September 18, 2019

9-17-2019; Will Dynamex Spread to IL and Other States?; An Interesting “Arising Out Of” WC Ruling From France; Oct. 8 IL State Chamber WC Confab and more

September 18, 2019/ Eugene Keefe

Synopsis: Will “Dynamex” Come to Illinois and Other States Soon? I consider this required reading for HR, Risk and WC claims handlers.

Editor’s comment: I truly feel my readers need to know of this “Left Coast” mess because we have no way to stop the concept in Illinois if the super-majorities in our State Senate and House want to bring it here. Our wildly liberal Governor is almost certain to sign off on it. I doubt our surrounding States will have any interest in it but you never know.

Please also note the Dynamex concept has been codified in legislation that has passed both California legislative houses and is simply awaiting the Governor’s signature (or inaction which will make it law). If/when that happens, it is certain to apply to companies from any State when they operate in and possibly around California. The legislation has tried to address federal issues that may block implementation.

For workers’ comp purposes, what might now be “independent contractors” in Illinois would magically turn into employees if/when they suffer work-related injuries or exposures leading to occ diseases. While this might grow workers’ comp claims and exposure, it would also make any State that adopts this new concept wildly less competitive than States that do not adhere to the Dynamex concept. Please note lots of other employee benefits, like unemployment comp, group medical care, discrimination/harassment protections and the like may be extended to the newly designated “employees.”

Last year, the California Supreme Court issued a landmark decision in the matter of Dynamex Operations West, Inc. v. Superior Court of Los Angeles. In a voluminous, 82-page decision, the California Supreme Court reinterpreted and ultimately rejected an earlier test for determining whether workers should be classified as either employees or independent contractors for the purposes of the wage orders adopted by California’s Industrial Welfare Commission (“IWC”) in favor of a worker-friendly standard that may upend the existing independent contractor or what is called the “gig” labor market.

In particular, the Court embraced a standard presuming all workers are to be treated as employees instead of as independent contractors, and placed the burden on any entity classifying an individual as an independent contractor of establishing such classification is proper under their newly adopted “ABC test.”

Dynamex is a nationwide same-day courier and delivery service that offers on-demand, same-day pickup and delivery services to businesses and the public. Prior to 2004, Dynamex classified its California drivers as employees. Starting in 2004, however, Dynamex converted all of its drivers to independent contractors. If a worker didn’t want that status, they could look for other work.

In January 2005, Plaintiff Charles Lee entered into a written independent contractor agreement with Dynamex to provide delivery services for the company. Just three months after leaving his work at Dynamex, Lee filed this lawsuit on his own behalf and on behalf of similarly situated Dynamex drivers, alleging Dynamex’s alleged misclassification of its drivers as independent contractors led to Dynamex’s violation of the provisions of IWC wage order No. 9, the applicable state wage order governing the transportation industry, as well as various sections of the Labor Code, and, as a result, that Dynamex had engaged in unfair and unlawful business practices under Business and Professions Code section 17200.

In a ruling named Borello, the CA Supreme Court held that the “right to control” the means and manner in which work is performed by a worker is the most important of several factors to be considered when evaluating a classification analysis, including secondary factors such as ownership of equipment, opportunity for profit and loss, and the belief of the parties. This test was more flexible because it balances the different factors to arrive at a classification based on individual circumstances of each case. Prior to Dynamex, many cases (including the Court’s own recent decisions) referred to the multi-factor Borello test as the traditional “common law” classification analysis.

The CA Supreme Court’s Decision

As a threshold matter, the Court framed its decision by broadly characterizing the misclassification of independent contractors as “harmful and unfair” to workers, honest competitors, and the public as a whole. The Court provided a long, detailed, and nuanced analysis of the relevant case lineage. In doing so, the Court read each of these cases and their respective holdings in a very worker-friendly fashion.

