November 29, 2020

Volume X, Number 334

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Significant Decisions: Illinois Workers' Compensation Commission

Traveling Employees

Pryor v. Illinois Workers' Compensation Comm'n, 2015 IL App (2d) 130874WC.

The claimant worked as a car hauler and his job included loading automobiles onto an 18-wheel truck at the employer's terminal and delivering cars to various dealerships. The claimant usually drove his personal vehicle from his home to the employer's terminal to begin work. One or two nights a week, the claimant spent the night at a hotel while on the road delivering cars. On the day of the injury, the claimant planned to drive from his home to the employer's terminal to start his work and because he anticipated being out of town overnight, he packed a suitcase. The claimant carried his packed suitcase to his personal car and while bending and turning to the back seat of the car to place the suitcase, felt a pain through his back and down his legs. The arbitrator and Illinois Workers' Compensation Commission found lifting an overnight bag was not an accident that occurred in the course of his employment. The Commission further found that the risk of injury was personal and not incidental to claimant's employment so the injury did not arise out of the employment. The Appellate Court, Workers' Compensation Commission Division, affirmed and concluded that claimant had not yet entered the role of a traveling employee as he was merely preparing to begin his regular work commute from his home to a fixed jobsite when he was injured. Therefore, the injury did not arise out of and in the course of his employment.

IMPACTPryor reiterates the importance of establishing when the claimant actually begins "traveling" for purposes of bringing the risk of injury under the reasonable and foreseeable umbrella of the traveling employee doctrine.

Arising Out Of

Nee v. Illinois Workers' Compensation Comm'n, 2015 IL App (1st) 132609WC.

The claimant, a city plumbing inspector, was injured after tripping on a curb as he was walking back to his car to go to his next work assignment. The claimant typically began his day at the filtration plant, where he received his work assignments and then left for inspections. At arbitration, the claimant argued, and the employer admitted, the claimant was a traveling employee. The arbitrator found the claim compensable, but the Commission reversed and denied the claim, finding the claimant had failed to prove he sustained accidental injuries arising out of the employment.

The appellate court reversed concluding the claimant was a traveling employee and finding that the claimant's conduct in traversing the curb was "reasonable and foreseeable," given his traveling employee status. The court analyzed the issue in light of "increased risk" and initially noted the risk of tripping on a curb is one to which the general public is exposed daily. However, as a traveling employee, the claimant was exposed to the risk of traversing a curb to a greater degree than the general public. Moreover, the court applied the "street risk" doctrine, noting that when a claimant's job requires him to travel the streets, the risks of the street become one of the risks of his employment. Moreover, where a traveling employee is exposed to the risk while working, "he is presumed to have been exposed to a greater degree than the general public."

IMPACT: Aside from not admitting that an employee is a traveling employee when defenses may be available, Nee reminds us that traveling employees are not just truck drivers who travel over the highways. Local businesses and governments who have employees traveling around town may well find their employees classified as traveling employees, and thus be subject to the lower threshold of what risk was "reasonable and foreseeable."

Adcock v. Illinois Workers' Compensation Comm'n, 2015 IL App (2d) 130884WC.

The claimant performed welding duties requiring him to weld approximately 70 locks per day. Due to a prior right knee injury, the claimant sat in a rolling chair provided to accommodate his condition while performing work-related tasks. On the date of accident, claimant used his left leg to turn his body to perform a welding task when he felt a pop in his left knee and experienced immediate pain. The arbitrator found that conducting welding duties out of a rolling chair was not an activity to which the general public would normally be exposed and, thus, concluded the injury "arose out of" claimant's employment. On review, the Commission denied benefits, finding that turning in a chair is an activity of daily living and did not constitute a compensable injury. The Commission further found that turning in a chair did not expose the claimant to a greater degree of risk than the general public and that it was not a risk that was distinct to his employment.

