Keefe, Campbell & Associates, LLC

Editor’s comment: Plaintiffs were assistant store managers for Defendant Station Operators, Inc. and alleged discrimination on the basis of age, race, national origin, and religion in violation of Title VII of the Civil Rights Act of 1964, Section 1981, and the Age Discrimination in Employment Act (ADEA) after being terminated. They sought punitive damages under both Title VII and Section 1981 by alleging each claim raised separate factual issues.

The District Court for the Northern District of Illinois was not persuaded. It indicated both claims arose from the same series of operative facts and to permit Plaintiffs to seek punitive damages under both provisions would potentially enable the double recovery Section 1981a(a)(1) seeks to avoid. In Thakkar v. Station Operators, Inc. (2010 WL 832129 N.D.Ill.) Plaintiffs were married employees who were assistant managers at two gas stations owned by the Defendant. Plaintiffs are of Indian descent, are Hindu, identify their race as East Asian, and were born in 1951. They were both terminated shortly after they transferred five cases of windshield fluid between their gas stations by driving the product themselves. This was clearly against company rules, but there was evidence these rules were not strictly enforced.

Shortly before the Plaintiffs were terminated one Plaintiff filed two separate complaints with Station Operators, Inc.’s (SOI’s) management about his store manager not following SOI’s security procedures. The store manager was a 31 year old Caucasian female of Irish descent. Her direct supervisor discussed the security issues raised by Plaintiff with the manager and placed a letter of reprimand in her employment file. Plaintiffs’ transfer of product between the gas stations that led to them being terminated occurred three days after Plaintiff lodged his second complaint. SOI terminated Plaintiffs less than a month later for insubordination and violation of company policies and safety procedures.

Plaintiffs filed suit asserting Defendants SOI and their manager violated Title VII, Section 1981, and the ADEA by terminating Plaintiffs for discriminatory reasons. They claimed unlawful discharge and disparate enforcement of company rules. To demonstrate discrimination under the burden-shifting method chosen by Plaintiffs they must offer evidence showing:

1) They belong to a protected class;

2) They were meeting their employer’s legitimate job expectations;

3) They suffered an adverse employment action; and

4) Similarly situated employees outside of the protected class were treated more favorably by the employer.

If an employee/plaintiff demonstrates these elements an employer/defendant should offer evidence to provide a legitimate, nondiscriminatory reason for the employment decision. The employer must have a reasonable explanation for the action it took. SOI argued Plaintiffs’ violation of company rules regarding driving and transferring product was a legitimate, nondiscriminatory reason for termination. Plaintiffs countered the rule was deployed against them in a discriminatory manner because the rule was not consistently enforced. They presented evidence a Caucasian employee who engaged in a similar driving/product transfer violation was not terminated.

The Court found Plaintiffs demonstrated the necessary elements because they were members of a protected class, they had a good record of performance, they were terminated, and the selective nature with which the driving rules were apparently applied combined with the timing of Plaintiff’s complaints regarding the manager and the termination indicated other SOI employees were treated more favorably.

Please note this Court merely ruled Plaintiffs had a valid cause of action, a verdict has not yet been reported. Plaintiffs’ Complaint also contained Section 1981 claims for failure to promote Plaintiffs and violation of Illinois’ One Day Rest in Seven law. The Court ruled neither of these claims were proper. Regarding the failure to promote claim the Court found neither Plaintiff ever actually applied for any promotion or discussed the possibility with any territory manager. Thus, there was no cause of action. Regarding the One Day Rest in Seven claim the Court found a one-time assignment of an unfavorable weekly work schedule is not an adverse employment action that supports an independent discrimination claim.

Plaintiffs also claimed punitive damages under both Section 1981 and Title VII. The Court stated Section 1981a(a)(1) permits recovery of punitive damages under Title VII only when the complaining party cannot recover under Section 1981, because their Title VII claim (in this case unlawful discharge) and Section 1981 claim (in this case disparate enforcement of company rules) raise separate factual issues. Plaintiffs conceded, typically, a party cannot separately recover punitive damages under both Title VII and Section 1981, but they sought recovery by asserting each of these claims raised separate factual issues.

The Court disagreed finding unlawful discharge and disparate treatment claims arose from the same series of operative facts and stated if Plaintiffs were to prevail at trial they would not be able to recover punitive damages under both Section 1981 and Title VII. We applaud the recognition by this Court that separate claims based on the same facts will not allow a Plaintiff double recovery of punitive damages.

This article was drafted by another recent addition to our team, Matthew Ignoffo, J.D. Please do not hesitate to reply or provide comments to Matt at mignoffo@keefe-law.com.

Editor’s comment: This opinion represents a welcome respite for employers in strengthening their ability to defend against unwarranted claims filed by employees for discrimination under Title VII and for acts tenuously and remotely connected to the alleged adverse employment action. In Everroad v. Scott Truck Systems, Inc., (No. 08-3311 May 10, 2010), Plaintiff Everroad sued her former employer and the company’s general manager asserting claims for gender discrimination, age discrimination and retaliation under Title VII and under the Age Discrimination in Employment Act (ADEA). The trial court (Hon. Richard Young, SD Indiana) granted summary judgment in favor of the employer. The Seventh Circuit Court of Appeals affirmed, concluding any argument the Federal District Court abused its discretion in refusing to consider the transcripts of recorded conversations was frivolous.

