8-20-2019; In an IL WC Claim, Does An Adjuster Have To Turn Over All or Some of Your File?; Do U.S. Employers Have to Allow "Work-From-Home" As An Accommodation Request and more

Synopsis: Petitioner’s/Plaintiff Counsel in an IL WC Claim I Am Adjusting Wants My File—Do I Have To Give It To Them?

Editor’s comment: We had a great client who is a claims adjuster receive an opening “hello” email from the other side’s attorney. The attorney nicely asked for all sorts of stuff in the file, including incident/accident reports, witness statements and wage documents. The adjuster inquired as to whether to respond and provide all that documentation.

 

My response was simple—you can produce/share whatever you want. You don’t have to because there is limited “discovery” in IL workers comp. I am not saying there is no discovery but the rules make it limited.

 

I do feel an adjuster also might have an ethical issue to divulge information/documentation to the other side that you don’t have to disclose—you might be later criticized or worse if a claim dramatically increases in value when you truly don’t have to volunteer file information. I am not saying to lie or intentionally hide anything. I am saying you need to insure you and your account are on the same page about claims strategy. And in a claim where you don’t have defense counsel assigned, it is crucial to contact readily-available defense attorneys like the great team at KCB&A to get complimentary legal advice on any pre-hearing disclosure to protect your back, if you understand what I mean.

 

Please also remember whatever you voluntarily turn over to a solid Petitioner’s lawyer can and may be used “against you” or your account in any later hearing. It is also very hard to “rebut” or possibly even clarify anything that might be viewed as contrary to your defense position, particularly in a State as liberal as Illinois can be.

 

Please remember Illinois is a “trial-by-ambush” state for WC, as we don’t get to depose the other side’s witnesses and can sometimes be surprised at who shows up and what they say—you need veteran defense counsels who are nimble at cross-exam to make sense of such a system.

 

In the claim mentioned above, my recommendation/suggestion to the client was to contemplate the strengths and weaknesses of that claim and consider sharing/exchanging information with OC to try to get a rapid outcome/closure. I am sure she used great common sense and did what was best.

 

Happy to discuss such issues at any time—I don’t bill for such advice unless you assign the file.

 

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

 

 

Synopsis: Does a U.S. Employer Have to Provide “Work-From-Home” as an Accommodation Request?

 

Editor’s comment: In the federal ruling in Yochim v. Carson, the concept of leave and accommodation requests clearly create difficult issues for U.S. employers. A challenge that arises when it comes to accommodation requests is there is no easy or clear test to determine whether a requested accommodation is reasonable, because the essential functions of one job can be quite different from the essential functions of another. In my view, there is no panacea when it comes to a “reasonable accommodation.”

 

Please also remember such accommodation requests might bleed over to the work comp side—if this concept became popular, workers like Ms. Yochim with work-related carpal tunnel syndrome might be able to demand weeks and maybe months of “work-at-home” while recovering. U.S. employers don’t want to have thousands of workers staying at home and out of sight where it will be harder to manage your workforce and risk rises.

 

In this recent case, Claimant Yochim worked as a lawyer for the U.S. Department of Housing and Urban Development (HUD). At the Federal District Court level, she claimed the agency failed to reasonably accommodate her request to work from home full time after undergoing surgery for carpal tunnel syndrome. Please note CTS and a carpal tunnel repair is not a particularly unusual condition. What is unusual was Claimant Yochim asked to work from home so that she could engage in ongoing physical therapy as part of her recovery. After losing in the Federal District Court, she appealed her case to the 7th Circuit Court of Appeals.

 

It seemed clear Claimant Yochim worked at HUD since 1989, most recently serving as a senior lawyer at the agency. Prior to CTS surgery, she had already been working from home two days per week consistent with the agency’s telecommuting policy (which allowed up to three days per week).

 

You may note the HUD general counsel’s office where she worked was restructured before her surgery to encourage employees to be in the office more often, in order to cross-train with other employees and to become more knowledgeable in other areas of law the department needed to address.

