11-21-2016; IL WC Reform Set to Die; Is Lifting a Smidgen Going To Be An Accident in IL WC?--A Two-Part Article; Shawn Biery on our New IL Arbitrators and more
/Synopsis: IL WC Legislative Reforms to Die; Is The Act of Lifting a Smidgen Going to Be A Work-Accident?
Editor’s comment: This is a two-part article by Gene Keefe, J.D. and John Campbell, J.D.
First, let’s consider status of the IL WC reform battle in Springfield. The news is not-so-good for our business and government readers.
The seemingly never-ending journey to legislatively limit workers’ comp costs in Illinois may never reach its goals. In Springfield, we are advised four leading legislators from both sides met with Gov. Rauner last Wednesday to continue the battle over a deal that might simultaneously end the budget stalemate between Democrats in the General Assembly and the Republican administration.
Republican leaders and Governor Rauner reportedly discussed their proposed reforms to lower workers' compensation costs in exchange for an end to the current state budget impasse—to our understanding, on January 1, 2017, our State government won’t have an actual budget like other states. In working out the fight over the budget, Gov. Rauner's “turnaround agenda" workers' compensation reforms codified in HB 4248, and were filed in July 2015 by Republican legislative leader Jim Durkin. The bill would
· Impose a “major contributing cause” standard;
· “Sort-of” adopt the “traveling employee” definition from the IL Supreme Court ruling in the Venture-Newberg case (we don’t agree with the wording at all and feel it might be an expansion and not a contraction of our law);
· Create credits for prior awards and settlements for IL employers;
· Allow for the use of AMA guidelines on their own to adjudicate/set permanency/impairment values and
· A WC Medical Fee Schedule expansion/reduction.
And Last Week, Speaker Madigan Basically Dumped The IL WC Reforms Into a Committee to Die
The impetus of filing House Bill 4248 in year 2015 and bringing it up during Wednesday's meeting was to be a starting point for further negotiations. However, shortly after the legislative leader meeting, Speaker Madigan referred the workers' compensation reform proposal to the House Labor and Commerce Committee for a hearing on November 28, 2016 without the consultation of the sponsor, Jim Durkin. As I have advised in the past, I consider House Speaker Madigan to be our resident megalomaniac—this was another demonstration of his insurmountable power and lack of respect for anyone in IL government who disagrees with him.
In addition, the next scheduled leader's meeting takes place the same day as the scheduled committee hearing. The circus behind scheduling HB 4248 before a House committee on a year old bill, that was always considered a long shot for Republicans in a Democratic controlled legislature, is to effectively dump the bill in by allowing the bill to be quietly defeated by the House committee controlled by Speaker Madigan and his minions. At this point, IL House Republicans are calling for continued discussions and negotiations on workers' compensation reform so our lawmakers can craft a bipartisan solution. No one knows if a six-month budget for the second half of this fiscal year is going to be worked out. On November 28, we will see if the 2015-2016 IL WC legislative reform is killed.
Part Two by John Campbell, J.D.
Synopsis: IL Appellate Court, WC Division growing proficient in finding distinctions where there is no difference. A recent ruling finds an “accident” for what appears to be a very benign, every-day action.
Editor’s Comment: We were left a bit quizzical to read the recent IL Appellate WC ruling that we simply can’t get our head around.
In Mytnik v. IWCC, published on 11/10/2016, the Illinois Appellate Court, WC Division overturned another decision of the IL WC Commission denying an assembly line worker benefits for a back injury. Despite statements of the IL Supreme Court in two separate rulings confirming this middle court should use great restraint before reversing IWCC rulings on the “manifest weight of the evidence,” we have seen a number of such reversals in recent years. In the case at hand, Claimant was simply reaching to the ground to pick up a small bolt. Nothing terribly heavy, or awkward or highly repetitive. For these reasons, the reversal is troubling for the IL WC defense industry. Please note the cost of this ruling to Ford Motor Company was at least $160,000!
Aside from the reversal on “manifest weight”, this ruling is also notable for what appears to be a recent struggle by this Court in defining what constitutes a “repetitive accident,” a “neutral risk” and which are “quantitative” or “qualitative” risks. What we see is that compensability hinges on whether the innocuous activity was a “required job duty” at the time of the injury.
Why is the “Required Job Duty” Consideration Important?
Well, please note this same Court recently denied a strikingly similar claim for an office worker who was reaching to the floor to pick up a pen. In Noonan v. IWCC (issued 20 days prior to Mytnik on Oct. 21, 2016) this same Court upheld the denial of benefits when Claimant hurt his wrist reaching to the floor for a pen he dropped. It was reasoned that reaching for a pen was not a “required duty” of that job, so the injury was not compensable.
So, what’s the difference? Let’s see how the Court distinguishes the facts in Mytnik to reach an opposite conclusion.
Claimant Mytnik worked for Ford Motor Co. on their assembly line. Claimant’s job consisted of installing car suspensions; the work involved twisting and turning, and he periodically had to pick up small bolts that fell off the articulating arm used them to secure the rear suspension system. In our view, small bolts = the pen in the Noonan case, right?
Not So Fast. Same Court, Different Day.
