Case Law Update – Winter 2022

Appellate Court Finds No Illinois Jurisdiction

Industrial Contractors Skanska v. Illinois Workers’ Comp. Comm’n, 2021 IL App (4th) 210003WC-U

Facts

Claimant, a resident of Illinois, is an electrician and member of IBEW Local 538, based in Danville, Illinois. She was hired as an apprentice electrician by Respondent in July 2014. It is undisputed she subsequently sustained an accident arising out of and in the course of her employment.

 

The claimant worked for Respondent from July 2014 through March 2015 at the Duke Energy facility in Cayuga, Indiana. She testified she was contacted by the union training director (based in Illinois) and sent to the job site in Indiana. Upon arrival at the job site, she filled out various forms, including a W-4 and other tax documents. She was also required to participate in a safety class. She admitted that upon arrival at the job site, she was considered “an applicant” and the Respondent had the right to reject her “for any legitimate reason.”

 

A witness for Respondent testified that while the inside labor agreement provided that “the union shall have the sole and exclusive source of referral of applicants for employment,” it also provides, “[T]he employer shall have the right to reject any applicant for the employer.”  The witness further testified that an applicant had to “go through a series of requirements in order to become an employee of our company.” In addition, Respondent had a right to reject the Claimant after she completed safety training. He agreed, however, an apprentice could not turn down an assignment from the union.

 

The arbitrator found the last act necessary to establish a contract for hire was when the Claimant was contacted by the union training director and given the assignment to report to the job site in Indiana. As both the training director and Claimant were located in Illinois when this telephone conversation took place, the arbitrator found the last act necessary for hire occurred in Illinois. The arbitrator noted the Claimant could not reject a job assignment from the union and therefore had no choice but to report to the job site as directed. As such, the arbitrator found Illinois had jurisdiction over the work accident in question.

 

The Commission, with one dissent, affirmed the arbitrator’s decision. The circuit court of Vermillion County confirmed the Commission.

 

Appellate Court Holding and Analysis

The sole issue on appeal was whether the Commission had jurisdiction over the matter and specifically whether the last act to form a contract for hire occurred in Illinois or Indiana. The appellate court noted that where a contract for hire is formed is a question of fact and the decision of the Commission will only be overturned if it is found to be contrary to the manifest weight of the evidence. The court in this case found the Commission’s decision to be contrary to the manifest weight of the evidence, stating: “Though it is not our role to substitute our judgment for the Commission on factual matters, we nevertheless have a duty to set aside it’s decision where an opposite conclusion is clearly apparent. Bethlehem Steel Corp. v. Industrial Comm’n, 41 Ill. 2d 40, 43 (1968)”

 

In its analysis, the court discusses two prior appellate court cases which deal with the question of jurisdiction: Hunter Corp. v. Industrial Comm’n, 268 Ill. App. 3d 1079 (1994), and Correct Construction Co. v. Industrial Comm’n, 307 Ill. App. 3d 636 (1999). In the former, the court found Illinois jurisdiction was proper and in the latter, the court held there was no Illinois jurisdiction.

 

In Hunter Corp., the claimant was a union boilermaker from Illinois who was working in Indiana. The union hiring hall was based in Illinois and the labor agreement mandated an employer could only reject a prospective employee for two reasons: physical incapacity or lack of qualifications. An employee was to fill out a “sign-up sheet” (as opposed to an application) and was guaranteed 2 hours of pay and travel expenses if the employer had no work available for the employee. In this case, the Commission found the contract for hire was created in Illinois, when the claimant was contacted by the union hiring hall and given the referral to the employer, and the appellate court found this decision was not against the manifest weight of the evidence.

 

In Correct Construction Co., the claimant was a union pipefitter from Illinois who was working in Indiana. The union had offices in Chicago and Hammond, Indiana. The union members could only find work through the union. The claimant was contacted by a union business agent from the Hammond union office regarding a job with the Respondent, at an Indiana job site. He appeared at the job site in Indiana the next day and filled out an application and tax forms.

