Heyl RoysteR Fall seminaR 2015 2015/Heyl... · Rockford, IL 61105 815.963.4454 Springfield 3731...

heylroyster.com

© 2015 Heyl, Royster, Voelker & Allen

Heyl, Royster, Voelker & Allen presents:Peoria300 Hamilton BoulevardPO Box 6199Peoria, IL 61601309.676.0400

Chicago33 N. Dearborn Street7th FloorChicago, IL 60602312.853.8700

Edwardsville105 W. Vandalia StreetMark Twain Plaza III, Suite 100PO Box 467Edwardsville, IL 62025618.656.4646

Rockford120 W. State StreetPNC Bank Building, 2nd FloorPO Box 1288Rockford, IL 61105815.963.4454

Springfield3731 Wabash AvenuePO Box 9678Springfield, IL 62791217.522.8822

Urbana102 E. Main StreetSuite 300PO Box 129Urbana, IL 61803217.344.0060

The crossroads of

governmenTal law,

workers’

compensaTion

law & you

Heyl RoysteR Fall seminaR 2015

spRingField: 10/28

napeRville: 11/3

AgendA

12:00pm Introductions – Tim Bertschy, Managing Partner – Craig Young, Peoria – John Redlingshafer, Peoria

12:05pm Liability of Government Agencies to Volunteers for Wages and Injuries – Stacy Crabtree, Peoria

12:20pm AppellateIssuesinWorkers’CompensationCasesAffectingGovernmentalEmployers –BradElward,Peoria

12:45pm EmployeeVictimsofWorkplaceViolence:NewPerspectivesonExposureandDefenses – Craig Young, Peoria

1:05pm AverageWeeklyWage:TheFirstStepinDeterminingBenefits – Jim Manning & Chrissie Peterson, Peoria

1:15pm Break

1:40pm PanelDiscussion:HowManyBenefitsTrulyAreAvailabletoInjuredEmployees?(includingtheIllinoisPublicEmployeeDisabilityAct(PEDA)andtheIllinoisPublicSafetyEmployeeBenefitsAct(PSEBA) – Kevin Luther, Chicago & Rockford – Bruce Bonds, Urbana – John Redlingshafer, Peoria & Chicago – Chrissie Peterson, Peoria – Brian Smith, Urbana

2:20pm TacticsandStrategiestoReduceWCPayout:HowtoControlMedicalTreatmentandReturn to Work Issues – Kevin Luther, Chicago & Rockford

2:40pm MedicalMarijuanaandtheGovernmentalEmployer – Bruce Bonds, Urbana

3:00pm Cocktails&Horsd’oeuvres

PeoriaAttorneys:Bradford B. Ingram - [email protected] S. Young - [email protected] J. Manning - [email protected] J. Hughes - [email protected] M. Bell - [email protected] M. Boyle - [email protected]

Dockets Covered:Bloomington • Peoria • Rock Island

SpringfieldAttorneys:Daniel R. Simmons - [email protected] O. Langfelder - [email protected] M. Bell - [email protected] E. Siegel - [email protected]

Dockets Covered:Quincy • Springfield

UrbanaAttorneys:Bruce L. Bonds - [email protected] D. Flodstrom - [email protected] J. Peterson - [email protected] J. Tomaso - [email protected] E. Znaniecki - [email protected] K. Guyette - [email protected]

Dockets Covered:Herrin • Mt. Vernon • Springfield • Urbana

Rockford & ChicagoAttorneys:Kevin J. Luther - [email protected] A. Antonacci - [email protected] A. Welch - [email protected] W. Getty - [email protected]

Dockets Covered:Chicago • Geneva • OttawaRockford • Waukegan • WheatonWoodstock • Elgin • Kankakee • New Lenox

EdwardsvilleAttorneys:Toney J. Tomaso - [email protected]

Dockets Covered:Collinsville

Peoria300 Hamilton Blvd.PO Box 6199Peoria, IL 61601309.676.0400

Chicago33 N. Dearborn St.Seventh FloorChicago, IL 60602312.853.8700

Edwardsville105 W. Vandalia St.Mark Twain Plaza III Suite 100PO Box 467Edwardsville, IL 62025618.656.4646

Rockford120 W. State St.Second FloorPO Box 1288Rockford, IL 61105815.963.4454

Springfield3731 Wabash Ave.PO Box 9678Springfield, IL 62791217.522.8822

Urbana102 E. Main St.Suite 300PO Box 129Urbana, IL 61803217.344.0060

www.heylroyster.com

Appellate:

Brad A. Elward - [email protected]

Dockets Covered: Statewide

Workers’ Compensation attorneys

Heyl, royster, Voelker & allen

The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted.

TABLE OF CONTENTS Introductions ................................................................................................................................................................ A-1

Liability of Government Agencies to Volunteers for Wages and Injuries .............................................. B-1

Appellate Issues in Workers’ Compensation Cases Affecting Governmental Employers ............... C-1 Employee Victims of Workplace Violence: New Perspectives on Exposure and Defenses ............ D-1

Average Weekly Wage: The First Step in Determining Benefits ................................................................ E-1

Panel Discussion: How Many Benefits Truly Are Available to Injured Employees? (including the Illinois Public Employee Disability Act (PEDA) and the Illinois Public Safety Employee Benefits Act (PSEBA) ................................................................................................... F-1

Tactics and Strategies to Reduce WC Payout: How to Control Medical Treatment and Return to Work Issues ..................................................................................................................................... G-1

Medical Marijuana and the Governmental Employer ................................................................................... H-1


A-1

INTRODUCTIONS

Presented by: Timothy L. Bertschy

[email protected] Peoria, Illinois • 309.676.0400

Chicago, Illinois • 312.853.8700

Craig S. Young [email protected]

Peoria, Illinois • 309.676.0400

John M. Redlingshafer [email protected]

Peoria, Illinois • 309.676.0400 Chicago, Illinois • 312.853.8700

Heyl, Royster, Voelker & Allen PEORIA • CHICAGO • EDWARDSVILLE • ROCKFORD • SPRINGFIELD • URBANA


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Timothy L. Bertschy

- Managing Partner

Tim is the firm's Managing Partner and chair of the firm's Commercial and Business Litigation Practice. He has tried cases for both plaintiffs and defendants involving contractual breach, business torts, business break-ups, stockholder disputes, ERISA, unfair competition, intellectual property, debtor-lender claims, bankruptcy (claim, discharge, and preference litigation), covenants not to compete, fraud and misrepresentation, eminent domain (condemnation), public and private nuisances, real estate, and zoning disputes. Tim has successfully argued cases before the Illinois Supreme Court and the Seventh Circuit Court of Appeals. Three of his cases have been included in legal textbooks for the principles of law which they established. He has been designated in the "Leading Lawyer" and "Super Lawyer" lists for Illinois and is included in "The Best Lawyers in America" (2010-2014). Tim is a past member of the American Bar Association Board of Governors, representing Illinois and Ohio. He served in the ABA House of Delegates for over 15 years. He is a past president of the Illinois State Bar Association. He chaired the ABA Standing Committee on Publishing Oversight for four years. He is presently chair of the United States District Court Advisory Committee on Local Rules (Central District, Illinois). He is a Commissioner of the Attorney Registration and Disciplinary Commission (ARDC) and is on the board of the Illinois Bar Foundation. He is co-chair of the ABA Section of Litigation Membership and Marketing Committee and former co-chair of the Section's Business Torts, Minority Trial Lawyer, and Immigration Litigation Committees. He was co-chair of the Illinois Legal Needs Study II, and former President of the Illinois Equal Justice Foundation, Illinois Lawyers Assistance Program, Illinois Chapter of the American Judicature Society, Illinois Coalition for Equal Justice, Illinois Township Attorneys Association, and American Counsel Association. He was the first Chairman of the Diversity Committee of the Peoria County Bar Association. He has served as co-chair of the Prairie State Legal Services Campaign for Legal Services committee. Tim has written articles and spoken on a wide variety of legal topics. In particular, he has written extensively over a period 30 years in the field of economic loss

and authored the IICLE chapter entitled "Economic Loss - The Line Between Contract and Tort," (Contract Law, Illinois Institute for Continuing Legal Education). Significant Cases United States Securities and Exchange

Commission v. Roth, et al., 2:11-cv-02079 (CD IL) - Acting as federal court appointed Receiver in case arising from $16.5 million dollar securities fraud case.

Hartney Fuel Oil Company, et al. v. Hamer, et al. - 2013 IL 115130 Suit was filed by a retail sales taxpayer against our client, The Regional Transportation Authority (RTA), the Illinois Department of Revenue, and a Cook County municipality contending that the assessment of back sales taxes of $20+ million was incorrect. Ultimately, the RTA's position was upheld in the Illinois Supreme Court. While the taxpayer was not required to pay back taxes pursuant to the Taxpayer Bill of Rights, the Illinois Supreme Court invalidated existing regulations in adopting a "multi-factor test" as argued for by the RTA, a decision which had statewide application to sales tax sourcing favoring governmental entities such as our client.

A v. B - We represented the Plaintiff in a trial to a federal jury arising out of Defendant's breach of a technology licensing agreement. The case settled before closing arguments, resulting in a recovery for our client of multiple millions of dollars (exact amount of settlement is confidential).

Witters, et al. v. Hicks - Circuit Court, Lawrence County, Illinois (Case No. 00 L 2) We represented the plaintiffs on a shareholder's fiduciary duty claim against other shareholder/officer requesting dissolution of business and damages; judgment for dissolution and $22.5 million in damages for plaintiffs (our clients) and receiver. Settled on appeal. Several interlocutory appeals established law in state receivership area.

Publications "Developing a 'Best Practices' Record Retention

Policy," Heyl Royster Business & Commercial Litigation Newsletter (2013)

Learn more about our speakers at www.heylroyster.com

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"Economic Loss - The Line Between Contract and Tort," chapter in Contract Law, Illinois Institute for Continuing Legal Education (2008, 2013)

"A Brief Introduction To The Illinois Prevailing Wage Act For Private Contractors," Heyl Royster Business & Commercial Litigation Newsletter (2013)

"Recent Statutory Changes of Note," Heyl Royster Governmental Newsletter (2012)

Public Speaking “Medical Cannabis: A Primer For Employers and

Governmental Entities” Heyl Royster Lunch & Learn Seminar/Webinar (2014)

“Public Contracts & Procurement Regulations” Lorman Education Services, Springfield (2013)

“Post-Trial Motions” Peoria County Bar Association Federal Practice Seminar (2013)

“Using Receiverships” Peoria County Bar Association Civil Practice Seminar (2013)

“Offensive Tactics in the Defense of Claims” Annual Lawyers and Accountants Defense Network (2013)

“Prevailing Wage Act: What Do You Need to Know?” TOI Annual Educational Conference (2009, 2011-2013)

“Government Officials Essentials” Heyl Royster Governmental Seminar (2013)

“Legal Considerations for Highway Commissioners” West Central Illinois Highway Commissioners Association, LaHarpe, Illinois (2012)

“Subject Matter Jurisdiction” Peoria County Bar Association Federal Jurisdiction Seminar (2012)

Professional Recognition Martindale-Hubbell AV Preeminent The Best Lawyers in America (2010-2016):

Commercial Litigation Selected as a Leading Lawyer in Illinois. Only

five percent of lawyers in the state are named as Leading Lawyers.

Named to the Illinois Super Lawyers list (2008-2015). The Super Lawyers selection process is based on peer recognition and professional

achievement. Only five percent of the lawyers in each state earn this designation.

Lawyers Assistance Program of Illinois - Carl Rolewick Award

Township Officials of Illinois - President's Award

Illinois Township Attorneys Association – J. Bruce Scidmore Award

Peoria County Bar Association - Community Service Award

Professional Associations American Bar Association (Member, House of

Delegates; Past Chair, ABA Standing Committee on Publishing Oversight; Past Member, Board of Governors)

Illinois State Bar Association (Past President) Peoria County Bar Association Society of Trial Lawyers Abraham Lincoln American Inn of Court Illinois Township Attorneys Association (Past

President) American Bar Foundation Illinois Bar Foundation (Board Member) Peoria County Bar Foundation Illinois Equal Justice Coalition (Past President) Illinois Equal Justice Foundation (Past

President) American Counsel Association (Past President) United States District Court Advisory

Committee on Local Rules - Central District, Illinois (Chair)

Illinois Lawyers Assistance Program (Past President)

Court Admissions State Courts of Illinois United States District Court, Central District of

Illinois United States District Court, Eastern District of

Wisconsin United States Court of Appeals, Seventh Circuit United States Supreme Court

Education Juris Doctor, The George Washington

University, The National Law Center, 1977 Bachelor of Arts-Economics (magna cum

laude), University of Illinois, 1974

Learn more about our speakers at www.heylroyster.comLearn more about our speakers at www.heylroyster.com

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Craig S. Young

- Partner

Craig is Chair of the firm's workers' compensation practice group. Craig began his career at Heyl Royster as a summer clerk while in law school and became an associate in the firm's Peoria office in 1985. He has spent his entire career with Heyl Royster and became a partner in 1992. He is recognized as a leading workers' compensation defense lawyer in the state of Illinois and has handled all aspects of Illinois workers' compensation litigation including arbitrations, reviews, and appeals. He has developed expertise in the application of workers' compensation to certain industries including hospitals, trucking companies, municipalities, large manufacturers, school districts, and universities. In addition to his expertise in litigated cases, Craig has developed a reputation for counseling employers regarding overall management of the workers' compensation risk. Through seminars and presentations to local and national industry groups, in-house meetings, regular claims review analysis, and day-to-day legal counsel, Craig assists his clients in looking beyond each individual case in an effort to reduce overall workers' compensation expense. His comprehensive approach to workers' compensation issues also includes third-party liability and lien recovery issues. Currently, Craig is the immediate past chair of the workers' compensation committee of the Defense Research Institute. He has also chaired DRI's Program Committee, and in that role, chaired nationally acclaimed teleconferences and seminars on specific issues relating to workers' compensation defense. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin. Craig is actively involved in supporting many local charitable organization and civic causes. He was the 2008 recipient of the Peoria County Bar Association's Distinguished Community Service Award. Publications "Recent Advances of the Traveling Employee

Doctrine," For the Defense (2014)

Public Speaking “Effective Strategies for Defending Traveling

Employee Claims” Heyl Royster 29th Annual Claims Handling Seminar (2014)

“Workers’ Compensation Reform in Illinois” Presented in numerous locations (2012)

“Elements of a Winning Workers’ Compensation Program” Downstate Illinois Occupational Safety & Health Day (2010)

“Family Medical Leave Act (FMLA); Americans with Disabilities Act (ADA); and Workers’ Compensation” Risk Control Workshop (2010)

“Medical Science, Industrial Commission Science - Understanding the Industrial Commission's Approach to Medical Issues” Lorman Education Services (2008)

“The Employee Who Can't Return to Work: Wage Differentials, Vocational Rehabilitation & Job Placement” Lorman Education Services (2008)

“Medicare Set-Aside Agreements-The Rest of the Story” Defense Research Institute (2007)

“Resolving (or Alleviating) the Chronic Pain Case” Heyl, Royster, Voelker & Allen (2007)

“Definition, Statutory Employers, Self-Insureds, Insurance Non-Compliance and the Stop-Work Order: Sections 1, 3 and 4” Heyl, Royster, Voelker & Allen (2006)

“Workers' Compensation and Illegal Aliens” Defense Research Institute (2006)

“The Employee Who Can't Return to Work: Wage Differentials, Vocational Rehabilitation and Job Placement” Lorman Educational Services (2006)

“Medical Science, Industrial Commission Science - Understanding the Industrial Commission's Approach to Medical Issues” Lorman Educational Services (2006)


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Professional Recognition Martindale-Hubbell AV Preeminent Selected as a Leading Lawyer in Illinois. Only


Peoria County Bar Association 2008 Distinguished Community Service Award

Professional Associations American Bar Association Illinois State Bar Association Peoria County Bar Association (Immediate Past

President) Defense Research Institute (Past Chair, National

Workers' Compensation Committee)


Illinois United States Court of Appeals, Seventh Circuit United States Supreme Court

Education Juris Doctor, University of Illinois, 1985 Bachelor of Arts-History (summa cum laude),

Bradley University, 1982


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John M. Redlingshafer

- Partner

John is chair of the firm's Governmental Practice and a member of the Business & Commercial Litigation Practice. In the area of governmental law, he represents numerous townships, villages, fire districts, road districts, and other governmental entities in a broad range of areas, including litigation, negotiations on intergovernmental agreements, compliance with statutory regulations, and consultation on infrastructure and construction projects (including project financing and debt management). He also works with governmental bodies and private developers/corporations in various aspects of zoning, annexation, and eminent domain law. In addition, John represents corporate clients in general tort defense and landlord/tenant issues. John also serves as an Administrative Adjudication Hearing Officer for municipal ordinance violations involving alleged violations of ordinances related to real and personal property. John is a frequent statewide speaker on government-related issues at both conventions and educational seminars. He was a contributing author and General Editor for a publication related to special district law for the Illinois Institute for Continuing Legal Education, and also wrote for the Institute on publications regarding the Illinois Open Meetings Act, Freedom of Information Act, and municipal contracts in the Institute's "Illinois Municipal Law" series. He has also been a regular, contributing author to the official publication of the Township Officials of Illinois, the Perspective, and the Illinois Township Attorneys Association newsletter. John is a past President of the Illinois Township Attorneys Association, and previously served as the Editor of its newsletter, the Talk of the Township. He has also served on the Board of Directors for the Peoria County Bar Association, and currently serves as a member of the Illinois State Bar Association's Local Government Law Section Council. In 2013, 2014 and 2015 he was named to the Illinois Super Lawyers Rising Stars list. Only 2.5 percent of Illinois lawyers who are 40 years old or younger, or who have been practicing 10 years or less, earn this designation. John currently serves on the Tazewell County Board, and was appointed to its Land Use and Health

Services Committees. He was also appointed to the East Peoria Fire and Police Commission by the Mayor, with consent of the East Peoria City Council. He has spent his entire legal career with Heyl Royster, beginning in 2004 in the Peoria office. Transactions Represents governmental entities and

developers in significant zoning changes. Represented township government in objecting

to proposed mineral extraction facility. Assisted agricultural cooperative in obtaining

special use (including related court trial) authorizing construction of grain storage facility.

Drafts resolutions and ordinances for governmental entities.

Represents landowners in eminent domain proceedings.

Negotiated resolution for agricultural cooperation in eminent domain cases brought by state agency.

Litigated "quick take" proceedings on behalf of private corporations contesting eminent domain offers.

Represents governmental entities in property purchases and construction projects.

Assisted numerous townships and road districts in real estate contracts with cities, park districts, and other governments.

Negotiated agreement between fire protection district and private corporation for real estate to host new central station.

Publications "Contracts" chapter in Municipal Law: Contracts,

Litigation and Home Rule, Illinois Institute for Continuing Legal Education (2015)

General Editor, and author of "General Considerations," chapter in Special Districts, Illinois Institute for Continuing Legal Education (2014)

"Warranties, Disclaimers, and Limitations" chapter in Contract Law, Illinois Institute for Continuing Legal Education (2013)

"Introduction to the Open Meetings Act," chapter in Illinois' Freedom of Information and


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Open Meetings Acts, Illinois Institute for Continuing Legal Education (2011, 2013)

"Frequently Asked Election Questions," with Jeffrey R. Jurgens, Township Officials of Illinois Perspective Magazine (2012)

"Can Public Bodies Claim Records Are 'Outside the Scope' of a FOIA Request?" – Local Government Law, ISBA Section on Local Government Law Newsletter (2012)

"Municipal Contracts" supplement chapter in Municipal Law, Illinois Institute for Continuing Legal Education (2012)

Public Speaking “General Assistance: Problems Township

Attorneys Are Asked to Deal with” Illinois Township Attorneys Association 12th Annual Educational Seminar (2014)

“Medical Cannabis: A Primer For Employers and Governmental Entities” Heyl Royster Lunch & Learn Seminar/Webinar (2014)

“Determining Control of Rights-of-Way” East Central and Northwest Highway Commissioners Seminars (2014)

“General Considerations for Township Supervisors” Township Officials of Illinois Conferences (2014)

“Illinois' Freedom of Information Act” Tazewell, Stark, Woodford & Peoria Counties Road Commissioner Training Seminar (2013)

“Considerations under Illinois’ Prevailing Wage Act” American Public Works Association (Illinois Chapter) Conference (2013)

“Practical Issues under Illinois’ Freedom of Information Act” Illinois Association of County Clerks and Recorders Conference (2013)

Professional Recognition Named to the Leading Lawyers Emerging

Lawyers list (2015). Only 2 percent of Illinois lawyers under the age of 40 or who have been licensed to practice for 10 years or less earn this distinction.

Named to the Illinois Super Lawyers Rising Stars list (2013-2015). The Super Lawyers Rising Stars selection process is based on peer recognition and professional achievement. Only 2.5 percent of Illinois lawyers under the age of 40 or who

have been practicing 10 years or less earn this designation.

J. Bruce Scidmore Award, Township Attorney of the Year (2011)

Professional Associations Illinois Township Attorneys Association (Vice

President 2007-09; President 2009-2011) Illinois State Bar Association (Local Government

Law Section Council, 2011-Present) Peoria County Bar Association (Chair,

Communications & Technology Committee, 2009-2012)

Court Admissions State Courts of Illinois United States District Court, Central and

Northern Districts of Illinois (Trial Bar) Education Juris Doctor, DePaul University College of Law,

2004 Bachelor of Arts-International Relations (magna

cum laude), Bradley University, 2001


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LIABILITY OF GOVERNMENT AGENCIES TO VOLUNTEERS FOR WAGES AND INJURIES

Presented and Prepared by: Stacy E. Crabtree


Prepared with the Assistance of: Brad A. Elward




B-2


I. FAIR LABOR STANDARDS ACT OF 1938 .............................................................................................. B-3

A. Who is a Volunteer? ..................................................................................................................... B-3 B. The Courts’ Interpretation ......................................................................................................... B-3 C. Permitted Payments ..................................................................................................................... B-4 D. Mendel v. City of Gibraltar .......................................................................................................... B-5

II. WORKERS’ COMPENSATION ACT.......................................................................................................... B-6

A. Basis for Coverage Under the WCA ....................................................................................... B-6

1. Volunteer Firemen Filing Civil Actions ................................................................... B-7 2. Former Volunteer Firefighter Who Assists Fighting Fire Not Covered ...... B-7 3. Employer-Employee Analysis for Volunteers ....................................................... B-8

B. Determining Average Weekly Wage for Volunteer Firemen, Police, and Civil Defense Members or Trainees. .............................................................................. B-8

1. Items Included in Average Weekly Wage ............................................................. B-9

(a) Vacation Pay ...................................................................................................... B-9 (b) Unemployment Compensation .................................................................. B-9 (c) Overtime ............................................................................................................. B-9 (d) Fringe Benefits .................................................................................................. B-9

III. PRACTICAL APPLICATION ...................................................................................................................... B-10 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted.

B-3


Volunteers are an integral part of operations for many organizations including some government agencies. Despite the altruistic intent, however, volunteers can pose a significant risk to an agency as an employer. Specifically, government agencies may be faced with a claim from a volunteer for unpaid wages under the Fair Labor Standards Act or, in the event of an injury, claim for compensation under the Workers’ Compensation Act. I. FAIR LABOR STANDARDS ACT OF 1938

The Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., as amended, (the FLSA) governs certain aspects of an employer’s obligations related to its employees, including minimum wage, overtime pay, recordkeeping, and limitations on youth employment. Although the FLSA does not apply to every organization, it does apply specifically to federal, state, and local government agencies and schools. See, e.g., 29 U.S.C. § 206(a) & 203(b), (r). As a result, many government agencies may be at risk of having to pay wages, including overtime, to supposed volunteers if the organization fails keep the employee versus volunteer distinction intact.

A. Who is a Volunteer?

To address volunteers, courts have interpreted the definition of “employee” in the FLSA such that an “employee” does not include an individual who “without promise or expectation of compensation, but solely for his personal purpose or pleasure, worked in activities carried on by other persons either for their pleasure or profit.” Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 295 (1985). Regulations promulgated by the United States Department of Labor provide a specific definition of “volunteer” in the context of services performed for state and local government agencies. See 29 C.F.R. § 553.101. As defined, “volunteers” for state or local government agencies are those who perform services “for civic, charitable, or humanitarian reasons” of their own free will, without pressure or coercion from their employer and without the promise, expectation, or receipt of compensation for the services. 29 C.F.R. § 553.101(a). Further, state and local government agencies’ employees may not perform the same type of services that those employees perform as part of their job on a volunteer basis. 29 C.F.R. § 553.101(d).

B. The Courts’ Interpretation

Unfortunately, whether a government agency labels an individual as a “volunteer” rather than an “employee” makes little difference. Even an employee “volunteering” for an activity does not mean that the activity is non-compensable services. In Graham v. City of Chicago, 828 F. Supp. 576 (N.D. Ill. 1993), the court found in favor of police officers who sought compensation under the FLSA for time transporting police dogs to and from work regardless of whether the police officers volunteered for the activity.

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When determining whether services are, in fact, volunteer in nature, courts apply a reasonableness standard and look at the “‘objective facts surrounding the services performed to determine whether the totality of the circumstances’ establish volunteer status, . . . or whether, instead, the facts and circumstances, objectively viewed, are rationally indicative of employee status.” Okoro v. Pyramid 4 Aegis, 2012 U.S. Dist. LEXIS 56277, *23 (E.D. Wis. Apr. 23, 2012). Courts will look at the economic reality of the situation, the relationship of parties, and the goals of the FLSA.

C. Permitted Payments

Consistent with the above, the FLSA does not completely prohibit agencies compensating volunteers. 29 C.F.R. § 553.106 expressly permits certain compensation while allowing an individual to maintain his or her volunteer status, as set forth in part below.

§ 553.106 Payment of expenses, benefits, or fees. (a) Volunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers. (b) An individual who performs hours of service as a volunteer for a public agency may receive payment for expenses without being deemed an employee for purposes of the FLSA. A school guard does not become an employee because he or she receives a uniform allowance, or reimbursement for reasonable cleaning expenses or for wear and tear on personal clothing worn while performing hours of volunteer service. (A uniform allowance must be reasonably limited to relieving the volunteer of the cost of providing or maintaining a required uniform from personal resources.) Such individuals would not lose their volunteer status because they are reimbursed for the approximate out-of-pocket expenses incurred incidental to providing volunteer services, for example, payment for the cost of meals and transportation expenses. (c) Individuals do not lose their status as volunteers because they are reimbursed for tuition, transportation and meal costs involved in their attending classes intended to teach them to perform efficiently the services they provide or will provide as volunteers. Likewise, the volunteer status of such individuals is not lost if they are provided books, supplies, or other materials essential to their volunteer training or reimbursement for the cost thereof. (d) Individuals do not lose their volunteer status if they are provided reasonable benefits by a public agency for whom they perform volunteer services. Benefits would be considered reasonable, for example, when they involve inclusion of individual volunteers in group insurance plans (such as liability, health, life, disability, workers' compensation) or pension plans or “length of service” awards,

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commonly or traditionally provided to volunteers of State and local government agencies, which meet the additional test in paragraph (f) of this section. (e) Individuals do not lose their volunteer status if they receive a nominal fee from a public agency. A nominal fee is not a substitute for compensation and must not be tied to productivity. However, this does not preclude the payment of a nominal amount on a “per call” or similar basis to volunteer firefighters. The following factors will be among those examined in determining whether a given amount is nominal: The distance traveled and the time and effort expended by the volunteer; whether the volunteer has agreed to be available around-the-clock or only during certain specified time periods; and whether the volunteer provides services as needed or throughout the year. An individual who volunteers to provide periodic services on a year-round basis may receive a nominal monthly or annual stipend or fee without losing volunteer status.

29 C.F.R. § 553.106(a-e). State and local agencies should proceed cautiously, though, with the permissions granted above. Notably, the regulations later provide that a volunteer may lose his or her status as such when the total expenses, benefits, and/or fees paid are examined in context with the “economic realities of the particular situation.” 29 C.F.R. § 553.106(f).

D. Mendel v. City of Gibraltar

In Mendel v. City of Gibraltar, 727 F.3d 565 (6th Cir. 2013), the plaintiff argued the city’s volunteer firefighters were in fact employees. Mendel, 727 F.3d at 567. There, the volunteer firefighters could respond to calls whenever they chose to do so, but if they did respond to a call, the volunteers were paid $15 per hour. Id. The volunteer firefighters did not otherwise receive compensation for training or any benefits and did not have a set schedule. Id. The court considered the economic realities of the situation and held that the firefighters received more than a nominal fee when responding to calls. Id. at 570-71. Interestingly, the hourly wage paid to volunteer firefighters was substantially similar to that paid to the employed firefighters. Id. at 571. As a result, the court held the volunteer firefighters were in fact employees and ruled in favor of the plaintiff. Id. at 572. Mendel also serves as a caution to government agencies in that whether a volunteer is truly an employee has implications outside of the FLSA. Specifically, in Mendel, the plaintiff’s underlying suit alleged the city violated the Family Medical Leave Act. Id. at 567. The city was not obligated to comply with the Family Medical Leave Act as complained of by the plaintiff, though, unless the city’s volunteers were counted as employees to bring the city’s total employee count above the minimum statutory amount. Id. As a result of the court’s finding that the volunteers were employees based on the FLSA, the city subsequently faced potential liability under the Family Medical Leave Act as well.

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II. WORKERS’ COMPENSATION ACT

The Workers’ Compensation Act, 820 ILCS 305/1 et seq., (the WCA) is well known as the law that governs when and how much employers must compensate employees for injuries employees sustain in the course of their employment. Despite their non-employee title, certain volunteers to government agencies may nonetheless be entitled to compensation for injuries under the WCA. As will be discussed below, government agencies may have, in particular, a higher liability exposure for workers’ compensation claims to volunteer firemen, police, and civil defense members and trainees.

A. Basis for Coverage Under the WCA

A volunteer fireman is considered an employee under the WCA based on the language of section 1(b) of the WCA. 820 ILCS 305/1(b). In Creve Coeur v. Industrial Comm’n, 32 Ill. 2d 430 (1965), the Illinois Supreme Court concluded that a volunteer fireman is included within the term “employee,” as found in section 1(b), which defines an employee to mean:

Every person in the service of the State, including members of the General Assembly, members of the Commerce Commission, members of the Illinois Workers’ Compensation Commission, and all persons in the service of the University of Illinois, county, including deputy sheriffs and assistant state’s attorneys, city, town, township, incorporated village or school district, body politic, or municipal corporation therein, whether by election, under appointment or contract of hire, express or implied, oral or written, including all members of the Illinois National Guard while on active duty in the service of the State, … and including any official of the State, any county, city, town, township, incorporated village, school district, body politic or municipal corporation therein.

820 ILCS 305/1(b)(1). Excluded from section 1(b)’s definition is “any duly appointed member of a police department in any city whose population exceeds 500,000 according to the last Federal or State census, and except any member of a fire insurance patrol maintained by a board of underwriters in this State.” Id. Moreover, “[a] duly appointed member of a fire department in any city, the population of which exceeds 500,000 according to the last federal or State census, is an employee under this Act only with respect to claims brought under paragraph (c) of Section 8 [820 ILCS 305/8].” Id. In Creve Coeur, the court found that the village in question did not employ a full-time fire chief or firemen, but that it owned a firetruck, equipment, and maintained a roster of 29 volunteers, each of whom was paid $3 when they appeared at a fire. None of the firemen were required to attend a fire call, but when they did they were subject to the orders of the fire chief. The village board had the power to dismiss or fire. Although there was no express written contract of

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employment, the claimant was paid a wage, was furnished tools, and was under the control of the fire chief when he was on a call. The court considered these factors, which are typically considered in an independent contractor analysis, as part of its overall determination as to whether the claimant was an employee.

1. Volunteer Firemen Filing Civil Actions

In Wren v. Reddick Community Fire Protection Dist., 337 Ill. App. 3d 262 (3d Dist. 2003), two volunteer firemen, Wren and Foiles, were injured in a vehicular accident while responding to a fire with other area fire departments. The two plaintiffs were unpaid volunteers. Immediately after the accident, both filed civil actions against the Fire Protection District seeking damages. Shortly after the accident, the District’s workers’ compensation carrier began paying the plaintiffs’ medical bills, paying $33,974.37 on behalf of plaintiff Wren and $49,344.18 on behalf of Foiles. Just before the statute of limitations expirations, both also filed workers’ compensation claims. The District filed a motion for summary judgment asserting that the exclusive remedy provisions of the WCA, sections 5 and 11, barred the common law claims for civil damages because both Wren and Foiles were employees and both had accepted benefits under the WCA. The circuit court granted the motion, but the appellate court reversed, finding that a party is barred from pursuing a common law claim only when the workers’ compensation benefits are actively sought and obtained. One justice filed a separate concurrence, noting that a common law claim is not barred when the plaintiff merely accepted unsolicited benefits.

2. Former Volunteer Firefighter Who Assists Fighting Fire Not Covered

In Pearson v. Industrial Comm’n, 318 Ill. App. 3d 932 (3d Dist. 2001), the claimant was injured while assisting fire fighters in extinguishing a farm field fire. Although a former volunteer fire fighter, the claimant was not listed on the township’s fire protection district directory and had been stricken from the list for failing to attend meetings. The claimant was not paid for his services in fighting the fire and did not expect payment for his services. The claimant acknowledged that he offered his services out of a concern for his neighbors and community. The claimant testified that he first noticed the fire and reported it to the fire protection district. He then directed the fire crews to the area and offered to retrieve his personal tractor and disk and to disk a field to help restrain the fire. The district personnel called the assistant fire chief, who consented, and the claimant retrieved his tractor and disk. While working the field, the claimant was injured, and subsequently filed a workers’ compensation claim. The appellate court upheld the Illinois Workers’ Compensation Commission’s denial of benefits, finding that the claimant, although a former volunteer firemen, was not an employee at the time of the fire. The court concluded that the claimant had provided his services not for pay, but out of a concern for his neighbors and community. The appellate court placed great weight on the

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fact that the claimant had not been compensated for his services, a factor which weighed heavily in favor of an employee-employer relationship in Creve Coeur.

