12-18-2017; Understanding Workers' Comp Exclusivity and Nuances; Why We Send "Unreps" to Clients, Potential Clients and You, If You Want; HAPPY HOLIDAYS TO ALL!!! and more

Synopsis: Understanding Workers’ Comp Exclusivity and Nuances.

Editor’s comment: All sides in a workers’ comp claim have to have a sense of the rights and responsibilities of the parties to an injured or ill workers’ claim. One confusing aspect of the workers’ comp system is the employee can sometimes “choose” to make it a workers’ comp claim but the worker can just as easily abandon or “evade” the no-fault benefit system and seek benefits/recoveries in other places.

Why would someone avoid/abandon a work injury? It happens all the time—someone makes a mistake and gets hurt and work, treats and goes back to work. They don’t want to trouble with the system and that is their right to avoid the stress.

The other aspect of rights/responsibilities is some workers will become injured and then want to cash in on the “poor person’s lottery” that some common law verdicts now seem to be moving toward. We compare serious paralyzing and tragic injuries to two people that went to a jury verdicts this year. One was a paralyzed construction worker whose common law claim was handled by one of the top Plaintiff firms in Illinois—their work in the common law courts resulted in a reasonable verdict of $64M dollars. The other was a young woman struck by what I call a falling “gazebo” by O’Hare Airport who got a shocking verdict of $148M from the City of Chicago! That is so much money, we assume Mayor Rahm Emanuel and the City Council will have to raise our taxes if this astounding nine-figure verdict isn’t reduced on appeal. I was told but am not sure the City’s defense firm stipulated to liability for reasons no one could understand.

From those verdicts, one could see why someone would file both a WC claim and a GL claim for a worker with serious injuries.

So preliminary questions any claim handler has to routinely consider:

·        Is this a workers’ comp claim?

·        Can the worker bring a common law claim against the employer?

·        Can the worker bring a common law claim against any other entity causing injury?

These basic questions are often overlooked. The assumption is that, if an Illinois workers’ compensation claim is filed, the case involves a loss that should be compensated under Illinois workers’ compensation law. However, in order to recover benefits under workers’ compensation law, the activities must be covered by the IL WC Act and not under any other benefit provision in a different system that may be considered exclusive. 

For example, if an Illinois employee is working to maintain a watercraft when injured and the vessel is on a navigable waterway, such injuries would be covered by the exclusive provisions of the federal Longshore Harbor and Workers’ Compensation Act, administered by the OWCP. Such injuries would not be appropriately covered by the relative State’s Workers’ Compensation Act, even though the employee was hired by and working for a local employer. U.S. Postal workers are also covered by a similar federal-only WC Act. There are similar laws that have exclusive coverage to eliminate jurisdiction of the state WC body to hear the claim.

Another aspect of the WC system coverage question is when the employee can bring a workers’ compensation claim against an employer and when the employee can also sue the employer for the same injuries in civil court. This concept is a possibility but under very limited circumstances.

What Is Third Party Liability?

Third-party liability refers to insurance that protects the insured from legal liability claims presented by “third” parties. This means payment is usually not made to the insured, but rather to someone suffering loss who is not a party to the insurance contract. Compensation throughout the industrialized world is the injured employee gave up his/her right to bring a common law action against the employer in exchange for workers’ compensation benefits that are more certain and more rapidly provided but potentially lower than what a jury might be able to provide for a similarly severe injury. 

There have been a number of strange and complex legal devices that have allowed Illinois employees to maintain common law claims against third parties that might require the employer to pay a part of a jury verdict, but the general rule is supposed to be the employee cannot sue the employer at common law if he/she is entitled to workers’ compensation benefits. This rule applies even if the worker doesn’t seek WC benefits or abandons/avoids the WC system.

One clear exception to this concept is when an employer commits an intentional act or hires another to commit an intentional act to injure an employee. For example, if the employer were to hire a ruffian to injure/attack an employee due to a work-related dispute, the employee could seek workers’ compensation benefits and also sue the employer for the injuries suffered in the intentional attack.

In specialized circumstances, the employer and its carrier/TPA may have an ‘option’ with regard to payment of benefits under either workers’ compensation or general liability. For example, if an employer has an employee become injured as a result of slipping on ice and snow while working on company property, it is possible that you might successfully deny the claim for workers’ compensation benefits only to then face a premises liability or other general liability lawsuit which is possibly much more expensive to defend and potentially explosive due to the unpredictability of jury awards. 

