Keefe, Campbell & Associates, LLC

Editor’s comment: Well, here you have it; this is our heart-felt plea to everyone across the state to understand this benefit is among the worst and most anti-business workers’ comp benefit in the whole country. Why do we make that statement? Well, here are just a few reasons:

Wage loss differential benefits are just about impossible to “defend.”
Wage loss differential benefits strongly encourage malingering and manipulation of jobs;
Wage loss differential benefits are crushing Illinois business and our struggling economy;
Wage loss differential benefits almost never compensate or match actual wage loss;
Finally, wage loss differential claimants in Illinois never actually receive weekly wage loss differential benefits!!!

Wage loss differential benefits are just about impossible to defend

We are seeing case after case after case across the state where claimants are getting hurt, laid-off or out of work and then seek to move their simple arm injury or foot strain into the wage loss differential setting. We have one trucking client with a terminal where every single work comp claimant is now seeking wage loss differential benefits. We have one hospital client where the risk manager recently wanted to review/audit her thirty biggest claims—of the thirty biggest claims, twenty-two or about three out of four major claims were wage loss differential claims. We are seeing claims from construction workers who have two/three/four wage loss differential claims for what are supposed to be life-changing disabilities—well, how do you have four different claims with life-changing disabilities?

The problem we have with all of these claims is the simple model—anyone with a “permanent restriction” from a doctor in this state and who is out of work for more than a day is now seeking wage loss differential benefits. What is even worse is what we call “imputed” wage loss claims where Illinois claimant attorneys and Arbitrators will tell the defense side to “assume” a moderate wage might be obtained by the injured worker and settle it based on presumed and not actual wage loss. All of it leads to the problem we will discuss below—there is no intention to actually compensate true wage loss; it is just a lot more money to give the injured worker a giant wage loss settlement than the dramatically lower settlement for loss of use of the leg or hand or person as a whole.

Wage loss differential claims encourage malingering and job manipulation

We have told our readers over the years, wage loss differential encourages everything bad about compensation for a work-related injury. Why? Well, one goal for the injured worker is to stay off work and not find a job as long as you can while your lawyer and a friendly Arbitrator try to convince the defense side to “impute” wage loss, as we indicate above.

In the alternative, wage loss claims also encourage what we call “bad job, right away” where the injured trucker or nurse or construction worker immediately gets a low paying job to maximize their wage loss claim while the claimant attorney then runs to the Commission to force a hearing and source a monster settlement so claimant can then drop the low-paid position and go back to precisely what they were doing prior to injury at the same rate of pay.

We also feel wage loss differential benefits cause unions to stand in the way of bringing injured workers back to modified work, as they should be required to do under ADA. The unions know if they can temporarily disqualify a worker from a moderate to heavy job, wage loss differential benefits kick in. We assure our readers Illinois unions take advantage of the fact most managers don’t understand the nuances of workers’ compensation in negotiations and don’t demand modified work be made continuously available to injured workers. We remain amazed to see how unions who do this are not sued by the EEOC for the clear violation of ADA such shenanigans present.

Wage loss differential benefits are crushing Illinois business and our struggling economy

We are certain our legislative leaders and others have no true idea how deleterious wage loss differential is to Illinois business. Our favorite example was our review of a file we were asked to take over on appeal. The worker was relatively young—23 years of age. He had repetitive-trauma wrist injuries and moved from a $30 dollar an hour job to a lighter job paying $15 per hour. In her ruling, the Arbitrator followed the law and awarded about $25,000 per year as wage loss differential benefits. Please note the young man was entitled to that money on a tax-free basis for life.

The full undiscounted value of the award was about $1.1 million dollars. The present value was about $450,000! Please note this young man had a post-injury job that paid very well for central Illinois. Please also note the employer was going completely ballistic. The company president could not fathom how he had to raise and pay that kind of money when similar operations in other states would not have required him to do anything other than simply give the kid a job.

Please also note wage loss differential limits were increased by the 2005 Amendments to the Workers’ Comp Act—an injured worker can now receive up to $47,967.40 per year on a tax-free basis for life. As we have told our readers in the past, for a twenty-five year old with a fifty-year life expectancy, a max rate wage loss differential award would have a full, undiscounted value of $2.4 million dollars!!

It is our view the Illinois construction, trucking and heavy manufacturing industries are never going to recover and compete with our sister states with this immense and growing risk floating out there. Please don’t shoot the messenger—we are simply reporting the facts.

Wage loss differential benefits almost never compensate or match actual wage loss

We are very confident any effort to modify, limit or alter wage loss differential benefits will be met with howls of dismay, discomfiture and disharmony from the forces of the Illinois Trial Lawyers Ass’n and Illinois labor. In response, the problem we point out is almost no one ever actually receives wage loss benefits in this state. The attorneys who work at Keefe, Campbell & Associates have combined legal experience in excess of one hundred years—not one of our partners or associates has ever heard of a wage loss differential claim that wasn’t “lumped out” to give the injured worker and claimant’s counsel a fountain of money. When we talk of “imputed” wage loss, we assure you the concept isn’t being used to give the employee the lifetime equivalent of temporary partial disability—the idea is to find a palatable way to give the worker a large lump sum that will always exceed specific loss of use the affected body parts.

We also point out a comment by one of our more astute readers who indicates the wage loss differential concept would make more “sense” if it was a living and vibrant thing where the employee receiving such benefits was audited once a year or once every other year or whatever to insure they still needed the money from their employer. In that fashion, if they recovered financially from the injury, the employer could get relief from having to keep the worker on the dole—this concept won’t work in Illinois.