In particular, the Court interpreted the Borello test as going beyond the traditional common law classification analysis, and that it instead “calls for the application of a statutory purpose standard … to determine which classification … best effectuates the underlying legislative intent and objective of the statutory scheme at issue.” That is, the Court clarified it reads Borello to stand for the proposition the remedial purpose of any employment legislation (such as the workers’ compensation laws at issue in Borello) must always be taken into account in the classification analysis.

The Dynamex “ABC Test”

Under the ABC test, a worker will be deemed to have been “suffered or permitted to work,” and thus, an employee for wage order purposes, unless the putative employer proves:

the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

the worker performs work outside the usual course of the hiring entity’s business; and

the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

Note that each of these requirements need to be met in order for the presumption a worker is an employee to be rebutted, and for a court to recognize that a worker has been properly classified as an independent contractor.

What This Means For U.S. Businesses If It Expands to Other States

The question of whether an individual worker should be classified as an employee or independent contractor has considerable significance for workers, businesses, and the public generally. If a worker is classified as an employee, the employer bears the responsibility of paying Social Security and payroll taxes, unemployment insurance taxes and state employment taxes, providing worker’s compensation insurance, and of course, complying with the endless labyrinth of state and federal statutes governing the wages, hours, and working conditions of employees.

Indeed, many businesses, particularly those operating in the “gig economy,” are fundamentally premised on the use of independent contractors. In light of this case, any businesses operating in California that treat workers as independent contractors should confer with their legal counsel to review the relationship under the “ABC test” and determine whether any or all such workers should be reclassified.

For example, prong B of the ABC test is particularly troublesome for any businesses that use independent contractors to deliver or provide their core product or service. In applying the ABC test to Dynamex, the Court noted that a class of delivery drivers could be certified under prong B because the question of whether the delivery drivers were performing outside the usual course of Dynamex’s business could clearly be resolved on a class-wide basis. Indeed, delivery services—which are provided by the delivery drivers—are the very core of Dynamex’s business.

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

Synopsis: An Interesting “Arising Out Of” WC Ruling From France.

Editor’s comment: It is all over the Web and lots of my readers have sent it for my thoughts, so you may as well know them.

News reports indicate while on a business trip, a technician for a French railway company died of a cardiac arrest after intimate relations with a woman he met. The word “after” in the news reports appears to indicate he wasn’t active when his heart failed—I guess we will never know.

Appeal court judges in Paris ruled recently because Xavier X -- his name in court records -- was away from his normal work and home and on assignment for his employer, the death counts as a workplace “accident” and his company is liable and his family is entitled to workers’ compensation. You may note his widow has to make the claim on her behalf and also for any children/dependents, despite the sad fact hubby wasn’t being true to her.

According to French court records, the company's WC defense lawyers argued the employee -- who was married but not to the lady he was with -- was not performing professional duties or following any business practice at the time of his death, saying he was instead committing an "[intimate act] that he had had with a [somewhat] complete stranger" in her hotel room.

However, the judges interpreted the “traveling employee” concept and said French workers on business trips are "entitled to their employer's protection for the duration of their mission ... whether or not the accident takes place as part of a professional activity or as an act of normal life."

The company was challenging a 2016 ruling by the state health insurance provider that categorized the death as an industrial accident. The Times of London reports in its ruling, the provider said "an … encounter is an act of normal life like taking a shower or eating a meal."

As a result of the latest ruling, the family -- partners and children -- will get a monthly benefit of up to 80% of his salary until what would have been his retirement age. After that, they will get a share of his pension.

In my humble view, actions of daily life, like combing your hair, going to the potty and intimacies such as this should not be “work-related” whether you are at your normal work or away from work. I handled a claim where a worker died on the commode—the Arbitrator would not provide workers’ comp benefits simply because this guy was on the road. I agreed with that Arbitrator then and I would agree with him/her now.

How do you feel about it? Feel free to send a respectful reply with your thoughts.

Illinois Chamber of Commerce Conference 10/8/19

Register Today!

