June 11, 2020

PPI Rates Stay the Same, but Mileage Reimbursement Goes Up, and PPI calc and more

June 11, 2020/ Eugene Keefe

Synopsis: OSHA Enforcement Guidance for Federal Inspections/Record-keeping of COVID-19 Cases Compared to IL Legislation Just Signed by IL Governor Pritzker.

Editor’s comment: Please note Illinois reported 867 new Covid 19 cases yesterday. We hit the peak with around four times that number some time back and Covid-19 may be disappearing soon—please keep distancing and masking. For riskies (or risk managers), this may be gone or minimal in your workplace in about a month.

Our top clients and readers are asking what do we do in response to Governor Pritzker’s signature on the Covid-19 Bill that makes WC/OD coverage somehow “presumptive” for some IL employees. Please note OSHA is federal and applies to all 50 states and DC. Illinois law is nutty, the outcomes hard to predict and covers one state. If/when the virus peters out, we may be able to go back to our lives without further ado, until the next virus trundles in. If you want my thoughts on Governor Pritzker’s new law, stay calm and follow the federal rules from OSHA.

Enforcement Guidance

Federal OSHA has faced recent lawsuits from national labor orgs relating its regulatory response to the Covid-19 pandemic, including its decision not to issue new regulations to address this pandemic. On May 19, 2020, OSHA issued what riskies call an “ERP” or new enforcement guidance (Updated Interim Enforcement Response Plan for Coronavirus Disease 2019, May 19, 2020) acknowledging many non-critical businesses have begun to reopen in areas of lower community spread, and then numerous other businesses will be reopening soon. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available for OSHA workers. According to OSHA, it will “continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.” In the areas of lower risk, OSHA will return to doing more onsite inspections, which have largely been limited to fatality inspections during the pandemic.

This is “Incident Only” Until You Learn Different

A great risk manager asked if we/she has to accept any claim of Covid-19 at work. In my view, handle all reported issues as “incident only” until you receive a reason or evidence from the worker or someone else indicating the condition is due to contact tracing at your workplace.

Please do not deny randomly—the entire nation and civilized world is ready to blame employers for randomly denying Covid-19 claims. If you have a strong basis to deny, then deny. If you don’t and the employee needs your help, help!!!

Hospitals/Clinics Watch Out For OSHA’s New Focus

According to the guidance, OSHA will continue to prioritize COVID-19 cases. The federal agency acknowledged it will continue to target healthcare employers, who have not been a primary target of OSHA enforcement. During an inspection, the ERP instructs compliance officers to examine whether employees “who are expected to perform very high and high risk exposure tasks are using respirators (i.e., N95 or better).” The ERP states in bold text “appropriate respiratory protection is required for all healthcare personnel providing direct care for patients with suspected or confirmed cases of COVID-19.” Area Directors will continue to evaluate potential on-site inspections for COVID risks to OSHA personnel and will not send compliance officers where they perceive a hazard.

For employers with onsite clinics—note the federal rules and follow!!

Enforcement against employers will be largely through the OSHA “General Duty” clause. The ERP provides a sample citation (Attachment 4), again focused on healthcare employment and precautions during the treatment of COVID-19 patients.

Attached to the Updated Interim Enforcement Response Plan are specific enforcement procedures (Attachment 1); a sample employer letter for COVID-19 activities (Attachment 2); a sample hazard alert letter (Attachment 3); and additional references, including OSHA’s prior COVID-19-related enforcement memoranda (Attachment 5).

OSHA Federal Record-keeping Guidance

OSHA is revising its previous enforcement policy for recording cases of coronavirus (Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019, May 19, 2020). Under OSHA’s recordkeeping requirements, coronavirus is a potentially recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:

Is confirmed as a coronavirus illness;
Is work-related as defined by 29 CFR 1904.5; and
Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

Work related cases that result in an employee fatality or must be reported to OSHA by phone or online. Because of the difficulty in determining whether this widespread virus was actually contracted at the worksite, OSHA has stated it will focus on an employers' reasonable, good faith efforts in making work-related determinations.

Gene Keefe (me) wants all employers to understand if you fight a Covid-19 claim without a basis to do so, understand the media will attack and attack some more.

Have a good faith basis if you want to fight during this pandemic.

In determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, OSHA Compliance Officers will consider the following:

· The reasonableness of the employer's (or your) investigation into work-relatedness.

· Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers' lack of expertise in this area.

· It is sufficient for you, when you learn of an employee's COVID-19 illness,

· (1) to ask the employee how they believe they contracted the COVID-19 illness;

· (2) while respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness; and

· (3) review the employee's work environment for potential SARS-CoV-2 exposure.

