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Brief Answer: Yes. Under Illinois Worker’s Compensation Law, a respondent will be liable to pay “reasonable and necessary” medical expenses, if a treating physician, an IME physician, or both agree that it is medically necessary to first cure a pre-existing medical condition, such as obesity, before safe and successful treatment of a compensable work-related injury. The pre-treatment must be specifically recommended by the physician. Furthermore, in cases with this particular outcome, the petitioner’s pre-existing condition was exacerbated by the work-related injury or a new injury formed. However, preliminary treatment of the pre-existing injury need not be causally related to the work injury for the respondent to assume liability for medical expenses. If a treating physician recommends that the petitioner undergo bariatric surgery prior to receiving treatment for a work-related injury, a client is advised to (1) determine whether the treating doctor specifically recommended the procedure, (2) obtain a second opinion and schedule an IME, (3) conclude that all weight loss measures have been discussed and exhausted, and (4) evaluate the financial implications of one gastric bypass surgery or weight loss treatments versus multiple failed attempts to treat the work injury. Resultant weight gain, regardless of causal relation to the work injury must also be considered in determining whether bariatric surgery will be deemed by the commission as “medically and reasonably necessary.”
Discussion: Under Illinois Worker’s Compensation law, where a petitioner has a pre-existing condition that must first be cured in order to successfully treat a compensable work-related injury, a respondent is liable to pay medical expenses for the preliminary treatment regardless if the pre-existing condition is “related” to the work injury. Timothy Wilson v. Siegles Home & Building, 02 IL. W.C. 18002 (Ill. Indus. Com’n 2008). A petitioner must show through the advisement of a treating physician or through secondary opinions that the preliminary treatment is “reasonable and necessary” and incurred as a “necessary part” of treating the compensable work injury. Wesley J. Whitten v. Central Cartage, 94 IL. W.C. 49516 (Ill. Indus. Com’n 1999); Edwina Ellegood, v. Burwell Oil Serv., 04 IL. W.C. 26563 (Ill. Indus. Com’n 2008). Furthermore, this rule holds true if a compensable work-related injury either exacerbates a pre-existing condition or causes a new condition to form. Timothy Wilson, 02 IL. W.C. 18002. A pre-existing condition “exacerbated” by a work-related injury, is a “reasonable and necessary” medical expense and is causally related if pre-treatment is necessary to safely cure an underlying work injury. In Wesley J. Whitten v. Central Cartage, the petitioner sustained a compensable work injury after he slipped on ice and fractured his hip. 94 IL. W.C. 49516. The petitioner had a pre-existing, ten-year history of peptic ulcers. Prior to authorized hip surgery, the petitioner’s treating physician found evidence of an actively bleeding ulcer, which was confirmed through an ordered endoscopic exam. The ulcer was first treated to stop the bleeding before the hip surgery proceeded. First, the arbitrator found that the respondent’s unpaid medical bills for the GI treatment were reasonable and necessary medical expenses incurred as a necessary part of conducting hip surgery. Because the petitioner had lost blood from his hip fracture, the arbitrator reasoned that the petitioner could not have had hip surgery without first doing the GI work-up to evaluate the safety of the surgery. Second, the petitioner’s treating physician testified that the petitioner’s pre-existing condition was aggravated by the work-related injury. The arbitrator reasoned from this testimony that all medical treatments, including the GI work-up, were causally related if they were incurred to cure the petitioner’s work injury.
Preliminary treatment of an exacerbated pre-existing condition or newly acquired condition that results from a work injury need not be causally related to become a “reasonable and necessary” medical expense. In Timothy Wilson v. Siegles Home & Building, the petitioner sustained a work-related neck injury. 02 IL. W.C. 18002. The petitioner was obese with a large frame. A post-myelogram CT scan showed multi-level abnormalities, including nerve root and spinal cord compression, which in the treating physician’s opinion required surgery. At the request of the respondent, an IME physician opined that the petitioner did not need surgery. The petitioner’s inactivity from his injury caused him to gain more weight and as a result, developed Diabetes Mellitus. The respondent denied any requested surgery.
After the arbitrator approved a settlement contract, the respondent approved and paid for a cervical anterior disc fusion at multiple levels. Due to the petitioner’s anatomy, the treating physician was unable to successfully perform the surgery, and recommended a second surgery. As a result of the first surgery, the petitioner developed complications, including a deep vein thrombosis, pulmonary emboli, and a pilondial cyst near his coccyx that, because of an infection risk, needed to be surgically removed before the second surgery. The treating physician also recommended pre-surgical treatment including a weight loss plan, nutritional counseling, and injections to control his diabetes. The respondent refused to authorize any of this treatment. The Commission held based on these facts that the respondent was liable for the costs of all medical treatments recommended by the treating doctor, including the medical expenses for the preliminary treatment of the petitioner’s diabetes and the pilondial cyst “regardless” of whether those conditions were related to the work-injury. The Commission reasoned that “treatment of these conditions was reasonably necessary to cure the Petitioner of the effects of the accidental injury.”
A treating physician “must recommend” that pre-treatment, such as gastric bypass surgery, is a medical necessity prior to treating a work injury. The pre-treatment cannot be a secondarily beneficial to the petitioner. In Edwina Ellegood, v. Burwell Oil Serv., petitioner sustained a work-related knee injury. Post-injury the petitioner had undergone gastric bypass surgery, and as a result had lost one-hundred pounds. 04 IL. W.C. 26563. The respondent disputed liability for payment of the gastric bypass procedure. The arbitrator found that although the petitioner’s leg condition improved as a result of the surgery, the petitioner ultimately failed to prove the procedure was reasonable and necessary. The arbitrator reasoned that the improvement to her leg from the gastric bypass was a secondary benefit. Although evidence from the treating doctor retroactively stated the petitioner benefited, the doctor did not specifically recommend any type of weight loss prior to the gastric bypass. Although not law, Hennessy and Roach’s defense of respondent, City of Chicago, in Dave Antunez, v. City of Chicago, 06 WC 36891, provides an example of a how to approach a treating doctor’s recommendation for bariatric surgery. Here, a morbidly obese petitioner sustained a back injury during the course of employment. The petitioner’s treating doctor recommended that he undergo a lumbar fusion. It was determined by the physician that the fusion would have a better success rate if the petitioner first underwent gastric bypass surgery in an effort to relieve stress and strain on the treated area. The physician reasoned that, because the petitioner was morbidly obese and had actually gained weight as a result of the immobilizing nature of his injury, other forms of weight loss would be futile. Respondent scheduled two IMEs for second opinions. The IMEs also confirmed that the fusion would be more successful if the petitioner underwent gastric bypass surgery. The respondent conceded and reasoned that the cost of multiple fusion attempts would be greater than the cost of gastric bypass surgery. Otherwise, the respondent would have disputed the surgery.
Although not governing in this jurisdiction, a recent Indiana case awarded gastric bypass surgery to a six-foot, 340 pound petitioner who sustained a back injury in the course of employment. PS2, LLC., v. Childers, 910 N.E.2d 809 (Ind. App. Ct. 2009). As a result of the immobilizing nature of his injury the petitioner started to gain weight. The petitioner’s treating physician, as well as an IME doctor, suggested that he should seriously consider lap-band surgery in order to decrease the risk and increase the success of the prescribed spinal fusion. The Indiana Appellate Court held that claimant’s weight condition, combined with his work-related injury to his back, produced a single injury. Therefore, the claimant was entitled to receive secondary medical treatment, in the form of lap-band surgery. This would help the claimant lose weight, as a precursor to back fusion surgery to treat the work-related back injury. There was no evidence that claimant had a weight condition prior to his injury that impaired his health or required intervention. Furthermore, the claimant’s lower back pain following the injury rendered him nearly immobile, which contributed to weight gain.
