6-21-2021; Why We Send You Draft Contracts before Settlement Submission to the Arbitrator; IL Firefighters Unions Get Expanded/Presumptive MRSA and other conditions and more

Synopsis: Why KCB&A Sends Draft IL WC Settlement Contracts to YOU For Review Before Getting IWCC Approval.

Editor’s comment: We had someone question why draft settlement contracts were being forwarded for adjuster and risk management approval before IWCC submission and Arb approval. I have been advised there is a national WC insurer that may be directing their adjusters not to “review” such contracts. With respect, I don’t understand or agree with that approach, to the extent outlined below.

Our goal isn’t to have adjusters or risk managers “approve” settlement contracts from a legal perspective—that is what your legal defense team does. But there are important issues that need to be brought up, if relevant, to insure the adjusters, risk managers and legal defense are all on the same page.

Please remember when IL WC claims settle and most of them settle, it is not technically possible to “close all rights” without a settlement contract signed by the parties and then approved by the Arbitrator assigned. Please also note it is a challenge, legal and otherwise, to change an IL WC settlement contract after an Arbitrator or Commissioners stamps them as approved.

As defense attorneys, KCB&A’s focus in sending IL WC settlement contracts is to be completely certain, at the end of the claim, that all issues are resolved to the claims and risk managers expectations. Anything less may be tragic and/or unfortunate. Please note it is challenging to “blame” the hearing officers if you mess up the settlement terms/issues.

First and most important, when sending contracts for claims/risk approval, we want to be sure the math on the settlement matches the adjuster’s  and risk manager’s reserves and authority—they can clearly “approve” the amount they extended and expect to pay. That isn’t legal—it is common sense.

Next, we also want to be sure we aren’t missing something of importance, like

• Completely filling out the IL WC settlement contract to insure you have the accurate amount of lost time and TTD paid;

• Accepting or otherwise “handling” unpaid, disputed or unpresented medical bills—this is intricate and I am happy to fully explain how KCB&A handles this issue;

• Insuring we cover/pay a child support lien the adjuster or the account is aware of or

• Recouping a missed IME appointment fee or

• Innocent overpayment/miscalculation by the adjuster or risk managers that we may or may not seek to recover at settlement.

We consider this to be solid, common sense stuff that all defense attorneys should adhere to and all insurance carriers/TPA’s should require. I appreciate your thoughts and assistance and will publish settlement concepts with your permission.

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Synopsis: IL Firefighters Union Gets Expanded/Presumptive Coverage for Staph and Other Infections.

Editor’s comment: Please note IL Firefighters Unions are “hotly” aggressive and want more and more perks for their members. I truly feel this legislative change is unneeded but our legislators almost never turn down a request from these unions. Please note in many villages, towns and municipalities, the number one cost of firefighters is their benefits.

As I have told my readers in the past, our IL Firefighters Unions like to paint the picture of firefighters being constantly exposed to smoke from thousands of fires. In fact, most firefighters don’t deal with live fires at all or very infrequently—building codes ‘work’ and our houses and commercial properties are rarely involved in live fires. I recommend your municipality consider going to “Community Service” officers, trained to have police/fire and EMT abilities so they can fulfill and rotate at all three positions and eliminate feather-bedding for do-nothing workers. You can save millions in tax dollars to do so. If you have interest, send a reply.

Staph Infection Presumption Measure Heading to Governor Pritzker

Illinois lawmakers have passed a bill that would create a rebuttable presumption that Methicillin-resistant Staphylococcus Aureus, also known as MRSA, is compensable for firefighters, emergency medical technicians and paramedics.

The Senate on May 28 voted 52-0 to pass House Bill 3662, sponsored by IL State Rep. Marcus Evans, D-Chicago.

The bill was not amended since the IL State House of Representatives voted 115-0 to pass it April 21 and it has been presented to Gov. J.B. Pritzker who isn’t going to fight with the unions over this bill.

HB 3662 would add staph infections, including MRSA, to a list of other conditions presumed compensable for first responders that include lung or respiratory disease, heart conditions, hypertension, tuberculosis and cancer.

The bill would take effect immediately if signed into law.

Pritzker has 15 days — excluding Sundays — from receiving the bill to sign it, veto it or allow the measure to become law without his signature. Our wildly liberal Governor is expected to sign and make it seem like it was his idea.

The Illinois General Assembly adjourned its 2021 session. The world of Illinois government may again be safe for a time!

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6-2-2021; Illinois GL Claims will now have Prejudgment interest--Learn the Rules; Good News for IL WC Costs--We are in the middle!!! and more

Synopsis: New Law Allows for prejudgment interest in some IL personal injury and wrongful death claims. This is a “must-read” for personal injury/liability adjusters, risk managers and defense attorneys.

