When Accidents aren't Accidents in Ill. Workers' Comp
Monday, August 23, 2010 | 0
By Eugene Keefe
Keefe Campbell & Associates
As we teach all of our students, there are three accident defenses in Illinois and many states.
The first accident defense is simple—we call it “liar, liar, pants on fire.” Not to be overly glib, there is always the possibility someone truly had a mild/moderate or severe accidental injury but they simply aren’t telling the truth about where and how it occurred. To defend such a claim, a veteran defense lawyer has to assume claimant is going to tell a story of being accidentally injured at work. The defense lawyer is challenged by several concepts; the most important of which is you may be faced with “proving a negative” by having to show the accidental injury claimed to have occurred at work “didn’t occur” or more important, didn’t occur at work.
Arbitrators in Illinois and most states take claimants as they present themselves—even the most conservative arbitrators give everyone a chance to tell the truth and initially assume they are being told the truth. A wise arbitrator will always take everything with a grain of salt but to be unbiased, a fair hearing officer has to first hear the claimant and their case in full. And remember, claimant always bears the burden of proving by a preponderance of the evidence all aspects of the claim, including a compensable accident.
In response, the defense lawyer, adjuster and risk manager for the employer have to provide an Arbitrator or hearing officer clear and convincing evidence claimant wasn’t telling the truth and shouldn’t be trusted. You can’t do that without aggressive and thorough accident investigation. A solid investigation should include:
- Handwritten statements by claimant, witnesses and supervisors;
- Tape-recorded statements of claimant, witnesses and supervisors;
- Security videotape of the alleged accident site;
- Medical histories;
- Surveillance; and
- Online research.
Please remember, if you have a truly faked accident and can prove it, send your investigation to the Illinois Department of Financial and Professional Regulation and have them start a workers' compensation fraud investigation. In some counties, the chicken-liver states’ attorneys won’t pursue it but many counties across Illinois are starting to counter-attack when they have clear evidence of WC fraud.
Accidental injuries arising out of and in the course of the employ
Assuming there is no question about the accident or that it happened during work, the next analysis is “arising out of” the job. In this second section, there is no concern about truth-telling or the occurrence, the question is “did claimant suffer an injury from a work-related risk?”
For pretty much the entire time Illinois has had workers’ compensation benefits from 1912 to present, it isn’t enough to simply say, “I became injured or disabled at work” to be entitled to benefits. With one tenuous exception, the employee has to also show the accidental event was linked to the work or arose from a risk the worker had to encounter as part of their work.
Never forget the ruling in Board of Trustees of the University of Illinois v. Industrial Commission where a teaching assistant turned in his chair from a noise and strained his back. Benefits were denied based upon the fact the events leading to the problem were normal and the work did not increase the risk of injury. Similarly in Greater Peoria Mass Transit, a bus driver reached to lift up a transfer book and her shoulder dislocated; due to the fact the shoulder dislocation arose from a normal activity of life, benefits were also denied. These landmark rulings emphasize the accident has to derive from an increased risk of injury in the workplace.
Another area that can be demanding is when to accept a fall-down or slip/fall claim. We receive fall-down claims all the time in which claimant simply says, “fell at work.” Of the three factors required to pay for a compensable accident, the history at the end of the last sentence only satisfies two—the employee hasn’t provided a work-related increased risk causing the fall. Sometimes busy adjusters simply accept a fall-down claim without first asking the question—what caused the fall? Please note the burden is supposed to be on claimant to demonstrate a work-related cause for the fall-down; it isn’t enough to simply say “fell at work.” But we all agree the Commission and courts may be lenient about the reasons including reliance on testimony about unnamed “others falling in the area” or flooring/carpeting being new or old and thereby increasing the risk (isn’t all carpeting either new or old?)
