9-25-2017; Appellate Court Shocker!!! IL WC Costs Should Be Dropping; Do We Truly Need Tens of Hundreds of New IL Arbitrators?? and more
/Synopsis: IL WC Appellate Court Shocker—We See a Clear Turn to What Should Be Lower IL WC Costs from the IL Appellate Court, WC Division.
Editor’s comment: As part of our role as being the best possible WC defense team in five states, we closely watch new legislation but more important, court rulings. Please note most IL WC “reforms” come from new rulings by our reviewing courts—happy to explain if you don’t understand.
As we have advised, last year, our Illinois workers’ comp system was tied with Oklahoma for 7th most expensive in the United States. The legislature in Oklahoma responded with a number of reforms that clearly cut their WC costs without greatly minimizing important medical and lost time benefits for their injured workers. Illinois needs to keep pace with other similar states in our overall WC costs and benefits to remain competitive. In my view, we don’t want to be like cheap-o Indiana but let’s keep up with great States like Oklahoma and Alabama (‘Bama was considered the median in the last national survey mentioned above).
Earlier this year, the OK Council of Public Affairs reported:
In hard dollar terms, workers' comp premiums paid by Oklahoma employers in 2013 before the reforms passed totaled $961.5 million. In 2015, premiums totaled $792.7 million, despite an increase in employment in those two years of 2.45 percent. When you adjust for that increase, the amount paid by employers for workers' comp insurance dropped in the first two years under the new system by 19.5 percent.
One important development or “reform” that we can and should consider in Illinois and other states is to cut the length of time needed to arbitrate or resolve disputes. IL WC arbitration takes literally forever where other States streamline their litigation. The Director of the OK WC system Robert Gilliland confirmed “most cases are now adjudicated within 8 to 10 months, compared to the year or two that was common under the old system. That boosted medical costs significantly to the point where amounts paid out by insurers were dramatically out of balance. Today, that balance has been largely restored.”
As I have advised my readers many times, our IL WC system has cases that last decades without anyone taking affirmative action to adjudicate them. We have a “three-year” go-to-hearing rule that is routinely ignored by our hearing officers, in my view, the three-year-rule is a joke. What I don’t understand is why a simple WC claim can go on for four, five, six or more years and have no one complain to the ARCD or the IWCC that all sides aren’t guilty of letting their files lapse to the detriment of the clients. In my view, almost any other active legal concern that would sit for 5-10 years would result in consideration of suspension of the attorney involved—I don’t know why that doesn’t happen in IL WC. We challenge Chairperson Joann Fratianni, her top counsel Ron Rascia and the entire IWCC to start getting injured workers’ claims resolved faster.
Either way, we are starting to finally see some evidence our IL WC Commission and reviewing courts are turning to a more conservative focus. If you have been reading this KCB&A Update the last several weeks, we feel our top WC reviewing court is starting to get the message to cut IL WC costs.
IL WC Courts Determine Wet Pavement Is a Risk of Life and Not a “Hazardous Condition”
In Dukich v. IWCC, an employee slipped and fell on wet pavement walking to her car to take a lunch break. She was still on her employer’s premises but not working at the time of the fall. The IL WC Appellate Court ruled she was not eligible for workers' compensation benefits because she was not exposed to any greater risk than the general public.
The Appellate Court, WC Division upheld the Circuit Court of Cook County's decision to deny benefits to Claimant. The Circuit Court's decision adhered to the ruling of the Illinois Workers' Compensation Commission, though the IWCC ruling was a split decision. The IWCC overturned the Arbitrator who found the injury compensable.
The facts are fairly simple. Claimant was an attendance clerk at Fenton Community High School District 100. On a rainy day in February 2012, she left the school to get lunch off premises. When descending a ramp, she slipped on the wet pavement and fell face-first onto a crosswalk. The fall left her with a concussion, a nasal bone fracture and severe headaches. She claimed she aggravated a previous work injury to her right shoulder. Two doctors ordered her off work and recommended physical therapy. She treated with a physical therapist for three months but claimed she had to stop as she had two jobs and didn’t have time.
The School District brought in three co-workers to testify; two groundskeepers and an on-campus police officer. The groundskeepers testified there were no “defects,” unusual pavement or other issues with the sidewalk Claimant slipped on. The police officer testified Claimant told him she slipped on wet pavement. All three workers confirmed the pavement was wet from normal rainfall.
Arbitrator Doherty awarded medical benefits, temporary total disability benefits for her time off work, and 10% of the body as a whole. In finding the fall-down compensable, Arbitrator Doherty reviewed the preliminary WC issues of AOO/COO or arising out of and in the course of employ. There would be little dispute over COO—Claimant was unquestionably in the course of employ as she was at work and doing something she would be expected to do, leave for lunch.
Arb. Doherty considered AOO or arising out of employ to be present as Claimant was walking to a parking spot designated by the employer. She ruled the ramp was "(an employer)-controlled designated pathway" Claimant had to traverse to reach her car, whose position the employer also “controlled.” Therefore, even though the rain was a "neutral risk" — meaning it posed the same risk to the general public as it did to Claimant; Claimant was at an increased risk of being susceptible to normal rainfall because of her employment. Had Arbitrator Doherty found Claimant faced the exact same risk as the general public, Claimant would not have been entitled to workers' comp benefits.
The employer, Fenton Community High School District 100 appealed the decision. The Commission panel reversed. The Commission majority determined Claimant faced no greater risk than the general public when she set out to her car. She wasn't carrying anything the employer had told her to carry, wasn't rushing to complete a work task, the walkway was not defective and there was no accumulation of ice on the walkway. As such, the IWCC majority found Claimant "was not at an increased risk for injury over that faced by any member of the general public in traversing wet pavement."
