Keefe, Campbell & Associates, LLC

Editor’s comment: We are chagrined to see the Illinois Workers’ Compensation Commission is now touting the fact the Illinois Department of Insurance has gotten a conviction of a workers’ compensation insurance broker. They actually have reported his name and crimes in detail on their website. There is a link to his sentence.

In stark contrast, the Commission still adamantly refuses to publish the names, crimes or sentences of any misguided claimants. Their website says:

To date, the Illinois Department of Insurance Fraud Unit has referred cases that led to seven convictions of claimants, and now one conviction against an insurance agent. New indictments continue to come in. Congratulations to the IDOI.

Congratulations, indeed!!! The “fraud-busters” have been in business for four years. The wise-guys who run the Commission don’t mind attacking Illinois business. They feel publishing the names of miscreants who abuse the workers’ compensation system in this state is bad for new business.

Further, seven busts in four years is, in our minds, hilarious. The cost to Illinois business has to be several million dollars with no indication any restitution has been paid. The “dirty secret” of WC fraud in this state is the unquestioned truth the vast majority of Illinois states’ attorneys won’t consider charges once the Illinois Department of Insurance refers a claim for prosecution. Such matters are simply dropped. We hope the next administration brings workers’ compensation fraud reform to the table.

We appreciate your thoughts and comments.

Editor’s comment: While looking up other stuff, we note NCCI, the U.S. top statistical analyzers of WC and other data has published a sweeping workers’ compensation survey with their analysis on the web at:

https://www.ncci.com/Documents/WorkersCompensationClaimFrequency2008.pdf

They report:

1.       Over the last five years, there were significant declines in total lost-time claims frequency for all U.S. industries, geographic regions, and employer sizes

2.       The number and frequency of permanent total claims have increased significantly over the last four years. All major causes of injury contributed to the rise

3.       The rise in permanent total claims appears to be driven primarily by workers age 50 or under

4.       While claim frequency generally decreases as risk size increases, single-state risks in some classes have higher claim frequency at the higher payroll sizes than at lower payroll sizes

It is easy to conclude that, as claims have fallen off, fewer claims representatives are necessary. NCCI estimated claims frequency fell 4.0% for 2008. Further declines are expected this year, as employers and jobs continue to shrink with the U.S. economy.

But NCCI also noted high-cost permanent total claims are the exception to the decrease in falling claims while indemnity and medical severities are rising. This spike in T&P claims means more complex cases that require greater attention are going up. We assure our readers this is one of the reasons veteran defense attorneys are needed in Illinois.

We consider the report required reading for industry specialists in medical, legal, claims and HR fields. Please take a look and provide your thoughts and comments.

Editor’s comment: First, we were asked if balance billing is “legal” in Illinois and what to do about the practice, when and if it appears. Balance billing is the practice of having the medical provider accept a lower amount for a WC medical service from the insurance provider and then continue to dun the patient/injured worker for the balance.

We had a concerned client tell us a claimant attorney and unnamed Arbitrator both advised during a pretrial that they would not take steps to stop balance billing. The Arbitrator indicated he/she was going to award the bills despite the fact the healthcare giver already accepted a lower payment.

In our view, some claimant attorneys and a few arbitrators are always going to tell you to do what is easiest for them, regardless of the cost to the insurance carrier or self-insured employer. Claimant attorneys in Illinois sometimes “side” with the chiropractors and overtreaters because some of them send attorneys new clients and help build attorneys’ claims. If an insurance carrier will grudgingly pay something, it is easier for the claimant lawyer than getting five hundred phone calls from a whining client about a chiropractor or overtreater’s bills.

The bigger picture is balance billing is a violation of Illinois law. Effective July 20, 2005, “balance billing” is no longer legal. (Sec. 8.2e). Please note while the practice is proscribed, there is no specific penalty for continuing to balance bill a patient or the employer.

When we have authority from a client, what we are doing when balance bills are received is to write the medical care provider and confirm we will sue them to force them to stop sending collection notices or taking collection action against the worker. The letters typically work—we haven’t actually sued anyone yet. If we had to sue, we are not sure what a circuit court judge would do with such a lawsuit but we are confident they would enforce the law as written. And actions to block credit collection are much more common than they used to be.

