6-12-2017; In Just 18 Days--Two Major Changes for IL WC, Claims and HR; Shirley Ryan Abilitylab Up and Rising and more

Synopsis: In Illinois WC, Math on Wage Loss Differential under Section 8(d-1) Has Forever Changed as the Cook County Minimum Wage “Ramp” Inexorably Rises.

Editor’s comment: You can’t ignore the ever-rising Cook County minimum wage ramp when calculating wage loss differential claims in Illinois WC. We assure our readers in claims, risk management, brokers and HR, the landscape has changed in dealing with these wacky and potentially explosive claims. I am also unsure what our Arbitrators and Commissioners should do in writing a decision for a worker who does or can find a ‘minimum wage’ job that is certain to go up on an annual basis for the rest of their career.

If you don’t understand how expensive the exposure in a high-rate IL WC wage loss differential claim can be, I assure you a 25 year old construction worker who is given max rate wage loss differential benefits today, could receive $2,350,813.92 by the time they reach the end of the benefit at age 67. I think that is a staggeringly high benefit. I am also sure the Claimant bar wants to make every IL WC claim into a wage loss claim to try to squeeze the highest possible settlement out of the insurance carrier or self-insured employer.

We can all be sure in eighteen days on July 1, 2017, the Cook County Minimum Wage will be $10 per hour. What I am calling a “ramp” continues in a year when our County’s Minimum Wage rises to $11 on July 1, 2018 and to $12 in July 2019. It hits $13 an hour in 2020, and subsequent and guaranteed annual increases will be at the rate of inflation, not to exceed 2.5 percent. I am not aware the annual increases will ever actually end—if you know the legislation better than I and that is wrong, please let me know.

The silly people who put the COLA increases into the Cook County minimum wage calculation, limited to 2.5% a year, are similar to the kooky simpletons that installed the 3% annual compounded increase in IL fake gov’t pensions that will cause those fake and defunded pensions to double every 22-23 years or so. If the minimum wage for this nutty County goes up at 2.5% a year (and the new law provides for such increases) it will double in 28 years! While that sounds like a long time, we can all assume this County’s minimum wage is now on an eternal ramp that won’t ever stop rising unless the law is changed.

Please note this math—if the Cook County minimum wage goes up at the 2.5% limit each year.

ü  Ten years from now in 2027, the minimum wage will be $16.64 per hour.

ü  In year 15 or 2032, the minimum wage will be $18.83 per hour.

ü  In year 20 or 2037, this County’s minimum wage will be $21.30 an hour.

ü  In year 25, the minimum wage will be a whopping $24.20 an hour!

You can’t make this stuff up folks—it is simple and currently unchangeable math.

How the WC Wage Diff Math Will Change

If Claimant was making $30 per hour and is now making minimum wage of $10 per hour, they would receive 2/3 of the difference or $533.33 a week as their supplemental benefit in the first year. The next year, the benefit would be based on the new minimum wage of $11 an hour and the math would provide $506.67 a week. The third year, the math would reduce the benefit to $480.

As the minimum wage would go up, the IL WC wage differential benefit would typically go down.

Will the Cook County Minimum Wage Ramp Change IL WC Wage Loss Claims Arising in Other Counties Across Illinois?

The short answer is no one can be sure but the closer Claimant lives to Cook County, the stronger the chance the employer could demonstrate the worker could get a much higher minimum wage “replacement” job than in Galesburg or Bloomington.

How Wage Loss Diff Claims Used to ‘Work’

Most of the “permanency” or impairment sections of the IL WC Act assume Petitioner has returned to work within their capabilities at a similar rate of pay. Section 8(d-1) allows a Petitioner, at his or her option, to elect to receive, in lieu of all other permanency benefits, 2/3 of the difference between what he would be earning in the job he was working when injured and the average of what he/she is able to earn in a new and alternative job.

This benefit was generally considered to continue until Petitioner would retire from the work force (the words of the statute are: “for the duration of his (her) disability”). For claims occurring on or after September 1, 2011, wage loss was capped or ended at the point the worker reaches age 67 or for at least five years. This amendment was considered a solid savings for Illinois employers.

Wage loss differential benefits are routinely confused with temporary partial disability benefits which are available in some states. Illinois has no provision for a Petitioner in a modified duty job who temporarily receives lower wages but expects to return to a higher paying job in the near future.

Once having opted for wage differential benefits, all other forms of permanent partial benefits should be waived based upon the statutory fiat in Section 8(d-1). Some petitioners’ attorneys claim this benefit should be paid as ‘maintenance’ but the new concept of temporary partial disability now applies.

Wage differential benefits were the first of the benefits somewhat amenable to present value calculation. The new math on a rising minimum wage ramp is going to make the present value calculation much more challenging. If any of our readers can figure out a reasonable way to re-calculate, as the Cook County minimum wage rises, please send it along.

The long and the short of the problem is no one expected the new minimum wage “ramp” that would insure moderate wage jobs for some workers would rise on an annual basis. We are all going to have to deal with the new math.

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

Synopsis: Changes to Cook County and the City of Chicago’s Earned and Paid Sick Leave Ordinance! Are You Compliant? Research and written by Lilia Picazo, J.D. 

Editor’s Comment: Things are also going to change for paid sick leave in 18 days on July 1, 2017 when Cook County and the City of Chicago’s earned sick leave ordinances will go into effect. A draft of the City’s ordinance was issued on May 22, 2017 and is open for public comment through June 16, 2017. Below are key components of the Cook County and the City of Chicago’s earned sick leave ordinances.

Who does the ordinance apply to?

