11-18-2022; What Happened During the Election Last Week; Can Walking Now Be An "Accident" in This Nutty State?

Synopsis: What Happened in Illinois During the Election Last Week.

Editor’s comment: As I have advised our readers, Illinois is a “one-party” State and will remain same for at least a generation to come. In my view, Illinois is no longer a “democracy” because so many voters have an overridingly strong incentive to maintain their government benefits, in particular the fake and unfundable government pensions that are akin to winning the lottery. It is also truly odd for our Governor to admit he spent about $350 million of his own money to be Governor and do very little, almost nothing, in the office.

Along with that, our prior Speaker of the IL House “cooked the books” to gerrymander districts across our State to insure a one-party State was created. The districting will eventually change as the years go on but for now and decades to come, this State is going to be “blue.”

What Does It Mean to IL WC?

Well, the lack of a presence or any political strength by the IL State Republican party will probably mean our hearing officers will remain liberal. We still feel many of our IL WC Arbitrators bring strong common sense, fairness and perspective to what they do but if you read the “non-published” decision I provided below, as veteran defense counsel(s), we remain challenged on when to fight questionable claims and when to best settle. I feel the Arbitrator and Commission did their job to deny the claim to then have the IL WC Appellate Court flip it and provide six or seven-figure benefits. I am stunned to see a reversal if you understand our IL WC Appellate Court routinely allows the IWCC to make the call on medical issues and causal connection.

Most of my readers and I feel our IL State WC system is going to remain uncertain, expensive and unfriendly to businesses, local governments and WC insurers. If you need help with your IL WC defense agenda, send a reply and I assure you I can help.

Did They Change the IL State Constitution? Was That Amendment Truly Needed?

Please also note the so-called “Workers Rights Amendment” passed, creating another major issue for voters/taxpayers. Along with duplicating the fake pension protections already in the IL “pension clause,” the new Amendment will allow government unions to triple the pay and benefits given gov’t unions across the State. They will now be able to fight for taxpayers to subsidize their housing costs, working hours, travel expense, paid paternity/maternity leave, block layoffs and all sort of other benefits.

A New York Supreme Court Justice held:

To tolerate or recognize any combination of civil service employees of the government as a labor organization or union is not only incompatible with the spirit of democracy, but inconsistent with every principle upon which our government is founded. Nothing is more dangerous to public welfare than to admit that hired servants of the State can dictate to the government the hours, the wages and conditions under which they will carry on essential services vital to the welfare, safety, and security of the citizen. To admit as true that government employees have power to halt or check the functions of government unless their demands are satisfied, is to transfer to them all legislative, executive and judicial power. Nothing would be more ridiculous.

Trust me, our IL State Government just signed on to have government unions effectively take over. The only thing I am sure that is going to cause is more debt and taxes in a State already awash in red ink.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: IL WC Appellate Court Awards Benefits for Garbage Truck Driver's Claim for Repetitive Trauma “Injuries” While Walking. Is “Walking” now an IL WC “Accident?”

Editor’s comment: As I have advised our readers repeatedly, if Illinois WC goes to a system where accidents cannot be defended, we aren’t going to need lawyers, Arbitrators, Commissioners or most others currently in the IL WC system. Like Group Healthcare, Claimants will be advised to fill out forms and benefits will follow.

Please also note my concern about the use of the term “injury” in this Appellate Court decision—With respect to the members of the Court, in my view, Claimant never described an injury and the way the Court uses the term is troubling, in my opinion. If a claimant tore up a shoulder playing baseball away from work but later noticed pain at work, that isn’t an “injury” and the employer should not have to pay for such claims. To keep Illinois a litigation system of resolving work “injuries” or problems, we can’t have “pain at work” translate into “injury.”

The Illinois Appellate Court awarded benefits to a garbage truck driver based solely on “repetitive trauma” problems. In Malecki v. IWCC, No. 1-21-0713WC, 09/23/2022, Claimant Malecki worked for Waste Management as a commercial garbage truck driver. His daily duties consisted of collecting garbage along a 75- to 125-stop route during a 10- to 12-hour workday.

