4-28-2022; What Am I Missing in IL WC School Bus Driver Claim? and more

Synopsis: What Am I Missing in IL WC School Bus Driver Claim?

Editor’s comment: Every hand is a winner and some hands are losers. When do you stop appealing a ruling to keep losing before every hearing/appeal officer?

An IL school bus driver had work that involved picking up children/students in the morning and driving them to school and then returning and picking up students from school in the afternoon and driving them home.

The driver began driving a bus with a manual door opener that required the use of a door handle to open/close the bus door at each and every stop. There is no dispute she had two separate morning and two separate afternoon routes with her assigned bus, and these routes required her to manually open the bus door at least 25 to 30 times daily or more. While driving the school bus one day, the driver alleged an event of “extreme” pain in her right shoulder as she opened and closed the bus door during afternoon routes. Despite the pain, she did not immediately report the onset of shoulder pain to her supervisor but took over-the-counter pain medicine when she got home.

After waking up the next morning with continued shoulder pain, the bus driver completed four routes for the day and told her supervisor she needed medical care. Again, there is no dispute the driver filled out an employee injury form and went to a medical clinic. The incident reporting document was completed by Claimant and a supervisor/safety manager from the school bus company. In describing the injury, the reporting form states: "Very sore discoloration on right arm." To me, as a veteran defense lawyer, the presence of discoloration means Claimant tore something inside her arm. 

Several days later, the school bus driver again sought medical care. A day later, she filed a WC claim for benefits. She was represented by a noted Claimant firm.

For reasons unclear to me, the employer totally disputed the claim. Following arbitration, the arbitrator assigned found the school bus driver experienced accidental injuries that arose out of and in the course of her employment and awarded the driver almost four months of temporary total disability benefits and medical bills in the amount of about $18K.

Again for reasons I am not sure of, the company filed a petition for review before the Illinois Workers' Compensation Commission. The unanimous Commission panel determined the arbitrator miscalculated the TTD award, but otherwise affirmed and adopted the Arbitrator's decision. The company appealed to the Circuit Court of Cook County, which confirmed the Commission's decision, prompting the company to appeal to the Appellate Court, Workers’ Compensation Division.

At this third appeal level, the company contended there was nothing technically “wrong” with the door-opening mechanism, so they asserted the incident didn't/shouldn’t/couldn’t happen because of the driver's job.

Please note the matter was heard by the IL WC Arbitrator and nine different hearing officers/jurists at various stages of appeals. They all ruled under Illinois WC law, a worker must establish she experienced a disabling injury that arose out of and in the course of her employment. There is no requirement the worker demonstrate there was something “wrong” with the work equipment, whatever that might mean. The Appellate Court noted Claimant testified that, prior to the date of loss, she never suffered any kind of shoulder injury, never experienced right shoulder symptoms, never saw a doctor for her right shoulder and never had surgery on her right shoulder. She stated that the first time in her life she had any significant pain in her right shoulder was on the date of loss.

Our Readers Need to Note—Illinois is a One-Party State. If You are Unsure of What That Means, Send a Reply.

Did this incident constitute an “accidental injury” in this nutty State—almost assuredly, the answer is yes. Please note the fact other workers may be able to open and shut the door safely doesn’t mean this worker didn’t tear something in her arm, as the almost-immediate discoloration would indicate.

In this month’s ruling of the Appellate Court, Workers’ Comp Division in American School Bus Company LLC v. Illinois Workers' Compensation Commission, No. 1-21-0733WC (Ill. App. Ct. 04/08/22) the Courts’ members all upheld the previous decisions from lower levels in the school bus driver's favor. According to the ruling, the driver was in good health prior to the date on which she experienced pain for the first time at work and never had shoulder problems before. The Court rejected the opinion of a doctor who testified in the company's favor to assert the medical issues were “too speculative” and failing to take into account the fact the driver did not experience shoulder problems prior to the date in question.

In short, we recommend you get a second opinion from the defense team at KCB&A before you file appeal after appeal in a claim such as this. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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