3-6-2022; IL WC Case Law Update from John P. Campbell and Shawn R. Biery and more

Synopsis: Case Law Update on IL WC Court rulings and interpretation. Thoughts and comments from John P. Campbell and Shawn R. Biery of Keefe, Campbell, Biery & Assoc.

Editor’s comment: By way of review, in McAllister v. IWCC, the IL Appellate Court, WC Division was divided regarding the extent to which injuries caused by everyday activities were compensable under the IL WC Act. The majority favored the analysis contained in Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52 (1989). This was an injury when Claimant stepped of a street curb going to his car and popped an ankle.

Two concurring Appellate Court justices, however, preferred the analysis contained in Adcock v. Illinois Workers’ Compensation Comm’n, in which Claimant asserted he was injured simply pivoting in a swivel chair. In Adcock, the Court ruled Claimant had to establish his or her job duties required the claimant to engage in the everyday activity that caused the injury to a greater degree than the general public, even in situations where the activity was directly related to the claimant’s job duties.

The IL Supreme Court rejected and reversed the Adcock test. They agreed with the Appellate Court majority and held Caterpillar Tractor “prescribes the proper test for analyzing whether an injury ‘arises out of’ a claimant’s employment, when a claimant is injured performing job duties involving common bodily movements or routine everyday activities.” What is odd about the Court’s recognition of Caterpillar Tractor is WC benefits were denied in that claim! 

Ruling Rationale:

The Supreme Court explained, consistent with Caterpillar Tractor, common bodily movements and everyday activities at or near work are compensable and employment-related if the activity that caused the injury “had its origin in some risks connected with, or incidental to, employment so as to create a causal connection between the employment and the accidental injury.” The Court then overruled Adcock and its progeny to the extent that they require a claimant to additionally prove he or she was exposed to a risk of injury to a greater extent than the general public. The Court further found McAllister’s injury was the result of a risk that was distinctly associated with his employment and, as such, was compensable, and held the Commission’s finding claimant was injured by a neutral risk that was not related to his employment was against the manifest weight of the evidence.

So, how far does McAllister go???

Synopsis: In some recent rulings, our IL WC Commission awards benefits based on “traveling employee” classification. While this aspect of the ruling is unfavorable, we are more troubled by the Commission’s further adoption of the McAllister ideology and offering an “alternative” basis for compensability.

Editor’s comment: Take a look at Iniquez v. Town of Cicero, 21 IWCC 0300 (7/18/21).

The Iniquez claim involved an inspector who was injured when he slipped on an unremarkable set of stairs. Since his job involved building inspections, the nature of work did involve travel. However, this incident occurred at his office, where he returned to get more assignments. Therefore, defense argued he was not traveling when injured. Since there was no design flaw or debris on the stairs, it was argued by defense this incident did not arise out of his employment. Stairs are stairs.

Facts and Ruling: Please note the term “traveling employee” is a creation of the challenging members of the IL WC Commission and reviewing courts—the two words do not appear in the IL WC Act so the courts can use and, in Gene’s view, “abuse” the term as they see fit. Every worker “travels” as an ordinary part of every-day work. As we have advised our hearing officers, attorneys on both sides, claims handlers and readers, if all a worker has to do to be entitled to IL WC benefits is to “travel,” we can drop the pretense of defending claims in this State and just hand out claims forms to be completed and signed by all workers to then calculate and pay benefits. In that model, which would parallel group health claims, we won’t need attorneys for either side or Arbitrators, Commissioners and reviewing courts because everything that happens will be universally compensable. I don’t know why Claimant lawyers feel that is a solid model but I am happy to discuss it with any of them—please note the corporate risk managers and adjusters can communicate with and resolve disputes with Claimants long before they consider hiring a lawyer. I don’t feel it has happened yet but the more liberal the Commission and Courts get, the more likely this “global coverage” scenario will play out—in my view, you can’t have a litigation system with no defenses.

In this claim, the Commission reasoned that the nature of this employee’s work involved “travel,” and during the work-day, the fact that he stopped in the office for assignments did not change the nature of his classification as a “traveling employee.” From the defense perspective, we are troubled by this logic, as the original intent of the so-called “traveling employee” concept is that workers who are at greater risk due to extraordinary work travel will be compensated. Here, the worker was at his office. Therefore, there was no greater risk in our view.

More troubling is the fact that the Commission went on to comment on the application of McAllister here, concluding that compensability would be found regardless of the “traveling employee” classification. The Commission explained that the employee was performing acts reasonably expected in furtherance of his job duties and was therefore exposed to a risk associated with his employment. The Commission found that descending stairs on his way to an off-site inspection was a risk distinctly associated with his employment and reasonably foreseeable. The Commission concluded therefore that compensability is found based on the McAllister theory of compensability.

