Review of Illinois Workers Compensation DECEMBER 2008

Transcription

1 Review of Illinois Workers Compensation DECEMBER 2008 CONTENTS N T AROUND THE COMMISSION Commission Changes Arbitration Changes Commission Panel Changes Medical Fee Schedule Changes BEFORE THE SUPREME COURT OF ILLINOIS Settlement Agreement in Uninsured Motorist Claim Not Approved by Illinois Workers Compensation Commission Does Not Bar a Workers Compensation Claim Employer Held Not Liable to Pay 25% Attorney Fee with Respect to Employee s Recovery Against an Uninsured Motorist Policy BEFORE THE APPELLATE COURT OF ILLINOIS, NON-WORKERS COMPENSATION DIVISION CASES Civil Complaint Filed by Employer Against DOT Medical Examiner Dismissed DOT Medical Examiner Not Liable to Employer for Negligent Examination Borrowing Employer Was Properly Ordered to Reimburse Loaning Employer for Workers Compensation Benefits Paid Following a Fatal Injury to a Temporary Restaurant Worker Employee of Veterinary Clinic Is Not Entitled to Bring Negligence Action Against Owners of Clinic After Being Kicked by a Horse BEFORE THE APPELLATE COURT OF ILLINOIS, WORKERS COMPENSATION DIVISION CASES Claimant s Failure to File Statement of Exceptions Does Not Merit Summary Affirmance of Arbitrator s Decision No TTD or Maintenance Is Owed to Petitioner Who Was Discharged for Cause While Working Light Duty with Employer Excellent Case Results in the Office Conclusion Personal Election years are always exciting and interesting. Despite so much focus on the war in Iraq early in the campaign, the economy took center stage. Illinoisans, especially Chicagoans, are proud that the new President will have local connections. We expect the new President to favor the state and bring Chicago the 2016 Olympics. We are not so proud of our Governor. Governor Blagojevich was arrested on December 9, 2008 by the FBI and charged with corruption. A 76-page FBI affidavit says Blagojevich, a Democrat, was intercepted on court-authorized wiretaps over the last month conspiring to sell or trade the vacant Senate seat for personal benefits for himself and his wife. Three of the last 6 Illinois Governors have gone to jail. This is a lousy tradition for our state. CONTACT INFORMATION Michael E. Rusin merusin@rusinlaw.com 10 S. Riverside Plaza Suite 1530 Chicago, IL

2 REVIEW OF ILLINOIS WORKERS COMPENSATION AROUND THE COMMISSION Commission Changes December 2008 By Michael E. Rusin The American people elected a Chicagoan to be our next president. However, Illinois statewide elections are held in non-presidential years. Governor Blagojevich, a staunch labor union supporter, is not up for re-election until November His approval rating is at an all-time low. The FBI continues to aggressively investigate his office and his associates. They continue to believe he engages in pay to play politics. Democratic candidates are lining up to challenge him in the spring 2010 primary. Business groups should start working to identify a viable Republican candidate if they expect to change Illinois anti-business policies in the near future. The November 2008 elections created some significant changes at the Illinois Workers Compensation Commission. Chairman Dennis Ruth and two arbitrators, Paula Gomora and Maureen Pulia, all ran for election as judges in the general election. Chairman Ruth ran unopposed down in Madison County in southern Illinois and obviously won. He was sworn in as a circuit court judge on December 1, Arbitrator Gomora ran against weak competition in Will County and won her election. Arbitrator Pulia ran a hotly contested race in Cook County and was unsuccessful in her bid for a judgeship. Chairman Ruth resigned his position effective October 31, Arbitrator Gomora has stopped hearing new cases. Arbitrator Pulia is continuing her position. After the announced resignation of Chairman Ruth, Governor Blagojevich appointed Arbitrator Gerald Jutila as the new Chairman of the Commission. This was a fine choice for chairman. Arbitrator Jutila, an experienced and fair individual, would have been a stabilizing and encouraging force at the Commission. Chairman Ruth s resignation pleased everyone. He accomplished a lot as Chairman of the Commission. He certainly upgraded the Commission s website and made it more user-friendly. However, his condescending attitude towards all Commission employees was both unappreciated and unnecessary. Chairman Jutila unfortunately served in the position for only a few weeks but then resigned for health reasons. He returned to his position as arbitrator and has taken over the cases previously assigned to Arbitrator Gomora. An acting chairman was named by the Governor shortly thereafter. Many expected the Governor to appoint another of the arbitrators to assume the role of Chairman. There were several Chicago arbitrators that would have been well qualified and were interested in taking over this position. Nevertheless, the appointment was a political one. The Governor instead appointed Amy Masters to serve as the next Chairman. Chairman Masters first joined the Commission in She has served as the Secretary of the Commission and Operations Manager for the past two years, and previously served as Chief of