 

After routine CTS surgery and what she claimed was a difficult recovery, Yochim asked to work from home full time and all the time for several months. That request was rejected by the agency, but she was offered other accommodations that would have required her to be in the office at least part of the work week.

 

For example, she was offered the opportunity to work four 10-hour days, which would have included working some of that time from home and the opportunity to commute to the office outside of the rush-hour period. Another agency proposal was for her to work from home for three days per week. There appears not to have been any allegation that the agency did not participate in the interactive process that is required once an employee requests an accommodation.

 

Each of the agency’s proposed accommodations was rejected by Claimant Yochim, who then used up her remaining sick leave and retired early.

 

The leading issue U.S. employers and the courts struggle with is whether working from home is a reasonable accommodation at all based on the employee’s duties and responsibilities. Here, though, the employee was already allowed to work from home two days per week (and the agency offered three days), with the employee asking for an accommodation to work from home five days per week for several months.

 

Therefore, the court had to determine whether working from home for more than the permitted three days per week is unreasonable. Another issue is the employee’s department had only recently restructured its work-from-home policy to expect employees to be in the office more frequently. It will be instructive to see how the court considers what amount of attendance is an essential function of the HUD attorney’s job, whether allowing an employee to work from home up to three days a week undercuts the argument that attendance is essential, and whether working from home for five days per week instead of three creates an undue hardship on the employer and others in the workplace.

 

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

8-13-2019; The Six Ways to Close an Illinois (and many States) Workers’ Compensation Claim; Adieu, Former Arb. Brian Cronin and more

Synopsis: The Six Ways to Close an Illinois (and many State and Federal) Workers’ Compensation Claims.

 

Editor’s comment: We keep having clients ask so we wanted to provide our expert legal guidance on this important topic for all sides of the matrix. When the defense team at KCB&A speak at local, regional and national conferences, we are routinely advised the cool thing about IL WC is a claims handler or risk manager can actually “close” files if you do things correctly. In our neighboring states, many systems don’t allow for “complete” closure and little annoying things can happen to cause claims to re-open. As much as our readers and other observers have issues with the IL WC system, they do like the sense of closure provided in our difficult WC claims.

 

To our understanding, there are six paths by which an IL WC claim closes:

 

1.    Lack of statutory 45-day Notice;

 

2.    Running of the statute of limitations in Section 6(c) of the IL WC Act;

 

3.    Voluntary dismissal of the claim by Claimant and counsel, if applicable;

 

4.    Dismissal of a claim for want of prosecution;

 

5.    Settlement;

 

6.    Final decision of the Arbitrator, Commissioner or reviewing court.

 

If any of our readers know of another path to close an IL WC claim, send your best thoughts and we will forward a free KCB&A rate sheet.

 

Let’s take a closer look at the six paths for closing IL WC claims—Number one is lack of statutory notice of injury/exposure. If someone is injured and they know they are injured at work, they have 45 days for their employer to learn of the accident/exposure. Please note the employee doesn’t have to actively provide notice of accident/exposure, all they have to demonstrate is the employer learned of the accident by any means. If statutory notice becomes an issue, the employer is supposed to be able to demonstrate they are “unduly prejudiced” in such proceedings by such defect or inaccuracy in the notice of accident/exposure. To us, the easiest way to demonstrate undue prejudice is to claim your accident investigation protocols were blocked due to the failure of the employee to notify you and/or for you to learn of the accident/exposure in any other way.

 

In a more realistic sense, to the defense team at KCB&A, your better shot at defeating/blocking a claim due to lack of statutory notice is to treat it from a common sense perspective—if the employee was seriously/moderately injured at your workplace, how is it that you and your supervisors never learned of it? We feel most Arbitrators will ask the same question—if you broke your arm working for your employer but were regularly at or around work and in the continuing company of your supervisors and other co-workers, how come no one ever knew anything about your medical issues for more than six weeks?

 

In short, lack of statutory notice should close a claim but that doesn’t mean you aren’t going to have to fight to prove a lack of statutory compliance so it might be a challenge to truly call that “closing” a claim, as much as it is a valid defense.

