Q1 Court and Commission Decision Updates from Brown Bag Lunches
Author: Adan Ramirez
ASA and its attorneys are proud members of the Workers’ Compensation Lawyers Association, Ltd. (WCLA). WCLA promotes fellowship among members of the Illinois Bar engaged in the trial of workers’ compensation matters. As members, ASA attorneys attend monthly Brown Bag Lunches hosted by WCLA where outstanding practitioners from both sides of the bar discuss hot topics and case law updates in worker’s compensation. Some important case law updates presented this quarter are:
• Workers’ Compensation Settlements are Exempt from Medical-Providers’ Liens
Case Summary: In In Re Elena Hernandez 2020 IL 124661, the Illinois Supreme Court answered the question posed by The United States Court of Appeals for the Seventh Circuit: After the 2005 amendments to §8 of the Workers’ Compensation Act, and the enactment of §8.2 of the Act, does §21 of the Act exempt the proceeds of a workers’ compensation settlement from the lien claims of medical-care providers who treated the illness associated with that settlement?
Ruling: The Supreme Court of Illinois concluded that under §21 of the Act, the proceeds of a workers’ compensation settlement are still exempt from the claims of medical-care providers who treated the illness or injury associated with that settlement.
• Primary Jurisdiction Doctrine
Case Summary: In West Bend Mutual v. TRRS Corp. 2020 IL 24690, an Employee filled an application for adjustment against employer, TRRS. Then Insurance carrier, West Bend filed a complaint for declaratory judgment against employer, TRRD, for failure to timely report the accident to West Bend. West Bend also filed emergency motion to stay the pending IWCC proceeding. The Circuit Court granted the motion to stay IWCC proceedings.
Ruling: The Appellate Court reversed the Circuit Court order staying the IWCC proceeding. The question became whether the circuit court erred as a matter of law in relying on the primary jurisdiction doctrine to enter its order. Primary jurisdiction doctrine applies when a circuit court decides to stay their own proceedings and directs the claim to a more able administrative body. The Appellate Court refused to apply an inverse application of the primary jurisdiction doctrine by not permitting the Circuit Court to stay the proceedings of an administrative body, instead of its own. The case was remanded to the circuit court to address West Bend’s second argument that the legislature never had the authority to divest the judiciary of its constitutionally granted authority over all justifiable matters.
• Periodic PPD Payments
Case Summary: At the arbitration level in Alphonse Iannoni v. City of Chicago 2019 IL app (1st) 182526, the Arbitrator decided that Petitioner was temporarily disabled from April 1, 2014 through February 9, 2017, a period of 149 3/7 weeks. Arbitrator also awarded permanency of 35% loss of use of person as a whole, equating to 175 weeks of benefits at the maximum rate of $721.66 per week. Respondents paid $62,890.49 to Petitioner, covering 70 weeks of PPD approximately from TTD cut-off date to date of decision. Respondent continued to pay the remainder of the PPD on a monthly basis. Petitioner filed a claim in circuit court to enforce the entire PPD award due and payable of 175 weeks. The Circuit Court entered judgment against Respondent for the entire PPD. On appeal the Appellate Court reversed.
Ruling: The Appellate Court held that because the legislature intended workers’ compensation payments to be a substitute for the injured employee’s wages, lump-sum awards were the exception, and not the rule. In §9 of the Act, it mandates periodic payment of amounts intended to replace an injured worker’s lost wages. Therefore, Respondent appropriately paid Petitioner at the start of each month the amount of worker’s compensation coming due that month. Also, because Petitioner did not file for a petition for lump sum payment, the order directing payment in lump sum was reversed.
• Employment-Related Risk
Case Summary: The facts Mary Buckley v. Molly Maids 16WC032369; 19IWCC0196 were as follows: Petitioner worked full-time as a maid for Respondent. While Petitioner was dusting, a blind came loose and when Petitioner reached up quickly to grab it, her shoulder popped. The Arbitrator denied benefits concluding that the act of raising one’s arm is a neutral risk and nothing by way of Petitioner’s employment contributed to the risk of raising her arm, either on a qualitative or quantitative basis.
Ruling: The Commission reversed the Arbitrator’s decision. The Commission held that the injury arose out of the employment, although the act of raising an arm may be performed by the general public, the act of dusting the blind was a required part of Petitioner’s job. Therefore, suddenly lifting her arm, was a risk incidental to, belonging to, and connected toe Petitioner’s dusting duties. It was an employment-related risk and always compensable.