Employees:

According to Cook County and City of Chicago Paid Sick Leave Ordinance, any employee is eligible for earned sick leave if:

·         The employee works at least 80 hours within a 120-day period; and

·         The employee performs at least 2 hours of work in Cook County during any 2-week.

Employers:

The City of Chicago requires that an employer maintain a “business facility” or be subject to the City’s business licensing requirements. Cook County requires only a “place of business” to fall under the umbrella of their Ordinance.

How do the ordinances work?

Accrual Period and Carryover Policy:

·         Employees begin to earn sick leave either on the first calendar day after the start of their employment or on July 1, 2017 (the effective date of the Ordinance), whichever is later.

·         Employees can use their earned sick leave no later than 180 days from the first calendar day after the start of their employment or July 1, 2017.

·         Employees will accrue one hour of earned sick leave for every 40 hours worked in Cook County. Employees can earn up to 40 hours of sick leave per year.

·         Covered employees who are exempt from overtime requirements are assumed to work 40 hours each workweek for purposes of the Ordinance. If the employee works less than 40 hours in a workweek, the 12-month accrual period will be based on the hours in the employee’s normal workweek.

·         Non-FMLA employees may carry over half of the unused earned hours or up to 20 hours in the following year.

·         Where an employer is subject to the Family and Medical Leave Act, employees eligible for FMLA are entitled to additional carryover benefits.

·         It is important to note there is no payout of accrued Earned Sick Leave at termination.

Using Earned Sick Leave:

·         An employee can use paid sick leave for their own illness or injury, or medical care;

·         An employee can use paid sick leave to care for a member of his or her family’s illness, injury or medical care;

·         An employee can use the leave if the employee or a family member of the employee is a victim of domestic violence, sexual violence or stalking; or

·         An employee can use the leave if the employee’s place of business, childcare facility or school is closed by order of a public official due to a public health emergency.

Notice to Covered Employers:

·         An employer may require up to 7 days’ notice if the need for earned sick leave is reasonably foreseeable.

·         If the need for earned sick leave is not foreseeable, an employer may require an employee to give notice as soon as it is practicable via phone, e-mail or text message.

·         Notice is waived if the employee is unconscious or medically incapacitated.

·         If the leave is covered under FMLA, notice shall be in accordance with FMLA provisions.

·           If an employee is absent or uses earned sick leave for more than three consecutive workdays, an employer may require the employee provide certification the use for earned sick leave was authorized under the ordinances.

Notice to Employees:

·         Employers must post notice of an employees’ rights of earned sick time in a clear and visible place at each facility where a covered employee works that is located within the geographic boundaries of Cook County.

·         Employers must also provide employees at the commencement of employment written notice advising of the employees’ rights to earned sick time under the Ordinance. 

·         The Commission will make available a form notice of earned sick time rights that satisfies the requirements of the Ordinance.

Enforcement:

Employers are prohibited from retaliating against or taking any adverse action against employees who in good faith exercise or attempt to exercise his or her rights under the ordinances. If an employer violates the ordinances, employees will have a civil cause of action against employers to recover damages equal to three times the amount of unpaid earned sick time denied as a result of the violation, plus interest and reasonable attorney’s fees.

As the effective date approaches, we encourage our Illinois and City of Chicago readers to carefully review and update their current policies to guarantee compliance with Cook County and the City of Chicago’s new policies. 

We note there is a growing list of municipalities who have opted out of Cook County’s Earned Sick Leave Ordinance and we expect this number will rise.   

This article was researched and written by Lilia Picazo, J.D. You can reach Lilia at any time for questions about workers’ compensation and other workplace matters at lpicazo@keefe-law.com.

Synopsis: The Rehabilitation Institute of Chicago Is No More—Say Howdy to the Shirley Ryan Abilitylab!

Editor’s comment: About three months ago, RIC or the Rehabilitation Institute of Chicago became known as the Shirley Ryan Abilitylab and opened the doors to its cutting-edge research hospital of the same name.

Science is now at a boiling point, with the convergence of disciplines and discovery — in computer capability, sensor technology, microbiology, pharmacology, material science, brain imaging and tissue engineering," said Joanne C. Smith, MD, president and CEO of the Shirley Ryan Abilitylab. "With the design of our new hospital, we're literally taking down walls to harness this moment and facilitate guided 'collisions.' With direct, ongoing exposure to a clinical environment, scientists will conduct research with greater intention, based on the needs of patients that they themselves observe. This model of translational research will change the way people work and the way patients get better, increasing the likelihood that promising research ideas will be converted into viable medical treatments.

Radically Shifting Paradigm

Headquartered at 355 E. Erie Street in Chicago, the $550 million, 1.2-million-square-foot Shirley Ryan Abilitylab is the first-ever "translational" research hospital in which clinicians, scientists, innovators and technologists work together in the same space, 24/7, surrounding patients, discovering new approaches and applying (or "translating") research real time.

"The Shirley Ryan Abilitylab is the only hospital in the world where doctors focused on solving patient challenges now work side-by-side with scientists focused on finding cures," said Jude Reyes, chairman of the Board of Directors for the Shirley Ryan Abilitylab. "The result is focused discovery and innovation on behalf of patients, who will be poised to achieve their best possible recoveries here."

The Shirley Ryan Abilitylab introduces its revolutionary model of care through five Innovation Centers focused on areas of biomedical science with extraordinary promise:

1.    Brain Innovation Center

2.    Spinal Cord Innovation Center

3.    Nerve, Muscle & Bone Innovation Center

4.    Pediatric Innovation Center

5.    Cancer Rehabilitation Innovation Center

Central to applying research during care are working labs in which interdisciplinary teams develop new research and insights to help patients gain more function, achieve better outcomes and enjoy greater ability and independence. Each lab has a unique configuration based on a targeted function and the type of experimentation taking place therein:

      Think + Speak Lab: Treatment for fundamental brain functions — arousal, lucidity, awareness, thinking, communication, perception, memory and learning.

