1-19-2022; IL Lawyer Sues Self and Loses!; Joe D'Amato on IWCC Changes; God Bless Martin Luther King, Jr. and more

Synopsis: IL Lawyer Sues Himself and Loses!

Editor’s comment: Well, there is an unusual claim for all risk managers and claims handlers to consider. We saw an unusual case from Illinois in which Marvin Brustin, an 81-year-old attorney and the president of Brustin & Lundblad, Ltd. He is one of the top Plaintiff personal injury lawyers in the U.S. He was licensed to practice law while Jack Kennedy was president way back in November 1961!

A little over 10 years back, in October 2011, Attorney Brustin sustained shoulder injuries at a bus stop. Falls at bus stops would usually happen on the way “going to or coming from” work and would not typically be expected to be WC covered. Attorney Brustin contended his disabling event was different. The record indicates Attorney Brustin, who is still running his law firm, worked a number of hours each week from home, but also scheduled meetings with clients and others at his law firm’s offices in Chicago.

On the day of his injuries, Brustin had a scheduled 10:00 a.m. appointment with a client at the office, but he received a somewhat frantic call from the office manager just before 8:00 a.m. that day, indicating the client was present at the office and waiting for him. The client was the business agent of a local labor union and a large source of business for Attorney Brustin’s firm. Brustin contended his firm had a rule that important clients, like this labor union agent, were not to be kept waiting. Accordingly, Brustin got dressed in a rush and walked briskly to his bus stop. While watching for the southbound bus, Mr. Brustin tripped on the edge of a sidewalk slab and fell hard on his left shoulder, suffering what later would be diagnosed as a torn rotator cuff.

In July 2014, he filed a workers’ compensation claim against himself as owner and also against his firm, contending he was an “on-call employee,” and he was engaged in important work for the firm at the time of the injuries, and alleged he was entitled to WC benefits. His firm’s insurance carrier controverted the claim and disputed/defended, relying on the “going and coming” rule. The rule isn’t in our IL WC Act but longstanding WC judicial rulings find Injuries during an ordinary commute are not compensable.

The IWCC panel denied the claim and the Circuit Court affirmed the denial.

The IL WC Appellate Court reviewed the various exceptions to the going and coming rule, including

• the “usual access route,” employees who are actively engaged in work while en route,

• on-call employees,

• the “special mission” rule, and

• the IL WC rule for “traveling employees.”

The Court discounted Brustin’s argument that since he met with clients at his residence and had a law library in his home, that it constituted a separate premises (generally speaking, travel between two premises of the employer is not considered a commute). The Appellate Court further observed that ordinarily a “traveling employee” is an employee whose work requires the employee to travel away from the employer’s office. Those facts did not fit Brustin’s scenario, indicated the court. His injuries occurred during a routine and regular commute and where, therefore, not compensable.

The claim is one of those odd IL WC “published-non-published” rulings in Brustin v. Illinois Workers’ Comp. Comm’n, https://www.leagle.com/decision/inilco20210828270. It is required reading on any going to and coming from claim.

I want my readers to know Attorney Brustin is a solid advocate for his clients and has several multi-million dollar awards/settlements to his credit. He just lost this one claim but has been successful in hundreds of others.

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

Synopsis: IWCC Makes Changes to Status Call & Pre-Trial Conference Procedures. Research and writing by Joseph D’Amato, J.D.

Editor’s comment: The IWCC should be commended for rapidly moving monthly status calls (or “dockets” for those of you south of I-80) online over Cisco’s WebEx system in response to the COVID 19 pandemic. These “virtual” dockets have ensured the safety of lawyers, claimants, and hearing officers. While the IWCC’s modernization efforts are welcome, it should be noted the policies are changing “on the fly” in response to participant feedback.

We want our readers to be aware of the following new status call procedures:

• The first available pre-trial hearing date after the status call shall now be reserved for Respondents objecting to a Petitioner’s request for the continuance of a Redline matter, i.e., a claim filed more than three years prior

• The second available pre-trial hearing date after the status call shall now be reserved for emergency petitions, otherwise known as 19(b)/8(a) petitions and

• The remainder of the pre-trial hearing dates shall be reserved for non-redline and non-emergency cases.

