Workers Comp Issues in Missouri and Illinois

1. Workers Comp Issues in Missouri and Illinois By J. Bradley Young

2. Missouri – New Defenses to Comp Claims

3. “The Prevailing Factor” Test • Prior to August of 2005, the employment had to be “a substantial factor” to be compensable. • After August 2005, the standard was raised…now, the employment must be “The Prevailing Factor”, defined as “the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.” §287.020.3(1)

4. Aggravation Of Pre-Existing Injuries Are No Longer “Automatically” Compensable • Gordon v. City of Ellisville 268 S.W.3d 454 (Oct. 28, 2008). • Here, employee fell and hurt his shoulder. After continued complaints, was sent to Dr. Lehman for surgery. During surgery, Dr. Lehman found that all of the RTC had eroded away due to prior shoulder injuries and chronic changes in the shoulder.

5. Aggravation Of Pre-Existing Injuries Are No Longer “Automatically” Compensable • Claimant testified that after his 1993 shoulder injury he was “99.5% back to normal”, had no difficulties performing the labor required for his job, and could play softball, bowl, and golf without problems. • After the 2005 injury, Claimant testified that he could no longer play sports and needed assistance to compensate for pain in his arm while performing work duties.

6. Aggravation Of Pre-Existing Injuries Are No Longer “Automatically” Compensable • During surgery, the surgeon found no evidence of any rotator cuff tissue and concluded that the work accident was not “The Prevailing Factor” in causing the need for surgery. • Surgeon also concluded that claimant only suffered a sprain of his shoulder and had no disability as a result of the work accident.

7. Aggravation Of Pre-Existing Injuries Are No Longer “Automatically” Compensable • “Based on the standard contained in the current version of Sect. 287.020, we find that the Commission’s decision that the work accident was not “the prevailing factor” in causing his need for rotator cuff surgery and post-surgery recovery was supported by competent and substantial evidence.”

8. Aggravation Of Pre-Existing Injuries Are No Longer “Automatically” Compensable • The Court went on to state: ”Dr. Lehman explained that although he initially believed that Claimant’s need for rotator cuff surgery was based on Claimant’s work accident, when he actually observed Claimant’s rotator cuff tissue he discovered that it could not have been caused by an acute injury.”

9. What Do We Learn From This? • Unlike the Pre-2005 law, the Court will look at the medical evidence and NOT just take the Claimant’s testimony at face value. • 287.190.6(2) – “in determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.”

10. What Do We Learn From This? • When a claimant reports that he has an injury, make sure that the supervisor asks if the claimant has ever had any prior injuries to the injured body part. • If the “new injury” is less severe than the prior injury, the “new injury” may not even be compensable under the “The Prevailing Factor” test.

11. “No Greater Risk” Theory is Finally Enforced. • Bivins v. St. John’s Regional 272 S.W.3d 446 (Dec. 1, 2008) • Facts of Bivins

12. “No Greater Risk” Theory is Finally Enforced. • Prior law – Drewes v. TWA (Explain Facts of Drewes & compare with Bivins) • The Court in Bivins: “The Commission determined that claimant failed to show that she was exposed to an unusual risk of injury that was not shared by the general public.”

13. Injury Must “Arise Out of Employment” • In Bivins, claimant was injured before clocking in for work and was not performing any assigned duties at the time of the fall. • Court in Bivins stated: “Had the law remained as it existed at the time of Drewes, arguably claimant’s injury ( in Bivins) could have been declared as having been incidental to her employment. Present law does not allow recovery on that basis.”

14. What Do We Learn From This? • If the injury occurs while the claimant is merely walking or going up/down stairs, the injury may not be compensable. • If the injury occurs either before work, after work, or while the claimant is doing something unrelated to his assigned work duties, the injury may not be compensable.

15. MO Supreme Court – “No Greater Risk” Theory is Good Law • Mitchell v. MO Highway Commission 287 S.W.3d 671 (Missouri Supreme Court, June 30, 2009) • Facts: claimant was walking “briskly” on a flat even surface at the job site and experienced a “popping” in his knee. • Prior case (Bennett) held that a nurse who walked around a bed and up stairs and experienced a “popping” in her knee - - this was compensable.

16. MO Supreme Court – “No Greater Risk” Theory is Good Law • Sup.Ct stated: “Were the reasoning of Bennett applied here, Miller would be entitled to compensation because his injury, like that of the nurse in Bennett, would not have occurred had he not been walking at work, even though nothing about the work caused the popping or the resulting medical condition and disability.” • The ONLY reason the reasoning in Bennett cannot be applied - - 2005 Amendments to the Workers Comp Act.

