1/7/2024; A Pirate Turns 80--Thoughts on former Alderman Ed Burke; An Unusual Wage Diff Ruling That Ignores an Earlier Ruling Requiring Voc Assessments; New IRS Mileage Rate Posted; Herb Franks RIP

Synopsis: A Pirate Turns 80--Former Alderman Ed Burke’s Political Career and Role as a Municipal WC Manager Comes to an Abrupt End.

 

Editor’s comment: I admit I stole the idea for the title of this piece from the song by the late and great Jimmy Buffett who recently transitioned to a new and hopefully better place.

 

What Did Former Alderman Ed Burke Have To Do With Workers’ Comp?

 

Few observers in the U.S. and Illinois workers’ comp industry know that former Alderman Burke “ran” the City of Chicago’s workers’ comp and police/fire disability programs for decades. In my personal opinion, he did so in an openly corrupt fashion. My favorite example of this was the City of Chicago police candidate who claimed his hands became sore shooting guns in the police academy. He was allowed to get police disability, basically for a lifetime.

 

You can’t make this up--take a look at https://www.police1.com/police-jobs-and-careers/articles/report-claims-disability-pays-for-chicago-police-pipwIaViYisrA5Cf/

 

https://www.police1.com/health-fitness/articles/disabled-chicago-cop-cut-off-after-safari-findings-surface-A3gOTz34JxJARwya/

 

Most municipalities would have suggested this candidate who clearly failed at police training should transition to something he was better suited to do. In Chicago, that common sense approach just doesn’t happen.

 

In my view, under the aegis of former Alderman Burke this job candidate was provided a lifetime of disability pay and actually put himself through college and law school and was most recently seen as a divorce lawyer and funeral director in the south suburbs. He is probably now on a City pension. To my understanding, he never worked as a police officer for a single day but he had to be paid millions of taxpayer dollars in police disability pay over his work life. To my understanding, lots of folks got this sort of largesse via WC or disability pay while working under former Alderman Burke.

 

Why would anyone in control of the City of Chicago’s WC and police/fire disability programs provide such largesse to someone who clearly wasn’t cut out for the job? Again, in my opinion, this worker and dozens of others like them would always be beholden to their political patron and would be sure to donate time, money and hard work to every political campaign. The main problem is Chicago taxpayers were getting literally nothing for their tax dollars while former Alderman Burke directed political workers using WC and police/fire disability as a carrot.

 

Please note when Former Alderman Burke was indicted, numerous City workers being paid TTD for years quit immediately. It is my opinion they did so to avoid being part of the indictments, as they may have been running businesses or working “side jobs” while getting TTD. We will never know.

 

Former Alderman Burke Wouldn’t Do Very Simple Things to Cut Chicago WC Costs for Taxpayers.

 

Along with putting workers on lifetime TTD and disability benefits, Former Alderman Burke openly refused

 

  • To return anyone to work at light duty or

 

  • Have his police department or independent surveillance operators check to see what City workers on TTD were doing.

 

You might know I worked for the City of Chicago for almost a decade and if there is any place that has lots and lots of light duty jobs, it is the City of Chicago. No one working for the City should be on TTD, asserting a lack of light work.

 

I am sure the City of Chicago has transitioned to outside TPA’s that are handling their WC claims dramatically better, sans political influence. I would bet they are saving Chicago taxpayers millions versus the system run by former Alderman Burke.

 

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

 

 

Synopsis: IL Appellate Court, WC Division Finds Truck Driver Entitled to a Hearing for a Currently Impossible-to-Define Wage-Differential Award for Ankle Injury.

 

Editor’s comment: What Happened to CDW Corp v. IWCC?? If you want to read that ruling, take a look at https://scholar.google.com/scholar_case?case=8091368495711227221&q=CDW+Corp+v.+IWCC&hl=en&as_sdt=400006&as_vis=1 I vote this CDW Corp. ruling be implemented by the parties and the hearing officers in this current claim. If you aren’t sure how and why, keep reading.

