ILLINOIS WORKERS COMPENSATION CLE Case Law Update: By: Robert C. Nelson Nelson & Nelson, Attorneys at Law, P.C. October 9, Chicago, IL

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1 ILLINOIS WORKERS COMPENSATION CLE Case Law Update: 2017 By: Robert C. Nelson Nelson & Nelson, Attorneys at Law, P.C. October 9, Chicago, IL 1. Marie Salisbury, widow of Charles Salisbury, deceased v. Illinois Workers Compensation Commission, 2017 IL App (3d) WC (This case dealing with credit for overpayment of benefits was referenced in Mr. Finley s materials so it is reviewed here. It was also covered in the February 20, 2017 Case Law Update Seminar) Charles Salisbury was a pilot who was killed while crop dusting on 06/12/09. The employer began paying Marie Salisbury, the widow, $1, weekly. The payments were extraordinarily generous; the proper death benefit rate at the time of Charles demise was $ The employer was overpaying the widow $ weekly. By the time of the hearing on 05/08/12 it had overpaid and claimed a credit of $192, The widow contended that the Commission lacked authority to allow the Respondent a credit for its overpayment of benefits and improperly denied a request for a lump sum payout. This case was covered well by Mark Jeep, a Section Council member, in his June 2017 article in the Workers Compensation Law Newsletter. The widow claimed the Commission had no authority to grant the employer a credit. She argued that the Act gave the Commission no statutory authority to allow a credit for voluntary overpayments. Without the statutory authority, she argued, the Commission lacked authority to grant such a credit. The Appellate Court disagreed. It affirmed the Commission noting that quite simply, what is happening here is that the Commission is merely recognizing that an employer has already made a partial payment that goes to satisfying its obligation. The Court rejected the Petitioner s framing of the issue and observed that there was no award transferring money from the claimant to the employer. The Court observed that the employer had merely voluntarily elected to satisfy part of its obligation prior to a formal order and explained that there was no statutory prohibition against taking into account Respondent s prior payment. From a public policy prospective, encouraging employers to make prompt and voluntary payment of benefits furthers the purpose of the Act. The widow then contended that the Commission failed in denying her request for a lump sum payout. The Court, citing Bagwell v. Ind. Comm n, 94 Ill.2d 101, at 106, 68 Ill.Dec. 129, 445 N.E.2d 773 (1983) held that lump sum payment awards are the exception and not the rule. A lump sum is awarded only if it is in the best interest of both parties. Petitioner had the burden of proving the mutual benefit or win/win proposition and failed to do so. Further, the widow had saved most of the overpayments, had sufficient income, had no minor children, and therefore did not prove she was under a financial hardship requiring a lump sum solution.

2 2. Johnston v. Illinois Workers Compensation Comm n, 2017 IL App (2d) WC 3. Simpson v. Illinois Workers Compensation Comm n, 2017 IL App (3d) WC (The effect of the Section 6(f) Presumption for first responders) The Appellate Court s decisions in Johnston and Simpson cases considered the effect of Section 6(f) presumptions in determining compensability of two firemen s heart attack claims. Both Petitioners argued the Commission s denial of benefits was against the manifest weight of evidence. Both claimed the Commission had not given sufficient weight to the Section 6(f) rebuttable presumption that a heart or vascular disease or condition.... shall be rebuttably presumed to arise out of and in the course of the employees firefighting.... and, further shall be rebuttably presumed to be causally connected to the hazards or exposures of the employments. In both the Appellate Court considered how much contrary evidence was necessary to rebut the Section 6(f) statutory presumption of compensability. The Court cited Diederich v. Walters, 65 Ill. 2d 95, at (1976) wherein the Supreme Court considered the procedural effect for rebuttable presumption. The presumption creates a prima facie case requiring the party against whom it operates to come forward with evidence to meet the presumption. However, once (some) evidence opposing the presumption comes into the case, the presumption ceases to operate, and the issue is determined on the basis of the evidence adduced at trial as if no presumption had ever existed. The Court went on to state that the burden of proof thus does not shift but remains with the party who initially had the benefit of the presumption. Once evidence contrary to the presumption is introduced the metaphorical bubble burst. Thereafter, the Commission could consider evidence as if the presumption had never existed. In Johnston, the Court then went on to discuss the nature of the presumption. It noted that some presumptions are strong. Strong presumptions require proof greater than the preponderance but not quite approaching the criminal standard of proof beyond a reasonable doubt.: Id., citing Enbridge Energy (Illinois), L.L.C. v. Keurth, 2016 IL App (4 th ) A strong presumption is common in a fiduciary relationship. Section 6(f) is silent as to the amount of evidence required to rebut the presumption. The Court then considered whether the 6(f) presumption is in the strong or ordinary category. The language in Section 6(f) itself did not address whether only some evidence is sufficient or whether clear and convincing evidence is necessary to overcome the presumption. The Court turned to the legislative history behind Section 6(f) and considered Representative Hoffman s, the bill s sponsor, explanation during the floor debates for guidance on the legislative intent. In explaining the import of the then proposed legislation Representative Hoffman explained the presumption doesn t mean that you have proven beyond any doubt or conclusively that this happened on the job, it only means that the employer can come in and bring contrary evidence as to whether or not it happened on the job. Based on that legislative history, the Court concluded in Johnston that Section 6(f) does not involve a strong presumption. In Johnston, Justice Holdridge dissented, asserting that the presumption required the fact finder to presume that the claimant s work as a firefighter was a contributing cause of his underlying cardiovascular condition which caused his heart attack and his ensuing disability. He believed

