12-4-2017; When Is An Accident "Accidental", Parts 1 and 2; Charley Neal on Staffing/PEO Liability; Dr. Przybylo's Great New Book and more

Synopsis: When Is an Accident “Accidental?” Part 1.

Editor’s comment: Is a patrol officer sitting in a car “chilling” acting in the line of duty when randomly struck by another car?

In Martin v. Board of Trustees of the Police Pension Fund of the Village of Shiloh, No. 15-MR-404, issued 11/29/2017, a police officer for the Village of Shiloh was on duty and sitting as a passenger in an unmarked car when it was struck from behind by another vehicle. He became “disabled” due to Illinois’ odd rule that he gets an increased pension to police and firefighters if they are injured “in the line of duty,” versus a non-line-of-duty pension.

Former Officer Martin worked for the Village of Shiloh Police Department as a detective. In May 2012, Martin was a passenger in the front seat of an unmarked squad car when another vehicle struck the car from behind. Martin suffered injuries to his neck and back that were claimed to be permanently “disabling.”

Claimant Martin filed a work comp claim and received a tidy, tax-free settlement from the Village of $121,761.50 for 35% BAW. To me, this means he not only gets paid a generous gov’t pension the rest of his life, our local governments also provide a “going-away” present in the six-figure range. What we find challenging is former Officer Martin may use the money to buy his own business or help run a bar or whatever new occupation he likes. Again, our State doesn’t require him to be disabled from all work to get a generous pension, just work as a patrol officer.

One has to also wonder—could former Officer Martin work at a desk at a 911 call center to provide value for taxpayers for the monies he is being paid? Isn’t that “police work?” No Village/Town/City in this nutty State ever brings injured police officers and firefighters back to sedentary jobs when they become available. It is almost as if such jobs magically don’t exist.

The battle then turns to whether Martin was injured “in the line of duty.” Remember he was certain to receive a non-line of duty pension which pays moderately lower benefits. Former Officer Martin filed an application for line-of-duty disability retirement benefits with the Board of Trustees of the Police Pension Fund of the Village of Shiloh.

The Shiloh Pension Board denied the application for a line-of-duty disability pension, confirming their view he was not performing an “act of duty” at the time of the being struck by a wayward motorist. The Illinois Pension Code defines an act of duty as one “of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life.” The Pension Board reasoned the act of sitting in a car at a complete stop is an situation that is “repeated and experienced numerous times by many citizens within the community.”

Former Officer Martin sought judicial review, and a very well-paid Circuit Court judge reversed the Pension Board, relying on the Illinois Supreme Court’s ruling in Johnson v. Retirement Board of the Policemen’s Annuity & Benefit Fund. The Johnson case involved a police officer who slipped and was injured while crossing an intersection from his assigned post in response to a citizen’s request for assistance in a traffic accident.

In Johnson, our IL Supreme Court found the reporting officer’s actions were an “act of duty” within the meaning of the Illinois Pension Code because the officer was discharging his duties by responding to the citizen’s call. The increased work risk faced by the Officer in Johnson was slipping while crossing an ordinary intersection. I don’t consider the ruling in Johnson to be analogous to this claim at all—in this claim, former Officer Martin was merely sitting in a car when randomly struck. While that doesn’t happen a lot, it does happen to all of us in a random fashion.

That said, this Illinois Appellate Court panel ruled a police officer does not perform an act of duty by merely engaging in action while on duty. “The crux is the capacity in which the police officer is acting,” not the precise manner in which the officer was injured, the decision outlines. Former Officer Martin was injured returning from the St. Clair County courthouse, where he had performed duties not delegated to any members of the general public. He was also a passenger in a squad car, and the Appellate Court majority reasoned it meant he was in a “position” to have to perform his duties to protect life and property, if need be.

The Court opined a police officer “faces special risks when driving in a squad car, as they must have their attention and energies directed towards being prepared to confront any eventuality.” I note Claimant Martin wasn’t driving the car—he was sitting, basically doing nothing.

The Appellate Court concluded former Officer Martin was engaged in the performance of an act of duty at the time of his injury. They affirmed the Circuit Court below.

Trust me, rulings like this highlight how dysfunctional IL local government can be. The cost of this award is already well into six figures and may eventually be well into the millions for Shiloh taxpayers, depending on how long Claimant lives. When I learn former police officers and firefighters then go on to other jobs/work and prosper as bartenders, private detectives and truck drivers, I can only shake my head about it.

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Synopsis: When Is an Accident “Accidental?” Part 2.

Editor’s comment: Remember there is a dual WC requirement of an accidental injury ‘arising out of’ and ‘in the course of’ employment. The concept is called AOO/ICO for veterans. This is one of the most difficult areas of law for a non-lawyer to understand. The concept of what comprises an ‘accident’ in U.S. workers’ compensation law is difficult to define and harder to predict. 

“In the course of” Employment or ICO

Of these two legal terms, the second, “in the course of” is much easier for the layperson to understand. This concept is best defined by the idea the employee has to be working or about to work for the injuries to be considered covered under workers’ compensation. This requirement is usually satisfied if the employee is ‘on the clock’ or at or around their work station.