Between January 2008 and April 2016, Malecki claimed he experienced pain in his lower back radiating down to his right thigh, for which he sought treatment from Dr. Neeraj Jain. A magnetic resonance imaging scan taken in January 2008 revealed degenerative disc and facet arthrotrocopy at L4-L5 and L5-S1; he also had tiny discs in his back that is typical for folks of his age and habitus.

A February 2010 scan revealed degenerative changes and spinal stenosis at L4-L5. A November 2015 scan revealed a grade 1 anterolisithesis at L4-L5, spondylosis changes at L4-L5, mild arterolisthesis, severe spinal and bilateral recess stenosis at L4-L5, and multilevel neural foraminal stenosis. Claimant Malecki received chiropractic adjustments from September 2014 through June 23, 2016.

Malecki claimed he started to feel his right foot get “heavy” while walking to his truck during his route on July 6, 2016. He completed his work shift and went home, where he claimed he continued to have difficulty moving his right foot.

The next day, Malecki alleged he completed an incident report with Rich Sarac, a district manager. Sarac later denied filling out the report with Malecki or that Malecki reported any “injury.”

On July 12, 2016, Malecki saw Dr. Hamidanti, his primary care physician. The doctor’s notes state that Malecki was complaining of leg pain that started three weeks prior. Hamidanti also noted that Malecki was walking with a limp and had decreased sensation on the lateral leg and dorsum of the right foot and thigh. Malecki saw Dr. Darwish on Aug. 5, 2016. He completed a patient assessment form in which he recorded that his symptoms occurred on July 6, 2016, and that it was a work-related “injury.” Darwish made an initial diagnosis of spondylolisthesis.

On Aug. 25, 2016, Darwish diagnosed Malecki with right foot drop and recommended a transforaminal lumbar fusion of L4-L5 and L5-S1. Darwish performed the surgery a week later. He opined Malecki’s job duties have “some causal connection” to the condition for which he was treated.

Malecki filed a workers’ compensation claim, asserting he had suffered repetitive trauma injuries that manifested on July 6, 2016.

An arbitrator denied the claim and found Malecki failed to prove he sustained a compensable injury, did not provide notice of an injury to Waste Management, and that his current condition of ill-being was causally related to a work accident. The arbitrator specifically found Malecki was not credible as well.

The Workers' Compensation Commission affirmed, as did a circuit court judge.

The Illinois Appellate Court said the arbitrator erred in finding Malecki was unable to provide any specific testimony relating to the actual route or activities he was engaged in on July 6, 2016, when he noticed an increase in symptoms.

“Contrary to this finding, the record reflects that the claimant testified to his daily duties as a garbage truck driver and specifically stated that, on July 6, 2016, when midway through his route and after dumping two yard containers filled with cardboard, he started to feel his right foot get ‘heavy’ as he walked to his truck,” the court said.

The Court further said the discrepancy in evidence between whether Malecki worked on July 7, 2016, was not relevant to the issue of whether he had sustained an injury or gave proper notice.

“The arbitrator also relied upon the fact that the claimant did not demonstrate any increased risk of harm to which he was exposed which contributed to his symptoms while walking to his truck,” the court noted. “The finding is based upon the incorrect assumption that walking was a claimed contributing cause of the claimant's symptoms.”

The Court outlined Malecki’s testimony was that he started to feel his right foot get heavy walking to his truck, not that his symptoms were caused or contributed to by walking to his truck. The Court also said Dr. Darwish also testified that, to a reasonable degree of medical and surgical certainty, Malecki’s job duties have “some causal connection” to the condition for which he was treated.

The Court further said the causation opinion was insufficient to support a finding that Malecki failed to prove that his condition of right foot drop is causally related to his employment, since he never offered an opinion as to whether Malecki’s job duties on July 6, 2016, contributed to his condition.

The Court went on to find the commission’s determination that Malecki failed to give timely notice of an injury was against the manifest weight of the evidence.

“In this case, there is no disputing the fact that the claimant gave notice of his July 6, 2016, injury at the very latest on July 25, 2016, when he gave the completed employee report of injury form,” the Court said, noting this date fell within the 45-day notice period provided by Illinois law.

To read the court’s decision, click here.