Keefe, Campbell & Associates, LLC

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: This ruling is a clear and concise statement of law on the issues in the Synopsis above. If you don’t regularly handle such matter, move on to other stuff and leave this article to the law buffs.

In Hagemann v. Illinois Workers’ Compensation Commission, (No. 3-08-0989WC Jan. 22, 2010), a unanimous Appellate Court, Workers’ Comp Division ruled Plaintiff timely filed a valid summons with the Circuit Clerk to initiate a timely review of a decision of the Workers’ Compensation Commission. The Court noted the clerk delayed issuance of the summons because no return date was listed on summons, and because County Sherriff would not serve summons outside county.

In light of such facts, the Court ruled there was no lack of diligence of service, as the lack of a return date did not defeat court’s jurisdiction. The Court further noted there was no prejudice as Defendant had notice of appeal within one month of filing.

The Court also note the question of whether the injury to Plaintiff, a grain hauler, fell within the agricultural exemption to Workers Compensation Act was a genuine issue of material fact, dependent on specific nature of his work, and had to be adjudicated through typical arbitration procedures.

Editor’s comment: We have been asked the question so many times; we felt a full review was necessary. Trust us the issue cuts in a number of directions for risk managers, brokers, claims handlers and attorneys on both sides. This is another area, like release/resignations, where workers’ compensation claims practice will start to cut into employment law issues—WC claims handlers are not going to be able to take the “ostrich approach” and stick their heads in the sand and ignore the EPLI (or employment practices) ramifications of their decisions. If further training is needed, send a reply.

The Illinois standard—Mechanical Devices = MMI to get injured folks off TTD

First and foremost, the Illinois standard on getting workers off TTD and back to work comes from the ruling of our Appellate Court, Workers’ Compensation Division in the oddly named case of Mechanical Devices v. IWCC. In Mechanical Devices, the Court focused on maximum medical improvement or MMI as the basis to get someone back to work and off your dole. Like a lot of other stuff in Illinois workers’ compensation law and practice, the concept of using MMI as the basis for returning folks to work is not contained in the legislation or rules. There is no legislative history for the Act or Rules so the reviewing courts didn’t get it there. It was basically created by the courts and we will all have to struggle with defining it.

You may note some doctors, hospitals and other caregivers will affirmatively find a claimant to be MMI and some doctors simply won’t. The over-billers in the work comp medical field will almost never use the concept because they will keep providing care and “treatment” so long as folks keep coming back for whatever treatment protocol can be implemented. Whatever you do, you can’t force a doctor to provide an MMI finding—they either will or they won’t. Many doctors and similar caregivers are trained to put in their medical charts “return PRN” at the end of care—the term ‘PRN’ means return “per required need” or is a way of leaving it up to the patient to decide on whether they have a defined medical need.

Either way, MMI is a very liberal standard to use on when to get folks back to work. We don’t feel you should regularly use it; you just have to be aware that when push comes to shove, that is how the Commission and reviewing courts may analyze your actions and claims decisions. The reason we feel it is so liberal is the vast majority of workers will return to light or full work long before they are fully recovered and no longer need care. As you may note below, the federal government is affirmatively requiring U.S. employers to bring workers back to work prior to their reaching maximum medical improvement—they just aren’t providing guidance as to when and how you have to do so. We truly feel getting someone back to work definitively assists them in recovery and brings the medical course to close quicker.

What do you do when injured works want to come back to work faster and want light work accommodation—accommodate!

The second or “inverse” of the situation in which you are trying to “force” the worker to take light or full work by cutting off benefits is what do you do when the injured worker demands it? In the recent settlement in EEOC v. Sears, a class of workers from Sears all affirmatively requested light work or accommodation and were refused or simply put off by Sears. When it was all said and done, the workers didn’t get back to light or full work and were eventually terminated for being off work too long.

The workers seeking “accommodation” or light work all filed EEOC charges. They were later represented by the EEOC. The EEOC took the stance ADA mandates light work or job accommodation for injured workers in the WC setting. Rather than fight and possibly pay both sides attorney’s fees, Sears settled the dispute for over $6 million dollars.

This sets up the legal scenario mandating light work or job modification where possible to facilitate return to work “with reasonable accommodation” whenever and wherever possible.

The problem with unions in all this mess—are they above the law, specifically ADA?

We were recently asked by a client what to do when a union advised their injured members had to be healthy enough to return to “bargaining unit work” or they had to be kept on work comp benefits. The problem we have with the collective bargaining agreement model presented is defining what is “bargaining unit work” and whether such work may ever be modified.

There is no direction from the EEOC on the subject that we are aware of. The ADA says everyone, including the unions have to reasonably accommodate injured workers. We feel some unions try to get out of ADA by saying you, as the employer, aren’t technically “able” to reasonably accommodate injured workers to allow them to perform “bargaining unit work” with accommodation. We feel that position runs directly counter to the intent and purpose of ADA which defines needed job changes to be required when “reasonable accommodation” will allow an over-the-road truck driver or rough carpenter or journeyman electrician do essential job functions with some modifications.

