Keefe, Campbell & Associates, LLC

Editor’s comment: Last week, SafeWorks Illinois hosted their 16th Work Injury Conference at the new Illinois Hotel and Conference Center on the campus of University of Illinois in Champaign. The symposium, titled: Work Injury XVI “Culture Change, Cultural Shock: the Reality of the Illinois Workers’ Compensation System” attracted more than 175 industry movers and shakers. The conference’s annual goal is to promote a well-functioning, cost-effective Illinois workers’ compensation system. It is the only conference of its kind to bring together for one day the five different disciplines–medical, legal, case manager, insurer/TPA and employer–that are key stakeholders in the WC system. Along with cutting-edge clinical issues, the conference focuses on the latest issues relating to workers’ compensation costs. A HDTV quality DVD of the conference is available for purchase from SafeWorks. (Contact Stacey Benson email: sbenson@safeworksillinois.com)

This year’s conference featured the farewell address of Dennis Ruth, who resigned the IWCC Chairmanship effective 10/2/08. Chairman Ruth had previously spoken at the last five Work Injury conferences and is running to become a Madison County circuit court judge. Ruth is proud of the development and growth of the IWCC website during his term in office that provided meaningful case information to all parties in the system. He said he was open for further improvements in the website system that would be like other public records systems that an employer could enter an employee’s name and immediately gain access to all past WC claims. Likewise, he would welcome the system allowing one to enter an employer’s name and access all cases filed against a particular employer.

In a comment we consider fascinating, Mr. Ruth urged “transparency” in respondent’s counsel’s fees because he believes there are some unscrupulous respondent’s attorneys that appeal cases for financial gain and truly do not benefit employers. We have no idea how or what this might mean to the industry and feel it demonstrates his unusual perspective. Trust us; defense fees are “transparent” to the folks who pay them.

Ruth followed Rep. David Reis, R-Willow Hill, who had opened the conference discussing his House Bill 5659 that proposed further WC reforms. The bill has not even been sent to a committee for consideration under our Democratic controlled State government. “Illinois employers continue to be burdened with high costs and frustrations with a system rampant with abuse,” Reis who said House Bill 5659 would:

– Require employees to notify employers of workplace accidents or injuries within 72 hours after they occur

– Deny benefits for injuries caused primarily by alcohol or other drug intoxication.

- Require doctors to certify permanent partial and total disabilities using “medically defined” measurements using the AMA Guides for Evaluating Permanent Partial Impairment to reduce nature and extent disputes.

– Require the commission’s nine commissioners and its arbitrators to have at least 10 years’ experience in workers’ compensation or labor relations.

Jay Dee Shattuck, a lobbyist who works with Illinois State Chamber of Commerce, asserted that the Illinois workers’ compensation system was a still a drag on jobs. Shattuck cited Illinois, for the last consecutive four quarters, has had net job losses and our state’s current unemployment rate is 6.9%. He also pointed out Illinois still is one of the highest indemnity states and while most states are lowering WC costs, Illinois WC costs continue to rise, especially compared to neighboring states. In contrast to the generalities and public relations fluff of former Chairman Ruth, Mr. Shattuck provided very specific data from NCCI to support his claims and confirmed Illinois’ average indemnity cost per claim, average medical cost per claim and average total cost per claim were all higher than our sister states of Indiana, Iowa, Missouri and Wisconsin.

SafeWorks medical director David Fletcher spoke on the impact of the aging workforce on the Illinois workers’ compensation system. “With the recent economic meltdown, a lot more workers will be staying on the job longer and many will use the WC system in lieu of group health benefits. Illinois employers will pay the brunt of this since there is no apportionment in Illinois of preexisting conditions, such as an osteoarthritic knee. “While older workers are generally safer that their younger counterparts, when injured the cost of an injury is double for any employee over age 40 and the severity of the injury is much higher due to age-related factors,” cited Dr. Fletcher.

One major cost body part for employers in aging workers is the shoulder. Dr.  Fletcher pointed out that the Aging Rotator Cuff is particularly vulnerable because of a diminished blood supply with age, increased bone spur size after age 50 and increased incidence of degenerative-related partial and full thickness tears with age. These age-related factors for large prevalence of shoulder related injuries in workers over 45. These claims often are bilateral and very expensive because of the extensive rehabilitation needed post-operatively to regain range of motion and strength.

