9-3-2019; Thoughts on some rulings in the WCLA Brown Bag Luncheon Analyses; Kevin Boyle on IN WC EDI Requirements and more

Synopsis: Here are “Brown Bag Luncheon” IL WC Claims Analyzed by the Bi-Partisan WLCA Editors’ for your consideration. I give strong credit to the WCLA team that created this analyses for public consumption.

Editor’s comment: Your Editor is adding my “defense-only” comments. I admit to being somewhat biased because, well, I am. Please take my opinions with at least a grain or three of salt. I sometimes think I am perfect to find out, Ooops.

Employer-Employee: Coleman v. AKMG, 18 I.W.C.C. 703 (IWCC November 16, 2018)

At Arbitration, the primary issue was whether Petitioner was an employee on the date of injury. Petitioner worked as a bartender when he sustained an injury on May 13, 2014. He testified he was hired by the former owner of the bar and his job duties included serving drinks, cleaning, checking out customers and opening and closing the bar. Petitioner further testified he reported to the owner and bar manager, the bar manager determined his schedule and if he worked tables or behind the bar, he could only take breaks or days off with manager approval and he clocked in and out of work. He also reported his tips to the manager and had to wear a black shirt to work. Respondent trained petitioner how to work the register, set up the bar and make specialty drinks. One of the co-owners of the bar testified at trial. She testified all workers completed a W-4 form, including Petitioner, and she considered anyone working for the bar an employee.

In assessing if there is an employment relationship, the Arbitrator noted the most important factor is whether the purported employer has the right to control the nature of the work by the alleged employee in relation to the general business of the employer. The Arbitrator found there was an employment relationship and reasoned the bar manager had the right to control Petitioner by setting his schedule, authorizing breaks and time off, requiring petitioner to clock in and out, wear a black shirt and report his tips. The Arbitrator further reasoned petitioner’s work was intimately related to Respondent’s bar and restaurant business, all tools and equipment were provided by Respondent, Petitioner received training from Respondent, and Petitioner had to complete W-4 and W-2 forms and had taxes withheld.

The Commission affirmed the Arbitrator’s finding that an employment relationship existed but reduced the permanency award.

Editor’s comment—I cannot imagine this worker not being found to be an employee based on this record. There was no value in fighting this issue that I can see.

ARISING OUT OF EMPLOYMENT: Liddell v. Springfield Clinic, 18 I.W.C.C. 688 (IWCC November 8, 2018)

The issue at trial was whether Petitioner sustained an accidental injury that arose out of employment. Petitioner worked as a lab assistant where they received items in Styrofoam coolers. The employees were permitted to take the coolers home. While on a break, petitioner elected to take a cooler and bring it to her car so it was out of the way. Her car was parked in a designated employee lot and when she stepped over a curb and onto the grass behind her vehicle, Petitioner stepped in a hole and twisted her ankle.

The Arbitrator found petitioner’s accident arose out of and in the course of her employment. The Arbitrator reasoned petitioner was engaged in an act of personal comfort when she brought the cooler to her car. The Arbitrator further found the accident arose out of petitioner’s employment as the reason she took the cooler to her car was to ensure it was not in the way during her shift, which benefited the employer. The Arbitrator also found it significant the injury occurred due to a defect in the grass in the employee designated parking lot. After finding petitioner sustained a compensable injury, the Arbitrator awarded benefits and 10% loss of the right foot.

On review, the Commission majority affirmed the Arbitrator’s finding that Petitioner sustained an accidental injury that arose out of and in the course of her employment. However, it reduced the permanency award to 1% loss of the right foot as there was no evidence of a significant injury.

There was a dissenting opinion finding petitioner failed to prove her injury arose out of her employment as petitioner exposed herself to an unnecessary risk for her own convenience. The Commissioner reasoned petitioner backed into the parking space for her own personal convenience, which required her to step onto the grass to access the trunk. This was a voluntary act for her own personal convenience of loading the cooler. The Commissioner further noted the employer provided a paved parking lot and sidewalk but the petitioner walked on grass inherently uneven.

Editor’s comment: To borrow from Shakespeare--Much ado about nothing.

Runyan v. Cunningham Children’s Home, 18 I.W.C.C. 0714 (IWCC November 21, 2018)

The issues at trial were whether the injury arose out of and in the course of petitioner’s employment, liability for medical bills and entitlement to permanency for the injury. Petitioner worked as a special education teacher. On October 23, 2015, petitioner attended a recertification training on respondent’s premises. Petitioner used the restroom during a break between sessions. He testified the stalls were small and there were things affixed to the stall walls, such as toilet paper holders, that made it an even tighter fit. When petitioner turned to step out of the bathroom stall, his foot hit something, possibly the toilet, or he did not have his feet under him and he fell causing injuries to his right shoulder and elbow. Petitioner testified he saw no defects, water, or debris on the floor.

