8-21-2017; IL WC Arb's have a Crucial Role In this System; Robert E. Falcioni, RIP; Important "Repetitive Working" Claim Reviewed by Tim O'Gorman JD; KCB&A Welcomes Attorney Richard Zenz and more

Synopsis: IL WC Arbitrators Have a Crucial Role in This Benefit System--Former IL WC Arbitrators’ Federal Claim Dismissed by Seventh Circuit Federal Appellate Court.

Editor’s comment: It was great to hear names of some of our top hearing officers from years past. Former Arbitrators Kathy Hagan, Richard Peterson, John Dibble (now deceased) and Peter Akemann were named in the federal ruling. Sadly, they lost badly on just about every legal point.

We do feel the ruling is illustrative of the important role of our Arbitrators—we feel Governor Rauner (or his team) can and should meet with the current IL WC Arbitration staff to reinforce his message of bringing IL WC costs into the mainstream of U.S. work comp systems.

In Hagan v. Quinn, No. 15-1791 (issued August 14, 2017), the Federal Appellate Court ruled the District Court did not err in dismissing a Section 1983 action filed by Plaintiffs-Former Arbitrators of Illinois Workers' Compensation Commission, alleging Defendant-Former-Illinois-Governor Pat Quinn and others violated Plaintiffs' First Amendment rights by failing to reappoint them as IL WC Arbitrators in retaliation for Plaintiffs' filing of due process lawsuit that challenged imposition of House Bill 1698, which reformed workers' compensation statute and terminated their 6-year appointments as arbitrators.

The Federal panel ruled our IL Governor could properly decline to reappoint Plaintiffs to their positions, where:

(1)  Plaintiffs were policy-makers within workers' compensation statutory scheme;

(2)  As policy-makers, Plaintiffs could be terminated/not reappointed for engaging in speech on matter of public concern in manner that is critical of their supervisors or their policies; and

(3)  Former Governor Quinn could appropriately view Plaintiffs' underlying due process lawsuit as attempt to undercut his policy calling for workers' compensation reform.

Our favorite and most illustrative quote from the decision is:

Illinois workers’ compensation arbitrators are not and never have been ministerial employees. They exercise substantial discretion in adjudicating employer/employee disputes and may participate in rulemaking to the extent they serve on the Workers’ Compensation Commission. As adjudicators, they are also gatekeepers.

While the Illinois legislature enacted the state’s workers’ compensation scheme, as a practical matter it is the arbitrators who resolve conflicts over which employees should and should not benefit from this important state program. Over time, the decisions of the arbitrators, which are appealable to the Workers’ Compensation Commission and ultimately to the state courts, shape the direction of Illinois policy as it relates to workers’ and employers’ rights.

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Synopsis: Arbitrator Robert Falcioni, Rest in Peace.

Editor’s comment: Robert E. Falcioni, age 60 of Monee, formerly of Chicago Heights, Illinois passed away on August 16, 2017.

Robert graduated from Kent College of Law, receiving a Juris Doctor Degree (JD). He worked for the State of Illinois for the past 23 years, first as a staff attorney and later Arbitrator for the Workers’ Compensation Commission.

He was an avid power lifter, receiving many awards; he had a passion for gardening and spending time with his two sons.

Bob Falcioni was a tough, highly professional and fair hearing officer. The members of our KCB&A defense team appeared in front of him at hearings on a regular basis. We assure our friends and readers he left all of us too soon and will be greatly missed for his humor and judicial demeanor.

Visitation Today, August 21, 2017 from 2:00PM to 8:00PM at Kerr-Parzygnot Funeral Home 540 Dixie Hwy. (at Joe Orr Road), Chicago Heights, IL 60411.

Funeral Mass at 10:00AM tomorrow at St. Mary Catholic Church, 227 Monee Road, Park Forest, Illinois. For info call (708) 754-0016. http://kerr-parzygnotfuneralhomes.com

Synopsis: IL Appellate Court, WC Divisions Upholds Excellent IL WC Commission decision Denying WC Benefits in “Repetitive Working” Death Claim. Research and analysis by Timothy O’Gorman, JD.

Editor’s comment: In Toon v. Illinois Workers’ Compensation Commission, Decedent was a “Lull” or forklift operator whose widow alleged his stomach rubbed up against the steering wheel with such frequency, it caused abdominal cellulitis. From the IWCC website, it appears the date of death was January 28, 2010.

At hearing, Decedent’s widow was allowed to describe Decedent’s daily routine explaining his work outfit/clothing and daily work routine with great specificity. Decedent’s friend also testified to the size of Decedent, explaining his experience in viewing Decedent inside the large forklift, an example image is included for description purposes.