· The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.

Accordingly, OSHA continues to recognize the difficulty in determining work-relatedness for an exposure and then illness that exists in the community and may be contracted from numerous sources and will assess employers’ reasonable efforts in making work-related determinations. In making the work-relatedness determination, employers have to consider the effect of numerous safety and health procedures the employer has implemented to control and minimize the risk of current and future infections within your workplace.

Your program should be following the guidance of the CDC and OSHA regarding COVID-19. These precautions, when considered individually and collectively, effectively reduce and control the possible risk the COVID-19 virus will be present and/or transmitted to another worker in the workplace. For example, by ensuring your employees are staying home and not at work when they have symptoms that might be COVID-19 you would be eliminating the possibility a worker who is symptomatic with COVID-19 is at work. Further, by following key safety precautions, such as social distancing and wearing masks and face coverings, you are eliminating or significantly reducing the chance a worker will be in “close contact” with someone who may have COVID-19.

If you make a reasonable and good faith inquiry but cannot determine whether it is more likely than not exposure in the workplace caused a worker to contract COVID-19, OSHA says you do not need to record the case or to report a hospitalization or fatality. There is community transmission of the disease, so if you are taking the CDC-recommended precautions, there are very few situations where an inquiry will reveal an employee definitely got the case at work and there is no alternative explanation that is equally or more plausible.

Your individual work-relatedness reasonable inquiry for each COVID-19 case can be short and focused on whether your employee had close contact with other individuals at work (15 minutes or more of contact, within six feet, without face masks or barriers). Cases are not OSHA-recordable without close contact at work with a known or suspected COVID-19 case. Such contact is necessary but insufficient, because the probability of transmission is low and there is normally an alternative explanation of community transmission.

Happy to help with any incident or claim—send a reply or contact JCampbell@keefe-law.com or SBiery@keefe-law.com or me.

Synopsis: Indiana Worker’s Compensation/GL News: TTD and PPI Rates Stay the Same, but Mileage Reimbursement Goes Up, and PPI calculations for Extremities Are Being Changed.

This is a “Must Read.” Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Every year about this time, the new Indiana statutes go into effect on July 1. Also as usual, many WC changes to the statutes were proposed during the Legislature Session, but few actually made it into law. Here is a summary of a few important changes you should know about.

First, although it was proposed and expected, the TTD minimum/maximum rates and PPI rates did not change. Please keep using the same rates that you have used for injuries that occur after 7/1/2016.

Second, the IWCB’s mileage reimbursement rates slightly increased from .38/mile to .39/mile for travel outside the county of employment on or after March 1, 2020. This change is not statutory, but was enacted by the State of Indiana Department of Administration that must be followed by the IWCB per I.C. 22-3-3-4.

Third, there were some statutory changes to the PPI statute (I.C. 22-3-3-10) for vision claims. Subsection (i)(12) was deleted and a new one was substituted: “Visual impairments shall be based on the Functional Vision Score (FVS), assessing the visual acuity and visual field to evaluate any reduction in ability to perform vision-related Activities of Daily Living (ADL). Unless such loss is otherwise specified in subsection (i)(5), visual impairments shall be paid as a whole person rating.”

Finally, although the PPI rates were not changed, the IWCB has instituted Guidelines that will affect PPI calculations for upper and lower extremities from now on. You may have had 1043s recently rejected even though your PPI calculations were based on the same PPI chart we’ve used for decades. If you’d like a copy of these new guidelines, or an updated rate chart, let me know. In summary, a wrist injury will be considered an impairment of the upper extremity, but if use of the hand is also affected, there should be a hand rating as well, and these will be combined. Also, if there are impairments to various parts of a limb, such as an elbow and wrist, the Board will approve payment for the combined rating to the upper extremity.

Also, upper and lower extremity impairments will no longer be separated into above or below the joint except in the case of amputations, per IC 22-3-3-10 (i)(1), (9) and (10). Upper extremity ratings for those joints should be based on 50 degrees, not 40; lower extremity ratings for foot, ankle (and knees) will be based on 45 degrees instead of 35 degrees. These PPI changes are advisory, for general guidance, and not enacted by a new 2020 statute, but these changes are being implement and enforced by the IWCB in approvals and calculations now.

Stay tuned for more. If you have questions/concerns about Indiana worker’s comp, general liability, MVA, employment or any other legal issues, please contact: kboyle@keefe-law.com

Synopsis: Join KCBA’s very own Brad Smith, J.D. for his podcast discussing all trending legal topics.

