WCLA MCLE 7-12-11

1. WCLA MCLE 7-12-11 • Baldwin: Another Fall Case • Tuesday July 12, 2011 from 12:00 pm to 1:00 pm • Speaker former WCLA President Daniel J. Ugaste; Nyhan, Bambrick, Kinzie & Lowry, Chicago, IL • James R. Thompson Center Auditorium, Chicago, IL • 1 Hour General MCLE Credit

2. HB1698 • PA 97-0018 • Effective Date June 28, 2011 • Effective immediately: Carpal tunnel (190 weeks; 15% -30%); Temporary partial?; Employee choice/networks (but no approved networks yet); Interest on unpaid medical; Ban on excessive medical bills; CB comp (no unions chosen yet) • Delayed to 9-1-11: Wage differential (injury); Fee schedule (services); AMA Guidelines (injury); UR (services)

3. Rule 23 OrderCooley v. IWCC, No. 1-10-1667WCFiled 6-30-11 • Appellate Court finds NOT COMPENSABLE, one dissenter • Petitioner falls descending carpeted steps; foot got “stuck” on steps; no defect; flat shoes; no carrying; “believed” caught foot on vent • Arbitrator awards benefits, but Commission reverses 2-1: “No direct evidence of the cause of the fall;” subsequent explanations “delayed;” Dissent: frequency increases risk • Appellate Court: “Claimant presented no evidence of the cause of her fall.” Dissent: frequency increases risk

4. Baldwin: Another Fall Case Baldwin and other cases involving falls down stairs at work: Where does it leave the injured employee… besides at the bottom of the stairs ?

5. ISSUES FOR CONSIDERATION • When is a fall down stairs while at work compensable? • Where does this leave the law stated in Chicago Tribune Co. v Industrial Commission, 136 Ill.App. 3d 260 (1985)? • Are Baldwin and Metropolitan Water Reclamation reconcilable?

6. Baldwin v the Illinois Workers’ Compensation Commission, No. 4-10-0375WC Two accidents while at work: October 8, 2006 and November 19, 2006 First accident: d/a October 8, 2006, worker employed as a security guard, making rounds through building, descending a metal staircase, slipped and fell; testified did not know what caused her foot to slip, no defect or any liquid on the step; wearing rubber soles, not in a hurry, hands were free; just prior to fall, walked through freezer and moisture “might” have been on shoes; no prior problems with legs, no medical conditions which would affect balance or maker her dizzy. Second accident: d/a November 19, 2006, 3 days earlier seen at PT reported 90% improved and pain free, physician stated normal function that day; returned to light-duty work, told supervisor her leg was still hurting; on date of accident walking up flight of stairs and leg began to cramp and throb, while going down, leg began to cramp “real bad” and gave out, causing her to fall.

7. Cathy Baldwin v. Securitas06WC54938; 06WC54919 • DA 10-8-06 • Security guard descending metal stairs; “slipped” and fell; left leg contusion • Maybe moisture on shoes from freezer; witness said no moisture • Pictures of stairs showed no obvious “hazard” • DA 11-19-08 • Fell on stairs again because left leg went out (pelvic fracture)

8. At Arbitration: cases consolidated for hearing 1st accident Arbitrator found employee failed to prove her accident arose out of her employment with the Respondent. Arbitrator relied on fact that no explanation for the fall presented, would not speculate on cause (moisture on shoes?), found step was not a hazard (pictures available) . 2nd accident Arbitrator found evidence presented demonstrated the fall was idiopathic and idiopathic falls are not compensable under the Act. On review Commission (3-0) affirmed and adopted Arbitrator’s Decisions. Circuit Court confirmed the Commission’s Decisions. On appeal the Appellate Court affirmed the judgment of the Circuit Court based on:

9. Cathy Baldwin v. Securitas06WC54938; 06WC54919 • DA 10-8-06: Arbitrator White: NOT COMPENSABLE; “Her testimony describes a fall that is unexplained…In the absence of facts, the arbitrator cannot speculate on possible risks…The Arbitrator is unable to draw an inference from the facts.” • DA 11-19-06: NOT COMPENSABLE; “This fall was idiopathic because the cause of the fall was a condition within Petitioner that did not arise out of the employment. Injuries sustained in idiopathic falls are not compensable.”

10. Baldwin v. IWCCNo. 4-10-0375WC, filed 4-28-11 • She testified that she did not know what caused her foot to slip. She saw no defect on the step or any liquid substance thereon. At the time that she slipped, the claimant was wearing shoes with rubber soles, she was not in a hurry, and her hands were free. • On November 19, 2006, the claimant was again assigned to inside duty. She testified that while walking up a flight of stairs her leg began to cramp and throb. The claimant stated that, when she attempted to walk back down the stairs, her leg began cramping "real bad" and gave out, causing her to fall.