Agenda will include:

7:30 a.m.–8:30 a.m. Registration and Breakfast Networking – Expo is open

8:30 a.m.–8:55 a.m. Opening Remarks

Jay Shattuck, Executive Director Employment Law Council, Illinois Chamber of Commerce

Michael Brennan, Chairman, Illinois Workers’ Compensation Commission

8:55 a.m.–9:45 a.m. General Session – Medical and Recreational Marijuana in Illinois and the effect on WC Claims Handling

Shuaib Ahmed, ASA Law Group Shuaib Ahmed will dissect the Medical Cannabis Act, discuss both medical and recreational marijuana in Illinois and the challenges facing Employers navigating Workers’ Compensation claims.

9:45 a.m.–10:10 a.m. Morning Break & Visit Exhibitors

10:10 a.m. – 11:05 a.m. First Series of Workshops

Workshop #1: Shawn Biery, John Campbell and Bradley Smith, Keefe Campbell Biery & Associates

Impact and Implications of SB 1596 (Civil Action may be brought against Employer) Join John Campbell and Shawn R. Biery from Keefe, Campbell, Biery & Associates for a break out session discussing the impact and implications of SB 1596, as well as brainstorming strategies on how employers can best prepare to protect themselves. These veteran workers compensation defense attorneys will also cover relevant recent case law updates to provide guidance which will be helpful for anyone who deals directly or peripherally with workers’ compensation claims. Questions will be entertained throughout to drive the discussion toward specific avenues of interest from the audience.

Workshop #2: Michael Teti, Digistream Investigations in the Age of Geosocial Data

The current growth of geosocial data is changing the face of risk management and investigations. Learn what geosocial data is, and exactly how this type of information is used to uncover fraud and investigate insurance claims of all kinds. Understand how to gain eye-opening insight into accidents, site-security, workplace harassment, and high exposure incidents by locating social media photographs, videos and posts at specific locations and times anywhere in the world. The session examines successful real life cases, fascinating trends in social media, privacy and legal issues, as well as preserving, authenticating and presenting cyber evidence in court. Attendees will work with an understanding of best practices and ethical requirements for a successful geosocial investigation and how to add this new information into their already wide range of skills.

Workshop #3: Surbhi Saraswat Goyal and Charles Maring, Brady Connolly Masuda, P.C. Defending Work Injuries . . . Before They Happen!

In this workshop learn practical, low-cost strategies that employers can implement in-house to prepare for a work injury before it happens! Attorneys Surbhi Saraswat Goyal and Charles M. Maring, II reveal battle-tested strategies and helpful trial evidence that is beneficial in the defense of workers’ compensation claims. These strategies can help Employers, Human Resource and Safety Personnel meditate costs and protect the company’s interests. Know your rights as an employer and turn standard practices into assets!

11:10 a.m. – 12:05 p.m. Second Series of Workshops

Workshop #1: Brian Clay, MD, Illinois Bone & Joint Institute Standardizing a Return to Work Protocol for Back Injuries in the Workplace

Attendees will understand the markers of when a patient can return to work duty with low back pain, what to avoid, standard practices, and improvements in the process. By following a researched set protocol, return to work for low back injuries will be more efficient and economical. Attendees will also understand the insurance implications, cost saving, and improved return to work times for these patients by following a researched protocol.

Workshop #2: Steve Murdock and Jynnifer Cotharn, Inman & Fitzgibbons, Ltd. Best Tools for Defense; Strategic Use of IMEs, Record Reviews, Utilization Reviews, Impairment Ratings

Effective claims management often requires different strategies at different points in the litigation process. Understanding the tools that are available to help protect the insured’s interests is a critical part of claim handling. Should I get an IME? What are the benefits of obtaining a Utilization Review? How much weight is given to an impairment rating? In this seminar, we will address these questions along with four defense tools, their benefits and risks, and how each tool impacts cost and advancement of claims to closure.

