May 2024; Odd IL WC Death Claim--Still Pending Decades after Passing of Decedent; Another Anti-Lawyer Ruling from our Appellate Court, WC Division and more

Synopsis: IL Appellate Court, WC Division Awards WC Death Benefits From Passing in year 2006 in Odd Dispute.

Editor’s comment: In Cronk v. IWCC, the IL Appellate Court awarded IL WC Death Benefits to the son of a construction manager who passed 18 years ago!!

The facts indicate Decedent Cronk worked for Kimball Hill Homes as a construction manager. He complained of difficulty breathing shoveling snow at a build site in December 2006. Co-workers summoned paramedics, and Cronk went into cardiac arrest in front of them while they were at work. Decedent was taken to the hospital and passed there.

The coroner concluded the cause of death was hypertensive cardiovascular disease with coronary atherosclerosis as a significant contributing factor.

Dr. Richard Carroll a noted cardiologist based in Westmont, IL reported because of the "temporal relationship between [Cronk’s] shoveling activities and his development of chest pain, it would make sense that the two were related,” but he later testified Decedent Cronk’s coronary artery disease was most likely due to genetic factors, low “good” cholesterol and daily cigarette smoking. He suggested that the immediate cause of death was likely fatal cardiac arrhythmia and an abnormal heart muscle.

Decedent Cronk’s wife applied for IL WC death benefits. She supported her claim with a report from another cardiologist, Dr. Thomas Tamlyn, who opined that Cronk’s death was “obviously brought on or aggravated by physical exertion.”

Kimball Hill settled the wife’s claim in 2009, but the company maintained that Cronk’s death was unrelated to his employment.

With respect to the risk manager and others at this Respondent along with the hearing officer and IL WC Commission panel, I cannot imagine these facts would be the basis for a dispute—Claimant died on the job. That is about a 99.99% chance of a compensable death claim in this nutty “blue” state. Having settled with the wife, I cannot imagine why this employer didn’t bring it all to a reasonable close years ago.

Decedent Cronk’s son later filed a claim for IL WC death benefits. An Arbitrator found that Decedent Cronk’s death was not related to his employment. The Arbitrator also found that the son was not entitled to survivor benefits, even if Cronk’s death was work-related, since the son was not enrolled full time in school and over the age of 18 when Decedent Cronk passed. The Appellate Court ruling indicates the son enrolled in school, although not until after turning 18.

The Workers’ Compensation Commission affirmed the denial.

The Slowest Claimant Attorney in IL WC History?

I struggled to make sense of this claim and denial of death benefits to the son of Decedent Cronk. Then I looked it up and learned who Claimant’s counsel is. I assure my readers, in my opinion, this attorney is possibly the slowest Claimant attorney of all time—many of his claims are not resolved because he is rarely prepared and never seems to want to proceed in a timely fashion, regardless of prodding by the Arbitrators and Commissioners before whom he appears.

It is comical to see a claim as simple and as forthright as this go on more than 18 years. Our IWCC and courts are still litigating this simple claim. I want to assure you, if you look at the IL WC Commission’s call sheets, this attorney has lots and lots of claims go on for decades.

It Remains Challenging to Understand Denial by the IWCC

The Appellate Court ruling is simple and clear in providing the son limited death benefits, that he may now receive decades after filing!!!!???

The Illinois Appellate Court, WC Division said an injury occurs “in the course” of employment when it happens during employment, at a place where the employee may reasonably perform employment duties and while a worker fulfills those duties or engages in some incidental employment duties. The court noted Decedent Cronk’s condition set in as he was shoveling show leading to the entrance of a home built by the employer in anticipation of the arrival of prospective buyers. The court said the son did not need not prove some particular amount or weight of snow to show that Cronk was engaged in employment duties.

“In our opinion, it is a reasonably expected duty of decedent, as construction manager, to clear snow from the driveway and sidewalk of a newly built house in anticipation of prospective buyers,” the court said. “Therefore, the manifest weight of the evidence demonstrates that decedent’s cardiac arrest while shoveling snow at one of employer’s newly built homes occurred in the course of his employment.”