Petitioner completed an Employee Incident Report and indicated “re-entered stall to flush, while exiting my feet became tangled and I fell through the open door.” Petitioner’s supervisor testified to a report she completed which indicated he went back “to flush the toilet and must have tripped, slipped (no water involved), fell on right side through doorway (open) to stall.”

The Arbitrator found petitioner failed to prove he sustained an accident that arose out of his employment. The Arbitrator reasoned a neutral risk analysis must be applied as petitioner failed to prove he was exposed to a risk distinctly associated with his employment as there was no evidence a condition on the premises contributed to the fall and there was no evidence presented at trial that petitioner was exposed to a personal risk. In applying a neutral risk analysis, the Arbitrator reasoned there was no evidence petitioner was exposed to a greater risk of injury than the general public in using that particular bathroom. The evidence presented at trial failed to show the bathroom or stall differed from bathrooms used by the general public. The Commission affirmed the Arbitrator’s Decision.

Editor’s comment: Small, narrow bathroom stall, really? I can’t imagine a lay-person is qualified to testify to the proclivities of a bathroom stall.

Carson v. Illinois, State of/Dept. of Transportation, 18 I.W.C.C. 0677 (IWCC November 5, 2018)

The primary issue at trial was whether the accident arose out of the petitioner’s employment. On June 19, 2017, petitioner was driving a flatbed delivering construction signs. He climbed in the flatbed of the truck that was approximately four to six feet high and did not have ladders. When descending from the flatbed petitioner jumped down and injured his foot. At trial, petitioner’s supervisor testified there are recommended ways to descend from a flatbed depending upon whether it has handgrips or a ladder. If the flatbed does not have either, as was the case with the flatbed petitioner descended from, people generally sit down and slide off the flatbed.

The Arbitrator found petitioner’s accident arose out of his employment. In finding a compensable accident, the Arbitrator reasoned the flatbed did not have a ladder, steps or any other assistive device petitioner could have used while descending. Further, the flatbed was at least four feet high. For these reasons the Arbitrator found petitioner faced a work-related hazard distinct to his employment and that he was exposed to an increased risk of injury. The Commission affirmed the Arbitrator’s Decision.

Editor’s comment: Four foot drop from a truck without assistive devices is going to be compensable. Consider adding assistive stairs/devices.

Robinson v. Illinois, State of/Vienna Correctional Center, 18 I.W.C.C. 708 (IWCC November 21, 2018)

Petitioner worked as a lobby desk officer in a correctional facility. On September 15, 2017, petitioner was exiting the visiting room after relieving an officer when she attempted to close the door it slammed shut on her hand. She testified the door was made of heavy steel and the weight of the door caused it to slam shut. The maintenance carpenter testified at trial that the door weighed 400 lbs. Respondent argued the accident did not arise out of petitioner’s employment as this was a neutral risk and she was not exposed to a greater risk than the general public.

The Arbitrator found petitioner’s accident arose out of and in the course of her employment and reasoned the door was made of steel and weighed approximately 400 lbs., which the general public would not be exposed to. This constituted an employment related risk. Further, even if this was classified as a neutral risk, petitioner was exposed to this type of door on a regular basis and would have been exposed to a greater risk of injury. The Commission affirmed the Arbitrator’s Decision.

Editor’s comment: No basis for the dispute in my view. The fight/dispute keeps the ASA active losing another one.

Golf v. Chicago, City of, Department of Transportation, 18 I.W.C.C. 676 (IWCC November 5, 2018)

Petitioner worked as a hoisting engineer for the Department of Transportation and operated an asphalt roller. On February 2, 2017, petitioner arrived at the lot where the equipment was stored and went to a trailer to clock in. Upon exiting the trailer, petitioner had his hands in his pockets as it was very cold. He walked down the stairs to the pavement when he tripped and fell directly onto his face. Petitioner testified there was an indentation in the pavement and the entire area was uneven and cracked. He was also wearing work boots and heavy work clothes. This parking lot was not open to the general public. Respondent denied the claim and argued the accident did not arise out of petitioner’s employment.

The Arbitrator found petitioner’s accident arose out of and in the course of his employment. The Arbitrator noted petitioner was clearly in the course of his employment and then considered the arising out of element. The Arbitrator found petitioner was at an increased risk of injury as he was wearing heavy work clothes and had his hands in his pockets and most members of the general public did not work outdoors during winter. The Commission affirmed the Arbitrator’s Decision.

Editor’s comment: Silly dispute, negligence isn’t a defense in WC. Hard to imagine this was disputed without photo evidence of the site of the alleged fall-down.

CAUSAL RELATIONSHIP

Black v. Bridgestone Firestone, 19 I.W.C.C. 0038 (IWCC January 23, 2019)

Petitioner worked as a tire shaper from 1989 to 1994 and then worked as a final tire inspector for 23 years. The inspector position required petitioner to inspect, trim and repair tires from four to 13 feet tall. He would roll the tires and load them onto a trimmer where he used a blade to trim the tires by hand or with a mechanical arm. Petitioner would use both hands to hold the trimmer and would generally work at chest level or above. Petitioner testified to right arm pain at the end of a shift on December 18, 2012. Petitioner was diagnosed with arthritis, impingement, rotator cuff and labral tears and adhesive capsulitis.

