8-5-2019; Shawn Biery's Famous and Free IL WC Rate Sheet Update; Odd and Endless Retaliatory Discharge Denial Follows Psych Claim Denial at WC Div of Appellate Court and more

Synopsis: AUGUST IN IL—BENEFIT RATES RISE WITH THE HUMIDITY??—UPDATED RATE SHEETS AVAILABLE SOON FOR ILLINOIS WC RATE INCREASE!!! 

Editor’s comment: Illinois WC Rates Have Updated Again So Please Be Aware Of The New Rates or Your Claims Handling Will Suffer and Penalties May Ensue.

Email Marissa at mpatel@keefe-law.com to Get a Free and Complimentary Email or Hard Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet! You can also send any questions to Shawn at sbiery@keefe-law.com

We note that the recent legislation to increase the statewide minimum wage eventually to $15/hr will lead to the continued rate increase in every cycle, so continue to watch the growth of IL WC rates. As we have mentioned in the past, since in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, WC rates continue to climb.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is $813.87. However, this rate is only going to be valid through June 30, 2019 and the new max PPD will be published in January 2020. When it will be published in January 2020, this rate will change retroactively from July 1, 2019 forward. At that time, if you don’t make the change, your reserves will be incorrect--if this isn’t clear, send a reply.

The current TTD weekly maximum has risen to $1,529.84. A worker has to make over $2,294.76 per week or $119,327.52 per year to hit the new IL WC maximum TTD rate.

For WC Death Benefits: The new IL WC minimum is creeping closer to the $750k floor. That amount is now 25 years of compensation or $573.69 per week x 52 weeks in a year x 25 years or $745,797.00! The new maximum IL WC death benefit is $1,529.84 times 52 weeks times 25 years or a lofty $1,988,792.00 plus burial benefits of $8K. IL WC death benefits also come with annual COLA increases which we feel can potentially makes Illinois the highest in the U.S. for WC death claims.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet.  —If you want just one or a dozen or more, simply send a reply to Marissa at mpatel@keefe-law.com  AND you can also send any questions to Shawn at sbiery@keefe-law.com They will get a copy routed to you once we get laminated copies back from the printer—hopefully before they raise the rates again! Please confirm your mailing address if you would like laminated copies sent to your home or office!

Synopsis: Odd Retaliatory Discharge Denial Follows Psych Claim Denial at Illinois Appellate Court.

Editor’s comment: In Matros v. ComEd, the Appellate Court, First District issued a 55-page decision that I am not going to review in detail here, as I am sure you would fall completely asleep to read it.

If you want the link to the decision and can’t sleep some night, send me a reply and I will forward. Claimant is clearly an aggressive litigator along with his chosen Petitioner/Plaintiff firm. From what I can see in my research, he brought around nine different WC claims and most of them settled years ago.

One of his WC claims was for psych injuries and was denied and denied again at every level. At long last, the Appellate Court, WC Division denied it in one of their unusual “unpublished” but actually “published” rulings.

The best message you can take away from that denial is Illinois remains a state in which you need a sudden, unexpected and shocking event to deserve IL WC benefits. I salute all of our hearing officers for avoiding “California-style” psych claims.

After losing that one, Claimant also brought this retaliatory discharge claim after being terminated by ComEd and it basically went nowhere after years of fighting.

As I indicate, the ruling is virtually endless and, to distill it down, Claimant failed to make a clear picture of being terminated due to bringing a WC claim.

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

7-31-2019; Take A Leap: Is Jumping Off a Truck Dock Compensable in Illinois WC or Your State?; The Belt Dodges An FELA Death Claim and more

Synopsis: Take A Leap: Is Jumping Off a Truck Dock Compensable in Illinois WC or Your State? An in-depth look at the Benson case by Nathan Bernard, J.D.