3 the employer did not present some contrary evidence suggesting the claimant s employment was not a contributing cause. He also differed in the analysis of statutory construction. The Simpson decision reached the same conclusion. There the claimant experience moderate painful symptoms when at home having cleaned out his garage, and showered. At the emergency room, a cardiologist reported the claimant s cardiac enzymes were elevated and that he had a heart attack. In both Johnston and Simpson, the issues were disputed by medical experts on both sides, including Dr. Fintel, who testified for both respondents. The Arbitrator found the case compensable. Again, the Commission considered the import of the specific presumption. It held the Respondent in Simpson to a higher standard than applied under nearly identical circumstance to the Respondent in Johnston. In Simpson, the Commission determined that Section 6(f) required stronger evidence in order to overcome the presumption. Nonetheless, the Commission felt that the city had successfully rebutted the strong presumption. The Circuit Court confirmed the Commission. The Appellate Court s decision in the Simpson case was on April 18, Five days after it decided Johnston then it restated its bubble-bursting metaphor in Simpson and determined that the Commission s decision was not against the manifest weight of evidence. Further, in Simpson, Justice Holdridge again dissented for the reasons given in his Johnston dissent. 4. Schroeder v. Illinois Workers Compensation Comm n, 2017 IL App (4 th ) WC (The chain of events principle is a logical one and applies to healthy and less healthy workers who sustain greater injuries). The Schroeder case is a chain of events case. In Schroeder, though, the Petitioner was working but was not a picture of health. Of course, there was conflicting medical evidence. Nanette Schroeder worked for the Respondent, Swift Transportation, for 5 to 6 months in After having had several back surgeries and qualifying for Social Security Disability she sought to return to work for the Respondent. It insisted that she had to undergo a physical examination at its direction. She passed the test as well as an IDOT physical. She returned to work with the employer in May In her 5 or 6 months working with the Respondent after may 2013 she missed only 4 days. Although she was not allowed to drive at certain times of the day because of yet another condition, her underlying fibromyalgia, she had no restriction in her work up until a work-related accident on 12/19/13. On that date, she slipped and fell while making a delivery at Wal-Mart. She promptly went to the emergency room. After 12/19/13 the Petitioner did not return to over-the-road truck driving again. After considering conflicting expert opinions, the Arbitrator found the Petitioner s condition after the work-related accident was not causally related to the event. The Commission reversed noting that the Arbitrator had failed to consider that the claimant was able to work full time up until the accident. It explained that a chain of events which demonstrates a previous condition of good health, an accident, and a subsequent injury resulting in disability may be sufficient circumstantial evidence to prove a causal nexus between the accident and the employee s injury. The Commission felt that Petitioner s relative good health prior to her work-related accident was good enough to employ the same logic.