The court also said the manifest weight of the evidence shows that Cronk’s employment-related activity was a causative factor in his cardiac arrest, citing Tamlyn’s report and Carroll’s initial report.

“Here, we cannot agree with the commission’s reliance on Dr. Carroll’s testimony, where the manifest weight of the evidence, as acknowledged in the testimonies of both medical experts, demonstrates that shoveling the snow was a contributing factor in decedent’s resulting condition of ill-being,” the court said. “This reveals a causal relationship even if such physical activity is not the sole or primary causative factor.”

The court said the IL WC Commission further erred in finding the son was not eligible for benefits.

The Workers’ Compensation Act provides that a child qualifies for benefits if “he or she is (1) under the age of 18; (2) under the age of 25 and a full-time student; or (3) physically or mentally handicapped,” the court said.

The evidence was that the son was 18 and a recent high school graduate when Cronk died, the court said. The son took a year off before enrolling in college after Cronk’s death.

The court said the brief interruption in the son’s education while under the age of 25 did not preclude him from benefits.

To read the court’s decision send a reply.

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Synopsis: Another Anti-Lawyer Ruling from our Appellate Court, WC Division.

Editor’s comment: I have told my readers before and I will keep telling you, appellate rulings like this completely strip away any defense to “accident” and are certain to end litigation of IL WC accident disputes. In short, all workers can’t be “travelers” with global and irrefutable WC coverage for anything that happens to them.

The Illinois Appellate Court, WC Division ruled a municipal worker was a “traveling employee” and entitled to benefits for his injuries from falling down stairs as he was leaving his office. Please note the actions that led to Claimant magically obtaining “traveling employee” status was the simple and ordinary act of traversing a staircase.

Please note the words “traveling employee” do not appear in the IL WC Act or Rules—a “traveling employee” is whatever you want it to be. The problem with the entire debate about “traveling employee” is once you decide a worker is a “traveler,” anything that happens to him or her is related to work and is an “accident.” We can then have IL workers fill out forms and get benefits like group health because the main accident defense is stripped away.

In traditional workers’ comp law and practice, a “traveling employee” is someone sent on a trip to a far-off place—somewhere where there are unusual or unexpected dangers that might cause injury.

If you make an inspector walking on stairs a “traveler,” I ask the rhetorical question, aren’t all workers “travelers?” Don’t we all walk across rooms and stairs and ramps and ladders?? What would it take NOT to be a “traveler?”

It is my seasoned legal view, if you can’t reasonably fight or dispute WC accidents, you don’t need lawyers on either side, nor do we need hearing officers.

Claimant Iniquez worked for the Town of Cicero as a blight inspector. According to Iniquez, he normally began his workday at Cicero’s Town Hall. He would enter the building using a key card, then use the south stairwell to ascend to the second floor to his office. Iniquez would retrieve his work phone and download his assignments for the day from Cicero’s computer. To leave town hall, he would use the south stairwell, go to his town-provided vehicle and then drive around identifying blighted properties.

During his workday, Iniquez would be required to return to the Town Hall to receive further work assignments, and he would go up and down the south stairwell three or four times per day. I don’t consider this a dangerous or unusual job.

On July 2, 2018, Claimant Iniquez slipped and fell while descending the stairwell, suffering multiple injuries. There is no indication in the record of any problem with the stairs and we can therefore assume they were clean, free of debris, well-lit and were in reasonably good state of repair.

Claimant Iniquez filed a workers’ compensation claim. An IL WC Arbitrator denied the claim, finding Iniquez failed to meet his burden of proving that he sustained an accident that arose out of and in the course of his employment. The Arbitrator specifically found that, at the time of his fall, Iniquez was not a traveling employee, and although Iniquez’s injuries were incurred in the course of his employment, they did not arise out of his employment. In my view, that is an accurate statement of Illinois workers comp law, particularly as there were no construction/maintenance issues with the staircase.

