7-23-2021; Amazing New Surgery for CTS to Change U.S. Repetitive Stress Claims; Confusion from Colorado about Off-Site Workout Injuries and more

Synopsis: New Surgical Development Greatly Lessens Carpal Tunnel Repairs. This is a “Must-Read” for the United States WC industry. 

Editor’s comment: In Illinois, carpal tunnel claims and repairs skyrocketed for a time when the IL WC community was making giant PPD awards for such conditions. About a decade ago, there was a scandal, when numerous prison guards at a southern IL prison were all claiming CTS due to allegedly shaking truck steering wheels and opening/unlocking prison gates. At least one IL WC Arbitrator made CTS claims during this scandal to cash in. The IL Legislature passed new legislation limiting CTS claims in response to the scandal.

What is now happening is the medical/surgical industry has developed new technology that will dramatically limit the impact of CTS repairs/revisions.

Please note carpal tunnel syndrome (CTS) is a cumulative stress injury felt to be caused by repetitive motion that leads to compression of the median nerve from thickening of the transverse carpal ligament. An individual who suffers from CTS will likely have symptoms such as numbness, tingling, pain, swelling, and weakness in the wrist and fingers. In the early stages, CTS can be managed conservatively by:

• Wearing a splint at night or during certain activities

• Regularly completing strengthening exercises and stretches

• Medications, primarily anti-inflammatory medications

• Adopting recommendations to improve body mechanics, posture, and equipment usage

However, in the event of more severe CTS cases that significantly impact work and daily function, surgery will relieve pressure on the median nerve. Carpal tunnel release surgery has traditionally been performed using an open incision or sometimes endoscopically to cut through the ligament that that is compressing the nerve. Both of these procedures leave behind a 2-4 centimeter scar and require patients to abstain from most activities (including work) for weeks or more. What industry observers saw was a patient getting CTS surgery on one hand and take 90 days off to then have surgery on the other hand and take another 90 days off! Then our liberal IL WC system was awarding thousands of dollars in PPD. Several large businesses moved their operations out of our State due to these sorts of claims.

While the old-method surgeries are technically considered minimally-invasive, operating in such a small space is challenging, costly for both the procedure, surgicenter fees and several months of rehab treatment, and increases the risk of complications. The aftercare for these procedures is similarly burdensome. CTS has yielded some of the highest workers’ compensation payouts of all injuries/conditions and the longest average disability duration among employees receiving workers’ compensation.

We have recently learned of Ovation Hand Institute with locations in Chicago, Minneapolis, Milwaukee and Green Bay. Their highly innovative surgical technique redefines the term “minimally-invasive” by involving only two minuscule pinholes at the wrist. The new procedure is called Thread Carpal Tunnel Release (TCTR)—it is a proven-effective surgical procedure with over 2,000 cases to date and more being performed every day. TCTR eliminates the need for surgical tools and resulting scars. TCTR uses ultrasound imaging to insert a tiny thread into the hand/wrist that cuts the ligament and relieves pressure on the nerve.

This new and amazing surgical procedure:

• Reduces the risk of cutting nearby nerves, blood vessels, or tendons and this has never occurred in over 2,300 cases

• Has been successfully performed on over 2,300 patients with CTS, and no significant complications

• Only requires local anesthesia

• Is typically performed in under 20 minutes

• Performed in an office-based surgical suite with a single global fee with no equipment/surgical device costs and no surgicenter fees

Most importantly, TCTR has an unsurpassed recovery time and a much more rapid return to normal activities than was previously possible with endoscopic and traditional mini-open techniques.  All the Boston CTS scores of symptoms and functional abilities in the first six months after TCTR are also far superior to the endoscopic and mini-open scores.  Patients who received TCTR report returning to most daily activities within 1-2 days. The majority of patients even returned to work in under one week. TCTR is a revolutionary treatment method that stands to change the surgical care of carpal tunnel syndrome one patient at a time.