Next, in affirming the district’s court grant of summary judgment in favor of the employer, the Federal Appellate Court held Plaintiff was unable to make out a prima facie case of discrimination under the McDonnell Douglas analysis and she failed to present any evidence calling into question the sincerity of her employer’s non-discriminatory reason for terminating her. Finally, the Federal Appellate Court held the District Court properly granted summary judgment on her retaliation claim as she failed to establish the requisite causal connection between the protected activity and her retaliation holding a year was too long in the absence of any other evidence connecting the protected activity to the adverse action.

The Seventh Circuit’s decision is important as their analysis applies to both discrimination and retaliation claims. First, an employer’s claim of a legitimate non-discriminatory reason for termination often overlaps with the burden of establishing the employee was meeting the employer’s performance expectations. Thus, it may be in certain circumstances, employers are able to assert insubordination may defeat an employee’s argument they have established a prima facie case of discrimination or retaliation. The Seventh Circuit also stated to establish pre-textual reasons for firing, the employee must prove the employer’s stated reason is dishonesty or lies rather than oddities or errors. Moreover, employees cannot rely on a single statement that occurred more than one year ago before the employee’s termination to demonstrate a causal link for purposes of a retaliation claim. The Seventh Circuit also bolstered the employer’s ability to defend these types of unwarranted claims, holding Plaintiff must establish similarly situated employees were treated more favorably at the time of the alleged discrimination against Plaintiff.

It will be interesting to see how the Everroad opinion impacts the usual burden-shifting analysis for claims of discrimination based on indirect evidence. For now, the opinion strengthens employer’s ability to defend frivolous or unwarranted claims of discrimination.

This article was written by Patrick C. Cremin, J.D., a recent addition to Keefe, Campbell & Associates LLC. We are very happy to add a veteran defense trial lawyer with lengthy jury trial experience along with IWCC claims handling. Please do not hesitate to contact Pat about this article or any defense issue at pcremin@keefe-law.com.

Editor’s comment: We were told current Illinois Governor Pat Quinn was a reformer. He has started a number of reform initiatives and actually called for a change to the Illinois constitution mandating what people in other parts of the country call “ethics”—most Illinois politicians don’t understand or use that term much.

What happened at the Workers’ Compensation Commission last week was the same sort of secret, clandestine and under-the-cover shenanigans we have grown so used to from past administrations. We knew Paul Rink; he was a former Commissioner who appeared to have been gently nudged out several months ago. We have been awaiting his successor and now he has been appointed. You may all note the vacancy was not filled with a publicized national or even state-wide search for the best possible candidate—we don’t do things that way in this poorly-run state. Everything is closely guarded, like it is a nuclear secret and if the news gets out about what they do filling a state job, the sky might fall.

Last week, Governor Pat Quinn appointed Daniel R. Donohoo as a Commissioner. You may note the Commissioners sit as administrative appeal officers—there are nine of them. While they haven’t completely figured it out just yet, Commissioner Donohoo may fill the “public” member seat on Panel B and be the swing vote between the labor Commissioner, Barbara Sherman and the employer representative, Kevin Lamborn. Please note they may scramble the three panels but they will be certain to insure two members vote for labor and the management member gets to file lots of dissents.

The Commission has advised new Commissioner Donohoo holds a B.S. degree in Business Administration from Southern Illinois University and a J.D. degree from Thomas M. Cooley Law School. He served as the Madison County Recorder of Deeds for 21 years and operated his own accounting firm for 17 years.

We want everyone to note we don’t know and have never met Commissioner Donohoo. He may turn out to be the best administrative appeal officer in Illinois history. To our knowledge, he isn’t going to fill the bill on what some folks feel would represent “diversity.” From our research, we assure our readers he

· Doesn’t have any formal workers’ comp training;

· Doesn’t have a workers’ compensation litigation background;

· Isn’t an associate or partner at a workers’ comp petitioner or defense firm and

· Has never, ever handled a litigated workers’ compensation claim that we can find on the web or elsewhere.

Our research indicates new Commissioner Donohoo graduated from Thomas M. Cooley Law School in Michigan exactly two years ago today on May 17, 2008. We are fairly confident they don’t have a class or even a seminar on Illinois workers’ compensation law and practice in Lansing, MI. The Illinois Attorney Registration and Disciplinary Commission’s website indicates he was licensed to practice law in Illinois November 6, 2008. That is about eighteen months ago, so while he may be a veteran deed-recorder and accountant, he is a complete newbie as a work comp lawyer.

We ask all of our readers, why would they hire someone with absolutely no WC experience to a top-level state job? Whose brother’s-cousin’s-uncle do you have to know to get the nod on that sort of work?

Well from the outside, looking in, we assume Mr. Donohoo is part of the Madison County Insiders—he was the Madison County Recorder of Deeds for more than two decades. He is probably already eligible for a state/county pension when he reaches the right age. If you aren’t aware of it, Madison County is a small, mostly rural county in southern Illinois across the Mighty Mississippi River from St. Louis. Madison County has been repeatedly designated as a “judicial hellhole” for their approach to litigation that comes to this tiny county from all over the United States. Every month for years on end, little Madison County, IL with a population of about 140,000 has a monthly asbestos trial call of about 400 pages—if all those claims were to be tried in a given year, most adults in that county would be on indefinite jury duty. If you ever get to visit the county seat of Edwardsville, you may see what has to be the biggest rural county courthouse in the history of our planet—the place was fully funded with about $90 millions dollars derived from the interest on an appellate bond in the amount of about $600 million dollars on a tobacco verdict later tossed out by the Illinois Supreme Court.