With the success of the 16 year-run in producing the annual Work Injury seminar, Dr.  Fletcher is working to establish a nonpartisan, workers’ compensation institute at the University of Illinois to help provide meaningful data for economic development and has discussed the creation of with the UI’s Institute of Government and Public Affairs as well as the U of I Industrial and Labor Relations.

This article was drafted by Safeworks Illinois and comments and questions can be directed to Stacey Benson at the email address above.

Editor’s comment: This decision is so defense and common-sense oriented; it is hard to believe it will actually be followed by the Commission and our courts in the future. We are going to have to take a wait-and-see approach on this one, folks. Trust us, the question gets asked all the time.

In Interstate Scaffolding, Inc. v. The Workers’ Compensation Commission, (No. 3-07-0801WC October 15, 2008), a 3-2 split appellate majority was faced with a claimant who was on light duty work. Claimant was employed by Respondent as a union carpenter. On July 2, 2003, he suffered a work-related injury to his head and neck and sought medical treatment. His physician eventually authorized claimant to return to work subject to certain lifting restrictions, and claimant began working light duty for Respondent at one of its facilities. At the arbitration hearing on his application for adjustment of claim, claimant testified the work provided by Respondent was within the restrictions prescribed by his doctor.

Claimant continued to work light duty on a regular basis until his employment was terminated. With respect to the events leading to his discharge, claimant testified he had written religious inscriptions on the walls and shelves in a storage room on respondent’s premises. Claimant stated he wrote the inscriptions with permanent marker and some of his coworkers were aware of the writings. Claimant also indicated there was other graffiti and drawings on the storage-room shelves prior to when he made the inscriptions. Nevertheless, claimant acknowledged he did not have permission from respondent to write on the walls and shelves. He also stated the writings did not pertain in any way to his job duties with Respondent and, aside from the storage room, at no other location on respondent’s premises did non-work-related slogans or writings appear on the walls, affixed shelves, or elsewhere.

On May 25, 2005, claimant brought his paycheck to an employee in respondent’s payroll department. Claimant contacted the payroll department because he had been overpaid and because no federal taxes were being withheld from his paycheck. Claimant testified he had received other paychecks that contained overpayments and he “didn’t want to get accused for not saying anything.” After claimant spoke to the payroll worker, she contacted an assistant to Respondent’s president. According to claimant, the assistant to the president approached him, called him a “hypocrite,” and stated that if he believed the religious slogans he had written on Respondent’s premises, he would have brought the erroneous paychecks to respondent’s attention. Weeks earlier, the assistant to the president testified claimant responded he “deserved those wages” and he was a “union worker.”

In response to the confrontation, claimant contacted the police department, complaining he was being harassed and discriminated against because of his religious beliefs. A police officer came to Respondent’s facility, interviewed various individuals, and wrote a report. However, no arrests were made, and no one was charged with any crime.

The president was later contacted to report the incident and the fact claimant had contacted the police. At that time, the assistant informed Respondent’s president for the first time about the writings claimant had made on the walls and shelves in the storage room. The president subsequently instructed claimant’s supervisor, to terminate claimant for defacing company property.

The Arbitrator denied benefits and the Commission reversed. The Circuit Court affirmed the Commission. Most defense observers assumed the Appellate Court would state something about the “manifest weight of the evidence” standard and affirm. Instead, the appellate majority ruled that after the employee was discharged from employment, for reasons unrelated to his work related injury, defacing company property, he was no longer entitled to TTD benefits, despite his continued medical inability to return to full duties as carpenter.

The questions that remain unanswered and will continue to be asked are what to do when the employee is given light work that is clearly within his/her medical restrictions and refuses to do it, misses work or otherwise fights the process. Our recommendation in such situations is to document, document, and document. Don’t hesitate to email or call us for legal guidance on these tough cases. Get a video camera if possible and take lots of pictures of the employee so you can demonstrate to the Arbitrator and Commission failure to comply. Provide oral warnings and then write the employee up to make sure he or she understands what you are doing and why. Terminate as a last resort. And we will then have to wait and see if the Commission and courts follow this ruling.

If you have thoughts or comments, please send a reply. The web link for the ruling is: http://www.state.il.us/court/Opinions/AppellateCourt/2008/3rdDistrict/October/3070801WC.pdf

Editor’s comment: It appears many Illinois WC adjusters, nurse case managers and other risk management folks continue to look at our very liberal “two-doctor” rule as a sounding point for medical cost control. As defense lawyers, we urge you all to stop, drop and discontinue that focus. For the average individual, we feel it doesn’t control costs, it encourages unnecessary care.