3. Employer-Employee Analysis for Volunteers

The WCA defines employee as "every person in the service of another under any contract of hire, express or implied, oral or written." 820 ILCS 305/1(b)(2). Consistent with the philosophy of the WCA, which assumes that a worker is gainfully employed at the time of his injury, it is generally recognized that a true employer/employee relationship does not exist in the absence of the payment or expected payment of consideration in some form by the employer to the employee. Board of Education of the City of Chicago v. Industrial Comm’n, 53 Ill. 2d 167 (1972). Although the definition of “employee” contained in the WCA is to be broadly construed, the law generally holds there can be no employer/employee relationship and, therefore no liability under the WCA, in the absence of a contract for hire, express or implied. Crepps v. Industrial Comm’n, 402 Ill. 606 (1949). No rigid rule of law governs the determination of whether an employer/employee relationship exists; that determination depends on the facts of the particular case. Ragler Motor Sales v. Industrial Comm’n, 93 Ill. 2d 66 (1982). No single fact controls and such factors as the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required and work done, and the furnishing of tools, material and equipment must be considered. Goodrick v. Industrial Comm’n, 237 Ill. App. 3d 885, 888-89 (3d Dist. 1992). As an example, when a person supervised the lunchtime activities of 150 elementary students who took their lunches to school, her work was directed by the principal, and she was paid $52 a month by the school P.T.A., the court found an employment relationship because the school directed her work and knew she was being paid. Board of Education of City of Chicago v. Industrial Comm’n, 57 Ill. 2d 339 (1974). The court cited to its earlier decision in Forest Preserve District of Cook County v. Industrial Comm’n, 357 Ill. 389 (1934), to the effect that “an employer need not pay the employee directly if the employer knows that a third party is paying the employee for the services he performs for the employer.” Board of Education, 57 Ill. 2d at 343. Conversely, the court in Board of Education of City of Chicago v. Industrial Comm’n, 53 Ill. 2d 167 (1972), denied compensation where a student teacher volunteered her services at no pay and did not regard herself as an employee.

B. Determining Average Weekly Wage for Volunteer Firemen, Police, and Civil Defense Members or Trainees.

Section 10 of the WCA provides the formulas for calculating an employee’s average weekly wage, which serves as the basis for his or her benefits under the WCA. Specifically, section 10 provides, as to volunteer firemen, police, and civil defense members or trainees, that “the income benefits shall be based on the average weekly wage in their regular employment.” 820 ILCS 305/10.

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Example: Hal works as a volunteer fireman and was injured while fighting a fire in that capacity. His daytime job involves managing an insurance agency, wherein he earns a $52,000 per year salary. Hal’s average weekly wage as a volunteer fireman is his earnings in his regular employment – $52,000/52 weeks, or $1,000.

Moreover, as with non-volunteer employees, when the volunteer employee is working concurrently with two or more employers and the employer has knowledge of such employment prior to the injury, “his wages from all such employers shall be considered as if earned from the employer liable for compensation.” Id.

Example: Suppose Hal from our prior example also works an evening job as an associate professor at the local junior college, where he earns $150 per week. If the employing fire department knew of Hal’s concurrent employment as an instructor, those wages would also be included in his average weekly wage calculation.

1. Items Included in Average Weekly Wage

(a) Vacation Pay

Vacation pay is included as part of the employee’s average weekly wage. General Tire & Rubber Co. v. Industrial Comm’n, 221 Ill. App. 3d 641, 652 (5th Dist. 1991).

(b) Unemployment Compensation

Unemployment benefits are excluded from the calculation of average weekly wage. Zanger v. Industrial Comm’n, 306 Ill. App. 3d 887, 892 (4th Dist. 1999).

(c) Overtime

Section 10 of the WCA explicitly states that overtime is to be excluded in calculating an employee's average weekly wage. However, the statute fails to define “overtime.” Airborne Express, Inc. v. Illinois Workers’ Comp. Comm’n, 372 Ill. App. 3d 549, 553 (1st Dist. 2007). Overtime includes those hours in excess of an employee’s regular weekly hours of employment that he or she is not required to work as a condition of his or her employment or which is not part of a set number of hours consistently worked each week. To include such time in the average weekly wage figure, a claimant must show: (1) he was required to work overtime as a condition of his employment; (2) he consistently worked a set number of overtime hours each week; or (3) the overtime hours he worked were part of his regular hours of employment. Freesen, Inc. v. Indus. Comm’n, 348 Ill. App. 3d 1035, 1042 (4th Dist. 2004).

(d) Fringe Benefits

Fringe benefits are not included in the average weekly wage calculation. Pluto v. Industrial Comm’n, 272 Ill. App. 3d 722, 729 (1st Dist. 1995). Fringe benefits can include an employer’s

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contribution to a union health and welfare program. The Pluto court noted that fringe benefits are not included as earnings or income for state or federal income tax purposes. However, vacation pay is included as earnings or income where an employee is paid his regular earnings during the time he takes time off for vacation, a fact which distinguishes fringe benefits from vacation pay which is included in the calculation of an employee's average weekly wage. III. PRACTICAL APPLICATION

Despite the somewhat ambiguous “totality of the circumstances” test applied by courts under the FLSA and case by case analysis applied under the WCA, there are a number of steps every agency can take to minimize its liability to volunteers for unpaid wages or injury claims.

1. Do not promise wages to volunteers. If at all possible, limit payments to volunteers solely to reimbursement of expenses incurred by that volunteer for the agency.

2. Do not promise future employment to volunteers. 3. Do not require volunteers to abide by the employee handbook, but instead consider

creating a separate volunteer handbook. If a volunteer handbook is desired, agencies should consult with an attorney as to the appropriate language in the handbook to ensure it does not otherwise imply an employer-employee relationship.

4. Do not allow employees to volunteer to perform services for their employer similar to those services performed as part of their job duties.

5. Do not subject volunteers to unnecessary risks of injury. Take safety precautions and provide personal protective equipment for volunteers and employees alike.

Following these basic steps will at least start a government agency on the right path of minimizing financial liability to volunteers under the FLSA and WCA.

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Stacy E. Crabtree

- Associate

Stacy focuses her practice on commercial and governmental transactions and litigation. Stacy assists her clients with the negotiation and drafting of a wide range of contracts including purchasing, consulting, equipment finance, and license agreements, and she also assists her clients with corporate organization, governance, and compliance issues. Her clients range from large to small businesses, non-profits and local units of government. Stacy regularly works onsite with a Fortune 50 company assisting its in-house counsel with vendor agreements including cloud service, consulting, and software license agreements, and open-source software and freeware compliance issues. The company has touted the relationship as helping it actually lower the company's legal costs while increasing its efficiencies. In the public sector, Stacy has served as general counsel to local governmental entities and represented governmental entities in various contract disputes. Prior to attending law school, Stacy worked for a major insurance company for three years in auto claims and then commercial underwriting. During law school, Stacy served as a law clerk for United States District Court Judge Timothy J. Corrigan and interned with the United States Attorney's Office for the Middle District of Florida. Stacy also participated on the school's Mock Trial team and was an editor for the Florida Coastal Law Review. Stacy started her career with Heyl Royster in the summer of 2010 as a law clerk and then joined the firm full time as an associate in February 2011. Publications "I have to Pay a Volunteer What? Liability to

Volunteers under the Fair Labor Standards Act," Heyl Royster Business and Commercial Litigation Newsletter (2015)

"Preserving Error For Appeal" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

"Right to Substitution of Judge in Newly Filed Case Unavailable Where Counsel Previously 'Tested the Waters,'" Illinois Defense Counsel Quarterly (2015)

"Payment of Attorney's Fees on Behalf of Employees Remains Discretionary for Local

Public Entities under the Tort Immunity Act Despite Collective Bargaining Agreement," Illinois Defense Counsel Quarterly (2015)

"When Employers Become Human Traffickers: An Overview of the Trafficking Victims' Protection Act," Illinois Defense Counsel Quarterly (2014)

"Sender Beware: How Your Emails or Letters may be Ruled a Binding Contract," Heyl Royster Business and Commercial Litigation Newsletter (2014)

"FOIA Update: When Texts and Emails on Your Cell Phone or Tablet Become Public Records," Heyl Royster Governmental Newsletter (2014)

"Contract Considerations Before Sharing Company Information with Third Parties," Heyl Royster Business and Commercial Litigation Newsletter (2013)

“New Laws for the New Year," Heyl Royster Governmental Newsletter (2013)

"You Paid for It, But You Didn't Buy It: The Question of Website Ownership," Heyl Royster Business & Commercial Litigation Newsletter (2013)

"Religious Symbols in Cemeteries: When Cemetery Decorations Cross the Line of Constitutional Violations," Heyl Royster Governmental Newsletter (2012)

"Snow Removal, Tort Immunity, and the ADA," Heyl Royster Governmental Newsletter (2012)

Public Speaking “Liability as an Exhibitor and as a Donee”

Illinois Association of Museums Annual Conference (2015)

“Medical Marijuana: Legal Update and Property Insurance Coverage Considerations” Heyl Royster 30th Annual Claims Seminar (2015)

“Recent Developments in Advertising and E-Commerce” Peoria AdClub Meeting (2015)

“Legal Considerations for Nonprofits Taking on New Roles” Illinois Main Street Conference (2015)

“When In-House Counsel and Ethics Collide” Caterpillar Legal Services Division (2015)


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“Risky Business of Accepting Credit Cards” Heyl Royster Business & Commercial Litigation Seminar (2013)

“Social Media and Healthcare Professionals: Appropriate Uses versus Abuses” Crawford Memorial Hospital Physicians’ Group (2013)

“Building Your Community's Future: Best Practices for Local Government Construction Projects” Heyl Royster Governmental Seminar (2013)

“Business/Employee Record Retention and Production: Strategies for Effective and Efficient Record Retention” Heyl Royster Business & Commercial Litigation Seminar (2013)

“Website Liability and Requirements for Schools” Marshall, Putnam, and Woodford Counties Superintendents’ Meeting (2012)

“Corruption in Local Government and Duties of Officials to Prevent and Detect” Heyl Royster Governmental Seminar (2012)

“Website Related Liabilities, Losses, & Insurance Issues” Heyl Royster Business & Commercial Litigation Seminar (2012)

“Understanding Open Source Software Legal Risks” Caterpillar Engineering Group Meeting (2012)



40 Leaders Under Forty 2014 - Selected by InterBusiness Issues magazine

Professional Associations American Bar Association Illinois State Bar Association Peoria County Bar Association (Continuing

Legal Education Committee, Chair 2015-present; Special Committee on Mentoring, Chair 2014-2015)

Greater Peoria Claims Association (Board of Directors, 2013-present)

Illinois Association of Defense Trial Counsel (IDC Quarterly Recent Decisions columnist)

Illinois Association of Museums (MuseNews contributor)

Illinois Women in Cannabis Court Admissions State Courts of Illinois United States District Court, Central District of

Illinois Education Juris Doctor (summa cum laude), Florida

Coastal School of Law, 2010 Bachelor of Arts – Risk Management and

Insurance (summa cum laude), Bradley University, 2005


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Brad A. Elward

- Partner

Brad concentrates his work in appellate practice and has a significant sub-concentration in workers' compensation appeals. He has been with the firm since 1991 and became a partner in 1999. Brad handles all aspects of civil appeals, ranging from preparation of initial appeal documents through the drafting of appellate briefs and oral arguments. Brad handles workers' compensation cases before the Workers' Compensation Commission, the circuit court, and the Appellate Court, Workers' Compensation Commission Division, and focuses much of his workers' compensation practice on understanding and handling complex jurisdictional issues, both at the circuit court and appellate court level. Brad's extensive experience in handling judicial reviews of Workers' Compensation Commission decisions has given him statewide recognition. He has also tried several cases, including jury trials. Brad has authored more than 325 appellate briefs and argued more than 225 appellate court cases, resulting in more than 98 published decisions, and numerous unpublished appellate court orders. He has appeared before every Illinois Appellate Court District, the Missouri Appellate Court, the Seventh Circuit Court of Appeals and has significant experience handling interlocutory appeals, in particular those under Supreme Court Rules 306 and 308. He also handles administrative reviews. He has authored several amicus curiae briefs before the Illinois Supreme Court on behalf of the Illinois Association of Defense Trial Counsel. His most recent amici were filed in Fennell v. Illinois Central R.R. Co., 2012 IL 113812, involving interstate forum non conveniens, and Folta v. Ferro Engineering, No. 118070, involving the workers' compensation exclusive remedy provision and asbestos claims. Brad is a past President of the Illinois Appellate Lawyers Association and past Chair of the Peoria County Bar Association CLE Committee. He has published articles in numerous prominent journals and magazines, including the Illinois Bar Journal, Southern Illinois University Law Journal, Northern Illinois University Law Journal, Illinois Defense Counsel Quarterly, DRI For the Defense, and IICLE.

He is the co-editor-in-chief of the 2015 edition of the IICLE volume on Illinois Appellate Practice: State and Federal, for which he authored or co-authored eight chapters. Brad writes frequently on procedural issues affecting appeals and workers' compensation, has taught courses on workers' compensation law for Illinois Central College, and has lectured on appellate practice before the Illinois State Bar, Peoria County Bar, Illinois Institute for Continuing Legal Education, and Southern Illinois University School of Law. He is the current co-editor of the firm's workers' compensation newsletter, published monthly, and is the 2015-2016 Editor-in-Chief of the Illinois Association of Defense Trial Counsel publication The Quarterly. Brad is also a member of the drone law practice group, which advises clients on issues relating to drone operations, and a member of the military law practice group. Significant Cases Hartney Fuel Oil Company, et al. v. Hamer, et

al., 2013 IL 115130 - Suit was filed by a retail sales taxpayer against our client, The Regional Transportation Authority (RTA), the Illinois Department of Revenue, and a Cook County municipality contending that the assessment of back sales taxes of $20+ million was incorrect. Ultimately, the RTA's position was upheld in the Illinois Supreme Court. While the taxpayer was not required to pay back taxes pursuant to the Taxpayer Bill of Rights, the Illinois Supreme Court invalidated existing regulations in adopting a "multi-factor test" as argued for by the RTA, a decision which had statewide application to sales tax sourcing favoring governmental entities such as our client.

Glass v. DOT Transportation, Inc., 912 N.E.2d 762 (1st Dist. 2009) - In the forum non conveniens setting, deference may be given to the selection of forum by a representative plaintiff, who is also a beneficiary under the Wrongful Death Act.

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Rosewood Care Center, Inc. v. Caterpillar, Inc., 226 Ill. 2d 559 (2007) - Illinois does not recognize a preexisting debt rule when interpreting the statute of frauds, but rather applies a "main purpose" or "leading object" rule, which states that when the main purpose or leading object of the promisor/surety is to subserve or advance its own pecuniary or business interest, the promise does not fall within the statute of frauds.

Deichmueller Const. Co. v. Industrial Comm’n, 151 Ill. 2d 413 (1992) - Employer's appeal bond must be signed by individual with authority to bind employer to financial obligation represented by bond; attorney cannot sign unless authorized by said individual.

Publications "Interlocutory Appeals of Certified Questions"

chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

"Workers' Compensation Appeals" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

"Motion Practice" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

"Direct Appeals to the Illinois Supreme Court" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

"Motions for Supervisory Orders and Mandamus" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)


"Appeal Bonds and Stays of Judgment" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

"Interlocutory Appeals of Certain Orders" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

Public Speaking “Social Security Disability Offsets in Workers

Compensation” National Business Institute (2015)

“Better Briefs and Oral Arguments” Advanced Appellate Practice Seminar, Peoria County Bar (2015)

“Administrative Appeals for Governmental Lawyers” Peoria County Bar Association (2015)

“Workers Compensation Appeals” Sterling Education Services (2015)

Professional Recognition Named to the Illinois Super Lawyers list (2008-

2015). The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation.

Selected as a Leading Lawyer in Illinois in the area of Civil Appellate Law. Only five percent of lawyers in the state are named as Leading Lawyers.

Professional Associations Appellate Lawyers Association (President, 2013-

2014; Director 1997-99, 2008-2010; Rules Chairman, 1999-2001; Rules Committee, 2005-06; event coordinator; past moot court competition judge)

Illinois State Bar Association (Workers' Compensation Section Council, 1998-2000)

Peoria County Bar Association (Chair, CLE Committee, 2013-2014)

Illinois Association of Defense Trial Counsel (IDC Quarterly Editor-in-Chief)

Court Admissions State Courts of Illinois United States Court of Appeals, Seventh and

Eighth Circuits United States District Court, Central and

Southern Districts of Illinois Education Juris Doctor, Southern Illinois University

(magna cum laude), 1989 Bachelor of Science-Economics, University of

Illinois, 1986

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APPELLATE ISSUES IN WORKERS’ COMPENSATION CASES AFFECTING GOVERNMENTAL EMPLOYERS

Presented and Prepared by: Brad A. Elward


Prepared with the Assistance of: Dana Hughes


Brett Siegel

[email protected] Springfield, Illinois • 217.522.8822



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APPELLATE ISSUES IN WORKERS’ COMPENSATION AFFECTING GOVERNMENTAL EMPLOYERS

I. AN OVERVIEW OF THE APPEALS PROCESS IN WORKERS’ COMPENSATION CASES ....... C-4

A. A History of the Process ............................................................................................................ C-4 B. The Past Eight Years in Review ................................................................................................ C-4

II. CRITICAL SEGMENTS ................................................................................................................................. C-5

A. The Circuit Court Judicial Review ........................................................................................... C-5 B. The Appellate Court, Workers’ Compensation Commission Division ...................... C-6 C. The Supreme Court ..................................................................................................................... C-6

III. HOW DOES THE APPELLATE COURT LOOK AT YOUR CASE? ..................................................... C-7

A. It Focuses on the Record From Arbitration ........................................................................ C-7 B. It Applies the Governing Standard of Review ................................................................... C-7

1. Fact Questions ................................................................................................................ C-7 2. Discretionary Rulings ................................................................................................... C-8 3. De Novo ............................................................................................................................ C-8

IV. HOW TO USE AN APPEAL TO RESOLVE YOUR CLAIM.................................................................. C-8

A. Resolve the Issues on the Merits ............................................................................................ C-8 B. Advance the Case Toward Settlement ................................................................................. C-8 C. Understand the Appeal Decision Involves More Than Just Defense Costs ............ C-8

V. RECENT WORKERS’ COMPENSATION DECISIONS AFFECTING GOVERNMENTAL

EMPLOYERS .............................................................................................................................................. C-9

A. Trip and Fall on Curb Compensable Under Street Risk and Traveling Employee Doctrines ................................................................................................. C-9

B. Traveling Employee’s Claim Denied Because Traveling Aspect Had Yet to Begin ........................................................................................................................ C-10

C. Injuries From Employment-Related Risks Do they Require an “Increased Risk” Analysis to Determine Whether “Arising Out Of” the Employment ......................................................................................................................... C-11

D. Trip and Fall at Public Entrance Compensable Where Employee Entrance Closed .......................................................................................................................... C-13

E. Interstate Scaffolding Applies to Termination for Cause and Continues Obligation to Pay Benefits ................................................................................ C-14

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F. Section 6(d)’s Three-Year Statute of Limitations Does Not Bar the Presentation of Work Activity Evidence Beyond Three Years Prior to Alleged Accident or Manifestation Date ...................................................................... C-15

G. Refusal to Treat and Choice of Physicians ........................................................................ C-16 H. TTD Benefits Not Available To Worker Who Retires Rather Than Accept

Accommodated Work .............................................................................................................. C-17 I. Appeal Bond Required For Treasurer Filing Review In Ex Officio Capacity .......... C-17


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APPELLATE ISSUES IN WORKERS’ COMPENSATION AFFECTING GOVERNMENTAL EMPLOYERS

I. AN OVERVIEW OF THE APPEALS PROCESS IN WORKERS’ COMPENSATION CASES

A. A History of the Process

The appeals process in workers’ compensation cases begins with the petition for review filed with the Workers’ Compensation Commission and includes the judicial review to the circuit court, an appeal as a matter of right to the appellate court, and a dual discretionary appeal to the Supreme Court. By “dual discretionary,” we mean the appellate court must first give permission for a party to file with the Illinois Supreme Court, and if granted, the Supreme Court must then grant permission to hear the case. The Commission is deemed the trier of fact and any deference on fact-finding is afforded to the Commission, not the arbitrator. Thus, when on review to the circuit court or appellate court, the Commission’s decision is the one evaluated. In 1984, Illinois Supreme Court Rule 22(i) authorized the creation of a separate branch of the appellate court, called the Appellate Court, Industrial Commission Division, since 2005, known as Workers’ Compensation Commission Division, and empowered it to hear all cases concerning workers' compensation claims. Prior to that time, workers' compensation cases were appealable as a matter of right to the Illinois Supreme Court. Under Rule 22(i), the Industrial Commission Division consists of five justices, one from each appellate district, to be appointed by the Supreme Court Justice from that district. This division was created to promote a more efficient handling of workers' compensation appeals, to alleviate the burden on the Supreme Court, and to create a more uniform body of law.

B. The Past Eight Years in Review

In 2015 (thus far) there have been roughly 70 orders and decisions rendered by the Appellate Court, Workers’ Compensation Commission Division; of these, 68 were unpublished Rule 23 orders and 12 were published decisions. Full statistics are not yet available for 2014.

Year Total Appeals Filed Opinions Issued Rule 23 Orders 2013 193 18 111 2012 171 15 100 2011 145 17 116 2010 183 12 105 2009 174 18 111 2008 199 14 107 2007 152 14 92

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II. CRITICAL SEGMENTS

A. The Circuit Court Judicial Review

The circuit court review is the first purely appellate review of the process and is referred to as the judicial review. Judicial reviews are governed by 820 ILCS 305/19(f), Supreme Court Rule 292, and Commission Rule 7060.10. To properly commence a judicial review, the party challenging the Commission’s decision must file five documents:

Written Request to Commence Review Proceedings Summons for each opposing party, counsel, and Commission (usually three) Notice of Intent to file circuit court review Appeal bond signed by the employer and surety Certificate of service

All must be filed with the circuit court within 20 days of the receipt of the Commission’s decision. Gruszeczka v. Illinois Workers’ Compensation Comm’n, 2013 IL 114212 (mailbox rule applies to section 19(f) filings). This time period is considered jurisdictional and it cannot be extended by the parties’ agreement or by the circuit court. Of these five documents, the most critical is the employer’s appeal bond. This bond must be signed by a representative of the employer who has the authority to financially bind the employer and by a surety authorized to issue surety bonds within the State of Illinois. Illinois does not allow a workers’ compensation carrier to post the policy in lieu of an appeal bond.

NOTE: Governmental entities are exempt from the bond requirement. 820 ILCS 305/19(f)(2). NOTE: Cases involving the State of Illinois may not be appealed. 820 ILCS 305/19(f)(1). The

University of Illinois, however, is not subject to this prohibition because it is considered a body politic. Board of Trustees of the University of Illinois v. Industrial Comm’n, 44 Ill. 2d 207 (1969).

Venue is governed by the location of the party defendant in the judicial review, or, if no party defendant is located within the state, then the location of the accident. 820 ILCS 305/19(f)(1).

How is the bond amount determined?

Bonds are set at $100 over the outstanding amount of the award, with a maximum amount of $75,000.

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B. The Appellate Court, Workers’ Compensation Commission Division

At present, the division consists of:

Justice William E. Holdridge, Appellate Court, Third District, Presiding Justice Justice Thomas E. Hoffman, Appellate Court, First District Justice Donald C. Hudson, Appellate Court, Second District Justice Thomas Harris, Appellate Court, Fourth District Justice Bruce D. Stewart, Appellate Court, Fifth District

Each justice has a designated “alternate” in the event they are unavailable or have a conflict on the case. The court holds oral argument in Chicago and Springfield and usually meets 10 times per year.

C. The Supreme Court

Appeals to the Illinois Supreme Court are governed by Supreme Court Rule 315(a). Rule 315(a) petitions are discretionary and typically raise at least one of the following grounds as justification for allowance of the petition: (1) the general importance of the question presented; (2) the existence of a conflict between the decision sought to be reviewed and a decision of the Supreme Court, or of another division of the Appellate Court; (3) the need for the exercise of the Supreme Court's supervisory authority; and (4) the final or interlocutory character of the judgment sought to be reviewed. For workers’ compensation appeals, Rule 315(a) adds an additional requirement that the party seeking Supreme Court review first obtain a written statement by two or more judges of the Workers’ Compensation Commission Division appellate court panel stating that “the case in question involves a substantial question which warrants consideration by the Supreme Court.” A motion asking that such a statement be filed may be filed as a prayer for alternative relief in a petition for rehearing, but must, in any event, be filed within the time allowed for filing a petition for rehearing (21 days of the appellate court decision or order). Supreme Court Rules 315(a), 367(a). The Supreme Court typically accepts between four and six percent of the PLAs filed with it annually. Of this number an even smaller percentage are workers’ compensation appeals. To place this in perspective, one Petition was allowed in 2014; one was allowed and one was denied in 2013; and one was allowed and two were denied in 2012. None were filed in 2011. One PLA was filed in 2010 (denied); one was filed in 2009 (allowed); three were filed in 2008 (only one was allowed); and one was filed and denied in 2007.

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The most recent Supreme Court pronouncements on workers’ compensation law include:

Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL 117418 (whether claim filed by State Treasurer ex officio of the Injured Workers’ Benefit Fund must file an appeal bond);

Gruszeczka v. Illinois Workers' Compensation Comm’n, 2013 IL 114212 (application of the mailbox rule to section 19(f) filings);

Venture-Newberg-Perini, Stone & Webster v. Illinois Workers’ Compensation Comm’n, 2013 IL 115728 (traveling employee doctrine);

Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Comm’n, 236 Ill. 2d 132 (2010) (termination of TTD benefits for violating work rule).

Because of the need to obtain a written statement from at least two justices of the appellate court, and further discretion from the Supreme Court, for all practical purposes, the Appellate Court, Workers’ Compensation Commission Division, is the principal authority on workers’ compensation law in the Illinois. III. HOW DOES THE APPELLATE COURT LOOK AT YOUR CASE?

A. It Focuses on the Record From Arbitration

The court considers only the evidence, whether documentary or testimony, presented at arbitration and contained in the record on appeal. Thus, if the parties conduct a section 19(b) hearing on March 30, 2012, the appellate court record will stop as of that hearing date and the appellate court cannot consider any matters that transpire in the case after that date.

B. It Applies the Governing Standard of Review

The appellate court reviews each issue in the case through the prism of a standard of review. Three standards apply to issues based on the type of question involved:

1. Fact Questions

Fact issues are governed by a manifest weight of the evidence standard. Under this standard, the appellate court asks whether an opposite result is clearly apparent. The manifest weight of the evidence standard applies to all questions of fact and credibility, and where the Commission is required to review conflicting medical evidence. Where there is evidence in the record to support the Commission’s decision, the Commission’s ruling is to be affirmed.

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2. Discretionary Rulings

Discretionary rulings are governed by an abuse of discretion standard of review, which asks whether a reasonable person in the position of the Commission would have reached the same conclusion. This standard most frequently applies to admissibility of evidence issues, but also applies where the arbitrator is asked for leave to file pleadings or to reinstate a claim previously dismissed for want of prosecution.

3. De Novo

A de novo standard of review applies to questions of law. These are most commonly associated with statutory interpretation. When reviewing a Commission decision on this standard, the appellate court affords no deference to the Commission’s findings and can decide the issue anew. IV. HOW TO USE AN APPEAL TO RESOLVE YOUR CLAIM

A. Resolve the Issues on the Merits

The primary purpose of the appeal is to either set aside an adverse Commission decision (as appellant) or to uphold a favorable Commission decision (as appellee).

B. Advance the Case Toward Settlement

The appeal process is complex, time-consuming, and requires different skills than those needed to try a case before an arbitrator or the Commission. These factors, in addition to the uncertainty make the filing of an appeal, or the threat to file and prosecute an appeal, a tool in moving your case toward settlement. The time delay in reaching a final appellate decision can provide leverage to compromise an award or obtain a closure of future medical and other rights such as those available under section 8(a) and 19(h). C. Understand the Appeal Decision Involves More Than Just Defense Costs The decision to appeal is based on three prongs: (1) the potential financial costs of the appeal, (2) the prospects for success on appeal, and (3) the implications of not appealing. While the first two are self-explanatory, the third prong involves an understanding of how the appeal impacts the claim, how it might impact settlement prospects, and the public perception of the employer based on its decision to pay the award or advocate its rights. There are times we may want to appeal to favorably address a recurring issue, even if we might lose on the facts of the particular case before the appellate court.

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V. RECENT WORKERS’ COMPENSATION DECISIONS AFFECTING GOVERNMENTAL EMPLOYERS

The past 12-15 months have seen a number of decisions from the Appellate Court, Workers’ Compensation Commission Division, and one case from the Illinois Supreme Court. The following pages provide a short overview of the more significant appellate court decisions interpreting workers’ compensation laws.

A. Trip and Fall on Curb Compensable Under Street Risk and Traveling Employee Doctrines

Nee v. Illinois Workers’ Compensation Comm’n, 2015 IL App (1st) 132609WC The claimant, a plumbing inspector for the City of Chicago, was injured after tripping on a curb as he was walking back to his car to go to his next assignment. The claimant testified that his work duties required him to travel through the city by car to inspect the plumbing in both commercial and residential buildings. He also said he reported to work each day at the filtration plant and received his work assignments, before heading into the field. The claimant contended, and the City admitted, that the claimant was a traveling employee.

The arbitrator and Commission denied the claim, finding the claimant failed to prove he sustained accidental injuries arising out of the employment. On appeal, the appellate court reversed the Commission and remanded the case for further proceedings. According to the appellate court, the Commission erred by failing to review the accident under the appropriate traveling employee standards, which in evaluating “arising out of,” asks whether the accident was reasonable and foreseeable. The appellate court concluded that “no reasonable argument can be made that the claimant's conduct in traversing a curb as he walked to his car was neither reasonable nor foreseeable.” Nee, 2015 IL App (1st) 132609WC, ¶ 20. Moreover, the appellate court applied the so-called “street risk” doctrine to conclude that, “[h]aving been exposed to the risk of traversing a curb to a greater degree than a member of the general public by virtue of his status as a traveling employee at the time of his accident, the injury which the claimant suffered when he tripped over the curb was sustained not only in the course of his employment, it also arose out of his employment with the City.” Id. ¶ 28. Under that doctrine, “where the street becomes the milieu of the employee's work, he is exposed to all street hazards to a greater degree than the general public.” Id. ¶ 26. The only beneficial aspect of Nee is its language concerning trip and falls in a non-traveling employee setting. In that regard, the court stated, “[t]he risk of tripping on a curb is a risk to which the general public is exposed daily.” Id. The court stated further:

Nothing in the record before us suggests that some aspect of the claimant's employment contributed to the risk of traversing a curb. Although there is evidence that the claimant carried a clipboard while performing plumbing inspections, there is no evidence that carrying a clipboard caused, or contributed

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to, his tripping on the curb. Further, there is nothing in this record to distinguish the curb on which the claimant tripped from any other curb. As noted earlier, although the claimant testified that the curb may have been higher than the sidewalk, he readily admitted that he did not know. We are left then with the question of whether the claimant was exposed to the risk of tripping on a curb more frequently than the general public.

Id. ¶ 25.

B. Traveling Employee’s Claim Denied Because Traveling Aspect Had Yet to Begin

Pryor v. Illinois Workers’ Compensation Comm’n, 2015 IL App (2d) 130874WC The claimant worked as a car hauler and his job responsibilities included loading automobiles onto an 18-wheel car-hauling truck at the employer’s terminal in Belvidere, Illinois, driving the truck to various dealerships, and unloading the cars at those dealerships. The employer’s general work included delivering new automobiles to various car dealerships for Chrysler. One or two nights per week, the claimant spent the night at a hotel while he was on the road delivering cars to dealerships. The claimant usually drove his personal vehicle from his home to the employer's Belvidere terminal and back.

On the date of the injury, the claimant arose at 4 a.m. to get ready for work, planning to drive to the Belvidere terminal that morning to “start [his] work.” “Because he anticipated being out of town overnight for work that evening, [he] packed a suitcase with a change of clothes and other items for the trip. The claimant carried the packed suitcase to his personal car, opened the car door, reached down to pick up the suitcase, and ‘bent and turned to the back seat of the car.’ At that moment, [he] felt an ‘unbearable’ pain through his back and down his legs which caused him to drop to his knees.” Pryor, 2015 IL App (2d) 130874WC, ¶ 7. The arbitrator and Commission denied the claim, finding that the claimant had failed to prove that he sustained an accident that arose out of and in the course of his employment. The arbitrator concluded, and the Commission affirmed, that the claimant “would be considered a traveling employee from when he arrives at [the employer's] terminal, loads his vehicle, delivers his vehicles to a destination, and returns to the terminal.” Id. ¶ 12. However, the Commission found that “lifting an overnight bag is not sufficient to put [the claimant] in the course of his employment.” Id. On appeal, the appellate court affirmed. Although acknowledging the validity of the traveling employee doctrine, the court concluded that the claimant had not yet entered the role of a traveling employee and was merely traveling to work when the accident occurred. According to the court, “[a]n injury suffered by a traveling employee is compensable under the Act if the injury occurs while the employee is traveling for work, i.e., during a work-related trip. However, the work-related trip at issue must be more than a regular commute from the employee's home to the employer's premises. Otherwise, every employee who commutes from his home to a fixed

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workplace owned or controlled by his employer on a daily basis would be deemed a ‘traveling employee,’ and the exception for traveling employees would swallow the rule barring recovery for injuries incurred while traveling to and from work.” Id. ¶ 22. The appellate court said, “[e]ven assuming that the claimant had ‘left home’ at the time of his injury, (which is not entirely clear), he was preparing to begin his regular commute to his employer’s premises at that time. Unlike the claimants in Mlynarczyk and Complete Vending Services,” the court said, “the claimant in this case did not drive to his various work locations directly from his home; rather, he was required to drive to the employer's Belvidere facility first, load an 18-wheeler truck with cars located at the employer's facility, and then drive the truck to various dealerships from there.” Id. ¶ 29. Thus, the court observed, “when he drove to the Belvidere terminal, he was not making a brief and unnecessary stop at his employer's premises that was directly en route to his ultimate work destination (as was the claimant in Complete Vending Services). Rather, he was making a regular commute to a fixed jobsite as a necessary precondition to any subsequent work-related travel.” Id. Moreover, unlike the claimants in Mlynarczyk and Complete Vending Services, “the claimant's trip to the Belvidere facility was not part of a continuous trip from his home to a jobsite away from the employer's premises. . . . Rather, the claimant was injured during a regular commute from his home to his employer's premises, before he embarked upon a work trip away from his employer's premises.” Id.

