5-6-2019; Don’t Be Fooled When Settling Medical Exposure in Illinois Workers’ Comp; IL WC Appellate Rules are Strict!! and more

Synopsis: Don’t Be Fooled When Settling Medical Exposure in Illinois Workers’ Comp.

Editor’s comment: There are a number of traps and pitfalls in handling/managing IL WC claims. I consider the worst to be

• Amputations;

• Death claims

• Medical settlements.

If you have questions or concerns about amputation or death claims in IL WC, send me a reply and I can help, I promise. I don’t charge for routine advice.

On medical settlements, I recently had several plaintiff/petitioner lawyers send settlement contracts or request settlement contracts that settled PPD but sought this language to settle 8a or medical rights:

“Respondent has paid or will pay all related medical bills up to the MMI date.” Please note my reasoned legal opinion such language is fatally flawed from a defense perspective. 

The main issue you will face is what I call attorney “sand-bagging.” The Claimant attorney may have lots of medical bills for questionable treatment incurred prior to MMI which they are holding back or hiding from you. This may happen intentionally or semi-intentionally.

If there is $50,000 or $100,000 or more in disputed care from one of Illinois’ famous over-treaters, you could be on the hook if you agree “Respondent has paid or will pay all related medical bills up to the MMI date.” Please don’t be a sap.

There is an Illinois WC Appellate ruling where a southern Illinois claimant lawyer (whose name is being withheld on purpose), settled a claim with such language and then dropped $40,000 in “new” and unknown medical bills on the adjuster. The adjuster had literally no idea that care took place and the attorney, in my mind, held the bills back until the settlement was approved and therefore final.

The IL WC Appellate Court basically said—“if you are stupid enough to agree to pay medical bills you don’t know about, don’t come to us to try to get out of it.” Ouch!!

In my view, in response to such proposed settlement language, I advised we will agree to pay all related medical bills of which Respondent is aware up to the MMI date. If there is a Claimant or defense attorney who has a better approach to insure appropriate medical bills are paid but surprise or “sandbagged” bills can be disputed, please send me a reply.

I consider it malpractice for a defense lawyer or adjuster to agree to pay medical bills of which they have no knowledge. If a dispute arises, Claimant counsel has to demonstrate my client or I knew of the treatment and/or the bills. If we know about the care, we need to either pay or actively dispute the bills. You can’t do that for medical care you aren’t aware of.

Please also be careful when you are workingonly with a Claimant lawyer and aren’t having settlement documents reviewed by a veteran defense lawyer. In most cases, I will review settlement docs without charge to insure you are fully protected from the pitfalls and traps of this business.

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Synopsis: The IL WC Appellate Rules are Strict!!

Editor’s comment: in Conway v. Illinois Workers' Compensation Comm'n, 2019 IL App (4th) 180285WC (issued May 2, 2019) Claimant filed a workers' compensation claim against her employer, a central Illinois school district.

Claimant sought review of the Arbitrator's decision before the IL WC Commission; the Commission affirmed and adopted the Arbitrator's decision.

Claimant filed a petition for administrative review to the Circuit Court, and requested that summons issue; the summons were issued the next day. Claimant failed to file a notice of intent or an affidavit in the Circuit Court within 20 days of receipt of the Commission's decision.

The newest amendment to Section 19(f)(1) of Workers' Compensation Act requires the appealing party to exhibit proof of filing with the IL WC Commission of the notice of intent to file for review in the Circuit Court or an affidavit of attorney setting forth notice of intent to file for review in the Circuit Court within 20 days of receiving the Commission's decision. Please note there are no extensions allowed.

As claimant failed to do so, the Appellate Court ruled the Circuit Court lacked subject-matter jurisdiction over her petition for review. Please note this means the Court is supposed to dismiss the matter on its own motion or on motion of the opposing party.

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4-30-2019; IL WC Fraudbusters Suffer Budget Cuts?; Social Security "No-Match" Letters Return and more

Synopsis:IL WC Commission WC Fraud Busters Suffer Budget Cuts?? Really—Is That Where Gov’t Budget Cutting Should Start?

