4-15-2019; Back to Basics--Overview and Definition of Work Comp Benefits; Another Nutty IL WC Bill in Springfield and mor

Synopsis: Back to the Basics--Overview and Definition of Workers’ Comp Benefits.

Editor’s comment: Every now and then, I consider it a strong idea to go back to the basics. Workers’ comp benefits arise when a given worker suffers an accident or disease that “arises out of” and occurs “in the course of” employ. This is shortened to AOO/ICO in WC parlance. In short, not everything that happens at work is covered but lots of stuff is.

Once suffering a work-related disease or illness, workers’ comp across the world provides three main benefits for injured workers: medical care, temporary total disability and permanency. This is a quick outline of Illinois WC benefits:

Medical benefits: Injured workers are entitled to full medical coverage of all reasonable, necessary and related medical care arising from their injury. Illinois enacted a medical fee schedule, effective February 1, 2006, for all related and necessary medical treatment. The fee schedule is changed every year to follow inflation.

Temporary total disability: Illinois allows for 66-2/3% of an employee’s average weekly wage during all periods they are temporarily totally disabled from all work.

Temporary partial disability: If an employee returns to any work following injury—part-time or full-time light duty work at a lower rate of pay on a temporary basis—Illinois law requires an employer make up the difference as TPD, or continue to pay temporary total disability until the employee returns to full duty.

Permanent disability in the IL WC system is awarded in six ways:

1. Serious and permanent disfigurement: Typically, burns or scarring outside the ‘strike zone’.

1. Specific loss: Some relative legal definition of percentage of loss of a specified body part or ‘member’—Illinois relies in part on AMA ratings in determining specific permanent loss.

1. Nonspecific loss (typically referred to as ‘body as a whole’): Some relative legal definition of percentage of loss of the whole body—again Illinois relies on AMA ratings as one of five factors in determining permanent loss/impairment/disability.

1. Wage differential benefits: Two-thirds of the difference between what the employee would have been making in his old job at present wage levels versus the average of what the employee is able to earn within the medical restrictions. For accidents after Sept 2011, this benefit is capped at age 67 or at 5 years of benefits if the injured worker is over age 62 at the time of award. For my readers, please note the new and growing IL minimum wage is going to take some of the sting out of wage loss claims because anyone with a job is going to be making more and more money, as the minimum wage grows.

1. Amputation benefits—IL WC has high minimum and maximum amputation rates. These benefits can be dramatically high. Please also note the amputation benefits are due in full as soon as you are aware of the presence and extent of an amputation—I am happy to help on this one, just send me an email.

1. Total and permanent disability: Two-thirds of the average weekly wage for life. Please note Illinois has a very high minimum and maximum rate for total and permanent disability, and unlike other states there is no cap on the number of years.

1. Death: Two-thirds of the average weekly wage is payable to the surviving spouse and dependents for twenty-five years. Please note Illinois has a very high minimum and maximum rate for death benefits. Again, there are lots and lots of nuances—if you have questions and concerns about a death in your workplace, send me an email for the inside scoop. Please also note if a worker dies in your workplace, everyone who “experienced” the person’s passing may have PTSD claims that should be quietly addressed with counseling and care, if at all possible.

Other matters which may be characterized as WC benefits which any adjuster should be fully aware of:

Vocational rehabilitation is a benefit that may be claimed and/or awarded in specific circumstances. In rare instances, the Commission may order complete re-education or retraining of an individual at the employer’s expense due to an injury-related limitation and job change.

‘Maintenance’ was a term with a tortuous history in Illinois. In 2006, it was codified to equate with TTD when someone is in vocational counseling.

Mileage to treating doctors is also a question mark in Illinois—there is no requirement that Illinois employers/WC insurers pay a specific amount of mileage for an injured worker to go to medical providers in our Rules or Act. 