Second, last week, we again reported the ruling in Carter v. Tennant Company that allows an Illinois employer to ask a prospective employee if they:

•         Ever had any occupational injuries, accidents or illnesses.

•         Lost time from work for a work-related injury or illness.

•         Saw a doctor for any work-related injury or illness.

We had a number of claimant attorneys tell us the ruling is wrong and doesn’t follow ADA. We replied to tell all of them the questions are quoted out of a federal appellate court ruling. The members of the court state current law. The ruling in Carter v. Tennant Company is limited to the court’s review of Illinois law only. It may be illustrative on what they may rule in considering the laws of other states but we would suggest any of our readers check with us or your own counsel before you seek to apply the ruling to the law of other states.

Please understand we do NOT recommend our readers fire or refuse to hire anyone who answers “yes” to the three permissible questions outlined in Carter v. Tennant Company. We do not recommend you have a blanket rule not to hire anyone who ever had a prior work injury. That strategy will eventually lead to litigation you don’t want and may have trouble defending.

It is our legal opinion you can always ask all three questions. If an employee lied and you have a clear and open policy to fire someone for lying on your employment applications, you should be able to fire them for lying but not for answering in the affirmative to the questions or for having a prior work injury or being treated for one.

If they were to tell the truth, you have to carefully use the information you receive in response to the questions. If a prospective employee answers yes to any of the three questions, you should investigate further. You have to ask more questions and seek out nature of the injury or illness, the course of care and the status of recovery from the accident, injury or illness.

If the prospective employee had a hang-nail at work, you might still want to complete the process of hiring them for a truck-driving job. If they had seven-level spinal fusion surgery with implanted rodding, you might not want to hire them as a truck driver if the job requires heavy lifting. You might want to consider them for sedentary job, if such work were available. All of it requires further inquiry and accommodation when and where possible. If you have specific questions about such hiring practices, send a reply.

Third, we recently reviewed an appellate court ruling in a matter entitled Grabs, et. als. v. Safeway, Inc. and Dominick’s Finer Foods, LLC, (No. 1-08-3007 June 17, 2009). In their ruling, the Illinois Appellate Court addressed a certified question on an interlocutory appeal on this narrow issue of alleged retaliatory discharge. Plaintiffs filed a joint complaint alleging Defendant terminated them in retaliation for filing workers’ compensation claims. Defendant responded to claim Plaintiffs had been terminated for violating a neutral attendance policy when they missed three consecutive days of work subsequent to being advised to return to work pursuant the opinions given by Defendant’s IME. A battle over the IME and ability of the employer to rely on the IME to terminate the workers went back and forth.

The Grabs ruling went over a much more cogent precedent that remains good law for all Illinois HR, safety and benefits folks to remember. The name of that ruling is Hartlein v. Illinois Power. If you need that cite, please advise. Hartlein v. Illinois Power held you can safely terminate injured workers who are on TTD if you have a valid, non-pretextual basis to do so. The best valid reason to terminate an injured worker is demonstrating you have a bona fide need to fill the position.

The best example of this principle is the school bus company that has six buses and thirty kids in each school bus. One driver is injured at work. Through no fault of their own, he or she will be off work for at least ninety days. You still need to get the kids to school on the bus. Hartlein v. Illinois Power ruled you do not have to hire a temporary bus driver and then fire that driver when and if the other driver becomes healthy and can return to full work.

The challenge created by the Hartlein ruling is to be sure you can document the termination is not due solely to the injury or the claim for workers’ comp benefits. You are much better off if you can demonstrate you did not just fire one worker—if there is a group being laid off or let go, it clearly appears to be outwardly “fairer” if an injured worker is also laid off at the same time.

Please also remember it is much harder to manage an Illinois workers’ compensation claim if the injured worker is let go while they are off work. They are much more likely to try for the two highest benefits in this state—wage loss differential or total and permanent disability benefits. Also if you let an injured employee go, you cannot bring them back to lower paying light work on a transitional basis.

