7-11-2016; IL Appellate Court Shocks the WC Industry with "Benefit Stacking"; Central IL WC Doc Hit With Contempt Order in Federal Court; OSHA Max Penalties to Skyrocket and more

Synopsis: Hard For the IL WC Defense Industry to Disagree More—IL Appellate Court, WC Division “Stacks” Wage Loss Differential and T&P Benefits.

Editor’s comment: As we advised our readers in this past year or so, the IL WC system is fighting to bring our benefits to the middle of U.S. systems. We expect the results of the State of Oregon every-other-year analysis of workers’ comp premiums to come this November or in four short months. We are certain the folks at the IL WC Commission are doing their level best to make WC decisions/awards and settlements reasonable and fair for all sides. We are also certain our reviewing courts might seem to have missed this message.

We just read what we feel is a somewhat shocking and unprecedented ruling. In Chlada v. Illinois Workers' Compensation Comm'n, decided July 8, 2016, Claimant filed for workers compensation benefits for injuries to his low back sustained in a 1999 work accident. The Arbitrator ordered the employer to pay temporary total disability, temporary partial disability or “maintenance” benefits during rehab. Claimant was working as a beer truck driver when injured and then took a lower-paid job as a warehouseman.

The IL WC Commission affirmed the Arbitrator's decision, but vacated temporary partial or maintenance benefits and awarded wage differential benefits. Claimant sought judicial review of Commission's decision. The Circuit Court affirmed the award but made a mistake in setting the wage differential rate by about $30 a week. The mistake was later corrected.

By 2002, Petitioner suffered another injury to his spine and later became an “odd-lot” total and permanent claimant. The IL WC Commission panel allowed for wage loss during the initial periods of disability and return to work as a warehouseman. When Claimant was adjudicated to be entitled to an “odd-lot” total and permanent award, the IWCC panel cut off the wage loss and allowed only T&P benefits going forward.

Just Because You Can Do Something New Doesn’t Mean It Is A Good Idea

The IL Appellate Court, WC Division ruled the wage loss differential provision in Section 8(d)(1) was created with the purpose of compensating a Claimant for diminished earning capacity caused by a work-related injury. They ruled the fact Claimant subsequently suffered unrelated and more disabling work injury to his neck in 2002 did not alter fact the 1999 back injury reduced his earning capacity. By cutting off wage loss differential benefits and substituting T&P benefits, the Appellate Court ruled the Commission's decision failed to “adequately compensate” Claimant for his first economic injury. For any number of reasons, we strongly dislike when our reviewing courts discuss and judicially enact their version of “adequate compensation.”

The Appellate Court noted Claimant’s wage loss benefits, capped at $485.65 a week plus the “odd-lot” total and permanent disability award, calculated at the lower warehouseman pay, combined to provide what they felt was “reasonable compensation” for Claimant. For the first time in IL WC history, with an WC Act created in 1909, the unanimous majority opinion held nothing prohibits awarding both PTD and wage differential benefits simultaneously and “indefinitely” under these circumstances. In our respectful view, common sense prohibits awarding Section 8(d-1) wage differential benefits to someone who unquestionably isn’t going to have a “differential” to make up on a weekly basis. In our view, the Court’s members are focusing on some altruistic version of “disability” being locked in without focusing at all on the legislative purpose of making an employer pay this benefit. We also feel any academic or legal scholar would appropriately criticize the majority’s use of the term “indefinitely” as it might be viewed as requiring continuing benefits be paid even after Claimant had passed.

It appears Claimant will receive $485.65 plus $862.80 or we can calculate a “base” combined $1,348.45 per week or $70,119.40 on a tax-free basis for life (please remember the word “base.”) Please also note this relatively middle base-amount is due to the fact this decision arises from injuries occurring more than a decade ago in the late 1990’s and 2002. The same award today could require an IL employer to pay as much as the current max of $1,005.80 per week for wage loss and $1,341.07 for a total and permanent disability award. The combined maximum base benefit could be $2,346.87 per week or $122,037.24 on a tax-free basis a year.

So What Happened to ANY Discussion of the RAF or Rate Adjustment Fund?

  Rate Adjustment Fund  

The Appellate Court, WC Division’s unanimous majority opinion was written by Justice Holdridge who we felt was a conservative Republican—we don’t consider this unprecedented decision to be conservative. What it appears may have been missed is any mention indicating Justice Holdridge or the other distinguished members of this appellate body knew there was a “Rate Adjustment Fund” in this state for total and permanent disability claimants. That Fund costs self-insured employers, carriers and local governments millions of dollars each year because it pays out lots of money to eligible workers.

