8-8-2022; Big Mac Gets Whacked with Penalties/Fees; IRS Increases Mileage that Changes IL WC IME's and more

Synopsis: Big Mac Gets Whacked for IL WC Penalties/Fees. Your Editor is not sure why this set of facts needed an appeal to the IL Appellate Court and a reported ruling.

Editor’s comment: The Illinois Appellate Court, WC Division upheld an award of full benefits, including Claimant’s attorney fees and other penalties for a long-time McDonald’s employee for an unreasonable contest to her IL WC claim. We are fairly sure this was a franchise store and not a company-owned location.

In my view and as a veteran defense attorney, this is a classic example of frustrating IL WC overtreatment by physician after physician. Again, and in my view, UR (or utilization review) should have been implemented early and often to block what I feel was obvious unnecessary care—if you aren’t sure how and why KCB&A recommends UR in such settings, send a reply.

In McDonald’s v. IWCC, No. 1-21-0928WC, issued 06/24/2022, Claimant worked for McDonald's for approximately 21 years. On Oct. 3, 2012, Claimant went to a refrigerator to get a box of meat. She claimed she grabbed a box from the top shelf, which was above the height of her eyes and forehead. She asserted she placed the box on her left shoulder, and it began to fall. She claimed she twisted her lower back and tried to stop the box from falling, using her right hand, and she felt pain in her right shoulder.

Claimant told two supervisors what had occurred. She continued working until she was advised to stop. She then went to Trinity Hospital. That same day, one of Claimant’s supervisors completed a report of incident and faxed it to McDonald's main office. The report states Claimant suffered a back injury handling a box of meat. I feel there is an incident report issue with calling this event an “injury”—if you aren’t sure why, send a reply.

Trinity Hospital’s records indicate Claimant complained of low back pain lifting heavy boxes of meat and she was diagnosed with a back strain. Claimant returned to work on two days after this occurrence on Oct. 5, 2012.

On Oct. 8, 2012, the insurance carrier for McDonald's sent a letter to Claimant advising it received notice of her "work-related injury.” On Oct. 16, 2012, Claimant saw a Dr. Louis who is on the web as a “pain management specialist” with complaints of ongoing low back and right shoulder pain since the incident with the box of meat. Dr. Louis diagnosed her with a lumbar strain and right shoulder pain. He also excused her from work.

Claimant filed a workers’ compensation claim on Oct. 23, 2012, and notice was provided to McDonald's the next day.

On Nov. 8, 2012, Claimant saw a different doctor, again complaining of lower back and right shoulder pain. This physician suggested Claimant undergo an MRI, which she did. On Nov. 26, 2012, Claimant saw Dr. Jain, who examined her and reviewed the results of the MRI exams. Dr. Jain recommended epidural injections and a referral for an orthopedic evaluation. He opined her shoulder and back symptoms were "directly related to the injury," and the treatment provided to date was reasonable and "of necessary frequency and duration."

Claimant returned to work, with restrictions in December 2012.

In January 2013, she saw Dr. Gregory Markarian, an orthopedic surgeon. Dr. Markarian recommended continuing physical therapy and discontinuing work.

In April 2013, Dr. Jain administered injections to Claimant’s back. She reported an improvement in her pain afterward. On June 20, 2013, Dr. Markarian administered an injection to Claimant’s shoulder. She reported relief.

Nine months after onset, on June 28, 2013, another doctor got involved—a Dr. Vargas recommended Claimant undergo “facet joint injections” that I personally consider hogwash. This new doctor also recommended an FCE—I don’t consider FCE’s to be scientific or “medical treatment.” I want to confirm for all defense readers there is no value in paying for an FCE in an Illinois WC claim.

Claimant was finally discharged from physical therapy in August 2013 (UR should have blocked all that expensive PT), and she underwent an FCE in September. The FCE evaluator summarily and eternally placed Claimant’s capabilities at a sedentary to light level.

In November 2013, thirteen months after onset, Dr. Vargas administered more “facet joint injections” to Claimant’s back. Again, I feel UR should have been used for approval or non-certification.

