Review of Illinois Workers Compensation

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1 Review of Illinois Workers Compensation CONTENTS N T FEBRUARY 2014 BEFORE THE ILLINOIS WORKERS COMPENSATION Personnel Changes at the Commission Level Personnel Changes at the Arbitration Level Medical Fee Schedule Rate Increases - State Average Weekly Wages Increase BEFORE THE SUPREME COURT OF ILLINOIS Persistence Pays Off Ted Powers in Our Office Wins a Big Case for Employers Before the Supreme Court of Illinois. Employee Traveling to a Worksite From His Home Held Not to Be Covered by Workers Compensation Appellate Court Decision Reversed. Welcome to It is an exciting year for us as we enter our 30th year in business. We dedicated ourselves to expertly and efficiently representing employers for the past 30 years. We always strive to do better than what is expected from us. This month we debut our new website along with our goal of exceeding client expectations. Please regularly visit our website at www. rusinlaw.com. We will be frequently updating the website with news and articles designed to inform and educate. IN THE APPELLATE COURT OF ILLINOIS, WORKERS COMPENSATION COMMISSION DIVISION Court Overrules Commission and Finds Employee s Slip and Fall in Employer s Parking Lot Compensable. Court Upholds Commission Ruling Denying Causation With Respect to Low Back Surgery Court Reverses the Commission as to Average Weekly Wage where Commission Included Self Employment Earnings. Court Denies Claim for TTD Pursuant to a Section 8(a) Petition Filed Five Years After a Final Commission Decision. Court Affirms Award for Mental-Mental Injury on Behalf of City Bus Driver Who Struck and Killed a Pedestrian. Firefighters Claim Barred in Park by the Doctrine of Collateral Estoppel Pension Bard Decision Prohibit Claimant from Relitigating Same Issues Before Workers Compensation Commission. Court Reverses Commission s Denial of Benefits to a Traveling Employee Bank Manager Injured in Public Parking Lot is Entitled to Benefits. BEFORE THE APPELLATE COURT OF ILLINOIS, NON- WORKERS COMPENSATION COMMISSION DIVISION CASES Court Denies Claim Made by Illinois Insurance Guarantee Fund Against Borrowing Employer s Insurer Court Dismisses Action Filed by The Guarantee Fund. GREAT DECISIONS AROUND THE OFFICE CONTACT INFORMATION Michael E. Rusin S. Riverside Plaza, Suite 1530 Chicago, Illinois NEW ATTORNEYS IN OUR OFFICE CONCLUSION PERSONAL

2 REVIEW OF ILLINOIS WORKERS COMPENSATION February, 2014 By Michael E. Rusin BEFORE THE ILLINOIS WORKERS COMPENSATION COMMISSION Personnel Changes at the Commission level The Commission is now fully staffed. The Governor appointed one new public Commissioner, Michael Brennan, late last summer and has now appointed a second public Commissioner. Therefore, Commissioner Brennan is no long serving double duty and hearing appeals on both panels B and C of the Commission. The new public Commissioner is a well known individual Stephen Mathis. Commissioner Mathis is an attorney who has served as a downstate arbitrator at the Commission since He was always a fair arbitrator and we expect he will bring that attitude to the Commission. With the addition of Commissioner Mathis, the 3 panels of Commissioners have been realigned. Here is a table of the current assignments of Commissioners. Commissioners by Panel Panel A Panel B Panel C Employee Representatives Thomas Tyrrell Charles DeVriendt David Gore Public Representatives Michael Brennan Daniel Donohoo Stephen Mathis Employer Representatives Kevin Lamborn Ruth White Mario Basurto Personnel changes at the Arbitration Level Regrettably and suddenly, Arbitrator Douglas Holland recently died. Arbitrator Holland was not an attorney but had served as an arbitrator and Commissioner at the Illinois Workers' Compensation Commission for well over 23 years. He was a dedicated hearing officer and did his best to work with the parties to resolve claims fairly and without litigation. He championed the pretrial process at the Commission years ago preferring to mediate cases prior to trial in an effort to avoid arbitration. He was successful in getting parties to talk and resolve differences. He will be missed. A new arbitrator was appointed to fill the vacant position, Jessica Hegarty. She is an attorney with a degree from Chicago Kent School of Law in Her past experience includes working as an Assistant States Attorney for Cook County and most recently as a plaintiff personal injury attorney in a firm started by her father, Hegarty and Hegarty. The statutory changes made in 2011 require downstate arbitrators to move every two years. This means that all of the downstate arbitration assignments have been modified 1

3 effective January 1, Further, the new arbitration appointments made last summer resulted in several new Chicago arbitration calls. There have been many changes and reassignments of cases it is critical that you double check the current arbitration assignment for your cases. Here is a list of the downstate zones and the three arbitrators that will serve in the downstate zones. Zone 1 Collinsville, Herrin, Mt. Vernon Arbitrators Nancy Lindsay, Brandon Zanotti, Edward Lee Zone 2 Urbana, Springfield, Quincy Arbitrators Molly Dearing, Maureen Pulia, William Gallagher Zone 3 Bloomington, Peoria, Rock Island Arbitrators Anthony Erbacci, Gregory Dollison, Doug McCarthy Zone 4 New Lenox, Geneva, Ottawa Arbitrators Gerald Granada, Peter O Malley, Barbara Flores Zone 5 Rockford, Waukegan, Woodstock Arbitrators JoAnn Fratianni, Robert Falcioni, George Andros Zone 6 Wheaton Arbitrators Carol Doherty, Joshua Luskin, Brian Cronin (each of the Wheaton arbitrators also have a Chicago call) Here is a list of the Chicago Arbitrators currently serving: 1. Jeffrey Huebsch 2. Ketki Steffen 3. Kurt Carlson 4. Carolyn Doherty 5. Jessica Hegarty (took over all cases of Arb Flores) 6. Svetlana Kelmanson 7. Joshua Luskin 8. Robert Williams 9. Lynette Thompson-Smith 10. Deborah Simpson 11. David Kane 12. Molly Mason 13. Milton Black 14. Brian Cronin There is no pro se settlement arbitrator anymore. However, one arbitrator is assigned to hear pro se settlements daily. 2