How did Madison County get so prominent in Illinois WC circles? Well, if you go back down memory lane about nine years to 2001-2, our current former-Governor-about-to-be-tried-on-June-3 was locked in a very close three-way primary election battle with Paul Vallas and our current junior U.S. Senator Roland Burris. Rumors are the former Governor made a deal with the Madison County Plaintiffs’ bar that gave him the political edge to win the primary and then the general election. As part of that bargain, we understand the former Governor turned over substantial control of the then-named Illinois Industrial Commission to the Madison County Insiders who quietly changed the name, funding and make-up of the place into a shiny new not-very-diverse Plaintiff-Petitioner-dominated place that has been anathema to Illinois business ever since.

We want to make it clear, the folks brought to the Commission by this group are both honest and outwardly professional and many of them were and are very knowledgeable and ostensibly qualified. We are amazed to see someone move into a second-tier job that completely lacks any true WC background and wonder why he wasn’t started out as staff attorney for a Commissioner to then become an arbitrator and continue to move up. With that in mind, we caution we have no idea, absolutely none, how new Commissioner Donohoo will rule when cases are brought before him. We assume he will learn very rapidly on the job. When he needs help, he can ask the covert, hidden, undisclosed players-not-to-be-named-ever who got him the job. And the observers from Illinois business will continue to sigh and wait for the fall election to see how things go.

And please, everyone remember, the State of Illinois under Pat Quinn still ain’t ready for reform. A vote for Bill Brady will be a vote for jobs to grow and stay in this state.

We appreciate your thoughts and comments or feel free to post them on our award-winning blog.

Editor’s comment: As we tell our employment practices clients, your goal is to have your defense case-in-chief ready long before litigation is filed. If you need help with such issues moving forward, please send a reply.

In Gratzl v. Office of the Chief Judges of the 12th, 18th, 19th and 22nd Judicial Circuits, Plaintiff suffered from incontinence as a result of pregnancy complications. In 2001, she applied for a certified court stenographer or court reporter position with DuPage County working exclusively in their control room. In this position, she was able to step away quickly to use the restroom, so she never had to make her supervisors aware of the somewhat intimate personal medical condition. A few years after Plaintiff was hired, the Illinois Coordinator of Court Reporting Services issued a directive requiring all court reporters to rotate through various courtrooms as well as the control room. Gratzl informed the Chief Judge about her medical condition and claimed it would prevent her from performing as an in-court reporter. Plaintiff also requested a leave of absence for a scheduled surgery for a separate issue. The Chief Judge approved the leave and began the paper trial when she subsequently sent correspondence to Plaintiff stating Plaintiff needed to decide if she was going to participate in the full courtroom rotation.

Plaintiff’s attorney submitted a formal request to Defendant seeking reasonable accommodation of Gratzl’s condition by returning her to work full time in the control room. The request was supported by a letter documenting the basis for the request from Plaintiff’s physician. The employer responded by offering to limit assignments to juvenile courtrooms only, as those rooms did not have jury trials. The treating physician rejected this written offer as inconsistent with Plaintiff’s condition. The doctor insisted she be returned to her position in the control room. We note it is very common in ADA claims for physicians to take on the role of patient advocate, as outlined here.

The employer sought to accommodate Plaintiff by offering a number of possible accommodations, such as

(1) Allowing her to avoid assignments to any courtrooms in which a trial was scheduled;

(2) Not assigning her to juvenile courtrooms, which were farther from the restrooms; and

(3) Establishing a clandestine “high sign” she could use to quietly signal the presiding judge that she needed a quick break.

Plaintiff rejected all of these proposals without first reviewing them with her physician. The employer continued their documentation which later became their defense case-in-chief. They wrote Plaintiff and reiterated the job duties for all court reporters required rotating through the court rooms and the control room. The employer repeated its proposals of accommodations and set forth a deadline for Gratzl to identify specific reasons why the offer was incompatible with her medical condition.

Plaintiff replied stating her condition had not changed, so further back-and-forth debate served no purpose. She was then terminated and sued under the ADA. The Seventh Circuit affirmed dismissal of the claim by the District Court because the employer clearly took good faith steps to engage in the interactive process to identify a reasonable accommodation for Plaintiff. Although the ADA Amendments of 2008 expressly state that elimination of bodily waste is a major life activity, the federal courts ruled it did not apply to this case.

Either way, the decision is still instructive because the court focused on the essential functions of the job and the employer’s efforts to identify reasonable accommodations for the employee to perform those essential functions. Under the ADA Amendments of 2008, these are now the critical issues for all pending or potential ADA cases. The court focused on the fact Plaintiff’s only suggestion for a reasonable accommodation was to return her to the control room position. The federal court recognized the concept of “reasonable accommodation” does not require an employer to create a new job or strip a current job of its principal duties.

Similarly, the Court ruled the employer was not required to maintain an existing position or job structure it no longer needed or desired. In short, Plaintiff’s only suggestion was not reasonable as a matter of law and she had no reasonable basis for rejecting the employer’s proposals. The court pointed out employers are not obligated to provide an employee the accommodation he/she prefers; they need to provide one that is at least demonstrably reasonable. This Court emphasized the employer proposed a few different accommodations that were structured to conform to Plaintiff’s physician’s recommendations.

