Synopsis: Illinois Appellate Court, Workers’ Compensation Division holds Petitioner must appeal a Commission decision finding she failed to prove condition of ill-being causally connected to the work incident in order for an Arbitrator, on remand, to reopen the claim and consider additional evidence regarding causal connection.

Editor’s Comment: The facts in Help at Home v. Illinois Workers’ Compensation Commission, (No. 4-09-0977WC, issued November 22, 2010), involved a 19(b) hearing where the Arbitrator found Petitioner sustained injuries to her low back and right shoulder arising out of and in the course of her employment with Help at Home.

It is important to understand the employee or her counsel did not appeal the ruling. We note Help at Home filed a petition for review with the Commission.

The Commission found Petitioner “failed to prove that her condition of ill-being as it pertains to her right shoulder is causally connected to the accident.” The Commission remanded the matter to the Arbitrator and stated, “the Arbitrator may consider any additional evidence with respect to the causal connection of the right shoulder to the accident.”

As we indicate above, the employee did not appeal that ruling but Respondent Help at Home filed a petition for judicial review with the Circuit Court of Morgan County to block remand and a new hearing. The Circuit Court confirmed the Commission’s decision finding the Commission did have authority to remand to the Arbitrator for the purpose of considering additional evidence with respect to the causal connection of the right shoulder.

This appeal followed with Help at Home arguing the Circuit Court erred in confirming the Commission decision. The Appellate Court cited the recent decision of Ming Auto Body/Ming of Decatur, Inc. v. Industrial Comm’n, which held, “under the law-of-the-case doctrine, a court’s unreversed decision on an issue that has been litigated and decided settles the question for all subsequent stages of the action.” 387 Ill.App.3d 244, 252, 899 N.E.2d 365 (2008).

In the present case, the Commission found Petitioner failed to prove her condition of ill-being regarding her right shoulder was causally connected to her work accident. Petitioner never sought judicial review of this determination and it was never reversed. Thus, the Commission decision became the law-of the-case and the Appellate Court found Petitioner was barred from raising the causal connection issue in regard to the shoulder claim during any further proceedings on remand.

It appears the lesson here is to appeal any decision which is not favorable. One cannot count on a tribunal’s ruling that a matter be remanded for the consideration of additional evidence when the law-of-the-case doctrine is applied.

This article was researched and written by Matthew Ignoffo, J.D.  If you have any questions or comments, you can reach Matt via email at mignoffo@keefe-law.com.

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Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Synopsis: Workers’ Compensation Division of the Appellate Court rules employer-employee relationship did not exist when a terminated claimant slipped and hurt her back while returning from an independent medical examination or IME set consistent with Section 12.

Editor’s Comment: We fully agree with the legal analysis but there is a bigger question this ruling couldn’t answer. Either way, we feel the Court got this one right and applaud their ruling.

In the case of Menard v. Illinois Workers’ Compensation Commission, (5-09-0354WC. issued November 22, 2010), the Appellate Court, Workers’ Compensation Division ruled an employer-employee relationship did not exist when Petitioner allegedly suffered a back injury while preparing to travel home from an independent medical examination (IME). Petitioner originally filed an Application for Adjustment of Claim alleging she suffered a work-related accident due to anxiety caused by conflicts working for her employer. Petitioner was terminated several months later for failure to report to work after the alleged accident date.

She then filed a second claim, contending she suffered a back injury while preparing to travel home from an IME set by the employer. Please note the IME was set after the termination of claimant’s employment.

At arbitration, the Arbitrator ruled Petitioner was an employee at the time of the IME because “[claimant had been] directed to attend [the IME] as it related to her prior activities at work and, further, [she] was not only authorized by Respondent to attend [the exam], but…. was, in fact, directed to do so.” Please note the right to set an IME is governed by Section 12 of the Illinois Workers’ Compensation Act so the employer and/or its agents were simply following the Act to get the medical evaluation required therein.

In summary, the Arbitrator found the accidental injury to fall within the employment or in effect, the worker was “re-hired” solely for the purpose of getting to and from the examination. With one dissenter, a majority of the Illinois Workers’ Compensation Commission agreed with the decision of the Arbitrator on review. The Circuit Court of Jackson County overturned the Commission’s ruling and found the employer-employee relationship did not exist at the time of the alleged accident.