For Respondent to schedule an Independent Medical Examination or Section 12 Exam and have the employee legally required to attend, the employee is entitled to mileage, meals, and time lost from work in advance of the appointment. Effective July 20, 2005, the mileage amount based on the current IRS mileage rate is required to be sent to the employee with notice of the IME.

An Illinois employee can seek civil damages for retaliatory discharge and termination or failure to recall as a result of seeking workers’ compensation benefits. This would arise from a separate common law action and would not be heard by the IL WC Commission.

Penalties in Illinois are 50% of the amounts payable for temporary total disability or permanent partial disability which are not paid for frivolous reasons or withheld solely for delay. Penalties can be awarded for not paying penalties resulting in an additional 50% of the 50% already awarded. Although we are not aware of it happening, this could occur on an indefinite basis!

There is an additional penalty of $30 dollars a day with a cap of $10,00.00 which can be awarded for not paying temporary total disability for frivolous reasons or solely for delay.

There is an additional penalty of $30 dollars a day with a cap of $10,000.00 which can be awarded for not paying medical bills that are submitted with appropriate documentation after thirty days has passed.

Attorneys’ fees in Illinois, typically 20% of the disputed benefits can be ordered payable by the Respondent at the discretion of the Commission when benefits are withheld frivolously or solely for delay.

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

Synopsis: Another New IL WC “Reform” Bill is Proposed. We are watching like hawks!!

Editor’s comment: Please note Illinois is a one-party state with no hope for Republicans to take any effective action to protect the interests of IL business—they are dramatically outnumbered in Springfield. This appears to be another reform bill that isn’t being put through the “agreed-bill” process where all sides make comment, negotiate and seek a consensus. Obviously, the Democrats are laughing at their counterparts across the aisle and doing whatever they want.

IL HB269, as amended is being called the Work Comp-No Insurance Process.

Last Action: Referred to Assignments (April 12, 2019)

Primary Sponsor: Representative Jay Hoffman (D-Belleville)/Senator Linda Holmes (D-Aurora)

Summary: Allows a Commissioner, rather than the Entire IL WC Commission, to issue an emergency work-stop order prior to a hearing.

The bill requires the Commission to issue a notice of emergency work-stop hearing when and emergency work-stop order has been issued.

IL Employers with 2 or more violations are prohibited from self-insuring for a period of one year.

Monies in the IL Self-Insurers Security Fund and in the Illinois Workers' Compensation Commission Operations Fund may be expended for salaries and benefits of the Self-Insurers Advisory Board employees and the operating costs of the Board.

We learned about this legislation via the IL State Chamber of Commerce. I always recommend my clients join and support the State Chamber that is the number one watchdog for the interests of Illinois business.

Synopsis: Update on IL SB 1596.

Editor’s comment: I received an excellent article indicating the changes proposed in IL SB 1596 may not be effective until year 2044 due to a constitutional issue of longstanding nature.

If you are concerned about the business-busting aspects of this new proposed but misguided legislation and want to review that article, I am happy to send it. Please simply send a reply.

4-9-2019; KCB&A Closes Your Toughest WC Claims Faster!!; Is a Workers’ Comp Claim Exempt from a Bankruptcy Claim by Lilia Picazo; How Hyatt Hotels Would Go Broke and more

Synopsis: Keefe, Campbell, Biery & Associates Closes WC Claims Faster Than Our Competition. Try Us and See!!!

Editor’s comment: I/we continue to tell clients and potential clients, KCB&A closes our WC files faster than our competition. We have a number of great approaches to doing so.

First and foremost, we are the only Midwest Defense Firm whose motto is “The Only Good File Is A Closed One!” We are committed to closure of your toughest WC claims in the five States we practice in. We assume you have set aside reserves for each claim and there is a cost involved in looking at money you have sitting there but can’t use. Getting a defense attorney who understands that simple math is hard to understand—we understand it at KCB&A.

Some/many workers compensation claims can be closed rapidly, if a few parameters are satisfied. It is hard to predict what may turn a routine WC claim into a sticky mess that just won't close. That is always the challenge for risk managers, claims handlers and defense attorneys. There probably are as many answers as cases, but the answers likely can be drilled down into a few common themes, some of which apply to your claims action plans.

