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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.