2-6-2017; The Biggest IL WC News In History That No One Is Reporting But Us, Part Two; John Karis on Important Hearing Loss Measurement App for Your Workplace; Shawn Biery's New IL WC Rate Sheet

Synopsis: The Biggest News in Illinois Workers’ Comp History No One is Reporting, Part Two—I Assure You The IL Workers’ Comp Commission Is Set To Close Just 22 Days From Today!

Editor’s comment: As we advised last week, everything is still in place for an IL State Government shut-down on Feb. 28, 2017. Attorney General Lisa Madigan filed her request in one of Illinois’ most shady counties to insure she cannot possibly lose her effort to stop paying all Illinois state workers' salaries until we have a state government budget. Her motion asks the St. Clair County Circuit Court to dissolve by Feb. 28, 2017 a preliminary injunction that has allowed state workers to be paid even though the Legislature and Governor haven't approved a spending plan. A six-month "stopgap" state budget was approved last summer but expired on Jan. 1, 2017.

The sparks are expected to fly tomorrow morning in Springfield, as the legislature takes on the issue of possibly hammering out a budget along with the normal circus side-shows we have whenever our nutty legislature is in session. There were about 19 planned IL WC reforms—we have no idea how many have survived but we are sure some of them have been dropped.

The leaders of the Illinois Senate claim they're moving forward with their proposed budget compromise. However, developments in the past 24 hours suggest the sweeping legislative proposal, involving everything from billions in new taxes to workers' compensation reform and expanded casino and computer game gambling, is in deep trouble, facing even steeper obstacles than when first posted.

The first omen appeared when some of the “Grand Bargain’s” tax concepts and other clauses were almost immediately dumped and then completely changed. For one example, the proposed penny-an-ounce soda tax and minimum wage hike disappeared. For another example, what I feel is a stupid “Business Opportunity” minimum annual tax on small and mid-sized Illinois businesses got thrown in to supposedly raise three quarters of a billion solely from Illinois businesses. The reason I feel it is stupid is the amount of the tax is based on your Illinois payroll, be it W2 employees or 1099 contractors. Your every interest in avoiding this anti-business tax, if it is enacted, will be to move your Illinois workers across state lines to the other states KCB&A cover, like Wisconsin, Indiana, Iowa and Michigan. Why pass a tax to force businesses and jobs to leave this state?

The goofy and unvetted “Business Opportunity” idea was clearly enough to get the Illinois Chamber of Commerce to oppose the entire measure as bad for business. That's significant because the IL State Chamber has the ear of  Gov. Bruce Rauner, who publicly has been neutral on the proposed deal. The perception Gov. Rauner may now be against the plan—a perception Crain’s Chicago Business asserts is held by high-ranking Democrats—may explain why Chicago Mayor Rahm Emanuel termed Rauner "Gov. Gridlock" and declared the state to be "rudderless" under his governorship.

Challenging critics to devise something better, Illinois Senate President John Cullerton in a speech at the City Club today strongly defended the huge "grand budget deal" he and Senate GOP Leader Christine Radogno initially put together and then changed and changed again in a bid to finally end two years of deepening Springfield budget warfare. "If not this plan, then what?" the Chicago Democrat ."If not now, then when?" As Cullerton conceded, "We'll find out in the next few days" whether the plan will fly politically as a solution.

With the greatest respect for Senators Cullerton and Radogno, we saw an answer to Senator Cullerton’s question about “if not this plan, then what?” posted by the Illinois Policy Institute. If you take a look at this link

https://www.illinoispolicy.org/reports/budget-solutions-2018-balancing-the-state-budget-without-tax-hikes/

You will see the great brains at the IPI have come up with amazing analysis and recommendations on how to avoid more borrowing and new and higher taxes and work to keep jobs, businesses and you and me in this state. They also note and want you to understand part of this budget crisis is due to what I call “Illinois-aires” or folks who are going to receive literally millions in retirement from our tax dollars under the guise of their phony and unfunded government pensions.

If you want my spin on all of this, I was asked by a reader for my plan on how we get the money to pay all the State’s outstanding bills owed to those who provided service to the state.

I answered:

1. Across-the-board budget cuts to reduce the size of Illinois State Government about 20% or more without losing any services.
2. Require the State to bring back injured workers to sedentary jobs when such jobs are open to avoid phony total and permanent disability payments to folks that aren’t “disabled.”
3. Immediately get rid of do-nothing, duplicative or repetitive state jobs that no one will ever miss like the unneeded Lieutenant Governor’s office, the stupid Secretary of State Police and “remote” offices for the IWCC and other state agencies.
4. Change all new state pensions to 401K’s. Cut the number of State fake pension boards from 5 to none.
5. Consolidate the number of IL State agencies from 88 to maybe 30 to avoid having duplicative leadership and separate accounting systems, etc.
6. Completely automate the Illinois tollways and all state parking facilities.
7. Raise income tax to the level needed to pay bills and start to pay down debt.

I would support number seven when 1-6 are in place. When we pay down enough state debt, lower the income tax or get rid of it. If we don’t do something like these changes soon, the world is going to do it for us—raising taxes now to pay old bills, rising debt and unneeded government costs will only lead to more and higher future taxes.

