2013 Workers Compensation Case Law Summary

Transcription

1 2013 Workers Compensation Case Law Summary Prepared by: Brad A. Elward Heyl, Royster, Voelker & Allen Peoria County Bar Association February 15, 2014

2 2013 Case Law Summary The following case summary is meant to provide an overview of the significant workers compensation decisions published in 2013 by the Appellate Court, Workers Compensation Commission Division. During this period the appellate court published 17 decisions and issued 68 unpublished Rule 23 Orders. Two workers compensation decisions were handed down by the Illinois Supreme Court. The discussions below are meant to give you a flavor of each decision and its ruling and are not meant to provide a thorough legal analysis of each case s reasoning. The full decisions should be consulted before advising your client. I. ACCIDENT AND COMPENSABILITY A. Mental-Mental Claims. Chicago Transit Auth. v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC. The claimant filed an application for adjustment of claim, seeking workers compensation benefits from employer after she drove bus which struck and killed a pedestrian, and watched the pedestrian die. The Commission found the claim compensable and awarded benefits. In a 4-1 decision the appellate court affirmed, finding the Commission s conclusions were supported by the manifest weight of the evidence. First, the appellate court addressed the scope of Pathfinder Co. v. Industrial Comm n, 62 Ill. 2d 556 (1976), the Supreme Court case which first recognized mental-mental claims. Pathfinder requires a claimant alleging a mental-mental claim to prove that she suffered a sudden, severe emotional shock traceable to a definite time, place and cause which causes psychological injury or harm. Pathfinder, 62 Ill. 2d at 563. According to the CTA court, [t]hat is all that Pathfinder requires. The court explained, Pathfinder does not compel the claimant to prove, in addition, that the psychological injury resulting from the emotional shock was immediately apparent. Chicago Transit Auth., 2013 IL App (1st) WC at 20. The CTA court concluded the emotional shock needs to be sudden, not the ensuing psychological injury. Thus, if a claimant shows that she suffered a sudden, severe emotional shock which caused a psychological injury, her claim may be compensable even if the resulting psychological injury did not manifest itself until sometime after the shock. Diaz v. Illinois Workers Compensation Comm n, 2013 IL App (2d) WC. The appellate court reversed a 2-1 Commission decision which denied the claimant s efforts to recover for a mental-mental psychological injury. The claimant was a police officer who alleged psychological issues (post-traumatic stress disorder) after responding to a call and being confronted with an armed individual. The individual was eventually subdued after police used tear gas and smoke bombs to enter the house. The Commission had denied benefits based on its conclusion that the police officer had been trained in such encounters and that it was not a significantly greater risk than he was exposed to in his normal course of employment. This conclusions was based on its interpretation of Pathfinder and General Motors, which limited compensability to the narrow group of cases in which an employee suffers a sudden, severe 2

3 emotional shock which results in immediately apparent psychic injury and is precipitated by an uncommon event of significantly greater proportion or dimension than that to which the employee would otherwise be subjected in the normal course of employment. General Motors held that anxiety, emotional stress or depression which develops over time in the normal course of an employment relationship does not constitute a compensable injury within the holding of Pathfinder. Diaz, 2013 IL App (2d) WC. The appellate court, in a 4-1 decision, reversed and found the Commission had read General Motors too narrowly. Under the Commission s analysis it would be virtually impossible for police officers or others involved in dangerous occupations to qualify for a mental-mental claim. Id., at 32. Under Diaz, to be compensable under the Act, the traumatic incident must arise out of the claimant s employment as a police officer. It was because the claimant was a police officer that he encountered the subject with a handgun. Id. The Court explained, Under the Commission s analysis, a firefighter who rescued people from the World Trade Center on September 11, 2001, and subsequently developed posttraumatic stress disorder could not recover, because firefighters are trained to rescue people from burning buildings. Id. Moving forward, the standard for whether a worker has suffered the type of emotional shock sufficient to warrant recovery should be determined by an objective, reasonable-person standard, rather than a subjective standard that takes into account the claimant s occupation and training. II. ARISING OUT OF A. Increased Risk - Reaching Accolade v. Illinois Workers Compensation Comm n, 2013 IL App (3d) WC. The claimant, a care-giver at an assisted-care facility, was injured while assisting a female patient with a shower when she reached for a bar of soap and felt something pop in her neck. The claimant testified that the soap dish was on a ledge underneath the showerhead and as a result, when the shower was on, water would run onto the soap dish causing suds to form. She further said she felt it necessary to remove the soap dish because she was concerned for the resident s safety; specifically, that the resident might slip on the soap suds. The Commission found the accident compensable and awarded benefits. The employer appealed citing inconsistent medical histories and argued that the act performed was a common act which members of the general public perform on a daily basis. The appellate court affirmed, noting the claimant s assigned duties included helping residents of the assisted living facility in their activities of everyday living. In accordance with these duties, claimant was assisting a resident in taking a shower. Claimant testified that she was concerned that the resident might slip because the shower was producing an abundance of soap suds. As a result, claimant took hold of the resident with her right hand, turned left, extended her left arm, and removed the soap dish which was causing the suds to accumulate in the shower. As claimant was performing these activities, she felt a pop in her neck and experienced pain travel down her right arm. The evidence supports a finding that claimant sustained the injury at issue while attempting to ensure the safety of a resident at the assisted living facility, an act which claimant might reasonably be expected to perform incident to her assigned duties. Accolade, 2013 IL App (3d) WC, at 8. 3