The court went on to conclude Plaintiff rejected the employer’s proposals for purely personal reasons and, therefore, she was the one responsible for terminating the interactive process. Accordingly, she was not entitled to relief under the ADA. Under the ADA amendments, employers are forced to focus more on the accommodation process rather than whether a condition qualifies as a “disability” under the Act. This case provides guidance for HR and benefits managers on how employers should handle employee requests for accommodation.

We feel knowledgeable employers should ask employees to submit ideas for reasonable accommodations supported by the employee’s physician review of how the employee’s condition relates to the essential functions of the job. The employer can identify reasonable adjustments that address treating physicians’ recommendations and then put the burden on the employee to identify why the proposals are insufficient or come forward with alternative proposals to consider. Employers should be sure to document all of it in writing to be able to demonstrate efforts to reach a reasonable accommodation. We are confident this process will be the critical aspect of the inquiry if the issue is ever reviewed by the EEOC or a court.

We appreciate your thoughts and comments. The ruling can be found on the web at: http://www.intheiropinion.com/uploads/file/gartzl.pdf.

Synopsis: We assure you this is a ruling only a law professor writing a final exam would like—if you are busy we are confident you probably aren’t going to get a lot of agricultural/aquacultural exemption claims so jump to the next topic.

Editor’s comment: We agree with the appellate majority on this one and feel they got it right. In Hagemann v. Illinois Workers’ Compensation Commission (No. 3-08-0989WC January 22, 2010, opinion modified 04/30/10), the Appellate Court was faced with a mildly unique set of facts. Claimant was a trucker. Part of his work involved driving a truck and hauling grain for an agricultural concern from mill to mill. There does not appear to be any concern that he did not take grain from a farm to a mill but all of his work was hauling grain. There did not appear to be any question the work involved less than 400 working days of agricultural or aquacultural labor per quarter in the preceding year.

820 ILCS 305/3 in subsection 19 sets out the agricultural/aquacultural exemption to the Illinois Workers’ Compensation Act and says:

19. Nothing contained in this Act shall be construed to apply to any agricultural enterprise, including aquaculture, employing less than 400 working days of agricultural or aquacultural labor per quarter during the preceding calendar year, exclusive of working hours of the employer’s spouse and other members of his or her immediate family residing with him or her.

The employer filed a motion to dismiss for lack of subject matter jurisdiction under the Civil Practice Act seeking to confirm the matter was not appropriate before the Commission in reliance upon the statutory provision outlined above. The Arbitrator granted the motion and the Commission affirmed.

When the matter was appealed to the circuit court, the issue arose as to the propriety of the return date on the summons. The Appellate Court ruled the Circuit Court properly denied the grain farm business’s motion to dismiss the circuit court appeal. The reviewing court noted the employee did not fail to exercise reasonable diligence in service of summons, where the circuit clerk failed to issue summons on improper grounds their county sheriff would not serve process on persons outside the county in which the claim was filed.

The Appellate Court also ruled the Circuit Court erred in confirming the Workers Compensation Commission’s dismissal of the injured worker’s Application for Adjustment of Claim on motion. The Court noted the worker was injured while driving his semi-tractor trailer to haul grain. The Court’s majority noted a genuine issue of material fact existed as to whether the agricultural/aquacultural enterprise exemption of Workers Compensation Act applied. The Court further indicated “This standard provides a framework for applying the agricultural enterprise exemption in future cases, each of which, ultimately, will require a decision based on its own unique circumstances.” In layman’s terms, the Court ruled this exemption has to be heard to completion and not presented in a summary fashion on a motion.

We welcome your thoughts and comments.

Editor’s comment: These questions were asked by a client and we provided our thoughts. We would love to hear yours about these tough issues.

The background to the questions:

Illinois Employer A doesn’t exactly have a light duty program.

The injured worker will eventually be able to return to full work at Illinois Employer A when recovered from an undisputed work injury.

During their recovery, the employer sends them to volunteer in a non-paid position at a not-for-profit organization.

TTD was paid while the employee was showing up and working at the not-for-profit organization.

Their goal was to avoid having the worker sitting at home watching Oprah.

Can the claimant refuse such work?

In the recent ruling in Interstate Scaffolding, the Illinois Supreme Court cited Hartlein v. Illinois Power and Hayden v. IWCC to rule an injured worker who is recovering from injury has to do the work a doctor says they can do.

We feel if they refuse such work, TTD is not due.

Is it vocational rehabilitation to put a worker into a light duty position at a charitable or not-for-profit company?

Without intending to be rude, the answer is nobody knows.

Vocational rehabilitation is not clearly defined in the statute or rules.

We have no problem calling it vocational rehabilitation to put someone into such a position because you are rehabbing them to return to their vocation!

But it truly doesn’t make much of a difference—you owe either temporary total disability or temporary partial disability in Illinois if a worker returns to an unpaid position or a low-paid light duty position while recovering from a work-related injury.

What if they get injured in the light duty position?

See the analysis in the first article above—it may now be compensable.

We don’t agree with it but that appears to be the law in this state and we have to adjust.

We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.

Editor’s comment: Don’t expect immigration reform to start in the Courts, folks. We have been looking at the forces against immigration reform trying to stage protests and generate as much press as they possibly can to block reform—it was kind of funny to see 12 people show up at an Arizona Diamondbacks v. Chicago Cubs game to prove their angst and outrage against the state of Arizona. We continue to feel most Americans quietly want immigration reform and understand protests are part of the fight.