 

In Walsh v. Illinois Workers’ Compensation Commission, our Illinois Appellate Court, WC Division said a former truck driver whose ankle injury precluded him from continuing in his usual and customary line of work was entitled to an impossible-to-determine wage-differential award rather than permanent partial disability benefits awarded by the IL Workers’ Compensation Commission.

The problem I have with this ruling is simple—in my view, it treats the very recent, well-reasoned and solid IL Appellate Court ruling in CDW Corp v. IWCC as non-existent.

In this claim, Petitioner Walsh was a truck driver for Austin Tyler Construction Co. In October 2014, while exiting his truck, his left foot landed in a pothole, and he injured his ankle.

A magnetic resonance image revealed tearing of the superior peroneal retinaculum, peroneal longus tendon and peroneus brevis tendon. Walsh rejected a recommendation to have surgery and opted for physical therapy.

He did one day of light-duty work in December 2014. He testified it was his opinion the work provided was mostly “pointless paperwork” and suggested the company lay him off, which it did.

He returned to work at the same company for the 2015 construction season but continued to complain of ankle pain. In 2016, he complained his ankle was getting worse with each day of work, and he underwent surgery.

After surgery, he was released to return to work with restrictions in November 2017. His employer provided accommodations in the form of assigning him loads that did not require him to spray the trailer after making deliveries and providing him with a truck with an automatic transmission.

In response, four days later, Walsh’s doctor revised work restrictions to prohibit climbing into a truck or trailer. There was no end date for the restrictions, and Walsh did not return to work as a truck driver.

There is no indication in the record vocational counseling was offered or accepted. You may note in the CDW Corp. v. IWCC ruling I cite above, at that point a “vocational assessment” would be required—that didn’t appear to happen at all.

After a hearing, the Arbitrator awarded temporary total disability benefits from the day of the accident — Oct. 19, 2014 — until Walsh was offered light-duty work on Dec. 2, 2014; and from May 19, 2016, when Walsh had surgery, through June 23, 2017, when he was released to return to restricted work.

The arbitrator also awarded Claimant Walsh permanent partial disability benefits for a 30% loss of use of his left foot. In my opinion, this meant the hearing officer didn’t believe Claimant couldn’t locate alternate light work somewhere. That said, I don’t see evidence presented or mentioned in the record to document available light work.

On review, the Illinois Workers’ Compensation Commission panel affirmed and adopted the arbitrator’s decision except for modifying temporary total disability award dates.

The circuit court was undeterred by the IWCC hearing officers. I write with deference to this honorable Court who I am sure did what he or she felt best with the record presented there. The circuit court somehow summarily determined Claimant Walsh was entitled to a longer period of temporary total disability and a wage-differential award to age 67.The court said Walsh should have received temporary disability benefits through Oct. 31, 2017, when the employer accommodated his work restrictions. The circuit court also ruled Walsh’s increased pain and swelling were evidence that continuing his line of work endangered his health and the accommodation of a truck with an automatic transmission was somehow “insufficient.” Finding Walsh was precluded from his customary line of occupation, the court determined that he was therefore entitled to a wage-differential award, as a matter of law(?)

The court remanded the case to the commission to for the first time, calculate such benefits, and the employer appealed.

Respondent Austin Tyler Construction argued the Commission’s decision that Walsh was entitled to a permanent partial disability award and not a wage-differential award should be afforded deference. Wage-differential awards are available to those who prove an impairment of earning capacity based on actual earnings for a substantial period before and after a work accident. Please note the burden of proof in such claims is on Claimant’s counsel.

On appeal, the Illinois Appellate Court, WC Division ruled the circuit court’s decision was “appropriate.”