Again, we disagree with this aspect of the ruling, as we find this to be a further expansion of the McAllister ruling. At least in McAllister, the chef was kneeling to find products for work and injured his knee due to that mechanism. Here, the employee was simply walking down ordinary stairs… no flaw, debris or other identifiable increased risk was apparent. We don’t agree that walking down a normal and ordinary set of stairs, with no emergency or work materials to affect one’s view or balance, is a risk “distinctly associated” with the job.

So, do we now have Positional Risk in Illinois?? Not so fast…                                                                                                   

Synopsis: Our IL Appellate Court, WC Division outlined a clear path for a parking lot/curb fall down claim to be defended and won.

Editor’s comment: In Vaughn v. IWCC and Memorial Medical Center (2021), the parties stipulated claimant fell in a parking lot on Memorial’s premises and suffered injuries. The arbitrator admitted into evidence various photographic exhibits depicting the condition of the sidewalk, curb and slanted asphalted surface where claimant stepped, stumbled and fell. We understand the photos indicated the curb, sidewalk and asphalt were in ordinary condition and there was no indication of defects or foreign objects/substances that would increase the risk of injury. For risk and claims managers, it is crucial to have such documentation in all your WC claims.

Facts and Ruling: On the morning of the incident, claimant had clocked out for the day. She exited the medical center through an employee door, as previously instructed by her immediate supervisor. Upon exiting, claimant, accompanied by a co-worker, began walking on the sidewalk toward her assigned parking lot. Claimant claimed the sidewalk in that area was not commonly used by members of the general public

Claimant alleged the concrete on the sidewalk where it met the asphalt was uneven, and it was about an inch and-a-half to two inches difference, causing the trip and fall.

She also testified that outside lights, located on nearby buildings and landscaping, illuminated the area where she fell. However, at the time of her fall, one of the lights was not working and others were partially obscured by a parked security van, which resulted in a shadow that made that area darker. Claimant suffered a comminuted fracture along the inferior aspect of the patella or kneecap with surgery.

On cross examination, claimant admitted that she was permitted to park in any of the employee parking lots, but it was suggested that she park in Lot #3. Additionally, claimant admitted she was permitted to use any entry door, but it was suggested that she use the closest door. Claimant acknowledged that two public sidewalks leading to the employee parking lot were available for her to use. Claimant was familiar with the area, sidewalks, buildings and available entry ways because she initially worked as a “traveler” at Memorial from January 2015 through June 2015. Claimant admitted that she was cutting across the walkway at the time of her fall, rather than walking farther down the sidewalk and turning to use the nearby access ramp. Claimant admitted that she had traversed the area many times over a span of several months and had stepped off the same curb before but in different places. Claimant further admitted the area where she fell was clear of rocks, debris, water, snow, ice, holes or other surface-type defects. 

The arbitrator found that claimant had encountered a hazardous or defective condition, an uneven surface while she was walking to an employee parking lot immediately after leaving work. The Commission issued a decision unanimously reversing the arbitrator’s decision. The Commission panel found the arbitrator’s findings of hazard or defect and determination that claimant’s injury arose out of her employment were both erroneous, noting that the arbitrator’s reliance on precedent was misplaced. The Commission observed the height differential between the sidewalk and the asphalt where claimant fell was by design, not a defect. The Commission, stressing its agreement with Memorial’s argument, stated: 

Common sense dictates that sidewalk slabs should be even or at the same height; whereas curbs are, by nature, raised boundaries. Thus, demonstrating height differences between slabs within the same sidewalk evidence defectiveness, where demonstrating height differences between the curb and the area it borders does not. 

The Appellate Court, WC Division confirmed Injuries sustained on an employer’s premises, or at a place where claimant might reasonably have been while performing her duties, and while a claimant is at work, or within a reasonable time before and after work, are generally deemed to have been received in the course of employment, citing Caterpillar Tractor Co. The focus shifted to the “arising out of” requirement. 

The Court further ruled when an employee is injured on the usual route to the employer’s premises and there is a special risk or hazard on the route, the hazard becomes part of the employment. Quoting the decision: “Special hazards or risks encountered as a result of using a usual access route satisfy the ‘arising out of’ requirement of the Act.”

The Appellate Court noted the Commission’s finding claimant “stumbled over a curb” is entirely consistent with the evidence and absence of flaw in the ground. Accordingly, they found the Commission’s finding as to the nature of the accident is not against the manifest weight of the evidence.

Take-away:

Despite the shift in analysis compelled by the McAllister ruling where the act of an employee simply standing up somehow could comprise a compensable accident, this ruling adheres to the plain language of the IL WC Act—for an accidental injury to be compensable, it has to both “arise out of” and occur “in the course of” employ. There are still defenses to some injuries occurring in the workplace!

Are AMA Impairment Ratings being considered properly?