Editor’s comment: Governor Pritzker signed and thereby enacted this new law that I assure you was quietly sponsored by the Illinois Trial Lawyers. The law might cause multi-million verdicts to be even more painful for insurance carriers, self-insureds and physicians/hospitals defending medical malpractice claims. As I have advised many times, Illinois has overwhelming Democrat majorities in the IL House and Senate, along with our very, very liberal Governor. As Gov. Pritzker is an owner of Hyatt Hotels, one has to wonder how the folks at their legal department feel about the rising claims costs posed by this new law.

The new law requires:

• Prejudgment interest will accrue at the rate of 6% from the date the action is filed in personal injury or wrongful death cases.

• This new law does not impact IL WC claims.

• If Claimant’s counsel takes a voluntary dismissal to refile the action within a year, interest is tolled for that time.

• It exempts punitive damages, sanctions, statutory attorney’s fees, and statutory costs;

• The law exempts/does not apply to claims against the State and other governmental entities.

• Experts are unsure whether it might apply to employment discrimination claims—that may have to be litigated and decided in the courts.

• Prejudgment interest is capped at 5 years (you may note there was no cap in previous versions of the bill).

Please consider making a reasonable settlement offer in major personal injury and wrongful death claims to avoid prejudgment interest.

The way the new law is created, prejudgment interest will be applicable only to the difference between the judgment and the highest rejected offer (within the applicable time frames). Prejudgment interest may not be added if the judgment is equal to or less than the amount of the highest written settlement made by the defendant not accepted or rejected by the plaintiff within 90 days of the offer or rejection.

For any personal injury or wrongful death occurring before July 1, 2021, the prejudgment interest shall begin to accrue on the later of July 1, 2021 or the date the action is filed.

The new law is effective July 1, 2021.

We do not feel this is going to make Illinois any “friendlier” to businesses looking to start, move or expand here but I caution many States already have prejudgment interest and this interest amount and the way it is being administered seems reasonable to me, particularly if you know the earlier versions of this law.

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Synopsis: Illinois WC Does Fairly Well in Recent State-by-State WC Cost Rating by AdvisorSmith.

Editor’s comment: While looking up other things, I found a state-by-state WC cost listing from this company that appears to be a national business insurance outfit. They indicate their stats are from the Bureau of Labor Statistics and the Oregon Department of Consumer and Business Services. I do feel it has good news for Illinois businesses and the WC community.

The highest state is New Jersey with an annual WC cost per employee of $1,415. The lowest is North Dakota at $376.

If you take a look at this link https://advisorsmith.com/workers-compensation-insurance/cost/ you will note Illinois WC is right in the middle at No. 24. Our workers’ comp costs per hour are $0.39 and average annual cost per worker are $820.

The study notes each state and the District of Columbia run/monitor their own workers’ compensation systems, and rules for which companies are required to have this insurance vary in each state. In many states, all companies with employees are required to carry workers’ compensation insurance, while in other states, only companies that surpass a minimum number of employees are required to have coverage. Texas is the only state in which workers’ compensation insurance is not legally required and employers are allowed to “opt out” of coverage, which may allow the worker to sue for injuries in their courts.

The study noes in most states, private insurance companies and self-insured employers provide all or some of the workers’ compensation insurance policies available to businesses and governments. Some states have a mixed system in which the state also runs a workers’ compensation insurance program that can be used to purchase insurance. Finally, a few states have a fully state-run system, in which workers’ compensation insurance is required to be purchased solely from the state.

Additionally, other factors that affect the WC premiums paid by businesses and local governments between states are the types of jobs and businesses within the state, the worker safety regulations required by each state, wage rates in the state, and medical costs in each state.

Please note my view that Appellate ruling like McAllister v. IWCC are certain to skew our current results and make IL WC more pricey. I also feel the same way about the new trend to have every worker get “loss of trade” of an incalculable and un-reservable amount that is being doled out as “body as a whole.”

I have no pecuniary or other interest in AdvisorSmith. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Workers' Compensation Workshop: What's Changed for 2021? 

Wednesday June 16, 2021

9:00 am - 4:00 pm

Fairfield Inn & Suites

1111 N. Henrietta St.

Effingham, IL 62401

Join Attorneys from Keefe, Campbell, Biery & Associates to learn what has changed for 2021 regarding Workers’ Compensation! The presentation will offer an overview of Illinois Workers’ Compensation where attendees will gain a greater understanding of the IL Workers’ Compensation system of benefits and litigation, learning key terms & terminology. This will include a discussion of issues you may encounter during claims and tips for effective handling and management.

The presenters will discuss specific areas including the impact of COVID-19 claims and legalization of cannabis as well as relevant case-law updates.

