2-1-2021; Surprising Guidance from EEOC about Vaccines in Workplace--Do You Want to Step in That Bear Trap?; Shawn Biery's New IL WC Rate Sheet is Out!!! and more

Synopsis: Mandating vaccinations in the workplace? Surprising Guidance from EEOC… But Do You Want to Step in that Bear Trap? Thoughts and Opinions by John P. Campbell.

Editor’s Comment: As U.S. employers struggle to get their mind around the “rebuttable presumption” of workplace Covid-19 exposure, a new host of questions are emerging with the arrival of vaccinations.

With most front line workers and many elderly nursing home folks now vaccinated, the roll-out of vaccinations to the greater American workforce is afoot. Naturally, we are getting questions from clients and insurers:

Should we as employers mandate vaccinations for the health and safety of all employees? We feel the better question: Do you want to? 

We were quite surprised to see a guidance memo from the EEOC suggest that employers can compel vaccinations… or to put it more accurately, make vaccination a condition of continued employment by asking for vaccine verification. The EEOC memo reasoned that vaccinations are not “medical examinations” as defined under the ADA, so there is no inherent HIPAA violation with such an inquiry, stating “if a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.”

While not explicitly stating it, this language at least implies that U.S. employers may require employees to be vaccinated as a condition for continued employment. Note that some employers in the medical field, such a hospitals who would vaccinate their own employees, may need to inquire into medical background before administering the vaccine, so we question whether that ADA line is crossed regarding inquiring into an employee’s private medical background. There would be no such concern for employers who simply require their workers to find a third party to administer the vaccine.

Despite this guidance from the EEOC, we fear that compelling vaccination of your workforce opens Pandora’s Box to a host of potential pitfalls and potential liability:

• Employees may assert religious or medical basis to refuse vaccination and then ADA accommodation obligations comes into play for the employer. Is the medical basis valid? How deep do you dig into medical or religious background to determine if the basis is “valid”? Does the refusal of the vaccine create a legitimate health or safety risk to other employees? Any rejection of these religious or medical excuses may invite an adverse employment claim.

• If the medical basis for refusing the vaccine is valid, now an accommodation under the ADA interactive process will be triggered. Do you allow permanent work from home? Re-assignment or relocation?

• While limited thus far, we have some reports of adverse reaction to the vaccine. If employers “mandate” vaccination and an adverse reaction occurs, it won’t take long for a Petitioner’s attorney to come calling.

In this vein, Illinois employers should also be aware of Section 2 (d) of the Occupational Disease Act dealing with compensability for injuries resulting from adverse reaction to inoculations. The Act provides in relevant part:

Any injury to or disease or death of an employee arising from the administration of a vaccine…as part of a voluntary inoculation program in connection with the person's employment or in connection with any governmental program or recommendation for the inoculation of workers in the employee's occupation, geographical area, or other category that includes the employee is deemed to arise out of and in the course of the employment for all purposes under this Act. 

While we certainly don’t intend to  discourage a wide-spread inoculation effort, we must warn that a company sponsored inoculation program may appear employer “directed” rather than voluntary.

Our best advice is to avoid these pitfalls and potential legal landmines. Rather than requiring the vaccine of your workforce, strongly encourage vaccination of your employees by providing information on availability and allowing them time off work if a scheduled vaccination is during work hours. Such a policy promotes a safe work environment but also avoids the stickier issues outlined above. Whatever we do, let’s work as Americans to rid our country and the world of this curse.

This article was researched and written by John P. Campbell, Partner at Keefe, Campbell, Biery & Associates, LLC.

Synopsis: Shawn R. Biery’s Famous IL WC Rate Sheet with All-New IL PPD Max Now Available! Get a Free Copy TODAY!!!

Editor’s comment: As the IL minimum wages increase, so do the WC rates. Our IL WC Commission (IWCC) posts new rates and Max PPD rate has increased significantly--UPDATE RETROACTIVELY(!).

To any of our readers and/or fans, Send a Reply to Marissa mpatel@keefe-law.com to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

There will continue to be IL WC Rate increases because the statewide minimum wage is going to increase steadily for the next several years. Please don’t shoot the messenger, we are not even sure it won’t go higher before the new car smell is off the freshly laminated Rate Chart you will soon receive.

As mentioned before, twice every year, starting in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, your IL WC rates keep climbing.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $871.73 (significantly up from $836.69).