The two-doctor rule is from Section 8(a-3) of the Act and provides the injured worker can treat with

1. Any and every doctor or healthcare giver selected by the employer;
2. Any doctor the injured worker “chooses” for care plus anyone to whom that physician formally or informally refers them to;
3. Another doctor they choose plus anyone to whom that second physician formally or informally refers them to.

Please also note the two-doctor rule is interpreted to allow the employee to choose a group of doctors and treat with any of them as a “choice.” If the worker is seeing one doctor in a group of doctors and that doctor drops out of the practice of medicine, retires or dies and the employee then sees another doctor in the group, it is still legally viewed as one choice of doctor.

If you aren’t paying careful attention, this rule allows for unlimited choice of physicians. As such, the rule doesn’t actually “control” anything. Yet, we still see many adjusters and others voluntarily teaching this rule to injured workers in this state for reasons we simply can’t fathom. We are actually aware of some defense folks who feel there is some unwritten duty to tell injured workers about the rule. Please stop doing so.

Several adjusters wrote to tell us they have a view of the rule to allow them to provide the injured worker a list of doctors from the adjuster or nurse case manager. They feel this makes any physician chosen from the list a “choice” of the employee. There is no case law, rule or regulation to support this concept and we have little confidence the Commission would adhere to this idea. With respect, veteran defense lawyers feel if you, acting as a representative of the employer, recommend one, fifty or five hundred doctors, claimant attorneys are going to assert any or all of them, if then selected by the employee from a small or large list, are the employer’s “choice of physician.”

And we feel the best follow-up article to last week’s lead article is to let you and everyone in Illinois WC claims and nurse case management understand the two-doctor-rule allows for unlimited medical care and doesn’t effectively or institutionally limit anything.

Please also understand the Petitioner’s bar knows the rule like the back of their hands and, upon signing up a new client, whenever and wherever possible, they carefully refer their clients to lots of doctors who are trained on the nuances of the rule. Such doctors know the ins-and-outs of being certain they are within the “two-doctor-goofiness” and then may over-treat in duration or type of care.

We have seen the Arbitrators and Commission deny care based upon the “two-doctor-rule” once every decade or so—they will make an end-run around the rule in any way possible. We have seen Arbitrators in pre-trial hearings openly advise claimant attorneys on the best strategy to bring medical care within the rule. It is a very easy rule to side-step but we are not going to tell anyone how to do it.

And if you were an innocuous claimant who wasn’t represented by counsel and had only seen an OccHealth provider for the company, if an adjuster or NCM innocently told you of the “two-doctor-rule”, wouldn’t you think it meant you were supposed to seek additional “legal” treatment  to include second and third opinions from at least two more doctors?

Does any employer in Illinois want insurance adjusters or NCM’s to innocently tell injured workers of a rule that clearly encourages the worker go beyond OccHealth or company-selected physicians to seek more care from not one but two more doctors?

Our vote is to

1. Completely discard the “two-doctor-rule” concept as a method of containing medical care;
2. Always refer patients to the best possible providers on every claim and have that doctor provide care with a  beginning, middle and end’ and
3. Immediately move to global utilization review of all medical care within or without the “two-doctor-rule” as a much more effective medical cost containment strategy.

One of our best defense clients pointed out in some industries, OSHA regs require you to know where your employees will receive first aid and initial follow-up care. If you need the Reg, send a reply. They are always prepared in case of any injury to tell all their injured employees where to seek urgent or non-emergent care—you should have this as a company-wide goal. After OccHealth or other care, then maintain control of medical care whenever and wherever possible. We feel this is the best possible practice.

Please, please give us any thoughts you have that may be fit for publication.

Editor’s comment: It’s Canada, but we can hope, ehhh? From the web at http://www.edmontonsun.com/News/Edmonton/2008/10/15/7093606.html

A “pathological liar” who defrauded the Workers’ Compensation Board of nearly $800,000 while working there as a case manager has been put behind bars. Sandra “Sam” Plumite, 40, was sentenced to three years in prison this morning after the judge hearing the case rejected her plea for community-based house arrest. “A sentence in the community is not appropriate to emphasize denunciation and deterrence,” said Court of Queen’s Bench Justice Robert Graesser. “This was a theft of a very large scale from an employer who trusted her,” said Graesser.