The appellate court reversed the Commission's decision and determined the injury resulted from a neutral risk of daily living - turning in a chair. Injuries resulting from a neutral risk generally do not "arise out of" employment unless the claimant was exposed to the risk to a greater degree than the general public. The court found that the claimant turning in his chair was an activity of daily living, but concluded that the claimant's job required him to move and turn in his chair continually. Thus, due to his work, he confronted a neutral risk of daily living to a greater degree than the general public. Notably, the court disagreed with the special concurrence, which argued that a finding that claimant was injured while performing an activity instructed by his employer, or an activity which might reasonably be expected to be performed, was sufficient to find the injury arose out of the employment. The majority held that benefits should not be awarded for injuries caused by everyday activities like walking, bending, or turning, even if the employee was ordered to perform those activities as part of his job duties, unless the employee's job required him to perform those duties to a greater degree than the general public.

IMPACT: Adcock signals a retreat from prior cases that had expanded the arising out of element by simply focusing on whether the activity being performed was part of the claimant's job duties, and imposes a requirement that the employee encounter a risk with increased frequency versus members of the general public.   

Bolingbrook Police Dept. v. Illinois Workers' Compensation Comm'n, 2015 IL App (3d) 130869WC.

The claimant, an officer for the Bolingbrook Police Department, was preparing for work by loading his required gear, including his duty bag, into the trunk of his personal vehicle at home when he sustained a low back injury. He was required to keep this bag on his person while on duty. There were no prohibitions from bringing this bag home at the end of his shift. The claimant admitted that he had a preexisting low back condition. The arbitrator found that claimant sustained an injury "arising out of" and "in the course of" employment and that a causal connection existed between the alleged accident and the claimant's current condition of ill-being. The Commission affirmed the decision. On appeal, the employer argued that the claimant was not required to bring his duty bag home and that the accident did not occur "in the course of" employment because the accident occurred at claimant's home.

The appellate court disagreed, finding that the claimant was responsible for the safekeeping of his duty bag as part of his job duties. He was also required to keep the duty bag with him on his person and that the employer, through this policy, gave him two options to secure the bag: at home or at the police station. The court concluded that the employer enjoyed a direct benefit because the officer performed a task that is necessary for the safekeeping of his duty bag. Based on the physician's opinion that the act of lifting a heavy duty bag could cause an increase in pain in an individual with a preexisting back condition, the court found claimant's current condition of ill-being was causally related to the work accident.

IMPACT: An employer should specifically delineate the circumstances when an employee may perform work at home or take work home.

Total Temporary Disability Benefits

Sharwarko v. Illinois Workers' Compensation Comm'n, 2015 IL App (1st) 131733WC.

The claimant sustained a right arm injury while replacing a water meter on a property owned by his employer. The employer was able to accommodate work restrictions imposed by claimant's treating physician and while recovering from surgery, he received temporary total disability benefits. The claimant was later released to return to work with restrictions, but he never returned to work prior to accepting a voluntary early retirement offered by the employer. A representative of the employer testified that had the claimant not retired, it would have accommodated his work restrictions as it had with other similarly situated employees. The employer continued to pay for related medical treatment after the claimant's retirement through his release at maximum medical improvement, but denied payment of TTD benefits due to claimant's voluntary retirement.

The appellate court affirmed the Commission's finding that the claimant's voluntary retirement was tantamount to refusing the accommodated work the employer had made available and, as a consequence, he was not entitled to temporary total disability benefits. The court stated the purpose of the Act is to compensate an employee for lost earnings resulting from work related injuries and when an employee chooses to remove himself from the workforce, his lost earnings are the result of a volitional act, not his work related injuries which relieves the employer's responsibility for paying TTD under Interstate Scaffolding. The court also found the Commission's decision denying permanent and total disability benefits was not against the manifest weight of the evidence noting the Commission relied upon doctors' opinions that claimant could work with restrictions, those restrictions were made available by the employer, and claimant failed to provide evidence of any job search after he reached maximum medical improvement.