4 Medical Fee Schedule The Commission has posted the Medical Fee Schedule effective January 1, 2014 with a 1.52% increase. Attached is a schedule of Fee Schedule changes. If the fee schedule had tracked medical inflation, rates would be 30% higher than in 2006; instead, rates are 7% lower than Annual Adjustments Effective date CPI-Medical CPI-U / IL fee sch. Annual Difference February 1, % 4.90% 0.53% January 1, % 3.80% -0.46% January 1, % 1.97% -2.55% January 1, % 5.37% 2.11% January 1, % -1.48% -4.79% January 1, % 1.01% -0.02% September 1, 2011* % % January 1, % 3.77% 0.58% January 1, % 1.69% -2.36% January 1, % 1.52% -0.82% Cumulative 30.33% -7.45% % *Effective 9/1/11, pursuant to HB1698, all fees were reduced by 30%. Section 8.2(a) of the Illinois Workers' Compensation Act provides that, each year, fee schedule rates shall increase or decrease by the percentage change in the Consumer Price Index-U (CPI-U) in the previous year. Rate Increases State Average Weekly Wages Increase The State Average Weekly Wage increased to $1, creating new TTD and PPD Maximums along with new Death, Amputation and PTD minimums. A Table of Rates Chart is attached to the end of this newsletter. Please print or copy and save it as a reference guide. Effective 1/15/14 to 7/14/14, the new TTD maximum is $1, The Minimum Death, Amputation and PTD rate is $ The new PPD maximum retroactive to 7/1/13 is $ Minimum Rates have not increased but they will if Governor Quinn succeeds in raising the state s minimum wage as proposed. 3

5 BEFORE THE SUPREME COURT OF ILLINOIS Persistence Pays Off - Ted Powers in Our Office Wins a Big Case for Employers before the Supreme Court of Illinois. Employee traveling to a worksite from his home held not to be covered by workers compensation Appellate Court Decision reversed. The Venture Newberg Perini, Stone & Webster v. Illinois Workers' Compensation Commission and Ronald Daugherty, Docket No , 2013 IL , Decision Filed December 19, This case involved an odyssey for my partner, Ted Powers. I had initially evaluated the case years ago and concluded that the case was not compensable. Therefore, we denied the claim and lengthy litigation ensued. Attorney Powers did all the hard work and had to fight a long battle all the way to the Supreme Court in order to get justice for the employer. The petitioner, Ronald Daugherty, was a resident of Springfield, Illinois and he worked as a pipefitter out of Local Union 137 based in Springfield, Illinois (central Illinois). As a member of Local 137, he was to work only in his local territory, but he was allowed to work in other territories if local work was not available. Petitioner learned of a job with respondent that was located in Cordova, Illinois, about 200 miles from Springfield (northwest Illinois). The job at the Cordova plant required petitioner to be working seven days a week, 12 hours a day. Due to the distance from home and long hours, petitioner and a fellow union member decided to stay at a local motel near the job site. Petitioner and his associate first reported to work at the Cordova plant on March 23, They worked that day and that evening they spent the night at the Lynwood Lodge, about 30 miles away. The men were scheduled to start work the following day at 7:00 a.m. At 6:00 a.m., petitioner and his associate were driving to work in the associate s pickup truck. The associate skidded on ice and crashed. Petitioner suffered very serious injuries. Petitioner's job at the Cordova plant was intended to be only temporary. Under union rules, members are terminated upon completion of each job and are expected to find a new position through the union. Petitioner testified that the employer wanted workers to be staying within an hour s drive of the plant so they would be available for work when needed. However, there was no requirement that employees live or stay extremely close to the job site. Petitioner was not paid any travel expenses for traveling to the Cordova location. He was not paid any travel time whatsoever. After hearing the evidence, the arbitrator properly ruled the case not compensable. The arbitrator found that petitioner was not a traveling employee. 4

6 Petitioner appealed to the Commission and the Commission in a split decision reversed. The majority found that petitioner was a traveling employee. They found that petitioner s course or method of travel was determined by the demands and exigencies of his job rather than his personal preference. The Commission found that petitioner was not required to stay in the local area, but as a practical matter, he had to stay within a reasonable commuting distance from the plant. The Commission found petitioner was a traveling employee and ruled the case compensable. We appealed on behalf of the employer to the Circuit Court and the Circuit Court properly reversed the Commission and reinstated the arbitrator. However, Petitioner appealed to the Appellate Court and the Appellate Court in a split decision reversed the Circuit Court and reinstated the Commission decision. The Appellate Court found that petitioner was a traveling employee. The employer granted us leave to petition to appeal to the Supreme Court. Appeals to the Supreme Court are not automatic. A party must petition to appeal and the Court must agree to accept the case. The Supreme Court did accept the case and in a six to one decision reversed the Appellate Court and found the case not compensable. The court analyzed the case law involving traveling employees and found the case law distinguishable. The court found that petitioner was not a traveling employee. The court noted that petitioner was not a permanent employee of the employer. In fact, he had not even worked for the employer on a long term exclusive basis. He had only worked for the employer on four other short term projects over the last two years. Further, the court noted that nothing in petitioner's contract required him to travel out of his union s territory to take this position 200 miles away. Petitioner himself made the voluntary, personal decision that the benefits of the job and the pay outweighed the personal cost of traveling. Petitioner was hired to work at a specific location and he was not directed by the employer to travel away from this worksite to any other location. Petitioner simply traveled to the premises as did all other employees. Petitioner was not reimbursed any travel expenses, and he made his own travel arrangements. Based on this evidence, the court held the Commission s conclusion that Daugherty was a traveling employee was against the manifest weight of the evidence. The court also found that the Commission erred in concluding that the demands and exigencies of the job justified a conclusion that the case was compensable. The court noted that petitioner s choice and method of travel was not directed by the employer. Petitioner chose to stay at a motel closer to the worksite, but this was a personal decision. Nothing in petitioner s contract required him to travel out of his union s territory to take this job. It was petitioner's personal preference to accept the position and the travel distance that it entailed. Although petitioner testified that it was his understanding that the employer wanted workers to be within an hour s traveling distance from the plant, there was no evidence that this was required or even suggested by the employer. Further, 5

