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: In Cramer v Viacom Outdoor 2009 WL 3807341 (Ill.Indus.Com’n), Commission Panel B upheld denial of benefits determined by the Arbitrator based upon an injury which occurred at an employer sponsored charity bowling event. The pertinent facts noted the event occurred during the afternoon hours of what was otherwise a normal business day. The employees including Petitioner worked the earlier part of that day in the office up until 1:30 PM when they departed for the event at a local bowling alley. The employees were paid regular wages for the time they attended the event and if they didn’t attend, the office manager testified they would have been paid regular wages but would have been required to attend to regular office duties.

While bowling, Petitioner sustained a comminuted fracture of the articular surface of left distal radius and a comminuted fracture of the left humeral neck along with a tear of the left supraspinatus. She underwent an open reduction with internal fixation of hardware to repair the radius fractures. As a result she has lost significant range of motion in both the wrist and shoulder joints.

Even though Petitioner testified she felt “pressured” to attend the event the claim was denied. We note she did not testify that she was ordered or assigned to attend the event, as the statute would require for injuries to be compensable. The employer’s witness who was their Human Resources manager testified employees were not ordered or assigned to attend the event. While language in notice of event strongly encouraged everyone to participate, it provided employees not wishing to participate will be required to work their normal day. Employees were asked to advise whether or not they would be participating. Each participant was required to make a minimum $15.00 donation. However, the company promised to pay for the bowling and shoe rental.

The basis for the denial is the exclusionary language found in Section 11 of the Act. The relevant portion of Section 11 reads as follows: “Accidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics do not arise out of and in the course of the employment even though the employer pays some or all of the cost thereof. This exclusion shall not apply in the event that the injured employee was ordered or assigned by his employer to participate in the program.”

Another key fact was an attendance record showing ten of the 36 employee staff (27%) did not sign up to attend the event, although they did make a donation and there was no evidence presented that any of the employees who did not attend the event were disciplined or discriminated against in any way by the company.

This case is a good example of an Arbitrator who heard all of the evidence and determined all appeared to be credible, but noted the language of the Act and the overwhelming facts in the matter did not support compensability under the Illinois WC Act. Respondents can also take away the lesson that good investigation and presentation of evidence still is an effective method of defending claims with actual defenses.

If you are planning a recreational outing for your workers now or in the future, we have a release form you can use to insure accidents occurring during the event are not compensable. If you would like a copy of the form, send a reply. This article was suggested by a knowledgeable reader and we thank her for the tip. It was then researched and written by Shawn R. Biery, JD. Please forward any comments or requests to sbiery@keefe-law.com.

Editor’s comment: We applaud the Commission for recently reversing an Arbitrator’s ruling finding a very drunk employee to have suffered a compensable workplace injury despite admittedly drinking for four hours before returning to work and having a BAC three times the legal limit. When will this state abandon the functioning alcoholic standard and find these roustabout injuries to be non-work related?

In Powell v. International Crown, 99 W.C. 064102, No. 09 I.W.C.C. 0992 (October 2009), Petitioner, a journeyman iron-worker, admittedly went out drinking with his co-workers a little before lunch as the wind was making it difficult to perform the job duties. While at lunch, Petitioner admitted to drinking at least four beers and one “blue shot” but could actually not recall how many drinks he had exactly. Petitioner admitted to drinking for four hours at the bar. Petitioner testified he had no memory of anything after leaving the bar until waking up in the hospital.

During his blackout, three of the four man crew apparently returned to the worksite in order to secure the gear for the next day. Upon arrival at the job site, the foreman decided to continue working, and Petitioner climbed onto the roof where the work was being performed. Petitioner apparently worked for 10 minutes and then fell off the roof. Upon arrival at the emergency room, Petitioner was unable to recall the traumatic event or to provide a past medical history due to his intoxication. Petitioner’s blood alcohol level tested almost an hour after leaving the bar remained at .248, over three times the legal limit. Petitioner had final diagnoses of vertebrae and rib fractures and alcohol abuse. Petitioner later underwent thoracic spine surgery.