On Nov. 27, 2013, again thirteen months after onset and without much recorded care in the interim, Dr. Markarian recommended shoulder surgery.

About six months later, In March-April 2014, Dr. Vargas administered even more nerve-block injections to Claimant’s back. He also recommended radiofrequency ablation that I feel has literally no value of any kind.

Claimant did not have the shoulder surgery or ablation. She continued working for McDonald's in a light-duty capacity cleaning tables.

Dr. Mather conducted a review of Claimant’s medical records. He concluded she suffered a lumbar strain from the initial injury. Dr. Mather opined injections were not necessary and the FCE was valid. He further opined that Claimant needed no treatment beyond two weeks after her injury and she should have no work restrictions.

Dr. Craig Phillips also examined Claimant and concluded her shoulder and arm issues were caused by the work accident. He also thought she should be restricted to lifting no more than 10 pounds and refrain from any overhead activities.

In January 2019, the IL WC Arbitrator found Claimant suffered a work-related accident, that she gave timely and appropriate notice to McDonald's and that her current condition was causally related to the accident. The arbitrator found Claimant was entitled to her past medical expenses and that the nature and extent of her injuries amounted to 17.5% loss of her person as a whole.

The arbitrator also awarded Claimant attorney fees and penalties, finding McDonald’s had acted vexatiously in disputing the issue of notice and the occurrence of an accident.

The Illinois Workers' Compensation Commission panel affirmed the decision after correcting the arbitrator's average weekly wage calculation and deducting travel expenses from some physical therapy services.

A Circuit Court judge affirmed the Commission’s decision. McDonald’s appealed their ruling to the IL Appellate Court, WC Division.

The Illinois Appellate Court ruled the Commission’s finding Claimant suffered an accident at work is not against the manifest weight of the evidence. The court noted she testified how the accident occurred in some detail and McDonald's offered no material evidence to rebut her testimony or counter her claim. The owner of the McDonald's franchise acknowledged Claimant suffered an accident at work. The court found there was timely and proper notice of the accident was given on the day of its occurrence, as McDonald’s conceded on appeal.

The court also said the expert hired by McDonald’s opined that Claimant’s shoulder and arm injuries were caused by her work accident and that her description of the mechanism of injury certainly could result in injury to the back and shoulder.

The IL Appellate Court, WC Division ruled an IL employer must have a reasonable basis to take a position. A position is not legitimate or reasonable simply because the Workers’ Compensation Act permits it.

If you are handling an IL WC claim and facing petition for penalties/fees and want a second opinion from a veteran defense attorney on your overall chances, send a reply.

To read the court’s decision, click here.

Synopsis: IRS Raises Standard Mileage Rate for Final 6 Months of 2022.

Editor’s comment: For reasons I respectfully disagree with, IL WC claims pay mileage for travel to and from Independent Medical Exams under Section 12 based upon standard IRS mileage rates.

The IRS announced a rare midyear increase in the standard mileage rate for the final six months of 2022, to 62.5 cents per mile, due to soaring gas prices.

Please use this new rate if you are setting an IME in an IL WC claim—please also note it is not worth the time or money to fight over this amount.

5-15-2022; The "Buried" IME Report--What happens at hearing in IL WC?; UR given proper respect by IL WC Commission; Please don't hit me.. it may not be covered by IL WC Insurance and more

Synopsis: The “buried” IL WC IME report… what happens at trial?

Editor’s comment: While Respondents may technically keep an IME report from the trial record on hearsay grounds, doing so often places the defense posture on tenuous ground.

In Kelly Stork v. Adventist Bolingbrook Hospital, 19 WC 27240, 21 IWCC 0032 (2021) Petitioner worked for Respondent as an Obstetrics Technician, assisting doctors during child birth. At the time of accident, Petitioner was holding a woman’s leg during childbirth and alleged she injured her back and hip.

Respondent obtained two IME’s. However, there was a strong suspicion these were less than supportive to the defense, since it was actually Petitioner’s counsel arguing for admission based on rules of evidence regarding admission of medical “treatment” records and as an “admission of a party opponent” by Respondent Hospital.

