12-10-2020; WC News You May Have Missed; When Do IL Carriers/Employers Have to Hire VocRehabbers and more

Synopsis: Three Newsworthy Items for Our WC Readers.

Editor’s comment: I feel the nutty national media is missing a couple of things that WC risk managers, claims handlers and other interest parties should be aware of.

First—The Great Pandemic of 2020 Is Ending Soon!!!

Understanding how much we all like walking into a restaurant or retail outlet to then have to go back and get our masks, I want all my readers to understand, this ongoing financial, social and medical disaster has been solved!!! The doctors, researchers and vaccinologists found the cure. What you and I and everyone on this planet has to do is convince everyone to get the two shots needed to become almost certainly immune. Right now both Pfizer and Moderna have confirmed their vaccines are safe and work 19 out of 20 times. That is awesome when you consider this plague first hit about nine-ten months ago. The vaccine is being sent to a needle near you. I am signing up the minute I can get it.

This means we all need to get the shots and encourage friends and family members and co-workers they have to get the shots too. If you get the shot—duh—you are almost certainly immune, which means you can’t get sick and you can’t make anyone else sick. As I wrote a couple of weeks ago, the fussy Feds aren’t going to allow you to “force” folks to get the shots and you are going to be hard-pressed to fire/terminate a worker that doesn’t want the two injections needed but please, EVERYONE, please start trying a positive and forthright approach to let everyone know there is a cure and we all want to go back to restaurants, bars and work sites to have COVID-19 disappear forever. The faster we start getting vaccinated, the faster this bug is going to stop attacking our family, friends and co-workers.

Second—Joe Biden is Going To Be Our Next President.

Nuff said. Please get over it and start to deal with it. Please fight the urge to write and tell me the second-place finisher got “robbed”—I have heard it and don’t believe it. Almost every State has certified its votes. In fact, the election wasn’t actually close. For Illinoisans, we are now facing a Democrat President, Governor, Senate and House. We will see what that means to IL workers’ comp and other benefit costs.

Third—Probably the Biggest Change That is Inexorable in WC is Driverless Cars/Trucks/Buses.

About one in five jobs in this country are folks in the transportation industry. There are driverless cars and trucks that have gone literally millions of miles without an accident or fender-bender. Chevrolet has five cars in San Francisco, one of the toughest cities in the U.S. to drive in because of their hills and dales and the driverless cars are much, much safer than humans.

What I tell all my trucking clients and friends in that industry, if you don’t have “humans,” you don’t need human resources. We will see how this plays out but trust me, WC in the trucking and transportation industry is certain to change due to automation. Forewarned is forearmed—if you are in the transportation industry, expect lots of change.

I appreciate your thoughts and comments. Please, please don’t shoot the messenger. Feel free to post your comments on our award-winning blog.

Synopsis: When Do Illinois Insurance Carriers/Employers Have to Hire Voc Rehab for IL WC Claims?

Editor’s comment: Following up on the article from last week, remember we are dealing with a sample claim where the employer terminated the injured worker in the normal course of business and the worker has job restrictions from either an FCE or an medical caregiver. The problem is how to get such folks back into a workplace—any Illinois workplace.

One of our partners confirmed many Claimant attorneys, when asked about job search logs or documentation of efforts to find work make a common demand—provide voc rehab/counseling. I have both good thoughts and challenging thoughts about such a request.

Good Thoughts?

A request for voc rehab/counseling does mean you are going to have some level of cooperation and participation from the injured worker. It also means you are going to have a paper trail of job search efforts while you are paying TTD. 

There is an often-ignored Rule 7110.10 in the Rules Governing Practice Before the Workers’ Compensation Commission ostensibly requiring voc rehab when the injured worker is continuously off work for 120 days. If you want the body of that Rule, send a reply. The Rule lays out what voc counseling is supposed to be. The concern about the Rule is there is no penalty on either side for ignoring it. Please note very few Claimant attorneys will even consider it.