They noted Claimant Walsh continued to have swelling four years after the surgery. And while a functional capacity exam or FCE showed that he could do his job if given a truck with an automatic transmission, the appeals court said Walsh’s doctor later imposed more stringent restrictions that prohibited climbing into the truck or its trailer. Please note these two sentences above indicate there is a factual dispute and the Commission’s ruling on factual disputes are supposed to be overturned only when “against the manifest weight of the evidence.” In my opinion and with respect to the members of our Appellate Court, WC Division I feel it is impossible to consider the IWCC ruling was against the manifest weight.

From the bigger picture, the Appellate Court, WC Division ruled the evidence showed Walsh could no longer perform the truck driver job. I would point out you don’t have to be a NASA rocket science to concur in that ruling. My point, as a Commission observer, and again with the highest deference to the members of our Appellate Court, the record before it was the responsibility of Claimant’s counsel. If he or she didn’t provide evidence as to the numbers and evidence to allow a wage differential award to be created, that is their issue and their failing shouldn’t be “corrected” or remanded to be re-heard to allow new evidence to create a simple wage diff calculation.

However, once the Appellate Court found Claimant Walsh was partially incapacitated from his usual and customary line of employment and, in my view, “magically assuming” without any factual basis in the record to find there is a difference between how much he could earn as a truck driver and how much he can earn now, the IL Appellate Court ruled Walsh was entitled to a wage-differential benefit in an unstated amount.

The Court’s members found the IL WC Commission’s award of PPD benefits instead of a wage differential was against the “manifest weight of the evidence,” the Court ruled and remanded the matter to the Commission to somehow recalculate the TTD benefits due and create or divine something that might allow someone to calculate Walsh’s wage-differential award.

If this Court had followed their ruling in CDW Corp v. IWCC that I highlight above, it would have been a simple matter—the requisite vocational assessment would have provided everything needed for the Arbitrator to make a reasonable ruling along with the IWCC panel, circuit court and Appellate Court, WC Division. My recommendation to attorneys for Respondent is similarly simple—come to the next evidentiary hearing with a vocational assessment indicating Claimant can and should be working in a sedentary or light job consistent with his injury, surgery and recovery. Considering locating remote work where he doesn’t have to leave home! In my view, there are hundreds of such jobs in the greater IL labor market right now. My recommendation to all attorneys on both sides of the IL WC matrix—start getting voc assessments in such claims and follow IL case law and common sense. If you, as a claims or risk manager, want a recommendation on a solid voc counselor to create such an assessment—send me a reply.

To read the court’s decision in Walsh v. Illinois Workers’ Compensation Commission, 3-23-0174WC, 12/21/2023, published, click here.

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

 

Synopsis: The IWCC has lost another of its greats. Herbert Franks, of Marengo Illinois succumbed to illness and recently passed away at the too young age of 89.

He never seemed to age, as he was always traveling and bringing good cheer to all.
 
Herb was a practicing attorney for nearly 60 years, never leaving his hometown of Marengo, where he founded the firm of Franks, Gerkin, Ponitz & Greeley. Herb was an excellent litigator, having won Million-dollar verdicts, but never losing sight of the community that he served.

I always respected and got along with Attorney Franks and I will forever miss him and his great sense of humor. He was a solid advocate for his many clients.

Synopsis: IRS Boosts Mileage Rate for 2024

The IRS is raising the standard mileage rate by 1.5 cents per mile for 2024.

The agency announced the business standard reimbursement rate per mile is rising to 67 cents per mile, up from 65.5 cents for 2023, beginning Jan. 1, 2024.

Please note based on IL case law, this rate is used to defray the cost of mileage to IME’s.

We recommend using Google maps to ascertain the mileage from Claimant’s home to the IME docs office and back, multiply by .67 and send the check with the IME notice.

11-20-2023; Wage Loss Differential Claims are A-Changing in IL WC; Injured Worker Can't Bring Civil Claim Against Borrowing Employer, Happy Thanksgiving to All!

Synopsis: Wage Differential Claims Are A-Changing in Illinois Workers’ Comp.