The Workers’ Compensation Commission reversed, finding that Iniquez was somehow a “traveling employee” and that he did not lose that status merely because his accident occurred on stairs in Cicero’s facility. A circuit court judge affirmed the Commission’s decision.

The Illinois Appellate Court explained that a traveling employee is required to leave his employer’s premises to do his job. I would reply to this assertion to point out, the “employer’s premises” were the City of Cicero and Claimant didn’t leave Cicero!! Claimant had to be strongly familiar with the City in which he worked—there is no reason, none, to provide WC benefits if Claimant fell down a normal and ordinary set of stairs due to whatever he did to cause himself injuries.

“The uncontradicted evidence in the record established that travel away from Cicero’s Town Hall was an essential element of the claimant’s duties as a blight inspector,” the court said. The court also noted that Iniquez “was injured when he fell down stairs after he arrived at work, had retrieved his assignments from Cicero’s computer and was on his way to his Cicero-provided vehicle.” Based on this record, the court said, the IL WC Commission "correctly determined that the claimant was a traveling employee.”

An injury to a “traveling worker” arises out of his employment if he was injured while engaging in conduct that was reasonable and foreseeable by his employer, the court added. The court said it had no basis to disturb the Commission’s conclusion that Iniquez’s conduct on his way to his assigned vehicle to perform his inspections was reasonable, foreseeable and incidental to his job.

I again assert the vast majority of U.S. workers in all fields of endeavor are “traveling employees” by this Court’s challenging analysis. As I indicate above, I can’t think of a job that wouldn’t make most workers into whatever this Court’s version of a “traveling employee” might be.

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3-25-2024; Successful Appellate Outcome for Atty Vanderford and KCBA!; Birth Defect Litigation Against Employers is Not Blocked by WC Exclusive Remedy and more

Synopsis: Successful Appellate Outcome for Defense Attorney Lindsay Vanderford and KCB&A! Court Rejects Petitioner’s Challenge to Appointment of Arbitrator and Ruling on His WC Claim.

Editor’s Comment: Please note this ruling isn’t “final” and might be subject to rehearing or a Petition for Certiorari to the Illinois Supreme Court. That said, we do feel the litigation will end.

In Osman v. IWCC, No. 2-23-0180WC, issued 03/18/2024, the Illinois Appellate Court, WC Division rejected the worker’s challenges to the appointment of the Arbitrator in his case and upheld a determination the worker failed to prove causation between a subsequent condition and a work-related accident.

Claimant Osman worked for a west suburban school district. The record indicates his foot was caught between a wall and two pallets while at work in December 2012 and he fell. He asserted injury to his right ankle.

Osman claimed he had no issues of instability with his right ankle or any problems with his knees and hips before the alleged accident. After walking with an altered gait because of his injured ankle, Osman alleged that he developed pain in both knees.

Claimant Osman was off all work for about 26 weeks, then returned to full duty.

A couple of years later, in January 2015, Osman saw Dr. Burgess, a podiatric surgeon who felt Claimant Osman had an altered gait, which Dr. Burgess felt "would causally relate the knee and hip to the accident." The problem with causal relation, in my view, is the several-year-gap from the DOL to the onset of knee/hip issues.

After a full hearing, the Arbitrator also found Osman had reached maximum medical improvement or MMI in May 2014 and he failed to prove the late-arising conditions of his knees and hips were related to his 2012 accident.

The Arbitrator also noted Osman had successfully returned to full-duty employment at the School District and had no loss of earnings. Nonetheless, the Arbitrator acknowledged Osman still had lasting complaints and wore a brace. The Arbitrator therefore awarded permanent partial disability for a 25% loss of use of the right foot. Benefits were not awarded for the leg(s).

The Illinois Workers’ Compensation Commission panel affirmed, as did a Circuit Court judge.

The Illinois Appellate Court, WC Division rejected Claimant’s argument the Arbitrator’s appointment as a state hearing officer was invalid.

“[A]lthough labyrinthine, the appointment procedures were in order and comported with what is required by the law,” the IL Appellate Court found.