 

The agreement under which the respondent and the union were operating stated that the employer shall have “the sole and exclusive responsibility for hiring” and “the sole and exclusive right of accepting or rejecting applicants for work.” It also stated that “[a] person that accepts an employment referral but who is not employed by the employer shall not receive show-up pay or any other compensation.” The respondent’s office manager testified that a referred employee would not be hired if they did not provide the necessary documentation or failed to complete safety training. Once the individual meets the requirements, he or she is “hired” and paid for time spent in-processing. One of the respondent’s field managers testified that referred employees “could be refused for any nondiscriminatory reason, including lack of qualifications or poor work record.”

 

In Correct Construction Co., the Commission found the last act necessary to create a contract for hire was when the claimant told the union business agent he would accept the job referral to the Respondent in Indiana. The appellate court found this decision was against the manifest weight of the evidence. The court found it relevant that under the language of the governing labor agreement, the union was the exclusive referring agent, “as distinct from the exclusive hiring agent.” The court also found the labor agreement gave the employer a wider latitude in rejecting a prospective employee as compared to the language set forth in the labor agreement in the Hunter Corp. situation.

 

Analyzing the facts of this case, the court found the Correct Construction Co., case to be controlling. The court found the language in the labor agreement between respondent and the union clearly states that the union is the exclusive referral agent for respondent and that respondent retains a right to reject a referred individual. “This language clearly contemplates that the last act necessary for contract formation is the employer’s decision to hire the referred Union member.” (citing to Correct Construction Co.)

 

Finally, the court found it relevant that both the Claimant and the witness for Respondent agreed the ultimate hiring decision was the Respondent’s: the claimant was considered to be an “applicant” upon arrival to the job site, could be rejected even after undergoing the safety training, and could be rejected “for any legitimate reason.”

 

Takeaway

Jurisdictional questions are always very fact-specific. Where the “last act” to establish a contract for hire occurred is not always obvious on its face. In union situations, it is important to carefully read the language of the labor agreement with regard to hiring referrals versus hiring decisions.


 

Delay in Treatment Diminishes Value of Claim

Jeffrey Bullard v. Illinois Workers’ Comp. Comm’n,

2021 IL App (5th) 210024WC-U

Facts

Claimant, Jeffrey Bullard, filed an application for adjustment of claim for injuries he allegedly sustained while in the employ of respondent, Mt. Vernon Police Department. Claimant testified that on March 5, 2014, the high-risk team was scheduled to engage in training exercises. When claimant showed up for work that day, he began transferring gear from his squad car to the truck used by the high-risk team. He recounted that the parking lot was icy. As claimant approached the truck, he slipped on a patch of ice and lost his balance. Claimant was able to regain his balance by grabbing a handrail on the passenger side of the truck and pulling his body toward the vehicle. Claimant testified that he felt immediate pain in his left shoulder and left wrist “from the pulling, bouncing and then twisting, changing direction that happened when [he] reached out to grab the handrail.” The accident was captured on a parking lot security camera.

 

Claimant first sought treatment for his left shoulder and left wrist at Express Care of Mt. Vernon (Express Care) on March 21, 2014. Claimant provided a history of injury consistent with his testimony. He was diagnosed with sprains of his left shoulder and left wrist.

 

On April 28, 2014, claimant returned to Express Care for a follow up. On examination, claimant exhibited mild tenderness in the left wrist with normal range of motion. There was also mild tenderness in the left shoulder. Range of motion of the left shoulder was normal, although claimant reported some increased pain with motion. Claimant was again diagnosed with sprains of the wrist and shoulder.

 

Claimant returned to Express Care on June 6, 2014, for a follow up from the accident and a urine drug screen. Claimant’s complaints and examination were unchanged at that time.

 

Concurrent with this treatment, the Claimant was treating for an injury to the right shoulder. When examined in September 2014 for that injury, the treating physician also examined the left shoulder, noting that the left shoulder appeared normal with no atrophy or scapular winging. He further noted that range of motion and strength in the left shoulder were normal and there was no tenderness to palpation. He underwent surgery to the right shoulder on September 24, 2014 and continued post-operative treatment to the right shoulder thereafter, again making no complaints with regard to the left shoulder. He was discharged from the right shoulder treatment in January 2015.

