Synopsis: Where’s That Dictionary??—“Activist” IL Appellate Court, WC Division Redefines the IL WC Act So Workers Don’t Have to Suffer an ‘Accident’ and No Longer Need an ‘Injury.’

Editor’s comment: As we advised last week, the IL State Chamber recently issued a report about 19 “activist” rulings from our IL reviewing courts that change or modify the legislative scheme to, in some instances, provide benefits outside the expected language of the Illinois Workers’ Compensation Act. We are sad to report to our clients, readers and business observers the 20th such ruling was issued on New Year’s Eve 2013 or just 12 days after the IL Supreme Court knocked out the Venture-Newberg-Perini Webster & Stone v. IWCC “traveling employee” decision. We hope this new ruling is also sent to our highest court for their consideration.

In the ruling in Village of Villa Park v. The Illinois Workers' Compensation Commission, issued December 31, 2013, a
Village employee suffered from spontaneous knee failure while simply walking down stairs at work. He was going from a meeting to the employee locker room. The unanimous appellate ruling found the employee’s occasional use of the ordinary staircase somehow was an “accident.” The ruling does not describe any safety failure, defect, foreign substance, poor lighting or other issue with the stairs.

We would love to see the dictionary where it says it is an “accident” to occasionally walk on a safe and ordinary staircase. In our view, Illinois is the only state among the United States that now has such a definition. There are numerous IL Supreme Court rulings that define “accident” and it typically means something unforeseen, some unexpected defect that led to a slip, trip or fall with an actual traumatic injury.

We Feel This Unexpected Ruling Reverses Numerous Past Fall-Down Decisions

Numerous IL Appellate rulings from First Cash Financial all the way back to theChicago Tribune v. IC ruling in the early 1980’s all require the employee show a defect or problem in the area of their fall. All of those rulings appear to have been implicitly or explicitly reversed by this new standard. It would appear all a worker now has to demonstrate is they were at work and occasionally had to walk around their workplace before suffering a personal problem that has literally nothing to do with work, other than the coincidence of their body breaking down from typical actions.

Tell us, if you will, how to effectively defend claims such as

· A school teacher who writes on a whiteboard with a marking pen and suffers a spontaneously dislocating shoulder;

· A nurse pushing an infant patient on a hospital cart whose hip unexpectedly fractures;

· A secretary walking to get paperclips whose ankle gives way at work without any known cause.

We don’t feel spontaneous knee failure or any of the problems in the examples above should ever be called an “injury.” Claimant in the Village of Villa Park ruling unquestionably suffered from a non-work-related problem that failed due to the routine progression of his problems. If you have a dislocating shoulder or torn meniscus or avascular necrosis, the body part is going to continue to cause problems of a spontaneous nature; your body gives you some warning but eventual failure can be both unpredictable but also certain. When that failure coincides with your work, it isn’t an “injury” it is the expected presentation of your underlying problem. It isn’t an “aggravation” or “injury.”

We don’t think this new idea makes much sense and it is going to lead to hundreds of new and indefensible “repetitive working” claims where our aging workforce suffers the effects of getting older and can “blame” their problems on their employers to get IL WC high permanency awards. Please remember the word “indefensible” means no one needs go to a lawyer or have a hearing before an Arbitrator—globally covered WC claims that are considered indefensible must be picked up by the insurance carriers and TPAs and benefits paid. In our view, it will be much easier to get WC benefits if our Commission and reviewing courts eliminate the messy requirement of the employee having to suffer an unpredictable accident, as our IL WC Act used to require.

To justify the determination the actions of walking on an ordinary staircase is an “accident,” the appellate ruling cites the Commission decision which we feel laughingly claims the worker was continually “forced” to use the stairway as part of his work and breaks. From that nomenclature, it appears the severe and demanding taskmasters/slave-drivers at the Village of Villa Park compelled, coerced and drove this otherwise innocent man to actually traverse the stairs as much as 6 times per day, both for his personal comfort and to complete his work-related activities. We don’t feel climbing stairs maybe as much as 10-15 minutes in a 480-minute or 8-hour work shift is a whole lot of stair-climbing. There are lots and lots of breaks from stair-climbing in between. That said, the appellate majority found the frequency with which the employee was “required” to traverse stairs was an increased risk compared to general public. In our view, climbing stairs six times every eight hours would only be an increased risk as compared to people who live in homes that don’t have stairs. We have literally no idea how to litigate or defend the level of supposed frequency of stair climbing or walking or normal actions of daily life while at work. Would this claim have been denied if the worker only walked on stairs twice a shift and not six times??

Causation-Schmausation??

As we have advised our readers and clients, the main issue the legislative leaders for IL business are trumpeting is making causation in Illinois workers’ comp clearer and potentially stricter. As we have advised IL State Rep. Dwight Kay and outgoing IL State Chamber President Doug Whitley, we don’t feel you can change causation unless and until the jurists considering the issue will follow the statutory intent. This ruling basically ends any concept of “causation” because the Court’s majority isn’t truly requiring an accidental injury—unless you agree it is an “accidental injury” to walk on a safe and ordinary staircase six times in an 8-hour shift. If you add language to the IL WC Act requiring work to be the “primary cause” of the medical condition, this court will certainly rule this ordinary and occasional work task was the primary cause.

