11-10-25; Has the Illinois Work Comp Defense Group Painted Itself into a Corner? Changes Proposed for IL WC Burial Benefit and more

Synopsis: Has the IL WC Defense Group Painted Itself into a Corner?

Editor’s comment: We are now seeing, in claim after claim, a new and exasperating concept—almost every member of the IL WC Claimant bar is now asking for and/or demanding “permanency” for any claimant whose treating doctor will state they are a “candidate” for future surgery or other poorly defined future medical care. The reason I put “permanency” into quotes is John/Jane Q. Public aren’t “permanently” disabled when they haven’t had a proposed surgery but might, just might need a second, third or more surgery at some remote and untargeted time. The proper evidentiary beef when such a claim is made is “objection, speculation.” I feel too many outliers are present when a WC claimant attorney says a recommendation for future surgery in a year, two or twenty years is in a defense file.

Here is what I am seeing-- John/Jane Q. Public has an accepted shoulder injury at work. No surgery, just sore wing. Diagnostics aren’t clear on rotator cuff tear but it may be present. The longer it goes, the more surgery may be needed. Please also note lots of folks that don’t have jobs get sore shoulders, as a condition of life, sports and hobbies.

Claimant returns to work with some complaints/beefing. Most such IL WC claims are worth 0-10% LOU BAW.

Rather than settle fairly, Claimant’s counsel wants 27.5% BAW for the injury in reliance on a doctor’s recommendation for a future and impossible-to-tell-when--total shoulder replacement.

Claimant doesn’t consent or undergo the extensive surgery recommended. Claimant won’t resign. I note my opinion you can’t “force” an injured worker to quit.

The Imaginary IL WC Insured or Self-insured Client says pay it/settle for 27.5% LOU BAW. This amount for many workers would be over $100,000 in permanency based on IL WC’s ever-spiraling rates. If you want my law partner Shawn R. Biery’s IL WC rate sheet, send a reply.

After settling for too much money, Claimant goes back to work and claims the not-yet-operated shoulder is sore again. That is translated into a new “accident,” as the aggravation of a pre-existing condition.

The IL shoulder surgeon confirms the total shoulder replacement is still recommended. As I outline above, it is mild to wild speculation. Please note somewhere between 175,000 and 350,000 such surgeries are both recommended and then performed in the U.S. each year. Lots of workers also fight the problem and don’t consent or undergo surgery. There is no guarantee this or any surgery will “work” or produce a more stable and useful shoulder than without this extensive intervention.

The very same Claimant counsel who already settled for 27.5% of the body for the IL WC claim now asks for another 27.5% BAW.

Defense tells counsel for Claimant his client was already compensated for the shoulder. Counsel for Claimant says we don’t get credit for BAW settlements. That is an accurate and impossible-to-comprehend aspect of IL Work Comp law—please note that reasoning could lead to Claimant’s receiving more than 100% LOU BAW if they tack enough new claims on to existing issues.

And, as I indicate above, defense counsel and their clients can’t fire Claimant under ADA and every other discrimination path.

And then this scenario happens again. And again. In my view, I think the IL WC defense industry is painting ourselves into a corner. I truly feel it to be speculation when/if an IL WC Claimant lawyer asserts there is more “permanency” when an unperformed surgery is “recommended” but not performed. I truly feel an IL defense attorney handling such a claim has to insure their clients are fully aware of these issues.

KCB&A Top-Notch Law Partner Matt Ignoffo says:

“Try the cases. 27.5% BAW probably does not get awarded on the first claim. For the second claim, he [claimant] has open medical from the first claim if he consents and wants more surgery. If he doesn’t want surgery try the second case too, make the decision from the first case a trial exhibit, and so forth.”

Please note, it is my reasoned legal opinion, to some extent, this entire scenario is covered by Section 19(h) of the IL WC Act. If you aren’t sure how, send a reply.

Please also note there are so many defense folks that can only consider settling as a “win” in this nutty State, this is a situation in which settling isn’t truly a closure of the IL WC claim.

My advice to IL WC adjusters, risk managers and the defense attorneys who represent their accounts—sometimes you have to try IL WC cases.

What do you think? If you have serious thoughts, comments, send them to me. Feel free to post them on our award-winning blog at www.keefe-law.com.

Synopsis: A proposed bill in Illinois would increase burial expenses paid to widows/widowers, dependents of workers killed on the job.

Editor’s comment: H.B. 4177, introduced last month, would raise the IL WC burial benefit to $10,000, up from $8,000, provided to the “widow or widower, other dependent, next of kin, or person or persons incurring the expense of burial.”

The change would put Illinois in line with 23 other states that pay $10,000 or more for burial expenses for those killed or possibly just die at work or due to a work-related event.

This is a comparative chart of U.S. WC funeral benefits:

October 2025; Unusual and "Scary" Appellate Ruling on Death Claim and much more

Synopsis: A Truly Unusual and Mildly “Spooky” Claim for The Illinois GL/WC Claims Industry—Was the Death of a Worker From “Free Food” Exclusively Covered Under Work Comp or Was the Passing a Civil Matter?  