In their ruling in Cassens Transport v. Industrial Commission, our Appellate Court rendered modification of Illinois wage loss differential claims almost impossible. The members of the court judicially created a “rule” in which they found wage loss differential benefits cannot ever be modified unless the injured worker’s disability changes—we have always felt this renders any future change to wage loss differential benefits to be effectively impossible. If an injured worker gets wage loss differential benefits due to an operated shoulder or low back, their “disability” can’t change because medical science hasn’t found a way to remove the permanent effects of surgery. Trust us, professional baseball players recover from surgeries every day to go on to pitch no hitters, steal bases and slam long home runs; in the weird world of Illinois workers’ comp, no one ever “recovers” in a similar sense.

The logical issue we have always had with the Cassens Transport ruling is wage loss differential benefits are initially set based on two factors—lost wages and disability. We have always felt it inconsistent to then mystically refuse to look at both factors if the injured worker later finds a way to make a lot more money. In a setting where a worker is getting for example, $25,000 a year from his employer and is now making $150,000 a year despite his post-injury disability, the legal requirement for continued payment of wage loss differential benefits takes on the appearance of being highway robbery.

We also point out the Illinois statute for wage loss differential benefits is routinely interpreted as being a lifetime benefit. We are confident almost everyone over the age of five knows extraordinarily few workers work all their lives. There is only one reason wage loss differential benefits are viewed as a lifetime benefit—it maximizes lump sum recovery by the injured worker and the payout by the employer or insurance carrier/TPA to do so. As we have said and will keep saying—wage loss differential benefits almost never compensate or match actual lost wages.

Finally, wage loss differential claimants in Illinois never actually receive weekly wage loss differential benefits!!!

As we advise above, when an injured worker is receiving a large lump sum in lieu of wage loss differential benefits, please understand that isn’t wage loss recovery, it is just a large lump sum of money. When one understands an Illinois construction company may run a $5 million dollar building project to make $500,000 in profit; one wage loss differential lump sum settlement can eat up all the profit from a major construction project in a fell swoop. Two wage loss differential claims on the same construction project will rapidly turn a $500K profit into a loss.

When you start to understand the injured worker in this state doesn’t have to have what your mom and dad thought was an actual “injury” to get such largesse, like the 23-year-old with “repetitive trauma” we mention above, you begin to understand how galling this benefit is to Illinois employers and insurance carriers/TPAs. One easy path to stop the silliness in Illinois is to follow the lead of other states and cap such benefits at ten years or so.

Whatever we do our legislative leaders and administrators and everyone involved in this industry has to take a hard and fresh look at this concept moving forward. We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.

Editor’s comment: Here is an interesting exchange for academics on Illinois’ unusual workers’ comp concept of Section 12 exams.

We recently had a claimant demand that he be allowed to have his treating physician attend an IME. In this case, the IME doctor refused and the adjuster was able to convince the claimant to attend without his physician.

If claimant had refused to attend without his physician and the IME doc had refused to see the claimant with his doctor present, would the claimant have grounds not to go?

Essentially, can claimant control who attends his IME?; or

Does the employer have the ultimate say on whether anyone else can attend (case manager, translator, etc)?

To respond, we first look to our Workers’ Compensation Act; please see the language below.

Section 12: Employer May Request Employee Medical Examination

Section 12. An employee entitled to receive disability payments shall be required, if requested by the employer, to submit himself, at the expense of the employer, for examination to a duly qualified medical practitioner or surgeon selected by the employer, at any time and place reasonably convenient for the employee, either within or without the State of Illinois, for the purpose of determining the nature, extent and probable duration of the injury received by the employee, and for the purpose of ascertaining the amount of compensation which may be due the employee from time to time for disability according to the provisions of this Act. An employee may also be required to submit himself for examination by medical experts under subsection (c) of Section 19.

An employer requesting such an examination, of an employee residing within the State of Illinois, shall deliver to the employee with the notice of the time and place of examination sufficient money to defray the necessary expense of travel by the most convenient means to and from the place of examination, and the cost of meals necessary during the trip, and if the examination or travel to and from the place of examination causes any loss of working time on the part of the employee, the employer shall reimburse him for such loss of wages upon the basis of his average daily wage. Such examination shall be made in the presence of a duly qualified medical practitioner or surgeon provided and paid for by the employee, if such employee so desires.

In this fact situation, we are going to bet the employee read the Act. We were amazed to hear an injured worker would want to pay a doctor to attend an IME–most treaters would charge several thousand to travel to, wait for and attend an IME and it would be at the employee’s cost, as the Act says.

Section 12 exams have a very specific legal impact. If the rules above are followed and the employee fails to attend, all benefits currently due can be denied.

To address the bulleted questions above:

1. If the claimant had refused to attend without his physician and the IME doc had refused to see the claimant with his doctor present, would the claimant have grounds not to go?

In our opinion, the answer is yes and the legal impact of the IME would be lost.

2. Essentially, can the claimant control who attends his IME or does the employer have the ultimate say on whether anyone else can attend (case manager, translator, etc)?

In our opinion, the answer is mixed. The employee could pay a physician of his own choosing to attend. If the employer or their choice of IME blocked such attendance, it would stop/end the legal impact of the IME. We would strongly urge the employer or the carrier to tell your IME doctors to know the rules. We also cannot understand why one doctor couldn’t and/or wouldn’t examine a patient in the presence of another licensed doctor. When doctors are being trained as interns that happens all the time. If your IME doc were training an intern or three, it happens. They are being paid a lot of money to conduct the exam and write a report so who cares if another doctor is present when they do so?