As almost everyone in Illinois is a child of an immigrant, we want to point out the main issue may truly be controlling overpopulation in countries such as Latin America, Eastern Europe and China.

Population statistics for Latin America and the Caribbean indicate population was at 167M in 1950 and was at 577M in 2008. You may note that is almost a four-fold increase. It is projected to almost double again by 2100 to 912.

Northern American had population of 172M in 1950 and was at 337 in 2008. It is expected to grow to 398M by 2100.

Asia is at about 4B right now and will grow to 5.5B by the end of the century. If you wonder where global warming is coming from stop worrying about carbon, look to the expanses of Asia that are getting more crowded every day. We can have the thriftiest and most carbon-saving folks in the world but if there are gazillions of them, what difference will it make?

We truly feel the squalor and desperation of overpopulation is going to continue to cause anyone with resources to try to get into the U.S. Please understand it is may be impossible to stem a tide of folks from Asia, Eastern Europe and Latin America. If we don’t take aggressive steps, try to imagine three or four Americans for every one currently in the U.S. Try to also remember you can’t take a bath and get clean if there are ten people in your bathtub—if we don’t control our population, we are going to run out of clean air and water and other resources. We simply can’t afford an “open door” policy on immigration.

Going back to legal news, in Bollinger Shipyards, Inc v. Director, Office of Worker’s Compensation Programs, U.S. Dep’t of Labor, the Fifth Circuit upheld an award of workers compensation benefits to an illegal alien who was injured on the job as a pipefitter. The Fifth Circuit, based in New Orleans, joined the D.C. Circuit in holding immigration status is irrelevant under the LHWCA.

The Court noted the employee told Bollinger he was a citizen and gave the company a fake social security number. After he was injured on the job, the company paid some of his expenses and benefits but then stopped when it discovered he was an undocumented immigrant. The primary question on appeal was whether an undocumented worker could be eligible for benefits under the LHWCA. Analyzing the statute and cases from other statutes, the Federal court held the worker here was an employee within the meaning of the Act and entitled to benefits. Bollinger argued because the worker was not legally entitled to work, he could not be entitled to benefits.

Here’s how the court characterized the company’s brief:

Bollinger contends that undocumented immigrants such as Rodriguez are per se ineligible to receive indemnity benefits under the LHWCA, as any such benefits “would be based on illegally obtained wages.” Bollinger reasons that Rodriguez’s injury caused him no loss of wage-earning capacity because he had no legal wage-earning capacity at the time he was injured. Bollinger histrionically compares the BRB’s ruling to “awarding benefits to a drug dealer based on ill-gotten ‘wages,’ [and] then telling the employer that it better find another illegal enterprise for the drug dealer, lest there be found a permanent loss of wage[-]earning capacity.” In the same melodramatic style, Bollinger compares awarding benefits to Rodriguez to “awarding benefits to a pirate or a Mafioso.”

Bollinger relied on the Hoffman Plastics line of NLRB cases, which made this distinction about whether wages could be paid legally in declining to award some types of relief under the NLRA in order to avoid conflict with the immigration laws, which prohibit the employment of aliens who enter or remain in the country illegally and which also criminalizes the use of false documentation to obtain work.

The court distinguished this line of cases for three reasons:

(1) Unlike discretionary backpay under the NLRA, workers’ compensation under the LHWCA is a non-discretionary, statutory remedy;

(2) Unlike the NLRA, the LHWCA is a substitute for tort law, abrogating fault of either the employer or the employee; and

(3) Awarding death or disability benefits post hoc to an undocumented immigrant under the LHWCA does not “unduly trench upon” the IRCA, as Congress chose to include a provision in the LHWCA expressly authorizing the award of benefits “in the same amount” to nonresident aliens.

The Federal court left open the possibility that an alien who was about to be deported or was sure to be deported might not be eligible for future lost wage benefits calculated as they would be earned in the U.S. We appreciate your thoughts and comments.

Editor’s comment: We will always remember Illinois State Chamber President Doug Whitley telling us he visited the Appellate Court, Workers’ Comp Division. Doug was advised by the court’s staff there was very little to worry about or controversial at the court. The staff advised that the appellate justices knew the rules and case law and quietly adhered to them. Well, we agree the justices unquestionably know the rules and case law; as citizens and academicians we have to ascertain and reach our own conclusions as to whether they closely adhere to them.

Some court observers feel the workers’ comp appellate rulings of the last decade have been decidedly claimant-friendly. As we have advised our readers over and over, in the last decade, there has been a single appellate ruling favorable to Illinois business–Airborne Express v. IWCC. Please note the reviewing courts at the Circuit, Appellate and Supreme Court levels issue 20-50 rulings a year—if you do the math, one pro-business ruling in a decade against 200-500 for labor is way less than one per cent. And when you consider the view of some court observers, the reviewing courts appear to be wildly expanding coverage and stripping away even the most traditional and logical defenses. Illinois WC costs are going up and jobs are leaving or not coming back. With respect to the august members of our reviewing courts, it is our reasoned academic view just about every other ruling “limbos” over, under and around the English language, the statute and the rules to mold the law in the image and likeness of what the Petitioner’s/Plaintiff’s bar wants–compensability of any and every claim. We point out to everyone, the legislation hasn’t truly changed—the change in workers’ comp law or rules comes from the reviewing courts at every level.