      Legs + Walking Lab: Improvement of locomotion, gait and walking via trunk and pelvis stability; positioning and control of the hips, knees and ankles; as well as stepping and propulsion.

      Arms + Hands Lab: Improvement of hand function and movement, body and upper-limb coordination, strength, reaching, and hand/finger control.

      Strength + Endurance Lab: Improvement of stamina and resilience, complex motor and endurance activities, coordination, and higher-level activities of daily living (e.g., cooking, housekeeping, exercise, sports).

      Pediatric Lab: Treatment for all of the above, with a customized approach for the developing brains, bodies and conditions unique to children (infants to teens).

State-of-the-Art Space

As the largest freestanding rehabilitation hospital in the United States, the Shirley Ryan Abilitylab touts:

Ø  1.2 million square feet, of which 800,000 are dedicated to clinical/research

Ø  242 private patient rooms, with opportunity for future expansion

Ø  Comprehensive outpatient offerings with four times greater space

Ø  MRI and CT services in-house (avoiding external referrals)

New branding was reflected at the Erie Street flagship hospital in March 2017 and, shortly thereafter, at the Shirley Ryan Abilitylab's 40+ sites of care across Illinois and Indiana.

The Shirley Ryan Abilitylab has strong ties to the IL and U.S. WC Community—the venerable Arthur O. Kane was a lifetime trustee and donated the Arthur Kane Out-Patient Center to the institution.

About the Shirley Ryan Abilitylab

The Shirley Ryan Abilitylab, formerly the Rehabilitation Institute of Chicago (RIC), is the global leader in physical medicine and rehabilitation for adults and children with the most severe, complex conditions — from traumatic brain and spinal cord injury to stroke, amputation and cancer-related impairment. The Shirley Ryan Abilitylab expands and accelerates leadership in the field that began at RIC in 1953 — its care and research designated the "No. 1 Rehabilitation Hospital in America" by U.S. News & World Report every year since 1991. Upon opening in March 2017, the $550 million, 1.2-million-square-foot Shirley Ryan Abilitylab became the first-ever "translational" research hospital in which clinicians, scientists, innovators and technologists work together in the same space, surrounding patients, discovering new approaches and applying (or "translating") research real time. Applied research focuses particularly in the areas of neuroscience, bionic medicine, musculoskeletal medicine and technology transfer. This unique model enables patients to have 24/7 access to the brightest minds, the latest research and the best opportunity for recovery.

For more information, go to their website at http://www.sralab.org

Synopsis: Join Shawn R. Biery, J.D., MSSC for a nationally broadcast Webinar July 17th, 2017 3:00 PM to 4:15 PM ET

Editor’s comment:  Workers’ Compensation: Return to Work Issues & Strategies

Can't attend live? By registering, you will be able to view the course live, view a recording at any time for 12 months, or both. This webinar will provide an overview of strategies and tips for reintegrating injured workers to production. In addition, the course will also provide tools for effectively managing claimants’ expectations and implementing protocols for claim management.

Upon completion of this course, you will be able to:

• Analyze options which can be utilized on a claim by claim basis to set targets for return to work
• Understand avenues to develop relationships with key stakeholders to assist in management of claim issues with focus on rapid return to work
• Set targets for accommodated and full duty return to work for injured workers
• Determine more specific strategies for your industry to minimize lost time claims
• Describe HIPAA compliance issues

Receive a 35% discount for being a friend of the firm by using the promo code: SPKR35

You can sign up to attend at:

http://clearlawinstitute.com/shop/webinars/workers-compensation-return-to-work-issues-strategies/

Please contact Shawn at sbiery@keefe-law.com with any questions or to find out how to have one of the KCBA attorneys provide a presentation to your office!

Workers’ Compensation in Illinois is complicated . . . Do you know everything you need to know about the Illinois WC system? Attorney Jim Egan of Keefe, Campbell, Biery & Associates will begin with a review of the basics of Workers’ Compensation in Illinois, including benefits, the Workers’ Compensation Commission, and handling a claim of injury from the beginning to end. He will then analyze and discuss in-depth important topics such as Temporary Total/Partial Disability, Nature and Extent of Injury, Wage Loss Differential, Discovery, Liens and related claims against WC benefits in Illinois, Surveillance, Retaliatory Discharge and How to Handle WC Death Claims.

The final section of the day will include a number of essential factors to be considered when you are dealing with any workers’ compensation claim. You will receive helpful information on pushing your claim targets, using real time examples. Keeping in touch with your workers and how to drive claim closure are key, so these will also be discussed.

This is a not to be missed workshop for anybody who handles Workers’ Compensation claims in Illinois.

Registration Information:

Tuesday, June 20, 2017

10:00 am - 4:00 pm

Holiday Inn Express, 1000 Plummer Drive, Edwardsville, IL 62025

Early Bird - (For everybody) - Sign up before June 10 - $249.00

Member (For members of the Illinois Chamber & local chamber partners) - $299.00

Retail Price - $349.00

6-5-2017; Springfield Scorecard--Nothing But More Debt-Uncertainty; Spine Problems Attributed to Fall as Aggravation of Existing Condition; Important Ruling about Barring Recording at Work and...

Synopsis: Springfield Scorecard—Nothing Happened But We Can Expect Spiraling Debt and Rampant Uncertainty.