4 The court further rejected the employer s argument the claimant was merely engaged in the personal action of reaching at the time of the accident. Respondent s argument ignores the fact that, at the time of the occurrence, claimant was engaged in an activity she might reasonably be expected to perform incident to her assigned duties, i.e., ensuring the safety of a resident of the assisted living facility. Id., at 19. B. Increased Risk Trip & Fall Springfield Urban League v. Illinois Workers Compensation Comm n, 2013 IL App (4th) WC. The claimant, as she was walked to a door leading to the parking lot following a work meeting, tripped and fell on a raised carpet mat that had become bunched up. The Commission awarded benefits and the employer appealed, arguing the risk encountered, that of a bundled up floor mat, were of a type typically encountered by members of the general public. According to the appellate court, In this case, claimant was leaving a mandatory meeting for approximately 200 employees of employer when she fell on a bunched or kinked mat. Claimant proved that she was required to be in the place where the accident occurred and that she was injured in a place controlled by her employer or while performing tasks that were mandated by her job. Springfield Urban League, 2013 IL App (4th) WC, at 28. Moreover, contrary to employer s argument, the appellate court observed, this case does not merely involve the risks inherent in walking on a mat which confront all members of the public. The accident occurred at an area used by the employer s employees to ingress and egress its facility. The evidence establishes claimant tripped on a kinked or bunched section of the floor mat as she was leaving the building. Id., at 29. Finally, the court rejected the notion that the Commission was required to find the mat constituted a defect. The court noted the claimant had testified that she fell on an area of the mat where it had bunched or kinked. The Commission found the bunched or kinked mat presented a dangerous condition of the premises. According to the court, the Commission s finding of a dangerous condition was not against the manifest weight of the evidence. When, as in this case, an injury to an employee takes place in an area that is the usual route to the employer s premises, and the route is attendant with a special risk or hazard, the hazard becomes part of the employment. Id., at 30. Special hazards or risks encountered as a result of using a usual access route satisfy the arising out of requirement of the Act. C. Arising Out of Fall On Ice. Suter v. Illinois Workers Compensation Comm n, 2013 IL App (4th) WC. The claimant, a temporary employee who had been hired through Manpower, slipped and fell on ice as she exited her car in a parking lot heading to work. The claimant had been assigned a specific parking space in a lot where the general public could not park. At the time of her fall, the claimant was retrieving her backpack, which contained snacks and coffee, and was in the process of shutting the car door when she slipped on the ice and fell. The Commission denied the claim as non-compensable, finding she failed to prove her fall arose out of her employment. 4