Conclusion: In conclusion, following Illinois Worker’s Compensation law, a respondent will be liable to pay reasonable and necessary medical expenses, if a treating physician, an IME physician, or both agree that it is medically necessary to first cure a pre-existing medical condition, such as obesity, before safe and successful treatment of a compensable work-related injury. The pre-treatment must be specifically recommended by the physician. Furthermore, in most cases with this particular outcome, the petitioner’s pre-existing condition was exacerbated by the work-related injury or a new injury formed. However, preliminary treatment of the pre-existing injury need not be causally related to work-related injury for the respondent to assume liability for medical expenses. Once again, if a treating physician recommends that the petitioner undergo bariatric surgery prior to receiving treatment for a work-related injury, a client is advised to (1) determine whether the treating doctor specifically recommended the procedure, (2) obtain a second opinion and schedule an IME, (3) conclude that all weight loss measures have been discussed and exhausted, and (4) evaluate the financial implications of one gastric bypass surgery versus multiple failed attempts to treat an underlying condition. Weight gain, whether or not causally related to the work-related injury must also be considered in determining whether bariatric surgery will be deemed “medically and reasonably necessary.”
Generally, amounts paid as reimbursement for travel expenses are not part of an employee’s earnings for average weekly wage (AWW) calculation. The rationale behind this rule is that such payments merely reimburse the employee for employment-related expenses that would otherwise not be incurred, and therefore, the employee will not suffer any economic loss if she fails to receive such reimbursements once the employment ceases. However, payments designated as travel expenses should be included in an employee’s AWW to the extent that such payments represent real economic gain rather than reimbursement for actual expenses incurred.
Summary: Employee was injured on two separate occasions while she worked as a flight attendant for the employer. In addition to an hourly rate of pay and premiums for certain positions, flight attendants were paid an hourly per diem expense allowance for living expenses, as flight attendants are commonly expected to stay overnight. The employee testified that only a portion of her per diem payments would be used on certain trips. At issue was whether these per diem payments should be included in the employee’s AWW calculation.
The Commission included all per diem payments in the employee’s AWW. The appellate court reversed the Commission’s decision as it was against the manifest weight of the evidence. It specifically noted that the employee was in fact using per diem money for travel expenses, thus the entire payment that the employee received did not constitute real economic gain and should not have been included when the Commission computed the employee’s AWW. The case was sent back to the Commission to determine whether and to what extent these payments exceed the employee’s actual expenses.
Effect: Per diem expense allowances, to the extent they are used for travel expenses, are not included in the calculation of AWW. The employee has the burden to prove whether and to what extent the per diem payments exceed the employee’s actual expenses in order for the excess amount to be included in AWW.
Summary: The employee became a part-time deliveryman after signing an agreement labeling him as an independent contractor. Pursuant to the written contract, the employee was paid per delivery and he was required to secure personal liability insurance on his automobile for business purposes. The contract further stated that the employee would be free from control or direction over the performance of his delivery service. The employee could refuse a delivery order, and could choose any route he wanted when making a delivery. The Commission found the employee to in fact be an employee for the employer, but the Supreme Court determined this finding to be contrary to the manifest weight of the evidence. The court noted that the employer exercised no control over the employee and contractually they were denied the right to exercise control. Additionally, the court noted the employee was paid according to the number of deliveries made, and the employee had to supply his own car and pay his own expenses including insurance with extended coverage for business usage.
Effect: The intention of the parties must be considered in order to establish whether an employer-employee or independent contractor relationship exists, but it is well established that no single factor is determinative on this issue.� The independent contractor/employee analysis can essentially be summarized in three words: right to control.� The “classic and principal test” to be applied is whether the claimed employee has the right to control the manner and method in which his work is carried out, independent of the employer’s control.� Please note that it is the right of control, not the fact of control, which is the principal distinguishing factor.� In addition to right of control, other indicia to be considered are the amount of supervision and control, the method of making payment, the right to discharge, the skills required, the source of materials and tools, and the work schedule.
Facts and Procedural PostureClaimant filed a Claim for Compensation alleging injury to the body as a whole and a psychiatric injury sustained on November, 24, 2008 after she was assaulted by a co-worker on the employers’ premises. In the section of the Claim form titled “average weekly wage”, claimant alleged the “max rate”. It was undisputed that the Employer filed its Answer to the Claim late and not within the 30 day period prescribed in 8 CSR 50-2.010(8). Claimant prevailed at trial and was awarded 45% BAW in PPD benefits payable at the maximum rate of compensation of $376.55 per week. The ALJ felt that the Employer had admitted the maximum rate for claimant’s AWW and corresponding rates due to not filing their Answer timely.
The Commission then reversed the ALJ’s award, finding that the allegation of a “max rate” was not an issue of fact and therefore not admitted due to the late filing of the Answer. Instead, it awarded PPD at the minimum rate of $40.00 per week due to claimant not presenting any evidence at trial regarding her earned wages.
IssueIs the allegation of a “max rate” for the average weekly wage on a formal Claim for Compensation an allegation of “fact” that is deemed admitted if the Employer does not timely file its Answer?
RuleThe allegation of an employee’s wage rate on the formal Claim for Compensation is a statement of “fact”.
HoldingThe Missouri Court of Appeals for the Eastern District reversed the Commission’s decision and found that the allegation of a wage rate is an issue of fact. Therefore, as the Employer’s Answer was not timely filed, the “max rate” allegation on the Claim was deemed admitted and claimant was entitled to payment of PPD benefits at the maximum rate of $376.55.
AnalysisThe Court relied upon case law (Aldridge v. Southern Missouri Gas Co., 131 S.W.3d 876 (Mo. App. S.D. 2004) which indicated that when a specific wage rate is alleged on the Claim for Compensation, this is deemed a statement of fact. Therefore if the Employer’s Answer is not timely, this fact is admitted. The Court rejected the argument that this case law did not apply because the Claim in this case pled the AWW at the “maximum rate”. In doing so, it stated that Section 287.190.5(5) provides for a specific method of computing the maximum average weekly wage based on the current state average weekly wage. As the methods for calculating the state average weekly wage are also provided specifically by statute, the Court reasoned that the allegation of a “max rate” was immaterial to the analysis under Aldridge.
The award from the Court pertained to only PPD benefits as those were the only benefits in dispute at the time the case was decided. However, dicta in the case also indicated that the analysis above would also apply to TTD benefits and result in payment of the maximum rate according to the specific date of injury.
Summary: Employee was employed as a carton packer for the employer. After the completion of his shift, the employee left the building through the door normally used by employees en route to his car which was parked in the employee parking lot. To get to the car, the employee had to step from an 8-inch curb onto the blacktop driveway. The employee was injured when he stepped down and twisted his ankle on ground with a slight slope for drainage. At issue is whether the injury arose out of his employment.
For an injury to be compensable under the Act, the injury must “arise out of” and “in the course of” employment. The phrase “in the course of” refers to the time, place and circumstances under which the accident occurred, and since the injury occurred on the premises this was not at issue in this case.
For an injury to “arise out of” the employment there must be some risk connected with, or incidental to,, the employment so as to create a causal connection to the employment. If an employee is exposed to a risk common to the general public to a greater degree than other persons, the accidental injury is also said to arise out of his employment. If the injury results from a hazard to which the employee would have been equally exposed apart from the employment, the injury will not be compensable.