Respondent actually objected to admission of their own IME on hearsay grounds. The Arbitrator correctly sustained the objection and did not admit the reports into evidence. IME reports without foundation are not the same as certified treatment records which would otherwise be admitted. Also, IME reports are not technically considered “admission” of Respondent via any agency theory. 

We feel the Arbitrator made the correct evidentiary ruling but nevertheless commented at trial that she could infer the rejected reports were in Petitioner’s favor. The Commission affirmed the underlying ruling but noted that no such inference as to the IME report conclusions should be made by the Arbitrator.

Our Takeaway: While true IME reports are not admissible without appropriate foundation testimony, and those opinions are not considered “admissions” by Respondent, the IL WC Commission is unlikely to rule in favor of Respondent under such circumstances where the medical opinions are clearly being withheld from consideration. Only where there may be independent grounds for denial such as an accident dispute, witnesses, surveillance, etc., should such a tactic be considered.

Synopsis: Good to see!! Utilization Review analysis given proper respect by the IL WC Commission.

Editor’s comment: In Avila v. Authentic Brands of Illinois 29 ILWCLB 207 (2021), the IL WC Commission affirmed the effectiveness of Utilization Review as mechanism to place burden on Petitioner for “reasonable” need for care.

It appears Petitioner suffered an undisputed slip and fall while working as a cook for Respondent. His hand, arm and hip injuries involved and were treated with a variety of conservative measures and Respondent obtained four (4) separate Utilization Review opinions which non-certified aspects of care.

Upon hearing the claim, the IL WC Arbitrator summarily… actually in a brief footnote only… dismissed the value of the UR reports and found all care reasonable and necessary.

On Review, the IL WC Commission found the Arbitrator misstated the legal standard and to have failed to properly consider the Utilization Review opinions.

The IL WC Commission cited Section 8.7 of the Act, noting that once UR is invoked by Respondent, it is the medical provider that should make a reasonable effort to provide data to support the recommended medical care.

Also, Petitioner has the burden of proof to establish the reasonableness and necessity of requested care. Therefore, without explanation or support/rebuttal to the UR findings, Petitioner has not met their evidentiary burden.

Our Takeaway: In our view, Utilization Review of questionable medical care remains a valuable claims tool, supported by national and international treatment guidelines, to rebut, block and deny treatment which may be excessive or outright unnecessary. In our view, it is most useful for excessive or unnecessary therapies, DME (durable medical equipment) or other “unorthodox care.” The IL WC Act indicates UR that is properly utilized has “presumptive effect.”

Please also note: Use of UR alone to deny surgery may be insufficient, as the opinion of a treating doctor who examined Petitioner may often be given more weight.

Synopsis: Please don’t hit me!… it may not be covered by IL WC insurance!

Editor’s comment:  As our world appears to grow more violent, claims involving violence may become more common. This current case gives us insight into the IL WC Commission rationale.

In Higueros v. La Villa Banquets, 17 WC 9838, 20 IWCC 0769 Petitioner was a restaurant bus boy who observed an argument in the restaurant parking lot while taking garbage to the dumpster. A man was striking a woman, so the gentleman-Petitioner struck up a conversation with the man during which he told the thug he could not fight/strike others while on the property, that he should leave as the police were coming. As no good deed goes unpunished, the thug turned on Petitioner and struck him in the face with an object.

The IL WC Commission found Petitioner was actually “in the course of” employment, as he was dumping garbage at the time, and rendering aid to the victim of such disturbance does not necessarily remove a worker from the course of employment.

However, the IL WC Commission found Petitioner did not meet the “arising out of” element necessary to impart compensability. Although Petitioner argued he worked as a bus boy until late at night, and he was exposed to a greater risk of responding to altercations involving intoxicated patrons, the Commission found this insufficient to prove “increased risk” and Petitioner did not present evidence as to potential increased crime rates in the area surrounding the bar. The IL WC Commission found it significant that there had never been an incident like this on the Respondent’s premises. There was no obligation to assist patrons either, based on Petitioner’s job description. Benefits were denied.