The IWCC has also increased the number of pre-trial hearing dates at what have traditionally been smaller venues to accommodate these changes. The Quincy docket previously had one pre-trial date and there are now two. The Urbana previously had two pre-trial dates and those have been doubled to four. Springfield, a moderate-sized docket, previously had four pre-trial dates and there are now six.

We applaud the IWCC’s continued commitment to modernization, safety, and willingness to consider the feedback of the litigants appearing before it.

This article was researched and written by Joseph F. D’Amato, Esq. You can contact Joe for questions or comments at jdamato@keefe-law.com

Synopsis: We Salute the Great Martin Luther King, Jr. Who Gave His Life to Help Our Country.

Editor’s comment: As his birthday is near mine, I always think of this great statesman and orator this. He gave one of the greatest speeches of the history of this planet—“Let Freedom Ring.” I listen to it every year in January and hope our country continues to make progress to stop and forever end all vestiges of racism. I despise the terms “white” and “black” but I understand why “Black Lives Matter.” Some day, I hope we end the stupidity of racism to understand we are one “race”—the Human Race.

Synopsis: Last time—don’t forget to update your reserves with the new IL minimum wage.

Editor’s comment: Claims Handlers/Risk Managers/Attorneys on both sides--Don’t forget about the January 1 Minimum Wage Increase For Workers In IL But Outside Chicago. Chicago already has a minimum wage of $15 per hour at major employers and $14 per hour for small/mid-sized workers.

Outside Chicago, Illinois employers face another increase in the minimum wage. On January 1, 2022 the IL minimum wage, for companies outside Chicago, rises to $12-per-hour, and will continue to increase one dollar per hour on January 1 of each year until it hits $15-per-hour on Jan. 1, 2025.

Please note this change is IL law. It isn’t pending signature by the Governor—it is the law right now and moving forward. I don’t feel Arbitrators can ignore the law, as enacted. In my view, the change directly impacts reserves and awards/settlements for IL WC wage loss and “loss of trade” claims. Happy to explain.

12-28-2021; Toward a Better Understanding of Workers’ Compensation; Illinois' Awful BIPA Law Rears Its Business-Busting Head Again; HAPPY NEW YEAR and more

Synopsis: Toward a Better Understanding of Workers’ Compensation, As We Enter a New Year.

Editor’s comment: I have been doing this stuff—workers comp—for several decades. Here are some thoughts about my life’s work and where the system is at from a veteran WC defense lawyer. Please note very few business schools teach WC so what most of us learn, we learn by the seats of our pants—by that I mean we rely on training in other fields and our best judgment. To all adjusters and risk managers and attorneys on both sides out there in “Blog-Land,” I am happy to answer any questions or provide training, usually at no cost—send a reply.

I have always told defense clients and my students ‘workers compensation’ is “work injury” insurance or self-insurance. The concept of WC being insurance is slightly difficult because most people with a job are entitled to WC benefits for a bona fide work-related injury or disease whether “insurance” is in place or not. If the employer doesn’t have insurance or self-insurance, they face the dual challenge of paying benefits that are due along with facing potential penalties/criminal charges for not acquiring the requisite WC insurance policy. If you are an employer, please, please get WC insurance.

Keeping WC in the context of insurance does provide some basic concepts for folks that don’t understand how WC “works.” Basically, if you have a job and get hurt or sick, you can seek coverage through your employer for medical care, lost time and “permanency” or impairment. To obtain that coverage, a worker has to jump through a few hoops. The incident/event has to be “real” and not made up. Every State and the Federal WC systems have reporting requirements--if you injure yourself or become sick and don’t tell anyone, the WC claim is, at some point, going to fail.