Finally, we were asked by one of our sharpest clients about Social Networking Policies. They are asking for any of our readers willing to forward sample policies to send them along. The client is specifically worried about things like:

Twitter, Blogs, Facebook, Linkedin and similar sites.

We are asking what your organization does when you learn an employee is

• Disparaging the company or employees/clients related to the company’s operations;
• Seeking access to social networks during working hours on company equipment;
• Unauthorized posting of proprietary corporate information;
• Racy pix wearing company uniforms or readily identifiable corporate locations and then posting on a site;
• Lies about company’s finances, viability or other similar issues.

One interesting site to review as part of similar issues is http://en.wikipedia.org/wiki/Ellen_Simonetti. If you review it, you may note there is a lot of potential stress and litigation that may come from such policies.

All responses are appreciated and will be kept confidential.

Editor’s comment: The Illinois Department of Employment Security (IDES) will likely increase unemployment insurance rates dramatically by the end of the year or no later than 2010. This across-the-board increase will affect all employers, even those who face no unemployment claims.

Illinois has just become the 16th state forced to borrow money from the federal government to pay unemployment insurance benefits because its trust fund has run dry. The roughly $34.7 million Illinois has borrowed so far pales in comparison to the unemployment insurance debt of states like neighboring Michigan, which has borrowed $2.2 billion so far. But since Illinois, like many states, received most of its unemployment insurance revenue in the first two quarters of the year, the borrowing has probably only just begun.

Due to the economy and corresponding liberal provision of unemployment insurance benefits Illinois employers should expect a harsh raise in their unemployment insurance rates. Those employers who have their rates charged to their account may find their rates will rise even higher.

Employers are encouraged to take care in the evaluation of unemployment insurance claims by former employees. Not every claim is valid. In addition, any perceived error on an employer’s IDES rate notice must be protested before the strict due date or the rate becomes final.

An Illinois employer may face a claim for unemployment insurance if it separated the claimant from work or reduced the claimant’s hours, causing the claimant to become unemployed and was the last one to employ the claimant before they filed a claim and employed claimant for at least 30 working days or provided employment that allowed the claimant to re-qualify for benefits after the claimant was previously disqualified for certain reasons.

The Illinois Unemployment Insurance Act allows an employer to contest an unemployment insurance claim. When a former employee worker files a claim the IDES will mail the employer a Notice of Claim. The employer may use the accompanying form to protest either the claimant’s eligibility or the employer’s your status as “chargeable employer” — or both. The employer will have 10 days to file its protest by returning the form to the address indicated. An employer must reply by the due date indicated on the form or its forfeits its right to appeal any subsequent decisions.

Keefe, Campbell & Associates provides advice and counsel to clients involved in Illinois unemployment law disputes. If you need assistance with such claims, please send a reply. This article was researched and written by Matthew A. Wrigley, J.D. If you have comments or ideas, please do not hesitate to contact Matt directly at mwirigley@keefe-law.com.

Editor’s comment: One wag in our office pointed out the Appellate Court probably could have also found it compensable under the “traveling employee” doctrine because the worker was running or “traveling” at the time of injury. Like the recent “stray bullet” claim, most observers are starting to feel rulings such as this epitomize a state where there are so many ways for a claim to be compensable, there is no way to ever defend an Illinois employer.

As you may recall, we reported a claim that got national attention in the workers’ compensation press when a worker ran and jumped into a concessions machine to try to dislodge a bag of Doritos® that wouldn’t fall under its own weight. The poor guy broke his hip and had expensive surgery. The poor and recently defunct employer is now responsible for all of it when they just wanted their workers to be able to have a simple convenience.

In Circuit City Stores, Inc. v. Illinois Workers’ Compensation Commission (No. 2-08-0722, this replaces original opinion and was filed July 9, 2009), our unanimous Appellate Court, Workers’ Compensation Division ruled on rehearing by admitting they were initially wrong. They found the “Good Samaritan” doctrine, rather than “personal comfort” doctrine applied when the employee was injured while coming to the aid of co-worker seeking personal comfort.