 

Editor’s comment: I consider this a “must-read” for IL WC risk managers, claims handlers and attorneys/hearing officers. The information I am doing my best to provide is going to change reserves, lump sums and all handling of one of Illinois’ biggest WC claims—wage loss differential under Section 8(d-1) of the IL WC Act. I am fairly sure we are going to need computers to accurately set reserves.

 

I don’t believe many of the troops, on both sides of this matrix, are aware of the new battlefield that may be wage loss differential claims, in light of the City of Chicago’s new ever-increasing minimum wage concept. I assure my readers this idea is new to this arena.

 

Section 8(d-1) of the IL WC Act

 

This section of the Act provides benefits from the date of loss to the day Claimant reaches age 67 or five years from the date the award becomes final, if the worker is unable to return to the same job at the same rate of pay and returns to work at a lower paying job.

 

The language is:

 

(d) 1. If, after the accidental injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in cases compensated under the specific schedule set forth in paragraph (e) of this Section, receive compensation for the duration of his disability, subject to the limitations as to maximum amounts fixed in paragraph (b) of this Section, equal to 66-2/3% of the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident. 

 

Please note most jobs in this State are within a range of 50 miles from the City of Chicago—that 50 mile range creates what has been called “the reasonably stable labor market” around such workers’ homes. Folks living in that area are “able to earn” spiraling minimum wage that is now available in Chicago.

 

So What Changed?

 

Initially, the City of Chicago’s minimum wage was raised to $15 per hour for workers with jobs with “large” employers. That change did make some difference in calculating wage loss differential.

 

What I and most IWCC observers may have missed is every July 1 from now on, Chicago’s minimum wage increases on an annual basis per the City of Chicago Minimum Wage Ordinance.

This is new and there has never been anything like it. In the past, once a worker was felt to be able to perform minimum wage work, the minimum wage stayed the same, sometimes for decades. In that environment, it was simple to calculate what a worker would get in an 8(d-1) wage loss award.

Now, with this new change to Illinois’ biggest city’s minimum wage, I feel an Arbitrator hearing the claim, creating an award or approving a settlement has to adjust to the changes that are mandated by Chicago’s new ordinance.

The Chicago minimum wage is tiered for large businesses with 21 or more employees, and small businesses with 4-20 employees. The minimum wage for larger employees increases annually, from now on, according to the Consumer Price Index or 2.5%, whichever is lower, since reaching $15 per hour in 2021. 

As of July 1, 2023, the minimum wage in Chicago rose to $15.80 per hour for employers with 21 or more workers, and $15.00 per hour for employers with 4 to 20 workers.

If you do compound interest calculations, at a minimum, in five years from now, Chicago’s minimum wage is going to be $17.88 an hour—this assumes the CPI or Consumer Price Index is more than 2.5%. In ten years assuming the CPI stays higher than 2.5%, the Chicago minimum wage will be $20.23 per hour. At 20 years from now, the Chicago minimum wage will be $25.89 an hour.

These annual increases are certain to change wage loss differential values in IL WC.

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

 

 

Synopsis: Injured Illinois Worker Can't Maintain a Civil Suit against the Borrowing Employer.

 

Editor’s comment: We strongly support this ruling. In Leman v. Volmut, No. 2019 L 3711, 10/26/2023, published, the Illinois Appellate Court upheld the Circuit Court’s ruling that an injured worker could not pursue a civil claim against his borrowing employer.

 

Claimant Leman suffered injuries in January 2019 when he was struck by a vehicle while walking. Leman claimed a vehicle being driven by Defendant Volmut failed to stop at a stop sign and struck a vehicle being driven by another driver named Nucci. Her vehicle then struck Leman, a pedestrian.

Leman filed suit against Volmut, Nucci and Volmut’s alleged employers — CPU RX Inc. and Forum Coworking LLC. Nucci answered the complaint and filed a counterclaim against Volmut. He answered the complaint and counterclaim and filed a third-party complaint for contribution against INTREN LLC and Pinto Construction. Nucci and CPU also filed third-party complaints for contribution against INTREN and Pinto.