Petitioner attempted to bring up the “functioning alcoholic” argument at trial, with the testimony of his medical expert evidencing “a longstanding history of alcohol consumption by Petitioner, beginning at the age of 21 with daily drinking after work and continuing to present day, where Petitioner reported average weekly alcohol consumption of at least two cases of beer.” Petitioner’s expert was unable to definitively opine he was alcoholic, but he opined Petitioner “clearly had a prodigious tolerance for alcohol and … was able to perform a variety of cognitive and motor functions without alteration, lack of coordination or confused speech…” The expert went on to opine Petitioner was not impaired from performing his job functions at the time of the injury.

We note although the Arbitrator found Petitioner to have fallen off the roof due to essentially passing out from alcohol intoxication, he relied on the above findings as well as the indication that Petitioner was under the direction of his foreman a the time of injury to award the injuries as compensable.

The Commission in its decision concisely stated current Illinois law, stating as follows:

…where the evidence of intoxication is significant to the point that the court can hold, as a matter of law, that the injury arose out of the drunken condition and not out of employment, recovery under the Workers’ Compensation Act can be denied.” District 141, International Association of Machinists & Aerospace Workers v. Industrial Commission (1980), 79 Ill.2d 544, 39 Ill.Dec. 196, 404 N.E.2d 787). Although the ultimate conclusion must appear as a matter of law for the intoxication defense to succeed, such a decision is dependent on a number of factual determinations, such as the degree of the employee’s intoxication, his capacity to continue carrying out his employment and the cause of the accident. Paganelis v. Industrial Commission (1989), 132 Ill.2d 468, 139 Ill.Dec. 477, 548 N.E.2d 1033; see also Lefens v. Industrial Commission (1918), 286 Ill. 32, 121 N.E. 182 (the condition of an employee as to his intoxication is a question of fact)).

The Commission reviewed the testimony de novo and found clear evidence alcohol was the sole cause of Petitioner’s injuries and reversed the Arbitrator, but part of their ruling was based on the discrepancy between the reported outward appearance of Petitioner at the time of the injury by his co-workers in contrast to his outward appearance just minutes later by emergency responders and police officers. We applaud the Commission for getting this one right in the end, but we have to ask the question – if an employee is clearly three times the legal limit, literally halfway to the point of death due to alcohol consumption (achievable at BAC levels of .5), do we need to continue to rely on the “functioning alcoholic” standard? Do we really need to look into whether a person smelled of alcohol or was slurring their speech when we have proof of BAC?

Whether someone looks like the can handle their liquor doesn’t mean the law should differentiate based on appearances. Ask the mothers of children killed by drunk drivers whether they care if the driver looked sober.

This article was writing by Arik D. Hetue, J. D. who can be reached at ahetue@keefe-law.com. Please feel free to post comments on our award winning blog at www.keefe-law.com/blog.

Editor’s comment: We report this to be sure everyone in HR, benefits and safety is aware of it for future preventative measures and training. Without intending to sound insensitive, we ask our readers to tell us how this amount of money can bear any semblance of common sense when one considers this young lady has no visible or permanent physical injury of any kind. Yes, we do feel bad for her and we are certain she had some psychological impact but, in our minds, she will be laughing while toting her millions in a stretch limo all the way to the bank.

We consider this a patent example of an awful fact of American life and modern personal injury litigation–something bad happened so a random corporate defendant has to pay heavily. We feel one could just as easily have blamed the phone company for providing the phones used in the scam, the surveillance camera installers who put in cameras that recorded the event but didn’t stop it or any random police department you want to pick—their “culpability” for the bad and unfortunate choices made by the employees of McDonalds during and after this event was just as strained. When the U.S. personal injury system starts to look like a poor person’s lottery, as it does here, we think reforms are needed.