The Court ruled the employer had “notice” of the arguably defective vending machine which was made available to employees for their use and personal comfort. Therefore, the employee’s hip fracture injury, suffered helping co-worker by trying to dislodge product from vending machine, was reasonably foreseeable.

With respect to the august members of the Court, we don’t agree even a little bit. They knocked out their earlier ruling when they noted the employee wasn’t addressing his own “personal comfort” but someone else’s. It is our opinion their expansion of the “Good Samaritan” doctrine is inappropriate and wildly overbroad. A Good Samaritan is someone who steps up to save the life of a stranger or otherwise minimizes imminent peril. It is our view this misguided quest for Doritos® should only be applied if the other worker needed the chips to stay alive.

It would have been a lot easier for both workers to simply track down someone who could have opened the machine up and provided the food or a refund. The worker who acted rashly to cut a corner in a wholly unpredictable way should not be awarded benefits in a fashion that encourages others to act without regard for safety.

If you have such machines in your workplace (and we do), we suggest putting up signs indicating employees should not strike, run at or otherwise shake the machines but contact management for assistance. We appreciate your thoughts and comments.

Editor’s comment: Here are some thoughts.

Hire carefully, particularly when and if the economy recovers. One concern we all have is hiring workers’ compensation system abusers. There is nothing more galling to a human resources or risk manager to find out after hiring a worker to then learn they have filed six other claims and already received six hefty settlements and are now looking to you as Lucky No. 7. There are a couple of legal strategies in the hiring process that may assist you to avoid that status. Please don’t hesitate to consult with us, as veteran defense attorneys in the process—we don’t suggest you implement these without advice of counsel.

First, make sure your employment applications allow you to fire someone for lying on the written application or during the interview process. If you don’t do so, change your policies right now. Next, read the federal ruling in Carter v. Tennant Company and put the “magic questions” from that case into your employment application forms. The ruling is on the web at: http://altlaw.org/v1/cases/1132324. If you are not familiar with the ruling, it came from the Seventh Circuit Court of Appeals. All of Illinois is within the Seventh Circuit. The next higher court after the Seventh Circuit is the United States Supreme Court. The Supreme Court did not take the case and therefore didn’t change the ruling, so it remains the last statement of the law on the issues covered.

Carter v. Tennant Company holds:

An Illinois employer cannot ask whether an employee ever:

•         Filed a claim for benefits under the Workers’ Compensation or Occupational Disease Act.

•         Received benefits under the Act.

The Court expressly found it permissible to ask a prospective employee if they:

•         Ever had any occupational injuries, accidents or illnesses.

•         Lost time from work for a work-related injury or illness.

•         Saw a doctor for any work-related injury or illness.

We recommend all of our clients and readers modify their employment applications to add the last three permissible questions. If you have questions or concerns, let us know.

Second, consider Criminal and Background checking for all but the most menial of employment positions. If you are hiring truck drivers, construction workers or for any position that pays over $15 per hour, you are incurring a substantial liability and should be sure you are hiring someone who is otherwise a solid citizen. There is a moderate cost you have to balance against the cost of hiring blindly.

Third, consider post-hire Fitness for Duty Evaluations. We have been advised such evaluations have questionable legality. We consider that legal position impractical and misguided. Illinois is a state where it is dramatically easier to aggravate an existing condition that it is to have what many of us consider an accident. We still subscribe to the wildly liberal theory that the work doesn’t have to be “the” cause; it just has to be “a” cause. We had a woman walk onto a construction site with pre-existing carpal tunnel syndrome. She worked six days and the new employer was found by the Illinois Appellate Court to be fully responsible for the whole condition, including surgery, lost time and permanency. Our clients felt like John Dillinger had just driven up with his tommy-gun to steal thousands from them. Also, as we have reported in the past, one Illinois law firm touts their success in getting two major “life-changing” wage loss settlements for the same worker!!