Workshop #3: Jeffrey Risch, Smith Amundsen, LLC OSHA Obligations and Workers Compensation in Illinois

In this presentation, led by Labor & Employment Attorney Jeffrey Risch, attendees will receive the latest in employer OSHA obligations related to work related injuries and claims. From reporting and recording requirements, to drug testing rights and disciplinary options when an employee is involved with a work related injury due to an unsafe act or rule violation, attendees will hear the very latest on what employers must do, can do, shouldn’t do and can’t do when it comes to OSHA and work related injuries.

12:05 p.m. – 12:30 p.m. Visit Exhibitors & Networking Break

12:30 p.m.–1:30 p.m. Luncheon with Keynote Speaker

The Intersection of Rx Opioids & Medical Marijuana Mark Pew, Senior Vice President, Product Development & Marketing, Preferred Medical Medical cannabis as a substitute for prescription opioids continues to grow in the public (and private) discourse on pain management. Is that a surprise? For citizens of Illinois it should not be since last year’s introduction of the “Opioid Alternative Pilot Program”. But Illinois is not alone in the connection as per the January 24, 2019 blog post “Marijuana & Opioids” that listed three other states with an explicit connection (Colorado will officially make it five total in August 2019) and another six states with an implicit connection. While this connection is mostly political and anecdotal (based on personal stories and experiences) there is a growing amount of science (clinical studies) to substantiate the premise. This session will discuss the evolution in thought, present the anecdote and evidence behind the connection, highlight the implications for workplaces, and talk about how a drug-for-drug substitution might not be the full answer.

1:30 p.m.–2:30 p.m. Roundtable Discussion with Q&A

Moderator: Jay Shattuck, Exec Dir Employment Law Council, Illinois Chamber of Commerce • Panelist: Amy Bilton, Nyhan Bambrick Kinzie & Lowry

Panelist: Dr. David Fletcher, Safeworks Illinois

Panelist: Mike Brennan – Chairman, Illinois Workers Comp Commission

Implementation of SB904 and discussion of billing and payment problems in the WC system

2:30 p.m.– 3:00 p.m. Drawings for Prizes & Closing Remarks

3:00 pm Adjourn

Contact Information

Questions on this event or other IL Chamber Business Services events?

Contact the Business Services Coordinator,

Kirsten Constant

P: 217-522-5512 Ext. 227

E: kconstant@ilchamber.org

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September 11, 2019

9-10-2019; IL Risk/HR Managers Have to Catch Up to New Salary History “Gotcha” Law; Matt Wrigley, JD on New Michigan Reorganization That Includes WC and more

September 11, 2019/ Eugene Keefe

Synopsis: IL Risk/HR Managers Have to Catch Up to New Salary History “Gotcha” Law.

Editor’s comment: The reason I call this a “Gotcha” law is the defenses are basically stripped away to expand reserves/exposures. The mistakes that may cost your company thousands in awards and opposing counsel’s attorneys fees which could become common. The mistakes could be innocent. You have less than three weeks to insure personnel folks in the hiring part of your company know what they have to do and NOT do.

Please note Brad Smith, J.D. is our top employment law defense attorney/partner and can provide guidance and assistance in defending these challenging claims. He can be reached 24/7 at bsmith@keefe-law.com.

In point of fact, you have just nineteen days until September 29, 2019 to revamp your IL hiring practices or face sizable liability or exposure from “Gotcha” rulings.

Governor J.B. Pritzker signed into law a bill adding a new spin to Illinois’ Equal Pay Act. The new legislation is designed to supposedly end the persistent national gender pay gap, by prohibiting Illinois employers from inquiring into job applicants’ pay history and from imposing rules that prevent workers from sharing salary information under some situations. Lawmakers wrote the law to become fully effective at the end of this month. Don’t be the first in the neighborhood to make the news with an innocent violation!

The law will take many hiring personnel at all Illinois employers by surprise precisely because it upends a longstanding assumption it is permissible for a hiring manager to screen candidates and set terms of job offers based on what they earned on prior positions. As a result, employers with hiring plans are likely to experience a flood of lawsuits unless they act quickly to retrain hiring personnel and adjust recruitment processes quickly.