Editor’s comment: As a quick note on the 2017 Spring Legislative Session for the IL General Assembly, they couldn’t basically agree on just about anything of value that might be considered or signed into law by Governor Rauner.

On the WC front, as we reported last week, the IL Senate was considering House Bills and the House was considering Senate Bills and they basically passed a bunch of hooey everyone agrees will quickly be placed into the legislative scrap-heap. As we have repeatedly advised our readers, if Governor Rauner wants lower WC costs, all he has to do is tell the hearing officers to make it so. He doesn’t need any of the comedians in our General Assembly in Springfield to cut these costs.

On other fronts, we are not aware of anyone truly taking on the 800lb. Gorilla—IL State Government’s unfunded and sometimes unfundable fake government pensions that are now at least $130B in debt. A recent study indicated there are about 480,000 IL gov’t pensioners in Illinois who collect $17B a year from taxpayers. The cost of investing the fake gov’t pension dollars appears to greatly exceed the pension investment returns! Whose Brother’s-Cousin’s-Uncle gets that wacky investment deal?

Senate President Cullerton has a solid and well-thought plan that would save $1B a year on spiraling gov’t pension costs. As you can imagine, every State union is now secretly fighting it with emails and robo-calls. With respect to Senate Pres. Cullerton who is a veteran and hard-working legislator, we vote pay off the current pensioners and quickly stop the entire fake pension process. Please, please stop giving away billions of our tax dollars on fake gov’t pensions that have never been properly funded and never will be. Consider 401K programs like the rest of our entire country does.

We want our readers to understand the Illinois/Chicago anomaly—they are both approaching “bankruptcy” when neither can actually end up in Federal Bankruptcy Court—federal law would have to change to allow a State to declare bankruptcy. Basically, the State of Illinois can stiff its creditors indefinitely without ever having to worry about it.

At present, the State of IL has about $14.5B in unpaid bills with a carrying cost that is about $800M a year. That number continues to skyrocket and should hit something like $25B by the time of the next state-wide election.

As silly as this all might seem, it is tragic for every one of our Illinois readers and basically anyone in this sorry State. Our taxes are unquestionably going to have to skyrocket and our legislators are certain to levy lots of new taxes on things that have never been taxed before. While we don’t see the changes to the IL workers’ compensation to be dramatic, what may be dramatic is the out-flow of jobs and citizens to other states that has already started and may accelerate sharply in the next 2-3 years. Please don’t shoot this messenger but be forewarned and forearmed.

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

Synopsis: Challenging WC Causation Ruling Finds Compensability Following Fall-Down. What would be the outcome in your state?

Editor’s comment: The Illinois Appellate Court, WC Division ruled last a worker’s ongoing back problems were related to her on-the-job accident, even though no clear objective medical evidence confirmed regression in her medical condition after she fell on a patch of ice at work.

It is a well-established principle that “(a) chain of events which demonstrates a previous condition of good health, an accident, and a subsequent injury resulting in disability may be sufficient circumstantial evidence to prove a causal nexus between the accident and the employee's injury,” the decision said. The unanimous majority also said the same concept holds true even if the worker was not in “a previous condition of good health” prior to the accident. The Appellate Court explained the “chain-of-events” principle is “nothing but a common-sense, factual inference” not a statement of law. So long as a worker was in a better condition before her injury than after, the decision said, “it is plainly inferable that the intervening accident caused the deterioration.”

In Petitioner Schroeder’s case, the Court noted, it was undeniable she had significant back problems before her December 2013 accident, but it was also undeniable that she was no longer able to work as a truck driver after her fall. The Court ruled the IL Workers’ Compensation Commission could draw a reasonable inference her fall was the cause of her continuing disability.

Claimant Schroeder had worked as a truck driver for Swift Transportation for a few months in 2005, and she was re-hired in May 2013. During the interim, Schroeder started collecting Social Security disability benefits for fibromyalgia. She also had two back surgeries, and her doctor recommended a third. Although Schroeder declined the surgery, she was still able to pass the physical exams required by Swift and by the Illinois Department of Transportation in order to return to work as a truck driver.

The record indicates Schroeder worked full time, living out of her rig and driving all over the country.

In December 2013, Schroeder slipped on a patch of ice while making a delivery to a Wal-Mart distribution center. She landed on her back. We do not see any contrary evidence indicating this event didn’t occur. Following the fall, Claimant Schroeder never returned to work for Swift, and the company eventually terminated her. Meanwhile, Schroeder continued to receive treatment for her back. She underwent surgery in April 2014.

The Arbitrator later found Schroeder’s fall-down at work was a compensable accident, and she was entitled to benefits for the temporary aggravation of pre-existing back problems caused by her fall. However, the Arbitrator further opined Schroeder’s need for the 2014 surgery hadn’t been caused by that accident. Her doctor recommended the same procedure in 2013 and no objective medical evidence disclosed a marked change in Schroeder’s medical condition after the fall.

The Illinois Workers’ Compensation Commission panel reversed the Arbitrator’s decision. Since Schroeder had been able to work full time before her fall and wasn’t able to work afterwards, the Commission panel reasoned the “chain-of-events” principle established Schroeder’s condition of ill-being related to her accident.

Swift appealed the Commission panel’s decision. McLean County Circuit Court Judge Paul Lawrence reversed the Commission. He determined none of the essential facts were disputed, which allowed him to use a “de novo” standard of review, giving no deference to the Commission panel’s findings. From his review of the evidence, Lawrence concluded Schroeder’s present condition of ill-being was not related to the December 2013 fall.