In defense of the claim, Respondent’s safety manager testified, describing the ordinary use of a Lull and providing photographs and video of men who were allegedly the same size as Decedent operating the Lull without any part of their stomach in contact with the steering wheel. Respondent’s safety manager also testified the mechanics of using the lull, including operating the machine with the steering wheel knob, would be extremely difficult if an employee’s stomach constantly sat on top of the steering wheel. Both Respondent’s safety manager and Decedent’s friend confirmed Decedent never described having any difficulty or apparent dysfunction operating the Lull.

Not only was the mechanics behind Decedent’s use of the Lull in dispute, but the nature of Decedent’s untimely and tragic passing brought diametrically different diagnoses from two doctors/medical experts. Dr. Kolli, Decedent’s primary care physician, testified to Decedent’s numerous co-morbidities. Dr. Kolli confirmed Decedent first became a patient to establish care for a heart condition, emphysema, high blood pressure, high cholesterol, arthritis, GERD, allergies and anxiety. Dr. Kolli testified Decedent’s description of his work activities, including repeated abdominal contact between the steering wheel and his stomach, were based on a history rendered by Decedent himself.

Respondent’s Section 12 expert was infectious disease expert, Dr. Stephen Schrantz. Dr. Schrantz provided an expert opinion after reviewing Decedent’s medical records, Dr. Kolli’s deposition and employee-interview summaries. Dr. Schrantz is board-certified in internal medicine and came to the conclusion it was medically and scientifically impossible to confirm Decedent’s death was caused by his stomach being in contact with the Lull’s steering wheel, as claimed by the widow. Instead, Dr. Schrantz felt the much more plausible conclusion was Decedent’s passing was instead caused by the myriad of disparate health problems he suffered from—they are listed in the paragraph above.

After all evidence was entered, Arbitrator Gallagher provided a decision Decedent’s untimely death was caused by the repeated rubbing of the steering wheel to Decedent’s stomach however upon review, the Commission reversed. The case was timely appealed to the Circuit Court where the decision of the Commission was set aside and benefits reinstated. The Appellate Court, WC Division, properly applying the “manifest weight of the evidence standard,” reinstated the denial of the Commission. We salute the august members of the Appellate panel for this solid ruling.

The IL Appellate Court, WC Division found the Commission’s inferences/determinations:

·         Plaintiff’s expert Dr. Kolli’s testimony was speculative (as Dr. Kolli never viewed Decedent in the Lull)

·         Respondent’s safety manager was more credible than Decedent’s friend (as they found it was “highly improbable that Decedent would have been able to perform his job if the steering wheel, or the knob, or his hand was continually in contact with and rubbing his stomach”) and

·         Decedent’s use of the lull would have not been smooth as described by both his friend and Respondent’s operations manager (as his stomach and/or hand would have been in the way)

were reasonable. These reasonable inferences, coupled with the fact Decedent’s abdominal sores were only visible when the pant line was pulled down, led the Commission to conclude it was more likely than not Decedent’s sores were caused by his clothing rubbing against his abdomen. As the Appellate Court, WC Division is supposed to do, the Commission’s decision was upheld on a “manifest weight of the evidence” basis.

It must be noted the Appellate Court’s and Commission’s findings were solely analyzed from the perspective of whether Decedent’s stomach actually rubbed up against the lull’s steering wheel. There was no analysis of quantitative or qualitative risk as the Commission determined Decedent’s stomach was not rubbing against the steering wheel. Had the Commission found Decedent’s stomach was in constant contact with the steering wheel, we imagine the case would have resulted in an opposite conclusion on the basis of a quantitative/qualitative risk analysis and we encourage all safety/risk managers and claims handlers to do their best to identify these types of risks and minimize employees’ exposures to them. This article was researched and written by Timothy O’Gorman, JD. Tim is a top-notch defense expert and can be reached at togorman@keefe-law.com.

Synopsis: Keefe, Campbell, Biery & Assoc welcomes Attorney Richard Zenz to our Defense Team.

Editor’s comment: We proudly announce the hiring of Mr. Zenz who was first licensed to practice law in Illinois in 1981. Virtually all of his entire legal career has been focused on the defense of major Illinois employers and insurance carriers. He brings a calm, veteran approach to fighting, defending and sometimes settling demanding IL WC claims.

Attorney Zenz was the lead defense attorney in the appeal leading to the 2012 Appellate Court WC Division ruling in Supreme Catering v. IWCC. He can be reached at rzenz@keefe-law.com.