The appellate court found the injury to be compensable, noting the slight slope of the pavement and the need for the employee to step from the curb to reach his vehicle not being an act required of the general public. The Illinois Supreme Court reversed and found the injury not compensable, however, as it refused to adopt the position that whenever an injury is suffered on work premises during work hours is compensable regardless of the conditions. It noted that there was nothing on the record which distinguished this curb from any other curb.
Effect: Because an injury is suffered on work premises during work hours, the injury will not automatically render the injury compensable. There must be some condition or nature of the employment that increases or contributes to the risk that led to the injury.
SB 1912 MEMORANDUM
SB 1912 becomes effective January 1, 2014. It adds to the Illinois Code of Civil Procedure Section 2-2301. This new section substantively affects settlement of personal injury, property damage, wrongful death and tort actions seeking money damages. The main provisions are as follows:
- Within 14 days of written confirmation of settlement, the settling defendant must tender to plaintiff a release.
- “Tender” means personal delivery or delivery providing a return receipt.
- If there are healthcare liens, public or private, the Plaintiff may now protect the lien holder’s interests by tendering to the defendant:
- A signed release of lien;
- A letter from plaintiff’s attorney agreeing to hold the full lien amount in a trust fund account pending final resolution of the lien;
- An offer that defendant hold the full lien amount pending final resolution of the lien;
- Documentation of an agreement of the parties on resolving the lien;
- Documentation of an agreement between plaintiff & CMS or IDHFS or private lien holder as to settlement of the lien.
- A settling defendant must pay to plaintiff all sums due plaintiff within 30 days of tender by plaintiff of the executed release and other required documentation in this section.
- If timely payment is not made, the court can enter judgment in the amount of the executed release, plus costs and statutory interest; the interest dates back to the date of tender.
- The parties may otherwise agree that this section does not apply.
- The State of Illinois & units of local government are exempt from this section.
HENNESSY & ROACH RECOMMENDATIONS:
- Make settlement negotiations contingent on the parties opting out of this provision. Do this in writing.
- Note this section only applies if a lawsuit is pending, not a pre-suit settlement.
- As the case moves towards settlement, address liens and obtain agreements in writing with lien holders to avoid settlement delays.
- Make settlement contingent upon Plaintiff’s agreement to terms set forth in the release of all claims. Prepare release ahead of time and have client’s permission as to the final terms.
- Be the master of your offer, set forth all conditions that must be satisfied by plaintiff before acceptance can occur.
- Be aware of the 14-day release tender provision, and the 30-day payment provision.
POTENTIAL PROBLEMS CREATED BY THIS NEW PROVISION:
- If there is conversion by plaintiff’s attorney of settlement monies held in trust to the prejudice of a lien holder, is defendant still liable for the lien?
- Is there conflict of laws between this section and federal law regarding Medicare liens.
- There is lack of statutory clarity on “agreements” between the parties that do not need to be in writing but satisfy the section allowing for an agreement between the parties. There could be additional litigation created by this section
- The section is drafted from plaintiff’s perspective, not from the perspective of protecting the defendant.
Operative FactsThe petitioner was a pipefitter and member of Plumbers & Pipefitters Union Local 137 (Local 137) based in Springfield. Venture-Newberg is a contractor that was hired to perform repair work in Cordova, Illinois, operated by Exelon Corporation. Cordova is approximately 250 miles from Springfield and based within the home of Plumbers & Pipefitters Union Local 25 (Local 25). Venture-Newberg discussed its manpower needs with Local 25 and Local 25 posted the positions to its membership. Due to insufficient membership, Local 25 sought members from other locals, including Local 137 to work for Venture-Newberg at the Cordova plant project. The petitioner accepted a position at the Cordova plan project.
The petitioner went to work at the Cordova plan and spent the night at a hotel nearby. On the petitioner’s way from the hotel he was staying at to his second day on the Cordova job, he was injured in a motor vehicle accident. The petitioner testified that he had to stay at a hotel because the jobsite was too far from his residence and he had to work long days and sometimes could be called in or asked to stay late. Venture-Newberg did not require the petitioner to stay at a certain place, within a certain distance, or to come in for an emergency on the date of the accident. The petitioner was not paid travel or lodging expenses while working on the Cordova project.
The arbitrator held that the petitioner failed to establish that the MVA arose out of and in the course of the petitioner’s employment with Venture-Newberg. The Commission reversed the decision of the arbitrator and held that the petitioner sustained an accident arising out of and in the course of his employment with Venture-Newberg. The circuit court set-aside the Commission’s decision. The appellate court reversed and reinstated the Commission’s decision. The Supreme Court reversed and affirmed the circuit court.
Core HoldingsThe petitioner made a personal decision to accept a temporary position with Venture at a plant 200 miles from his home. Venture-Newberg did not direct the petitioner to accept the position and the petitioner accepted the temporary position with full knowledge of the commute involved.
The petitioner’s course or method of travel was not determined by the demands and exigencies of the job. Venture-Newberg did not reimburse the petitioner for travel expenses or time spent traveling. Venture-Newberg did not direct the petitioner’s travel or require him to take a certain route to work. The petitioner made a personal decision to accept the position 200 miles away and the additional travel and risks that it entailed.
Legal SignificanceUnion employees will not be considered “traveling employees” when they accept temporary work which requires them to temporarily move to another location to perform their job duties. Such an employee traveling from a temporary residence to the plant who is injured in an MVA does not suffer a compensable work accident.
Plaintiff, filed suit against defendant, a retail store. Plaintiff filed suit to recover for injuries she sustained when she slipped and fell due to “an unnatural accumulation of liquid” on the floor in a the Defendant’s store. Plaintiff brought a negligent spoliation claim against the store alleging that retail store had a duty to preserve additional video surveillance of the area in which she slipped, in addition to the three minutes the retail store had already preserved which showed Plaintiff actually falling.Issue
Whether a retailer has a duty to preserve video surveillance relating to a slip and fall that occurred on their premise.Rule
Under Illinois law, there generally is no duty to preserve evidence, but such a duty may arise through an agreement, a contract, a statute, a “special circumstance” or by affirmative conduct. Cosgrove v. Commonwealth Edison Co., 734 N.E.2d 155, 161 (Ill. App. Ct. 2000). A defendant owes a duty of care to preserve evidence if a reasonable person in the defendant’s position should have foreseen that the evidence was material to potential civil action. Cosgrove 734 N.E.2d at 161.Analysis and Conclusion
The United States District Court for the Northern District of Illinois granted summary judgment in favor of the retail store.The court indicated that determining whether there is a duty to preserve evidence requires a “two pronged inquiry.” First, one must determine whether such a duty arises by agreement, contract, statute, special circumstance, or voluntary undertaking and then determine whether that duty extends to the evidence at issue – i.e., whether a reasonable person should have foreseen that the evidence was material to a potential civil action. A plaintiff must satisfy both prongs of the test in order to show a duty upon the defendant.Due to the fact that Plaintiff could not produce evidence that the retail store saved any video surveillance other than the three minutes showing her slip, the court ruled that the record did not show a voluntary undertaking by the retail store that would give rise to a duty to preserve video surveillance covering an indefinite time period prior to the occurrence of Plaintiff slip.Plaintiff then argued that the retail store should have preserved the additional video but the court rejected this contention. The court noted that Plaintiff had not provided any facts establishing an agreement, contract, statute, special circumstance, or voluntary undertaking relating to the additional video surveillance so as to satisfy the first-prong of the duty inquiry.The court additionally cited to an earlier case in which the same court stated, “neither the fact that the defendant was alerted to an accident, nor the mere opportunity to exercise control over the evidence is sufficient to create a duty to preserve evidence.” Olivarius v. Tharaldson Property Management, Inc., 695 F. Supp.2d 824, 829-30 (N.D. Ill. 2010). As a result, because Plaintiff could not satisfy either prongs of the test, the court granted summary judgment in favor of the retailer.