The IL Appellate Court was not persuaded by Judge Lawrence’s approach, finding the “manifest weight of the evidence” supported the Commission’s decision on causation. The Appellate ruling said it didn’t matter that Schroeder wasn’t a picture of health before she was hurt, because Illinois workers’ compensation law allows a claimant with a pre-existing condition a recovery if the job aggravates or accelerates that condition.

The court said that, “if a claimant is in a certain condition, an accident occurs, and following the accident, the claimant’s condition has deteriorated,” then it is reasonable factual inference that the accident was the cause of the “deterioration from whatever the previous condition had been.”  

While the court acknowledged that there was conflicting medical evidence as to the cause of Schroeder’s back problems, the court said it was up to the commission to resolve such conflicts. The court said there was a “clear basis in the record” for the Commission to disregard the absence of changes in objective medical tests, since Schroeder’s doctor testified there is not always a clear correlation between objective changes and symptomatic changes, and the absence of the former doesn’t necessarily mean the latter did not occur.

The main issue I have with challenging compensability is the unquestioned accident and the clear disintegration of Claimant’s condition thereafter. I can see why the Arbitrator and Circuit Court judge denied causation but the final decision is supposed to come from the IWCC panel.

I am wondering how a claim like this might be viewed in your state—please let me know your thoughts, on or off the record.

Synopsis: No Recording at Work Ban – Too Broad To Pass Federal Muster. Thoughts and Analysis by Lindsay R. Vanderford, JD. 

Editor’s comment: On June 1, 2017, the Federal 2nd Circuit Court of Appeals upheld the NLRB’s ruling a Whole Foods Market, Inc. policy barring employees from making audio or video recordings at work is unlawful because it could interfere with activity protected by Section 7 of the NLRA.

In 2015, the National Labor Relations Board used the standard adopted under Lutheran Heritage Village-Livonia to review a challenge to the Whole Foods’ recording policy. In considering employees’ rights under Section 7, the NLRB determined the policy was too overbroad. Section 7 guarantees employees the right “to engage in… concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.

On Thursday, a unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals affirmed that ruling, stating it was reasonable for the NLRB to have considered the no-recording policy to be so broad as to be construed to prohibit all relevant employees from “recording employee picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting   and   publicizing   discussions   about   terms   and   conditions   of   employment,   or   documenting inconsistent application of employer rules without management approval.” Whole Foods Market Group Inc v. NLRB, 2nd U.S. Circuit Court of Appeals, No. 16-0346, 4. The Court reminded everyone these are all protected activities within Section 7 under the umbrella of collective bargaining/mutual aid/protection.

Under the 2004 Lutheran Heritage standard, the NLRB determines whether a rule will constitute a violation if it meets any of the following three tenets:

(1) if employees would reasonably construe the language to prohibit protected activity,

(2) if the rule was promulgated in response to union activity, or

(3) if therulehasbeenappliedtorestricttheexerciseofprotected rights.

The Court found it reasonable for the NLRB to have considered the no-recording policy to meet the first of the three and thus to violate protected employee rights.   

In court filings, Whole Foods argued its policy was meant to encourage employee communication in the workplace, and not meant to target protected activity. The Court disagreed. 

Whole Foods attempted to challenge the legality of the Lutheran Heritage test, but failed to do so until the case had reached the appellate level. As such, the court rejected that challenge as forfeited

The NLRB has considered other recording bans under the Lutheran Heritage standard, and the Court made it clear passing muster was possible. The final footnote of the decision reads:

That is to say not every no-recording policy will infringe on employees’ Section 7 rights. It should be possible to craft a policy that places some limits on recording audio and video in the work place that does notviolatetheAct. WholeFoods’ interestsinmaintainingsuchpoliciescanbeaccommodatedsimplybytheir narrowingthepolicies’  scope. See FlagstaffMed.  Ctr., Inc. (holdingthat no photographypolicywaslawfulwherehospitaldemonstratedpatientprivacyinterest);  TargetCorp.,  359N.L.R.B. No. 103, slip op. at 2–3 (Apr. 26, 2013) (holding that reporting policy of unknown visitors in parking lot was lawful where rule was an employee safety policy).

Though the challenge to the Lutheran Heritage standard went unconsidered, its future may hang in the balance as well. Not only may the next employer challenge its legality at the administrative law level thus ensuring its consideration upon appeal, but inevitably the political tides are turning.

In its appeal, Whole Foods alleged under former President Barack Obama, the NLRB expanded its definition of “reasonably” so that practically any policy could be struck down. Further supporting filing argued the Lutheran Heritage standard upset the balance between management and employee rights the NLRA was designed to ensure. Other businesses agree.

President Trump is scheduled to fill the two vacancies on the Board, and one would expect this to result in a Republican majority especially with news outlets labeling his choices as “union-busters” and “pro-business.” Such a majority would be expected to revise or reconsider the standard altogether.

Synopsis: Join Shawn R. Biery, J.D., MSSC for a nationally broadcast Webinar July 17th, 2017 3:00 PM to 4:15 PM ET

Editor’s comment:  Workers’ Compensation: Return to Work Issues & Strategies

Can't attend live? By registering, you will be able to view the course live, view a recording at any time for 12 months, or both. This webinar will provide an overview of strategies and tips for reintegrating injured workers to production. In addition, the course will also provide tools for effectively managing claimants’ expectations and implementing protocols for claim management.