7 petitioner and his co-employee were not instructed to ride together, but instead made the personal decision to do so in order to save money. The court held While there is no question that Daugherty was seriously injured, the facts of this case do not support Daugherty s argument that he was entitled to workers compensation benefits. Daugherty made the personal decision to accept a temporary position with Venture at a plant located approximately 200 miles from his home. Venture did not direct Daugherty to accept the position at Cordova, and Daugherty accepted this temporary position with full knowledge of the commute it involved. Daugherty was not a traveling employee. Additionally, Daugherty s course or method of travel was not determined by the demands and exigencies of the job. Venture did not reimburse Daugherty for travel expenses or time spent traveling. Venture did not direct Daugherty s travel or require him to take a certain route to work. Instead, Daugherty made the personal decision to accept the position at Cordova and the additional time and travel risks that it entailed. Comment: The facts of this case unquestionably merited this result. Case law gives extreme deference to traveling employees. Clearly, petitioner was not a traveling employee. This case did not merit compensation. Petitioner was seriously injured, but this was a personal motor vehicle accident. Any employee can be involved in a personal motor vehicle accident while traveling back and forth to work. Case law has repeatedly stated that traveling back and forth to work is not compensable. The fact that petitioner decided to work at a job site that was far from home should not have made the case compensable. Cases involving workers compensation rarely get heard by the Supreme Court. The Supreme Court designates the Industrial Commission Division to the Appellate Court to rule on cases like this. However, Attorney Powers was able to convince the court to take the case because of the terrible Appellate Court ruling. Fortunately, justice finally prevailed for this employer and excellent case law has been established by the Court which will benefit employers and carriers throughout the state. BEFORE THE APPELLATE COURT OF ILLINOIS, WORKERS COMPENSATION COMMISSION DIVISION Court Overrules Commission and Finds Employee s Slip and Fall in Employer s Parking Lot Compensable. Mary Suiter v. Illinois Workers' Compensation Commission and Manpower, WC, 2013 Ill. App. (4 th ) WC (Filed November 14, 2013). Petitioner slipped and fell on ice in a parking lot as she exited her vehicle to go to work. The Commission found the case not compensable, but the Appellate Court reversed. Petitioner was hired by Manpower, a temporary employment agency, and she was 6

8 assigned to work by Manpower at the Illinois Department of Insurance. Her job site was located at a building called the Bicentennial Building in Springfield, Illinois. The State of Illinois did not own the building, but instead rented it from a landlord. The employer did not provide for parking for the employees. However, the employer told petitioner that she could contact the building manager for parking. The building manager assigned petitioner a parking spot. The parking spot was in a lot owned by the landlord and not available for public parking. The landlord s manager testified that he assigned parking spots for Manpower employees because he knew they did not earn a lot of money. After a hearing before the arbitrator, the arbitrator denied the case based on her finding that neither Manpower nor the State of Illinois provided petitioner a parking space. The arbitrator found that the building manager was not an agent of the employer. The arbitrator found that the building manager provided petitioner a parking space as a voluntary act of human kindness. Petitioner appealed to the Commission and the Commission affirmed the denial. Petitioner appealed to the Circuit Court and the Circuit Court also denied the case. Petitioner appealed to the Appellate Court and the Appellate Court in a unanimous decision reversed the Commission. The court stated that traveling back and forth to work is generally not compensable. However, the court pointed out the parking lot exception. Under that rule of law, the court stated Court s have allowed recovery where the employee is injured in a parking lot provided by and under the control of the employer. This exception applies in circumstances where the employee s injury is caused by some hazardous condition in the parking lot. The court ruled that the parking lot exception applies so long as an employer has provided a parking lot for use by its employees whether or not it owns the lot. The court found that petitioner s parking spot was attributed to the employer because petitioner s supervisor told her to contact the landlord s building manager if she wanted parking. Since the building manager provided petitioner parking, the court found The evidence established that the claimant s ability to use the parking the non-public parking lot is derived from her status as an employee of the state. After finding that petitioner's accident occurred in the course of her employment, the court further found that petitioner s accident arose out of her employment since she slipped and fell on ice on an employer s parking lot. Comment: This case is a true disappointment for employers. It demonstrates a willingness by the Appellate Court to reverse a well reasoned Commission decision without significant justifiable basis. This employer had nothing to do with petitioner being assigned a parking spot. The arbitrator was clearly correct. The arbitrator found that the building manager provided petitioner with a parking spot as a voluntary act. This simply was not the act of the employer. The employer did not provide parking to petitioner. If anything, the liability in this case should be on the building owner and not the employer. This case as others demonstrates a strong willingness by the current 7