The Rate Adjustment Fund was created to pay cost-of-living increases to individuals who are either permanently and totally disabled or the survivors of fatally injured workers. Individuals who receive awards for permanent and total disability or death benefits are eligible. Benefits are paid each month, beginning on July 15 of the second year after the award is entered by the Commission. Recipients are given an amount equal to the percentage increase in the statewide average weekly wage, as calculated by the Department of Employment Security. Twice each year, self-insured employers, insurance companies, and governmental units pay 1.25% of all workers’ compensation payments, excluding hospital, surgical, or rehabilitation payments, made in the six-month period preceding the payment date.

For our readers who are not familiar with Illinois’ unusual WC “Rate Adjustment Fund,” in this claim, it appears Claimant Chlada will also receive this added and ever-spiraling benefit that is currently going to bump up his weekly T&P benefit about 40.58%. You can find that calculation by looking here http://www.iwcc.il.gov/RAFCALCFY16.xlsx. The weekly T&P benefit of $862.80 above will actually be increased from the fund to the tune of $350.12 per week. To our understanding, this will bring the T&P award to $1,212.92 a week. The combined compensation for a T&P along with the RAF would bring Claimant to almost the amount this appellate decision felt would be “adequate compensation.” When adding that higher amount to the new wage loss diff amount, Claimant will get $1,698.57 a week or $88,325.64 on a tax-free basis. We consider that “more-than-adequate” compensation and remember the weekly amount will continue to go up and up, solely on the dime of Illinois business and local taxpayers.

As we outline above, please note the RAF or Rate Adjustment Fund bumps/increases don’t stop during a T&P Claimant’s lifetime—we assure you they will continue for the rest of Claimant Chlada’s life. If you search the link above, you will note a T&P claimant who started getting such benefits in 1987 or just 29 years ago is now getting double benefits!! That math isn’t going to stop. We note Claimant Chlada is 61 years old as you read this so while the Rate Adjustment Fund is already bumping up his T&P benefits at a current 40% clip, you can reasonably expect he will be at double in another 15 years and triple or more tax-free benefits if he lives to his nineties. We don’t feel any state in the United States provides such WC benefits. We also feel the IWCC panel knew of the RAF and their decision to award just a T&P in this case was predicated on that knowledge.

Don’t Wage Loss Benefits Assume One Has “Wages” That Are Being “Lost?”

As a final thought, we also feel the unanimous majority’s assertion their unprecedented view of this “benefit-stacking” issue needs to be addressed by the legislature is also a proper subject of respectful academic criticism. We feel the IWCC panel noted Claimant Chlada, once being provided total and permanent disability benefits would no longer have wages. To award “wage loss” benefits to someone who is never going to work again but live off the insurance carrier or self-insured employer makes literally no sense to us in a setting where the same benefactor is paying the worker tax-free benefits for the rest of his/her life and also contributing lots of money to the RAF to insure the benefit levels stay even with inflation.

What is Coming Soon to Serious IL WC Claims Near You

Now we hate to tell you but we are sure you can assume the entire Plaintiff-Petitioner bar is going to teach/coach and educate all current and future claimants to try to take advantage of these new and unprecedented “stacked” wage loss/total and permanent disability awards. Every guy or gal who is getting TPD is going to want wage loss and then “stacked” T&P benefits.

If you want thoughts on how to stop/defend such claims, send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: A federal judge in Springfield holds a Normal, IL doctor in contempt of court for misleading testimony about his credentials during a May federal trial.

Editor’s comment: The trial ended with a $300,000 jury verdict in favor of a prison inmate who claimed he received poor medical care at Taylorville Correctional Center. The case, however, has lived on as U.S. District Court Judge Sue Myerscough is demanding answers from Dr. Dru Hauter, a defense expert who presented himself as board-certified during the jury trial and filed a curriculum vitae with the federal court stating he held board certification.

“Are you board certified in any areas?” Michael Kokal, defense attorney, asked Hauter at the beginning of the doctor’s testimony.

“I’ve been board certified in internal medicine,” Hauter answered. “I’ve also been certified by the American Board of Independent Medical Evaluators.”

However, Dr. Hauter’s board certifications expired – records at the Illinois Department of Financial and Professional Regulation show his board certification for internal medicine ended in 2013. Judge Myerscough grew suspicious during a lunch break midway through the doctor’s testimony. When court reconvened, she announced outside the jury’s presence she’d been told by an attorney not connected with the case Dr. Hauter wasn’t currently certified as a medical evaluator and asked the doctor if that was true. Hauter answered he didn’t hold board credentials as a medical evaluator or in internal medicine.