On appeal, the Appellate Court, Workers’ Compensation Division agreed with denial by the Circuit Court, citing the Supreme Court ruling in Skelgas v. Industrial Commission, 400 Ill. 322 (1948). In that case, the Illinois Supreme Court held under §12 of the Act employers have an absolute statutory right to an IME, and the statutory right is “entirely independent of the relationship between employer and employee.”

As we indicate above, we applaud the decision of the Court for closely following Illinois Supreme Court precedent and the logic provided in the Act. The unanswered question which was not before the Court and therefore couldn’t be ruled on is whether a current employee who is arguably injured going to or coming from an IME would have a compensable claim when it is their responsibility to get from and to the appointment safely.

This article was researched and written by Joseph D’Amato, J.D.  If you have any questions or comments, you can reach Joseph via email at jdamato@keefe-law.com or via telephone at (312) 545-7135.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

On the employment law front, the USDC in the Southern District of IL reaches a retaliatory discharge conclusion diametrically opposite to the Illinois Appellate Court ruling in Grabs v. Safeway and Dominick’s Finer Foods.

In the ruling in Grabs, the question was whether an Illinois employer can order an injured worker back to work in reliance on a defense IME. In their ruling, the Illinois Appellate Court addressed a certified question on an interlocutory appeal on this narrow issue of alleged retaliatory discharge. Plaintiffs filed a joint complaint alleging Defendant terminated them in retaliation for filing workers’ compensation claims. Defendant responded to assert Plaintiffs had been terminated for violating a neutral attendance policy when they missed three consecutive days of work subsequent to being advised to return to work pursuant the opinions given by Defendant’s IME. A battle over the IME and the ability of the employer to rely on the IME to terminate the workers went back and forth.

The Illinois Appellate Court initially ruled it was retaliatory discharge on a per se basis and effectively told the lower court to fire up a jury to simply determine the amount of damages, as they felt liability was not an issue. The Appellate Court later ruled it wasn’t per se retaliation to fire someone in reliance on an IME but the lawsuit was allowed to stand and was returned to the Circuit Court for hearing on both liability and damages. The Appellate Court announced their analysis of the situation required the employer to first go to the Commission to get a ruling about the efficacy of the IME before terminating the worker who ignored it. Many Illinois employers quietly backed off a policy of termination solely in reliance on IME’s.

After this ruling, our advice was not to fire a workers’ compensation claimant in reliance only on a defense ME. If you want to take a strong position, don’t fire the worker who won’t take an available job but put the reluctant worker on either leave of absence or inactive status—issue COBRA notices, etc. Wait for the workers’ comp claim to work itself out.

This week, we noted the new ruling in Keffer v. Olin Corporation a/k/a Olin Brass and Winchesters, No. 09-CV-023-WDS, USDC, S.D. Illinois., issued September 29, 2010. In this ruling, claimant was off work and under the care of his chiro. The chiro released him to work and then took him off again. A defense IME doctor released him to return to work. Claimant didn’t return and was terminated. He then sued. The employer’s motion to dismiss the claim was granted.

The Federal District Court ruled:

Olin has established a non-retaliatory motive, that plaintiff did not return to work after examination and release to return by an independent doctor. Plaintiff does not explain why he did not respond to the requests from Olin to return to work before his termination. Notably, Olin made several efforts to return plaintiff to work after he filed his workers’ compensation claims, which show lack of retaliatory motive. Marin v. American Meat Packing, Co., 562 N.E.2d 282, 286 (Ill. App. Ct. 1990). “Evidence that those responsible for plaintiff’s termination knew he intended to file a worker’s compensation claim is `essential’ to a retaliatory discharge action.” Id. (quoting, Mercil v. Federal Express Corp., 664 F.Supp. 315, 318 (N.D. Ill. 1987)).

Plaintiff asserts that a nurse at Olin, who was unidentified by Plaintiff, stated that his compensation claim would be costly to Olin. This is not enough to show retaliatory motive by defendant. Plaintiff also asserts that Bill Moore’s deposition creates a question on the motive because he admitted he did not rely on Gragnani’s report. Moore testified that he made the decision to terminate plaintiff after he failed to return from leave after being directed to do so by the medical department at Olin. Reliance on the medical report of Gragnani is not critical to that determination, nor does the reliance or lake of reliance on that report amount to retaliatory motive.