Challenging Thoughts about Voc Rehab

My main challenging thought about voc rehab/counseling in general is you are treating an adult worker as if they are a child. It is hard for me to believe an adult needs “help” to find work. Someone who is starving or facing bankruptcy is going to locate work to survive. Survival is one reason we put up with difficult and demanding jobs—that is why they are called “jobs.” As teen-agers, we were all taught by our parents, family members and friends that when you want/need a job, you refer to the Want Ads in the newspaper or on online job websites and start applying for work until you find something suitable. The idea of having to hire someone to tell a worker to look at the Want Ads or get-job websites is silly to me.

Along with treating the injured worker like a child, I also feel voc rehab/counseling is expensive, time-consuming and truly unpredictable. The certified vocational counselor or CRC has to schedule the initial meeting, usually at Claimant counsel’s office. A CRC has to find out the skills and training of the injured worker. The CRC has to determine if the worker is going to be motivated to seek jobs in the labor market around the injured worker’s home. 

Another challenging concern about initiating voc rehab is there are some CRC’s who won’t stop themselves to tell you the Claimant isn’t doing what is needed to locate work and your money and their services are being wasted. I don’t feel voc rehab should ever be provided for more than 90 days. I have had CRC’s criticize me for saying this but let’s be frank, if the injured worker isn’t listening and doing what is needed to locate work, no CRC on the planet can make that horse drink water and find a job. If the injured worker doesn’t have a job within 30-60 or at very most 90 days, shut down voc and get a report from the CRC as to why Claimant is failing Voc Rehab 101. 

Staffing Companies Are “VocRehab” and Need to Be Considered In Getting Injured Workers Back to Work

Please note there are lots of staffing companies across the U.S. These companies have lots of jobs and need warm, capable bodies to fill them. My vote for all your claims when Claimants balk at seeking work, tell them to be sure to sign up with/file applications with as many staffing companies as they can locate. The staffing companies are smart and sharp and will bring in motivated folks to fill positions that match what a claimant is able to do.

Last But Not Least—Do the VocRehab for Claimant

Right now, as you read this, there are lots of “get-jobs” websites. Indeed, Monster and GlassDoor are the top three get-jobs websites but there are lots and lots more. Trust me, they have lots and lots of jobs for Spanish-speaking workers and folks with restrictions of all sorts. Your injured workers can list with them and they will get emails and updates galore.

When I am asked to get voc rehab for an injured worker, I quickly search online and find 50 suitable positions and send them to opposing counsel. You can do this on your non-litigated claims too.

I appreciate your thoughts and comments. Feel free to post your comments on our award-winning blog.

12-1-2020; In IL WC, When is Claimant Entitled to TTD?; Two New IL Arbitrators Appointed and more

Synopsis: In IL WC, When is Claimant Entitled to TTD (Temporary Total Disability)?

Editor’s comment: I have had so many WC attorneys and others question this simple concept, I figured it was time to give my readers my best thoughts.

I want to start this article with an example that presumes these claim facts—Claimant suffered an accepted work-related injury. The worker’s claim for WC benefits was accepted by the employer/insurance carrier/TPA. Medical care was provided at the employer’s cost. Lost time benefits, TTD was paid. When can the employer terminate TTD?

Please note there are different factors that may lead to termination of TTD in the Illinois WC system. 

First, the employee could pass away—if that occurs, there are two potential outcomes but TTD would end on the passing of the worker—you don’t and can’t owe “temporary total disability” to someone who has passed. If the injured worker passed from “injury-related” causes, the claim would morph into a death claim and death benefits might be due if there is a spouse or dependent family members as outlined in Section 7 of the IL WC Act. If you aren’t sure of handling of death benefits, send a reply and I am happy to outline and advise on anything needed.

On the other hand, if the employee passed from non-work-related causes, let’s say as an example, a cancer that had nothing to do with the work event, temporary benefits would end with the passing of the worker—permanency/impairment might lie for an existing injury. There are a number of issues that would need to be resolved for the estate to get PPD—again, if you need advice, send a reply and I will get you answers.

Next, we can debate whether a typical WC claim involving medically modified work restrictions will have TTD owing based on the treater’s work recommendations/restrictions or whether the status of “MMI” or maximum medical improvement is to be the guide. I want to carefully restate again—TTD can depend on

• Work restrictions provided by the treater or IME docs or

• MMI or the end of active and work-related medical care.

