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.

8-28-2017; Tiny IL WC Insurance Carrier Law Vetoed by Gov Rauner--Whew!; Important PTSD Ruling with Analysis by Tim O'Gorman JD; OSHA Update and more

Synopsis: Creation of Tiny IL State WC Insurance Company Vetoed by Gov. Rauner—Opposition Promises Fight to Override For Reasons Known Only to Them.

Editor’s comment: Gov. Rauner was busy last week taking action on several pieces of legislation—he has to veto the ones he dislikes to avoid them automatically becoming Illinois law.

The bill of most interest to the IL WC community was HB2622. HB2622 (sponsored by Fine/Biss) was vetoed by Gov. Rauner in its entirety. This weird proposed IL WC “reform” measure would use IL employer and insurer fees set up to fund the IL WC Commission to capitalize the creation of a state established, mutual insurance company to compete with the over 300 insurers that already provide workers' compensation coverage in this State. As I have advised my readers in the past, this whole concept started with ITLA or the IL Trial Lawyers Ass’n claiming the problem with IL WC isn’t high benefits, the problem is profit-scrounging insurance carriers. Someone at ITLA started the odd story to claim the internationally focused, multi-zillion dollar insurance companies somehow hoard more profits in IL than they do in other states—the factual basis for this unusual claim comes from a Ouija Board, Crystal Ball or Witch’s Cauldron. Obviously, the ITLA team and the legislators that report to them feel this completely unfounded public relations concept sells to the media and innocent public.  

I truly don’t understand how the funding would work. The $10 million of startup insurance carrier money would be a one-time check taken from the levy on self-insured employers and insurers that currently goes to operate our IL Workers' Compensation Commission. The legislation provides that the funds are a "loan" to be paid back with interest. Even as a loan, I am unsure how one-third of the IWCC funding could be immediately severed out for this odd purpose and not cause complete havoc with their payroll and operations. They have about 150 employees and, in my view, would have to lay off about 50 workers due to this House Bill. If you have some idea how they can do this and not disrupt operations, please let me know.

Lots of folks have commented about the abysmal track record of our State regarding any effort to operate in an appropriate manner, particularly involving finances. You can also point to the IL State Workers’ Comp claims management program as one that can and should be improved with system-wide cost-cutting. I am unaware of any other agency of IL State Gov’t that operates a private and competitive business. I am sure they are not set up to do so with the hilarious level of overcompensation and impossible-to-fund benefits all IL State employees receive. In short, this tiny “low-profit” IL WC insurance carrier, if it ever actually was funded and the work started, would almost certainly fail in weeks or months. In my view, the goals of this legislation will never and can never be met.

The IL State Chamber, myself and others feel it is difficult to believe the loan would be ever be paid. One has to also wonder if the legislature would keep funneling more money to this stupid and unsupportable venture. The IL State Chamber and I also feel removing money meant to support the Commission jeopardizes the entire adjudication of workers' compensation for both injured workers and IL employers. I join with our State Chamber and strongly support Gov. Rauner's veto. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: IL WC PTSD Claim Fails Due to Treatment Delay, Analysis and Research by Timothy O’Gorman, J.D.

Editor’s comment: We salute the Arbitrator, Commission panel and the Appellate Court ruling. In RPRD Dykman, Inc. v. Illinois Workers’ Compensation Commission, Claimant was an over-the-road truck driver who witnessed a horrific accident en route to making a delivery. Claimant was driving truck northbound on I-57 when a fellow truck driver (according to the police report) instigated a crash which resulted in a fatality. Claimant continued to work and drive for six months subsequent to the incident however eventually sought treatment with a psychiatrist when he no longer felt able to continue driving due to PTSD or post-traumatic stress. In claims such as this, we always point out there is no reason a truck driver couldn’t transition to logistics or desk work, with his training and background as a trucker. There are literally thousands of such jobs in the Illinois labor market. Obviously, this Claimant simply wanted to go on the dole, like most PTSD claimants.

Claimant testified he felt “in shock,” “sick” and “horrified” from what he witnessed at the scene of the incident. Claimant did not treat with anyone until 6 months after the occurrence. Claimant also failed to return to work as a truck driver subsequent to his treatment and began performing a failed job search, alleging he could not return to work in his pre-injury employment capacity.