In my view, all aspects of CTS work comp claims should change as this new surgical procedure grows. Please note lost time in such claims may be contained to the IL WC three-day waiting period, ending the need to pay any TTD or otherwise greatly limit lost time. The results of the surgery leave the patient with pin-hole scars that may disappear and should provide greatly limited PPD, if any.

If you have Claimants seeking CTS repairs due to work, you have to recommend this new surgical phenomenon. Learn more at http://www.ovationhand.com

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Synopsis: Colorado Ruling Adds Confusion to “Working-Out-Away-From-Work” Injuries in the Post-Pandemic Era. Comments and research by Michael J. Palmer, J.D.

Editor’s Comment: A ruptured Achilles during offsite workout leaves a former Denver Broncos player without a career and hung out to dry. This injury posits a novel question for employees injured away from employer premises.

During the past NFL offseason, the NFL Players Association made a push for players to workout away from team facilities due to Covid-19 concerns. Former Denver Broncos offensive tackle, Ja’Wuan James, elected to do so and tore his Achilles while working out away from the team. The Broncos promptly placed him on the “non-football” injury list and released/fired him a week later.

This scenario raised the question, whether an injury sustained during an offsite workout arose out of and in the course of employment. A 1996 Colorado Supreme Court decision lends some guidance to the situation.

In Price v. Industrial Claim Appeals Office, the Colorado Supreme Court upheld benefits denial for two off-duty law enforcement officers who suffered injuries while working out away from their employer’s facilities. The Court laid out a five-prong test, giving more weight to the first two prongs. The Court stated

(1)  The injury must have occurred during working hours;

(2)  it must have happened on the employer’s premises;

(3)  the employer had to initiate the exercise regimen;

(4)  the employer had to exhibit some control over the regimen; and

(5)  the employer stood to benefit from the worker’s exercise. 

The Court noted, however, that an “extremely strong showing” on the last three factors could overcome a failure to satisfy the first two.

In James’ case, he was following a team workout plan the Broncos recommended, and the team sent letters to players encouraging them to stay in shape during the offseason. James can arguably make a strong showing on prongs three through five of the test laid out in Price, were he to seek workers’ compensation benefits. Employers who require their employees to stay in shape for their job should contemplate the level of control they exert while the employee is away from the premises.

This Article was researched and written by Michael J. Palmer, J.D. Please do not hesitate to inquire or ask for more information at mpalmer@keefe-law.com.

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7-17-2021; The New World of Wage Loss Diff Claims in IL WC--We Can't Ignore Rising Minimum Wage; Three New IL WC Arbitrators! I Didn’t Know The IWCC Was Looking!

Synopsis: The New World of Wage Loss Diff Claims in IL Work Comp—We Can’t Ignore Rising Minimum Wage.

Editor’s comment: In my view, one of the biggest changes in IL Work Comp Law and claims practice is happening and very few people noticed. What is happening is easy to understand—the IL state-wide minimum wage is now on an escalator that won’t slow until it reaches $15 per hour in what I believe is less than 3-1/2 years on January 1, 2025. Please note the increases aren’t tentative—the changes/increases are part of IL law which has already been inked by our wildly liberal legislature and Governor.

What this means to me is any IL worker in Mt. Vernon or Carbondale or anywhere “downstate” (or away from Chicago) who has any job will be making $11 per hour for the next six months, then $12 for next year, $13 for the year after, then $14 per hour, topping out at $15 per hour on 1/1/2025. Wage loss differential claims, for both sides of the IL WC matrix, have to take these increases into account when reserving, settling, trying or handling all such claims.

Increase to City of Chicago Minimum Wage is Already In Full Effect.

Effective July 1, 2021, the Chicago Minimum Wage was increased for all covered employees. The Minimum Wage has increased to either $14.00 or $15.00 per hour, depending on the number of workers at a business. For qualifying employers with 21 or more workers, the new Minimum Wage is now $15.00 per hour. For employers with four to 20 workers, the new Minimum Wage is $14.00.