The judge accepted Plumite suffers from a number of psychiatric and psychological issues due to an “unfortunate and tragic childhood” and needs extensive therapy. However, Graesser ruled they do not reach the level of exceptional circumstances, which is needed to trump a required denunciatory sentence for employer theft. “I am not satisfied she is not a danger to the community,” said Graesser, calling her a high risk to re-offend in a similar fashion. “As a pathological liar, she cannot be trusted to be honest to any future employer.”

The judge also ordered the St. Albert woman to pay $769,106.77 in restitution to the WCB. Plumite earlier pleaded guilty to charges of fraud over $5,000, corruptly accepting a secret commission and uttering a forged document. The Court heard she had accepted $117,500 in illegal payments to her bank account from an injured worker who was getting extra WCB money he was not entitled to as a result of her doctoring his claim.

Even the fraudster’s resume was phony as court heard Plumite had bolstered her job application by falsely claiming she had received two diplomas from Grant MacEwan College and lying about a previous bank job.

According to a statement of admissions, Plumite worked as a WCB case manager from Sept. 5, 2000, to June 24, 2003, and her job consisted of reviewing claims of injured workers and deciding what benefits they would get. Plumite’s frauds were discovered when WCB management did a review of the injury claims of one of her clients, Gurcharn Singh Sidhu, after becoming aware of a large number of unjustified payments to him authorized by her. The review disclosed Sidhu received more than $300,000 in benefits he was not entitled to and further investigation revealed he had made eight deposits to Plumite’s personal bank account totaling $117,500. Further reviews showed Plumite had approved other unauthorized payments to more than a dozen WCB claimants using a variety of deceptions, court heard. The total of the overpayments was $769,106.77.

Some of the deceptions included modification of WCB computer system records; giving advance payments, but failing to make the required deductions from the regular payments; and making large settlement payments without any supporting medical diagnosis or documentation. Court heard Plumite also authorized hugely inflated mileage payments or training allowances, payments for child care expenses for persons with no minor children and benefit payments for an injured worker who had died.

According to the statement of admissions, Plumite also reopened the closed file of one injured worker who happened to be a friend of her ex-husband so that she could repay him money that she had borrowed. In January, Sidhu, a 52-year-old Airdrie man, was given a two-year conditional sentence to be served in the community, followed by three years of probation, after pleading guilty to paying a secret commission to Plumite.

Editor’s comment: Refusing conduct on moral grounds without a belief the conduct is illegal does not render the refusal protected from retaliation under Title VII. In Tate v. Executive Management Services, Inc., the Seventh Circuit overruled the lower court ruling dismissing the appeal. If you review this decision, we ask the rhetorical question: would this happen if Plaintiff was a woman? The evidence appears to clearly establish this male Plaintiff was terminated for refusing to continue an intimate relationship with his female supervisor. It appears the court looked at the perception of the parties and not their actions in ruling.

Plaintiff worked for Defendant until his termination January 14, 2004. He brought suit under Title VII alleging sexual harassment and retaliation for his refusal to continue a relationship with his supervisor. In trial by jury he prevailed only on the claim of retaliation, and Defendant appealed that verdict alleging Plaintiff did not engage in protected conduct sufficient to establish retaliation, nor did he prove his termination was due to a refusal to engage in sexual conduct with his supervisor where his termination followed an independent investigation. They argued the issue of retaliation never should have been given to the jury due to the absence of protected conduct. The Appellate Court reversed, finding Plaintiff failed to show he engaged in protective conduct.

Plaintiff was a male subordinate of a female field supervisor with whom he alleged a romantic relationship. The field supervisor denied there was ever a physical relationship, while Plaintiff alleged a relationship wherein they had intimate meetings 2-3 times per week, either at work or at the home of a co-worker.

When hired in 2002, the supervisor picked Plaintiff to be on her work team, and a week after being hired, recommended him for promotion to supervisor, which involved a pay raise. Plaintiff married another woman in August 2003, and tried to end the relationship with the field supervisor in October 2003 for the sake of his marriage. The field supervisor rebuked his efforts to end the relationship, and threatened Plaintiff with termination if he did not continue the relationship.

On January 13, 2004 the field supervisor summoned Plaintiff to her office and demanded Plaintiff’s decision regarding their ongoing relationship. Plaintiff informed there would be no relationship, and following a loud altercation was told to get out of her office. The discussions spilled into the break room, where the field supervisor informed Plaintiff she would have him fired for refusing to perform work assigned to him. The field supervisor placed a call to her supervisor but did not allow Plaintiff to speak to him. The management member instructed the field supervisor to tell Plaintiff to go home, and he was escorted from the building by a security officer.