Other than the IPI, no one appears to be fighting to change the game and cut state government costs/spending. We are left to wait and see if there will be any votes on the “Grand Bargain” and legislators are due to be out of town next week. Trust me, we are getting closer to no more Illinois Workers’ Comp Commission by the end of this month.

What Happens Then? Can We Survive Without WC Hearing Officers?

It will be interesting to see what happens but an IWCC shutdown may certainly happen. The main crisis would be termination of medical and/or lost time benefits for seriously injured workers—there would be no place for such folks to go. Even Medicaid might shut down in a total government collapse. We assume the IL WC claims community isn’t going to do silly stuff because at some time, the IWCC will return to action and get back into the swing to punish defense wrong-doers.

What Is Happening With the Pending 2017 IL WC Reforms?

From my last web search, literally all sides appear more and more tired of the new WC “reform” concepts and seemed to be either losing interest or actively discarding them. Some of the WC reforms have promise but all of it seems to be rapidly cobbled together without strong metrics to support them. We assure our readers some of them are hilariously nebulous and when there is unclear WC legislation, that is never good for the defense side of the matrix because our “activist” courts will make us pay for any uncertainty.

Whether anything of the many proposed IL WC reforms will survive and be passed into law is yet to be seen—watch this space. With what is at stake in a government shutdown, my vote is back out of the few reforms of value and take the time needed to come up with “hard” reforms that will make the system operate more effectively for IL business and local governments. I am happy to quietly help, if asked.

I again suggest we all diary February 28, 2017 to watch and see if they can come up with a plan that will keep the IL WC Commission open and our circus-like state government afloat.

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

Synopsis: New App Can Help Prevent and Defend Future Work-Related Hearing Loss Claims. John Karis, J.D. reporting.

Editor’s comment: The National Institute for Occupational Safety and Health (NIOSH) just announced the availability of a new mobile application (app) for iOS devices that can measure sound levels in the workplace. We feel this is a very cool new concept you and your safety team need to take a look at.

The app is called the NIOSH Sound Level Meter (SLM) app which can help prevention efforts at construction worksites and all United States workplaces by acquiring, saving and displaying real-time noise exposure data. The NIOSH SLM app is free, easy to use, and can give any user immediate feedback about sound levels and noise exposure.

Please remember if you don’t do this, you may have unions or wily members of your workforce doing so to try to document hearing loss claims at your worksites. This is a ready-made tool for a worker to easily demonstrate your workplace was too loud and hearing protection should have been required. Please also remember hearing loss claims can create lifetime benefits for your workers who can claim you have to pay for life-long hearing aids due to their weakened condition.

The NIOSH SLM app has many important features, it provides a readout of the current onsite sound level using the built-in microphone (or external microphone if used) and reports the instantaneous sound level in A, C, or Z-weighted decibels. The app also reports the main metrics that are of importance for proper occupational noise measurements – mainly the run time (total time), the A-weighted Equivalent Sound Level (LAeq), the Maximum Level measured during the current run time, the C-weighted Peak Sound Pressure Level (LCpeak), the Time-Weighted Average (TWA) and Dose. 

In addition, the app allows the user to save and share measurement data using your smartphone’s other communication and media features.  If location services are enabled, the app can utilize the GPS feature to provide an exact geospatial location of the noise measurement.

NIOSH estimates that 22 million workers are exposed to hazardous noise levels every year. We believe this app can be used by your safety and health professionals to assess risks and prevent exposure.  

We also believe this can help defend workers’ comp claims. For example if an employee alleges a hearing loss claim, occupational safety and health professionals are readily able to assess the decibels of the alleged exposure. Depending on the measurement it can help combat assertions in the future of hazardous noise levels.

If you click the link below on your iPhone you will be sent to the App Store from Apple where you can download it now:

https://itunes.apple.com/us/app/niosh-slm/id1096545820?mt=8

For additional information and detailed guidance on how to use the app, please visit the NIOSH app page at: https://www.cdc.gov/niosh/topics/noise/app.html

This article was researched and written by John Karis, J.D. You can reach John 24/7/365 for questions about general liability, employment law and workers’ compensation at jkaris@keefe-law.com.

Synopsis: Illinois WC Rates Jump Again and Your PPD Reserves Need To Be UPDATED RETROACTIVELY(!). Send a Reply to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

Editor’s comment: There continues to be an upward spiral of IL WC rates. As mentioned twice every year, starting in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, our WC rates keep climbing.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $775.18. When it was published, this rate changed retroactively from July 1, 2016 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now, your reserves are wrong. If you have a claim with a date of loss after July 2016 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. WORD OF CAUTION: There is pending legislation which Gene reported last week and this week which currently states “The maximum compensation rate for the period July 1, 2017 through June 30, 2021, except as hereinafter provided, shall be $755.22. Effective July 1, 2021 and on July 1 of each year thereafter the maximum weekly compensation rate, except as hereinafter provided, shall be determined as follows: if during the preceding 12-month period there shall have been an increase in the State's average weekly wage in covered industries under the Unemployment Insurance Act, the weekly compensation rate shall be proportionately increased by the same percentage as the percentage of increase in the State's average weekly wage in covered industries under the Unemployment Insurance Act during such period.” THIS NEW LEGISLATION WOULD POTENTIALLY CHANGE THIS PPD MAX AGAIN. If this isn’t clear, send a reply to Shawn at sbiery@keefe-law.com.