5 According to the Commission, neither Manpower nor her employer had assigned her the parking spot and that the landlord s representative, who did assign the lot space, was not an agent of the employer. The Commission found the landlord s agent assigned the temporary employee a parking space out of sympathy for her, since she made little money. On appeal, the court reversed and remanded the case for further proceedings. First, the court found the claimant fell within the parking lot exception to the general premises rule which prohibited compensation for injuries sustained at a point off the employer s premises. The court noted the State had contracted with the building owner for a certain number of spaces, which the landlord would then assign. Although the landlord s agent testified that no one from the State directed him to assign the claimant a parking spot, the evidence established that the claimant s supervisor directed the claimant to the landlord for the purpose of a parking lot assignment, if one was available. He directed her to make this inquiry, not because she was a member of the general public in need of a parking space, but because she was a temporary state worker in need of a parking space. All temporary state workers were directed to the landlord for a parking space assignment. The appellate court found the claimant was authorized by her employer to park on a nonpublic parking lot that was made available to employees for parking by the employer through a lease agreement with the employer s landlord, which satisfied the in the course of aspect. Concerning arising out of, the court also concluded the claimant had satisfied the standard. The uncontroverted evidence established that the claimant slipped on ice in the employerfurnished parking lot as she closed her car door shortly after arriving at work. Suter, 2013 IL App (4th) WC, at 40. The court, although discussing similar accidents on ice or snow occurring on an employer s premises, never addressed how this accident was related to the employment nor how the employee, by virtue of being in the lot, faced a risk greater than a member of the general public. D. Arising out of Stairs Village of Villa Park v. Illinois Workers Compensation Comm n, 2013 IL App (2d) WC. The claimant worked for the Village as a Community Service Officer. His job duties included handling ordinance complaints, theft reports, various noncriminal in-progress calls, accident reports, parking enforcement, and police officer backup, among other things. On April 5, 2007, the claimant was at work and on duty in the police station to which he was assigned, and in the early evening, he was upstairs in the watch commander s office for a briefing, after which he and another officer began walking towards the back side of the building. The claimant said he turned and started walking down the rear stairwell to the locker room on the lower level. When he reached the third step, his right knee gave out, causing him to fall down about seven stairs to the landing below, sustaining injuries to his right knee and lower back. According to the claimant, the back stairwell consisted of about 10 steps, a landing, and then another 10 steps to the lower level. Locker rooms were on the lower level, as well as the briefing room, the lunch area, and the shooting range. The locker rooms were for the use of the police officers and were not open to the general public. The claimant described the lower level as a 5

6 secured area and stated that the building entrance was accessible only with a pass key. On a typical work day, the claimant said he would enter the building through the back door and descend the stairs to the locker room in order to change from his civilian clothes to his uniform. He would walk back up the stairs to the mailbox area to check for any pertinent information, and then return downstairs to the lower level for his briefing meeting. The claimant testified that, before his shift even began, he would have traversed the back stairs at least two to four times. Moreover, at the end of the day, he would again descend the stairs to the locker room to change into his civilian clothes. The claimant said during most days, he would also use the stairs to go to the lunch room for his breaks or lunch or to get a soda, or to get rain gear or other equipment he needed for his duties. The claimant had suffered a prior injury to his knee in January of 2007, unrelated to his employment, and had been treated by various medical providers. The medical care included an MRI of the knee, which revealed small joint effusion with complex tears to the anterior horn, posterior horn, and body of the lateral meniscus. The arbitrator denied the claim, finding the fall was idiopathic and that the act of walking down stairs by itself did not establish a risk greater than those faced outside the workplace. The Commission reversed, two-to-one, finding that the accident was compensable, but awarding benefits only for the back claim. The majority concluded, based on a post-accident MRI, that the knee condition had not changed since prior to the accident. Concerning the fall itself, the Commission reasoned that the claimant s use of the stairs fell within the personal comfort doctrine and, therefore, arose out of and in the course of his employment. The Commission focused on the claimant s testimony that he used the stairs numerous times per day in order to access the police locker room and for personal breaks. Further, the Commission concluded that the claimant s necessary and repeated use the stairs for his employment exposed him to a greater risk than the general public. The circuit court confirmed and the employer appealed, arguing that the fall did not constitute a compensable accident. The appellate court affirmed the Commission majority, concluding the claimant had faced an increased risk while traversing the stairs. According to the appellate court, [t]he evidence of record supports the Commission s finding that the claimant was continually forced to use the stairway both for his personal comfort and to complete his work related activities. Village of Villa Park, 2013 IL App (2d) WC, at 21. Specifically, the court noted the evidence established that the claimant was required to traverse the stairs in the police station a minimum of six times per day. This fact, it reasoned, coupled with evidence that the claimant informed his superiors, prior to his fall on April 5, 2007, that he had injured his knee and the testimony of [the] Deputy Chief that he had seen the claimant walk with a limp on numerous occasions prior to April 5, 2007, certainly supports the inference that the Village required the claimant to continuously traverse the stairs in the police station, knowing that he had an injured knee. Id. The appellate court found these facts were more than sufficient to support both the conclusion that the claimant s employment placed him in a position of greater risk of falling, satisfying the exception to the general rule of noncompensability for injuries resulting from a personal risk, and that the frequency with which the claimant was required to traverse the stairs constituted an increased risk on a quantitative basis from that to which the general public is exposed. Id. 6