Plaintiff left and the field supervisor called the company’s general manager and indicated Plaintiff had refused assigned work and prepared an insubordination report alleging Plaintiff was sent home for repeatedly refusing a work assignment, and that a security officer was heard the entire exchange.

The next day Plaintiff called management, but was intercepted by an HR representative who informed Plaintiff he was fired and was to return his work items. He was given no opportunity to explain his position.

The jury found the investigation was tainted by the field supervisor’s bias and found for Plaintiff on the retaliation claim.

On appeal Defendant argued the jury never should have been given the claim of retaliation because Plaintiff could not establish his termination regarded protected conduct. Title VII renders illegal an employer’s discrimination because of the employee’s refusal to perform an unlawful employment practice. A Plaintiff claiming retaliation must show he engaged in a statutorily protected activity and suffered an adverse reaction because of the activity. To engage in protected conduct Plaintiff must show he reasonably believed the practice he opposed, in this instance, intimate relations with his supervisor, violated Title VII. Analyzing testimonial evidence, the Court concluded Plaintiff did not believe the relationship was illegal, and therefore was not protected conduct.

The Court noted Plaintiff’s objections to the relationship were not based on legal grounds but because he and his field supervisor “were not good together” and because he wanted to “keep the slate clean” within his marriage. Because he did not sincerely believe the behavior was illegal, he could not establish his opposition to it was protected conduct under Title VII. Therefore, Plaintiff could not establish the necessary requirements of retaliation under Title VII, and the verdict was reversed.

This article was researched and written by Joseph R. Needham, J.D. Please direct your thoughts and comments to Joe at jneedham@keefe-law.com.

Editor’s comment: We were asked this question by a veteran adjuster who is learning claims practice in Illinois but is not familiar with the nuances of Illinois workers’ compensation and our unusual system. Our answer to all three questions above is yes, you can all direct medical care to the extent you can. In a world where it is legal to do things that aren’t illegal, there is no provision of the Rules or Act that prohibit or even discourage such practices.

When we say “direct” medical care, please understand you can legally recommend, advocate, propose, cajole, push, press, encourage or endorse physicians/surgeons. But, if the employee doesn’t accept your recommendations, there is nothing you can do about their eventual choice of care in Illinois. But the adjuster is typically the first place an injured worker will go to for advice on a different treater or second opinion. Please don’t deflect that recommendation to anyone else—be ready with a list of preferred providers who have great resumes and experience dealing with similar claims. If you need a list, send a reply.

Our client was advised by a nurse case manager the nurse case manager couldn’t make recommendations for treatment because they would have malpractice liability to do so. To avoid such liability, they typically advised against making any recommendations, ever. When pressured, the nurse case manager would provide not one but recommendations for at least three different treaters. The nurse case manager also feels it important to advise all claimants of their right to select “two doctors” of their own choosing.

Ah, well. Our advice to all of our readers who are claims adjusters is to “take advantage of your advantage.” Direct treatment whenever and wherever you can. The practice should work the vast majority of the time. When and if an injured worker looks to you for advice, give them the best advice possible and direct them to the very best medical consultants you know.

We have never heard of a single lawsuit in Illinois or anywhere in which anyone sued someone for recommending a doctor. If the doctor commits malpractice, the injured worker may or may not sue the doctor but we have no knowledge of anyone suing someone who recommended that physician or surgeon. If anyone out there has heard of such a suit, please send a reply with details.

And we don’t agree at all with telling an injured worker of three different recommendations for doctors to let them blindly pick—if someone did that for us, we would question how good any of the recommended doctors might be. We recommend making up your mind and sending them to the best of the three.

We also consider it a very bad idea to feel an insurance adjuster or nurse case manager has an affirmative duty to tell someone of their right to go to “two doctors” or five hundred doctors if they follow the arcane Illinois rules. Trust us; this rule is very hard for even veteran attorneys to understand. Don’t go there and give free and unnecessary legal advice. Don’t lie to any one but never, ever tell the injured worker they have a right to a 2d or 3d or 50^th opinion of their own choosing. After you discuss and agree there is a problem and a need for another opinion, tell the injured worker if they want a second opinion you will set it up for them.

Are you going to have to pay for medical care for referrals to your recommended physicians? As a general rule, the answer is yes. It is very difficult to “overrule” your choice of doctors. There is a recent ruling which indicates such physicians are not your “agent” but you are almost always going to be required to pay for such care. If you don’t like the care being provided or disagree with your recommended physician, the best cure is to stop recommending them.