3. Does the employer have the ultimate say on whether anyone else can attend (case manager, translator, etc)?

The employer has a say on who can attend but we suggest the actual exam should be IME doctor, observer doctor for wildly wealthy claimants and examinee. Nurse case managers can be present but not in the examination room. If a translator is needed, a professional translator should be used.

As a rule of thumb for everyone to remember—these kinds of issues are best brought to Illinois Arbitrators at the earliest opportunity. You don’t have to wait for a hearing to ask such a simple question. The Arbitrators, when they aren’t busy, are tremendous resources on such issues and will provide guidance to both sides on what they are going to do with IMEs/Section 12 exams if the matter becomes litigated. Ask them early and you will avoid uncertainty later in the process.

We appreciate your thoughts or comments and/or feel free to post them on our award-winning blog.

Editor’s comment: In less than ninety days, our former Governor is going on trial for various counts of bribery and extortion while in public office. There is no indication he will cop a plea and quietly accept his medicine. Illinois voters are going to watch what we feel is a crooked politician do everything he possibly can to wriggle off the hook—the tawdry and embarrassing legal battle will lead right up to the November state-wide election. We don’t feel voters will be amused by the spectacle.

At the same time, this Wednesday, our current Governor is going to tell Illinois voters he is facing a budget deficit of well over $13 billion dollars! He is going to face the situation head-on and demand the legislature dramatically raise our taxes once again. We don’t feel he has the guts or drive to make the changes needed to dramatically cut costs now or in the future. Trust us, Illinois voters apparently don’t mind their money being squandered on our hilariously poorly run state government in Illinois unless and until they find out more taxes are inescapably due. When that happens, history tells us they generally rise up and knock out any politician who supports new taxes. One way or the other, this current administration may be called to task for about a decade of waste and corruption and shown the door.

All of this is pointing toward a Republican rebirth at the state level this fall. Those Republicans are already asking tough questions. We are certain to want to provide guidance and answers that are in the best interests of our clients and the broad base of Illinois employers struggling to compete in a very competitive national and international economy.

Numerous sources indicate workers’ compensation costs in Illinois have steadily risen to be among the highest in the nation. All of our readers and everyone who writes an email reply about workers’ comp costs routinely advises our fair state is out-of-whack with our sister states and the rest of the country. The collective angst of Illinois business is being heard more than ever before. There are various bills now proposed by our state legislators to change the Act and even the Illinois Workers’ Compensation Commission’s system of dispute resolution itself. We also point out administrative change will be inescapable.

This all begs the main question that keeps coming back; what should be changed and how?

The claim the “lawyers have caused the problems” is a flippant, easy answer but it does not address any of the real problems from the perspective of Illinois business. In fact, the Illinois Workers’ Compensation Commission digests over 50,000 cases per year. The attorneys who work within the system are, on the whole, professional and well-versed in the law and practice. Attorneys on both sides represent their clients well. We feel the main cost associated with workers’ compensation claims in Illinois do not stem from litigation; in fact, litigation costs are a very small fraction of the overall cost of claims.

For this reason, the promulgation of an alternative dispute resolution system (ADR) would again do nothing to address some of the real changes that would benefit Illinois business while still protecting injured workers’ rights. Point in fact, the Commission structure already is “alternative dispute resolution” as it is an alternative to the much more ungainly and slow civil court system. The IWCC is comparatively streamlined and works remarkably well when veteran attorneys for both parties are working a case.

As an example, our firm was recently assigned a file on July 14, 2009 with a serious medical and accident dispute. The parties obtained expert opinions, took depositions, tried the case and received a decision on a 19(b) hearing by October 20th. Following that model, this established system can and does work well, regardless of what the critics say. Does litigation always proceed with such economy? Of course not,but when there are delays, it is most often due to the need for further information/fact gathering, which the arbitrator requires to make an informed decision.

If another version of ADR is inserted under the current Workers’ Compensation Act, what changes? Assuming the same statutory rights are protected and the body of case-law that has developed over the past decade or so is still followed, it is our impression that nothing is accomplished by the creation of ADR. Implementation of any such binding arbitration is similarly duplicative, as Section 19(p) of the act has the equivalent of binding ADR with an option for the parties to conduct a one-time binding arbitration which is not appealable to the Commission or any Court. Therefore, if the parties desire such finality without recourse to review an opinion, they are already free to do so under the current Act.

All right then; we save the Commission itself, but what do we change to save Illinois business and bring our WC costs into line?

We offer three proposed changes to the Act which would make Illinois competitive again with our sister States while still protecting workers’ rights (at least in the workers’ comp arena).

Insert a new legal standard for compensability of an “aggravation of a pre-existing condition”.

One of the most frustrating aspects of our system from the employer’s perspective is when an individual has a simple twisted knee claim without blunt trauma or tears, yet due to an advanced degenerative joint, is a candidate for a knee replacement. When the doctors testify the sprained knee is “a cause” of the symptoms, the floodgates open and the employer, through no fault and without ability to prevent such an injury, must pay hundreds of thousands of dollars for joint replacement, TTD and wage differential benefits when such workers are deemed unable to return to work.

We propose a statutory requirement as follows: “in the event a work accident reveals pre-existing degenerative medical conditions, the work accident must be the primary aggravating factor which creates the need for treatment and any subsequent disability for the continuation of benefits under the Act.”