C. Injuries From Employment-Related Risks Do they Require an “Increased Risk” Analysis to Determine Whether “Arising Out Of” the Employment

Young v. Illinois Workers’ Compensation Comm’n, 2014 IL App (4th) 130392WC The claimant’s left shoulder injury, suffered while he was reaching into a deep box at work to retrieve a part, was found non-compensable. According to the Commission majority, the mere act of reaching down for an item did not increase the claimant’s risk of injury beyond what he would experience as a normal activity of daily life. In other words, the majority determined that the claimant was not exposed to a greater risk than the general public.

The appellate court reversed and remanded the case for further proceedings, concluding that the injury was due to an employment-related risk, and thus the increased risk analysis is not necessary. According to the court, “when a claimant is injured due to an employment-related risk—a risk distinctly associated with his or her employment—it is unnecessary to perform a neutral-risk analysis to determine whether the claimant was exposed to a risk of injury to a greater degree than the general public.” Young, 2014 IL App (4th) 130392WC, ¶ 23. The court continued, “[a] neutral risk has no employment-related characteristics. Where a risk is distinctly associated with the claimant’s employment, it is not a neutral risk. Under the facts presented, the risk to which claimant was exposed had employment-related characteristics. He was performing acts the employer might reasonably have expected him to perform incident to his assigned duties and, as a result, his injury arose out of his work for the employer.” Id.

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The Appellate Court, Workers' Compensation Commission Division, recently handed down a decision which seems to pull back the court's prior approach to the "arising out of" element of accident when an injury is caused by a neutral risk. While the decision finds against the employer, the majority moves away from what has been viewed by the defense bar as an expansive application of the "arising out of" element through cases such as Young and Autumn Accolade v. Illinois Workers' Compensation Comm'n, 2013 IL App (3d) 120588WC. In Adcock v. Illinois Workers' Compensation Comm'n, 2015 IL App (2d) 130884WC, the claimant injured his left knee while turning in a chair he used continuously to perform his work duties as a welder for the employer because of permanent restrictions due to a right knee condition. The employer argued that the claimant's claim did not "arise out of" his employment because the act of turning in a chair is one of everyday life. In denying compensability, the Commission found no evidence that the injury was due to an increased risk connected to the claimant's work or a risk incidental to the employment. The Commission's decision was supported by the medical testimony of the treating and examining physicians that the claimant's injury could have happened anywhere and that nothing about the claimant's work increased his risk of a knee injury. The claimant appealed all the way to the appellate court, which reversed the Commission's decision and found the claim compensable. In a 3-2 opinion in which two justices filed a special concurrence, the majority held the claimant had proved that he was exposed to the neutral risk of turning in his chair to a greater degree than the general public. The court agreed with the Commission that the act of turning in a chair was one of everyday life faced by all members of the general public, but found the claim compensable because the claimant was exposed to the risk to a greater degree by virtue of his employment. The claimant was required to perform his welding duties in a chair. His testimony that his job required non-stop movement in his chair, was unrebutted by the employer. Thus, the claimant proved that his employment exposed him to this increased risk of injury. According to the majority, "[t]he Commission should not award benefits for injuries caused by everyday activities like walking, bending, or turning, even if an employee was ordered or instructed to perform those activities as part of his job duties, unless the employee's job required him to perform those activities more frequently than members of the general public or in a manner that increased the risk." Adcock, 2015 IL App (2d) 130884WC, ¶ 39. The majority specifically stepped back from the analysis utilized in prior cases such as Young and Autumn Accolade, which suggested that a neutral risk analysis is unnecessary where the employee is injured while performing his or her required work duties. The two justices who did not sign off on the majority opinion argued that the activity of turning in a chair was one distinctly associated with the claimant's employment, which would make the injury compensable without further analysis. The special concurrence concluded that an injury suffered while performing an activity of everyday living is compensable so long as the activity is required by the employment, even if nothing about the employment increases the risk of the activity beyond that which is faced by members of the general public. Thus, if an employee is

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injured while performing a common bodily movement that is required by his job duties, the injury thus "arose out of" the employment, even if that activity is a common activity performed by the general public. Going forward, our focus in claims involving everyday activities must be to argue the activity is a neutral one which requires the quantitative and qualitative analysis and then developing evidence that the employment does not expose the claimant to a greater risk of injury from the activity. Additionally, as we have said in the past, accident and causation defenses go hand in hand in these difficult "arising out of" claims. Developing a credible medical opinion that the activity did not cause the condition may help solidify a finding of no compensability. Adcock is a good decision from the standpoint that it sets a clear demarcation of the law involving increased risks and reiterates the employee's obligation to prove that common acts performed at work are compensable. Adcock makes it clear for employers that a worker encountering a neutral risk, whether an activity or a condition of the premises, will only be compensable where the employee, because of his or her employment, encounters that risk or condition more frequently or to a different extent. Adcock further makes it clear that the analysis in such cases is not simply whether the claimant was performing an activity required by his or her job – rather, the activity in question must be examined and then compared to the general public. If the activity is a common one faced by the general public, the inquiry must then be whether the employment required the worker to perform the everyday activity more frequently than members of the general public or in a manner that increased the risk of the activity beyond the risk normally faced by the general public.

D. Trip and Fall at Public Entrance Compensable Where Employee Entrance Closed

Brais v. Illinois Workers’ Compensation Comm’n, 2014 IL App (3d) 120820WC The claimant fell and broke her wrist when the heel of her shoe caught a defect in the sidewalk leading to the public entrance of her employer’s premises. The claimant was returning from a work-related meeting at a nearby building. The employee-only entrance was locked upon her return which required her to use the public entrance. At trial, the claimant described the sidewalk as full of cracks and gravel and it was not level. The employer did not dispute the claimant’s allegations regarding the sidewalk, but argued that the claimant was not exposed to a greater risk than that experienced by the general public in using this public entrance. The arbitrator, Commission, and circuit court agreed and denied claimant compensation based on her failure to prove that her accidental injuries arose out of her employment.

The claimant appealed all the way to the appellate court, arguing that her employment exposed her to risk to a greater degree than that exposed by the general public because she was required to traverse a defective sidewalk in order to re-enter the building through the only available entrance, thereby bringing her injury within the “arising out of” component of accident.

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The appellate court agreed with the claimant, citing Bommarito v. Industrial Comm’n, 82 Ill. 2d 191 (1980). In Bommarito, the court observed that when an injury occurs “in an area which is the sole or usual route to the employer’s premises, and the route is attendant with a special risk or hazard, the hazard becomes part of the employment.” (Emphasis added) Bommarito, 82 Ill. 2d at 195. Here, the public entrance was the only one claimant could use at the time she was injured. It was the sole route to the employer’s premises. The claimant testified, and the employer did not dispute, that the defective nature of the sidewalk – namely the gravel and cracks – contributed to the claimant’s fall. Therefore, the claimant’s injury did arise out of her employment. The appellate court, applying a de novo standard of review, reversed the circuit court’s ruling and remanded the claim to the Commission for an award consistent with a finding in favor of the claimant on the element of accident. The court found that the facts were undisputed and subject to one inference and one inference alone, that the claimant’s injury arose out of her employment. The employer offered no evidence that the claimant’s condition was not causally connected to the accidental injury. The employer in Brais argued that the instant case was distinguishable from Bommarito and more akin to the Caterpillar case, in which the claimant was denied compensation for accidental injuries because he failed to prove that his injuries arose out of his employment. In Caterpillar, the claimant fell in the parking lot of his employer when he tripped over a curb. No evidence was introduced to suggest the curb was defective or that the condition of the curb contributed to the claimant’s injuries. Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 56-57 (1989). Perhaps if the claimant in Brais had not fallen due to some defect the result may have been different. Further, if the claimant would have been able to enter the premises through either the employee entrance or public entrance, arguably the result may have been different, as the claimant would not have been able to argue that the route was the sole or her usual route. The Brais case illustrates the very fact-specific nature of the arising out of element of accident. An early and thorough investigation is needed in all claims, and especially those which hinge on the mechanism of injury.

E. Interstate Scaffolding Applies to Termination for Cause and Continues Obligation to Pay Benefits

Matuszczak v. Illinois Workers’ Compensation Comm’n, 2014 IL App (2d) 130532WC The claimant’s injuries were found compensable and benefits were awarded by the arbitrator, including total temporary disability (TTD) benefits. The Commission affirmed the findings, but terminated TTD benefits as of the date the claimant was terminated from employment for having committed a work-place theft. According to the record, at the time he was terminated, the claimant prepared a handwritten statement acknowledging he stole cigarettes from the employer a week prior (but after the work accident) and that he understood stealing was a crime that could result in his termination from work.

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The appellate court reversed the Commission’s findings on TTD benefits, holding that under the Illinois Supreme Court’s ruling in Interstate Scaffolding, the sole question was whether the claimant had reached maximum medical improvement. The fact that the claimant had been terminated, even for cause, was irrelevant, and could not serve to end the employer’s obligation to pay TTD benefits. The appellate court further held that the Commission erred in concluding that the voluntary act of theft, knowing that he might be terminated, was a refusal to perform light-duty work, which he was doing at the time of the theft.

F. Section 6(d)’s Three-Year Statute of Limitations Does Not Bar the Presentation of Work Activity Evidence Beyond Three Years Prior to Alleged Accident or Manifestation Date

PPG Industries v. Illinois Workers’ Compensation Comm’n, 2014 IL App (4th) 130698WC The claimant alleged repetitive trauma injuries to her left shoulder as a result of her work in a glass factory for over 38 years. The arbitrator found the claim compensable and awarded benefits and the Commission affirmed, with minor modifications. On review to the circuit court, the Commission’s decision was set aside and the case ordered remanded for further consideration, but with instructions for the Commission to disregard all evidence of possible injury and work activities that took place more than three years prior to the manifestation date. According to the circuit court, the three-year statute of limitations meant the Commission could not consider any events that occurred more than three years prior to the manifestation. The circuit court then certified the following question to the appellate court under Supreme Court Rule 308(a):

Does section 6(d) of the *** Act, which sets forth a three[-]year statute of limitations for the filing of worker's [sic] compensation claims, act as a bar to the presentation of evidence of work activities that took place more than three years prior to the date of accident, or manifestation date, of a repetitive[-]trauma injury?

PPG Industries, 2014 IL App (4th) 130698WC, ¶ 3. According to the appellate court, section 6(d) is merely a statute of limitations and the question of whether prior exposures might be considered as part of the repetitive trauma claim involved questions of admissibility of evidence, which it concluded were not before it, nor were they raised before the Commission. The court observed that a repetitive-trauma injury is one which “has been shown to be caused by the performance of the claimant's job and has developed gradually over a period of time, without requiring complete dysfunction.” Id. ¶ 19. As such, the appellate court answered the certified question in the negative, and reversed the circuit court’s order.

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G. Refusal to Treat and Choice of Physicians

Bob Red Remodeling, Inc. v. Illinois Workers’ Compensation Comm’n, 2014 IL App (1st) 130974WC – Before the ball dropped on 2014, the Appellate Court, Workers’ Compensation Commission Division, handed down its decision in Bob Red Remodeling, Inc, which upheld the Commission’s finding that (1) the claimant was permanently and totally disabled; (2) the course of treatment chosen by the claimant was not unreasonable so as to constitute refusal to submit to medical treatment; and (3) a physician who provided emergency services was not a physician chosen by the claimant for purposes of the two-doctor rule. The claimant fell from a rooftop while performing his job duties for Bob Red Remodeling. He was transported by ambulance to a local emergency department and admitted to the hospital due to serious injuries. During the course of his stay in the hospital, claimant underwent a left craniotomy by Dr. Leonard Kranzler. He was discharged from the hospital approximately ten days later. Following discharge, the claimant had two follow-up appointments with Dr. Kranzler related to the craniotomy. The claimant also sought care from Dr. Gourineni. At the request of his attorney, the claimant was examined by Dr. Forys, a board certified physician in internal medicine. Finally, the respondent had the claimant examined by Dr. Felise Zollman, a neurologist from Northwestern, pursuant to Section 12. Drs. Forys and Zollman each prescribed a different course of medical treatment; ultimately claimant followed Dr. Forys’ recommendations, for which the employer refused to pay. The employer did offer to authorize the course of care recommended by Dr. Zollman, but the claimant refused. The primary issues in the case became whether the claimant exercised a choice of physician to receive post-discharge care with Dr. Kranzler, whether the claimant refused to submit to medical care by rejecting the employer’s offer to pay for treatment consistent with Dr. Zollman’s recommendations, and whether the claimant was permanently and totally disabled. The Commission found that Dr. Kranzler provided emergency services and that the two follow-up services he provided were directly related to the emergency services. Therefore, Dr. Kranzler did not constitute a choice of a medical provider for purposes of section 8(a) of the Act. The Commission further found that the claimant’s chosen course of treatment did not constitute refusal to submit to medical care. The claimant did not follow the employer’s expert specialist Dr. Zollman’s treatment recommendations and instead followed the internist’s recommendations. The appellate court held that “the question is not which course of treatment was superior, it is whether claimant’s behavior was reasonable under the circumstances.” Bob Red, 2014 IL App (1st) 130974WC, ¶ 45. The appellate court held that the claimant’s behavior was reasonable even though Dr. Zollman’s recommended course of treatment was supported by other doctors involved in his treatment. The Commission held that the claimant was permanently and totally disabled based on both the medical evidence and an odd-lot theory. In affirming the Commission, the appellate court focused on the odd-lot theory. Under the odd-lot theory, a claimant may establish that he is permanently and totally disabled by showing either a diligent but unsuccessful job search or

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that his age, training, experience, education, and condition prevent him from obtaining stable and continuous employment. Westin Hotel v. Industrial Comm’n, 372 Ill. App. 3d 527, 544 (1st Dist. 2007). In affirming the Commission’s decision, the appellate court relied on the Commission’s finding that (1) the claimant was never offered a job of any sort after the accident, (2) that a certified rehabilitation counselor testified that a stable labor market did not exist for the claimant, and (3) a functional capacity evaluation performed one month prior to hearing indicated that the claimant was functioning below sedentary level. The appellate court affirmed the Commission’s decision with respect to all three of these issues. In evaluating your cases involving emergency services, it is important to analyze whether an emergency physician’s subsequent follow-up treatment is related to the initial emergency services. If the follow-up treatment is “extended beyond reasonable limits,” an argument can be made that the claimant had to exercise one of his choices to undergo that treatment. Further, the appellate court established that the standard of review for “refusal of treatment” is whether the claimant’s behavior was “reasonable under the circumstances.” If the claimant’s refusal to go down a path of treatment can be justified as reasonable under the circumstances, even if it defies a superior course of treatment, the claimant’s choice will be upheld. Employers should still consider offering to authorize the course of treatment recommended by an IME doctor when appropriate. The employer still can and should, depending on the circumstances, challenge the reasonableness and necessity of the treating physician’s recommendations by other available means.

H. TTD Benefits Not Available To Worker Who Retires Rather Than Accept Accommodated Work

Sharwarko v. Illinois Workers’ Compensation Comm’n, 2015 IL App (1st) 131733WC – The claimant suffered a work injury while employed by the Village of Oak Lawn and was placed on light duty pending surgery. During that time, the employer accommodated the claimant’s work restrictions with limited physical work. Following the surgery, the claimant chose to retire, although the accommodated work remained available. The Commission terminated the employee’s total temporary disability (TTD) benefits despite the claimant having not yet reached maximum medical improvement, because the claimant voluntarily retired. According to the appellate court, when work for an injured employee falling within his medical restrictions is available, the employee’s voluntary retirement is the equivalent to a refusal to work within those restrictions, authorizing the termination of TTD benefits before the employee has reached MMI.

I. Appeal Bond Required For Treasurer Filing Review In Ex Officio Capacity Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL 117418 – The Illinois State Treasurer, as ex officio custodian of the Injured Workers’ Benefit Fund, filed a judicial review to the circuit court seeking to challenge the Commission’s finding of compensability and award of benefits under the Act. The employer in the case, an employment agency, did not have

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workers’ compensation benefits at the time of the accident, so the claimant amended his application for adjustment of claim to add the Injured Workers’ Benefit Fund, 820 ILCS 305/4(d). The Illinois State Treasurer is custodian of the Fund. The Commission and the circuit court found the claim compensable but the appellate court reversed 5-0, finding the accident did not arise out of the employment. On petition for rehearing, the claimant challenged jurisdiction, arguing that the Fund failed to file an appeal bond. The appellate court agreed, and found that the Fund was required to comply with section 19(f)(1) and to file an appeal bond, since it was essentially stepping into the employer’s shoes. The Illinois Supreme Court agreed, and affirmed the dismissal for want of jurisdiction, finding that the Fund was not acting as the state, else no appeal would be possible. Since the Fund was appealing in place of the employer, the Fund had to comply with the requirement that the employer, as the one against whom an award was rendered, file a bond. RESOURCES: Elward, Brad A., Workers’ Compensation Reviews And Appeals: A Review And Suggestion For

Change, 22 N. Ill. U. L. Rev. 493 (Summer 2002). Elward, Brad A., IICLE, Illinois Civil Appeals: State and Federal, Chapter 17, “Workers’

Compensation Appeals” Elward, Brad A., IICLE, Workers’ Compensation, Chapter 5, “Procedure, Appeals, and Special

Remedies”

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Brad A. Elward

- Partner

Brad concentrates his work in appellate practice and has a significant sub-concentration in workers' compensation appeals. He has been with the firm since 1991 and became a partner in 1999. Brad handles all aspects of civil appeals, ranging from preparation of initial appeal documents through the drafting of appellate briefs and oral arguments. Brad handles workers' compensation cases before the Workers' Compensation Commission, the circuit court, and the Appellate Court, Workers' Compensation Commission Division, and focuses much of his workers' compensation practice on understanding and handling complex jurisdictional issues, both at the circuit court and appellate court level. Brad's extensive experience in handling judicial reviews of Workers' Compensation Commission decisions has given him statewide recognition. He has also tried several cases, including jury trials. Brad has authored more than 325 appellate briefs and argued more than 225 appellate court cases, resulting in more than 98 published decisions, and numerous unpublished appellate court orders. He has appeared before every Illinois Appellate Court District, the Missouri Appellate Court, the Seventh Circuit Court of Appeals and has significant experience handling interlocutory appeals, in particular those under Supreme Court Rules 306 and 308. He also handles administrative reviews. He has authored several amicus curiae briefs before the Illinois Supreme Court on behalf of the Illinois Association of Defense Trial Counsel. His most recent amici were filed in Fennell v. Illinois Central R.R. Co., 2012 IL 113812, involving interstate forum non conveniens, and Folta v. Ferro Engineering, No. 118070, involving the workers' compensation exclusive remedy provision and asbestos claims. Brad is a past President of the Illinois Appellate Lawyers Association and past Chair of the Peoria County Bar Association CLE Committee. He has published articles in numerous prominent journals and magazines, including the Illinois Bar Journal, Southern Illinois University Law Journal, Northern Illinois University Law Journal, Illinois Defense Counsel Quarterly, DRI For the Defense, and IICLE.

He is the co-editor-in-chief of the 2015 edition of the IICLE volume on Illinois Appellate Practice: State and Federal, for which he authored or co-authored eight chapters. Brad writes frequently on procedural issues affecting appeals and workers' compensation, has taught courses on workers' compensation law for Illinois Central College, and has lectured on appellate practice before the Illinois State Bar, Peoria County Bar, Illinois Institute for Continuing Legal Education, and Southern Illinois University School of Law. He is the current co-editor of the firm's workers' compensation newsletter, published monthly, and is the 2015-2016 Editor-in-Chief of the Illinois Association of Defense Trial Counsel publication The Quarterly. Brad is also a member of the drone law practice group, which advises clients on issues relating to drone operations, and a member of the military law practice group. Significant Cases Hartney Fuel Oil Company, et al. v. Hamer, et

al., 2013 IL 115130 - Suit was filed by a retail sales taxpayer against our client, The Regional Transportation Authority (RTA), the Illinois Department of Revenue, and a Cook County municipality contending that the assessment of back sales taxes of $20+ million was incorrect. Ultimately, the RTA's position was upheld in the Illinois Supreme Court. While the taxpayer was not required to pay back taxes pursuant to the Taxpayer Bill of Rights, the Illinois Supreme Court invalidated existing regulations in adopting a "multi-factor test" as argued for by the RTA, a decision which had statewide application to sales tax sourcing favoring governmental entities such as our client.

Glass v. DOT Transportation, Inc., 912 N.E.2d 762 (1st Dist. 2009) - In the forum non conveniens setting, deference may be given to the selection of forum by a representative plaintiff, who is also a beneficiary under the Wrongful Death Act.


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Rosewood Care Center, Inc. v. Caterpillar, Inc., 226 Ill. 2d 559 (2007) - Illinois does not recognize a preexisting debt rule when interpreting the statute of frauds, but rather applies a "main purpose" or "leading object" rule, which states that when the main purpose or leading object of the promisor/surety is to subserve or advance its own pecuniary or business interest, the promise does not fall within the statute of frauds.

Deichmueller Const. Co. v. Industrial Comm’n, 151 Ill. 2d 413 (1992) - Employer's appeal bond must be signed by individual with authority to bind employer to financial obligation represented by bond; attorney cannot sign unless authorized by said individual.

Publications "Interlocutory Appeals of Certified Questions"

chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

"Workers' Compensation Appeals" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

"Motion Practice" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

"Direct Appeals to the Illinois Supreme Court" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

"Motions for Supervisory Orders and Mandamus" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)


"Appeal Bonds and Stays of Judgment" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

"Interlocutory Appeals of Certain Orders" chapter in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

Public Speaking “Social Security Disability Offsets in Workers

Compensation” National Business Institute (2015)

“Better Briefs and Oral Arguments” Advanced Appellate Practice Seminar, Peoria County Bar (2015)

“Administrative Appeals for Governmental Lawyers” Peoria County Bar Association (2015)

“Workers Compensation Appeals” Sterling Education Services (2015)

Professional Recognition Named to the Illinois Super Lawyers list (2008-

2015). The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation.

Selected as a Leading Lawyer in Illinois in the area of Civil Appellate Law. Only five percent of lawyers in the state are named as Leading Lawyers.

Professional Associations Appellate Lawyers Association (President, 2013-

2014; Director 1997-99, 2008-2010; Rules Chairman, 1999-2001; Rules Committee, 2005-06; event coordinator; past moot court competition judge)

Illinois State Bar Association (Workers' Compensation Section Council, 1998-2000)

Peoria County Bar Association (Chair, CLE Committee, 2013-2014)

Illinois Association of Defense Trial Counsel (IDC Quarterly Editor-in-Chief)

Court Admissions State Courts of Illinois United States Court of Appeals, Seventh and

Eighth Circuits United States District Court, Central and

Southern Districts of Illinois Education Juris Doctor, Southern Illinois University

(magna cum laude), 1989 Bachelor of Science-Economics, University of

Illinois, 1986


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Dana J. Hughes

- Associate

Born and raised in Rockford, Dana joined the firm's Rockford office as an associate in 2006. There, she defended the rights of employers in workers' compensation claims before arbitrators and commissioners at the Illinois Workers' Compensation Commission and protected their interests in state courts in third party claims. She was an active member in the Winnebago County Bar Association, serving on its Board of Directors and Diversity Committee, and as past Chair of the association's Workers' Compensation Section. Dana also served as an arbitrator for the Seventeenth Judicial Circuit's Court-Annexed Arbitration System. In April of 2015, Dana relocated to the firm's Peoria office to join its workers' compensation group, where she continues to concentrate her practice in the representation of employers throughout the central part of the state. Dana is a member of the Peoria County Bar Association, Illinois Association of Defense Trial Counsel and Defense Research Institute. Dana is an annual contributor to the firm's claims handling seminar publication and the firm's monthly publication devoted to workers' compensation issues, Below the Red Line. She has contributed to in-house newsletters for clients and has presented before the ISBA's Insurance Law Section. She has been a guest speaker to local community college and high school students on topics such as leadership and the practice of law. In 2015, Dana co-authored an extensive survey of Illinois Workers' Compensation Law published in the Southern Illinois University Law Journal. While in law school, Dana was a student representative to the Illinois State Bar Association. She served as a judicial law clerk in the Fifteenth Judicial Circuit. She was member of the NIU Law Review, where her writing was published in the Northern Illinois University Law Review and Kane County Bar Journal. Dana was also recipient of the Women's Bar Foundation's scholarship, which is awarded to one female law student from each of Illinois' law schools.

Publications "Survey of Illinois Law: Workers'

Compensation," Southern Illinois University Law Journal (2014)

"Appellate Court Further Restricts Employer's Ability to Terminate Temporary Total Disability Where Employee Was Discharged for Cause," Illinois Defense Counsel Quarterly (2015)

Public Speaking “Social Media: A New Litigation Tool?”

Winnebago County Bar Association’s Trial Section (2012)

“Uninsured & Underinsured Motorist Coverage” ISBA Insurance Law Section (2011)



Professional Associations Peoria County Bar Association Winnebago County Bar Association (Board of

Directors, 2009-2012) Illinois State Bar Association Illinois Association of Defense Trial Counsel Defense Research Institute

Court Admissions State Courts of Illinois United States District Court, Northern District

of Illinois Education Juris Doctor (cum laude), Northern Illinois

University College of Law, 2006 Bachelor of Arts-Sociology, Northern Illinois

University, 2003


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Brett E. Siegel

- Associate

A native of Buffalo Grove, Illinois, Brett joined Heyl Royster shortly after graduating from Chicago-Kent College of Law in 2012. As a law student, Brett concentrated his studies on litigation and trial advocacy. He earned the “Best Advocate” award in his intensive trial advocacy course. In 2011, as a member of the Chicago-Kent Trial Advocacy Team, he competed in the American Bar Association Labor and Employment Trial Competition in Chicago, Illinois. In 2012, he competed in the American Association of Justice Student Trial Advocacy Competition in St. Louis, Missouri. Brett represents clients in tort litigation and defends employers in workers' compensation cases. Brett regularly handles depositions of expert witnesses and treating physicians in both civil and workers' compensation matters. Brett has taken several cases to trial and has argued multiple cases on appeal before the Workers' Compensation Commission. Publications "Bob Red Remodeling, Inc. v. Illinois Workers'

Compensation Comm'n – Follow-Up Appointments with ER Doctor Not Considered a Choice of Physician," Below the Red Line - Heyl Royster Workers' Compensation Newsletter (2015)

"Medical Marijuana Leaving a Cloud of Uncertainty Over Employers" Below the Red Line - Heyl Royster Workers' Compensation Newsletter (2014)

"Statute In The Spotlight: Americans with Disabilities Act Title 42 - The Public Health and Welfare Chapter 126 - Equal Opportunity for Individuals with Disabilities - Reasonable Accommodations," Employer's Edge - Heyl Royster Employment Newsletter (2013)

Public Speaking “Claims Handling – What’s on the Horizon”

Land of Lincoln CPCU Society Chapter Workshop (2014)

Professional Associations Illinois Association of Defense Trial Counsel American Bar Association Illinois State Bar Association Sangamon County Bar Association


Illinois Education Juris Doctor, Chicago-Kent College of Law,

2012 Bachelor of Arts-Economics and

Communication (with Distinction), University of Illinois, 2009


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EMPLOYEE VICTIMS OF WORKPLACE VIOLENCE: NEW PERSPECTIVES ON EXPOSURE AND DEFENSES

Presented and Prepared by:

Craig S. Young [email protected]




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I. INTRODUCTION ........................................................................................................................................... D-3

II. BASICS OF FIREARM CONCEALED CARRY ACT ............................................................................... D-3

III. VIOLENCE IN THE WORKPLACE ............................................................................................................. D-4

A. Violence Caused by Criminal Intent ...................................................................................... D-4 B. Interaction Between Customer and Client .......................................................................... D-4 C. Worker on Worker ....................................................................................................................... D-4 D. Injuries Arising Out of a Personal Relationship ................................................................ D-5

IV. ANALYSIS OF ILLINOIS LAW PERTAINING TO COMPENSABILITY OF ACTS ARISING OUT OF WORKPLACE VIOLENCE ............................................................................ D-5

A. Assaults in the Workplace ......................................................................................................... D-5 B. Horseplay ........................................................................................................................................ D-6 C. Assaults Occasioned by Location of Employment ........................................................... D-6 D. Assaults Motivated by Racial or Ethnic Prejudice ............................................................ D-7 E. Injuries Arising From Assaults Motivated by Neutral Or Unknown Risks ........................................................................................................................ D-7

V. DECISIONS FROM OTHER JURISDICTIONS SPECIFICALLY ADDRESSING GUN VIOLENCE ............................................................................................................................................ D-7

A. Panpat v. Owens-Brockway Glass Container, Inc. ............................................................. D-7 B. Johnson v. Drummond, Woodsum, Plimpton & Nelson .................................................. D-8 C. Koerner v. Orangetown Police Department ......................................................................... D-8 D. Galaida v. AutoZone, Inc. ........................................................................................................... D-8 E. Southland Corp. v. Hester .......................................................................................................... D-8

VI. PRACTICE POINTERS .................................................................................................................................. D-9


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I. INTRODUCTION

In 2013, Illinois became the final state in the union to adopt legislation allowing for concealed carry of certain firearms. The Firearm Concealed Carry Act, 430 ILCS 66/1 et seq., became effective January 1, 2014. This Act allows individuals with a valid license issued by the Illinois State Police to carry a concealed handgun. As one might imagine, the legislation includes numerous restrictions as to when and where a concealed firearm can be carried, and what class of individuals is allowed the privilege of concealed carry.

This paper will not focus on the details of the Concealed Carry Act, but rather on the possible implications of this Act in the workplace. While there is nothing about the Firearm Concealed Carry Act specifically addressing workers’ compensation, in practice, it is obvious this law creates a greater likelihood of firearms being present in the workplace and increases the possibility of violence in the workplace being carried out with the deadly force of firearms, and the implication that certain injuries and deaths caused by firearms could be compensable under the Workers’ Compensation Act. II. BASICS OF FIREARM CONCEALED CARRY ACT

In analyzing how and when the Firearm Concealed Carry Act might increase the likelihood of firearm violence in the workplace, some basic understanding of the Act is necessary. The Act does not allow for concealed carry in all business and employment locations. The Act enumerates numerous prohibited areas, including:

Local government buildings State government buildings (courts and buildings controlled by the executive and

legislative branches) Federal prohibited areas Public transportation Hospitals Schools and childcare facilities Colleges and universities Parks, playgrounds, athletic facilities, and stadiums Amusement parks and zoos Library and museums Nuclear facilities Airports Gambling facilities Certain bars, taverns, and other places serving alcohol

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In addition to the specifically enumerated locations where concealed carry is not allowed, other businesses can prohibit concealed carry by clearly and conspicuously posting a no firearms sign at the entrance of the building. Standard four inch by six inch signs are available from the Illinois State Police.

There is a parking lot exception which allows for a licensee to carry a concealed firearm on or about his or her person within a vehicle into the parking area of a prohibited location and further allows that the licensee may store a firearm or ammunition concealed in a case within a locked vehicle or locked container out of plain view within the vehicle in the parking area. Also, a licensee may carry a concealed firearm in the immediate area surrounding his or her vehicle within a prohibited parking lot area only for the limited purpose of storing or retrieving a firearm from within the vehicle’s trunk, providing the licensee insures the concealed firearm is unloaded prior to exiting the vehicle. III. VIOLENCE IN THE WORKPLACE

Even without the implications created by firearms in the workplace, violence in general has become a significant factor in workplace safety and injuries. The most recent national statistics from 2011 indicate that violence caused 17 percent of workplace fatalities. Of those fatalities, gun-related deaths were the most frequent. Most workplace shootings are caused by employees or former employees. The general risk factors which lead to workplace violence caused by handguns include: Face-to-face contact with the public Exchange of money Delivery of services or goods

Generally, there are four categories of workplace violence. Those include the following:

A. Violence Caused by Criminal Intent

These injuries and deaths are caused by or happen incidental to another crime such as a robbery or an assault.

B. Interaction Between Customer and Client

These injuries and deaths are caused in situations where the perpetrator has a business relationship with the company or organization and generally flows from dissatisfaction with the business relationship.

C. Worker on Worker

These workplace injuries and deaths arise from conflict between past or current employees.

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D. Injuries Arising Out of a Personal Relationship

These injuries are surprisingly common and involve violence perpetrated on an employee by a relative or someone else with whom the employee has a personal relationship. The assailant often is not a co-employee. IV. ANALYSIS OF ILLINOIS LAW PERTAINING TO COMPENSABILITY OF ACTS ARISING

OUT OF WORKPLACE VIOLENCE

Before addressing scenarios involving gun violence, it is necessary to have a general understanding of Illinois law pertaining to workplace violence. Not all cases cited below involve injuries or deaths caused by firearms, but they do outline certain principles pertaining to when violence in the workplace could be compensable under the Workers’ Compensation Act.

