Category Archives: Workers’ Compensation

WORKERS’ COMPENSATION UPDATE: Compensability in IL Expanded to Cover Certain Personal & Neutral Risks

Contributed by Anita Johnson

In a recent workers’ compensation case, the personal and neutral risk defenses have been seriously eroded via an appellate court created exception based on the number of times an employee is exposed to a neutral risk (no greater risk than the general public/no defect) with employer knowledge of the personal condition.

In the case of Village of Villa Park, a community service officer suffered from a right knee condition related to a prior non-work injury (fall on ice at his vacation home).  Due to the injury suffered in that accident, the petitioner was scheduled for surgery, at the time of the work incident.  He continued to work his regular duties which were clerical in nature and conducted on the main floor of the building.  These occasioned him to use a normal stairway open to the general public to the lower level of the building, which contained locker rooms, a briefing room, a lunch area and a shooting range.

Before his shift, he would descend the stairway to the locker room to change into his uniform.  He would go to lunch, acquire rain gear or other equipment from the lower level during the day.  At a minimum, he would traverse the stairs six times per day.  The stairs were without defect and consisted of ten steps to a landing and an additional ten steps to ground level.  At the time of the accident, he was returning to the lower level locker room, when his knee gave out after three steps, causing him to fall seven stairs to the landing below.  He injured his back and right knee.  A denial of the right knee injury was not presented to the appellate court.

The appellate court noted the two types of risks involved in this case: risk personal to the employee and neutral risk.  The weak knee is a personal risk.  The stairs are a neutral or common risk.  The court found six times per day use was sufficient to expose the employee to a “common risk” more frequently than that to which the general public was exposed.  The risk was increased on a quantitative basis because he was “continually forced to use the staircase” by his employer for his personal comfort and for work-related activities.    The court also noted that the employer knew of the prior knee injury but placed him in a position of an increased risk based on a quantitative analysis.  The risk was no longer neutral because of the frequency (repetitiveness) with which the claimant was required to traverse the stairs with his known weak knee.

This appears to create a new exception to the general rule of non-compensability for personal risk in an area of neutral risk where the employer has knowledge of the claimant’s pre-existing condition or weakness.   Of course, this not only expands the compensability of fall down cases, but brings into question where (how many times per day) is the quantitative line drawn and what action should be taken when the employer has “knowledge” of the pre-existing condition or weakness.   Apparently, judicial activism on the part of the appellate courts to expand compensability is alive and well.

Termination for Refusing to Take Workers’ Comp. Drug Test Found Not Retaliatory

Contributed by Noah A. Frank

Recently, the Federal Seventh Circuit Court of Appeals (Illinois, Wisconsin, and Indiana) affirmed summary judgment for the employer in a Workers’ Compensation retaliation claim. Phillips v. Continental Tire The Americas, LLC, — F.3d —, 2014 WL 572339 (Feb. 14, 2014).  Employer Continental Tires (“Continental”) had a written substance abuse policy which required drug testing for several enumerated reasons, including initiation of a workers’ compensation claim.  The policy further provided that an employee’s refusal to be tested was grounds for immediate suspension pending termination.

Twenty-two year veteran employee Jeff Phillips presented to Continental’s health services to report numbing fingers and to initiate a workers’ compensation claim.  Phillips refused to be drug tested because he felt it was not necessary to initiate his claim.  Phillips was terminated, though he ultimately received workers’ compensation benefits.

The Seventh Circuit held that a workers’ compensation claimant must affirmatively show that an adverse employment action was causally related to seeking of rights protected under the Illinois Workers’ Compensation Act, and not merely that a discharge was connected the filing of a claim. Here Phillips failed to show the nexus between his protected rights and termination because:

  • Continental had in place (in advance) a written substance abuse policy;
  • Continental consistently enforced the written substance abuse policy;
  • Continental discharged other employees who failed to submit to drug testing under the policy;
  • Phillips testified at his deposition that he (i) was terminated for failing to submit to drug testing, (ii) had no evidence or information that there was a different reason for his termination, and (iii) believed he would still be employed had he submitted to drug testing; and
  • Other Continental employees (including Phillips previously) had initiated workers’ compensation claims and received benefits without being discharged.