In 2002, the court in Hydrolics Inc. v. Industrial Commission determined that the doctrine enunciated in Petrillo v. Syntex, which disallows ex parte communications between an opposing party and a Petitioner’s doctor, does apply to Illinois workers’ compensation cases Therefore, it is important for employers to go through the provisions allowed in the Illinois Worker’s Compensation Act as well as the Commission rules to obtain information from treating doctors.
What is allowed under Petrillo?
Gilliland v. Niemann Foods Respondent attorney sent treating doctor medical records prior to the doctor’s deposition and gave a copy to the opposing attorney. The court found that this was a technical violation of Petrillo, but not a violation that warranted barring of the doctor’s deposition.
Hutchinson v. D to Z Sports In this case, an employer contacted the treating doctor to request another examination of the Petitioner. This was allowed by the court.
Compton v. Lynncrest Manor In this case, a doctor contacted a nurse case manager, asking for Petitioner’s job description. The court ruled that a doctor can initiate contact outside of the physician patient privilege.
What is not allowed under Petrillo?
Since the Petrillo decision, courts in Illinois have found that a number of things are not allowed under the Petrillo doctrine. The following are just two of the most common examples of actions which are not allowed under Petrillo.
Abriam v. DSI Corp. In this case, a doctor’s deposition was barred for a letter to the treating doctor asking questions about the physical condition of Petitioner or about causal connection of a claim.
Hostetler v. Lennar Homes The court here ruled that you cannot send surveillance tapes to a treating doctor, asking whether Petitioner in those films should see another doctor or have an MRI. In this case, after receiving this information, the doctor’s report was barred from evidence.
Can an adjuster contact a doctor to see if Petitioner can return to light duty work that is being offered?
Commission Rule 7110.70 When an employer takes the position that it has insufficient medical information to determine its liability for the initial payment of temporary total compensation, or the continuation of such payment, such employer shall have the initial responsibility to promptly seek the desired information from those providers of medical, hospital and surgical services of which the employer has knowledge.
We interpret this rule to mean that, if an employer or company has a question on this issue, this rule makes an argument that they can contact the doctor, give a description of the proposed light duty work and ask whether the Petitioner can return to that work.
Of note: Our interpretation of this rule has not been tested either at the Commission or in the Courts.
Summary: Employee worked as a chip and grind person before working as a tool crib attendant for the employer’s factory which manufactured highway pavers and blacktop equipment. The employee developed carpal tunnel syndrome which was found to be causally connected to his repetitive work activities.
Before an arbitrator, the employer filed a motion to suspend benefits. At the time, the employee had refused to attend a functional capacity evaluation (FCE). The employer argued that it had the right to suspend benefits under Section 12 for the employee’s failure to attend the FCE. An arbitrator held, and the Commission affirmed that the employer did not have the right to suspend benefits under Section 12 for this failure.
Effect: Under Section 12, an employee may be required to submit himself for examination by a qualified medical practitioner such as a physician or surgeon at the employer’s request, not to an industrial rehabilitation consultant or vocational rehabilitation expert.
Summary: Petitioner was employed as a painter for the Respondent and injured his back and left leg in an attempt to prevent a supply cart from tipping over. Petitioner attempted to show an “odd-lot” permanent disability status. A petitioner can meet this burden (1) by showing diligent but unsuccessful attempts to find work, or (2) by showing that because of his age, skills, training, and work history, he will not be regularly employed in a well known branch of the labor market. In this case, Petitioner relied on an occupational medicine specialist to support his contention that he was an odd-lot permanent total.
The appellate court ruled that the Commission’s reliance on the occupational medicine specialist was against the manifest weight of the evidence since the specialist was not a vocational expert and did not order a vocational evaluation of Petitioner. Petitioner had also failed to perform any sort of job search. The court noted that recent cases making an odd-lot determination rely on evidence from rehabilitation service providers or vocational counselors. The court also noted that two other physicians who reviewed the case did not feel that the petitioner was permanently and totally disabled.
Effect: An odd-lot permanent disability will not be found without evidence of a diligent job search or a vocational expert’s opinion that because of a claimant’s age, skills, training, and work history he will not be regularly employed in a well known branch of the labor market.
Summary: The issue to be determined is whether an employee sustains a work related accident if he is involved in an automobile accident while driving to an independent medical examination obtained at the employer’s request. While Vogel is not exactly on point, a review of this case would allow employers to argue that the automobile accident is not work related.
In Vogel, the employee sustained an undisputed accident while working for the employer on July 10, 1998. Subsequent to surgery, the employee testified he was doing fine until he was in an automobile accident while traveling to his first session of physical therapy for his work related claim. The employee went through physical therapy subsequent to the automobile accident but still was in pain. The treating physician noted the employee had a failed fusion and opined his problems were caused primarily by the automobile accident and not the work accident. However, the treating physician noted that at the time of the automobile accident, the employee’s cervical fusion was not yet solid. Subsequently, the employee was in two more automobile accidents. Vogel does not identify where the employee was traveling at the time of these two accidents. The employee complained of additional neck pain subsequent to these accidents. The employer then obtained an independent medical examination in which the doctor opined that the employee’s current condition was not a result of the subsequent automobile accidents.
The primary issue in Vogel was whether the employee’s three automobile accidents were intervening accidents that broke the chain of causation between the employee’s work accident and his current condition of ill-being. As noted above, the issue for the purpose of this memorandum is whether the first automobile accident (when the employee was driving to physical therapy for treatment related to the work accident) arose out of the employee’s employment. While the Court did not provide rationale, it noted that the employee’s automobile accidents were considered non-work related. Please note, while the Court found the automobile accidents to be non-work related, the Court noted that whether “other incidents, whether work-related or not, may have aggravated the claimant’s condition is irrelevant.” Therefore, in Vogel, the Court focused on the issue of causal connection in determining if the employee was entitled to benefits subsequent to the automobile accidents. The Court noted that while the automobile accidents aggravated the employee’s medical condition, the work accident was still a causative factor in his resulting condition. The Court explained that while the first automobile accident played a “major” role in the worsening of the employee’s condition, the physicians did not eliminate the undisputed work accident as a causative factor in the employee’s current condition of ill-being. The same analysis applied for the latter two automobile accidents. In conclusion, under Vogel, an employer can argue that an employee does not sustain a work related accident while driving to a doctor for treatment related to a work accident. The same argument can be made for an employer who is in an automobile accident while driving to an employer’s IME doctor. In either scenario, if the employee sustains injuries to new body parts as a result of the automobile accident, the employer can deny such an injury is work related. However, if the automobile injury aggravates the same condition caused by the work related claim, the employer will only be able to dispute further benefits if it obtains a medical opinion that states the employee’s current condition of ill-being is solely related to the automobile accident.