Editor’s comment: Noting our State Government is awash in a tsunami of red ink, we were amazed and not surprised to receive news the IWCC is cutting its WC Fraud Busters budget yet again. This might be due to an across-the-board State budget cutting push to decrease all spending by 4%.

We note the IWCC isn’t appointing all the Arbitrators they could otherwise have but there is no true sense of “budget-cutting” anywhere in our State gov’t that I can tell or smell. The last thing we should be cutting are folks that will try to insure all WC claims are real and no one is taking advantage of the reasonable IL WC system.

Well, I am sure in all of the other 49 United States, workers’ comp fraud is sadly present and the other states care about limiting or stopping it. Other states are concerned when a phony claim is brought or someone is working when they are on TTD.

How does our IL State Gov’t waste money? Let me count just a few of the ways:

• Our State still has human beings take highway tolls—many States have completely ended that wasteful concept and gone to fully automated toll roads.

• Our State has seven, count ‘em, seven separate and redundant police departments—do we have the money to afford a do-nothing Secretary of State Police Department?

• Our State has both a Comptrollers Agency and a State Treasurer—both State agencies do basically the same thing.

• Illinois has a Toll Authority and the Department of Transportation that also do basically the same thing.

• We have 88 State Agencies when we need about 22.

We are a land of redundancy and overpaid/overstaffed and “over-retired” gov’t workers.

Someday, I hope we, as Illinoisans, get our priorities back and realize the money spent to ferret out WC fraud is the sort of thing large businesses and employers look to when they decide to move to our State or grow businesses here. Everyone on all sides of the WC matrix need to tell the truth, the whole truth and nothing but…

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Synopsis: After a seven-year hiatus, our Social Security Administration is again notifying U.S. employers when W-2 records don’t match employee Social Security numbers. As the Scouts say—Be Prepared!!

Editor’s comment: For the first time in seven years, U.S. employers will soon be receiving Social Security number (SSN) “no-match” letters from our Social Security Administration when it has discovered the W-2 records completed by the employee and submitted by the employer don't match the Administration's records on employee names and SSNs. This is a warning to employers to carefully check the employee's information. The problem could be as innocent as a typographical error or as nefarious as a stolen identity.

The Social Security Administration has given employers an overview of frequently asked questions and steps to take upon receiving a mismatch letter, also called an "employer correction request notice."

Be Prepared When You Get a “No-Match” Letter

The new letters won't include the names and Social Security numbers of employees with mismatched SSNs. When you are put on notice, employers must register online with the Social Security Administration's Business Services Online (BSO) to find out whose SSNs are mismatched.

If an employer learns of SSN mismatches and does nothing, then U.S. Immigrations and Customs Enforcement (ICE) may consider the employer to have "constructive knowledge" that you have an undocumented worker. But if employers take action against an employee based solely on a “no-match” letter, you may be sued for discriminating against the worker based on citizenship or origin.

The Trump administration began sending these letters again to help strengthen the enforcement of immigration laws.

What to Do After Receiving a “No-Match”: Letter

• Check your records for a clerical or typographical errors.

• Notify your employee of the anomaly.

• Give the employee a reasonable period of time to resolve the possible error(s) with the Social Security Administration.

Experts feel a "reasonable period" could be between 30 to 90 days. If the employee cannot resolve the mismatch with the Social Security Administration, you may then fire the worker.

Other legal veterans feel U.S. employers should not jump to conclusions when you receive mismatch letters. Tell all affected employee about the mismatch. If the employee doesn't respond, tell the Social Security Administration of the lack of response.

An employer may not want to receive no-match letters and do nothing. Employees who need to resolve SSN mismatches may need time off work to resolve or correct the issue. However, an undocumented employee is not likely to go the Social Security Administration but instead might ask the employer for extension after extension to resolve the matter, hoping the company will forget about the SSN mismatch.

Companies have the option of also using the administration's Social Security Number Verification Service (SSNVS), available through BSO. The service allows employers to verify SSNs before filing W-2 submissions. It cannot be used to prescreen candidates, and once employers have registered for SSNVS, they must use it across the entire organization, which can be an administrative burden. Some employers are choosing not to sign up for SSNVS.