IMPACT: When a claimant who is not at MMI retires voluntarily when there is work available within his restrictions, he has taken himself out of the light duty available work.

Wage Differential

Lenhart v. Illinois Workers' Compensation Comm'n, 2015 IL App (3d) 130743WC.

The claimant worked as a dockworker and truck driver and sustained an injury to his low back. The arbitrator found the claimant's accident compensable and awarded him odd lot permanent total disability benefits in spite of the employer's surveillance and vocational rehabilitation evidence that the claimant was capable of working, albeit not in his pre-accident capacity. The employer then appealed to the Illinois Workers' Compensation Commission, arguing that wage differential benefits were the appropriate measure of permanency. The Commission reversed in the employer's favor, but awarded 75 percent loss of use of the whole person.

On appeal, the claimant argued for permanent total disability or, in the alternative, wage differential benefits. The appellate court reversed the Commission's person-as-a-whole award, finding the claimant had presented sufficient evidence to support a wage differential award and remanded the claim to the Commission for further consideration. The court noted the preference for wage differential awards under Section 8(d) of the Act, even though the claimant did not specifically request a wage differential at arbitration. According to the court, the claimant never explicitly elected to waive his right to recover a wage differential award under Section 8(d)(1) and the claimant's request for permanent total disability benefits was not a waiver of right to other recovery, particularly when the employer itself asked the Commission to grant a wage differential and the record supports such an award.

IMPACT: Lenhart suggests that absent an explicit waiver of wage differential benefits, an award under Section 8(d)1 will be available to the claimant if there is evidence in the record to support one, even if the claimant does not request it.

Survival of Benefits

Bell v. Illinois Workers' Compensation Comm'n, 2015 IL App (4th) 140028WC.

An unmarried claimant with no living dependents filed an application for adjustment of claim but subsequently died from unrelated causes prior to arbitration. The decedent's sister, as the administrator of decedent's estate, filed an amended application substituting herself as the claimant in the case. The arbitrator awarded temporary total disability benefits, medical expenses, and found that the decedent sustained permanent partial disabilities from her work injury. Nevertheless, the arbitrator did not award permanent partial disability benefits, having determined that the right to permanent partial disability benefits abated at decedent's death. According to the arbitrator, sections 8(e)(19) and 8(h) of the Act authorized permitted named individuals – a surviving spouse or dependents – to continue an injured employee's claim for permanency benefits after death, but did not authorize a claimant's estate to recover permanent partial disability benefits which accrued prior to death where no dependents exist. The Commission affirmed the arbitrator's decision.

The appellate court reversed holding that sections 8(e)(19) and 8(h) only addressed "to whom" benefits will be paid, and not what happens to benefits if the claimant dies without leaving a living spouse or dependents. The court held that unpaid permanent partial disability payments that accrue prior to claimant's death are payable to the estate. The court relied on Republic Steel Corp. v. Industrial Comm'n, 26 Ill. 2d 32 (1962) (finding that an employee's death extinguishes payments falling due after death, but administrator of estate may recover payments accrued up to the date of death), and Nationwide Bank & Office Management v. Industrial Comm'n, 361 Ill. App. 3d 207 (1st Dist. 2005) (finding that the enactment of section 8(h) does not address accrued benefits, but rather installment payments, and does not affect the right to collect benefits accrued prior to death) in finding that the right to accrued benefits does not abate at death. The court also noted public policy reasons for its holding, including deterring employers from delaying litigation to the point of the claimant's death in order to avoid payment of permanency benefits.

IMPACT: Claims may now survive in favor of the estate even where there are no descendants as listed under the Act. A claim does not abate due to the employee's death.

Loaned-Borrowed Employee

Reichling v. Touchette Reg'l Hosp., Inc., 2015 IL App (5th) 140412.