Synopsis: Arbitrator issues higher range award on a leg claim, despite solid recovery and AMA rating. It begs the question, are the arbitrators properly considering AMA ratings?

Editor’s comment: Take a look at Murdoch v. Village of Park Forest, 18 WC 9447, 21 IWCC 0344 (IWCC July 6, 2021)

Facts and Ruling: Petitioner worked as a paramedic and suffered an undisputed ACL tear with surgical repair. Petitioner returned to his employment at full duty, without restriction, and the IME offered an AMA impairment rating of 0%.

Changes to Section 8.1(b) of Act in 2011 compel five (5) factors to be considered when assessing PPD value.

1. Impairment Rating

2. Occupation/Job requirements

3. Age of employee at time of injury

4. Employee future earning capacity

5. Evidence of disability supported by treating medical records

The Arbitrator addressed the 5 factors as required by Statute, and while asserting “proper weight” was given to the AMA rating, we have to question whether this is the case. We have a worker returning to full duty with no limitations and the only rating provided was for 0%!!

The Arbitrator cited Petitioner’s ongoing complaints of pain and swelling and alleged difficulty with kneeling to offer greater weight to the last factor. You may note those factors aren’t outlined in the IL WC Act above. The Commission affirmed and adopted the finding of the Arbitrator.

Take-away: While we view the 30% award here disappointing in light of the AMA impairment rating of 0%, we nevertheless continue to recommend obtaining such rating in higher dollar value claims to contain exposure. If the defense/insurance industry “gives up” on the value of such ratings, we give the Petitioner’s Bar the victory they hope to secure by minimizing this aspect of PPD analysis.

Limits of “Traveling Employee” doctrine…

Synopsis: Devil is in the details of job assignment, duties, requirements, etc., when debating “traveling employee” status. IL WC Commission offers hope to employers looking for limits to this otherwise blanket coverage.

Editor’s comment: See Winston v. North Star, 16 WC 018477, 21 IWCC 0262 (IWCC June 2, 2021)

Facts and Ruling: Petitioner worked as a production supervisor for Respondent and would be advised via text or phone as to the job site to report. On the date of loss, Petitioner parked, and while walking up a normal set of stairs, Petitioner alleged he felt a pop in his right knee, suffering a right quadriceps tendon tear with eventual repair. There is no way to confirm Claimant’s account of the “pop.”

Important points: The general manager for Respondent testified they do not direct or control how an employee gets to a job site. They do not pay travel expenses or parking. Respondent did not have any relationship with the parking facility where the accident occurred.

The manager testified he was meeting Petitioner but did not direct him where to park or pay for travel. Petitioner was not required to bring his personal bag or OSHA book. He testified that Respondent had all the required paperwork in the gang box.

The Arbitrator found that Petitioner failed to establish that he sustained an accidental injury arising out of and in the course of his employment, as the injury occurred due to Petitioner’s choice of parking and choice to carry his OSHA book and tools, and Petitioner was not required to bring his OSHA book to the job site.

Petitioner was not paid for his travel or parking, and Respondent did not control Petitioner’s method of travel to and from the job site. Further, Petitioner’s accident occurred one hour before work started and half a mile from the job site. Accordingly, Petitioner was not recognized as a “traveling employee,” whatever that might mean. On review, the Commission affirmed the ruling of and denial by the Arbitrator.

Does a “side-business” qualify as dual earnings for purposes of calculating AWW?

Synopsis: Even where the primary employer has knowledge of other work, it may not necessarily qualify as dual employment earnings.

Editor’s comment: See Smith v. Carillon at Cambridge Lakes, 19 WC 026973, 21 IWCC 0358 (IWCC July 14, 2021)

Facts and Ruling: Petitioner worked as a fitness trainer and coordinator for Respondent and suffered an undisputed foot fracture and also alleged a repetitive trauma knee and hip claim. The award of compensability does not warrant discussion per se.

However, there was also a question of Petitioner’s average weekly wage. Petitioner worked as a trainer independently as well, contracting herself out to clients/customers. The Arbitrator initially included concurrent employment earnings in Petitioner’s average weekly wage calculations, reasoning these were not business profits but rather, wages as an individual.

The Commission modified the Arbitrator’s decision regarding the average weekly wage calculation. The Commission found that Petitioner was an independent contractor and did not earn wages from an employer at her other “job.” Therefore, concurrent earnings were excluded from the calculation.