So for example, if you have

• A truck driver who ‘has’ to lift 75lbs to do his/her “bargaining unit work” and
• You are confident your staff can modify the vehicle and job to allow him/her to return to work with essential job functions and the same pay at a 50lb limit;

We think you and his unions have to cooperate to allow him to work with modification under the ADA. Many unions say no, you can’t do that and “bargaining unit work” can’t be modified so as to accommodate an injured worker in any way. Therefore, we feel it is their position the worker has to be left on WC to the strong detriment of employers and to the wild benefit of the injured worker who may now receive thousands or possibly millions in WC benefits in IL. It is our opinion labor unions want that outcome and do everything they can to make it happen.

We feel that approach directly violates what ADA demands. We feel Sears got walloped by the EEOC for not being willing to change their job description for an auto mechanic to accommodate similarly injured workers—the cost to Sears was over $6M. We don’t know why that same legal theory wouldn’t apply to the unions and employers in all U.S. industries.

Some day, someone is going to get better direction on whether this approach complies with or violates ADA. However, due to the cost and uncertainty of such litigation, my vote is not to let your organization pay for the test case on the topic.

Can I cut them off TTD in reliance on my defense IME?—not so fast, not so fast!!!

Finally, you need to know about Grabs, et. als. v. Safeway, Inc. and Dominick’s Finer Foods, LLC. In their ruling, the Illinois Appellate Court addressed a certified question on an interlocutory appeal on this narrow issue of alleged retaliatory discharge. Plaintiffs filed a joint complaint alleging Defendant terminated them in retaliation for filing workers’ compensation claims. Defendant responded to assert Plaintiffs had been terminated for violating a neutral attendance policy when they missed three consecutive days of work subsequent to being advised to return to work pursuant the opinions given by Defendant’s IME. A battle over the IME and ability of the employer to rely on the IME to terminate the workers went back and forth.

The Appellate Court found it wasn’t per se retaliation to fire someone in reliance on an IME but the lawsuit was allowed to stand and was returned to the Circuit Court for hearing. The Appellate Court felt the employer had to first go to the Commission to get a ruling about the efficacy of the IME.

Therefore, our advice is not to fire a workers’ compensation claimant in reliance only on a defense ME. Put the reluctant worker on either leave of absence or inactive status—issue COBRA notices, etc.

All of this requires close coordination with defense counsel. We are happy to assist in close calls—just send an email or call one of the nice attorneys at their numbers below. We appreciate your thoughts and comments, please reply or post them on our award-winning blog. For details, read below.

Editor’s comment: KC&A would like to take this opportunity to highlight some of the most important cases in Illinois workers’ compensation history. This is the final installment in a three-part series.

For those industry insiders who know Illinois workers’ compensation law like the back of their hands, this may be a bit of a review, but we recently updated our “Noteworthy Cases” spreadsheet and thought we would take this opportunity to point out some of the cases that have impacted Illinois over the years.

National Manufacturing v. Industrial Commission – No penalties/fees can be awarded on undetermined amounts of permanency. Many defense observers also feel this ruling mandates presentation of unpaid medical bills and supporting documentation in advance of the hearing to allow a claim for penalties and fees. *** Please note *** as outlined in the article above, in claims involving amputations, Nobile v. Midwest Wrecking Co. and Kinnaird v. Greene Welding & Hardware hold the employer/insurance carrier responsible for immediate payment on statutory loss when it is uncontested.

Navistar International v. Industrial Commission – Employer was only entitled to a credit for net amount of compensation “after taxes” claimant received under employer’s group health or STD/LTD plan rather than for the gross amount of benefits paid to claimant—note IRS regulations and forms allow such payments to be nontaxable and we argue full credit should be provided in such an instance.

Pathfinder Co. v. Industrial Commission – A sudden, unforeseen and shocking psychological injury, even without physical injury, is compensable under the Illinois WC Act. Illinois remains reluctant to adopt what is sometimes called “California” or “mental-mental” stress claims. It isn’t considered an “accidental injury” in Illinois if your boss is mean to you or you have to work hard to make a living.

R.D. Masonry, Inc. v. Industrial Commission – An injured worker must submit to a section 12 IME even if all benefits are fully disputed and aren’t being paid. Mileage expense has to be send with the notice of the IME. Refusal will be sufficient reason for non-payment.

Saunders v. Industrial Commission – Claimant denied benefits as injury did not arise out of employment, since claimant was getting off a forklift he was riding as a passenger in violation of enforced safety rule and was going to lunch and not working when injured.

Sisbro v. Industrial Commission, Boyd Electric v. Dee, Twice Over Clean v. Industrial Commission – Factual findings on causal connection issues are “within manifest weight of the evidence” in derogation of prior legal rulings or defenses relating to accident disputes for various medical conditions personal to claimant. Note: decisions on facts are supposedly limited to facts of that case but continued legal trend clearly indicates current reviewing courts may not follow traditional legal principles to overrule IWCC.