The course of a claim may be influenced by the accident report, initial care, the claims evaluation and course of treatment. Frequently the employer controls treatment for some period of time post-injury. OccHealth and ER treatment should be provided by a health care provider appropriately qualified to treat the injury. It is also important to have an OccHealth provider that knows your business and the availability of light work. Long prior to an accident in the workplace, we suggest all clients have a designated OccHealth or Emergency provider for all workers—we further recommend you post such information in the workplace and/or your website.

If you have a WC PPP or designated health plan for all workers, push hard to have them get into it and stay in it. I have a presentation that includes the concept of an IL WC PPP—if you want to review it, simply send a reply. We consider an IL  

Claims closure stops if you have a physician chosen by Claimant who is a “disability enabler” who predictably writes off-work slips regardless of objective findings and sometimes without any medical basis. It's important to focus on what the injured worker can do, not what he/she can't do. Also note a physician or other caregiver who does not identify, diagnose and appropriately treat a legitimate injury, and who might return the patient to full duty despite the existence of objective clinical findings, may turn short-term impairment into a long-term problem.

When there is a dispute between claimant and employer or insurer, operate by the rule of reason. Our claims history suggests claims become protracted when any party to the claim takes an unreasonable position about a key issue or issues, whether it is medical treatment, return to work, continuing disability or settlement value. Positioning a case for the best possible outcome is the goal of the risk manager and claims handler along with your defense attorney. If either side digs in with unrealistic goals, lengthy and expensive litigation may ensue. Stay objective, avoid hardened positions, and keep personal competitiveness on the sidelines.

No One May Be Able to Move a WC Claim Until MMI.

Drive your claims to maximum medical improvement or MMI. It is possible but much more challenging to get a claim closed while treatment or surgery is ongoing. There are lots of paths to MMI—press the button on great experts for IME’s, nurse case managers and return to work coaching/meetings. It is possible to get a claim settled before care is completed, send a reply if you have such a claim and need my insight.

Once at MMI and Back to Work—Make the First Offer of Permanency/Impairment!

As a veteran defense lawyer, I smile when asked to request a demand from opposing counsel. To me, that can be a sign of lazy negotiating. Two things can happen when I am told to “ask for a demand.” One is the other side rapidly looks at their best case and asks for “way too much money.” I then have to fight and kick to bring them back down to a reasonable middle ground. The time it takes to get them to the land of reasonableness can then be characterized as being my fault when the problem is the approach.

The other bad thing that happens with “asking for a demand” can be even worse—now I have given control of the claim to my opponent! If they ignore the request, the adjuster is certain to email or call and ask what the heck I have been doing. All I can say in response is—I made the request for a demand and the other side is ignoring me.

The answer to all of it is to carefully look at your file and figure out what you feel is best to settle and make the first offer. Then I have the ability to tell the hearing officer I am being reasonable, my client is okay with this and let’s get ‘er done and closed!

To sum up, have a plan in place for OccHealth; identify necessary accident information and obtain medical records and bills in the claim; rely upon the knowledge, expertise and contacts of defense counsel; keep the case moving by cajoling whomever is dragging their feet; seek out appropriate experts (I can help if you want recommendations); and consider using KCB&A’s Medicare/CMS experts.

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

Synopsis: Is a Workers’ Compensation Claim Exempt from a Bankruptcy Claim? – Seventh Circuit Certifies the Question to the Illinois Supreme Court. Analysis by Lilia. Y. Picazo, J.D.

Editor’s Comment: On December 1, 2016, Ms. Hernandez filed for Chapter 7 bankruptcy in the Northern District of Illinois. She reported as exempt a pending workers' compensation claim she valued at $31,000.00. Ms. Hernandez owed large sums of money to three medical providers who provided treatment for her work-related injuries. Ms. Hernandez settled her claim shortly after without knowledge of the trustee or approval by the bankruptcy court. 