Editor’s comment: First, KCBA and defense attorney Nathan S. Bernard, handled this claim at all levels of litigation from the arbitration hearing to a panel of three commissioners at the IWCC then before a circuit court judge and finally briefs and oral arguments before the five esteemed justices at the Illinois Appellate Court. At all levels, it was unanimously held the claim was denied with zero workers’ compensation benefits awarded.

Second, credit should be given where credit is due, and we applaud the insurance carrier and Respondent for their strong diligence in providing defense evidence necessary to support denial of this claim. As noted in further detail below, the incident was captured on high quality security videotape that was properly maintained and then expeditiously retrieved in the aggressive investigation by the adjuster and employer representatives. This security video and solid employer representative testimony later at hearing, allowed the defense to present arguments for denial and rebut inconsistencies and allegations which arose during the course of litigation and the appellate process.

In certain circumstances, there is a duty to preserve evidence but regardless, lost evidence at the outset of the claim for unexplained reasons or from inattentiveness can certainly weaken defenses and prevent the successful opportunity to properly deny a claim. Our attorneys at KCBA would be happy to provide advice on steps necessary for an initial aggressive investigation of a claim – please feel free to send a reply and contact us at any time. Nathan Bernard can be reached at nbernard@keefe-law.com and (312) 756-3726.

Now, to the crux of the claim; in Benson v. Kirby Medical Center (14 WC 36242), security cameras on the loading dock of a hospital bay showed Petitioner jumping off a loading dock off of a hydraulic lift and falling to the ground sustaining a fracture to the lower extremity. The video shows, and Petitioner testified, he purposefully jumped off of the loading dock in order to get down to the ground quicker so he could enter a company vehicle parked in the loading dock bay area. The video shows, and Petitioner testified there were stairs to the immediate right he could have taken which he estimated would have been an extra 30 seconds to get off the loading dock plus a ramp on the other end of the loading dock he could have taken. He estimated there would have been an extra 60 second to get off the loading dock using the alternate path. Petitioner agreed he was never directed, either verbally or in writing, to ever jump from the loading dock or to use the hydraulic lift to get down off the loading dock, but that he had been told to hurry and get the task done quickly. As noted above, the videotape, while showing an incident occurred, prevented the potential for inaccurate testimony, inconsistencies, or exaggeration and focused the issues narrowly to allow the law to be applied to a very specific fact pattern.

A job description and safety documentation entered into evidence at hearing did not specifically mention any limitation on jumping off the loading dock. Petitioner was required to observe “all safety protocols”. At arbitration, it was found Petitioner’s actions took him entirely out of the scope of his employment and he was injured while violating “common sense” safety rules. The Arbitrator denied all benefits and noted Petitioner chose to voluntarily, without the knowledge of Respondent, engage in a hazardous method of taking himself off the loading dock when his duties and good sense required him to make the trip in a safer manner.

The fall-down injury “was not the result of fulfilling any duties required of his employment and thus there was no employer/employee relationship at the time of the accident.” Further, longstanding appellate case law regarding ingress and egress to and from an employer’s premises noted employers should not be required to “police” all routes when an obvious safe route is provided. Here, the Arbitrator found when Petitioner ventured off a safe route provided by the employer for ingress/egress and instead, purposefully jumped off a loading dock onto a hydraulic lift thus falling off to the ground. The Arbitrator felt Claimant exposed himself to an unnecessary personal risk, for his own personal convenience. Any injury sustained while performing this activity was not within the employment relationship and did not arise out of or in the course of the employment.

On appeal, the IWCC, Circuit Court, and Appellate Court disagreed somewhat with the Arbitrator and found Petitioner did establish an employee/employer relationship at the time of the injury and Petitioner was in the course of employment, but did not disturb the Arbitrator's ultimate determination the injury was not compensable insofar as it did not arise out of his employment.