7 E. Intervening Act. National Freight Indus. v. Illinois Workers Compensation Comm n, 2013 IL App (5th) WC. The claimant, a truck driver, filed a workers compensation claim against one employer, Fischer Lumber, relating to a 2006 accident and a claim against a second employer, National Freight Industries, relating to a 2008 motor vehicle accident. Both claims involved back injuries. Following a section 19(b) hearing in the consolidated cases, the Commission found both accidents compensable, but concluded the 2008 accident constituted an intervening accident that terminated the first employer s responsibilities forward. Moreover, the Commission found the claimant could not recover permanency benefits associated with the first accident due to the intervening accident. On appeal, the court upheld the finding of an intervening act, but reversed and remanded on the issue of permanency associated with the first claim. First, the court concluded the Commission erred in determining permanency on a section 19(b) proceeding. Moreover, the court held that the claimant was entitled to permanency associated with the first injury separate and apart from the second injury. III. TRAVELING EMPLOYEE A. Temporary Employee Hired for Specific Jobsite The Venture-Newberg-Perini, Stone & Webster v. Illinois Workers Compensation Comm n, 2013 IL The claimant had been hired out of a union hall to work at a job site some 200 miles from his home. The claimant was injured while traveling to work from the hotel in which he was staying while performing the work. The Commission awarded benefits, but the circuit court reversed. In a 3-2 decision, the appellate court reversed, finding the claimant was a traveling employee and thus governed by the reasonable foreseeability standard; the case was accepted by the Illinois Supreme Court. The Supreme Court reversed and found the claimant was not a traveling employee at the time of his accident. The Court noted the claimant was not a permanent employee of the employer and he was not working for Venture on a long-term exclusive basis. It further found that nothing in [the claimant s] contract required him to travel out of his union's territory to take the position with Venture. Venture-Newberg, 2013 IL , at 24. The claimant, it was noted, made the personal decision that the benefits of the pay outweighed the personal cost of traveling. [The claimant] was hired to work at a specific location and was not directed by Venture to travel away from this work site to another location. Rather, [he] merely traveled from the premises to his residing location, as did all other employees. Id. The Court also found it significant that Venture did not reimburse the claimant for his travel expenses, nor did it assist him in making his travel arrangements. 7