One wonders if a bouncer would have had better odds at arguing such a confrontation “arises out of” his employment, particularly if the altercation began inside the bar/restaurant.

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

Getting Ahead and Staying Ahead of Workers’ Compensation in Illinois

Member Rate: $309

Non-Member Rate $359

Early Bird Rate: Save $50 when you register 10 days

prior to the event

Two Dates/Locations:

Wednesday, May 18, 2022

9:00 am - 4:00 pm

NIU Center

Room 250

1120 E. Diehl Road

Naperville, IL 60563

OR

Wednesday, June 15, 2022

9:00am - 4:00pm

Illinois Chamber of Commerce

215 E. Adams St.

Springfield, IL 62701

Continuing Education Credits Offered

·     6.00 HRCI

·     6.00 SHRM

·     5.75 CLE per attendee request prior to event

·     6.00 Workers’ Compensation Compliance Credit

·     5.75 Nurse Case Management credits

Attorneys from Keefe, Campbell, Biery & Associates will start with the basics of Workers’ Compensation in Illinois, including benefits, the Workers’ Compensation Commission, and handling a claim of injury from the beginning to end.

They will analyze and discuss important topics such as Temporary Total/Partial Disability, Nature and Extent of Injury, Wage Loss Differential, Discovery, Liens and related claims against WC benefits in Illinois, Surveillance, Retaliatory Discharge and How to Handle WC Death Claims. Covid-19 issues, including the past rebuttable presumption, and statutory vaccine related issues will be discussed as well as discussion of crucial factors to be considered when dealing with any workers’ compensation claim.

You will receive suggestions on pushing your claim targets, using real time examples. Keeping in touch with your workers and how to drive claim closure are key, so these will also be discussed.

This is a CAN’T MISS workshop for anyone who handles Workers’ Compensation claims in Illinois or in general.

Disclaimer: The opinions expressed in this presentation are solely those of the presenter and do not necessarily represent the official policy or position of the Illinois Chamber of Commerce.

Register Today!

Please contact Pam Holleman at pholleman@ilchamber.org or 855-239-6150.

4-28-2022; What Am I Missing in IL WC School Bus Driver Claim? and more

Synopsis: What Am I Missing in IL WC School Bus Driver Claim?

Editor’s comment: Every hand is a winner and some hands are losers. When do you stop appealing a ruling to keep losing before every hearing/appeal officer?

An IL school bus driver had work that involved picking up children/students in the morning and driving them to school and then returning and picking up students from school in the afternoon and driving them home.

The driver began driving a bus with a manual door opener that required the use of a door handle to open/close the bus door at each and every stop. There is no dispute she had two separate morning and two separate afternoon routes with her assigned bus, and these routes required her to manually open the bus door at least 25 to 30 times daily or more. While driving the school bus one day, the driver alleged an event of “extreme” pain in her right shoulder as she opened and closed the bus door during afternoon routes. Despite the pain, she did not immediately report the onset of shoulder pain to her supervisor but took over-the-counter pain medicine when she got home.

After waking up the next morning with continued shoulder pain, the bus driver completed four routes for the day and told her supervisor she needed medical care. Again, there is no dispute the driver filled out an employee injury form and went to a medical clinic. The incident reporting document was completed by Claimant and a supervisor/safety manager from the school bus company. In describing the injury, the reporting form states: "Very sore discoloration on right arm." To me, as a veteran defense lawyer, the presence of discoloration means Claimant tore something inside her arm. 

Several days later, the school bus driver again sought medical care. A day later, she filed a WC claim for benefits. She was represented by a noted Claimant firm.

For reasons unclear to me, the employer totally disputed the claim. Following arbitration, the arbitrator assigned found the school bus driver experienced accidental injuries that arose out of and in the course of her employment and awarded the driver almost four months of temporary total disability benefits and medical bills in the amount of about $18K.