A. Assaults in the Workplace

Assaults in the workplace are not always compensable. Like any other injury, compensability will turn on whether or not the fight or assault had an origin in some risk peculiar to the employment. Generally, in Illinois, when there is an assault between coworkers, the commission will find compensability if it is determined that the assault arises from a dispute involving the performance of or the details of the work. In Chicago Park District v. Industrial Comm’n, 263 Ill. App. 3d 835 (1st Dist. 1994), the court addressed a situation in which the claimant was working for the Chicago Park District under a general supervisor. On the date of the injury, a dispute arose over the petitioner’s performance in creating a permit agreement for a children’s museum. The facts of the case indicated the supervisor became angry at the petitioner over the agreement, began slapping him and punching him to the point where the petitioner ultimately blacked out. The court held that because the dispute arose out of conduct associated with the work, the petitioner’s injuries did arise out of his employment. Numerous other cases have held disputes arising out of the workplace to be compensable. These include disputes with a coworker over quality of the work, Ford Motor Co. v. Industrial Comm’n, 78 Ill. 2d 260 (1980); disputes involving the division of labor between the aggressor and the claimant, Franklin Coal & Coke Co. v. Industrial Comm’n, 322 Ill. 23 (1926); disputes concerning the aggressor’s taking of materials needed by the claimant to do his job, Pekin Cooperage Co. v. Industrial Comm’n, 285 Ill. 31 (1918); and assaults arising out of an employee’s refusal to leave the jobsite after being fired until a paycheck was provided, Graphic Group & KLW, Inc. v. Industrial Comm’n, 167 Ill. App. 3d 1041 (1st Dist. 1988). Illinois is a state which holds that the aggressor in a workplace dispute or assault cannot recover. In the Chicago Park District case cited above, the court specifically held that the aggressor’s injuries would not have arisen out of the employment. Often, determining who is the aggressor in a fight is difficult, and is a factual issue to be determined by the Commission. It is not necessary that the aggressor strike the first blow. It has been held that antagonistic words which

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could be expected to provoke an altercation will suffice. Ford Motor Co. v. Industrial Comm’n, 78 Ill. 2d 260 (1980). Injuries resulting from assaults which are based on a personal disagreement, as opposed to a disagreement arising out of the work, are non-compensable so long as the disagreement has no connection with the employment. In Fischer v. Industrial Comm’n, 408 Ill. 115 (1951), the court addressed an altercation which was held to be personal in nature. The claimant was fighting with a coworker over various issues associated with singing and generally obstructing the work. A fight ensued and the court held that the risk arose out of a personal dispute and compensability was therefore denied.

B. Horseplay

Injuries in the workplace arising out of violence associated with horseplay are generally not compensable. In the case of Payne v. Industrial Comm’n, 295 Ill. 388 (1920), the court addressed the situation in which two employees were playing with a compressor hose and one fell to the ground and sustained injuries ultimately causing death. The court held that because the hose was being used for play, as opposed to anything arising out of the employment, the injuries sustained did not arise out of the employment.

C. Assaults Occasioned by Location of Employment

Illinois courts have generally held that if an employee is assaulted, and the assault is occasioned by the dangerous location of the employment, the resulting injuries may arise out of the employment. In Holthaus v. Industrial Comm’n, 127 Ill. App. 3d 732 (5th Dist. 1984), the court addressed a situation in which a city worker was getting a park pool ready for the season. The petitioner was working at a swimming pool in a park at 6:00 p.m. getting the pool ready for the season. The park was 40 acres surrounded by residential and agricultural areas and was near a U.S. highway. On the day of the occurrence, the petitioner was approached by an escaped convict and ultimately was shot. The court relied upon the fact that the pool was in an isolated area, the petitioner was working alone, and the fact that the petitioner was required to work in an area where the convict was more likely to appear, as factors establishing that the injuries arose out of the employment. Similarly, in the case of Chicago Housing Authority v. Industrial Comm’n, 241 Ill. App. 3d 720 (1st Dist. 1993), the court addressed injuries sustained by a CHA employee who was assaulted and struck in the head while on his way to pick up tools from his vehicle located in the parking lot of the CHA’s public housing project. The court held that the injuries occurred in a location where there was an increased risk of beatings and robberies and the injuries sustained therefore arose out of the employment.

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D. Assaults Motivated by Racial or Ethnic Prejudice

In the decision of Rodriguez v. Industrial Comm’n, 95 Ill. 2d 166 (1983), the Supreme Court addressed facts in which the petitioner was assaulted based solely on the fact that the coworker assailant did not like Mexicans. The employer argued the injuries therefore arose out of a dispute which was personal in nature and therefore non-compensable. In an interesting decision, the Court held that the dispute was not personal in nature because it did not arise from something brought by the claimant to the workplace from his private life. Rather, the petitioner brought only his ethnic heritage, over which he had no control, to the workplace. The Court cited Larson’s Workmen’s Compensation to hold that an assault by a defective person in the workplace is similar to an injury caused by a defective machine. As a result, the racially motivated assault was held to arise out of the petitioner’s employment.

E. Injuries Arising From Assaults Motivated by Neutral Or Unknown Risks

Generally, there is a mix in the case law as to whether or not an assault motivated by an unknown cause or risk is compensable. Such assaults have been held compensable but usually rely on the analysis that the location of the employment somehow increased the risk, e.g., Holthaus. In other cases, however, the court has denied compensability when the motive for the assault is unexplained. In the case of Greene v. Industrial Comm’n, 87 Ill. 2d 1 (1981), the court denied compensability when the claimants’ aggressor was unknown. Conversely, in the case of Health & Hospitals Governing Comm’n of Cook County Hospital v. Industrial Commission, 62 Ill. 2d 28 (1975), the court found an assault by an unknown assailant to be compensable. V. DECISIONS FROM OTHER JURISDICTIONS SPECIFICALLY ADDRESSING GUN

VIOLENCE

Surprisingly, Illinois does not have a large body of case law addressing assaults involving gun violence. That is perhaps because of the fact that until recently, we were the only state which did not allow concealed carry. While there are some cases in Illinois addressing gun violence, other jurisdictions provide guidance as to how certain factual situations involving injuries and deaths caused by firearms might be determined. A review of these decisions may be instructive as to how the Illinois courts may rule on certain situations which could develop as a result of increased gun violence in the workplace.

A. Panpat v. Owens-Brockway Glass Container, Inc.

In the case of Panpat v. Owens-Brockway Glass Container, Inc., 334 Ore. 342 (2002), the Supreme Court of Oregon addressed a situation in which a boyfriend and girlfriend worked the same shift at the employer’s manufacturing plant. Ultimately, the relationship ended badly and the boyfriend was away from the plant on medical leave because of difficulty coping with the breakup. While on medical leave, the boyfriend entered the plant and shot and killed the girlfriend while she was working. The court held the case was not compensable because the incident arose purely out of the personal relationship and did not arise out of the employment.

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B. Johnson v. Drummond, Woodsum, Plimpton & Nelson

In the case of Johnson v. Drummond, Woodsum, Plimpton & Nelson, P.A., 490 A.2d 676 (Me. 1985), the Supreme Court of Maine addressed a situation in which a law firm employee was shot in the law firm’s reception area by her estranged husband. An argument was made by the claimant that the incident arose out of the employment because the employer was on notice of the problem and therefore should have reasonably foreseen that the occurrence might happen. There was testimony that the firm’s office manager had discussed the situation with the employee and had advised her she was not to use other employees as a buffer between her and her husband. Despite the employer’s knowledge of this dispute, the court denied benefits because the assault arose purely out of a personal issue.

C. Koerner v. Orangetown Police Department

In the case of Koerner v. Orangetown Police Dept., 68 N.Y. 2d 974 (Ct. App. N.Y. 1986), the appellate court of New York addressed a factual situation in which a police officer’s wife accidentally shot and killed him with his service revolver. The accident occurred while the decedent was sleeping at his home. Department policy required the decedent to have his firearm with him at all times during off duty hours. The court did a detailed analysis in which it addressed both the “arising out of” component and the “in the course of” component of the compensability analysis. The court ultimately held the incident did arise out of the employment due to the requirement the petitioner have his firearm with him while off duty. Compensability ultimately was denied, however, due to the fact the petitioner was off duty and therefore was not at a time and place of work.

D. Galaida v. AutoZone, Inc.

In Galaida v. AutoZone, Inc., 882 So. 2d 1111 (Fla. 2d DCA 2004), an appellate court in Florida addressed a situation in which an employee had a loaded firearm in his car in the employer’s parking lot. The employee was on an employer approved cigarette break and had gone to his car to smoke. While in the car, somehow the loaded firearm fell out of the car, hit the ground and discharged, shooting the petitioner in the leg. The petitioner argued that since he was allowed to visit his car to smoke, his injury should be held compensable under the personal comfort doctrine. The court denied compensability and held the injury did not arise out of the employment since exposure to a firearm is not a foreseeable consequence of a cigarette break. The court also relied in part on the fact that the employer’s policies prohibited firearms on the property.

E. Southland Corp. v. Hester

Finally, in the case of Southland Corp. v. Hester, 253 Ark. 959 (1973), the Supreme Court of Arkansas addressed a factual situation in which an employee was found in his employer’s office and had been shot with the employee’s own rifle. The decedent was found sitting in a chair in front of his desk. His own .22 caliber rifle had been propped against a surface mounted electrical

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outlet on the floor. The barrel of the weapon was pointed towards the decedent’s chest in the vicinity of the heart. The powder burns indicated that the gun had been pressed against the claimant’s chest when the fatal shot was fired. Witnesses on behalf of the claimant’s beneficiary offered significant testimony to rebut the inference of suicide. The court held that it was convincingly shown that the decedent had no known motive for taking his own life and also that he was not familiar in any way with firearms. The wife offered testimony that four months prior to the occurrence, the decedent had asked where the gun was. When she asked him why, he said there had been quite a few rough-looking youths coming and applying for jobs and he felt they were not really looking for jobs, but looking for money. While the court found the evidence disputing suicide convincing, they none the less ruled there was insufficient evidence to establish any connection to the employment and the death was held to not arise out of the employment. VI. PRACTICE POINTERS

There is little doubt in light of the recently enacted concealed carry law, at least some increased risk of firearm violence now exists in the workplace. Certainly, employers that do not exercise their option to prohibit firearms need to recognize this increased risk. Also, there clearly will be more guns in society in general. The above analysis establishes that in some situations, injuries and deaths caused by firearm violence will be held compensable. To manage this risk, employers should consider the following in an effort to prohibit firearm violence in the workplace, and protect against compensability when such violence occurs: Prohibit guns in the workplace as allowed by the Firearm Concealed Carry Act Train supervisors to spot potentially violent employees Improve physical security

Adequate lighting Alarms Controlled entry points Develop and enforce workplace violence policies Promptly investigate all claims Get copies of photographs, surveillance tapes, and employer’s workplace violence policy Identify a motive

Employment-related motives Motives personal to the employer Motives neutral to the employee

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Craig S. Young

- Partner

Craig is Chair of the firm's workers' compensation practice group. Craig began his career at Heyl Royster as a summer clerk while in law school and became an associate in the firm's Peoria office in 1985. He has spent his entire career with Heyl Royster and became a partner in 1992. He is recognized as a leading workers' compensation defense lawyer in the state of Illinois and has handled all aspects of Illinois workers' compensation litigation including arbitrations, reviews, and appeals. He has developed expertise in the application of workers' compensation to certain industries including hospitals, trucking companies, municipalities, large manufacturers, school districts, and universities. In addition to his expertise in litigated cases, Craig has developed a reputation for counseling employers regarding overall management of the workers' compensation risk. Through seminars and presentations to local and national industry groups, in-house meetings, regular claims review analysis, and day-to-day legal counsel, Craig assists his clients in looking beyond each individual case in an effort to reduce overall workers' compensation expense. His comprehensive approach to workers' compensation issues also includes third-party liability and lien recovery issues. Currently, Craig is the immediate past chair of the workers' compensation committee of the Defense Research Institute. He has also chaired DRI's Program Committee, and in that role, chaired nationally acclaimed teleconferences and seminars on specific issues relating to workers' compensation defense. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin. Craig is actively involved in supporting many local charitable organization and civic causes. He was the 2008 recipient of the Peoria County Bar Association's Distinguished Community Service Award. Publications "Recent Advances of the Traveling Employee

Doctrine," For the Defense (2014)

Public Speaking “Effective Strategies for Defending Traveling

Employee Claims” Heyl Royster 29th Annual Claims Handling Seminar (2014)

“Workers’ Compensation Reform in Illinois” Presented in numerous locations (2012)

“Elements of a Winning Workers’ Compensation Program” Downstate Illinois Occupational Safety & Health Day (2010)

“Family Medical Leave Act (FMLA); Americans with Disabilities Act (ADA); and Workers’ Compensation” Risk Control Workshop (2010)

“Medical Science, Industrial Commission Science - Understanding the Industrial Commission's Approach to Medical Issues” Lorman Education Services (2008)

“The Employee Who Can't Return to Work: Wage Differentials, Vocational Rehabilitation & Job Placement” Lorman Education Services (2008)

“Medicare Set-Aside Agreements-The Rest of the Story” Defense Research Institute (2007)

“Resolving (or Alleviating) the Chronic Pain Case” Heyl, Royster, Voelker & Allen (2007)

“Definition, Statutory Employers, Self-Insureds, Insurance Non-Compliance and the Stop-Work Order: Sections 1, 3 and 4” Heyl, Royster, Voelker & Allen (2006)

“Workers' Compensation and Illegal Aliens” Defense Research Institute (2006)

“The Employee Who Can't Return to Work: Wage Differentials, Vocational Rehabilitation and Job Placement” Lorman Educational Services (2006)

“Medical Science, Industrial Commission Science - Understanding the Industrial Commission's Approach to Medical Issues” Lorman Educational Services (2006)


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Peoria County Bar Association 2008 Distinguished Community Service Award

Professional Associations American Bar Association Illinois State Bar Association Peoria County Bar Association (Immediate Past

President) Defense Research Institute (Past Chair, National

Workers' Compensation Committee) Court Admissions State Courts of Illinois United States District Court, Central District of


Education Juris Doctor, University of Illinois, 1985 Bachelor of Arts-History (summa cum laude),

Bradley University, 1982


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AVERAGE WEEKLY WAGE: THE FIRST STEP IN DETERMINING BENEFITS

Presented and Prepared by:

James J. Manning [email protected]


Chrissie L. Peterson [email protected]


Prepared with the Assistance of: Dana J. Hughes




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AVERAGE WEEKLY WAGE: THE FIRST STEP IN DETERMINING BENEFITS I. THE ACT ITSELF ............................................................................................................................................. E-3 II. THE FIRST INQUIRY – HOW MUCH DID THE CLAIMANT WORK? ............................................. E-4

A. Example ............................................................................................................................................. E-5 III. WHAT IF THE CLAIMANT WORKED DURING THE PRIOR 52 WEEKS

BUT MISSED MORE THAN 5 DAYS? ...................................................................................................... E-5

A. Examples ........................................................................................................................................... E-5 IV. HOW DO WE DETERMINE IF THE CLAIMANT LOST TIME? .......................................................... E-5 V. WHAT IF EMPLOYMENT BEGAN WITHIN THE PRIOR 52-WEEK PERIOD? .............................. E-6 VI. WHAT IF THE EMPLOYMENT HAS BEEN OF SUCH SHORT DURATION

OR THE TERMS OF THE EMPLOYMENT ARE OF SUCH A CASUAL NATURE THAT IS IT IMPRACTICAL TO USE ONE OF THE THREE METHODS MENTIONED ABOVE TO CALCULATE AVERAGE WEEKLY WAGE? ........................................................................ E-7

VII. OTHER CONSIDERATIONS IN DETERMINING AVERAGE WEEKLY WAGE ............................... E-8

A. Concurrent Employment – Did the Claimant Have Another Job? .............................. E-8 B. Did the Employee Work Overtime? ..................................................................................... E-10 C. Collective Bargaining Agreements ...................................................................................... E-10 D. Volunteer Firemen, Police and Civil Defense Members .............................................. E-11

VIII. DOCUMENTATION OF WAGE INFORMATION .............................................................................. E-11


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AVERAGE WEEKLY WAGE: THE FIRST STEP IN DETERMINING BENEFITS The claimant’s average weekly wage (AWW) can have a substantial impact on the value of a claim. Indeed, an employee’s AWW is the starting point for determining the rate at which the employer will pay temporary total disability (TTD) benefits and ultimately permanency benefits, whether they be on the basis of a percentage loss of use of a body part, Section 8(e) specific loss, Section 8(d)(2) person-as-a-whole loss, Section 8(d)(1) wage differential award, or permanent total disability pursuant to Section 8(f). Given its importance, one of the first tasks when reviewing a workers’ compensation case is to determine and document the appropriate AWW rate. What follows are some initial questions that must be asked when sitting down to calculate average weekly wage. The answers to these questions will be critical to determining the proper method for calculation and also for determining what earnings must be included in the calculation. In the discussion which follows, remember that the Commission’s AWW rate determination is considered a fact question and is reviewed on appeal under a manifest weight of the evidence standard of review. Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 231-32 (2001). To overturn such a finding, an opposite result must be clearly apparent. I. THE ACT ITSELF

Section 10 of the Illinois Workers’ Compensation Act sets forth the means for calculating average weekly wage:

The compensation shall be computed on the basis of the “Average weekly wage” which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee’s last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52; but if the injured employee lost 5 or more calendar days during such period, whether or not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks and parts thereof remaining after the time so lost has been deducted. Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee actually earned wages shall be followed. Where by reason of the shortness of the time during which the employee has been in the employment of his employer or of the casual nature or terms of the employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the 52 weeks previous to the injury, illness or disablement was being or would have

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been earned by a person in the same grade employed at the same work for each of such 52 weeks for the same number of hours per week by the same employer.

820 ILCS 305/10. As you can see, Section 10 is not an abundantly clear piece of legislation and can be confusing to interpret, which has lead to inconsistent decisions in the courts. In 2001, in an effort to clarify this section, the Illinois Supreme Court in Sylvester broke Section 10 down into a more workable formula using four methods. According to that case, AWW is to be determined as follows:

(1) By default, average weekly wage is “actual earnings” during the 52-week period preceding the date of injury, illness or disablement divided by 52. (2) If the employee lost five or more calendar days during that 52-week period, “whether or not in the same week” then the employee’s earnings are divided not by 52, but by “the number of weeks and parts thereof remaining after the time so lost has been deducted.” (3) If the employee’s employment began during the 52-week period, the earnings during employment are divided by “the number of weeks and parts thereof during which the employee actually earned wages.” (4) Finally, if the employment has been of such short duration or the terms of the employment of such casual nature that it is “impractical” to use one of the three above methods to calculate average weekly wage, “regard shall be had to the average weekly amount which during the 52 weeks previous to the injury, illness or disablement was being or would have been earned by a person in the same grade employed at the same work for each of such 52 weeks for the same number of hours per week by the same employer.”

Sylvester, 197 Ill. 2d at 230-31. Under Sylvester, an employer’s first task is to decide the category in which its employee falls. II. THE FIRST INQUIRY – HOW MUCH DID THE CLAIMANT WORK?

Few claimants will have worked 40 hours per week for the full 52 weeks prior to their injury, all the while never missing a day or working any overtime. In fact, a claimant who worked full time for the employer during the 52-week period prior to his alleged work injury is probably an exception rather than the rule.

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Nevertheless, Section 10 provides that, if the claimant worked full time for the employer during the 52-week period prior to the injury, then the calculation of his average weekly wage is simple and straightforward. In that scenario, the claimant’s total earnings are divided by 52, rendering the appropriate AWW rate. This process is referred to as “Method One.”

A. Example

Jeff was an exemplary employee and worked every day of the past 52 weeks prior to his work accident, earning $77,000 in that period. To calculate his AWW, we simply divide the $77,000 by 52 to reach an AWW of $1,480.77.

Because this scenario is more likely the exception rather than the rule, we offer the following additional questions to assist you in navigating Section 10 and in computing the claimant’s average weekly wage. III. WHAT IF THE CLAIMANT WORKED DURING THE PRIOR 52 WEEKS BUT MISSED

MORE THAN 5 DAYS?

As Sylvester explained, if the employee lost five or more calendar days during that 52-week period, whether or not in the same week, then the employee’s earnings are divided not by 52, but “by the number of weeks and parts thereof remaining after the time so lost has been deducted.” This scenario is referred to as “Method Two” and is the most frequently encountered scenario in workers’ compensation cases.

A. Examples

Jenna worked as a fill-in secretary and worked a total of 155 days during the 52-week period prior to her accident, i.e. Jenna missed more than 5 days of work. To calculate her AWW, we divide the 155 days worked by 5 (the number of work days in a work week), arriving at 31 weeks. We then divide her total earnings of $14,750 by 31 weeks and arrive at an AWW rate of $475.81. Doug worked construction and earned $35,850 in the 52-week period prior to his accident. He never worked a full week and his work time was recorded in hours per day. He worked a total of 1,580 hours, which translates into 197.50 days (1,580/8). 197.50 days divided by 5 work days yields 39.50 weeks. Doug’s AWW rate is $907.60.

IV. HOW DO WE DETERMINE IF THE CLAIMANT LOST TIME?

Under the second method, a critical question in computing the AWW rate is whether the claimant lost five or more work days in the 52-week period prior to the injury. In Farris v. Industrial Comm’n, 357 Ill. App. 3d 525 (4th Dist. 2005), the claimant was a full time employee for

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the employer in the 52 weeks preceding the alleged workers’ compensation injury. In the 52 weeks preceding the injury, all parties agreed that the claimant worked 181.25 days. The claimant testified that he missed work while caring for his critically-ill infant daughter and that he had also been occasionally laid-off due to lack of work. The arbitrator refused to subtract the time claimant lost due to caring for his sick child, finding that the claimant chose to be with his child rather than work; thus, the lost time should not be deducted from total weeks and parts thereof worked by the claimant. According to the arbitrator, the claimant had worked 44 weeks, which reflected only the eight weeks he was laid-off. The arbitrator relied on the definition of lost time from Illinois-Iowa Blacktop, Inc. v. Industrial Comm’n, 180 Ill. App. 3d 885, 891 (3d Dist. 1989), which defined lost time as time lost to the extent not due to the fault of the employee. The employer had argued that work was available on the days that the claimant took off to care for his child and that those days should be counted in the AWW determination. On review, the Commission modified the arbitrator’s decision on average weekly wage, holding that the second method set forth in Sylvester required all lost time to be subtracted, resulting in several weeks and parts thereof less than that found by the arbitrator. Under the Commission’s determination, the lost time was to include the days missed caring for the claimant’s daughter, and thus the correct method required dividing the 181.25 days by 5, which equaled 36.25 weeks. The employer appealed the issue all the way to the appellate court, which ultimately affirmed the Commission’s interpretation of Section 10. The court held that the Commission properly determined the amount of weeks and parts thereof actually worked. The court refused to penalize the claimant for caring for his child, and found that the lost time was not actually caused by the claimant. In other words, Farris left open the issue of what actually constituted “lost time” and the role played in that determination by the claimant’s so-called “fault.” V. WHAT IF EMPLOYMENT BEGAN WITHIN THE PRIOR 52-WEEK PERIOD?

In Greaney v. Industrial Comm’n, 358 Ill. App. 3d 1002 (1st Dist. 2005), the claimant had been working for the employer for 5 months prior to his alleged workers’ compensation injury. The parties agreed that the third method of calculating the claimant’s average weekly wage was applicable. In Greaney, the claimant was a full time employee, scheduled to work a full work week in each of the 17 weeks in which he was employed by the employer. The claimant never worked a full work week. In performing the average weekly wage calculation using “Method Three,” the appellate court divided the number of days the claimant actually worked prior to the injury divided by the number of days in a full work week to arrive at the number of weeks and parts thereof by which the claimant’s pre-injury wages are to be divided. The claimant worked 59 days in the 17 weeks prior to his injury, meaning he worked 11.80 weeks. The court held that the phrase “weeks and parts thereof” did not differ when using the third method of calculation than when using the second method of calculation.

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Likewise, the appellate court applied Method Three to a school teacher whose employment contract was set at 39 weeks. In Washington Dist. 50 Schools v. Illinois Workers’ Compensation Comm’n, 394 Ill. App. 3d 1087 (3d Dist. 2009), the claimant had worked as an elementary school teacher for 19 years. During the year preceding her injury, she worked 39 weeks (the regular school year), and was paid a salary of $40,416.48. Under her contract, she had the option of accepting her salary spread out over the 52-week calendar year, which meant she received checks in the amount of $777.24. The Commission calculated her AWW rate at $1,036.32 by dividing her salary by the 39 weeks she worked for the school district. The employer argued that the total salary should have been divided by 52 weeks. The appellate court affirmed the Commission, finding: (1) the Third Method of Section 10 applied because she did not work a full calendar year and (2) her total salary was properly divided by the 39 weeks. By using the 39 weeks, the court’s methodology yielded the claimant a significant windfall, as the 52-week total of her AWW rate equaled $53,888.64, some $13,472.16 extra. Placing this ruling in a benefits context, the claimant’s TTD benefit rate, utilizing an average weekly wage of $1,036.32, is $691.23, while her TTD rate based on her actual weekly earnings of $777.24, is $518.42, a difference of $172.81 per week. Likewise, if one assumed a 20 percent of a person award as permanency, the difference in awards is approximately $15,000.00. The appellate court applied the same method to calculate a school teacher’s average weekly wage in Elgin Board of Education School District U-46 v. Illinois Workers’ Compensation Comm’n, 409 Ill. App. 3d 943 (1st Dist. 2011). Like the teacher in Washington above, this teacher actually worked less than 52 weeks as well. The employer contended that her contract provided for “a year’s pay for a year’s work,” but the employer failed to offer the employment contract at trial. Arguably, the contract terms could have changed the court’s analysis of average weekly wage if it truly required a full year’s work of the teacher. VI. WHAT IF THE EMPLOYMENT HAS BEEN OF SUCH SHORT DURATION OR THE

TERMS OF THE EMPLOYMENT ARE OF SUCH A CASUAL NATURE THAT IS IT IMPRACTICAL TO USE ONE OF THE THREE METHODS MENTIONED ABOVE TO CALCULATE AVERAGE WEEKLY WAGE?

In this scenario, regard shall be given to the average weekly wage which, during the 52 weeks previous to the injury, illness or disablement, was being or would have been earned by a person in the same grade employed at the same work for each of such 52 weeks for the same number of hours per week. This method, known as “Method Four,” is also referred to as the “commensurate pay method,” essentially looks to what a similarly-situated employee would earn in that same job. The claimant can use a co-worker or reference a worker in the same line of work.

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Method Four was used most recently in Copperweld Tubing Products Co. v. Illinois Workers’ Compensation Comm’n, 402 Ill. App. 3d 630 (1st Dist. 2010), to determine the amount the claimant would have been able to earn as a millworker had he not suffered a work accident as part of the court’s determination of an appropriate Section 8(d)(1) wage differential award. VII. OTHER CONSIDERATIONS IN DETERMINING AVERAGE WEEKLY WAGE

A. Concurrent Employment – Did the Claimant Have Another Job?

Section 10 provides that, if a claimant was working concurrently and the employer had knowledge of the concurrent employment prior to the injury, the claimant’s wages from all employers shall be considered in the AWW rate calculation as if earned from the employer liable for compensation. The courts have broadly construed concurrent employment to generally favor inclusion of additional wages in the claimant’s average weekly wage. Once it is determined that the claimant was working concurrently, and that the employer had knowledge of the concurrent employment, the next question becomes what is the proper method of calculating the average weekly wage given the concurrent employment. In Mason Mfg., Inc. v. Industrial Comm’n, 331 Ill. App. 3d 575 (4th Dist. 2002), the claimant’s primary employer was Norfolk and Southern Railroad. He had a secondary job at Mason, working occasionally, 4-5 times during the five years preceding the injury. When he worked for Mason, he would work several days to several weeks. When was injured, he was in his fourth day of employment for Mason for that period. Prior to that period of employment, the claimant had not worked for Mason for several years. It was undisputed that Mason was aware of the claimant’s primary employment with the railroad and that his wages from both employers were to be considered in the average weekly wage calculation. However, the parties disagreed on the method by which the concurrent wages would be used in calculating the claimant’s average weekly wage. Mason contended that the total wages should be added together and divided by the total weeks in which the claimant actually worked. Conversely, the claimant contended that his average weekly wage should be calculated for each employer separately, and then adding the two average weekly wage calculations together to determine the claimant’s average weekly wage for purposes of benefits and his workers’ compensation injury against Mason. Clearly, the claimant’s proposed calculation would result in a windfall to the claimant. The court agreed with the claimant and stated, “we believe that in cases of concurrent employment, the better practice is to determine the average weekly wage of each job separately, by the method appropriate to that job, then add the averages together to determine the average weekly wage.” Mason, 331 Ill. App. 3d at 579. Applying that rationale, the court found that the third method, as articulated in Section 10 and in Sylvester was appropriate.

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The court acknowledged that the average weekly wage calculation ultimately affirmed would result in a substantial windfall to the claimant and that such a windfall had been criticized in the past appellate decisions. See Cook v. Industrial Comm’n, 231 Ill. App. 3d 729 (3d Dist. 1992) (The court rejected the claimant’s average weekly wage calculation, finding that the claimant’s interpretation of Section 10 would result in a windfall to the claimant allowing the claimant to receive substantially more per week than he actually earned while employed); and Village of Winnetka v. Industrial Comm’n, 250 Ill. App. 3d 240 (1st Dist. 1993). Nevertheless, the court let the determination stand. In Flynn v. Industrial Comm’n, 211 Ill. 2d 546 (2004), the Supreme Court addressed concurrent employment in the context of a seasonal worker. In Flynn, the claimant was primarily a union asphalt worker. The claimant typically did asphalt work from March through November or December, due to the weather-dependent nature of the work. During the offseason, he maintained an on-call status with the asphalt companies. He would sometimes be called back to work by the asphalt companies during the offseason. In the offseason, the claimant never applied for unemployment compensation. Rather, he worked on a farm and sometimes worked in other temporary jobs. In one offseason, the claimant plowed snow for a local township. In the course of that employment, he suffered a severe eye injury, which restricted him from returning to work in the asphalt trade. He sought wage differential benefits based on his AWW rate as an asphalt worker. The arbitrator found that the claimant was entitled to wage differential benefits based on his average weekly wages as an asphalt worker. On review, the Commission reversed and found that the claimant was not employed concurrently by the township and the asphalt companies. The Commission fixed his AWW rate was $56 per week for the township and found his earnings as an asphalt worker as irrelevant. Although affirmed by the circuit and appellate courts, the Supreme Court disagreed. Framing the issue as “What are a [seasonal employee’s] relevant earnings in determining his compensation for an injury [which occurred during] temporary offseason work?” the Court held that when an employee is working for two or more employers concurrently, wages from all employers shall be considered as if earned from the employer liable for compensation. The plain language of Section 10, along with the purpose of the Act, lead to a conclusion that when a worker is concurrently employed, all of his earnings must be considered when calculating a Section 8(d) wage differential award. In Jacobs v. Industrial Comm’n, 269 Ill. App. 3d 444 (2d Dist. 1995), the claimant was also injured in offseason temporary employment as a snow plow driver. At the time of the accident, he had been laid off from his primary employment as a sheet metal worker for a couple of weeks. He testified that the layoff was usual and customary in the line of his employment. The claimant further testified that he was always subject to recall in the offseason. The appellate court concluded that fairness to the claimant was an important consideration in whether the claimant’s average weekly wage as a sheet metal worker should be taken into account when

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calculating his recovery for his workers’ compensation injury which occurred in the offseason. The court held that the claimant was working concurrently.

B. Did the Employee Work Overtime?

Section 10 unequivocally states that overtime is excluded from the average weekly wage. 820 ILCS 305/10. “Overtime” consists of compensation for hours beyond those the employee regularly works each week and extra hourly pay above the regular hourly wage. Edward Hines Lumber Co. v. Industrial Comm’n, 215 Ill. App. 3d 659, 666 (1st Dist. 1990) (Claimant required to regularly work 67 hours per week; AWW rate based on a 67 hour work week). In Airborne Express, Inc. v. Illinois Workers Compensation Comm’n, 372 Ill. App. 3d 549, 555 (1st Dist. 2007), the claimant’s regular workweek consisted of five, 8-hour shifts. In the 52 weeks prior to his injury, he worked 32 weeks for the employer, 31 of which he worked overtime. The parties agreed that the employer required overtime work to meet its operational needs, but the claimant himself was not required to work overtime. Rather, he used his seniority to obtain the overtime hours. The evidence further established that although the claimant consistently worked overtime, he did not consistently work a set number of overtime hours each week. The appellate court held that the overtime should not be included in the average weekly wage because it was not mandatory (a condition of the claimant’s employment) and regular. The court went on to say that if it included regular and voluntary overtime in the claimant’s average weekly wage, the overtime exclusion in Section 10 would be rendered meaningless. In Ogle v. Industrial Comm’n, 284 Ill. App. 3d 1093 (1st Dist. 1996), the appellate court held that the claimant’s average weekly wage should have been based upon his earnings for a 48 hour work week. There, the court’s holding was based upon evidence which established that the claimant’s normal work week consisted of 48 hours and his union contract made overtime work mandatory. Moreover, it was not until the claimant had worked 48 hours or more that he was not required to work any additional overtime. The evidence also established that the claimant was only able to work less than 48 hours per week at the employer’s discretion.

C. Collective Bargaining Agreements

In Arcelor Mittal Steel v. Illinois Workers’ Compensation Comm’n, 2011 IL App (1st) 102180WC, the appellate court affirmed the Commission’s decision to include 173 hours of scheduled overtime and approximately $15,000 in bonus pay received for doing work required pursuant to the claimant’s collective bargaining agreement as part of the claimant’s average weekly wage. In this case, the claimant worked scheduled overtime that was regular, consistent and required as part of his employment. That overtime was included in his average weekly wage. However, he also worked unscheduled, voluntary overtime which was properly excluded. The bonus pay was earned as part of a “production bonus plan” based in part on productivity and in part on safety. If the claimant’s team produced a certain amount of steel and lost no time from work, the entire team received the bonus. The bonus plan was generally described as an important part of the employee’s compensation package, paid to the employee as consideration for work performed.

