8-25-2015; Will IL WC Lawyers Get Aced Out By Their Own Actions?; Join Jay Shattuck in His Grass Root WC Reform Efforts; New Arbitrator Douglas Steffenson Selected by Governor Rauner and much more

Synopsis: Will IL WC Lawyers Get Aced Out by Their Own Actions?

Editor’s comment: We are seeing shocking developments on many fronts that are scary to longtime WC veterans. We are worried some sectors of the Petitioner’s bar want any work problem to be globally covered under workers’ compensation regardless of what the legislation might say. As we have told our readers there are two things that come with global coverage of anything that happens as work, if you call it all an “injury.”

Ø  The first thing that comes from global and indefensible coverage under workers’ comp of any medical problem that occurs at work is staggeringly high claim costs. If there is one thing that will drive every major and minor business from our state, it is global WC coverage of every sore [insert body part].

Ø  The second thing that comes from global coverage under work comp of any medical problem that occurs at work is going to be the end of lawyers on either side, hearing officers and any litigation. There is very little need for lawyer to litigate anything in such a nutty system—insurance carriers and TPA’s will simply set up payment schedules then accept, price and pay everything, like they do in group health claims.

On the Legislative Front:

IL Senate Bill 162 has been passed by the IL Senate and is pending before the IL House as you read this. We assume this bill was designed to scare the business community and, sadly that concept is working. We assure our readers Senate Bill 162 provides global and indefensible coverage of anything a worker does when the worker is off the premises of their employer and is acting “reasonably.” What in tarnation does that mean?

In our view, a flight attendant who becomes lonely while on the road and has a romantic encounter and becomes pregnant would have a work-related pregnancy and be entitled to full WC benefits during the pregnancy and perhaps after under the provisions of the new and poorly thought-out IL Senate bill. A truck driver who smokes cigarettes like a chimney and gets lung cancer from the bad habit would clearly be entitled to all care under work comp. If you send your admin to get both of you lunch across the street and he/she trips on their own feet, you would be on the hook for WC benefits.

We vote with sticking with the traditional analysis of AOO/ICO or “arising out of and in the course of” already in the IL WC Act. Please note Senate Bill 162 is not yet law—it has been passed by one of the two houses of our IL General Assembly.

On the Judicial Front:

When did turning in a chair or walking on a normal staircase or putting on a winter coat become an IL WC “accidental injury?” The answer to this sad IL WC trivia question is—last week.

In their controversial ruling in Adcock v. IWCC, the Illinois Appellate Court, WC Division reversed the IWCC denial (and in our view, years of IL Supreme Court precedents) and ruled a welder who felt pain in his knee rolling on a wheeled stool was entitled to IL WC benefits. The ruling noted moving around on a wheeled stool is a "neutral risk of daily living" that anyone might encounter anywhere. The decision indicated “work” caused the welder to confront a greater risk of harm than an ordinary member of the general public would because of the various times he had to perform his job duties during a normal shift. The majority ruled it "should not award benefits for injuries caused by everyday activities like walking, bending, or turning, even if an employee was ordered or instructed to perform those activities as part of his job duties, unless the employee’s job required him to perform those activities more frequently than members of the general public or in a manner that increased the risk."

In our view, this ruling creates global and indefensible WC coverage for “repetitive working” claims. We don’t feel lawyers will be needed to litigate such claims and Arbitrators won’t be needed to conduct hearings for such claims and we won’t need reviewing courts to hear appeals. We agree with most readers our term “repetitive working” is intentionally redundant. Please note anyone who has a job performs normal activities at work more than in their daily lives. Duh! That is one of the reasons we call it “work” because you do some things over and over again. Work by its definition involves repetition.

From an academic perspective, please note the nomenclature used by almost all of our hearing officers at every level of this tortuous claim refer to the event of unexpected knee dysfunction as an “injury.” In our view, once you characterize “repetitive working” problems as an “injury,” the employer has lost and global WC coverage is present. We again assert global coverage of any event of physical dysfunction as a work-related injury strips out all defenses to any claim of accident. If there are no defenses, lawyers, hearing officers and judges aren’t needed.

The facts of the claim are simple. Petitioner Adcock worked as a welder for Knaak Manufacturing. After he initially injured his right knee on the job, his doctor imposed limitations on his ability to twist, kneel or walk extensively. In order to accommodate his restrictions, Knaak provided him with a wheeled stool so he could move about his workspace in a seated position. Basically he had to stand before he started work and arise when he stopped. Claimant testified he was constantly moving along the length of the workstation on the stool, swiveling from side-to-side, as he worked. We salute him for describing his work but don’t view such work activities as physically dangerous or obviously injurious.

Claimant asserted he was unable to maneuver the stool using his right leg because of his knee injury to that leg, so he always had to use his left leg to propel the chair. Petitioner said he felt his left knee "pop" while he was twisting at his work station in May 2010. His doctors later determined he had torn the meniscus in his left or opposite knee. We do not see the torsion turn of the joint in this record that would cause a meniscal rupture.

The Arbitrator ruled the event was compensable. The Workers' Compensation Commission reversed the Arbitrator, specifically finding "(t)he act of turning, even in a chair, is an activity of everyday life," so it was "a hazard to which the employee would have been equally exposed apart from the employment." The Commission ruling is consistent with the landmark decisions in Board of Trustees of the University of Illinois; Greater Peoria Mass Transit District; Hansel & Gretel Day Care Center by our Supreme and Appellate Courts.