We are confident the condition could have been found in a Fitness for Duty Evaluation performed by someone like Dr. Michael Panuska or any solid provider. Again, there is a cost involved but it has to be worth it when one compares the concomitant workers’ compensation exposure for someone who has had a cervical fusion that you have innocently hired for a job that involves heavy lifting. Such a hire is a ticking time bomb waiting to go off. If you don’t have someone ask the worker about the fusion and their safe lifting range, they aren’t going to tell you and you may have to pay thousands.

Fourth, after you have hired someone consider Enforced Accident Reporting on a regular basis. We reviewed this concept in last week’s KC&A Update and won’t repeat it here. If you need the form to consider it, send a reply.

Fifth, in heavier jobs, Find/Source/Struggle to isolate and implement permanent light work, if at all possible. While it initially sounds silly; we assure you one of the biggest opponents of reasonable accommodation under the ADA are Illinois’ hyper-aggressive labor unions. They want their workers to enjoy the largesse that comes from our wage loss differential benefits system. We hope some major Illinois employer some day files suit to block unions from not allowing reasonable accommodation for injured workers.

For truck drivers, construction workers, nurses and other folks involved in “heavy” work, we consider permanent restrictions to be a “golden diagnosis.” Please don’t think it happens by mistake—injured workers are told to ask the doctors for them. When a truck driver or other worker who arguably has to lift up to 75 pounds is told by his physician he can no longer lift more than fifty pounds, the employer is thrown into a maelstrom of Illinois wage loss differential benefits. Your reserves, claims experience and overall payout will rise dramatically. The employee may start into what we call “bad job, right away” and seek a low paying job to maximize their wage loss claim.

All of this can be avoided if you can find the worker a job within his/her restrictions as ADA requires. The work doesn’t have to actually be available if you are laying off in a bad economy—it has to be something you are continuously ready to offer. Yes, we understand your unions may stand in the way—you have to go to the unions and ask whether they enjoy having members in Illinois or not. We assure you the unions take advantage of the fact most managers don’t understand the nuances of workers’ compensation in negotiations. If you need help with it, send a reply.

Sixth, Avoid Litigation in Accepted Claims whenever and wherever possible. We are aware of a major Illinois employer in downstate Illinois that saved thousands if not millions by implementing a pro se settlement program to resolve accepted workers’ compensation claims. Their idea was to reach out to injured workers and explain the system and where they had accepted “hard-tissue” claims involving surgeries and fractures simply make a fair offer upon the worker reaching MMI. Understanding this doesn’t truly help us as defense lawyers, we are still feel as counselors to Illinois business, we have to let you know it is a strong claims strategy. Some times you may want to do “pink-sheet” settlements where claimant is brought before the IWCC and sometimes you may want to do “green-sheet” settlements that are simply payment of permanency—you have to fully understand the difference so if you have questions, send a reply.

Also, if you have run a pro se program and still have lots of workers who “lawyer-up” before you get a chance to talk to them, after their claim is closed, you can and should ask such workers how to avoid future litigation. If you want thoughts and concepts in implementing a pro se program at your work sites, send a reply.

Having given you six strong money-saving concepts, we ask our readers for their thoughts and ideas. We have a number of clients asking every day how to cut overall litigation in this state and what the best path might be for their organization. We know many of our readers are brilliant and we ask that you shine your intellect and best thoughts in our direction. If you have any further ideas or concepts, please send a reply.

Editor’s comment: If you are a busy claims rep or HR person, you may want to skip this article and go to the next one. For the lawyers who read this, following the continuing legal education requirements issued in the last several years by our highest court, we are confident they will continue to throw more and more stuff at already harried legal practitioners.

When it comes to ethics, we have the Big Three–three easy guidelines we teach all the law students who attend our workers’ compensation law course.

1. Don’t steal money from your clients. This concept is a no-brainer and includes commingling client money with your money;
2. Don’t be a jerk to anyone—swearing and rude actions will always and should always come back to bite a lawyer;
3. Keep track of your cases/files and keep them up to date—this protects you from your clients and insures you have malpractice coverage when you can demonstrate due diligence.

Beyond the simple and patent ethics Big Three above, there are details and issues to consider, like not directly contacting your opponent’s client without their advanced consent/permission.