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D. Volunteer Firemen, Police and Civil Defense Members

Per the plain language of Section 10, in the case of volunteer firemen, police and civil defense members or trainees, the income benefits shall be based on the average weekly wage in their regular employment. 820 ILCS 305/10. VIII. DOCUMENTATION OF WAGE INFORMATION

Proper calculation of the AWW rate can be made easier if accurate wage records are maintained. For employers, this means keeping a file showing the number of days and/or hours worked by each employee, properly listing the employee’s wage rate and adjustments, and accurately listing overtime hours and pay. For insurance carriers, these records should be requested from the employer immediately and the appropriate AWW rate confirmed. Where possible, insurance carriers should stress to their insured employers the need to maintain useable wage records for their workforce. Also, when handling a claim, be sure to inquire as to whether the employer has knowledge of the claimant working a second job. Since a second job can, in some circumstances, dramatically change a claimant’s AWW rate, this information must be obtained up front and as early as possible to avoid surprise and to ensure that proper reserves are set for the claim. Remember, a claimant’s AWW rate determines his TTD rate and all forms of permanency. Gathering this information early is key to paying benefits at a proper rate and accurately evaluating permanency exposure.

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James J. Manning

- Partner

Jim chairs the firm's Real Estate and Title Services Practice where he concentrates much of his legal practice on representing buyers, sellers, builders and providing closing services on residential real estate transactions. He has practiced in all areas of civil litigation, including premises and auto liability, commercial litigation, workers' compensation, real estate litigation (including the defense of realtors in E&O claims), and construction litigation. Jim frequently presents seminars on residential real estate contracts, title insurance and related matters to the Peoria County Bar Association and the Peoria Area Association of Realtors in connection with their continuing education programs as well as to Realtor® clients. Jim serves on the Peoria County Bar Association Real Estate Contracts Committee and is involved in the drafting and approval of real estate contracts used by the Peoria Area Association of Realtors. He was also recently selected to serve on the Attorneys' Title & Guaranty Fund Advisory Council. In November of 2014, Jim was part of a panel presentation at the Annual Conference of the Illinois Association of School Boards where he spoke to school board members on how to effectively control workers' compensation and related employment costs. He has also published materials and spoke on behalf of Lorman Education Services addressing recent amendments to the Illinois Workers' Compensation Act and the impact of recent measures by the Illinois legislature to reform workers' compensation in Illinois. He also speaks at the firm's annual seminar to insurance industry on workers' compensation issues. Public Speaking “Residential Real Estate Contracts”

Peoria County Bar Association (2015) “Controlling Labor and Workers’ Compensation

Costs” Annual Conference of the Illinois Association of School Boards (2014)

“Residential Real Estate Contracts” Peoria Area Association of Realtors (2014)

“Wage Differential Reduction Strategies” Lorman Education Services (2013)

“Workers Compensation – Recent Changes to the Statute, Recent Decisions and How They Might Be Different After the Statutory Changes” Lorman Education Services (2012)

“Wage Differential Reduction Strategies” Heyl Royster Claims Handling Seminar (2011)

Professional Recognition Selected as a Leading Lawyer in Illinois for his

work in residential real estate. Only five percent of lawyers in the state are named as Leading Lawyers.

Peoria Area Association of Realtors® 2011 Affiliate of the Year

Professional Associations Peoria County Bar Association, Member and

former Chair of the PCBA Real Property Committee

Attorneys' Title & Guaranty Fund Advisory Council

Illinois Real Estate Lawyers' Association Illinois Land Title Association Illinois State Bar Association Peoria Area Association of Realtors®, Affiliate

Member Court Admissions State Courts of Illinois United States District Court, Central District of

Illinois Education Juris Doctor, Saint Louis University School of

Law, 1992 Bachelor of Business Administration, University

of Notre Dame, 1989


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Chrissie L. Peterson

- Of Counsel

Chrissie's practice is focused on government law, representing municipalities and other public entities in a broad range of issues, including administrative and regulatory law, the operation and governance of critical services, infrastructure construction and financing, council procedures, tax increment financing and economic development. Before joining Heyl Royster, Chrissie served as the City Attorney for Canton, Illinois for seven years where she managed all legal aspects of a municipal corporation. While at the City of Canton, Chrissie managed all of the municipal ordinance prosecutions, including code enforcement and demolition, was responsible for giving guidance on the Freedom of Information and Open Meetings Acts to all City departments, committees and subcommittees and drafted or structured construction contracts, franchise agreements and utility infrastructure contracts. She was responsible for drafting resolutions, ordinances and policy updates, collaborating with various City departments, as necessary. Chrissie also was responsible for managing the legal aspects of economic development, including real estate transactions, grant applications and agreements, tax increment finance agreements, utility extension agreements and development agreements. Chrissie handled matters before various state and federal administrative agencies on the City's behalf, including the Illinois Commerce Commission, the Illinois Human Rights Commission and the Equal Employment Opportunity Commission. Chrissie also practices in the environmental field and has experience negotiating Highway Authority Agreements and has defended claims before the Illinois Environmental Protection Agency. She has been successful negotiating Compliance Commitment Agreements and obtaining No Further Remediation letters on her client's behalf. She has worked with the Illinois and United States E.P.A. on multiple aspects of Brownfield redevelopment. Most notably, Chrissie worked to help Canton ready a Brownfield site for the location of a multi-national medical manufacturing facility that opened in 2009 and a high-tech polymer facility that opened in 2010.

Her experience with the City of Canton has given Chrissie a comprehensive approach to municipal law. Chrissie joined Heyl Royster in 2013. She began her legal career in 2003 with an insurance defense firm in Springfield, Illinois where she concentrated in worker's compensation and civil litigation. Significant Cases City of Cuba v. City of Canton, 2011 IL App (3d)

110066-U - Successfully defended a challenge by the Plaintiff municipality who sought to declare a water purchase agreement between the parties to be a buyer's option rather than a requirements contract. The appellate court agreed with the defendant's position that the plain language of the contract was clear and required the City of Cuba to purchase all of its water from the City of Canton for the duration of the Contract. The decision effectively guaranteed that the plaintiff would purchase all of its potable water from the City of Canton until 2047.

City of Canton v. Village of Banner, 9th Judicial Circuit, 2007 - Successfully obtained an injunction against the Village of Banner to prevent the defendant from arbitrarily imposing seasonal weight limits on the roadway. The injunction allowed the City of Canton and its contractors to access construction site property along the Illinois River and proceed with a multi-million dollar collector well project.

Transactions Administrative Adjudication Hearing Officer for

Municipal Ordinance Violations Public Speaking “Construction Contracts in Township

Government” Township Officials of Illinois (2014)



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“Prevailing Wage and House Bill #924” American Public Works Association, Illinois Chapter Conference (2014)

“Liability Issues Training” McDonough County, IL Sheriff's Office (2014)

“Bonds and Insurance in Public Construction Contracts” Lorman Public Contracts and Procurement, East Peoria and Springfield (2013)

“Synthetic Drug Ordinances” Town Hall Meeting, Canton, Illinois (2013)

“Perception vs. Reality: Economic Development of Brownfields” Brownfield Workshop, Pekin, Illinois (2011)

Professional Associations American Bar Association Illinois State Bar Association (Local Government

Law Section Council, 2015-) Peoria County Bar Association


Illinois Education Juris Doctor, Southern Illinois University, 2003 Bachelor of Arts-Political Science and

Sociology, Knox College, 1998


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Dana J. Hughes

- Associate

Born and raised in Rockford, Dana joined the firm's Rockford office as an associate in 2006. There, she defended the rights of employers in workers' compensation claims before arbitrators and commissioners at the Illinois Workers' Compensation Commission and protected their interests in state courts in third party claims. She was an active member in the Winnebago County Bar Association, serving on its Board of Directors and Diversity Committee, and as past Chair of the association's Workers' Compensation Section. Dana also served as an arbitrator for the Seventeenth Judicial Circuit's Court-Annexed Arbitration System. In April of 2015, Dana relocated to the firm's Peoria office to join its workers' compensation group, where she continues to concentrate her practice in the representation of employers throughout the central part of the state. Dana is a member of the Peoria County Bar Association, Illinois Association of Defense Trial Counsel and Defense Research Institute. Dana is an annual contributor to the firm's claims handling seminar publication and the firm's monthly publication devoted to workers' compensation issues, Below the Red Line. She has contributed to in-house newsletters for clients and has presented before the ISBA's Insurance Law Section. She has been a guest speaker to local community college and high school students on topics such as leadership and the practice of law. In 2015, Dana co-authored an extensive survey of Illinois Workers' Compensation Law published in the Southern Illinois University Law Journal. While in law school, Dana was a student representative to the Illinois State Bar Association. She served as a judicial law clerk in the Fifteenth Judicial Circuit. She was member of the NIU Law Review, where her writing was published in the Northern Illinois University Law Review and Kane County Bar Journal. Dana was also recipient of the Women's Bar Foundation's scholarship, which is awarded to one female law student from each of Illinois' law schools.

Publications "Survey of Illinois Law: Workers'

Compensation," Southern Illinois University Law Journal (2014)

"Appellate Court Further Restricts Employer's Ability to Terminate Temporary Total Disability Where Employee Was Discharged for Cause," Illinois Defense Counsel Quarterly (2015)

Public Speaking “Social Media: A New Litigation Tool?”

Winnebago County Bar Association’s Trial Section (2012)

“Uninsured & Underinsured Motorist Coverage” ISBA Insurance Law Section (2011)



Professional Associations Peoria County Bar Association Winnebago County Bar Association (Board of

Directors, 2009-2012) Illinois State Bar Association Illinois Association of Defense Trial Counsel Defense Research Institute

Court Admissions State Courts of Illinois United States District Court, Northern District

of Illinois Education Juris Doctor (cum laude), Northern Illinois

University College of Law, 2006 Bachelor of Arts-Sociology, Northern Illinois

University, 2003

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PANEL DISCUSSION: HOW MANY BENEFITS TRULY ARE AVAILABLE TO INJURED EMPLOYEES? (INCLUDING THE ILLINOIS PUBLIC EMPLOYEE DISABILITY ACT (PEDA) AND THE ILLINOIS PUBLIC SAFETY EMPLOYEE BENEFITS ACT (PSEBA)

Presented by: Kevin J. Luther

[email protected] Chicago, Illinois • 312.853.8700

Rockford, Illinois • 815.963.4454

Bruce L. Bonds [email protected]

Urbana, Illinois • 217.344.0060

John M. Redlingshafer [email protected]

Peoria, Illinois • 309.676.0400 Chicago, Illinois • 312.853.8700

Chrissie L. Peterson [email protected]


Brian M. Smith [email protected]

Urbana, Illinois • 217.344.0060

Prepared with the Assistance of: Keith E. Fruehling

[email protected] Urbana, Illinois • 217.344.0060



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PANEL DISCUSSION: HOW MANY BENEFITS TRULY ARE AVAILABLE TO INJURED EMPLOYEES? (INCLUDING THE ILLINOIS PUBLIC EMPLOYEE

DISABILITY ACT (PEDA) AND THE ILLINOIS PUBLIC SAFETY EMPLOYEE BENEFITS ACT (PSEBA)

I. PUBLIC EMPLOYEE DISABILITY ACT (PEDA) ....................................................................................... F-3

II. ILLINOIS PUBLIC SAFETY EMPLOYEE BENEFITS ACT (PSEBA) ....................................................F-11


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PANEL DISCUSSION: HOW MANY BENEFITS TRULY ARE AVAILABLE TO INJURED EMPLOYEES? (INCLUDING THE ILLINOIS PUBLIC EMPLOYEE

DISABILITY ACT (PEDA) AND THE ILLINOIS PUBLIC SAFETY EMPLOYEE BENEFITS ACT (PSEBA)

Daily activities of police men and women and firefighters across the State of Illinois face an increased risk of injury as a result of the nature of their occupation. The recognition of that fact by the Illinois legislature led to the development and the enactment of the Illinois Public Employee Disability Act (PEDA), as well as the Illinois Public Safety Employee Benefits Act (PSEBA). Both Acts are designed to minimize the negative impact of the increased risk of injury by offering generous benefits to the injured public employees that qualify under those Acts. I. PUBLIC EMPLOYEE DISABILITY ACT (PEDA)

The Public Employee Disability Act can be found at 5 ILCS 345/1. The substance of that statute is as follows:

Sec. 1. Disability benefit. (a) For the purposes of this Section, "eligible employee" means any part-time or full-time State correctional officer or any other full or part-time employee of the Department of Corrections, any full or part-time employee of the Prisoner Review Board, any full or part-time employee of the Department of Human Services working within a penal institution or a State mental health or developmental disabilities facility operated by the Department of Human Services, and any full-time law enforcement officer or full-time firefighter who is employed by the State of Illinois, any unit of local government (including any home rule unit), any State supported college or university, or any other public entity granted the power to employ persons for such purposes by law. (b) Whenever an eligible employee suffers any injury in the line of duty which causes him to be unable to perform his duties, he shall continue to be paid by the employing public entity on the same basis as he was paid before the injury, with no deduction from his sick leave credits, compensatory time for overtime accumulations or vacation, or service credits in a public employee pension fund during the time he is unable to perform his duties due to the result of the injury, but not longer than one year in relation to the same injury. However, no injury to an employee of the Department of Corrections or the Prisoner Review Board working within a penal institution or an employee of the Department of Human Services working within a departmental mental health or developmental disabilities facility shall qualify the employee for benefits under this Section unless the injury is the direct or indirect result of violence by inmates of the penal institution or residents of the mental health or developmental disabilities facility.

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(c) At any time during the period for which continuing compensation is required by this Act, the employing public entity may order at the expense of that entity physical or medical examinations of the injured person to determine the degree of disability. (d) During this period of disability, the injured person shall not be employed in any other manner, with or without monetary compensation. Any person who is employed in violation of this paragraph forfeits the continuing compensation provided by this Act from the time such employment begins. Any salary compensation due the injured person from workers' compensation or any salary due him from any type of insurance which may be carried by the employing public entity shall revert to that entity during the time for which continuing compensation is paid to him under this Act. Any person with a disability receiving compensation under the provisions of this Act shall not be entitled to any benefits for which he would qualify because of his disability under the provisions of the Illinois Pension Code. (e) Any employee of the State of Illinois, as defined in Section 14-103.05 of the Illinois Pension Code, who becomes permanently unable to perform the duties of such employment due to an injury received in the active performance of his duties as a State employee as a result of a willful act of violence by another employee of the State of Illinois, as so defined, committed during such other employee's course of employment and after January 1, 1988, shall be eligible for benefits pursuant to the provisions of this Section. For purposes of this Section, permanent disability is defined as a diagnosis or prognosis of an inability to return to current job duties by a physician licensed to practice medicine in all of its branches. (f) The compensation and other benefits provided to part-time employees covered by this Section shall be calculated based on the percentage of time the part-time employee was scheduled to work pursuant to his or her status as a part-time employee. (g) Pursuant to paragraphs (h) and (i) of Section 6 of Article VII of the Illinois Constitution, this Act specifically denies and limits the exercise by home rule units of any power which is inconsistent herewith, and all existing laws and ordinances which are inconsistent herewith are hereby superseded. This Act does not preempt the concurrent exercise by home rule units of powers consistent herewith. This Act does not apply to any home rule unit with a population of over 1,000,000. (h) In those cases where the injury to a State employee for which a benefit is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than the State employer, all of the rights and privileges, including the right to notice of suit brought against such other person and the right to commence or join in such suit, as given the employer, together with the conditions or obligations imposed under paragraph (b) of Section 5 of the Workers' Compensation Act, are also given and granted to

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the State, to the end that, with respect to State employees only, the State may be paid or reimbursed for the amount of benefit paid or to be paid by the State to the injured employee or his or her personal representative out of any judgment, settlement, or payment for such injury obtained by such injured employee or his or her personal representative from such other person by virtue of the injury.

* * * * * * * * * * * * One of the first determinations that needs to be made under the Act is whether a public employee qualifies for the benefits under this Act. The Act applies to a broad range of workers in the public sector, including the following: law enforcement personnel, correctional officers, firefighters, and perhaps employees who work in facilities as medical care providers to prisoners as well as detainees. In the case of correctional officers, employees that are responsible for working inside a detention facility and/or those medical care providers that provide medical care services to either prisoners or detainees, any injury that is alleged to qualify the employee for coverage under the Act must be linked to an assault or other harmful action committed by a resident or an inmate of the relevant jail, prison and/or detention center. Under the Act, those employees are known as “eligible employees.” One of the key factors for qualifying under the statute is that the employee suffers an injury while in the line of duty which causes the employee to be unable to perform his duties. In that case, this law requires that the employee continue to be paid by the employing public entity on the same basis as he was paid before the injury, with no deduction from his sick leave credits, compensatory time for overtime accumulations or vacation, or service credits in a public employee pension fund during the time that the employee is unable to perform his duties due to the result of the injury. The fact that the Act mandates that the eligible employee receive their full regular earnings for up to a year constitutes a more generous provision than the standard Illinois Workers’ Compensation provisions which usually offer only two-thirds of an employee's previous wage for temporary total disability. One of the issues that exists as a result of the language in the statute is what exactly it means to be paid on the same basis as he was paid before the injury. Given that the PEDA statute mandates that an employee must be paid by the employing public entity on the same basis as he was paid before the injury, it is not unreasonable that reading the PEDA statute in a vacuum would lead one to the conclusion that it would be acceptable to continue to pay an employee his normal net salary with all income taxes withheld. However, the IRS has issued opinions that mandate that no taxes be withheld from an employee's gross pay. Under Rev. Rul. 68-10 C.B. 50, the IRS issued a revenue ruling evaluating a California statute analogous to Illinois’ PEDA statute. The language of Section 4850 Subsection (a) of the California Labor Code is as follows:

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§ 4850. Leave of absence without loss of salary in lieu of disability payments or maintenance allowance payments (a) Whenever any person listed in subdivision (b) [a police officer was one of the occupations listed in (b)], who is employed on a regular, full-time basis, and is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his or her duties, he or she shall become entitled, regardless of his or her period of service with the city, county, or district, to a leave of absence while so disabled without loss of salary in lieu of temporary disability payments or maintenance allowance payments, if any, that would be payable under this chapter, for the period of the disability, but not exceeding one year, or until that earlier date as he or she is retired on permanent disability pension, and is actually receiving disability pension payments, or advanced disability pension payments pursuant to Section 4850.3.

The language of the statute above and Illinois’ PEDA statute are analogous. The Revenue Ruling held that Section 1/104(a)(1) of the Tax Code provides for the “exclusion from gross income of amounts received under workman’s compensation acts as compensation for personal injuries or sickness.” 1968 IRB LEXIS 476, at *3. (Emphasis added). The ruling goes on to find that Section 1.104-1(b) of the Income Tax Regulations states that “[S]ection 104(a)(1) of the [Tax] Code excludes from gross income amounts which are received by an individual under a workmen’s compensation act or under a statute in the nature of a workmen’s compensation act which provides compensation to the employees for personal injuries or sickness incurred in the course of employment.” Id. (Emphasis added). The California District Court of Appeals, Second District, addressed whether payments made under the California statute cited above are to be considered worker’s compensation benefits. In Hawthorne v. City of Beverly Hills, 111 Cal. App. 2d 723 (2d Dist. 1952), the court held that any salary paid to an employee in lieu of temporary disability payments under Section 4850 is not salary as such, but is compensation within the meaning of the workmen’s compensation act. The Hawthorne court also found that any amounts that were paid by the employer in excess of the normal disability benefits under the usual schedules for determining worker’s compensation were still to be considered benefit pay as opposed to salary. Hawthorne, 111 Cal. App. 2d at 728. Rev. Rul. 68-10 C.B. 50 adopted the above findings and further found that payments made under Section 4850 of the California Labor Code are made because of injuries or illness arising out of and in the course of employee’s duties. The fact that the amount received is equal to the employee’s salary does not prevent such payments from being compensation within the meaning of worker’s compensation. Significantly, the Revenue Ruling also found that since those payments are compensation within the meaning of the worker’s compensation act, they cannot be considered payments provided by a wage continuation plan. Thus, Section 105(d) of the Tax Code is not applicable.

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In conclusion, the IRS Tax Revenue Ruling held as follows:

The total payments made by a California County to an employee under section 4850 *** because of an occupational injury or illness arising out of and in the course of the employee’s duties are in the nature of and in lieu of workmen’s compensation, and such payments are excludable from the employee’s gross income under section 104(a)(1) of the Code. The payments are excludable even if they are in excess of the normal disability benefits payable under a workmen’s compensation act.

1968 IRB LEXIS 476, at *4. (Emphasis added). It does not appear as though there have been any Illinois state court and/or federal court cases evaluating Illinois’ PEDA statute in the same way as the Hawthorne court evaluated California’s Section 4850. However, the similarity of the language of the two statutes and what appears to be similar motivating public policy for both statutes yields the above analysis a fair indicator of how the courts and the IRS would rule if asked to do so specifically for Illinois’ PEDA. Based on the foregoing, it is reasonable for an employer to pay the eligible employee his or her gross salary throughout the time that he or she was off work pursuant to PEDA with no taxes withheld and with all benefits continued as set forth in the statute. In other words, the eligible employee should be paid his or her gross salary with NO tax withholding and reporting for any hours not worked during the one-year timeframe authorized by Illinois’ PEDA. On the other hand, the eligible employee should be paid his normal salary with normal tax withholding or reporting for any hours that were worked during the same time frame. Under the Act, the employer for the eligible employee should continue to pay its share of the eligible employee’s health care benefits and should facilitate the collection of the eligible employee’s share of those contributions and make payment of them as it did before the injury for the full 52-week period described in more detail below. In addition, the eligible employee's credit service time and the pension fund should be maintained as though he or she was working and his or her vacation and sick time should be preserved. Another issue under PEDA is how long should the PEDA benefit be maintained. While the language of the PEDA statute appears clear on its face regarding how long the PEDA benefit shall last, there are ambiguities and issues related thereto. Under the PEDA statute, the eligible employee shall not receive payments pursuant to PEDA any longer than one year from the date of the eligible employee's injury. 5 ILCS 345/1(b). In what appears to have been a case of first impression, the Illinois Appellate Court, Fourth District, faced the issue of deciding whether the “one year” period under PEDA referred to one calendar year, or one year of benefits. In Albee v. City of Bloomington, 365 Ill. App. 3d 526 (4th Dist. 2006), the court decided that “one year” under PEDA meant a full year of incapacity, so

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that where the employee’s disability is interrupted by intermittent returns to work, the employee is still entitled to one full year of PEDA payments and benefits related to that injury even if the disability extends beyond one straight calendar year. For example, if an eligible employee police officer is injured on January 1, off work for six months, then on July 1 ordered to return to work for a light-duty assignment the officer is capable of performing, which ends on December 31 of that same year, the officer is still entitled to an additional six months of payments under PEDA for any future disability resulting from the January 1 injury. The public policy announced by the court in support of their ruling was that an employee ought to be encouraged to come back to work if they are able. If it was a straight 365 days from the date of the injury with no qualification, then any return to work (prior to the 365 days expiring) would cut off the employee’s access to the balance of the year under the Act. Thus, the benefit would be eliminated even though there was disability related to the original injury. The court did not want to promote employees staying off work the full 365 days simply to secure the full benefit if they didn’t need it. They concluded that would be bad public policy and wanted to promote employees returning to work as soon as possible to the extent that they were able. The Albee court did not go into detail on how far they would go into breaking down the actual time the employee was incapable of performing his/her job-related duties. However, given the strong public policy set forth above, it is not inconsistent to allow the employee’s time to be broken down into hours worked as opposed to full days worked. Given that analysis, it is reasonable to calculate the hours that an eligible employee was not able to work in any given week as a result of that injury and pay that employee pursuant to PEDA for those hours until the eligible employee accumulated an aggregate of a year’s worth of off-work hours. Having said that, it would be much easier from an accounting and record-keeping standpoint if the employer and the employee were able to break that down into weeks or at the minimum, full days. There are additional related issues/complications that might arise under the statute depending on whether the employed is paid appropriately from the minute that he is paid under PEDA. For example, if an employer was to have paid an eligible employee for the full 52 weeks (with the 52 weeks defined as total hours of incapacity aggregating to a total of 52 weeks) with all normal withholdings taking place, the eligible employer would have underpaid the eligible employee. An eligible employee under PEDA would need to receive a check retroactively for any and all taxes that were withheld from his paychecks during the period of incapacity. In theory, the payment of those dollars would make the eligible employee whole with respect to what may be termed “back-pay” owed under the statute. However, it does not take into account the time value of money (i.e., the fact that the eligible employee was without those dollars going back to the date of the injury).

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Whether an employer needs to pay the eligible employee interest on those dollars is a complicated question. However, the failure to pay those dollars to an eligible employee may implicate a couple of other important statutes; namely: the Fair Labor Standards Act (FLSA); and, the Illinois Wage Payment and Collections Act (IWPCA), 820 ILCS 115/1 et seq. Whether the dollars owed to the eligible employee (i.e., the difference between the eligible employee’s gross salary and his net salary for hours off work) constitute “wages” and therefore, “back-pay” under the FSLA and the IWPCA is a real concern. Since those dollars are part of his gross salary, there is some possibility that the government or courts might consider them wages under both Acts. Both the FLSA and the IWPCA limit the parties’ ability to conclusively negotiate any deal to resolve outstanding back-pay issues; and, both statutes include penalty provisions and the right for the employee’s attorney to recover attorney’s fees. Another characterization of that same “back-pay” that should have been paid to the eligible employee, is that those monies are simply additional benefit payments (as payments made in lieu of and in the nature of a worker’s compensation benefits) and not wages. Under that characterization, those monies would not constitute wages under either the FLSA or the IWPCA. If that is the case, then those statutes would not be implicated. If the dollars are considered wages and therefore “back-pay” owed to the eligible employee, then there is a very real possibility that the eligible employee may be entitled to liquidated damages. The following is an overview of those statutes and how they operate if they were to be implicated. FSLA: Under Section 216(b) of the FLSA, an employee has a private right of action to recover overtime compensation and/or minimum wages that were not properly paid. Under the Act, an employee can recover attorney’s fees and costs in addition to the unpaid wages. The FLSA also allows the employee to recover an additional equal amount as liquidated damages. See 29 U.S.C. § 216(b); 29 C.F.R. 790.22. Generally, when an employer is found to have violated the FLSA, liquidated damages in an equal amount are awarded. Walton v. United Consumers Club, Inc., 786 F.2d 303, 310 (7th Cir. 1986) (“Double damages are the norm, single damages the exception, the burden on the employer.”) See also Tamas v. Family Video Movie Club, Inc., No. 11 C 1024, 2013 U.S. Dist. LEXIS 44313, at *24 (N.D. Ill. March 28, 2013) (citations omitted). However, a court can, in its discretion, decide against an award of liquidated damages if the court is satisfied that the employer’s act or omission was (1) in good faith; and (2) the employer had reasonable grounds for believing that its act or omission was not a violation of the FLSA. 29 U.S.C. § 260. The normal statute of limitations applicable to FLSA claims is two years. 29 U.S.C. § 255(a). The statute of limitations can be extended to three years upon a showing of willfulness. 29 U.S.C. § 255(a). For purposes of establishing the proper statute of limitations, an employer acts willfully where it “knows or shows reckless disregard for whether [its] actions are unlawful under the FLSA.” Matt v. ECO-Green International, 12 C 1021, 2013 U.S. Dist. LEXIS 14255, at *6 (E.D. Wisc. Jan. 31, 2013) (quoting Bankston v. State of Ill., 60 F.3d 1249, 1253 (7th Cir. 1995)). It is plaintiff’s

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burden to prove willfulness in order to establish that a three-year statute of limitations period applies. This is a closer question than whether liquidated damages will be awarded. The FLSA limits the ability to settle wage claims. As a general principle of law, disputes can be settled between two parties and this resolution can act as a bar to a later filed lawsuit. However, the FLSA is designed to prevent consenting adults from transacting about minimum wages and overtime pay. There is some dispute about whether private settlements can be entered into. However, in Illinois and in the Seventh Circuit, the law is clear, wholly private settlements are unenforceable. An employee cannot waive or release his rights to overtime pay or liquidated damages under Section 16(b) of the FLSA without Department of Labor supervision or court approval. 29 U.S.C. § 216(c); Walton v. United Consumers Club, Inc., 786 F.2d 303, 306 (7th Cir. 1986). The FLSA provides that the Secretary of Labor is authorized to supervise/approve of an agreement between an employer and employee to resolve claims for unpaid overtime compensation. 29 U.S.C. § 216(c); Walton, 687 F.2d at 306. Payment by the employer and cashing the check by the employee is not enough. To bar litigation, an agreement must be reached with the assent of both the employee and the Secretary of Labor. Walton, 687 F.2d at 306-307. Alternatively, the employer could seek to resolve the wage and liquidated damages issues with its employees/former employees without involving the Secretary of Labor. As outlined above, a private settlement will not bar an employee/former employee from hiring an attorney and bringing a claim under the FLSA. The FLSA does provide for attorney’s fees and costs. Even if there is a settlement and a release signed by the employee, a challenge could be brought seeking to set aside the release/agreement as unenforceable, challenging the amount of back wages and liquidated damages owed, and the employer’s recordkeeping. IWPCA: Under Section 4 of the Illinois Wage Payment and Collections Act (IWPCA):

All wages earned by any employee during a semi-monthly or bi-weekly pay period shall be paid to such employee not later than 13 days after the end of the pay period in which such wages were earned. All wages earned by any employee during a weekly pay period shall be paid not later than 7 days after the end of the weekly pay period in which the wages were earned. All wages paid on a daily basis shall be paid insofar as possible on the same day as the wages were earned, or not later in any event than 24 hours after the day on which the wages were earned. Wages of executive, administrative and professional employees, as defined in the Federal Fair Labor Standards Act of 1938, may be paid on or before 21 calendar days after the period during which they are earned.

820 ILCS 115/4. Given the foregoing, an employee not timely paid wages by his/her employer as required by the IWPCA can file a claim with the Department of Labor or a civil action. The employee can recover

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the amount of underpayments and “damages of 2% of the amount of any such underpayments for each month following the date of payment which such underpayments remain unpaid.” 820 ILCS 115/14(a). If a lawsuit is filed, the employee is also entitled to recover costs and reasonable attorney’s fees. Like the FLSA, releases obtained from current and former employees regarding alleged violations of the Illinois Wage Payment and Collection Act are void as a matter of law and unenforceable. Lewis v. Giordano’s Enterprises, Inc., 397 Ill. App. 3d 581 (1st Dist. 2009). The PEDA statute explicitly excludes any employees of home rule units with a population of over one million in the State of Illinois. This would obviously exclude any police officers, firefighters or other eligible employees employed by the City of Chicago. II. ILLINOIS PUBLIC SAFETY EMPLOYEE BENEFITS ACT (PSEBA)

The Public Safety Employee Benefits Act can be found at 820 ILCS 320 et seq. That statute states as follows:

(820 ILCS 320/1) Sec. 1. Short title. This Act may be cited as the Public Safety Employee Benefits Act. (Source: P.A. 90-535, eff. 11-14-97.) (820 ILCS 320/3) Sec. 3. Definition. For the purposes of this Act, the term "firefighter" includes, without limitation, a licensed emergency medical technician (EMT) who is a sworn member of a public fire department. (Source: P.A. 93-569, eff. 8-20-03.) (820 ILCS 320/5) Sec. 5. Declaration of State interest. The General Assembly determines and declares that the provisions of this Act fulfill an important State interest. (Source: P.A. 90-535, eff. 11-14-97.) (820 ILCS 320/10) Sec. 10. Required health coverage benefits. (a) An employer who employs a full-time law enforcement, correctional or correctional probation officer, or firefighter, who, on or after the effective date of this Act suffers a catastrophic injury or is killed in the line of duty shall pay the entire premium of the employer's health insurance plan for the injured employee, the injured employee's spouse, and for each dependent child of the injured employee until the child reaches the age of majority or until the end of the calendar year in which the child reaches the age of 25 if the child continues to be

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dependent for support or the child is a full-time or part-time student and is dependent for support. The term "health insurance plan" does not include supplemental benefits that are not part of the basic group health insurance plan. If the injured employee subsequently dies, the employer shall continue to pay the entire health insurance premium for the surviving spouse until remarried and for the dependent children under the conditions established in this Section. However: (1) Health insurance benefits payable from any other source shall reduce benefits payable under this Section. (2) It is unlawful for a person to willfully and knowingly make, or cause to be made, or to assist, conspire with, or urge another to make, or cause to be made, any false, fraudulent, or misleading oral or written statement to obtain health insurance coverage as provided under this Section. A violation of this item is a Class A misdemeanor. (3) Upon conviction for a violation described in item (2), a law enforcement, correctional or correctional probation officer, or other beneficiary who receives or seeks to receive health insurance benefits under this Section shall forfeit the right to receive health insurance benefits and shall reimburse the employer for all benefits paid due to the fraud or other prohibited activity. For purposes of this item, "conviction" means a determination of guilt that is the result of a plea or trial, regardless of whether adjudication is withheld. (b) In order for the law enforcement, correctional or correctional probation officer, firefighter, spouse, or dependent children to be eligible for insurance coverage under this Act, the injury or death must have occurred as the result of the officer's response to fresh pursuit, the officer or firefighter's response to what is reasonably believed to be an emergency, an unlawful act perpetrated by another, or during the investigation of a criminal act. Nothing in this Section shall be construed to limit health insurance coverage or pension benefits for which the officer, firefighter, spouse, or dependent children may otherwise be eligible. (Source: P.A. 90-535, eff. 11-14-97.) (820 ILCS 320/15) Sec. 15. Required educational benefits. If a firefighter, law enforcement, or correctional or correctional probation officer is accidentally or unlawfully and intentionally killed as specified in subsection (b) of Section 10 on or after July 1, 1980, the State shall waive certain educational expenses which children of the deceased incur while obtaining a vocational-technical certificate or an undergraduate education at a State supported institution. The amount waived by the State shall be an amount equal to the cost of tuition and matriculation and registration fees for a total of 120 credit hours. The child may attend a State vocational-technical school, a public community college, or a State university. The child may attend any or all of the institutions specified in this Section, on either a

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full-time or part-time basis. The benefits provided under this Section shall continue to the child until the child's 25th birthday. (1) Upon failure of any child benefited by the provisions of this Section to comply with the ordinary and minimum requirements of the institution attended, both as to discipline and scholarship, the benefits shall be withdrawn as to the child and no further moneys may be expended for the child's benefits so long as the failure or delinquency continues. (2) Only a student in good standing in his or her respective institution may receive the benefits under this Section. (3) A child receiving benefits under this Section must be enrolled according to the customary rules and requirements of the institution attended. (Source: P.A. 92-651, eff. 7-11-02.) (820 ILCS 320/17) Sec. 17. Reporting forms. (a) A person who qualified for benefits under subsections (a) and (b) of Section 10 of this Act (hereinafter referred to as "PSEBA recipient") shall be required to file a form with his or her employer as prescribed in this Section. The Commission on Government Forecasting and Accountability (COGFA) shall use the form created in this Act and prescribe the content of the report in cooperation with one statewide labor organization representing police, one statewide law enforcement organization, one statewide labor organization representing firefighters employed by at least 100 municipalities in this State that is affiliated with the Illinois State Federation of Labor, one statewide labor organization representing correctional officers and parole agents that is affiliated with the Illinois State Federation of Labor, one statewide organization representing municipalities, and one regional organization representing municipalities. COGFA may accept comment from any source, but shall not be required to solicit public comment. Within 60 days after the effective date of this amendatory Act of the 98th General Assembly, COGFA shall remit a copy of the form contained in this subsection to all employers subject to this Act and shall make a copy available on its website. "PSEBA RECIPIENT REPORTING FORM: Under Section 17 of the Public Safety Employee Benefits Act (820 ILCS 320/17), the Commission on Government Forecasting and Accountability (COGFA) is charged with creating and submitting a report to the Governor and the General Assembly setting forth information regarding recipients and benefits payable under the Public Safety Employee Benefits Act (Act). The Act requires employers providing PSEBA benefits to distribute this form to any former peace officer, firefighter, or correctional officer currently in receipt of PSEBA benefits.