3 Staff and Judicial Manager. Before joining the Commission, she managed public relations for the Chicago Bar Association and the Laborers' International Union-Midwest Region. She holds a B.S. degree in Political Science from Southern Illinois University. She has the proper labor union background to satisfy the Governor s plans and she has already announced that her administration will maintain the same policies and procedures of Chairman Ruth. Arbitration Changes Since we knew for a long time that Chairman Ruth was going to win his judgeship position (running unopposed), there was much speculation that he would change some of the arbitrator assignments before he left. However, he had promised that there wouldn t be wholesale changes at the arbitration level. He had promised that he would only make changes at the arbitration level if there was a specific need. Contrary to his statements, Chairman Ruth made wholesale changes at the arbitration level, announcing them shortly before his departure and leaving the new Chairman to take the heat for the new schedule. Chairman Ruth s edict eliminates two downstate calls (Carlyle and Taylorville) and shifts the assignments of many downstate arbitrators. Arbitrator Dollison is moved out of his downstate venues and brought in to Chicago. The changes were made allegedly to more fairly distribute the work and eliminate travel expenses. However, many of the changes appear to reward favored arbitrators and penalize arbitrators that Chairman Ruth didn t like. It is impossible to justify all of the changes on a need basis. Here is the new lineup of the downstate calls. Arbitrator Akemann Andros Dibble Erbacci Falcioni Fratianni Giordano Hennessy Holland Kinnaman Mathis Nalefski Neal O'Malley Teague Tobin White Territories Rockford (3/4th of cases) DeKalb, Rockford (1/4th of cases), and Waukegan (1/4th of cases) Whittington/Herrin Wheaton (1/3rd of cases) and Woodstock Joliet (2/3rd of cases) Waukegan (3/4th of cases) Kankakee and Ottawa Geneva (1/4th of cases) and Joliet (1/3rd of cases) Clinton, Danville, Galesburg, Rock Falls, and Rock Island Geneva (3/4th of cases) Peoria Collinsville and Lawrenceville Carlinville, Decatur, and Urbana Wheaton (2/3rd of cases) Belleville and Mt. Vernon Jacksonville, Quincy, and Springfield Bloomington and Mattoon - 2 -

4 The Carlyle and Taylorville hearing sites have been eliminated and cases have been reassigned to nearby hearing sites. New notices for those cases are being issued. In Chicago, Arbitrator Jutila is taking over the call of Arbitrator Gomora. Arbitrator Dollison is taking over the call of Arbitrator Jutila. Arbitrator Lammie retains the assignment of Chicago pro se arbitrator and vacation month fill-in arbitrator for immediate hearing petitions. Here is the current list of Chicago arbitrators. Kathleen Hagan Gilberto Galicia Gerald Jutila (formerly Gomora) Greg Dollison (formerly Jutila) Joseph Prieto Brian Cronin Edward Lee Maureen Pulia Milton Black Robert Williams Charles DeVriendt David Kane Richard Peterson Kurt Carlson Robert Lammie (pro se settlement) A summary of the Chicago and downstate arbitrator status calls is attached to the end of this newsletter. Please print it out and use it as a reference guide. Status calls continue to cycle every two months. This means once a case is set on the status call it is continued on a regular two-month cycle until it goes above the trial line after three years. Each arbitrator has one vacation month per year. If the case is continued and would fall in a vacation month, instead of a two-month continuance, the case receives a four-month continuance. This is true both in Chicago and downstate except for those downstate calls that have dual arbitration assignments Waukegan, Wheaton, Geneva, Rockford, and Joliet. Commission Panel Changes Commissioners Rink and Dauphin have switched panels with Commissioner Rink moving to Panel A and Commissioner Dauphin moving to Panel B. Here is the new line up of Panels starting 1/1/2009. Amy J. Masters, Acting Chairman Commissioners by panel: Panel A Panel B Panel C Employee representatives: Molly Mason Barbara Sherman David Gore Public representatives: Paul Rink Yolaine Dauphin James DeMunno Employer representatives: Nancy Lindsay Kevin Lamborn Mario Basurto - 3 -

5 Medical Fee Schedule Changes This comes as no surprise but Maximum Medical Fee charges will increase in The Medical Fee Schedule has an automatic increase mechanism tied to the consumer price index. Section 8.2(a) of the Illinois Workers' Compensation Act provides that the rates in the Illinois workers' compensation medical fee schedule will be increased by 5.37%, which is the increase in the Consumer Price Index-U between August 2007 and August This increase will take effect for treatment on or after January 1, In addition, the Commission has finally proposed expansion of the medical fee schedule to cover more medical fees. The medical fee schedule proposed rules were submitted to the Joint Committee on Administrative Rules (JCAR) on December 1 and will be heard at the January 13, 2009 JCAR hearing The proposed rules would create fee schedules for the following areas: ambulatory surgical treatment centers; hospital outpatient radiology, pathology and laboratory, physical medicine and rehabilitation services; hospital outpatient surgical facility services; and rehabilitation hospitals. Due to a lack of data, the original fee schedule did not include fees for these areas, and payment was set at 76% of the provider's charge. If JCAR approves, it is anticipated that the new rules will take effect on February 1, Please note that the proposed rules specify that the hospital inpatient fee schedule will convert from the DRG coding system to the MS-DRG coding system no later than June 30, BEFORE THE SUPREME COURT OF ILLINOIS Settlement Agreement in Uninsured Motorist Claim Not Approved by Illinois Workers Compensation Commission Does Not Bar a Workers Compensation Claim Maxit, Inc. v. John Van Cleve, Docket No , filed October 17, Petitioner was involved in a motor vehicle accident while working on December 26, 2001 when another car caused petitioner s car to drive off the road. Following the accident, petitioner filed a workers compensation claim May 16, In addition, he filed a claim under the plaintiff-employer s underinsured motorist policy. Petitioner negotiated a settlement with the underinsured motorist carrier, CNA. CNA paid petitioner $800, and on September 10, 2004, petitioner signed a general release. It covered any and all claims which petitioner could make against the employer, its carrier, and all others associated with the employer. In addition, according to the terms of the release, petitioner agreed to indemnify the employer as against any and all claims that might be made against the employer

