurance” for workers who are injured working for employers that don’t have WC insurance.

Some of these funds are described on the Commission’s website at: http://www.state.il.us/agency/iic/funds.htm.

We are told by numerous sources that fund management in either the Rate Adjustment Fund or Second Injury Fund is sadly lacking and benefits are not being paid as required by law. There may be an investigation by the Attorney General or other investigative body starting any day. Watch this space for news and further developments.

Editor’s comment: The court looked at the employment situation as a whole and analyzed the amount of control to make the determination. The decision again notes small employers with less than 50 employees do not fall under FMLA guidelines. For a joint-employer relationship to exist, each alleged employer must exercise control over the working conditions of the employee.

In Moldenhauer v. Tazewell-Pekin Consolidated Communications Center (No. 07-1118 July 31, 2008), the Seventh Circuit Court of Appeals on appeal from the United States District Court for the Central District of Illinois was faced with a claim where a worker who was terminated for absenteeism sued for being retaliated against for exercising her rights under the FMLA. The district court granted summary judgment for the defendants, finding that there were not joint employers and that FMLA did not apply due to the small employer exception.

Moldenhauer began working at Tazcom in August 1983 as a dispatch telecommunicator. In 1991 she was diagnosed with chronic pancreatitis. As her illness progressed so did the amount of work she was forced to miss. A Tazcom manager first voiced concern regarding Moldenhauer’s absenteeism in 1998. In May of 2002 Moldenhauer advised she wished to invoke her rights under the FMLA. Moldenhauer claims the manager denied her request for FMLA leave, and she then filed a complaint with the U.S. DOL. An investigation culminated in a preliminary letter from the U.S. DOL labeling Tazcom, Pekin, and Tazewell joint employers under FMLA. In January 2003 the manager suspended Moldenhauer for twenty days due to her absenteeism, her third suspension for missing work. After returning from her suspension, she again missed work, and the company fired her in April 2003. Moldenhauer brought suit in district court for multiple claims including that Tazcom, Pekin, and Tazewell retaliated against her for trying to exercise her rights under the FMLA. The district court granted summary judgment in favor of Defendants, reasoning that Pekin and Tazewell did not have control over Tazcom employees and therefore were not joint employers of Moldenhauer.

Summary judgment was appropriate in favor of Tazcom, the court reasoned, because it had fewer than fifty employees and was therefore exempt from the FMLA. Because the court’s decision turned on the amount of control Pekin and Tazewell exercised over Moldenhauer, it is important to understand the relationship between Pekin, Tazewell, and Tazcom. Pekin and Tazewell created Tazcom in 1976 as a non-profit corporation in Illinois to provide emergency 911 communications at a more affordable rate. Tazcom serves thirty-eight public and private entities. Tazcom was established as an independent entity, but, as its name suggests, it does a great deal of business with Pekin and Tazewell. All of Tazcom’s clients pay for their emergency services, however the bulk of Tazcom’s operating budget was derived from the largest users, Pekin and Tazewell. Tazcom also rents office space from Pekin, and in order to enter the building, Tazcom’s employees were issued Pekin identification badges. Tazcom also contracted with Pekin for the provision of various services including Payroll, Health Care Insurance, Workers Compensation Insurance, and Illinois Municipal Retirement. Tazcom paid Pekin in exchange for payroll services. According to Pekin, technological limitations required all Tazcom employees be labeled as Pekin employees to provide payroll services. Pekin was also listed as Moldenhauer’s employer on many of her employment forms, including her W-2s, wage garnishment form, and direct deposit form. The Tazcom sexual harassment policy listed a Pekin city employee as the reporting official for potential claims. Finally, prior to 2002, Tazcom contracted with Pekin for health and life insurance providers, although it has since procured its own providers. As for the day-to-day operations of Tazcom, the parties dispute what level of control Pekin and Tazewell exercised over Tazcom. The Tazcom bylaws stipulate that a board of directors be appointed consisting of four individuals: the Sheriff of Tazewell, the Chairperson of the Tazewell Board of Supervisors, the Mayor of Pekin, and the Pekin Chief of Police, all of whom have the choice of serving personally or designating an alternate to serve in their place. But the board appoints a separate Executive Director to manage the day-to-day operations, including the hiring and firing of employees and creation of a preliminary budget. Steven Thompson served as Executive Director for all periods relevant to this claim and Thompson is not affiliated with Pekin or Tazewell in any way and is only employed by Tazcom.