Leman then amended his complaint to add a negligence action against INTREN, which was engaged in construction activities in the area where the event occurred.

INTREN filed a motion to dismiss the claims against it. The company alleged it was the borrowing employer of Leman and, therefore, immune from common-law liability for his injuries.

A Circuit Court judge denied the motion, finding triable issues as to whether there was an employment relationship between Leman and INTREN. INTREN then filed a motion for summary judgment, again based on its workers’ compensation payments. The Circuit Court initially denied the motion but then granted reconsideration and granted the motion.

The Illinois Appellate Court explained when an employer loans an employee to another employer and the employee suffers injury, both employers have joint liability to the employee under IL workers’ compensation law, and both employers are therefore immune to common-law liability, under Section 5 of the IL WC Act.

Illinois has a two-part inquiry to determine whether a borrowing employer-employee relationship exists. It looks at whether the alleged borrowing employer had the right to direct and control how the employee performed his work and whether there was an express or implied contract of hire between the employee and the alleged borrowing employer.

Plaintiff Leman was a carpenter and a member of Carpenters Union Local 58. He had a years-long relationship with INTREN, but because it was not a signatory to his union’s contract, he could not work directly for it.

He testified that INTREN’s chief executive officer helped him secure employment with Pinto, a signatory to the union’s contract, before INTREN and Pinto entered into a contract to provide carpentry services to INTREN. The contract contained an acknowledgment by Pinto that its employees and agents were not employees of INTREN but were independent contractors.

In the seven years before his injury, Leman worked exclusively for INTREN, though Pinto paid him. He testified that INTREN assigned him work daily, supervised his work and provided safety training.

The court confirmed there was deposition testimony that Leman worked the same hours as INTREN employees, received instruction and direction from INTREN foremen and was assisted in his work by INTREN employees, and none of Pinto’s supervisors were on the INTREN job site on the date of the injury.

The Court’s ruling confirmed:

Based upon the evidentiary material in the record before us as set forth above, we conclude that there is no genuine question of fact on both the issue of whether INTREN had the right to control and direct the manner in which the plaintiff performed his work and the issue of whether, at minimum, there was an implied contract of hire between the plaintiff and INTREN…

To read the court’s decision, click here.

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

10-31-2023; Halloween Edition!! IL Appellate Court Rules on Future Medical and Remands for Ruling on Multi-Million Dollar "Life Care Plan;" NLRB New...

Synopsis: The Illinois Appellate Court, WC Division Ruled on a “Future Medical” Issue, Remanding to See if a “Life Care Plan” for up to $17.8 Million is Reasonable.

Editor’s comment: In Montgomery v. IWCC, No. 3-21-0604WC, 11/15/2022, published, our IL WC Appellate Court ruled the IL Workers’ Compensation Commission exceeded its authority in setting conditions for the provision of future medical treatment for an injured worker.

This ruling strongly emphasizes one issue with leaving medical rights completely open in any IL WC claim—I feel this decision to leave medical rights open was “easy” until it turned ugly and resulted in years of fighting and litigation. I also feel claims like this are difficult to successfully litigate from the defense perspective, as they reach our Appellate Court, WC Division. You might note this pro-Petitioner ruling was unanimous by all five Justices without any dissent/comment or support for the interests of IL business.

The “must read” message from this ruling is IL WC risk/claims managers and attorneys should be very, very cautious and get advice from veteran counsel when leaving medical rights open and most particularly, uncapped. If you need help with this concept we have lots of experts on it, just send a reply and we are happy to help/consult.

Claimant Montgomery worked for Caterpillar Logistics Services Inc. He suffered accepted and ostensibly serious injuries at work in 1994 when his forklift was bumped by another forklift. Montgomery filed a workers’ compensation claim in which he identified the parts of his body affected as his neck, shoulder and arms. He described the “nature of injury” as “arm in sling.”

