8-31-15; IL WC Arbitrators are Getting More Business-Oriented--Can We End Phony Job Searches?; New Law Requires Collateral for High Deductible WC Insurance ; How to Stupid-Proof IME Letters and more

Synopsis: IL WC Arbitrators Get More Business-Oriented--Can We Please, Please Get Rid of Phony Job Searches?

Editor’s comment: We have a reader call last week to confirm she was a CEO in the construction industry and completely fed up with IL WC wage loss differential claims. Her point was simple and crystal-clear—she either had to bring back any injured worker and keep them employed for life or the worker would be coached by a claimant lawyer to start a “never-ending-non-job-search.” In her view, not actually finding a job while appearing to look for them is fairly simple to do. Here are more thoughts for our readers on this issue.

Lots of New Arbitrators in IL WC—They are a Solid and Well-Educated Bunch!

We note the following Arbitrators were reappointed by Governor Rauner with the announcement hitting the web last week: Molly Dearing, Maria Bocanegra, Ketki Steffen, George Andros, Maureen Pulia, Gerald Granada, Nancy Lindsay, Jeffrey Huebsch, Stephen Friedman and Jessica Hegarty.

As we reported last week, Governor Rauner has appointed Douglas Steffenson as a new member of IL WC’s arbitration staff. Our sources tell us a final newbie Arbitrator has been selected and she is a central Illinois defense attorney with some background in a Petitioner firm earlier in her career—we expect her to be announced shortly.

You will note all the new IL WC Arbitrators are veteran litigators and educated attorneys. Many of them but not all come from defense litigation backgrounds representing Illinois businesses and government bodies. On a related note, while it hasn’t been formally announced, it has been informally noted former Arbitrator Peter O’Malley isn’t handling any further IL WC claims. We wish him the best in his new ventures.

So What is The Top of Our Wish List for These Newly Appointed or Reappointed Arbitrators?

As we outline above, one thing driving the IL business community nuts and driving high WC costs in this state are “never-ending-non-job-search” claims! We agree employers should first try to return an injured worker to work with accommodations within their company whenever possible. We also agree that comes with its own challenges as some injured workers blame their injuries or disabilities on their employer and then actively or passively want special treatment or accommodation. When/if the employer gets sick of a whining worker and lets them go, gigantic WC exposure kicks in.

Assuming an injured worker with restrictions can’t return to work at the same company for whatever reason, what we are seeing is lots of Petitioners firms that readily put any claimant with any kind of work restriction into a weekly and never-ending-non-job-search. The systems for that concept appear to be duplicated in too many pending claims to be a coincidence. The overall goal is to allow the Petitioner/Plaintiff attorney prove the worker has applied and applied and applied some more but mystically can’t find work within restrictions.

We consider IL WC rulings like these to be hotly controversial:

·         We saw an IL WC Appellate Court ruling where a worker supposedly looked for work with the continuing assistance of two different professional vocational counselors for four years without finding a job—please note the workers’ restrictions were medium-duty.

·         Last week, we reported a claim where a worker who also had medium-duty restrictions supposedly applied for a new job with over 1,000 employers without finding work. The Arbitrator and Commission awarded lifetime permanent and total disability benefits and the worker will get as much as $74,759.73 annually on a tax-free basis plus lifetime COLA increases paid by the IL WC Rate Adjustment Fund.

In other states outside Illinois, the word for such behavior is “malingering.”

Please note all workers who are participating in post-injury vocational counseling are also receiving what is called “maintenance” and is the equivalent of temporary total disability. In our view when a worker is participating in a never-ending-non-job-search, they may be accused of stealing that money from their employer or the insurance carrier/TPA.

Why Do We Feel IL WC Arbitrators Have to Pull The Plug on Such Controversial Claims?

Well, they are the first level in managing WC status calls and hearings and thereby uniquely positioned. To some extent, they can easily control how the whole litigated claim will develop. If they allow a claimant to fiddle-fool around in not-actually-voc-rehab for months and years, claimants are certain to do so. If the Arbitrators tell claimants and their lawyers to stop the shenanigans and actually find jobs or their maintenance benefits are going to be cut after a full hearing, benefits may be stopped. Petitioner attorneys are going to tell their clients to actually find jobs or file appeals of the Arbitrator’s ruling and wait for the administrative review process at the IWCC to run its course. Or the claims will settle somewhere in the middle.

What we feel happens when Arbitrators don’t take strong action to stop months and years of malingering and phony job searches is they become part and parcel of the fake process. It is our hope the Arbitrators can set pre-trials and talk to all parties—the attorneys on both sides along with Claimant and representatives of the employer or insurance carrier/TPA. We want our newly reappointed and just-appointed Arbitrators to push hard for folks to actually locate work and get off the dole.

By doing so, the Illinois workers’ comp system can get rid of fake “odd-lot” total and permanent claims that our legislature never created, as the words “odd-lot” aren’t in the IL WC Act. We also hate to see sky-high wage loss differential claims and settlements. We assure our readers these sorts of claims are making the cost of constructing any road, building, bridge or other structure very expensive in our state. Rather than get TPD or high wage loss differential awards and settlements, workers with any modicum of intelligence, motivation and a medium or even light duty capabilities can and should be working in decent jobs. Most logistics jobs are seated work but the employers have headsets and other devices to allow workers to stand up and sit down during the course of the work shift.

