2-4-2022; Shawn Biery's New IL WC Rate Sheet is Available for Free--email for a fresh copy; Fall-down Claim Denied by IWCC and Appellate Court--Is It WC Fraud? and much more

Synopsis: Shawn R. Biery’s IL WC Rate Sheet with All-New IL PPD Max Now Available! Get a Free Copy TODAY!!!

Editor’s comment: As the IL minimum wages increase, so do the WC rates. Our IL WC Commission (IWCC) posts new rates and Max PPD rate has increased again--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!

There will continue to be IL WC Rate increases because the statewide minimum wage is going to increase steadily for the next several years. Please don’t shoot the messenger, we are not even sure it won’t go higher before the new car smell is off the freshly laminated Rate Chart.

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 $937.11 (significantly up from $871.73).

When it was published, this IL PPD Max rate changed retroactively from July 1, 2021 to present. If you reserved a claim based on the prior IL WC PPD rate for the period from July 1 to right now, your reserves are wrong. CHECK YOUR IL MAX PPD RATE CLAIMS!

If you have a claim with a date of loss after July 2021 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies and, if it does, immediately reset reserves to insure accuracy.

To recap the other changes from January 2022:

• The current TTD weekly maximum has risen to $1,734.83.

• An IL worker has to make over $2,602.25 per week or $135,317.00 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 $650.56 per week x 52 weeks in a year x 25 years equaling a staggering $845,728.00! Yes, if Claimant makes $100 a week in a part-time job and dies in a work-related accident, the death benefit can be over $845k.

• The new maximum IL WC death benefit is $1,734.83 times 52 weeks times 25 years or a lofty $2,255,279.00 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 the KCBA free, 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, so Marissa knows where to mail it!   

You can also copy Shawn at sbiery@keefe-law.com with any questions.  Shawn remains your go-to defense source on any issue relating to IL WC rates!

Synopsis: Fall-Down Denial Affirmed by IL Appellate Court. Yes, Folks, IL WC Has Defenses, If You Investigate! Is It WC Fraud?

Editor’s comment: We have risk and claims managers across the State who recognize this is a one-party State and it appears challenging to defend companies and governments. Some folks are telling us to compromise, compromise and settle to avoid expected poor outcomes. In the view of KCB&A, if you do a solid job investigating and documenting a challenging claim, you still can prevail. This significant five- or six-figure claim could not have been defended without the stellar incident investigation of the employer’s team. If you want our materials or training on WC incident investigation, please send a reply. If you need legal guidance on how to best fight any WC claim, send a reply and we will do everything we can to help.

In Murray v. IWCC, Claimant was a dispatcher. He alleged multiple injuries to his body including back, shoulders, hips, neck, right leg, body as a whole when he fell down a flight of stairs while working on May 30, 2019. The main issue was whether claimant's alleged May 30, 2019, accident actually occurred. The employer urged claimant's alleged accident was fabricated by Claimant due at least in part to disciplinary action taken against him earlier the same day.

Claimant worked in a dispatch office located on the third floor of the building and had the option of taking either the stairs or the elevator to his workstation. He claimed he sustained injuries when he fell down the stairs while retrieving a lunch bag he had forgotten in his vehicle. No one else witnessed the alleged incident, and Claimant was the only witness who testified that the accident actually occurred.

Prior to the DOL, multiple and repeated issues had arisen with regard to claimant's job performance, yet he had only been a dispatcher for 18 months. The employer documented the issues in claimant's disciplinary records, which were admitted into evidence. Claimant testified he received "coaching" after several instances where he made improper dispatches and he was suspended following an incident where he "lost track" of an officer.

Claimant identified a disciplinary record, titled "Notice of Intent to Discipline" that he signed on May 30, 2019, indicating his acceptance of a two-day suspension without pay set to occur on "June 5th and 6th of 2019." On cross, claimant clarified that he signed the notice prior to working his scheduled evening shift (from 3 p.m. to 11 p.m.) on the date of loss or May 30, 2019.

The chief deputy for the Employer, testified Claimant signed the notice of suspension during a meeting held prior to his assigned shift on May 30, 2019.