 

Number two, the IL WC statute of limitations is also a gauntlet a defense lawyer might choose to run. The IL WC Act requires the Application be filed three years from the date of the accident/exposure. The statute of limitations can be extended or “resurrected” for two additional years, if there is the payment of any WC medical, lost time, permanency or death benefits. This extension or new period for the statute to run can include a medical bill for a work-related injury being paid by the employer’s group health carrier. As the last “twist” on the IL WC statute of limitations, you have to be aware of the IL Supreme Court’s “activist” ruling in Durand v. IWCC where the Court wouldn’t dismiss a claim based upon repetitive trauma where the worker alleged she “worked in pain” for four years prior to filing the Application. In our view, this controversial decision eviscerates the SOL because any and every worker who misses the deadline can simply claim to be “working in pain” to keep the statute open for a new claim. In our view, this legal concept might be more challenging if the delay in filing the Application was five to ten years or more.

 

Number three, voluntary dismissal of a claim by claimant is easy. This form needs to be completed by Claimant and their attorney, if applicable. If you want the link to the form, sent a reply.

 

Once they have signed the form and filed it with the IWCC, the Arbitrator assigned should receive, review and sign the form. When that happens, you need to make the call on just closing your file or waiting for the running of the statute of limitations. Please remember a claim that has been voluntarily dismissed is done without prejudice—they can re-file any time during the SOL.

 

Number four, the dismissal of a claim for want of prosecution or DWP is a common and generally easy concept to understand. Illinois claims are set on a calendar for each assigned Arbitrator. The calendars can be reviewed on the great website for the IWCC. Each claim will trundle along and trundle along until they reach about two-and-one-half years. After that point, someone has to show up before the Arbitrator to ask for claims to be continued and the defense has to agree or at least, not fight continuances. If they don’t, the decision to DWP the claim is up to the Arbitrator. Sometimes they are tough, sometimes they wait and are tough later.

 

You can’t always blame your defense lawyer for cases getting endlessly continued but we do recommend you advise your defense lawyer in writing when/if they no longer have your authority to agree to continue claims. We have seen claims continued to the fourth, fifth and more years because defense counsel never puts their foot down to demand a hearing or otherwise demand trial or dismissal of old, moldy claims.

 

When a case gets dismissed, the IWCC is supposed to snail-mail notices of DWP to the parties or counsel for the parties. The notice indicates there is 60-days to file a Petition to Reinstate the claim. If the Petition to Reinstate is timely filed, it is possible it can sit for weeks, months and years—it is incumbent on defense counsel to demand the Petition be timely adjudicated so the matter is reinstated and then settled/tried. Please also note some defense attorneys “roll over” to allow claims to be reinstated—the team at KCB&A always asks our clients what they want first. Many Arbitrators will allow reinstatement and set the matter on a date certain—if the hearing is held, the matter remains reinstated. If the hearing doesn’t occur, the claim may be again dismissed.

 

Number five, an approved settlement ends IL WC claims. Please note the IWCC settlement process requires Arbitrator involvement—there clearly were concerns in the olden days that injured workers were being taken advantage of so a state official has to approve the deal to insure there is no funny business. We tell our readers, you can like the IL WC contract settlement approval process or hate it but we are sure it isn’t going to change soon.

 

For some of our clients, this is a new challenge because they want to close everything a year ago. Some clients now want to provide settlement authority to see their toughest claims close in a day or so—that isn’t slightly possible. We want all Illinois risk and claims managers to understand the IL WC settlement process usually takes about a month. To settle a claim and close a defense file, we have to:

 

Reach a complete settlement of all issues

 

  • Draft settlement contracts that cover all issues and completely protect you—the defense team at KCB&A can do this part of the process on a same-day, real-time basis;

 

  • Send the contracts to the adjuster and/or employer for their review, saving-to-file and approval—again, it is sent asap;

 

  • Then with client approval from you, we sign and send to opposing counsel via email;

 

  • Opposing counsel will print, sign and then contact Claimant for their discussion and signature—this is of unknown duration but many times, Claimants will come to OC’s office to sign to speed things up;

 

  • Then opposing counsel will typically snail mail or bring the contracts to the Arbitrator assigned with an SASE;

 

  • Then the Arbitrator gets to the contracts in the normal course of business.