6 A year later in September, 2005, petitioner and the employer entered into a settlement agreement of the workers compensation claim for $200, Six weeks later, on October 19, 2005, the employer filed a civil complaint against petitioner seeking damages in the amount of the $200, it paid in the workers compensation claim. The complaint alleged that pursuant to the terms of the release, petitioner had to indemnity the employer as against any and all other claims including this workers compensation claim. Petitioner defended against this complaint, claiming that the release in the underinsured motorist claim did not void out his right to a workers compensation claim. Petitioner argued that 23 of the Workers Compensation Act requires that all settlement agreements be approved by the Commission. Since the settlement agreement in the underinsured motorist claim wasn t approved by the Commission, petitioner claimed that it couldn t act as a bar against the workers compensation claim. After a hearing, the circuit court ruled in favor of the employer. Petitioner appealed and the appellate court reversed in favor of petitioner. The employer appealed to the Supreme Court and the Supreme Court affirmed the appellate court s ruling in favor of petitioner. The Supreme Court ruled that 23 of the Act specifically provides that any agreements related to workers compensation have to be approved by the Commission. In this case, the settlement agreement (release) in the underinsured motorist claim was not approved by the Commission. Therefore, even if the release stated that it barred a workers compensation claim, such release would not have been enforceable because it was not approved by the Commission. Moreover, in this case, the general release was vague. It didn t specifically state that it closed out petitioner s workers compensation claim. The court ruled that even if it did, such a document (not approved by the Commission) would not have been sufficient to void out the workers compensation claim. Comment: The court s decision is not surprising. The course of this litigation is unusual in that petitioner received an underinsured motorist settlement long before his workers compensation settlement. This was likely in part because the employer did not have workers compensation insurance. The timing of the settlement agreements are unusual and can lead to an unusual result as here. The underinsured motorist carrier should have been able to get credit against their liability for any workers compensation payments. Here, however, since there was no workers compensation insurance, those payments weren t made on a timely basis. Instead, it appears the employer attempted to take advantage of a settlement in the underinsured motorist claim when he had no right to do so. The end result here is not unexpected. The employer s argument may have been stronger if he hadn t voluntarily agreed to settle the workers compensation claim a year after the release was entered. The argument may have been stronger if he presented the release to the Commission as a bar (or at least a credit) to the workers compensation proceeding. However, the employer likely realized that the Commission would not look favorably on a settlement agreement it hadn t approved to serve as a bar against a claim for workers compensation. This unusual legal strategy eventually proved unsuccessful

7 Employer Held Not Liable to Pay 25% Attorney Fee with Respect to Employee s Recovery Against an Uninsured Motorist Policy Billy Taylor v. Pekin Insurance Company, Docket No , filed November 20, Petitioner, Billy Taylor, was driving a vehicle in the course of his employment for Herr Funeral Home on August 4, 1999 when he was involved in a motor vehicle accident. His vehicle was struck by an uninsured motorist. Petitioner filed a claim for workers compensation benefits and he received benefits totalling approximately $162, In addition to filing for workers compensation benefits, petitioner filed a claim against his employer s automobile liability policy which included an uninsured motorist provision. Petitioner arbitrated the uninsured motorist claim and received a judgment in the amount of $250, The insurance carrier, Pekin, paid off the claim in the amount of $250, but deducted workers compensation benefits paid of $162, leaving a net judgment of $88, Petitioner filed a complaint against Pekin Insurance, claiming that they didn t pay enough. Petitioner claimed that Pekin was obligated to pay 25% of the workers compensation award or another $40, pursuant to 5(b) of the Workers Compensation Act ($162, x 25% = $40,500.00). Petitioner claimed that pursuant to 5(b), he was entitled to 25% of the total workers compensation payout. Section 5(b) of the Workers Compensation Act states, Out of any reimbursement received by the employer pursuant to this Section the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement. Pekin filed a motion to dismiss the complaint and the trial court denied the petition for attorney s fees. Petitioner appealed and the appellate court reversed, ruling that petitioner was entitled to an additional $40, for the 25% attorney fee. Pekin appealed to the Supreme Court, and the Supreme Court in a unanimous decision reversed the appellate court and denied the attorney fees. The Supreme Court held that 5(b) doesn t apply because 5(b) doesn t apply to uninsured motorist claims. Section 5(b) applies to claims where there is an action taken against a third party. An insured motorist claim has never been considered an action against a third party because it is in fact an action against either the petitioner s own carrier or, as in this case, the employer s automobile carrier. The Court held, There is no statutory or contractual basis to compel Pekin to pay an attorney fee in the amount of 25% of its contractual setoff where no third party claim has been filed.... Under the auto policy, Pekin is entitled to a setoff of the full amount of workers' compensation benefits paid to plaintiff, without deducting 25% for attorney fees