The current TTD weekly maximum has risen to $1,435.17. A worker has to make over $2,152.76 per week or $111,943.52 per year to hit the new IL WC maximum TTD rate. Does any state in the United States have a TTD maximum that high?

The new IL WC minimum death benefit is 25 years of compensation or $538.19 per week x 52 weeks in a year x 25 years or $699,647.00! The new maximum IL WC death benefit is $1,435.17 times 52 weeks times 25 years or a lofty $1,865,721.00 plus burial benefits of $8K. On top of this massive benefit, Illinois employers/governments have to pay COLA increases.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet. If you want it, simply reply to Shawn at sbiery@keefe-law.com or email Marissa with your mailing address if you would like to be mailed a laminated copy at mpatel@keefe-law.com and they will get a copy routed to you before they raise the rates again!

Synopsis: Happy Valentine’s Day from the Gang at KCB&A!!

Editor’s comment: Okay, so it is a little early but, like the Boy Scouts—Be prepared!

1-30-2017; The Biggest IL WC News In History That No One Is Reporting But Us!; RICO Suits To Disappear As WC Bad Faith Claim; Uninsured Motorist Loses Coverage If Too Much WC Paid and more

Synopsis: The Biggest News in Illinois Workers’ Comp History No One is Reporting—I Assure You The IL Workers’ Comp Commission Is Set To Close Thirty Days From Today!

Editor’s comment: I had a reader tell me Illinois State Government appears to be filling in for the Ringling Bros. and Barnum & Bailey Circus that is soon to close. Everything that is happening in our state government appears to make our leaders look like clowns and teetering out of control. The problem with seeing legislative clowns is the lack of any humor when billions of our tax dollars are at stake. In short, the “grand bargain” for an actual IL state budget appears to have fallen to the wayside as the battle between Governor Rauner and Speaker Madigan accelerates wildly.

Last week, Speaker Madigan’s daughter, IL Attorney General Lisa Madigan filed a request in St. Clair County Circuit Court, to stop paying all Illinois state workers' salaries until legislators and Gov. Bruce Rauner work out a spending plan to end an 18-month budget impasse.  The motion asks the St. Clair County Circuit Court to dissolve by Feb. 28, 2017 a preliminary injunction that has allowed state workers to be paid even though the Legislature and governor haven't approved a spending plan. A six-month "stopgap" state budget was approved last summer but expired on Jan. 1, 2017.

Attorney General Madigan's surprise legal motion was criticized both by government employee unions and other state officials. I feel it is an exercise in brinkmanship (brinkwomanship?) to force an unhappy budget truce. Please also note the screaming you can’t hear are the holders of over $11 billion, yes, billion in unpaid bills owed by our crazy State government—the amount of unpaid state gov’t bills is going up by millions upon millions each day.

Governor Rauner said he was "deeply disappointed, very upset" by Madigan's move. "I hope this is not a direct attempt to cause a crisis to force a shutdown of the government to force another stopgap spending plan — short-term, unbalanced, incomplete — as a step to force a tax hike without any changes to our broken system," the Governor said in Chicago.

Unless things change dramatically, it is my current assumption Attorney General Madigan will win her motion and the preliminary injunction will be dissolved. Following that ruling, all IL government salaries and other monies paid to IL State workers will end on February 28, 2017. After that date, I further assume the IL WC Arbitrators, Commissioners, Chairperson and support staff won’t volunteer their services but will stay home or away from work until the impasse is resolved. In short, the IWCC and lots of other state agencies and services will close until a budget deal is struck. Could it happen? Youbetcha.

What Happens Then? Can We Survive Without WC Hearing Officers?

It will be interesting to see what happens but an IWCC shutdown may certainly happen. The main crisis would be termination of medical and/or lost time benefits for seriously injured workers—there would be no place for such folks to go. Even Medicaid might shut down in a total government collapse. We assume the IL WC claims community isn’t going to do silly stuff because at some time, the IWCC will return to action and get back into the swing to punish defense wrong-doers.

What Is Happening With the Pending 2017 IL WC Reforms?

From my last web search, literally all sides appear more and more tired of the new WC “reform” concepts and seemed to be either losing interest or actively discarding them. Some of the WC reforms have promise but all of it seems to be rapidly cobbled together without strong metrics to support them. We assure our readers some of them are hilariously nebulous and when there is unclear WC legislation, that is never good for the defense side of the matrix because our “activist” courts will make us pay for any uncertainty.

Whether anything of the many proposed IL WC reforms will survive and be passed into law is yet to be seen—watch this space. With what is at stake in a government shutdown, my vote is back out of the few reforms of value and take the time needed to come up with “hard” reforms that will make the system operate more effectively for IL business and local governments. I am happy to quietly help, if asked.

Will The State of Illinois Ever Dig Out of the Massive Financial Hole Created by Our Legislative Leaders?

The “Grand Bargain” currently being proposed includes

·         At least $7 billion in new state borrowing for a state awash in spiraling debt and

·         State income tax being dramatically raised to record levels for individuals and corporations and

·         The stupidest tax on moderate and small businesses I have ever heard of. Some PR guy gave this proposed tax the silly name “Business Opportunity Tax.” Our legislative leaders want to raise $750M to tax payroll and 1099 payments for businesses working in Illinois. If it passes, every incentive will be to move jobs and business out of this state even faster than is already happening. In my view, the only “opportunity” that will almost certainly come from such a tax is to have businesses jump on this “opportunity” to get out of this state and bring jobs and work elsewhere.