The amendments to Section 1 of the Act clarify the standard that an employee must meet in order to obtain compensation.Under the amendment, an employee bears the burden of showing, by a preponderance of the evidence, that he or she sustained accidental injuries arising out of and in the course of employment. The legislature added Section 1.1 establishing standards of conduct for Commissioners and arbitrators. The following standards have been enumerated: Matters are to be dealt with promptly, officially, fairly and without prejudice. A level of professional competence is expected. Appropriate disciplinary measures shall be initiated or taken against fellow Commissioners or arbitrators and against lawyers or others when warranted. The Canons of the Code of Judicial Conduct as adopted by the Supreme Court of Illinois shall govern the conduct of the Commissioners and arbitrators. Decisions of the Commission shall be based exclusively on evidence in the record.SECTION 4
Newly added to Section 4 of the Act is subsection (a-2).Subsection (a-2) requires every Employee Leasing Company (ELC), as defined by Section 15 of the Employee Leasing Company Act, to provide information regarding each workers� compensation insurance policy issued to the ELC with the following requirements: The ELC must provide 1) Any client company of the ELC listed as an additional named insured; 2) Any informational schedule attached to the master policy that identifies any individual client company’s name, FEIN, and job location; and 3) Any certificate of insurance coverage document issued to a client company specifying its rights and obligations under the master policy that establishes both the identity and status of the client, as well as the dates of inception and termination of coverage, if applicable. The legislature added Section 4(b) establishing a collective bargaining pilot program with the following parameters: The Director of the Department of Labor shall adopt a selection process to designate 2 labor organizations to participate in the collective bargaining process provided for in this Section. Upon appropriate filing, the Commission and the courts of this State shall recognize as valid and binding any provision in a collective bargaining agreement between any construction employer or group of construction employers and a labor organization, which contains certain obligations and procedures relating to workers’ compensation. Nothing in this Section shall be construed to authorize any provision in a collective bargaining agreement that diminishes or increases a construction employer’s entitlements under this Act or an employee’s entitlement to benefits as otherwise set forth in this Act. Any agreement that diminishes or increases a construction employer’s entitlements under this Act or an employee’s entitlement to benefits as set forth in this Act is null and void. A copy of the agreement and a statement identifying the parties to the agreement shall be filed with the Commission. Within 21 days of receipt of an agreement, the Chairman shall review the agreement for compliance with this Section and notify the parties of its acceptance. All rejections made by the Chairman under this subsection shall be subject to review by the courts of this State, the Circuit Court shall have power to review all questions of fact as well as of law. If the construction employer is insured under this Act, it shall provide notice to and obtain consent from its insurance carrier, in the manner provided in the insurance contract, of its intent to enter into an agreement as provided in this Section with its employees. Annually, each ADR plan administrator shall submit a report to the Commission including but not limited to the number of occurrences of work-related injuries�or diseases and the disposition of all claims. The legislature amended Section 4(d) regarding penalties for employers failing to comply with the requirement to carry workers� compensation insurance as follows: An investigator with the Illinois Workers’ Compensation Commission Insurance Compliance Division may issue a citation to any employer that is not in compliance with its obligation to have workers’ compensation insurance under this Act. The employer�s fine shall range from $500 to $2,500 payable to the Commission with proof the employer obtained the required workers’ compensation insurance within 10 days after the citation was issued. Upon a finding by the Commission of the knowing and willful failure of an employer to comply with a citation issued by an investigator with the Illinois Workers’ Compensation Commission Insurance Compliance Division, the Commission may assess a civil penalty of up to $500 per day for each day of such failure or refusal.
The amendments to Section 8 of the Act change the calculation of TPD benefits, add clarification to the determination of an employee�s first choice of medical provider, and limit wage differential benefits and awards for hand and repetitive trauma carpal tunnel claims as follows: The calculation of Temporary Partial Disability (TPD) benefits now utilize the gross earnings of the petitioner in the modified job rather than the net earnings as previously provided under the Act. When an employer has established an approved preferred provider program under the new Section 8.1a, the employer must inform the employee of the preferred provider program on a form provided by the Commission An employee may choose, in writing, to decline the preferred provider program, thus using one of his two choices of medical providers. If an employee seeks non-emergency treatment from a medical provider outside of the preferred provider program prior to reporting the injury to his employer, that provider will count as one of the employee�s two choices of providers. For any injuries occurring on or after September 1, 2011, a wage differential award shall only be effective until the employee reaches the age of 67. If an employee is over the age of 62 when a wage differential award is issued, the award shall be effective for 5 years. Permanent partial disability for an injury involving the hand is limited to 190 weeks of compensation for any injury occurring on or after the effective date of the amendments. Permanent partial disability for an injury involving carpal tunnel syndrome due to repetitive or cumulative trauma which occurs after the effective date of the amendments shall be limited to 15% loss of use of the hand. The Commission may award up to a maximum of 30% loss of use of the hand for such a claim only upon the showing of clear and convincing evidence. The legislature has added Section 8.1a of the Act allowing employers to establish preferred provider programs for the treatment of injured employees. A preferred provider program must be approved by the Illinois Department of Insurance. Once a preferred provider program has been established: An employee will only be allowed to select a provider from within the network unless he chooses to decline the program as provided under Section 8(a). An employer shall be responsible for medical treatment received by an employee within the preferred provider program pursuant to the same requirements as under Section 8(a) of the Act. The two doctor rule will apply to treatment within the preferred provider program. Once an injury is reported or a claim is filed, the employer is responsible for notifying the employee of his right to treat with a physician of his choice from the preferred provider program. An employee may choose a provider outside of the network at the employer�s expense upon a finding by the Commission that the care rendered by the employee�s second choice within the network is improper or inadequate. The legislature has added Section 8.1b of the Act establishing criteria for the determination of permanent partial disability as follows: A physician shall prepare a permanent partial disability impairment report providing the level of impairment.The report shall include an evaluation of specific measures of impairment upon which the impairment level is based. The physician shall use the American Medical Association�s �Guides to the Evaluation of Permanent Impairment� when establishing the impairment level. To establish a PPD award, the Commission will be required to base its determination upon the physician�s report, the employee�s occupation, the employee�s age at the time of the injury, the employee�s future earning capacity and other evidence of disability corroborated by the treating medical records. No single factor shall be the sole determinant of disability and the Commission must explain the relevance and weight of any factor used in addition to the level of impairment report in a written order. The amendments to Section 8.2 of the Act establish criteria for payments made to out-of-state providers, group the fee schedule amounts by region, reduce fee schedule amounts by 30% and establish restrictions for reimbursement of bills for implants, supplies and prescriptions dispensed outside a licensed pharmacy as follows: Providers of out-of-state treatment shall be reimbursed at the lesser of that state�s fee schedule amount or the fee schedule amount for the region in which the employee resides. As of January 1, 2011, fee schedule amounts shall be grouped by geographic region rather than the previously used �geozip� grouping. Where a fee schedule amount cannot be established by the Commission, reimbursement shall occur at 76% of the charges and fees until September 1, 2011 and at 53.2% of the charges and fees thereafter. Implants shall be reimbursed at 25% above the net manufacturer�s invoice price. Non-implantable devices and supplies shall be reimbursable at 65% of the actual charge. For services rendered on or after September 2, 2011, the maximum allowable payment shall be 70% of the fee schedule amount. Any prescription filled and dispensed outside of a licensed pharmacy shall be subject to a fee schedule not to exceed the Average Wholesale Price plus a $4.18 dispensing fee. An interest rate of 1% per month shall incur if payment is not made within 30 days of receipt of a bill which contains substantially all of the required data elements necessary to adjudicate the bill. If a bill does not contain enough information to process payment or the claim is denied for any other reason the employer or its insurer are required to provide written notification to the provider within 30 days of receipt of the bill. The legislature has added Section 8.2a requiring the Director of Insurance to adopt rules to: Ensure that medical bills are submitted in a standardized format Require acceptance of electronic claims for payment of medical services Ensure confidentiality of medical information submitted electronically The amendments to Section 8.7 of the Act modify the Utilization Review provisions as follows: All providers notified of an employer�s wish to invoke the UR process are required to make reasonable efforts to provide timely and complete reports of clinical information to support the request for treatment. Charges for services may not be compensable or collectable from the employer where the provider fails to make such reasonable efforts. Written notice of UR decisions must be furnished to the provider and employee. When payment has been denied or treatment has not been approved pursuant to UR, the employee has the burden of proof to show by a preponderance of the evidence that a variance from the standards of care used in the UR is necessary. The medical professional responsible for the final stages of the review or appeal must be available within the State, either in person or via telephone or video conference, for interview or deposition. An admissible UR shall be considered by the Commission and must be addressed along with all other evidence.
