Synopsis: Illinois WC Rates Jump Again and Your PPD Reserves Need To Be UPDATED RETROACTIVELY(!). Send a Reply to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

Editor’s comment: There continues to be an upward spiral of IL WC rates. As mentioned twice every year, starting in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, our WC rates keep climbing.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $775.18. When it was published, this rate changed retroactively from July 1, 2016 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now, your reserves are wrong. If you have a claim with a date of loss after July 2016 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. WORD OF CAUTION: There is pending legislation which Gene reported last week and this week which currently states “The maximum compensation rate for the period July 1, 2017 through June 30, 2021, except as hereinafter provided, shall be $755.22. Effective July 1, 2021 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.” THIS NEW LEGISLATION WOULD POTENTIALLY CHANGE THIS PPD MAX AGAIN. If this isn’t clear, send a reply to Shawn at sbiery@keefe-law.com.

The current TTD weekly maximum has risen to $1,435.17. A worker has to make over $2,152.76 per week or $111,943.52 per year to hit the new IL WC maximum TTD rate. Does any state in the United States have a TTD maximum that high?

The new IL WC minimum death benefit is 25 years of compensation or $538.19 per week x 52 weeks in a year x 25 years or $699,647.00! The new maximum IL WC death benefit is $1,435.17 times 52 weeks times 25 years or a lofty $1,865,721.00 plus burial benefits of $8K. On top of this massive benefit, Illinois employers/governments have to pay COLA increases.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet. If you want it, simply reply to Shawn at sbiery@keefe-law.com or email Marissa with your mailing address if you would like to be mailed a laminated copy at mpatel@keefe-law.com and they will get a copy routed to you before they raise the rates again!

Synopsis: IL WC Reform Update—Thoughts from Your Editor and the Position of the IL State Chamber WC Legislative Experts.

Editor’s comment: The battle in Springfield continues to rage. Here are our thoughts along with the analysis/comments of the WC gurus at the IL State Chamber. We like to tell all of our readers State Chamber President Todd Maisch and his expert lobbyist Jay Dee Shattuck are the go-to folks to monitor and protect the interests of IL business and local government whenever WC reform is afoot. If you are interested in joining their efforts, go to www.ilchamber.org for more information and details.

Key Issues for IL Employers--both your editor and the IL State Chamber agree most current IL WC reform provisions need additional work and careful consideration.

Traveling employee—the provision codifies current case law regarding “traveling employee” beyond the ruling of the IL Supreme Court in Venture Newburg by establishing a “reasonable & foreseeable” standard for determining compensability. The legislation adds a compensable accidental injury does not include travel that is a “purely personal deviation or personal errand, unless such deviation or errand is substantial.” It also references factors for determining traveling employee status from Venture Newburg.

· From my perspective, this concept doesn’t need legislation at all. The words “traveling employee” don’t appear in the IL WC Act and doesn’t need to be added. I think the proposed “reform” actually expands coverage in ways that may be very adverse to IL employers. The legislation already in place about “arising out of and in the course of” employment is covered by common sense. If Governor Rauner’s arbitrators/commissioners don’t use common sense in defining “traveling employees,” he should quickly fire them.

· The IL State Chamber is on record to OPPOSE because they feel it is codification of current case law locks in the expansion of liability for employers imposed by the IL courts over the past decade. They have alternative compromise that recognizes circumstances where an employee traveling to perform their job duties and injured is compensable.

Neutral risk--adds that “accidental injuries resulting from a neutral risk arise out of and in the course of the employment if the employment quantitatively or qualitatively contributes in any way to the neutral risk.”

· As I advised last week, I have no idea what this provision might mean or how our activist and very liberal reviewing courts would handle it. Quantifiable/Schmantifiable!--I have no idea what might be behind “Door Number One” if we open this legislative can of worms, so why even go there?

· The IL State Chamber is on record to OPPOSE because codification of current case law locks in the undermining by the courts of the “neutral risk” doctrine which has been case law for nearly 100 years. Neutral risk requires the employment to provide a risk greater than what the general public is exposed to. The State Chamber has alternative language for the IL Senate to consider.