New rules

The Supreme Court ethics rules will cover conduct to include a lawyer’s allowable relationship with a client, advertising by e-mail and buying and selling law firms or practices. Lawyers who learn of wrongful corporate conduct will have new responsibilities to disclose what has been felt to be confidential information to prevent client fraud.

Criminal prosecutors will have new responsibilities and will have to make reasonable efforts to assure an accused has been advised of his right to counsel and has been given a reasonable opportunity to obtain a lawyer.
Precautions will have to be taken when issuing a subpoena to another lawyer to gather information about the lawyer’s past or present client.

Legal observers note these rules simply reinforce current rules and seek to put them into a more readily understood format.

The new ethics rules adopted by the Illinois Supreme Court will also contain a number of guidelines that haven’t appeared in any previously enacted code. They include:

• A rule describing duties lawyers owe to a prospective client arising from preliminary discussions before a formal lawyer-client relationship.

• A rule defining the duties of a lawyer who serves as a third-party neutral, such as a mediator or arbitrator.

• A rule describing the duties of an advocate in a non-courtroom proceeding, such as before a legislative body or an administrative agency.

• Rules addressing how a lawyer should respond when he/she receives a document that was inadvertently directed to you. This rule follows an ABA guideline and is the reason KC&A doesn’t use typical “letterhead” for correspondence any more.

If you have questions, comments or thoughts on these rules, please send a reply.

Editor’s comment: While looking up other things, we found an amazing article about medical cost controls that brings up chilling and crucial thoughts for doctors, hospitals, nurses, risk and human resources managers and everyone involved in the workers’ compensation and group health care matrix.

We are confident, medical costs are rising and are certain to continue to escalate. If you note our earlier articles about spinal fusion surgeries in this state now being billed at $75,000 to $300,000 for hospital costs only, you can readily see medical costs are clearly outstripping all other costs in the workers’ compensation arena. We have a number of pending claims where the main fight is claimant wanting full payment of 100% of the costs of such surgeries from their employers under the WC and not group side.

U.S. health care costs have grown from what was about the middle of the average of OECD countries (Organization for Economic Cooperation and Economic Development) to what is now double the average. The surprising thing here is during the last ten years, the increase in workers’ compensation medical costs is twice the rate of group health increases.

The National Council on Compensation Insurance or NCCI has demonstrated the rise in workers’ compensation medical costs is due to lack of utilization review in workers’ compensation systems, leading to over-utilization of health care services, especially those for nagging and chronic soft tissue claims. This problem is a crucial stage in Illinois that brought in UR but sometimes sporadically uses and enforces.  As we have told our readers, the “wise guys” who have a controlling say at the Illinois Commission don’t want it and feel it is bad for their business.

An observer named Atul Gawande, M.D. has published a must-read article in the June 1, 2009 issue of The New Yorker. He has demonstrated even more convincingly over-utilization of medical services, including testing, surgery and hospitalization, is the main cost driver of America’s health care system.

Dr. Gawande’s lengthy article, The Cost Conundrum, provides a clear position for why costs in the U.S. are becoming so wildly high, but outcomes remain mediocre. Dr. Gawande reduces the problem to its simplest terms. He outlines the American health care system has turned the medical profession into assembly-line work that focuses on lots of care at a spiraling cost. He states our physicians in primary care and specialties are economically incentivized to over-prescribe in all areas. He also clearly shows, the areas of the country that produce the highest costs due to over-prescribing also produce the poorest health care results.

Dr. Gawande analyzes health care in relatively rural McAllen, Texas, a town in a Texas county with the lowest household income in the U.S. He notes after Miami, this county has the second most expensive health care costs. Dr. Gawande wanted to know why. He also wanted to compare and contrast health care costs in El Paso County, eight hundred miles to the north with similar demographics that were 50% lower.

Dr. Gawande also analyzed the Mayo Clinic in Minnesota with some of the best medical technology on the planet and why it produces some of the highest quality medical care in the nation but has costs that rank in the lowest fifteen percent of the nation. He was also fascinated with why Mayo Clinic was able to replicate that amazing achievement when it opened a center in Florida that has one of the country’s highest cost states.