In a Rule 23 order (which is oddly “unpublished”), what the IL Appellate Court did, and we strongly agree with, is to perform a risk analysis which all parties/both sides of the bar should do. The initial step in considering the “arising out of” component of a worker’s compensation claim is to determine the type of risk to which the claimant was exposed at the time of injury:

• PERSONAL: Is there any evidence the injury was the result of a personal risk, such as an idiopathic fall?;

• EMPLOYMENT: Is there any evidence the risk of injury was peculiar to the claimant’s work or that the risk was the result of a defect in the premises?;

• NEUTRAL: Do members of the general public encounter the risk of injury in their everyday living?

The Appellate Court, Worker’s Comp Division, applying the “manifest weight of the evidence” standard, agreed with the denial of benefits as the risk that resulted in the injury was jumping off of the loading dock, an act which was not reasonably expected to be performed in connection with the assigned duties and did not stem from any employment requirement such as would have exposed him to risk greater (qualitatively or quantitatively) than that faced by the general public. Therefore, it was a neutral risk that was not compensable as members of the general public encounter the risk of injury descending from elevated platforms or structures to ground level in their everyday living.

Again, Nathan S. Bernard of KCBA was the defense attorney that handled all aspects of litigation and the appellate process regarding this denied claim. Nathan Bernard can be reached at nbernard@keefe-law.com and (312) 756-3726.

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

Synopsis: The “Belt” or BSNF Dodges an FELA or Railroad Death Claim.

Editor’s comment: It is hard not to agree with this ruling by the U.S. Seventh Circuit Court of Appeals. In Guerrero v. BNSF RAILWAY COMPANY, the legal question the court had to resolve is a sad story: as Celso Guerrero was trying to drive to his job at BNSF Railway through a snowstorm early one morning, his car skidded, it collided with a snowplow, and he was killed. His widow, Rita Guerrero, who appears on her own behalf and as administrator of her late husband’s estate, was seeking compensatory money damages from BNSF.

The Federal District Court concluded Decedent Guerrero was not acting within the scope of his employment when the fatal accident occurred, and thus the Federal Employer’s Liability Act (FELA) does not apply to the case. In our view, the question of work status is a

close one, but it is one the Federal Appellate Court did not need to resolve. They ruled no jury could find BNSF was negligent in any action it took or failed to take with respect to Guerrero, and so on that ground they affirmed the District Court’s judgment.

Celso Guerrero was a machine operator for BNSF. His normal schedule required him to work from Monday through Friday, but he was subject to possible overtime work at other times. His primary duty was track repair, but he was also expected to perform other tasks as needed, including snow removal. On Saturday, January 31, 2015, Guerrero received a telephone call around 6:00 p.m. from Nick Burwell, the BNSF Roadmaster in charge of track maintenance for the Galesburg, Illinois, railyard and surrounding area. Burwell told Guerrero a significant snowstorm was expected, and so he was looking for employees to clear snow from the tracks starting the next morning at 7:00 a.m. at the Galesburg facility. In making these calls, Burwell followed a union seniority list. Guerrero was not required to accept this work opportunity, but he

did.

Driving his personal vehicle, Guerrero left his home in Kewanee, Illinois (about 40 miles northeast of Galesburg) at 5:00 a.m. on February 1. The predicted snowstorm was underway, and it was snowing hard as Guerrero drove along Illinois Route 34. The National Weather Service documented at least four, but likely closer to eight, inches of snow cover along his route. While heading southbound, near Oneida, his car slid on the roadway, spun across the median, and collided with a snowplow being operated by the Illinois Department of Transportation (IDOT); the plow was in the northbound lane. Guerrero was severely injured and died the next day in the hospital.

Asserting that her husband was killed while he was on duty and acting within the scope of his employment, she sought compensatory damages. BNSF took issue with her assertion that Guerrero was on duty at the time of his injury; it contended that he was merely commuting to work, as he did for his normal shift every day, and that commuting falls outside the scope of employment in this situation. BNSF argued in the alternative that no trier of fact could find that BNSF was negligent either by act or omission, and that this was an independent reason for judgment in its favor. On BNSF’s motion for summary judgment, the federal district court ruled that Guerrero’s fatal injury occurred at a time when he was not acting within the scope of his employment. The FELA thus did not apply—a conclusion to which the judge attached jurisdictional significance. Without addressing BNSF’s negligence argument, the judge granted summary judgment in BNSF’s favor, presumably with prejudice, since the judgment document does not specify otherwise and makes no mention of a jurisdictional ground for dismissal.