Under questioning from Judge Myerscough during last month’s trial, Hauter said he had once been board certified in internal medicine but twice failed board exams, once in 1991 and again in 2013. The federal judge called Hauter’s testimony about his credentials misleading, “if not an outright lie,” and she warned both the doctor and Michael Kokal, attorney for the defense, they were both in trouble.

After the verdict came in, Judge Myerscough ordered Kokal to file an accurate resume for Dr. Hauter that included all current certifications for the physician as well as the dates of any lapses. Kokal subsequently filed a resume, but Myerscough wasn’t satisfied with the document, which included years but not specific dates showing when board certifications were granted and when they ended. The new resume also didn’t include dates showing when certifications had lapsed. Myerscough ordered the lawyer to file an updated resume with that information prior to the hearing set for July 7 in which she will hear testimony on whether the doctor should be held in contempt.

If you check out this link from this year, you will note it indicates Dr. Hauter continues to hold board-certification to conduct IME’s-- http://www.iwirc.biz/staff/dr-dru-hauter-md-cime-mro/

We were advised Judge Myerscough held Dr. Hauter in civil contempt of court. He was given ten days to respond to her finding. We will continue to report developments.

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Synopsis: Gotta Love the Anti-Business Zealots at OSHA—Maximum Fines to Go Up 78% in Three Weeks.

Editor’s comment: The U.S. Occupational Safety and Health Administration on Aug. 1 will increase the maximum penalty for serious violations from $7,000 to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709. The maximum penalties have not been increased since 1990, and the U.S. Department of Labor said the move is intended to modernize penalties that have lost ground to inflation.

“Civil penalties should be a credible deterrent that influences behavior far and wide,” U.S. Labor Secretary Thomas Perez said in a statement. “Adjusting our penalties to keep pace with the cost of living can lead to significant benefits for workers and can level the playing field (for) responsible employers who should not have to compete with those who don’t follow the law.”

But the Center for Progressive Reform wants OSHA to take things a step further. This anti-business organization has asked OSHA to establish national guidelines to discourage the agency’s area offices from informally settling cases by slashing penalties. They assert the practice has resulted in a substantial reduction in the amount of fines assessed. In 2012, for example, penalties resulting from fatality investigations at private companies were reduced by a total of $1.28 million from the original citation amounts, the organization said in a report released June 30. The group is especially concerned about reduced-fine settlements in cases involving what it calls “unconscionable violations,” such as those involving trench collapses, machine guarding, or hospitalizations or fatalities.

OSHA’s area offices routinely negotiate with employers to reduce penalties assessed on safety citations in exchange for the employer taking prompt action to correct the safety hazard. In the absence of a settlement, the employer can contest the citation and delay abatement of the hazard, the organization said. The organization also would like to see OSHA use the settlements to encourage employers to take steps beyond abating specific safety violations, for example by developing safety plans or undergoing third-party safety audits. CPR also wants workers to be more involved in the settlement process, and suggested OSHA reach out to them using modern communication methods such as email or text messages rather than just citation notices posted in a break room.

Many employers have been expecting OSHA to increase its maximum penalties and aren’t overly surprised by this move. Veterans know even though the maximum penalties are increasing, OSHA doesn’t necessarily assess the maximum fines for safety violations. OSHA’s increased maximum penalties may apply to citations for alleged violations occurring as far back as Feb. 1, under a six-month statute of limitations.

Our KCB&A law partner Brad Smith heads our OSHA team and recommends employers immediately begin correcting any safety violations or hazards identified during an inspection, even if they plan to challenge the citation. Doing so shows your company is acting in good faith and failure to correct the hazards could result in higher penalties, all the way up to the new maximum.

If you need advice and counsel on OSHA issues, send a reply or contact Brad directly at bsmith@keefe-law.com.

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Synopsis: Need WC Training? Learn from the KCB&A Experts about New WC Rules and Decisions from 2015 and Beyond                                    .

Editor’s comment: In our view, training and expertise in new work comp developments is critically important for you to keep ahead of your competition in claims and risk management. We have culled out the important decisions and changes to law for the last year to add to our 2016-17 IL WC Law Textbook. We can present the most important of them for you and your adjusting/risk management staff in a complimentary onsite lunch and learn at your office. We can also “webinar” your remote workers who want to keep pace with the office staff. Let us know if you are interested in a lunch hour presentation that we assure you will be informative and entertaining.

7-4-16; Kicking Financial Snowball from IL/Chicago Down the Hill; "Repetitive Working" Claim Turns into Fight Over Need for Ratings; Shawn Biery on Important Federal Retaliatory Discharge Ruling...

Synopsis: Kicking the Ever-Growing Financial Snowball Down the Hill--The U.S. Worst-Run State and City Keep Their Losing Streak Alive!