8 Comment: This is an excellent decision from the Supreme Court. It shows the continuing aggressiveness and novelty of plaintiff attorneys in seeking awards where there should be none. In this case, petitioner received full workers compensation benefits. The adverse driver was uninsured and on top of the workers compensation benefits, petitioner received a judgment of $250, against the employer s own uninsured motorist policy. This is not a policy that petitioner paid for, but rather a policy that his employer paid for. With greedy abandon, petitioner pursued an additional $40, from Pekin, arguing that somehow 5 entitled him to even more money. The trial court properly denied the claim. It is surprising that so obvious a denial should have been reversed by the appellate court. It is encouraging that the Supreme Court allowed a petition for leave to appeal to rectify such an egregious result. BEFORE THE APPELLATE COURT OF ILLINOIS, NON-WORKERS COMPENSATION DIVISION CASES Civil Complaint Filed by Employer Against DOT Medical Examiner Dismissed DOT Medical Examiner Not Liable to Employer for Negligent Examination Hollywood Trucking, Inc. v. Roger Watters, M.D., Primary Care Group and James Atkinson, No (Fifth District, filed September 18, 2008). Petitioner underwent a DOT physical with Dr. Watters on January 9, Petitioner denied any prior back problems and Dr. Watters issued a DOT medical report certifying that petitioner could work as a commercial truck driver. Petitioner applied for employment and was hired by Hollywood Trucking sometime thereafter. On June 22, 2004, petitioner was securing a tarp over a load of lumber and he fell feet from his tractor-trailer to the ground and injured his back. Petitioner filed a workers compensation claim. The employer initially accepted liability for the claim, but then disputed the work comp claim alleging petitioner was injured at home and alleging that he made false representations with respect to his medical history during his DOT examination. Hollywood then filed this lawsuit against Dr. Watters and petitioner, claiming that Dr. Watters negligently performed the DOT examination, noting in part that petitioner had surgical scars on his back. Therefore, the doctor should have recognized the history was false and should have recognized petitioner had back problems. Dr. Watters moved to dismiss the lawsuit and the dismissal was granted. Hollywood appealed to the appellate court, and the appellate court affirmed. The appellate court noted that Dr. Watters was not specifically hired by Hollywood to perform the DOT physical. Dr. Watters simply performed the DOT physical at petitioner s request in order to get a certification to drive a commercial motor vehicle. Therefore, Dr. Watters had no specific duty that he owed to Hollywood. Further, the court noted, Dr. Watters conducted a DOT medical examination on Atkinson [petitioner] for the purpose of determining whether he had any condition or infirmity that would likely interfere with his ability to operate and control a commercial motor vehicle on the public highways. The DOT medical examination was not performed for the purpose of - 7 -

9 certifying that he would not reinjure or aggravate his back while performing his work-related activities, and the result of the examination was not expected or intended to be used to assess the likelihood that Atkinson would suffer an on-the-job injury and to calculate the potential exposure to a prospective employer under the Workers Compensation Act if it hired Atkinson. Hollywood also filed this complaint against Atkinson (petitioner) alleging fraudulent misrepresentation at the time of his hiring. The circuit court and appellate court also dismissed that section of the complaint on the basis that the sole jurisdiction for those allegations were before the Workers Compensation Commission. Comment: This is an interesting case filed by an understandably upset employer. Petitioner apparently had prior back surgery and was certified as able to drive a truck. It s understandable that a doctor couldn t discern whether petitioner had a prior back strain, but if petitioner had a prior back surgery with surgical scars, the doctor obviously should have noted this on his examination report. However, it was difficult for the employer to show that Dr. Watters specifically owed a duty to the employer since the employer didn t specifically send petitioner to Dr. Watters for the examination. Moreover, the employer s claim was weakened by the fact that petitioner apparently suffered a significant and obvious accident. He fell from a truck a distance of feet. The facts would have been better for the employer if petitioner merely claimed back pain after a bending or lifting incident. Even if petitioner had been perfectly healthy, he could well have sustained a serious injury to his back by falling 10 feet from the top of his tractor. On the other hand, these DOT physicals are not simply to be routine examination requests. They should be taken seriously by physicians and they should merit a significant and thorough examination. An employer who takes on the liability for a damaged individual should have some recourse if in fact a physician is negligent in certifying a claimant for work. It s clear under Illinois law that the employer can t use the employee s pre-existing condition against the employee in a workers compensation proceeding. Employers have to accept liability for claimed injuries irrespective of pre-existing conditions. The only way the employer can really find out about a pre-existing condition is through a pre-employment medical examination. If a doctor negligently performs the medical examination and the employer relies on the doctor s examination to its detriment, the doctor should face liability if he was negligent. Borrowing Employer Was Properly Ordered to Reimburse Loaning Employer for Workers Compensation Benefits Paid Following a Fatal Injury to a Temporary Restaurant Worker Surestaff, Inc. v. Open Kitchens, Inc., No (1st District, 5th Division, filed July 25, 2008). The plaintiff, Surestaff, a temporary agency, filed a complaint against Defendant Open Kitchens, a catering company, seeking reimbursement of workers compensation benefits paid to an employee who was killed on the job. Following a trial, a jury verdict was rendered in favor of - 8 -