Sisbro–a simple legal rule or is it?

By way of background, earlier in this decade our current Illinois Supreme Court issued two workers’ compensation rulings that very clearly and cogently outlined a single principle of law and appellate procedure in the workers’ compensation arena. In landmark cases named Sisbro and Twice Over Clean, our highest court reversed the lower Appellate Court, Workers’ Compensation Division not once but twice. Please note both rulings resulted in very detailed appellate rulings resulting in denial of work comp benefits being summarily reversed. When benefits were provided due to reversal, substantial monies were awarded to claimants.

At the time, the workers’ comp community felt the members of the Commission were very liberal. Most folks on both sides felt this new Supreme Court rule that you “can’t change the IWCC ruling on the facts” would preserve expected liberal rulings at every level of appeal. To implement this patent and simple legal position, the Supreme Court clearly stated in the rulings mentioned above the Appellate Court and all lower Circuit Courts were not to overrule the Workers’ Compensation Commission’s determination on the facts of the case. They demanded strict adherence to the concept the Commission’s factual determinations could not be overruled as being “against the manifest weight of the evidence.” Basically, if there was even minimal support in the record for the Commission’s factual determination in a decision, the reviewing courts had to affirm.

So, everyone in our industry felt a factual determination by the Commission was effectively final. We have seen numerous petitions for sanctions for frivolous appeals from members of the claimant bar, if a claim was being appealed by an employer solely on the facts. Case after case followed with the Appellate and Circuit Courts routinely affirming Commission decisions if the only issues were factual in nature.

Sounds pretty simple; so what happened?

Let’s look at this new controversial ruling that you can’t find on the web and/or read unless you ask us for a copy. In ABF Freight Systems v. The Workers’ Compensation Commission 01-08-3074WC, claimant was a truck driver with a relatively routine back strain. He underwent appropriate medical care. He actually was very close to being completely done and was to be MMI and returned to work very shortly. Then while riding his motorcycle, claimant was in a traffic accident and thrown from his bike to the pavement at speeds he admitted were about 50 miles per hour. He went from having an almost healed back strain to needing six days in the hospital and an implanted pain pump. Medical bills from the motorcycle crash are welll into six figures and continue today, years after the event. Following the non-work-related accident, claimant will have severe and lasting disability and medical attention for the rest of his life, not due to anything that happened at work.

An intervening cause is an event which occurs between the original work-related injury and the final or permanent result. Thus, from an academic and legal perspective, the “causal connection” between the original work injury and new medical care, lost time and permanent disability is broken by the intervening and superseding cause. An intervening cause represents a separate act or omission that breaks the direct connection between the injured worker’s initial injury and a second injury or loss and relieves the employer of liability for the sequalae of the second injury or loss. If you research it, the most common intervening and superseding causes are uncontrollable natural forces and negligent human conduct. In this set of facts, the intervening cause(s) was claimant’s decision to ride a motorcycle and the person who caused this second severe accident away from work.

So, what happened with the litigation? Well, claimant’s counsel made the claim Petitioner’s post-motorcycle accident condition of ill-being and all medical care and disability was related to work. Their theory was claiment hadn’t “completely recovered” from the earlier back strain so everything that happened in the obviously and patently non-work-related motorcycle crash was the responsibility of the employer. In defending the claim, the obvious defense was the long-time and well-settled concept of the motorcycle accident being an “intervening and superseding” event that cut off all liability for the employer.

Intervening and superseding event—sounds complex but actually a simple common sense approach

When one teaches workers’ compensation law and practice, as we do, law students are taught if a claimant has a bruise on the arm due to a work-related injury and then breaks the arm in twenty places in a non-work-related event, it is impossible for a hearing officer to peer into a crystal ball to provide any benefits for the prior work-related contusion. We feel that is simple common sense. In such a situation, the hearing officers outline claimant has to take care of his or herself for the sweeping non-work-related occurrence. We feel this concept summarizes a very basic and straightforward workers’ compensation legal principle in what used to be all 50 of the United States and the four Federal workers’ compensation statutes and rules. We hate to report Illinois has quietly dropped this defense in this unprecedented ruling in ABF Freight Systems.

What happened at the Commission level in ABF Freight Systems? Well, it is our opinion as Commission observers they did their job and followed existing law. The Commission carefully considered all the facts and applied the law and denied benefits. They ruled claimant’s current condition of ill-being following the motorcycle crash was due solely to that accident. The Commission was not inclined to look into a crystal ball to try to cipher out any remaining effect of the work-related strain; claimant’s condition had changed so dramatically due to being thrown to the pavement at high speed, medical care and lost time was now ruled to be solely due to that occurrence, since claimant’s condition was measurably worse after the motorcycle crash. Please note their ruling followed the law but their made clear and concise factual rulings that any veteran legal observer might feel would be locked in on appeal.

So, as the guard at the door to the Wizard of Oz told young Dorothy–Not So Fast!! Not So Fast!!!

Please remember we are in Illinois when we write this. On appeal, it is our opinion the reviewing courts ended, eradicated and stripped away the defense of “intervening and superseding” occurrence. They ruled that since there were still some sequalae, no matter how minimal, of the work-related back strain present, anything that happened to claimant thereafter was now the employer’s responsibility. Therefore the employer was on the hook for six-figure medical bills, lost time and maybe seven-figure permanency; all due to a patently and unquestionably non-work-related event. If claimant is off work and treats for ten years and then dies from the effects of this motorcycle accident, several million in benefits will be owed in a fashion no other workers’ compensation system on this planet would award benefits.