Upon completion of this course, you will be able to:

• Analyze options which can be utilized on a claim by claim basis to set targets for return to work
• Understand avenues to develop relationships with key stakeholders to assist in management of claim issues with focus on rapid return to work
• Set targets for accommodated and full duty return to work for injured workers
• Determine more specific strategies for your industry to minimize lost time claims
• Describe HIPAA compliance issues

Receive a 35% discount for being a friend of the firm by using the promo code: SPKR35

You can sign up to attend at:

http://clearlawinstitute.com/shop/webinars/workers-compensation-return-to-work-issues-strategies/

Please contact Shawn at sbiery@keefe-law.com with any questions or to find out how to have one of the KCBA attorneys provide a presentation to your office!

Workers’ Compensation in Illinois is complicated . . . Do you know everything you need to know about the Illinois WC system? Attorney Jim Egan of Keefe, Campbell, Biery & Associates will begin with a review of the basics of Workers’ Compensation in Illinois, including benefits, the Workers’ Compensation Commission, and handling a claim of injury from the beginning to end. He will then analyze and discuss in-depth important topics such as Temporary Total/Partial Disability, Nature and Extent of Injury, Wage Loss Differential, Discovery, Liens and related claims against WC benefits in Illinois, Surveillance, Retaliatory Discharge and How to Handle WC Death Claims.

The final section of the day will include a number of essential factors to be considered when you are dealing with any workers’ compensation claim. You will receive helpful information on pushing your claim targets, using real time examples. Keeping in touch with your workers and how to drive claim closure are key, so these will also be discussed.

This is a not to be missed workshop for anybody who handles Workers’ Compensation claims in Illinois.

Registration Information:

Tuesday, June 20, 2017

10:00 am - 4:00 pm

Holiday Inn Express, 1000 Plummer Drive, Edwardsville, IL 62025

Early Bird - (For everybody) - Sign up before June 10 - $249.00

Member (For members of the Illinois Chamber & local chamber partners) - $299.00

Retail Price - $349.00

5-30-17; Can this be the Dummest IL WC Deform in the History of Work Comp?; Claimant Lawyer Has To Pony Up on Agreed Attorney Fee Split and much more

Synopsis: Can this be the Dummest IL WC Deform in the History of Work Comp? IL Senate approves the “State of Illinois Fake Mutual Work Comp Insurance Co.”

Editor’s comment: My amazing brother Joe Keefe has been in comedy for decades. Whenever it comes to politicians, he always recommends you vote for the funny ones—when politics eventually get boring and they always do, Joe points out you can always laugh at the funny politicians.

The IL Senate just passed a law that is certain to remain humorous, silly, dopey and goofy if you understand what they are doing. Please note this isn’t law yet and we hope if this bill gets past the IL House that Gov. Rauner quickly vetoes it.

To my understanding, ITLA or the IL Trial Lawyers Ass’n doesn’t like to be told workers’ comp in this nutty State is more expensive than it is in other states. To counter or block that news, they came up with the hilarious PR or public relations story that our IL WC system isn’t pricey, the Evil Demon is the profit-hungry WC insurance companies. The PR line from ITLA continues to claim there were some IL WC reforms in 2011 and WC costs may not have gone down. This supposed phenomenon was not because of the legislation or the IWCC administration but the problem was the supposed hoarding of profits by those inconceivably wealthy WC insurance carriers.

In short, the IL Senate has now approved/voted for a bill that would take $10M from the IWCC Operations Fund to start a silly and fake government-run WC insurance carrier to supposedly offer discount WC coverage and embarrass the heck out of the major players in the IL WC insurance community. When we stop laughing out loud, we assure you the concept is stupid and we hope it is put to bed sooner rather than later. We assure our readers this should be forever called the “State of Illinois Fake Mutual Work Comp Insurance Co.”

Please also note the annual budget of the IWCC is about $30M. Every nickel of that money comes from IL business and local governments. My sources agree the IL Workers’ Comp Commission that has about 150 employees would have to lay off about 50 workers if they are to loan/give up $10M or 1/3 of their annual budget to this dopey fake mutual insurance concept. Not sure if anyone in the General Assembly even thought of that issue but we assure you, in a State with about $14.5 billion in unpaid bills and around $130 billion in pension debt, our legislators are again playing with what I call “magic money” that supposedly comes from nowhere to be spent by them on nothing for nobody.

The main reason I think the PR line from ITLA is completely balderdash is most of my top clients aren’t actually “insured” for their work comp risks and costs. All moderate to major employers in Illinois and across the country don’t truly pay WC insurance carriers for “first-dollar” coverage. Almost any moderate to major employer has a significant claims deductible or what is called a self-insured retention where the insurance carrier actually is acting as an excess carrier when providing coverage. For risks/costs from $250,000, $500,000, $1M or even $2M, the WC insurance carriers are spending my clients dollars and not their own. They make a relatively minimal profit managing WC claims for the employers and, when they act like a TPA or third party administrators, any insurance profits are greatly limited.

Please also remember there are over 300 WC insurance carriers and TPA’s in this State. The competition is intense and they are all looking to cut costs and be the least expensive to win the annual RFP’s that bring in more business and cold cash. I don’t know any successful insurance carrier/TPA that doesn’t greatly overtax the solid and hard-working IL WC adjusters who make the tough calls on their IL WC claims. IL WC adjusters struggle with the Peter Principle that says the most work in any organization flows to the most competent worker—if an IL WC adjuster can do a solid job handling 125 litigated, lost time claims, they may receive as many as 200 or more claims (without matching compensation or bonuses) to insure their employers are getting the most money from their dedicated work.

