6-3-13; "Insane in the Membrane" IL WC Legislative/Judicial Update; Star Wars Robot Suits May Be Coming to WC Claims; Nathan Bernard on Line of Duty Pension Ruling and more
/Synopsis: Is the State of Illinois “Insane in the Membrane?”
Editor’s comment: With respect to our judiciary and legislature, we think you can make a compelling case that Illinois’ government has gotten odd past kooky beyond silly. Last Friday, the spring legislative session ended with three arguably crazy examples:
· Our IL legislature just passed a law legislatively reattaching the shoulder to the arm (duh??);
· Our IL courts just ruled a cleaning lady who fell in her own driveway or on a public sidewalk while admittedly not on the clock but on the way to work is covered under IL WC as a matter of law;
· Our IL legislature didn’t do anything about a public employee pension deficit that is growing at a rate of $1B every sixty days and is certain to be over $105 billion by next year—we are paying more money and will owe more money for “salaries/compensation/pensions” for government workers who aren’t working ever again than we are paying for active state employees. At present, IL taxpayers are seeing one out of every four current tax dollars going to pensions—this is squeezing out and sweeping up money that could be used for medical care for the poor, schools/universities and everything else the State does. The situation is certainly going to get worse and worse until something is done someday but we can expect the secretive government union bosses will remain in the background while fighting and fighting any reduction.
Three main eccentric developments (or lack of development) occurred last week; all of them arguably incongruous and peculiar, in our minds.
First, without much fanfare, the 2013 Amendments to the IL WC Act were passed by both houses of the IL Legislature and will move to Governor Quinn for his signature. Please watch this spot for news on when and if he signs it. Our amazement should be recorded because we have no idea who, how and why these anomalous changes were presented and passed. We note the only state-wide organization that reported on it was the gurus from our IL State Chamber of Commerce. The Illinois Workers’ Compensation Commission didn’t report the proposed legislation on its solid and informative website. We don’t see where the IWCC, as an administrative body or the IL WC Advisory Board debated or recommended these significant changes to our legislative leaders. We didn’t see either the IL Workers’ Compensation Lawyers Ass’n or the IL Self-Insurers Ass’n debating/discussing/promoting them.
What is mildly nutty, in our view, is this “stealth” bomb that just hit all of us in the IL WC industry, started as legislation to amend the IL Condo Property Act on the issue of solar and wind energy (???). Then a Senator who has little to do with the WC industry proffered amendments to our IL WC Act. The following is analysis from Shawn R. Biery, JD, MSCC and your editor on what just hit IL WC claims handlers and risk managers. We are finalizing a PowerPoint presentation for training purposes and we are happy to present on a formal or informal webinar basis—if you are interested, send a reply. Please remember the legislative changes aren’t effective until the Governor signs them—the information below is NOT yet law but we assume he will sign them in the near future.
A. The first legislative change is basically obtuse and makes little sense to us--it eliminates the ability of an injured worker to bring suit against an insurer, broker, service organization that is wholly owned by the employer, WC insurer or broker that a provides safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty. We are completely baffled by this new legislative provision and have no idea who it might affect—does anyone know a company in IL that had a wholly owned insurer or broker or safety organization that was sued due to injuries to a worker? Does anyone know of two such companies? Was there a crying need for this legislative change?
B. Whew, the shoulder has been legislatively reattached to the arm--for purposes of awards under Section 8(e) of the IL WC Act, injuries to the shoulder shall be considered to be injuries to part of the arm. This amendatory Act of the 98th General Assembly is declarative of existing law and is not a new enactment. We view this new provision as a legislative “smack-down” of the Forest Preserve District of Will County v. IWCC ruling where the reviewing court grabbed a dictionary or two to rule the “arm” was the part of the body between the shoulder and the wrist. We assure our readers the goal was to strip out credit for prior awards for loss of use of the arm for later injuries to the same body part. We remain concerned our courts may grab new dictionaries to again try to redefine what “shoulder” and arm might mean.
C. Impairment awards suddenly are to become “ordered?” The new law requires in determining the level of permanent partial disability, the Commission shall base its determination on the following factors: (i) the reported level of impairment pursuant to subsection if such an impairment report exists; (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee's future earning capacity; and (v) evidence of disability corroborated by the treating medical records. No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used, including the level of impairment reported by the physician, must be explained in written order. We feel this provisions might water down impairment ratings by making the Arbitrator statutorily “explain” the PPD ruling. They are not to include an impairment rating if they don’t have an impairment rating report—again, we consider this mildly kooky and don’t feel Arbitrators should start concocting impairment ratings on their own.