When it was published, this IL PPD Max rate changed retroactively from July 1, 2020 to present. If you reserved a claim based on the prior IL WC PPD rate for the period from July 1 to right now, your reserves are wrong. CHECK YOUR IL MAX PPD RATE CLAIMS!

If you have a claim with a date of loss after July 2020 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies and, if it does, immediately reset reserves to insure accuracy.

To recap the other changes from January 2021:

• The current TTD weekly maximum has risen to $1,613.93.

• An IL worker has to make over $2,420.90 per week or $125,886.80 per year to hit the new IL WC maximum TTD rate.

• The new IL WC minimum death or T&P rate also went up.

• The IL WC minimum death benefit is 25 years of compensation or $605.23 per week x 52 weeks in a year x 25 years equaling a staggering $786,799.00! Yes, if Claimant makes $100 a week in a part-time job and dies in a work-related accident, the benefit can be over $786K.

• The new maximum IL WC death benefit is $1,613.93 times 52 weeks times 25 years or a lofty $2,098,109.00 plus burial benefits of $8K.

On top of this massive benefit, Illinois employers/governments have to contribute to a fund to pay COLA increases under the Rate Adjustment Fund that may double that already-high benefit, depending on the CPI.

The best way to make sense of all of this is to get Shawn Biery’s free, colorful, updated and easy-to-understand IL WC Rate Sheet.

If you want it, simply email Marissa at mpatel@keefe-law.com and include your mailing address if you would like to be mailed a laminated copy & you can also copy Shawn at sbiery@keefe-law.com with any questions, and his great team will get a copy routed to you before rates rise again.

Shawn remains your go-to defense source on any issue relating to IL WC rates!

1-25-2021; IL WC's Best Remaining Defense Tools; How About a Webinar or Zoom Meeting to Learn WC?

Synopsis: Causal Connection and Utilization Review—IL WC’s Best Remaining Defense Tools.

Editor’s comment: With the issuance of the IL Supreme Court’s ruling in McAllister v. IWCC, the playing field in IL WC has changed. For the first time in Illinois history, actions of daily life may now be termed work-related “accidents.” We feel there are some instances where something might go wrong at work where an Arbitrator and Commission panel will deny claims based on an accident dispute. But to the extent standing up and sitting down and bending over are now potentially “accidents,” that defense is greatly limited. We have heard many leaders of the Petitioner/Claimant attorneys assert they want to have a litigation system to resolve WC claims in this State. The defense team at KCB&A wants everyone on all sides to remember—you can’t and won’t have a litigation system that is a sham. The defense side of the matrix has to have actual defenses. If you strip away all defenses and McAllister clearly strips away part of the accident defense, the carriers and self-insured employers are not going to let their workers go to attorneys; they are just going to pay and pay some more.

How in Tarnation did that happen?

Well, I am telling anyone and everyone who will listen, Illinois is now a one-party State. The IL House and Senate have “super-majorities” that don’t require them to even nod to the other side—the liberal party in power controls appointments, budgets, legislation and rules. Almost all of our judiciary is liberal and pro-Plaintiff. Our Governor is an unusual man who just spent over $60 million of his own money to try to sock us with a gigantic tax hike.

As Illinois became more and more dominated by this pro-Plaintiff political power, our legislators have spent and borrowed and spent some more. As we see this political party in Illinois and across the U.S., they are:

• Trying to control the composition of corporate boards;

• Demanding the “wealthy” pay the lion’s share of the cost of government--a cost they continue to increase;

• Furious to see valid tax deductions and credits in the U.S. and State Tax Codes that allow businesses to take deductions, even for great U.S. jobs-building reasons and;

• Treating businesses as somehow inherently evil to require sometimes bizarre and punitive anti-business penalties, shocking indefensible pro-plaintiff legislative schemes and criminal prosecutions.

The only concepts that slow this movement down are public opinion and common sense. I am not seeing a lot of common sense from our legislators in Springfield. And as I just reported, the legislators are trying like crazy to hold anti-business legislation under wraps to suddenly disclose it and call for votes at the last possible minute of each session. I consider such actions to be arguably devious.

So What Does This Have to do with Work Comp in Illinois?