Dr. Gawande noted when he found excellence around the country, doctors worked together in teams. All of the doctors continuously peer-reviewed each other’s work. In low-cost, high-quality areas, physician income was somewhat neutralized; there was only a limited amount to be made. At Mayo Clinic, for example, doctors are all on salary and didn’t make more or less, no matter how much care was provided. Whether they order ten procedures or none, Mayo Clinic physicians and care-givers are paid the same. This is central to understanding how to fix the problem. As Gawande writes:

This last point is vital. Activists and policymakers spend an inordinate amount of time arguing about whether the solution to high medical costs is to have government or private insurance companies write the checks. Here’s how this whole debate goes. Advocates of a public option say government financing would save the most money by having leaner administrative costs and forcing doctors and hospitals to take lower payments than they get from private insurance. Opponents say doctors would skimp, quit, or game the system, and make us wait in line for our care; they maintain that private insurers are better at policing doctors. No, the skeptics say: all insurance companies do is reject applicants who need health care and stall on paying their bills. Then we have the economists who say that the people who should pay the doctors are the ones who use them. Have consumers pay with their own dollars, make sure that they have some “skin in the game,” and then they’ll get the care they deserve. These arguments miss the main issue. When it comes to making care better and cheaper, changing who pays the doctor will make no more difference than changing who pays the electrician. The lesson of the high-quality, low-cost communities is that someone has to be accountable for the totality of care.

The Cost Conundrum, by Atul Gawande, should be required reading for anyone interested in understanding and participating in American health care reform.

The link is http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande?currentPage=all. A bio on Dr. Gawande is at: http://en.wikipedia.org/wiki/Atul_Gawande

We appreciate your thoughts, comments and concerns; please send a reply.

Editor’s comment: We want all Illinois human resources, benefits, safety and other managers to understand the “rules” in workers’ compensation claims handling to the extent it affects your day-to-day business practices. Some of these concepts are common sense but some of them involve nuances you need to note. We feel Illinois workers’ compensation insurance carriers/TPAs should work with your accounts to be sure they follow these rules to minimize premiums and their experience.

Enforced accident reporting

When you are laying off folks in this rotten economy, consider asking them to sign a form that indicates they are or aren’t injured or suffering the effects of an injury before being laid off. You may even want to consider asking such questions well in advance of a coming lay off. The idea is to affirmatively reach out to your work force and ask these questions to see what the employees will say while they are still your employees. Some of our clients require the “enforced accident reporting” forms to be signed every time any paycheck is received.

• If you get a no answer, it may provide a defense when you get what we call “heartburn” claims that drive risk managers nuts when you first find out about a claimed injury after the plant is shut down and you can’t investigate because everyone is gone. It is even worse when you first find out about an injury claim from your former employee’s lawyer.

• If you get a yes answer, assume you are now aware of an accidental occurrence or occupational exposure and start your detailed investigation straight away. Pull security video. Consider web-cam statements. Inquire about all aspects of the claimed occurrence and potential disability. Project and track medical recovery to MMI. Seek to resolve all such claims without litigation whenever and wherever possible.

We cannot guarantee positive results but this HR/claims management concept should be somewhat inexpensive and may slow down phony claims. We don’t know why more Illinois insurance companies and TPA’s don’t require their accounts employ this concept, as it might directly impact overall insurance costs.

We have a form you may consider as part of this effort. If you are interested, send a reply.

Parking lots

If you own and provide a parking lot at your work sites, it is much more likely to have a fall-down or other injury that may be compensable if the lot is not open to the public and is limited to your workers only. If the lot is open to the public and your workers park in the lot, do not designate where employees should park. The ruling in the Wal-Mart v. IWCC decision held such fall downs are “risks common to the public” if the worker falls in a public parking lot without any direction as to the site they park. In a ruling that was issued shortly after the Wal-Mart decision, a hair salon employee fell down after being encouraged to park in the back of the company parking lot and benefits were ordered.

