11-26-13; Repetitive Trauma Ruling Trend Reported by John Campbell, Jr.; "Traveling Employee" to be Orally Argued Wednesday; Caveat Emptor when Approving IL WC Care and more
/Synopsis: Solid Trend Continues at the IL WC Commission in Repetitive Trauma Claims. Analysis by John P. Campbell, Jr., J.D.
Editor’s Comment: We welcome this Commission trend, not simply due to a particular denial of benefits, but rather, due to the fact they are more carefully analyzing facts in evidence and properly placing the burden of proof on workers who alleged an amorphous “injury” simply due to the fact that they work or have jobs. InGilio v. Unisource Worldwide, Inc., 21 ILWCC 116, the Illinois Workers’ Compensation Commission panel reversed an arbitrator’s award of benefits to a 43 year old truck driver who alleged a repetitive trauma “injury” to his back. Petitioner worked as an over-the-road driver and performed typical tasks involving hooking and unhooking trailers, driving and loading. There was no “accident” described, Petitioner simply claimed an increase in back pain due to his general job duties. His treating doctor diagnosed two herniated discs and also “related the condition to work.” Of note, Petitioner claimed he performed a substantial amount of loading and unloading of trailers which contributed to his worsened condition. This assertion was rebutted by the insured who offered testimony from the operations manager and supervisor to establish far less loading duties were performed by Petitioner than claimed.
In reversing the Arbitrator, the IL WC Commission panel relied more heavily on the testimony from the company witnesses who asserted Petitioner engaged in very limited loading duties, and only on a voluntary basis. While Petitioner alleged a more substantial level of loading work, he offered no corroborating evidence or witnesses to support his assertions. Also noteworthy was the fact Petitioner had a clear prior history of back pain before any “injury” was alleged and Petitioner’s own treating doctor testified his spine was “age appropriate” and the disc problems could possibly be from the natural aging process. It is unclear whether we would have seen a reversal had the treating doctor offered stronger opinions on causal connection.
Nevertheless, this decision exemplifies a continued trend we have seen from the three Commission Panels who truly challenge claimants to prove their case by the required “preponderance of the evidence” standard, particularly when causal connection is asserted under the “repetitive trauma” variety. Regardless of outcome, we applaud the careful analysis by the Commission Panel and adherence to the evidentiary standard. We hope the trend continues.
KCB&A has a complimentary IL WC training presentation for claim adjusters and risk managers on how to handle and best defend such “repetitive working” claims, particularly in setting up IME opinions. As part of the IME process, we caution all defense system participants to avoid calling such claims “accidents” or “injuries” when claimant doesn’t allege any safety failure, trauma or slip/trip/fall. Please note most insurance carriers/TPA’s have form IME letters that ask all the wrong questions and can cost your accounts millions of dollars. We prefer to call this sort of claim “onset of pain” and insure the IME expert has a solid picture of the precise work performed. If you are interested in a complimentary lunch and learn with such IME background letter training, please send a reply.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: The “Traveling Employee” Claim Before the IL Supreme Court Will Be Argued in Two Days!
Editor’s comment: The Illinois Supreme Court website indicates:
Call Wednesday, September 18, 2013 - 9:30 A.M.
Registration time for first four oral cases
No later than 9:15 A.M.
No. 115728 - The Venture-Newberg Perini Stone and Webster, appellant, v. Illinois Workers' Compensation Commission et al. (Ronald Daugherty, appellee).
Appeal, Appellate Court, Fourth District.
This means top-notch defense attorney Ted Powers of the Rusin, Maciorowski firm will argue before the IL Supreme Court to seek reversal of this lower court ruling. For all of our readers, this may be the largest change in WC coverage in any state in the U.S. We are certain IL WC costs will skyrocket if it isn’t overturned. What Plaintiff/Petitioner is seeking is to have millions of IL workers designated as “traveling employees” and covered for personal and non-work-related risks/injuries/illnesses. Please note “traveling” has little to nothing to do with “traveling employee” status.
A traveling employee or TE is loosely defined in the lower court rulings as:
· Someone that doesn’t work on the “premises of their employer”—that new term is even more loosely described as a worker that leaves a central worksite or office to work elsewhere—this will encompass any and all staffing workers;
· Someone who works at more than one “premises of their employer” so if the employer has two or more central workplaces and the employee travels between them, he/she becomes a TE;
· Someone whose work involves travel as an “essential part of their job.” We assume this means all workers in the entire transportation industry along with police/fire/attorneys/accountants and lots of other folks.
If a worker can fit into the TE classification from one of the broad definitions above, they are covered “portal-to-portal” or from the moment they leave their home until they return for admittedly personal and non-work-related risks. This means IL employers will owe full IL WC benefits for thousands of traffic accidents that have nothing to do with work. All parking lot falls and actually all fall-downs will be covered for TE’s. If a worker goes to watch a ball game on the way home and gets hit by a baseball, the employer will be on the hook for medical bills, lost time and permanency. We have no idea how this new concept will affect “repetitive working” claims, reported by John Campbellabove, to the extent TE’s may soon tack on their off-work activities to the conditions of life causing needed medical care. On a similar note, we think thousands of illnesses could be covered.
