4-23-2019; TTE May Become IL WC Law or Practice; News And Gossip from the IL State Bar Ass’n WC Section on IL WC Appointments; KCB&A at RIMS Boston and more

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Synopsis: TTE or Temporary Transitional Employment May Be Coming to an IL WC Claim Near You!

 

Editor’s comment: A wonderful reader sent me a recent IL WC Commission decision regarding TTE or Temporary Transitional Employment for injured IL workers. This is a concept used and actually required in many State’s WC systems.

 

The issue concerns Temporary Transitional Employment (TTE) where the employer doesn’t have focused light duty work but sends Petitioner to a non-profit, charity or other similar facility that can accommodate restrictions.

 

I am sure getting injured employees back to work can make a huge difference in lowering the cost of workplace injuries. Return-to-work programs can help ensure employees’ success in recovering and getting back to the job. But, what if a given employer can’t support temporary light duty for an injured worker? Temporary Transitional Employment programs, also known as “modified duty off-site” or simply “off-site return to work programs,” can be a solution.

 

In my humble view, anything that gets a worker off the couch and dressed and off to some sort of “work-like” activity is better than having them sit home and watch talk/game shows. Lots of statistics indicate the longer you leave an injured worker off all work, the more likely it is they will never return to work.

 

Workers’ compensation claimants placed at TTE by a major national insurer returned a given claimant to work on average 67 days sooner than those who were not placed in such positions. Some programs place injured workers at local nonprofit organizations, which can provide an additional morale boost and sometimes, even a charitable deduction for the employer.

 

One question I get all the time—what if the worker claims injury or aggravation at the charity? The answer is you almost certainly owe for the injury but the risk/reward is so high, you still need to consider TTE. One way to try to stem such claims is to see if the charity can have the worker perform their job in an area that has security cameras in it.

 

Here are tips for better understanding TTE programs, and for implementing a program your workers will want to participate in:

 

  1. By setting up a network of nonprofit partners and having a plan to manage hours worked and any performance issues, claims handlers/risk managers can provide an administrative framework to implement the concept.

  2. TTE should be mentioned in employers’ handbooks and all communications with workers.

  3. The TPA or self-insurer will continue to manage the workers’ compensation claim and will communicate with the worker’s doctor about TTE programs and transitioning the worker back to regular work.

  4. Workers should be placed within 50 miles of their homes—the farther the drive, the more push-back you may get.

  5. These programs are best for injured workers who are released for transitional restricted duty and whose restrictions are expected to last at least four weeks.

 

Will TTE “Work” in Illinois WC?

 

Please note my opinion this concept works best if everyone gets along. Try to nicely convince your worker this is in their best interests and isn’t something to fight about. Please advise the charity work isn’t forever—it is just until they have fully recovered, as you expect them to do.

 

If you can’t gain cooperation from your work, this question brings up the idea of whether the IWCC will “mandate” such transitional/charity work. In this recent ruling, the IWCC terminated/denied TTD when the worker refused to participate in TTE.

 

We do note former Commissioner, now Chairperson Mike Brennan joined in this new decision and should be encouraging TTE for all hearing officers to consider. We consider TTE a win-win to get folks off their duffs and back into non-profit/charity jobs that help the charities they work at.

 

There are prior IL WC cases which found that such an arrangement was not allowed under the Act. I consider that short-sighted and counterproductive.

 

However, as I indicate above, this new ruling I was sent comes to a different conclusion and confirmed the suspension of TTD or temporary total disability for refusal to attend TTE.  

 

It is important to note exactly how this employer offered the TTE because they

 

  • Sent a letter advising that Petitioner was still an employee of the Respondent; 

  • The worker would get the same pay from the Respondent during participation;

  • Petitioner was subject to all of Respondent’s human resources and attendance policies; and

  • Any issue that arose during the TTE would be handled through Respondent, documenting ongoing Respondent’s control over or direction of Petitioner.