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The responses to the questions below will be used by COGFA to compile information regarding the PSEBA benefit for its report. The Act prohibits the release of any personal information concerning the PSEBA recipient and exempts the reported information from the requirements of the Freedom of Information Act (FOIA). The Act requires the PSEBA recipient to complete this form and submit it to the employer providing PSEBA benefits within 60 days of receipt. If the PSEBA recipient fails to submit this form within 60 days of receipt, the employer is required to notify the PSEBA recipient of non-compliance and provide an additional 30 days to submit the required form. Failure to submit the form in a timely manner will result in the PSEBA recipient incurring responsibility for reimbursing the employer for premiums paid during the period the form is due and not filed. (1) PSEBA recipient's name: (2) PSEBA recipient's date of birth: (3) Name of the employer providing PSEBA benefits: (4) Date the PSEBA benefit first became payable: (5) What was the medical diagnosis of the injury that qualified you for the PSEBA benefit? (6) Are you currently employed with compensation? (7) If so, what is the name(s) of your current employer(s)? (8)Are you or your spouse enrolled in a health insurance plan provided by your current employer or another source? (9) Have you or your spouse been offered or provided access to health insurance from your current employer(s)? If you answered yes to question 8 or 9, please provide the name of the employer, the name of the insurance provider(s), and a general description of the type(s) of insurance offered (HMO, PPO, HSA, etc.): (10) Are you or your spouse enrolled in a health insurance plan provided by a current employer of your spouse? (11) Have you or your spouse been offered or provided access to health insurance provided by a current employer of your spouse? If you answered yes to question 10 or 11, please provide the name of the employer, the name of the insurance provider, and a general description of the type of insurance offered (HMO, PPO, HSA, etc.) by an employer of your spouse:" COGFA shall notify an employer of its obligation to notify any PSEBA recipient receiving benefits under this Act of that recipient's obligation to file a report under this Section. A PSEBA recipient receiving benefits under this Act must complete and return this form to the employer within 60 days of receipt of such form. Any PSEBA recipient who has been given notice as provided under this Section and who fails to timely file a report under this Section within 60 days after receipt of this form shall be notified by the employer that he or she has 30

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days to submit the report or risk incurring the cost of his or her benefits provided under this Act. An employer may seek reimbursement for premium payments for a PSEBA recipient who fails to file this report with the employer 30 days after receiving this notice. The PSEBA recipient is responsible for reimbursing the employer for premiums paid during the period the report is due and not filed. Employers shall return this form to COGFA within 30 days after receiving the form from the PSEBA recipient. Any information collected by the employer under this Section shall be exempt from the requirements of the Freedom of Information Act except for data collected in the aggregate that does not reveal any personal information concerning the PSEBA recipient. By July 1 of every even-numbered year, beginning in 2016, employers subject to this Act must send the form contained in this subsection to all PSEBA recipients eligible for benefits under this Act. The PSEBA recipient must complete and return this form by September 1 of that year. Any PSEBA recipient who has been given notice as provided under this Section and who fails to timely file a completed form under this Section within 60 days after receipt of this form shall be notified by the employer that he or she has 30 days to submit the form or risk incurring the costs of his or her benefits provided under this Act. The PSEBA recipient is responsible for reimbursing the employer for premiums paid during the period the report is due and not filed. The employer shall resume premium payments upon receipt of the completed form. Employers shall return this form to COGFA within 30 days after receiving the form from the PSEBA recipient. (b) An employer subject to this Act shall complete and file the form contained in this subsection. "EMPLOYER SUBJECT TO PSEBA REPORTING FORM: Under Section 17 of the Public Safety Employee Benefits Act (820 ILCS 320/17), the Commission on Government Forecasting and Accountability (COGFA) is charged with creating and submitting a report to the Governor and General Assembly setting forth information regarding recipients and benefits payable under the Public Safety Employee Benefits Act (Act). The responses to the questions below will be used by COGFA to compile information regarding the PSEBA benefit for its report. The Act requires all employers subject to the PSEBA Act to submit the following information within 120 days after receipt of this form. (1) Name of the employer: (2) The number of PSEBA benefit applications filed under the Act during the reporting period provided in the aggregate and listed individually by name of applicant and date of application: (3) The number of PSEBA benefits and names of PSEBA recipients receiving benefits awarded under the Act during the reporting period provided in the aggregate and listed individually by name of applicant and date of application:

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(4) The cost of the health insurance premiums paid due to PSEBA benefits awarded under the Act during the reporting period provided in the aggregate and listed individually by name of PSEBA recipient: (5) The number of PSEBA benefit applications filed under the Act since the inception of the Act provided in the aggregate and listed individually by name of applicant and date of application: (6) The number of PSEBA benefits awarded under the Act since the inception of the Act provided in the aggregate and listed individually by name of applicant and date of application: (7) The cost of health insurance premiums paid due to PSEBA benefits awarded under the Act since the inception of the Act provided in the aggregate and listed individually by name of PSEBA recipient: (8) The current annual cost of health insurance premiums paid for PSEBA benefits awarded under the Act provided in the aggregate and listed individually by name of PSEBA recipient: (9) The annual cost of health insurance premiums paid for PSEBA benefits awarded under the Act listed by year since the inception of the Act provided in annual aggregate amounts and listed individually by name of PSEBA recipient: (10) A description of health insurance benefit levels currently provided by the employer to the PSEBA recipient: (11) The total cost of the monthly health insurance premium currently provided to the PSEBA recipient: (12) The other costs of the health insurance benefit currently provided to the PSEBA recipient including, but not limited to: (i) the co-pay requirements of the health insurance policy provided to the PSEBA recipient; (ii) the out-of-pocket deductibles of the health insurance policy provided to the PSEBA recipient; (iii) any pharmaceutical benefits and co-pays provided in the insurance policy; and (iv) any policy limits of the health insurance policy provided to the PSEBA recipient." An employer covered under this Act shall file copies of the PSEBA Recipient Reporting Form and the Employer Subject to the PSEBA Act Reporting Form with COGFA within 120 days after receipt of the Employer Subject to the PSEBA Act Reporting Form. The first form filed with COGFA under this Section shall contain all information required by this Section. All forms filed by the employer thereafter shall set forth the required information for the 24-month period ending on June 30 preceding the deadline date for filing the report. Whenever possible, communication between COGFA and employers as required by this Act shall be through electronic means.

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(c) For the purpose of creating the report required under subsection (d), upon receipt of each PSEBA Benefit Recipient Form, or as soon as reasonably practicable, COGFA shall make a determination of whether the PSEBA benefit recipient or the PSEBA benefit recipient's spouse meets one of the following criteria: (1) the PSEBA benefit recipient or the PSEBA benefit recipient's spouse is receiving health insurance from a current employer, a current employer of his or her spouse, or another source; (2) the PSEBA benefit recipient or the PSEBA benefit recipient's spouse has been offered or provided access to health insurance from a current employer or employers. If one or both of the criteria are met, COGFA shall make the following determinations of the associated costs and benefit levels of health insurance provided or offered to the PSEBA benefit recipient or the PSEBA benefit recipient's spouse: (A) a description of health insurance benefit levels offered to or received by the PSEBA benefit recipient or the PSEBA benefit recipient's spouse from a current employer or a current employer of the PSEBA benefit recipient's spouse; (B) the monthly premium cost of health insurance benefits offered to or received by the PSEBA benefit recipient or the PSEBA benefit recipient's spouse from a current employer or a current employer of the PSEBA benefit recipient's spouse including, but not limited to: (i) the total monthly cost of the health insurance premium; (ii) the monthly amount of the health insurance premium to be paid by the employer; (iii) the monthly amount of the health insurance premium to be paid by the PSEBA benefit recipient or the PSEBA benefit recipient's spouse; (iv) the co-pay requirements of the health insurance policy; (v) the out-of-pocket deductibles of the health insurance policy; (vi) any pharmaceutical benefits and co-pays provided in the insurance policy; (vii) any policy limits of the health insurance policy. COGFA shall summarize the related costs and benefit levels of health insurance provided or available to the PSEBA benefit recipient or the PSEBA benefit recipient's spouse and contrast the results to the cost and benefit levels of health insurance currently provided by the employer subject to this Act. This information shall be included in the report required in subsection (d). (d) By June 1, 2014, and by January 1 of every odd-numbered year thereafter beginning in 2017, COGFA shall submit a report to the Governor and the General Assembly setting forth the information received under subsections

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(a) and (b). The report shall aggregate data in such a way as to not reveal the identity of any single beneficiary. The requirement for reporting to the General Assembly shall be satisfied by filing copies of the report with the Speaker, Minority Leader, and Clerk of the House of Representatives, the President, Minority Leader, and Secretary of the Senate, the Legislative Research Unit as required under Section 3.1 of the General Assembly Organization Act, and the State Government Report Distribution Center for the General Assembly as required under paragraph (t) of Section 7 of the State Library Act. COGFA shall make this report available electronically on a publicly accessible website. (Source: P.A. 98-561, eff. 8-27-13; 99-239, eff. 8-3-15.) (820 ILCS 320/20) Sec. 20. Home rule. An employer, including a home rule unit, that employs a full-time law enforcement, correctional or correctional probation officer, or firefighter may not provide benefits to persons covered under this Act in a manner inconsistent with the requirements of this Act. This Act is a limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise of powers and functions exercised by the State. (Source: P.A. 90-535, eff. 11-14-97.) (820 ILCS 320/95) Sec. 95. (Amendatory provisions; text omitted). (Source: P.A. 90-535, eff. 11-14-97; text omitted.) (820 ILCS 320/99) Sec. 99. Effective date. This Act takes effect upon becoming law. (Source: P.A. 90-535, eff. 11-14-97.)

* * * * * * * * * * * * Under the Illinois Public Safety Employee Benefits Act (PSEBA), police officers, firefighters, EMTs, correctional or correctional probation officers who suffer a “catastrophic” injury in the line of duty are entitled to lifetime health insurance from their employer covering the injured employee and his or her family. These benefits are payable only if the catastrophic injury or death “occurred as the result of the [eligible employee’s] response to fresh pursuit, the officer or firefighter's response to what is reasonably believed to be an emergency, an unlawful act perpetrated by another, or during the investigation of a criminal act.” 820 ILCS 320/10(b) One might expect that PSEBA would not create significant exposure to municipalities, because truly catastrophic injuries to police officers and firefighters in the line of duty are relatively rare. That is, however, only if the term “catastrophic” is defined using the common understanding of that word. Webster’s Dictionary defines catastrophic as “momentous,” involving “utter overthrow or ruin.”

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In Villarreal v. Village of Schaumburg, 325 Ill. App. 3d 1157 (1st Dist. 2001), the appellate court found that a “catastrophic” injury is one that is “financially ruinous.” In Villarreal, the injured police officer was unable to continue to work as a police officer due to his serious knee injury. While the injury prevented him from working as a police officer, it was not so bad as to prevent him from operating a small contracting company. Since the injury was not so catastrophic as to cause the employee to be completely unable to work and earn a salary, the Villarreal court ruled that he was not entitled to post-retirement health insurance under PSEBA. Two years later, the Illinois Supreme Court addressed the same issue. In Krohe v. City of Bloomington, 204 Ill. 2d 392 (2003), the Illinois Supreme Court took a different approach. The court found “catastrophic” as used in PSEBA to be ambiguous, and referred to legislative history to conclude that the General Assembly meant the term to mean that the police officer or firefighter is no longer able to perform the job of police officer or firefighter. Specifically, the Illinois Supreme Court held the term "catastrophic injury" in Section 10(a) of the Act is a term of art meaning an injury resulting in the award of a line-of-duty disability pension. Thus, after Krohe, even if the officer or firefighter could perform some job other than police or firefighting work, the officer still qualifies for the benefits under PSEBA. Just this year, in the Village of Vernon Hills v. Heelan, 2015 IL 118170, the Illinois Supreme Court revisited the court’s definition of “catastrophic injury” as used in Section 10(a) of PSEBA. As expressed above, the purpose of PSEBA is to provide employer-sponsored health insurance coverage for police and firefighters, and other eligible employees (and their families) who are either killed or catastrophically injured in the line of duty. The PSEBA statute does not contain a definition of “catastrophic injury,” so the courts have defined its meaning. As stated above, the Supreme Court visited the issue in Krohe v. City of Bloomington. As stated above, they held that the catastrophic injury was synonymous with an injury resulting in a line-of-duty disability under the Illinois Pension Code. However, in the Vernon Hills case, Heelan was awarded a line-of-duty disability pension related to an injury he suffered when he slipped on ice responding to an emergency call. He subsequently filed for PSEBA benefits, but the Village denied the benefits and filed a complaint seeking a declaratory judgment as to whether it was responsible for paying health insurance premiums. Although the Village acknowledged the holding in Krohe, it argued that the facts and circumstances of Heelan’s injury were distinguishable. Both the circuit court and the appellate court applied the holding of Krohe to Heelan’s injury and held that the Village was required to pay PSEBA benefits. The Illinois Supreme Court agreed, holding that a catastrophic injury under PSEBA is synonymous to a line-of-duty disability under the Pension Code. As a result, once Heelan was awarded a line-of-duty disability pension, he was entitled to PSEBA benefits. The court declined to depart from its decision in Krohe, and supported that decision by noting that the legislature could have, but has not, amended PSEBA after Krohe.

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Kevin J. Luther

- Partner

Kevin concentrates his practice in the areas of workers' compensation, employment and labor law, and employer liability. He supervises the Workers' Compensation and Employment & Labor Practices in the firm's Rockford and Chicago offices. He is the immediate past chair of the firm's statewide workers' compensation practice group. Kevin has represented numerous employers before the Illinois Human Rights Commission and has arbitrated hundreds of workers' compensation claims in many Illinois Industrial Commission venues. He has also tried numerous liability cases to jury verdict. In the area of labor law, Kevin has represented employers in collective bargaining agreement negotiation and preparation, union grievances and arbitrations, and NLRB proceedings. Kevin has authored a law review article on Illinois employment law and he is a co-author of "Illinois Workers' Compensation Law, 2015-2016 Edition," published by Thomson Reuters. The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois. Kevin also frequently speaks to industry and legal professional groups. Kevin has spent his entire legal career at Heyl Royster, beginning in 1984 in the Peoria office. He has practiced in the Rockford office since it opened in 1985. He is a member of the Winnebago County Bar Association in its Workers' Compensation and Trial sections. He is a member of the State Bar of Wisconsin, Illinois State Bar Association, and the American Bar Association, and has actively participated in sections relevant to his practice areas. He is a member of the Illinois Association of Defense Trial Counsel, formerly on the Board of Directors. Significant Cases Arlene Bernardoni v. Huntsman Chemical Corp.

- Applied Frye principle to Illinois workers' compensation in the defense of an occupational disease/exposure claim.

Richard Urbanski v. Deichmueller Construction Co. - Defined jurisdictional issue in workers' compensation review.

Publications "Illinois Workers' Compensation Law," 2015-

2016 ed. (Vol. 27, Illinois Practice Series), updated and published by Thomson Reuters (2009, 2012, 2013, 2014 and 2015)

"Survey of Illinois Law: Employment Law," Southern Illinois University Law Journal (2010)

"Economic Disability and Earning Capacity: A Historical Analysis for Wage Differential Claims," Illinois Defense Counsel Quarterly Monograph (2006)

"The Normal Daily Activity Exception to Workers' Compensation Claims," Illinois Defense Counsel Quarterly Monograph (2004)

"The Age Discrimination in Employment Act: A Seventh Circuit Perspective," Illinois Defense Counsel Quarterly Monograph (1998)

"The Impact of Federal Legislation on the Employer/Employee Relationship in Illinois," Illinois Defense Counsel Quarterly Monograph (1996)

"An Overview of Repetitive Trauma Claims," Illinois Bar Journal (1992)

Public Speaking “Workers’ Compensation Issues and Handling

for Management” Society for Human Resource Management (2015)

“OSHA Housecalls” Rock River Human Resource Professional Association (2015)

“Case Law Update” Winnebago County Bar Association (2015)

“Recent Appellate Court Decisions” Illinois Chamber Of Commerce 7th Annual Workers’ Compensation and Safety Conference (2014)

“HIPAA: Legal Background and Current State of the Law” City of Rockford Fire 911 Division (2014)

“Utilization Review and Section 8 Medical Bill Issues” Heyl Royster 29th Annual Claims Handling Seminar (2014)


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“Ethics of Social Media” Illinois Workers’ Compensation Commission Judicial Training, Chicago (2012)

“A Program on the Extent to Which Employers May Monitor/Restrict Employees” St. Mary’s Occupational Health & Wellness (2012)

“Workers’ Compensation, HIPAA and Employment Retaliatory Discharge Issues” St. Mary’s Occupational Health & Wellness (2011)

“Workers’ Comp Reform - What Does it Mean to You?” Williams Manny (2011)

“Workers’ Compensation Case Law Update” Winnebago County Bar Association (2011)



Named to the Illinois Super Lawyers list (2013-2015). The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation.

Professional Associations Winnebago County Bar Association Illinois State Bar Association State Bar of Wisconsin American Bar Association Illinois Association of Defense Trial Counsel

Court Admissions State Courts of Illinois and Wisconsin United States District Court, Northern and

Central Districts of Illinois United States Court of Appeals, Seventh Circuit

Education Juris Doctor, Washington University School of

Law, 1984 Bachelor of Arts-Economics and Mathematics

(summa cum laude), Blackburn University, 1981


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Bruce L. Bonds

- Partner

Bruce is a past Chair of our state-wide workers' compensation practice group and has spent his entire legal career with Heyl Royster beginning in 1982 in the Peoria office. He concentrates his expertise in the area of workers' compensation, third-party defense of employers, and employment law. He served as a technical advisor to the combined employers group in the negotiations which culminated in the 2005 revisions to the Illinois Workers' Compensation Act. More recently, Bruce worked as a technical advisor to the Illinois Chamber of Commerce as well as a number of Illinois legislators and State agencies in the process that resulted in the 2011 Amendments to the Illinois Workers' Compensation Act. Bruce was appointed by Mitch Weiss, Chairman of the Illinois Workers' Compensation Commission, to a committee of attorneys who reviewed and made recommendations for revisions to the Rules Governing Practice before the Workers' Compensation Commission. With extensive experience before the Illinois Workers' Compensation Commission, Bruce has defended employers in thousands of cases during the course of his career. As a result of his experience and success, his services are sought by self-insureds, insurance carriers, and TPAs. Bruce is an Adjunct Professor of law at the University of Illinois College of Law where he has taught Workers' Compensation Law to upper-level students since 1998. Bruce has co-authored a book with Kevin Luther of the firm's Rockford office entitled Illinois Workers' Compensation Law, 2015-2016 Edition, which was published by Thomson Reuters. The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois. Bruce is a frequent speaker on workers' compensation issues at bar association and industry-sponsored seminars. Bruce has served as Vice-Chair of the ABA Committee on Employment, Chair of the Illinois State Bar Association Section Council on Workers'

Compensation, and currently serves on the Employment Law Committee of the Chicagoland Chamber of Commerce and the Illinois Chamber of Commerce Workers' Compensation Committee. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin; another survey published by Chicago magazine named Bruce one of the "Best Lawyers in Illinois" for 2008. Publications "Illinois Workers' Compensation Law," 2015-


"Evaluating Permanent Partial Disability Under the 2011 Amendments of the Illinois Workers' Compensation Act," Heyl Royster Workers' Compensation Update (September 2012)

Public Speaking “Medical Marijuana: A Cloud of Uncertainty

Over Employers” Heyl Royster 30th Annual Claims Handling Seminar (2015)

“Use of Rated Age Annuities to Reduce Exposure in High Value Cases” 2015 Illinois Workers Compensation Forum - Chicago, Illinois (2015)

“Workers Compensation and the Government Employer: Where We Are, How We Got Here and What We Can Do About It” Illinois County Governing Conference (2015)

“Defending High Exposure and Catastrophic Workers’ Compensation Cases” 34th Annual SEAK National Workers’ Compensation and Occupational Medicine Conference (2014)

“2011 Amendments to the Illinois Workers’ Compensation Commission Act, Three Years Later” Central Illinois Human Resource Group (2014)

“Defending High Exposure and Catastrophic Workers’ Compensation Cases” Heyl Royster 29th Annual Claims Handling Seminar (2014)

“Proven Tactics for Successfully Defending High Exposure Workers’ Compensation Claims and


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Keeping Them From Spiraling Out Of Control” Illinois Workers’ Compensation Forum (2014)

“Workers’ Compensation Reform in Illinois – The Political and Legal Process: A Case Study for the Nation” DRI Annual Meeting (2013)

“The 2011 Amendments to the Illinois Workers’ Compensation Act” Eastern Illinois Human Resources/Safety Council in Urbana, Illinois (2012)

“AMA Guides – Seize the Moment to Reduce PPD Awards” Heyl Royster 27th Annual Claims Handling Seminar (2012)

“What Every Employer Should Know About the 2011 Amendments to the Illinois Workers’ Compensation Act” Kraft Foods, Inc., Champaign, Illinois (2012)

“Investigating the Suspicious Claim” Danville Area Dental Society (2012)

“2011 Amendments to the Illinois Workers’ Compensation Act: One Year Later” Risk Managers Society of Central Illinois, Bloomington, Illinois (2012)

“Use of AMA Ratings to Evaluate Permanent Partial Disability” Illinois Hospital Association/Illinois Compensation Trust, Naperville, Illinois (2012)

“Workers’ Compensation Reform in Illinois” Illinois Association of Defense Trial Counsel Webinar (2011)

“2005 Amendments to the Workers’ Compensation Act: Yesterday, Today and Tomorrow” Downstate Illinois Occupational Safety & Health Day (2010)

“The 2005 Amendments, 3 Years Later: The Respondent” SafeWorks 16th Annual Work Injury Conference (2008)

“Update on the Illinois Workers’ Compensation Act and Medical Fee Schedule” Illinois-Iowa Safety Council Annual Convention (2008)

“Recent Changes to the Illinois Workers’ Compensation Statutes” Illinois Manufacturers Association (2005)

Professional Recognition Martindale-Hubbell AV Preeminent Inducted as a Fellow in the College of Workers'

Compensation Lawyers Named as one of the "50 Most Influential

People In Workers' Compensation" by SEAK, Inc. in 2014.

Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers.


Professional Associations Illinois State Bar Association (Past Chair

Workers' Compensation Law Section Council) Champaign County Bar Association Illinois Association of Defense Trial Counsel

(Member, Workers' Compensation Committee) Defense Research Institute Illinois Self-Insurers Association




Law, 1982 Bachelor of Arts-Finance, University of Illinois,

1979


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John M. Redlingshafer

- Partner

John is chair of the firm's Governmental Practice and a member of the Business & Commercial Litigation Practice. In the area of governmental law, he represents numerous townships, villages, fire districts, road districts, and other governmental entities in a broad range of areas, including litigation, negotiations on intergovernmental agreements, compliance with statutory regulations, and consultation on infrastructure and construction projects (including project financing and debt management). He also works with governmental bodies and private developers/corporations in various aspects of zoning, annexation, and eminent domain law. In addition, John represents corporate clients in general tort defense and landlord/tenant issues. John also serves as an Administrative Adjudication Hearing Officer for municipal ordinance violations involving alleged violations of ordinances related to real and personal property. John is a frequent statewide speaker on government-related issues at both conventions and educational seminars. He was a contributing author and General Editor for a publication related to special district law for the Illinois Institute for Continuing Legal Education, and also wrote for the Institute on publications regarding the Illinois Open Meetings Act, Freedom of Information Act, and municipal contracts in the Institute's "Illinois Municipal Law" series. He has also been a regular, contributing author to the official publication of the Township Officials of Illinois, the Perspective, and the Illinois Township Attorneys Association newsletter. John is a past President of the Illinois Township Attorneys Association, and previously served as the Editor of its newsletter, the Talk of the Township. He has also served on the Board of Directors for the Peoria County Bar Association, and currently serves as a member of the Illinois State Bar Association's Local Government Law Section Council. In 2013, 2014 and 2015 he was named to the Illinois Super Lawyers Rising Stars list. Only 2.5 percent of Illinois lawyers who are 40 years old or younger, or who have been practicing 10 years or less, earn this designation. John currently serves on the Tazewell County Board, and was appointed to its Land Use and Health

Services Committees. He was also appointed to the East Peoria Fire and Police Commission by the Mayor, with consent of the East Peoria City Council. He has spent his entire legal career with Heyl Royster, beginning in 2004 in the Peoria office. Transactions Represents governmental entities and

developers in significant zoning changes. Represented township government in objecting

to proposed mineral extraction facility. Assisted agricultural cooperative in obtaining

special use (including related court trial) authorizing construction of grain storage facility.

Drafts resolutions and ordinances for governmental entities.

Represents landowners in eminent domain proceedings.

Negotiated resolution for agricultural cooperation in eminent domain cases brought by state agency.

Litigated "quick take" proceedings on behalf of private corporations contesting eminent domain offers.

Represents governmental entities in property purchases and construction projects.

Assisted numerous townships and road districts in real estate contracts with cities, park districts, and other governments.

Negotiated agreement between fire protection district and private corporation for real estate to host new central station.

Publications "Contracts" chapter in Municipal Law: Contracts,

Litigation and Home Rule, Illinois Institute for Continuing Legal Education (2015)

General Editor, and author of "General Considerations," chapter in Special Districts, Illinois Institute for Continuing Legal Education (2014)

"Warranties, Disclaimers, and Limitations" chapter in Contract Law, Illinois Institute for Continuing Legal Education (2013)

"Introduction to the Open Meetings Act," chapter in Illinois' Freedom of Information and


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Open Meetings Acts, Illinois Institute for Continuing Legal Education (2011, 2013)

"Frequently Asked Election Questions," with Jeffrey R. Jurgens, Township Officials of Illinois Perspective Magazine (2012)

"Can Public Bodies Claim Records Are 'Outside the Scope' of a FOIA Request?" – Local Government Law, ISBA Section on Local Government Law Newsletter (2012)

"Municipal Contracts" supplement chapter in Municipal Law, Illinois Institute for Continuing Legal Education (2012)

Public Speaking “General Assistance: Problems Township

Attorneys Are Asked to Deal with” Illinois Township Attorneys Association 12th Annual Educational Seminar (2014)


“Determining Control of Rights-of-Way” East Central and Northwest Highway Commissioners Seminars (2014)

“General Considerations for Township Supervisors” Township Officials of Illinois Conferences (2014)

“Illinois' Freedom of Information Act” Tazewell, Stark, Woodford & Peoria Counties Road Commissioner Training Seminar (2013)

“Considerations under Illinois’ Prevailing Wage Act” American Public Works Association (Illinois Chapter) Conference (2013)

“Practical Issues under Illinois’ Freedom of Information Act” Illinois Association of County Clerks and Recorders Conference (2013)



Named to the Illinois Super Lawyers Rising Stars list (2013-2015). The Super Lawyers Rising Stars selection process is based on peer recognition and professional achievement. Only 2.5 percent of Illinois lawyers under the age of 40 or who have been practicing 10 years or less earn this designation.

J. Bruce Scidmore Award, Township Attorney of the Year (2011)

Professional Associations Illinois Township Attorneys Association (Vice

President 2007-09; President 2009-2011) Illinois State Bar Association (Local Government

Law Section Council, 2011-Present) Peoria County Bar Association (Chair,

Communications & Technology Committee, 2009-2012)


Northern Districts of Illinois (Trial Bar)

Education Juris Doctor, DePaul University College of Law,

2004 Bachelor of Arts-International Relations (magna

cum laude), Bradley University, 2001

Learn more about our speakers at www.heylroyster.comLearn more about our speakers at www.heylroyster.comLearn more about our speakers at www.heylroyster.com

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Chrissie L. Peterson

- Of Counsel

Chrissie's practice is focused on government law, representing municipalities and other public entities in a broad range of issues, including administrative and regulatory law, the operation and governance of critical services, infrastructure construction and financing, council procedures, tax increment financing and economic development. Before joining Heyl Royster, Chrissie served as the City Attorney for Canton, Illinois for seven years where she managed all legal aspects of a municipal corporation. While at the City of Canton, Chrissie managed all of the municipal ordinance prosecutions, including code enforcement and demolition, was responsible for giving guidance on the Freedom of Information and Open Meetings Acts to all City departments, committees and subcommittees and drafted or structured construction contracts, franchise agreements and utility infrastructure contracts. She was responsible for drafting resolutions, ordinances and policy updates, collaborating with various City departments, as necessary. Chrissie also was responsible for managing the legal aspects of economic development, including real estate transactions, grant applications and agreements, tax increment finance agreements, utility extension agreements and development agreements. Chrissie handled matters before various state and federal administrative agencies on the City's behalf, including the Illinois Commerce Commission, the Illinois Human Rights Commission and the Equal Employment Opportunity Commission. Chrissie also practices in the environmental field and has experience negotiating Highway Authority Agreements and has defended claims before the Illinois Environmental Protection Agency. She has been successful negotiating Compliance Commitment Agreements and obtaining No Further Remediation letters on her client's behalf. She has worked with the Illinois and United States E.P.A. on multiple aspects of Brownfield redevelopment. Most notably, Chrissie worked to help Canton ready a Brownfield site for the location of a multi-national medical manufacturing facility that opened in 2009 and a high-tech polymer facility that opened in 2010.

Her experience with the City of Canton has given Chrissie a comprehensive approach to municipal law. Chrissie joined Heyl Royster in 2013. She began her legal career in 2003 with an insurance defense firm in Springfield, Illinois where she concentrated in worker's compensation and civil litigation. Significant Cases City of Cuba v. City of Canton, 2011 IL App (3d)

110066-U - Successfully defended a challenge by the Plaintiff municipality who sought to declare a water purchase agreement between the parties to be a buyer's option rather than a requirements contract. The appellate court agreed with the defendant's position that the plain language of the contract was clear and required the City of Cuba to purchase all of its water from the City of Canton for the duration of the Contract. The decision effectively guaranteed that the plaintiff would purchase all of its potable water from the City of Canton until 2047.

City of Canton v. Village of Banner, 9th Judicial Circuit, 2007 - Successfully obtained an injunction against the Village of Banner to prevent the defendant from arbitrarily imposing seasonal weight limits on the roadway. The injunction allowed the City of Canton and its contractors to access construction site property along the Illinois River and proceed with a multi-million dollar collector well project.

Transactions Administrative Adjudication Hearing Officer for

Municipal Ordinance Violations Public Speaking “Construction Contracts in Township

Government” Township Officials of Illinois (2014)



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“Prevailing Wage and House Bill #924” American Public Works Association, Illinois Chapter Conference (2014)


“Bonds and Insurance in Public Construction Contracts” Lorman Public Contracts and Procurement, East Peoria and Springfield (2013)

“Synthetic Drug Ordinances” Town Hall Meeting, Canton, Illinois (2013)

“Perception vs. Reality: Economic Development of Brownfields” Brownfield Workshop, Pekin, Illinois (2011)

Professional Associations American Bar Association Illinois State Bar Association (Local Government

Law Section Council, 2015-) Peoria County Bar Association


Illinois Education Juris Doctor, Southern Illinois University, 2003 Bachelor of Arts-Political Science and

Sociology, Knox College, 1998


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Brian M. Smith

- Associate

Brian concentrates his practice in the areas of civil rights, employment law, education, commercial litigation, professional liability and trucking/motor carrier litigation. Much of his practice entails defending government and law enforcement officials and medical professionals in cases alleging violations of constitutional rights. Brian also has experience defending employers, including educational institutions, in federal and state courts, and in administrative proceedings. He also defends clients in tort litigation, including cases arising from automobile and trucking accidents. Brian also represents businesses in commercial litigation. Brian has extensive motion practice experience in both state and federal courts and has presented numerous successful motions to dismiss and motions for summary judgment. Brian has been a guest presenter at the University of Illinois College of Law's Trial Advocacy class. Prior to law school, Brian worked for five years in campus ministry, where his duties included management of staff and volunteers. Brian began his career with Heyl Royster by clerking in the firm's Urbana office. Following graduation from law school in 2007, Brian joined the firm in the Urbana office as an associate. During law school, he was a teaching assistant at the University of Illinois College of Law and a member of the University of Illinois Law Review. Significant Cases Topflight Grain Coop. v. RJW Williams Farms,

Inc. - We prevailed at trial on behalf of a local grain company. The grain company sought to compel a farmer to arbitrate a contract for the sale and delivery of corn. The farmer disputed the existence of the contract. The court concluded that a valid contract, which included a written arbitration provision, existed and compelled the farmer to arbitrate the dispute.