In my view, work restrictions from a treater or IME doc should “trump” or take precedence over MMI. First and most important, getting a worker back into the workforce by itself is, to some extent, “medical care” and can lead to stronger medical outcomes. Also, it is possible for treaters to be less than cognizant of the importance of MMI to a WC claim. We will see doctors setting appointments weeks and months in the future for a final checkout of the patient’s recovery—if a doctor does that, it shouldn’t link to months or years of eligibility to receive TTD, should it?

When the injured employee reaches the status that our Illinois courts have adopted from other states that is called “maximum medical improvement,” the worker has reached a medical plateau and no longer is in the active and ongoing care of a physician or other healthcare giver. In routine medical parlance, you will see doctors or nurses put notes into a medical chart that says “return PRN” which means any return by the patient for further care is “per required need.”  

Please always remember what I also call “Gene’s Rule”—if a worker doesn’t get medical attention or stops seeing a medical caregiver, they don’t need it. No doctor in the U.S. can “force” someone to get medical care—the man or woman has to consent to the care and attend the needed medical sessions, be it examinations, diagnostics, physical or occtherapy, Pharma care and other modalities. If they are disinterested or tired of seeing doctors, I feel you can treat them as being at MMI. I feel many of our great and professional IL WC Arbitrators and Commissioners take the same position.

It has always been my focus to tell risk managers, claims adjusters, attorneys on both sides and support staff—if you are going to successfully handle a WC claim, you need a “target date” or some reasonable expectation of when an injured worker will reach both RTW—light and full and then MMI from any given injury. It isn’t rocket science. For example, take a 45-year-old factory worker with a broken ankle and a single surgery—how long should that man or woman be off all work and under the active care of a physician? I would suggest lost time should be two weeks if there is light work available and six weeks if not. I would suggest MMI should be reached  in 60-90 days. Each case can be somewhat unique but the median for both RTW and MMI are generally simple to predict and implement.

So What About Restrictions? If Claimant has Work Restrictions and Doesn’t Return to Their Former Job, isn’t TTD due?

Work restrictions create a two-part challenge for IL employers. First, it is arguably “against the law” or a violation of ADA to fire someone who suffered an injury and has restrictions that might still allow them to do the essential job duties of their former position (assuming you still had an open spot). All U.S. employers are supposed to have an “interactive discussion” with the worker to see if you can place them in an open position and reasonably accommodate their restrictions. If you need help with this concept, send a reply.

If the worker has reached MMI and has restrictions and the employer doesn’t have a position available—the worker is not yet entitled to TTD. I assure all of my readers something is missing.

Please Note an IL Worker is NOT Entitled to Unemployment Compensation Simply Because They Lose Their Job. An IL Worker with Restrictions isn’t Entitled to TTD Simply Because They Don’t Have Work!

This isn’t a trick question—an IL Worker who is entitled to Unemployment Compensation when/if they lose their job has to be looking for work and document that job search for IDES—the IL Dept. of Employment Security. Similarly an IL Worker who is at MMI and might be entitled to TTD when off work has to be looking for work.

I recommend claims adjusters and risk managers and defense attorneys make it clear to any Claimant or their attorney when the injured worker approaches MMI—please start looking for work within your abilities and asserted restrictions so you might remain entitled to TTD. Please tell the Claimant or their attorney, if there is one involved, you are going to need documentation of the work search and/or job search logs to support your continued payment of TTD.

Right now, as you read this, I/we have claim after claim in our office where Claimant has restrictions and we are asking their attorney, in writing, for job search logs. Some attorneys are confirming their clients are looking for work and provide written documentation. Others are fighting the request and clowning around and asserting their client’s restrictions clearly make the worker a total and permanent disability. Thankfully, the Arbitrators and Commissioners in this State are still calmly asking why Claimant is at MMI and isn’t doing a documented job search. Those hearing officers are quietly telling Claimant’s counsel to complete their trial preparation by documenting in writing efforts to seek work. Please note within less than five years, the IL Minimum Wage is going to be $15 per hour—anyone with any full-time IL job is going to be making around $600.00 a week or more.