9 Workers Compensation Division of the Appellate Court to completely reverse favorable Commission decisions. Court Upholds Commission Ruling Denying Causation With Respect to Low Back Surgery Court Reverses the Commission as to Average Weekly Wage where Commission Included Self Employment Earnings. Cindy Mansfield v. Illinois Workers' Compensation Commission and Naperville Park District, 2013 Ill. App. (2 nd ) WC (Filed November 21, 2013). Petitioner was employed by Naperville Park District on a part time basis teaching preschool classes. She worked 12 to 20 hours a week. Her average weekly wage working for respondent was $ In addition to her employment with the insured, she also taught piano lessons in her home. From her home business she earned about $ per week. Petitioner filed two applications for injuries on July 23, 2003 and September 9, The accidents were not disputed. On July 23, 2003, she jumped backwards to avoid a child and felt back pain. She saw a doctor and was diagnosed with a lumbar strain. She did not lose any time from work. She suffered a second injury September 9, 2003 when she fell back into a door and her back pain increased. She treated with a chiropractor and was authorized off work. She had an MRI which showed no obvious disc herniation that was clinically significant. Her employer sent her to Dr. Spencer who treated her for several months and placed her at MMI in January, Her employer sent her for an IME with Dr. Andrew Zelby. Dr. Zelby did not think petitioner had any significant disc herniation. He felt she sustained a lumbar strain and was at MMI within three or four months following the July, 2003 accident. Eventually, petitioner sought treatment from other doctors at Northwestern Memorial Hospital. She had a discogram which showed disc degeneration at L5-S1. She underwent surgery and had an L5-S1 fusion. The case was tried before an arbitrator who found all of petitioner's medical treatment causally related to her accident of September 9, Petitioner was awarded several years of TTD, over $100, in medical bills and 25% man as a whole for PPD. The employer appealed and the Commission reversed on the issues of causation and surgery. The Commission cut off TTD as of April 12, 2004, denied the surgery and awarded only 10% loss of use of the man as a whole. However, the Commission awarded benefits using an average weekly wage of $ including both petitioner s earnings from the employer and her self employment earnings teaching piano lessons. 8

10 Both parties appealed to the Circuit Court. The Circuit Court affirmed the Commission, but remanded to recalculate the average weekly wage. Both parties appealed and the Appellate Court affirmed the Commission on the issues of causal connection, surgery, TTD and PPD. The court noted that the Commission was justified in relying on the opinions of Dr. Spencer and Dr. Zelby when deciding the issue of causation. Further, the court noted that petitioner s treating physician actually opined that her condition of ill-being was causally related to the July 23, 2003 accident and not the September 9, 2003 accident. (Petitioner clearly erred in not appealing both of her decisions.) The court refused to change the award of TTD or PPD. The court ruled that awards of PPD are uniquely within the province of the Commission. However, the court reversed the Commission as to the average weekly wage calculation. The court found that the Commission erred when it included wages from petitioner's self employment. The court found the case of Paoletti v. Industrial Commission, 279 Ill. App. 3 rd 988, 665 N.E. 2d 507 (1996) to be dispositive. That case ruled that self employment earnings should not be included in the average weekly wage calculation. Comment: This is an excellent and fair decision from the court. The arbitrator had written a terrible decision of this case finding petitioner's degenerative back condition requiring surgery to be causally related to two fairly minor back injuries. The evidence clearly showed that petitioner had a long history of back problems and these two work events were simply minor strains at best. Despite petitioner's continued complaints of low back pain, it was apparent that petitioner was exaggerating her symptoms and that her symptoms were personal problems, not work-related injuries. The award of TTD through April, 2004 was generous. The award of 10% loss of use of the man as a whole was more than generous. It is surprising that the Commission would have erred in the wage calculation by including self employment earnings. The Paoletti case dates back to 1996 and there have been no statutory changes or case law changes which modify its holding. There is no reason why there should be any consideration for self employment earnings as part of the average weekly wage calculation. The Appellate Court was clearly correct in reversing the Commission s wage calculation and remanding for a recalculation. Court Denies Claim for TTD Pursuant to a Section 8(a) Petition Filed Five Years After a Final Commission Decision. Tony L. Curtis v. Illinois Workers' Compensation Commission and Village of Lansing, 2013 Ill. App. (1 st ) WC (Filed March 11, 2013). Petitioner is employed by respondent as a police officer/paramedic. He suffered an injury on September 1, 2000 when he tripped and fell and injured his right hand. He filed a claim with the Commission and also a 19(b) petition. After a hearing, he was awarded 55 9

11 weeks of TTD and $14, in medical bills. The employer disputed the claim and filed a petition for review with the Commission, but the decision was affirmed. Subsequently, a hearing was held as to PPD. A decision was rendered in favor of petitioner on January 25, 2005 awarding him 40% loss of use of the hand and an additional $8, in medical bills. No appeals were filed and the arbitration decision became final. Almost five years later, petitioner had another surgery on his right wrist. The surgery took place on October 5, The employer voluntarily paid the medical bills. However, the employer refused to pay TTD while petitioner was off work after surgery. Petitioner then filed a Section 8(a) petition with the Commission alleging entitlement to TTD from October 5, 2009 to February 8, This petition was filed with the Commission on January 21, 2010, almost five years after the last decision of the Commission. The employer disputed petitioner s entitlement to TTD claiming that the 30 month period for filing a Section 19(h) petition had lapsed. Petitioner claimed that he was entitled to TTD benefits under Section 8(a) and that Section 19(h) did not even apply to a TTD claim. The Commission denied the case and the Circuit Court affirmed. Petitioner appealed to the Appellate Court and the Appellate Court affirmed the denial of TTD benefits. The court held that petitioner was barred from seeking TTD benefits because he did not file a 19(h) petition within 30 months from the last decision of the Commission. The court ruled that Section 8(a) cannot be used as a vehicle to avoid the time limitations set forth in Section 19(h). The court held The time limit set forth in Section 19(h) is jurisdictional. The limitations period begins to run from the date of the Commission s decision. However, when no review of the arbitrator s decision is sought, the decision of the arbitrator becomes the decision of the Commission for purposes of calculating the limitations period in Section 19(h). Comment: This is an excellent decision from the court. I am not surprised at all by the claim. The court itself creates unwarranted claims like this by improperly interpreting the plain language of the statute. Ever since the Supreme Court s decision in McMahan wherein they decided that the term compensation also included medical bills for the purposes of awarded penalties, claimants have tried to use other sections of the statute to generate awards for which they were not intended. At least this decision firmly establishes that Section 8(a) petitions cannot be used for untimely claims for TTD. Claims for TTD post-award must be filed within the 30 months set forth in Section 19(h) of the Act. 10