Well, the policies outlined above send a very clear message as to who is in control and where we are headed. The theme is “Businesses are bad and the government will fix it”. In this vein, the workers’ compensation business will move with the glacier that is Illinois Government/power. Now, if you have someone who is claiming they injured themselves doing something truly “human,” let’s say reaching for a pen, and they go to the doctor to learn they need a gigantic rotator cuff repair and tenodesis in their shoulder, you have a classic claim where the defense isn’t going to be “accident.” Following McAllister, reaching for a pen may almost certainly be termed an “accident,” as it is arguably part of the job duties for the average office worker, waiter/waitress/dock supervisor or evil defense lawyer. However, it is also one of the more common and innocuous activities of daily life. Arguably, it is not different from reaching for that cup of coffee next to the pen. Nevertheless, now under McAllister, reaching for that pen to complete a work task is now, at least in theory, an action that may be considered an “accident” in Illinois.

However, you don’t tear your rotator cuff in a significant and striking way by the normal action of simply reaching for a pen. Your defense is no longer against “accident,” because of the McAllister ruling. Now, the best defense for such a claim is going to be “causal connection” where you get a solid defense IME expert to opine the actions described don’t match the alleged outcome. Causal connection is, to some extent, simple common sense in the medical field. You need a doctor who knows the ins and outs of the human body and how it works and, also as important, how it typically fails.

Two issues to consider—first and foremost, you have investigate, investigate and investigate some more. Make sure you have an incident reporting form and someone insures the line employees and supervisors are fully cooperative in reporting what happened. If you don’t have a satisfactory incident reporting form, send a reply and I will relay a sample form for your consideration. But if you aren’t investigating properly and documenting the story, you are like a ship in a storm without a rudder—things will change rapidly. The version of the “accident” often evolves during litigation in way unfavorable for employers. Therefore, locking in the specific history of events, in the words of the claimant, is very important.

Second, please also remember the odd concept of the “eggshell plaintiff.” If someone has a body that is prone to fail, the odd concept of eggshell plaintiff holds the employer takes the human as you hire him/her. You will note this isn’t in the IL WC Act or Rules. I don’t even feel it is in the common law rules—it is an undefined fantasy that you may hear from liberal attorneys and hearing officers. But for the vast majority of folks, the actions and outcomes truly have to match. I don’t feel most Illinois WC Arbitrators are going to be comfortable finding a giant rotator cuff tear is going to be causally related to reaching for a pen, even if McAllister makes that innocuous action an “accident.”

If you need a solid expert on any IL WC claim to analyze and consider causal connection disputes, send a reply and I will forward the top doctors and surgeons across our State and the five States KCB&A covers.

Why Do You Recommend UR, Gene?

So, with more and more everyday activities expected to be considered “accidents”, then next line of defense is controlling the quality and necessity of care. UR = Utilization review, is an important part of this process. Please note UR started about fifty or more years ago and it truly works in the group health arena to block overtreatment. Doctors and other healthcare givers hate it to some extent and will whine when you bring it up but it works quietly and somewhat smoothly. My problem is getting WC adjusters and claims managers to require it and use it regularly.

I feel UR is easy, relatively inexpensive and a great way to control medical care and rein in rising costs. In my practice and with respect to our great clients, it is my reasoned legal impression, the WC claims industry is still struggling to bring UR to the level it should be at. Please note in this liberal State, a UR denial has presumptive value in the IL WC Act—the injured worker or their attorney has to rebut the presumption of a UR non-certification of continued care or a proposed surgery. The presumption doesn’t exist until UR is used!

I feel any Claimant who is treating more than ninety days after a work-related injury should have all aspects of their medical claim move into UR with uniform regularity. All surgeries and PT should be directed to a UR nurse/doc for approval and/or non-cert. Pay for what UR approves and deny what UR doesn’t certify. Please also note Doctors/Hospitals and other care-givers are used to UR when someone is being treated under group coverage by BC/BS or other insurers. Doctors and hospitals regularly battle with the UR opinions but they know if they lose the fight over certification, they aren’t going to be paid. Only the most aggressive and questionable medical care-givers will proceed with care when they are facing UR non-certification. The non-certification will at least pause and possibly nullify the questionable care.

In my view, this has to be in every IL WC claims adjusters’ quiver and it can and should be utilized in a uniform and global fashion. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: What Do You Need to Know About Workers’ Comp? How about a Webinar or Zoom Meeting to Learn!!

Editor’s comment: The defense team at KCB&A is ready, willing and able to provide you whatever educational or training webinars you and your risk or claims team may need. We are the only Illinois defense firm that has several adjunct professors of work comp law and practice. We know the IL WC Act and Rules Governing Practice backwards and forwards. You can’t get a better source for training and updates than our on-line teaching. We are happy to tailor the training to your management needs and goals.