D. Employers to provide free interpreters for pro se settlement hearings--if a pro se settlement claimant cannot speak English, the employer/insurer/TPA have to provide qualified, independent interpreters for pro se settlements at their expense. Again, it is hard for us to believe the legislators had to address this issue. KCB&A gets 10-20 pro se settlements approved every month of every year and we have never experienced such an issue.
E. More unfounded and unfair IL WC Arbitrator bashing—The new law requires each arbitrator appointed after June 28, 2011 to demonstrate in writing his or her knowledge of and expertise in the law of and judicial processes of the Workers' Compensation Act and the Occupational Diseases Act. Can someone in Springfield please give our Arbitrators a break? If we are going to require written documentation of their expertise, can we extend this to every lawyer who walks into any IL WC Commission office to include the Chairman, the Commissioners, the Arbitrators, the law clerks for the Commissioners, the attorneys in the IWCC’s compliance section, your editor and all Petitioner and Defense attorneys? Does anyone want to take a shot at our workers’ compensation law school final exam? If not, can we set up an “expertise-detector” for all of them? If we aren’t going to make this a global requirement, please stop picking on the arbitration staff!
F. IL WC Commission to continue to publish a WC handbook and put it on its website? The new law requires the IL WC Commission to continue to do what it has done for years--publish a handbook in readily understandable language in question and answer form containing all information as to the rights and obligations of employers and employees under the provisions of this Act. The IWCC’s handbook will remain confusing, loosely follow the law, make workers want to find lawyers and remain available free of charge to the general public. All of it now has to be maintained on the Commission's Internet website. We have no idea why this is now in our law.
G. Limits on Petitioner’s attorney's fees can now be waived?? At present, such fees shall not exceed 20% of the sum which would be due under this Act for 364 weeks of permanent total disability based upon the employee's average gross weekly wage prior to the date of the accident and subject to the maximum weekly benefits provided in this Act. Now our law may allow the employee or his or her dependents, as applicable, waive in writing the 364-week limit on attorney's fees or unless further fees shall be allowed to the attorney upon a hearing by the Commission fixing fees. An employee or his or her dependents, as applicable, may waive in writing the 364-week limit on attorney's fees in death cases, total disability cases, and partial disability cases. We want to be there when an employee can waive the attorney fee limit in his/her own death claim—that might be international news! We also wonder why the law doesn’t include “widows” in death claim waivers but only mentions dependents. All of this goes back to an interesting issue—were there lots of claimants asking to pay more money in fees? Can politically connected Petitioner lawyers now get 30%, 40% or 49% attorney’s fees for their accepted and undisputed major claims?
H. Some new Gobbledygook about appeals from the IWCC to the Circuit Court. It shall be the duty of the Commission upon receipt of the summons from the Circuit Court, to prepare a true and correct copy of such testimony and a true and correct copy of all other matters contained in such record and certified to by the Secretary or Assistant Secretary thereof. We have no true idea how this changes prior law and/or why the legislature cared about it and changed it.
I. Thou shalt now authorizeth medical care or face the wrath of penalties! We consider this an important change for all IL WC adjusters and nurse case managers to know and understand. The new provision states: “[i]n a case where there has been any unreasonable or vexatious delay in the authorization of medical treatment or in the payment of compensation or an intentional underpayment of compensation, or proceedings have been instituted or carried on by the one liable to pay the compensation, which do not present a real controversy, but are merely frivolous or for delay, then the Commission may award compensation additional to that otherwise payable under this Act equal to 50% of the amount payable at the time of such award. Failure to pay compensation in accordance with the provisions of Section 8, paragraph (b) of this Act, shall be considered unreasonable delay.” We understand this to be legislation to statutorily “reverse” the Hollywood Casino v. IWCC ruling. Our problem with this new legislation is ascertaining how medical care was “non-authorized”—if the employer won’t pay for surgery, can they also be penalized for 50% of post-surgical care? We also feel it is a legislative provision that may push more employers to WC PPPs because we feel you probably have to authorize what your network recommends.
J. Starting January 1, 2014, interest owed on unsuccessful defense appeals from the Arbitrators’ awards will be lots higher. Beginning January 1, 2014, decisions of the Illinois Workers' Compensation Commission reviewing an award of an arbitrator of the Commission shall draw interest at a rate equal to 3 percentage points above the average quoted prime rate on short-term commercial loans. We feel this is another reason to get rid of the third Commission panel, as there may be lots fewer appeals in years to come.