Cap wage differential and permanent total disability claims at 10 years of benefits or 520 weeks.

Again, Illinois is the most expensive State in the Union due to such lifetime claims that almost no state provides. We will never be competitive as a state in terms of attracting and keeping business unless such costs are reined in. Workers’ compensation is a no-fault system of benefits that provides 100% medical cost coverage and wage replacement while disabled. Most cases settle based on the traditional “scheduled” loss of the respective body part. For more severe claims, a reasonable “safety net” for employees is to provide a decade of wage replacement benefits. At our high benefit rates, this would still be relatively high compared to other States, but nonetheless better than the current windfall of lifetime benefits. As part of this change, we propose that vocational assistance must continue to be offered to candidates for placement. However, vocational assistance should be suspended after 6 months, with any wage differential based on the median income earning potential pursuant a labor market survey. In other words, claimants don’t get to allege they are “odd-lot” permanent total disability candidates simply because they cannot get hired within their restrictions.

Pay medical bills in workers’ comp at what is paid in the group health-care arena.

Finally, this one is a no-brainer of the highest level. Why have non-parallel systems for Illinois business where doctors and other health care givers are reined in by Blue Cross/Blue Shield or Aetna on the group health side but on the workers’ comp side, medical bills run completely batty? No one has any idea how to rein the abusers and overbillers in on WC—we recommend mandatory UR as a path. In our view, the Commission provides nothing but confusion and consternation when they implement it. Let’s make it mandatory or simplify it but start to come in with true guidelines to the benefit of injured workers and their employers alike.

We can’t tell you we have all the answers but we are sure we know the right questions. Please let us know your thoughts and ideas. This article was written by John P. Campbell, J.D. and Eugene F. Keefe, J.D.

Editor’s comment: As we advised last week, we are certain some of Illinois workers’ comp rates are now wrong. We had at least fifteen readers/clients suggest we write to see if they will address it and voluntarily change the rates to correct statutory values. With greatest respect, we are providing this pre-mandamus letter to the Chairman and all sitting members of our Commission (you may note Commissioner Paul Rink remains listed on their website but retired on February 26, 2010).

Please consider this our formal request to correct the rates posted on the web at http://www.state.il.us/agency/IIC/benefits.htm to be in compliance with §8(b)4 of the Illinois Workers’ Compensation Act. While we note the Commission’s website provides a caveat indicating the statute takes precedence, we do not want our clients to have to set rates at different values and litigate this on a piecemeal basis at a high cost to possibly contradictory outcomes.

We note the relevant parts:

From July 1, 1977 and thereafter such maximum weekly compensation rate in death cases under Section 7, and permanent total disability cases under paragraph (f) or subparagraph 18 of paragraph (3) of this Section and for temporary total disability under paragraph (b) of this Section and for amputation of a member or enucleation of an eye under paragraph (e) of this Section shall be increased to 133-1/3% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

The website lists the rate as $1,243; however 133-1/3% of the State’s average weekly wage calculates to $1,229.93.

§8(b)4.1. Any provision herein to the contrary notwithstanding, the weekly compensation rate for compensation payments under subparagraph 18 of paragraph (e) of this Section and under paragraph (f) of this Section and under paragraph (a) of Section 7 and for amputation of a member or enucleation of an eye under paragraph (e) of this Section, shall in no event be less than 50% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

The website lists the rate as $466.13 however 50% of the State’s current average weekly wage calculates to $461.23.

Because numerous sources have requested clarification on this issue, we believe time is of the essence and would appreciate a reply or correction posting by April 1, 2010 to allow us to resolve the matter or request more formal resolution.

This letter was drafted by Shawn R. Biery, J.D. It will be forwarded to Chairman Masters and the other Commissioners on March 9, 2010. We will post any reply in a future Update.

Editor’s comment: At some point in December of each year for several decades, the IWCC posted a new PPD maximum rate. When that happened, the new and higher PPD maximum rate had to be retroactively implemented by claims handlers for claims occurring in the period backward to July of the applicable year and then for future claims until next July. This year nothing happened! The rates simply remained the same.

Well, inquiring minds need to know. Turns out the statewide average weekly wage (or SAWW) went down!! For the first time since the SAWW was implemented to make WC rates spiral up, one would have thought Illinois business would get rate relief in the workers’ comp arena. We learned from George Picha of Picha and Salisbury and KC&A’s own WC rate guru, Shawn R. Biery, the Commission did not change the existing maximum PPD rates since the SAWW actually decreased and also for the reason the Act does not contain a specific provision authorizing a corresponding decrease in the maximum rates.

The Commission’s own website says:

Every six months, the Illinois Department of Employment Security publishes the statewide average weekly wage (SAWW). The SAWW sets the maximum and minimum weekly benefit levels for workers’ compensation. To calculate the SAWW, total wages are divided by the total number of employees in the past six months. Some employees worked every day, and some worked only a few days, but all are counted together. (Federal workers and self-employed workers are excluded.)

Although every attempt is made to calculate the workers’ compensation rates in an accurate and reliable manner, only the Illinois statute governs. Where there is a disagreement between the statute and the IWCC’s calculations, the statute is correct.

*As provided in Section 8(b)4, there is no increase in the benefit rates for 1/15/10 – 7/14/10 because the SAWW decreased.

In a website we have saluted for years, we remain stunned to see they didn’t post their decision as web news or something of note.