4 The Appellate Court addressed whether the Commission s decision confirming a causal relationship based on a chain of events analysis was against the manifest weight of evidence. Initially, the Court considered whether the Commission had properly applied the chain of events principle. The Respondent claimed that it had not because prior to the accident the Petitioner was not in good health. It claimed that the Commission had no authority to modify the chain of events principle. The Court noted that the chain of events principle is not one of law but commonsense. In considering the common-sense standard the salient factor is not the precise previous condition; it is the resulting deterioration from whatever the previous condition had been. Indeed, had no case ever articulated this logic, the Commission could have drawn this inference simply as a reasonable factual inference. Following the Supreme Court s decision in International Harvester, 93 Ill. 2d at 63-64, it declined to require that a claimant s previous health be good in order for the chain of events principle to still be probative on the causation issue. Applying the chain of events principle only to those in absolute good health would contradict years of Illinois precedent since an accident need be only a cause of a condition. The Court pointed out that its decision is consistent Caterpillar Tractor Co. v. Industrial Commission, 92 Ill.2d 30 (1982) holding that if an accident accelerates the need for surgery a claimant may recover under the Act. 5. Hoffman v. Madigan, 2017 IL App (4th) (The Attorney General is the proper representative of State Agencies, even of those that do not agree with her tactics) The Hoffman case has limited applicability to most of our practices. Michael Hoffman, Director of Central Management Services (CMS), filed a complaint to enjoin Lisa Madigan, Attorney General of the State of Illinois, from representing CMS before the Workers Compensation Commission on cases involving personal assistants. Attorney Madigan refused to defend CMS s determination that a personal assistant was not a State employee. CMS wanted representation from an attorney would dispute the employer/employee relationship. The Disabled Persons Rehabilitation Act (TDPRA) (20 ILCS 2405/1 (West 2014) allows the use of personal assistants to prevent unnecessary or premature institutionalization of persons with disabilities. If injured during the course of work as a personal assistant, the assistant might file a workers compensation claim alleging he is a State employee. CMS believed for workers compensation purposes such an assistant is not employed by the State and that its legal representative must therefore argue before the Commission the proposition that claimants are not State employees. The Attorney General refused to so argue and further objected to the CMS request to choose a special Assistant Attorney General who would. The Attorney General moved to dismiss the CMS complaint filed in the Circuit Court of Sangamon County. The Circuit Court granted the motion to dismiss finding that the complaint failed to state a cause of action upon which relief could be granted. The matter proceeded to the Fourth District Appellate Court. The Court cited Article V, Section 15, of the Illinois Constitution of 1970 provides: The Attorney General shall be the legal officer of the State, and shall have the duties and powers that may be prescribed by law. The Court noted that the Constitution conferred broad powers in the Illinois

5 Attorney General as contrasted with more limited powers available in, for example, Arizona. After discussing various precedents (primarily relevant to those working for the State), the Court affirmed the Trial Court s judgment, dismissing the CMS complaint to enjoin the Attorney General from representing it before the Workers Compensation Commission involving personal assistants. 6. Holstine v. The Illinois Workers Compensation Comm n, 2017 IL App (2d) WC Supreme Court Rule 23 Decision 7. Crittenden v. Illinois Workers Compensation Comm n, 2017 IL App (1st) WC (The Commission must consider whether alternative work is suitable even if it not satisfied with the claimant s efforts to find work) The Holstine case is meaningful when read in conjunction with the Crittenden case cited above. In Crittenden, the Commission believed the Petitioner did not make a good-faith effort to find work. A vocational counselor identified several job opportunities. The Commission rewarded the Petitioner for his lack of effort by insisting that he could perform that with the highest earnings. The prospective job with the highest earnings was work as a bus driver. The Petitioner did not have a driver s license. The Appellate Court held that in order to calculate a wage differential award the Commission must identify an occupation claimant was actually able and qualified to perform based on the evidence in the record. This was not an earth-shaking decision. The Holstine case, decided in March 2017, is similar. In Holstine, the Petitioner was a roofer who sustained an injury to his leg and hip. He was not able to complete the required tasks of a roofer in light of his injuries. The Arbitrator declined to award an 8(d)1 wage loss award and instead awarded an 8(d)2 award for 50% of a person. The Circuit Court affirmed. The Appellate Court, in a Rule 23 decision, found the Commission s denial of a wage differential award against the manifest weight of evidence. It remanded the matter to the Commission with directions to enter the wage differential award. The Petitioner s roofing job required him to carry 35 to 40 lbs. and climb ladders 10 to 40 feet high, 4 to 15 times a day, often while carrying materials. Following his injury and treatment, the Petitioner underwent a FCE which noted that he was capable of only occasional ladder climbing. The treating doctor thought he could not climb ladders and restricted him even more than the FCE recommendations. In light of the restrictions, the Petitioner could no longer work as a roofer. He picked up side remodeling jobs from time to time for a remodeling contractor, Jim Wojcik. The Petitioner turned down other side jobs due to his work restrictions. Wojcik testified that he repeatedly offered the Petitioner a safety monitor position paying $40 an hour requiring climbing a 10-foot ladder and walking around all day but with no lifting. The Arbitrator found that the claimant had secured suitable employment as contemplated by Section 8(d)1 paying $ weekly. His earnings, then, were greatly reduced from the $1, he would have earned but for the accident. The Arbitrator was disturbed, though, that the Petitioner had declined 3 job offers in a $40/hour range. The Arbitrator found those jobs requirements were within the physical restrictions of the treating doctor. The Commission found the Petitioner had secured suitable employment as contemplated