• Employment Risk Analysis
Case Summary: In Moreno v. IWCC 2020 IL App (2d) 170736WC-U, Petitioner felt a popping sensation in his lower back when he bent over to pick up a gas can. Although Petitioner did not actually lift the can, he was unable to straighten from the bent-over position for approximately 15 minutes because of pain. The Arbitrator concluded that Petitioner was not exposed to an employment-related risk because “the act of bending over or bending forward is a movement consistent with normal daily activity.” The Commission agreed with the Arbitrator’s used of the neutral risk analysis and the circuit court confirmed.
Ruling: The Appellate Court reversed, finding that the Commission did not consider the nature of the Petitioner’s employment and his required work duties before finding that Petitioner’s injury stemmed from a neutral risk. The Commission improperly applied the neutral-risk analysis without first applying the employment-risk analysis simply because the Petitioner was performing an activity that involved a common bodily movement at the time of injury.
• Neutral Risk Analysis Unnecessary on Employer’s Premises
Case Summary: In Jeffrey Sims v. SOI (DOC Jacksonville) 17WC0250254; 19IWCC0195, Petitioner was a correctional officer that while on “chow break,” he slipped on some ice on Respondent’s premises, a public parking lot. The Arbitrator denied benefits finding that Petitioner did not establish that he was exposed to the risk of falling on ice and snow to a greater degree that that of the general public.
Ruling: The Commission reversed and awarded benefits. The Commission held that the neutral risk analysis is unnecessary if the injury occurred on the employer’s premises due to an unsafe or hazardous condition. Fact that walkway was also used by the general public was immaterial.
• Delay in Authorizing Medical Treatment does not Warrant 19(k) Penalties
Case Summary: In Hollywood Casino v. IWCC 2012 IL App (2d) 110426WC, prior to PPD being awarded, Respondent failed to authorize battery replacement for spinal cord stimulator. Petitioner filed a 19(k) Penalty Petition and the Commission awarded Penalties. The Appellate Court affirmed the trial court’s judgment reversing the Commission’s award of penalties pursuant to §19(k) since there is no provision in the Act authorizing the Commission to assess such penalties.
Ruling: The Appellate Court held that pursuant to statutory construction §19(k) addresses “delay in payment” and “underpayment” of compensation. It does not refer to nor is there any mention to delay in authorizing medical treatment, even assuming arguendo that an employer has an obligation to give authorization in advance of medical treatment for an injured employee. The definition of payment in 19(k) does not include the giving of authorization for a service.
• Delay in Authorizing Medical Treatment does not Warrant 19(l) Penalties
Case Summary: In O’Neil v. IWCC 2020 IL App (2d) 190427WC, Respondent authorized surgery request for Petitioner and surgery was scheduled. Between the date of surgery authorization and date surgery was to take place, the Respondent found information of a possible pre-existing injury and rescinded the authorization. Petitioner filed a §19(l) Penalty Petition. The Arbitrator found that Respondent was liable for penalties under §19(l) of the Act for without good and just cause failing, neglecting, refusing, and unreasonably delaying payments under §8(a) of the act, i.e. authorizing the surgery. The Arbitrator further found that Respondent was liable for attorneys’ fees under §16 of the Act for engaging in frivolous claims that do not present a real controversy and creating an unreasonable and vexatious delay by continuing proceedings in that vein. The Commission vacated the Arbitrator’s award and found that it lacked the authority to award penalties based on a failure or delay in authorizing medical treatment. Following Hollywood Casino, the fact remained that there is no provision in the Act authorizing the Commission to assess penalties against an employer that delays in giving authorization for medical treatment. Although Hollywood Casino dealt with §19(k), the Commission found that by extension the same rational applies to penalties pursuant to §19(l) and §16.
Furthermore, per the Act, §16 attorney fees are predicated on an award pursuant to §19(k), not §19(l). Since Hollywood Casino determined that §19(k) does not authorize penalties for failure to authorize medical treatment it follows that §16 attorney fees likewise are not available under such circumstances.
Ruling: The Appellate Court affirmed the Commission’s decision and held that, as observed in Hollywood Casino, neither §8(a) nor any other provision of the Act allows the Commission to assess penalties against an employer based on a failure or delay in authorizing medical treatment.
• §11 Inapplicable for Traveling Employees
Case Summary: In Washington v. Northeastern Illinois Univ. 17WC018052; 19IWCC0184, Petitioner was a college recruiter that was required to travel to different high schools and engage with students. On a high school visit, students invited Petitioner to play basketball. While playing, Petitioner sustained an injury. The Arbitrator relied exclusively on the voluntary recreational activity exclusion pursuant to §11 of the Act to deny benefits.
Ruling: The Commission reversed the Arbitrator’s decision and held that when the injured employee is a traveling employee, the proper analysis is whether the Petitioner was performing a reasonable and foreseeable act.