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

Synopsis: Two New Illinois WC Arbitrators appointed. Please remember Illinois is a one-party Democratic State and we expect these new appointments to be somewhat liberal and pro-employee. We are also sure they are consummate professionals and will closely follow the IL WC Act and Rules. The appointments are subject to IL Senate approval.

Rachael Sinnen will serve as an Arbitrator for the Workers’ Compensation Commission. Currently, she is an Associate Attorney at Elfenbaum, Evers & Zielinska, P.C. where she represents the majority of the firm’s Spanish-speaking clients in their workers’ compensation claims. This is the second attorney from that Claimant firm to be selected as an Arbitrator. Previously, Ms. Sinnen worked at a variety of law firms as an Associate Attorney and Law Clerk, in addition to serving as an volunteer coach in Trial Advocacy. In addition, Ms. Sinnen is the Vice Chairwoman of the Young Lawyers’ Section of the Workers’ Compensation Lawyers Association. She received her Bachelor of Business Administration in Finance, her Bachelor of Arts in Spanish and her Master of Business Administration in Finance from Loyola University Chicago. She went on to earn her Juris Doctor from Chicago Kent College of Law.
 
Raychel Wesley will serve as an Arbitrator for the Workers’ Compensation Commission. She served as the Domestic Violence Staff Attorney at Prairie State Legal Services where she covers issues such as orders of protection and civil no-contact. Previously, she was an attorney at a variety of law firms in Illinois. Wesley is a founding member of the Black Bar Association of Will County and is active in giving back to her community. She received her Bachelor of Science in Business Education from DePaul University, her Juris Doctor from DePaul University College of Law, and a certification in Paralegal Studies from Roosevelt University.  

Synopsis: We have an important new Indiana WC defense verdict you should know about: Gilley’s Antique Mall v. Sarver: Plaintiffs cannot add new defendants after the two year statute of limitations runs. Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D.

Editor’s comment: It doesn’t happen very often, but we have a newly published Indiana Court of Appeals decision on an important statute of limitations worker’s compensation issue. The case is Gilley’s Antique Mall v. Sarver, __ N.E.3d. __, 2020 WL 5808386 (Sept. 30, 2020). Plaintiff fell through a roof while he worked on a job site, sought medical treatment and then continued working on the project until it’s completion. The opinion did not discuss whether the claim was accepted or whether benefits and treatment were paid for. Eventually an Application for Adjustment of Claim was filed before two years from the date of the injury. Two years and four months after the date of injury, Plaintiff filed an Amended Application asserting claims against other defendants when it turned out the original defendant didn’t worker’s compensation insurance coverage. Ten months after that Amended Application, another Amended Application was filed to add another defendant. Defendants filed a motion to dismiss for failure to add them to the case within the two year limitation period set forth in IC 22-3-3-3. The Single Hearing Member granted the motion and dismissed those defendants. The Full Board reversed and allowed the late additions under 631 IAC 1-1-7 and the secondary liability provisions of the Act.

The Indiana Court of Appeals reversed the Full Board, and dismissed the Defendants. In summary, the Court held that allowing plaintiff to add new defendants extended the statute of limitations without authorization, it was erroneous and contrary to the Act. Nowhere in IC 22-3-1-3 is the Board delegated authority to increase the two year statute of limitations for filing claims.

The two year cut off has always been, and with this ruling, still is, very important to consider. Please keep this in mind with any new claims that come up after the two years from the date of injury. The two year deadline may also apply to your claims where plaintiff does not file an Application against any defendant, too. If you have any issues like these, please contact me and let’s discuss the potential defense.

Kevin can be reached at kboyle@keefe-law.com.

11-24-2020; Can U.S. Employers Require Workers to Vaccinate? And What Happens If Your Folks Refuse the Vaccine?; Kevin Boyle, JD on important new Indiana defense ruling and more

Synopsis: Can Employers Require Workers to Vaccinate? And What Happens If Your Workers Refuse the New Vaccine?

Editors Comment: To my understanding, there are two ways the Great Pandemic of 2020 is going to end—“Herd Immunity” or an effective and new vaccine.