·         Lots of other unpalatable things that will infuriate you and me, as taxpayers.

What this bargain doesn’t include are any budget cuts or government efficiencies or basically anything to get us out of the giant financial mess in the years and decades to come. If you don’t change what caused these new and higher taxes and borrowing, you are going to need more taxes and borrowing until something snaps. I feel they are simply patching up the financial mess they caused with literally no long-term relief in sight. All I see the legislature doing is fighting Governor Rauner and digging deeper and deeper into an anti-business and anti-local government financial abyss. Lots of folks and businesses are fleeing with fewer and fewer new Illinois jobs being created—does anyone in the General Assembly care?

I suggest we all diary February 28, 2017 to watch and see if they can come up with a plan that will keep the IL WC Commission open and our circus-like state government afloat.

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

Synopsis: RICO Claims To Disappear from U.S. Workers’ Comp World And Good Riddens.

Editor’s comment: If you don’t know, the Federal RICO concept was, in my opinion, created to stop Mafia folks from defrauding and extorting money from our citizens. The Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a private civil cause of action for acts performed as part of an ongoing criminal organization. The RICO Act focused specifically on racketeering, and it allows the leaders of a syndicate to be tried for the crimes which they ordered others to do or assisted them in doing, closing a perceived loophole that allowed a person who instructed someone else to do the act and then be exempt from the trial because he did not actually commit the crime personally.

About ten-fifteen years ago, WC Claimant lawyers in Michigan decided to bring RICO into the world of workers’ comp. Several lawsuits were filed and a heated battle ensued.

Now a Michigan Federal Court just again ruled RICO may not be used for workers’ comp bad faith claims. Citing two earlier precedents, a U.S. District Court in Michigan has once again ruled, in pertinent part, that racketeering activity leading to a loss or diminution of workers’ comp benefits a plaintiff expects to receive under a state workers compensation system does not constitute an injury to “business or property” under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act. Accordingly, where an injured worker alleged a claims conspiracy, pursuant to which the workers’ compensation insurance provider hired IME or other doctors to write allegedly fraudulent reports for the purpose of denying his workers’ compensation benefits, the worker stated no demonstrable cause of action.  

In Gucwa v. Lawley, the worker sought to distinguish earlier decisions—Jackson v. Sedgwick Claims Management Services, 731 F.3d 556, 563–64 (6th Cir. 2013) (en banc), and Brown v. Cassens Transport Co., 546 F.3d 347, 354 (6th Cir. 2008)—on the grounds in his own case, he alleged tortious activity by “independent medical examiners.” The U.S. District Court held the worker’s argument was meritless and a motion to dismiss granted.

As I have advised my readers on many occasions, if RICO were to come into the world of workers’ comp, the same sword could cut both ways. We could see aggressive and upset employers filing RICO actions against phony and/or questionable claimants seeking treble damages and attorney’s fees. If that happened, it would be very hard for the Claimant bar to step up and fight back—Federal RICO litigation is very, very expensive to defend.

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

Synopsis: When Enough Work Comp Benefits Are Paid, Uninsured Motorist Benefits May Not Be Due.

Editor’s comment: In Country Preferred Insurance Co. v. Groen, Claimant suffered an accident that occurred during the course of her employment and Claimant-defendant Groen received substantial benefits under the Illinois Workers’ Compensation Act in excess of $400,000. In addition, she sought uninsured motorist benefits from Plaintiff Country Preferred Insurance Company, under a policy, which contained a provision entitling Plaintiff insurance company to reduce the amount of its liability by any payments made or due under the IL WC Act.

Ultimately, the trial court granted summary judgment in favor of Plaintiff Country Preferred and against the injured worker. She appealed, arguing the court erred in granting summary judgment because Plaintiff insurer should be prohibited from reducing the amount of its available

uninsured motorist coverage by the amount of medical expenses paid by her employer in her work comp claim. Specifically, she argued

(1) medical payments made pursuant to the IL WC Act are not “for” an insured and, therefore, are not subject to setoff under her uninsured motorist policy;

(2) alternatively, the setoff provision was somehow ambiguous as to whether medical payments made by an employer under the IL WC Act are subject to setoff and, therefore, should be construed in her favor; and

(3) the setoff provision “is unenforceable because it violates the IL WC Act.”

On October 7, 2013, the worker was struck as a pedestrian by an uninsured motor vehicle and suffered serious injuries. At the time of the accident, Claimant Groen was working and was acting within the scope of her employment. As a result, Claimant sought and received workers’

compensation benefits under the Act. Specifically, she received temporary total disability benefits in the amount of $328.33 per week beginning on October 7, 2013, and up to at least July 28, 2014, the date Claimant signed an affidavit in the within action. In addition, as of July 22,

2014, defendant’s employer had paid $410,266.63 in medical bills pursuant to the Act.

In addition to receiving workers’ compensation benefits, Claimant Groen sought benefits from Country Preferred under an uninsured motorist policy with limits of $250,000 per person and $500,000 per occurrence.