Editor’s comment: In our view, the last-minute confusion and consternation last week from Springfield, IL brought bittersweet news to all Illinoisans/Chicagoans. Basically, they “kicked the giant financial snowball down the hill” to provide our State and Chicago with what was called a “BIMP” or Stopgap Budget Implementation Bill. Basically, the Governor and State Democrats decided to fight this out during and after the coming November elections.

For the Illinois Work Comp matrix, nothing happened. Governor Rauner was willing to put off his “Turnaround Agenda” that includes his recommended IL WC reforms until sometime around the end of this calendar year when the BIMP or Stopgap Budget runs out. By that time, there will be a new General Assembly to fight over it. Please also note the State of Oregon WC Premium Rankings are expected at about the same time, so we should have a better idea if all the improved IL hearing officers are helping to cut IL WC costs.

For all Illinoisans, not much truly happened other than to watch everything in IL State and Chicago gov’t get financially worse and worse.

Our State and Chicago governments remain a financial shambles with

·        $8 billion and soaring in unpaid, late bills for all sorts of things purchased or used by our State—yes, this does resemble a “bankruptcy” but the State can’t declare bankruptcy;

·        Agencies and vendors that rely on State funding are going out of business in droves;

·        The State of Illinois now has $213 billion in skyrocketing debt;

·        The State of Illinois hasn’t had a balanced budget since 2001;

·        Illinois government is home to the worst credit rating in the nation;

·        Illinois fake government pension costs are already at 25% of all money spent on our state government and that ratio will continue to spiral due to 85% fake government pensions with 3% compounded annual increases guaranteed by our state Constitution;

·        Let’s not leave Chicago out—Last year, they levied the highest real estate tax increase in Chicago history or $588 million—the dramatically higher tax bills just hit the property owners’ mailboxes this weekend. Ouch!

·        They just passed a new Real Estate tax earmarked for police and firefighter fake pensions that won’t go into effect until 2020—folks, that is only three years from now and that looming tax increase is significant;

·        Chicago also is passing a “right-now” increased real estate tax to collect another $250 million for Chicago Teacher’s Union fake pensions;

·        Last week, the Chicago Teacher’s Fake Pension system was paid about $670 million, leaving only $83 million to run the Chicago schools this fall—no one knows where the rest of the money will come from—who cares about the kids, right? Let’s be sure retired teachers are taken care of???

·        One may assume if the Illinois Democrats, headed by Speaker Madigan continue their winning ways in Springfield, they are going to try to dramatically raise income taxes and maybe sales taxes and levy other new taxes on stuff they don’t already tax to force Illinois citizens and businesses to pay for all the financial mistakes the General Assembly made and can’t or won’t reform.

·        While our goal is to remain non-partisan, the financial crisis facing all Illinoisans is not so much political, as it is generated by soaring taxes, spiraling debt, simple math and common sense—we don’t care if the Democrats or the Republicans change the math; we are sure someone has to do so. If you want the math to which we refer, send a reply.

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

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Synopsis: Non-Accident “Repetitive Working” Ruling Confirms Neither Party to an IL WC Claim Needs to Bring an AMA Rating for PPD to be Awarded.

Editor’s comment: On June 28, 2016, the Illinois Appellate Court, Workers' Compensation Division, held Section 8.1b of the Illinois Workers' Compensation Act does not require a party to submit an AMA impairment report for the purpose of awarding permanent partial disability. In Corn Belt Energy Corp. v. IWCC, the employee parked his truck and physically turned in the truck seat and claimed he injured himself twisting as he exited his work truck on an incline.

It appears Claimant did not offer an AMA rating report into evidence, and neither did the employer. The Arbitrator found this questionable claim compensable and awarded three percent BAW. The award totaled roughly $10,688.25 in permanent partial disability (PPD) benefits, plus some medical benefits. In rendering his decision, the Arbitrator did not address whether an AMA rating report was required or if it was so required, whose obligation it was to obtain and introduce the report. Moreover, the Arbitrator failed to explain any of the five permanency factors set forth in section 8.1b(b).

Either way, Claimant asserted the action of turning in a truck seat was an “injury” or “accident.” While we are not sure, it appears the defense firm handling this claim stipulated those actions were an “injury,” and stipulated to that portion of the claim, choosing instead to fight and lose overa dispute as to causal connection. We completely disagree with anyone who asserts such actions comprise a compensable work injury or accident—Claimant described activities of daily life and there was no safety failure on the part of the employer. There are several longstanding IL WC rulings that rule similar actions of daily life, like standing up from a chair or putting on a coat do not comprise work “accidents.”