Consider Fitness for Duty Evals, Folks

The appellate ruling also points to the fact the employer knew the employee had suffered a non-work-related injury to the knee and still allowed him to return to work. This brings up a constant problem for IL and U.S. employers—when do you allow such a worker back into your workforce? This ruling clearly outlines it may be the employer’s responsibility if the off-work injured worker’s problems appear at all while they are at work. In our view, court decisions such as this enhance the need for FDE’s or Fitness for Duty Evaluations. You may want to consider Accelerated Rehabilitation or Athletico for such evaluations if you are faced with this issue moving forward.

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

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Synopsis: IL WC Participants Need to Adjust to No-Hand-Held-Cellphones-To-The-Ear-While-Driving.

Editor’s comment: We are sure the new IL state law banning the use of hand-held cellphones while driving a car or other vehicle raises problems for claims handlers, brokers, attorneys on both sides and our hearing officers, all of whom rely on their phones to keep in touch for business and family. It is our understanding there is no problem using cellphones while driving but you can’t put them to your ear.

Should you or your firm buy a hands-free device to allow legal cellphone use by your drivers?

Our firm is going to offer it for our defense team. It simply makes good common sense. We also are concerned to the extent our lawyers are officers of the courts of this state and can’t break the law. We are encouraging all of our readers to get hands-free devices and use them regularly.

Is your company liable if an employee using work-provided equipment causes an accident?

In our view, the liability comes from having an employee working while driving—use of the phone is secondary. It is also going to be challenging to prove the phone was being used in the proscribed fashion. You can’t simply look up phone records to confirm there was a call ongoing, as that will not provide any information about how the phone was being held.

The new law went into effect Jan. 1, 2014 making Illinois the 12th state to prohibit drivers from using hand-held phones. Chicago, Winnetka, Evanston and other towns already had banned use of hand-held phones by drivers. The law creates a maximum $75 fine for a first offense of using a hand-held phone while driving. Doing so in construction and school zones in Illinois was already illegal, as is texting while driving. Please note the law creates an exception for emergency calls.

We appreciate your thoughts and comments.

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Synopsis: IL WC Commission’s 2014 Medical Fee Schedule Posted and Combines with the October 2013 WCRI Study to Confirm Solid Savings for IL Employers.

Editor’s comment: The 2014 Illinois Workers’ Compensation Medical Fee Schedule rates, increased 1.52% as of January 1, 2014. They are online at https://iwcc.ingenix.com/IWCC.asp

The Commission asserts if the Illinois Medical Fee Schedule had tracked medical inflation, rates would be 30% higher than in 2006; instead, rates are 7% lower than 2006.

Section 8.2(a) of the Illinois Workers' Compensation Act provides that, each year, fee schedule rates shall increase or decrease by the percentage change in the Consumer Price Index-U (CPI-U) in the previous year.

The defense team at KCB&A considers this another instance where legislative reforms are bringing our WC costs into line or making them lower than our sister states.

October 2013 WCRI Study Confirms Similar Savings for Your Company in WC Medical Costs

The costs of medical care to treat injured workers in Illinois are declining, the result of regulatory change enacted in 2011, according to a study by the Workers Compensation Research Institute (WCRI). The report, Benchmarks for Illinois, CompScope™ 14th Edition, finds medical payments per claim, for claims with more than 7 days of lost time, decreased five percent in 2011. The study reports the decline likely reflected the early impact of the 30 percent reduction in fee schedule rates for medical services.

In particular, prices paid for professional services to physicians, physical/occupational therapists, and chiropractors were directly affected by the reduction in the fee schedule rates, declining 24 percent between 2010 and 2012. Prices paid for all types of services fell in Illinois, including office visits, major surgery, physical medicine, pain management injections, and minor radiology, according to the study. The study also noted medical cost containment expenses per claim, such as the costs of bill review, case management, and utilization review, rose moderately at five percent in 2011 after little change in the prior year.

The 2011 reforms also focused on some of the large cost drivers behind wage replacement payments—indemnity benefits—particularly the duration of temporary disability, by setting limits on the duration of benefits for carpal tunnel injuries and wage differential benefits.

In the years prior to the enactment of the reforms, the study found the duration of temporary disability rose rapidly in Illinois, from 16 weeks in 2006 to 21 weeks in 2009, propelling growth in indemnity benefits per claim. Future analysis will determine whether the reforms achieved the intended results.

WCRI also reported that medical-legal expenses per claim grew much faster in Illinois than in most of the other states in the 16-state study, likely because Illinois does not regulate payments for independent medical examinations, which were used frequently prior to 2011 as part of the utilization review process.

Click on the following link to purchase this study: http://www.wcrinet.org/studies/public/books/BMcscope_multi14_IL_book.html.

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

KCBA Blog

1-6-2014; New "Repetitive Working" Ruling Analyzed; No Phones-to-the-Ear While Driving WC People!; IWCC Fee Schedule and WCRI Indicate IL Med Costs Dropping and more