Causes of Mismatch Letters

The cause of mismatch letters may be falsification, identity theft or a completely fabricated SSN.

One way to avoid most SSN mismatches is to use E-Verify. E-Verify checks the names, dates of birth and SSNs of new hires against the Social Security Administration's database. E-Verify can't catch cases of identity theft, when someone steals someone else's name, date of birth and SSN to obtain unemployment and disability benefits. But E-Verify should prevent most SSN mismatches with the Social Security Administration.

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4-23-2019; TTE May Become IL WC Law or Practice; News And Gossip from the IL State Bar Ass’n WC Section on IL WC Appointments; KCB&A at RIMS Boston and more

Synopsis: TTE or Temporary Transitional Employment May Be Coming to an IL WC Claim Near You!

Editor’s comment: A wonderful reader sent me a recent IL WC Commission decision regarding TTE or Temporary Transitional Employment for injured IL workers. This is a concept used and actually required in many State’s WC systems.

The issue concerns Temporary Transitional Employment (TTE) where the employer doesn’t have focused light duty work but sends Petitioner to a non-profit, charity or other similar facility that can accommodate restrictions.

I am sure getting injured employees back to work can make a huge difference in lowering the cost of workplace injuries. Return-to-work programs can help ensure employees’ success in recovering and getting back to the job. But, what if a given employer can’t support temporary light duty for an injured worker? Temporary Transitional Employment programs, also known as “modified duty off-site” or simply “off-site return to work programs,” can be a solution.

In my humble view, anything that gets a worker off the couch and dressed and off to some sort of “work-like” activity is better than having them sit home and watch talk/game shows. Lots of statistics indicate the longer you leave an injured worker off all work, the more likely it is they will never return to work.

Workers’ compensation claimants placed at TTE by a major national insurer returned a given claimant to work on average 67 days sooner than those who were not placed in such positions. Some programs place injured workers at local nonprofit organizations, which can provide an additional morale boost and sometimes, even a charitable deduction for the employer.

One question I get all the time—what if the worker claims injury or aggravation at the charity? The answer is you almost certainly owe for the injury but the risk/reward is so high, you still need to consider TTE. One way to try to stem such claims is to see if the charity can have the worker perform their job in an area that has security cameras in it.

Here are tips for better understanding TTE programs, and for implementing a program your workers will want to participate in:

1. By setting up a network of nonprofit partners and having a plan to manage hours worked and any performance issues, claims handlers/risk managers can provide an administrative framework to implement the concept.

2. TTE should be mentioned in employers’ handbooks and all communications with workers.

3. The TPA or self-insurer will continue to manage the workers’ compensation claim and will communicate with the worker’s doctor about TTE programs and transitioning the worker back to regular work.

4. Workers should be placed within 50 miles of their homes—the farther the drive, the more push-back you may get.

5. These programs are best for injured workers who are released for transitional restricted duty and whose restrictions are expected to last at least four weeks.

Will TTE “Work” in Illinois WC?

Please note my opinion this concept works best if everyone gets along. Try to nicely convince your worker this is in their best interests and isn’t something to fight about. Please advise the charity work isn’t forever—it is just until they have fully recovered, as you expect them to do.

If you can’t gain cooperation from your work, this question brings up the idea of whether the IWCC will “mandate” such transitional/charity work. In this recent ruling, the IWCC terminated/denied TTD when the worker refused to participate in TTE.

We do note former Commissioner, now Chairperson Mike Brennan joined in this new decision and should be encouraging TTE for all hearing officers to consider. We consider TTE a win-win to get folks off their duffs and back into non-profit/charity jobs that help the charities they work at.

There are prior IL WC cases which found that such an arrangement was not allowed under the Act. I consider that short-sighted and counterproductive.

However, as I indicate above, this new ruling I was sent comes to a different conclusion and confirmed the suspension of TTD or temporary total disability for refusal to attend TTE.  