In IL WC, an incident or illness that you claim is related to work in this State has to become known to the employer within 45 days of the employee knowing their condition is related to something that happened at work. Once the employer is aware of an incident or event causing disability or disease, it is incumbent on the employer and/or their carrier to fully investigate and document the claim.

Please also remember not every incident/event occurring at work is necessarily covered under WC. IL WC and many states have “litigation systems” to resolve WC claims. A litigation system works in many ways by insuring injured workers are represented and get solid legal advice/counsel. I want all sides of the WC matrix to understand a litigation system doesn’t work well if there are no defenses and literally every claim is compensable. If all an arguably injured worker has to do to get WC benefits is to fill out a form and check the right boxes, the carriers are certain to simply pay. In short, if there are no viable WC defenses, we won’t need attorneys on either side or Arbitrators and Commissioners.

Are There Real and Valid Defenses to IL WC Claims—YES!!! 

I recently wrote about an IL Appellate Court ruling where a worker asserted she tripped over a curb—as there was no true defect in the curb, sidewalk and roadway, benefits were denied and the worker didn’t receive anything under the WC system. Please note it would have been extraordinarily challenging to get a defense decision if the incident investigation wasn’t thorough.

You have to investigate any incident at work to defend your company and limit the loss. A strong workers comp claims program has to carefully and thoroughly investigate incidents and do solid follow-up work to insure you are reserving and then paying what you owe under your WC program and carefully fighting what you don’t owe. You can fight claims to challenge 

• “Accident arising out of and in the course of employ”—this includes two disputes

• Is the worker telling the truth about the event/incident and

• Assuming the worker has told the truth are the injuries technically covered under WC

• Causal connection—whether a given condition is medically or mechanically related to what happened in the incident as being related;

• Lost time or TTD;

• Medical care and/or potential over-treatment or overbilling;

• MMI or Maximum Medical Improvement;

• Permanency or Impairment;

• Other miscellaneous issues, like getting the TTD/PPD rates correct or paying statutory loss early in amputations or fatalities.

A New Challenging Trend—Global Compensability

We are recently seeing some employers who are basically “accepting” any and all actual and potential WC claims. For any number of reasons, we disagree strongly with this claims approach and assure everyone this approach is going to result in

• Unpredictable reserves and

• Lots of other workers making specious and unsupported claims as they are seeking an easy way to get a pot o’ gold.

Two issues are almost certain to arise when you don’t investigate properly. First, if the employer doesn’t investigate and document each and every actual or potential claim, you end up having to “own” all aspects of the claim and very rapidly lose any chance to defend, accurately reserve and manage what is coming at you from your worker and the medical community.

Second, if an employer is doing little or no work incident investigation and Claimants are getting whatever they like from the WC claim, you will see LOTS and LOTS of claims. There are lots of workers who are happy to get “free money” and be paid not to work.

Most folks are happy to remain home, treat with their doctor occasionally and then seek large PPD/Impairment settlements. For claims and risk managers who want to insure you are doing a good job investigating, the defense team at KCB&A has a great presentation on Incident/Event Investigation that will allow you to carefully and thoroughly document any potential WC claim. If you have interest, send a reply. 

When you have a strong incident reporting protocol in place, you have a much stronger ability to accurately accept/deny a claim and then set reserves for accepted pending claims. If you aren’t thoroughly investigating WC claims at the first instance, you are like a ship without a rudder in high seas—you are going to bounce around and struggle to manage the claim.

If you do a solid investigation, you can 

• Confirm technical compensability by asking the defense attorneys at KCB&A;

• Set accurate goals for maximum medical improvement;

• Protect the workers job, if you want the worker back upon recovery;

• Keep the worker advised of their continuing position with the company;

• Project medical and indemnity costs and claim costs with accuracy;

• Drive closure within your expectations.

How About An Online or Web WC portal?

Understanding the internet has been around for some time, I suggest some of you look into and set up a WC web portal to facilitate reporting, access to forms and assistance when issues arise. One great examples is Northwestern University’s Risk Management website—

https://www.northwestern.edu/risk/risk-insurance/university-insurance-programs/workers-compensation/

My recommendation is to create web links for your WC forms, confirm availability to communicate/email quickly and smoothly with your risk and claims managers and get a better sense of what the injured/ill worker wants and needs.