Language from the Commission ruling asserts:

Section 10 of the Workers’ Compensation Act states in pertinent part, “when an employee is working concurrently with two or more employers and the respondent employer has knowledge of such employment prior to the injury, his wages from all such employers shall be considered as if earned from the employer liable for compensation.” The Arbitrator expressly acknowledged that Petitioner’s income from Center of Elgin was paid to her as an independent contractor, but believed the Appellate Court case, Paoletti v. Industrial Comm’n, 279 Ill. App. 3d 988 (1996), provided an exception to the provision that concurrent income must be from a concurrent “employer,” and that the income be “wages.” The Commission views this issue differently than the Arbitrator. First, the plain language of Section 10 of the Act allows only wages from two or more employers to be considered in the AWW calculation. The Appellate Court has held that, when calculating the AWW of claimants having income from other sources, Section 10 of the WC Act protects, “persons who earn income from more than one job – as long as both jobs meet the definition of employer/employee under the Act.” In Dolce v. Industrial Comm’n, 286 Ill. App. 3d 117 (1st Dist., 1996), the court ruled that the claimant therein was not considered an employee under the Act because of his independent contractor status with Post. In addition, the Appellate Court in Mansfield v. Ill. Workers’ Comp. Comm’n, 2013 IL App (2d) 120909 WC (2nd Dist., 2013), refused to include a claimant’s earnings from self-employment in that claimant’s AWW calculation. That court stated, “The employer contends claimant’s business income should not be included in the calculation of the average weekly wage because it does not represent ‘wages’ earned while working for an ‘employer.’ We agree.

Take-away: Even where the employer has knowledge of the secondary earnings and can assess the nature of the secondary employment and determine if (1) it was at all interrupted due to the injury and (2) if it even qualifies as dual employment, where claimant may simply be an independent contractor, without actual formal wages from an employer to assert for dual earnings.

2-4-2022; Shawn Biery's New IL WC Rate Sheet is Available for Free--email for a fresh copy; Fall-down Claim Denied by IWCC and Appellate Court--Is It WC Fraud? and much more

Synopsis: Shawn R. Biery’s IL WC Rate Sheet with All-New IL PPD Max Now Available! Get a Free Copy TODAY!!!

Editor’s comment: As the IL minimum wages increase, so do the WC rates. Our IL WC Commission (IWCC) posts new rates and Max PPD rate has increased again--UPDATE RETROACTIVELY(!).

To any of our readers and/or fans, Send a Reply to Marissa mpatel@keefe-law.com to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

There will continue to be IL WC Rate increases because the statewide minimum wage is going to increase steadily for the next several years. Please don’t shoot the messenger, we are not even sure it won’t go higher before the new car smell is off the freshly laminated Rate Chart.

As mentioned before, twice every year, starting in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, your IL WC rates keep climbing.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $937.11 (significantly up from $871.73).

When it was published, this IL PPD Max rate changed retroactively from July 1, 2021 to present. If you reserved a claim based on the prior IL WC PPD rate for the period from July 1 to right now, your reserves are wrong. CHECK YOUR IL MAX PPD RATE CLAIMS!

If you have a claim with a date of loss after July 2021 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies and, if it does, immediately reset reserves to insure accuracy.

To recap the other changes from January 2022:

• The current TTD weekly maximum has risen to $1,734.83.

• An IL worker has to make over $2,602.25 per week or $135,317.00 per year to hit the new IL WC maximum TTD rate.

• The new IL WC minimum death or T&P rate also went up. The IL WC minimum death benefit is 25 years of compensation or $650.56 per week x 52 weeks in a year x 25 years equaling a staggering $845,728.00! Yes, if Claimant makes $100 a week in a part-time job and dies in a work-related accident, the death benefit can be over $845k.

• The new maximum IL WC death benefit is $1,734.83 times 52 weeks times 25 years or a lofty $2,255,279.00 plus burial benefits of $8K.

On top of this massive benefit, Illinois employers/governments have to contribute to a fund to pay COLA increases under the Rate Adjustment Fund that may double that already-high benefit, depending on the CPI.

The best way to make sense of all of this is to get the KCBA free, colorful, updated and easy-to-understand IL WC Rate Sheet.

If you want it, simply email Marissa at mpatel@keefe-law.com and include your mailing address if you would like to be mailed a laminated copy, so Marissa knows where to mail it!   

You can also copy Shawn at sbiery@keefe-law.com with any questions.  Shawn remains your go-to defense source on any issue relating to IL WC rates!

Synopsis: Fall-Down Denial Affirmed by IL Appellate Court. Yes, Folks, IL WC Has Defenses, If You Investigate! Is It WC Fraud?

Editor’s comment: We have risk and claims managers across the State who recognize this is a one-party State and it appears challenging to defend companies and governments. Some folks are telling us to compromise, compromise and settle to avoid expected poor outcomes. In the view of KCB&A, if you do a solid job investigating and documenting a challenging claim, you still can prevail. This significant five- or six-figure claim could not have been defended without the stellar incident investigation of the employer’s team. If you want our materials or training on WC incident investigation, please send a reply. If you need legal guidance on how to best fight any WC claim, send a reply and we will do everything we can to help.