One of the worst aspects of this unprecedented legal concept was pointed out by an employer that has operations in IN and IL—she made it clear she would move as many workers as she can to the other state, forcing her workers to drive to IL to perform services. Her point is she is okay with paying WC benefits for such workers who are traveling across IL for work—she is not okay with having to pay for personal risks in coming to and going home from work as Illinois might do. Other states don’t require WC benefits be paid for purely personal risks, like our state.
We will have someone present at orals to report. A computer file allowing the public to listen to orals will be posted on the IL Courts website—we will send you the link when it is posted. We wish attorney Ted Powers all the best in seeking reversal. We hope and pray our Supreme Court isn’t going to dramatically rewrite the IL WC/OD Acts to provide this expanded coverage so as to cost our state jobs and our remaining employers billions of dollars in increased premiums and reserves. As this is going forward, the legislative gurus at the Illinois State Chamber of Commerce-Employers Law Council are working to find a legislative solution—we strongly support them and hope our readers will also. For info about the State Chamber and how they are working for Illinois business in the WC arena, go to their website at www.ilchamber.org.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: Caveat Emptor Recommended for IL WC Adjusters in Authorizing Medical Care/Procedures with IL Hyper-Aggressive Treaters/Billers.
Editor’s comment: One of our readers is a very solid defense attorney in the west suburbs of Chicago. He wanted to provide a warning to all claims adjusters handling IL WC claims. He advised he is currently defending litigation in Cook County brought by a medical center that is very, very aggressive on providing care and billing every last penny they can possibly collect. The litigation is against an insured for an alleged “underpayment” of the surgical center’s bill. The bill went through processing and was paid pursuant to the IL WC Medical Fee Schedule. Despite that fact, the surgical center filed a Circuit Court complaint alleging promissory estoppel and further complaining the bill was not paid “properly.”
An initial motion to dismiss based upon the IL WC Commission having exclusive jurisdiction was denied. The Circuit Court surprisingly found the actions by the WC adjuster to approve/certify the procedure impliedly promised to pay the claimed billed amount thereby somehow creating a “contract.” Whatever they rule may all have to be appealed to the higher courts—if that happens, this is all going to cost these insurance carriers/TPA’s and employers significant money. The defense attorney who has dealt with this nutty litigation advised there are two dozen similar cases pending in Cook County alone and possibly lots more to follow.
In lieu of the “new” outbreak of civil litigation by these medical groups over claimed unpaid or underpaid WC medical bills we join with counsel to recommend you consider implementing a new procedure when certifying any medical care or procedure:
Insurance Company, TPA or Self-Insured Company on behalf of the employer certifies/authorizes this [insert name/description of approved care] procedure pursuant to Section 8a of the IL WC Act and further agrees to pay reasonable and related charges subject to Section 8.2 of the Act (fee schedule), UR review or any other contractual agreement. The provider herein agrees payment of the charges pursuant to the IL WC Medical Fee Schedule, UR or contractual agreement represents payment in full. Any dispute about payment is to be resolved solely by the IL Workers’ Compensation Commission.
In our view, forewarned is forearmed. This short paragraph may save you a little or a lot of litigation, depending on what sort of IL WC claims you are handling.
Please also note none of this might occur if you sign on to an IL WC PPP and your injured workers go into the network for care. We recommend you contact either HFN, Inc. or CorVel for their thoughts and ideas on this growing tool for IL employers to save millions on IL WC medical costs. We understand Procura Management, a subsidiary of Healthcare Solutions has been approved to provide a network by the Illinois Department of Insurance. This marks the sixth organization to be approved to provide such global network IL WC PPP services for you and your troops.
We thank the reader for his thoughts and ideas. Please send your thoughts and comments and we will relay to him.
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Synopsis: New Improvements/Developments at KCB&A. New Southern IL Law Office, New Defense Lawyer!!
Editor’s comment: As we continue to grow our southern IL defense practice, we have now opened a satellite office in St. Louis, MO. It will be managed by our law partner Jim Egan and his team to assist coverage across the lower half of our state. The new address is
Keefe, Campbell, Biery & Associates
7733 Forsythe Boulevard
11th Floor
St. Louis, MO 63105
Phone 855-322-6290
Fax: 855 322-9950
Website www.keefe-law.com.
The new lawyer is Dave Iammartino, J.D. who has substantial experience at the IWCC across our state. Dave has been licensed since 1996 and brings a strong defense focus to his new position. His phone numbers are office: 312-756-3717; cell 773-653-6202; diammartino@keefe-law.com.