The Federal Appellate Court focused primarily on BNSF’s alternate, negligence‐based argument. The reason is simple: it appeared to them there are disputed issues of material fact on the former point that would preclude summary judgment, but there are no such issues on the latter point.

The Appellate Court noted the federal reporters are littered with cases examining whether the FELA applies to an employee injured while he or she is commuting to or from work. Often the answer is no: courts generally hold the employee is on their own during the commute and does not report to work until they have reached the place of employment. Some cases, however, slip into a gray area. For example, employment status is often contested where a commuter is injured while traveling to or from work on the same railway that employs them, using a pass issued by the employer. Nonetheless, those cases usually find  the travel is outside the scope of employment. The ruling noted those commuters “are excluded from [FELA] coverage for two reasons—they are not required to commute on their employer’s trains, and while commuting, they are in no greater danger than any other member of the commuting public.”

A second group of borderline cases includes those in which an employee has just clocked out, or not yet clocked in, but is traversing the work site on the way to or from the assigned post when injured. Those cases typically uphold FELA coverage, because “traversing the work site … is a necessary incident of the day’s work.” Relying on a former line of cases, the district court found Guerrero’s accident occurred while he was on his way to work, far from his worksite, as he drove his personal vehicle on a public highway and faced dangers identical to the rest of the commuting public.

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

7-24-2019; When is a Loss Covered by the IL WC Act and more

Synopsis: When Is a Loss Covered by the IL WC Act?

Editor’s comment: The first thing an attorney, risk manager or adjuster must do when a new claim has been made is to evaluate whether the loss is covered by Illinois workers’ compensation law versus the various federal acts, general liability, or some other common law or other statutory remedy. If so, the next inquiry is whether Illinois workers’ compensation law applies versus the law of some other state or the federal system. Finally, if the case is properly an Illinois workers’ compensation claim, the adjuster must determine whether the policy in force at the time of the accident or disability covers the particular loss alleged.

            A. Is this an Illinois workers’ compensation claim?

This basic question is often overlooked. The assumption is that, if an Illinois workers’ compensation claim is filed, the case involves a loss that should be compensated under Illinois workers’ compensation law. However, in order to recover benefits under workers’ compensation law, the activities must be covered by the IL WC Act and not under any other benefit provision in a different system that may be considered exclusive.

For example, if an Illinois employee is working to maintain a watercraft when injured and the vessel is on a navigable waterway, such injuries would be covered by the exclusive provisions of the federal Longshore Harbor and Workers’ Compensation Act, administered by the OWCP. Such injuries would not be appropriately covered by the IL Workers’ Compensation Act, even though the employee was hired by and working for an Illinois employer. U.S. Postal workers are also covered by a similar federal-only WC Act. There are similar laws that have exclusive coverage to eliminate jurisdiction of the Commission to hear the claim.

Another aspect of the WC system coverage question is when the employee can bring a workers’ compensation claim against an employer and when the employee can also sue the employer for the same injuries in civil court. This concept is a possibility but under very limited circumstances. The basic model in the development of workers’ compensation throughout the industrialized world is the injured employee gave up his/her right to bring a common law action against the employer in exchange for workers’ compensation benefits that are more certain and more rapidly provided but potentially lower than what a jury might be able to provide for a similarly severe injury.

There have been a number of strange and complex legal devices that have allowed Illinois employees to maintain common law claims against third parties that might require the employer to pay a part of a jury verdict, but the general rule is supposed to be that the employee cannot sue the employer at common law if he/she is entitled to workers’ compensation benefits.