Finally, Olin had no duty to offer plaintiff another job when he refused to return to his job. Wright v. St. John’s Hospital, 593 N.E.2d 1070, 1076 (Ill. App. Ct. 1992), and there is no evidence that plaintiff made any effort to return to work at Olin in any capacity. He simply refused to respond to the letters requiring him to return and did not ask for a different assignment.

In our view, this federal ruling runs in the opposite direction of the ruling in Grabs v. Safeway, et. als. They did point to the fact several attempts were made to get the injured worker back into the work force; that didn’t happen in Grabs. We still caution our readers the “ball is in the air” on such situations and the key to all of it is to avoid a blind or blanket policy and treat each problem as an individual challenge. Also, document, document and document your actions to create a solid defense case-in-chief before the litigation erupts. We urge you to avoid a “blind” policy but take every case on its special merits. We are happy to provide direction and counseling on any such claim at hourly rates that are a fraction of what the employment law defense industry normally demands.

The ruling can be found here.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

By Joseph Mulvey

In Boyd Electric v. Workers’ Compensation Commission, the Illinois Appellate Court has set a high hurdle for Respondents’ Petitions to modify the permanent total disability award. The relevant section of the Act, 8(f), states in part:

If any employee who receives an award under this paragraph afterwards returns to work or is able to do so, and ears or is able to earn as much as before the accident, payments under such award shall cease. If such employee returns to work, or is able to do so, and ears or is able to earn part but not as much as before the accident, such award shall be modified so as to conform to an award under paragraph (d) of this Section.

In short, Section 8(f) allows a permanent total disability award to be modified based upon changed circumstances. However, the section affords respondents no way of determining whether Petitioner’s financial situation has changed postaward.

In Boyd Electric, Respondent requested Petitioner’s tax records approximately two years after the Arbitrator’s decision was filed with the Commission. Petitioner, through counsel, refused to disclose the financial records, arguing that Respondent was not entitled to review or investigate Petitioner’s finances.

Respondent filed a Petition to modify the award, consistent with Section 8(f). Respondent’s petition was denied by the Commission and by the Circuit Court of Cook County. Both bodies held that Respondent was not entitled to review Petitioner’s financial records.

Respondent’s argument relied, by analogy, on their right to force Petitioner to submit to a medical examination under Section 12. Respondent argued that the Act made a medical examination available to determine if Petitioner’s medical condition had changed and that, therefore, it was reasonable to infer that there would be some investigative avenue available to determine if Petitioner’s financial situation had changed.

Unfortunately, Respondent’s analogy may have more done more harm to its argument than good. The Appellate Court’s decision relies on the omission
of a specific right to call for a financial investigation. Their decision points out that the Legislature and Commission clearly know how to create what is, in
essence, a right for Respondent to conduct an investigation into a Petitioner’s health status. The inference therefore is that the Legislature and Commission have decided against creating an avenue for financial investigation – expressio unius est exclusio alterius.

Practice Tip

As a practical matter, this ruling makes it much more difficult for a respondent to succeed on a petition to modify a permanent total disability award. However, there seems to be a fairly simple solution. Respondents considering a petition to modify an award based on a suspicion that Petitioner has resumed working should conduct surveillance to determine whether Petitioner is employed and subsequently subpoena his employer. This should allow a respondent to determine with particularity the amount that a petitioner has been making and would allow them to present evidence
during a hearing to reconsider.

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Editor’s Comment: We recently noted a number of our readers sent us an article from the blog of a competing Illinois defense firm where UR was followed by the Arbitrator and affirmed by the Commission. In this ruling, the Commission cut overtreatment by a physical therapy provider. Many of our readers appeared stunned or amazed to see this happening. We hope some of you have been following as we have chronicled UR results in decisions issued by the Commission starting in 2006.

We also want everyone in the industry to note UR is a complete lock in Illinois workers’ compensation claims that aren’t litigated. As there are so many non-litigated WC claims, we always wonder why adjusters at insurance carriers and TPA’s don’t use the concept more.