The employer can ‘opt’ not to fight the workers’ compensation claim and voluntarily pay workers’ compensation benefits which should block any third party claim against the employer if the employee knowingly accepts such benefits.

Recent Ruling of Note on Exclusivity in Workers’ Comp

In Peng v. Nardi, issued December, 14, 2017, our Illinois Appellate Court ruled a worker could not proceed with her lawsuit against a coworker for injuries in a car accident that occurred while the co-worker was driving her to work in a van owned by their employer.

Claimant Peng and a co-worker named Lei Guan worked for a restaurant. The restaurant was in Hoffman Estates, a community northwest of Chicago. Claimant Peng and Guan both lived on the south side of Chicago, as did a number of other employees.

The restaurant owned and gave co-worker Guan the keys to a 15-seat Ford E350 passenger van to transport himself and other workers to and from the restaurant. The company paid Guan $600 a month for his driving duties and covered the cost of fuel. Guan wasn’t allowed to use the vehicle for personal errands, and he was not allowed to let anyone else drive. The restaurant initially told Guan where to pick up new employees, but he later chose the pick-up and drop-off points on his own. Guan also chose the specific route to take to and from work, based on the vagaries of Chicago-area traffic.

Claimant Peng was a passenger in the van in June 2014 when the van collided with another vehicle on Interstate 90. The car had been struck a van being driven by another individual. Claimant Peng suffered an injury to her hip in the crash. Doctors originally diagnosed Peng with a muscle injury but later determined she had a pelvic fracture.

Claimant Peng filed an IL WC claim currently pending and assigned to one of our State’s more venerable Arbitrators, George Andros.

At the same time, Claimant Peng also filed a negligence suit against co-worker Guan and the other two drivers of separate vehicles, seeking damages for her injury in the MVA. A trial judge granted Guan’s attorney’s motion to dismiss Peng’s claims against him, finding Guan was immune from civil liability to a coworker under the Illinois Workers’ Compensation Act.

On appeal, the Illinois Appellate Court explained an employee injured on the job normally cannot sue the employer if they receive worker’s compensation benefits, and an employee acting in the course of his employment who accidentally injures a colleague is also immune from a common law negligence action because of the WC Act’s underlying policy outlining the costs of work accidents be placed on that industry and not insurance or assets of co-workers.

The Court ruled accidents occurring while an employee is traveling to or from work generally are not treated as occurring within the course of the worker’s employment, although there is an exception when the employer has provided a means of transportation or “controls” the method of the worker’s travel.

The ruling also indicates Claimant Peng was not compensated for her commute time and was not required to use the restaurant vanpool to get to and from work. However, she relinquished control over the conditions of transportation when she climbed into a vehicle owned by her employer and driven by her co-employee under the employer’s selection/direction. Accordingly, the Court concluded the accident occurred while Claimant Peng was in the course of her employment, and the workers’ compensation system provided her exclusive remedy against Guan.

Please also note when your company provides transportation and/or company vehicles to facilitate workers getting to and from work, you may be expanding work comp coverage for accidents/injuries occurring during trips that might otherwise not be covered.

To read the decision, click here Ping v. Nardi We appreciate your thoughts and comments. Please post them on our award-winning website.

Synopsis: Why the Defense Team at KCB&A Provides Free Emails Confirming We Saw an “Unrep.”

Editor’s comment: For our clients and potential clients, our KCB&A defense team scours the WC call sheets to check and see if your company or insured has a pending claim that you might not be aware of. If you would like, we can add you to the list of companies we watch out for—simply send a reply.

If we see a WC claim without defense, we send a very brief email indicating it is on the call and/or set for hearing. We quickly advise don’t see a defense attorney assigned. You don’t have to reply to such emails if you are covered.

It is possible you have relayed the claim to an attorney for defense—if their appearance isn’t on file, we assure you they won’t get IWCC notices or decisions. That isn’t a great idea and you might want to let them know to contact the IWCC information desk and get the situation remedied.

We also know some claims handlers will hold off on assigning files to defense to see if they can rapidly settle and save that cost of counsel. That isn’t a problem for us with the single caveat—if a matter is set for trial and a trial begins, even if we are hired and quickly join in defending the claim, there is a chance the Arbitrator won’t allow further defense evidence, consistent with IL case law. We don’t suggest claims handlers play a game of WC “chicken” to see how long you can wait before sending a claim to counsel.