In Murray v. IWCC, Claimant was a dispatcher. He alleged multiple injuries to his body including back, shoulders, hips, neck, right leg, body as a whole when he fell down a flight of stairs while working on May 30, 2019. The main issue was whether claimant's alleged May 30, 2019, accident actually occurred. The employer urged claimant's alleged accident was fabricated by Claimant due at least in part to disciplinary action taken against him earlier the same day.

Claimant worked in a dispatch office located on the third floor of the building and had the option of taking either the stairs or the elevator to his workstation. He claimed he sustained injuries when he fell down the stairs while retrieving a lunch bag he had forgotten in his vehicle. No one else witnessed the alleged incident, and Claimant was the only witness who testified that the accident actually occurred.

Prior to the DOL, multiple and repeated issues had arisen with regard to claimant's job performance, yet he had only been a dispatcher for 18 months. The employer documented the issues in claimant's disciplinary records, which were admitted into evidence. Claimant testified he received "coaching" after several instances where he made improper dispatches and he was suspended following an incident where he "lost track" of an officer.

Claimant identified a disciplinary record, titled "Notice of Intent to Discipline" that he signed on May 30, 2019, indicating his acceptance of a two-day suspension without pay set to occur on "June 5th and 6th of 2019." On cross, claimant clarified that he signed the notice prior to working his scheduled evening shift (from 3 p.m. to 11 p.m.) on the date of loss or May 30, 2019.

The chief deputy for the Employer, testified Claimant signed the notice of suspension during a meeting held prior to his assigned shift on May 30, 2019.

Claimant testified the event occurred during his assigned shift on May 30, 2019. Specifically, the accident occurred when he left the dispatch office on the third floor to retrieve his lunch bag from his vehicle on the ground level. Claimant explained that he initially attempted to take the elevator but decided to take the stairs when the elevator light did not come on after he hit the button. On cross-examination, claimant clarified that he did not wait very long for the elevator because the light did not come on and he claimed he did not hear the elevator moving.

Claimant testified that, while descending on the stairwell, he slipped "due to visibility," twisted his ankle, and fell backwards down the stairs. Claimant identified the incident report he filled out on June 1, 2019, in which he alleged the stairwell had poor lighting and described falling backwards down a flight of stairs after missing a step and twisting his ankle. On cross-exam, Claimant clarified his claim he fell down the last landing of the stairwell and then called his coworker.

Claimant's coworker, testified she was a dispatcher. She was familiar with the stairwell where claimant fell, although she only occasionally used the stairs. She identified some of the photographs of the stairwell and agreed some of the lights were out. However, she testified the stairwell lighting was a "normal" amount of lighting.

Claimant's medical records generally revealed that, at the time of the accident, he was 57 years old, weighed 284 pounds, and had a prior knee surgery.

Although Claimant requested his co-worker call an ambulance for him, and he was transported by such ambulance to the hospital, claimant did not introduce any ambulance records. Likewise, though the ambulance transported claimant to the emergency room, Claimant did not introduce these records. Instead, the employer offered the emergency room records. The emergency department records from May 30, 2019, show claimant complained of right shoulder and back pain after falling down 10 to 12 stairs. The records further note, twice, in full capital letters and bold-face type there was "No obvious trauma noted." The records describe normal range of motion, and no deformity. There is a notation of multiple contusions, without reference to where or whether the medical personnel actually observed them. The facility performed several computerized tomography scans, which showed essentially normal results.

Claimant presented to Dr. Buchman on June 3, 2019, complaining of worsening back pain after falling down "15 stairs" on May 30, 2019. Dr. Buchman noted back tenderness but no "visible bruising or abnormality" and "no edema or deformity." The records from this visit are the first ones chronologically Claimant submitted, and for reasons unknown, the records did not include the second page.

Claimant presented to Nurse Practitioner Sullivan the following day, June 4, 2019, complaining of back pain and left, instead of right, shoulder pain. Claimant reported he was attempting to retrieve his lunch when he fell down 12 to 15 steps after missing the first step. Sullivan's physical examination of claimant's low back revealed tenderness but was otherwise unremarkable. The facility performed X-rays of claimant's left shoulder, which the radiologist interpreted as a "[n]ormal." Sullivan noted a diagnosis remained unclear pending additional testing and imposed temporary work restrictions.

Claimant was next seen by Dr. Matthew Gornet, an orthopedic surgeon, on June 6, 2019. Claimant provided a relatively consistent history of the May 30, 2019, incident and complained primarily of pain in his cervical and lumbar spine. Dr. Gornet also opined that claimant's symptoms were related to the May 30, 2019, events as described by claimant. Dr. Gornet noted such injuries "tend to resolve with time" and directed claimant to undergo physical therapy.