The defense firm appeared to focus on an unusual assertion. They claimed, even if they agreed there was an “accident,” the Arbitrator and Commission couldn’t award permanency or PPD without an impairment rating from Claimant’s counsel. We consider that defense tactic to be questionable and it failed.

The defense firm, acting for the employer argued Section 8.1b of the Act imposes a requirement a claimant tender an AMA rating report. The employer maintained because Claimant did not present an AMA impairment rating report he failed to satisfy Section 8.1b's requirements and was not technically entitled to a PPD award. Section 8.1b of the IL WC Act was enacted as part of the 2011 Amendments to the Act, and became effective for all claims arising after September 1, 2011. According to the provision, entitled "determination of permanent partial disability," "[f]or accidental injuries that occur on or after September 1, 2011, permanent partial disability shall be established using the following criteria;"

(a) A physician licensed to practice medicine in all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing. …

(b) 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 (a); (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 in addition to the level of impairment as reported by the physician must be explained in a written order. Id.

Although the IL WC Appellate Court addressed one aspect of Section 8.1b in its November 2015 decision in Continental Tire of the Americas v. Illinois Workers' Compensation Comm'n, the Court limited its decision to the singular issue of whether a zero AMA rating report meant there could be no permanency as a matter of law. The Continental Tire court found the impairment rating report, even though providing for a zero disability rating, was just one of the five factors to be considered under section 8.1b(b). To give it the effect argued by the employer in Continental Tire, the Court noted, would violate Section 8.1b(b) by giving too much weight to a single factor. The Continental Tire court did not indicate who bore the responsibility for submitting a report, and stated only that an AMA impairment rating report was to be considered if offered; it did not say who had the burden of production.

On review, the IL WC Commission affirmed the Arbitrator's conclusions and the award of PPD, but added language specifically addressing the AMA rating report. According to the Commission, after a "complete reading" of section 8.1b, "a party is not required to provide an AMA rating report for the purpose of determining permanent disability.”. "Instead, we find that the Act simply requires that if an AMA rating report has been provided, then the Commission must consider it, along with all of the other criteria listed, when determining permanent disability" The Commission then addressed each of the remaining factors of section 8.1b(b), and concluded the Arbitrator's award was correct. One Commissioner dissented, finding that "[t]he lack of an AMA report regarding a level of impairment leaves the [t]rier of fact no evidence of level of impairment." He then found Claimant's condition warranted only a 1% BAW award. The Circuit Court confirmed the Commission's decision.

In a 4-1 decision, the IL WC Appellate Court held the express language of Section 8.1b(a) does not limit the Commission's ability to award PPD benefits where no AMA report is submitted. The majority found the Commission's interpretation of section 8.1b – the IL WC Act simply requires if an AMA rating report has been provided, then the Commission must consider it, along with all the other four factors listed in section 8.1b(b), when determining permanent disability – was reasonable.

The majority further found Section 8.1b did not make submission of a report mandatory. "[S]ubsection (a) of section 8.1b is addressed only to a "physician *** preparing a [PPD] impairment report." Rather, the majority opined, "[i]t sets forth what a physician should include in his or her report and establishes that the report must be "in writing." Subsection (a) does not contain any language which obligates either a claimant or an employer to submit a PPD impairment report. Additionally, it contains no language limiting the Commission's ability to award PPD benefits when no report is submitted.

The majority also found Subsection (b) of section 8.1b of the Act was addressed "only to the Commission." The Court said Subsection (b) "lists five factors upon which the Commission must base its determination of the level of PPD benefits to which a claimant is entitled … ." Id. The majority observed, "subsection (b) does not require any action to be taken by either a claimant or an employer. Also, similar to subsection (a), it contains no language limiting the Commission's ability to award PPD benefits in the absence of a PPD impairment report."

The majority continued, "[c]learly, the plain language of section 8.1b places no explicit requirement on either party. Nor does it make the submission of a PPD impairment report a prerequisite to an award of PPD benefits by the Commission. Rather, the section speaks in terms of what factors the Commission is required to consider when determining the appropriate level of PPD." The majority noted its construction of Section 8.1b(a) was consistent with Continental Tire, where the Court held "[t]he statute does not require the claimant to submit a written [PPD impairment] report. It only requires that the Commission, in determining the level of the claimant's permanent partial disability, consider a report that complies with subsection (a), regardless of which party submitted it. Id.

According to the majority, "a PPD impairment report may be submitted by either party." Further, "when one is admitted into evidence, it must be considered by the Commission, along with other identified factors, in determining the claimant's level of PPD." The majority noted, "[n]one of the factors set forth in section 8.1b is to be the sole determinant of the claimant's disability. Further, nothing in the plain language of the Act precludes a PPD award when no PPD impairment report is submitted by either party." As a result, the majority rejected the contention by the employer the AMA impairment report was mandatory.