Intervening cause--creates a new “intervening cause” standard that codifies current case law regarding causation. It provides “an intervening cause breaks the chain of causation, any subsequent consequence flowing from the intervening cause is not compensable under this Act. An intervening cause is a cause that completely breaks the chain of causation.” It also provides that: “if an employee, who sustained an accidental injury compensable under this Act which results in a responsibility to pay compensation on the part of the employer, subsequently sustains another injury due to his or her own intentional conduct or negligence that accelerates, aggravates, or worsens the effects or disability of the first injury in any manner, regardless of whether or not he or she has fully recovered from the effects of the first injury, the employer's responsibility to pay compensation to the employee or his or her dependents shall not be increased due to the effects or disability resulting from the subsequent injury.”

· Again, we have no idea what and how the reviewing courts and Commission will handle what appears to be well-intentioned legislation.

· The IL State Chamber is on record to OPPOSE, indicating codification of current case law locks in the expansion of liability for employers imposed by the IL courts over the past decade. They have alternative compromise legislation that strengthens requirement of the injury or illness arise out of and in the course of employment.

IL WC Medical Fee Schedule Reductions—the sponsor indicates there are new provisions that will be presented for consideration. The intent is to revise those services identified by WCRI as exceptionally higher than other state fee schedules and targeted as presented in previous versions provided by Governor Rauner.

· I support “hard” or unchangeable fee schedule reductions in appropriately selected medical services. We aren’t truly knowledgeable about the details but hope the sponsors hit the target they are shooting at.

· The IL State Chamber is on record to SUPPORT these provisions when finalized and following their review of the new language.

IL WC Drug Formulary--the Commission, in consultation with the Workers' Compensation Medical Fee Advisory Board, shall promulgate by rule an evidence-based drug formulary and any rules necessary for its administration. Prescriptions prescribed for workers' compensation cases shall be limited to those prescription drugs and doses on the closed formulary

· I strongly support any common sense limitations on drug prescriptions in IL WC claims.

· The IL State Chamber is on record to SUPPORT this legislation.

Statewide Average Weekly Wage Freeze—this provision freezes the SAWW for four years beginning July 1, 2017 the maximum weekly wage rate at $755.22

· I feel this would provide savings to IL employers and local governments. It wouldn’t be a dramatic savings but any savings is better than none.

· The IL State Chamber is on record to SUPPORT the provision for the WC savings it proposes for their members and others.

AMA Guidelines for Determining Permanency--:this legislation allows AMA guideline submission for impairment rating for PPD benefit and requires the IL WC Commission to consider an AMA impairment rating, if one is presented.

· I consider the debate over impairment rating evidence to be something of a red herring in the IL WC reform process. If the Arbitrators and Commissioners are told to consider ratings they will do so or face early retirement.

· The IL State Chamber is on record to OPPOSE, as they believe additional strengthening is needed due to the Continental Tire decision. They feel the law should require the Commission when considering an impairment rating make the determination by a preponderance of credible evidence

Credits for Body as a Whole Awards—this legislation provides credits of prior injuries under 8 (d) (2) for “body as a whole” injuries. Provides for a definition of “same part of a spine.”

· I consider this a common sense change that implicitly “reverses” the liberal and activist decisions by our IL reviewing courts that would allow someone to be adjudicated 200% or 300% (or more) disabled!

· The IL State Chamber is on record to SUPPORT, but they feel the legislation proposed needs correcting language.

Shoulder to be a part of the arm and Hip to be part of the leg—this provision reversed the Will County Forest Preserve v. IWCC Appellate Court ruling regarding the shoulder not being part of the arm & establishes one’s hip is part of the leg returning IL WC to anatomical correctness.

· With respect to our judiciary, I personally feel it is a shame we have to pass legislation and waste time returning IL WC to common sense principles.

· The IL State Chamber is on record to SUPPORT as this provision returns 100 years of legal precedence ruling the shoulder is part of the arm which courts took away under the Will County Forest Preserve decision in 2012.

Waiting period at start of TTD—this provision revises current 3 days to 5 working days the period for temporary total disability begins and revises from the 4th day to 6th day for the beginning of weekly compensation payments for TTD begins

· As I advised this will provide some savings but not much.

· The IL State Chamber is on record to SUPPORT the new law but confirms it is a minor impact on WC savings for employers.

Wage differential changes for professional athletes--this legislation provides a wage differential cap for professional athletes…

· I don’t have a problem but the effect/scope is very limited.

