8-15-2017; IL WC Arbitrator Shuffle Begins--Am I the Only Republican in the IL WC Industry?; 3 Rule 23 Decisions for the Defense Industry to Note; Kevin Boyle with New IN WC Rule and more

Synopsis: IL WC Arbitrator Shuffle Begins!—Is Gene Keefe the Only Republican in the WC Industry in Illinois?

Editor’s comment: The IL WC Commission abounds with gossip and silliness that we can’t confirm. My Secret Squirrels are telling me, again I can’t confirm, there are about six, count ‘em, six different Arbitrators being shown the door. I was hoping against hope the Governor and IWCC managers were cutting staff and trying to save IL business money.

Not so fast, not so fast!!!

As rapidly as we learn the termination of six sitting IL WC Arbitrators might save your company and mine about $700K in fees/taxes or whatever you call the IWCC Operations Fund, we then learned they are replacing some or all of the departing Arbitrators so the savings may be illusory. I salute the soon-to-be-departing Arbitrators and confirm they are all extremely solid, professional and well-versed in our IL WC Act.

The IL WC Operations Fund can be viewed online at Illinois Compiled Statutes, Ch. 820, Para. 305, Sec. 4d; Ch. 215, Para. 5, Sec. 416. This IWCC Operations Fund was almost secretly created in 2003 by the Blago Administration to pay for the administrative costs of the agency and take the cost out of our State’s General Revenue Fund. As soon as that happened, administrative costs skyrocketed without any objection from the defense industry, other than me. I haven’t seen any movement by Governor Rauner, the Illinois State Chamber, the IL WC Self-Insurers’ Ass’n, the IL Manufacturer’s Ass’n or any other entity to attack and cut this levy that is now $30M a year or more.

How the IL WC Operations Fund Assessment Occurs

·         IL WC Insurance carriers:  Each year, the Illinois Department of Insurance (IDOI) collects a 1.01% surcharge on workers’ compensation insurance premiums from insurance carriers.  It sends out an assessment letter each July.  Payment is due 30 days after the assessment is sent.

·         Self-insured employers:  Each year, the IWCC collects an assessment of .0075% of total IL payroll from self-insured employers.

Duh, if you cut the administrative costs of the IWCC, you and I can cut this punitive assessment on our biggest and smallest employers.

Is Gene Keefe the Only Republican in the WC Industry in Illinois?

I am a strong opponent of too much government in this nutty State. Sometimes, that makes me feel like a loner. I think normal people are in denial and don’t believe the State of IL has at least a quarter of a trillion in debt.

I am happy to confirm our State used to have about 75,000 new IL WC claims being filed each year—that occurred about fifteen years ago. Today, there are something like 40,000 new claims being filed—an amazing improvement. These aren’t my numbers—take a look at the IWCC’s annual reports that remain online at http://www.iwcc.il.gov/annualreport.ht

If you do the math or review the IWCC annual reports from the last Republican administration prior to Governor Rauner, our State had about 15 Arbitrators and six Commissioners who were able to handle over 225,000 pending IL WC claims. The IWCC budget was around $9M. Under the Blago Administration, the cost of the IWCC tripled to over $30M and that amount has never been adjusted for the dramatic drop in new claims.

Now, there are less than 125,000 pending IL WC claims. IL WC claims still move as slow as snails on opioids. Our Governor is Republican and the IWCC Chairperson is Republican and the IWCC budget hasn’t been cut a dime. For reasons I don’t understand, we have around 30 Arbitrators and 9 Commissioners and our plucky Chairperson meaning we have 40 hearing officers. None of our sister states have anything like that number—as one example, cheap-o Indiana to our east has just five such hearing officers.

The annual cost to IL business of those combined hearing officer salaries are well over $4M. The cost of those same folks with their fake “defunded” government pensions and lifetime healthcare will be double or triple (or more of) that cost to you, your kids and grandkids.

I suggest if we are cutting six Arbitrators, let them go and don’t replace them. Please don’t stop with that concept at the IL WC Commission. I am asking Governor Rauner and all IL business groups to start to act conservatively and cut the size and cost of IL Gov’t. In a state awash in billions and billions of red ink, start to cut not just the IWCC but all 88 IL State agencies. The tax dollars we save may be our own.

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

Synopsis: Three Rule 23 IL WC Claims of Note.

Editor’s comment: These recent rulings were all filed under IL Supreme Court Rule 23, are oddly considered “non-published” and may not be cited as precedent except in limited circumstances allowed under Rule 23(e)(1). We consider every ruling to be solid and have no true idea why our IL Appellate Court, WC Division files so many “non-published” rulings that are actually “published” on their website.

1.    Mitchell v The Illinois Workers’ Compensation Commission

Claimant Mitchell worked as a laborer where she removed dust and debris, vacuuming carpets, washing windows and floors and preparing residential units for occupancy. Claimant also served as a union steward where she was responsible for verifying the laborers on the job were members of the local union.

The issue became whether Claimant was engaged in union activities or her normal employer’s business at the time of injury.

There is no dispute Claimant left her regular job site to go investigate whether other workers in an adjacent building were members of the union. On her way back to her regular job site, as she was walking up a pathway to the door and slipped on a patch of ice and struck her left knee against the pavement. Claimant claimed she informed and received permission from a supervisor she called “Trish” to leave the job site, but other evidence established there was an employee by that name who worked for Respondent.