The Court also found the Arbitrator had not remained in the same county beyond the period allowed by WC law. Illinois law forbids an assignment to the same county for more than two years in each three-year term, the Court found, and the Arbitrator who heard this case had served for one year of one term and 22 months in another.

The Court went on to find the IL WC Commission’s decision was not contrary to the manifest weight of the evidence.

To read the court’s decision click here.

Synopsis: Need Starter/Intermediate or Expert-level Workers’ Comp Training for your claims/risk/safety/management staff?

Editor’s comment: The defense team at KCB&A regularly provides state-of-the-art training for companies like yours. We closely watch and report on any and every change to the law and practice. With the advent of Zoom, this can be scheduled and provided easily. We can tackle your team’s toughest questions and help you make sense of a system that is challenging to understand and implement.

If you have interest in WC training, please reach out to John Campbell at jcampbell@keefe-law.com or Shawn Biery at sbiery@keefe-law.com. Or just reply to this email.

Synopsis: Children May Proceed With Tort Suit Against Parents' Employer for Texas (?) Workplace Exposure(s) Arguably Resulting in Birth Defects.

Editor’s comment: This ruling is something of an exception to the concept of “exclusive remedy” in workers’ comp. What is odd is the children cannot file suit, as they are minors and don’t have standing to sue, so the parents/workers have to sue their employer for them. It is also truly odd to see alleged exposures in Texas being brought in Illinois by the zillionaire Plaintiff lawyers here. Please note these brain defects claims have multi-million exposure for U.S. employers and we will probably see lots more of them. Please also note they are civil claims and, unless the IL Supreme Court overrules the Appellate Court, they will not be decided in the various WC admin bodies across our country.

In Fernandez v. Motorola Solutions Inc., Nos. 1-22-0884 and 1-22-0892, issued 02/29/2024, the Illinois Appellate Court ruled summary judgment was not appropriate in deciding if birth defects in children are the result of their parents' workplace exposure to chemicals.

Infants/claimants Meg Fernandez and Jonathan Johnson were born with severe birth defects. They brought separate actions in an Illinois state court against Motorola Solutions Inc., alleging their fathers were exposed to toxic chemicals and gas at a semiconductor manufacturing facility in Texas.

The Illinois Circuit Court granted summary judgment for Motorola, finding it did not owe the infant plaintiffs a duty under Texas law.

The Illinois Appellate Court said Texas law applied to the plaintiffs’ claims. The Court ruled any legal duty in Texas depends in part on whether the injury to the plaintiff was foreseeable, the court continued. A finding of foreseeability requires

“(1) that the injury be of such a general character as reasonably might have been anticipated and

(2) that the injured party should be so situated with relation to the wrongful act that injury to him or one similarly situated reasonably might have been foreseen.”

The intermediary Appellate Court noted scientific evidence was conflicting as to whether paternal exposure to toxic chemicals during the manufacturing of semiconductors causes future offspring to be born with birth defects. Thus, the Court found the evidence raises a question of material fact as to whether plaintiffs’ birth defects were the reasonably foreseeable consequence of Motorola's alleged civil negligence.

“This question of material fact cannot be determined as a matter of law but must be resolved by the trier of fact in order to determine whether a duty existed,” the Appellate Court ruled.

Motorola moved to block, asserting the exclusive remedy provision of the Texas Workers’ Compensation Act supported summary judgment in the company's favor.

The Illinois Appellate Court found while the Texas WC Act generally bars civil suits for workplace injuries by the injured worker and his heirs, the court said derivative claims under the Texas workers' compensation statute "are those where the plaintiff was not physically injured [them]self but suffered emotional or economic harm due to the physical injury to the employee, e.g., claims for loss of consortium or wrongful death.”

Since the cases involve infant plaintiffs seeking recovery for their own injuries, separate and apart from any workplace injuries/exposures to their fathers, the exclusive remedy doctrine does not apply, the Appellate Court found.

To read the court’s decision, click here.

