Synopsis: Not All Injuries Occurring in the Workplace Are Covered Under Workers’ Comp—Thoughts from the Bard--Thomas A. Robinson, co-author, Larson’s Workers’ Compensation Law

Editor’s comment: Mr. Robinson and the team at Larson’s published some amazing thoughts that I consider to be a must-read for anyone managing U.S. work comp claims. If you want the equivalent of the Bible on U.S. Work Comp, subscribe to Larson’s.

Mr. Robinson confirms there are important developments in workers’ compensation law as reported in the latest release of Larson’s Workers’ Compensation Law, which is scheduled to ship to customers this June. To subscribe to Larson’s Workers’ Compensation Law, go here.

Positional versus Neutral Risks

Chapters 4-9 of the Larson Treatise discuss the sorts of risks faced by a given claimant who contends his/her injury arose out of the employment. Generally speaking, those risks fall within three broad categories:

1. Risks distinctly associated with the employment,

2. Risks personal to the claimant, and

3. “Neutral” risks—i.e., risks having no particular employment or personal character.

Harms from the first—risks distinctly associated with employment--are universally compensable.

Those from the second—risks personal to Claimant--are universally non-compensable.

It is within the third category that most controversy in modern workers’ compensation law occurs. Chapter 7 of the Larson Treatise, which treats positional and neutral risks, has been updated and revised.

An increasing number of courts across the U.S. make awards whenever the injury occurred because the employment required the claimant to occupy what turned out to be a place of danger. A few frankly state that causal connection is sufficiently established whenever it brings claimant to the position where he or she is injured.

In some states, unexplained falls and deaths occurring in the course of employment are generally held compensable, sometimes on the strength of a presumption, either judicial or statutory, that injury or death occurring in the course of employment also arises out of the employment in the absence of evidence to the contrary. For example, in Griego v. LaSalle, 2018 N.M. App. LEXIS 62 (Oct. 16, 2018), the New Mexico court, citing the Larson’s Treatise, held that a workers' compensation judge erred in denying a worker compensation under N.M. Stat. Ann. § 52-1-9 (1973) because, while the worker apparently tripped over his own foot, causing him to fall and injure his arm, the facts demonstrated that the worker's injury was the result of an unexplained fall, which constituted a neutral risk that gave rise to a rebuttable presumption that the injury arose out of the worker's employment, and the employer/insurer failed to rebut the presumption with evidence that the worker had any preexisting conditions or infirmities that caused or contributed to his fall—risks that were personal to him [see Larson’s Workers’ Compensation Law, Ch. 7, § 7.04[1][a] Digest n. 2].

Risks Personal to the Employee

Injuries arising out of risks or conditions personal to the claimant do not arise out of the employment unless the employment contributes to the risk or aggravates the injury. This core issue, discussed in Chapter 9 of the Larson Treatise, has also been updated. When the employee has a preexisting physical weakness or disease, this employment contribution may be found either in placing the employee in a position which aggravates the effects of a fall due to the idiopathic condition, or in precipitating the effects of the condition by strain or trauma. In one recent case, Bluml v. Dee Jay's Inc., 2018 Iowa Sup. LEXIS 101 (Nov. 16, 2018), in a divided decision, the Supreme Court of Iowa adopted the minority American rule that all work-related risk factors must be considered in determining the compensability of an idiopathic fall. Citing the Treatise, the court held that the hardness of the floor should be considered in a worker’s idiopathic fall to a level ceramic tile floor, depending upon the facts of the particular case. Accordingly, the majority of the Court reversed a decision of a state district court that (along with the deputy commissioner and the commissioner) had concluded, as a matter of law, that idiopathic falls onto level floors were not compensable [see Larson’s Workers’ Compensation Law, Ch. 9, § 9.01[4][e] n. 54].

Nature and Scope of the Exclusiveness Principle

At the utter core of workers’ compensation law is the principle that the compensation remedy is exclusive of all other remedies by the employee or the employee’s dependents against the employer and insurance carrier for the same injury, if the injury falls within the coverage formula of the act. This discussion, found in Chapter 100, has been updated and revised. Generally speaking, if it does not, the compensation act does not disturb any existing remedy. However, if the injury itself comes within the coverage formula, an action for damages is barred even although the particular element of damage is not compensated for, as in the case of disfigurement in some states, impotency, or pain and suffering. Some of the most interesting cases occur within this area of law. In Baiguen v. Harrah's Las Vegas, 426 P.3d 586 (Nev. 2018), for example, the Supreme Court of Nevada reversed a decision of the state’s court of appeals, holding that a Las Vegas casino employee could not maintain a civil action against his employer to recover damages for its alleged delay in seeking medical treatment following his suffering of a stroke just prior to the beginning of his work shift. His tort action was barred by the exclusive remedy provisions of the Nevada Industrial Insurance Act [see Larson’s Workers’ Compensation Law, Ch. 100, § 100.01[1] Digest n. 2].