In February 2017, the medical providers filed an objection to Ms. Hernandez's claimed exemption, arguing a failure to notify the bankruptcy court of the settled claim was a product of fraud, and that a 2005 amendment to the IWCA permitted the unpaid providers to reach the workers' compensation settlement. In April 2017, a hearing was held on the claimed exemption in bankruptcy court. The bankruptcy court denied the exemption. Ms. Hernandez appealed. 

The U.S. District Court for the Northern District of Illinois in Chicago affirmed the ruling and held "using the workers' compensation exemption to thwart this specific class of creditors would frustrate the Act's purpose." Ms. Hernandez appealed to the Seventh U.S. Circuit Court of Appeals on the following issues:

Whether the Illinois Workers’ Compensation Act, as amended, allows care-provider creditors to reach the proceeds of workers’ compensation claims. Section 21 of the Act has been interpreted by bankruptcy courts to create an ex-emption for these assets. The 2005 amendments made several changes to the Illinois workers’ compensation regime, imposing a new fee schedule and billing procedure for care providers seeking remuneration. Did those changes alter the scope of section 21?

Section 21 of the Illinois Workers' Compensation Act provides:" No payment, claim, award or decision under this Act shall be assignable or subject to any lien, attachment or garnishment or be held liable in any way for any lien, debt or damages." In 2005, several amendments were made to the IWCA, including permitting a medical provider to seek payment from the employee where a disputed claim settled. Section 8.2(e-20). 

Ms. Hernandez argued the 2005 amendments to the IWCA did not contain specific language or exemptions permitting medical creditors to reach workers' compensation settlements. 

The medical providers argued allowing the exemption would go against the purpose of Section 8.2(e-20) of allowing medical providers to seek payment directly from an employee after a claim has settled. 

The Seventh Circuit agreed with both arguments. However, the court stated the Illinois Supreme Court had not yet "addressed the interplay between these competing components of state workers' compensation law." The court found itself "genuinely uncertain about the correct interpretation," and certified the question to the Illinois Supreme Court. We’ll continue to apprise you of any developments in this case.

The research and writing of this article was performed by Lilia Y. Picazo, J.D. Lilia can be reached with any questions regarding workers’ compensation law at lpicazo@keefe-law.com.

Synopsis: How Hyatt Hotels Would Surely Go Broke—Follow the Insane State of IL Government Business Model.

Editor’s comment: Try to imagine Hyatt Hotels BROKE and in bankruptcy… Try to imagine if new IL Gov. J.B. Pritzker adopted the State of Illinois’ insane business model for his family business, Hyatt Hotels.

Try to imagine if Hyatt Hotels provided non-competitive salaries for their workers that were much higher than its competition. Trust me, the State of Illinois overpays most of their workers, compared to the same jobs in the private sector.

Try to imagine if Hyatt Hotels allowed workers who became vested in unfundable fake gov’t pensions to be paid the same money as their highest salaries they made at their gov’t jobs within five years of retiring.

Try to imagine if Hyatt Hotels funded unfundable fake gov’t pensions for workers who didn’t work for Hyatt!!—The State of IL funds fake pensions for Circuit Court judges who are county employees and your local school teachers who don’t work for the State.

Try to imagine if Hyatt Hotels retirees were then given lifetime 3% compounded annual increases in retirement and were then were paid double, triple or quadruple their highest salaries at leisure in retirement literally until the day they died.

Try to imagine if Hyatt Hotels retirees were provided virtually free group medical coverage from the day they are hired until the day they died.

Try to imagine if Hyatt Hotels had 88 different departments to handle their affairs with each department having its own director, assistant to the director, HR manager, accounting manager, etc.—the State of IL has 88 departments set up in this flawed and awful business model with lots of redundancy.

Try to imagine if Hyatt Hotels had seven different security departments, like the State of Illinois that has seven different police departments. Let me say that again—seven different and independent State police departments???

