4-9-2019; KCB&A Closes Your Toughest WC Claims Faster!!; Is a Workers’ Comp Claim Exempt from a Bankruptcy Claim by Lilia Picazo; How Hyatt Hotels Would Go Broke and more

Synopsis: Keefe, Campbell, Biery & Associates Closes WC Claims Faster Than Our Competition. Try Us and See!!!

Editor’s comment: I/we continue to tell clients and potential clients, KCB&A closes our WC files faster than our competition. We have a number of great approaches to doing so.

First and foremost, we are the only Midwest Defense Firm whose motto is “The Only Good File Is A Closed One!” We are committed to closure of your toughest WC claims in the five States we practice in. We assume you have set aside reserves for each claim and there is a cost involved in looking at money you have sitting there but can’t use. Getting a defense attorney who understands that simple math is hard to understand—we understand it at KCB&A.

Some/many workers compensation claims can be closed rapidly, if a few parameters are satisfied. It is hard to predict what may turn a routine WC claim into a sticky mess that just won't close. That is always the challenge for risk managers, claims handlers and defense attorneys. There probably are as many answers as cases, but the answers likely can be drilled down into a few common themes, some of which apply to your claims action plans.

The course of a claim may be influenced by the accident report, initial care, the claims evaluation and course of treatment. Frequently the employer controls treatment for some period of time post-injury. OccHealth and ER treatment should be provided by a health care provider appropriately qualified to treat the injury. It is also important to have an OccHealth provider that knows your business and the availability of light work. Long prior to an accident in the workplace, we suggest all clients have a designated OccHealth or Emergency provider for all workers—we further recommend you post such information in the workplace and/or your website.

If you have a WC PPP or designated health plan for all workers, push hard to have them get into it and stay in it. I have a presentation that includes the concept of an IL WC PPP—if you want to review it, simply send a reply. We consider an IL  

Claims closure stops if you have a physician chosen by Claimant who is a “disability enabler” who predictably writes off-work slips regardless of objective findings and sometimes without any medical basis. It's important to focus on what the injured worker can do, not what he/she can't do. Also note a physician or other caregiver who does not identify, diagnose and appropriately treat a legitimate injury, and who might return the patient to full duty despite the existence of objective clinical findings, may turn short-term impairment into a long-term problem.

When there is a dispute between claimant and employer or insurer, operate by the rule of reason. Our claims history suggests claims become protracted when any party to the claim takes an unreasonable position about a key issue or issues, whether it is medical treatment, return to work, continuing disability or settlement value. Positioning a case for the best possible outcome is the goal of the risk manager and claims handler along with your defense attorney. If either side digs in with unrealistic goals, lengthy and expensive litigation may ensue. Stay objective, avoid hardened positions, and keep personal competitiveness on the sidelines.

No One May Be Able to Move a WC Claim Until MMI.

Drive your claims to maximum medical improvement or MMI. It is possible but much more challenging to get a claim closed while treatment or surgery is ongoing. There are lots of paths to MMI—press the button on great experts for IME’s, nurse case managers and return to work coaching/meetings. It is possible to get a claim settled before care is completed, send a reply if you have such a claim and need my insight.

Once at MMI and Back to Work—Make the First Offer of Permanency/Impairment!

As a veteran defense lawyer, I smile when asked to request a demand from opposing counsel. To me, that can be a sign of lazy negotiating. Two things can happen when I am told to “ask for a demand.” One is the other side rapidly looks at their best case and asks for “way too much money.” I then have to fight and kick to bring them back down to a reasonable middle ground. The time it takes to get them to the land of reasonableness can then be characterized as being my fault when the problem is the approach.

The other bad thing that happens with “asking for a demand” can be even worse—now I have given control of the claim to my opponent! If they ignore the request, the adjuster is certain to email or call and ask what the heck I have been doing. All I can say in response is—I made the request for a demand and the other side is ignoring me.

The answer to all of it is to carefully look at your file and figure out what you feel is best to settle and make the first offer. Then I have the ability to tell the hearing officer I am being reasonable, my client is okay with this and let’s get ‘er done and closed!

To sum up, have a plan in place for OccHealth; identify necessary accident information and obtain medical records and bills in the claim; rely upon the knowledge, expertise and contacts of defense counsel; keep the case moving by cajoling whomever is dragging their feet; seek out appropriate experts (I can help if you want recommendations); and consider using KCB&A’s Medicare/CMS experts.

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

Synopsis: Is a Workers’ Compensation Claim Exempt from a Bankruptcy Claim? – Seventh Circuit Certifies the Question to the Illinois Supreme Court. Analysis by Lilia. Y. Picazo, J.D.

Editor’s Comment: On December 1, 2016, Ms. Hernandez filed for Chapter 7 bankruptcy in the Northern District of Illinois. She reported as exempt a pending workers' compensation claim she valued at $31,000.00. Ms. Hernandez owed large sums of money to three medical providers who provided treatment for her work-related injuries. Ms. Hernandez settled her claim shortly after without knowledge of the trustee or approval by the bankruptcy court. 

