2-25-2019; Ooops, They Did It Again--Must Read on New IL PPD Max by Shawn Biery; Must Read Ruling on WC Subro by Matt Ignoffo and more
/Synopsis: OOPS, THEY DID IT AGAIN…….MAX RATE FOR PPD LOWERED AGAIN MIDSTREAM!!! The initial posted Max PPD rate has been adjusted down—still need to UPDATE RETROACTIVELY(!).
To any of our readers and/or fans, Send a Reply to Marissa mpatel@keefe-law.com to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!
Editor’s comment: There continue to be changes, with the current IL PPD max now listed on the IWCC website adjusted down $13 from initially posted. Please don’t shoot the messenger for telling you that they updated it before the new car smell is off the freshly laminated Rate Chart you just received.
As mentioned before, 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, your IL WC rates keep climbing.
We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $813.87 (still up from $790.64—but now only a $23 increase instead of $36—when the last increase was only $15!!!).
When it was published, this PPD Max rate changed retroactively from July 1, 2018 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 2017 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies and reset reserves.
To recap the other changes from January 2019:
The current TTD weekly maximum has risen to $1,506.81.
An IL worker has to make over $2,260.22 per week or $117,531.18 per year to hit the new IL WC maximum TTD rate.
The new IL WC minimum death or T&P rate also went up.
The IL WC minimum death benefit is 25 years of compensation or $565.06 per week x 52 weeks in a year x 25 years equaling a staggering $734,578.00! Yes, if Claimant makes $100 a week in a part-time job and dies in a work-related accident, the benefit is over $734K.
The new maximum IL WC death benefit is $1,506.81 times 52 weeks times 25 years or a lofty $1,958,853.00 plus burial benefits of $8K.
On top of this massive benefit, Illinois employers/governments have to contribute to a fund to pay COLA increases under the Rate Adjustment Fund that may double that already-high benefit, depending on the CPI.
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 email Marissa at mpatel@keefe-law.com and include your mailing address if you would like to be mailed a laminated copy & you can also copy Shawn at sbiery@keefe-law.com with any questions, and his great team will get a copy routed to you before rates rise again.
Shawn remains your go-to defense source on any issue relating to IL WC rates!
Synopsis: New Subro Opinion from the IL Appellate Court – Employer Cannot Recover in Subro for the Full Car Accident Settlement Amount Without Establishing Payment Connection. Research and writing by Matt Ignoffo, J.D., M.S.C.C.
Editor’s Comment: The facts of Hunt v. Herrod (City of Peoria Intervenor) involve two claimed back injuries by a police officer. 2019 IL App (3d) 170808, opinion filed February 15, 2019.
On September 27, 2009, Plaintiff Hunt was rear-ended by defendant Herrod while Hunt was working as a Peoria police officer for the City of Peoria. Hunt injured his back in the accident, sought medical treatment, and participated in physical therapy. He was released to full-duty work on December 3, 2009 and returned to work. On January 25, 2010, Hunt participated in training exercises, and later during the evening he experienced back pain and sought medical care. He had emergency surgery on January 29, 2010 and the outcome was not positive.
Hunt filed a WC claim for the training incident of January 2010 but did not initially file a claim for the September 2009 car accident.
Hunt filed a personal injury action against Herod, and Peoria intervened asserting a $125,899.50 lien on any recovery, which ended up being a $75,000.00 settlement for the car accident.
Payment logs from Peoria’s third-party administrator allocated payments of $5,325.36 to the September 2009 claim and $119,880.13 to the January 2010 claim. Evidence at the hearing on Hunt’s Motion to Adjudicate the Lien revealed Peoria accepted the September 2009 but did not authorize any payments for the January 2010 claim as Peoria did not believe there was an injury. There was testimony Peoria authorized payments for the September 2009 accident in the amount of $125,899.50.
The trial court initially found Peoria had a $125,899.50 lien and that a “portion of expense should be allocated to the accident as an aggravating factor to what is a chronic, pre-existing back injury.” The court determined that Peoria was entitled to 10% of its lien amount, or $12,589.95. Peoria moved for reconsideration and argued there were no facts to support the trial court’s allocation of funds based on aggravation of a preexisting injury. Hunt argued the lien should be adjudicated to $5,325.36, the amount documented as paid for the September 2009 injury.
The trial court entered an order granting reconsideration. It found because Peoria continued to pay workers’ compensation benefits to Hunt after he returned to work in December 2009, Peoria was entitled as a matter of law to the entire $75,000.00 settlement amount to satisfy its lien. Hunt appealed.