The Arbitrator and the Commission both held Claimant was engaged in union business at the time of the accident and therefore, the injury did not occur in the course of her employment with her regular employer. The IL Appellate Court, WC Division agreed the record contained enough evidence to support the Commission’s decision and by embarking on a purely union related errand that was not incidental to her regular employment, Claimant engaged in a deviation removing her from the course of her employment. Because she had not yet entered her assigned building and resumed typical employment duties, Claimant had not returned to the course of employment when the injury occurred. Although Claimant may have been on her way back to the job site, she had not completed the deviation from employment duties to perform union business.

2.    Douglas Yager v The Illinois Workers’ Compensation Commission

Claimant worked as a “slitter operator” and was responsible for loading, unloading, and operating such machines. Claimant testified while performing his duties, he experienced a sharp pain in his lower back, which he attributed to “repetitive lifting, bending and twisting.” After his shift, Claimant went to the locker room to change. Upon sitting down, Claimant alleged he experienced another sharp pain in his lower back which traveled to his right leg and made it “almost impossible” for him to change his clothes.

Claimant visited three doctors and was ultimately diagnosed with a disk herniation and congenital lumbar stenosis. The doctors noted Claimant reported he experienced a sharp pain in his low back when changing his clothes in the locker room. Claimant completed an accident report, noting the same history.

The IL WC Arbitrator and Commission found Claimant was not in the course and scope of his employment when simple changing his clothes.

The IL Appellate Court, WC Division felt the question became whether Claimant proved a repetitive trauma injury or whether the incident fell within the purview of the “personal comfort” doctrine. The Commission and Appellate Court both held the evidence did not support a repetitive trauma claim, given Claimant reported he first experienced pain in the locker room, while changing out of his uniform at the end of his shift.

The Court held, even assuming the “personal comfort” doctrine applied in this case, the doctrine does not obviate the requirement an employee prove the injury in question arose out of a risk incidental to the employment. For an injury to be considered as arising out of the employment and be compensable under the Act, the employee must have been exposed to the risk greater than that of the general public.

Here, Claimant’s injury occurred while he changed his clothes with the act of merely sitting down. Neither the act of sitting down, nor the act of changing clothes was unique to Claimant’s work as a machine operator. The Court held Claimant was exposed to no greater risk than that to which the general public is exposed. The risk was neutral and therefore the injury did not occur in the course of the employment.

The defense team at KCB&A is the top firm on defending “repetitive working” claims such as this—if you are facing such a claim, give us a call!

3.    City of Springfield v Illinois Workers’ Compensation Commission

Claimant worked as a lineman for the city’s Water, Light, and Power Division. Claimant testified his duties included grasping meters, tools, lineman pliers, and cable when pulling and performing other job tasks. Claimant alleged he developed bilateral carpal tunnel syndrome and left ulnar neuropathy due to repetitive trauma.

The treating physician opined Claimant’s condition was causally related to his work duties, while Respondent’s IME physician opined there was no causal connection between the work duties and the claimant’s condition of ill-being, as the degree of force and repetition in the work activities did not meet the criteria of the American Medical Association Guide to Evaluation of Disease and Injury Causation.

While the Arbitrator found Claimant proved a causal connection between his condition of ill-being and the work activities, the Commission disagreed and reversed. The Commission found Claimant lacked candor when testifying to his job duties and his reliance on the job description of a lineman and description of the tools used was “disingenuous.” The Commission found neither were indicative of Claimant’s actual activities/duties at work. The Circuit Court then reversed the decision of the Commission, reinstating the Arbitrator’s decision.

The IL Appellate Court WC Division affirmed the Commission’s decision, noting once again it was the province of the Commission to resolve disputed questions of fact and resolve conflicting medical evidence. The Court held the Commission’s determination Respondent’s evaluating physician had a better understanding of the work duties than the treating physician was supported by the manifest weight of the evidence. The Court vacated the judgment of the Circuit Court and reinstated the Commission’s decision, finding it was not against the manifest weight of the evidence.

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

Synopsis: Indiana WC Update by Kevin Boyle, J.D.

Editor’s comment: In case you didn’t hear about it, there is some important news just in from the Indiana Worker’s Compensation Board (the “Board”).

The IN WC Board just put out a notice that the Board is set to formally begin its enforcement protocol concerning the untimely filing of statutorily required IN WC forms and payment of WC benefits. You may have heard in early 2016 that this was eventually going to happen, and now it finally is here.

Please check your procedures for timely filing some of the basic Indiana WC forms like the First Reports of Injury, 1043s and others. A late filing may suddenly become a more real problem than it has in the past, as a result of the new plans for stronger statewide enforcement. But, there is a grace period on penalties through September 30, 2017 so you still have time to work on it. 

Their notice provides that “during this period, you may receive letters and notice of actions found to be in violation of IC 22-3-3-7, 22-3-7-16, 22-3-4-13(a) and 22-3-7-37 so that appropriate remedies can be put in place.”

After the grace period ends at the end of September, i.e. for all injury dates on or after October 1, 2017, penalties will be assessed. Pursuant to IC 22-3-4-15, escalation of penalties will apply where more than one violation occurs in a single cause concerning the same injured worker and the same injury date. The Indiana WC Board also noted that “in the future, violations of 631 IAC 1-1-26 shall also become the subject of notice by the Board” if the 15 day time frame is violated.

The IN WC Board also encourages your comments and concerns with this process so they may be addressed by the Board prior to October 1st, 2017. Their contact information is online at http://www.in.gov/wcb/2340.htm

You can also reach out to Kevin Boyle, J.D. at kboyle@keefe-law.com. Kevin has extensive experience and understanding of the internal workings of the IWCB. He can help with whatever an employer or insurance carrier might need in dealing with these intricate issues.

If you have any questions, or could use help with your forms, filings, these new rules, and/or violations, please contact Kevin to discuss.