8 The Court also rejected the appellate court s conclusion that the demands and exigencies of the job necessitated a finding of compensability. According to the Court, the claimant s course and method of travel was not directed by Venture. While [the claimant s] decision to stay at a motel closer to the work site was a logical one, as the work site was 200 miles from his home, it was a personal decision. Nothing in [the claimant s] contract required him to travel out of his union's territory to take the position with Venture. Instead, it was [the claimant s] personal preference to accept the position and the travel distance that it entailed. Id., at 31. B. Two Job Sites in Town Kertis v. Illinois Workers Compensation Comm n, 2013 IL App (2d) WC. The claimant worked as a branch manager for a bank and oversaw two office locations. He regularly traveled between these two locations for work, sometimes in the same day. On the day of accident he had traveled to one of the locations and while walking into the bank, he fell in a pothole while trying to avoid a passing car. The arbitrator and a majority of the Commission concluded the fall was not compensable based on a lack of increased risk in the area where the claimant fell. The appellate court reversed, concluding the claimant was a traveling employee. It is not necessary for an individual to be a traveling salesman or a company representative who covers a large geographic area in order to be considered a traveling employee. *** Rather, a traveling employee is any employee for whom travel is an essential element of his employment. Kertis, 2013 IL App (2d) WC, at 16. Once deemed a traveling employee, the claimant is in the course of his employment from the time that he leaves home until he returns. Moreover, 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. Id. According to the court, the undisputed facts established that the claimant's job duties required him to travel between the two bank branch locations on a regular basis. Thus, travel was clearly an essential element of the claimant's job, rendering him a traveling employee as a matter of law. Regarding the reasonably foreseeable requirement, the court said the claimant was injured while walking in a municipal parking lot approximately one block from the St. Charles office. The claimant's job duties required him to travel from the Hoffman Estates office to the St. Charles office on a regular basis, and the employer did not provide employee parking at the St. Charles office. Accordingly, the claimant was required to park on the street or in a nearby parking lot. It was both reasonable and foreseeable that the claimant would regularly park in a municipal parking lot close to the St. Charles office and walk to the office from that lot. Id., at 19. C. Preparing for Work Mlynarczyk v. Illinois Workers Compensation Comm n, 2013 IL App (3d) WC. The claimant worked for a cleaning service cleaning churches, homes, and offices. Her husband worked for the respondent as well, and as part of his job he occasionally drove a minivan 8

9 provided by the employer. The husband used the minivan to drive to and from work and for personal errands, as well as for employment. On the day of the accident, the claimant and her husband had a job cancellation, and went home before heading out later in the day for an earlyevening cleaning. The claimant was returning to the minivan to go to the final jobsite of the day when she slipped and fell on the snow on the driveway of her residence. The fall occurred in an area adjacent to a public sidewalk leading from the drive to her house. The Commission found the claim was not compensable and denied compensation. On appeal, the appellate court reversed, finding that the claimant was, as a matter of law based on the uncontroverted facts, a traveling employee at the time of her fall. According to the court, a traveling employee is one who is required to travel away from her employer's premises to perform her job. It is not necessary for an individual to be a traveling salesman or a company representative who covers a large geographic area to be considered a traveling employee. Mlynarczyk, 2013 IL App (3d) WC, at 16. In the present case, the claimant did not work at a fixed jobsite. Rather, her duties required her to travel to various locations throughout the Chicagoland area. On the issue of reasonable foreseeability, the court found for the claimant. The evidence established that claimant's injury occurred after she left home, while walking to a vehicle used to transport her to work. Thus, because claimant is a traveling employee, the injury occurred in the course of her employment. Id. at 19. A traveling employee is deemed to be in the course of his or her employment from the time the employee leaves home until he or she returns. A traveling employee is compelled to expose herself to the hazards of the street and to the hazards of automobile much more than the general public. Since claimant is a traveling employee, her exposure to the hazards of the streets is, by definition, greater quantitatively than that of the general public, as long as her conduct at the time of the injury was reasonable and foreseeable to the employer. [The] claimant testified that the accident occurred as she was walking to the vehicle used to transport her to a work assignment for respondent. [Her] walk to the minivan constituted the initial part of her journey to her work assignment. As such, it was reasonable and foreseeable. Id., at 19. IV. PERMANENCY BENEFITS A. Determining Wage Differentials United Airlines, Inc. v. v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC. In determining the employee s wage differential, the Commission compared the wages earned in the second job against the wages from the original job, but factored in the sliding union pay scale and ordered the wage differential to terminate in the future when the former wages would have risen to the level of the new wages. The appellate court reversed, finding that the wage differential award must be based upon the average amount of the claimant s wages at the time of the accident and the average amount which the claimant is earning or able to earn in some suitable employment after the accident. The statute, under its plain and ordinary language, does not contemplate multiple figures to be computed and awarded at future dates. 9