The claimant, a registered nurse who worked for Touchette Regional Hospital through a temporary healthcare staffing agency, ReadyLink, received workers' compensation benefits from ReadyLink after slipping on a wet floor in the Emergency Room of Touchette and sustaining injuries. An agreement between ReadyLink and Touchette provided that ReadyLink indemnified and held Touchette harmless from responsibilities including workers' compensation coverage. The claimant also filed a common law premises liability claim against Touchette, under the theory that she was not a "borrowed-employee" at the time of injury, therefore the exclusive remedy provisions of the Act would not bar her claim. Touchette filed a motion for summary judgment arguing that the claimant was a borrowed-employee at the time and was subject to the Illinois Workers' Compensation Act as her exclusive remedy. The motion was granted, disposing of the common law suit.

A two prong test exists to establish a borrowed-employee relationship. First, it must be determined whether the alleged borrowing-employer had the right to direct and control the manner in which the employee performed the work. Next, it must be determined whether there was an express or implied contract of hire between the employee and the alleged borrowing-employer. Here, Touchette was responsible for providing work directives, scheduling, providing supplies, and discipline among other duties. ReadyLink had no contact with the employees regarding their work duties or scheduling. Further, the claimant was required to sign a "Memo of Understanding" through Touchette, which provided details regarding her work at Touchette. The documentation provided indicated that her employer was ReadyLink and acknowledged that Touchette's managers would be her resources for safety and hazard information. On claimant's appeal, the court found that because Touchette was primarily responsible for the direction and control of the work that the claimant performed, including scheduling, work orders, supplies, and discipline, the first prong of the borrowed-employee test had been met. Further, because Touchette required acknowledgement of the documentation contained within the "Memo of Understanding," the court found that an express contract of hire between the claimant and Touchette existed. Therefore, the Appellate Court affirmed the circuit court's holding, finding the claimant was a borrowed-employee of Touchette and was only entitled to action exclusively within the Illinois Workers' Compensation Act. 

IMPACT: Documentation of the relationship and expectations of the borrowing employer of the claimant was important to establish the borrowed employment relationship in this case and preclude a common law action against the borrowing employer.

Penalties

Oliver v. Illinois Workers' Compensation Comm'n, 2015 IL App (1st) 143836WC.

The claimant, a welder, sustained an elbow injury while in the course of his employment. The claimant reported the accident six days after the date of accident. The claimant did not immediately seek medical attention for his swollen elbow; however, claimant testified that over the next several days, the pain worsened and he presented for medical treatment. The treatment records clearly indicated that the claimant sustained a full-thickness tear involving the triceps tendon. The employer denied temporary total disability benefits and payment of medical expenses, claiming it needed additional records to determine compensability. At arbitration, the site superintendent for the employer testified that he knew of no factual or medical basis to dispute that that injury had occurred. He further said he did not allow the claimant to file an accident report because the accident occurred six days prior to the date that claimant reported the injury. Based upon this evidence, the arbitrator awarded penalties under section 19(l) of the Act finding that the employer's failure to pay temporary total disability benefits and medical expenses was unreasonable and vexatious as claimant's medical records fully supported a claim. The Commission reversed the arbitrator's decision finding that the employer did not act unreasonably in denying benefits on the grounds that the claimant failed to report the injury the day of the accident and the claimant did not appear to be in pain on the date of accident.

The circuit court reversed, finding the Commission's decision directly violated the Act, which affords 45 days to report an accident. Because the employer's only basis for denial of benefits was for the purpose of delay, the employer's actions were unreasonable and vexatious.

On appeal, the appellate court affirmed the circuit court's decision. According to the appellate court, the Commission had attempted to set a precedent requiring all accidents to be reported on the day of their occurrence. Further, the court stated that if the employer had allowed the claimant to file an accident report, properly investigate the accident, and then found that there was no causal connection, the employer's delay in issuing payment would be wholly reasonable and not vexatious.

IMPACT: Accident and notice defenses must be thoroughly and immediately investigated and raised where appropriate. A delay in filing an accident report, especially an unwitnessed accident, should still be a ground supporting a defense, but must be adequately documented.            