12 Court Affirms Award for Mental-Mental Injury on Behalf of City Bus Driver Who Struck and Killed a Pedestrian. Chicago Transit Authority v. Illinois Workers' Compensation Commission and Sylvia Timms, 2013 Ill. App. (1 st ) WC (Filed March 11, 2013). Petitioner was employed as a public bus driver for about three years. On March 18, 2013, she inadvertently struck a pedestrian. Passengers called out to the bus driver and she stopped the bus. She approached the victim and saw him lying in a fetal position. An ambulance came and the victim was taken to a hospital where he subsequently died. Upon later hearing the news of the victim s death, petitioner recalled feeling shaken and a little depressed. She was taken off work pending a safety investigation. Six weeks later, she was terminated. Following the accident, she claimed that she had flashbacks of the accident victim and difficulty sleeping. She did not seek any professional help for two and a half months. She eventually sought treatment with a psychologist and was diagnosed with an adjustment disorder with mixed anxiety and a depressed mood. She filed a claim with the Commission and she was awarded TTD and medical. The employer appealed, but the Commission affirmed. The employer appealed to the Circuit Court which affirmed. The employer appealed to the Appellate Court which also affirmed. The court ruled petitioner was entitled to compensation and did prove a compensable mental-mental injury. The employer argued that petitioner was not entitled to benefits under the mental-mental theory of liability. The employer argued that under the Pathfinder case, mental-mental injuries are compensable only when the claimant suffers a sudden, severe emotional shock traceable to a definite time, place and cause which causes psychological harm. The employer argued that under the General Motors case, a claimant may only recover under Pathfinder if she suffers a sudden, severe emotional shock which causes her to suffer a psychotic injury that was immediately apparently. The court disagreed with the employer s argument. The case gives a good analysis and summary of mental-mental cases. The court makes a definite distinction between cases involving a sudden emotional shock versus a gradual emotional shock. The court stated that it is extremely reluctant to grant compensation to gradual injuries rather than sudden injuries. The court stated in a footnote We have been particularly hesitant to allow recovery for such claims. We have repeatedly noted that mental disorders which develop over time in the normal course of the employment relationship do not constitute compensable injuries. Recovery for non-traumatically induced mental disease is limited to those who can establish: (1) the mental disorder arose in a situation of greater dimensions than the day to day emotional strain and tension which all employees must experience; (2) the conditions exist in reality, from an objective standpoint; and (3) the employment conditions, when compared to the non-employment conditions with a major contributory cause of the mental disorder. 11

13 Applying these standards, we have rejected claims for mental disabilities resulting from arguments with co-workers, disciplinary actions taken by employers, and personal matters unrelated to the claimant s work. In this case, the court found that the event of a claimant striking a pedestrian was much like the event in Pathfinder where an employee found a co-worker s severed hand in a press. In a case like this, the court did not find it unusual that the claimant did not immediately seek treatment. The court held If the claimant shows that she suffered a sudden, severe emotional shock which causes psychological injury, her claim may be compensable even if the resulting psychological injury did not manifest itself until sometime after the shock. To the extent that General Motors holds otherwise, we reject that aspect of the court s holding and declined to follow it. The court found that the sudden emotional shock of striking the pedestrian and killing him was sufficient to justify compensation here. Comment: Cases involving mental-mental injuries are often difficult to predict. This case decision gives a better concept of the court s current interpretation of the law. It shows that the court does continue to disfavor mental-mental injuries. However, the court is much more likely to award compensation in a situation where the claimant has suffered a single, severe emotional shock rather than a course of more minor and multiple emotional shocks. This is especially true when the nature of the emotional trauma is not that uncommon in the workplace. The court is much more willing to grant compensation to the severe emotional shock even where treatment is delayed than it is to grant compensation in cases where an individual seeks immediate medical treatment for alleged mental trauma which is cumulative. Employers clearly have to be vigilant against claims for mental-mental trauma, especially since they can be so easily fabricated. Firefighters Claim Barred in Part by the Doctrine of Collateral Estoppel Pension Board Decision Prohibit Claimant from Relitigating Same Issues Before Workers' Compensation Commission. The City of Chicago v. The Illinois Workers' Compensation Commission and Joseph Locasto, 2014 Ill. App. (1 st ) WC. In May, 2008, petitioner was hired by the City of Chicago as a candidate in training at the Chicago Fire and Paramedic Academy. He began training to become a paramedic with the Chicago Fire Department. On May 6, 2008 and May 7, 2008, petitioner was required to participate in rigorous physical training. During the course of his training, he developed right leg cramps. He experienced severe dehydration and went to the emergency room. He was diagnosed with rhabdomyolysis, acute kidney failure and compartment syndrome. He underwent surgery to release the pressure caused by the compartment syndrome and he underwent dialysis. He treated with an orthopedic surgeon, a nephrologist and a primary care physician. Within a few months, all of his 12