After evidence was taken, the Arbitrator found Claimant did not meet the burden of proof required to establish a compensable psychological injury under Pathfinder v. Industrial Comm’n, relying mainly on another similar ruling in General Motors Parts Division v. Industrial Comm’n, which interpreted Pathfinder as being “limited to the narrow group of cases in which an employee suffers a sudden, severe emotional shock which results in immediately apparent psychic injury…” (emphasis added). In Pathfinder, a supervisor was next to a worker whose hands were traumatically amputated—the supervisor suffered immediate psych issues, as one might imagine. We have no idea why someone would fight work-related psych care for that shocking event.

In this ruling, the Arbitrator essentially created 2 elements necessary for proving a compensable injury in its review and application of General Motors:

1. A sudden, severe emotional shock
2. Immediately apparent and lasting psychic injury

The Arbitrator found Claimant clearly may have suffered a sudden and severe emotional shock, however the six month delay in treatment failed to appropriately establish an “immediately apparent psychic injury,” as required by IL WC law.

A Petition for Review was timely filed along with a motion to cite authority asking the Commission to take judicial notice of the Appellate Court’s decision in Chicago Transit Authority v. Workers’ Compensation Comm’n, an opinion rendered subsequent to the Arbitrator’s decision however prior to the Commission’s decision.

The Appellate Court, WC Division in Chicago Transit Authority may have ended the absolute necessity that a “immediately apparent psychic injury” be proved. Claimant in Chicago Transit Authority was a bus driver who was involved in a fatal accident. He was able to easily establish a sudden, severe emotional shock, did not seek psychiatric treatment until two months after the alleged incident.

In this claim, the Appellate Court distinguished Chicago Transit Authority from General Motors on the basis of a gradual development of psychic injury in the latter, rather than a single identifiable incident. The Appellate Court in Chicago Transit Authority noted

Under Pathfinder, the emotional shock needs to be “sudden,” not the ensuing psychological injury. Thus, if the claimant shows that she suffered a sudden, severe emotional shock which caused a psychological injury, her claim may be compensable even if the resulting psychological injury did not manifest itself until sometime after the shock. To the extent that General Motors holds otherwise, we reject that aspect of the court's holding and decline to follow it.

The Commission then rendered a decision affirming and adopting the decision of the Arbitrator however provided no comment on the application of the decision in Chicago Transit Authority.

The case was appealed to the Circuit Court which found the Commission’s failure to address the apparent change in case law

1. Allowed for a de novo reviewing of the case and

2. Resulted in an incorrect application of case law to the facts.

The Circuit Court reversed the decision of the Commission and directed the Commission to award benefits. The Commission issued a decision awarding 5% of a person as a whole and 34-5/8 weeks of TTD, refusing to award Claimant wage differential benefits. Claimant and Respondent appealed whereupon the Circuit Court affirmed the decision of the Commission and ultimately resulted in an appeal to the Appellate Court, WC Division.

The Appellate Court answered the question of whether benefits are owed in this instance by stating correctly, “we don’t know.” The Appellate Court pointed to the one judicial body to make the controlling ruling: the Illinois Workers’ Compensation Commission. The Appellate Court found the Circuit Court, in remanding the matter back to the Commission with directions to award benefits improperly supplanted the function of the Commission in finding certain facts to be true. The Appellate Court agreed the Commission’s simple adoption of the Arbitration decision was an improper application of law in failing to address Chicago Transit Authority. However the Appellate Court felt the remand should not have included directions to award benefits. Instead, the Circuit Court should have remanded the issue back to the Commission with instructions to simply address the new case law and come to a conclusion itself.

The question of whether benefits should be awarded to a truck driver who claims to have suffered an unexpected and severe shock but then waits six months to treat for a psychic injury is still unclear. The defense team at KCBA will be watching intently to see if six months is “immediately apparent” enough to warrant an award of benefits.

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: OSHA Update for WC Industry.

Editor’s comment: As expected under the new Administration, potential regulatory action from OSHA has been cut by more than half, according to the U.S. Department of Labor's updated agenda released July 20, 2017.