Sylvester, Ronald v. Industrial Commission – Determined the “average weekly wage” in Section 10 may be the “average hourly wage” by calculating the hourly rate x 40 x 52. Of the three possible methods to determine the wage, this is clearly the most radically pro-employee with the Appellate Court agreeing the interpretation may result in a “windfall” where the injured worker may get much more money disabled than they actually earned while working.

If you have any questions or comments, please forward them to our resident Blog Administrator, Arik D. Hetue, J. D. who can be reached at ahetue@keefe-law.com.

Editor’s comment: KCA would like to take this opportunity to highlight some of the most important cases in Illinois workers’ compensation history. This will be the first installment in a three part series.

For those industry insiders who know Illinois workers’ compensation law like the back of their hands, this may be a bit of a review, but we recently updated our “Noteworthy Cases” spreadsheet and thought we would take this opportunity to point out some of the cases that have impacted Illinois over the years.

Airborne Express v. Workers’ Compensation Commission – Average weekly wage calculation doesn’t take overtime into account if it was voluntary. Note the ruling in Edward Hines Lumbar v. Industrial Commission has thus been modified to hold mandatory overtime hours are included in average weekly wage, not overtime premium; “regular and consistent” is no longer the law of Illinois. Compare the Workers’ Compensation Act that clearly excludes all overtime hours.

Beelman Trucking v. Workers’ Compensation Commission – Where amputations of two body parts would lead to statutory total and permanent weekly benefits, Petitioner can seek permanent partial disability award for additional permanency to other affected body parts in addition to the total and lifetime permanent benefits.

Cassens Transport v. Industrial Commission – It is technically impossible to reduce a wage loss differential ruling once set unless the permanent restrictions come off claimant’s medical chart.

Circuit City Stores, Inc. v. Workers’ Compensation Commission – The “Good Samaritan” doctrine applies to just about any injury, whether within the course of employment or not (including hip checking a vending machine) when the employee is injured while coming to the “aid” of co-worker. Note, if you have the right claimant lawyer, the “Good Samaritan” doctrine may apply in less-than-life-threatening situations, like wanting Doritos®.

Economy Packing Co. v. Workers’ Compensation Commission – Illegal aliens in Illinois can obtain lifetime total and permanent disability benefits because they can’t locate suitable replacement work due to their illegal status making them technically unemployable. No one has any idea whether a broken toe could lead to a total and permanent disability award if the employee becomes unemployable not due to the finger but to discovery of their illegal status—the court provided no direction to either side on the issue.

EEOC v. Sears – Not actually an Illinois case, but a recent Federal court settlement in which the EEOC made it clear it will begin to attack U.S. businesses across the country who use “auto-termination” policies that seem to violate the ADA. Essentially, this will require auto-termination policies to take ADA considerations into account, working with an injured worker who could perform duties with requested accommodation. If you don’t understand it and don’t address their concerns, we assure you the EEOC will come calling.

Fencl-Tufo Chevrolet v. Industrial Commission; Nollau Nurseries v. Industrial Commission – Treating medical records are admissible as inherently reliable when not created in anticipation of litigation. Medical expert opinions about causation or disputed litigated issues should not be admissible without agreement. Note: foundational requirements still required. This was codified in the 2005 Amendments to the Act; treating hospital records with appropriate foundation have always been admissible under Section 16.

General Tire & Rubber Company v. Industrial Commission – Decision based upon contradictory reasoning outlining mileage to medical providers is owed—this ruling is in derogation of statute and rules that have no such provision. This is the first Illinois WC decision in which our reviewing courts made a supposed legal “ruling” by claiming the decision of the IWCC was “within the facts.” We note this ruling could require Illinois employers to give all injured workers unlimited benefits if the IWCC gave them because such a ruling would always be “within the facts.”

Ghere v. Industrial Commission – Employee’s physician must provide expert medical opinions no later than forty-eight hours prior to deposition or arbitration hearing to be admissible, similar to requirement of IME physicians and applies to treating physicians. Current IWCC is not following this requirement strictly. Note: 2005 decision in Kishwaukee Community Hospital v. IWCC appears to wholly obviate or eviscerate this ruling if Petitioner’s counsel advises in writing prior to deposition that physician will generally “opine about causal connection” without providing specific opinions or basis therefore.

Grabs v. Safeway, Inc. – When employee is off work due to a work related injury, the employer may not discharge employee for refusing to return to work against their doctor’s direction solely because the employer obtains an IME opinion that the employee can return to work without restrictions. However, the employee must still prove their discharge was causally related to the assertion of rights under the Workers’ Compensation Act. As a result, the best course may be to recommend inactive status or leave of absence, forward COBRA notices and wait for the case to work itself out.

If you have any questions or comments, please forward them to our resident Blog Administrator, Arik D. Hetue, J. D. who can be reached at ahetue@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.