 

If TTE is something you can utilize, this case provides an excellent roadmap on how it should be offered. If you want a copy, send a reply. If you want to discuss how TTE can further help your WC claims program, I am happy to conference.

 

I again thank my knowledgeable reader for the decision—if you want a solid voc rehab expert, send a reply and I will send his contact info.

 

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

 

 

Synopsis: Updated News And Gossip from the IL State Bar Ass’n WC Section on IL WC Commission Appointments/Staffers.

 

Editor’s comment: The hard work and expertise of the ISBA WC Section volunteers provides additional guidance and gossip for my readers on what is happening at the IWCC.

 

As we know, we have a new chairperson in Michael Brennan. I join with my law partners in saluting this great choice to keep at bay the “eye-of-the-hurricane” that are the competing political/legal and insurance forces in IL Work Comp.

 

Governor Pritzker also elevated Arbitrator Barbara Flores to commissioner. She will sit as a Public member taking Chairman Brennan’s slot. Former Arb. Flores was an appointment of then-Governor Pat Quinn. I learned she had more than five years of law experience as corporate counsel of Alden Management Services. Commissioner Flores previously worked in the Labor and Employment Law Department at the U.S. Postal Service, and as an assistant attorney general in the Labor and Employment Unit at the Office of the Attorney General. Ms. Flores also previously worked at the AIDS Legal Council of Chicago. I agree new Commissioner Flores has a sound reputation for being fair and efficient. She brings welcomed diversity to the IWCC first serving as an arbitrator in Chicago and then downstate and now as a commissioner. I consider her very professional, fair and reasonable.

 

Governor Pritzker also appointed Arbitrator D. Douglas McCarthy as commissioner of the IWCC representing the labor member and replacing Commissioner David Gore. Commissioner Douglas McCarthy was also first appointed by Governor Quinn as an arbitrator. He brought more than 30 years of legal experience to the Commission. We agree with the ISBA, there are petitioner and respondent attorneys alike who practiced before Arbitrator McCarthy and will feel he will be missed as an arbitrator.

 

Governor Pritzker appointed Marc Parker as commissioner as a labor member. Mr. Parker is a 54-year-old Collinsville attorney whose experience includes serving as a law clerk for both the Illinois Appellate Court and the Illinois Supreme Court, working as a full-time prosecutor in St. Clair County and as a part-time prosecutor in Madison County. He appeared before the IWCC for more than 26 years and was the Collinsville Township attorney.

Governor Pritzker appointed Maria E. Portela as a public member of the IWCC. Commissioner Portela has devoted her legal career to handling workers’ compensation claims since 1984 in part as corporate counsel for the City of Chicago. She handled defense claims for The Hartford and AIG. Ms. Portela also brings additional diversity to the IWCC.

 

In August 2019, then-Governor Rauner re-appointed Arbitrator Maria Bocanegra, Paul Cellini, Stephen Friedman, Gerald Granada, Jessica Hegarty, Jeffrey Huebsch, Nancy Lindsay, Christine Ory, Maureen Pulia, Melinda Rowe–Sullivan and Douglas Steffenson. Arbitrator Lindsay retired from the practice and Arbitrator Bocanegra has moved on to a different department within State government.

 

As of April 1, 2019, none of these arbitrator reappointments have been confirmed by the IL Senate. The ISBA reports there are five vacancies for IL WC arbitrator not considering the arbitrators mentioned above. I vote we have plenty of hard-working arbitrators and leave the positions open. Applications for the arbitration position can be found on the state of Illinois website: https://www2.illinois.gov/sites/bac/Pages/NominateForm.aspx

 

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

 

 

Synopsis: KCB&A will be going to RIMS Boston this coming weekend!

 

Editor’s comment: If you are going to RIMS and want to meet up with your favorite Midwest GL/WC and EPLI defense lawyers, we are hosting or co-hosting a golf outing and a reception dinner this coming weekend. Send a reply if you have interest.