3-8-24; Law Update; Chicago School Teacher's Challenging Fall Found Compensable; WC Claims Appear to be "Doubling" into Civil Rights Claims and more

Synopsis: So, Can We Deny All Idiopathic Falls in IL WC? Not So Fast, the Devil is in the Details! Opinion and comments by John Campbell, J.D.

Editor’s comment: This Month, We Review the decision in Chicago Board of Education v. IWCC IL APP (1st) 1-22-0341WC (issued March 17, 2023)

Although we have seen recent rulings where idiopathic (or completely unexplained) falls are denied under IL WC as non-compensable, the Workers’ Compensation Division of the Illinois Appellate Court finds an Idiopathic fall may STILL be compensable where the work environment was a contributing factor to the injury.

Petitioner worked as a Chicago school-teacher at a location with two buildings; she was required to walk between the buildings and navigate stairs several times per day. That doesn’t sound “dangerous” to us. Specifically, she was required to climb 25 stairs to clock-in and out each day. On the date of injury, she had just clocked out and began descending stairs with a co-worker when she fell, suffering injuries to her back and multiple limbs. The ER records reflected a history of “feeling light-headed and passing out” leading to the fall. This medical history was repeated days later at her personal doctor.

At trial, Petitioner disputed these medical histories and, under oath, alleged she slipped on wet stairs from snowy conditions. Of particular importance, this fact was supported by her co-work witness’s testimony as well.

Ruling:

While the Arbitrator found Petitioner’s testimony not credible, and ruled her fall was caused exclusively by an idiopathic condition of syncopal episode, the IL WC  Commission panel reversed and awarded benefits, concluding

(1) dilapidated and worn stairs contributed to the fall and also

(2) because Petitioner was required to navigate 25 stairs to clock-in and out each day, the employment contributed to her injuries by placing her in a position of increased risk.

After a routine affirmation by the circuit court, the IL Appellate Court, WC Division accepted review and similarly affirmed the Commission but for slightly different reasons.

The Appellate Court, WC Division found greater evidence that the stairs were wet and slippery (not necessarily worn), based on Petitioner’s testimony and her co-worker’s testimony. Thus, the Appellate Court found alternative sufficient evidence of a work-related condition contributing to the fall. In ruling so, they cited case-law finding “an idiopathic fall may be compensable if the employment significantly contributed to the injury by placing the employee in a position increasing the dangerous effects of the fall.”

However, perhaps more concerning from the defense perspective, the Court further commented that here, “the employer required claimant to traverse a flight of stairs at least two times a day to clock in and out of work” and the fall occurred immediately thereafter.

Analysis:

We are always troubled when an arbitrator makes an initial denial ruling based on Petitioner (lack of) credibility that gets reversed on review, as occurred here. Please note the only person to consider actual live testimony is the Arbitrator assigned—the rest of the folks in the system are simply reviewing a transcript and never see Claimant’s sworn testimony under oath.

Further, not one but two medical records cite Petitioner’s initial history of growing dizzy and losing consciousness as the cause of the fall, with no mention of wet stairs. That means Claimant told two different medical historians a conflicting version of this event.

It seems to us that Petitioner did not come off credible at trial, and the medical history from two initial providers is likely more accurate. It is always a red flag when the medical history magically changes weeks after an incident to fit a more compensable fact pattern.

In the end, we do have to acknowledge that wet/slippery conditions can certainly trigger a compensable condition leading to a fall down stairs. However, the more interesting question is whether our IL Appellate Court would have found this compensable ABSENT the wet conditions, where the Court also pointed out the necessity to navigate the stairs twice per day. It remains unclear if compensability would be upheld without the snowy/wet conditions present.

Practice Tip:

For risk/safety managers, or anyone responsible for investigating injury incidents, this case exemplifies why a thorough incident investigation and documentation is critical to a solid defense. Witness statements at the time of the incident may have further substantiated the loss of consciousness vs. an alleged slip as the cause… were the stairs even wet? Photos or video of the area could have proven that point. Evidence must be gathered immediately to accurately assess compensability and afford opportunity for valid defenses.