In making their decision, the Court reviewed the guidelines for determining joint employment, it was noted this circuit had yet to address joint-employer liability under the FMLA, but had addressed a question of joint employers under the Fair Labor Standards Act. The Court noted the joint employer regulation in the FLSA mirrors that in the FMLA, and thus it makes sense to use this standard to govern the FMLA.

The test was noted as:

(1) Where there is an arrangement between employers to share an employee’s services or to interchange employees;

(2) Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or,

(3) Where the employers are not completely disassociated with respect to the employee’s employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer.

The court also noted Congress exempted “small employers,” defined as employers with fewer than fifty employees. They strongly noted that it would not be tolerated if an organization divided itself into smaller entities with fewer than the statutory minimum number of employees for the express purpose of avoiding FMLA obligations. And where such evidence exists, they will not hesitate to deem these entities joint employers for purposes of the FMLA.

In this case, the Court found absolutely no evidence that Pekin and Tazewell created Tazcom in order to avoid their FMLA responsibilities. Indeed, Tazcom was created in 1976, seven years before the FMLA was enacted. Moldenhauer stresses that Tazcom’s board of directors was filled with officials from Pekin and Tazewell. But never does Moldenhauer point to any evidence these individuals acted as representatives of Pekin or Tazewell. There were no allegations that any of the directors, when acting in their capacity as a Tazcom director, sought to advocate for Pekin or Tazewell. Moldenhauer seems to suggest that because these leaders sat on the Tazcom board, it is implicit that Pekin and Tazewell were joint employers of Tazcom. But many government officials sit on many boards, and this fact alone cannot suffice to justify the extension of joint-employer liability. The Court also pointed out Moldenhauer cannot point to one instance of either Pekin or Tazewell hiring a Tazcom employee, determining the working conditions of the dispatchers (such as by specifying the number of dispatchers working at any given time and thus affecting the workload of each dispatcher), or deciding the compensation for a Tazcom dispatcher.

This case is the initial look into this particular issue by the Seventh Circuit and highlights the guidelines for FMLA requirements in relation to joint employers. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.

Editor’s comment: Beginning with the decision in Peoria County Belwood Nursing Home v. Industrial Commission in 1987, Illinois ushered in a new “type” of work injury not previously seen in this state. We are certain Illinois was not the first workers’ compensation system to start the concept of repetitive trauma but this system is now certainly one of the most liberal in the world. The paradigm shift in the law brought on by this concept is previously, Illinois injured workers had to demonstrate a sudden and unforeseen occurrence to have what was legally defined as an “accidental injury” in the legislation. Following Peoria County Belwood Nursing Home, all one had to effectively demonstrate to show entitlement to workers’ comp benefits for repetitive trauma is a job, a need for medical care and the slightest causal relationship between the two.

The problem that followed the new legal concept is ascertaining when the condition would be legally related to work versus when the problem would be personal to the employee and not work-related. As you may see below, the Commission has become somewhat more conservative in some of their recent rulings.

Other related issues that sprung up are the date of onset or the “accident date” to ascertain which of potentially numerous employers and their respective carriers might have to pay workers’ comp benefits for the condition. In Durand v. Industrial Commission, the Illinois Supreme Court effectively stripped out the statute of limitations if the employee testifies they “worked through the pain” until some period after the statute would have tolled. With deference to our highest court, we have difficulty with a ruling that we feel ignores the statutory language.

Another major problem arose is the related concept of “apportionment” which would be determining which employer(s) might bear some or all of the cost of paying for a condition that may arise over weeks, months and possibly years. Some states do not allow repetitive trauma claims until the employee has worked for an employer for at least ninety days. Illinois does not have any waiting period. In Concrete Structures of the Midwest v. Industrial Commission, the employee came onto the worksite and worked for six days until making a CTS claim. The appellate majority ruled there would be no apportionment among employers until the legislature addressed the issue. One can expect the legislature to address this issue when and if the forces of Illinois business ever return to control of the legislature and governor’s mansion. Until then, one and only one employer will get stuck with a repetitive trauma claim unless the insurance adjusters agree to split some or all of the cost in a settlement.

Please note it is our position the repetitive trauma concept was created and formed solely in the courts. We make that statement because we do not feel the overall concept of “repetitive trauma” was contemplated when our Act was written in 1909 to protect workers from “accidental injuries.” We feel the statute was intended by the drafters to only contemplate something happening that was sudden, unforeseen or unexpected to Illinois workers. In contrast, there is nothing about carpal tunnel syndrome, cubital tunnel syndrome, tarsal tunnel syndrome, fallen arches, degenerating rotator cuffs, varicose veins or other previously personal conditions that are unforeseen and unexpected. Most, if not all, of such conditions medically relate closely to one’s personal social and physical makeup.