When claims are litigated, a brief analysis of sixty workers’ compensation decisions where UR was involved revealed an increasing number of cases where UR denial of chiropractic or physical therapy treatment was routinely upheld by Arbitrators and the Commission. In contrast, when surgery was recommended and UR denied the reasonableness and necessity of the surgery, very few cases have been found where the end result was denial of the surgical treatment. Instead, the treating physician’s opinion was given more weight and credibility even though according to the Act, “A utilization review will be considered by the Commission, along with all other evidence and in the same manner as all other evidence, in the determination of the reasonableness and necessity of the medical bills or treatment.” 820 ILCS 305/8.7(i). When surgery is recommended by a treater, the Commission considers UR, they just don’t follow it. As Seinfeld® fans will tell you, it isn’t taking the reservations that count; it is keeping them which really matters.

In Early v. United Airlines, the Commission affirmed the Arbitrator’s award of prospective surgery where UR had denied the procedure. 07 IL.W.C. 3021, No. 09 I.W.C.C. 0839, August 10, 2009. Respondent had offered reports from two utilization review physicians both of whom denied certification for the prospective surgery. The Commission decision had the following language, which became familiar while researching this article:

The Commission, like the Arbitrator, assigns greater weight to the opinions of Petitioner’s treating hand surgeon, Dr. Schiffman, than to those of Respondent’s Section 12 examiner and utilization review physicians. Dr. Schiffman has treated Petitioner over an extended period and has consistently taken a conservative approach in addressing Petitioner’s “very appropriate” questions concerning her options.

In James Vaupel v. Ingersoll Machine Tools, the Commission reversed the Arbitrator’s decision which agreed with a UR report indicating Petitioner was not a surgical candidate. 06 WC 25877, 08 I.W.C.C 0130, February 1, 2008. The Commission went as far as noting;

Pursuant to the Utilization Review Program authorized by the Act, 820 ILCS 305/8.7(a), the appropriateness of the proposed medical care recommended by Dr. Korcek [Petitioner’s treating physician] was evaluated by Dr. Garcia, who opined Petitioner was not a candidate for the surgical procedure. Pursuant to an appeal of Dr. Garcia’s findings, the proposed medical care was reviewed by a second medical provider, Dr. Rosenzweig. Dr. Rosenzweig concurred in the findings of Dr. Garcia.

Even though two UR doctors indicated Petitioner was not a candidate for surgery, the Commission ignored UR and went with the treating physician’s recommendations because he was found to be “more persuasive.” Commissioner Lamborn dissented stating, he would have affirmed the Arbitrator’s decision because the utilization review, as outlined in Section 8.7 of the Act, indicated the surgery proposed was not reasonable or necessary.

As we have advised in the past, please note a claimant who wants to litigate the dispute over surgery sought by a treater and denial by UR must put up with a one to three year waiting period for the Arbitrator’s decision and the Commission’s ruling. Some people don’t want to fiddle around that long and will move on with their lives.

While we are pleased UR has had some success in cutting excessive chiropractic and physical therapy treatment it is interesting why, when the treatment involves surgical intervention, a denial pursuant to UR has had limited success in ultimately denying the treatment sought by claimant. We will continue to monitor this issue and keep our readers advised if any changes occur.

This article was researched and written by Matthew Ignoffo, J.D. You can reply and comment to Matt at mignoffo@keefe-law.com.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Hennessy & Roach, P.C. is proud to add the following commentary to our Legal Issues Video Library.  Our newest video can be accessed by the link below and the full library can be viewed at HennessyRoach.com.

In Racketeering & Workers’ Compensation, Chicago Partner Joe Higgins discusses a complicated work comp case out of Michigan where the petitioner attempted to use the Federal RICO statute as part of his claim.  The case actually worked its way to the U.S. Supreme Court prior to a Federal judge in Michigan ruling against the RICO claim.

Please feel free to share this brief video with members of your legal staff, human resources team and business associates.  The video runs 1:42 minutes and can be accessed at the following link:

http://www.hennessyroach.com/updates/higgins_cassens_update.html

If you have any questions about this legal issue or others, please contact Tom Hennessy at 312/346-5310 or THennessy@HennessyRoach.com.

Editor’s Comment: We truly feel this exemplifies a situation where the Plaintiff bar is seeking unlimited liability for injuries that can be traced back to business meetings. It appears Dramshop Act caps have been pulled off accidents/injuries to third parties that follow company lunches, parties and other outings. When alcohol is flowing, employers must establish attendance and participation by your workers at company events was voluntary and employee participation was not “in the course and scope of employment”. Otherwise, an employer may be found globally liable for the tortious actions of an intoxicated employee under the theory of respondeat superior.