11. First the court reviewed the circuit court’s jurisdiction. Respondent alleged Petitioner failed to comply with Section 19(f) (1) of the Act. Specifically, despite the fact that the Commission issued separate decisions, the Petitioner only filed one writ to the Circuit Court by listing both Commission cases on a single summons. With this exception, the remainder of the filing complied with the rules. In reliance on its prior decision in CTA v Industrial Commission, 238 Ill.App.3d 202 (1992), the court found the Petitioner substantially complied with the requirements of Section 19(f)(1) and in the absence of prejudice to the Respondent, the court had jurisdiction. Take away: 1) File a separate writ, appeal, review … for each decision. 2) File your own appeal when alleging an error in a lower court. Appellate Court performed a separate analysis for each accident.

12. Baldwin v. IWCCNo. 4-10-0375WC, filed 4-28 • The only imperfection was the filing of a single request for summons instead of two separate requests. Additionally, Securitas has made no argument of prejudice. For these reasons, we hold that the claimant substantially complied with the requirements of section 19(f)(1), the circuit court had jurisdiction to resolve the action, and the circuit court properly denied Securitas' motion to dismiss. • Risks to employees fall into three groups: (1) risks distinctly associated with the employment; (2) risks personal to the employee, such as idiopathic falls; and (3) neutral risks that have no particular employment or personal characteristics.

13. First accident (10-08-06) analysis: Court first notes issue in case is question of whether the accident “arose out of” her employment; therefore, must categorize risk to which she was exposed: 1) risk associated with employment 2) personal risk (idiopathic fall) 3) neutral risk (not associated with either of above) Court next notes claimant’s testimony eliminates notion fall was idiopathic. Court next looks at employment risk: allegation of moisture on shoes – pure conjecture Court next addresses issue of “unexplained fall” – court states that for such a fall to be compensable claimant must present evidence that fall occurred as a result of a risk associated with their employment.

14. “Unexplained falls” – Chicago Tribune v Industrial Commission, 136 Ill.App.3d 260 (1985); employee walking in lobby on way to work, slipped and fell; claimant did not know what caused her to fall; court held Commission had right to infer cause of fall – under existing case law, unexplained fall arises out of and in the course of claimant’s employment. Caterpillar Tractor Co. v Industrial Commission, 129 Ill.2d 52 (1989); employee stepping off curb… not compensable under the Act. In addressing arising out of Supreme Court states: “Where liability has been imposed, the injury occurred either as a direct result of a hazardous condition on the employer’s premises … or arose from some risk connected with, or incidental to, the employment”. Id., at 62. “…, the mere fact that the duties take the employee to the place of the injury and that, but for the employment, he would not have been there, is not, of itself, sufficient to give rise to the right to compensation.” Id., at 63.

15. Baldwin court next addresses issue of walking up stairs and finds that walking up a staircase does not expose a claimant to a risk greater than that to which general public is exposed. Citing, Elliot v Industrial Commission, 153 Ill.App.3d 238 (1987). Elliot case involved a Cook County correctional officer, who fell when walking down a flight of stairs at the prison. Employee had pre-existing back and leg problems, court found the fall was idiopathic (leg gave way). As fall was idiopathic employee would have to show employment increased his risk of injury, but court holds descending a stair case does not expose employee to an increased risk. Baldwin court holds that since claimant did not present evidence establishing a cause or increased risk, failed to prove injury (d/a 10-08-06) arose out of her employment.

16. Baldwin v. IWCCNo. 4-10-0375WC, filed 4-28 • The claimant in this case did not present any direct evidence explaining the cause of her fall. She testified that she did not know why she fell and that no one witnessed her fall. As noted earlier, the notion that moisture "might" have built up  on her shoes from walking through a freezer is pure conjecture. Because the claimant did not present any evidence establishing the cause of her fall on October 8, 2006, or that she was exposed to a risk greater than that faced by the general public, she failed to prove that her injury on that date arose out of her employment. • Her own testimony clearly demonstrates that the claimant's fall on November 19, 2006, resulted solely from an internal, personal origin. Her fall was purely idiopathic and noncompensable under the Act.

17. Second accident (11-19-06) analysis: Court finds as fall caused by “real bad” cramping, fall was idiopathic. Court then notes idiopathic falls are generally not compensable, except when the employment contributed to the injury by increasing the risk of the fall or its effects. Court finds claimant did not present this evidence, therefore fall was not compensable. When is a fall down stairs at work compensable?

18. Nabisco Brands, Inc. v The Industrial Commission, 266 Ill.App.3d 1103 (1994); Claimant descending stairs at company bakery carrying 3 steel-plated knives, Measuring 39” x 6” with a combined weight of 50 pounds … William G. Ceas & Co.v Industrial Commission, 261 Ill.App.3d 630 (1994); Claimant going down stairs, in a hurry, trying to get a Fed Ex package to a box… Are Baldwin and Metropolitan Water Reclamation reconcilable?