Claimant testified the event occurred during his assigned shift on May 30, 2019. Specifically, the accident occurred when he left the dispatch office on the third floor to retrieve his lunch bag from his vehicle on the ground level. Claimant explained that he initially attempted to take the elevator but decided to take the stairs when the elevator light did not come on after he hit the button. On cross-examination, claimant clarified that he did not wait very long for the elevator because the light did not come on and he claimed he did not hear the elevator moving.

Claimant testified that, while descending on the stairwell, he slipped "due to visibility," twisted his ankle, and fell backwards down the stairs. Claimant identified the incident report he filled out on June 1, 2019, in which he alleged the stairwell had poor lighting and described falling backwards down a flight of stairs after missing a step and twisting his ankle. On cross-exam, Claimant clarified his claim he fell down the last landing of the stairwell and then called his coworker.

Claimant's coworker, testified she was a dispatcher. She was familiar with the stairwell where claimant fell, although she only occasionally used the stairs. She identified some of the photographs of the stairwell and agreed some of the lights were out. However, she testified the stairwell lighting was a "normal" amount of lighting.

Claimant's medical records generally revealed that, at the time of the accident, he was 57 years old, weighed 284 pounds, and had a prior knee surgery.

Although Claimant requested his co-worker call an ambulance for him, and he was transported by such ambulance to the hospital, claimant did not introduce any ambulance records. Likewise, though the ambulance transported claimant to the emergency room, Claimant did not introduce these records. Instead, the employer offered the emergency room records. The emergency department records from May 30, 2019, show claimant complained of right shoulder and back pain after falling down 10 to 12 stairs. The records further note, twice, in full capital letters and bold-face type there was "No obvious trauma noted." The records describe normal range of motion, and no deformity. There is a notation of multiple contusions, without reference to where or whether the medical personnel actually observed them. The facility performed several computerized tomography scans, which showed essentially normal results.

Claimant presented to Dr. Buchman on June 3, 2019, complaining of worsening back pain after falling down "15 stairs" on May 30, 2019. Dr. Buchman noted back tenderness but no "visible bruising or abnormality" and "no edema or deformity." The records from this visit are the first ones chronologically Claimant submitted, and for reasons unknown, the records did not include the second page.

Claimant presented to Nurse Practitioner Sullivan the following day, June 4, 2019, complaining of back pain and left, instead of right, shoulder pain. Claimant reported he was attempting to retrieve his lunch when he fell down 12 to 15 steps after missing the first step. Sullivan's physical examination of claimant's low back revealed tenderness but was otherwise unremarkable. The facility performed X-rays of claimant's left shoulder, which the radiologist interpreted as a "[n]ormal." Sullivan noted a diagnosis remained unclear pending additional testing and imposed temporary work restrictions.

Claimant was next seen by Dr. Matthew Gornet, an orthopedic surgeon, on June 6, 2019. Claimant provided a relatively consistent history of the May 30, 2019, incident and complained primarily of pain in his cervical and lumbar spine. Dr. Gornet also opined that claimant's symptoms were related to the May 30, 2019, events as described by claimant. Dr. Gornet noted such injuries "tend to resolve with time" and directed claimant to undergo physical therapy.

At a follow-up appointment with Dr. Gornet on July 18, 2019, claimant reported no improvement with physical therapy. At Dr. Gornet's recommendation, claimant had Magnetic Resonance Imaging (MRI) scans taken of his cervical and lumbar spine. The MRI of claimant's lumbar spine revealed an annular tear and protrusion at L5-S1 and foraminal annular tears at L4-L5 and L3-L4. The MRI of claimant's cervical spine revealed annular tears at C3-C4, C4-C5, and C6-C7, as well as a disc bulge at C5-C6. With regard to claimant's lumbar spine, Dr. Gornet confirmed his opinion Claimant had a disc injury. Dr. Gornet also recommended an epidural steroid injection at L5-S1 and medial branch blocks, along with facet rhizotomies, at L4-L5 and L5-S1. Dr. Gornet also "asked" claimant to "begin losing weight" due to his "fairly substantial abdomen" which "will need to decrease prior to treatment." Claimant underwent an ESI.