Try to imagine if Hyatt Hotels had two entirely different accounting departments, like the State of Illinois that has both a Treasurer’s Office and a Comptroller’s Office that do almost exactly the same job.

Try to imagine if Hyatt Hotels had two different transportation departments, like the State of Illinois that has both the IL Toll Authority and the IL Department of Transportation that both do the same job.

This insane business model is why the State of Illinois has created the highest combined tax load for its citizens of all the United States and is working right now to possibly change the IL Constitution to add a crushing graduated income tax and planning to double (or higher) the Motor Fuel tax…

You don’t have to imagine--this is why thousands of Illinois citizens and businesses are departing our State for other places that aren’t insane.

If Gov. Pritzker can change the IL Constitution to raise taxes, why can’t he change the IL Constitution to change this insane gov’t business model and eliminate the redundancy and waste? Is there a Sanity Clause?

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

Synopsis: Update on IL SB 1596.

Editor’s comment: I received an excellent article indicating the changes proposed in IL SB 1596 may not be effective until year 2044 due to a constitutional issue of longstanding nature.

If you are concerned about the business-busting aspects of this new proposed but misguided legislation and want to review that article, I am happy to send it. Please simply send a reply.

4-1-2019; The Winds of Change--New Team at the IWCC Under Gov JB Pritzker; What Will Employers Do When Marijuana Becomes “Legal” in Illinois and Other States and more

Synopsis: As JB Pritzker settles in at the Governor’s Mansion in Illinois, the Winds of Change are picking up at the Workers’ Compensation Commission.

Editor’s Comment: The 2011 changes to the Workers’ Compensation Act, followed by the tenure of former Republican Governor Bruce Rauner, moved the IL WC Commission from a highly Petitioner-oriented venue to one where most practitioners felt it had become, for the most part, a fair ruling body. This is a matter of perspective, of course.

We are able to happily report the IL WC system is in the middle of the pack in terms of both costs of WC and benefits being paid to injured workers when you take a look at the State of Oregon WC ranking of insurance premiums. We hope our system stays in the middle and doesn’t dramatically rise, as it did under the administrations of prior years. Looking at the personnel changes that have occurred, we don’t feel that it will.

Under the Rauner administration, some Petitioner attorneys felt the IL WC Commission moved beyond center, at times even turning Respondent-oriented in their posture of adjudication in recent years. Regardless of one’s perception of the last few years, most veteran observers predict the pendulum is now going to swing back; how far remains to be seen.

Keep in mind that a number of current IL WC Arbitrators are on “ice” if you will, awaiting their fate as to re-appointment. As an Illinois-based law firm dedicated to defending workers’ compensation claims in this State, we only hope that the remaining (and new) hearing officers maintain the level of even-handed adjudication that we have experienced in recent years.

Thus far, a memorandum from the Illinois Workers’ Compensation Commission directed:

• Commissioner Michael Brennan has been appointed as Chairman of the Workers’ Compensation Commission.

• Arbitrators Flores and McCarthy are appointed Commissioners

• Their dockets will be replaced by TBA1 and TBA2 respectively

• Arbitrator Watts will replace the Chicago TBA

New Commissioners & Panels:

Panel A                                                 Panel B                                                 Panel C

Employee Representatives:         Commissioner Tyrrell                      Commissioner McCarthy               Commissioner Parker

Public Representative:                   Commissioner Portela                    Commissioner Mathis                     Commissioner Flores

Employer Representatives:          Commissioner Lamborn                 Commissioner Coppoletti             Commissioner Simpson

Newly appointed Chairman Michael Brennan replaces Joann Fratianni-Atsaves. We consider Mr. Brennan to be highly qualified for the position, as he was in private practice as a workers’ compensation defense attorney for a number of years before serving as a Commissioner for the last few years. He is well-versed in Illinois Workers’ Compensation Law. Both sides of the bar find him to be a solid choice to lead the IWCC. We extend our thanks to former Chairperson Fratianni-Atsaves for her hard work in service of our State.

