9-4-2017; Did the IL Appellate Court, WC Div Just Reverse Interstate Scaffolding?; Several IL WC Arbitrator Reappointments and Three New IL WC Hearing Officers Come In and more

Synopsis: Did The IL WC Appellate Court Just Reverse Interstate Scaffolding?

Editor’s comments: The Illinois Appellate Court, WC Division has taken another look at whether TTD is warranted when a Claimant with work restrictions is fired.

In Holocker v. Illinois Workers’ Comp. Comm’n, 2017 IL App (3d) 160363WC, the Court’s members appear to have departed significantly from established case law. In this claim, the Court upheld the decision to not award TTD ruling Claimant’s restrictions did not significantly interfere with his ability to find a new job after being terminated.

In the claim at bar, Claimant was a transportation operator who suffered an accident operating a crane, when a broken strap from the crane struck him in the face and chest, causing broken teeth, multiple facial fractures, and chest bruises. After being released to full duty work, Claimant asserted he began experiencing anxiety and panic attacks at the prospect of having to operate any crane at work. Claimant underwent psychological treatment for this anxiety and was restricted from operating cranes. Respondent accommodated these restrictions, providing him with other non-crane duties. Respondent had 40 technical operator jobs, many of which did not require use of cranes, so Petitioner continued working as a transportation operator, but was not required to operate cranes.

Claimant was eventually fired for failing to show up for work and not calling in for three days in a row—the termination was consistent with the collective bargaining agreement in place. TTD was not restarted following termination, even though the work restrictions implicitly continued. We point out there are a LOT of jobs that don’t require using cranes.

Based on the restriction prohibiting him from operating cranes, Claimant asserted entitlement to reinstatement of TTD after being fired. The IL WC Commission and later the IL WC Appellate Court disagreed. The Appellate Court gave significant weight to the employer’s vocational expert, who testified that being restricted from operating cranes did not impact the claimant’s ability to find a new job. Of crucial importance, the Court here distinguished this case from Interstate Scaffolding and Matuszczak (two cases where TTD was awarded after a claimant with restrictions was fired), stating that, “in each of those cases, it was undisputed that, at the time of termination, claimant’s condition had not stabilized, claimant was unable to perform the job he had been performing for the employer prior to the work accident, and when claimant returned to work after the accident, it was in a light duty capacity. Thus, in each case, it was undisputed that the claimant’s work injury had diminished his ability to work, thereby entitling him to collect TTD benefits at the time of his termination.”

In Holocker the Court further held by the time claimant was terminated, his work injuries had what the ruling indicated was “no effect” on his employment situation. The Court emphasized while determining entitlement to TTD “the test is whether the employee remains temporarily totally disabled as a result of a work-related jury and whether the employee is capable of returning to the work force.”

Comparing the rulings—in Interstate Scaffolding, the IL Supreme Court provided TTD to a worker on restrictions/light duty who was terminated for defacing company property. The only true difference between the decisions is the Holocker plaintiff/petitioner had a psych restriction that would not be a factor in looking for literally thousands of jobs outside the crane industry. In short, we feel the same facts and defenses to TTD are present in both claims.

We also believe this ruling is an important development in case law regarding TTD and hints at an increased willingness of the Courts to not merely ask whether or not a claimant has work restrictions, but to instead examine and analyze the type of restrictions that a claimant had, and whether it realistically impacted their employment situation, mandating TTD.

Be sure to stay tuned to the KCB&A blog for regular updates on the changes and clarifications affecting Workers’ Compensation law throughout the Midwest!

This article was researched and written by Pankhuri Parti, J.D. and your editor. Please post comments on our award-winning blog.

Synopsis: IL WC Arbitrator Secret Appointment Process Sadly Continues.

Editor’s comment: As I have told my readers in the past, the method by which IL WC Arbitrators are selected, measured and fired or reappointed is a process that takes on the secrecy of nuclear armament. I have no idea why or how this always has to be done under a veil of silence that challenges information going into and out of Fort Knox.

In my view, Governor Rauner bought into this process the way he has bought into most processes the State of Illinois continues to bungle under his watch. As I have told my readers and will continue to say—we don’t need and can’t afford all these hearing officers, no matter how solid they may be. I remain amazed Governor Rauner spent about $50M of his own money to get the job and has then made precisely the same challenging decisions/processes of his predecessors to overstaff our virtually-bankrupt State Gov’t.

That said, last week Governor Rauner reappointed the following Arbitrators for the Illinois Workers’ Compensation Commission: Anthony C. Erbacci, Steven J. Fruth, David A. Kane, Michael K. Nowak, Ketki Shroff Steffen. I consider these veteran Arbitrators to be generally solid and professional hearing officers.

Joining the Illinois Workers' Compensation Commission as newly appointed Arbitrators are Thomas Ciecko, Robert M. Harris and Robert E. Luedke. If you keep reading, you may note it appears to be a relatively moderate/conservative bunch.

1.    New Arbitrator Thomas Ciecko doesn’t appear to have any workers’ comp trial experience that we know of—his resume indicates he will probably catch up fairly quickly. Our research indicates he was General Counsel for the Suburban Bus Division of the Regional Transportation Authority, senior attorney with Oak Brook-based McDonald's Corp, a former Assistant Illinois Attorney General, former Chief of the Organized Crime Division of the Will County State’s Attorney’s Office and former Special Assistant United States Attorney.

2.    New Arbitrator Robert Harris is a defense attorney and previously held administrative positions at the Illinois Workers’ Compensation Commission from 1990–2004. He was Manager of Insurance Compliance (1996 – 2004), Executive Assistant to the Chairman (1996 – 2003) and Senior Staff Attorney (1990 – 1996). Robert also taught classes as an adjunct faculty member at Triton Community College. He is a trained and certified mediator and arbitrator and arbitrated over 100 cases for the Better Business Bureau since 1994 and was recipient of the 1998 Arbitrator of the Year award. Robert is accredited as a Medicare Set-Aside Certified Consultant by the International Commission on Health Care Certification (2012, re-certified 2015) and is a designated Registered Workers’ Compensation Specialist by the National Registry of Workers’ Compensation Specialists (2015).

3.    New Arbitrator Robert Luedke is also a defense attorney and has been defending Illinois Workers' Compensation claims for over 25 years. He is a frequent author and lecturer regarding Illinois workers' compensation issues. He is a member of the Workers' Compensation Lawyer's Association. He has made presentations regarding legal issues to the Winnebago County Bar Association and the Chicago Bar Association. Mr. Luedke has presented seminars to insurance carriers and self-insured employers. Mr. Luedke has argued numerous workers' compensation cases before the Illinois Appellate Court, WC Division.

We wish all of them the best in their work at the IWCC.