Please also remember another service the defense team at KCB&A provides—we fight to get your claims closed. Sometimes we feel adjusters may hold claims for months and years, as claimants’ counsels may not be aggressive in moving the file. We don’t feel you should rely on claimant’s counsel to take months and years to get around to closing files. This also may be counterproductive and result in reserves sitting.

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

12-11-2017; Gov. Rauner's "Turnaround" Is Happening In IL WC; "Disabled" IL Police Officer Morphs Into TSA Screener; Gene Keefe on Loss of Trade Awards/Reserves and more

Synopsis: Governor Rauner’s Illinois Workers’ Compensation “Turnaround” is Happening and Few Know It.

Editor’s comment: Governor Bruce Rauner came into Springfield as a veteran and successful businessperson but a newbie Governor. Our newly sworn-in Governor had a group of action items he wanted to implement to improve Illinois’ government and overall situation,  particularly in the interest of jobs and business. One headline item in his “Turnaround Agenda” was workers’ compensation reform. At the time of his election, the only national scale of any value was the every-other-year State of Oregon WC Premium Rankings that had Illinois as the seventh highest or most expensive state of the U.S. for workers’ comp insurance premiums.

At the time and even now, I don’t feel Governor Rauner got great political advice on how to cut workers’ comp costs for your bosses and mine. His goal was to enact/bargain/force what he felt were significant legislative reforms his advisors had to feel would cut workers’ comp costs. As I said then and continue to assure my readers, several of the legislative proposals could have inadvertently expanded coverage of the IL WC Act and increased IL WC costs! Governor Rauner’s WC legislative “reform” proposals were met with a lot of “crazy-making” from the other side that proposed creating a tiny IL WC mutual insurance company to supposedly demonstrate all major U.S. workers’ comp insurers were somehow magically manipulating “profits” in only our State to somehow keep IL WC premiums artificially high. I pointed out the State is comically broke and to take money from the IWCC would cripple that administrative agency. The gurus at the IL State Chamber of Commerce and other commentators repeatedly confirmed crooked/corrupt/bumbling IL State government has no idea how to run a successful private competitive company. They forecast financial doom for this silly effort.

That said, we assure you progress is underfoot for the IL WC system. As always, I closely watch IWCC decisions and reviewing court rulings. Here are three recent rulings of note to all Illinois claims/risk/gov’t and insurance folks.

1.    In Taylor v. IWCC (Mt. Vernon Police Dep’t, Appellant), we saw an IL WC claim by a Sheriff’s candidate in which he claimed to have injured his knee restraining/roping in a 15 year old juvenile. The main problem with the claim is Officer Taylor appears to have “forgotten” to immediately mention or document the claimed knee work injury, first claiming this story about a month after the occurrence. The IL WC Arbitrator awarded benefits but the IL WC Commission reversed, denying the claim. The local Circuit Court reinstated the Arbitrator’s award but the unanimous Appellate Court, WC Division reversed and closely followed Illinois WC law to confirm the facts, as found the IWCC panel is controlling.

This came to light when the City of Mt. Vernon sued the Jefferson County Sheriff’s candidate for misrepresenting this knee injury. They confirmed their claims handler innocently paid and Claimant improperly received $7,043 in worker’s compensation benefits to which he allegedly was not entitled. The City recently filed a lawsuit against Taylor in small claims court to recover the $7,043.26 it paid him.

2.    Second, I recently saw an IWCC ruling in Hansen v. Prairie Material. In this claim, a billing analyst and co-worker finished a task and they “high-fived” each other. Claimant asserted her hand was seriously injured in the process and she suffered from complex regional pain syndrome. The Arbitrator and IWCC ruled her job didn’t include “high-fiving” co-workers and she either voluntarily increased the risk of injury or was engaged in horse-play.

3.    Third, Nathan Bernard of KCB&A, one of our top young defense attorneys, recently received another important ruling where Claimant decided for reasons known only to him that it was a good idea to jump off a platform, rather than safely walk down the staircase provided. When Claimant landed, he broke his foot. The Arbitrator and IWCC panel found Claimant unnecessarily and dramatically increased the risk of injury and denied benefits. This claim hasn’t gone final so I am not reporting the names of the parties and have no intention to impact any later appeal, if one might be filed. The point is we salute the IWCC and Arbitrator for their strong views on such challenging claims.