It is important to note exactly how this employer offered the TTE because they

• Sent a letter advising that Petitioner was still an employee of the Respondent; 

• The worker would get the same pay from the Respondent during participation;

• Petitioner was subject to all of Respondent’s human resources and attendance policies; and

• Any issue that arose during the TTE would be handled through Respondent, documenting ongoing Respondent’s control over or direction of Petitioner.

If TTE is something you can utilize, this case provides an excellent roadmap on how it should be offered. If you want a copy, send a reply. If you want to discuss how TTE can further help your WC claims program, I am happy to conference.

I again thank my knowledgeable reader for the decision—if you want a solid voc rehab expert, send a reply and I will send his contact info.

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

Synopsis: Updated News And Gossip from the IL State Bar Ass’n WC Section on IL WC Commission Appointments/Staffers.

Editor’s comment: The hard work and expertise of the ISBA WC Section volunteers provides additional guidance and gossip for my readers on what is happening at the IWCC.

As we know, we have a new chairperson in Michael Brennan. I join with my law partners in saluting this great choice to keep at bay the “eye-of-the-hurricane” that are the competing political/legal and insurance forces in IL Work Comp.

Governor Pritzker also elevated Arbitrator Barbara Flores to commissioner. She will sit as a Public member taking Chairman Brennan’s slot. Former Arb. Flores was an appointment of then-Governor Pat Quinn. I learned she had more than five years of law experience as corporate counsel of Alden Management Services. Commissioner Flores previously worked in the Labor and Employment Law Department at the U.S. Postal Service, and as an assistant attorney general in the Labor and Employment Unit at the Office of the Attorney General. Ms. Flores also previously worked at the AIDS Legal Council of Chicago. I agree new Commissioner Flores has a sound reputation for being fair and efficient. She brings welcomed diversity to the IWCC first serving as an arbitrator in Chicago and then downstate and now as a commissioner. I consider her very professional, fair and reasonable.

Governor Pritzker also appointed Arbitrator D. Douglas McCarthy as commissioner of the IWCC representing the labor member and replacing Commissioner David Gore. Commissioner Douglas McCarthy was also first appointed by Governor Quinn as an arbitrator. He brought more than 30 years of legal experience to the Commission. We agree with the ISBA, there are petitioner and respondent attorneys alike who practiced before Arbitrator McCarthy and will feel he will be missed as an arbitrator.

Governor Pritzker appointed Marc Parker as commissioner as a labor member. Mr. Parker is a 54-year-old Collinsville attorney whose experience includes serving as a law clerk for both the Illinois Appellate Court and the Illinois Supreme Court, working as a full-time prosecutor in St. Clair County and as a part-time prosecutor in Madison County. He appeared before the IWCC for more than 26 years and was the Collinsville Township attorney.

Governor Pritzker appointed Maria E. Portela as a public member of the IWCC. Commissioner Portela has devoted her legal career to handling workers’ compensation claims since 1984 in part as corporate counsel for the City of Chicago. She handled defense claims for The Hartford and AIG. Ms. Portela also brings additional diversity to the IWCC.

In August 2019, then-Governor Rauner re-appointed Arbitrator Maria Bocanegra, Paul Cellini, Stephen Friedman, Gerald Granada, Jessica Hegarty, Jeffrey Huebsch, Nancy Lindsay, Christine Ory, Maureen Pulia, Melinda Rowe–Sullivan and Douglas Steffenson. Arbitrator Lindsay retired from the practice and Arbitrator Bocanegra has moved on to a different department within State government.

As of April 1, 2019, none of these arbitrator reappointments have been confirmed by the IL Senate. The ISBA reports there are five vacancies for IL WC arbitrator not considering the arbitrators mentioned above. I vote we have plenty of hard-working arbitrators and leave the positions open. Applications for the arbitration position can be found on the state of Illinois website: https://www2.illinois.gov/sites/bac/Pages/NominateForm.aspx

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Synopsis: KCB&A will be going to RIMS Boston this coming weekend!

Editor’s comment: If you are going to RIMS and want to meet up with your favorite Midwest GL/WC and EPLI defense lawyers, we are hosting or co-hosting a golf outing and a reception dinner this coming weekend. Send a reply if you have interest.