We caution one other method to end such liability is easy—get an Alcohawk© or similar personal breathalyzer and don’t let anyone drive drunk. Grab some straws and test everyone before they leave. Do everyone a favor, if they are over the legal limit, grab their keys and put them in a cab or limo. We wish every restaurant and bar in Illinois would have the brains to get a personal breathalyzer with lots of straws to protect their patrons from the skyrocketing liability of driving drunk.

With a new ruling in Hicks v. Korean Airlines Co., the Appellate Court explained the Dramshop Act is not the exclusive remedy for alcohol-related incidents and the purveyor of alcohol is not the only potential liable party for the later tortious conduct of an intoxicated customer. In light of this decision, we recommend a memo be issued from management prior to any such social event to protect against this new theory of liability, which could only be conceived by the Plaintiff’s Bar. In the alternative, you may want to consider using our KC&A Employee Sign-in Sheet that covers the same concepts.

In this recent ruling, our Illinois Appellate Court further developed a growing area of tort law, and in doing so, created liability exposure far in excess of the caps established under the Illinois Dramshop Act. Tracy Kim, an employee of Korean Air, struck and killed another driver (Simmons) while intoxicated after a company dinner party. The complaint alleged Korean Air was liable for Kim’s negligent and intoxicated driving, because Kim was acting within the scope of her employment with Korean Air. Another count of the complaint alleged Korean Air was liable under the Dramshop Act for supplying and serving Kim alcohol. However, Korean Air succeeded on a motion for summary judgment on the Dramshop count, as there were insufficient facts to find Korean Air acted under Dramshop (the employer was not serving the alcohol themselves).

However, the Appellate Court reversed the finding of summary judgment on the negligence count, finding the theory of liability against Korean Air on the negligence count was outside the scope of the Dramshop Act (which would otherwise control all claims related to the service of alcohol). The Court explained, with extensive comparison and case-law citation, liability for alcohol-related negligence can attach to a third party under ordinary negligence/tort law, regardless of who actually provided the alcohol. Since the Plaintiff maintained a genuine issue of material fact existed as to whether Kim was acting within the scope of her employment while at the dinner party, the claim survived summary judgment. Critics will certainly claim this “end around” of the Dramshop Act effectively ends the long-standing “exclusive remedy” of the Dramshop Act for alcohol-related negligence actions.

This decision reflects the development of what can be described as a “Good Samaritan” rule of sorts, which compels an affirmative duty for those who may exercise control, direction, or even care for a person who becomes intoxicated. For example, the Court cited cases where liability for negligence may attach when a “Good Samaritan” begins to care for a heavily intoxicated individual, but then abandons the individual to their detriment. In another example, a bar owner cannot remove a patron from an establishment for vomiting (due to alcohol), pull up the drunkard’s car, dump him in, allowing him to drive off, and later claim they didn’t know he was drunk when he drove away. Be warned, such affirmative acts can trigger your obligation (read liability) if you fail to follow through with due care to prevent a reasonably foreseeable harm. Again, we must stress these theories of liability are not under the umbrella of the Dramshop Act, but rather, independent theories of negligence. Therefore, there is no cap on a jury award and potential limitless liability in these claims.

The Court explained, although the Dramshop Act broadly preempts claims arising from a defendant’s provision of alcohol, the Dramshop Act does not preempt claims based on legal theories independent from the such provision of alcohol. Where, as here, the Appellate Court ruled a genuine issue of material fact exists regarding whether Kim’s actions were within the scope of her employment, the Dramshop Act does not preempt a claim that Korean Air is vicariously liable under the theory of respondeat superior, as Kim’s alleged negligence is independent of which entity supplied alcohol to her. Thus, the judgment of the Circuit Court of Cook County was reversed and remanded for further proceedings.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

By Elizabeth Alberico

In Skzubel v. Illinois Workers’ Compensation Com’n 927 N.E.2d 1247 Ill.App. 1 Dist.,2010. Four M, newspaper distributor for the Chicago Sun-Times, claimed to use independent contractors to deliver newspapers, prepare and distribute bills and collect payments from subscribers. Four M would enter into a contract with the delivery drivers that specifically stated that the driver was not an employee. Four M provided the drivers with a specific route, which could be amended at anytime, without notice by the company. The driver used his own vehicle. The rate per paper, per driver was set in the contract, but could be changed at anytime without notice by Four M. Drivers had to give seven days notice to cancel the agreement, but Four M could terminate the agreement with the drivers at anytime. Each morning before deliveries were made, Four M would provide the drivers with special instructions.