We then understood there may be no need for a specific statutory provision authorizing the Commission to reduce the maximum rates since Section 8(b)4 mandates the maximum TTD rate “shall be increased to 133-1/3% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.” Section 8(b)4.1 further states: “Any provision herein to the contrary notwithstanding, the weekly compensation rate for compensation payments under subparagraph 18 of paragraph (e) of this Section and under paragraph (f) of this Section and under paragraph (a) of Section 7 and for amputation of a member or enucleation of an eye under paragraph (e) of this Section, shall in no event be less than 50% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.”

If you do the math, by leaving the current maximum TTD rate at $1,243.00, that number would actually represent 134-3/4% of the current $922.45 SAWW and not 133-1/3% as the statute patently outlines. The current published minimum rate for death, PTD, amputation and enucleation cases would actually be 50.53% of the current SAWW and not 50%. We feel where the current maximum TTD rate applies our readers may want to consider paying $1,229.93 per week, and in Section 8(b)4.1 cases, $461.23 per week. Please note this recommendation may result in litigation to debate this statutory issue.

We have not researched the issue of computing the accurate maximum PPD rate, if the rate retroactive to 7/1/09 is based upon the $922.45 SAWW, there should be a proportionate decrease for the same reason. There is no question the maximum TTD and minimum rates for Section 8(b)4.1 cases are specifically tied to a stated percentage of the SAWW, a specific provision in the Act authorizing a decrease in the rate when the SAWW decreases is unnecessary and, in our view, should be presumed to be the law.

We need your thoughts on all of this. In order to push for a change favorable to Illinois business, we need to take this matter to the courts on what is called a writ of mandamus. A writ of mandamus can be used to have a court compel an administrative agency, such as the IWCC to act and follow the provisions of the law. In Illinois, one may petition the circuit courts for a writ of mandamus “to command a public official to perform some ministerial nondiscretionary duty in which the party seeking such relief has established a clear right to have it performed and a corresponding duty on the part of the official to act.” The authority of the respondent to comply with the writ must also be clear. Finally, Petitioner must show that a demand was made on the official concerned but he or she refused to comply. This is to make sure the officer in question has the option of performance before the court exacts compliance. Please remember the Illinois courts may follow the law and they may make it up as we go along.

So we are asking all of our readers, should we take this to the courts? Well, if we don’t, Illinois business is certain to continue to overpay benefits. And if the economy stays flat and the SAWW goes down even further, the gap will increase. We invite your thoughts and comments. We have made inquiries and the Illinois State Chamber may consider supporting these efforts if this is important to Illinois business.

Editor’s comment: We are happy about some of this stuff and scared of the rest of it—we don’t know what organized labor is cooking up to counter the business initiatives.

Like secrecy in hiring, we hate the secret “agreed bill” process and it appears to be rearing its ugly head yet again. We will never forget the public relations fiasco that led to passage of the 2005 Amendments to the Workers’ Comp Act that might have sounded great but have delivered very little effective savings to Illinois business. We are now advised by several reliable sources; the Governor convened a meeting recently of some employers and organized labor to discuss the agreed bill process involving potential changes to workers compensation law. This meeting led to a discussion of the process in general and several bills may be cooking out there.

Several measures potentially helpful to Illinois employers have been introduced. We add our thoughts at the end of each description in bold.

Workers’ Compensation Alcohol/Drugs HB 5721 (Zalewski-D-Chicago) provides no compensation is payable if an injury was caused “primarily” by the intoxication of the injured worker, to include the influence of alcohol or certain drugs not prescribed by a physician or the combined influence of alcohol and drugs that affected the worker to the extent that the intoxication constituted a departure from employment. We point out if there are no mandatory guidelines the Commission has to follow in enforcement; this bill isn’t worth the paper it is written on. We hate the legal concept of requiring denial of benefits for injury while intoxicated to necessitate a showing of “departure from employment” and consider the whole concept unenforceable and nonsensical.

Workers’ Compensation Workplace Prevailing Cause HB 6159 (Reis-R-Willow Hill) defines injury as an injury that has arisen out of and in the course of employment; provides that an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. Again, we point out that if this bill isn’t coupled with a provision similar to Missouri’s which requires strict adherence to the legislative intent, this bill is similarly not worth the paper it is written on because everyone will simply swim around it, like an ice cube in a hot swimming pool.

Workers’ Compensation Collective Bargaining SB 3829 (Link-D-Lake Bluff) provides an employer or group of employers and the representative of its employees may agree to establish binding obligations and procedures relating to workers’ compensation; provides the agreement must be limited to, but need not include an alternative dispute resolution system to supplement, modify, or replace the procedural or dispute resolution provisions of the Act. We point out this sort of legislation indicates the Commission should be reformed or not; why create a binding arbitration system and another binding arbitration system? If an employer “opts out” of the current system, do they get to keep the money they are required by law to pay for a system they won’t use?

Workers’ Compensation Objective Medical Standards SB 3830 (Brady-R-Bloomington) provides permanent partial or total disability shall be certified by a physician and demonstrated by use of medically defined objective measurements, that subjective complaints shall not be considered unless supported by and clearly related to objective measurements, and a specified publication shall be applied in determining the level of disability; provides that temporary total disability payments shall not exceed 104 weeks. In our view, this legislative concept is borrowed from other states and would be a very solid, sober and sweeping change to Illinois workers’ compensation law. Therefore, in our view, organized labor will fight it like crazy. Please note this is being sponsored by the leading Republican candidate for Governor! We feel it may have a strong chance of enactment if the political winds change as many feel they may during this coming election year.