I appreciate your thoughts and comments. Please post them on our award-winning blog at www.keefe-law.com/blog.

Synopsis: BIPA Won’t Go Away—An Awful Legislative Scheme Conceived by ITLA and Certain to Bankrupt Some IL Employers Without Any Real Reason.

Editor’s comment: The Illinois Appellate Court revived a worker’s suit against his former employers for alleged violations of the Biometric Information Privacy Act or BIPA. In my opinion, BIPA is a legislative scheme concocted by the IL Trial Lawyers Association to attack and bankrupt IL employers who were innocently tracking employees with modern biometric methods. It is moderately hilarious to note BIPA doesn’t apply to public entities so if your city, county or state government keep and retain biometric information, they don’t have to worry about the horrors of BIPA at all. No other State in our country or the world has our plaintiff-focused BIPA scheme.

You may note if our legislature wanted to stop the biometric tracking process, it would have been very simple to do so—pass a law banning it. Instead, ITLA and their friendly legislators put in a Plaintiff-oriented punitive and goofy law that requires employers to pay at least $1,000 each and every day they tracked a worker with such systems, as if the workers were being “injured” to provide a fingerprint or eye scan. Please note there are about 260 working days in a year so Plaintiffs such as this one would be entitled to about $260,000 a year in “damages.” Do the math and assume Claimant will be entitled to millions, while his employer files for bankruptcy when all the other workers sign up for this indefensible largesse. In short, the “Gotcha” BIPA legislation is almost impossible to defend and provides guaranteed business-busting damages and attorney fees and costs.

In Watson v. Legacy Healthcare Financial Services, Claimant Watson alleged he worked for his employer as a certified nursing assistant at different locations in Chicago. According to Claimant, his employer provides health care services at 26 facilities throughout Illinois. The company provides residential health care services.

Plaintiff asserted he worked at one location from December 2012 through February 2019 and at another from May 2017 through November 2017. From what I can tell in reading the decision, he wasn’t “injured” in any way and as I outline above, Plaintiffs don’t need to show any injury or economic problem. Throughout the duration of employment, Claimant alleged he was required to have his fingerprint and/or handprint collected and/or captured so that his employer could store it and use it as an authentication and/or bookkeeping method.

Claimant filed suit for violation of BIPA or the Biometric Information Privacy Act for their mistaken decision to track him with “biometrics.” The employer moved to dismiss the complaint, arguing the claim accrued on the first day they collected his biometric information in 2012 and this suit was barred by the statute of limitations.

In the alternative, the employers argued the claim was preempted by the coverage of the IL Workers' Compensation Act and the Labor Management Relations Act.

A trial court judge granted the motion to dismiss, finding this claim accrued in December 2012 with the initial scan. Therefore, the statute of limitations was five years and the suit, filed in March 2019, was time-barred. The trial judge also found the claim was not preempted by either the Workers' Compensation Act or LMRA.

The Illinois Appellate Court ruled Plaintiff’s claims against his employers were not time-barred. The court noted BIPA does not contain an express statute of limitation or set forth an accrual date, but its plain language establishes that it applies to each and every capture and use of a plaintiff's fingerprint or hand scan. The Act defines biometric information as any information, regardless of how it is captured, so long as it is based on an individual's fingerprint or hand scan and used to identify an individual.

Since Defendants allegedly used biometric information to check him into work each day and check him out, the court said, the act plainly applies to the twice-daily capture of Claimant’s hand to identify him.

BIPA requires an entity that collects and captures biometric information must "first" inform a worker and receive a release, and the court read this to mean the requirements apply to each and every collection and capture, and the entity may not collect or capture without "first" informing a subject and receiving a release.

While this employer argued if the accrual date is not the first collection and damages will unquestionably be ruinous, the court said it was not deciding whether each scan was a new and separate violation or a continuing violation.