Petitioner was hired by verbal agreement as a driver for Four M. Because of Petitioner’s pending immigration status, her husband signed the contract with Four M and the paychecks were issued in his name. Petitioner worked exclusively for Four M for two years and never held herself out as an independent contractor.

The arbitrator found that no employee-employer relationship existed, but never addressed the issue of whether Petitioner was an independent contractor. He reasoned that because Petitioner’s husband, not Petitioner, signed the contract for employment and his name appeared on the checks, there was no contractual relationship between the employer and Petitioner.

A majority of the Commission agreed with the arbitrator, with one commissioner dissenting. The dissenting commissioner noted that the employer waived the right to claim that Petitioner was an independent contractor because of their dishonest actions in avoiding her immigration status. He examined all factors and focused on the degree of control the employer exercised over Petitioner as well as whether the job performed by Petitioner was essential to the business of the employer. The commissioner found that these components were enough to support an employee-employer relationship. The trial court affirmed the decision of the Commission.

The issue before the court was whether Petitioner was an employee or independent contractor. The Appellate Court examined a multitude of factors to determine whether an employee-employer relationship existed.

The Appellate Court began by examining the employer’s right to controlthe Petitioner. This well settled principle has time and again been considered the most important factor in determining whether an employee is an independent contractor. Four M had the right to terminate Petitioner without notice, change the rate per paper without notice, provided each driver with special instructions every morning, and could amend a route without notice to the driver.

Another important factor the court examined was the nature of the work in relation to the business of the employer.  The court found that the more essential the job duties are to the success and operations of the business, the more likely it is that an employee-employer relationship exists. In this case, the business of Four M was delivering newspapers. Four M relied on their drivers to carryout the operations of the business. Therefore, Petitioner’s job performance was essential to the success of Four M.

The court considered the label of employee versus independent contractor, in an employment agreement, to hold very little weight in the analysis of whether an employee-employer relationship exists.

The court found that the conclusion of the trial court was against the manifest weight, as an examination of the facts clearly led to the conclusion that Petitioner was an employee. The court agreed with the dissenting commissioner and found that the Petitioner was an employee of Four M.

The court placed the most emphasis on the amount of control the employer had over the Petitioner as well as the work Petitioner performed in relation to the type of business the employer engaged in.

Practice Tip

When an employer controls the actions of an employee and the work performed by the employee is crucial to the operation of the employer’s business, an employee-employer relationship exists.

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By Francesca Larsen

In Lenny Szarek, Inc. v. The Workers’ Compensation Commission, 396 Ill.App.3d 597 (2009), Petitioner Daniel Rub was employed by Respondent as a journeyman carpenter.  On the day of the accident, Petitioner was framing the exterior walls on the second floor of a new house.  Since the house was still under construction, there was a nine foot by nine foot opening in the center of the building. The opening was marked with paint but did not have a guard rail around it.  While working, Petitioner fell through the opening in the center of the house and landed in the basement.  Immediately following the incident, Petitioner was transported to the hospital.  His only recollection of the incident was that he thought he was “going to die.”  Petitioner was rendered a paraplegic as a result of the accident.

While in the hospital, Petitioner tested positive for both marijuana and cocaine.  Petitioner admitted a history of substance abuse to the hospital worker, but denied recent abuse.  Petitioner’s co-worker testified that on the morning of the incident he did not observe anything unusual about Petitioner when he arrived for work.  He further stated that Petitioner did not stumble or slur his words and nothing about his appearance indicated that he was intoxicated or impaired.  Petitioner’s supervisor also stated that there were no noticeable signs that claimant had consumed alcohol or drugs.

Respondent retained Dr. Jerold Leikin, a toxicologist, to render opinions as to Petitioner’s alleged intoxication the morning ofthe incident. Dr. Leikin testified that Petitioner’s medical record revealed positive tests for both marijuana and cocaine.  Dr. Leikin opined that Petitioner’s test results were “consistent with impairment due to marijuana” and that such results were indicative of “proximal use.”  Dr. Leikin testified that Petitioner’s use of such controlled substances would result in “some visual acuity deficits,” such as Petitioner’s impaired ability to judge distance.  Dr. Leikin ultimately opined that the reason Petitioner “might or could have” mistakenly stepped into an open stairway was from an impaired visual response or cognitive impaired response.