· The IL State Chamber is on record to SUPPORT but they confirm there is no savings impact for employers not employing professional athletes.

Physical Therapy, Occtherapy and Chiro visit limits—the legislation limits chiropractic, occupational therapy, or physical therapy visits to up to 24 visits per claim.

· This reform would cure a common complaint of all of our defense clients across the state. I think the IL State Chamber’s concerns below are spot-on and make more sense than my view because the “limit” might cause every claimant to want to blow the insurance carrier or self-insured employers money to get all 24 visits provided. I am also sure all Claimant attorneys would start coaching/telling doctors and injured workers to prescribe and get all 24 visits.

· The IL State Chamber is on record to OPPOSE the new provision as it would entitle an injured employee up to 24 visits per claim. They support requiring such providers to provide services that are medically necessary, reasonable, are based on medical evidence and meet nationally recognized peer review standards of care and guidelines.

IL WC System Changes

Arbitrator rotation: IWCC Chairman determines arbitrator assignments rather than 2-year rotation.

· I don’t feel this needs legislation and the Chairman should simply follow existing law.

· The IL State Chamber is on record to confirm the proposal needs revision. They have language to preserve original purpose of protecting injured workers and employers from arbitrators who are unfair in their decisions or become too “comfortable” with claimant attorneys in their call area.

Arbitration status calls go electronic/online—this provision allows parties or their attorneys may appear by telephone, video conference, or other remote electronic means as prescribed by the IL WC Commission

· I am concerned this is going to turn into non-lawyers practicing law but we will have to see. I don’t feel we can stop the intrusion of electronics/online services into our lives.

· The IL State Chamber is on record to SUPPORT the provision because it should save some costs for their members and potential members.

IL WC Appeal Bond requirement—this provision removes WC appeal bond requirement for State of Illinois and its agencies.

· I don’t see this as much of an impact for your business or mine.

· The gurus at the IL State Chamber feel all IL employers with viable WC insurance or self-insured state should be able to waive/save the additional cost of an unneeded and expensive IL WC appeal bond.

IL WC Fraud--this provision adds to the Criminal Code criminal penalties for acts of fraud that are listed in the Workers’ Compensation Act. The intent is to eliminate the response from certain states attorneys that will not prosecute workers’ compensation as they view them simply as a civil matter. The provision also revises penalties for fraud in the WC Act.

· I support it but don’t feel it is much of a change.

· The IL State Chamber is on record to SUPPORT the change.

More penalties on IL employers—this provision adds new penalties on employers but does not improve medical care for injured workers, provide more timely benefits to injured workers or reduce friction in the system.

· I don’t see any reason for these proposed reforms and don’t feel they will improve anything.

· The IL State Chamber is on record to SUPPORT changes which improves the system for both legitimately injured workers and employers.

Electronic medical billing requirement in IL WC—there are two new electronic billing penalties: IWCC penalty of 1% per month interest if a complete electronic bill is not paid or objected to within 30 days and a DOI penalty of $1,000 up to $10,000 for simple failure to comply with the electronic claims acceptance and response process.

· As we indicated above, IL WC is inexorably moving to electronic medical bill submission and processing.

· The IL State Chamber is on record to OPPOSE, as they have alternative compromise that you can and should ask them about.

Requirement for Rapid Medical Authorization of Proposed/Recommended WC Care—this provision addresses the Hollywood Casino v. IWCC decision establishing 19K penalties for unreasonable or vexatious delay of authorization of medical care.

· We hate this concept and feel the Arbitrators and Commissioners should use common sense in handling slow or non-authorization of important medical care.

· The IL State Chamber is on record to OPPOSE, as they have alternative compromise language that utilizes Section 19 lprovisions which was part of SB 2901 approved by the House Democrats on January 9, 2017.

Finally

WEAR Commission: Creates WC Edit, Alignment, and Reform Commission composed of legislators, petitioner attorneys and respondent attorneys for the purpose of recodify the Act without changing substantive law or established case law. Commission report by 1/1/18

· I consider this another do-nothing blue-ribbon panel—the tasks described could be taken up by the nine-member IL WC Commission or the IL WC Commission Advisory Board or the IL WC Medical Fee Schedule Advisory Board or….