Best Practices:

This case shows the importance of maintaining and enforcing written employment policies – including work rules and employment handbooks.  Employers will want to be able to demonstrate that policies are administered evenly, especially when the result is an adverse employment action such as termination.  Best practices include:

(1)    Create, implement, and update your substance abuse and drug testing policies: consider the impact of medical marijuana under the Compassionate Care Act (eff, 1/1/2014) and whether you should implement zero tolerance policies;

(2)    Consistently and evenly enforce the substance abuse policy (and all other employment policies);

(3)    In union settings, get the buy-in of labor for a proactively safe work environment;

(4)    When discharging or otherwise disciplining employees for violation of a company policy, be clear on the basis – do not apologize or add other reasons;

(5)    Demonstrate that similarly situated employees who complied with the legitimate employment policy were not adversely impacted (e.g., workers’ compensation claimants who submitted to a drug test received benefits under the Act and were not subjected to employment discipline so long as they tested clean); and

(6)    Maintain state-mandated workers’ compensation insurance, and confirm with the carrier whose responsibility it is to initiate and pay for substance testing – be sure to share the test results with each other to the extent necessary and permissible.

Illinois Supreme Court Clarifies “Traveling Employee” Exception

Contributed by Noah A. Frank

On December 19, 2013, the Illinois Supreme Court issued its much anticipated decision in Venture-Newberg-Perini, Stone & Webster v. Ill. Workers’ Compensation Comm’n., No. 115728 (Ill. 2013).   Claimant Ronald Daugherty accepted temporary employment 200 miles from his home at Respondent Venture’s Cordova plant.  Daugherty and coworker Todd McGill chose to stay in a hotel 30 miles from the plant rather than make the 400 mile/day roundtrip commute after their 12-hour shifts.  On what was to be their second day of work, McGill, driving his own truck, skidded on ice while crossing an overpass, resulting in serious injuries to Daugherty.  Daugherty sought workers’ compensation benefits.

An arbitrator (i.e., administrative law judge) found the accident did not arise out of and in the course of employment, and denied all benefits.  A divided Workers’ Compensation Commission panel acknowledged that, in general, an employee injured on the way to or from work was not entitled to benefits, but nonetheless reversed the arbitrator’s decision.  The Commission found two exceptions applied: (i) the accident arose out of the Daugherty’s employment since the method of travel was determined by the demands and exigencies of the job rather than the Daugherty’s personal preference, and (ii) Daugherty was a traveling employee whose injury was considered to arise out of and in the course of employment.  The circuit court set aside the Commission’s award.  The appellate court reversed, and reinstated the Commission’s award.

In the wake of a series of appellate court decisions that have  unreasonably expanded Illinois Workers’ Compensation  liability and employer exposure, Michael Resis, chair of SmithAmundsen’s Appellate Practice Group, was specifically hired and retained to brief and present oral argument to the Illinois Supreme Court. The Supreme Court reversed the appellate court’s decision, and reinstated the arbitrator’s award.  The Supreme Court held that Daugherty’s injuries did not arise out of and in the course of employment, nor was he a traveling employee, and therefore no benefits were due.  Daugherty was no different than any other employee who had to drive to work on a daily basis.  The Supreme Court found significant that:

  1. Daugherty was not required to accept the temporary employment, and would have been prohibited from doing so under his union’s rules had there been work available within the local’s territory;
  2. Daugherty had previously worked for Venture four times;
  3. Daugherty was not reimbursed for his travel or lodging expenses, nor was he paid for his time commuting;
  4. Daugherty made the personal decision that the costs of travel and lodging were outweighed by the potential wages;
  5. Venture did not require Daugherty and McGill to car pool, but rather they made the decision to save money;
  6. Venture did not make the travel or lodging arrangements; and
  7. Venture did not require Daugherty to relocate or commute in any particular fashion to get to work.