The Arbitrator denied benefits finding petitioner’s condition not related to his job duties. The Commission reversed finding petitioner sustained a repetitive trauma injury and that his job required sufficient forceful and repetitive motion to aggravate the underlying degenerative condition. The Commission further reasoned much of petitioner’s job required extended arms at chest level. It did not find Respondent’s IME doctors’ opinions persuasive that it would take work at shoulder level or above to aggravate the underlying condition as the shoulders would still be stressed with chest level work. There was a dissenting opinion finding the Arbitrator’s Decision should have been affirmed.

Editor’s comment: Weird ruling, odd facts. Arthritis isn’t related to work…..

Brooks v. Regional Elite Airline Services, 2019 Il App (4th) 180438WC-U (May 23, 2019)

Petitioner worked as a customer service agent and ground-service worker for an airline that required heavy lifting several times per day. She alleged injuries her neck, back, head, elbow and shoulders on May 12, 2010 after she was struck in the back by an airplane door. Petitioner had a preexisting history of a right TFCC repair and ulnar nerve transposition. After the May 12, 2010 incident, petitioner underwent right shoulder surgery and alleged the sling she wore after surgery caused ulnar nerve damage per the opinion of Dr. Li. Respondent presented an expert opinion which found the ulnar nerve condition was related to the preexisting condition. Petitioner was placed at MMI for her shoulder in 2012. She continued to complain of head, back and neck pain and numbness in fingers of her right hand in 2013 and 2014, although she did not pursue active treatment for these complaints.

On March 8, 2014, petitioner slipped and fell on ice and struck her face on the bumper of a car. After this incident, petitioner pursued further treatment for her neck and resumed treatment of her right elbow. Respondent denied further treatment pursuant to an IME opinion which found the March 8, 2014 incident was an intervening accident. The Commission found petitioner sustained a compensable injury and awarded benefits through March 27, 2013 but denied further benefits finding the March 8, 2014 incident broke the chain of causation between petitioner’s current condition and the work injury and further denied treatment for the recurrent cubital tunnel syndrome as Dr. Li’s opinion was deemed not credible. The Circuit Court found the Commission’s decision was not against the manifest weight of the evidence.

On appeal, the Appellate Court reversed the Commission’s decision and found it was against the manifest weight of the evidence. In addressing the right elbow condition, the Court found the manifest weight of the evidence supported Dr. Li’s opinion that the right elbow condition was causally related to wearing a sling after surgery. It reasoned petitioner’s symptoms from her preexisting elbow surgery resolved and she worked full duty before the May 12, 2010 incident and the medical evidence supported a gradual increase in severity of the condition following the work injury. The Court further reasoned no evidence contradict Dr. Li’s opinion that the positioning of petitioner’s arm after surgery could have aggravated her ulnar nerve.

The Court further found the Commission’s decision that there was an intervening accident that broke the chain of causation was against the manifest weight of the evidence. In so finding, the Court reasoned that although petitioner did not seek treatment in 2013, she remained symptomatic and petitioner testified she did not seek treatment due to lack of insurance authorization. The Court further reasoned the records after the March 8, 2014 did not support a serious injury and actually referenced the long-standing history of chronic head, neck and back pain.

Editor’s comment: With respect to the august and brilliant members of the IL WC Appellate Court, I feel their ruling is hogwash or whatever nicer term you want to use. They are not supposed to insert their personal/judicial opinions of the accurate outcome and the IWCC ruling has merit that should have withstood what I feel would be reasonable review. Welcome to Illinois. Please note they are the justices and I am not.

I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: In Indiana Worker’s Comp, Be Sure to Remember to EDI Lump Sum Payment Information within 30 days When Paying Claimants for Section 15 settlements. Research and writing by Kevin Boyle, J.D.

Editor’s comment: As you may have experienced, the EDI changes installed in IN WC this year have given some insurers/employers headaches and tested their IT systems’ ability to comply with the new rules. Hopefully, you have been able to keep up with the new system.

As part of the changes, the Indiana Worker’s Compensation Board recently reminded users that insurers/employers need to EDI proof of payment on settlement agreements to show payment of any settlement was made within 30 days of the Approval.

Last year, the statute added the 30 day deadline for payments of full and final agreements (“Section 15s”). So in addition to paying settlements within 30 days of the Approval, please also remember that you must provide the payment information through EDI, too.

Some of the new software systems/vendors that have been installed to comply with the new EDI system have protocol that automatically generate those EDI payment transmission to take care of the new requirement.

But if you don’t have that, now is a good time to either upgrade your system or manually make sure it’s done. Don’t get caught short with needed documentation.

If you need any help on this, please contact me: kboyle@keefe-law.com.