In Short, Don’t Ask About Pay History or Let Pay History Be A Factor in Hiring or Employee Compensation Decisions

It will now be unlawful for an employer or temporary employment agency to:

Screen job applicants based on current or prior wages or salary histories, including benefits or other compensation, by requiring that a pay history of an applicant satisfy minimum or maximum criteria;
Request or require a wage or salary history as a condition of being considered for employment, as a condition of being interviewed, as a condition of continuing to be considered for an offer of employment, as a condition of an offer of employment or an offer of compensation;
Request or require that an applicant disclose wage or salary history as a condition of employment; or
Consider or rely on an applicant’s voluntary disclosure of current or prior wage or salary history, including benefits or other compensation, in determining whether to offer a job applicant employment, in making an offer of compensation, or in determining future wages, salary, benefits or other compensation.

With certain exceptions, it will be unlawful for an employer to seek wage or salary history, including benefits or other compensation, of a job applicant from any current or former employer.

It remains lawful, however, to discuss with applicants their expectations with respect to current or future compensation.

Don’t Require Employees to Keep Their Pay Confidential

It will also be unlawful to require an employee to sign a contract or waiver that would prohibit the employee from disclosing or discussing information about the employee’s wages, salary, benefits or other compensation.

“Gotcha”—Here are the Penalties

The law specifically makes it unlawful to discharge or otherwise discriminate against any individual who “fails to comply with any wage or salary history inquiry.”

It allows workers up to 5 years to sue employers over violations and allows them to recover compensatory damages, special damages up to $10,000.00, punitive damages and reimbursement of their reasonable attorney fees and costs.

The law empowers courts to award additional “civil penalties” of up to $5,000.00 for each violation for each employee affected.

Given these stakes, it is crucial employers act to ensure compliance as quickly as possible. Aside from making certain recommended hiring process changes, human resources folks have to train your managers as quickly as possible to break the age-old habit of asking applicants “How much do you currently make?” and factoring the response into their staffing decisions.

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

Synopsis: State of Michigan reorganizes certain State agencies which deal with Labor, Talent, Economic Development, via Executive Order No. 2019-13. Research and Analysis by Matt Wrigley, J.D., KCB&A’s Michigan WC Legal Ace.

Editor’s Comment: Effective August 11, 2019, by Executive Order Michigan Governor Whitmer abolished the Department of Talent and Economic Development (TED) and replaced the same with a new Department of Labor and Economic Opportunity (LEO). The Executive Order was signed by the Governor on June 6, 2019.

In an effort to streamline and coordinate efforts to increase the number of Michigan residents with post-secondary credentials, the LEO will consist of several organizations. These include the

Michigan Economic Development Corporation,
Michigan Strategic Fund,
Michigan Economic Development Corporation (MEDC) and the
Michigan Strategic Fund (with a reorganized Board),
Unemployment Insurance Agency ,
Workforce Development Agency,
Workers’ Compensation Agency and Board of Magistrates,
Michigan Occupational Safety and Health Administration (MIOSHA),
Wage and Hour Division,
Employment Relations Commission,
Michigan State Housing Development Authority (MSHDA),
Michigan Rehabilitation Services,
Michigan Office of New Americans,
Asian Pacific American Affairs Commission,
Commission on Middle Eastern American Affairs and Hispanic/Latino Commission of Michigan,
Bureau of Services for Blind Persons as well as various entities and responsibilities for adult education, STEM advisory, and youth employment.

This Executive Order also separates the Michigan Compensation Appellate Commission, which currently handles unemployment and workers’ comp appeals, into the Workers’ Disability Compensation Appeals Commission and the Unemployment Insurance Appeals Commission.

For my readers who have followed me over the years, you may note Illinois has 88 state agencies with 88 agency heads and 88 HR managers and 88 everything’s. You can see our surrounding states are trying to streamline to cut staff and save money to avoid the skyrocketing debt and taxes Illinoisans face.

We 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.

September 04, 2019

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

September 04, 2019/ Eugene Keefe

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.

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