At a follow-up appointment with Dr. Gornet on July 18, 2019, claimant reported no improvement with physical therapy. At Dr. Gornet's recommendation, claimant had Magnetic Resonance Imaging (MRI) scans taken of his cervical and lumbar spine. The MRI of claimant's lumbar spine revealed an annular tear and protrusion at L5-S1 and foraminal annular tears at L4-L5 and L3-L4. The MRI of claimant's cervical spine revealed annular tears at C3-C4, C4-C5, and C6-C7, as well as a disc bulge at C5-C6. With regard to claimant's lumbar spine, Dr. Gornet confirmed his opinion Claimant had a disc injury. Dr. Gornet also recommended an epidural steroid injection at L5-S1 and medial branch blocks, along with facet rhizotomies, at L4-L5 and L5-S1. Dr. Gornet also "asked" claimant to "begin losing weight" due to his "fairly substantial abdomen" which "will need to decrease prior to treatment." Claimant underwent an ESI.

Following an emergency hearing, on October 21, 2019, the Arbitrator issued a written decision on all disputed issues. The arbitrator found Claimant sustained an accidental injury arising out of and in the course of his employment on May 30, 2019, and that claimant's current low back condition was causally related to the work accident. Benefits were awarded.

About a year later, on July 31, 2020, the Commission, with one commissioner dissenting, issued a written decision reversing the arbitrator's decision on the issue of accident and vacating all awards. In doing so, the Commission first made several modifications to the arbitrator's findings of fact. The Commission noted that claimant was seen by Sullivan on June 4, 2019, not May 30, 2019, as indicated in the arbitrator's decision and that claimant first learned of the two-day suspension on May 30, 2019, not May 28, 2019, as found by the arbitrator. The Commission also noted the arbitrator's decision did not reference Dr. Buchman's notation that claimant had no visible bruising or abnormality during an office visit on June 3, 2019.

Delving into the Commission's decision, much of the decision relates to Claimant's credibility. In short, the Commission found the totality of the evidence indicated Claimant and his version of events was simply not credible.

The Commission found, although Claimant was in the stairwell and an ambulance was called in response to an alleged incident on May 30, 2019, claimant "failed to prove that he sustained any accident at all." In support, the Commission noted that claimant's medical records did not support his claimed mechanism of injury—that he fell down 10 to 15 steps on May 30, 2019. The Commission concluded Claimant's failure to introduce the May 30, 2019, ambulance record into evidence led to "the permissible inference" that it contained information detrimental to claimant's claim. The Commission later noted Claimant's failure to include the second page of Dr. Buchman's June 3, 2019, treatment record, which was the first medical record claimant submitted into evidence, led to the same inference.

The Commission found that the May 30, 2019, emergency room treatment record— which was introduced by the employer, not claimant—indicated Claimant suffered no obvious trauma. The Commission acknowledged the same treatment record listed an impression of "multiple contusions" but concluded "[t]he impression of `multiple contusions' seems inconsistent with the finding of `no obvious trauma.'" The Commission noted the treatment record neither named the location of the contusions nor specified whether the impression was based on the provider's observations or claimant's subjective complaints. The Commission further noted Claimant's "only apparent exam findings were `tenderness to palpitation,' for which there was no documented objective basis."

The Commission observed that Dr. Buchman's June 3, 2019, treatment record indicated claimant had "no visible bruising or abnormality." The Commission found "it extremely unlikely that [claimant] could fall backwards down a flight of 10 to 15 steps without having any visible signs of trauma documented in any of the medical records." Moreover, the Commission found, without contemporaneous objective medical evidence of trauma, the MRI ordered by Dr. Gornet of claimant's low back over a month after the accident did not support his claim he fell backwards down 10 to 15 stairs.

The Commission further observed claimant's stipulation he was only seeking compensation for his low back did not make him more credible. Instead, the agreement was "an attempt to deflect attention away from the lack of objective findings to any other body part" after the backwards fall down multiple steps.

The Commission also noted inconsistencies in Claimant's description of the May 30, 2019, accident. Specifically, the Commission observed Claimant's initial description of the accident at the emergency room "could indicate" he slid down the stairs feet first on his back while holding his head up, while the subsequent medical records, along with claimant's testimony, include "some variation of [claimant] falling `backwards down the stairs.'" In addition, the Commission noted that no ankle injury was documented in claimant's medical records so as to support the June 1, 2019, report he made to the employer, in which he described twisting his ankle due to poor visibility, missing a step, and falling backward down the stairwell. Consequently, the Commission did not find his claimed mechanism of injury credible.

The Commission disagreed with the arbitrator's determination Claimant's decision to take the stairs was not suspicious under the circumstances, finding it "likely" that claimant had never taken those stairs before the date of the accident. The Commission found it "highly coincidental that [claimant], who weighed 284 pounds, was 57-year[s] old, and had previous knee surgeries would choose to walk down two flights of stairs in an allegedly dark stairwell for the very first time on the day that he was informed of his suspension." In addressing Claimant's testimony that he would not put himself through the pain of throwing himself down a flight of stairs over two days of pay, the Commission noted that the accident was not witnessed. The Commission further noted Claimant could have merely claimed he fell down the stairs due to the pending suspension or the possibility of losing his job following the suspension.