Respondent denied benefits based on the intoxication defense.  The arbitrator rejected the respondent’s intoxication defense and found that Petitioner had sustained an injury arising out of and occurring in the course of his employment.  The Commission adopted the decision of the Arbitrator and noted that Dr. Leikin only opined that Petitioner’s fall “might or could” have been due to his marijuana use.  The Commission reiterated the fact that Dr. Leikin could not state the Petitioner’s consumption of controlled substances was the only cause of the accident.  The fact remained that there were other factors of Petitioner’s employment that could have also caused his accident; namely the unguarded opening in the floor.

The Illinois Appellate Court affirmed the Commission’s decision based on the fact that Petitioner’s drug usage was a mere contributing factorandnot the sole causeofhis injury.  The Court stated, “A Petitioner is not required to prove that employment was the sole principle cause, but only that the employment was a causative factor.”

Practice Tip

Intoxication isnot a slam dunk defense for a respondent.  In order to prevail, a respondent must show that intoxication was the sole cause of the injury.  In order to satisfy this burden a respondent can show that the intoxication was excessive.  A respondent would benefit from providing testimony from the alleged intoxicated employee’s co-worker or supervisor that the employee’s intoxication impaired his abilities to perform his job duties.  Such facts may persuade an arbitrator to rule that the intoxication was the sole cause of the accident.

Post Provided by Bryce Downey & Lenkov LLC. Bryce Downey & Lenkov is a firm of experienced business counselors and accomplished trial lawyers who deliver service, success and satisfaction. They exceed clients’ expectations while providing the highest caliber of service in a wide range of practice areas. With offices in Chicago, Oak Brook, Merrillville, IN, Memphis and Atlanta and attorneys licensed in multiple states, Bryce Downey & Lenkovis able to serve its clients’ needs with a regional concentration while maintaining a national practice.

By Joseph Mulvey

In Patricia Dragovan, Widow of Thomas Dragovan (deceased) v. Western Utility Contractors, Inc. 06 IL. W.C. 31304 (2009), the Commission distinguishes a prior Supreme Court ruling outlining the applicable test for causal connection in heart attack cases.

The Supreme Court case, Twice Over Clean, Inc. v. The Industrial Comm’n et al. 241 Ill. 2d 403 (2005) created a very loose standard for proving a causal connection between employment and heart attacks.  Essentially, a heart attack is compensable if the arbitrator can infer that the occupational activity contributed to the disabling condition.

The specific issue dealt with in both of these cases is the causal connection between physical exertion and a heart attack suffered by an employee with pre-existing and unrelated arterial blockage.  In the Twice Over Cleancase, evidence showed that Petitioner’s right coronary artery was 90% blocked at the time of the accident and that Petitioner was “basically a heart attack waiting to happen.”

Despite the pre-existing risk factors, and medical testimony showing that Petitioner could have suffered a heart attack at any time, regardless of his level of exertion, the Supreme Court found the claim to be compensable.  Their reasoning explicitly disavows what had been known as the “normal daily activity” exception, i.e. that an accident arising from a physical condition that has deteriorated to the point that the condition of ill-being could have been produced by normaldaily activity is not compensable.

The Supreme Court found that there was competent medical evidence to show that the exertion preceding the heart attack was sufficient to aggravate the pre-existing condition and that the ensuing attack was therefore work-related.

In Dragovan, the Commission distinguished the Twice Over Cleanruling by focusing on the lower level of exertion leading to the heart attack.  Whereas the petitioner in the Twice Over Cleancase had been carrying 40-50 lb. bags of asbestos in extremely cold conditions, the petitioner in Dragovanhad been shoveling and clearing loose soil for a relatively short amount of time in temperate conditions.

Ultimately, the distinction rests on a slim factual basis and seems to ignore the Supreme Court’s clear directive that medical evidence showing that the activity may have aggravated or exacerbated the underlying condition is sufficient to show a causal connection between the work activity and the heart attack.

Practice Tip

This decision is noteworthy for employers and offers a strong argument that heart attacks occurring during work hours are not per-se related to the employment. It is important in such cases to mine the factual record for details surrounding the accident itself, particularly with respect to the environmental conditions and the level of work preceding the heart attack.

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