10 the plaintiff against defendant in the amount of $242, in workers compensation benefits and $70, in attorney fees. In summer of 2003, Surestaff and Open Kitchens entered into a verbal agreement whereby Surestaff agreed to provide temporary labor to Open Kitchens. On July 28, 2003, a temporary worker suffered a fatal injury at the Open Kitchens facility in Chicago. Open Kitchens is a catering company which provides meals to Chicago public and private schools and the Chicago Housing Authority. In the summer of 2003, the owner of Open Kitchens, Ricardo Fiore, determined he needed additional workers for the summer and contacted Raymond Morelli, the owner of Surestaff, to arrange for temporary workers. Fiore testified that at the time of the agreement, various details were discussed and it was agreed that Surestaff would pay all workers compensation benefits if one of the temporary workers suffered an injury. Mr. Morelli, the owner of Surestaff, testified to the contrary. He testified that no discussion was held as to the reimbursement of workers compensation benefits. At the conclusion of trial, the trial judge gave an instruction to the jury which placed the burden on Open Kitchens to prove that there was an agreement by Surestaff waiving its right to reimbursement. Section 1(a)(4) of the Workers Compensation Act provides: Where an employer operating under and subject to the provisions of this Act loans an employee to another such employer and such loaned employee sustains a compensable accidental injury in the employment of such borrowing employer and where such borrowing employer does not provide or pay the benefits or payments due such injured employee, such loaning employer is liable to provide or pay all benefits or payments due such [injured] employee under this Act and as to such employee the liability of such loaning and borrowing employers is joint and several, provided that such loaning employer is in the absence of agreement to the contrary entitled to receive from such borrowing employer full reimbursement for all sums paid or incurred pursuant to this paragraph together with reasonable attorneys fees and expenses. Open Kitchens claimed that the jury instruction was in error. Open Kitchens claimed that Surestaff had to prove there was an agreement to the contrary. Open Kitchens claimed it was not required to prove that Surestaff waived its right to reimbursement. The appellate court ruled in the favor of Surestaff. The appellate court ruled that the jury instruction was proper and that Open Kitchens had to prove an agreement to the contrary. Open Kitchens had to prove that Surestaff waived its right to reimbursement. Comment: Most employers that use temporary workers assume that the temporary agency is the primary employer and responsible for providing workers compensation benefits. Most temporary services market their employees and their services in this manner. However, a - 9 -

11 borrowing employer should never assume this fact to be true. It is extremely dangerous to make a verbal agreement for temporary workers. The Illinois Workers Compensation Act is drafted to place primary responsibility for workers compensation benefits on borrowing employers. Therefore, if you are a borrowing employer and you do not intend to fully cover temporary workers for workers compensation, you must make sure that you have a written agreement from the temporary agency setting forth the requirement that the temporary agency is solely responsible for workers compensation benefits. A verbal agreement is insufficient, as evidenced in this case. Here, Open Kitchens owner specifically stated that Surestaff would pay workers compensation benefits. Surestaff s owner stated that there was no such discussion. The result hinged on the credibility of the owners of the two companies and the borrowing employer lost because of the presumption in the Workers Compensation Act. Employee of Veterinary Clinic Is Not Entitled to Bring Negligence Action Against Owners of Clinic After Being Kicked by a Horse Ramona Kolacki v. Laura Verink and Randall Verink, No (3 rd District, filed August 8, 2008). The defendants owned and operated a veterinary services company. They operated the business out of their home and horse facility located in Will County, Illinois. Their business, Silvercrest Veterinary Services, rents the horse facility from the defendants. Plaintiff worked at the horse facility doing general upkeep and maintenance including feeding the horses and cleaning the stalls. On November 25, 2005, plaintiff was working at the facility cleaning out stalls. She was asked to get a horse ready for viewing by a prospective buyer. The defendants were not selling the horse; they were simply boarding the horse. The plaintiff went to prepare the horse and the horse kicked her in the head. Plaintiff filed a workers compensation claim. In addition, she then filed this civil suit claiming entitlement to compensatory damages for negligence. Defendants moved to dismiss on the basis that the claim was barred by the exclusive remedy provisions of the Workers Compensation Act. Plaintiff objected to the dismissal, claiming that she was entitled to a civil suit because of the dual capacity doctrine. Plaintiff claimed that under the dual capacity doctrine, she was entitled to a civil suit against the defendants individually on the basis that they had a dual persona as property owners and operators which gave her the right to a civil liability claim. The trial court rejected this contention and dismissed the complaint. The appellate court affirmed the dismissal. The appellate court found that the ownership of property is intertwined with the operation of the business. It is rare for a dual capacity argument to be successful based simply on an allegation that the business owners also owned property that was associated with