In June 2014, the insurer filed a complaint for declaratory judgment, seeking a declaration of the parties’ rights and obligations under the uninsured motorist policy, which, in relevant part, provides as follows:

“Amounts payable for damages under Uninsured-Underinsured Motorists, Coverage U, will be reduced by the present value of all amounts paid or payable under any workers’ compensation, disability benefits or any similar law.”

The insurer asserted Claimant Groen was not entitled to benefits under her uninsured motorist policy because she had already collected more than $250,000 in workers’ compensation benefits. In March 2015, the insurer filed an amended motion for summary judgment, asserting Ms. Groen could not maintain a viable uninsured motorist claim, since she had already received workers’ compensation benefits in excess of the uninsured motorist policy’s limits. In August 2015, Counsel for Claimant Groen filed a cross-motion for summary judgment, asserting the setoff provision (1) violated the Act and was unenforceable and (2) excluded medical payments made by her employer directly to her medical providers.

Following a December 2015 hearing on the motions, the trial court granted the insurer’s amended motion for summary judgment and denied Ms. Groen’s motion for summary judgment. In its written order, the trial court found the setoff provision was enforceable, unambiguous, and not against public policy. This Appellate Court unanimously agreed.

We checked the IWCC website and note the underlying WC claim is now moving into its fourth year.

We appreciate your thoughts and comments. Please post them on our award-winning blog. If you want the cite to this ruling, send a reply.

Synopsis: Illinois WC Rates Jump Again and Your PPD Reserves Need To Be UPDATED RETROACTIVELY(!). Send a Reply to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

Editor’s comment: There continues to be an upward spiral of IL WC rates. As mentioned twice every year, starting in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, our WC rates keep climbing.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $775.18. When it was published, this rate changed retroactively from July 1, 2016 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now, your reserves are wrong. If you have a claim with a date of loss after July 2016 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. WORD OF CAUTION: There is pending legislation which Gene reported last week and this week which currently states “The maximum compensation rate for the period July 1, 2017 through June 30, 2021, except as hereinafter provided, shall be $755.22. Effective July 1, 2021 and on July 1 of each year thereafter the maximum weekly compensation rate, except as hereinafter provided, shall be determined as follows: if during the preceding 12-month period there shall have been an increase in the State's average weekly wage in covered industries under the Unemployment Insurance Act, the weekly compensation rate shall be proportionately increased by the same percentage as the percentage of increase in the State's average weekly wage in covered industries under the Unemployment Insurance Act during such period.” THIS NEW LEGISLATION WOULD POTENTIALLY CHANGE THIS PPD MAX AGAIN. If this isn’t clear, send a reply to Shawn at sbiery@keefe-law.com.

The current TTD weekly maximum has risen to $1,435.17. A worker has to make over $2,152.76 per week or $111,943.52 per year to hit the new IL WC maximum TTD rate. Does any state in the United States have a TTD maximum that high?

The new IL WC minimum death benefit is 25 years of compensation or $538.19 per week x 52 weeks in a year x 25 years or $699,647.00! The new maximum IL WC death benefit is $1,435.17 times 52 weeks times 25 years or a lofty $1,865,721.00 plus burial benefits of $8K. On top of this massive benefit, Illinois employers/governments have to pay COLA increases.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet. If you want it, simply reply to Shawn at sbiery@keefe-law.com or email Marissa with your mailing address if you would like to be mailed a laminated copy at mpatel@keefe-law.com and they will get a copy routed to you before they raise the rates again!

Synopsis: Happy Valentine’s Day from the Gang at KCB&A!!

Editor’s comment: Okay, so it is a little early but, like the Boy Scouts—Be prepared!

1-23-2017; Shawn Biery on New IL WC Rates With Free Rate Sheet!!!; Update on IL WC eform With IL State Chamber's Position; Can We Consider Another March?; and more

Synopsis: Illinois WC Rates Jump Again and Your PPD Reserves Need To Be UPDATED RETROACTIVELY(!). Send a Reply to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

Editor’s comment: There continues to be an upward spiral of IL WC rates. As mentioned twice every year, starting in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, our WC rates keep climbing.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $775.18. When it was published, this rate changed retroactively from July 1, 2016 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now, your reserves are wrong. If you have a claim with a date of loss after July 2016 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. WORD OF CAUTION: There is pending legislation which Gene reported last week and this week which currently states “The maximum compensation rate for the period July 1, 2017 through June 30, 2021, except as hereinafter provided, shall be $755.22. Effective July 1, 2021 and on July 1 of each year thereafter the maximum weekly compensation rate, except as hereinafter provided, shall be determined as follows: if during the preceding 12-month period there shall have been an increase in the State's average weekly wage in covered industries under the Unemployment Insurance Act, the weekly compensation rate shall be proportionately increased by the same percentage as the percentage of increase in the State's average weekly wage in covered industries under the Unemployment Insurance Act during such period.” THIS NEW LEGISLATION WOULD POTENTIALLY CHANGE THIS PPD MAX AGAIN. If this isn’t clear, send a reply to Shawn at sbiery@keefe-law.com.

The current TTD weekly maximum has risen to $1,435.17. A worker has to make over $2,152.76 per week or $111,943.52 per year to hit the new IL WC maximum TTD rate. Does any state in the United States have a TTD maximum that high?