The main issue this article comments on is whether the trial court erred in finding Peoria was entitled to the entire $75,000.00 settlement to satisfy its lien. The Appellate Court, Third District cited the IL WC Act and case law:
When some person other than an employer caused the injury and is legally liable for damages and the employee reaches a settlement with the third party, the employer is entitled to amounts paid out for the employee under the Act and a lien on the employee’s recovery. 820 ILCS 305/5(b).
Employers are provided a right under section 5(b) to recover amounts paid for workers’ compensation where the employee settles with the third-party tortfeasor, “regardless of whether a lien has been asserted.” Scott v. Industrial Comm’n.
An employer is not required to bring an action to protect its lien. Hartford Accident & Indemnity Co. v. D.F. Bast, Inc.
The Appellate Court held both the original and reconsideration trial court decisions were incorrect. It noted Peoria did not present any evidence which connected the payments made for the training injury to the car accident settlement. Hunt was cleared to return to work after the September 2009 car accident. Merely because Peoria denied WC benefits for the second claim, did not establish the second injury was connected to the car accident.
The Appellate Court held that Peoria must establish the payments it made were connected to the injury for which the employee recovered from the third party. As such, the Trial Court erred in holding Peoria was entitled to the entire settlement without establishing a nexus between the payments it made and the claim for which the settlement was paid.
The case was remanded for Peoria to be allowed to show what it paid out for the car accident claim, which would have ended when Hunt was cleared to return to full duty in December 2009. Peoria cannot argue it is entitled to the settlement proceeds for payments made for the training injury. This makes sense because the training injury had nothing to do with the car accident and third-party case settlement.
The confusion appears to have stemmed from the fact Peoria apparently denied the training accident claim, but at the same time paid $119,880.13 on that case. It then sought to recoup this amount against the earlier claim, the car accident, but Peoria did not establish the benefits paid were connected to the car accident claim. Again, Hunt returned to full duty work between the two alleged dates of loss.
What would have been interesting is how the lien would have been adjudicated if Hunt did not return to work and there was no second claim, with Peoria paying $125,899.50 for the car accident case. Under such circumstances there is no way to predict what the car accident case settlement amount would have been, but if less than what Peoria had paid, we can see Hunt’s entire car accident settlement going to Peoria.
This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C., who practices in Illinois and Wisconsin. Please feel free to contact Matt at mignoffo@keefe-law.com.
Synopsis: New Indiana WC Single Hearing Member (Judge) Takes Office, and New Drug Formulary now in Effect – Are you ready? Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D.
Editor’s comment: I previously reported changes at the end of 2018 for two new IN judges. The last position has now been filled. This week Sandra O’Brien officially takes over for SHM Gerald Ediger in District 1 which covers the Northwest Region. Ms. O’Brien has practiced for over 20 years in the Region as a plaintiff’s attorney in civil and IN worker’s compensation cases.
I have prior experience with Ms. O’Brien, and if you have any questions, please contact me. I look forward to working with Ms. O’Brien in the near future. If you look at the map to the left, Ms. O’Brien will handle the counties marked in bright green.
Synopsis: IWCB Drug Formulary Training Seminars Available for the new Indiana drug prescription rules and processes. Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D.
Editor’s comment: I previously reported that the new Indiana Formulary rules went into effect on January 1, 2019. The IWCB is still providing training seminars to help you understand the complicated process. To recap, I.C. 22-3-3-4.7 and I.C. 22-3-7-17.6 were added to help standardize the approval of “non-preferred” or “N” drugs for employees who filed a notice of injury. After January 1, 2019, if a doctor prescribes an “N” drug, there are now detailed steps to take to approve that “N” drug or try to UR it for a denial. URs are always a tricky step for Indiana worker’s compensation cases. So far, it’s unclear yet how this new statutory change will be followed by our judges, but the steps need to be taken for now, especially if you are denying prescriptions. Call or email me if any questions.
As always, if you have questions, concerns or just want to reasonably and rapidly close your IN WC claims, no one is faster and better than Kevin Boyle. He can be reached 24/7 at kboyle@keefe-law.com
Thanks.
Kevin Boyle, Esq., Keefe, Campbell, Biery & Assocs., LLC, 118 N. Clinton St., Suite 300, Chicago, IL 60661, 312.756.1800
and
885 South College Mall Rd. #222, Bloomington, IN 47401, Direct: 312.662.9899, Alternate: 812.369.7182
Email: kboyle@keefe-law.com, Attorney - Bio
Synopsis: Join KCB&A with the IL State Chamber for the IL WC Workshop on April 2, 2019 in Naperville. The link to register is: http://events.constantcontact.com/register/event?llr=omjkt4dab&oeidk=a07eg2i2618bf7c6629