You can usually assume a typical employee going to and coming from work is arguably not covered by workers’ compensation. There is some magical point at which they get close enough to work to say that an injury is a work-related accident.

One controversy regarding this concept arises in claims occurring in parking lots, shopping malls or common areas of public buildings where the employee works. The question is when does the employee arrive/depart from work? The answer changes on a case by case basis. A good general rule focuses on employer ownership or control of the property and the exclusive nature of a designated employee parking area—if the employer owns the parking lot or building and only employees are permitted to park in a particular area, the employee may be considered to be ‘working’ when he or she is present there and the risk of injury is unique to the employee, imparting liability on the employer.

Another major concept when dealing with “in the course of” is the odd and controversial “traveling employee” concept. When an employee is sent on a mission for the employer which takes the employee away from their typical work site, they obtain what may be characterized as “expanded” workers’ compensation coverage for injuries. An employee away from home and on the road might arguably be covered for any accident that can be said to result from any activity they could reasonably be expected to do while on the road. 

On the defense side, it is argued not everything a worker does during travel for work can be said to occur “in the course of” employment while away from home and their typical work site— what if a worker has an allergic reaction eating a hot dog and coincidentally happens to be traveling? Many states have statutory language which require an injury occurring while on a routine trip has to occur while the worker is actually doing work for the employer. While Illinois doesn’t have any statutory imprimatur either way, we feel common sense requires some nexus to work duties for the employer to have to pay benefits if a worker becomes injured or disabled while traveling.

As defense lawyers and observers, we were challenged by the IL WC Appellate Court’s 2012 ruling in Venture-Newberg Perini Stone and Webster v. Illinois Workers' Compensation Commission. In our reasoned view, this legal precedent turned thousands of IL workers into traveling employees and made their employers responsible for all “reasonable activities” performed while at or going to a jobsite, even when not working. Most defense observers were very happy when, about one year later, our IL Supreme Court tossed this legal concept, ruling it was flawed regardless of whether you looked at the facts or the legal issues presented by the penultimate reviewing court. We do not feel the “traveling employee” concept should ever apply to an employee whose job is to constantly travel such as a truck driver or traveling salesperson. Such workers face ordinary risks while doing their jobs and away from work and shouldn’t have extraordinary coverage for all activities, at work and at rest. If the reviewing courts and Commission extend benefits to employees whose job it is to travel, all such employees would then have global 24/7 coverage for all their actions, personal and professional, while on the road doing routine work or play. We assure everyone this expanded and indefensible coverage would dramatically increase workers’ comp costs in this state and might render the IWCC and lawyers on both sides unnecessary.

“Arising out of” Employment or AOO

Returning to the concept of “arising out of” employment, this idea has taken a broad turn in recent years. In analyzing this legal concept workers’ compensation requires more than a showing the employee was working when injured or disabled. The idea is the injury has to arise from some job-specific risk versus a risk felt to be ‘common to the public.’ This requirement focuses on the basic concept of what workers’ compensation coverage/insurance is supposed to be—monetary protection for the worker when they encounter risks specific to work. A clear illustration of this concept is a typical worker who is working and becomes injured when an airplane unexpectedly and randomly crashes into the worksite. Assuming this employee doesn’t work around airport runways or airplanes, such injuries are risks we all face in modern society whether we are at work, at home or at play and there is nothing an employer can do to protect employees from such risks. Accordingly, such injuries should not be ruled compensable, regardless of how serious the injury. This has also been applied to cause denial of WC benefits where an employee suffered an injury putting on a coat, turning in a chair to answer the phone and tripping over a typical curb.

While the “job specific” risk may seem easy to understand and implement as a general rule, recent Appellate Court rulings have drawn what appear to be opposite conclusions based on strikingly similar facts. 

For example, in Mytnik v. IWCC, a factory worker who injured his back as he bent over to pick up a fallen bolt was deemed to have suffered a compensable injury, since picking up fallen bolts was part of the required job duties. This was deemed compensable despite the fact that bending over to pick up a tiny item is a very innocuous day-to-day activity. 

Yet, weeks earlier, a decision by the same Appellate Court denied the claim of an office worker who was injured while reaching for a fallen pen on the floor in Noonan v. IWCC. The Court’s ruling explained the office worker was not required to pick up pens as part of his regular job duties and therefore, the mechanism of injury was not compensable as the job itself did not impart an increased risk of such an injury. 

From the above analyses, one has to move to the more modern problems of accident definition. When workers’ compensation in Illinois was initially formed, the Commission and courts required the employee establish a definite time, place and cause of injury. The classic definition also required something unexpected and untoward to happen.

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Synopsis: Rules on Loaned and Borrowed Employees for IL Staffing/PEO’s Companies. Comment by Charley Neal of Barton Staffing Solutions.

Editor’s comment: I appreciate Mr. Neal sending us these important risk/claims/legal thoughts and I am republishing them with his permission. If you want to contact him, send a reply and we will relay it to him. 