14 treating doctors released him for regular work, but there were issues as to whether he could go back into the rigorous training to become a firefighter/paramedic for The City of Chicago. Two doctors examined him at the request of The City of Chicago and found that he could do unrestricted physical activity. The employer paid him a year of salary continuation, but did not pay him TTD. The City did not bring him back to work and did not offer him any alternative employment. In October, 2009, he began to work part time as an IV technician at a hospital. He filed a claim for a duty disability pension with The City of Chicago Pension Fund. The Pension Board concluded that as of August 3, 2009, petitioner was in good and stable physical condition and could have performed full duties as a paramedic. The claim for a duty disability pension was denied. Despite the Pension Board s ruling, petitioner filed this claim with the Illinois Workers' Compensation Commission seeking TTD, TPD and maintenance benefits. The employer claimed that the workers compensation claim was barred under the doctrines of res judicata and collateral estoppel because of the Pension Board s ruling. The Commission rejected this argument and awarded petitioner TTD benefits and TPD benefits through the date of the hearing on arbitration. The Commission chastised the employer for refusing to allow petitioner to return to work as a firefighter/paramedic, for refusing to authorize an FCE and for refusing to provide vocational assistance. The City appealed to the Circuit Court which affirmed. The City appealed to the Appellate Court and the Appellate Court reversed significant aspects of the case in part. The court addressed the issue of whether the doctrines of res judicata and collateral estoppel applied to this case. The court found that the doctrine of res judicata did not apply. The court noted that res judicata could only apply if there was privity between the parties. In this case, there was not privity between the parties because the pension claim was made against the City of Chicago Fire Department Pension Fund, but the workers compensation claim was made against The City of Chicago. Because they are separate entities, the doctrine of res judicata cannot apply. However, the doctrine of collateral estoppel (a similar concept) could apply. The court noted collateral estoppel prohibits the relitigation of an issue essential to and actually decided in an earlier proceeding by the same parties or their privies. The court stated collateral estoppel may be asserted when: (1) the issue decided in the prior adjudication is identical to the issue in the current action; (2) the issue was necessarily determined in the prior adjudication; (3) the party against whom estoppel is asserted was a party or in privity with a party in the prior action; (4) the party had a full and fair opportunity to contest the issue in the prior adjudication; and (5) the prior adjudication must have resulted in a final judgment on the merits. 13

15 The court cited to McCulla v. Industrial Commission, 232 Ill. App. 3d 517 (1992) to support its conclusions. The court stated that in cases of disputed causation once a Pension board finds against a claimant, the claimant cannot relitigate that issue before the Commission. This rule of law is based on the doctrine of collateral estoppel. In this case, the court found that some, though not all of petitioner's claims before the Commission were barred by the prior pension decision. The court held The Board s decision does collaterally estop the claimant from relitigating the issues of whether he was disabled after August 3, 2009 and whether his work-related injuries rendered him unable to work as a paramedic after that date. Since the Pension Board decided that petitioner was fully recovered and able to perform his regular job as a paramedic as of that date, the Commission was precluded from reaching a contrary decision. The court therefore reversed the Commission s award of TTD and TPD benefits after August 3, The court did not disturb the Commission s award of benefits prior to that date. Comment: This is an insightful and helpful decision from the Appellate Court concerning the issues of the applicability of final Pension Board decisions in workers compensation claims. Employers have frequently argued over the years that Pension Board decisions are binding on the Illinois Workers' Compensation Commission. Yet, few Commission decisions support that position. This case shows that the Commission frequently and improperly refuses to accept and apply Pension Board decisions. The McCulla decision from 1992 is an old one and should not have been ignored by the Commission as it was here. This decision helps employers. We now know that the doctrine of res judicata will not help us to defeat a workers compensation claim after a favorable Pension Board ruling. However, the doctrine of collateral estoppel will aid the employer. The doctrine of collateral estoppel will serve as a bar to a claim made by an individual after a favorable Pension Board decision. The Pension Board ruling, once final, should preclude any claim for benefits under the Workers' Compensation Act which was denied by the Pension Board. Municipal employers should pay close attention to this case. Court Reverses Commission s Denial of Benefits to a Traveling Employee Bank Manager Injured in Public Parking Lot is Entitled to Benefits. Laverne Kertis v. Illinois Workers' Compensation Commission and Washington Mutual Inc., 2013 Ill. App. (2d) WC (Filed June 18, 2013). Petitioner was employed by respondent as a branch manager for two different branches of the employer s bank. One branch was located in Hoffman Estates, Illinois and the other in St. Charles, Illinois. During the course of his job duties, petitioner traveled almost daily to two different branches. Neither branch offered parking for customers or employees. Petitioner was therefore required to park on the street or in a municipal lot. 14