At some point, starting in the mid-1990s, some moron started to call fast food restaurants and masquerade as the local police, FBI or other authority. The caller would then ask company managers to start ordering workers to do strange things, like impromptu cavity searches or jumping jacks as part of a purported criminal investigation. Numerous incidents were reported around the country. The actual bad guy(s) got away and their identities remain unknown.

What happened in one rural McDonald’s in Mt. Washington, Kentucky clearly went dramatically over the top. We cannot publish all the details because your spam blockers will not let them all through but suffice it to say the young employee and those around her underwent substantial discomfiture as part of the hoax. The corporate defendant came under attack because they were alleged to have “known” of this scam by a random goof and did not take steps felt necessary to warn or train folks not to lose their minds and all sense of decency and judgment when they received such calls.

The matter went to hearing before a jury. We are confident the legal department of McDonalds was stunned when they ruled claimant was entitled to $6.1 million in compensatory and punitive damages. The Kentucky Court of Appeals just issued a ruling which exhaustively looked at all the facts and law but still affirmed. The ruling and details are on the web at:

http://www.leagle.com/unsecure/news.do?feed=yellowbrix&storyid=1000038480

The corporate office of this major U.S. food retailer made their position crystal-clear in an official statement:

We are extremely disappointed with today’s Appellate Court decision. McDonald’s is not disputing that what happened to [Plaintiff] was wrong. However, it has been our position throughout these proceedings that she was the victim of a malicious hoax perpetrated by individuals not representing McDonald’s.

The dollar amount McDonalds owes as of November 15th is $10,900,000. As we indicate above, we were reluctant to publish this sad legal note but we want our readers to understand you need to address it as part of your training programs to avoid the chance someone pulls such a prank on your organization.

Editor’s comment: One wag in our office pointed out the Appellate Court probably could have also found it compensable under the “traveling employee” doctrine because the worker was running or “traveling” at the time of injury. Like the recent “stray bullet” claim, most observers are starting to feel rulings such as this epitomize a state where there are so many ways for a claim to be compensable, there is no way to ever defend an Illinois employer.

As you may recall, we reported a claim that got national attention in the workers’ compensation press when a worker ran and jumped into a concessions machine to try to dislodge a bag of Doritos® that wouldn’t fall under its own weight. The poor guy broke his hip and had expensive surgery. The poor and recently defunct employer is now responsible for all of it when they just wanted their workers to be able to have a simple convenience.

In Circuit City Stores, Inc. v. Illinois Workers’ Compensation Commission (No. 2-08-0722, this replaces original opinion and was filed July 9, 2009), our unanimous Appellate Court, Workers’ Compensation Division ruled on rehearing by admitting they were initially wrong. They found the “Good Samaritan” doctrine, rather than “personal comfort” doctrine applied when the employee was injured while coming to the aid of co-worker seeking personal comfort.

The Court ruled the employer had “notice” of the arguably defective vending machine which was made available to employees for their use and personal comfort. Therefore, the employee’s hip fracture injury, suffered helping co-worker by trying to dislodge product from vending machine, was reasonably foreseeable.

With respect to the august members of the Court, we don’t agree even a little bit. They knocked out their earlier ruling when they noted the employee wasn’t addressing his own “personal comfort” but someone else’s. It is our opinion their expansion of the “Good Samaritan” doctrine is inappropriate and wildly overbroad. A Good Samaritan is someone who steps up to save the life of a stranger or otherwise minimizes imminent peril. It is our view this misguided quest for Doritos® should only be applied if the other worker needed the chips to stay alive.

It would have been a lot easier for both workers to simply track down someone who could have opened the machine up and provided the food or a refund. The worker who acted rashly to cut a corner in a wholly unpredictable way should not be awarded benefits in a fashion that encourages others to act without regard for safety.