Amendments to Section 11, involving accidents which occur when an employee is under the influence of drugs or alcohol, were made as follows: No compensation shall be paid if an employee�s intoxication is the proximate cause of the employee�s injury or the employee�s intoxication was so severe that it constituted a departure from the employment. If at the time of injury the employee has a blood alcohol level that exceeds or is equal to .08 or is under the influence of unauthorized substances, then there is a rebuttable presumption that the employee�s intoxication was the proximate cause of the injury. The employee may overcome the rebuttable presumption by the preponderance of the evidence that the intoxication was not the sole proximate cause or proximate cause of the injury. All collection and testing for alcohol and drugs shall comply with the Rules adopted by the Commission.
Amendments to Section 13 regarding IWCC powers and duties; appointment and training were made as follows: Formal training for new members of the Workers� Compensation Commission shall include 1) professional and ethical standards pursuant to the newly adopted Section 1.1; 2) Detection of workers� compensation fraud and reporting obligations of Commission employees and appointees; 3) Established standards for evidence-based medical treatment; 4) Substantive and Procedural aspects of coal workers� compensation cases. Each Commissioner shall complete 20 hours of training in the above-mentioned areas every two years. Section 13.1 has been amended to require the Governor to request that the Advisory Board make recommendations for new appointment of Commissioners and arbitrators.Moreover, all terms of active Advisory Board members are terminated.The Governor shall appoint new members within 30 days.
Amendments to Section 14 include changes in the appointment and training of arbitrators as follows: Formal training for new arbitrators is to include 1) professional and ethical standards pursuant to the new Section 1.1; 2) detection of workers� compensation fraud and reporting obligations of Commission employees and appointees; 3) Standards of evidence-based medical treatment and best practices; 4) Substantive and procedural aspects of coal workers� compensation cases. Each arbitrator shall complete 20 hours of training in the aforementioned areas every two years. The terms for all arbitrators serving on the effective date of the amendments shall terminate at the close of business July 1, 2011 with incumbents continuing to exercise all of their duties until they are reappointed or their successors are appointed. All arbitrators shall be appointed to 3 year terms and subject to review after the three year period. Any individual who is appointed and has not previously served as an arbitrator for the Commission is required to be authorized to practice law and to maintain their license throughout their employment. The Commission shall assign no fewer than 3 arbitrators to each hearing site, cases shall be assigned at random and no arbitrator shall hear any cases, other than in Cook County, for more than 2 years of every 3 year term.
Amendments to Section 16 include the following: Sec. 16b. Gift ban (a) An attorney appearing before the Commission shall not provide compensation or any gift to any person in exchange for the referral of a client involving a matter to be heard before the Commission except for a division of a fee between lawyers who are not in the same firm in accordance with Rule 1.5 of the Code of Professional Responsibility. (b) Violation of this Section is a Class A misdemeanor.
SECTION 18 Amendments to Section 18 include the following:
All questions arising under this Act, if not settled by agreement of the parties interested therein, shall, except as otherwise provided, be determined by the Commission. Claims from current and former employees of the Commission shall be determined in accordance with Section 18.1 of this Act.
All claims by current and former employees and appointees of the Commission shall be assigned to a certified independent arbitrator not employed by the Commission designated by the Chairman. The decision of the independent arbitrator shall become the decision of the Commission. An appeal of the independent arbitrator’s decision shall be subject to judicial review in accordance with subsection (f) of Section 19.
Amendments to Section 19 include the following: Section 19(f)(1)
Formerly, in cases of claims against the State of Illinois, the decision of the Commission was not subject to judicial review. As amended, Section 19(f)(1) provides that decisions of the Commission in claims against the State of Illinois may be reviewed pursuant to newly added Section 18.1.
Previously, if the employee made a demand for payment of medical benefits under Section 8(a), the time for the employer to respond did not commence until the expiration of the allotted 60 days specified under Section 8.2(d).The 60 days is amended to 30 days.
Section 25.5 of the Act regarding unlawful acts and penalties has been amended to provide for a sentencing structure for fraud under the Act which is based upon the value of the property obtained or attempted to be obtained.Violations will range from a Class A misdemeanor to a Class 1 felony.Provisions have also been added to allow for monetary restitution to be paid by a person convicted under this Section and to allow an entity suffering a financial loss to pursue a civil action seeking restitution.
The legislature has added Section 29.1 which addresses the recalculation of workers� compensation advisory premium rates and assigned risk pool premium rates to incorporate the amendments to the Act. Section 29.2 has been added to establish insurance oversight.Under this Section, the Department of Insurance shall submit an annual report detailing the state of the workers� compensation insurance market in Illinois.The report will be posted on the Department of Insurance�s website.
On January 28, 2014, the Supreme Court of Wisconsin was equally divided regarding the application of the “economic loss doctrine” to a water softener that leaked and caused damage to flooring, drywall, and woodwork.
As a result the decision of the three judge Court of Appeals panel in State Farm Fire and Casualty Company v. Hague Quality Water, et al., 2012 WI App 392, was affirmed. The Court of Appeals determined that the “economic loss doctrine” did not preclude tort claims in a case where a water softener leak caused damage to drywall, flooring, and woodwork. The primary issue for the court was analysis of the leaky water softener under the disappointed expectations test of the economic loss doctrine.
The “economic loss doctrine” is employed by Wisconsin courts to bar purely economic loss in consumer transactions through tort remedies where the only damage is to the product purchased by the consumer. State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 225 Wis.2d 305, 341, 348, 592 N.W.2d 201 (1999). However, Wisconsin does permit recovery for economic losses when the product defect causes damage to “other property” as determined by a two-part analysis. Foremost Farms USA Coop. v. Performance Process, Inc. (Foremost I), 2006 WI App 246, 25, 297 Wis.2d 724, 726 N.W.2d 289.
The first part of the analysis is whether the defective product and damaged property are part of an integrated system. If the damaged property is part of an integrated system with the defective product then the damage is not considered damage to “other property” and the “economic loss doctrine” bars recovery. Id., 15-16.
If the damaged property is not part of an integrated system with the defective product then the analysis turns to what has been termed the “disappointed expectations” analysis. Id., 16-17. In this analysis, the court must determine if “prevention of the subject risk was one of the contractual expectations motivating the purchase of the defective product.” Grams v. Milk Prods., Inc., 2005 WI 112, 43, 283 Wis. 2d 511, 699 N.W.2d 167 (citation omitted). The analysis will turn on the “purpose for purchasing the product, the reasonableness of anticipating a risk of the product’s failed performance, the availability of warranties or risk sharing mechanisms, and the extremity of the facts.” Id., 40.