Workers’ Compensation Fraud SB 3832 (Brady) provides the Workers’ Compensation Commission may recall a decision or settlement when fraud has been determined to be committed related to a case; provides the Commission shall implement a rule to establish a process for recalling a decision or settlement that is subject to recall due to fraud; provides the fraud and insurance non-compliance unit of the Department of Insurance shall employ one or more attorneys as special prosecutors. Again, this is a sweeping change proposed by the leading Republican candidate for Governor.

Workers’ Compensation Coverage HB 6266 (Rose-R-Mahomet) provides a subcontractor under contract to a general contractor may elect to be covered under any policy of workers’ compensation insurance insuring the contractor upon written agreement of the contractor, by filing written notice of the election on a form prescribed by the Workers’ Compensation Commission. This is a simple and solid idea.

If we put you in charge, what would you change about Illinois work comp law? Please reply with your thoughts and comments.

Editor’s comment: While we hate to see this outcome, from a purely academic perspective, the Appellate Court got it right; you have to read the administrative ruling to make your own judgment on the Commission’s determination which related a condition not treated or reported for several weeks after the claimed event.

In R & D Thiel v. Illinois Workers’ Compensation Commission, (No. 1-08-3666WC February 9, 2010); the Appellate Court, Workers’ Compensation Division ruled the Commission’s decision was not contrary to the manifest weight of evidence as to necessity and reasonableness of medical expenses and causal relationship, although their ruling was contrary to the Arbitrator’s findings, including credibility. The Court noted the Commission explained its reasons.

Claimant testified without rebuttal to a fall off a ladder. He saw a chiropractor the next day. He did not report any problems with his right leg for over two weeks. He went on to treat over 100 times with the chiropractor, primarily for his back. He later wanted and fought to get approval for surgery to his leg.

The Arbitrator concluded claimant suffered only a soft-tissue injury to the low back related to a fall at work. The Arbitrator further ruled Plaintiff failed to prove permanent injury and denied future medical treatment to his knee. In contrast, the Commission reversed and found Plaintiff proved a work-related disk protrusion with annular tear and fracture with possible meniscal tear of knee caused by the admitted work-related fall.

The Appellate Court followed the Commission’s ruling and re-affirmed the legal concept which holds the Commission’s ruling is not affected by the prior determination of the Arbitrator—the Commission rules on the facts and law in a de novo setting. Our only hope is the Appellate Court consistently adheres to this simple rule for both sides of the workers’ comp matrix.

Please do not hesitate to reply with your thoughts and comments or post them on our award-winning blog. If you want the link to the ruling, let us know.

Editor’s comment: The following debate is one reason we need watchdogs as solid as Keefe, Campbell & Associates partner Shawn Biery and George Picha of the Rockford firm of Picha and Salisbury in relation to our state officials. With all the other information posted on the excellent website of the Illinois Workers’ Compensation Commission, we have no idea why they wouldn’t fully disclose what they were doing with rates when the SAWW went down for the first time in recent memory. We don’t agree at all with the position they are taking and it is now incumbent on our readers to tell us your thoughts.

The Illinois Statewide Average Weekly Wage in Illinois went down from $932.25 to $922.45 in the January 15, 2010 changes. However, the calculated amount of the 133-1/3 of the SAWW remained at the previously level of $1,243.00 instead of lowering with the SAWW to the appropriate calculation of approximately $1,230.18. The IWCC website bluntly indicates “* As provided in Section 8(b)4, there is no increase in the benefit rates for 1/15/10 – 7/14/10 because the SAWW decreased.”

However, §8(b)6 of the Illinois Workers’ Compensation Act indicates “(t)he Department of Employment Security of the State shall on or before the first day of December, 1977, and on or before the first day of June, 1978, and on the first day of each December and June of each year thereafter, publish the State’s average weekly wage in covered industries under the Unemployment Insurance Act and the Illinois Workers’ Compensation Commission shall on the 15th day of January, 1978 and on the 15th day of July, 1978 and on the 15th day of each January and July of each year thereafter, post and publish the State’s average weekly wage in covered industries under the Unemployment Insurance Act as last determined and published by the Department of Employment Security. The amount when so posted and published shall be conclusive and shall be applicable as the basis of computation of compensation rates until the next posting and publication as aforesaid” (emphasis added).

Based upon the SAWW declining to a point under the January 15, 2009 rates, it appears only appropriate Illinois employers would receive the relief of a rollback to those rate maximums.

To illustrate further—there are multiple rates affected and by plain reading of the Act, the rates posted and promulgated by the IWCC directly controvert the plain language of the Act. §8(b)4 of the Illinois Workers’ Compensation Act says in relevant parts:

The maximum weekly compensation rate from July 1, 1975, except as hereinafter provided, shall be 100% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act, that being the wage that most closely approximates the State’s average weekly wage.

Effective July 1, 1987 and on July 1 of each year thereafter the maximum weekly compensation rate, except as hereinafter provided, shall be determined as follows: if during the preceding 12 month period there shall have been an increase in the State’s average weekly wage in covered industries under the Unemployment Insurance Act, the weekly compensation rate shall be proportionately increased by the same percentage as the percentage of increase in the State’s average weekly wage in covered industries under the Unemployment Insurance Act during such period.

The maximum weekly compensation rate, for the period January 1, 1981 through December 31, 1983, except as hereinafter provided, shall be 100% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act in effect on January 1, 1981. Effective January 1, 1984 and on January 1, of each year thereafter the maximum weekly compensation rate, except as hereinafter provided, shall be determined as follows: if during the preceding 12 month period there shall have been an increase in the State’s average weekly wage in covered industries under the Unemployment Insurance Act, the weekly compensation rate shall be proportionately increased by the same percentage as the percentage of increase in the State’s average weekly wage in covered industries under the Unemployment Insurance Act during such period.