Following an emergency hearing, on October 21, 2019, the Arbitrator issued a written decision on all disputed issues. The arbitrator found Claimant sustained an accidental injury arising out of and in the course of his employment on May 30, 2019, and that claimant's current low back condition was causally related to the work accident. Benefits were awarded.

About a year later, on July 31, 2020, the Commission, with one commissioner dissenting, issued a written decision reversing the arbitrator's decision on the issue of accident and vacating all awards. In doing so, the Commission first made several modifications to the arbitrator's findings of fact. The Commission noted that claimant was seen by Sullivan on June 4, 2019, not May 30, 2019, as indicated in the arbitrator's decision and that claimant first learned of the two-day suspension on May 30, 2019, not May 28, 2019, as found by the arbitrator. The Commission also noted the arbitrator's decision did not reference Dr. Buchman's notation that claimant had no visible bruising or abnormality during an office visit on June 3, 2019.

Delving into the Commission's decision, much of the decision relates to Claimant's credibility. In short, the Commission found the totality of the evidence indicated Claimant and his version of events was simply not credible.

The Commission found, although Claimant was in the stairwell and an ambulance was called in response to an alleged incident on May 30, 2019, claimant "failed to prove that he sustained any accident at all." In support, the Commission noted that claimant's medical records did not support his claimed mechanism of injury—that he fell down 10 to 15 steps on May 30, 2019. The Commission concluded Claimant's failure to introduce the May 30, 2019, ambulance record into evidence led to "the permissible inference" that it contained information detrimental to claimant's claim. The Commission later noted Claimant's failure to include the second page of Dr. Buchman's June 3, 2019, treatment record, which was the first medical record claimant submitted into evidence, led to the same inference.

The Commission found that the May 30, 2019, emergency room treatment record— which was introduced by the employer, not claimant—indicated Claimant suffered no obvious trauma. The Commission acknowledged the same treatment record listed an impression of "multiple contusions" but concluded "[t]he impression of `multiple contusions' seems inconsistent with the finding of `no obvious trauma.'" The Commission noted the treatment record neither named the location of the contusions nor specified whether the impression was based on the provider's observations or claimant's subjective complaints. The Commission further noted Claimant's "only apparent exam findings were `tenderness to palpitation,' for which there was no documented objective basis."

The Commission observed that Dr. Buchman's June 3, 2019, treatment record indicated claimant had "no visible bruising or abnormality." The Commission found "it extremely unlikely that [claimant] could fall backwards down a flight of 10 to 15 steps without having any visible signs of trauma documented in any of the medical records." Moreover, the Commission found, without contemporaneous objective medical evidence of trauma, the MRI ordered by Dr. Gornet of claimant's low back over a month after the accident did not support his claim he fell backwards down 10 to 15 stairs.

The Commission further observed claimant's stipulation he was only seeking compensation for his low back did not make him more credible. Instead, the agreement was "an attempt to deflect attention away from the lack of objective findings to any other body part" after the backwards fall down multiple steps.

The Commission also noted inconsistencies in Claimant's description of the May 30, 2019, accident. Specifically, the Commission observed Claimant's initial description of the accident at the emergency room "could indicate" he slid down the stairs feet first on his back while holding his head up, while the subsequent medical records, along with claimant's testimony, include "some variation of [claimant] falling `backwards down the stairs.'" In addition, the Commission noted that no ankle injury was documented in claimant's medical records so as to support the June 1, 2019, report he made to the employer, in which he described twisting his ankle due to poor visibility, missing a step, and falling backward down the stairwell. Consequently, the Commission did not find his claimed mechanism of injury credible.