One clear exception to this concept is when an employer commits an intentional act or hires another to commit an intentional act to injure an employee. For example, if the employer were to hire a ruffian to injure/attack an employee due to a work-related dispute, the employee could seek workers’ compensation benefits and also sue the employer for the injuries suffered in the intentional attack.

In specialized circumstances, the employer and its carrier/TPA may have an ‘option’ with regard to payment of benefits under either workers’ compensation or general liability. For example, if an employer has an employee become injured as a result of slipping on ice and snow while working on company property, it is possible that you might successfully deny the claim for workers’ compensation benefits only to then face a premises liability or other general liability lawsuit which is possibly much more expensive to defend and potentially explosive due to the unpredictability of jury awards.

The employer can ‘opt’ not to fight the workers’ compensation claim and voluntarily pay workers’ compensation benefits which should block any third party claim against the employer if the employee knowingly accepts such benefits.

            B. Illinois jurisdiction

Once it has been established that the claim properly involves workers’ compensation benefits, the adjuster, attorney, or risk manager must determine whether Illinois is the proper jurisdiction for the claim to be heard versus a different state or the federal government.

It is critical to understand a claimant with a single injury, a worker could have a claim for workers’ compensation benefits in a multitude of states. The employer should receive ‘credit’ for any benefits paid in any state under the full faith and credit clause of the United States Constitution and not have to double or triple pay multi-state benefits. There is not much guidance on this legal principle, as such issues aren’t litigated often.

But remember, payment of Illinois benefits does not necessarily block the filing of a claim in another state or states. Conversely, the filing of a claim in another state for benefits or the receipt of such benefits does not preclude an Illinois claim.

Illinois has proper subject matter jurisdiction if one of the following tests are met:

            1. The accidental event occurs in Illinois. This concept applies even if the employee executed a written agreement prior to employment to only seek benefits in another state or forum;

            2. The accident occurs outside Illinois but the ‘contract for hire’ was formed in Illinois. This is the tactic most commonly used to bring out of state claims into Illinois. The contract for hire is said to be finalized where the employee ‘accepts’ the offer of employment which leads to a number of factual disputes;

            3. Employment was ‘principally localized’ in Illinois. This is utilized when the employer may have an out of state headquarters for employees who actually perform the majority of their work in Illinois. This situation frequently occurs in trucking claims where the petitioner establishes the principal localization of work in Illinois by logs indicating the aggregate number of miles driven in Illinois versus other states. There are also cases that hold where work is “centered” in Illinois—employment may be established here so as to create jurisdiction. The concept of “centered” work would mean the employee comes to or calls for assignments in Illinois but does most of their work outside the state.

Please also note the employment cannot be for the various branches of our federal government, nuclear industry or U.S. armed forces. Such workers are exclusively covered by the federal OWCP or Office of Workers’ Compensation Programs. State law does not regulate WC benefits for such workers.

Other factors sometimes cited by the Commission and the courts in subject matter jurisdiction claims include the state of petitioner’s residence, the location of the principal work site and the level of business conducted by the employer in Illinois. These concepts are not contained in the Illinois statute and shouldn’t be germane. The facts are sometimes utilized by the Commission or courts stretching to find jurisdiction by looking for factors considered in other areas of law involving jurisdictional fights.

            C. Pre-injury agreements with regard to jurisdiction

Several years ago, this was an interesting trend among some employers but has waned in recent years. We caution you to be wary of pre-injury agreements to have an employee select or agree to the jurisdiction where benefits will be received upon suffering an injury. We have seen employers with multi-state operations or traveling employees routinely require employees to execute such agreements.

These documents will generally be ignored in Illinois and do not have any real legal effect in this state. However, we are not aware of any prohibition in any state with regard to such agreements. If they are designed to confuse unsuspecting workers after they suffer injury, they may be considered an attempt to defraud the worker of benefits under the law and we consider them unethical for that reason.

It is possible an employee or their attorney will not become aware of his or her ability to make a claim for benefits in Illinois and may act consistent with the agreement with regard to jurisdiction. If workers’ compensation benefits will be paid timely in the state that they have agreed to and a dispute does not arise, this concept may be successful.