For the equivalent of the Bible on U.S. work comp law, there is no better source than Tom Robinson or the Larson’s Treatise. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Will a Graduated IL State Income Tax Cause Even Fewer IL WC Claims?

Editor’s comment: I am saddened to read our new Governor is committed to enacting a constitutional amendment for the purpose of imposing a graduated income tax. The top tax rate was announced at 7.95% which is comically high when one considers there are any number of states that have no income tax at all.

I want my readers to note IL WC claims continue to drop in number, jobs and businesses leave our state. At one point not so long ago, 75,000 new IL WC claims were being filed each year. Now, the IL WC Commission’s annual report confirms:

In Fiscal Year 2013 42,543 New IL WC Claims were filed
In Fiscal Year 2014 43,742 New Claims
In Fiscal Year 2015 42,758 New Claims
In Fiscal Year 2016 41,777 New Claims
In Fiscal Year 2017 39,840 New Claims

Notice a trend? No one in Springfield is talking about creating new opportunities for private industry or bringing in jobs—all we hear is how to make government bigger and more expensive while hitting Illinoisans with the highest combined tax burden in the entire country. We have skyrocketing real estate taxes, sales taxes and soon-to-be income taxes.

What is bad about high income taxes? Well, please note Chicago Cubs star hurler Jon Lester will be paying $1.6M in IL income taxes each year under the new Pritzker graduated income tax plan—If Lester would pitching for the Miami Marlins or the Tampa Bay Rays, he would make the same money and not pay any state income tax. What we are sure to see is star professional athletes seeing this math and not wanting to play for the Chicago Bears, Bulls, Blackhawks, Cubs and White Sox. Some folks say high taxes in Canada is a reason there hasn’t been a Canadian team to win a Stanley Cup in more than two decades!

What also galls me is the fact our Governor and Legislature are more than happy to amend the IL Constitution to raise these staggering new taxes without ever considering altering the Constitution to take out the “Pension Clause” that is the real reason our State government is broke—unfundable fake government pensions. As I have said many times in the past—they should enact a new constitutional amendment that ends the “something for nothing” aspect of fake government pensions and requires gov’t pensioners to receive NO MORE than

Their pension contributions during service,
Whatever the State matches during service and
Any investment income accrued at any time.

This simple concept would end the rip-off of taxpayers who work hard and shouldn’t have to pay for government pensioners to NOT work but still receive double, triple or quadruple what they made while actually working for us. If you aren’t sure current Governor Pritzker and the IL Legislature are again “kicking the can down the hill” in funding these fake pensions. This will insure your grandkids and great-grandkids and their great-great-grandkids will be paying off the spiraling fake gov’t pension debt.

In the interim, Illinois is certain to keep losing jobs and WC claims will continue to dwindle. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Rate The IL WC Arbitrators

Editor’s comment: Please find below the link to the IL WC Arbitrator Evaluation Survey. Arbitrators are to be rated only on the basis of personal knowledge. It is possible that you will not be able to rate all of the arbitrators or answer all of the questions for each arbitrator on the evaluation form.

If you have specific knowledge as to the qualifications of an arbitrator to give a fair, informed opinion as to those qualifications, please respond to the questions for that arbitrator by answering “Y” (Yes) or “N” (No) to the questions asked. If you have no opinion on a particular question, the question should not be answered and will be tabulated as a “No Opinion” response that will not affect the arbitrators rating. Specific instructions on form completion and submittal are available on the link.

If you do not have specific knowledge as to the qualifications of an arbitrator please skip that arbitrator and move on to the next arbitrator. Forms must be submitted to the Commission by April 22, 2019.

https://www2.illinois.gov/sites/iwcc/resources/Documents/2019ArbitratorEvaluationForm.pdf

Synopsis: Join KCB&A with the IL State Chamber for the IL WC Workshop on April 2, 2019 in Naperville. The link to register is: http://events.constantcontact.com/register/event?llr=omjkt4dab&oeidk=a07eg2i2618bf7c6629