So you may ask this rhetorical question–do you mean to tell us if a claimant has a sore toe and hasn’t completed medical care and while off work is hit by a semi-tractor-trailer at high speed, the employer is responsible for the death? The answer, if you follow this new and unprecedented rule is now yes! If claimant has a work-related sunburn and gets killed by an alien death ray, if you follow this ruling, it is all compensable. We assure you we are not trying to be silly–in real life, this claimant had a minor strain and was already released to light duty; he was very soon to be released to return to work. He obviously felt well enough to ride a motorcycle. He fell off it at high speed and was taken by ambulance to an emergency room and then hospitalized for six days! How can anyone find the sequalae of that accident related to work? We remain adamant that it is inconceivable an Illinois employer should have to pay a dime for what happened to this unfortunate individual as a result of the motorcycle crash—it had nothing to do with his work.

Ignoring Sisbro and more Appellate Secrecy

What we feel is even more galling to the hearts and minds of Illinois business are two things. One, the Commission made a ruling on the facts. Not more than a couple years ago and as more fully outlined above, our Supreme Court promulgated the Sisbro concept to everyone in the Illinois workers’ compensation community confirming factual rulings are locked in and can’t be changed by the reviewing courts. Oops, that appears it may only apply when it means benefits are awarded. If benefits are denied, it may now appear there may be a Super Rule that trumps other rules–it may be okay to reverse on the facts if it means claimants get money. We cannot divine any other reason this Commission ruling could have been reversed.

Second, the Appellate Court did two things in handling this matter that frustrates and sometimes infuriates many workers’ compensation practitioners. First, they “non-published” their very detailed, thoroughly researched and critically important ruling, effectively limiting the pool of readers to the parties and a few Commission insiders. We point out their decision to “non-publish” the ruling hides their reasoning from the public and more important, does not allow anyone to be guided by their mind-set on critically important issues. We always point out such secret rulings could result in a claimant not knowing the law and dropping an appeal they might otherwise win; conversely, it may also have the impact of an employer fighting an appeal to then find out about the clandestine determination of the court and have to tell their clients the cost of getting an appeal bond along with the legal fees and time incurred in the appeal may have been wasted. We also are unaware of any other Appellate Court in the country that keeps so many rulings secret.

You may ask us how we can apparently violate the Court’s ruling by writing this article when their decision is “non-published”–well, they have advised the State Bar Ass’n they don’t mind anyone publishing non-published rulings so until they change that paradoxical position, we will publish. We also hope to see the day that any and every decision by the Appellate Courts reach the new technology that allows their rulings to rapidly hit the web. If you know how to do it, you can go to the Illinois Courts website and listen to the audio recordings of oral arguments in this case before the Court. But you can’t read their ruling!! There is no conceivable reason to hide their decision-making processes from the taxpayers and citizens who pay for and need their guidance in litigation.

As President Obama has said on many occasions, “Sunlight is a great disinfectant.” We point out Illinois is the home state for our Commander-in-Chief and wonder how he would feel to learn so many major workers’ compensation appellate rulings are kept out of the sunlight and under a proverbial basket.

Second, they refused to certify the ruling for consideration by the very court that imposed the “manifest weight of the evidence” rule–the Appellate Court members were asked to certify the claim for review by our highest court and would not do so. Please note they don’t have to tell any of us what their thinking is on non-publishing or not certifying decisions—we point out in Sisbro and Twice Over Clean, the members of the Court published and certified two rulings where benefits were denied by their members and the fact of certification allowed the Supreme Court to then reverse and award benefits. In this case, where they reversed a denial and awarded benefits, however, they wouldn’t allow the Supreme Court to even consider their award.

So what do we do about this? Does anyone in our reviewing courts care about their effect on jobs in this economy?

We don’t feel this ruling is going to have a massive impact on Illinois business. It only applies to someone who has two or more accidents which you have to hope doesn’t happen too often. The ruling is more irritating than monstrous in its implications. But we have watched the courts expand the coverage of the Act and strip away defense after defense and at some point, a thousand little cuts to Illinois business will certainly kill jobs and any hope of economic recovery in this horribly run state. We also point out the job of underwriting many Illinois WC claims is comical to consider—you can’t tell if they will actually follow a law or rule that has been in place for a century!! The impact of pro-Plaintiff rulings combines to have a deleterious effect on jobs in this state. Here are a few:

Beelman Trucking where double weekly PPD benefits were awarded to someone already being paid lifetime total and permanent disability benefits;

Cassens Transportation where someone receiving wage loss differential benefits from their employer can only have them lowered if permanent restrictions magically change, even if they later earn millions;

Interstate Scaffolding where the Supreme Court ruled you have to pay TTD to an employee who commits a crime and gets fired on light duty;

Leung where a flight attendant who hurt herself putting on her coat was provided benefits as a “traveling employee”;

Potenzo where a truck driver was attacked by an unknown assailant for reasons completely unrelated to his work and provided benefits as a “traveling employee”; and

ABF Freight Systems where the defense of intervening and superseding event may have ended

These rulings will also certainly cause state and local taxes to rise as governments struggle with increased WC costs.