A few of the topics we can and will cover at your request include:

• The Demarcation of When an Incident is Workers’ Comp v. General Liability

• Jurisdiction—When is an incident covered by the laws of the U.S. Government or one or more States’ WC systems.

• Accident or Incident that Arises Out Of or Occurs In the Court of Employ.

• How to best accept an Incident as covered by WC and/or how to best fight/dispute WC coverage.

• Causal Connection—when is the incident the “cause” of temporary or permanent disability.

• Medical bill payment and processing.

• How to best dispute or non-certify medical care or over-treatment.

• Calculating the Average Weekly Wage with analysis of maximums and minimums.

• Handling and Adjusting Amputation losses on a PDQ basis to include OSHA concerns.

• Temporary Total Disability—understanding waiting periods and how to calculate and pay TTD or other similar benefits.

• When and How to Drive Return to Work with and without asserted restrictions.

• What to do when a worker dies in your workplace to also cover OSHA concerns.

• Permanency/Impairment—How to best calculate this benefit with a focus on negotiation techniques that “work” to match your reserves and claim goals.

• Dealing with Petitions for Penalties and Both Types of IL WC Attorney Fee Petitions.

• The Three Types of IL Total and Permanent Disability Claims.

If you are interested in having a webinar or other online meeting to learn WC and learn some more, send a reply or contact JCampbell@keefe-law.com.

1-13-2021; IL Gen'l Assembly Extends Rebuttable Presumption for First Responders by John Campbell; Pre-Judgment Interest on PI Claims Passed by IL Gen'l Assembly to See If Gov Will Sign It and more

Synopsis: Our Illinois General Assembly extends rebuttable presumption of workplace exposure; from John P. Campbell, Jr., J.D.

Editor’s Comment: In our recent KCBA update, we noted our IL Governor briefly extended the Emergency Proclamation through January 10th and may do so again until the vaccine(s) stem the tide of Covid-19 infections. In similar fashion, we predicted our IL State Legislature would also extend the rebuttable presumption of work-related infection for First Responders and “essential workers” beyond the original December 31, 2020 deadline in the original Statute.

If we could only predict the outcome of this weekend’s NFL playoffs as accurately!!

The General Assembly passed HB4276 on January 13, 2021 which formally extends the legal presumption of workplace exposure in the Occupational Disease Act. This rebuttable presumption now applies to diagnoses occurring through June 30, 2021.

The relevant language modified is as follows:

(4) The rebuttable presumption created in this subsection applies to all cases tried after the effective date of this amendatory Act of the 101st General Assembly and in which the diagnosis of COVID-19 was made on or after March 9, 2020 and on or before June 30, 2021 (including the period between December 31, 2020 and the effective date of this amendatory Act of the 101st General Assembly).

Please note any potential “gap” in the rebuttable presumption since December 31st has been bridged as well, so there will be no period where this rebuttable presumption does not apply since the March 9, 2020 effective date. We all  hope and pray that this extended timeframe for the rebuttable presumption will be the last one needed.  We say this not just as advocates for employers in this State, but with eager anticipation that vaccine distribution will put an end to all things Covid-19 very soon.

We continue to remind and encourage employers to remain vigilant in compliance with CDC and IDPH recommendations for PPE use and increased precautions to limit spread of Covid-19 in the workplace. These practices will help keep your employees safe and also afford employers the ability to rebut the presumption of workplace exposure.

This article was researched and written by John P. Campbell, Jr. Feel free to contact John about its content at JCampbell@keefe-law.com. Please also reply or otherwise contact the defense attorneys at KCBA for further guidance on building your defense to work-place Covid-19 claims.

Synopsis: ITLA Waits To The Last Hour/Minute To Unleash Pre-Judgment Interest on IL Businesses and Governments. Will Gov. Pritzker Sign?

Editor’s comment: The millionaire plaintiff personal injury lawyers that donate to and run the Illinois Trial Lawyers Ass’n waited and waited to keep this one out of the media for as long as they possibly could. Please remember the IL General Assembly has super-majorities for one party so the only thing that might impact anti-business and anti-government legislation is public opinion. The best path to stymie public opinion is to hold the bills you don’t want the public to read about until the very last minute of the last day.