Another point I am making is the current IWCC is doing an amazing job of reining in Illinois WC costs. I am sure the numbers are slow to appear but should be significant when the next State of Oregon survey of U.S. WC Premium costs takes place next fall. It is my hope Illinois businesses and local governments benefit from the IWCC’s hard work. And if you support lower workers’ comp costs and want more jobs in this nutty State, align behind Governor Bruce Rauner. I will continue to watch and report the rulings I feel support or rebut my thoughts on lower WC costs/premiums.

Please, please send me any IL WC ruling you feel is consistent or runs against the new trend. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: More IL Gov’t Dysfunction—“Disabled” Police Officer Gets Questionable Line-of-Duty Gov’t Pension While Now an Active TSA Officer.

Editor’s comment: Last week, I reported on Martin v. Board of Trustees of the Police Pension Fund of the Village of Shiloh, where, a police officer for the Village of Shiloh, IL was on duty and sitting as a passenger in an unmarked car when it was struck from behind by another vehicle. The IL Appellate Court ruled this officer was subject to all the risks of his job and getting hit while simply sitting in a car was an “increased risk.” The former officer became “disabled” due to Illinois’ odd rule that he gets an increased pension to police and firefighters if they are injured “in the line of duty,” versus a non-line-of-duty pension.

In addition to the lifetime line-of-duty disability check, Claimant Martin filed a work comp claim and received a tidy, tax-free settlement from the Village of $121,761.50 for 35% BAW. To me, this means he not only gets paid a generous gov’t pension the rest of his life, our local governments also provide a “going-away” present in the six-figure range.

My article was re-published in the Metro East press/media. I got a voicemail message from one of the City fathers of the Village of Shiloh to let me know they are considering further appeals. One concern is former police officer Martin is now a TSA Officer working at what I believe is the MidAmerica Airport in St. Clair County, IL. From my research, on top of his lifetime pension, he is now probably making something in the range of $40K a year plus federal healthcare and other benefits. Everything TSA Officer Martin is doing is completely legal but, in my mind, controversial.

What many Illinoisans may not understand is an Illinois police officer or firefighter is considered “catastrophically disabled” by our Illinois courts, not due to any significant real “disability” or injury. They don’t have to demonstrate the “catastrophe” is an inability to work at any job for the rest of their lives. They only have to demonstrate they can’t work as a police officer or firefighter. I am aware of supposedly disabled police and firefighters across this State who return to regular work and “double-dip” to get lucrative pensions while also working as business owners, bartenders and construction superintendents. Many of them move away from their former homes out of our State to avoid people seeing them working while supposedly “disabled.”

What drives me nuts about that disability pension “rule” is the misimpression all police officers are routinely engaged in running down bad guys/gals and busting down doors. I always smile/giggle when I enter any police department across this State to see numerous uniformed officers involved in sedentary and light work, answering phones/radios and handling paperwork. At your local school, there are SRO’s or School Resource Officers who provide a police presence for the kids, teachers and public to see. Thousands of such sedentary and light jobs are continuously staffed across this State. Many SRO’s are retired police officers!

I am certain we will never see this concept “reformed” in this State due to the strength, funding and political power of the IL Police and Fire Unions. At some future time, it is my hope the federal government will follow the concepts of ADA and require injured police and firefighters be taken off the pensions and required to perform sedentary and light jobs to give taxpayers some value for our dollars.

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

Synopsis: Quick Thoughts From Gene Keefe on IL WC “Loss of Trade” Claims/Awards.

Editor’s comment: Last week, a claims handler asked how to “define” or make sense of handling/reserving “loss of trade” claims, like the one former Officer Martin might have received, as I report above.

The statutory basis for IL WC “loss of trade” claims was cited by our Appellate Court, WC Division in a Rule 23 or “non-published” ruling:

Section 8(d)(2) of the Act provides, in relevant part, that the employee may be compensated after sustaining serious and permanent injuries "if such injuries partially incapacitate him from pursuing the duties of his usual and customary line of employment but do not result in an impairment of earning capacity" at a rate of the percentage of 500 weeks that the partial disability bears to total disability. 820 ILCS 305/8(d)(2) (West 2004). The extent or permanency of a claimant's disability is a question of fact to be determined by the Commission, and its decision will not be set aside unless it is contrary to the manifest weight of the evidence. Roper Contracting v. Industrial Comm'n, 349 Ill. App. 3d 500, 506-07, 812 N.E.2d 65 (2004). For a finding of fact to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App. 3d 288, 291, 591 N.E.2d 894 (1992). Put another way, the Commission's determination on a question of fact is against the manifest weight of the evidence when no rational trier of fact could have agreed. Dolce v. Industrial Comm'n, 286 Ill. App. 3d 117, 120, 675 N.E.2d 175 (1996).