From July 1, 1977 and thereafter such maximum weekly compensation rate in death cases under Section 7, and permanent total disability cases under paragraph (f) or subparagraph 18 of paragraph (3) of this Section and for temporary total disability under paragraph (b) of this Section and for amputation of a member or enucleation of an eye under paragraph (e) of this Section shall be increased to 133-1/3% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

Wage Differential Maximum—For injuries occurring on or after February 1, 2006, the maximum weekly benefit under paragraph (d)1 of this Section shall be 100% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

4.1. Any provision herein to the contrary notwithstanding, the weekly compensation rate for compensation payments under subparagraph 18 of paragraph (e) of this Section and under paragraph (f) of this Section and under paragraph (a) of Section 7 and for amputation of a member or enucleation of an eye under paragraph (e) of this Section, shall in no event be less than 50% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

While it may not affect the majority of cases as it deals with maximum levels of benefits, we feel it illustrates an example of the IWCC actively presenting information which ignores the plain language of the Act to the detriment of Illinois employers. Assume we will see a change without notice as we saw in the stealth increase in the PPD maximum within the prior year’s changes. It doesn’t take a degree in economics to know that increased business costs are inversely proportional to job creation. This article was researched and written by Shawn R. Biery J.D. Please reply to Shawn with your thoughts and comments.

Editor’s comment: Glen Boyle, Medical Fee Schedule project manager, held seven seminars around the state and one statewide webinar to explain the Illinois Medical Fee Schedule to payers and providers of workers’ compensation medical treatment. The Commission announced their appreciation to the industry for all the questions raised and the exchanges between payers and providers that occurred during the seminars and webinar.

The discussions prompted the Commission to issue guidelines on the three issues that came up the most. They also made a correction to their Instructions and Guidelines.

To read the new guidelines, and the questions and answers from the seminars, go to

http://www.iwcc.il.gov/fsq.pdf

We admit we aren’t Medical Fee Schedule specialists. Comments from one of our readers who is a specialist:

I especially liked the part that said to pay CRNAs at physician rates and to, how did they put it? “translate?” whether –AS represents a modifier -80 or a modifier -81.

I also liked their recommendation to just pay 100% to the physician anesthesiologist and let him/her and the facility hash out who pays the CRNA is going to be interesting in practice…

Since they have instructed us to pay ASTC’s at 76% of billed (except carve outs at 65%) if even one of the procedures falls into the POC76 category, it would have been particularly nice for them to have mentioned paying the subsequent/secondary procedures at 50% of 76% which would be reasonable in view of all other multiple procedure rules.

And after all this time they are still just “recommend[ing] reexamining the implant rule. Policy change is difficult and can take some time,” they said.

Other than these points, everything else makes sense in view of existing law, and it is obvious they really tried to be reasonable and direct in clarifying facility reimbursement problem areas. I do applaud their efforts. Communication has at least been established, and that is a very good thing.

We thank MP for her input and permission to publish her thoughts for your consideration.

Editor’s comment: If you closely follow developments in Illinois WC, you may have had time to read last week’s KC&A Update on this new unanimous ruling by our Illinois Supreme Court. We are completely baffled about most aspects of the decision. We want to assure our readers there are attorneys on both sides who are shaking the heads and wondering what to do now. Our readers have sent us other defense firms’ reviews of the ruling and we haven’t seen a single one that provides any real insight on what to do next.

Does TTD now equal MMI when it never did before?

What is so unusual about the ruling that our entire community is in shock? Well, there are two major issues. As we advised last week, for the first time in about 100 years of Illinois WC history, the Supreme Court created a completely new “rule” that possibly equates the period temporary total disability or TTD is potentially due to be the entire period of medical care. If that is what their ruling means, we truly feel this contradicts literally thousands of Workers’ Compensation Commission decisions/rulings over the ages. Everyone in the Illinois workers’ comp community on both sides along with Arbitrators and Commissioners has always viewed the period TTD is due to be all periods a doctor says you have to be off work. TTD has never been due the entire time you are under the care of a doctor when that doctor says you can work at either full or light work while treating.

Please also remember some folks never lose any time from work despite some times severe injuries—are they entitled to TTD? Can that make any sense? We knew a salesman who was hit by a car and severely injured with multiple surgeries and periods of recovery—he was still on his cell phone and selling widgets while in the intensive care unit and during all periods he was conscious. That same person is still under the active care of doctors to present and has never stopped working. The idea he would be owed TTD is blurring to most seasoned WC professionals. Trust us, he didn’t want it when he was first injured and doesn’t want it now.

In fact, one of the main reasons independent medical exams have been used in TTD disputes from time immemorial is to set up a legal dispute over the proper period a doctor on one side or the other says an injured worker can and should be off work and therefore entitled to TTD. Arbitrators have been taught to lean towards the treaters in resolving the dispute but their focus has never been on whether claimant is MMI or not—they always focus on what the competing medical opinions have been in analyzing what to do about cutting off or continuing TTD long prior to claimant being MMI. We think most Arbitrators will be somewhat baffled about what to do now in light of what may or may not be a new rule that may or may not “stick.”