K. Injured Workers’ Benefit Fund to be used for only for claims against such employers. To our understanding this limits the use of fines for uninsured employers to be used to pay claims for workers getting awards against them. If you think that is a solid approach, then this is a solid legislative change.
L. Poor people to be afforded the rights and remedies of everyone else. If the Commission finds an injured workers is a poor person, they get fee subpoenas, transcript, copies of exhibits and written requests for summons at the expense of IL business because IL business funds the IWCC. Our problem with this concept is IL WC benefits are paid to folks who have jobs—how are you “poor” if you were injured at work and then provided benefits?
If you have questions or concerns about the 2013 Amendments to the IL WC Act or if you want a copy of our PowerPoint presentation, please send a reply.
Second, we are looking for IL businesses large and small that want to join with us to try to stop the wild and unprecedented expansion of the “traveling employee” concept. We were thrilled to hear Ted Powers who is a very solid defense lawyer has received a positive response to his request for the IL Supreme Court to consider the ruling of the Appellate Court, Workers’ Compensation Division in The Venture-Newberg Perini Stone & Webster v. Ill. Worker’s Compensation Commission, No. 115728, 4th Dist. This case presents the judicial question as to whether trial court properly set aside the IWCC’s determination claimant was entitled to Workers’ Compensation benefits arising out of his accident, which occurred while claimant was riding in vehicle from a motel to jobsite. The Appellate Court, Workers’ Compensation Division in reversing the Circuit Court and reinstating the Commission's award, found claimant’s injuries were compensable under the IL Workers’ Comp Act as they felt claimant met requirements of the so-called “traveling-employee” doctrine where claimant was assigned to a jobsite that was not the employer’s “premises,” but rather was the premises of a client of his employer.
Claimant Daugherty was unquestionably not at work or working when injured; he was driving from a motel/lodge to work when the co-worker’s car slid on ice and hit a bridge. He has over $1M in medical bills. The Appellate Court ruled he was a traveling employee because he didn’t “live” in the area but traveled there to “live” temporarily in a “lodge/motel” to then go to the work site.
Once having designated him as a “traveling employee” the Court’s majority found WC coverage would lie for “anything he might reasonably be expected to do” during the whole time he was “traveling.” Please note at the time of the accident, Claimant Daughtery wasn’t on the clock. He wasn’t paid, trained or instructed on where to “live” or how to travel to the lodge or the work site.
That means if the guy had a bad dream and rolled out of bed and broke his arm, it would be work-related. We feel if he had a heart attack or stroke watching TV in the motel/lodge it could be work-related. No one in this state has any idea what this all might mean—it was all created in our Commission and courts. If you read the actual legislation and compare it to what happened, this accident clearly didn’t “arise out of” or occur “in the course of” work. The entire “traveling employee” concept was made up in our courts—the term “traveling employee” hasn’t been considered by the IL legislature and doesn’t appear in any statute or rule.
In the second such case to be ruled upon by the same panel, Mlynarczyk v. IWCC, the same Appellate Court panel reviewed a claim where the injured worker was a cleaning lady who either fell down going to a minivan to go to work. She was not working nor was she “on the clock” when she fell. She was either on her own driveway or on a public street when she fell. The Court’s members found she was a “traveling employee” and subject to the “risks of the street” and therefore the claim was compensable because what she was doing when she fell was “reasonable.”
No state in the United States offers WC benefits for injuries when the worker is clearly not working nor was she being paid. How do you truly investigate injuries in one of your employee’s driveways? We point out the words “traveling employee” are a judicially created concept that have no true legal meaning other than as the justices who use them provide it to us—the words/terms aren’t defined in the IL WC Act or Rules. Similarly, their legal terms “street-risk” or “hazards of the street” are similarly judicial legislation. Our legislature hasn’t included such terms in the statute or rules. If an Illinoisan is eaten by a polar bear, is that a “street-risk?” Where does “street-risk” start and stop? When is it a “street-risk” and not a risk common to the public?
We actually don’t know whether you have to be on a trip to be “traveling.” It is possible that a worker could occasionally be traveling and be a “traveling employee” even when not on a trip. We ask the question—if a cleaning lady is going to work in an office of the employer for a while and then go to a work-site not owned by the employer but will later report back to the employer’s work site, are they a “traveling employee” all day, some of the day or only when injured?