On a related note, at one point, across the U.S., there were lots of state-founded and later state-run WC insurance companies like the proposed insurance carrier our IL General Assembly may create. The concept failed miserably, for the most part. Those WC insurance carriers were moved out of politics and kookiness of their respective state governments to be forced to succeed in the private sector or close their doors. Some of the state-run WC insurance carriers survived, lots of them closed their doors. Please remember the mega-carriers in U.S. work comp are multi-billion dollar international corporations. The IL General Assembly comically thinks they can use their clunky government model to compete with these well-tooled international organizations with an opening ante for our new IL Mutual WC Insurance Company of only $10M. The chance the IL General Assembly can outfit and run a competitive state-run WC insurance carrier and compete with the big boys/girls in our industry is impossible and humorous to even contemplate. Everything the General Assembly in this State touches turns to lead and drops to the bottom of the nearest river or lake. In my opinion, they are throwing away $10M and jeopardizing lots of jobs and the management of IL WC claims in doing so.

So why is ITLA pressing this phony PR line to the point of having their puppets in the IL General Assembly pass a law that will require laying off half a hundred IWCC workers? Well, they know John Q. Public doesn’t understand what I am telling you above. They also feel many citizens might innocently believe WC insurance carriers are very profitable and are fighting to stop passing through the supposed giant savings that came with the 2011 Amendments to the IL WC Act.

The real story is clear—medical costs in IL WC are down a notch. That savings is being “passed along” to my clients. WCRI’s most recent reliable statistical report confirms such costs have dropped about 6%. The problem with that cost-cutting is our sister states have cut even more overall WC costs. If you look at our surrounding states, if we can cut IL WC costs about 10%, we would and should be in the middle of that pack. 

As a cautionary concept, we aren’t going to catch the cheap-o Indiana WC system as I assure you their WC benefits are terrible and they should be ashamed of how they treat catastrophically injured workers and/or widows and widowers. If you don’t believe me and want my thoughts on that issue, send a reply.

If IL WC is to cut even more costs to get to the mid-stream, we told you in the past weeks there are two simple ways to do so. The first is to immediately roll back the PPD values to the pre-2005-2006 numbers. This would be a 7.5% savings the day it would be enacted. We believe the Plaintiff bar in this State would accept that roll-back. The second and even easier way to cut IL WC costs is for Governor Rauner to tell the IWCC administrators who work for him to cut WC benefits by 10% or whatever value he feels best. If they won’t cut benefits, start to cut the administrators who aren’t listening. In response, we believe the Plaintiff bar will deal with mildly lower IL WC costs and some of them may not be able to afford a second Maserati or Ferrari but they will get along just fine.

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

Synopsis: IL Supreme Court Confirms Petitioner Attorney Has To Abide By Fee-Sharing Agreement.

Editor’s comment: It is hard to believe it was worth all this litigation! We assume they wanted to make a point and I agree with the outcome. It is just a shame there isn’t some easier and faster way to reach it—please note the first of these claims appears to have arisen in 2007.

The Illinois Supreme Court last week ruled a claimants’ attorney had to follow the written attorney fee-sharing arrangement he had with a different firm. He was not allowed to stiff the law firm that referred numerous IL WC cases to him because of an alleged technical violation of the Supreme Court’s Rules of Professional Conduct. Under the rules, two lawyers or law firms who split a fee generated by the representation of a client will both face joint liability if the client later complains of malpractice. Accordingly, the rules require Illinois lawyers and law firms expressly agree to share in this potential for joint liability to the client at the time they agree to share in the fees.

Although the clients also need to consent to the fee-splitting arrangement, our highest Court said clients do not need to be specifically informed of the fact both firms can be held financially responsible for mishandling their claims. The Court concluded the fee-splitting agreements between attorney Anthony Esposito and the law firm of Ferris, Thompson & Zweig were not rendered unenforceable just because their clients weren’t told about their joint financial and/or malpractice responsibility for their cases.

This decision marked the second time the Supreme Court had to weigh in on the long-running dispute between Esposito and the Ferris firm over the division of $109,390.89 in fees. Two years ago, the Court confirmed the IL Workers’ Compensation Commission didn’t have jurisdiction to decide the validity of the agreements, which entitle Ferris firm to payment of $49,225.90. The Ferris firm was hired by ten injured workers between 2007-2010 to pursue work comp claims for benefits. The Ferris firm contracted with Esposito to represent the workers in filling the Applications and later for proceedings before the IWCC.

Under the terms of the written arrangement, Esposito agreed to pay the Ferris firm a 45% share of attorney fees awarded in these IL WC cases. Consistent with IL Supreme Court Rules, the injured workers were all informed of the arrangements. They provided written consent to the division of fees.

Thereafter, Attorney Esposito negotiated settlements in the cases and secured attorney fee awards ranging from $700 to $46,000 each. The total attorney fees for all 10 cases amounted to $109,390.89 The Ferris firm then demanded payment of its 45% share, but Esposito refused to honor the agreement. The Ferris firm responded by filing a breach-of-contract claim against Attorney Esposito in Lake County Circuit Court.

Esposito moved for summary judgment, arguing the fee-sharing agreement was invalid because it did not comply with Rule 1.5 of the Illinois Rules of Professional Conduct. That Supreme Court Rule governs the fees attorneys may charge their clients. Subsection (e) addresses the division of fees between lawyers who are not in the same firm. The rule has three subparts, which say a fee split is appropriate “if the primary service performed by one lawyer is the referral of the client to another lawyer and each lawyer assumes joint financial responsibility for the representation;” the client “agrees to the arrangement, including the share each lawyer will receive;” and the total fee is “reasonable.”