Appellate Court Justice Hoffman wrote a detailed and solid dissent, asserting an AMA impairment report should be needed by our hearing officers to measure and then award PPD. With respect to this long-time jurist, we don’t see that happening under current law.

For reference, in Governor Rauner’s “Turnaround Agenda,” he is seeking to have the IL WC Act amended to only require the Arbitrator and/or Commission consider one and not all five factors as currently required by IL WC law. Those proposed amendments may again come up for debate after the November election.

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

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Synopsis: Retaliation can arise from many agents--and your company is likely to be responsible for all of the agents, so choose your battles—and your warriors—carefully. 

Editor’s comment: In Baptist v. Ford Motor Company, No. 15-2913 (June 27, 2016) N.D. Ill., E. Div.,  a prior dismissal was vacated and remanded when the US Seventh Circuit Court of Appeals decided the District Court erred in granting Defendant-employer's motion for summary judgment.

This action arose due to Plaintiff Baptist filing suit for an allegation of termination in retaliation for exercising his workers' compensation rights after Plaintiff failed to show up for work for consecutive days while at least one MD had him off work.

James Baptist was a former forklift operator at Ford Motor Company who sued Ford after he was fired in retaliating for exercising his workers’ compensation rights. After Ford’s motion for summary judgment was granted, Baptist appealed contending the District Court drew improper inferences and there was a genuine issue of material fact about Ford’s motivation for the discharge.

Baptist worked at Ford’s Chicago assembly plant operating a forklift starting February 2012 and in April 2012 he inadvertently drove a forklift into a pillar and injured his left wrist, visiting Ford’s medical department and submitting an injury report. The report triggered a workers’ compensation investigation conducted by Jessica Nawracaj who was employed by Bartech, a company which provided Ford with workers’ compensation benefits administration services. Nawracaj and Dr. Patricia Lewis emailed each other with doubts regarding the account of the injury and also forwarded the information to Ford’s labor relations department.

Ford paid for the initial visit to an ortho, Dr. Heller, who ordered an MRI which revealed a left wrist ligament tear. Ford denied coverage and the claim is noted as being litigated at the Illinois Workers’ Compensation Commission however it is not listed in a public record search of the IWCC website.

Baptist worked for two months until June 24 when he left work as the wrist allegedly worsened and Dr. Heller then diagnosed Baptist with a complete ligament tear and recommended surgery with a form submitted to Ford confirming Baptist could not perform the essential function of the job though he added Baptist was not totally disabled. Due to the lack of specificity, Ford sought additional information and Dr. Heller submitted a new form which indicated Baptist should be off work for 4-6 weeks after surgery but cleared return to work July 2 so long as he did not lift or grip over 5lbs with his left hand.

Dr. Lewis testified she reviewed the forms and based upon her knowledge of the job, did not believe the restriction affected any activity necessary to operate the forklift and removed the note from Baptist’s file, clearing him to return to work. Baptist refused and asked for another position and after several days, was suspended by Ford for one month.

Upon return from suspension, Baptist met with Quandra Speights, Ford’s labor rep and contends he was told he would be fired if he did not return to the forklift position and fired if he did not agree to state his injury did not happen at work, in which case he would be given an approved leave of absence. Speights denied the allegation. However, after Baptist indicated he could not return and did not August 24-26, he was terminated for having three consecutive absences without proper justification. Baptist sued in Illinois state court in November 2013 for retaliation under Section 4(h) of the IL WC Act. Ford moved for summary judgment from that suit which was granted with the District Court noting they followed the attendance policy in making their decision which was acceptable.

This order was vacated here in the Seventh Circuit with the Court noting there was conflicting evidence which gave rise to a true question in controversy and also noted the emails from Dr. Lewis gave rise to an inference she was hostile to his claim for WC benefits. The Court also noted a triable issue with regard to whether it was appropriate to give him the impracticable choice to retain his job in exchange for dropping the claim noting that similar issues of choice in past claims have been found appropriate and therefore this issue survived summary judgment. The Court also noted multiple issues of fact regarding the disparate testimony of Baptist. Dr. Lewis and Speights.

The Court found a jury could infer Defendant's company doctor harbored hostility to Plaintiff's request arising out of disputed injury to Plaintiff's wrist by clearing Plaintiff to work, even though Plaintiff claimed he could not operate a forklift with his injury, where the doctor doubted Plaintiff's injury based, in part, on prior injury claim to other wrist that Plaintiff made with a prior employer and further due to the allegations management attempted to coerce him into abandoning his workers' compensation claim in exchange for maintaining his job.                                           

The best policy in any interaction with employees in similar situations would be to not only have independent witnesses, but to also document to summarize the interactions in writing to avoid later allegations. It is also important to base decisions on firm evidence rather than anticipated information. If the employee will not allow access to past information, that gives rise to potential additional defenses. Finally—DON’T THREATEN OR COERCE. The job you save, may be your own.