Additionally, please note that there are also increased Minimum Wages for youth workers and tipped workers. When tipped workers’ wages plus tips do not equal at least the Minimum Wage, their employer must make up the difference. Further, all Domestic Workers are guaranteed Chicago’s new Minimum Wage, even those working for employers with fewer than four workers. Domestic Workers are given a Minimum Wage of $15.00 per hour from large employers and $14.00 per hour from employers with 0-20 employees. In addition to the Minimum Wage increase that comes into effect today, please be advised that effective August 1, 2021, all Domestic Workers, no matter the business size, will be guaranteed a $15.00 Minimum Wage.

Chicago businesses are required to post a notice with information for their employees on their rights under the Chicago Minimum Wage Ordinance – the notice is available in multiple languages on the Office of Labor Standards website.

It is the view of the defense team at KCB&A that anyone living within 50 miles of Chicago is included in “a reasonably stable labor market” for such jobs and should be treated as if they can make at least $15 per hour.

Why Am I Bringing This Up?

Well, the IL WC industry has to adapt to these changes that I am again confirming are the law—they aren’t proposals. If you are seeking wage loss differential benefits under Section 8(d-1) of the IL WC Act, and the worker has returned to a job paying the $11 per hour minimum wage when they are claiming they could have been making $20 per hour in the pre-injury job, I feel it would be a mistake to set wage loss benefits until age 67 at a gross loss of $9 per hour and a net loss of $6 per hour when they are certain to be making $15 per hour in a couple of years.

Please also note if an IL employer violates the law and tries to secretly pay less than minimum wage, all sorts of bad things are certain to happen. In my view, for IL employees, if you are managing and reserving and settling an IL WC wage loss differential claim, you have to use the numbers above, if you are going to get things right. Yes, it is going to be challenging and take more time. Yes, the “new math” is going to apply to settlements or awards for claimants, attorneys on both sides, hearing officers, Commissioners, Circuit and Appellate Court Judges/Justices.

To be blunt, someone who was injured and has permanent restrictions and returns to a minimum wage job paying $11 per hour right now isn’t going to be making $11 per hour in less than six months—they are certain to be making at least $12 per hour. Barring something unforeseen, their annual pay is certain to rise $2,080 dollars in the next year and every year after that until peaking under current law on January 1, 2025. If you need the math on what I am outlining, send a reply and I will help in every way possible.

Please Note IL is a One-Party State and This May Get Worse!

Our wildly liberal and unchecked IL legislature and Governor may again increase the minimum wage to $17, $18, $20 per hour! Both houses of our single-party IL State legislature have super-majorities and can’t be blocked. There is only public opinion to slow their roll. In my view, “democracy” failed in both Chicago and now Illinois and it won’t be coming back any time soon.

What is good about a higher minimum wage is some workers make more money. What is bad about a higher minimum wage is fewer jobs for humans—private employers have a strong incentive to mechanize, robotize and automate processes to get rid of expensive extra workers if and where possible. Government employers at many levels in this nutty State almost never adapt or cut back and the higher minimum wage will insure higher taxes and fees. I am sure the debate will continue.

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Synopsis: Three New IL WC Arbitrators! I Didn’t Know The IWCC Was Looking!

Editor’s comment: IL WC hiring remains a government secret on the level of nuclear armament. Okay, that might be overdoing it a bit but it remains amazing to me how the IL WC system decides they need to hire and add new staff and how the selection process works. You may note the secret-powers-that-be are working hard to tie Arbitrator compensation to a percentage of a sitting IL Circuit Court judge’s pay—this is going to insure IL WC Arbitrators will get a solid increase and make a tidy salary in the years to come. I am mildly surprised to see the IL State Chamber of Commerce supporting the new and increased hearing officer compensation recommendations, as their members will be paying the bill.

How Many IL WC Arbitrators/Hearing Officers Are Enough?