One good example of an accidental event that might occur at work but wouldn’t be compensable is an injury during “horse-play.” We had a claim for a major retailer in which a supervisor asked a co-employee to jump up and take a “horsey-back ride” and she ran around the store with the worker on her back. When she strained her back doing so, she asked for workers’ compensation benefits. We were able to successfully defend that claim of accidental injury, despite the fact there was no question she was hurt at work—the Arbitrator accurately pointed out when she decided to offer “horsey-back rides,” she clearly wasn’t performing any work she was hired to provide as a retail manager and benefits were denied.
Similarly, fight or what are also called “assault” cases may result in undisputed accidental injuries occurring at work. The traditional Illinois rule on such claims is simple—the non-aggressor receives benefits and the aggressor starting the fight recovers nothing. The problem with this rule is multifarious—employers don’t want anyone to fight and it can be truly hard to ascertain who started it. There was also a goofy ruling in which both women struck each other at the same time—the Appellate Court ruled one of them had to get benefits; we felt the opposite should have been the law and neither miscreant should have recovered.
We also caution what claimant attorneys do in most fight/assault cases is sit and sit on the file. Many times they don’t want to bring the combatants back together. The problem this creates for the defense side is your witnesses may move on to other stuff and be hard to call at a hearing. Claimant, if they remain interested in the case, will be there and you will lose if you can’t rebut their testimony. Our strong suggestion is to start setting videotaped depositions of defense witnesses to lock in their testimony in a serious fight claim.
Another challenging area is intoxication or drug use that leads to accidental injury. The Illinois workers’ compensation system remains quizzical on what to do with such matters. We can advise our readers with some confidence, drunk drivers who cause accidents and get injured may not be treated well at the IWCC if they seek benefits; many arbitrators will push for lower settlements and outcomes to avoid encouraging illegal behavior. Other folks who are not driving but drunk or under the influence of legal or illegal narcotics at work and suffer injuries are treated with a wide range of responses. The problem for both sides is litigating an intoxication claim can cost $5-10,000 in expert witness fees and related costs. Smaller claims are dropped in many circumstances. Bigger claims routinely produce outcomes considered unsatisfactory for Illinois business.
Psychological injuries remain an area of concern to all risk managers, adjusters and defense attorneys. We always tell our clients if someone is severely injured or killed in your workplace, try to remember there are two types of potential claims. One type of claim involves the person severely injured or killed. We are more than happy to assist in managing such claims. The other type of injury is the psychological trauma that was unexpectedly imposed on all the other workers who saw or experienced the event. Be sure to investigate and assist all such workers as if they were in an accident themselves. It is not a good idea to ignore or avoid helping your workers who can easily make their trauma into a difficult-to-defend claim.
Illinois remains reluctant to allow what we have always called “California-stress” claims. They won’t typically allow a claimant to come to the Commission and whine about how mean their boss was or how bad their breath might be. Most arbitrators will take a dim view of such proceedings and remind claimant’s counsel to look for claimants with real injuries with broken bones and surgical scars. We hope that continues and we avoid the unusual proclivities of the “Left Coast.”
The last legal issues to survey in this article are repetitive trauma and the weird traveling employee concept. Illinois remains liberal to very liberal about providing benefits for carpal tunnel syndrome and cubital tunnel syndrome if the employee is involved in truly repetitive work on a regular basis. The arbitrators and Commission have denied some claims and the diagnosis isn’t the slam-dunk it used to be. On other repetitive-type claims, we feel there are fewer and fewer claims for repetitive walking or repetitive stair-climbing and we salute the Arbitrators and Commissioners who have denied them.
As to “traveling employees,” we continue to criticize the arbitrators and Commissioners when the risks encountered by the traveling employee have:
- Literally nothing to do with travel or
- The employee’s job is to travel.
The final area of accident defense is “in the course of” employ. This defense arises when the employee is going to or coming from the workplace. We tell our clients at some magic point, coverage starts and ends. Each of these cases has to be taken on a claim by claim basis.
Eugene Keefe is a founding partner of Keefe Campbell & Associates, a Chicago workers' compensation defense firm. This column was reprinted with his permission from the firm's client newslettter.
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