This also sets up the frustrating scenario of having to pay substantial medical, lost time and permanency benefits when no true “safety” protocol has failed and the employer is ostensible blameless. For example, we had a claimant who worked at a machine on a concrete floor and developed fallen arches. The employer provided her with shoes as part of her work. The treating physician confirmed the foot problem was due, in part, to the workplace and the concrete floors. Our client asked the rhetorical question—is it an “accident” to provide an employee with a workplace that doesn’t have rubber mats or carpeting?

In the twenty-plus years since the Peoria County Belwood Nursing Home decision the concepts of workers’ comp claims arising from events that are sudden and unforeseen have disappeared. Most repetitive trauma conditions can be expected in workers who are in bad condition, reaching advanced age or have a weakened habitus. For those reasons, ever-increasing workers’ compensation benefits in this state present a strong reason to quietly avoid hiring obese or disabled workers along with cigarette smokers—such workers may be dramatically more susceptible to repetitive trauma conditions and claims. The other negative is the problem with having any worker regularly work overhead or use impact tools. In this state, most of such jobs are being automated or robotized.

What does a typical carpal tunnel claim cost in Illinois? For an average worker with average income, the employer is typically looking at $5-15,000 in medical/surgical costs. Our strongest advice is to try as hard as possible to not allow any lost time, even if the employee has surgery. It is possible to schedule surgery on Fridays and have the employee return to one-handed work the following Monday. If you don’t do a good job anticipating and minimizing lost time, you can pay $5-15,000 for lost time.

As for permanency, Illinois continues to provide permanent partial disability in a range of 15-25% of the hand for operated carpal tunnel claims. For a worker with a PPD rate of $500 per week, this can cost as much as 205 weeks times 25% or 51.25 weeks at a rate of $500 equaling $25,625.00. For most employers, this high and seemingly unavoidable cost is one of the reasons Illinois is not a favorite state for workers’ compensation claims.

What is the current Commission doing with CTS rulings? Believe or not, we have seen some changes—the Commission is not nearly as liberal as they have been in prior years. We salute the focus the Commission brings to claims when they require clear medical testimony as to causal connection combined with consistent medical histories.

A. In Minder v. McDonalds, 02 IL.W.C. 15401, 08 I.W.C.C. 0784, June 30, 2008, the Commission reversed the Arbitrator’s decision and denied benefits for a food service manager. The Commission expressly noted the testimony about work duties was sparse, and they were unable to find support from testimony that work was causally related to her conditions.

B. In Wallis v. Harris Corp., 05 IL.W.C. 19583, 08 I.W.C.C. 0763, June 27, 2008, the Commission reversed the Arbitrator’s decision and denied benefit. The Commission decision states:

On July 6, 2004, Petitioner had an EMG/NCS, which revealed no evidence of carpal tunnel syndrome. Petitioner had another EMG on April 4, 2005, which revealed bilateral mild median neuropathies with compression at the carpal tunnels. Petitioner’s diagnostic studies did not show evidence of carpal tunnel syndrome until April 2005, which is almost two years after she stopped working with Respondent and over one year after she stopped working with another employer. We find that Petitioner’s EMG was not positive until long after she stopped working.

C. Finally, in Diepen v. Commonwealth Edison, 02 W.C. 08916, 08 I.W.C.C. 0689, June 12, 2008, the Commission denied benefits noting “Petitioner has not presented any medical evidence containing any history of any type of work activity to support repetitive trauma.”

In the right case with the right evidence, we note the Commission is throwing some of these cases out. One of our partners has obtained two separate denials from this Commission on repetitive trauma claims. Please also note the Commission will readily award benefits if clear expert and lay testimony shows the condition is related to the work.

If you have questions, comments or thoughts about defending repetitive trauma claims, please send a reply.

Editor’s comment: When an employee is appropriately disciplined and terminated within the set company guidelines, and where the employee alleges leave for medical related causes, the testimony of the terminated employee alone is not sufficient to show a chronic condition or to support a claim of ongoing medical care absent other medical evidence. It is also interesting to note that the parent company in these situations is entitled to summary judgment because they generally do not directly control the employee.