In my view, that is the only provision in the IL WC Act and Rules that justifies an award of “permanent disability” for someone who changes jobs after an accident but might make more money in the new job or jobs after recovery.

That said, I have seen awards/settlements for cops and police officers as high as 80% BAW. One former IL WC Arbitrator, back in the day, wrote a colorful award for a firefighter with a high loss of trade award the hearing officer felt justified because that hearing officer loved giving away lots of local gov’t money.

Please remember/note IL cops and firefighters who can’t return to work as cops and firefighters are blocked by the IL Pension Code from wage loss and T&P awards if they are awarded line-of-duty disability pensions. All of them turn to “loss of trade” or loss of occupation to assert big IL WC claims for six-figure permanency as a going-away reward when they are mustered off the force and put on a line-of-duty pension.

My main issue for everyone to remember—I can’t imagine any specific reason/measure one person might get an award of 20% BAW for loss of trade versus an award four times higher or 80% BAW. The concept of loss of trade can’t be measured by any independent or reproducible means. In my reasoned legal view the level of PPD for a “loss of trade” claim is random and sporadic. Politics could also come into play, in the wrong claim.

If you were to point to post-recovery wage loss as the basis for high/low BAW for “loss of trade,” my answer is you are then pointing to the wrong provision in the IL WC Act—The Act specifically covers wage loss for better or for worse and the “loss of trade” concept shouldn’t take its place.

In short, reserve high and try to settle low. If you go to hearing, assume you are looking at a turkey shoot where you might bag a big one or a skinny one.

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

12-4-2017; When Is An Accident "Accidental", Parts 1 and 2; Charley Neal on Staffing/PEO Liability; Dr. Przybylo's Great New Book and more

Synopsis: When Is an Accident “Accidental?” Part 1.

Editor’s comment: Is a patrol officer sitting in a car “chilling” acting in the line of duty when randomly struck by another car?

In Martin v. Board of Trustees of the Police Pension Fund of the Village of Shiloh, No. 15-MR-404, issued 11/29/2017, a police officer for the Village of Shiloh was on duty and sitting as a passenger in an unmarked car when it was struck from behind by another vehicle. He became “disabled” due to Illinois’ odd rule that he gets an increased pension to police and firefighters if they are injured “in the line of duty,” versus a non-line-of-duty pension.

Former Officer Martin worked for the Village of Shiloh Police Department as a detective. In May 2012, Martin was a passenger in the front seat of an unmarked squad car when another vehicle struck the car from behind. Martin suffered injuries to his neck and back that were claimed to be permanently “disabling.”

Claimant Martin filed a work comp claim and received a tidy, tax-free settlement from the Village of $121,761.50 for 35% BAW. To me, this means he not only gets paid a generous gov’t pension the rest of his life, our local governments also provide a “going-away” present in the six-figure range. What we find challenging is former Officer Martin may use the money to buy his own business or help run a bar or whatever new occupation he likes. Again, our State doesn’t require him to be disabled from all work to get a generous pension, just work as a patrol officer.

One has to also wonder—could former Officer Martin work at a desk at a 911 call center to provide value for taxpayers for the monies he is being paid? Isn’t that “police work?” No Village/Town/City in this nutty State ever brings injured police officers and firefighters back to sedentary jobs when they become available. It is almost as if such jobs magically don’t exist.

The battle then turns to whether Martin was injured “in the line of duty.” Remember he was certain to receive a non-line of duty pension which pays moderately lower benefits. Former Officer Martin filed an application for line-of-duty disability retirement benefits with the Board of Trustees of the Police Pension Fund of the Village of Shiloh.

The Shiloh Pension Board denied the application for a line-of-duty disability pension, confirming their view he was not performing an “act of duty” at the time of the being struck by a wayward motorist. The Illinois Pension Code defines an act of duty as one “of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life.” The Pension Board reasoned the act of sitting in a car at a complete stop is an situation that is “repeated and experienced numerous times by many citizens within the community.”