We are certain if you provide global coverage to everyone whether they are at work or not, Illinois is going to massively expand WC coverage and benefits. The savings in the 2005, 2011 and 2013 Amendments will be gone with the wind. These rulings, if they stand, are a complete WC game-changer. We urge all Illinois employers to join in the fight to reverse these impossible-to-understand rulings. If you are interested in putting your name on our amicus curiae brief, please send a reply.
Third and finally, the IL legislature couldn’t find a middle ground on our gigantic government pension crisis. Illinois government unions don’t appear to care about IL taxpayers and we are going to continue to pay billions to folks that don’t work for IL government any more. We are going to have to continue to tell current pension contributors they may never get any money because their money is being drained to pay current pensioners. Folks like Mike and Lisa Madigan and Pat Quinn are starting to understand how obstinate our government labor bosses are but don’t have a path to correct this mess—it clearly isn’t’ sustainable under any mathematical theory we are aware of. All of it is certain to get worse and worse. We are confident the mantra is going to be “tax the rich” to pay pensions to folks like former school district chiefs who are getting over $20K a month in pension benefits.
So there you have it readers. New stealth legislation, our courts providing WC benefits to people injured before they start work and government pensions completely out of control. Welcome to “Insane to the Membrane” Illinois. Please forward your thoughts and comments or post them on our award-winning blog.
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Synopsis: Are Star Wars Robot Suits Coming to Workers’ Comp Claims Near You?
Editor’s comment: A powered exoskeleton, also known as powered armor, exoframe or exosuit is a mobile machine consisting primarily of an outer framework, akin to an animal's exoskeleton, worn by a person and a powered system of motors or hydraulics that delivers at least part of the energy for limb movement. The main function of a powered exoskeleton is to assist the wearer by boosting their strength and endurance. They are commonly designed for military use, to help soldiers carry heavy loads both in and out of combat. In civilian areas, similar exoskeletons could be used to help firefighters and other rescue workers survive dangerous environments. The medical field, including your workers’ comp claims is another prime area for exoskeleton technology, where exoskeletons can be used .
Working prototypes of powered exoskeletons by Lockheed Martin, both meant for military use, have been constructed but have not yet been deployed in the field or during combat. We are certain intensive research and development will continue and can only help non-combat implementation of this important tool for all of us.
Various exoskeleton problems remain to be solved, the most daunting being the creation of a compact and light power supply powerful enough to allow an exoskeleton to operate for extended periods without being plugged into external power.
In the rehabilitation world, robotic exoskeletons have moved from science fiction to reality over the last few years. There are several brands of devices on the market which allow individuals living with a spinal cord injury to stand up and walk. While research on clinical efficacy is still in the early stages, most rehabilitation experts expect the devices will become increasingly beneficial in the coming years as both a rehabilitation tool and as a device to improve or maintain overall heath and quality of life for chronically inured patients (improving cardiovascular health; reducing pain, contractures and spasticity; improving lower extremity bone density; etc.). Brands of functional exoskeletons on the market include Ekso™, ReWalk™, REX™ and others. At this point, these powered bionic suits are not yet available for personal use, and are only being used in rehabilitation facilities.
QLI (www.QLIomaha.com), a specialized center for brain and spinal cord injury rehabilitation in Omaha, NE is the first non-hospital-based rehabilitation facility in the country to obtain an EKSO™, and have been utilizing the device with their patients for several months. Their team indicates appropriate patients are having positive results using these devices and their hard work continues in implementing this new space-age restoration instrument.
The devices are currently being used primarily as a rehabilitation tool, but as this technology evolves, it may become more widely used as a personal use prosthesis some may think of this invention as the wheelchair of the future. This exciting new product may basically rewrite the book on what “paralysis” might mean in the world of workers’ compensation and rehabilitation because some workers with such exoskeletons may return to full or greatly increased functionality. To see a news story about this emerging technology in use right now at QLI, click here: http://www.youtube.com/watch?v=bY105ZbHjic.
QLI or Quality Living, Inc. is a private, nonprofit corporation that was founded in Omaha, NE in 1987. They accept patients from across the globe and are a solid choice for your most serious WC claims from anywhere in the U.S. or Canada. Since their earliest days, QLI’s mission has been to promote purpose, privacy, dignity, and independence for individuals with brain injury, spinal cord injury or other severe physical disability. With this mission clearly in mind, QLI has grown to become the largest and most comprehensive center for post-hospital brain injury and spinal cord injury rehabilitation and care services in the entire United States.