Please understand just about every claimant lawyer in this state tries to get claimants to go to doctors of the attorney’s choosing. Some of the attorneys look for doctors who will cut and cut and keep everyone off work as long as they can. We assure all of you the attorneys could care less about remote malpractice liability for referring someone to a physician.

We also assure all of you part of the job of an adjuster is to use UR and IME’s to stop possible overtreatment. If you think we are kidding, you haven’t been working Illinois claims long enough. The best tool to rein in the “two doctor” rule is utilization review. If you need recommendations on the top UR providers in this state, send a reply.

Please reply to give us your thoughts and comments on directing claimants to preferred providers for ongoing care or second opinions.

Editor’s comment: This is actually the extended answer to our KC&A Trivia Corner question last week. We got so many quizzical inquiries; we wanted to make sure all of you were on board with this mildly unusual and hopefully rare work injury claim.

Illinois claimants are entitled to a bunch of things when they suffer a compensable amputation at work. Amputation to a finger or toe occurs when the affected digit(s) suffer any bone loss. It is possible to cut off the tip of one’s finger and not suffer a compensable amputation—the lost tissue cannot contain any bone. In the vast majority of situations, tissue without bone loss grows back and may result in typical compensation for either specific loss or disfigurement at normal PPD rates. When you ask a veteran defense lawyer about whether it is an amputation, they will first ask about bone loss—check x-rays or other medical tests for accuracy on the issue.

If the employee suffers an amputation of even a miniscule portion of bone at the tip of the finger or toe, three issues arise for the claims handler to consider.

• The low-wage employee becomes entitled to the very high minimum PPD rate for amputation loss—it is currently set at $456.28. Therefore, if you have a worker making $95 per week who suffers the loss of some bone in the tip of his middle finger, he is entitled to 50% of the middle finger or 19 weeks times $456.28.
• The high-wage employee becomes entitled to the very high maximum PPD rate for amputation loss—it is currently set at $1,216.75. The maximum PPD rate is set by taking 60% of the average weekly wage to the maximum for amputation loss. To reach the maximum PPD rate for amputation loss, an employee would have to make $2,027.92 per week or just over $100K per year. You may note the full undiscounted value of 100% loss of use of the thumb in this state for a maximum amputation rate claimant is 76 weeks times $1,216.75 or $92,473.00!
• Claimant attorneys in Illinois who handle undisputed amputations claims typically receive legal fees of $100. There is one major exception to this limitation—as a claims handler with an amputation loss; you have to start paying weekly PPD benefits at the correct rate as soon as the employee reaches MMI. If you don’t, whether you knew the rules or not, a claimant attorney can seek to receive both a 50% penalty for claimant and a 20% attorney fee on accrued PPD due until the weekly amounts due are paid up to date. Please note you may still continue to negotiate with claimant to close the balance of PPD due and any future medical rights but you have to continue paying weekly PPD while you are doing so.

We want all of our readers to know the last trivia question is a teaser—we inquired as to whether a surgically reattached member can still qualify for amputation handling. Having again recently researched the issue, we are confident the IWCC has not yet decided such a case. We don’t feel one should be able to receive the additional and generous benefits for amputation if the member is reattached and works normally. But we aren’t in a position to make that final decision so we will continue to wait and watch until our Commissioners tackle the problem and then report their wisdom on what may be a tough ruling.

Please also note many claims handlers are confused by the provision of the Act that allows the loss of two or more digits to be treated as the loss of use of the hand. Our vote is don’t be confused. If you do the math, the sum of the Illinois weekly PPD values for the thumb and other fingers actually exceeds the loss of use of the hand. If you compensate for 100% loss of use of the first and second fingers, it is the equivalent of 39.5% loss of use of the hand. If the Arbitrator writes the award on the fingers or the hand, it typically won’t make a great deal of difference.

Our strong vote on amputation claims is TLC—apply tender loving care to someone who is suffers one of the cruelest losses a human can suffer. Go the extra mile to insure the employee is taken care of and advised they will get the best possible medical care and benefits during their recovery. Consider referrals to hand specialists like Drs. Jay Pomerance, Michael I. Vender, Evan Crandall or Peter Hoepfner. When the worker reaches MMI, let them know you are taking further care of them by both accommodating any restrictions and also paying them what they are due under our Act. Many of our clients have obtained best possible outcomes with this approach. If you have further questions, thoughts or comments about handling amputation losses in Illinois, please send a reply.