The IL Appellate Court, WC Division reversed on the “manifest weight of the evidence” standard. We point out the last high court ruling on this area of law was Sisbro v. IWCC where our IL Supreme Court cautioned this interim reviewing court not to reverse the IWCC on the manifest weight of the evidence and supplant the IWCC’s decision with their own view of the facts. Since the Sisbro ruling was issued by our highest court we have seen 7-10 WC appellate rulings that reverse IWCC denials to insure benefits are awarded. We have yet to see a single appellate ruling where benefits awarded by the IWCC were reversed to see a denial by our penultimate reviewing court.

In our view, this new ruling sets out the “activist” judicial plan to make any and every action at work into an “injury” and thereby compensable—all you have to do is say you did the “activity of daily life” twice or maybe three times a shift. When that evidence is in the record, the claim becomes magically and indefensibly compensable. Our overall point is clear—work isn’t supposed to be an “injury.” If we are going to make “work” into a compensable injury, we are going to see skyrocketing workers’ comp costs and a greatly decreased need for lawyers and hearing officers.

On the Administrative Front:

We caution our new Governor and all our readers we may be looking at the first salvo in a new battlefield. The IWCC is getting mildly conservative or somewhat business friendly, as indicated by their own statistics in their most recent annual report. In contrast, the IL WC  Appellate Court remains strongly supported by and amenable to the theories espoused by the Illinois Trial Lawyers Ass’n. We may see lots of IWCC rulings reversed moving forward by the “activist” five-member panel composed of Appellate Court justices from the five appellate districts in this state. We may also see them judicially dismantle and disintegrate the concept of “major contributing cause” currently espoused by our Governor and his supporters as an IL work comp reform.

Our thoughts for our Governor and everyone who is concerned about an Illinois “turnaround” is to point out our IL Supreme Court designates who sits on the IL Appellate Court, WC Division. The Supreme Court isn’t composed of all Democrats. Our highest court has three Republican members. In contrast, the IL Appellate Court, Workers’ Comp Division has no justice who has filed a single dissent on behalf of the interests of Illinois business in several decades. Most corporate CEO’s and government leaders have no idea how these justices are selected and get to make these crucial decisions that have a lasting impact on the IL WC matrix.

We suggest our Governor reach out to IL Supreme Chief Justice Rita Garman and discuss these issues and see if there can be a member or two on this appellate panel who match the WC goals currently being presented to our legislature. If something like that doesn’t happen, we assume some ITLA member may come up with some sort of constitutional challenge to any WC reform legislation and such a challenge may fall on friendly ears and go nowhere for years to come.

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Synopsis: if You Truly Care about WC Reform in IL, Consider Joining the IL State Chamber and Their Grass Roots Efforts, As Outlined by Jay Shattuck.

Editor’s comment: Shattuck & Associates Consulting, Inc. has helped develop a grassroots guide for Illinois businesses that want to contact their legislators and urge them to approve meaningful workers' compensation reform. A copy of the Illinois Workers' Compensation Reform Action Packet is available by contacting Jay Shattuck at the phone number or email address below. If you care about rising IL WC costs, contacting your legislator takes about 5 minutes, and this packet provides all the resources you will need to make the call.

Jay points out since 2005, the Illinois General Assembly has jacked up workers' compensation costs giving Illinois the 7th highest workers' compensation costs in the country which has helped drive companies and families out of Illinois. He wants you to take five minutes and let your legislators know that:

·         Workers' compensation should only cover injuries that are primarily caused by your workplace; and

·         Ask your legislators why they require IL employers to pay for 100% of an injury that was only 1% caused at work.

We agree with Jay and have reported the Illinois General Assembly has been discussing ineffective, short-sighted changes to Illinois' workers' compensation reform all session. As we report above, some of these changes aren’t “reforms” at all but will even further boost IL WC costs. Governor Bruce Rauner has been promoting real reform to Illinois' workers' compensation system that would actually drive WC costs down and still protect injured workers whose injuries were primarily caused by their work.

We assure you IL legislators are seeking examples of how the workers' compensation system has been unfair to your business. If you have an example of a claim that you believe was unfair to your company, and you would like to have it shared as information on the House or Senate floor, please pass them on to Jay Shattuck. He will maintain the confidentiality of your company and not release the name of the company or worker, just the facts of the workers' compensation claim.

If you have any questions about contacting your legislator, the WC Reform Action Packet, or would like to pass on an example of an unfair WC claim, contact Jay Shattuck at either 217-544-5490 or email jaydeeshattuck@gmail.com

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Synopsis: Illinois Gov. Bruce Rauner has appointed Douglas Steffenson, a workers' compensation defense attorney as the newest arbitrator with the IL Workers' Compensation Commission.

Editor’s comment: It is mildly unusual to hear this news from a national news source and not from the IWCC’s otherwise informative website. Mr. Steffenson was an attorney with a major Chicago-based workers' compensation defense firm and worked with the firm for 15 years and has more than 24 years of legal experience. He was also an assistant state’s attorney for Cook County from 1991-97. It appears from our research he was also licensed to practice in Iowa. Aside from workers' compensation law, Steffenson has experience with employer liability law. He holds a law degree from DePaul University.

We are confident new Arbitrator Steffenson is expected to be a business-friendly hearing officer but we will have to see. We are told there may be at least two more Arbitrators appointed in the near future.