This is a direct quote from the new ruling:

The Act provides incentive for the injured employee to strive toward recovery and the goal of returning to gainful employment by providing that TTD benefits may be suspended or terminated if the employee refuses to submit to medical, surgical, or hospital treatment essential to his recovery, or if the employee fails to cooperate in good faith with rehabilitation efforts. See 820 ILCS 305/19(d) (West 2004); R.D. Masonry, Inc. v. Industrial Comm’n, 215 Ill. 2d 397 (2005). Benefits may also be suspended or terminated if the employee refuses work falling within the physical restrictions prescribed by his doctor. See 820 ILCS 305/8(d) (West 2004); Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 166 (1992); Hayden v. Industrial Comm’n, 214 Ill. App. 3d 749 (1991) (TTD justifiably terminated by the employer, under the Act, when the injured employee was unwilling to cooperate with vocational placement efforts).

The court then goes on to say being terminated from light work while an injured worker is still treating does not end the right to TTD.

What is ‘foreign’ and what is ‘domestic’ in our statutory scheme?

The second and more baffling aspect of this Justice Burke’s new ruling is the word “foreign” that appears twice in the ruling. The Court first says:

A thorough examination of the Act reveals that it contains no provision for the denial, suspension, or termination of TTD benefits as a result of an employee’s discharge by his employer. Nor does the Act condition TTD benefits on whether there has been “cause” for the employee’s dismissal. Such an inquiry is foreign to the Illinois workers’ compensation system.

They later say:

Whether an employee has been discharged for a valid cause, or whether the discharge violates some public policy, are matters foreign to workers’ compensation cases. An injured employee’s entitlement to TTD benefits is a completely separate issue and may not be conditioned on the propriety of the discharge.

Well, now. When the injured employee is released to light work, thousands of prior Illinois WC decisions at every level indicate benefits may be suspended if the employee refuses work within the physical restrictions prescribed by a doctor. You may note that language is lifted from the first box quote above where the court cites both Hartlien and Hayden. We assure you the language in the second sentence of this paragraph is “foreign” to our Act because it comes solely from judicial rulings—the specific language is not contained in any provision of the Illinois Workers’ Compensation Act. It clearly isn’t contained in 820 ILCS 305/8(d) because TTD benefits are outlined in 820 ILCS 305/8(b).

Lots of legal concepts that we all debate every day at the IWCC are arguably “foreign” to the Act. For one simple example, you may note there is no provision of the Act which specifically allows Arbitrators to evaluate permanent disability and their actions to do so are arguably “foreign” to the Act; in most states evaluation of permanent disability is done only by doctors. We are fairly confident we aren’t going to see lots more decisions from reviewing courts that continue to debate what is “foreign” versus what is “domestic” or clearly outlined in Illinois workers’ compensation law.

Prior to the issuance of Interstate Scaffolding on January 22, 2010, most folks in our industry felt the worker was “refusing work” when he/she did something dopey and got fired for a bona fide reason while still being treated but on full or light work. We think the reason the issue never was litigated is the claimant side of the bar agreed with that approach.

So Waddawedonow?

Well, we sometimes feel you have to see what will ‘stick’ in this industry and what won’t. We want our readers to understand a couple of things. First, in our view, only the forces of the Illinois Trial Lawyers Ass’n have the pull to get the current Illinois Supreme Court to take on a workers’ comp dispute over a measly $5,000.00 and then obtain a majority decision that is completely galling to all employers across the country. That issue by itself is cause for concern; please remember the majority of the members of this Court are currently up for re-election. The Illinois citizenry and voters have to carefully weigh whether we want to continue to insult existing and potential employers when our state is struggling in the worst economy of our lifetimes.

Second, we have no idea if the Supreme Court has killed light duty—our concern is what to do if claimant’s counsels become wily and tell their clients to start pulling shenanigans to get fired while on light work to insure they get TTD and maybe qualify for very lucrative wage loss benefits. Our approach is to continue to follow the quote above that continues to be good law and solid advice for all risk, insurance, safety and benefits folks to remember: “Benefits may also be suspended or terminated if the employee refuses work falling within the physical restrictions prescribed by his doctor.” The question is will Arbitrators and the Commission truly view an employee’s actions in derogation of their right to work at full or light duty while still treating to be a refusal to work.

Third, if you have to fire an injured worker on light duty for even the most bona fide reason, immediately consider either an informal or formal labor market survey to document work available within their restrictions. An informal labor market survey is one you do on www.monster.com or another similar web site or three. A formal LMS is performed by a certified vocational counselor with concomitant expense. We hope either one may protect you from penalties or fees in any future dispute that becomes litigated in the fashion of Interstate Scaffolding. Please understand we are not confident about anything in the Illinois WC matrix right now and this is one approach—let us know if you have any others.

Fourth, whatever we do, start driving MMI to avoid this debate. How do you drive MMI? We still feel the best and cheapest way is UR or utilization review. Other tools are independent medical exams or setting up your own workers’ comp doctor’s network that can be done in a number of ways. If you have interest in these concepts, send a reply.

Finally, try like the dickens to avoid this whole mess by simply settling disputed claims and/or avoiding workers’ comp litigation to begin with—we hate to say it but the Commission and reviewing courts continue to be mildly to wildly unfriendly to the needs and concerns of Illinois business. We are certain you don’t want to fire an injured worker on light duty for committing a crime and then have to restart TTD. If your injured workers don’t come to the Commission and courts, they aren’t going to hear about these concepts from anyone. If you want our thoughts and ideas on how to minimize workers’ comp litigation, send a reply.

As always please send your thoughts and comments or post them on our award-winning blog.