The respondent’s in Hauge argued that a reasonable purchaser of a water softener should have foreseen the risk of water leaking from its product and therefore cannot be disappointed when a leak happens. The court of appeals, citing Foremost I, determined such an argument was misplaced because it confused reasonable foreseeability with foreseeable interaction and it focused on a defect that results from the process used to perform a function rather than a defect in the function of the product itself. Hauge Quality Water, 17. The Court of Appeals took a very narrow approach in its analysis of the disappointed expectations test, essentially finding that the only way the “economic loss doctrine” would apply was if the water softener failed to “soften water.”
Justice David Prosser did not participate.
Facts: On July 1, 2005, Shmuel Rennert and his wife Devorah were driving behind a large truck which was towing a trailer designed by Great Dane. Rennerts minivan collided the trailer. The underride guard on the back of the trailer failed. The minivan slipped under the trailer. Shmuel Rennert was injured, his wife Deevorah, who was sitting in the passenger seat was killed.
Rennert brought a single count action in state court against Great Dane, alleging Great Dane was liable under Illinois strict product liability. Great Dane removed the case to federal court and filed a motion to dismiss for failure to state a claim. The 7th U.S. Circuit Court of appeals affirmed the dismissal by the Northern district of Illinois.
Issue: The issue was whether the Illinois Supreme Court recognizes a cause of action for strict products liability given this fact pattern.
Analysis: In Rennert, the 7th U.S. Circuit Court of Appeals for the Northern district of Illinois held that the Illinois Supreme Court holds that a manufacturer has a duty to design a vehicle that is reasonably safe for the occupants, but is owes no duty to those who collide with that vehicle. “Even if accidents are foreseeable, the court reasoned, the manufacturer is obligated to secure the occupants of only its vehicle from that foreseeable harm: the manufacturer does not owe a duty to protect those who collide with its vehicle.” See Rennert, quoting Mieher v. Brown, 54 Ill.2d 539, 301 N.E.2d 307 (1973).
The court went on to state that it was the Rennert’s bad luck that Illinois is not one of the nine states that recognizes the cause of action in his case. Beattie v. Lindelof, 262 Ill.App.3d, 372, 199 Ill.Dec. 236, 633 N.E.2d 1227 (1994).
he federal court sitting in diversity noted the Illinois Supreme Court has not ruled definitively on this issue, however, the court take its guidance from the above stated appellate courts unless there is persuasive indication that the state supreme court would rule otherwise. Liberty Mut. Ins. Co. v. Statewide Ins. Co., 352 F3d 1098, 1100 (7th Cir.2003).
Conclusion: Only nine states recognize a cause of action for strict products liability against the manufacture of a vehicle/trailer not brought by an occupant of that vehicle. Illinois is not one of them.
Facts and Procedural PostureRaven Industries (Raven), an electronics manufacturing plant, contracted with Garvin Group, the defendant, to strip, clean, wax, and buffer the floors of the plant. Plaintiff was an employee of Raven, and worked on the electrical assembly line on the plant floor. While Defendant was cleaning the floors, Plaintiff slipped and fell as she was walking through the plant. There were no warning signs or tape that indicated the floor was being treated and cleaned. She injured her wrist and brought a negligence suit against the contractor. At trial, she sought to introduce evidence that after the date of her fall, Raven directed Defendant to start using warning signs or tape to mark the areas of the floor being cleaned. This evidence was excluded as a subsequent remedial measure. The jury returned a verdict for Plaintiff with damages totaling $15, 000, but assessed fault against her and contractor at 80% and 20%, respectively. Therefore, the total judgment was for $3,000, and Plaintiff timely appealed.
IssueWhether evidence of a subsequent remedial measure taken by a non-party is admissible in a negligence action?
RuleThe general prohibition on admitting a subsequent remedial measure into evidence does not apply when the measure was taken by a non-party to the lawsuit.
HoldingThe Appellate Court reversed and remanded the Circuit Court’s decision. Because the remedial measure was taken by a non-party, the public policy behind the rule is not implicated. Since the implementation of remedial measures by a non-party do not expose that party to liability, the public policy favoring safety improvements is satisfied.
AnalysisGenerally, evidence of subsequent remedial measures is inadmissible in court to prove negligence or culpable conduct in connection with an event. However, this evidence is admissible for other purposes such as impeachment, or if controverted, as proof of ownership, control, or feasibility of precautionary measures. Pollard v. Ashby, 793 S.W.2d 394, 401 (Mo. Ct. App. 1990). The public policy behind subsequent remedial measures is to encourage parties to make remedial measures in order to prevent further injuries from occurring. If such evidence could be used against a party, it would dissuade parties from making improvements.
Here, the subsequent remedial measure was not undertaken by the defendant; it was undertaken by Raven, the manufacturing plant, which is a non-party to the lawsuit. Since the remedial measure will not expose Raven to liability, they are not discouraged from taking remedial measures and the public policy behind the rule is not implicated. Therefore, the exclusion of evidence relating to subsequent remedial measures should be limited to those taken only by the defendant. Additionally, each Federal Court of Appeals has addressed this issue under rule 407 of the Federal Rules of Evidence and concluded that subsequent measures taken by a non-party are not excluded. As an issue of first impression in Missouri Courts, the court held that the rule against the admission of subsequent remedial measures will not apply to measures taken by non-parties.
The Appellate Court of Illinois held that non-mandatory overtime shall not be included in the calculation of a claimant’s average weekly wage (AWW).
Summary: Petitioner was employed as a driver/dock worker who suffered three undisputed compensable injuries in the course of his employment for Respondent. At issue in this case is whether Petitioner’s overtime should have been included in calculating his AWW to determine the proper rate of TTD. The Act explicitly states that overtime is to be excluded in calculating a claimant’s AWW. 820 ILCS 305/10. In this case, Petitioner had worked in 32 of 52 weeks preceding injury, and worked overtime in 31 of those weeks. Petitioner held seniority which allowed him the option to refuse overtime, but he instead chose to work it.
The arbitrator awarded TTD based on an AWW of $901.41. On review the Commission modified the award setting the AWW at $1,246.86, a figure which included Petitioner’s overtime earnings not included in the arbitrator’s award. The appellate court reversed in part the Commission’s decision to include this overtime in Petitioner’s AWW. Noting that the Act fails to define “overtime,” the court looked to previous case law which ultimately includes mandatory overtime in AWW calculation as part of the employment. In this case, however, because Petitioner reserved the option to decline overtime hours, such overtime was considered voluntary and thus was not included in Petitioner’s AWW. Mandatory overtime remains part of AWW calculation.
Brief: The employee sustained a work related injury while working for the employer. The employee was eventually allowed and did in fact return to light duty work for the employer. While working in a light duty capacity, the employee was terminated for defacing company party. At issue, was whether the employee was entitled to the payment of temporary total disability (TTD) or maintenance benefits following his termination. The Arbitrator ruled the employee was not entitled to TTD benefits. The Illinois Workers’ Compensation Commission reversed the decision of the Arbitrator. The Circuit Court of Will County confirmed the Commission’s decision. However, the Appellate Court reversed the Commission’s decision and found that the employee was not entitled to TTD or maintenance benefits after he voluntarily removed himself from the work force for reasons unrelated to his injury.