“Herd Immunity” is simple and sporadic—right now, 12,637,714 people have such immunity, as they got the disease and should be immune (or no longer with us—not to be rude), going forward. When enough people have the disease and recover from it they have the antibodies needed to fend off future re-infections; around 12.3M U.S. citizens should be immune. If you research the concept of herd immunity, you will note it is not a precise science we can rely on, as there are lots of unknowns about COVID-19. It also doesn’t appear to be a great idea to encourage or force people to get sick and maybe die to end a virus. Duh.

Ending the Great Pandemic of 2020—Vaccines are Coming!

To truly and more safely end the Great Pandemic, we need an effective vaccine or vaccines. Without question, a vaccine is the best scientific method to attack and block infections and re-infections on this shrinking planet. When I say that, I mean we have to have effective vaccines and the willingness to take the shots! I am signing up the day they are available and I suggest you do too.

It appears two groups have figured it out. Actually, one news source indicates the Chinese science community figured out the RNA string that led to the vaccine(s). This concept is considered an amazing breakthrough that may greatly advance “vaccinology” going forward.

Right now, Pfizer/BioNTech and Moderna have developed separate vaccines considered 95% effective in blocking COVID-19 infections. Both vaccines requires two doses and there is a “two-shot” 28-day waiting period for the vaccine to take full effect and provide needed antibody protection. Early “user reviews” indicate there are side effects you may expect for your workers who get the shots that are similar to having a “bad hangover.” These effects are transient and disappear in the majority of test subjects relatively rapidly. Safety in using either of the vaccines appears fairly clear. A third vaccine from AstraZeneca may be used in other parts of the world.

This is all coming by the millions of doses in December 2020—we aren’t talking months or years, this is hitting risk and employment managers very soon!!!

To my understanding many businesses are considering implementing mandatory vaccination policies for the coronavirus called COVID-19. If the Pfizer/BioNTech and/or Moderna vaccines provide a safe and widely accessible vaccine this should allow businesses to open their work sites and start returning to a productivity and normalcy—we could all stop looking like “bank robbers” because you might not have to wear masks, shields and gloves to perform normal work. If you don’t want mandatory vaccines, consider encouraging and educating your folks to not get sick from this malady and possibly die from it. Trust me, thousands of folks have already tested both of the major vaccines.

U.S. employers are caught in the odd position of having to protect your workers and customers from possibly lethal infection in your worksites as well as respecting the wishes of individual employees who may object to being required to be vaccinated in order to return to or remain at work. 

Please also note—if your workers get temporarily sick from a non-mandatory vaccine itself and then oddly claim their malady is “work-related,” consider putting up with some of these sorts of shenanigans for a time. Consider the public relations impact of fighting such claims. My vote is avoid a rabid and wacky media blitz about your company.

The issue on folks that don’t want a COVID-19 vaccine then involves the new inbound “liberal” Federal administration for both the Equal Opportunity Employment Commission regulations and guidance, as well as OSHA workplace safety rules and their guidance. Employers mulling mandatory vaccination policies need to consider:

• How to decide if a vaccine policy is good for your company,

• How you might very carefully enforce a vaccine policy,

• The medical risks of requiring vaccines that might injure/disable or kill your workers;

• The legal risks of mandating and enforcing a vaccine policy, and

• Work comp/OccDisease responsibilities in administering a vaccine policy.

Every article I have read in my legal research indicates you have to proceed with caution. You may note our incoming President-to-be is bringing in the hyper-aggressive, business-challenging folks that were in place during the Obama administration.

In 2009 Pandemic guidance issued during the H1N1 influenza outbreak, the EEOC stated both the Americans with Disabilities Act and Title VII bar a U.S. employer from compelling its workers to be vaccinated for influenza regardless of their medical condition or religious beliefs — even during a pandemic. You can agree or disagree but this states how the EEOC may act moving forward. The guidance stated under the ADA, an employee with underlying medical conditions should be entitled to an exemption from mandatory vaccination (if one was requested) for medical reasons. And Title VII would protect an employee who objects due to religious beliefs against undergoing vaccination. In these cases, the employer could be required to provide accommodation for these individuals (such as working from home). If you don’t provide accommodation, you can be sued and owe the other side’s legal fees and costs.