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

Synopsis: HAPPY NEW YEAR from KCBA!!!

Editor’s comment: Claims Handlers/Risk Managers/Attorneys on both sides--Don’t forget about the January 1 Minimum Wage Increase For Workers In IL But Outside Chicago. Chicago already has a minimum wage of $15 per hour at major employers and $14 per hour for small/mid-sized workers.

Outside Chicago, Illinois employers face another increase in the minimum wage. On January 1, 2022 the IL minimum wage, for companies outside Chicago, rises to $12-per-hour, and will continue to increase one dollar per hour on January 1 of each year until it hits $15-per-hour on Jan. 1, 2025.

Please note this change is IL law. It isn’t pending signature by the Governor—it is the law right now and moving forward. I don’t feel Arbitrators can ignore the law, as enacted. In my view, the change directly impacts reserves and awards/settlements for IL WC wage loss and “loss of trade” claims. Happy to explain.

12-22-2021; Get Vaccinated or Test Weekly Per OSHA for Employers with 100+ Workers; Important Settlement Ruling by IL Supreme Court; Dr. George Holmes Retires; IL Minimum Wage Goes Up and more

Synopsis: U.S. Employers with over 100 Employees Need to Come into Compliance To Block Covid-19.

Editor’s comment: In short, get them all vaccinated or test and test every week! Don’t get cited by OSHA, you may regret it.

Five days ago, on December 17, 2021, a federal Court of Appeals dissolved the stay of OSHA’s Emergency Temporary Standard (ETS) previously ordered. Therefore, OSHA’s standard mandating workplace vaccination and testing on all private employers with 100 or more employees is back on.

On December 18, 2021, the day after the federal decision was released, OSHA announced that it will not issue citations for noncompliance with the ETS before January 10, 2022 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022 — so long as you are exercising reasonable, good faith efforts to be in compliance.

What should private U.S. employers with 100+ employees do? Get going!!! In the nineteen days from now to January 10, 2022:

1. Finalize and publish your COVID-19 vaccine policy to your employees;

2. Distribute and publish to your employees the following notices:

   1. Workers’ Rights under the COVID-19 Vaccination and Testing ETS https://www.osha.gov/sites/default/files/publications/OSHA4159.pdf

   2. Information for Employees on Penalties for False Statements and Records https://www.osha.gov/sites/default/files/publications/OSHA4157.pdf

3. Finalize your Vaccination Roster by obtaining proof of and confirming who is fully vaccinated and who is not. This should be done in a confidential manner.

4. Provide Paid Leave for anyone obtaining the vaccine (note: Boosters do NOT count) (up to 4 hours per shot).

5. Permit a “reasonable amount of time” of paid leave for the recovery from any ill-effects of any vaccination dose.

6. Mandate masks and appropriate face coverings must be worn by anyone who is not fully vaccinated at all times (unless isolated in an office with four walls and a ceiling).

Then, by February 9, 2022, you need to:

A) Require your employees to be fully vaccinated (Note: boosters are NOT relevant under the current ETS); and/or

B) Require all unvaccinated employees to submit to weekly testing. 

Under the ETS, employees who are exclusively working remotely or predominantly working outside are not subject to these requirements.

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

Synopsis: Armstead v. National Freight’s Jurisdictional Issue Highlights the Importance of Settlement Contract Terms. Research and Writing by Michael Palmer, J.D.

Editor’s Comment: Claimant Armstead worked for Manfredi Mushroom Cos. Inc, as a truck driver. Manfredi Mushroom was based in Pennsylvania. Armstead was involved in an MVA or truck accident in Minooka, Illinois, and filed a workers’ compensation claim in Pennsylvania. This case eventually settled. When that happened, his only listed injury on his Pennsylvania settlement contract was a right knee sprain.