In Caskey v. Colgate-Palmolive Co. (No. 06-2919 July 24, 2008), the Seventh Circuit Court of Appeals on appeal from the United States District Court for the Southern District of Indiana was faced with a claim where a worker who was disciplined and ultimately terminated and then sued her former employer and its parent company for interfering with her right to medical leave, in violation of the Family and Medical Leave Act; discriminated against her because of her sex, in violation of Title VII of the Civil Rights Act of 1964; and retaliated against her for exercising her rights under the FMLA, Title VII, and Indiana law. The district court granted summary judgment for the defendants, finding Caskey’s discipline was lawful and her termination resulted from three unexcused absences from work.

Hill’s Pet Nutrition, Inc. (“Hill’s”) produces pet food, and Colgate-Palmolive Co. (“Colgate”) is their corporate parent. Caskey began working as a technician at the Richmond, Indiana plant of Hill’s in 1995. One of her primary duties involved operating an extruder, a piece of heavy machinery that, at the Hill’s plant, pushed unprocessed dog food through a grinder and then sliced the food into smaller pieces known as “kibbles.”

Hill’s had a detailed policy regarding performance, discipline and termination with a graduated process of discipline up to the termination. Hill’s also provided paid FMLA but did not have “sick days” so any leave not covered by FMLA or some other form of protected leave was determined to be an unexcused absence. Caskey had received FML at times and had also accumulated some unexcused absences which had advanced her in the discipline program. Caskey had also been disciplined for job performance after 50,000 pounds of reject “kibble” had been produced and 20,000 pounds had been packaged while she was in charge of quality control on a shift. This placed Caskey into the stage of discipline just prior to termination.

Caskey signed a letter of recommitment to the job with certain conditions and then violated the rules by requesting time off without 48 hours notice—but was not terminated due to that violation. Caskey then began to treat for depression and was taken off work by a physician qualifying for FML.

After returning from FML, Caskey took a birthday holiday 4 days later and took vacation the following two days. She then saw an employment assistance counselor regarding her depression. The counselor, like her treating physician, did not impose any work restrictions on Caskey. The following day, Caskey called a teammate at the Hill’s plant and said she was “sick” and was going to miss work for the following two days. She then failed to report to work on May 21, 22, and 27. Caskey did not receive any medical treatment for these absences, and her next visit to a physician occurred in August for an unrelated condition. On May 29, Hill’s sent Caskey a letter stating that she had “self-terminated” by not reporting to work on those three days (May 21, 22, 27).

The Court granted summary judgment for several reasons. Initially, Caskey did not present sufficient evidence to show that the string of absences starting on May 21 was the result of a serious health condition. At no point in late May did Caskey receive inpatient treatment in any medical facility. The FMLA regulations define “continuing treatment by a health care provider” as including, in relevant part, (1) a period of incapacity of more than three consecutive calendar days that also involves either treatment two or more times by a health care provider or a regimen of continuing treatment; or (2) any period of incapacity due to a chronic serious health condition, which requires periodic treatment by a health care provider.

It did not matter whether her discipline or her termination qualified as the adverse action, because she failed to present enough evidence on the third element—connecting her FML with her discipline or termination. Caskey can rely on two types of evidence in showing that her protected activity motivated Hill’s action under the direct method of proof: “direct evidence” or “circumstantial evidence.” The court found Caskey presented no direct evidence of a causal connection for both her FMLA or Title VII retaliation claims, and insufficient circumstantial evidence for her FMLA claim. Caskey pointed to some circumstantial evidence for her Title VII retaliation claim but her vague reference to a pattern, without any detail regarding the context of the other terminations, creates too sparse a trail to create circumstantial evidence of a causal connection. Caskey also did not present evidence of a similarly situated employee who was treated more favorably. Moreover, Caskey did not meet the legitimate expectations of her employer. She had progressed through the disciplinary process to the final stage, she did not follow the explicit agreement under the letter of recommitment to have no absences and use no emergency vacation time, and she did not follow the proper procedures for giving notice of any intended time off.

Turning finally to her state law wrongful termination claim, Caskey contended she was fired in retaliation for filing a workers’ compensation claim. Caskey failed to make a sufficient causal connection here. She relied heavily on the timing of her discipline—i.e., that she was disciplined shortly after her injury, and terminated shortly after that. This timeline omitted several other intervening events, including the series of unexcused absences in late May in violation of the Performance Agreement. And timing evidence alone rarely creates a jury issue on causation. The Court ruled the district court correctly found the dearth of evidence establishing a causal connection doomed her state law retaliation claim.

This case highlights several legal keys for employers which KC&A lawyers cite on a daily basis—DOCUMENT, DOCUMENT, DOCUMENT & follow your company policy as closely as possible to ensure questionable claims can be defended appropriately. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.