· The IL State Chamber is on record to confirm they are NEUTRAL, as the provision, as it provides no help to employers

Self-insurer reporting—this provision requires more reporting to IWCC and DOI for self-insurers. Protection of individual employer proprietary information and requires reporting of aggregate data.

· I don’t see the reason for even more reporting and regulation.

· The IL State Chamber is on record as NEUTRAL as the legislation adds additional government burdens on self-insured employers without any clear benefit for employers.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: The Next Million-Person March for U.S. and Illinois—Will There Ever Be Gov’t Budget Cuts to Match Tax Income?

Editor’s comment: I admit this isn’t precisely a work comp issue but in the aftermath of the inauguration of our new omni-stressed President and the anniversary of the second year of the first term for Governor Bruce Rauner, I wanted to send my readers a simple message to take to your federal and state elected officials. I wish we could get a million people to again march on Washington and Springfield for this crucial issue.

You will note both the U.S. and State of Illinois governments are now being run by rogue but highly effective businessmen who have used millions of their personal money to attain office. Neither of them have any political history or background to speak of. They are both came into political office owing nothing to anyone’s brother’s-cousin’s-uncle. It is my hope they will start to use that status to fight for our country’s biggest political issue that “trumps” all other issues—getting our country and this nutty state out of red ink.

The other interesting thing both the new President and our entering-his-third-year Governor have in common is they are both running governments with substantial and spiraling debt. For both federal and IL state governments, incoming taxes don’t even slightly match ever-rising government spending at all. I can only grin to remember how popular former President Barack Obama was while in office despite the fact every year in office the government he ran borrowed and spent over a trillion dollars they didn’t have. In my view, it is easy to be popular when you are running a credit card government on money that won’t be paid back by our great-grandchildren for decades to come.

I have enormous respect for my cousins, friends and readers who traveled to and participated in the Women’s March on Washington over this past weekend. It is my hope our new President and all government officials across the country carefully consider the ardent message presented. It is also my hope another message be sent to the same federal and state officials—please, please, please start cutting government budgets across the board! I am sure the federal government has unnecessary and duplicative jobs that could be rapidly eliminated to save billions. I wish our crabby new President would ask some of the best management consulting firms in the United States to volunteer their time and computers to let him know where to start chopping heads and cut the growing massive budget deficit.

In Illinois, we are being asked to agree to rising taxes and a new sugar-soda drink tax and billions in new borrowing. In my view, Governor Rauner has a mildly skewed view of the importance of workers’ comp reform and is supporting some of the compromise IL WC reforms you can review below. What I haven’t seen or heard Governor Rauner, Senator Christine Radogno and other Republican leaders demand is Across-the-Board Budget Cuts or what I call ABBC for IL state government. In my view, if you are going to hike my taxes and your taxes and add more debt, you have to attack/manage the patent and clear reason for those higher taxes and new debt which is inefficient and duplicative state government. For just a couple of easy IL gov’t cost cutters, how about:

· Getting rid of the do-nothing job of Lieutenant Governor?

· Consolidating the obviously duplicative offices of the IL State Treasurer and the IL State Comptroller that do exactly the same thing?

· Getting rid of the silly Secretary of State Police Dep’t that doesn’t “police” anything and could be performed by the IL State Police?

· Getting rid of the nutty “remote offices” for many state agencies that create do-nothing jobs that aren’t needed?

· Consolidating 88 IL State agencies into 60 or 40 state agencies to rid ourselves of the multiple fiefdoms created by having so many disparate agencies?

· Bring back totally and permanently disabled state workers getting lifetime welfare-like work comp benefits, to require they be trained and given top priority to return to sedentary and light jobs when such positions open up? Do we have to pay for injured cops, firefighters or prison guards with an operated shoulder/spine for the rest of their lives when they are allowed to get jobs in private industry and make thousands on top of their fake “disability” pensions?

There are literally hundreds of other ways our federal and state governments could cut budgets and provide more value to taxpayers. It isn’t going to happen until we start telling our leaders to do it. Let’s march!!!

We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Happy Valentine’s Day from the Gang at KCB&A!!

Editor’s comment: Okay, so it is a little early but, like the Boy Scouts—Be prepared!

KCBA Blog

1-23-2017; Shawn Biery on New IL WC Rates With Free Rate Sheet!!!; Update on IL WC eform With IL State Chamber's Position; Can We Consider Another March?; and more