Armstead thereafter filed a tort claim against the other driver and his employer in Illinois, asserting the driver’s negligence caused the accident. Armstead sought damages for injuries to the back, shoulder and knee as a result of the collision. Defendant argued “collateral estoppel” or issue preclusion applied, as Armstead’s workers’ compensation settlement contract clearly limited the injuries to a knee sprain. The trial court judge agreed and found the settlement agreement constituted a judicial admission that prohibited Armstead from alleging additional injuries.

Armstead filed a Motion for Reconsideration, which was denied, and he then appealed. Two weeks after filing his notice of appeal, Armstead filed a motion with the trial court for voluntary dismissal with prejudice with leave to refile for any claims for injuries concerning the right knee strain. The Judge ruled that prior orders dismissed any claims for injuries aside from the knee strain, and the case was dismissed without prejudice with leave to refile.

It appears Claimant did not timely refile the claim after this dismissal.

After a second notice of appeal was filed (and consolidated with the first), the Appellate Court ruled Armstead’s claims for additional injuries were barred via collateral estoppel. They further opined there was no unfairness in the ruling because Armstead had the opportunity to pursue the other injuries in his workers’ compensation claim.

The Illinois Supreme Court granted leave to appeal. In response, Defendants filed a motion to dismiss arguing the appeal was moot. The Supreme Court denied the motion to dismiss but claimed it lacked jurisdiction to rule on the issues raised on the appeal. In their reasoning, the Court stated the circuit court’s order simply resolved an issue related to Armstead’s claims but did not dispose of them. Further, they believed the circuit court judge made an error in issuing a finding that there was no just reason to delay enforcement of the appeal, because the order must terminate the litigation in order to be appealable. Our highest Court also believed the IL Appellate Court lacked jurisdiction to review the orders, and as such, jurisdiction remained with the circuit court. Finally, the Court said the action remained dismissed, as Armstead had dismissed his action in the circuit court and failed to timely refile it. Therefore, the Appellate Court’s decision was vacated and remanded for dismissal.

Justice Ann Burke dissented, disagreeing with the decision to remand the claim to the circuit court for dismissal, as she argued there was no such thing as a “claim for a right knee strain”. I agree with Justice Burke but it does appear the matter remained dismissed due to Claimant not refiling it timely.

This ruling is not only interesting for the trucking industry, but any employer in Illinois. The decision highlights the importance of settlement contract terms in Workers’ Compensation, and the effect they have on a third-party action. As this ruling suggests, workers’ compensation settlement contracts may have a controlling effect on any injuries claimed in subsequent litigation. Employers should be aware of such when settling claims.

This article was researched and written by Michael Palmer, a solid defense attorney at KCB&A. Mike can be reached any tie at mpalmer@keefe-law.com.

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

Synopsis: Dr. George Holmes, Nationally Known and Respected Foot/Ankle Doc, Retired.

Editors comment: We just learned of the retirement of this great surgeon and want our WC community to know of it. He will not easily be replaced.

Dr. Holmes had a long and distinguished career. I am sure he provided care to IL injured workers and was a fair and reasonable IME doc, when that was needed. He was an Associate professor, Director Section of Foot and Ankle at Rush U. Medical Center and the Foot and Ankle Fellowship Director.

The defense team at KCB&A wishes him all the best in his future endeavors.

Synopsis: Claims Handlers/Risk Managers/Attorneys on both sides--Don’t forget about the January 1 Minimum Wage Increase For Workers In IL But Outside Chicago.

Editor’s comment: Chicago already has a minimum wage of $15 per hour at major employers and $14 per hour for small/mid-sized workers.

Outside Chicago, Illinois employers face another increase in the minimum wage. On January 1, 2022 the IL minimum wage, for companies outside Chicago, rises to $12-per-hour, and will continue to increase one dollar per hour on January 1 of each year until it hits $15-per-hour on Jan. 1, 2025.

Please note this change is IL law. It isn’t pending signature by the Governor—it is the law right now and moving forward. I don’t feel Arbitrators can ignore the law, as enacted. In my view, the change directly impacts reserves and awards/settlements for IL WC wage loss and “loss of trade” claims. Happy to explain.