Former Officer Martin sought judicial review, and a very well-paid Circuit Court judge reversed the Pension Board, relying on the Illinois Supreme Court’s ruling in Johnson v. Retirement Board of the Policemen’s Annuity & Benefit Fund. The Johnson case involved a police officer who slipped and was injured while crossing an intersection from his assigned post in response to a citizen’s request for assistance in a traffic accident.

In Johnson, our IL Supreme Court found the reporting officer’s actions were an “act of duty” within the meaning of the Illinois Pension Code because the officer was discharging his duties by responding to the citizen’s call. The increased work risk faced by the Officer in Johnson was slipping while crossing an ordinary intersection. I don’t consider the ruling in Johnson to be analogous to this claim at all—in this claim, former Officer Martin was merely sitting in a car when randomly struck. While that doesn’t happen a lot, it does happen to all of us in a random fashion.

That said, this Illinois Appellate Court panel ruled a police officer does not perform an act of duty by merely engaging in action while on duty. “The crux is the capacity in which the police officer is acting,” not the precise manner in which the officer was injured, the decision outlines. Former Officer Martin was injured returning from the St. Clair County courthouse, where he had performed duties not delegated to any members of the general public. He was also a passenger in a squad car, and the Appellate Court majority reasoned it meant he was in a “position” to have to perform his duties to protect life and property, if need be.

The Court opined a police officer “faces special risks when driving in a squad car, as they must have their attention and energies directed towards being prepared to confront any eventuality.” I note Claimant Martin wasn’t driving the car—he was sitting, basically doing nothing.

The Appellate Court concluded former Officer Martin was engaged in the performance of an act of duty at the time of his injury. They affirmed the Circuit Court below.

Trust me, rulings like this highlight how dysfunctional IL local government can be. The cost of this award is already well into six figures and may eventually be well into the millions for Shiloh taxpayers, depending on how long Claimant lives. When I learn former police officers and firefighters then go on to other jobs/work and prosper as bartenders, private detectives and truck drivers, I can only shake my head about it.

We appreciate your thoughts and comments. Please post them on our award-winning blog. To read the decision, click here.

Synopsis: When Is an Accident “Accidental?” Part 2.

Editor’s comment: Remember there is a dual WC requirement of an accidental injury ‘arising out of’ and ‘in the course of’ employment. The concept is called AOO/ICO for veterans. This is one of the most difficult areas of law for a non-lawyer to understand. The concept of what comprises an ‘accident’ in U.S. workers’ compensation law is difficult to define and harder to predict. 

“In the course of” Employment or ICO

Of these two legal terms, the second, “in the course of” is much easier for the layperson to understand. This concept is best defined by the idea the employee has to be working or about to work for the injuries to be considered covered under workers’ compensation. This requirement is usually satisfied if the employee is ‘on the clock’ or at or around their work station.

You can usually assume a typical employee going to and coming from work is arguably not covered by workers’ compensation. There is some magical point at which they get close enough to work to say that an injury is a work-related accident.

One controversy regarding this concept arises in claims occurring in parking lots, shopping malls or common areas of public buildings where the employee works. The question is when does the employee arrive/depart from work? The answer changes on a case by case basis. A good general rule focuses on employer ownership or control of the property and the exclusive nature of a designated employee parking area—if the employer owns the parking lot or building and only employees are permitted to park in a particular area, the employee may be considered to be ‘working’ when he or she is present there and the risk of injury is unique to the employee, imparting liability on the employer.

Another major concept when dealing with “in the course of” is the odd and controversial “traveling employee” concept. When an employee is sent on a mission for the employer which takes the employee away from their typical work site, they obtain what may be characterized as “expanded” workers’ compensation coverage for injuries. An employee away from home and on the road might arguably be covered for any accident that can be said to result from any activity they could reasonably be expected to do while on the road. 

On the defense side, it is argued not everything a worker does during travel for work can be said to occur “in the course of” employment while away from home and their typical work site— what if a worker has an allergic reaction eating a hot dog and coincidentally happens to be traveling? Many states have statutory language which require an injury occurring while on a routine trip has to occur while the worker is actually doing work for the employer. While Illinois doesn’t have any statutory imprimatur either way, we feel common sense requires some nexus to work duties for the employer to have to pay benefits if a worker becomes injured or disabled while traveling.