For information about QLI, please contact Don Terry at (402) 573-2175 or email DTerry@QLIOmaha.com.
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Synopsis: "Just the facts, ma'am!" Res judicata and collateral estoppel is NOT an applicable defense to an alleged aggravation eleven years after "line of duty" disability benefits were denied.
Editor’s comment: Plaintiff Lori Lelis was hired as a Cicero police office October 16, 1986. On March 10, 1999, Lelis filed an application for "line of duty" pension benefits with the Pension Board alleging injury March 28, 1998, while lifting a dead body onto a stretcher. The Board denied the "line of duty" pension benefits on March 30, 2000, finding her not disabled at that time. The circuit court sustained the Board's decision March 30, 2000 and Plaintiff did not appeal.
The Cicero Police Pension Fund considered the matter resolved. But watch out!
Eleven years later on January 11, 2011, Lelis again requested "line of duty" disability benefits after a diagnosis in January 2010 of lupus, an internal chronic autoimmune disease affecting the joints and muscles. Lelis alleged lupus increasingly worsened the degenerative back injury from 1998 restricting her ability to perform duties as a police officer.
The Board characterized the application as a request to reconsider a previously adjudicated application for benefits involving the same operative facts denied in 2000. The Board held regardless of an alleged aggravation of a back injury due to lupus the doctrines of res judicata and collateral estoppel barred consideration of the 2011 request.
Res judicata is a final judgment on the merits rendered by a court of competent jurisdiction acting as an absolute bar to any subsequent actions between the same parties and involving the same cause of action. Collateral estoppel bars a subsequent action involving the same parties with a prior final judgment already entered on the identical issue raised in the subsequent action.
On June 5, 2012, the circuit court agreed res judicata and collateral estoppel barred the claim and dismissed the complaint.
In Lelis v. Cicero Police et al., the First District Appellate Court disagreed and remanded the case for a hearing to determine whether the aggravation of a prior injury was a disability, a non-duty disability, or not a disability. The diagnosis of lupus and alleged aggravation of a prior injury was not a request for reconsideration or rehearing of a prior denial but rather, the inclusion of additional and independent basis and a fact sufficient to allege a new claim.
In the instant case, neither party disputed the 2000 denial and subsequent ruling by the circuit court constituted a "final judgment" on the merits for the purposes of both res judicata and collateral estoppel. In addition, neither party disputed the same parties were involved in both proceedings. The contention was whether the same claim or transaction was involved in both the 2000 decision and new application eleven years later.
The Illinois Supreme Court adopted the "transactional" test as the exclusive test for determining whether identity of a cause of action existed for purposes of res judicata. Under the transactional test a claim is viewed in 'factual terms' and considered coterminous with the transaction, regardless of the number of substantive theories, or variant forms of relief flowing from those theories, available to the plaintiff; and regardless of the variations in the evidence needed to support the theories or rights.
It is all about the facts. Here, new material facts occurred after the prior judgment which may be taken alone or in conjunction with the prior facts, to form the basis of a subsequent action, not precluded by the prior adjudication on the merits.
Basically, the aggravation due to lupus was a fact not in the original claim and thus a different claim. The Board could not summarily deprive Lelis of a full hearing and an opportunity to make an aggravation claim.
Nota bene! Understand, the finality of a decision may not be as conclusive as our readers may think. Just because an injury was not found a disability at the time of a hearing does not mean facts cannot change and the condition cannot become a disability at a later date.
To all our readers, you need expert counsel like attorneys at Keefe, Campbell, Biery and Associates to argue whether, when and to what extent aggravations contribute to previous injuries. Full hearing is necessary. It is not possible to summarily dismiss the matter on res judicata and collateral estoppel grounds – attempting to do so increases the time and cost of litigation.
This article was researched and written by Nathan S. Bernard, J.D. Please feel free to contact him at nbernard@keefe-law.com.
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Coming events from KCB&A
Our Illinois State Chamber of Commerce combines with KCB&A to provide workshops and webinars on IL WC for the beginner, intermediate and advanced risk manager/claims handler.
· June 20, 2013 Springfield’s Workers’ Comp Workshop—save the date; details http://ilchamber.org/event/seminar-workers-compensation-workshop/
· July 10, 2013 Holiday Inn Bolingbrook—save the date; details http://ilchamber.org/event/seminar-workers-compensation-workshop-2/
Email Laurie Silvey at lsilvey@ilchamber.org for details or to register.