In 1996, Caterpillar’s WC team entered into a IL WC settlement with Montgomery for $86,000 with open medical. The agreement stated the affected parts of Montgomery’s body were his neck, shoulder and right arm. The nature of the injury was described in the agreement as right upper extremity sympathetic dystrophy with lower right extremity migration. The agreement provided Claimant Montgomery waived all rights under the Workers’ Compensation Act except his right to future medical treatment.

Fifteen years later, in 2011, Claimant Montgomery filed an interim Section 8(a) petition against Caterpillar, alleging wrongful denial of medical treatment. He also moved for statutory penalties and attorney fees.

It appears to me Claimant went to a nurse who is a life care planner based out of Rockford, IL. She has a PhD but is not a medical doctor. While our Appellate Court noted she was a nurse on one occasion, thereafter the ruling repeatedly called her a doctor, as if she is a physician. Please note this individual does not and did not have a medical degree, she is a PhD. Please note all Illinois attorneys have the equivalent of a PhD and we are not allowed to call ourselves “doctors” because it is misleading, as we cannot practice medicine. In this claim and in my opinion, someone should clearly point out nurses aren’t doctors. This “life care planner” isn’t going to provide any medical care and/or scientifically respond to successful or unsuccessful care, like doctors do.

By this Nurse’s calculations, the total cost of medical treatment and pharmaceuticals for Petitioner over what she appears to have asserted is the remaining 32 years of his life expectancy would be $15,232,552 without acupuncture and $17,823,599 with acupuncture. You might note the cost of the plan is around $500K+ a year for what she felt would be Claimant’s expected life. I looked up this Claimant and per Social Security tables, his expected life is about 22 years.

As a skeptical defense attorney, I am concerned such a “life care planner” or nurse could be seasonably relied upon, taking a middling claim and compounding the medical aspects of it into a gigantic claim.

In June 2018, the IL Workers’ Compensation Commission panel issued  what we would consider a measured decision. The Commission determined the proposed life care plan, created by a nurse and presented by Claimant Montgomery was "premature and should not be considered.” The IL WC Commission panel also ordered the care and treatment of Montgomery’s chronic regional pain syndrome should be managed by one central treating physician, who must oversee all treatment and attendant care related to the 1994 injury. The Commission panel also found the central treating physician could not be Montgomery’s current physician and had to be medical care from a provider affiliated with a major medical institution. As an observer of our State’s WC system for several decades, I salute the IWCC’s careful consideration and ruling in this matter.

The Commission further found Montgomery failed to prove his asserted radiculopathy was related to the 1994 accident, but his gastrointestinal issues were causally related. The Commission panel denied Montgomery’s request for statutory penalties and attorney fees.

Claimant Montgomery and Respondent Caterpillar both appealed, and a circuit court judge confirmed the Commission’s decisions. Both parties then sought further review. The Illinois Appellate Court, WC Division ruled the Commission’s decision was interlocutory and the circuit court lacked jurisdiction to review it. Thus, the Appellate Court, WC Division vacated the circuit court's judgment and remanded the case to the Commission for further proceedings.

On remand, the Commission announced the parties reached a settlement under which Caterpillar’s payment of $44,000 would be the full extent of its liability for the unpaid balances and other expenses claimed by Montgomery. The Commission noted much of Montgomery’s treatment had been covered by the Centers for Medicare & Medicaid Services and Caterpillar agreed to hold him harmless for any liens asserted by CMS.

The Commission noted this settlement and then adopted and incorporated into its decision "all other facts findings and conclusions” from its June 2018 decision. The circuit court confirmed the Commission’s decisions from June 2018 and on remand.

As the Commission then announced this “settlement,” it is somewhat baffling to read Claimant Montgomery appealed from this decision.

Please note my view the concept of “future medical care” is not defined and the term does not appear in the IL WC Act or Rules. It is my view, it was “created” by our courts in their rulings. It is my respectful view, it is contradictory to start future medical rights by judicial edict and then assert the IWCC doesn’t have statutory power to properly administer it.