 

  • We assure our clients all IL WC Arbitrators are diligent and professional—it is not a good idea to tell or demand an Arbitrator to put your contracts at the front of the line because they call them as they receive them;

 

Thereafter the Arbitrators

 

  • Reject them for technical problems of whatever sort or

 

  • Snail mail them back to Claimant’s counsel who then email them to us to forward to you.

 

When we get the contracts back and Arbitrator approved, we immediately route them to our clients for payment. We can’t close our files the minute we send the approved contracts to you because we need to know you or your adjuster has paid them to insure you aren’t going to be the subject of either a penalty petition or an 19G Petition for a judgment against your account, the Respondent.

 

If you have any idea how to make IL WC settlements faster, please let us know. Yes, we wish the draft signed contracts could be emailed to and from the Arbitrators—that can’t happen yet.

 

Finally, Number six, the last of the six ways to close an IL WC claim is via a final decision by an Arbitrator, Commission panel or reviewing court. This means the Arbitrator heard the claim and filed the decision, the parties receive it and no one files an administrative appeal, called a Petition for Review within thirty days. If the Commission reaches a decision, the parties only have twenty days to perfect an appeal to the Circuit Court with lots of little details to be completed very, very rapidly—if you need the many nuances, send a reply. After a Circuit Court judge files an appeal, the parties then have thirty days to appeal to the Appellate Court, Workers’ Compensation Division. If that body decides a claim and you want to appeal to the IL Supreme Court, send a reply and we can explain the many rules that come with that test.

 

We appreciate your thoughts and comments. Otherwise, feel free to post your thoughts and ideas on our award-winning website.

 

 

Synopsis: Retirement of former Arbitrator Brian Cronin.

 

Editor’s comment: I was advised Arbitrator Cronin retired and moved on to the wonderful world of Illinois hilarious fake gov’t pension programs. He will shortly make more, lots more, as a retiree than he made while working—don’t blame him, that is what this nutty State does for retirees at an hilarious cost to taxpayers—he will double and triple and quadruple his “pay.”

 

I didn’t always agree with Arbitrator Cronin but I always felt he was generally a reasonable and fair administrator. I wish him the best in all future endeavors.

 

 

Synopsis: AUGUST IN IL—BENEFIT RATES RISE WITH THE HUMIDITY??—UPDATED RATE SHEETS AVAILABLE SOON FOR ILLINOIS WC RATE INCREASE!!! 

 

Editor’s comment: Illinois WC Rates Have Updated Again So Please Be Aware Of The New Rates or Your Claims Handling Will Suffer and Penalties May Ensue.

 

Email Marissa at mpatel@keefe-law.com to Get a Free and Complimentary Email or Hard Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet! You can also send any questions to Shawn at sbiery@keefe-law.com

 

We note that the recent legislation to increase the statewide minimum wage eventually to $15/hr will lead to the continued rate increase in every cycle, so continue to watch the growth of IL WC rates. As we have mentioned in the past, since in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, WC rates continue to climb.

 

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is $813.87. However, this rate is only going to be valid through June 30, 2019 and the new max PPD will be published in January 2020. When it will be published in January 2020, this rate will change retroactively from July 1, 2019 forward. At that time, if you don’t make the change, your reserves will be incorrect--if this isn’t clear, send a reply.

 

The current TTD weekly maximum has risen to $1,529.84. A worker has to make over $2,294.76 per week or $119,327.52 per year to hit the new IL WC maximum TTD rate.

 

For WC Death Benefits: The new IL WC minimum is creeping closer to the $750k floor. That amount is now 25 years of compensation or $573.69 per week x 52 weeks in a year x 25 years or $745,797.00! The new maximum IL WC death benefit is $1,529.84 times 52 weeks times 25 years or a lofty $1,988,792.00 plus burial benefits of $8K. IL WC death benefits also come with annual COLA increases which we feel can potentially makes Illinois the highest in the U.S. for WC death claims.