10 V. PROCEDURE A. Mailbox Rule Gruszeczka v. Illinois Workers Compensation Comm n, 2013 IL The mailbox rule first espoused in Harrisburg-Raleigh Airport Authority v. Department of Revenue, 126 Ill. 2d 326 (1989), and later embodied in Supreme Court Rule 303(a), applies when a party appeals a decision of the Workers Compensation Commission to the circuit court under section 19(f). The proceeding for review commences when the request for summons is placed in the mail, rather than when it is file-stamped by the clerk. B. Section 19(f) Bond Requirement Illinois State Treasurer v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC. The Illinois State Treasurer, as ex officio custodian of the Injured Workers Benefit Fund, filed a section 19(f) judicial review of a Commission s decision awarding compensation against an uninsured employer. The State Treasurer did not file an appeal surety bond as required by section 19(f)(1). The Appellate Court initially reversed the Commission s decision, but then on rehearing, vacated its opinion and reinstated the Commission s decision because the State treasurer had failed to comply with section 19(f). The court held that the State Treasurer was not filing a review on behalf of the state, but rather as the employer, who under the Act was required to file an appeal bond as the party against whom an award was rendered. The court noted that had the State Treasurer filed an appeal on behalf of the State, the appeal would have been expressly barred. Moreover, the State Treasurer did not qualify as a municipality under the Act and was not otherwise excluded from the bonding requirements. C. Insurer Intervention/Section 4(g) QBE Insurance Co. v. Illinois Workers Compensation Comm n, 2013 IL App (5th) WC. A workers compensation insurance carrier cannot intervene on behalf of an employer in order to prosecute a judicial review under section 19(f) where the carrier was not named in the original action by the claimant s application. The claimant prevailed on a section 19(b) petition and the employer s insurer, QBE, who had not been named as a party in the original application, sought to review the case before the Commission on behalf of the employer. QBE asked to be added as a named party in the case and in its motion made reference to section 4(g) of the Act, which states that the insurance company, if the employer does not pay compensation, shall become primarily liable to the employee. The motion was granted and the case was decided, and then proceeded to the circuit court and appellate court. On its own motion, the appellate court addressed its jurisdiction and concluded that the motion to add QBE was improvidently granted. The appellate court concluded that section 4(g) created 10

11 a right for an employee to proceed directly against an insurance carrier where the employer does not pay the award, but neither mandates the carrier be made a party to a proceeding nor even be advised of a proceeding. The court concluded that no provision of the Act provided for intervention following a section 19(b) award by an insurer who was not a party to the proceedings and where the claimant chose to bring his claim only against the employer. D. Section 19(h) Applies to TTD Claims Filed After Final Awards Curtis v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC. The claimant received an award of benefits and later filed a petition seeking additional medical and TTD benefits for the period off work to receive the medical treatment. The claimant alleged his condition had destabilized. The appellate court held that a claim for TTD benefits filed after the final Commission award is subject to the 30-month filing requirement of section 19(h). The decision also reiterated that section 19(h) s 30-day period commences on the date of the arbitration decision or the Commission decision, whichever is later. VI. Other Areas A. Employer s Credit Wood Dale Electric v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC. An employer cannot take a credit against TTD obligations for normal pension benefits paid to the claimant, where those pension benefits would be payable to the claimant regardless of the workers compensation injury. B. Lack of Specificity in Awarding Medical Pursuant to the Fee Schedule. Springfield Urban League v. Illinois Workers Compensation Comm n, 2013 IL App (4th) WC. A Commission decision ordering the employer to pay medical expenses related to the claimant s injury pursuant to the medical fee schedule is sufficient to obligate the employer to pay medical expenses even though the order does not specifically address the amount owed. The employer must adjust the medical bills to conform to the fee schedule of section 8.2 of the Act. A remand is not required to establish the precise amounts. Brad A. Elward is a partner at Heyl, Royster, Voelker & Allen, Peoria, where he concentrates in appellate practice and workers compensation appeals. He is the current President of the Illinois Appellate Lawyers Association and Chair of the Peoria County Bar Association s CLE Committee. Brad received his law degree from Southern Illinois University School of Law (1989, magna cum laude), and a B.S. in Economics from the University of Illinois, Urbana-Champaign (1986). He frequently speaks on workers compensation and appellate topics and is a former Adjunct Professor of Paralegal Studies at Illinois Central College. 11