Editor’s comment: In Brad’s Everything Legal Podcast, Brad discusses the legal world in an understandable and practical way. In his initial episode Brad analyzes the legislation that matters to you and other notable circumstances surrounding the COVID-19 Pandemic. Brad’s podcast will continue to explore legal topics of significance on an ongoing basis. We hope you can subscribe and happy listening to you.

Please subscribe on Apple Podcasts, Spotify, or Anchor by searching “Brad’s Everything Legal Podcast.”

You can also link to the Apple Podcast here: Brad's Everything Legal Podcast.

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;
Investigate and verify claims for other workers possibly not covered by the Rules and
Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com

June 02, 2020

6-1-2020; IL Medical Care Providers Cannot “Lien” An IL Worker's Claim or Settlement To Recover Unpaid Medical Bills; Contact Tracking Apps May Be Inexorably Coming to the U.S. and World Workplace

June 02, 2020/ Eugene Keefe

Synopsis: IL Medical Care Providers Cannot “Lien” An IL Worker's Claim or Settlement To Recover Unpaid Medical Bills.

Editor’s comment: In their ruling in In Re Hernandez, No. 124661, our Illinois Supreme Court followed longstanding precedent to rule a pending WC claim and the proceeds of an IL workers' compensation settlement are not amenable to liens or claims by medical providers who treated the illness or injury.

The facts indicate between 2009 and 2011, Claimant Hernandez sustained on-the-job injuries and received medical treatment from Ambulatory Surgical Care Facility, Marque Medicos Fullerton LLC, and Medicos Pain and Surgical Specialists S.C.

In December 2016, she filed a Chapter 7 bankruptcy petition in the U.S. Bankruptcy Court for the Northern District of Illinois. She reported she owed

$28,709.60 to Ambulatory Surgical,
$58,901.20 to Marque Medicos Fullerton, and
$50,161.26 to Medicos Pain and Surgical Specialists.

You will note these medical bills total $137,772.06.

Claimant Hernandez reported minimal assets, listing $1,300 in bank accounts, some inexpensive jewelry, and her pending workers' compensation claim, which she valued at $31,000.

Two days later, Hernandez settled her claim for $30,566.33 or 7.5% BAW. You will also note the unpaid bills were around 4 times the amount the claim settled for. The settlement was approved by Arbitrator Kane. Claimant entered into the settlement without consulting the bankruptcy trustee because she believed the full amount of her settlement was exempt under Section 21 of the IL Workers’ Compensation Act.

Section 21 generally provides no payment under the IL WC Act shall be assignable or subject to most liens or be used in any way for most debts, penalties or damages. The three medical providers, Ambulatory, Marque Medicos Fullerton and Medicos Pain protested, and a bankruptcy court judge found Hernandez’s settlement proceeds were not off-limits to the named care providers.

Claimant Hernandez appealed to the U.S. District Court for the Northern District of Illinois. A judge affirmed and Hernandez sought review by the U.S. 7th Circuit Court of Appeals. The Seventh Circuit is the penultimate step before a case might go to the U.S. Supreme Court. The parties agreed Section 21 historically placed workers’ compensation awards beyond the reach of creditors in bankruptcy proceedings, but they disagreed as to whether the rule remained true after the IL WC Act was amended in 2005.

The 7th Circuit noted neither the Illinois Appellate Court nor the Illinois Supreme Court has addressed the effect of the 2005-2006 Amendments to Section 21, so it certified the issue/questions to the Illinois Supreme Court.

The Illinois Supreme Court noted federal bankruptcy laws contain provisions specifying what property may be claimed as exempt, but an individual may “opt out” of the exemption scheme. Illinois has exercised the option, which means that in federal bankruptcy proceedings, state residents are restricted to exemptions granted by state law. For purposes of determining whether property is exempt under Illinois law, the IL Supreme Court said the critical inquiry is simply whether the provision unequivocally protects the identified property against all forms of collection.

Section 21 of the IL WC Act expressly provides any payment, award or decision under the Workers’ Compensation Act is generally free from claims to satisfy debts, the opinion said. The IL Supreme Court confirmed there are a few statutory exceptions to Section 21, including one allowing the beneficiary of a deceased employee who was a member or annuitant under Article 14 of the Illinois Pension Code to assign benefits payable under the Act to the State Employees' Retirement System. The General Assembly has also created an exception to Section 21 to allow workers’ compensation recoveries to be fully subject to unpaid child support monies due. The IL Supreme Court said the provisions demonstrate, when the IL General Assembly intended to create an exception, it expressed its intention in language so clear and explicit that it could not be misunderstood.

“No similarly explicit exception for claims by health care providers appears in the Workers' Compensation Act itself or in any other Illinois statute,” the Supreme Court opinion states.