6 by Section 8(d)1. It denied the differential award since the Petitioner declined offers paying $40/hour range for jobs apparently within the physical restrictions imposed by the treating doctor. The Kane County Circuit Court affirmed. The Appellate Court cited General Electric Co. v. Industrial Comm n, 89 Ill.2d 432, 43, 433 N.E.2d 671, 674 (1982) wherein the Supreme Court expressed preference for wage differential awards in cases wherein claimants lost earnings. Further, the Appellate Court noted that in Gallianetti v. Industrial Comm n, 315 Ill.App.3d 721 (2000), it stated that Where a claimant proves he is entitled to a wage-differential award, the Commission is without discretion to award a Section 8(d)(2) award in its stead except where the claimant waives his right to recover under Section 8(d)(1). The Court noted that neither party disputed the Commission s finding that the claimant s work injury resulted in a partial incapacity preventing him from pursuing his usual and customary line of employment. It then focused on the capacity to earn, not necessarily the amount earned. The Court found that the record refuted the Commission s findings since the positions it identified as within the Petitioner s restrictions were not; each would have required the claimant to climb ladders and stand all day. The FCE recommended that he stand no more than 4 to 6 hours a day. The Court reminded that our supreme court has held the focus is on the capacity to earn not necessarily the amount earned quoting Cassens Transport Co. v. Industrial Comm n, 218 Ill.2d 519, 531, 844 N.E.2d 414, 424 (2006). 8. Elizabeth Ray v. The Illinois Workers Compensation Commission, 2016 IL App (3d) (November 9, 2016) 9. Alexandria Dawson v. Net 56, Inc., 17 IWCC 0346(Claimant s condition subsequent to intervening accident must be completely unrelated to her at-work accident to break causal chain) An issue in the Ray case was the effect of an intervening accident. The Arbitrator awarded benefits as a result of the original job-related injury. The Commission overruled, finding that the intervening accident had severed the causal relationship. The Circuit Court agreed. The Appellate Court did not. On April 16, 2012 the Petitioner had a work-related injury. The treating doctor noted that the Petitioner s condition persisted through July 31, Later in the fall of 2012 she had increased difficulties and underwent additional SI joint injections with no long-lasting relief. The treating doctor felt she might be looking at surgical intervention to fuse the joint. During the treatment process the Petitioner had taken on babysitting duties. The treating doctor believed those activities could aggravate her condition and further hurt her low back. More important, in November 2012, the claimant had suffered a fall requiring a trip by ambulance to the hospital for increased complaints of her back. The treating doctor testified that Petitioner s persistent problems after November 2012 nevertheless were related to the original injury on April 16, The Petitioner denied being hurt while babysitting. While she conceded that she had had a fall on November 30, 2012, she claimed she did not experience an increase in lumbar symptomology. The Arbitrator found the Petitioner to be a creditable witness and found that with

7 any difficulties while babysitting were consistent with restrictions from the job accident and did not rise to a new accident. The Commission, though, found the Petitioner s testimony less than creditable. It found the November 30 th fall to be an intervening cause that broke the causal chain changing the nature of the injury including the new symptoms requiring new treatment. The Appellate Court addressed a single issue, whether the Commission s findings regarding the intervening accident was contrary to the manifest weight of evidence. It stated that Every natural consequence that flows from an injury that arose out of and in the course the claimant s employment is compensable unless caused by an independent intervening accident that breaks the chain of causation between the work related injury and an issuing disability or injury Vogel v. Industrial Comm n, 354 Ill.App.3d 780, 786 (2005). While a job accident need only be a causative factor in a claimant s injury, for an intervening cause to limit an employer s liability under the Act, it must completely break the chain of causation. Here, the Commission addressed the issue of whether the nature of the injury changed. The approach applied an incorrect legal standard. The Court noted that the fact that the claimant s condition worsened is not enough to avoid liability. The proper question was not whether the nature of or treatment for claimant s condition changed, it was whether claimant s condition subsequent to the November 30 fall was completely unrelated to her at-work accident. In other words, the Commission would have had to find that claimant s condition as it related to her work-related accident had completely resolved sometime in November and that her subsequent condition of ill-being was completely new and flowed from the November 30 fall, which coincidentally injured precisely the same body part. Alternatively, the Commission could have also found the claimant suffered from two distinct and unrelated conditions in the very same body part. Here, it defies creditability to find that the well documented injury prior to November 30 was completely unrelated to her condition after, although the same body parts were at issue and the same treatment contemplated. Following the opinion in Ray, the Commission decided the case of Alexandria Dawson v. Net 56, Inc.,17 IWCC 0346 on June 6, It explained that the main issue before us is whether the surgery was related to the automobile accident or Petitioner s work accident. Here, the Petitioner had injured her right shoulder on January 4, 2007 working as a computer repair technician. She underwent four surgeries to her shoulder, the last being in Thereafter, she still had a great deal of difficulty. The case was settled with open medical. On March 19, 2012, Petitioner consulted with Dr. Craig Portland at the Illinois Bone & Joint Institute for her right shoulder although she had worsening symptoms in the left. On April 5, 2012, she followed up with Dr. Portland for the left shoulder. On June 19, 2013, she was involved in what she called a minor car accident bumping her should into the door. She described increased moderation of pain that was not extreme or bad. Thereafter, she underwent another surgery on her right shoulder. The Respondent s physician, Dr. Aaron Bare, testified for the Respondent. He noted that the Petitioner had not treated for her right shoulder between early 2011 and the car crash on 06/19/13. The Petitioner had consulted physicians several times in The Commission concluded that Due to the fact that she did not seek medical care for 2 ½ years suggested that her pain, while most likely present, was stable and did not worsen or accelerate and thus she did not seek medical care until the motor vehicle