At present, it feels like the IL WC Commission has about a zillion hearing officers if you include all the Arbitrators and Commissioners and the 18 lawyers who support the Commissioners. To my understanding, Illinois citizens are leaving for lower-tax states, job recovery is slow due to Covid and lots of folks are working from home. It is hard to imagine the number of new IL WC claims is rising.

I am sure the new Arbitrator appointments are following an inclusion and diversity approach. I salute that as a solid idea I have written about and encouraged in the past. I also want to confirm all IL WC hearing officers—Arbitrators and Commissioners are honest, professional and well-versed in the law and practice of work comp. Please note this was not always the case in years past. I feel kudos need to be extended to Chairperson Brennan and the powers-that-be that run the IWCC for their hard work.

Three Newby Arbitrators Named

In short, Illinois Gov. J.B. Pritzker appointed three new Arbitrators to our IL Workers’ Compensation Commission. The new appointees are attorneys Roma Parikh Dalal, Antara Nath Rivera and Ana Vazquez.

• We learned Arbitrator Dalal recently worked as a partner at a solid defense firm, which like KCB&A has operations in a number of states. While at the defense firm, Arbitrator Dalal offered legal assistance, advice and counsel on workers’ comp matters.

• New Arbitrator Antara Nath Rivera was the current chief of general prosecutions at the Illinois Department of Financial and Professional Regulation’s Enforcement Unit. She supervised licensure cases for a “wide variety of professions” and previously worked as an administrative law judge for the Arizona Office of Administrative Hearings, according to the announcement. She has presided over cases involving the Arizona Medical Board as well as Social Security and Medicaid benefits. Rivera also previously worked as an investigator in the Workers’ Compensation Fraud Unit for the Illinois Department of Insurance, according to the announcement.

• Arbitrator Vazquez worked as the assistant attorney general in the Government Representation Division of the Workers’ Compensation Bureau within the Illinois Attorney General’s office. She represented the State in workers’ comp litigation. Before that, she worked as an attorney at a criminal defense firm, according to the announcement.

We assume the Arbitrators will be given calls and replace the TBA1 currently listed on the IWCC website. We look forward to working with them.

6-28-2021; Temp Workers in IL WC Can't Sue Borrowing Employers; Ronald Eugene Biery RIP and more

Synopsis: In IL WC, Temporary or Staffing Worker Can't Sue Borrowing Employer For WC-Covered Injuries. This is a “Must Read” for IL Staffing Risk/Claims Managers.

Editor’s comment: In Torrijos v. International Paper Co., No. 18-L-75, 06/22/2021, published, the Illinois Appellate Court ruled a worker's personal injury suit against her borrowing employer was barred by the exclusive remedy provision of Section 5 of the Workers’ Compensation Act.

International Paper Co. (or IPC) and Cano Container Corp. are packaging companies. In 2015, IPC purchased a glue machine from Cano and assumed its lease of a packaging plant in Aurora. IPC contracted with Kane County Personnel Inc. (or KCP), a staffing company, for workers. KCP hired Plaintiff Torrijos and sent her to the Aurora plant run by IPC.

On Plaintiff’s first day, Cano Container allegedly provided Torrijos with safety equipment and her assignment for the day. According to Claimant, no one from the staffing company ever came to the plant to supervise her work, and she considered a Cano supervisor to be her boss even though she understood KCP was hired her and was her “employer.”

When Torrijos reported for work, Cano Container assigned her to work at the glue machine. When the machine stopped, Claimant stepped down from the platform of the loading station and began to clean the machine table. As she was wiping, the machine restarted.

When the machine restarted, Claimant’s hand became trapped inside. She suffered severe injuries requiring multiple surgeries. Claimant’s claim was accepted and she received workers’ compensation benefits from KCP and its WC insurer.

Thereafter, Claimant filed a third=party lawsuit in the circuit court of Kane County against IPC. Torrijos named Cano Container and KPC as respondents in discovery as well.