12 the business. The court ruled that the plaintiff was limited to her workers compensation claim and the civil suit was rejected. Comment: Claimant s injuries must have been severe enough that she felt workers compensation benefits were insufficient to compensate her injuries. Nevertheless, the court s decision denying a civil suit in this circumstance is clear. The case might have come out differently if the defendants were actually operating a separate business buying and selling horses, but there was no proof of this. The defendants were simply boarding the horses. The horse owner was in the process of selling the horse. The defendants were simply boarding it. Courts have been very restrictive on their interpretation of the dual capacity doctrine. Illinois courts for the most part prefer to keep work injuries in the workers compensation arena rather than allow civil suits for work injuries. BEFORE THE APPELLATE COURT OF ILLINOIS, WORKERS COMPENSATION DIVISION CASES Claimant s Failure to File Statement of Exceptions Does Not Merit Summary Affirmance of Arbitrator s Decision Klein Construction/Illinois Insurance Guaranty Fund v. Illinois Workers Compensation Commission and John Klein, No WC, filed July 8, Petitioner filed an application alleging an accident date of April 26, He claimed that he injured both his cervical spine and thoracic spine. The employer accepted liability for the cervical spine injury but disputed the thoracic spine injury. Petitioner demanded further medical treatment and filed a petition for immediate hearing. After a hearing before the arbitrator, petitioner was awarded approximately 161 weeks of TTD but denied medical treatment for the thoracic spine injury as not causally related to the accident. Petitioner filed a petition for review to the Commission claiming the arbitrator erred on every issue. Petitioner filed an authenticated transcript with the Commission. However, petitioner failed to file a brief with the Commission as required by Commission rules. The Commission denied oral arguments because a brief wasn t filed. However, the Commission considered all aspects of the appeal and modified the arbitrator s decision. The Commission awarded petitioner 249 weeks of TTD and ordered respondent to provide medical services for the thoracic spine injury. Respondent appealed to the circuit court, claiming that the Commission erred in modifying the arbitrator s decision. Respondent claimed that the failure to file a statement of exceptions with the Commission was a violation of Rule of the Rules of the Commission which (1) require every appealing party to file a brief, and (2) state that the Commission will only consider, and oral arguments will be limited to, issues raised in both the petition for review and the parties statement of exceptions and supporting brief

13 The rule states that the failure to file a brief shall constitute waiver of the right to oral argument by that party and an election not to advise the Commission of any reason to change the arbitrator s decision or grant the petition. Respondent contended that since petitioner failed to file a brief, the Commission was bound to affirm the decision of the arbitrator and could not modify the arbitrator s decision. Both the circuit court and the appellate court rejected this argument and confirmed the Commission s decision. The court ruled that the failure to file a brief justified the Commission s denial of oral arguments. However, the failure to file a brief by itself could not prohibit the Commission from reviewing the evidence and making a decision on the merits. The appellate court ruled that 19(e) of the Act requires the Commission to analyze the case and issue a decision if a petition for review is filed and a transcript is filed. The Court noted that the statute does not mandate the filing of a brief on appeal. Therefore, if the Commission rule requiring the filing of a brief is in conflict with the statute, then the administrative rule is void. The court ruled that the Commission had the authority to consider the decision of the arbitrator and modify it even though petitioner didn t file a brief. Comment: This is an expected decision from the appellate court. Prior appellate court decisions have indicated that the Commission cannot summarily affirm because of the failure to file a brief. It is a frustration from the employer s standpoint to win a case before the arbitrator and then have petitioner file an appeal but not present any written or oral argument in support of the appeal. Nevertheless, the Commission can and will re-analyze the case and modify the arbitrator s decision. It is important to remember that in a circumstance where a claimant does not file a brief timely, that the employer can still file a brief in support of the arbitrator s decision. No TTD or Maintenance Is Owed to Petitioner Who Was Discharged for Cause While Working Light Duty with Employer Interstate Scaffolding, Inc. v. Workers Compensation Commission and Jeff Urban, No WC, filed October 20, Petitioner was employed by respondent as a union carpenter. On July 2, 2003, he suffered a work-related injury to his head and neck. He suffered from heat exhaustion and he fell from a scaffold. He was diagnosed with a concussion and a cervical strain with disc bulging. He had only conservative are and was off work for a year and a half. He was finally released for light duty and returned to work at light duty in February He worked light duty on a regular basis until May 25, 2005 when he was terminated. Petitioner was legitimately terminated for defacing company property. In April 2005, he used a permanent marker and wrote religious inscriptions on the walls and shelves in a storage room on respondent s premises. Petitioner admitted that he had no permission to be writing on the walls