           D. ‘Multi-state settlements’

Also, when any workers’ compensation claim is settled, you may attempt to block the filing of other claims by indicating that the settlement is for claims in any state. This technique is employed more for the perception of the employee and his attorney than for its legal effect. Most IL Arbitrators won’t approve such agreements.

For technical reasons which do not bear repetition, this concept probably wouldn’t be legally effective. It does leave petitioner and his counsel with the sense that closure has been reached and may cause them to refrain from filing subsequent claims in other states.

For neophyte lawyers, please remember you can’t ethically provide legal advice and counsel about workers’ compensation rights in states in which you aren’t licensed. If you are asked to do so, you need to tell the client of this concern or join with the client in seeking assistance from a licensed lawyer in the other state.

            E. Insurance Policy Coverage

The adjuster or risk manager must also consider whether the specific policy written for the employer to cover the injured worker covers the loss. The date of accident or disability must fall within the dates/states of coverage although this issue becomes clouded in repetitive trauma claims where no specific incident is identified. It is not uncommon for two or three different insurance carriers to argue the actual manifestation of onset of pain occurred during a different carriers’ policy.

If a coverage question is precipitated by the lapse of the workers’ compensation policy prior to the accident taking place, the insurance carrier must prove the policy was properly terminated. This requires notice to the employer/respondent as well as the IL Workers’ Compensation Commission. Otherwise, the Workers’ Compensation Commission may require extension of coverage through the date of accident to ensure the injured party gets WC benefits.

An additional consideration in policy coverage is the employment position of a given petitioner. If petitioner is a sole proprietor, owner or partner of a business, it is legally possible for such executives to opt out of insurance coverage for injuries and thereby save the premium cost. If there is no election for coverage, the principal may not be entitled to workers’ compensation benefits paid by the carrier. This does not mean WC benefits might not be sought—they would just be not covered by the insurance policy, but by the company the executive worked for. This also might not affect any other common law rights available.

One interesting quirk in Illinois workers’ compensation claims practice is the insurance carrier may be named as a party respondent by petitioner in filing the application for adjustment of claim. This is a little-known and rarely used facet of the IL WC Act. In Section 4(g) of the Act, the employee may join the insurance carrier as “a party to the proceedings in which the employer is a party and an award may be entered jointly against the employer and the insurance carrier.” If there are concerns about the financial status of the employer, it may be a prudent thing for the attorney for a claimant to include the insurance carrier as a party to insure any award or settlement is paid.

F. The Statute of Limitations in Illinois Workers’ Compensation

Section 6(d) outlines a relatively unusual statute of limitations for workers’ compensation claims. Generally speaking, a claim for benefits under the Illinois Workers’ Compensation Act will be barred if an application for adjustment of claim is not filed within three years of the date of accident, or within two years from the last payment of compensation, whichever is later.

Most of the confusion with the statute of limitations is based upon the definition of the ‘last payment of compensation.’ If petitioner is receiving ongoing temporary disability benefits, the statute of limitations can be extended indefinitely. In pure theory, the statute might be extended until well after death!

The Workers’ Compensation Commission is very liberal in their definition of payment of compensation and therefore, an adjuster must be careful not to provide payment to the petitioner close to the running of the statute of limitations. Such a payment, whether it be medical, temporary disability, or permanent disability may allow petitioner two additional years from that payment to file an application for adjustment of claim.

Payment of group disability benefits or medical expenses under a group plan might also extend the time for filing an application.

In the landmark ruling in Durand v. IC, 224 Ill. 2d 53, 64 (2006), the IL Supreme Court indicated they would not apply the statute of limitations to bar a claim where the employee “worked in pain” for the period of the delay. In the perspective of many legal observers, the Durand ruling potentially extends the WC statute of limitations indefinitely because any worker could always testify they “worked in pain” for the period of delay in filing.

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