Exclusive Remedy Provisions

Folta v. Ferro Engineering, 2015 IL 118070.

The decedent, James Folta, worked for Ferro Engineering from 1966 to 1970 and alleged that as part of his job duties, he was exposed to asbestos-containing products. Forty-one years later, James was diagnosed with mesothelioma, and one month later, in May 2011, he filed a civil law suit in circuit court against 15 defendants, including Ferro. Ferro moved to dismiss, raising the exclusive remedy provisions of the Workers' Compensation and Occupational Diseases Acts, and arguing the claim was barred by the 25-year statute of limitations/statute of repose. The circuit court granted Ferro's motion, but the appellate court reversed, finding that an injured employee may bring a common law action against his employer when the injury is not compensable under the Act. The appellate court concluded that the term "compensable" must relate to the ability to recover under the Act, and because the estate could not recover under the Act, his claim was not compensable.

Ferro appealed to the Illinois Supreme Court, which reversed and upheld the dismissal based on exclusive remedy grounds. In discussing the scope of the exclusivity provisions under the two Acts, a majority of the Court found the Acts generally provide the exclusive means by which an employee can recover against an employer for a work-related injury. In evaluating whether the claim was compensable under the Act, the majority focused on plain language of the two statutory provisions, which provided that in cases of death occurring within 25 years from the last exposure to asbestos, an application for compensation must be filed within 3 years of the death. This plain language created an absolute bar on the right to bring a claim. The majority concluded the General Assembly intended to provide a definitive time period within which all claims arising from asbestos exposure must be brought. The majority noted that construing the scope of the exclusive remedy provisions to allow for a common-law action would result in the statute of repose ceasing to serve its intended function, which is to extinguish the employer's liability for a work-related injury at a definite time.

IMPACT: The exclusive remedy provisions of the Act are strong and apply to bar a potential claim for asbestos even after the time has expired within which such a claim can be filed, and even when the claimant's condition had not manifested itself within the time for filing such a claim.

AMA Reports – Section 8.1b

Continental Tire of the Americas, LLC, v. Illinois Workers' Compensation Comm'n, 2015 IL App (5th) 140445WC.

The claimant slipped and fell at work sustaining a wrist fracture. The claimant received treatment for his wrist fracture and was eventually released to return to work full duty with no restrictions. At the time he was released, the treating orthopedist indicated claimant's wrist was doing well, although claimant testified that he continued to have some pain when grabbing tires and playing golf. At arbitration, the employer offered an AMA impairment report prepared by claimant's treating orthopedist which indicated claimant's impairment rating was zero. Claimant did not offer an AMA impairment report. Based on the remaining four factors included in section 8.1b(b) of the Act, the arbitrator found claimant was entitled to a five percent loss of use of the hand permanency award. The Commission affirmed the arbitrator's decision. The employer appealed, arguing that the AMA impairment rating of zero precluded consideration of the remaining four factors contained in section 8.1b(b) of the Act as a matter of law.

The Appellate Court, Workers' Compensation Commission Division, affirmed the Commission's decision. It rejected the employer's argument that a zero AMA impairment rating precluded consideration of the other four factors to establish permanency in section 8.1b(b) (age, occupation, future earning capacity, and evidence of disability as corroborated by the treatment records.) The court found that section 8.1b(b) required consideration of all factors and that no single factor is the sole determinant of disability. Importantly, the court gave the Commission great deference as the fact finder to its permanency decision, noting the Commission is in the best position to weigh evidence of permanency - an AMA impairment rating and the other four factors. The court held that the Commission's decision was not against the manifest weight of the evidence because the Commission considered the AMA impairment report along with the other factors in section 8.1b(b) and outlined its findings in the decision.

IMPACT: The Commission can make an award of permanency based on all five factors, even in the face of a zero AMA impairment rating.

© 2020 Heyl, Royster, Voelker & Allen, P.CNational Law Review, Volume VI, Number 61
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