New Commissioners Douglas McCarthy and Barbara Flores served as arbitrators prior to their Commission appointments; they are familiar to practitioners and veterans of the industry.

New Commissioner Maria Portela served as in-house counsel at AIG prior to her appointment.

New Commissioner Marc Parker managed his own Plaintiff/Petitioner practice in Madison Country before his appointment.

If compelled to wager, we predict further replacements of current sitting arbitrators, to be directed by the new Governor. This is unfortunate, as the vast majority of current arbitrators have done a solid job in recent years. To the victor goes the spoils though, especially in Illinois, and the Governor has discretion to make appointments as he sees fit. We will report on further re-appointments or new appointments as they occur.

This article was researched and written by John P. Campbell Jr., J.D., Partner at Keefe, Campbell, Biery & Associates, LLC. John can be reached at jcampbell@keefe-law.com. We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: What Will Employers Do When Marijuana Becomes “Legal” in Illinois and Other States?

Editor’s comment: We note Dr. David Fletcher of SafeWorks Illinois was quoted in an article on this topic over the weekend and I wanted to add my thoughts. In my opinion, employers are best served to create/maintain drug and alcohol-free workplaces. But one issue with doing so is testing for marijuana levels. There are no current tests that allow an employer to determine the current THC or marijuana levels in one’s system—the testing only indicates the presence of the drug and not its particular level of “intoxication” for a user. Watch this space if that should change.

The reality of legalization in Illinois and other states, if it happens, will be challenging. Some employers might start ignoring employee use, as long as workers can still do their jobs. Other employers will still ban its use, taking action against employees who test positive for pot, bolstered by federal law under which marijuana remains illegal.

Please note risk and exposures for injuries are, in my personal view, much higher in companies that either actively or passively allow marijuana use in their work sites. If an employee is injured while stoned at work, I feel it will be harder to defend a claim saying pot-smoking was the cause. In the realm of third party liability, I think it will be easier for Plaintiff lawyers to seek high damages or punitive damages if a worker injures a third party while under the influence of marijuana.

Illinois’ new governor, J.B. Pritzker strongly supports the legalization of marijuana, and Illinois lawmakers in our “one-party” State plan to consider legislation this year. If the IL legislature and our Governor want marijuana legal, there is no way to stop that, other than public opinion. If marijuana is legalized, Illinois would join 10 other states, and the District of Columbia. We note medical marijuana is already legal in Illinois.

All of it means employers will face a new set of questions.

• Should you ban possession of marijuana in the workplace?

• Should you/can you fire employees who test positive for marijuana?

• Should they continue testing current and prospective workers at all?

If rules surrounding medical marijuana are any indication, Illinois workers won’t necessarily be free to use marijuana, even in their free time, if recreational marijuana becomes legal here. Illinois law bars employers from discriminating against workers for using legal products outside the workplace. But employers still have the right to have drug-free workplace policies, require drug testing and to take job action to suspend or terminate  employees who violate those policies.

Please note any company or organization that contracts with the federal government would also still likely have to bar marijuana use among employees. And U.S. transportation workers in safety-sensitive positions would also

still likely be subject to drug and alcohol testing, per federal requirements.

Some employers have already made that change following the legalization of medicinal marijuana in Illinois, the widespread use of CBD oil and potential legalization of recreational marijuana, said Dr. David Fletcher, CEO and founder of SafeWorks Illinois in Champaign, which does drug testing for employers. “We’ve actually had some employers say they don’t want to test for it,” Fletcher said. “That’s kind of the new trend.”

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

Synopsis: Update on IL SB 1596.

Editor’s comment: I received an excellent article indicating the changes proposed in IL SB 1596 may not be effective until year 2044 due to a constitutional issue of longstanding nature.

If you are concerned about the business-busting aspects of this new proposed but misguided legislation and want to review that article, I am happy to send it. Please simply send a reply.