Esposito argued the Supreme Court Rule requires the client consent not only to the division of fees, but also to the joint financial responsibility of the attorneys. Lake County Circuit Court Judge Thomas M. Schippers agreed. Judge Schippers cited a 2014 Appellate Court case Donald W. Fohrman & Associates v. Mark D. Alberts for the principle that referral agreements involving the division of fees between lawyers who are not in the same law firm are not enforceable unless they strictly comply with the provisions of Rule 1.5(e). In the Fohrman case, the First District Appellate Court’s found a fee-splitting agreement wasn’t enforceable because it failed to provide the client with notice the lawyers had assumed joint financial responsibility for the matters, among other deficiencies.

The Ferris firm appealed Judge Schippers’ ruling, and the Second District Appellate Court reversed Judge Schippers last summer. The Second District rejected the idea strict compliance with Rule 1.5(e) required referral agreements involving fee sharing to expressly provide notice the lawyers and firms assume joint financial responsibility. Since the Ferris firm and Esposito undisputedly accepted joint financial responsibility for the representation of the workers in the 10 referred cases, the Second District said Supreme Court Rule 1.5(e) was satisfied.

In their recent ruling, the Illinois Supreme Court agreed. The Court noted “the current joint financial responsibility requirement is included in a different subsection of the rule than the provision addressing what the client must agree to.” Rule 1.5(e)(2) just says the client must agree to the “arrangement” between the lawyers/law firms, the court said, reasoning the “arrangement” is “the referral of the case and the division of fees between the referring and receiving lawyers.” The Court determined the joint financial responsibility requirement in Rule 1.5(e)(1) is not part of the “arrangement” referenced in subsection (2), deciding that “each of Rule 1.5’s three subsections constitutes a separate condition that must be satisfied in order for a fee-sharing agreement to be enforceable. Rule 1.5 reads like “a checklist in which each of the enumerated items must be crossed off before moving to the next, and all must be checked off before the fees may be divided,” the Court said.

The Court added the Fohrman case does not establish a contrary rule, since the Fohrman decision didn’t say that Rule 1.5(e) requires the agreement from the client to include a provision regarding the attorneys’ acceptance of joint financial responsibility. The agreements involved in the Fohrman case “suffered from numerous deficiencies, and the attorney seeking to enforce them did not dispute that they failed to conform to Rule 1.5(e),” so the decision just assumed there was a requirement that a client receive notice of joint financial responsibility without finding the requirement existed.

The Court further noted that “if the clients in this case had retained a single law firm with multiple partners, our Rules of Professional Conduct would not have required the retainer agreements to expressly notify the clients, in writing, as a precondition to enforcement of the fee agreement, that the partners would be subject to liability along with the attorney providing the actual legal services if that attorney committed malpractice.” 

The Court said it didn’t see any reason why the situation should be any different where “the lawyers involved have agreed to assume the very same joint financial responsibility but simply do not practice in the same firm” since “the clients are protected either way.”

In my view, the lengthy course of litigation it took to get this decision from our highest Court, this case likely cost the parties far more than the amount of fees at issue. It is a shame our Courts can’t work stuff like this out cheaper and faster—the issues are not that complex.

To read the court’s decision, click here. 

Synopsis: Join Shawn R. Biery, J.D., MSSC for a nationally broadcast Webinar July 17th, 2017 3:00 PM to 4:15 PM ET

Editor’s comment:  Workers’ Compensation: Return to Work Issues & Strategies

Can't attend live? By registering, you will be able to view the course live, view a recording at any time for 12 months, or both. This webinar will provide an overview of strategies and tips for reintegrating injured workers to production. In addition, the course will also provide tools for effectively managing claimants’ expectations and implementing protocols for claim management.

Upon completion of this course, you will be able to:

• Analyze options which can be utilized on a claim by claim basis to set targets for return to work
• Understand avenues to develop relationships with key stakeholders to assist in management of claim issues with focus on rapid return to work
• Set targets for accommodated and full duty return to work for injured workers
• Determine more specific strategies for your industry to minimize lost time claims
• Describe HIPAA compliance issues

Receive a 35% discount for being a friend of the firm by using the promo code: SPKR35

You can sign up to attend at:

http://clearlawinstitute.com/shop/webinars/workers-compensation-return-to-work-issues-strategies/

Please contact Shawn at sbiery@keefe-law.com with any questions or to find out how to have one of the KCBA attorneys provide a presentation to your office!

Workers’ Compensation in Illinois is complicated . . . Do you know everything you need to know about the Illinois WC system? Attorney Jim Egan of Keefe, Campbell, Biery & Associates will begin with a review of the basics of Workers’ Compensation in Illinois, including benefits, the Workers’ Compensation Commission, and handling a claim of injury from the beginning to end. He will then analyze and discuss in-depth important topics such as Temporary Total/Partial Disability, Nature and Extent of Injury, Wage Loss Differential, Discovery, Liens and related claims against WC benefits in Illinois, Surveillance, Retaliatory Discharge and How to Handle WC Death Claims.

The final section of the day will include a number of essential factors to be considered when you are dealing with any workers’ compensation claim. You will receive helpful information on pushing your claim targets, using real time examples. Keeping in touch with your workers and how to drive claim closure are key, so these will also be discussed.

This is a not to be missed workshop for anybody who handles Workers’ Compensation claims in Illinois.

Registration Information:

Tuesday, June 20, 2017

10:00 am - 4:00 pm

Holiday Inn Express, 1000 Plummer Drive, Edwardsville, IL 62025

Early Bird - (For everybody) - Sign up before June 10 - $249.00

Member (For members of the Illinois Chamber & local chamber partners) - $299.00

Retail Price - $349.00