Please note the courts in this part of Illinois are among the most liberal in the entire U.S. On April 23, 2021, the circuit court reversed the Commission's decision and reinstated the arbitrator's decision, concluding the Commission's finding on the issue of accident was based on “improper speculation.”

On appeal, the employer first contended the Appellate Court should set aside the circuit court's order reversing the Commission's decision and reinstate the Commission's decision. The employer argued the Commission's finding Claimant failed to prove he sustained an accident was not against the manifest weight of the evidence. A divided IL WC Appellate Court agreed. I salute them for it.

The ruling outlines the Commission found Claimant failed to prove he sustained an accident on May 30, 2019. Specifically, the Commission found, although claimant may have been in the stairwell on the alleged date and an ambulance was called in response to an alleged accident, he failed to prove he sustained any accident on the alleged date. Because no one witnessed claimant's alleged accident on May 30, 2019, and claimant was the only witness who testified that the accident occurred, the Commission's finding was based upon its determination that claimant's testimony and "claimed mechanism of injury" lacked credibility.

Claimant testified the accident occurred while he was retrieving his lunch box during his assigned shift on May 30, 2019. Specifically, Claimant testified he slipped "due to visibility," twisted his ankle, and fell backwards down the stairs. Claimant also testified he immediately notified a co-worker of his fall and requested she call an ambulance. Claimant also notified the employer of the alleged accident and filled out an incident report the following day on June 1, 2019. Consistent with his testimony, Claimant alleged in the incident report that the stairwell had poor lighting and he twisted his ankle, "missing a step and fell backwards down [the] flight of stairs."

The ruling doesn’t indicate how Claimant was going down the stairs and yet fell backwards—in my view, very few people ever walk backwards down stairs. I also note anyone falling backwards down stairs is, almost with 100% certainty, going to strike their head at least once if not several times—no mention is made of how that head strike or strikes didn’t occur.

According to Claimant's medical records, some introduced by the employer, he sought immediate medical treatment after the alleged accident and follow-up treatment in the months following the alleged accident. Claimant provided a generally consistent history of the alleged accident to each medical provider, as documented in his medical records. The Court noted medical records also showed an MRI of claimant's low back approximately a month and a half after the accident revealed an annular tear and disc injury. Claimant testified he had no prior injuries to his back, and the medical records do not reveal if he did or not or whether he had received medical treatment for his back prior to May 30, 2019.

The Commission determined Claimant's medical records did not support his claim, based on several factors. The Commission found Claimant's failure to submit the May 30, 2019, ambulance record and the second page of Dr. Buchman's June 3, 2019, treatment record into evidence led to "the permissible inference" those records contained information detrimental to his claim. Such determination is within the Commission's purview and is reasonable given the evidence.

Similarly, the Commission questioned Claimant's claim of twisting his ankle on the stairs, given that no ankle injury was documented in his initial medical records.

As well, the Commission found it was "extremely unlikely" Claimant could have fallen backwards down a flight of stairs without any visible signs of trauma documented in his medical records. The Commission observed Claimant's initial treatment record from May 30, 2019, indicated claimant had no obvious trauma and found the noted impression of "multiple contusions" was vague and inconsistent with the notation of no obvious trauma. The Commission also relied on Dr. Buchman's medical record from June 3, 2019, which indicated claimant had no visible bruising.

The Appellate Court, WC Division reinstated the IWCC’s denial of this claim. The simple question to ask all of you—did Claimant

• Actually fall down the stairs? Or

• Did he make it all up to quietly lay down at a point on the stairs to start screaming for help?

Please note option 2 above clearly is WC fraud. If you are going to block such claims, you have to perform a great incident investigation, as this employer clearly did. What do you think?

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1-24-2022; Bulley & Andrews Stuck with WC and GL Liability on Same Event; Will WC Surveillance Ops Start to Use Remote Cameras and Drones and more

Synopsis: ITLA Wins Again, As Some IL Construction GL Claims Not Blocked by Exclusive Remedy Protection in IL WC Act.

Editor’s comment: As I have advised my readers, Illinois is a one-party State. In a one-party State, the controlling side almost always gets what they want. To me, this ruling is a clear win for one of the largest political donation machines in our state—ITLA or the IL Trial Lawyers Ass’n.

In Munoz v. Bulley & Andrews, Claimant was injured at work. It appears there are two different corporations involved—one is Bulley & Andrews. Bulley & Andrews, LLC is one of Chicago's oldest construction firm and general contractors. The firm was founded in 1891 as a partnership when Frederick Bulley, a 21-year-old English stonemason, partnered with Alfred Andrews, an architect. The company is headquartered on the near north side of Chicago and has a national presence.