The new IL WC minimum death benefit is 25 years of compensation or $538.19 per week x 52 weeks in a year x 25 years or $699,647.00! The new maximum IL WC death benefit is $1,435.17 times 52 weeks times 25 years or a lofty $1,865,721.00 plus burial benefits of $8K. On top of this massive benefit, Illinois employers/governments have to pay COLA increases.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet. If you want it, simply reply to Shawn at sbiery@keefe-law.com or email Marissa with your mailing address if you would like to be mailed a laminated copy at mpatel@keefe-law.com and they will get a copy routed to you before they raise the rates again!

Synopsis: IL WC Reform Update—Thoughts from Your Editor and the Position of the IL State Chamber WC Legislative Experts.

Editor’s comment: The battle in Springfield continues to rage. Here are our thoughts along with the analysis/comments of the WC gurus at the IL State Chamber. We like to tell all of our readers State Chamber President Todd Maisch and his expert lobbyist Jay Dee Shattuck are the go-to folks to monitor and protect the interests of IL business and local government whenever WC reform is afoot. If you are interested in joining their efforts, go to www.ilchamber.org for more information and details.

Key Issues for IL Employers--both your editor and the IL State Chamber agree most current IL WC reform provisions need additional work and careful consideration.

Traveling employee—the provision codifies current case law regarding “traveling employee” beyond the ruling of the IL Supreme Court in Venture Newburg by establishing a “reasonable & foreseeable” standard for determining compensability. The legislation adds a compensable accidental injury does not include travel that is a “purely personal deviation or personal errand, unless such deviation or errand is substantial.” It also references factors for determining traveling employee status from Venture Newburg.

·         From my perspective, this concept doesn’t need legislation at all. The words “traveling employee” don’t appear in the IL WC Act and doesn’t need to be added. I think the proposed “reform” actually expands coverage in ways that may be very adverse to IL employers. The legislation already in place about “arising out of and in the course of” employment is covered by common sense. If Governor Rauner’s arbitrators/commissioners don’t use common sense in defining “traveling employees,” he should quickly fire them.

·         The IL State Chamber is on record to OPPOSE because they feel it is codification of current case law locks in the expansion of liability for employers imposed by the IL courts over the past decade. They have alternative compromise that recognizes circumstances where an employee traveling to perform their job duties and injured is compensable.

 Neutral risk--adds that “accidental injuries resulting from a neutral risk arise out of and in the course of the employment if the employment quantitatively or qualitatively contributes in any way to the neutral risk.”

·         As I advised last week, I have no idea what this provision might mean or how our activist and very liberal reviewing courts would handle it. Quantifiable/Schmantifiable!--I have no idea what might be behind “Door Number One” if we open this legislative can of worms, so why even go there?

·         The IL State Chamber is on record to OPPOSE because codification of current case law locks in the undermining by the courts of the “neutral risk” doctrine which has been case law for nearly 100 years. Neutral risk requires the employment to provide a risk greater than what the general public is exposed to. The State Chamber has alternative language for the IL Senate to consider.

Intervening cause--creates a new “intervening cause” standard that codifies current case law regarding causation. It provides “an intervening cause breaks the chain of causation, any subsequent consequence flowing from the intervening cause is not compensable under this Act. An intervening cause is a cause that completely breaks the chain of causation.” It also provides that: “if an employee, who sustained an accidental injury compensable under this Act which results in a responsibility to pay compensation on the part of the employer, subsequently sustains another injury due to his or her own intentional conduct or negligence that accelerates, aggravates, or worsens the effects or disability of the first injury in any manner, regardless of whether or not he or she has fully recovered from the effects of the first injury, the employer's responsibility to pay compensation to the employee or his or her dependents shall not be increased due to the effects or disability resulting from the subsequent injury.” 

·         Again, we have no idea what and how the reviewing courts and Commission will handle what appears to be well-intentioned legislation.

·         The IL State Chamber is on record to OPPOSE, indicating codification of current case law locks in the expansion of liability for employers imposed by the IL courts over the past decade. They have alternative compromise legislation that strengthens requirement of the injury or illness arise out of and in the course of employment.

IL WC Medical Fee Schedule Reductions—the sponsor indicates there are new provisions that will be presented for consideration. The intent is to revise those services identified by WCRI as exceptionally higher than other state fee schedules and targeted as presented in previous versions provided by Governor Rauner.

·         I support “hard” or unchangeable fee schedule reductions in appropriately selected medical services. We aren’t truly knowledgeable about the details but hope the sponsors hit the target they are shooting at.

·         The IL State Chamber is on record to SUPPORT these provisions when finalized and following their review of the new language.

IL WC Drug Formulary--the Commission, in consultation with the Workers' Compensation Medical Fee Advisory Board, shall promulgate by rule an evidence-based drug formulary and any rules necessary for its administration. Prescriptions prescribed for workers' compensation cases shall be limited to those prescription drugs and doses on the closed formulary

·         I strongly support any common sense limitations on drug prescriptions in IL WC claims.

·         The IL State Chamber is on record to SUPPORT this legislation.

Statewide Average Weekly Wage Freeze—this provision freezes the SAWW for four years beginning July 1, 2017 the maximum weekly wage rate at $755.22

·         I feel this would provide savings to IL employers and local governments. It wouldn’t be a dramatic savings but any savings is better than none.

·         The IL State Chamber is on record to SUPPORT the provision for the WC savings it proposes for their members and others.