16 On August 28, 2008, petitioner went to work at the Hoffman Estates in the morning. In the midafternoon, petitioner drove to the St. Charles office to attend a closing. He parked in a public parking lot and began to walk to the office. He stepped into a pothole while avoiding an oncoming car and fell injuring his back. He filed a claim for workers compensation benefits and the employer denied liability claiming that petitioner was at no greater risk than the general public. After a trial, the arbitrator ruled in the employer s favor and denied the case. Petitioner appealed and in a split decision the Commission affirmed the denial. Petitioner appealed to the Circuit Court which affirmed. Petitioner appealed to the Appellate Court which reversed. The Appellate Court ruled that petitioner was a traveling employee. The Appellate Court ruled that for traveling employees the issue was not whether petitioner was exposed to a risk not common to the general public, but instead whether petitioner s actions at the time of his injury were reasonable and foreseeable. The court stated The determination of whether an injury to a traveling employee arose out of and in the course of employment is governed by different rules than are applicable to other employees A traveling employee is deemed to be in the course of his employment from the time he leaves home until he returns. An injury sustained by a traveling employee arises out of his employment if he was injured while engaging in conduct that was reasonable and foreseeable, i.e., conduct that might normally be anticipated or foreseen by the employer. In this case, it was easy for the court to reverse finding that petitioner is walking from a municipal lot to his office was both reasonable and foreseeable. It was irrelevant as to whether or not he was exposed to a risk greater than that of the general public since the rules that apply to traveling employees are different. Comment: Petitioner in this case testified that he had to travel between the two branches almost daily. The employer did not offer any evidence to contradict this, although they argued that petitioner was not required to travel between the offices frequently. The employer argued that petitioner only needed to travel occasionally. Frankly, it would not matter if petitioner had to travel frequently or only occasionally. On the occasions that he had to travel, he became a traveling employee. Illinois case law is favors employers on the issue of arising out of the employment. Claimants are held to a higher standard than in other states. However, that higher standard does not apply to traveling employees. This case decision reiterates that traveling employees really do not need to prove that their accident arose out of their employment. A traveling employee s accident will be found compensable so long as the traveling employee was engaged in activity which was reasonable and foreseeable at the time of the accident. This is a vastly different standard. 15

17 BEFORE THE APPELLATE COURT OF ILLINOIS, NON-WORKERS COMPENSATION COMMISSION DIVISION CASES Court Denies Claim Made by Illinois Insurance Guarantee Fund Against Borrowing Employer s Insurer Court Dismisses Action Filed by The Guarantee Fund. Illinois Insurance Guarantee Fund v. Zurich American Insurance Company and Interlake Material Handling, 2013 Ill. App. (1 st ) (Filed November 12, 2013). Petitioner, John Earley was hired by TGI Group December 2, TGI Group had workers compensation insurance through Legion Insurance Company. TGI lent Earley to another company, Interlake Material Handling, to perform work duties for Interlake. Interlake was insured by Zurich American Insurance Company. On December 19, 2000, Earley was injured and Legion Insurance Company began making benefit payments to petitioner. Several years later, Legion became insolvent and was liquidated. The Guarantee Fund took over the case and began making payments to Earley. On July 17, 2008, almost five years after the Guarantee Fund started making payments to Earley, the Guarantee Fund filed a complaint against Zurich demanding reimbursement for the benefits paid. The complaint alleged that Interlake was a borrowing employer. The complaint alleged that Zurich was responsible for all payments made to Earley as Zurich was the insurer for the borrowing employer. The Guarantee Fund alleged that in a lending/borrowing situation, both employers are jointly and severally liable for workers compensation benefits. The Guarantee Fund alleged that the Zurich policy constituted other insurance as defined by the Illinois Insurance Code and therefore Zurich should be primarily responsible to petitioner before the Guarantee Fund would be responsible for payments. Zurich filed a motion to dismiss claiming that the complaint failed to state a cause of action. The Circuit Court agreed and dismissed the complaint filed by the Guarantee Fund. The Guarantee Fund appealed to the Appellate Court and the Appellate Court affirmed the dismissal. The court stated that in order for the Guarantee Fund to establish a valid cause of action for equitable subrogation, they had to show that Zurich was primarily liable to the insured, that the Guarantee Fund was secondarily liable and that the Guarantee Fund discharged its liability to the insured and in doing so extinguished the liability of Zurich. The court noted that the Supreme Court has already held that an insurer such as Legion can waive its rights against another insurer such as Zurich. In this case, there was no evidence that Legion ever attempted to shift liability to Zurich during the course of Legion s handling of this claim. Legion felt that it had total liability to petitioner and did not feel that Zurich had any liability. The Guarantee Fund became obligated to pay petitioner once Legion went insolvent. Although the Guarantee Fund claimed that both Legion and Zurich were jointly and severely liable, no facts supported that conclusion. In 16

18 order for there to be subrogation for the Guarantee Fund, there had to be subrogation for Legion against Zurich. The fact alone that Legion insured a lending employer and Zurich insured a borrowing employer was insufficient on its own to justify a conclusion that Legion had a subrogation against Zurich. The court stated In presenting this argument in its opening brief, IIGF ignores this court s ruling in Illinois Insurance Guarantee Fund v. Virginia Surety Co., 2012 Ill. App. (1 st ) , which held that when a lending employer maintains workers compensation insurance for its employees and the workers compensation carrier insolvent, IIGF cannot compel the borrowing employer s insurance carrier to pay the lending employee s benefits. Comment: The Illinois Guarantee Fund has certainly been aggressive in the last several years seeking to subrogate against other carriers where it has seen an opportunity to claim a subrogation right. However, the courts have not favored these types of claims. The courts have been reluctant to rule in favor of the Guarantee Fund. Moreover, many of the Guarantee Fund claims appear to be untimely as the Guarantee Fund has been trying to shift liability in cases that they have been accepting and paying for a long time. It does appear unfair that that the Guarantee Fund suddenly feels that they can pursue other carriers who have no obvious liability so many years after accepting and paying claims. GREAT DECISIONS AROUND THE OFFICE I scored a zero award for Illinois Public Risk Fund and CCMSI in the case of Timothy Capua v. Lisle-Woodridge Fire Protection District, 10 WC Petitioner claimed that he suffered an injury on November 15, 2009 resulting in a hernia. Petitioner claimed that he was working at a fire scene pulling hoses and carrying gear. He specifically claimed that he felt pain in his groin when he was required to lift a 35 pound ladder. We disputed the claim because petitioner did not report any accident or injury on November 15, Petitioner admitted that he never reported any work injury at the time of the alleged accident. We proved that petitioner went for an annual department physical December 2, 2009 and while at the physical the doctor noted a hernia. Petitioner told the company doctor that he first noticed something in his abdomen over the summer. Petitioner then visited his family doctor. We proved that his records show no history of a work accident. Petitioner first reported the case as a work injury December 8, Petitioner had hernia surgery done by Dr. Ward, but we showed that his records documented the hernia as gradual an onset and occurring over a course of several months. We arranged for an IME with Dr. Scott Kale, an internist. He concluded there was insufficient evidence to associate petitioner's hernia with a work injury. 17