Register Here

5-3-2021; IL WC Trip and fall denial in IL WC may hang on a “shoe-string;" by Michael Palmer; How Much Do U.S. Employers Have to "Teach" FMLA Rights and more

Synopsis: Trip and fall denial while leaving work in IL WC may hang on a “shoe-string”! Research and writing by Michael Palmer, J.D., KCB&A’s most recent addition.

Editor’s Comment: In their solid ruling, the IL WC Commission delineates the subtle differences which may trigger compensability vs. denial in fall-down cases.

In Weston v. Illinois State Department of Children & Family Services, Petitioner was going to her employer’s orientation program and instructed to park in the lot in front of the building or in the alternative, a second lot nearby. The claimant parked in the lot in front of the building.

When leaving for her lunch break, she was walking on the city sidewalk between the building and the parking lot when a decorative shoelace from her own boot became caught in an uneven crack in the walkway. She fell and suffered a torn meniscus, collateral ligament sprain, and a ruptured Baker’s cyst. These are injuries that might typically lead to compensability.

The Arbitrator found the Petitioner failed to prove the accident arose out of and in the course of employment, noting she failed to prove the employer owned, controlled or operated the parking lot or walkway in question. Further, the risk of getting a decorative boot lace from one’s own choice of footwear caught in the sidewalk was a personal risk. The IL WC Commission panel affirmed.

Their analysis indicated control of the parking lot, walkway and premises remains an element of the legal analysis here, but such facts aside, in assessing slip & falls, the employer should always examine whether the employee’s risk of accident was at all personal. This claim indicates if an employee is injured due to a personal risk, even a “wardrobe malfunction”, the claim may be defeated/denied as a non-work-related risk.

If you need a copy of the decision, send a reply. This article was researched and written by Michael Palmer, J.D. who just joined the defense team at KCB&A. You can reach Mike at mpalmer@keefe-law.com.

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Synopsis: Do U.S. Employers Have to “Teach” FMLA to Your Workers Who Suffer Work Injuries?

Editor’s comment: Recently, the 11th Circuit Federal Court of Appeals considered an employer's failure to notify an employee of simultaneous FMLA rights when the worker suffered injury and received workers' compensation benefits.

When faced with a similar case, the 10th Federal Circuit also considered this issue, but would it follow the other Circuit's lead?

The facts are simple. An employee experienced an elbow injury at work and met with the employer’s human resources folks to discuss workers' compensation rights. Although the worker was simultaneously eligible to take unpaid leave under the Family and Medical Leave Act, it appears the human resources team did not advise about such concurrent eligibility.

Following the injury, the worker's doctors initially placed restrictions on work, which the employer accommodated. Later, when the doctors cleared the employee to return to full duty, the company notified the worker that it was terminating employment. It appears this may have been due to the employer not having work for both the injured employee and other similarly situated workers, too.

The employee sued in Federal Court, claiming the company sort of “violated” the worker’s FMLA rights. At trial, a jury concluded the company violated the FMLA by somehow interfering with the worker's right to take FMLA leave. However, the jury also decided the violation wasn't willful and the company would have terminated the electrician regardless of FMLA eligibility. Thus, to some extent, the jury ruled in the company's favor, after considering all the evidence.

At trial, a company representative reported if an employee suffered an injury that was covered under workers' compensation, the company would hold back the FMLA leave and not run both FMLA and WC concurrently because the company felt the workers' compensation claim adequately covered or protected the employee. It doesn’t appear the employer advised their workers of that position. I don’t agree with this employer’s handling of concurrent FMLA and WC rights—if you want to know details, send a reply.

Following the verdict, the employee appealed to the 10th Circuit, alleging the jury's finding contradicted the evidence at trial. The employee asserted the evidence indicated the company willfully interfered with FMLA rights by not fully disclosing what the employer was doing.

The Court noted to show a willful violation of the FMLA, an employee must demonstrate the employer knew or showed reckless disregard for whether its conduct was prohibited by the FMLA.

As an aside by me, I am not aware of a “full disclosure” provision in either FMLA or workers’ compensation.

Did the company willfully interfere with this Worker's FMLA rights?

There are two possible answers:

• Yes. The company purposefully did not provide the worker with FMLA notice when the employee experienced a medical condition which would cause lost time due to an injury that occurred at work.

• No. While failing to let the electrician fully know about his FMLA rights, the employer might have been negligent, but the worker didn't show “reckless disregard” by his former employer.

If you chose B, you agreed with the court in Skerce v. Torgeson Electric Company, which upheld the jury's decision in the company's favor. According to the 10th Circuit, the failure to let the worker know about the FMLA was “mere negligence or an unreasonable determination of its obligations under the FMLA.”

The federal court also highlighted either the company or the workers' compensation insurer paid the worker benefits during the time they were unable to work. Additionally, the 10th Circuit noted that regardless of the requirements of FMLA, when the worker recovered, the company did not have work available for the worker and would have terminated this employee anyway.

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