Again for reasons I am not sure of, the company filed a petition for review before the Illinois Workers' Compensation Commission. The unanimous Commission panel determined the arbitrator miscalculated the TTD award, but otherwise affirmed and adopted the Arbitrator's decision. The company appealed to the Circuit Court of Cook County, which confirmed the Commission's decision, prompting the company to appeal to the Appellate Court, Workers’ Compensation Division.

At this third appeal level, the company contended there was nothing technically “wrong” with the door-opening mechanism, so they asserted the incident didn't/shouldn’t/couldn’t happen because of the driver's job.

Please note the matter was heard by the IL WC Arbitrator and nine different hearing officers/jurists at various stages of appeals. They all ruled under Illinois WC law, a worker must establish she experienced a disabling injury that arose out of and in the course of her employment. There is no requirement the worker demonstrate there was something “wrong” with the work equipment, whatever that might mean. The Appellate Court noted Claimant testified that, prior to the date of loss, she never suffered any kind of shoulder injury, never experienced right shoulder symptoms, never saw a doctor for her right shoulder and never had surgery on her right shoulder. She stated that the first time in her life she had any significant pain in her right shoulder was on the date of loss.

Our Readers Need to Note—Illinois is a One-Party State. If You are Unsure of What That Means, Send a Reply.

Did this incident constitute an “accidental injury” in this nutty State—almost assuredly, the answer is yes. Please note the fact other workers may be able to open and shut the door safely doesn’t mean this worker didn’t tear something in her arm, as the almost-immediate discoloration would indicate.

In this month’s ruling of the Appellate Court, Workers’ Comp Division in American School Bus Company LLC v. Illinois Workers' Compensation Commission, No. 1-21-0733WC (Ill. App. Ct. 04/08/22) the Courts’ members all upheld the previous decisions from lower levels in the school bus driver's favor. According to the ruling, the driver was in good health prior to the date on which she experienced pain for the first time at work and never had shoulder problems before. The Court rejected the opinion of a doctor who testified in the company's favor to assert the medical issues were “too speculative” and failing to take into account the fact the driver did not experience shoulder problems prior to the date in question.

In short, we recommend you get a second opinion from the defense team at KCB&A before you file appeal after appeal in a claim such as this. We appreciate your thoughts and comments. Please post them on our award-winning blog.

Getting Ahead and Staying Ahead of Workers’ Compensation in Illinois

Member Rate: $309

Non-Member Rate $359

Early Bird Rate: Save $50 when you register 10 days

prior to the event

Two Dates/Locations:

Wednesday, May 18, 2022

9:00 am - 4:00 pm

NIU Center

Room 250

1120 E. Diehl Road

Naperville, IL 60563

OR

Wednesday, June 15, 2022

9:00am - 4:00pm

Illinois Chamber of Commerce

215 E. Adams St.

Springfield, IL 62701

Continuing Education Credits Offered

·     6.00 HRCI

·     6.00 SHRM

·     5.75 CLE per attendee request prior to event

·     6.00 Workers’ Compensation Compliance Credit

·     5.75 Nurse Case Management credits

Attorneys from Keefe, Campbell, Biery & Associates will start with the basics of Workers’ Compensation in Illinois, including benefits, the Workers’ Compensation Commission, and handling a claim of injury from the beginning to end.

They will analyze and discuss important topics such as Temporary Total/Partial Disability, Nature and Extent of Injury, Wage Loss Differential, Discovery, Liens and related claims against WC benefits in Illinois, Surveillance, Retaliatory Discharge and How to Handle WC Death Claims. Covid-19 issues, including the past rebuttable presumption, and statutory vaccine related issues will be discussed as well as discussion of crucial factors to be considered when dealing with any workers’ compensation claim.

You will receive suggestions on pushing your claim targets, using real time examples. Keeping in touch with your workers and how to drive claim closure are key, so these will also be discussed.

This is a CAN’T MISS workshop for anyone who handles Workers’ Compensation claims in Illinois or in general.

Disclaimer: The opinions expressed in this presentation are solely those of the presenter and do not necessarily represent the official policy or position of the Illinois Chamber of Commerce.

Register Today!

Please contact Pam Holleman at pholleman@ilchamber.org or 855-239-6150.