8 accident caused an additional problem to her shoulder that required medical care. Dr. Bare felt any treatment for the right shoulder after the motor vehicle accident is based on the motor vehicle accident. Further, the motor vehicle accident was the sole cause of her need for medical care for her shoulder after June 19, The Petitioner did not submit evidence stating that the treatment she received for right shoulder following the car accident was related to her work accident. The Respondent submitted evidence from Dr. Bare that the Petitioner s care following the crash was related only to the crash. The Commission considered that opinion persuasive. 10. Linda Gean v. University of Illinois at Chicago Hospital, 17 IWCC 0350 (June 8, 2017) (Arising out determination requires that a petitioner be exposed to a greater risk as a result of her employment) The Petitioner was employed as a nurse technician whose duties included prepping patients for surgery and transferring them to the operating room. On the way to surgery she passed by nurses stations. While walking near the operating room control desk her foot was caught under a rolling chair being used by co-worker. She fell and alleged injury. The Arbitrator believed the Petitioner did not prove that she sustained an accident that arose out of her employment. He wrote that she failed to prove the activity that caused her injury was either incidental to her employment or that she was exposed to a neutral risk to a greater degree than the general public. The Commission over-ruled. Citing Caterpillar Tractor Co. v. Industrial Comm n, 129 Ill.2d 52, 58 (1989), the Commission distinguished the three categories of risk: (1) Risks distinctly associated with employment such as the risk of tripping on a defect at the employer s premises; (2) Risks personal to the employer such as idiopathic falls; (3) Neutral risks that have no particular employment or personal characteristics and to which the general public is equally exposed. Neutral risk can be compensable, though, only where the employee is exposed to the risk to a greater degree than the general public. It may be qualitative such as when some aspect of the employment contributes to the risk, or it may be quantitative such as when the employee exposed to a common risk more frequently than the general public. Here the Commission found that under a qualitative risk analysis, a co-worker pushing her chair backward into Petitioner s path at the control desk in an operating room is a risk of her employment. 11. Garcia v. Bimbo Bakeries USA, No. 13 WC (June 2, 2017) (read in conjunction with Millennium Knickerbocker Hotel v. Illinois Workers Compensation Comm n, 2017 IL App (1st) WC (Authority of the Commission to enforce and assess penalties after an award is final)

9 In Garcia, the parties had settled the claim with an agreement to pay all necessary and related medical expenses pursuant to the fee schedule or negotiated rate, whichever is less, incurred through the date of contract approval. The issue was whether the Respondent had to pay for emergency treatment and whether it should be assessed attorney s fees for failing to do so. The Petitioner had felt nauseous following shoulder surgery. Two days later, continuing to have the problem, she visited the emergency room. The ER history was consistent with her having had problems prior to discharge post-shoulder surgery. She had no other risk factors for her nausea. Petitioner s attorney had submitted a demand to the Respondent to pay the charges. Having gone unpaid, the hospital garnished the Petitioner s wages. The Commission considered whether it had authority to grant relief under 8)a) in light of Millennium Knickerbocker Hotel. The Commission concluded that it had no authority to re-open the case for a new hearing under Section 8(a) or to enforce a settlement contract but concluded also that it could address collateral matters such as penalties. It therefore awarded penalties pursuant to 19(k) and 19(l) along with attorney s fees pursuant to Section 16. Incidentally, the penalty award was entered although Petitioner did not submit medical testimony to support the causal relationship between the nausea and the surgery.