Additionally, the employer would have to enter into an “interactive process” with each worker to determine whether a reasonable accommodation would enable them to perform essential job functions without compromising workplace safety. You company can be sued for not offering this process. This could include:

• The use of personal protective equipment,

• Moving their workstation to a more secluded area,

• Temporary reassignment,

• Working from home, or

• Taking a leave of absence.

One issue which may not have any legal standing is if an employee objects to inoculation based on being an “anti-vaccinatable,” or someone who objects to vaccines believing they are inherently dangerous. In this case, depending on which state your business is located, you may or may not be able to compel someone who randomly objects to vaccines to get a shot.

Protecting You and Your Company

To mount a successful defense of a vaccination policy if sued, you need to be able to show your policy is job-related and consistent with clear business necessity. Assuming your rationale is based on facts and relate to each employee’s job description—you have to document you are enforcing the policy consistently without prejudice or favoritism. Also, you must ensure that any employee who requests accommodation due to their health status or religious beliefs does not suffer any adverse consequences. In other words, you cannot punish someone protected by the ADA or Title VII for refusing a vaccine. Also, under HIPAA, you need to protect and safeguard your employees’ medical information.

In my view, once a vaccine or vaccines are widely available, most employers will have the right to require your workers get it, as long as you heed my advice above about the ADA and Title VII.  If you do implement a policy requiring vaccination, consider:

• Fully covering vaccine costs if they are not fully covered by your employees’ health insurance.

• Allowing employees to opt out entirely if they have medical or religious objections.

• In the event of a medical or religious objection, you must engage in an “interactive process” to determine whether the individual’s objections can be accommodated. Send a reply if you need help.

• Include safeguards for keeping employees’ medical information confidential.

The Weird IL OC Act

The Illinois OD Act has an odd provision indicating a voluntary vaccination might be required to “arise out of” and occur “in the course of” employ. This is a challenging provision that we don’t feel lots of folks are aware of—I was advised about it from an in-house attorney with a great hospital chain. If you are concerned about this or the compensability of any COVID-19 claim, send a reply. I assure you I can help defend such claims.

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

Synopsis: We have an important new Indiana WC defense verdict you should know about: Gilley’s Antique Mall v. Sarver: Plaintiffs cannot add new defendants after the two year statute of limitations runs. Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D.

Editor’s comment: It doesn’t happen very often, but we have a newly published Indiana Court of Appeals decision on an important statute of limitations worker’s compensation issue. The case is Gilley’s Antique Mall v. Sarver, __ N.E.3d. __, 2020 WL 5808386 (Sept. 30, 2020). Plaintiff fell through a roof while he worked on a job site, sought medical treatment and then continued working on the project until it’s completion. The opinion did not discuss whether the claim was accepted or whether benefits and treatment were paid for. Eventually an Application for Adjustment of Claim was filed before two years from the date of the injury. Two years and four months after the date of injury, Plaintiff filed an Amended Application asserting claims against other defendants when it turned out the original defendant didn’t worker’s compensation insurance coverage. Ten months after that Amended Appiation, another Amended Application was filed to add another defendant. Defendants filed a motion to dismiss for failure to add them to the case within the two year limitation period set forth in IC 22-3-3-3. The Single Hearing Member granted the motion and dismissed those defendants. The Full Board reversed and allowed the late additions under 631 IAC 1-1-7 and the secondary liability provisions of the Act.

The Indiana Court of Appeals reversed the Full Board, and dismissed the Defendants. In summary, the Court held that allowing plaintiff to add new defendants extended the statute of limitations without authorization, it was erroneous and contrary to the Act. Nowhere in IC 22-3-1-3 is the Board delegated authority to increase the two year statute of limitations for filing claims.

The two year cut off has always been, and with this ruling, still is, very important to consider. Please keep this in mind with any new claims that come up after the two years from the date of injury. The two year deadline may also apply to your claims where plaintiff does not file an Application against any defendant, too. If you have any issues like these, please contact me and let’s discuss the potential defense.

Kevin can be reached at kboyle@keefe-law.com.