The Commission disagreed with the arbitrator's determination Claimant's decision to take the stairs was not suspicious under the circumstances, finding it "likely" that claimant had never taken those stairs before the date of the accident. The Commission found it "highly coincidental that [claimant], who weighed 284 pounds, was 57-year[s] old, and had previous knee surgeries would choose to walk down two flights of stairs in an allegedly dark stairwell for the very first time on the day that he was informed of his suspension." In addressing Claimant's testimony that he would not put himself through the pain of throwing himself down a flight of stairs over two days of pay, the Commission noted that the accident was not witnessed. The Commission further noted Claimant could have merely claimed he fell down the stairs due to the pending suspension or the possibility of losing his job following the suspension.

Please note the courts in this part of Illinois are among the most liberal in the entire U.S. On April 23, 2021, the circuit court reversed the Commission's decision and reinstated the arbitrator's decision, concluding the Commission's finding on the issue of accident was based on “improper speculation.”

On appeal, the employer first contended the Appellate Court should set aside the circuit court's order reversing the Commission's decision and reinstate the Commission's decision. The employer argued the Commission's finding Claimant failed to prove he sustained an accident was not against the manifest weight of the evidence. A divided IL WC Appellate Court agreed. I salute them for it.

The ruling outlines the Commission found Claimant failed to prove he sustained an accident on May 30, 2019. Specifically, the Commission found, although claimant may have been in the stairwell on the alleged date and an ambulance was called in response to an alleged accident, he failed to prove he sustained any accident on the alleged date. Because no one witnessed claimant's alleged accident on May 30, 2019, and claimant was the only witness who testified that the accident occurred, the Commission's finding was based upon its determination that claimant's testimony and "claimed mechanism of injury" lacked credibility.

Claimant testified the accident occurred while he was retrieving his lunch box during his assigned shift on May 30, 2019. Specifically, Claimant testified he slipped "due to visibility," twisted his ankle, and fell backwards down the stairs. Claimant also testified he immediately notified a co-worker of his fall and requested she call an ambulance. Claimant also notified the employer of the alleged accident and filled out an incident report the following day on June 1, 2019. Consistent with his testimony, Claimant alleged in the incident report that the stairwell had poor lighting and he twisted his ankle, "missing a step and fell backwards down [the] flight of stairs."

The ruling doesn’t indicate how Claimant was going down the stairs and yet fell backwards—in my view, very few people ever walk backwards down stairs. I also note anyone falling backwards down stairs is, almost with 100% certainty, going to strike their head at least once if not several times—no mention is made of how that head strike or strikes didn’t occur.

According to Claimant's medical records, some introduced by the employer, he sought immediate medical treatment after the alleged accident and follow-up treatment in the months following the alleged accident. Claimant provided a generally consistent history of the alleged accident to each medical provider, as documented in his medical records. The Court noted medical records also showed an MRI of claimant's low back approximately a month and a half after the accident revealed an annular tear and disc injury. Claimant testified he had no prior injuries to his back, and the medical records do not reveal if he did or not or whether he had received medical treatment for his back prior to May 30, 2019.

The Commission determined Claimant's medical records did not support his claim, based on several factors. The Commission found Claimant's failure to submit the May 30, 2019, ambulance record and the second page of Dr. Buchman's June 3, 2019, treatment record into evidence led to "the permissible inference" those records contained information detrimental to his claim. Such determination is within the Commission's purview and is reasonable given the evidence.

Similarly, the Commission questioned Claimant's claim of twisting his ankle on the stairs, given that no ankle injury was documented in his initial medical records.

As well, the Commission found it was "extremely unlikely" Claimant could have fallen backwards down a flight of stairs without any visible signs of trauma documented in his medical records. The Commission observed Claimant's initial treatment record from May 30, 2019, indicated claimant had no obvious trauma and found the noted impression of "multiple contusions" was vague and inconsistent with the notation of no obvious trauma. The Commission also relied on Dr. Buchman's medical record from June 3, 2019, which indicated claimant had no visible bruising.

The Appellate Court, WC Division reinstated the IWCC’s denial of this claim. The simple question to ask all of you—did Claimant

• Actually fall down the stairs? Or

• Did he make it all up to quietly lay down at a point on the stairs to start screaming for help?

Please note option 2 above clearly is WC fraud. If you are going to block such claims, you have to perform a great incident investigation, as this employer clearly did. What do you think?

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