14 and shelves. He admitted that the writings had nothing to do with his job. When the employer s president found out about the writings on the walls, he instructed that petitioner be terminated. Petitioner filed a petition for immediate hearing and sought TTD benefits. The arbitrator ruled in the employer s favor and denied TTD after the dismissal. Petitioner appealed to the Commission and the Commission reversed, granting petitioner TTD from the date of his termination through the date of the arbitration hearing. Respondent appealed to the circuit court and the circuit court affirmed. Respondent appealed to the appellate court and the appellate court reversed. In a 3-2 decision, the appellate court ruled that a claimant is not entitled to TTD or maintenance after he voluntarily removes himself from the work force for reasons unrelated to his injury. The majority opinion analyzes Illinois case law and finds no cases directly on point. The majority opinion analyzes cases from other jurisdictions and finds that several jurisdictions deny TTD to employees who, after returning to employment following a work-related injury, are terminated for misconduct where the disability played no part in the discharge. The majority opinion follows those cases. The court held, The overriding purpose of the Illinois workers compensation scheme is to compensate an employee for lost earnings resulting from a work-related disability. Considering this purpose in conjunction with the case law discussed above, we find that allowing an employee to collect TTD benefits from his employer after he was removed from the work force as a result of 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 is unrelated to the injury. Applying this standard to the case at hand, the court ruled that the claimant was not entitled to TTD since his termination was for cause and not to avoid the payment of TTD benefits. Two justices dissented from the majority opinion. The dissenting justices felt that petitioner s termination was questionable. However, the dissenting opinion is favorable in that it accepts the general principle that TTD can be discontinued where an employee while working light duty is terminated as a result of his volitional acts of misconduct unrelated to his disabling condition. The dissenting opinion dislikes the failure of the majority opinion to provide standards for practical application of the rule of law. The dissenting opinion would require that an employer who terminates an employee has the burden to establish (a) that the employee violated a rule or policy, (b) that the employee was fired for a violation of that rule or policy, (c) that the violation would ordinarily result in the termination of a non-disabled employee, and (d) that the violation was a voluntary act within the control of the employee and not caused by the employee s disability. Using that approach, the dissenting justices felt that petitioner in this case was entitled to continuing TTD. Comment: This is an excellent decision from the Workers Compensation Division of the Appellate Court. It is one of the most significant decisions favoring employers to be issued by the court in a long time. This was a case of first impression before the court. No other case

15 decisions specifically addressed this issue. The fact pattern presented by respondent was not particularly favorable. The reason for petitioner s termination in this case was questionable. The reason for the termination is significantly more questionable than what we see frequently. Employees who come back to work at light duty frequently believe they are immune from discharge. However, this case decision establishes that they are not. Employees on light duty bear the same duties and responsibilities as all employees. They have no special additional privileges simply because they sustained a work injury. This decision establishes that claimants who are properly terminated for cause are not entitled to receive TTD nor are they entitled to receive maintenance post-termination. All employers and carriers should be aware of this new principle of law and the new rights afforded to employers as a result of this decision. EXCELLENT CASE RESULTS IN THE OFFICE I was successful in defeating a claim for compensation on behalf of the Illinois Public Risk Fund in the case of Jason Keeling v. Village of Forest Park, 08 WC Petitioner was employed as a police officer and claimed an injury April 26, At the time of the accident, petitioner was in the police station. He was walking from the main office into the sergeant s office. Immediately before the accident, he and another police officer were engaged in some horseplay. The horseplay ended immediately before petitioner s fall. He twisted his right knee while walking from a tiled to a carpeted area. We showed that there was no defect in the premises. We contended the case wasn t compensable since petitioner had no increased risk. The arbitrator ruled in our favor and denied compensation in its entirety. Dan Egan received a favorable arbitration decision on behalf of American Family Insurance in the case of Paul Lundgren v. Carpet Interiors, 00 WC The primary dispute in this case was whether petitioner was an employee or an independent contractor. Petitioner worked installing carpeting for respondent. We claimed that he worked as an independent contractor. We showed that petitioner signed an independent contractor agreement. We showed that he had a business name (Alpine Carpets). We also showed that he purchased occupational accident coverage. The arbitrator noted that petitioner supplied his own tools, used his own trucks, was paid by the job, and paid for any help that he needed. The arbitrator found that we proved petitioner was an independent contractor. Randy Stark obtained a favorable decision from the Commission vacating a 19(b) decision entered ex parte against respondent. We obtained a reversal on behalf of Gallagher Bassett Services in the case of John Ours v. Valspar, 04 WC 46866, 08 IWCC Petitioner claimed an injury July 28, He filed an application September 29, 2004 and arranged for an ex parte hearing before an arbitrator on May 11, The arbitrator entered an award for 30 3/7 weeks of TTD approximately $ in medical bills, and over $13, in penalties. On appeal, we contended that petitioner had not properly notified respondent of the hearing. We contended that petitioner only showed notice of the hearing to the third party administrator, but not the employer. The Commission agreed with the argument. Petitioner in order to proceed with an ex parte hearing has to provide notice to the employer or the employer s attorney if the