Editor’s comment: To succeed on a claim under the old ADA, a Plaintiff must establish he/she is

a) “Disabled,”

b) Qualified to perform the essential function of the job either with our without reasonable accommodation, and

c) Suffered an adverse employment action because of the disability.

In Equal Employment Opportunity Commission (EEOC) v. Lee’s Log Cabin, Inc., (No. 06-3278 October 6, 2008), the EEOC (Plaintiff), on behalf of an HIV-positive female job applicant, sued Defendant due to the latter’s refusal to hire the applicant as a waitress. The applicant applied for the waitress position in 2004. She was 18 years of age and had been born with HIV. On the job application she apprised Defendant of her lifting restriction of 10 lbs. She further noted on the application this restriction could not be accommodated. The applicant knew from the job description Defendant’s wait-staff was required to lift between 25 and 30 lbs. multiple times during a shift. The parties disputed whether the applicant later told Defendant’s assistant manager her restriction was temporary.

The applicant returned to Defendant’s restaurant one month later and asked to revise her application. The assistant manager retrieved the application at which time the applicant saw “HIV+” written on the front. The assistant manager acknowledged he made the notation. He further explained the store owner made the hiring decisions. The store owner later testified he did not hire the applicant because she was unable to lift more than 10 lbs. and had no prior waitressing experience.

The EEOC filed suit alleging Defendant violated the American with Disabilities Act (ADA). This was the applicant’s second lawsuit in three years. In the first suit she alleged her employer fired her when it learned she was HIV positive. In the first suit the EEOC reached a settlement on her behalf.

Defendant filed a motion for summary judgment. Subsequently, the EEOC filed affidavits from the applicant and her physician which discussed how “AIDS” or “HIV/AIDS” affected her life activities. This was the first time the applicant alleged she actually had AIDS. The EEOC presented no evidence on how being HIV-positive alone affected the applicant. In addition, the EEOC submitted the physicians’ affidavit in violation of the District Court’s pre-trial order because it had failed to disclose the physician as its expert.

The District Court granted the motion for summary judgment. It held HIV and AIDS are not synonymous and the EEOC’s eleventh hour attempt to shift the factual basis of its claim came too late. Therefore, it disregarded the affidavits. The District Court held the EEOC’s failed to present evidence which showed HIV affected any of the applicant’s major life activities and thereby failed to make a threshold showing that her HIV-positive status met the statutory definition of “disability.” Finally, the District Court held there was no showing Defendant knew the applicant suffered from AIDS and it was “questionable” whether the applicant was a qualified individual under the ADA. Plaintiff appealed.

The Seventh Circuit noted the ADA prohibits discrimination against a qualified individual with a disability because of the disability. It noted further whether an individual has a disability under the ADA is an individual inquiry. The Seventh Circuit found the EEOC failed to explain why it waited until its response to summary judgment to disclose the applicant had AIDS “and that this was the actual basis for the discrimination alleged.” Thus, the Seventh Circuit held the District Court had not abused its discretion in disregarding the affidavits submitted by the applicant and her physician. Thus, the record was silent on the effect of HIV on the applicant’s life activities and the District Court necessarily concluded the EEOC failed to make a threshold evidentiary showing of a disability within the meaning of the ADA.

The Seventh Circuit also addressed whether the applicant was a “qualified individual” under the ADA. It found she was not. The Seventh Circuit found a “qualified individual” is one “with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires” and must also “satisfy the requisite skill, experience, education and other job-related requirements of the employment position.” In the present case the applicant informed the Defendant in her own job application she was unable to lift over 10 lbs. and further advised Defendant her restriction could not be accommodated. In addition, the applicant knew the position required lifting more then 10 lbs. Thus, summary judgment in favor of the Defendant was appropriate.

We note this ruling may be impacted when the ADAAA goes into effect on January 1, 2009. This article was researched and crafted by Matthew A. Wrigley, J.D. Please direct your thoughts and comments to Matt at mwrigley@keefe-law.com.

Editor’s comment: Many indicators point to a “blue” President. However you feel about it, please get out and vote. Early voting started today!!

If the pollsters are right, we are confident the current darling of the Democrats will provide support to their quiet friends, the American plaintiff bar and U.S. unions. You can bet the tort reform movement is going to be fighting an uphill battle the entire time when and if the Democrats wear the mantle of power. One clear demonstration of how this may unfold is an unusually named bill called the Employee Free Choice Act (EFCA) now working its way thru Congress. If passed by the Congress, we are advised the bill would be signed into law by the Democratic candidate, should he be elected President.