Well, forewarned is forearmed. We urge you to push return to work and MMI in all claims—the faster they are back, the better your chances of denying non-work-related injuries. Note the concept of “intervening and superseding event” is going to be a quizzical defense and you shouldn’t closely rely on it. If someone being treated for and off work for a work-related event has a non-work-related setback, keep managing the claim because they may hold you liable for it later. Consider litigation avoidance techniques—send a reply if you want our protocols.

And remember folks, it is now May 2010–the next statewide elections are looming in the first week of November. At present, Republican Bill Brady holds a decided lead in the polls over current Governor Pat Quinn. We are very confident support for Bill Brady is support for workers’ comp reform. Consider joining the Illinois State Chamber and follow the lead of its solid president Doug Whitley in seeking reform of this system and our Courts. Consider joining Doug’s Employment Law Council and think-tank. Consider donating money to support the cause of reasonable workers’ comp reform that reasonably and fairly takes care of injured workers in Illinois but doesn’t reward them with millions of dollars for falling off motorcycles.

If you want a copy of the ABF Freight Systems decision, send a reply. We appreciate your thoughts and comments.

Editor’s comment: We note with chagrin the plethora of articles now on the web outlining growing concerns with head and brain injuries in American professional football. This sport of humans clashing heads together at high impact is now subject to a growing wave of workers’ compensation claims for dementia, lack of coordination, loss of mind and memory. Recent studies have shown numerous football players have suffered head injuries as a result of multiple concussions with resulting clear signs of chronic traumatic encephalitis or CTE. It has been alleged chronic traumatic encephalitis results in early dementia, onset of Alzheimer’s disease and numerous other demonstrable brain disorders. Studies indicate the average high school, college and professional football player sustains over 1,000 measurable concussions in every game. Please note in Illinois, a claimant does not have to typically demonstrate a single injury—sadly, this state is generally to wildly liberal about “repetitive trauma” that is defined by a modern football game and/or practice.

Recently prominent workers’ compensation claims have been filed by several former professional players against the National Football League in California. We assume many other players are considering signing up for the largesse. Every single former player and their counsel point out how awful it is that football teams are so valuable and prosperous while day-to-day players are supposedly left out in the cold with little or no compensation. Every claimant appears to be demanding monster settlements for lifetime medical coverage for any head or brain malady almost as a constitutional entitlement. Observers note this mind-set and statutory scheme makes California a fertile and prosperous jurisdiction for football-based workers compensation claims. Several other states, such as Illinois and New Jersey may be right behind the “Left Coast” in fostering similar brain injury claims. And once professionals start raking in cash, how long will it take for high school and college players to start filing negligence claims against their former schools?

The problem we see with all of it is football is already a very expensive game and is something of an orthopedic surgeon’s fantasy. Modern football players are constantly under treatment and may be disabled as much as or more than they are healthy—most professional football teams have rosters of about 50 players but actually need 100 or more players to get through a complete season. The medical bills for an average NFL or Arena football season have to be well into the tens of millions already. If you add to that cost provision for lifetime medical coverage for every brain dysfunction any football player ever suffers, you are almost certainly going to bankrupt what is our current national past-time.

Please let us know your thoughts or post them on our award-winning blog.

Editor’s comment: As a follow-up to last week’s article on “repackaged” prescription drugs, we were asked by a reader to direct all of you to this answer on the Illinois web site regarding how to best pay for drugs under the Illinois workers’ compensation system. The reader found it in the Frequently Asked Questions section on our Illinois Workers’ Compensation Commission’s informative website.

Moments earlier, the reader received a letter purportedly from a pharmacy biller’s “counsel” stating they had been in touch with someone at the Illinois Work Compensation Commission who claimed they were told by an unnamed official what to do in processing pharmaceutical bills. The letter claimed their “counsel” had been told the repackaged drugs for which they were billing astronomical rates should and must be paid for at 76%.

If you are not aware of this new phenomenon, the relatively new concept of “repackaged” drugs occurs when medical providers buy wholesale prescriptions for what you can get them for at a typical pharmacy and then “re-price” them at an exorbitant markup. The provider would then simply add the much higher drug cost to overall medical billing and hope the medical bill payer would simply approve or discount marginally, creating an enormous profit.

The problem with that approach is it is in direct opposition to what the Commission’s web site says! The Commission website provides:

How should pharmacy drugs be paid?

The fee schedule does not apply to pharmacy prescriptions. Prescriptions should be paid at the usual and customary rate. The law and rules make no mention of what the usual and customary rate is. No formula was adopted. If there is a dispute, the parties would take the issue before an arbitrator.

Our reader advised there are some general HCPCS codes on the fee schedule (e.g., J3490: unclassified drug) that show a fee or POC76 (i.e., pay 76% of charge). Some providers try to use these codes for prescription bills and claim payment should be at that fee or at 76% of charge. Our reader asserts this view is incorrect and should be rejected. We agree that drug vendors should not improperly implement HCPCS codes to side-step the fact Illinois does not have a WC pharmacy fee schedule.

We have forwarded the letter and the concerns we have about “repackaged drugs” to our Illinois Attorney General’s office for their consideration. We assure everyone of our view the practice is simply and patently gouging when it comes to a fair price for prescription medications for Illinois employers and injured workers.

We thank our reader for her thoughts and recommendations. We would love to forward any response you might have.