From time to time, an employee of one company may perform job duties for another company either under a contractual relationship or in a relationship implied by the nature of the employment. In such claims, both employers are simultaneously liable for WC benefits with one of the employers having primary liability for any loss. In these situations, the employer benefiting from the services of the employee at the time of the accident will be found to be the primarily responsible party. Secondary liability will be on the company providing the worker—unless there is an agreement to the contrary.

However, if the borrowing employer does not pay or fails to timely pay benefits, the loaning or original employer must pay. The IL WC Act is clear--liability is joint and several in such situations. Again, remember the unstated rule is to insure the injured employee has WC insurance coverage resulting in benefits for the loss. It is incumbent on risk managers and defense attorneys to make sure which entity has primary liability in defending or managing such claims. You may want to address choice of counsel as well as liability for payment of counsel in any agreement.

Staffing Agencies are the employer and therefore have to supply the Workers Comp insurance. It may go on the Client’s OSHA 300 log due to who has primary supervision, but that would be the only thing that a client would be responsible for as far as a W/C injury.

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Synopsis: Three Minutes and Your Life…Thoughts From Henry Jay Przybylo, M.D. author of the new book and great Christmas present, Counting Backwards: A Doctor’s Notes on Anesthesia.

Editor’s comment: In Counting Backwards, Dr. Henry Jay Przybylo―a pediatric anesthesiologist with more than thirty years of experience―delivers an unforgettable account of the procedure’s daily dramas and fundamental mysteries. Dr. Jay has administered anesthesia more than 30,000 times in his career―erasing consciousness, denying memory, and immobilizing the body, and then reversing all of these effects―on newborn babies, screaming toddlers, sullen teenagers, even a gorilla. It is a fascinating read and perspective where lawyers and claims professions can get a different view on an important part of any case where anesthesia is provided.

Doctor’s comment: Give me three minutes, then you’ll give me your life. These are words that are cause for concern for any lawyer. A vacant promise, a scam, fraud? No. In the time it takes to post the latest announcement on LinkedIn or to listen to Van Morrison’s “Brown Eyed Girl,” we’ll talk, I’ll examine and then we’ll pass through automatic double doors leading to my sequestered place where I’ll induce a chemical coma, steal time, prevent memory, immobilize the body and then reverse these at will.

As an anesthesiologist, I alter heart rate, blood pressure and breathing, but I don’t cure. My care allows physicians to cut, probe and stick. Perhaps not curing isn’t entirely accurate. Without my care, procedures that are painful or require absolute stillness—clipping a brain aneurysm where any patient motion might alter the outcome—are not possible without my intervention In addition, I treat pain beyond the procedure room, both acute and chronic.

Many fear anesthesia and for good reason; it’s an act of faith. When asked how the anesthesia gas I administer day in, day out works, I have no solid scientific answer. It simply does. Forty million times every year in the U.S. alone. So as I ask a patient to have confidence in my abilities, I need to trust in my gas. I know what percent of gas is needed to keep a person safely anesthetized, and I measure continuously every imaginable vital sign and parameter, the percent of inhaled gas included. My intent is singular: that every patient emerges from my care in better condition than on entering.

The motto of anesthesiologists is vigilance. I noticed something unobserved by others in a photo from a recent published article of a wrist surgery on a woman who requested no anesthesia. The center of attention—and all the eyes in the room—were on the surgical site, her wrist. My question: Who was watching the woman? If, God forbid, something untoward happened, who in that room was charged with making life right? In the event of an allergic reaction to an injected medication, who possessed the expertise to successfully treat the woman? More than removing a patient’s senses, my charge as the anesthesiologist is to watch the patient as a whole and to correct confounding issues. High blood pressure is treated, blood sugars are followed and normalized, and so on and so on. For those requesting no anesthesia, the statistics on safety prove anesthesia is very safe and lead me to question, what’s to be gained?

Not everyone requires the mysterious, all-in-one anesthetic gas. Deconstructing anesthesia leaves its components: anxiety relief, amnesia, pain therapy (analgesia), remaining still (akinesia) and stable vital signs throughout (in my term, a-reflexia). All can be treated separately with a variety of medications and techniques. If inhaling a gas is undesired or medically unwise, pain relief and stillness can be achieved by blocking the nerves to the region of the procedure using local anesthetics, while supplemental medications treat anxiety and amnesia. Allow me the opportunity to build an anesthetic that best fits needs and leaves you in better health after my care.

Anesthesia is not a limelight specialty. I stand in the wings, and yet, I alter nearly every body function. Anesthesiology intervenes in life with a breadth, depth, and intensity that no other medical specialty possesses. Forgetting my name within minutes of discharge, I take no offense. Practicing in one of the RU—relative unknown—medical specialties such as anesthesiology, radiology and pathology means little to no face time with patients. That should not be taken to mean as the RU physicians’ work is secretive—just secluded. Most of my waking day is spent cloistered behind automatic double doors. But you can still speak with me; inquire about all options. Choices exist.

Please visit www.henryjaymd.com for more information on Dr. Jay and buying a copy of his amazing new book: Counting Backwards.