As defense lawyers and observers, we were challenged by the IL WC Appellate Court’s 2012 ruling in Venture-Newberg Perini Stone and Webster v. Illinois Workers' Compensation Commission. In our reasoned view, this legal precedent turned thousands of IL workers into traveling employees and made their employers responsible for all “reasonable activities” performed while at or going to a jobsite, even when not working. Most defense observers were very happy when, about one year later, our IL Supreme Court tossed this legal concept, ruling it was flawed regardless of whether you looked at the facts or the legal issues presented by the penultimate reviewing court. We do not feel the “traveling employee” concept should ever apply to an employee whose job is to constantly travel such as a truck driver or traveling salesperson. Such workers face ordinary risks while doing their jobs and away from work and shouldn’t have extraordinary coverage for all activities, at work and at rest. If the reviewing courts and Commission extend benefits to employees whose job it is to travel, all such employees would then have global 24/7 coverage for all their actions, personal and professional, while on the road doing routine work or play. We assure everyone this expanded and indefensible coverage would dramatically increase workers’ comp costs in this state and might render the IWCC and lawyers on both sides unnecessary.

“Arising out of” Employment or AOO

Returning to the concept of “arising out of” employment, this idea has taken a broad turn in recent years. In analyzing this legal concept workers’ compensation requires more than a showing the employee was working when injured or disabled. The idea is the injury has to arise from some job-specific risk versus a risk felt to be ‘common to the public.’ This requirement focuses on the basic concept of what workers’ compensation coverage/insurance is supposed to be—monetary protection for the worker when they encounter risks specific to work. A clear illustration of this concept is a typical worker who is working and becomes injured when an airplane unexpectedly and randomly crashes into the worksite. Assuming this employee doesn’t work around airport runways or airplanes, such injuries are risks we all face in modern society whether we are at work, at home or at play and there is nothing an employer can do to protect employees from such risks. Accordingly, such injuries should not be ruled compensable, regardless of how serious the injury. This has also been applied to cause denial of WC benefits where an employee suffered an injury putting on a coat, turning in a chair to answer the phone and tripping over a typical curb.

While the “job specific” risk may seem easy to understand and implement as a general rule, recent Appellate Court rulings have drawn what appear to be opposite conclusions based on strikingly similar facts. 

For example, in Mytnik v. IWCC, a factory worker who injured his back as he bent over to pick up a fallen bolt was deemed to have suffered a compensable injury, since picking up fallen bolts was part of the required job duties. This was deemed compensable despite the fact that bending over to pick up a tiny item is a very innocuous day-to-day activity. 

Yet, weeks earlier, a decision by the same Appellate Court denied the claim of an office worker who was injured while reaching for a fallen pen on the floor in Noonan v. IWCC. The Court’s ruling explained the office worker was not required to pick up pens as part of his regular job duties and therefore, the mechanism of injury was not compensable as the job itself did not impart an increased risk of such an injury. 

From the above analyses, one has to move to the more modern problems of accident definition. When workers’ compensation in Illinois was initially formed, the Commission and courts required the employee establish a definite time, place and cause of injury. The classic definition also required something unexpected and untoward to happen.

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

Synopsis: Rules on Loaned and Borrowed Employees for IL Staffing/PEO’s Companies. Comment by Charley Neal of Barton Staffing Solutions.

Editor’s comment: I appreciate Mr. Neal sending us these important risk/claims/legal thoughts and I am republishing them with his permission. If you want to contact him, send a reply and we will relay it to him. 

From time to time, an employee of one company may perform job duties for another company either under a contractual relationship or in a relationship implied by the nature of the employment. In such claims, both employers are simultaneously liable for WC benefits with one of the employers having primary liability for any loss. In these situations, the employer benefiting from the services of the employee at the time of the accident will be found to be the primarily responsible party. Secondary liability will be on the company providing the worker—unless there is an agreement to the contrary.

However, if the borrowing employer does not pay or fails to timely pay benefits, the loaning or original employer must pay. The IL WC Act is clear--liability is joint and several in such situations. Again, remember the unstated rule is to insure the injured employee has WC insurance coverage resulting in benefits for the loss. It is incumbent on risk managers and defense attorneys to make sure which entity has primary liability in defending or managing such claims. You may want to address choice of counsel as well as liability for payment of counsel in any agreement.

