1-9-2016; IL WC Reform Continues in Crazy Springfield; Rockford Firefighter Loses Family Healthcare Coverage; Widow Can't Block Credit or Demand Lump Sum and more

Synopsis: IL WC Reform Continues in Crazy Springfield.

Editor’s comment: The 99th General Assembly is set to return to Springfield today to finish off the final two days of their "lame duck" session. The main battle is over finding some middle ground or agreement on a state government budget. We believe Illinois is the only state among the fifty United States that hasn’t had an annual budget for this most recent fiscal year.  While it would be challenging for the Illinois General Assembly to pass a sweeping budget in just two days; in years past, the General Assembly did approve a significant income tax increase by a single vote the day before Inauguration Day. In short, you never know what they might do if they put their minds to it.

Amendments to bills were filed this week or have been assigned to committees that are worth mentioning.  

Floor Amendment 4 to SB 2901 is a workers' compensation reform proposal that appears to be coming from the Democrats in the General Assembly. While Floor Amendment 4 is lengthy, here are a few highlights with my thoughts in bold: 

• Provides workers' compensation insurance rate regulation. Yawn—this appears to be in response to ITLA or the Illinois Trial Lawyers Ass’n’s constant lament about how evil insurance carriers keep raising IL WC rates to maximize profits and not pass through “savings” from lower WC costs.
• Defines "traveling employee" and "arising out of the employment" to confirm and clarify an accidental injury sustained traveling to or from work do not arise out of and in the course of employment. We consider this a common sense issue that shouldn’t need clarification.
• An employer's WC insurance experience factor will not be charged for a repetitive or cumulative trauma injury if such injury occurs within 3 months of initial employment. We consider this an odd legislative concept that isn’t going to change compensability of such claims, just the fashion in which insurance carriers handle them. We hate when government thinks they can or should run private industry.
• Provides penalties for delay and authorization of medical care. We hate this new proposed section. We do want folks in claims to note it may cause a growing need for UR or utilization review to avoid the IWCC’s potential ability to award penalties for not authorizing medical care. The implementation of UR turns the process into a “get-out-of-penalties-free” clause.
• Self-insurance reporting requires an annual reports by the Commission concerning the state of self-insurance for workers' compensation in Illinois. Double Yawn.

If this lengthy Floor Amendment is passed, we don’t know if Governor Rauner will support it/sign it. We also aren’t sure whether he would feel this is enough of a WC “turnaround” to end his two-year old battle for WC reform. We don’t see this Floor Amendment making a giant impact on the IL WC system for good or bad.

Whatever happens, it will happen today or tomorrow or be tabled for months.

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Synopsis: Disabled Firefighter Loses Lifetime Family Health Care Coverage on the Taxpayer’s Dime.

Editor’s comment: IL law offers numerous pensions for firefighters who get hurt or may become ill because of their work. Sometimes the family can also get healthcare coverage and sometimes not. In Bremer v. The City of Rockford, the Illinois Supreme Court ruled a firefighter who received a pension due to cardiomyopathy, a heart disease his physicians determined was contracted on the job does not automatically qualify for paid health insurance under a law for police, correctional officers and firefighters who suffer a “catastrophic injury” on the job.

Bremer worked as a firefighter for Rockford between 1976 and 2004, when he filed for the disability pension with the Rockford Firefighters’ Pension Board. The City of Rockford in 2007 granted Bremer’s application for an occupational disease disability pension with an effective date in January 2005. Following a city ordinance, Rockford paid the health insurance premiums for Bremer and his wife through February 2008. In March 2008, Bremer applied with the city for payment of his health insurance premiums under the Benefits Act. Rockford denied the application on the basis Bremer had not suffered a “catastrophic injury” as required under the law. It appears he also got a WC settlement or “going-away-present” of about $30,000.

Bremer then filed a lawsuit seeking a declaratory judgment and attorney fees in the 17th Judicial Circuit Court in June 2008.

Justice Robert R. Thomas wrote our highest court’s 14-page decision. Five of the remaining six justices concurred with Thomas, while the sixth partially concurred and wrote a partial dissent. The “catastrophic injury” phrase was ruled to be magically synonymous with injuries that result in an award of line-of-duty disability pensions, which are based more on disabilities resulting from a specific act or acts of duty. In contrast, the occupational disease disability pension, which Plaintiff Bremer began receiving in 2005 after showing his cardiomyopathy resulted from his job as a Rockford firefighter, was designed more for police and fire officers injured through exposure to poisonous smoke inhalation and extreme heat and cold.