AMA Guidelines for Determining Permanency--:this legislation allows AMA guideline submission for impairment rating for PPD benefit and requires the IL WC Commission to consider an AMA impairment rating, if one is presented.

·         I consider the debate over impairment rating evidence to be something of a red herring in the IL WC reform process. If the Arbitrators and Commissioners are told to consider ratings they will do so or face early retirement.

·         The IL State Chamber is on record to OPPOSE, as they believe additional strengthening is needed due to the Continental Tire decision. They feel the law should require the Commission when considering an impairment rating make the determination by a preponderance of credible evidence  

Credits for Body as a Whole Awards—this legislation provides credits of prior injuries under 8 (d) (2) for “body as a whole” injuries. Provides for a definition of “same part of a spine.”

·         I consider this a common sense change that implicitly “reverses” the liberal and activist decisions by our IL reviewing courts that would allow someone to be adjudicated 200% or 300% (or more)  disabled!

·         The IL State Chamber is on record to SUPPORT, but they feel the legislation proposed needs correcting language.

Shoulder to be a part of the arm and Hip to be part of the leg—this provision reversed the Will County Forest Preserve v. IWCC Appellate Court ruling regarding the shoulder not being part of the arm & establishes one’s hip is part of the leg returning IL WC to anatomical correctness.

·         With respect to our judiciary, I personally feel it is a shame we have to pass legislation and waste time returning IL WC to common sense principles.

·         The IL State Chamber is on record to SUPPORT as this provision returns 100 years of legal precedence ruling the shoulder is part of the arm which courts took away under the Will County Forest Preserve decision in 2012.

Waiting period at start of TTD—this provision revises current 3 days to 5 working days the period for temporary total disability begins and revises from the 4th day to 6th day for the beginning of weekly compensation payments for TTD begins

·         As I advised this will provide some savings but not much.

·         The IL State Chamber is on record to SUPPORT the new law but confirms it is a minor impact on WC savings for employers.

Wage differential changes for professional athletes--this legislation provides a wage differential cap for professional athletes…

·         I don’t have a problem but the effect/scope is very limited.

·         The IL State Chamber is on record to SUPPORT but they confirm there is no savings impact for employers not employing professional athletes.

Physical Therapy, Occtherapy and Chiro visit limits—the legislation limits chiropractic, occupational therapy, or physical therapy visits to up to 24 visits per claim.

·         This reform would cure a common complaint of all of our defense clients across the state. I think the IL State Chamber’s concerns below are spot-on and make more sense than my view because the “limit” might cause every claimant to want to blow the insurance carrier or self-insured employers money to get all 24 visits provided. I am also sure all Claimant attorneys would start coaching/telling doctors and injured workers to prescribe and get all 24 visits.

·         The IL State Chamber is on record to OPPOSE the new provision as it would entitle an injured employee up to 24 visits per claim. They support requiring such providers to provide services that are medically necessary, reasonable, are based on medical evidence and meet nationally recognized peer review standards of care and guidelines.

IL WC System Changes

Arbitrator rotation: IWCC Chairman determines arbitrator assignments rather than 2-year rotation.

·         I don’t feel this needs legislation and the Chairman should simply follow existing law.

·         The IL State Chamber is on record to confirm the proposal needs revision. They have language to preserve original purpose of protecting injured workers and employers from arbitrators who are unfair in their decisions or become too “comfortable” with claimant attorneys in their call area.

Arbitration status calls go electronic/online—this provision allows parties or their attorneys may appear by telephone, video conference, or other remote electronic means as prescribed by the IL WC Commission

·         I am concerned this is going to turn into non-lawyers practicing law but we will have to see. I don’t feel we can stop the intrusion of electronics/online services into our lives.

·         The IL State Chamber is on record to SUPPORT the provision because it should save some costs for their members and potential members.

IL WC Appeal Bond requirement—this provision removes WC appeal bond requirement for State of Illinois and its agencies.

·         I don’t see this as much of an impact for your business or mine.

·         The gurus at the IL State Chamber feel all IL employers with viable WC insurance or self-insured state should be able to waive/save the additional cost of an unneeded and expensive IL WC appeal bond.

IL WC Fraud--this provision adds to the Criminal Code criminal penalties for acts of fraud that are listed in the Workers’ Compensation Act. The intent is to eliminate the response from certain states attorneys that will not prosecute workers’ compensation as they view them simply as a civil matter. The provision also revises penalties for fraud in the WC Act.

·         I support it but don’t feel it is much of a change.

·         The IL State Chamber is on record to SUPPORT the change.

More penalties on IL employers—this provision adds new penalties on employers but does not improve medical care for injured workers, provide more timely benefits to injured workers or reduce friction in the system.

·         I don’t see any reason for these proposed reforms and don’t feel they will improve anything.

·         The IL State Chamber is on record to SUPPORT changes which improves the system for both legitimately injured workers and employers.

Electronic medical billing requirement in IL WC—there are two new electronic billing penalties: IWCC penalty of 1% per month interest if a complete electronic bill is not paid or objected to within 30 days and a DOI penalty of $1,000 up to $10,000 for simple failure to comply with the electronic claims acceptance and response process.

·         As we indicated above, IL WC is inexorably moving to electronic medical bill submission and processing.