If you have such machines in your workplace (and we do), we suggest putting up signs indicating employees should not strike, run at or otherwise shake the machines but contact management for assistance. We appreciate your thoughts and comments.

Editor’s comment: Business observers may ‘draw your own contusions’ but we again feel Illinois workers’ compensation claims are invariably being drawn toward global coverage of all injuries. Our heart goes out to the unfortunate claimant who, regardless of the legal analysis, suffered a life-changing injury.

In Restaurant Development Group v. Hee Suk Oh, (No. 1-08-2143WC June 16, 2009). a unanimous Appellate Court, Workers’ Compensation Division ruled claimant’s job as a bartender in the Bucktown area of Chicago exposed her to a higher risk of injury than the “general public.” The record indicated the Bucktown neighborhood was a “high crime area” with a history of gang violence. A Chicago police officer was called to testify and indicated the neighborhood was in the top 25-33% of Chicago neighborhoods for violent crimes. There also appears to be a lot of evidence presented indicating the Bucktown area was “gentrifying” or improving rapidly and the gangs were being moved out. Obviously, that process didn’t happen fast enough.

The court also noted the property had floor to ceiling glass near which claimant worked on evenings and weekends. We point out you don’t build restaurants with floor to ceiling glass in poor neighborhoods—the presence of such restaurants signaled the improving neighborhood. Regardless, the members of the court felt the presence of such glass placed claimant at an increased risk of injury from gunfire. Therefore, injuries she suffered when a stray bullet pierced the window and paralyzed her arose out of and in the course of her employment. The court affirmed a permanent total disability award as not being against the manifest weight of the evidence.

We initially note claimant lived in the Wicker Park neighborhood and worked in an area called Bucktown. For our readers from outside the Chicago area, in the 60’s and 70’s, both areas were pretty run down but had similar transformations where gangs were pushed out and nicer folks who like Starbucks® moved in during the late 1990’s and into this century. From our view of the Wicker Park and Bucktown neighborhoods, the risks of getting hit by a stray bullet were a 24/7/365 issue for this worker whether at home, work or play. But also understand it is a wildly uncommon thing for someone to be hit and seriously injured while at work in this fashion.

The question faced by the court is when something is “a risk common to the public” versus a work-related risk. We point out the adjective ‘stray’ in the term ‘stray bullet’ means random and unexpected. Employers aren’t supposed to owe workers’ compensation benefits for random and wholly unexpected events that cause injury. We assert the reasoning provided in this ruling would render all actions leading to anyone becoming a victim of any crime at work compensable. We also point out Chicago doesn’t have a neighborhood that doesn’t have violent crime and gang issues, some have more and others have less. President Obama’s neighborhood is closely watched for violent crime and gang issues—they won’t let you or I travel within six blocks of his home due to appropriate concerns for his safety. We are in Chicago that has violent crime and, sadly, stray bullets—that is why many of our readers don’t live there. With deference to the court, they clearly don’t compare apples to apples—they say they are comparing the risk of being in Chicago to the risk of being in rural Illinois. We agree there are not a lot of stray bullets in the cornfields outside Bloomington, Mendota or Marengo. In contrast, we assert the risk of stray bullets is a “risk common to the public” that lives, works and plays in this city, like this claimant.

We had a claim where a woman’s purse was snatched near her job in front of twelve co-workers. As the unlucky victim, she claimed injury. While we are sorry to hear it, there are purse-snatchings in that area. Are all such events going to be work-related? When is it a work-related risk and when is it a risk of being a human in this state? Folks in Mendota and Marengo don’t have their purses snatched so is it compensable?