United States Securities and Exchange Commission v. Roth, et. al - Acting as one of the attorneys for the federal court appointed Receiver in a case arising from a $16.5 million dollar securities fraud case.

U.S. v. Zabka, et. al - Acting as attorney for the federal court appointed Receiver in a federal tax case.

Bond v. Atkinson, et. al - We represented law enforcement officials in a civil rights lawsuit where plaintiff contended that the defendants violated her constitutional rights under the Fourteenth Amendment by treating requests from victims of domestic violence with less priority than other crimes, and failing to remove guns from her home without a court order. The federal claims were dismissed.

Publications "Appeal Bonds and Stays of Judgment" chapter

in Civil Appeals (Illinois): State and Federal 2015, Illinois Institute for Continuing Legal Education (2015)

"Seventh Circuit Issues Significant Opinions Regarding Malicious Prosecution and Qualified Immunity," Illinois Defense Counsel Quarterly (2015)

"Does It Relate back? Substituting Individuals for Fictitious Defendants after the Statute of Limitations Has Expired," Illinois Defense Counsel Quarterly (2014)


Public Speaking “Investigations”

How to Protect Your Company/Minimize Risks in the Workplace Heyl Royster Seminar (2014)


“Medical Cannabis & Concealed Carry” Springfield Chamber of Commerce (2015)




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Named to the Illinois Super Lawyers Rising Stars list (2012-2015). The Super Lawyers Rising Stars selection process is based on peer recognition and professional achievement. Only 2.5 percent of Illinois lawyers under the age of 40 or who have been practicing 10 years or less earn this designation.

Professional Associations National Association of College and University

Attorneys Illinois Association of Defense Trial Counsel Illinois State Bar Association Champaign County Bar Association Defense Research Institute


Southern Districts of Illinois United States Court of Appeals, Seventh Circuit

Education Juris Doctor (summa cum laude), Order of the

Coif, University of Illinois College of Law, 2007 Bachelor of Arts-Political Science and

Portuguese, University of Illinois, 1999


F-30

Keith E. Fruehling

- Partner

Keith Fruehling is a partner in our growing Urbana office. He is a highly successful litigator in many civil practice areas, including the defense of complex civil rights, medical malpractice, employment, construction, product liability and toxic tort/asbestos claims in federal and state courts. He has taught, lectured and published on federal and state civil practice issues.

Keith represents Fortune 500 companies, universities, sheriffs and municipal law enforcement officers, correctional officers, state and local governmental units, doctors, attorneys, veterinarians, real estate brokers/agents and other professionals, insurers and local businesses. He managed the trial preparation of large groups of asbestos cases set for trial in Madison County, Illinois in which he defended product manufacturers, fiber suppliers, equipment manufacturers, contractors and premises owners. Over his 20-year career, Keith has defended many cases in which damages were claimed in the millions of dollars and tried a number of cases to verdict. He has defended multiple, multi-million dollar cases to verdict in trials spanning up to eight weeks, including helping to secure a not-guilty verdict for a corporate client in an aviation wrongful death case.

He currently serves on the Illinois State Bar Association's Board of Governors (ISBA), is the immediate past chair of the ISBA's Task Force on the Unauthorized Practice of Law and has recently been appointed by the President of the Illinois State Bar Association (ISBA) to the Future of the Courts Special Committee to coordinate the ISBA's efforts to identify and publicize threats to fair and impartial courts from lack of funding and education, and to consider measures to address this problem. Keith is the published author of several articles for Heyl Royster's Governmental Newsletter as well as the Defense Research Institute and Illinois Institute for Continuing Legal Education. He routinely presents at conferences and seminars. His outstanding reputation for legal ability, professional ethics, client success and dedication to the profession has been recognized by peer review and is recognized by the Martindale-Hubbell "AV Preeminent" rating.

Prior to joining Heyl Royster in 1997, Keith served as a Senior Assistant State's Attorney with Champaign County from 1994-1997. He continues a strong

relationship with the State's Attorney's office and Champaign County Judiciary where he handles sensitive and complex cases as a Special Prosecutor appointed by the Champaign County Chief Judge. Over the past two decades, Keith has forged a leadership role in the legal profession serving as a delegate to the American Bar Association's (ABA) House of Delegates, member of the Board of Governors of the Illinois State Bar Association (ISBA) and ISBA's Assembly. He also served as the Chair of the Illinois Association of Defense Trial Counsel's (IDC) Trial Academy and on the Defense Research Institute's (DRI) Task Force on the Independence of the Judiciary. He is the past-President of the Champaign County Bar Association.

In 2002, Keith was recognized as a "Young Lawyer of the Year" by the ISBA. In 2007, Keith was named one of the "40 Illinois Attorneys Under Forty to Watch" by the Chicago Daily Law Bulletin Publishing Company. In 2013, he was selected as a Leading Lawyer in Illinois. The Leading Lawyers Network surveys lawyers, asking them which of their peers, indeed their competitors, they would recommend to a family member or friend if they could not take a case within their area of law or geographic region. To maintain the quality and credibility of the survey, lawyers cannot nominate themselves or anyone at their own law firm. Based upon survey nominations and approval by our Advisory Board, only the top 5% of lawyers are nominated and eligible for membership in the Leading Lawyers Network in the State of Illinois. Significant Cases Estate of Leon Rademacher v. Teledyne

Industries, Inc., Teledyne Continental Motor, et al. - Estate brought Wrongful Death and Survival Act case on behalf of successful farmer, young husband and father against aviation mechanic and other defendants alleging negligence and product liability caused plane operated by friend to crash land. Following a six-week trial, the jury returned a not-guilty verdict on behalf of our client.

A.F.S.C.M.E., et al. v. Governor Rod R. Blagojevich, et al. - Illinois Governor made the executive decision to close the Pontiac Prison – part of the Illinois Department of Corrections


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system. In response, The American Federation of State, County and Municipal Employees (A.F.S.C.M.E.) and others filed suit against the Governor and other defendants claiming the Governor did not have the right to take that action and sought a writ of mandamus Order commanding the Governor to reverse his decision and to continue operating the prison. A.F.S.C.M.E. also sought a temporary restraining Order (T.R.O.) preventing the Governor or the Director of the Illinois Department of Corrections from taking any action consistent with closing the prison until the court ruled on the plaintiff's request for the writ. We responded to the plaintiff's T.R.O. asking the court to deny the issuance of the T.R.O. and filed a Motion to Dismiss the plaintiff's Complaint for Writ of Mandamus. The court denied the request for the temporary restraining order. The court later dismissed the entire cause of action brought by plaintiffs.

Publications "Survey of Local Government Law Cases,"

Illinois Association of Defense Trial Counsel's 2013 Survey of Law (2014)

"Tort Immunity Act," Illinois Defense Counsel Quarterly Monograph (2014)

"Ethical Issues for Government Attorneys," Heyl Royster Governmental Newsletter (2014)

"Introduction to the Open Meetings Act," chapter in Illinois' Freedom of Information and Open Meetings Acts, Illinois Institute for Continuing Legal Education (2011, 2013)

Public Speaking “Medical Cannabis: A Primer For Employers and

Governmental Entities” Heyl Royster Lunch & Learn Seminar/Webinar (2014)

“Setting the Lineup: The Construction Contract and GL Insurance: 10 Things Every Attorney Should Know” IDC Spring Symposium (2014)


Professional Recognition Martindale-Hubbell AV Preeminent Selected as a Leading Lawyer in Illinois in the

areas of Personal Injury Defense Law: General; Products Liability Defense Law; and Professional Malpractice Law: Including

Legal/Technical/Financial. Only five percent of lawyers in the state are named as Leading Lawyers.

"Young Lawyer of the Year" by the Illinois State Bar Association in 2002 in recognition of significant dedication and contribution in the legal profession.

In 2007, the Chicago Daily Law Bulletin Publishing Company honored Keith by selecting him as one of "40 Illinois Attorneys Under Forty to Watch." This prestigious award recognizes exceptional lawyering skills, significant contributions to the legal profession and substantial involvement in local community.

Professional Associations Illinois State Bar Association (Board of

Governors 2013, 2002-2008; Chairman of the ISBA Task Force on the Unauthorized Practice of Law; Chair, Assembly Finance Committee; Advertising, Public Relations, Personnel and Scope and Correlation Committees; Former Board liaison to multiple Section Councils; Bar Leadership Conference Special Committee on selecting an electronic research provider; Member - Civil, Legislative and Health Care Law Sections)

Illinois Association of Defense Trial Counsel (Chairman of the Trial Academy Committee 2002-2007)

Defense Research Institute (recently served on the Judicial Task Force which drafted a report entitled "Without Fear or Fervor," a basic overview of the issues currently facing the judiciary and how to begin constructively addressing long term solutions)

American Bar Association (House of Delegates June 2000 - August 2007)

Champaign County Bar Association (President 2001-2002)

Court Admissions State Courts of Illinois United States District Court, Central, Northern

and Southern Districts of Illinois United States Court of Appeals, Seventh Circuit

Education Juris Doctor, The John Marshall Law School,

1993 Bachelor of Science-Finance, University of

Illinois, 1990


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TACTICS AND STRATEGIES TO REDUCE WC PAYOUT: HOW TO CONTROL MEDICAL TREATMENT AND RETURN TO WORK ISSUES

Presented and Prepared by: Kevin J. Luther

[email protected] Chicago, Illinois • 312.853.8700

Rockford, Illinois • 815.963.4454



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I. BASIC WORKERS’ COMPENSATION BENEFITS ................................................................................ G-4

A. Benefits Available ......................................................................................................................... G-4 1. Temporary Total Disability (TTD) ............................................................................. G-4 2. Medical Benefits ............................................................................................................ G-4 3. Permanent Partial Disability (PPD) .......................................................................... G-4 4. Vocational Rehabilitation ........................................................................................... G-4 5. Wage Differentials ........................................................................................................ G-4

II. EMPLOYER INITIAL RESPONSIBILITIES IN INVESTIGATION ........................................................ G-5 III. RED FLAGS – IMPORTANT SIGNS RAISING QUESTIONS REGARDING

LEGITIMACY OF CLAIM ............................................................................................................................. G-5

A. Red Flags Indicating That Accident May Be Fraudulent ................................................ G-5

1. Unwitnessed Accidents ............................................................................................... G-5 2. Ambiguous Claims with Respect to Date, Time, and Place ........................... G-5 3. Overly Specific Claims ................................................................................................. G-5 4. Accident Witnessed Only by Friends or Co-Claimants ................................... G-6 5. Inconsistencies Between the Initial Accident Description by the

Petitioner and Subsequently Obtained Information ....................................... G-6 6. Patterns of Claims ......................................................................................................... G-6 7. Weekend Warrior Accidents ..................................................................................... G-6 8. General Layoffs, Strikes, or Scheduled Termination of Employee .............. G-6 9. Type of Injury Inconsistent with the Nature of Employment ....................... G-6 10. Claims Filed by Disgruntled Employees................................................................ G-7 11. General Life Situations ................................................................................................ G-7 12. Concurrent Income ....................................................................................................... G-7 13. Family History ................................................................................................................. G-7

B. Red Flags Indicating That claimed Period of TTD May Be Fraudulent ..................... G-7 IV. IMPORTANCE AND VALUE OF PROMPT REPORTING ................................................................... G-8 V. RETURN TO WORK ISSUES ...................................................................................................................... G-9 VI. CONTROLLING MEDICAL TREATMENT ............................................................................................. G-10

A. Utilization Review Statute ....................................................................................................... G-10 B. Medical Bill Payment Liability ................................................................................................ G-11

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VII. UTILIZATION REVIEW AND SECTION 8 MEDICAL BILLS ISSUES ............................................. G-11

A. Utilization Review Statute ....................................................................................................... G-11

1. 820 ILCS 305/8.7 .......................................................................................................... G-11

B. How Does the Utilization Review Process Work ............................................................ G-16 C. Is a Utilization Review the Only Way to Challenge Reasonable Necessity and

Extent of Medical Treatment? ............................................................................................... G-17 D. Who Has the Burden of Proof ............................................................................................... G-17 E. Can an Employee Object to a Utilization Review Report ............................................ G-17 F. To UR or Not to UR .................................................................................................................. G-18 G. Does This Mean No More IMEs ............................................................................................ G-18

VIII. MEDICAL BILL PAYMENT LIABILITY .................................................................................................... G-19

A. 820 ILCS 305/8.2(d) Interest ................................................................................................... G-19 B. Department of Insurance Bulletin ........................................................................................ G-20 C. Medical Provider Lawsuits Against WC Insurance Carriers, TPAs,

and Employers ............................................................................................................................. G-21 IX. PERMANENT PARTIAL DISABILITY – FACTORS .............................................................................. G-21

A. 820 ILCS 305/8.1b. ..................................................................................................................... G-21


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I. BASIC WORKERS’ COMPENSATION BENEFITS

A. Benefits Available

1. Temporary Total Disability (TTD)

Section 8(b) of the Workers’ Compensation Act entitles the injured worker to receive two-thirds of his or her average weekly wage, tax-free, for as long as the temporary incapacity for work continues.

2. Medical Benefits

Section 8(a) of the Workers’ Compensation Act requires the employer to pay all medical bills associated with treatment for the work injury. The injured worker must prove the medical treatment to be causally related to the work injury. Currently under Illinois law, these bills are paid pursuant to a statutorily enacted medical fee schedule.

3. Permanent Partial Disability (PPD)

Sections 8(d)(2) and 8(e) of the Workers’ Compensation Act entitle the injured worker to compensation for serious and permanent injuries sustained as a result of the work accident. Virtually every compensable injury carries some permanency value before the Illinois Workers’ Compensation Commission. Injury values are based upon 60 percent of the injured worker’s average weekly wage, and a percentage of a loss which varies based upon the type of injury and the medical evidence.

4. Vocational Rehabilitation

Section 8(a) of the Workers’ Compensation Act entitles the injured worker, in certain situations, to vocational rehabilitation consisting of job searches, vocational retraining, and education.

5. Wage Differentials

Section 8(d)(1) of the Workers’ Compensation Act entitles the injured worker, in certain situations, to wage-differential payments. These awards are available when the petitioner is unable to return to his usual and customary line of employment. Wage differentials are based upon two-thirds of the difference between what the injured worker earned at the time of the injury and what the injured worker is currently able to earn. Wage-differential awards are available for life.

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II. EMPLOYER INITIAL RESPONSIBILITIES IN INVESTIGATION

1. Incident/accident report should be completed as well as signed and dated by claimant;

2. Obtain claimant’s signature on the medical authorization form; 3. Obtain Witness Statements where applicable; 4. Photos where applicable; 5. Complete the Illinois Form 45 – Employers’ First Report of Injury or Illness form; 6. Complete Supervisor’s Investigation Report form; 7. Provide the claims administrator with any information that you feel might be

pertinent to investigation into the claim.

III. RED FLAGS – IMPORTANT SIGNS RAISING QUESTIONS REGARDING LEGITIMACY OF CLAIM

A. Red Flags Indicating That Accident May Be Fraudulent

1. Unwitnessed Accidents

Unwitnessed accidents can be compensable in the State of Illinois. In unwitnessed accidents, one should always consider whether or not the accident could have occurred in the manner which is being claimed by the petitioner. For example, in one workers’ compensation claim filed in the State of Illinois, a claimant claimed that a brick fell on his head while he was sitting in a hallway on break. Investigation revealed there were no bricks missing in the walls which enclosed the stairway.

2. Ambiguous Claims with Respect to Date, Time, and Place

3. Overly Specific Claims

Claimants sometimes go overboard and provide too many specific details with respect to an accident. For example, some would consider it unusual for a claimant to be able to specifically identify the hour and minute when an accident took place. In one workers’ compensation claim filed in the State of Illinois, a certified nurse’s aide claimed that he injured his low back while transferring an obese patient in a particular room at a particular time on a specific date. It was determined subsequently, however, that the obese resident had died prior to the alleged accident date.

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4. Accident Witnessed Only by Friends or Co-Claimants

5. Inconsistencies Between the Initial Accident Description by the Petitioner and Subsequently Obtained Information

Some arbitrators believe that information given by the petitioner at the initial medical treatment or evaluation is more reliable than statements made later on in medical treatment or during the litigation process. The more inconsistencies with respect to history between the initial accident description and the statements made subsequently, the more questionable the claim may be.

6. Patterns of Claims

Sometimes there are patterns of claims which suddenly come up in one section or department of a company. For example, one employer in Illinois operated for 15 years and never had any carpal tunnel claims. Following unionization and meetings which featured petitioner workers’ compensation attorneys, the company suddenly experienced multiple workers’ compensation claims alleging bilateral carpal tunnel syndrome. A cross-reference should be made with each claimant in these situations to determine if they are seeing the same doctors, using the same attorneys, etc. If the employee is temporary, index checks will help identify claimants with multiple insurance claims against previous employers for possibly the same type of injury. Additionally, small “mom and pop” businesses should be scrutinized carefully because oftentimes family members will present claims with the full support of the employer in circumstances such as lack of group medical coverage.

7. Weekend Warrior Accidents

Monday morning injuries and Friday injuries not reported until Monday raise a question as to whether or not the injury is work related or occurred over the weekend.

8. General Layoffs, Strikes, or Scheduled Termination of Employee

Any claim filed prior to a general layoff, strike, or termination of the petitioner is suspect. Sometimes this is difficult to avoid in light of such laws as the Federal Plant Closing Act, which requires 60 days’ notice before an employee can be terminated. Additionally, injuries which occur immediately after a person begins employment raise questions, especially in situations where the employee is newly hired or where the employer has no control over the hiring (labor pools, unions, and day labor). Also, seasonal employment such as those involving construction, agriculture, and tourism industries are ripe for alleged work-related accidents occurring just prior to the end of the season. Any claims which are reported following termination of the employee are suspect.

9. Type of Injury Inconsistent with the Nature of Employment

Does the diagnosis or pathology result from the alleged trauma or repetitive work duty? This type of analysis quite often requires assistance from a medical expert/evaluator. However,

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common sense and general medical knowledge possessed by experienced claims handlers can identify this possible fraud situation.

10. Claims Filed by Disgruntled Employees

Alleged accidents often occur following disciplinary actions and warnings. Claims can follow passovers for promotions or following arguments with superiors or co-workers.

11. General Life Situations

For example, sometimes a claimant lives in a large, extended family with small children. Sometimes childcare can be a problem that may be a reason to stay off of work and fake an accident. Pregnancy or, for example, situations where a spouse or the employee suddenly obtains custody of children as a result of a divorce proceeding can coincide with workers’ compensation claims.

12. Concurrent Income

Although an employee can make more money while at work, as opposed to being off work from a temporary standpoint (benefits are only two-thirds of the average weekly wage), sometimes other financial concerns (such as other employment) make it cost-effective for a petitioner to be receiving TTD benefits.

13. Family History

Index checks of family members may be appropriate in certain circumstances. If a mother, father, brother, or sister has been successful in obtaining workers’ compensation benefits, this may easily be picked up by family members.

B. Red Flags Indicating That claimed Period of TTD May Be Fraudulent

The following are indicators of situations where the petitioner may be malingering for the sake of TTD benefits:

1. Variance between objective findings and subjective complaints; 2. Situations where a friend or family member has been enlisted to assist the

petitioner (when discussing the status of the matter with the employer, claims handler, picking up TTD benefits, etc.);

3. Unexplained income or lifestyle (possibly due to concurrent employment,

illegal drug sales, etc.); 4. The petitioner is never at home when telephoned;

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5. The petitioner coming to and from his house with great frequency at unscheduled times;

6. The petitioner is never available or rarely available to take a telephone

call, even if allegedly at home;

7. Activities that exceed medical restrictions. Neighborhood canvasses, activities checks, and surveillance can be beneficial;

8. Refusal of noninvasive treatment (such as functional capacity evaluation,

simple tests, etc.);

9. Refusal of medical management;

10. Refusal or reluctance to perform job searches; 11. Noncooperation with light duty.

IV. IMPORTANCE AND VALUE OF PROMPT REPORTING

Under all states’ Workers’ Compensation Laws, there is a defined period of time that all worker injury claims need to be reported to the employer. Employers also have a defined period of time to report injuries. From a claims investigation standpoint, the quicker a claim is reported the better, but do you know why? There are many reasons, and all of them benefit the employer as well as the injured employee.

1. The ability to obtain pertinent information in a timely manner may assist the employer in preventing an injury to another employee placed in a similar situation;

2. Allows for more timely communication with all pertinent parties; 3. Medical costs incorporate up to 55-60 cents of every workers’

compensation claim dollar spent, so it is important that we ensure claimants are receiving timely and quality medical care;

4. National statistics show less litigation with prompt reporting; 5. Earlier return to work allows claimant to focus on the positives of their

recovery versus the negative. It also reduces the employer’s TTD exposure as well as the overall workers’ compensation cost of the claim;

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By having the incident documented as soon as possible, employees protect themselves. When claims are reported late, these may raise red flags for a claim adjuster creating questions of compensability. This can delay payments and create additional time-consuming questions to both the employer and the employee. Every employer should have a specific, prompt reporting procedure that includes an investigation of the incident. If the policy is not followed, disciplinary action should be taken. Consistency in the application of your policy and disciplinary action is vital in order to avoid discrimination charges. This policy should be reviewed in detail with all employees during their orientation period and periodically thereafter. V. RETURN TO WORK ISSUES

As mentioned above, an injured worker has a right to receive temporary total disability benefits for the period of time during which they are incapacitated and unable to return to work following a work injury. Developing the necessary evidence to end this TTD benefit is often the most important issue in bringing a workers’ compensation case to conclusion. While there is often a legitimate period of time during which an injured worker cannot work following injury, it is also not uncommon for an injured worker to extend the period of TTD beyond necessary time frames. It is not unusual for an injured worker to obtain cooperation from their physician in authoring ongoing work restrictions. One of the most effective strategies for ending TTD and thus prompting closure of a workers’ compensation case is to return the injured worker to employment in a light-duty capacity. This involves assigning work which matches the physical restrictions placed upon the injured worker by his or her physician. It is no secret that returning an employee to work in less than full capacity is often disruptive and can create some hardship on the department head and other workers in the department. In the appropriate situation, however, light-duty work should always be considered. There are a number of advantages to light-duty work, including:

1. The offer of light-duty work which clearly matches undisputed restrictions is usually an ironclad defense to the continuation of paying TTD. The longer an injured worker is not working in any capacity and continues to sit home drawing TTD without any obligation to work, the more serious the case will become. Transitioning the injured worker back into the work force ends TTD, which is paramount to the conclusion of a workers’ compensation case;

2. When the injured worker is reporting to light duty, the employer has

regular contact with the employee and gains the ability to monitor ongoing progress. If the employee is motivated not to work, this can be

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monitored. If the employee is exaggerating ongoing disabilities, light-duty work allows the employer to observe this and take necessary action;

3. The availability of light duty motivates treating physicians to return

petitioners to work. If physicians are unaware of light duty, they often will issue a general off-work restriction. Even a noncooperative physician determines early in the case that light duty is a tool for the employer, and the availability of light duty usually prompts physicians to issue return to work prescriptions earlier than would otherwise be expected;

4. Returning to work is good for the injured employee. If the injured

employee is not attempting to exaggerate his or her claim, returning to light-duty work will facilitate a return to full duty much quicker than remaining completely off work;

5. If the injured worker is malingering and attempting to maintain off-work

status while being paid TTD, the offer of light duty might be rejected. If a petitioner rejects a legitimate offer of light-duty work, the Workers’ Compensation Commission will likely not require the ongoing payment of TTD benefits;

6. Light-duty programs are looked upon favorably by the Workers’

Compensation Commission. If an arbitrator who regularly hears an employer’s cases becomes aware of a legitimate light-duty program, the arbitrator tends to be more lenient with the employer on return to work issues.

When a petitioner is returned to light-duty work, there should be some effort to monitor the work and the petitioner’s progress towards full-duty capacity. If a petitioner is complaining about the ability to perform tasks which clearly match the restrictions prescribed by a physician, the failure to perform the prescribed duties should be noted and disciplined accordingly. It should always be understood that light-duty work is temporary. Usually, no commitment is made to provide light duty on a permanent basis. Regular updates from the physician are necessary during light duty with the expectation that restrictions will be gradually decreased leading promptly to full employment. If a physician is not acting reasonably relative to ongoing restrictions, independent medical evaluations can be scheduled to obtain other opinions with regard to a petitioner’s ability to work. VI. CONTROLLING MEDICAL TREATMENT

A. Utilization Review Statute

1. 820 ILCS 305/8.7;

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2. How does the utilization review work; 3. Is a utilization review the only way to challenge reasonable necessity and

extent of medical treatment; 4. Who has the burden of proof; 5. Can an employee object to utilization review report; 6. To UR or not to UR; 7. Does this mean no more IMEs;

B. Medical Bill Payment Liability

1. 820 ILCS 305/8.2(d) interest; 2. Department of Insurance bulletin; 3. Medical provider lawsuits against WC insurance carriers, TPAs, and

employers;

VII. UTILIZATION REVIEW AND SECTION 8 MEDICAL BILLS ISSUES

A. Utilization Review Statute

Section 8.7. Utilization review programs. 820 ILCS 305/8.7.

1. 820 ILCS 305/8.7

(a) As used in this Section: “Utilization review” means the evaluation of proposed or provided health care services to determine the appropriateness of both the level of health care services medically necessary and the quality of health care services provided to a patient, including evaluation of their efficiency, efficacy, and appropriateness of treatment, hospitalization, or office visits based on medically accepted standards. The evaluation must be accomplished by means of a system that identifies the utilization of health care services based on standards of care of nationally recognized peer review guidelines as well as nationally recognized treatment guidelines and evidence-based medicine based upon standards as provided in this Act. Utilization techniques may include prospective review, second opinions, concurrent review, discharge planning, peer review, independent medical

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examinations, and retrospective review (for purposes of this sentence, retrospective review shall be applicable to services rendered on or after July 20, 2005). Nothing in this section applies to prospective review of necessary first aid or emergency treatment;

(b) No person may conduct a utilization review program for workers’

compensation services in this State unless once every two years the person registers the utilization review program with the Department of Insurance and certifies compliance with the Workers’ Compensation Utilization Management standards or Health Utilization Management Standards of URAC sufficient to achieve URAC accreditation or submits evidence of accreditation by URAC for its Workers’ Compensation Utilization Management Standards or Health Utilization Management Standards. Nothing in this Act shall be construed to require an employer or insurer or its subcontractors to become URAC accredited;

(c) In addition, the Director of Insurance may certify alternative

utilization review standards of national accreditation organizations or entities in order for plans to comply with this section. Any alternative utilization review standards shall meet or exceed those standards required under subsection (b);

(d) This registration shall include submission of all of the following

information regarding utilization review program activities:

(1) The name, address, and telephone number of the utilization review programs

(2) The organization and governing structure of the utilization

review programs

(3) The number of lives for which utilization review is conducted by each utilization review program

(4) Hours of operation of each utilization review program

(5) Description of the grievance process for each utilization

review program

(6) Number of covered lives for which utilization review was conducted for the previous calendar year for each utilization review program

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(7) Written policies and procedures for protecting confidential

information according to applicable state and federal laws for each utilization review program

(e) A utilization review program shall have written procedures to

ensure that patient-specific information obtained during the process of utilization review will be:

(1) Kept confidential in accordance with applicable state and

federal laws; and

(2) Shared only with the employee, the employee’s designee, and the employee’s health care provider, and those who are authorized by law to receive the information. Summary data shall not be considered confidential if it does not provide information to allow identification of individual patients or health care providers

Only a health care professional may make determinations regarding the medical necessity of health care services during the course of utilization review.

When making retrospective reviews, utilization review programs shall base reviews solely on the medical information available to the attending physician or ordering provider at the time the health care services were provided.

(f) If the Department of Insurance finds that a utilization review

program is not in compliance with this section, the Department shall issue a corrective action plan and allow a reasonable amount of time for compliance with the plan. If the utilization review program does not come into compliance, the Department may issue a cease and desist order. Before issuing a cease and desist order under this section, the Department shall provide the utilization review program with a written notice of the reasons for the order and allow a reasonable amount of time to supply additional information demonstrating compliance with the requirements of this section and to request a hearing. The hearing notice shall be sent by certified mail, return receipt requested, and the hearing shall be conducted in accordance with the Illinois Administrative Procedure Act;

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(g) A utilization review program subject to a corrective action may continue to conduct business until a final decision has been issued by the Department;

(h) The Department of Insurance may by rule establish a registration

fee for each person conducting a utilization review program; (i) Upon receipt of written notice that the employer or the employer’s

agent or insurer wishes to invoke the utilization review process, the provider of medical, surgical, or hospital services shall submit to the utilization review, following accredited procedural guidelines;

(1) The provider shall make reasonable efforts to provide

timely and complete reports of clinical information needed to support a request for treatment. If the provider fails to make such reasonable efforts, the charges for the treatment or service may not be compensable nor collectible by the provider or claimant from the employer, the employer’s agent, or the employee. The reporting obligations of providers shall not be unreasonable or unduly burdensome;

(2) Written notice of utilization review decisions, including the

clinical rationale for certification or noncertification and references to applicable standards of care or evidence-based medical guidelines, shall be furnished to the provider and employee;

(3) An employer may only deny payment of or refuse to

authorize payment of medical services rendered or proposed to be rendered on the grounds that the extent and scope of medical treatment is excessive and unnecessary in compliance with an accredited utilization review program under this Section. (Emphasis added);

(4) When a payment for medical services has been denied or

not authorized by an employer or when authorization for medical services is denied pursuant to utilization review, the employee has the burden of proof to show by a preponderance of the evidence that a variance from the standards of care used by the person or entity performing the utilization review pursuant to subsection (a) is

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reasonably required to cure or relieve the effects of his or her injury;

(5) The medical professional responsible for review in the final

stage of utilization review or appeal must be available in this state for interview or deposition or must be available for deposition by telephone, video conference, or other remote electronic means. A medical professional who works or resides in this state or outside of this state may comply with this requirement by making himself or herself available for an interview or deposition in person or by making himself or herself available by telephone, video conference, or other remote electronic means. The remote interview or deposition shall be conducted in a fair, open, and cost-effective manner. The expense of interview and the deposition method shall be paid by the employer. The deponent shall be in the presence of the officer administering the oath and recording the deposition, unless otherwise agreed by the parties. Any exhibits or other demonstrative evidence to be presented to the deponent by any party at the deposition shall be provided to the officer administering the oath and all other parties within a reasonable period of time prior to the deposition. Nothing shall prohibit any party from being with the deponent during the deposition, at that party’s expense provided, however, that a party attending a deposition shall give written notice of that party’s intention to appear at the deposition to all other parties within a reasonable time prior to the deposition.

An admissible utilization review shall be considered by the Commission, along with all other evidence and in the same manner as all other evidence, and must be addressed along with all other evidence in the determination of the reasonableness and necessity of the medical bills or treatment. Nothing in this section shall be construed to diminish the rights of employees to reasonable and necessary medical treatment or employee choice of health care provider under Section 8(a) or the rights of employers to medical examinations under Section 12.

(j) When an employer denies payment of or refuses to authorize

payment of first aid, medical, surgical, or hospital services under Section 8(a) of this Act, if that denial or refusal to authorize complies with a utilization review program registered under this

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section and complies with all other requirements of this section, then there shall be a rebuttable presumption that the employer shall not be responsible for payment of additional compensation pursuant to Section 19(k) of this Act and if that denial or refusal to authorize does not comply with a utilization review program registered under this section and does not comply with all other requirements of this section, then that will be considered by the Commission, along with all other evidence and in the same manner as all other evidence, in the determination of whether the employer may be responsible for the payment of additional compensation pursuant to Section 19(k) of this Act.

The changes to this Section made by this amendatory Act of the 97th General Assembly apply only to health care services provided or proposed to be provided on or after September 1, 2011. (Source: P.A. 94-277, eff. 7-20-05; 94-695, eff. 11-16-05; P.A. 97-18, eff. 6-28-11.)

B. How Does the Utilization Review Process Work

The medical provider, upon receiving written notification from the employer, employer’s agent, or insurance carrier invoking the Utilization Review process, must submit to Utilization Review and follow accredited procedural guidelines including:

• Provider shall make reasonable efforts to provide timely and complete reports of clinical information;

• If the provider fails to make such reasonable efforts, the charges for the

treatment or service may not be compensable or collectible by the provider or employee from the employer, the employer's agent, or the employee;

• The reporting obligations of these providers shall not be unreasonable or

unduly burdensome; and • Once a Utilization Review has been done and findings are made

(certification or noncertification of treatment), said decisions, including the clinical rationale, shall be furnished to the provider, the employee, and the employee’s attorney.

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C. Is a Utilization Review the Only Way to Challenge Reasonable Necessity and Extent of Medical Treatment?

Section 8.7(i)(3). (3) An employer may only deny payment of or refuse to authorize payment

of medical services rendered or proposed to be rendered on the grounds that the extent and scope of medical treatment is excessive and unnecessary in compliance with an accredited utilization review program under this Section.