17. MO Supreme Court – “No Greater Risk” Theory is Good Law • In denying the compensability of the claim, the MO Supreme Court based their decision on the “No Greater Risk” theory, which states that an injury shall be deemed to arise out of employment only if “it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life.”§287.020.2(2)(b)

18. What Do We Learn From This? • As we discussed earlier, if the injury occurs while the claimant is merely walking or going up/down stairs, the injury may not be compensable. • Supreme Court: “An injury will not be deemed to arise out of employment if it merely happened to occur while working but work was not a prevailing factor and risk involved…is one to which the worker would have been exposed equally in normal non-employment life.”

19. What Do We Learn From This? • When supervisors fill out accident reports, it is NOT sufficient to merely state that “claimant felt pain while working”…the SPECIFIC activity must be recorded in order to maximize the opportunity to use the “No Greater Risk” theory as a defense.

20. What Do We Learn From This? • As we discussed earlier with Bivins, if the injury occurs either before work, after work, or while the claimant is doing something unrelated to his assigned work duties, the injury may not be compensable.

21. Illinois – Did The IL Supreme Court Eliminate Light Duty Work? • Interstate Scaffolding v. The Illinois Workers Compensation Commission, 236 Ill.2d 132, 923 N.E.2d 266, 337 Ill.Dec. 707 (Jan. 22, 2010)

22. Interstate Scaffolding Case • Issue – can you terminate TTD benefits for a claimant on light duty if he is terminated for cause? • Interstate Scaffolding Case – claimant was in a light-duty job and wrote graffiti on the walls at work – terminated for cause • Claimant could not yet return to full duty work

23. Interstate Scaffolding Case • The Arbitrator held that the claimant was NOT entitled to TTD benefits since the Employer was providing light duty work and because the claimant was fired for causes unrelated to his work injury • The Industrial Commission reversed, and then the Court of Appeals reinstated the original award from the Arbitrator

24. Interstate Scaffolding Case • Court of Appeals: “allowing an employee to collect TTD benefits from his employer after he was removed from the work force as a result of volitional conduct unrelated to his injury would not advance the goal of compensating an employee for a work-related injury.”

25. Interstate Scaffolding Case • In the past, TTD benefits could be terminated based upon a “failure to cooperate” which included: • Claimant refused light duty work • Claimant did not perform the light duty work as instructed • Claimant failed to appear for light duty work • Claimant committed a disciplinary violation

26. Interstate Scaffolding Case • Illinois Supreme Court reversed the Court of Appeals in Jan. 2010 • The IL Supreme Court created new law regarding when TTD benefits can be terminated

27. Interstate Scaffolding Case • IL Supreme Court stated: “The touchtone for determining whether the claimants were entitled to TTD benefits was not the voluntariness of their departure from the workforce…Rather, the touchstone was whether the claimants’ condition had stabilized to the extent that they were able to re-enter the work force.”

28. Interstate Scaffolding Case • “We hold that an employer’s obligation to pay TTD benefits to an injured employee does not cease because the employee had been discharged – whether or not the discharge was for “cause”. When an injured employee has been discharged by his employer, the determinative inquiry for deciding entitlement to TTD benefits remains, as always, whether the claimant’s condition has stabilized…..”

29. Interstate Scaffolding Case • “If the injured employee is able to show that he continues to be temporarily totally disabled as a result of his work-related injury, the employee is entitled to TTD benefits.”

30. Where does this leave us? • Can we terminate an employee on light duty? • YES! • Can we cut off benefits for a failure to cooperate with Light Duty? • Maybe

31. Where does this leave us? • Interstate Scaffolding dealt with termination for cause unrelated to the injury • To terminate benefits, the Employer must now show that the termination was related to the light duty work - - for example, failure to report for the light duty work.

32. Interstate Scaffolding Case • If we want to terminate benefits after termination of employment, the termination must be related to the light-duty work (not “volitional conduct unrelated to the injury”). • We can still terminate employment based on bad conduct, but TTD benefits may still be owed.

33. What does “volitional conduct unrelated to the injury” mean? • Falsification of the application for employment – still owed TTD • Voluntary retirement – still owed TTD • Being “pointed out” or other attendance issues – still owed TTD • Assaulting supervisors – still owed TTD

34. J. Bradley Young (314) 421-1850 Cell: (314) 406-3095 jbyoung@rpbm.com Questions?