Our problem with the reviewing courts in this state is they do a solid job of legal and factual analysis. As a group, they tell us why cases are compensable, in their view. As a matter of fact, on the issue of accidental injuries being compensable, we can’t remember any case coming from the reviewing courts that wasn’t eventually found to be compensable. In this ruling, they don’t give anyone any guidance on when a victim of any crime who is at work in a shady or run-down area of cities like Chicago, Rockford or Aurora won’t get benefits. We want our readers to understand we can’t have a system of litigation if our hearing officers and the reviewing courts are going to make all events uniformly compensable under the repetitive trauma concept, the traveling employee model or the “risk common to the great public that doesn’t live in a cornfield in Mendota” approach.

We appreciate your thoughts and comments.

Editor’s comment: You might want to put a “Do Not Bash” sign up by your vending machines following this ruling. In Circuit City Stores v. Illinois Workers’ Compensation Commission, (No. 2-08-0722WC May 21, 2009), the Appellate Court, Workers’ Compensation Division unanimously reversed the trial court’s denial of benefits and reinstated a significant award by the Workers’ Compensation Commission. The Commission found an injured employee suffered compensable injuries arising out of and in the course of his employment when he fell and fractured his hip helping a fellow employee dislodge a bag of chips from defective vending machine supplied by employer.

Claimant was a car-stereo installer who rammed a vending machine that refused to give up a bag of Fritos©. We note it isn’t often that retrieving a stuck snack becomes a compensable injury. As often happens when someone pays for snacks that get stuck in a vending machine, the worker first tried shaking the machine set in a hallway just outside a workplace break room. When that didn’t help he backed up and jumped and threw his shoulder into it. He fell down with a broken hip and was rushed into surgery. He got over $60,000 in medical benefits, 12+ weeks of lost time and 35% LOU of the leg.

Ramming the vending machine was legally foreseeable because products regularly jammed in it, our appellate court said. For those who argue it is a risk common to the public, we can only say “welcome to Illinois.” Allegedly employees at the store often shook the machine to dislodge snacks. So the court said butting, bashing and shaking the machine were foreseeable and the worker was acting within the scope of his employment when he did so. From the business perspective, no one pays an employee to bash, butt or jump into vending machines. Illinois employers should not have to tell their employees if a stack gets stuck; ask the manager for a refund or assistance to open the machine and don’t endanger yourself. Common sense only applies in Missouri or Indiana.

Aaaah—how are Circuit City’s Illinois locations doing these days? If you need the citation or have any thoughts send a reply.

Editor’s comment: The first thing an adjuster must do when a new claim has been made is to evaluate whether the loss is covered by workers’ compensation law (versus general liability or some other common law or statutory remedy). If so, the next inquiry is whether Illinois workers’ compensation law applies versus the law of some other state. Finally, if the case is properly an Illinois workers’ compensation claim, the adjuster must determine whether the policy in force at the time of the accident or disability covers the particular loss alleged.

A. Is this a workers’ compensation claim?

This basic question is often overlooked. The assumption is that if a workers’ compensation claim is filed, the case necessarily involves a loss that should be compensated under workers’ compensation law. However, in order to recover benefits under workers’ compensation law, the claimant must be at or close to work and “working” to obtain benefits. The traditional WC injury occurs when the employee is injured while incurring risks which they only incur at work vis a vis the risks of daily life and discourse. If it can be established that the accident or disability occurred outside the employment or as a result of a risk of everyday life (regardless of work), the claim for workers’ compensation benefits should be denied.

One exception to the general rule above is the “traveling employee” rule. Claims involving employees who are traveling on a special mission for their employers are said to be protected by workers’ compensation coverage for all activities they could reasonably be expected to partake in while on the road.

Also, it is important to understand that the employer and its carrier and TPA have in some instances an “‘option” with regard to payment of benefits under either workers’ compensation or general liability. For example, if an employer has an employee become injured as a result of slipping on ice and snow while working on company property, it is possible that you could successfully deny the claim for workers’ compensation benefits only to then face a premises liability lawsuit which is possibly much more expensive to defend and potentially explosive due to the unpredictability of jury awards. The employer can opt not to fight the workers’ compensation claim and voluntarily pay workers’ compensation benefits which would block any third party claim against the employer if the employee knowingly accepts such benefits.