In February 2017, the medical providers filed an objection to Ms. Hernandez's claimed exemption, arguing a failure to notify the bankruptcy court of the settled claim was a product of fraud, and that a 2005 amendment to the IWCA permitted the unpaid providers to reach the workers' compensation settlement. In April 2017, a hearing was held on the claimed exemption in bankruptcy court. The bankruptcy court denied the exemption. Ms. Hernandez appealed. 

The U.S. District Court for the Northern District of Illinois in Chicago affirmed the ruling and held "using the workers' compensation exemption to thwart this specific class of creditors would frustrate the Act's purpose." Ms. Hernandez appealed to the Seventh U.S. Circuit Court of Appeals on the following issues:

Whether the Illinois Workers’ Compensation Act, as amended, allows care-provider creditors to reach the proceeds of workers’ compensation claims. Section 21 of the Act has been interpreted by bankruptcy courts to create an ex-emption for these assets. The 2005 amendments made several changes to the Illinois workers’ compensation regime, imposing a new fee schedule and billing procedure for care providers seeking remuneration. Did those changes alter the scope of section 21?

Section 21 of the Illinois Workers' Compensation Act provides:" No payment, claim, award or decision under this Act shall be assignable or subject to any lien, attachment or garnishment or be held liable in any way for any lien, debt or damages." In 2005, several amendments were made to the IWCA, including permitting a medical provider to seek payment from the employee where a disputed claim settled. Section 8.2(e-20). 

Ms. Hernandez argued the 2005 amendments to the IWCA did not contain specific language or exemptions permitting medical creditors to reach workers' compensation settlements. 

The medical providers argued allowing the exemption would go against the purpose of Section 8.2(e-20) of allowing medical providers to seek payment directly from an employee after a claim has settled. 

The Seventh Circuit agreed with both arguments. However, the court stated the Illinois Supreme Court had not yet "addressed the interplay between these competing components of state workers' compensation law." The court found itself "genuinely uncertain about the correct interpretation," and certified the question to the Illinois Supreme Court. We’ll continue to apprise you of any developments in this case.

The research and writing of this article was performed by Lilia Y. Picazo, J.D. Lilia can be reached with any questions regarding workers’ compensation law at lpicazo@keefe-law.com.

Synopsis: How Hyatt Hotels Would Surely Go Broke—Follow the Insane State of IL Government Business Model.

Editor’s comment: Try to imagine Hyatt Hotels BROKE and in bankruptcy… Try to imagine if new IL Gov. J.B. Pritzker adopted the State of Illinois’ insane business model for his family business, Hyatt Hotels.

Try to imagine if Hyatt Hotels provided non-competitive salaries for their workers that were much higher than its competition. Trust me, the State of Illinois overpays most of their workers, compared to the same jobs in the private sector.

Try to imagine if Hyatt Hotels allowed workers who became vested in unfundable fake gov’t pensions to be paid the same money as their highest salaries they made at their gov’t jobs within five years of retiring.

Try to imagine if Hyatt Hotels funded unfundable fake gov’t pensions for workers who didn’t work for Hyatt!!—The State of IL funds fake pensions for Circuit Court judges who are county employees and your local school teachers who don’t work for the State.

Try to imagine if Hyatt Hotels retirees were then given lifetime 3% compounded annual increases in retirement and were then were paid double, triple or quadruple their highest salaries at leisure in retirement literally until the day they died.

Try to imagine if Hyatt Hotels retirees were provided virtually free group medical coverage from the day they are hired until the day they died.

Try to imagine if Hyatt Hotels had 88 different departments to handle their affairs with each department having its own director, assistant to the director, HR manager, accounting manager, etc.—the State of IL has 88 departments set up in this flawed and awful business model with lots of redundancy.

Try to imagine if Hyatt Hotels had seven different security departments, like the State of Illinois that has seven different police departments. Let me say that again—seven different and independent State police departments???

Try to imagine if Hyatt Hotels had two entirely different accounting departments, like the State of Illinois that has both a Treasurer’s Office and a Comptroller’s Office that do almost exactly the same job.

Try to imagine if Hyatt Hotels had two different transportation departments, like the State of Illinois that has both the IL Toll Authority and the IL Department of Transportation that both do the same job.

This insane business model is why the State of Illinois has created the highest combined tax load for its citizens of all the United States and is working right now to possibly change the IL Constitution to add a crushing graduated income tax and planning to double (or higher) the Motor Fuel tax…

You don’t have to imagine--this is why thousands of Illinois citizens and businesses are departing our State for other places that aren’t insane.

If Gov. Pritzker can change the IL Constitution to raise taxes, why can’t he change the IL Constitution to change this insane gov’t business model and eliminate the redundancy and waste? Is there a Sanity Clause?

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

Synopsis: Update on IL SB 1596.

Editor’s comment: I received an excellent article indicating the changes proposed in IL SB 1596 may not be effective until year 2044 due to a constitutional issue of longstanding nature.

If you are concerned about the business-busting aspects of this new proposed but misguided legislation and want to review that article, I am happy to send it. Please simply send a reply.