On a similar note, if you create some public entrances and some employee-only entrances, injuries arising in the employee-only areas are much more likely to be ruled compensable. It is your call on whether you want that heightened exposure but our vote is to only have employee-only entrances if you truly have to.

Recreational and rehabilitation activities

If you are going to have your workers

• Hold a summer picnic or get-together for all or some of your workers;
• Allow employee to work-out before, during or after work hours;
• Allow them to play sports like baseball/softball, basketball, soccer, tennis on company-sponsored teams;
• Have a going-away or testimonial lunch or dinner;
• Attend a big league ball game or other company-sponsored event;
• Give away personal trips in company raffles or safety programs;
• Enter needed drug or alcohol rehabilitation programs;
• Get counseling for marital or non-marital couples issues

You may have high workers’ compensation exposure you can avoid. The rule in Illinois is such attendance has to be voluntary. You have to be able to demonstrate participation and the activity offered is voluntary and not implicitly or explicitly required as a condition of work.

If you “order or assign” the employee to attend such activities, anything that happens in the program may be compensable under Section 11 of the Illinois Workers’ Compensation Act. Litigation to interpret that Section is expensive and outcomes may be difficult to predict. If you pay employees while they attend such events and don’t pay employees who don’t attend, you will have workers’ compensation exposure because our Appellate Court said that is implicitly “mandatory” because employees need their pay.

We have a draft release that can be signed by employees that will confirm they understand and perceive participation to be voluntary. The release will clearly document and outline your workers are not being “ordered or assigned” to participate. If you want a free copy of the release for your use, send a reply.

Fights/Employee violence

The preliminary guideline in Illinois is to greatly discourage fighting or violence in the work-place. Consider making it an enforced safety rule to terminate any employee(s) who instigate physical contact with or against other workers. Never, ever ignore threats, harassment, bullying or intimidation—always address such issues in a progressive fashion to avoid both workers’ compensation  and employment practices claims. All actions taken to address such issues will help to build your defense case-in-chief, should a later claim be filed.

The rule from workers’ compensation where you have a fight is the aggressor doesn’t recover and the non-aggressor does get WC benefits for their injuries. The weirdest thing that happened in Illinois is two female workers came to blows and the fight was recorded on security tape. They both struck each other and made contact at precisely the same time. The Commission initially denied benefits to both. The Appellate Court remanded the ruling back to the Commission, ordering them to determine who the aggressor was and who wasn’t. With respect to the Appellate Court, if you ever have seen hockey fights, lots of them involve dual aggressors and we don’t see why there should be a rule that someone has to get benefits and someone doesn’t—where both parties are aggressors, both claims should be shut out.

If you have thoughts, comments or questions about anything outlined above, please send a reply.

Editor’s comment: Hard to imagine these facts made it to the Seventh Circuit for consideration. However, if you review the facts you will note claimant already filed a prior EEOC charge and internal discrimination complaints. The employer did a solid job of trying to insure all interviewers were “independent” or otherwise unaware of prior complaints.

Our advice in EPLI claims such as this is to have your defense case-in-chief ready when the EEOC or Illinois Department of Human Rights sends you the notices. All of our top clients do so. If you need assistance in developing a strong defense case-in-chief, send a reply.

In Stephens v. Erickson, (No. 08-1416, June 30, 2009), the Federal Appeals Court ruled the District Court did not err in granting the Defendant-employer’s motion for summary judgment in a Title VII discrimination action. Plaintiff-employee alleged Defendant failed to promote Plaintiff on four separate occasions in retaliation for having previously filed an EEOC charge and for making internal discrimination complaints.

The record before the Federal Appellate Court showed the interviewing process as to all four promotions was fair. The record also demonstrated interviewers who scored all applicants were unaware of existence of Plaintiff’s prior EEOC charge or internal complaints.

Moreover, Plaintiff failed to establish that an individual manager with Defendant who had knowledge about his prior discriminations complaints played any role in promotional decisions where record showed that said individual was mere “rubber stamp” for approving recommendations for promotions made by interviewers.

If you have thoughts and comments or need the case citation, please send a reply.