In any event, the Illinois Appellate Court, WC Division ruled the IL Workers’ Compensation Act contains no provision empowering the Commission to attach specific conditions to its finding of whether future medical care is necessary and reasonable. They also ruled the IL WC Act somehow contemplates decisions by the Commission “based on treatment provided or to be provided, not on who provides it.” Again, with respect, I don’t agree with this judicial finding at all—if the IWCC feels a medical procedure needs to be done, I feel they have every right to describe the appropriate credentials of physicians or surgeons who can best provide it. For an example, I don’t feel the IWCC would have to approve a podiatrist who wanted to do spine surgery in a life care plan.

Thus, the Court ruled, the Commission lacked statutory authority to order the designation of a central treating physician or to disqualify Montgomery’s treating physician from that role.

When a Petitioner seeks authorization for future medical care prescribed, it is the function of the Commission to determine reasonableness and necessity of care sought. Therefore, in my humble view, it is challenging for the Court’s members to make such a ruling about the IWCC panel’s asserted lack of statutory authority to direct whatever future medical is supposed to be. Where an avalanche of future medical care is outlined by a “life care planner” it is the function of the Commission to assess the requested care and offer a ruling on what aspects are approved. I consider that common sense in this WC matrix.

In this vein, our WC Appellate Court did rule it was the Commission’s function to determine which of the future medical treatments and pharmaceuticals recommended in the multi-million-dollar life care plan presented by Montgomery were necessary and reasonable. The Court went on to find substantial evidence supported the Commission’s finding of non-compensability for Montgomery’s radiculopathy, as the Commission credited the opinion of one medical expert that radiculopathy was not connected to alleged CRPS.

The Court also ruled the Commission did not abuse its discretion in denying Montgomery’s request for penalties and attorney fees, since it could have reasonably concluded that such payments were forms of liability for the unpaid balances and other expenses, which the $44,000 settlement payment was supposed to encompass.

The Appellate Court, WC Division remanded to have the zillion-dollar life care plan ruled “reasonable” or not. I am chagrined to contemplate the remand for a ruling on “reasonableness” is precisely what the Appellate Court ruled was wrong with the Commission’s decision—It begs the question … don’t they have statutory authority to rule on “reasonableness” of providers? This is a term our reviewing Courts selected and typically use in evaluating medical decisions by the IWCC.

We are confident this claim is going to continue in litigation over the complex medical “plan” and we won’t see final resolution anytime soon. The case can be viewed on the following:

https://scholar.google.com/scholar_case?case=13058500818166151462&q=Montgomery+v.+IWCC&hl=en&as_sdt=400006&as_vis=1

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

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Synopsis: The National Labor Relations Board (NLRB) released their final rule Oct. 26 to provide a broad standard for when two employers conducting business together are considered to be “joint employers” and therefor liable for unfair labor practices.

Editor’s comment: How will this change Work Comp? The Rule contemplates if two entities are joint employers under the National Labor Relations Act (NLRA), both must bargain with the union that represents the jointly employed workers, both are potentially liable for unfair labor practices committed by the other, and both are subject to union picketing or other economic pressure if there is a labor dispute.

This final rule will replace an older rule from April 27, 2020. Under that rule, an employer could be a joint employer of another entity if it had direct and immediate control over the essential terms and conditions of employment, such as wages, benefits, work hours, hiring, discharge, discipline, supervision and direction.

The new rule states that two entities are considered joint employers if they share or co-determine the employees' essential terms and conditions of employment. It will take effect on Dec. 26, 2023.

Please note in workers’ comp, both employers can be liable for one accident with the employer on whose site the worker was working when injured having primary liability unless there is a written agreement to the contrary.

When the WC liability attaches and benefits paid and accepted, only WC is due—the employer can’t be sued at common law for the same injuries.

Following this new NLRB concept, both “joint employers” may have joint liability and simultaneous joint protection from common law claims.

Again, this new rule is in place for now and doesn’t start until the day after Christmas.

Only time will tell how this all plays itself out.

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