 

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet.  —If you want just one or a dozen or more, simply send a reply to Marissa at mpatel@keefe-law.com  AND you can also send any questions to Shawn at sbiery@keefe-law.com They will get a copy routed to you once we get laminated copies back from the printer—hopefully before they raise the rates again! Please confirm your mailing address if you would like laminated copies sent to your home or office!

8-5-2019; Shawn Biery's Famous and Free IL WC Rate Sheet Update; Odd and Endless Retaliatory Discharge Denial Follows Psych Claim Denial at WC Div of Appellate Court and more

Synopsis: AUGUST IN IL—BENEFIT RATES RISE WITH THE HUMIDITY??—UPDATED RATE SHEETS AVAILABLE SOON FOR ILLINOIS WC RATE INCREASE!!! 

 

Editor’s comment: Illinois WC Rates Have Updated Again So Please Be Aware Of The New Rates or Your Claims Handling Will Suffer and Penalties May Ensue.

 

Email Marissa at mpatel@keefe-law.com to Get a Free and Complimentary Email or Hard Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet! You can also send any questions to Shawn at sbiery@keefe-law.com

 

We note that the recent legislation to increase the statewide minimum wage eventually to $15/hr will lead to the continued rate increase in every cycle, so continue to watch the growth of IL WC rates. As we have mentioned in the past, since in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, WC rates continue to climb.

 

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is $813.87. However, this rate is only going to be valid through June 30, 2019 and the new max PPD will be published in January 2020. When it will be published in January 2020, this rate will change retroactively from July 1, 2019 forward. At that time, if you don’t make the change, your reserves will be incorrect--if this isn’t clear, send a reply.

 

The current TTD weekly maximum has risen to $1,529.84. A worker has to make over $2,294.76 per week or $119,327.52 per year to hit the new IL WC maximum TTD rate.

 

For WC Death Benefits: The new IL WC minimum is creeping closer to the $750k floor. That amount is now 25 years of compensation or $573.69 per week x 52 weeks in a year x 25 years or $745,797.00! The new maximum IL WC death benefit is $1,529.84 times 52 weeks times 25 years or a lofty $1,988,792.00 plus burial benefits of $8K. IL WC death benefits also come with annual COLA increases which we feel can potentially makes Illinois the highest in the U.S. for WC death claims.

 

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet.  —If you want just one or a dozen or more, simply send a reply to Marissa at mpatel@keefe-law.com  AND you can also send any questions to Shawn at sbiery@keefe-law.com They will get a copy routed to you once we get laminated copies back from the printer—hopefully before they raise the rates again! Please confirm your mailing address if you would like laminated copies sent to your home or office!

 

Synopsis: Odd Retaliatory Discharge Denial Follows Psych Claim Denial at Illinois Appellate Court.

 

Editor’s comment: In Matros v. ComEd, the Appellate Court, First District issued a 55-page decision that I am not going to review in detail here, as I am sure you would fall completely asleep to read it.

 

If you want the link to the decision and can’t sleep some night, send me a reply and I will forward. Claimant is clearly an aggressive litigator along with his chosen Petitioner/Plaintiff firm. From what I can see in my research, he brought around nine different WC claims and most of them settled years ago.

 

One of his WC claims was for psych injuries and was denied and denied again at every level. At long last, the Appellate Court, WC Division denied it in one of their unusual “unpublished” but actually “published” rulings.

 

The best message you can take away from that denial is Illinois remains a state in which you need a sudden, unexpected and shocking event to deserve IL WC benefits. I salute all of our hearing officers for avoiding “California-style” psych claims.

 

After losing that one, Claimant also brought this retaliatory discharge claim after being terminated by ComEd and it basically went nowhere after years of fighting.

 

As I indicate, the ruling is virtually endless and, to distill it down, Claimant failed to make a clear picture of being terminated due to bringing a WC claim.

 

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