This decision is useful to employers, even on its limited facts as it puts limits on workers’ compensation liability where employees temporarily relocate away from the home communities.  The “traveling employee” doctrine excludes someone hired for only one location that is remote from his or her home.  However, while this decision provides some relief to employers under the traveling worker exception to the requirement that an injury “arise out of and in the course of employment” for workers’ compensation purposes, much ambiguity remains.  For example, while the Court found the facts above persuasive, it is unclear whether the decision would have gone the other way had Venture paid a special bonus or increased wages to compensate Daugherty for his increased travel expenses incident to the temporary employment.

Practical advice for employers:

Employers should be practical and proactive regarding hiring of employees and sending employees out in the field.  The following are some starting points, which should be tailored to specific situations:

  1. Job offer letters and agreements should be in writing and explicitly state that employment is at-will.
  2. Job offer letters should state the normal work hours and work location (and the employer’s right to change them!).
  3. Where it is known or likely that an employee may be commuting significant distance each day (over 100 miles round trip, or over 2 hours/day), it is worth mentioning that the employee is responsible for the costs of commuting, no portion of regular commuting costs will be paid by the employer, and that the employee will not be compensated for travel time.
  4. When employees are required by their employer to travel to different worksites, ensure that pre-established employment policies address, at minimum: speed limits (whether or not it is as high as the state maximum); cell phone and mobile device usage; vehicle usage; coworker and other passengers, and other “rules of the road.”
  5. Employers should note that employees are not permitted to “frolic & detour” while traveling for work purposes.  While a frolic & detour injury could be compensable under workers’ compensation, the employer may have grounds for disciplining the employee.

And as always, be sure to enforce work rules, no matter where the employee is located.

Tips on Actively Managing Workers’ Compensation Claims

Contributed by Brandon Anderson

Not a week goes by without at least one call from a client asking about what it can and should do about an employee who has been off work due to a work-related injury for one, two or even three or four years.  What often prompts the client to call is the realization that the company has been paying for the injured employee’s portion, as well as the company’s portion, of the employee’s health insurance premium, which can amount to thousands upon thousands of dollars over time. 

In terms of “what can we do,” it always depends on the specific circumstances of the situation.  However, these types of situations always present an opportunity to remind clients that it is criticalthat the company actively manage all open or potential workers’ compensation claims from the very beginning.  Active management ensures that no one loses track of the employee and ends up calling legal counsel to see what can be done about an employee whose status is unknown and has been off work for upwards of four years.  In the spirit of avoiding that conversation, here are some tips for managing workers’ compensation claims:

  • Train all employees on the necessary safety procedures that must be followed in order to ensure a safe work environment.  Be open and communicate with employees about safety concerns.
  • Implement a comprehensive workers’ compensation policy that, amongst other things, requires employees to promptly report all workplace injuries to their supervisors. The policy should also inform supervisors of who they must notify so that the necessary people in the organization are informed of the injury.
  • Develop a relationship with the company’s insurer.  The insurer is going to be (or should be) an expert in “active management,” and will be a great resource.
  • Get to know the local occupational health facility and/or medical providers.  The company should not rely solely on the employee’s medical evaluation from his or her own doctor.  Also, if the company has the ability to provide light-duty or modified work, it is important for the medical facility evaluating the employee’s fitness for duty to know of such options.  The sooner the employee can return to work, even with restrictions, the better.
  • Train supervisors so that (1) they are cognizant of the potential for workplace injuries; (2) they can assist in determining the validity of a potential claim; and (3) as injured workers return to work, they can ensure that any work restrictions are being adhered to and that the employee is capable of safely performing the necessary job duties.
  • Immediately investigate and document all claims—even potential claims.
  • Promptly report all claims to the company’s insurer.  Again, workplace injuries can spiral and minor injuries could turn out to be major.
  • Stay in touch with the employee and ensure that the employee is staying in touch with the adjuster.

The more actively the company manages the claim, the sooner the employee will return to work and the less likely it is that the employee will fall through the cracks.