19 The arbitrator ruled in our favor and found that petitioner failed to prove accident and failed to prove causal connection. The claim was denied in its entirety. I obtained a favorable decision for AIG Insurance in the case of Dana Djokic v. National Union Fire Insurance Co., 11 WC 16704, 13 IWCC 902. The petitioner was a workers compensation attorney for AIG Insurance. She suffered a slip and fall injury on her way to work. She testified that her job as a workers compensation defense attorney was a busy one and she was required to bring files back and forth to work so that she could work on them at home. She claimed that she was carrying files to work on January 18, While walking from her train station to her office, she slipped and fell on an icy public sidewalk. She tried to claim she was a traveling employee. We disputed and denied liability in this case on the basis that the act of coming and going to work was not compensable. We presented testimony that petitioner was not required to bring files back and forth to the office. We proved that petitioner was simply coming to the office and not on any special errand. The arbitrator ruled the case not compensable and denied liability in its entirety. Petitioner appealed to the Commission and the Commission affirmed the denial of liability. The case was denied in its entirety. Petitioner did not appeal to the Circuit Court and the decision is final. Dan Egan obtained an excellent decision from the Appellate Court on behalf of West Bend Mutual Insurance in a case that merited significant media attention. The case name is Mark Gruszeczka v. The Illinois Workers' Compensation Commission and Alliance Contractors, 2013 Ill. App. (2 nd ) WC-UB (decision filed 10/9/13). This case involved a disputed workers compensation claim. Petitioner claimed that he suffered an injury July 21, We disputed liability in this matter and the arbitrator ruled in our favor denying accident. Petitioner appealed to the Commission and the Commission affirmed the denial. Petitioner filed a petition for review in the Circuit Court of DeKalb County. The appeal in the Circuit Court was not filed within 20 days from receipt of the decision by petitioner s attorney. We filed a motion to dismiss in the Circuit Court, but the motion to dismiss was denied. Nevertheless, the Circuit Court confirmed the denial. Petitioner appealed to the Appellate Court. The Appellate Court confirmed the denial in part on the basis that petitioner s appeal to the Circuit Court was not timely. Petitioner then appealed that decision to the Supreme Court and the Supreme Court reversed the Appellate Court holding that petitioner s appeal in the Circuit Court was timely because the appeal documents had been mailed within 20 days of receipt of the decision of the Commission. On remand, the Appellate Court was forced to consider the merits of the appeal and they found there was no merit to the appeal. The court found that the arbitrator and Commission s decision was proper and the denial was appropriate. Attorney Egan fought hard and long on this case. His successful defense represents both dedication and perseverance. 18

20 I obtained an excellent decision for CCMSI and their insured, Dayton Freight Lines, Inc., in the case of Maurice Adams v. Dayton Freight Lines, 12 WC 37184, 13 IWCC Petitioner was employed by respondent as a dock worker on October 17, Petitioner was working inside a trailer. While walking in the trailer, petitioner's right knee popped and fell to the ground. He suffered a patellar tendon tear and required surgery. Petitioner testified that his injury occurred while he was squatting and twisting between some dock bars in the trailer. We disputed petitioner's testimony. We presented the testimony of the terminal manager who testified that petitioner could not have been squatting between deck bars at the time of his injury. Further, the terminal manager testified that petitioner admitted at the time of his accident he was simply walking in the trailer. The terminal manager s testimony was also supported by an excellent recorded statement taken by the claims adjuster shortly after the accident. The arbitrator found that petitioner failed to prove that he sustained an accident which arose out of his employment. Petitioner appealed to the Commission and the Commission issued a unanimous decision affirming the decision of the arbitrator. Compensation was denied in all respects. Petitioner contended that simply by the fact that he was working inside a trailer increased his risk of injury. This decision confirms that simply walking in a trailer is insufficient to justify a conclusion that petitioner s injury arose out of his employment. Jeffrey Rusin scored an excellent decision from the Illinois Workers' Compensation Commission on behalf of AmTrust Insurance in the case of Omar Enriquez v. D&K Group, Inc., 11 WC 41953, 13 IWCC 404. Petitioner alleged an injury to his lumbar, thoracic and cervical spine as a result of an October 5, 2011 accident at work. We accepted liability for a mild sprain/strain to the thoracolumbar region, but we disputed liability for petitioner's alleged cervical spine injury. Following the accident, we proved petitioner sought medical treatment with a primary care physician and was diagnosed with back pain, but not neck pain. We proved that petitioner treated with the company doctor at Alexian Brothers Corporate Health Service with a diagnosis of a thoracolumbar sprain/strain. However, petitioner discontinued treatment at Alexian Brothers and started treating with Marque Medicos and Medicos Pain & Surgical Specialists. Petitioner received extensive and excessive medical treatment including multiple diagnostic tests (scans, MRIs and EMG/NCV studies). Petitioner incurred in excess of $35, in disputed medical bills. 19

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