B. Illinois jurisdiction

Once it has been established the claim properly involves workers’ compensation benefits, the adjuster must determine whether Illinois is the proper jurisdiction for the claim to be heard. It is critical to understand a claimant could have a claim for workers’ compensation benefits in a multitude of states or jurisdictions. The employer should receive credit for any benefits paid in any state or under federal law under the full faith and credit clause of the United States Constitution. You should never have to double or triple pay benefits. But remember, payment of Illinois benefits does not block the filing of a claim in another state or under federal law, if applicable.

Illinois has proper jurisdiction if one of the following tests are met:

1. The accident occurs in Illinois. This concept applies even if the employee executed a written agreement prior to employment to only seek benefits in another state;

2. The accident occurs outside Illinois but the “contract for hire” was formed in Illinois. This is the tactic most commonly used to bring out of state claims into Illinois. The contract for hire is said to be finalized where the employee accepts the offer of employment which leads to a number of factual disputes;

3. Employment was principally localized in Illinois. This is utilized when the employer may have an out of state headquarters for employees who really perform the majority of their work in Illinois. This situation frequently occurs in trucking claims where the petitioner establishes the principal localization of work in Illinois by logs indicating the aggregate number of miles driven in Illinois versus other states.

Other factors sometimes cited by the Commission and the courts in jurisdiction claims include the state of petitioner’s residence, the location of the principal work site and the level of business conducted by the employer in Illinois. These concepts are not contained in the Illinois statute but seem to be utilized by the courts looking for factors considered in other areas of law involving jurisdictional fights.

C. Pre-injury agreements with regard to jurisdiction

Be wary of pre-injury agreements to have an employee select or agree to the jurisdiction where benefits will be received upon suffering an injury. Some employers with multi-state operations or traveling employees will routinely require employees to execute such agreements. These documents will generally be ignored in Illinois and we do not feel that they have any real legal effect. However, we are not aware of any prohibition with regard to such agreements. It is possible that an employee will not become aware of his or her ability to make a claim for benefits in Illinois or may honor they commitment and may act consistent with the agreement with regard to jurisdiction. If workers’ compensation benefits will be paid timely in the state that they have agreed to and a dispute does not arise, this concept may be successful.

D. Multi-state settlements

Also, when any workers’ compensation claim is settled, you may attempt to block the filing of other claims by indicating that the settlement is for claims in any state. This technique is employed more for the perception of the employee and his attorney than for its legal effect. For technical reasons which do not bear repetition here, this concept probably wouldn’t be legally effective. It does leave petitioner and his counsel with the sense that closure has been reached and may cause them to refrain from filing subsequent claims in other states.

E. Insurance Policy Coverage

The adjuster must also consider whether the specific policy written for the employer covers the loss. The date of accident or disability must fall within the dates of coverage although this issue becomes clouded in repetitive trauma claims where no specific incident is identified. It is not uncommon for two or three different insurance carriers to argue that the actual manifestation of injury occurred during a different carriers’ policy. If a coverage question is precipitated by the lapse of the workers’ compensation policy prior to the accident taking place, the insurance carrier must prove that the policy was properly terminated. This requires notice to the employer/respondent as well as the Workers’ Compensation Commission. Otherwise, the Workers’ Compensation Commission will require extension of coverage through the date of accident to ensure the injured party gets benefits.

An additional consideration in policy coverage is the employment position of petitioner. If petitioner is a sole proprietor, owner or partner of a business, coverage for injuries must be elected. If there is no election for coverage, the principal may not be entitled to workers’ compensation benefits paid by the carrier. This does not mean benefits might not be sought; they would just not be covered by the insurance policy. This also would not affect any other common law rights available.

If you have thoughts or questions about jurisdiction, coverage of the Act or any other workers’ compensation or employment law issue, send a reply.