16 employer has an attorney. Giving notice to a third party administrator is insufficient. The employer was allowed a new hearing and will be able to present evidence against the claim. Mark Cosimini in our Champaign office obtained a favorable decision on behalf of AIG Insurance in a Springfield venued case. In the case of Debbie Cody v. Nelson s Catering, petitioner claimed an accident on September 3, Petitioner worked for a caterer. She claimed repetitive trauma because of considerable amount of lifting and carrying heavy items. She claimed her job duties caused her cervical condition which ultimately required a two-level fusion at C5 through C7. We proved that petitioner worked on only an as needed basis and her last day of work was August 28, We also proved that her first medical treatment was an emergency room visit April 10, The medical records didn t show complaints associated with her employment duties. Rather she had complaints of nausea and vomiting while being on a diet. We showed that her initial treatment didn t contain any history of a specific accident at work or even cumulative trauma. Eventually, petitioner treated with an orthopedic surgeon who diagnosed a herniated disc which he claimed could have been caused by repetitive heavy lifting. However, he first saw petitioner May 23, 2007 and thought that her symptoms started six weeks to two months before his examination. We had a record review with Dr. James Kohlmann. He concluded that petitioner s condition of ill-being was not causally related to her work duties as a caterer. The arbitrator ruled in our favor and found petitioner failed to prove accident, causal connection, or notice. Kelly Moore obtained an excellent arbitration decision on behalf of AIG Insurance in the case of Herby Stanton v. Rose Paving, 08 WC Petitioner worked for respondent as a seal coat truck driver. He claimed that he slipped off a curb in respondent s parking lot before work. Petitioner suffered a grade II left ankle sprain and a calcaneal fracture. We disputed the case on the basis that the accident did not arise out of the employment. We argued that petitioner s activities did not represent a risk of injury to a degree greater than the general public. We showed that the company parking lot did not have any particular hazards associated with the premises. It did not suffer from any defects. We provided testimony from an AIG investigator who performed an investigation into the parking lot. We provided testimony from a supervisor of the insured who disputed petitioner s testimony that there was oil and debris in the area where petitioner claimed that he slipped and fell. Petitioner sought an award of TTD, medical, and 30% loss of use of the left foot. The arbitrator agreed with our position and determined that petitioner s accident did not arise out of his employment. The claim for compensation was denied in its entirety. Mark Cosimini obtained an excellent ruling from the arbitrator on behalf of AIG Insurance in the case of Kurt Young v. Negwer Materials, Inc., 04 WC In this case, petitioner claimed an injury June 17, He claimed that he was lifting drywall sheets and fell, experiencing pain in his left knee. We proved inconsistencies between petitioner s trial testimony and his statements in the medical records. None of the initial medical records showed that petitioner actually fell while he was moving drywall. He received medical treatment shortly after the accident but then had no medical treatment for approximately 10 months. He eventually sought

17 treatment with an orthopedic surgeon and had an arthroscopic surgery in August 2004 which revealed only a healed meniscus tear. After another nine-month gap in treatment he had another surgery on his knee and was diagnosed with mild chondromalacia. We deposed petitioner s third orthopedic surgeon. He admitted petitioner s medical histories were inconsistent. We arranged for an evaluation with Dr. Lehman, an orthopedic surgeon in St. Louis. He concluded that petitioner s condition was degenerative in nature. The arbitrator ruled in our favor and found that petitioner failed to prove a causal connection between his surgeries and his initial work injury. The claim for compensation was denied. Tom Margolis obtained an excellent decision from the arbitrator on behalf of Farmers Insurance in the case of Robert Rainey v. Holzhauer Auto & Truck Sales, 04 WC This case was tried before Arbitrator Teague in Belleville. Petitioner was seeking an award of $65, in compensation and $260, in medical bills. Petitioner was employed as a car salesman. On December 12, 2003 he was at work and received his paycheck. He left work after receiving his paycheck to go to a bank to deposit his check. While on a public street that wasn t owned, controlled or maintained by the employer, he was struck by a car and severely injured. We claimed that his accident did not arise out of his employment. The arbitrator ruled in our favor and found that petitioner s accident was not compensable. Joe Marciniak obtained two favorable decisions from the arbitrator on behalf of IRMA. In the first case, Michael Brown v. Village of Tinley Park, 05 WC 42425, petitioner suffered an undisputed accident April 10, Petitioner was employed as a gun range instructor and he was required to spend a significant amount of time at the gun range. He was exposed to excessive amounts of lead and had elevated blood lead levels. However, he was treated, he recovered and he returned to work at full duty. He claimed memory loss and insisted he was entitled to permanent disability in the amount of no less than 10% man as a whole. We tried to settle and offered 5% loss of use of the man as a whole. The arbitrator, after reviewing the evidence, awarded petitioner 4% loss of use of the man as a whole. In the second case, Marybeth Brosseau v. City of West Chicago, 05 WC 21029, petitioner claimed repetitive trauma with an accident date of October 1, This case was tried before Arbitrator Kinnaman in Geneva. Petitioner claimed she had neck and elbow pain from repetitive typing and talking on the telephone. We proved that despite petitioner s claimed symptoms, her job duties actually became less repetitive during the points in time when her symptoms allegedly increased. We proved that petitioner suffered from a degenerative condition. We proved inconsistencies in petitioner s reported symptoms and her alleged work duties. The arbitrator ruled in our favor, denying 12 weeks of TTD and $5, in medical bills. Ken Marshall obtained an excellent award from the arbitrator on behalf of St. Paul Travelers in the case of Scott Radwanski v. PNC Bank, 05 WC Petitioner claimed that he sustained a right knee injury on March 6, 2005 when he tripped on a tangled up mat in front of a machine. Shortly after the alleged accident, however, petitioner told his supervisor that his knee had simply given out. The supervisor asked petitioner to write down what happened, and petitioner wrote on a note stating, I was scanning and all of a sudden my knee just gave out. Later that