The health care providers' claim to an exception to Section 21's exemption rests exclusively on the 2005 amendments to the Workers’ Compensation Act. The amendments changed the amount of compensation due employees for accidental injury not resulting in death, and created fee schedules limiting the amount that can be collected for treating compensable injuries. The providers argued an exception to Section 21 for claims by health care providers was somehow “implicit” in the statutory changes, but the Supreme Court was not persuaded.

“The repeal or amendment of statutes by implication is not favored,” the court’s opinion said. “Had the legislature intended to alter the clear and unambiguous provisions of Section 21 by conferring on health care providers a new exception to the exemption, it would have had to indicate a clear intent to do so.”

While one of the 2005 amendments allows health care providers to seek payment directly from an injured employee for outstanding bills, plus interest, following a final compensation award, judgment or settlement, the Supreme Court said the change does not permit health care providers to look to the proceeds as a source of payment.

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

Synopsis: Contact Tracking Apps May Be Inexorably Coming to the U.S. and World Workplace.

Editor’s comment: As I have advised my readers, we are not in the first world pandemic and this isn’t going to be the last. The cost of this pandemic has bankrupted various businesses and will be a continuing challenge for all of us in the work comp arena. As I have advised the least expensive WC/OD-related death in IL work comp can be worth over $700K and the top is several million dollars. As we can all tell from what is happening across the globe, pandemics are life-changing events.

How Do Companies and Local Governments “Defend” OccDisease Claims?

In short, we are going to go “analog” to try to track human contacts who might have infected a worker. As a risk or claims manager you would simply ask the sick worker where they have been and who they have been with. You then have to see who might have infected your worker(s), if you can get cooperation from the folks you poll. To me, this is cumbersome and allows for what I will call “fudging.”

On the other hand, a “digital” approach is called “Contact Tracking Apps.”

As the covid-19 pandemic rages, technologists everywhere have been rushing to build apps, services, and systems for contact tracing: identifying and notifying all those who come in contact with a carrier. Some are lightweight and temporary, while others are pervasive and invasive: China’s system, for example, sucks up data including citizens’ identity, location, and even online payment history so local police can watch for those who break quarantine rules. Americans and lots of other folks across the globe don’t want their privacy invaded.

Some services are being produced locally by small groups of coders, while others are vast, global operations. Apple and Google are mobilizing huge teams to build their upcoming systems that notify people of potential exposure, which could be used by hundreds of millions of people almost immediately.

Opinions differ on whether these apps are just a technocratic daydream or—if done correctly—a potentially useful supplement to manual tracing, in which human workers interview people who’ve been diagnosed with Covid-19 and then track down their recent contacts. But the reality is that these services are already rolling out, and many more are likely to come in the next few months.

Despite the avalanche of new tech, we know very little about them or how they could affect society. How many people will download and use them, and how widely used do they have to be in order to succeed? What data will they collect, and who is it shared with? How will that information be used in the future? Are there policies in place to prevent abuse?

When comparing apps around the world, you will learn there was no central repository of information; just incomplete, constantly changing data spread across a wide range of sources. Nor was there a single, standard approach being taken by developers and policymakers: citizens of different countries were seeing radically different levels of surveillance and transparency.

MIT Database

The geniuses at MIT are seeking to create a database with a compendium of information about contact tracing apps. It is easy to find with a simple Google search.

If you’d like to know more about automated contact tracing and exposure notification, here are a few relevant papers and documents.

Outpacing the Virus: Digital Response to Containing the Spread of COVID-19 while Mitigating Privacy Risks (Harvard Center for Ethics)

COVID-19 Rapid Evidence Review: Exit through the App Store? (Ada Lovelace Institute)

Contact Tracing Mobile Apps for COVID-19: Privacy Considerations and Related Trade-offs (Cho, Ippolito, Yu)

PACT: Private Automated Contact Tracing (MIT)

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

Synopsis: Join KCBA’s very own Brad Smith, J.D. for his podcast discussing all trending legal topics.

Editor’s comment: In Brad’s Everything Legal Podcast, Brad discusses the legal world in an understandable and practical way. In his initial episode Brad analyzes the legislation that matters to you and other notable circumstances surrounding the COVID-19 Pandemic. Brad’s podcast will continue to explore legal topics of significance on an ongoing basis. We hope you can subscribe and happy listening to you.

Please subscribe on Apple Podcasts, Spotify, or Anchor by searching “Brad’s Everything Legal Podcast.”

You can also link to the Apple Podcast here: Brad's Everything Legal Podcast.

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;
Investigate and verify claims for other workers possibly not covered by the Rules and
Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.