·         The IL State Chamber is on record to OPPOSE, as they have alternative compromise that you can and should ask them about.

 Requirement for Rapid Medical Authorization of Proposed/Recommended WC Care—this provision addresses the Hollywood Casino v. IWCC decision establishing 19K penalties for unreasonable or vexatious delay of authorization of medical care.

·         We hate this concept and feel the Arbitrators and Commissioners should use common sense in handling slow or non-authorization of important medical care.

·         The IL State Chamber is on record to OPPOSE, as they have alternative compromise language that utilizes Section 19 lprovisions which was part of SB 2901 approved by the House Democrats on January 9, 2017.

Finally

WEAR Commission: Creates WC Edit, Alignment, and Reform Commission composed of legislators, petitioner attorneys and respondent attorneys for the purpose of recodify the Act without changing substantive law or established case law. Commission report by 1/1/18

·         I consider this another do-nothing blue-ribbon panel—the tasks described could be taken up by the nine-member IL WC Commission or the IL WC Commission Advisory Board or the IL WC Medical Fee Schedule Advisory Board or….

·         The IL State Chamber is on record to confirm they are NEUTRAL, as the provision, as it provides no help to employers

Self-insurer reporting—this provision requires more reporting to IWCC and DOI for self-insurers. Protection of individual employer proprietary information and requires reporting of aggregate data.

·         I don’t see the reason for even more reporting and regulation.

·         The IL State Chamber is on record as NEUTRAL as the legislation adds additional government burdens on self-insured employers without any clear benefit for employers.

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Synopsis: The Next Million-Person March for U.S. and Illinois—Will There Ever Be Gov’t Budget Cuts to Match Tax Income?

Editor’s comment: I admit this isn’t precisely a work comp issue but in the aftermath of the inauguration of our new omni-stressed President and the anniversary of the second year of the first term for Governor Bruce Rauner, I wanted to send my readers a simple message to take to your federal and state elected officials. I wish we could get a million people to again march on Washington and Springfield for this crucial issue.

You will note both the U.S. and State of Illinois governments are now being run by rogue but highly effective businessmen who have used millions of their personal money to attain office. Neither of them have any political history or background to speak of. They are both came into political office owing nothing to anyone’s brother’s-cousin’s-uncle. It is my hope they will start to use that status to fight for our country’s biggest political issue that “trumps” all other issues—getting our country and this nutty state out of red ink.

The other interesting thing both the new President and our entering-his-third-year Governor have in common is they are both running governments with substantial and spiraling debt. For both federal and IL state governments, incoming taxes don’t even slightly match ever-rising government spending at all. I can only grin to remember how popular former President Barack Obama was while in office despite the fact every year in office the government he ran borrowed and spent over a trillion dollars they didn’t have. In my view, it is easy to be popular when you are running a credit card government on money that won’t be paid back by our great-grandchildren for decades to come.

I have enormous respect for my cousins, friends and readers who traveled to and participated in the Women’s March on Washington over this past weekend. It is my hope our new President and all government officials across the country carefully consider the ardent message presented. It is also my hope another message be sent to the same federal and state officials—please, please, please start cutting government budgets across the board! I am sure the federal government has unnecessary and duplicative jobs that could be rapidly eliminated to save billions. I wish our crabby new President would ask some of the best management consulting firms in the United States to volunteer their time and computers to let him know where to start chopping heads and cut the growing massive budget deficit.

In Illinois, we are being asked to agree to rising taxes and a new sugar-soda drink tax and billions in new borrowing. In my view, Governor Rauner has a mildly skewed view of the importance of workers’ comp reform and is supporting some of the compromise IL WC reforms you can review below. What I haven’t seen or heard Governor Rauner, Senator Christine Radogno and other Republican leaders demand is Across-the-Board Budget Cuts or what I call ABBC for IL state government. In my view, if you are going to hike my taxes and your taxes and add more debt, you have to attack/manage the patent and clear reason for those higher taxes and new debt which is inefficient and duplicative state government. For just a couple of easy IL gov’t cost cutters, how about:

·         Getting rid of the do-nothing job of Lieutenant Governor?

·         Consolidating the obviously duplicative offices of the IL State Treasurer and the IL State Comptroller that do exactly the same thing?

·         Getting rid of the silly Secretary of State Police Dep’t that doesn’t “police” anything and could be performed by the IL State Police?

·         Getting rid of the nutty “remote offices” for many state agencies that create do-nothing jobs that aren’t needed?

·         Consolidating 88 IL State agencies into 60 or 40 state agencies to rid ourselves of the multiple fiefdoms created by having so many disparate agencies?

·         Bring back totally and permanently disabled state workers getting lifetime welfare-like work comp benefits, to require they be trained and given top priority to return to sedentary and light jobs when such positions open up? Do we have to pay for injured cops, firefighters or prison guards with an operated shoulder/spine for the rest of their lives when they are allowed to get jobs in private industry and make thousands on top of their fake “disability” pensions?

There are literally hundreds of other ways our federal and state governments could cut budgets and provide more value to taxpayers. It isn’t going to happen until we start telling our leaders to do it. Let’s march!!!

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Synopsis: Happy Valentine’s Day from the Gang at KCB&A!!

Editor’s comment: Okay, so it is a little early but, like the Boy Scouts—Be prepared!