The concept is outlined in Section 4-110.1 of the Pension Code, and stems from a finding by the legislature that firefighters perform “unusual tasks” and “are required to work in the midst of and are subject to heavy smoke fumes and carcinogenic, poisonous, toxic or chemical gases from fires.” The law also contains a list of qualifying diseases, such as heart disease, stroke and tuberculosis, and also applies only to firefighters who have been on the job for at least five years.

Meanwhile, the line-of-duty disability pension is spelled out in Section 4-110 of the Pension Code, and applies to firefighters who “as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty or from the cumulative effects of acts of duty” can no longer work. The term “catastrophic injury” stems from Section 10 of the Public Safety Employee Benefits Act, which applies to entities that employ law enforcement and correctional officers and firefighters.

It states the government employer “shall pay the entire premium of the employer’s health insurance plan for the injured employee” and his family if that employee “suffers a catastrophic injury or is killed in the line of duty.”

The IL Supreme Court in the 2003 case of Krohe v. City of Bloomington found the legislature “could not be clearer” based on its history and debates on the benefits law in intending employees given a line-of-duty disability pension under Section 4-110 to be deemed to have suffered a “catastrophic injury.” The justices maintained that stance in the 2011 case of Nowak v. City of Country Club Hills and the 2015 case of Village of Vernon Hills v. Heelan.

But there was no evidence they intended the same for occupational disease disability pensions under Section 4-110.1, Thomas wrote.

“In Krohe, Nowak and Heelan, this court defined the phrase ‘catastrophic injury’ in [S]ection 10(a) very specifically based on references in the legislative history and debates to only the ‘line-of-duty’ disability provision in [S]ection 4-110 of the Pension Code,” he wrote. “Nothing in the legislative history indicates an intent to expand the definition of ‘catastrophic injury’ to include disability pensions awarded under other sections of the Pension Code.”

It might not be a bad idea to include workers who were awarded other types of pensions due to disabling injuries in the definition of those who suffered “catastrophic injuries,” Thomas wrote. But that decision is not up to the judicial branch, he added. “While there may be legitimate policy reasons for expanding the definition of ‘catastrophic injury,’ any such change must come from the legislature, not this court,” he outlined in the ruling.

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Synopsis: IL Appellate Court, WC Division Nixes Widow’s Demand for Lump Sum Payment.

Editor’s comment: In a fascinating ruling, an IL widow sadly lost her husband when his crop-dusting plane crashed. As the employer and its carrier should have done, they started paying benefits in advance of the “death prove-up.” It is somewhat odd to see they paid the benefits at the wrong death benefit rate for about three years prior to a hearing.

When the matter came up for a “death prove-up,” about $187,000 had already been paid. The widow fought the concept of the employer/carrier getting any credit for this significant payment against what was due her.

It also appears she tried to force the IWCC panel to order a lump sum payment to her of either $500,000 or the full 25-year death benefit, even though the statute doesn’t provide for it. We are confident she could have settled for a lump sum but there is no discussion of that in the ruling—that said, as she fought this from the IWCC to the Circuit Court to the Appellate Court, it doesn’t appear she is the settling type. The other odd thing missing from the ruling is any mention of the IL RAF or Rate Adjustment Fund. As the Court was considering her income and overall benefits, one would think they might mention this significant benefit to IL widows/widowers that should eventually double her weekly income.

In Salisbury v. Illinois Workers' Compensation Comm'n, (issued January 4, 2017), the IL Appellate Court, WC Division denied a widow's motion for lump-sum payout of benefits awarded for her husband's death in work-related accident.

His employer wisely elected to satisfy part of its obligation prior to entry of formal order at the “death prove-up.” The IL WC Commission factored those prior overpayments of benefits into its final order. Claimant failed to show a lump-sum payout was warranted.

The evidence of record showed Claimant was suffering no economic hardship and saved most of Respondent's periodic payments, and no evidence that lump-sum payout would be in the widow or Respondent's best interests.

If you need assistance with an IL, IN, WI, MI or IA work comp death benefit claim, we assure you know one knows the rules/nuances better than the defense team at KCB&A. We are happy to assist—simply send a reply or email ekeefe@keefe-law.com.

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