Our regular general advice when dealing with any termination with an employee who has ongoing litigation against the company is to suspend any decision on final termination until all information is in—which at times means until the end of the WC claim via either hearing or settlement. This can be as simple as an extended leave and at times can be much more nuanced and difficult. This article was researched and written by Shawn R. Biery, JD, MSCC. For questions regarding handling issues of EPLI comingled with WC claims, you can contact Shawn at 312-756-3701 or sbiery@keefe-law.com.

6-27-16; Al Preibis RIP; Per Gov Rauner, IL Approaches Gov't Shutdown with WC Reforms Still on the Table; WCRI Confirms Drug Monitoring Works Per Tracy Swenson and...

Synopsis: God Bless and Keep the memory of Arbitrator/Commissioner Al Preibis, May He Rest in Peace.

Editor’s comment: The IL WC community is saddened to hear of the passing of Arbitrator/Commissioner Al Preibis. Albert Preibis was a south side Chicago Lithuanian who worked hard and was a lifetime Democrat. He was widely known to be a liberal and fought hard for the interests of the working man. For a time, Al was a Claimant attorney during one of the politically enforced hiatuses from being an Arbitrator and never forgot being nickeled-and-dimed by some of the great defense lawyers of the time, like Arthur Kane and Marc Braun. One of the ways to get on Arbitrator Preibis’ bad side was to try to chisel the other side over a couple of bucks. To do so would risk his wrath! If he thought a claim was worth $15K and you offered $10K, he was happy to award $25K to show you he hated defense chiselers.

On the other side, if he thought it was worth $15K and you offered $15K, he would quickly award $10K to make sure the other side knew he was serious about being fair. Al was considerate about his job and being predictable—we consider this one of the strongest things any Arbitrator/Hearing Member in any state can do. Al told you what he was going to do and if you didn’t listen carefully, that is what he did.

On the other hand, as liberal as Al Preibis might be about a compensable claim, he was very tough on liars and folks that couldn’t remember what happened to them when they were traumatically injured. Al Preibis sometimes demanded opening arguments and your editor welcomed the challenge to eagerly tell him the dispute that was felt to be bona fide and worthy of extra interest. Al would initially give the defense side the “evil eye” but he listened carefully and ruled very impartially. We wish all current Arbitrators could be as brutally impartial as Al Preibis could be.

He was a kind, intelligent and fair man and will be forever missed. We wish we could provide you a picture of this great hearing officer but there aren’t any on the worldwide web. He just passed away at the age of 93. He was known as “Big Al, the Petitioner’s Pal” but don’t overdo the concept—Al was brutally honest and fair to anyone who appeared before him.

Arbitrator/Commissioner Al Preibis was a veteran of World War II. Funeral services are private. Preibis is survived by his wife, Gloria; son, Glenn; daughter, Gloria Sampson; and sister M. "Polly" Anton. Your editor will forever miss him and his great sense of humor and judicial demeanor.

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

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Synopsis: Governor Rauner: State Government Nears Shutdown Over Illinois State Budget Impasse. IL Workers’ Comp Reforms Remain in the Mix.

Editor’s comment: This Friday, July 1, 2016 may remain the action date. Illinois Gov. Bruce Rauner is accusing Democrats of procrastinating on a budget compromise which Governor Rauner hopes will include workers' compensation reform, just days before the state enters a second fiscal year with no spending plan.

Per Gov. Bruce Rauner “The government is on the verge of shutdown, and our schools are on the verge of not opening,” said Rauner. The Illinois House was scheduled to meet Wednesday, but Democratic House Speaker Michael Madigan canceled the session for a third straight week. He said bipartisan working groups of legislators will meet three times this week in an attempt to craft a budget plan.

“Gov. Rauner has been supportive of these groups’ efforts, and I agree with his recent comments that until there is a compromise budget, lawmakers should not be brought back to Springfield,” Madigan said. When lawmakers failed to enact a budget before adjourning at the end of May, Madigan vowed the House would remain in continuous session and return to Springfield on each Wednesday in June, but he has canceled all three Wednesday sessions this month.

Rauner has asked legislators to at least approve a full-year education budget that would allow schools to open this fall, and a stopgap budget to fund higher education, human services and public safety through the end of this year. “I believe what’s being done is using the “working groups” as an excuse not to do anything, to delay and create a crisis,” Gatehouse quoted Rauner as saying.