The Circuit Court of Cook County agreed with the IWCC majority. In response to Claimant's argument a wet sidewalk created a hazardous condition, the Circuit Court found "there was no defect in the sidewalk where the claimant fell and no ice, snow or puddled rain that would constitute a hazardous condition." Unlike rain, snow and ice "can be made safe by plowing or laying down salt," while "there is no such option for rain," the Circuit Court ruled.
The Appellate Court agreed and unanimously affirmed the Circuit Court's analysis. Their decision indicates: "The dangers created by rainfall are dangers to which all members of the public are exposed on a regular basis. These dangers, unlike defects or particular hazardous conditions located at a particular worksite, are not risks distinctly associated with one’s employment."
The Court analyzed Claimant's situation under “neutral-risk” principles, asking whether Claimant was exposed to the risks of injury from rainfall to a greater degree than the general public by virtue of her employment. The Court determined that she was not. "Although the employer provided the claimant a designated parking space, there is no evidence that the employer exercised any control over the particular route the claimant took to her car or required the Claimant to traverse the particular handicap ramp on which she was injured," the Appellate Court wrote. "Nor is there any evidence suggesting that the claimant’s employment duties somehow contributed to her fall or enhanced the risk of slipping on wet pavement," the Appellate Court continued. "For example, the claimant was not carrying any work-related items or hurrying to complete a work-related task at the time she slipped and fell."
Common Sense Stuff from Me
The IL WC website confirms Claimant only missed 3-5/7s weeks off of work for this fall down. Medical bills were about $4,200, were paid under group insurance, and probably would be about half that much if processed under the IL WC Medical Fee Schedule. The Arbitrator awarded 50 weeks of permanency for injuries that were basically complaints of headaches. From my perspective, the Arbitrator could easily have awarded lost time, bills under the IL WC Schedule and 2% BAW. If she had done so, I think this claim would have ended in 2012, obviating five years of appeals.
Another thought to remember—this ruling probably won’t greatly change IL WC handling of fall downs in ice and snow. While we are melting in the current heat wave, winter is coming. If you are an employer, be diligent in efforts to clear ice and snow and salt the employee walkways to avoid serious and difficult to defend IL WC claims.
View the appellate court's opinion here. We appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: Does IL WC Really Need Tens of Hundreds of Arbitrators?
Editor’s comment: Almost as fast as I stopped whining about the secret process to select IL WC Arbitrators, I learn we just added two more!! Again, no one tells me or any other IWCC watcher when the Secret-Powers-That-Be-That-Run-The-Commission decide they need even more Arbitrators or why that decision might be made.
It was my impression the numerous IL WC advisory panels don’t want to openly discuss who to pick for the Arbitrator jobs. I am sure my readers know I disagree with that concept but I can and will live with it.
My beef this week is why we are adding two more new IL WC Arbitrators without any open discussion by any advisory panel or the IWCC itself of what the right number might be and/or what benefit new Arbitrators will mean to IL business who pays every penny of the cost of the IWCC. I consider hiding that process from me, my clients and the entire industry to be objectionable and inappropriate.
I point out about ten-fifteen years ago, there were almost 250,000 pending IL WC claims at the IWCC. Today, there are around 110,000. If we put our minds to it, we could easily work hard to get that pending number under 100,000. In short, with unquestionably fewer claims, why do we have so many more Arbitrators?
Either way, Governor Rauner just appointed Attorneys Tiffany Kay and Charlie Watts as our newest IL WC Arbitrators. I am sure their appointments have to be approved by the Senate.
I looked them up and Ms. Kay was Labor & Employment Counsel at the State of Illinois - Illinois Department of Central Management Services. She attended John Marshall Law School in Chicago, as I did. She will clearly add to much-needed diversity among IWCC hearing officers. She was licensed in May 2012. We wish new Arbitrator Kay all the best in her new position.
The other new Arbitrator is Charlie Watts who apparently goes by the name “Charlie Watts” because that is what is in the IWCC News on their website. I don’t want to in any way upset new Arbitrator Watts but I can’t locate any social media or other information about this new hearing officer other than to be able to confirm his business address is with the IL House Republicans and appears to have a home office in Chicago. He was licensed in 2001. We also wish new Arb Watts all the best in his new position.
We are happy to send any new or veteran IL WC Arbitrator or Commissioner a courtesy copy of our KCB&A IL WC textbook and other helpful materials.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: Join KCBA at the IL Chamber of Commerce 2017 Workers' Compensation and Safety Conference! Wednesday, October 25, 2017 at the Hilton l 3003 Corporate Drive West l Lisle, IL 60532. The program runs from 8:30 am – 3:30 pm.
Editor’s Comment: As part of the program, there are several Workshops which will include a presentation on Ethical Management of Disability & Employment Law Concerns Arising in Workers’ Comp Claims presented by our own John Campbell, Shawn Biery, & Brad Smith
The IL State Chamber also wants you to know:
This is the most important annual Workers’ Compensation Conference for Illinois employers!
· The 10th Annual Workers’ Compensation and Safety Conference will include valuableinformation for all Illinois Employers with all new topics and fresh presenters.
Workers' Comp. Reform is being debated at the state Capitol.
· Get the latest analysis and thoughts on WC reform at the conference, along with cost-controlling measures, safety issues to prevent workers’ injuries, and discussion of court cases as well as much more.
Continuing Education Available!
· This conference has been pre-approved to offer 3 HRCI credits.
· This conference has been pre-approved to offer 4 SHRM Professional Development credits.
· This conference has been submitted for approval to offer 4 CLE credits for attorneys.
You may also contact Shawn Biery at 312-756-3701 or sbiery@keefe-law.com or the Chamber directly via Laurie Silvey at (217) 522-5512 ext 223 or lsilvey@ilchamber.org