On July 2, 2003, the employee sustained a work related injury. In February of 2005, the employee began working in a light duty capacity for the employer at one of its facilities. In April of 2005, the employee wrote religious inscriptions with permanent marker on the walls and shelves in a storage room on the employer’s premises. The employee confirmed that the writings did not pertain in anyway to his job duties with the employer and that he did not have permission to write on the walls and shelves. As a result, on May 25, 2005, the employee’s employment was terminated due to defacing company property.
The first issue on appeal was whether the Commission error in awarding the employee TTD benefits following his termination on May 25, 2005. The Appellate Court noted that it was well settled law that an employee seeking TTD benefits must prove not only that he did not work, but that he was unable to work. The dispositive inquiry is whether the employee’s condition has stabilized, i.e., whether the employee has reached maximum medical improvement. Once an injured employee has reached MMI, the disabling condition has become permanent and he is no longer eligible for TTD benefits. The Appellate Court noted that the period for which an employee is temporary totally disabled is a question of fact by the Commission, and its determination will not be disturbed on review unless contrary to the manifest weight of the evidence.
In this case, the Appellate Court stated that the Commission’s finding that the employee was temporary totally disabled at the time of this termination was not against the manifested weight of the evidence. When the employee was terminated, he had not been released to full duty work and had not reached MMI. While the employee was still temporary totally disabled at the time of his termination, the Appellate Court noted that the more interesting aspect of this appeal was whether the employee was entitled to TTD benefits following his discharge from the employer’s employ. The Court noted that neither party provided it with any authority addressing the impact of an employee’s termination on his entitlement to TTD benefits subsequent to the date of dismissal.
In analyzing this issue, the Appellate Court looked to two of its prior cases, City of Granite City v. Industrial Commission and Schmidgall v. Industrial Commission for some guidance. In both cases, the Appellate Court noted the critical inquiry in determining whether the employee is entitled to TTD benefits after leaving the work force centers on whether the departure was voluntary in nature. The Appellate Court also found instructive to its analysis cases from other jurisdictions which address an employee’s entitlement to TTD benefits following its discharge from misconduct. It was noted that some jurisdictions deny compensation to employees who, after resuming employment following a work related injury, are terminated for misconduct where the disability played no party in the discharge. The Appellate Court cited cases from Louisiana, Washington D.C., Mississippi, Michigan, and Virginia. Those Courts reasoned that an employee should not be rewarded with disability benefits where the unemployment was not related to the disability, but rather to a volitional act over which the employee exercised some control. The Michigan Appellate Court defined termination for “just cause” to include only those “voluntary acts of the employee”.
On the contrary, the Appellate Court noted that Courts in other jurisdictions have held that an employee’s discharge from light duty work for misconduct unrelated to the disability does not automatically bar the employee from receiving disability benefits. Those Courts allow the employee to collect benefits when he can establish at the work related disability hampers the employee’s ability to obtain or hold new employment. This position is taken in New Jersey, North Carolina, and Minnesota.
In deciding which approach to apply, the Illinois Appellate Court noted that the overriding purpose of the Illinois workers’ compensation scheme is to compensate an employee for lost injuries “resulting from a work-related disability”. The Court noted that considering this purpose in conjunction with the case law noted above, the Court found that to allow an employee to collect TTD benefits from his employer after he was removed from the work force as a result of the volitional conduct unrelated to his injury would not advance the goal of compensating an employee for a work related injury. Instead, it would provide a windfall by continuing to compensate the employee despite the fact that the cause of the lost earnings following the employee’s departure was unrelated to the injury. The Court noted that this approach coincides with the approach in Granite City, Schmidgall, and those jurisdictions that deny compensation to employees who are terminated for misconduct in that this approach focuses on the reason the employee was removed from the work force.
In the present case, the Court noted that the employee had been working in a light duty capacity. Furthermore, the employee admitted that he did not have permission from the employer to write on the walls and shelves in the storage room and that the writings did not pertain in any way to his job duties. The Court noted that it found no evidence to suggest the employee was terminated so that the employer could avoid the payment of TTD benefits. It was noted that although some of the employees knew of the employee’s actions weeks before his firing, the president of the company was not aware that the Employee had defaced company property until shortly before the termination. “Simply stated, but for his conduct in defacing respondent’s property, claimant would have continued receiving TTD benefits until his condition had stabilized.” As such, the Appellate Court reversed the decision of the Commission awarding the employee TTD benefits from the employer following his discharge for cause.
The next issue that was addressed by the Appellate Court was whether the employee was entitled to maintenance benefits following his termination. During the oral arguments, the Appellate Court was advised that at the time the employee was employed in the light duty capacity, he was receiving maintenance benefits. The court found the case of Nascote Industries v. Industrial Commission, instructive on this issue.
In Nascote, the claimant returned to part-time work following an injury in which the employer made voluntary payments to the employee. The Arbitrator classified these payments as maintenance and determined that the employer was not entitled to a credit for them against the permanency award. The Commission affirmed the Arbitrator’s decision. On appeal, the Appellate Court acknowledged that the Illinois Workers’ Compensation Act in effect for injuries prior to February 1, 2006 did not contemplate and award for temporary partial disability benefits. Yet, the Court concluded that an injured worker who had not yet reached maximum medical improvement and was working part-time within his or her restrictions might be entitled to maintenance benefits.
The Appellate Court noted that in this case, the employee was receiving maintenance benefits from the employer’s insurance carrier notwithstanding the fact that he was working in a light duty capacity. It was noted that an individual who was working is not entitled to TTD benefits. Moreover, the employee’s injury occurred on July 2, 2003, prior to the date upon which an injury must occur to be eligible for TPD benefits. The Court indicated that if, as they were informed, the employee was receiving benefits from the employer’s insurance carrier, benefits could only have been paid as maintenance which are awarded incidental to vocational rehabilitation.
In Nascote Industries, the Court concluded that part-time employment within the restrictions as authorized by the claimant’s doctor can be classified as a physician approved rehabilitation plan. As discussed earlier in this Court’s disposition, Illinois Courts have upheld that the absence of good faith cooperation with vocational rehabilitation efforts justifies the termination of TTD benefits. The Court went on to statue that if the failure to cooperate with a rehabilitation plan provides a basis for disallowing future TTD benefits, it follows that being fired for cause for part-time employment also provides a basis for terminating any maintenance benefit that an employee may have been receiving incidental to that part-time employment. Accordingly, aside from the Court’s holding that the employee is not entitled to TTD benefits, the Court also found that the employee is no longer entitled to maintenance benefits.
This decision was drafted by Justice Grometer. Presiding Justice McCullough and Justice Hoffman concurred in the decision. Please note, Justice Donovan and Justice Holdridge both joined in a descending opinion.
Summary: The employee bus driver was injured while stooping over to retrieve a transfer book she had dropped. Without striking anything or falling, she felt a pain in her shoulder as she bent over. After going to the emergency room later that evening, it was determined that her shoulder was dislocated and surgery was performed to prevent recurrent dislocations. The shoulder had partially dislocated on previous occasions, and some of the tissue was in a degenerated condition.
The Illinois Supreme Court held that while the incident was traced to a definite time, place, and cause, the evidence was insufficient to support a finding of accidental injury in the absence of any “bumping” of the shoulder. The injury was not compensable because the employment did not subject the employee to a greater risk beyond that faced to the general public. The court reasoned that because of the preexisting condition of her shoulder, the risk of dislocation was personal to her and was not caused by a risk incident to the employment.
Effect: With regard to neutral risk, the question of whether an injury arose out of the employment rests on a determination of whether the employee was exposed to a risk of injury to a greater extent than that to which the general public was exposed.