Claimant in Mytnik explained that during his shift, bolts would occasionally fall to the floor and he had to pick them up. Therefore, picking up the bolts was a required job duty. However, in Noonan, the Court concluded that picking up a pen from the floor was not part of the required job duties for the office clerk and therefore, his injury was not compensable, as it was a “neutral risk” with no “qualitative” or quantitative” increased risk.
It is our impression the scenarios in these two cases are largely indistinguishable. In both claims, the act or “risk” leading to injury was “bending over” to lift something very, very light. Numerous prior denials have come from such facts over the history of IL workers’ comp. One could easily argue that office clerk Noonan is generally obligated to pick up a pen he drops while working and is therefore “required” to do so. One could also argue on the other hand that factory worker in Mytnik didn’t always have to pick up every bolt that dropped, or that the dropping of bolts (or picking them up) was not part of the essential job duties and therefore, his injury was not compensable.
In our respectful view, we would welcome a fresh examination by the higher courts when deciding these very innocuous mechanisms of alleged accident and injury. It may be time to erase the chalk board if you will, where we have our courts supposedly analyzing “neutral risks” and “incidental risks” and “quantitative risks” and “qualitative risks”.
We are nostalgic for the good old days where we simply looked at whether there was a true increased risk related to the job to determine there was an actual accident.
In our view, if you want to reform the IL WC system, you may be hard-pressed to change the thinking so you have to change the thinkers. The IWCC did their job in Mytnik to deny a case where the mechanism of “injury” was truly innocuous; picking up a very small item from the floor occasionally at work is a day to day activity performed by the general public. In light of this reversal, it may be hard to give accurate advice to clients as to what may or may not constitute an accidental injury in this State.
Two lasting thoughts from your editor
· If you make every innocuous act like smidgen-lifting into an “accident”—IL WC claims cannot be defended. Adjusters will have to accept all medical problems that can be in any way said to arise at work as work-related, then pay benefits and WC costs will soar. If any physical/medical problem for someone with a job is going to be compensable, there will be no further need for lawyers on either side nor will we need to have lots and lots of hearing officers and internal IWCC appeals and reviewing courts.
· In my view, you can’t possibly change this confusing situation via legislation and we feel our Governor should consider giving up that fight—you can’t legislate what I consider common sense. Whatever you legislate about “major contributing cause,” can be ignored, steered around or used against you. In the words of former IL State Chamber President Doug Whitley and others, “if you can’t change the thinking, you need to change the thinkers.” Consider meeting with new IL Supreme Court Chief Justice Lloyd Karmeier to discuss your overall concerns. I assure you he controls the gate and I am happy to explain.
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Synopsis: Arbitrator TBA cases will soon have a new hearing officer—Governor Bruce Rauner announced two new Arbitrator appointments to the IL Workers’ Compensation Commission.
Editor’s comment: While we continue to share prior concerns which have been voiced repeatedly regarding the lack of complete transparency in the process of political dealings in Illinois, the two latest Arbitrators appear from background and past experience to be strong appointments if for no other reason than having exceptional experience within the Workers’ Compensation arena.
ü Governor Rauner has appointed Michael Glaub to the Workers’ Compensation Commission as an arbitrator. He brings decades of experience in workers’ compensation matters, most recently as a partner at Hennessy & Roach in Chicago where he defended workers’ compensation claims for self-insurers and insurance carriers from inception through all potential levels of appeal. He previously served as a Senior Associate at both Spiegel & Cahill and the Roddy Law Group. Arbitrator Glaub earned his bachelor’s degree in economics and political science from Southern Illinois University and his law degree from DePaul University College of Law. Arbitrator Glaub is a seasoned workers’ compensation professional and based upon experience and his handling of claims in which both of our firms handled matters for common clients, Arbitrator Glaub will know how to manage a courtroom and has a solid perspective on what makes a claim compensable and which claims are questionable.
ü Governor Bruce Rauner has also appointed Frank Soto to the Workers’ Compensation Commission as an arbitrator. Arbitrator Soto has also worked with multiple firms and law practices that which oversee workers’ compensation litigation, most recently owning his own law firm, Law Offices of Frank J. Soto, Ltd., where he concentrated on workers’ compensation, civil litigation, and personal injury administrative hearings, municipal, real estate, criminal, contract and business law matters. He previously oversaw administrative hearings conducted by the Illinois Office of the Secretary of State. Arbitrator Soto also has experience as the Deputy Director of Management Operations and Grant Manager at the Illinois Department of Commerce and Economic Opportunity. He received his bachelor’s degree in economics and business administration from Eastern Illinois University and his law degree from The John Marshall Law School. He lives in Bensenville where he also serves as Village President. Arbitrator Soto is another seasoned workers’ compensation professional and based upon experience defending claims presented by his office, Arbitrator Soto has an understanding of the system and rules of evidence and we anticipate he will be a proficient hearing officer.
This article was written by Shawn Biery, J.D., MSCC based on the press release of the Office of the Governor and his experience in past dealings with the new Arbitrators. Shawn is available for your questions via email at sbiery@keefe-law.com or via phone at 312-756-3701.