D. Who Has the Burden of Proof

If a payment for medical services has been denied, or a request for medical treatment non-certified by an employer following a Utilization Review, then the burden of proof will shift to the employee to “show by a preponderance of the evidence that a variance from the standards of care used by the person or entity performing the utilization review . . . is reasonably required to cure or relieve the effects of his or her injury.” 820 ILCS 305/8.7(i)(4).

E. Can an Employee Object to a Utilization Review Report

In the case of a Utilization Review report being disclosed, the employee’s attorney has the right to object to the foundation of that report, thereby necessitating the evidence deposition of the physician who reviewed the medical evidence and issued the Utilization Review report. The “medical professional” who was responsible for reviewing the records and issuing a Utilization Review opinion must be made available in the State of Illinois for a deposition (either in person, by telephone, videoconferencing, or other remote electronic means). This expense will be borne by the employer. Therefore, when you begin setting up the process of having a Utilization Review report/opinion obtained, you will want to identify who will be the reviewing physician, where their office is located, and confirm that they can be made available within the State of Illinois pursuant to the terms of the statute. At the very least, you need to make this defense expert aware of what the statute states and what obligations he will be forced to comply with if an objection to the foundation is made by the employee’s attorney. If that Utilization Review expert will not travel to the State of Illinois, nor will they agree to conduct a deposition by phone or other electronic means, then you will not want to retain their services for that project or in the future. If an employer reasonably relies upon a Utilization Review report from an accredited medical expert, and the necessary protocols and procedures are followed by that medical expert, then there is a rebuttable presumption in favor of the employer regarding the reasonableness and necessity of the treatment, protecting the employer from penalty petitions. If an employee files a penalty petition pursuant to Section 19(k) of the Act, wherein they claim the employer was unreasonable or vexatious in their delay of payment of benefits, an employer should be protected from penalties with a Utilization Review report to rely upon in denying payment of medical benefits.

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F. To UR or Not to UR

Under what circumstances should you decide to pursue and obtain a Utilization Review report? Some typical questions which you would want to have addressed, based upon the factual circumstances of your case, would include (but not be limited to) the following:

• How much physical therapy is appropriate, and how much would be considered excessive?

• What is a reasonable amount of chiropractic care/treatment when dealing

with adjustments?

• Do the patient’s symptoms warrant MRI testing at this time? • Are epidural steroid injections reasonable and necessary at this time? • Is the patient a surgical case at this time, or should conservative measures

be continued? Here are some situations you deal with on a regular basis where Utilization Review would not be reasonable or necessary for defense handling purposes:

• Is the injured party’s current medical condition causally related to the alleged accident?

• Is this a compensable workers’ compensation claim? • Can the injured worker return to the workplace, and if so, should that

worker be placed on any restrictions? • What is the diagnosis and prognosis for the injured worker?

G. Does This Mean No More IMEs

It may be helpful once you have your Utilization Review report in place to also have your IME expert take it (Utilization Review report) into consideration during his or her review of the medical records. You may have more than one defense to present during the course of the litigated claim. Therefore, your Utilization Review report can be relied upon by other experts and your IME specialist can add to the credibility of your Utilization Review physician who reviewed the records by agreeing with the findings and adding some additional weight and credibility to those opinions.

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VIII. MEDICAL BILL PAYMENT LIABILITY

A. 820 ILCS 305/8.2(d) Interest

(d) When a patient notifies a provider that the treatment, procedure, or service being sought is for a work-related illness or injury and furnishes the provider the name and address of the responsible employer, the provider shall bill the employer directly. The employer shall make payment, and providers shall submit bills and records in accordance with the provisions of this Section.

(1) All payments to providers for treatment provided pursuant to this

Act shall be made within 30 days of receipt of the bills as long as the claim contains substantially all the required data elements necessary to adjudicate the bills.

(2) If the claim does not contain substantially all the required data

elements necessary to adjudicate the bill, or the claim is denied for any other reason, in whole or in part, the employer or insurer shall provide written notification, explaining the basis for the denial and describing any additional necessary data elements, to the provider within 30 days of receipt of the bill.

(3) In the case of nonpayment to a provider within 30 days of receipt

of the bill which contained substantially all of the required data elements necessary to adjudicate the bill or nonpayment to a provider of a portion of such a bill up to the lesser of the actual charge or the payment level set by the Commission in the fee schedule established in this section, the bill, or portion of the bill, shall incur interest at a rate of 1 percent per month payable to the provider. Any required interest payments shall be made within 30 days after payment.

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B. Department of Insurance Bulletin

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C. Medical Provider Lawsuits Against WC Insurance Carriers, TPAs, and Employers

1. Lawsuit #1 – Cook County – Filed 2/28/14

(i) WC Settlement Contract – Respondent will pay all necessary and related medical expenses through 9/19/12 pursuant to the fee schedule or negotiated rate, whichever is less, that have been submitted to respondent prior to contract approval and that contain all the required data elements necessary to adjudicate the bills pursuant to Section 8.2 (d).

(ii) Civil Lawsuit Complaint – Theory of breach of WC contract by the

medical provider.

(iii) Unpaid Medical Bills – $11,895.90 Interest on Unpaid Bills – $7,504 Interest on Bills Paid Late – $18,340


(i) Same WC contract settlement terms and theory of lawsuit as

lawsuit #1

(ii) Unpaid Medical Bills – $39,815.15 Interest on Unpaid Bills – $39,400


(i) Same WC contract settlement terms and theory of lawsuit as

lawsuit #1

(ii) Medical services in 2009 and 2010; bills were not paid until 2011 and 2012

(iii) Interest on Bills Paid Late – $33,269.54

IX. PERMANENT PARTIAL DISABILITY - FACTORS

A. 820 ILCS 305/8.1b.

1. For accidents on or after September 1, 2011.

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2. Permanent partial disability is determined by the following five factors:

(i) AMA rating; (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee's future earning capacity; (v) evidence of disability corroborated by the treating medical records.

3. By the express language of the statute, no single factor above shall be the

sole determinate of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of Impairment as reported by the physician must be explained in a written order.

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Kevin J. Luther

- Partner

Kevin concentrates his practice in the areas of workers' compensation, employment and labor law, and employer liability. He supervises the Workers' Compensation and Employment & Labor Practices in the firm's Rockford and Chicago offices. He is the immediate past chair of the firm's statewide workers' compensation practice group. Kevin has represented numerous employers before the Illinois Human Rights Commission and has arbitrated hundreds of workers' compensation claims in many Illinois Industrial Commission venues. He has also tried numerous liability cases to jury verdict. In the area of labor law, Kevin has represented employers in collective bargaining agreement negotiation and preparation, union grievances and arbitrations, and NLRB proceedings. Kevin has authored a law review article on Illinois employment law and he is a co-author of "Illinois Workers' Compensation Law, 2015-2016 Edition," published by Thomson Reuters. The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois. Kevin also frequently speaks to industry and legal professional groups. Kevin has spent his entire legal career at Heyl Royster, beginning in 1984 in the Peoria office. He has practiced in the Rockford office since it opened in 1985. He is a member of the Winnebago County Bar Association in its Workers' Compensation and Trial sections. He is a member of the State Bar of Wisconsin, Illinois State Bar Association, and the American Bar Association, and has actively participated in sections relevant to his practice areas. He is a member of the Illinois Association of Defense Trial Counsel, formerly on the Board of Directors. Significant Cases Arlene Bernardoni v. Huntsman Chemical Corp.

- Applied Frye principle to Illinois workers' compensation in the defense of an occupational disease/exposure claim.

Richard Urbanski v. Deichmueller Construction Co. - Defined jurisdictional issue in workers' compensation review.

Publications "Illinois Workers' Compensation Law," 2015-



"Economic Disability and Earning Capacity: A Historical Analysis for Wage Differential Claims," Illinois Defense Counsel Quarterly Monograph (2006)

"The Normal Daily Activity Exception to Workers' Compensation Claims," Illinois Defense Counsel Quarterly Monograph (2004)

"The Age Discrimination in Employment Act: A Seventh Circuit Perspective," Illinois Defense Counsel Quarterly Monograph (1998)

"The Impact of Federal Legislation on the Employer/Employee Relationship in Illinois," Illinois Defense Counsel Quarterly Monograph (1996)

"An Overview of Repetitive Trauma Claims," Illinois Bar Journal (1992)

Public Speaking “Workers’ Compensation Issues and Handling

for Management” Society for Human Resource Management (2015)

“OSHA Housecalls” Rock River Human Resource Professional Association (2015)

“Case Law Update” Winnebago County Bar Association (2015)

“Recent Appellate Court Decisions” Illinois Chamber Of Commerce 7th Annual Workers’ Compensation and Safety Conference (2014)

“HIPAA: Legal Background and Current State of the Law” City of Rockford Fire 911 Division (2014)

“Utilization Review and Section 8 Medical Bill Issues” Heyl Royster 29th Annual Claims Handling Seminar (2014)


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“Ethics of Social Media” Illinois Workers’ Compensation Commission Judicial Training, Chicago (2012)

“A Program on the Extent to Which Employers May Monitor/Restrict Employees” St. Mary’s Occupational Health & Wellness (2012)

“Workers’ Compensation, HIPAA and Employment Retaliatory Discharge Issues” St. Mary’s Occupational Health & Wellness (2011)

“Workers’ Comp Reform - What Does it Mean to You?” Williams Manny (2011)

“Workers’ Compensation Case Law Update” Winnebago County Bar Association (2011)




Professional Associations Winnebago County Bar Association Illinois State Bar Association State Bar of Wisconsin American Bar Association Illinois Association of Defense Trial Counsel

Court Admissions State Courts of Illinois and Wisconsin United States District Court, Northern and

Central Districts of Illinois United States Court of Appeals, Seventh Circuit


Law, 1984 Bachelor of Arts-Economics and Mathematics

(summa cum laude), Blackburn University, 1981


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MEDICAL MARIJUANA AND THE GOVERNMENTAL EMPLOYER

Presented and Prepared by: Bruce L. Bonds

[email protected] Urbana, Illinois • 217.344.0060

Prepared with the Assistance of: Brett E. Siegel

[email protected] Springfield, Illinois • 217.522.8822



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MEDICAL MARIJUANA AND THE GOVERNMENTAL EMPLOYER I. ILLINOIS MEDICAL CANNABIS USE HIGHLY REGULATED ........................................................... H-3 II. HOW ARE EMPLOYERS IMPACTED BY THE ACT? ........................................................................... H-5

A. Can employers continue to require drug tests for employees who report work accidents? ..................................................................................................... H-5

B. So we can continue to drug test, but is intoxication still a defense? ....................... H-5 C. Are employers required to pay for workers to get high? ............................................. H-7 D. Do employees have any causes of action against the employer

under the Act? ............................................................................................................................... H-8 III. FUTURE OF MEDICAL CANNABIS IN ILLINOIS WITH

GOVERNOR RAUNER AT THE HELM .................................................................................................... H-9 IV. HOW TO PREPARE FOR MEDICAL CANNABIS USAGE COMING IN LATE 2015 ................. H-9

A. Employers: ....................................................................................................................................... H-9 B. Insurance Companies and Third Party Administrators: ................................................. H-9


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MEDICAL MARIJUANA AND THE GOVERNMENTAL EMPLOYER The Illinois Compassionate Use of Medical Cannabis Pilot Program Act, Public Act 98-0122 (Act), went into effect on January 1, 2014. The Act, now codified at 410 ILCS 130 et seq., allows registered users to use cannabis for medical purposes for four years. On January 1, 2018, the pilot program is scheduled to be repealed unless there is legislative intervention to keep it in place. The Act places Illinois among more than twenty states that have similar statutes allowing cannabis to be used for medical purposes despite federal law prohibiting the use of cannabis. The Act includes an explanation that approximately 99 out of every 100 cannabis arrests in the U.S. are made under state law, rather than under federal law. Further, the federal government has not been active in enforcing its cannabis law against registered users in states allowing its use. Importantly, the National Council on Compensation Insurance, Inc. highlighted medical cannabis as one of the top emerging workers' compensation issues to watch in 2014. While medical cannabis has been off to a slow start in Illinois, it remains an important issue for employers in 2015. The Act offers limited guidance on the effect medical cannabis will have on workers' compensation claims. I. ILLINOIS MEDICAL CANNABIS USE HIGHLY REGULATED

Illinois has one of the most stringent set of rules governing the implementation of medical cannabis in the country. While some states allow cannabis to treat broad conditions such as pain, Illinois requires patients to have their doctors certify they have one of over thirty-five debilitating conditions. Among the listed debilitating conditions that are commonly seen in workers' compensation claims are:

Muscular dystrophy; Spinal cord injury; Traumatic brain injury and post-concussion syndrome; Regional Pain Syndromes Type I; Reflex Sympathetic Dystrophy; and Residual limb pain.

In addition, epilepsy has been added to this list since the Act was first passed (P.A. 98-0775). Further, the Act includes any other debilitating medical condition or its treatment that is added by the Department of Public Health. Any citizen may petition the Department of Public Heath to add debilitating conditions or treatments to the list. In May 2015, the Department of Public Health is holding a public hearing to review 14 medical conditions suggested by the public in petitions. Some of the conditions that will be reviewed include migraines, post-traumatic stress, and anxiety. The list will continue to grow, as it already has over the past year.

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Individuals diagnosed with one of the required debilitating medical conditions who seek the use of medical cannabis must obtain "written certification." Written certification is defined as a document dated and signed by a physician stating that in the physician's professional opinion the patient is likely to receive therapeutic or palliative benefits from the medical use of cannabis to treat or alleviate the patient's debilitating medical condition or associated symptoms. The physician must specify the condition and document that the physician is treating the patient for that condition. Patients must also apply for and obtain a registry identification card in order to be eligible for medical cannabis. On July 15, 2014, the Illinois Joint Committee on Administrative Rules (JCAR) approved a complex set of rules for the medical cannabis pilot program from the Departments of Agriculture, Financial and Professional Regulation, Public Health, and Revenue. To date, approximately 2,000 approved medical marijuana patients have paid to register for the program. This number is expected to grow significantly once medical marijuana becomes available. The registry identification card, along with the written certification, will allow the patient to obtain medical cannabis as soon as it becomes available. Due to unexpected delays, businesses are not expected to begin selling medical marijuana until the end of 2015. The Act specifies several categories of employees that may not use medical cannabis, including:

Active duty law enforcement officers, correction officers, probation officers, firefighters; Anyone with a school bus permit; Anyone with a Commercial Driver's License (CDL); and Anyone convicted of a felony under the Illinois Controlled Substance Act, Cannabis

Control Act, or the Methamphetamine Control and Community Protection Act. NOTE: For those who employ or insure those specific categories of people who are not allowed to "use" medical cannabis, there are additional considerations and a potential conflict with the definition of qualifying patient. Additionally, there are a number of regulations for cultivation centers and dispensing organizations, which must be located in Illinois. While the Act, on its face, is not focused on workers' compensation, it has the potential to have a profoundly wide-ranging impact on workers' compensation claims. At least 100,000 to 200,000 Illinois patients are currently estimated to be eligible for medical cannabis just based on medical conditions. Again, the list of medical conditions that allow patients to become eligible for medical cannabis is expected to grow, likely increasing the number of patients that may become eligible in the future. Colorado, a state with less than half the population of Illinois, currently has more than 116,000 patients registered to use medical cannabis. Thus, the number of patients expected to eventually be registered to use medical cannabis in Illinois is significant. It is important to understand some of the consequences medical cannabis may have for workers' compensation claims despite the lack of guidance provided thus far by the legislature and the Illinois Workers' Compensation Commission.

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II. HOW ARE EMPLOYERS IMPACTED BY THE ACT?

It is necessary to be aware of the Act's provisions directed to employers, as they provide some insight on how to handle workers' compensation claims. First, employers may not discriminate against an employee because he or she is a medical cannabis patient. Merely possessing a medical cannabis registration card is not a cause for an adverse employment action. Treating an employee, including an employee who filed a workers' compensation claim, differently may lead to a claim of unlawful discrimination. Employers may continue to develop and enforce anti-drug policies. "Nothing in this Act shall prevent a private business from restricting or prohibiting the medical use of cannabis on its property." 410 ILCS 130/30(h). Employers may continue to adopt reasonable regulations concerning consumption, storage or timekeeping requirements for qualifying patients.

A. Can employers continue to require drug tests for employees who report work accidents?

Many employers require their employees to take a drug test upon reporting a work accident. This is often a requirement for two reasons. First, a drug test can be a deterrent to employees filing frivolous workers' compensation claims. Second, the employer needs to know if the employee was intoxicated or impaired at the time of the injury, which may allow it to assert an intoxication defense. Employers may continue to enforce policies concerning drug testing, zero-tolerance, or a "drug free workplace" provided the policy is applied in a non-discriminatory manner. Thus, employers administering drug tests to employees who report work injuries must administer drug tests for all employees and avoid singling out employees with medical cannabis registration cards. Further, employers may continue disciplining employees for violating workplace drug policies, assuming such discipline is applied in a non-discriminatory manner. Fortunately, the Act, unlike similar statutes in other states, gives employers defined guidance on actions and practices they can continue.

B. So we can continue to drug test, but is intoxication still a defense?

Under section 11 of the Illinois Workers' Compensation Act, employers do not owe any compensation to the employee if (1) the employee's intoxication is the proximate cause of the employee's accidental injury or (2) at the time the employee incurred the accidental injury the employee was so intoxicated that the intoxication constituted a departure from the employment. 820 ILCS 305/11. Admissible evidence of the concentration of cannabis shall be considered in any workers' compensation hearing to determine whether the employee was intoxicated at the time the employee incurred the accidental injuries. The difficulty remains that cannabis is not like other drugs. It stays in one's system for up to thirty days and a positive test does not mean the person recently used cannabis or was under the influence of cannabis at the time of the injury. A "zero tolerance" policy may still be enforced; however, employers may not

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want to do so if they believe the cannabis usage by a registered user only takes place outside of work hours and the employee is not impaired at work. When asserting the intoxication defense for cannabis use, impairment, not a positive drug test, is regarded to be the most important consideration. The Act states the following regarding impairment:

An employer may consider a registered qualifying patient to be impaired when he or she manifests specific, articulable symptoms while working that decrease or lessen his or her performance of the duties or tasks of the employee's job position, including symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the safety of the employee or others, or involvement in an accident that results in serious damage to equipment or property, disruption of a production or manufacturing process, or carelessness that results in any injury to the employee or others. If an employer elects to discipline a qualifying patient under this subsection, it must afford the employee a reasonable opportunity to contest the basis of the determination.

410 ILCS 130/50(f). Whether an employee is impaired is clearly a subjective determination by the employer. As long as the employer uses "good faith" in making the assessment, an employer's finding of an employee's impairment should allow for disciplinary action. Prior to administering disciplinary action, however, the employer must afford the employee a reasonable opportunity to contest the basis of the determination. This can be done by meeting with the employee privately, having a third party present, discussing the employer's observations, and finding out if there is a valid explanation. The employer should document its observations and the discussion had with the employee. The Illinois Workers' Compensation Act, however, requires more than an impairment finding for the intoxication defense to be successful. 820 ILCS 305/11. The employer asserting the defense must prove that any impairment rose to the level of intoxication. At this point, it is still unclear if those two standards can be treated similarly or if it will be more difficult to prove intoxication. Nevertheless, even if the employee was intoxicated or impaired at the time of the work accident, the employer must prove that the employee's intoxication was the proximate cause of the injury or that the employee was so intoxicated that the intoxication constituted a departure from the employment. Therefore, in order to assert the intoxication defense for medical cannabis users, it will be extremely important for the employer to obtain detailed documentation of any impairment that was observed at or around the time of the accident. With the differences or lack thereof between impairment and intoxication, we may see clarification from either the General Assembly or the Illinois Workers' Compensation

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Commission. For now, employers asserting the intoxication defense can attempt to intertwine impairment and intoxication to their benefit. Petitioner's attorneys are likely to take the position that medical cannabis is a lawful medication certified by a licensed physician and because the employee was legally entitled to take it, and even if it were a cause of the accident, the accident is still compensable. Based on the impairment definition in the Act, it is likely that petitioner's attorneys will lose that argument. The causation element, however, will be difficult for employers to prove because cannabis only stays in one's system for up to 30 days. It will continue to be a challenge to prove the use of cannabis was the proximate cause of the work accident, but certainly not insurmountable.

C. Are employers required to pay for workers to get high?

Several states with medical cannabis statutes specifically contain language that employers do not have to pay for medical cannabis. The Illinois Act remains silent on this issue. In those states that do not specify if employers must pay for medical cannabis, some employers have successfully argued that the lack of approval from the U.S. Food and Drug Administration and a federal law banning its use precludes workers compensation insurers from paying for medical cannabis as a treatment for injured workers. While it is unclear whether workers' compensation insurers in Illinois will be required to pay for medical cannabis, the likely bet is that they will be forced to do so if all of the requirements of the Act are met. Employers can attempt to fight authorizing medical cannabis by arguing it is not reasonable and necessary. The Illinois Workers' Compensation Act requires the employer to pay reasonable and necessary medical expenses. It specifically states that the following:

The employer shall provide and pay the negotiated rate, if applicable, or the lesser of the health care provider's actual charges or according to a fee schedule, subject to Section 8.2, in effect at the time the service was rendered for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury … The employer shall also pay for treatment, instruction and training necessary for the physical, mental, and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto.

820 ILCS 305/8(a). The Act, likely in anticipation of various attacks on the medical evidence supporting the use of medical cannabis, goes to great lengths to justify its use for the wide array of debilitating medical conditions. The Act states the following:

The recorded use of cannabis as a medicine goes back nearly 5,000 years. Modern medical research has confirmed the beneficial uses of cannabis in treating or alleviating the pain, nausea, and other symptoms associated with a variety of debilitating medical conditions, including cancer, multiple sclerosis, and

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HIV/AIDS, as found by the National Academy of Sciences' Institute of Medicine in March 1999.

410 ILCS 130/5(a). The Act relies on the American Academy of HIV Medicine, the American College of Physicians, the American Nurses Association, the American Public Health Association, and the Leukemia & Lymphoma Society, to support the medical utility of cannabis. The Act's provisions regarding the reasonableness and necessity of medical cannabis seemingly offer a convenient tool for arbitrators in Illinois to rule in favor of the authorization of medical cannabis. On the face of the Act, it is clear that an employer can successfully challenge the request for payment for medical cannabis if the employee is not a registered user or if a written certification has not been issued by a medical provider for one of the listed debilitating medical conditions. Assuming those requirements have been met, there are two primary ways employers can challenge the reasonableness and necessity of medical cannabis use among injured workers. First, an employer can obtain a utilization review for the use of medical cannabis. "Utilization review" means the evaluation of proposed or provided health care services to determine the appropriateness of both the level of health care services medically necessary and the quality of health care services provided to the patient, including evaluation of their efficiency, efficacy, and appropriateness of treatment. A utilization review denying the reasonableness or necessity of medical cannabis as a treatment for the employee's injuries will give the employer a basis to deny payment and avoid penalties. Second, an employer can obtain an Independent Medical Examination (IME) under the appropriate circumstances. A physician may provide an employee with written certification for one of the over thirty-five debilitating conditions covered under the Act. If the employer does not believe that the employee actually has that condition, it can obtain an IME to determine whether the employee has that debilitating medical condition. While the proper method of determining whether medical treatment is reasonable and necessary is through a utilization review, the IME can also address that issue. Remember, the Act does not create a prescription for medical marijuana; rather, it creates a certification that the patient might benefit from the cannabis.

D. Do employees have any causes of action against the employer under the Act?

Fortunately, the Act provides some protections for employers if they engage in actions based on good faith beliefs regarding the employee's cannabis use. The Act does not provide employees with a cause of action against their employer for (1) actions based on a good faith belief that the employee used or possessed cannabis on the employer's premises; (2) actions based on a good faith belief that the employee used or possessed cannabis during employment hours; and (3)

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injuries or losses to third parties, if the employer did not know or have reason to know that the employee was impaired. III. FUTURE OF MEDICAL CANNABIS IN ILLINOIS WITH GOVERNOR RAUNER AT THE

HELM

In April 2015, Rep. Lou Lang began pushing an extension for the program, set to expire on January 1, 2018. Due to significant delays, Illinois is almost 1½ years into the pilot program and patients are still not expected to have access to medical marijuana for another six months. As a result, Rep. Lang is striving to extend the program to four years from when the first dispensary officially begins operating. Governor Bruce Rauner, as of April 2015, does not wish to extend the program until it has been “fully evaluated.” This may be an early indication that Gov. Rauner is not supportive of the program, but regardless of whether he supports it, patients in Illinois are expected to begin taking medical marijuana by the end of 2015 and at least through January 1, 2018. IV. HOW TO PREPARE FOR MEDICAL CANNABIS USAGE COMING IN LATE 2015

While the Act provides limited guidance for the effects it will have on workers' compensation claims, employers retain significant rights under the Act. Employers can continue to prohibit employees from using cannabis at work and they can continue to administer drug tests. Employers, insurance companies, and third party administrators can take the following steps to position themselves for the implementation of medical cannabis.

A. Employers:

1. Review your drug, alcohol, and anti-smoking policies. 2. Add provisions to your policies for registered qualified patients. Make it clear that they

cannot be under the influence at work, even if they are legally using medical cannabis. 3. Make employees overly aware of your policies, especially if you decide to continue using

zero tolerance policies. 4. If using a zero tolerance policy, it must be enforced non-discriminately. Avoid enforcing

it selectively. 5. Be cautious about bringing medical cannabis users back to work where job safety is a

concern. It may be necessary to sit down with that employee to discuss how the transition back to work will be navigated.

6. Train supervisors regarding the warning signs of intoxication or impairment from cannabis. Supervisors' testimony on the level of the employee's impairment will be necessary to assert a successful intoxication defense.

B. Insurance Companies and Third Party Administrators:

1. Determine if you want to challenge requests for payment of medical cannabis.

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2. Be prepared to obtain a utilization review or IME when medical cannabis is prescribed. 3. Understand the drug policies of your employers and how that may affect the

compensability of claims. 4. Evaluate whether an intoxication defense may be used prior to accepting a claim.

In addition to these points, it will also be necessary to determine just how the cost of medical cannabis, if awarded by the Commission, will be paid. The Act designates this as a cash-only business; how an employer will accommodate this aspect has yet to be determined. The issues addressed herein only scratch the surface of the potential implications the Act may have on workers' compensation claims. Medical cannabis may turn out to be a less addictive and less costly medication than more potent medications, such as opioids. On the other hand, medical cannabis may turn into a major cost driver for workers' compensation claims if there are side effects that necessitate other medications or prevent employees from quickly returning to work. It is too early to accurately determine the overall effect of medical cannabis on workers' compensation claims and the position the Commission will take regarding its use.

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Bruce L. Bonds

- Partner

Bruce is a past Chair of our state-wide workers' compensation practice group and has spent his entire legal career with Heyl Royster beginning in 1982 in the Peoria office. He concentrates his expertise in the area of workers' compensation, third-party defense of employers, and employment law. He served as a technical advisor to the combined employers group in the negotiations which culminated in the 2005 revisions to the Illinois Workers' Compensation Act. More recently, Bruce worked as a technical advisor to the Illinois Chamber of Commerce as well as a number of Illinois legislators and State agencies in the process that resulted in the 2011 Amendments to the Illinois Workers' Compensation Act. Bruce was appointed by Mitch Weiss, Chairman of the Illinois Workers' Compensation Commission, to a committee of attorneys who reviewed and made recommendations for revisions to the Rules Governing Practice before the Workers' Compensation Commission. With extensive experience before the Illinois Workers' Compensation Commission, Bruce has defended employers in thousands of cases during the course of his career. As a result of his experience and success, his services are sought by self-insureds, insurance carriers, and TPAs. Bruce is an Adjunct Professor of law at the University of Illinois College of Law where he has taught Workers' Compensation Law to upper-level students since 1998. Bruce has co-authored a book with Kevin Luther of the firm's Rockford office entitled Illinois Workers' Compensation Law, 2015-2016 Edition, which was published by Thomson Reuters. The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois. Bruce is a frequent speaker on workers' compensation issues at bar association and industry-sponsored seminars. Bruce has served as Vice-Chair of the ABA Committee on Employment, Chair of the Illinois State Bar Association Section Council on Workers'

Compensation, and currently serves on the Employment Law Committee of the Chicagoland Chamber of Commerce and the Illinois Chamber of Commerce Workers' Compensation Committee. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin; another survey published by Chicago magazine named Bruce one of the "Best Lawyers in Illinois" for 2008. Publications "Illinois Workers' Compensation Law," 2015-


"Evaluating Permanent Partial Disability Under the 2011 Amendments of the Illinois Workers' Compensation Act," Heyl Royster Workers' Compensation Update (September 2012)

Public Speaking “Medical Marijuana: A Cloud of Uncertainty

Over Employers” Heyl Royster 30th Annual Claims Handling Seminar (2015)

“Use of Rated Age Annuities to Reduce Exposure in High Value Cases” 2015 Illinois Workers Compensation Forum - Chicago, Illinois (2015)

“Workers Compensation and the Government Employer: Where We Are, How We Got Here and What We Can Do About It” Illinois County Governing Conference (2015)

“Defending High Exposure and Catastrophic Workers’ Compensation Cases” 34th Annual SEAK National Workers’ Compensation and Occupational Medicine Conference (2014)

“2011 Amendments to the Illinois Workers’ Compensation Commission Act, Three Years Later” Central Illinois Human Resource Group (2014)

“Defending High Exposure and Catastrophic Workers’ Compensation Cases” Heyl Royster 29th Annual Claims Handling Seminar (2014)

“Proven Tactics for Successfully Defending High Exposure Workers’ Compensation Claims and


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Keeping Them From Spiraling Out Of Control” Illinois Workers’ Compensation Forum (2014)

“Workers’ Compensation Reform in Illinois – The Political and Legal Process: A Case Study for the Nation” DRI Annual Meeting (2013)

“The 2011 Amendments to the Illinois Workers’ Compensation Act” Eastern Illinois Human Resources/Safety Council in Urbana, Illinois (2012)

“AMA Guides – Seize the Moment to Reduce PPD Awards” Heyl Royster 27th Annual Claims Handling Seminar (2012)

“What Every Employer Should Know About the 2011 Amendments to the Illinois Workers’ Compensation Act” Kraft Foods, Inc., Champaign, Illinois (2012)

“Investigating the Suspicious Claim” Danville Area Dental Society (2012)

“2011 Amendments to the Illinois Workers’ Compensation Act: One Year Later” Risk Managers Society of Central Illinois, Bloomington, Illinois (2012)

“Use of AMA Ratings to Evaluate Permanent Partial Disability” Illinois Hospital Association/Illinois Compensation Trust, Naperville, Illinois (2012)

“Workers’ Compensation Reform in Illinois” Illinois Association of Defense Trial Counsel Webinar (2011)

“2005 Amendments to the Workers’ Compensation Act: Yesterday, Today and Tomorrow” Downstate Illinois Occupational Safety & Health Day (2010)

“The 2005 Amendments, 3 Years Later: The Respondent” SafeWorks 16th Annual Work Injury Conference (2008)

“Update on the Illinois Workers’ Compensation Act and Medical Fee Schedule” Illinois-Iowa Safety Council Annual Convention (2008)

“Recent Changes to the Illinois Workers’ Compensation Statutes” Illinois Manufacturers Association (2005)

Professional Recognition Martindale-Hubbell AV Preeminent Inducted as a Fellow in the College of Workers'

Compensation Lawyers Named as one of the "50 Most Influential

People In Workers' Compensation" by SEAK, Inc. in 2014.

Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers.


Professional Associations Illinois State Bar Association (Past Chair

Workers' Compensation Law Section Council) Champaign County Bar Association Illinois Association of Defense Trial Counsel

(Member, Workers' Compensation Committee) Defense Research Institute Illinois Self-Insurers Association




Law, 1982 Bachelor of Arts-Finance, University of Illinois,

1979


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Brett E. Siegel

- Associate

A native of Buffalo Grove, Illinois, Brett joined Heyl Royster shortly after graduating from Chicago-Kent College of Law in 2012. As a law student, Brett concentrated his studies on litigation and trial advocacy. He earned the “Best Advocate” award in his intensive trial advocacy course. In 2011, as a member of the Chicago-Kent Trial Advocacy Team, he competed in the American Bar Association Labor and Employment Trial Competition in Chicago, Illinois. In 2012, he competed in the American Association of Justice Student Trial Advocacy Competition in St. Louis, Missouri. Brett represents clients in tort litigation and defends employers in workers' compensation cases. Brett regularly handles depositions of expert witnesses and treating physicians in both civil and workers' compensation matters. Brett has taken several cases to trial and has argued multiple cases on appeal before the Workers' Compensation Commission. Publications "Bob Red Remodeling, Inc. v. Illinois Workers'

Compensation Comm'n – Follow-Up Appointments with ER Doctor Not Considered a Choice of Physician," Below the Red Line - Heyl Royster Workers' Compensation Newsletter (2015)

"Medical Marijuana Leaving a Cloud of Uncertainty Over Employers" Below the Red Line - Heyl Royster Workers' Compensation Newsletter (2014)

"Statute In The Spotlight: Americans with Disabilities Act Title 42 - The Public Health and Welfare Chapter 126 - Equal Opportunity for Individuals with Disabilities - Reasonable Accommodations," Employer's Edge - Heyl Royster Employment Newsletter (2013)

Public Speaking “Claims Handling – What’s on the Horizon”

Land of Lincoln CPCU Society Chapter Workshop (2014)

Professional Associations Illinois Association of Defense Trial Counsel American Bar Association Illinois State Bar Association Sangamon County Bar Association


Illinois Education Juris Doctor, Chicago-Kent College of Law,

2012 Bachelor of Arts-Economics and

Communication (with Distinction), University of Illinois, 2009


Heyl RoysteR Fall seminaR 2015 2015/Heyl... · Rockford, IL 61105 815.963.4454 Springfield 3731...

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Transcript of Heyl RoysteR Fall seminaR 2015 2015/Heyl... · Rockford, IL 61105 815.963.4454 Springfield 3731...