The proposed legislation would overturn a 43-year-old system in which union representation elections are conducted via a federally overseen secret ballot process, and replace it with a less formal “card check” procedure where the rules are enforced not by an unbiased federal representative, but by decidedly partisan union organizers. Instead of having employees vote secretly to join a union or not, the employees would be bullied, bluffed or pressured into signing a card—when enough cards are signed, the union will be in.

This new legislation would disenfranchise 105 million American workers. Please note all employees don’t have to actually vote, the “pollsters” simply have to get enough cards to indicate a majority want a union and the rest of the votes are rendered superfluous. Workers would never have the option of voting against union membership and millions of workers could be forced into a union without ever getting the chance to vote on the matter. Without secret ballots, union organizers know exactly who has signed union cards and who has not. In the past, union organizers have repeatedly approached and pressured—and, in some cases, threatened—reluctant workers. They have also used pro-union co-workers to solicit signatures, putting peer pressure on “holdouts” to change their minds.

The card-check process also denies workers the right to vote “yes” or “no” on joining a union. Workers can only vote “yes” by signing the card. Not signing a card simply means “not yet.” Organizers are free to return again and again until they get the result they want. That is not ‘voting,’ which by definition is a one-time choice between two or more options. In essence, this legislation is designed to do one thing and one thing only–to make it easier for labor unions to shore up their shrinking membership rolls by openly or clandestinely pressuring potential members.

We feel there is nothing about this bill that is good for American business or anyone in the United States. We are perplexed by the name of this bill. How in the world can something that actually reduces freedom and eviscerates a fair process be known as “employee free choice?” Isn’t it an oxymoron to see the “Democrats” support something so arguably undemocratic?

Please remember, if you like complex and ever-changing legislation like FMLA, ADAAA and EFCA, get ready for a fun four years. We are confident the minds behind such legislation have lots of other zany ideas for all of us. Please feel free to reply or comment on this new legislation.

Editor’s comment: We have had a number of physicians tell us of the concern. Most MD’s don’t feel any scientific study can be made in which WC claimants are part of the test group—unless you are testing to prove WC claimants have other issues including secondary gain to retard normal recovery. Please note this is not a phenomenon for Illinois only—it is common across the continent.

A reader sent us a study and article by R. Frank Henn, III, Lana Kang, Robert Z. Tashjian, and Andrew Green, Patients with Workers’ Compensation Claims Have Worse Outcomes After Rotator Cuff Repair from the Journal of Bone and Joint Surgery, J. Bone Joint Surg. Am., Oct 2008; 90: 2105 – 2113.

The Article states: ”workers’ compensation patients who suffer from rotator cuff injuries fare worse after surgery.” According to the study, 125 patients (including 39 with workers’ compensation claims) who underwent unilateral primary repair of a chronic rotator cuff tear by a single surgeon were studied and evaluated one year after surgery, prior to the settlement of any claims. Outcomes were assessed with the Simple Shoulder Test (SST); the Disabilities of the Arm, Shoulder and Hand (DASH) index; three visual analog scales (shoulder pain, shoulder function and quality of life); and the Short Form-36 (SF-36). According to the Journal, patients in the workers’ compensation group were significantly younger; had greater work demands; and had lower marital rates, education levels and preoperative expectations for the outcome of treatment compared to the patients in the non-workers’ compensation group.

Before surgery, the workers’ compensation patients had significantly lower scores on the SST, the SF-36 physical function scale and the SF-36 social function scale, the study said. One year after surgery, those patients reported worse performance on the SST, the DASH, all three visual analog scales and the SF-36 and had worse improvement on the DASH, the visual analog scales for shoulder pain and function and the SF-36 bodily pain and role emotional scales, the Journal said. The study indicates multivariable analysis controlling for age, sex, comorbidities, smoking, marital status, education, duration of symptoms, work demands, expectations and tear size confirmed workers’ compensation status was an independent predictor of worse DASH scores.

The physicians concluded patients with workers’ compensation claims report worse outcomes – even after controlling for confounding factors – and that the existence of a workers’ compensation claim  is often a precursor to a less positive outcome following rotator cuff repair. What we need the physicians who read this Update to tell us is how to work to match outcomes between the WC claimants and non-WC claimants. If you have thoughts or comments, please send a reply.