Bulley & Andrews LLC served as the general contractor for a construction project in Chicago that used workers with Bulley & Andrews Concrete Restoration LLC, doing business as “Bulley Concrete.” Bulley Concrete is a wholly owned subsidiary of Bulley & Andrews, and the companies are operated as separate corporations, according to documents in Munoz v. Bulley & Andrews LLC.

As part of the project, the main corporation--Bulley & Andrews--used their sub Bulley Concrete and its employees for foundations and other concrete work but did not enter into any contract with Bulley Concrete.

Claimant Munoz worked for Bulley Concrete, and that company paid his wages and withheld taxes on his behalf. He claimed he suffered injuries while working on a construction project while so employed in December 2016.

Claimant filed a workers compensation claim against Bulley Concrete and also filed a separate personal injury action against Bulley & Andrews. The parent company moved to dismiss the suit as barred by the exclusive remedy provisions in Section 5 of the IL Workers’ Compensation Act. This major IL employer argued it had a preexisting legal obligation to pay Claimant Munoz’ workers compensation benefits and it did so. Having paid WC benefits, the parent sought protection from possibly multi-million dollar civil claims against it.

In response to a motion to dismiss, a Cook County circuit court judge granted it and dismissed the claim. Following basically the same reasoning—payment of WC benefits by the parent corporation blocked a civil claim for an employee of a subsidiary, our  IL appellate court affirmed.

Last week, the Illinois Supreme Court ruled the exclusive remedy provisions of the Workers’ Compensation Act do not extend the exclusive remedy protection of the IL WC Comp Act to a general contractor who is the parent of the subsidiary but not the employee’s “immediate employer.”

In reversing and remanding, the Illinois Supreme Court said based on legal definitions “immunity does not hinge on the payment of benefits” in workers compensation law. Rather, “immunity is conferred only on immediate employers of an injured worker.” Since Bulley & Andrews was not Ms. Munoz’s immediate employer, the court said it was not immune from civil liability to Claimant for possible negligence.

The fact Claimant Munoz’s immediate employer was a subsidiary of Bulley & Andrews had no merit, the court added. If a parent company and its subsidiary are operated as separate entities, only the entity that is the immediate employer of the injured worker was entitled to exclusive remedy immunity.

So What Does Bulley & Andrews Do?

Well, I am not sure why they have to have a parent corporation that is a general contractor and an LLC that is a subsidiary to be their concrete contractor on the same job. It would appear to be a simple task to run all of it under the main corporation, if the goal is to avoid dual litigation—WC claims and multi-million dollar civil claims from any and all of their workers.

Please also note the subsidiary can subrogate to recover the WC benefits paid from any civil claim brought against the parent—if you don’t understand how that works and have interest, send a reply.

On another note, I truly feel all construction companies in Illinois should have wide-ranging security cameras to document what their folks are doing at work and maybe prevent losses when possible.

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

Synopsis: Will WC Surveillance Operatives Start to Use Remote Outdoor Surveillance Cameras and Drones?

Editor’s comment: There is a pending criminal case that may provide guidance on this interesting issue—can a WC surveillance company start to use remote cams or flying drones when they are watching/recording a Claimant?

I read a ruling about the U.S. Justice Department urging SCOTUS or the U.S. Supreme Court to rule law enforcement officers did not violate the Fourth Amendment when they posted three surveillance cameras on public property outside a house in Mattoon, Ill.

In the house, a criminal defendant was suspected of taking part in a methamphetamine ring. In a brief, the Justice Department urged our highest court to deny Defendant Tuggle’s petition for a writ of habeas corpus. Defendant entered a conditional plea of guilty to trafficking charges the day before his trial was to begin, reserving the right to appeal the denial of his motion to suppress the evidence gathered by the cameras.

In upholding the denial, the brief says, the 7th U.S. Circuit Court of Appeals “correctly recognized that the use of video cameras — which were placed on utility poles on public property to capture the same views available to any ordinary passerby — did not intrude on Defendant’s or anyone’s reasonable expectation of privacy.”

From my perspective, the whole issue derives from the phrase “reasonable expectation of privacy.” If there is no reasonable expectation of privacy for the use of surveillance cameras in the fashion they were used in this reported claim, WC surveillance cameras and drones could and should similarly be used, particularly in remote or rural areas. A solid surveillance operative will closely adhere to this ruling—keep the cameras on public property and record what anyone on such property might see. Please also note there are drones with amazing cameras with platforms that can stay in the air for hours, if not, days.

I will keep watching and report when the SCOTUS ruling is published. I appreciate your thoughts and comments. Please post them on our award-winning blog.