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Synopsis: “Exclusive” WC Remedy Not Exclusive in relation to Employee’s Civil Rights Claim for Forced/Mistaken Strip Search—This Ruling is from a Virginia Federal Appellate Court But May Be Coming Across the Country To WC Claims Like Yours.

Editor’s comment: We are seeing a clear trend of Claimants and attorneys trying to maintain parallel claims for WC and employment rights. We don’t agree with this trend but the industry has to be aware of this new change to your claims handling/practices.

A federal appellate court from the East Coast ruled neither qualified immunity nor the exclusive remedy provision of the State of Virginia’s Workers’ Compensation Law barred a nurse’s civil rights claims of being inappropriately strip-searched as she reported for a job assignment at a jail.

Claimant Amisi came to the Riverside Regional Jail to work as a contract nurse. When she arrived, she didn't know where to go for orientation, so she asked a jail sergeant for help. The sergeant directed Claimant to enter the back door of the jail's pre-release center, which housed "weekender" inmates serving nonconsecutive sentences. When weekenders arrive, these inmates have orientation and complete the jail's intake process, including strip and pat down searches.

A jail officer instructed Claimant to take a seat in the intake area. While Claimant was waiting, a female Officer came in. She directed Claimant to follow her into the women's locker room shortly thereafter, the female officer then strip-searched Claimant and conducted a pat down search after Claimant dressed.

Other than the discomfiture with having to be searched by a female guard, the ruling doesn’t outline anything that we would characterize as an incident or injury. The ruling also doesn’t outline any objection by Claimant to the search. After Claimant returned to the intake area, a female weekend coordinator was informed Claimant worked for the jail's health contractor, and she called a nurse to retrieve Claimant for the prison’s nurse orientation.

Claimant later sued all of the jail staff, alleging they violated her Fourth Amendment right to be free from unreasonable searches and seizures. She also brought a variety of Virginia state law tort claims.

Defendants moved for summary judgment, challenging the nurse’s claims on the merits and asserting qualified immunity and Virginia good-faith immunity. They also asserted that the Virginia Workers' Compensation Act barred Claimant’s state law claims. The federal district court denied their motions and an appeal was taken to the federal appellate court—please note the next level of appeal would be the U.S. Supreme Court..

The U.S. 4th Circuit Court of Appeals ruled neither jail staff members were entitled to qualified immunity. “Taking Amisi's account as true, Brooks acted unreasonably when she mistook Amisi for an inmate, not an employee,” the court said, as Amisi testified she told Brooks she was a nurse and asked if employees of the jail needed to be strip-searched.

“While Brooks disputes these facts, that's for a jury to decide, not us,” the federal appellate court said. “We decide only whether those facts are material, which they are.” The court also said it was clearly established law when prison staff strip-searched Amisi that she couldn't do so without individualized suspicion that Amisi possessed contraband.

As for Townsend, the court said he effected a seizure of Amisi, since his actions would have led a reasonable person to believe that she wasn't free to leave. Claimant Amisi further testified she told Townsend she was an employee reporting for work, and he admittedly didn't see Amisi's name on his list of weekender inmates. These facts, if proven, suggest that Townsend's mistaken belief Amisi was an inmate was unreasonable, the court said.

Most important for WC risk and claims managers, the federal appellate court went on to say neither Brooks nor Townsend were protected from civil liability by the exclusivity provision of the Virginia Workers' Compensation Act. The court said this case presented a close question, but it concluded Claimant Amisi's injuries didn't arise out of her employment. “Though Amisi may not have gone to the jail but for her employment, she faced the same risk of an erroneous search as any visitor arriving to the jail for the first time,” the court reasoned. Additionally, the court said, Amisi wouldn't regularly be exposed to a search while on the job, since by her second day, she knew not to go to the pre-release center.

To read the court’s decision in Amisi v. Brooks, Nos. 21-1960 and 21-1962, 02/22/2024, published, click here.

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