Staffing Agencies are the employer and therefore have to supply the Workers Comp insurance. It may go on the Client’s OSHA 300 log due to who has primary supervision, but that would be the only thing that a client would be responsible for as far as a W/C injury.

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Synopsis: Three Minutes and Your Life…Thoughts From Henry Jay Przybylo, M.D. author of the new book and great Christmas present, Counting Backwards: A Doctor’s Notes on Anesthesia.

Editor’s comment: In Counting Backwards, Dr. Henry Jay Przybylo―a pediatric anesthesiologist with more than thirty years of experience―delivers an unforgettable account of the procedure’s daily dramas and fundamental mysteries. Dr. Jay has administered anesthesia more than 30,000 times in his career―erasing consciousness, denying memory, and immobilizing the body, and then reversing all of these effects―on newborn babies, screaming toddlers, sullen teenagers, even a gorilla. It is a fascinating read and perspective where lawyers and claims professions can get a different view on an important part of any case where anesthesia is provided.

Doctor’s comment: Give me three minutes, then you’ll give me your life. These are words that are cause for concern for any lawyer. A vacant promise, a scam, fraud? No. In the time it takes to post the latest announcement on LinkedIn or to listen to Van Morrison’s “Brown Eyed Girl,” we’ll talk, I’ll examine and then we’ll pass through automatic double doors leading to my sequestered place where I’ll induce a chemical coma, steal time, prevent memory, immobilize the body and then reverse these at will.

As an anesthesiologist, I alter heart rate, blood pressure and breathing, but I don’t cure. My care allows physicians to cut, probe and stick. Perhaps not curing isn’t entirely accurate. Without my care, procedures that are painful or require absolute stillness—clipping a brain aneurysm where any patient motion might alter the outcome—are not possible without my intervention In addition, I treat pain beyond the procedure room, both acute and chronic.

Many fear anesthesia and for good reason; it’s an act of faith. When asked how the anesthesia gas I administer day in, day out works, I have no solid scientific answer. It simply does. Forty million times every year in the U.S. alone. So as I ask a patient to have confidence in my abilities, I need to trust in my gas. I know what percent of gas is needed to keep a person safely anesthetized, and I measure continuously every imaginable vital sign and parameter, the percent of inhaled gas included. My intent is singular: that every patient emerges from my care in better condition than on entering.

The motto of anesthesiologists is vigilance. I noticed something unobserved by others in a photo from a recent published article of a wrist surgery on a woman who requested no anesthesia. The center of attention—and all the eyes in the room—were on the surgical site, her wrist. My question: Who was watching the woman? If, God forbid, something untoward happened, who in that room was charged with making life right? In the event of an allergic reaction to an injected medication, who possessed the expertise to successfully treat the woman? More than removing a patient’s senses, my charge as the anesthesiologist is to watch the patient as a whole and to correct confounding issues. High blood pressure is treated, blood sugars are followed and normalized, and so on and so on. For those requesting no anesthesia, the statistics on safety prove anesthesia is very safe and lead me to question, what’s to be gained?

Not everyone requires the mysterious, all-in-one anesthetic gas. Deconstructing anesthesia leaves its components: anxiety relief, amnesia, pain therapy (analgesia), remaining still (akinesia) and stable vital signs throughout (in my term, a-reflexia). All can be treated separately with a variety of medications and techniques. If inhaling a gas is undesired or medically unwise, pain relief and stillness can be achieved by blocking the nerves to the region of the procedure using local anesthetics, while supplemental medications treat anxiety and amnesia. Allow me the opportunity to build an anesthetic that best fits needs and leaves you in better health after my care.

Anesthesia is not a limelight specialty. I stand in the wings, and yet, I alter nearly every body function. Anesthesiology intervenes in life with a breadth, depth, and intensity that no other medical specialty possesses. Forgetting my name within minutes of discharge, I take no offense. Practicing in one of the RU—relative unknown—medical specialties such as anesthesiology, radiology and pathology means little to no face time with patients. That should not be taken to mean as the RU physicians’ work is secretive—just secluded. Most of my waking day is spent cloistered behind automatic double doors. But you can still speak with me; inquire about all options. Choices exist.

Please visit www.henryjaymd.com for more information on Dr. Jay and buying a copy of his amazing new book: Counting Backwards.