The report, typically published twice a year, lists the status of and projected dates for all OSHA regulations. The updated agenda lists 14 OSHA regulations in three different stages – pre-rule, proposed rule and final rule – compared with 30 on the fall 2016 agenda. Overall, 469 proposed federal regulations have been withdrawn and a combined 391 have been reclassified as “long-term” or “inactive” to allow for “further careful review.”

“This agenda represents the beginning of fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burden on the American people. By amending and eliminating regulations that are ineffective, duplicative and obsolete, the administration can promote economic growth and innovation, and protect individual liberty,” the agenda's preamble states.

President Donald Trump signed an Executive Order on Jan. 30 requiring federal agencies to cut two regulations for every new one that is proposed. The White House published a guidance memo three days later clarifying that the Executive Order would apply only to those regulations with a proposed cost of $100 million or more.

The Natural Resources Defense Council, fellow watchdog organization Public Citizen and the Communications Workers of America labor union filed a lawsuit on Feb. 8, claiming the order “directs federal agencies to engage in unlawful actions that will harm countless Americans.”

Only one OSHA regulation, Standards Improvement Project IV, is listed as being in the final rule stage, in part because the Occupational Exposure to Beryllium final rule was moved back to the proposed rule stage on June 27. Under the new administration, OSHA is seeking to remove specific provisions regarding worker exposure in construction and shipyard industries. The final rule on beryllium went into effect May 20. In the interim, OSHA stated it is not enforcing it in the two industries and is seeking comments on its new proposal until today.

President Trump also signed a Congressional Review Act resolution on April 4 to strike down the “Volks” rule, which was published in December 2016. That regulation allowed OSHA to issue citations for inadequate injury and illness recordkeeping for five-and-a-half years instead of the current six-month statute of limitations. In May, five members of Congress introduced the Accurate Workplace Injury and Illness Records Restoration Act, which would reinstitute the “Volks” rule, but that bill remains in committee.

Removed from the regulatory agenda:

·         Blood borne Pathogens

·         Combustible Dust

·         Preventing Backover Injuries and Fatalities

·         Revocation of Obsolete Permissible Exposure Limits (PELs)

·         1-Bromopropane (1-BP) Standard

·         Noise in Construction

·         Occupational Exposure to Styrene

·         Updating Requirements for the Selection, Fit Testing and Use of Hearing Protection Devices

Now listed under “long-term” actions:

·         Update to the Hazard Communication Standard

·         Amendments to the Cranes and Derricks in Construction Standard

·         Process Safety Management and Prevention of Major Chemical Accidents

·         Shipyard Fall Protection – Scaffolds, Ladders and Other Working Surfaces

·         Emergency Response and Preparedness

·         Infectious Disease

·         Tree Care Standard

·         Prevention of Workplace Violence in Health Care and Social Assistance

·         Occupational Injury and Illness Recording and Reporting Requirements – Musculoskeletal Disorders (MSD) Column

·         Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records

“In his first speech as President of the United States, Donald Trump pledged that every decision he made would be to benefit the nation's workers,” Christine Owens, executive director of the National Employment Law Project, said in a July 20 statement. “The administration's Spring Regulatory Agenda reflects yet again just how hollow the president's promise has been.”

Along with the rulemaking on beryllium, proposed rules carried over from fall 2016 or added to the agenda include:

·         Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection

·         Crane Operator Qualification in Construction

·         Cranes and Derricks in Construction: Exemption Expansions for Railroad Roadway Work

·         Technical Corrections to 16 OSHA Standards

·         Puerto Rico State Plan

·         Tracking of Workplace Injuries and Illnesses

·         Improve Tracking of Workplace Injuries and Illnesses

Five regulations remain in the pre-rule stage, a decrease from 16 this past fall: Communication Tower Safety, Mechanical Power Presses Update, Powered Industrial Trucks, Lock-Out/Tag-Out Update, and Blood Lead Level for Medical Removal.

Much of the agency's Walking-Working Surfaces and Personal Fall Protection Systems final rule, issued in November 2016 under the Obama administration, went into effect in January 2017, and three of its six remaining provisions are scheduled to be phased in by the end of this year.

Source: National Safety Council.

If you need help with any matter involving OSHA, send a reply.

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.

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

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.