Illinois and Chicago is a National Logistics Hub and Logistics is Where There are Lots of Light and Medium Duty Jobs

Chicago is a leader in logistics and is an excellent base from which businesses can ship their goods. We are also well-placed for businesses dependent on getting products delivered to them on a timely basis. Chicago first established itself as a major transportation hub in the first half of the 20th century when it was the undisputed railroad center of the United States. Although railroads have lost ground to other forms of transportation in the intervening years, they remain an important component of the overall intermodal equation. Chicago’s transportation assets also go far beyond the railroads. Our biggest city’s location on the shores of Lake Michigan and along the banks of the Chicago and Calumet rivers give Chicago easy access to a network of inland waterways, as well as access to world markets via the Great Lakes and St. Lawrence Seaway. Chicago’s O’Hare Airport ranks among the top US airports in terms of cargo throughput, and the metro area’s extensive highway structure makes it a major center for over-the-road trucks and other transportation. An additional factor in Chicago’s logistics primacy is a solid intermodal network that makes it easy to move goods seamlessly from one mode of transportation to another.

We point out trucking logistics jobs are open right now all across our region and pay very well. Ambulance logistics jobs are a step up from trucking logistics in terms of pay and continually open The highest paid logistics jobs for seated work with about four months of training are 911 call-in desks. Logistics jobs are constantly opening all the time, as they are 24/7/365 occupations and have regular turnover. After a short period of training, an injured worker can start part-time and build up to full time.

Summary—Where We Are Going From Here?

The defense team at KC&BA is going to start watching and we hope our readers will join with us in stopping never-ending-job-search claims. What we are looking for are claims where an IL worker has medium or light restrictions and is searching for and not finding work for over six months.  If you see such a claim, please send it along and we will let our other readers know about it. While we don’t know if they actually read it, please note Governor Rauner and his staff are among our readership.

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

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Synopsis: New IL Law Now Requires Collateral To “Insure” Large-Deductible WC Insurance Policies

Editor’s comment: IL Senate Bill 1805 is the country’s first law requiring collateral for large or high-deductible WC insurance policies. The law may be the first in the nation of any type to rein in the risks of policies with deductibles as high as $2 billion. The main concern is staffing or PEO companies who handle functions like

·         Human resources for other businesses

·         Do the hiring/firing of workers and

·         Obtain and manage workers’ compensation insurance and claims coverage.

If such companies become insolvent, they leave the state’s guaranty fund to pay and then assess insurance companies for the losses. It is also possible companies with a net worth over $25M could get stuck with such uninsured costs.

This new legislation requires insurance companies that are rated below A- and do not have at least $200 million in surplus to require the policyholder to post collateral to cover the deductible should it become insolventThe insurer must either post a surety bond with sufficient financial strength, an irrevocable letter of credit from a financial institution with an office physically in Illinois or a combination of cash and securities held in trust for the express purpose of securing the policyholders under a large-deductible agreement. The assets of the trust cannot be comingled.

In Illinois, the collateral requirements will kick in for deductibles far less than seven digits—they may apply to deductibles as low as $100K. A spokesman for the Illinois Department of Insurance indicated they will publish a bulletin shortly setting out their new policies under the law. The spokesman said the new Illinois law leaves those specifics to the state Department of Insurance. The spokesman indicated the need for tighter regulations is particularly acute for the workers’ compensation industry where claims are sometimes paid out over decades. The protection must remain in place even if the employer goes out of business.

Governor Rauner liked and supported Senate Bill 1805 according to his staff. Their official statement is SB 1805 protects consumers and insurance companies from the actions of insurance companies who write policies without sufficient collateral for the full exposure of those claims.

We appreciate comments. Please post them on our award-winning blog.

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Synopsis: How to Stupid-Proof IMEs in Illinois and Everywhere Else in the U.S.

Editor’s comment: When we have authority, we set lots of independent medical exams or what are also called in IL WC “Section 12 exams”, as do our clients/adjusters and others. In litigated claims, as attorneys with ethical restrictions, we can’t reach out directly to Claimants/Petitioners so the IME scheduling letters are sent to opposing counsels with appropriate mileage expense and confirmation of the date/time of the exam.

When a Claimant fails to show for the IME, the standard form response from all Petitioner/Plaintiff lawyers is “we-didn’t-know-about-that-exam-you-never-told-us.” When you then send your fax or email confirmation documenting the correspondence was transmitted via snail mail and electronically, some lawyers will still maintain they didn’t get it. Either way, you are then faced with a whopping no-show fee to battle over and an expert physician who may be wondering why they have to put up with all the tomfoolery of handling IMEs.

Our suggestion is to add a sentence to your IME confirmation letters when sent to opposing counsel:

Please confirm receipt of this correspondence and your contact with your client to confirm they are aware of the IME setting and will attend. We need this confirmation on [insert date] or we will cancel the exam and treat this as a failed appointment and potentially terminate benefits.

We appreciate your thoughts and comments. Please post them on our award-winning frog.