Under Illinois law, Plaintiff in any civil action may designate parties other than named defendants as respondents in discovery if she believes they have information essential to the determination of who should properly be named as additional defendants. A person or entity named as a respondent in discovery may be made a defendant in the same action within six months.

IPC removed the case to federal court. Notwithstanding removal to federal court, the case remained on the Kane County management call. Later, a federal trial court judge remanded the case to the state court, since Cano Container had been joined as a defendant, eliminating federal jurisdiction.

Back in state court in Kane County, IPC moved for summary judgment on its exclusive remedy defense, arising from Section 5 of the IL WC Act. Cano also moved to dismiss the claims.

The Kane County state judge granted both motions. Plaintiff appealed.

In their ruling, the Illinois Appellate Court said IPC was entitled to immunity under the exclusive-remedy defense as a borrowing employer.

“An employee in the general employment of one person may be loaned to another for the performance of special work and become the employee of the person to whom he is loaned while performing the special service,” the court ruling said. If the worker is injured, the borrowing employer is obligated to pay WC benefits. If the employer does not pay, the lending employer is responsible for payments. As long as the lender or borrower pays benefits, they have immunity from civil liability based on the provisions of Section 5 of the IL Workers’ Compensation Act.

The Appellate Court ruling said the record established IPC had the authority to direct Claimant’s work. She worked the same shift as IPC employees and received instruction and assistance from the company's supervisors and employees. IPC set her schedule and she received safety equipment from the company.  

Though Claimant said only KPC could remove her from her assignment, she acknowledged IPC could dismiss her by requesting KPC, as a staffing company, no longer send her to work at IPC.

“Accordingly, viewing the evidence in the light most favorable to plaintiff, the record demonstrates no genuine issues of material fact with respect to IPC’s direction and control of plaintiff’s work,” the court said. The court ruling also said Claimant’s acceptance of an assignment and awareness she worked for a borrowing employer amounted to implied consent to the borrowed employee relationship.

I checked online and Claimant’s WC claim is pending and active.

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Ronald Eugene Biery   January 3, 1949 – Rest in Peace June 16, 2021

Some people just garner a reaction and Ron Biery was one of them. Ron was born January 3, 1949 in Rosebud County, Montana and he was raised by his mother Gladys and stepfather Hugh, however he was also raised by his brothers and sisters. He grew up in Rosebud and spent a lot of time on the farm with his brothers. He left Rosebud for the U.S. Marines after he graduated high school in 1968, and then came home from Vietnam decorated, including a Purple Heart, and honorably discharged.

He became an apprentice butcher in Hardin Montana in 1970, and wed Vicki Yerger in August 1970. Ron and Vicki had three kids, Shawn (named in honor of Hugh), and twins, Ronda and Renae. They owned Camp Custer Service before purchasing Hardin Meat Market in 1976 and eventually owning a grocery store, Shawnalan’s. They moved to Bozeman, Montana in 1985 and after exploring several opportunities, he entered into auto sales and later expanding to include transport.

He spent the last 35 years in business in the Gallatin Valley, watching his kids build their families, even after he and Vicki parted. He went from being the baddest man in Montana to become ”Papa Cupkake” to the last generation who were lucky enough to know him. If he was on your side, there was no greater friend. When you heard the stories, you were sure they cannot be true, but everything you heard was “mostly” true.

He was proceeded in passing by his parents and all of his siblings, save Julia Ann (Judy) Juell.  He is also survived by the mother of his children Vicki Little, his children, Renae (Kevin) Mattimoe, Ronda Thompson, and Shawn (Debbie) Biery, and his current companion Ann Lower.  He is survived by 12 grandchildren and one great grandson, too many nieces and nephews to count, as well as hundreds of honorary children and grandchildren who will all be better off from him being in their world. Graveside services were in Forsyth MT on Saturday June 26, 2021 at 1pm. A celebration of life is being planned tentatively for August 8, 2021 in the Gallatin Valley.