The historically long impasse, which stretches to fiscal 2015, was triggered by the Republican Governor’s reasonable demand that our goofy legislature reform workers’ compensation and government pensions, and freeze property taxes.

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Synopsis: WCRI Stat Specialists Note Drug Monitoring Programs Reduce Opioid Prescribing. Analysis by Tracy Swenson, J.D.

Editor’s comment: In a recently published report, it was confirmed prescription-drug monitoring programs may have played a role in reducing the average amount of opioids prescribed to injured workers from 2011 to 2014, according to the Workers’ Compensation Research Institute.

They report the biggest drop in opioid prescribing was seen in Michigan, which openly allows pharmacists and prescribers and also workers’ comp payers to access the prescription-monitoring database which appears to be a strong tool in identifying excessive dispensation of prescription meds. When looking at changes from the previous 2010/2012 study period, Michigan saw the largest drop in average opioids per claim, with a 31% drop. Oklahoma had the second greatest decrease, at 29%, followed by Massachusetts, with 24%. Michigan has allowed payer access to the PDMP since 2002, but increased awareness of the opioid crisis may have prompted payers to increase their use of the database over the most recent study period, WCRI said.

WCRI reports decreased opioid prescribing found in the 2012-2014 study period follows a trend of rapidly increasing opioid use which began in the 1990s. Since other studies also have found a decrease in opioid utilization in recent years, it may signal a turning point because of numerous changes made at the federal, state and organization levels in recent years to combat opioid overuse and abuse.

The WCRI study titled “Interstate Variations in Use of Opioids” looks at non-surgical workers’ comp claims with more than seven days of lost time. The new study covers injury dates from Oct. 1, 2011, through Sept. 30, 2012, with prescriptions filled through March 31, 2014, for an average of 24 months of experience on claims. WCRI calls this study period "2012/2014" and compares it to a similarly defined "2010/2012" period.

While 49 states have prescription-drug monitoring programs, they differ in their requirements for using the databases that keep track of patients’ opioid prescription history. The PDMPs are intended for use by pharmacists and prescribers to look for patterns of possible abuse, such as doctor shopping to obtain a large number of prescriptions.  One example in the article confirmed Oklahoma strengthened its PDMP during the recent study period by requiring real-time reporting of opioid prescribing starting in January 2012, WCRI noted.  

The WCRI study also found regional differences in opioid prescribing patterns. One in 15 claimants receiving opioids also were prescribed benzodiazepines — considered a dangerous combination — in four states: Connecticut, Massachusetts, Michigan and Wisconsin. But in Texas, fewer than 1% of claimants receiving opioids were prescribed benzodiazepines.

As the providers continue to prescribe medications and with the increase in compound medications, monitoring programs and strong access for all providers seems to be the most reasonable approach to maintain safety for those receiving the medications so there seems to be no downside for the claimants.  

The WCRI study is available for purchase here.

This article was edited by Tracy Swenson, J.D. who has the unique perspective of being a great WC claims adjuster prior to starting her law career here at KCBA. Tracy is looking for current adjusters who aren’t afraid to hire women lawyers to fight or rapidly resolve tough claims. She can be reached for any questions at TSwenson@keefe-law.com.

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Synopsis: Need WC Training? Learn from the KCB&A Experts about New WC Rules and Decisions from 2015 and Beyond                                    .

Editor’s comment: In our view, training and expertise in new work comp developments is critically important for you to keep ahead of your competition in claims and risk management. We have culled out the important decisions and changes to law for the last year to add to our 2016-17 IL WC Law Textbook. We can present the most important of them for you and your adjusting/risk management staff in a complimentary onsite lunch and learn at your office. We can also “webinar” your remote workers who want to keep pace with the office staff. Let us know if you are interested in a lunch hour presentation that we assure you will be informative and entertaining.

Here is the  outline created by John P. Campbell, J.D. and Nathan Bernard, J.D. for your consideration:

When is a Physical Problem Repetitive Trauma versus Repetitive Working?

Question: How Exactly Do You Tackle an IL WC Fraud Claim? IL Courts Play the Laurel and Hardy Game of “Who’s on First?”

IL WC Wage Differential Exposure Expanding based on Recent Appellate Court Ruling.

Defense/Respondent Contact with Treating Doctors Met with Shocking Penalty and Sanction from Circuit Court Judge.

Traveling Employee Expansion When Handling Work Equipment While at Home.

Medicare Set-Aside Process as SMART Act is Implemented.

Comparing How Impairment Ratings are Considered at the IWCC.

We can also do a half-day or whole day seminar to teach all the nuances of IL WC. Let us know is you have interest—all you have to do is send a reply.