I have handled personal injury litigation for claims from all over the United States and I assure my readers pre-judgment interest is basically an unearned bonus for Claimants and their wealthy lawyers. How would it work—well, there was a serious injury where Claimant filed suit and the matter went to hearing—the prep and trial probably took about three to four years. The jury came back with a verdict of $64M which remains the record in this State for construction injuries. With this new bill providing 9 per cent interest from the day the Defendants knew of the loss, it could have been five or six years from the date of injury to the date of the jury verdict. On a $64M verdict, 9% interest for 5 years is about $28.8M. So the defendants wouldn’t owe $64M, they would owe almost $93M for the same claim! Please also note this concept gives a Plaintiff with a solid claim every interest in not moving forward at no risk to themselves or their clients—it will be like sitting on an amazing investment that will only keep getting better and better.

Why did ITLA pick 9%--with respect to the members of the bar, I have literally no idea other than greed. Not kidding. No one is lending money at 9%; why should defendants have to pay box car numbers like this?

Is pre-judgment interest “fair”—not a bit. Some States have it but at dramatically lower values/rates. No one in a personal injury claim knows how the outcome will end up. Please also note this concept works wonderfully for a Claimant who loses their case before a jury but their lawyer goes before a friendly trial judge to get a new trial with a second bite at the apple—if they get a friendlier jury and a big verdict on the second bite, they can cash in on years of pre-judgment interest.

Please also remember interest is going to run and be payable on “pain and suffering.” I have no idea why someone would get interest on pain and suffering as if anyone knows what that is or how it is properly calculated. I feel juries come up with numbers for things like that by throwing darts at boards.

Similarly, interest is going to run on future damages like future medical bills and future lost wages!!! If a jury finds you have suffered future damages of either sort in a specific amount, you can tack 9% interest on it from the date the Defendant learned of the injury to the date of payment. I cannot imagine how that makes sense to anyone but a rabid Plaintiff attorney.

Be sure this concept, if the Gov signs it,  is going to increase the cost of insurance for businesses large and small. It is also going to hit local governments across the State where they have to deal with defense of personal injury claims—that is going to increase our taxes.

Please note this concept, if it becomes law is going to greatly encourage you and your business/government to seek out efficient and effective defense attorneys, like the team at KCB&A. Our focus is on closing files—if you want strong defense counsel that will work with you to get personal injury claims to appropriate reserves/values and close, send a reply.

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

Passages

We are chagrined to note former Almost-Certainly-Billionaire Michael Madigan is no longer Speaker of the Illinois House. It is interesting to note the rest of the media has rarely pointed out how “Iron Mike” has made zillions with his law firm that handles RE tax appeals for thousands of IL businesses. The odd math on that is one government agency—the County Assessor--over-charges for RE taxes and this State legislator then picks up the ball to cut the tax bite while taking hefty legal fees for himself. If you do the math from the Chicago Tribune on how much his law firm has been successful in cutting RE taxes and multiply by legal fees of 25% or 33.3%, former Speaker Madigan is wildly and legally wealthy. What I always thought was missing from this scenario is any legislative effort at any level to hold hearings and investigate and reform the RE tax system to get the taxes correct the first time and not require what I consider to be fake “appeals” of the never-ending poor math on RE tax assessment.

We are also advised Douglas McCarthy, one of nine Illinois workers' compensation commissioners, retired last week after two years on the job and many more years as an arbitrator and claimants' attorney, the IWCC announced. “Doug” McCarthy practiced work comp and disability law in Decatur from 1979 until 2012, when he was appointed workers' compensation Arbitrator by then-Gov. Pat Quinn. Gov. J.B. Pritzker elevated McCarthy to become a Commissioner in 2019. He also was member of a 2016 committee that provided a comprehensive review of the Rules of Practice Before the IL WC Commission, the first in 40 years. We wish him all the best.

Synopsis: Looking for New WC Defense Business in the Midst of the Great Pandemic!

Editor’s comment: As we start the New Year, the amazing defense team to KCB&A is looking for great clients who need defense help in the five States we handle—IL, IN, IA, WI and MI.

We are the only defense firm I know of that has adjunct Law Professors who taught workers’ comp law to lots of lawyers, risk managers and claims handlers and others.

We have strong recommendations for physicians/surgeons, nurse case management, surveillance operatives and others to fit the needs of your claims.

We are approved for defense work with all major WC insurance carriers.

We close defense files faster than any other firm I have ever seen—if you can tell us how to close files even faster, we will do it!

If you have interest in being represented by the top WC legal defense firm in the States listed above, send a reply or call Gene Keefe at 312 907 8226.