 

On March 25, 2015, claimant presented to Dr. Nathan Mall and provided a history of the incident on March 5, 2014, as well as the injury to the left shoulder. Dr. Mall’s assessment was a possible superior labrum anterior and posterior (SLAP) tear of the left shoulder and possible left scapholunate tear versus TFCC injury of the left wrist. He found a causal relationship between these injuries and the work accident of March 5, 2014.

 

On June 12, 2015, claimant underwent an independent medical examination by Dr. Jason Browdy. Dr. Browdy reviewed the video of claimant’s accident. He noted claimant walked across a parking lot towards a truck when his feet slipped and he grabbed a railing with his left hand. In Dr. Browdy’s opinion, claimant’s “personal description of the incident is not consistent with the video evidence [he] reviewed.”

 

On December 14, 2015, claimant underwent left shoulder surgery by Dr. Mall, consisting of an arthroscopic rotator cuff repair, partial synovectomy, open acromioclavicular joint resection, and open subpectoral biceps tenodesis for superior labral tear. On April 4, 2016, claimant underwent surgery by Dr. Collard, consisting of a left wrist arthroscopy with TFCC repair.

 

Based on the foregoing evidence, the arbitrator initially determined that the accident of March 5, 2014, arose out of and occurred in the course of claimant’s employment with respondent. The arbitrator concluded, however, that claimant failed to prove by a preponderance of the evidence that his left shoulder and left wrist conditions are causally related to the work accident. In support of this finding, the arbitrator cited “the delay in treatment with respect to the conditions, the long periods of no treatment, the security video, *** the type of injuries diagnosed when compared to the video and the testimony of Dr. Browdy,” and evidence that claimant continued to engage in physical activity at work. The arbitrator found Dr. Browdy to be more credible than Dr. Mall. Dr. Browdy, who viewed the video, opined that the incident of March 5, 2014, neither caused nor aggravated claimant’s left shoulder or left wrist condition. The arbitrator noted that Dr. Mall did not review the video of the incident, and she concluded that the description of the accident provided by claimant to Dr. Mall “appears to be overstated based on what is in the video.” The arbitrator further recounted that Dr. Collard did not offer a causation opinion with regard to claimant’s left wrist condition

 

The Commission affirmed and adopted the decision of the arbitrator. On judicial review, the circuit court of Jefferson County confirmed the decision of the Commission.

 

Appellate Court Holding and Analysis

The court found the Commission’s conclusion that claimant failed to establish that the conditions of ill-being involving his left shoulder and left wrist after June 6, 2014, were causally related to his work accident of March 5, 2014, is not against the manifest weight of the evidence. In its finding, the court found these factors to be particularly relevant:

“The video of the accident as described by the Commission is inconsistent with claimant’s account of the accident, claimant waited more than two weeks to seek treatment for his conditions, there was a significant gap in treatment for the conditions, and Dr. Browdy, the only physician to view the video, opined that the conditions were not causally related to claimant’s work accident.”

 

In sum, the appellate court affirmed the Commission’s decision to only award expenses for the first 3 months of medical treatment and thereafter deny any medical, TTD or PPD benefits.

 

Takeaway

This case is an example of the power of video. Both the arbitrator and the Respondent’s IME physician found the claimant was exaggerating the details of the accident, when comparing his testimony and reported history to the video. In addition, only the IME physician viewed the video and this lead the arbitrator to find his opinions to be more credible than those of the treating physician, who was relying on the claimant’s exaggerated accident history.

In addition, in the world of workers’ compensation in Illinois, this is truly an unusual result. It is almost axiomatic that once a claimant is found to have sustained an accident arising out of and in the course of employment, the Commission will deem that claimant entitled to some level of permanent disability, no matter how minor the injury in question. It should be noted the arbitrator who rendered the decision in this case is no longer an arbitrator with the Commission and has moved on to a position in the private sector.