Editor’s comment: To some extent, claims such as this are unique to the People’s Republic of Illinois. Suddenly, there are two paths for a claims veteran to review if you are to set reserves with any hope of accuracy. Please also note the new risk involved in allowing food service workers to have “free food” that is typically given to employees when the extra food is unused at the end of the work shift. The same cautions apply to giving workers free lunches or managing extra food that will be discarded if not simply put on display for your troops to gobble at lunch or at the end of their work day.

The family of a line cook who died after eating shellfish after-hours to which he was deathly allergic is entitled to a $4.8 million jury award, the Illinois Appellate Court ruled. Please note the judicial body mentioned is the civil side of our Appellate Court—WC claims are heard by a five-member body that handles WC claims only.

Please also remember this claim may be appealed to and accepted for appeal by the IL Supreme Court. Their ruling may again greatly change this outcome.

Wherever it is finally decided, the facts indicate Decedent Angel Rivas worked at a restaurant where he ate the shellfish in an employer-provided and free “extra vittles” meal. As documented in Rivas v. Benny’s Prime Chophouse, LLC, Luz Rivas, Decedent’s widow filed a workers compensation claim after the 2010 passing of Decedent, which the insurer denied.

You are correct, the civil and WC claim arose in year 2010 and still are pending a decade and a half later—as of right now, the widow may still be awaiting her first nickel in recovery after all is said and done in our courts. Please note the IL WC death claim would have been paying her regular WC checks for the last fifteen years plus regular monthly and additional increases from the IL WC Rate Adjustment Fund.

From my review of the IWCC database, that WC death claim remains pending/disputed and has not been finally decided. To me, this is a clear indication of the power of ITLA and the millionaire Plaintiff bar in this state—obviously the IL Work Comp Commission allowed the claim to endlessly pend rather than decide it with whatever effect that might have on what appears to be potentially a multi-million dollar civil claim.

Please also note the statistics in civil courts—year in and year out, roughly 50% of all jury verdicts are returned as zeroes. in my view, Claimant’s attorney took a strong chance in the path taken.

In 2012 the widow Rivas filed a common law negligence lawsuit, alleging the restaurant was “aware” of her husband’s shellfish allergy—whatever that might mean. I find it impossible to believe restaurant management was aware of the acute and deadly nature of the seafood allergy and encouraged Claimant to play “Russian Roulette” with its extra and free grub. The widow also claimed the employer somehow “failed” to inform Decedent the meal contained shellfish. The widow and her counsel also alleged the restaurant did not “adhere to safety standards” in handling allergens.

The restaurant’s insurer and its plucky house counsel raised three affirmative defenses:

1. Decedent Rivas’ level of contributory fault exceeded 50%, meaning Ms. Rivas was barred from recovery

2. Decedent Rivas refused immediate medical care when his coworker offered him an antihistamine after he ate shellfish

3. The Workers’ Compensation Act provided the exclusive remedy for the widow’s death claim—this affirmative defense was clearly in conflict with the employer and its insurer’s refusal to pay WC death benefits.

A trial court disagreed, awarding

• Widow Rivas and her children $8.1 million.

• Then reducing total damages by 40% or a total of $4.8M.

• Prejudgment interest that is still pending.

The discount was deemed the percentage of Decedent Rivas’ contributory negligence for not having asked about deadly-to-him shellfish in the food. I believe if contributory negligence had been over 50%, the whole thing would have been denied. For that reason, the choice by Claimant’s counsel to proceed solely and slowly with the almost-endless civil claim was a challenging decision.

I want to make my opinion known—if you have a deadly or acute allergy, you have to be on the point to avoid it and protect yourself at all times. While I can and would see how these facts would allow for probably over a million in IL WC Death benefits, it is impossible for me to countenance that Decedent wasn’t the major and possibly sole cause of his unfortunate and unexpected passing. Our best thoughts go to his widow and family.

On appeal in the civil side of our IL Appellate Court, the employer argued the trial court should have granted its motion on its affirmative defense concerning the Workers’ Compensation Act’s exclusive remedy, that the trial court made “a number of errors concerning the admission of evidence and other trial matters,” and that the damages award “was excessive” and Decedent Rivas “was more than 50% at fault for his death.”

The IL appeals court affirmed the lower court ruling, writing the WC exclusive remedy did not apply, as the trial court identified the risk to which Mr. Rivas was exposed was the “risk of injury due to consumption of seafood.” The Illinois courts classify that as a “personal risk” and that his “injuries did not arise out of his employment,” the IL Appellate ruling says.

The IL Appellate Court also wrote the “trial court found that the decedent’s injury did not occur during the course of his employment, as the decedent had completed his work for the day and was eating an optional meal provided by defendant.” As I indicate above, I find that ruling truly unusual and mildly terrifying:

1. Decedent was at his workplace when all acts arising from employment took place.

2. Decedent was provided a continued and regular perk of working there—free food!!

3. If something else, short of his passing had occurred, like choking on free food or slipping on a free banana, I assert 100% of every current IL WC Arbitrator and Commissioner would have found those injuries compensable.

In short, I assume this claim remains pending, awaiting further appeal. I want all my readers to understand the practice of providing free food at shift’s end to workers could cause this huge additional risk and expense. One can only wonder if IL employers who provide any food to your workers should get a signed notification or release from them, indicating they have full responsibility for any medical issues suffered from selecting and eating free or discounted extra food. You might also consider using something like the sign I put above.

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

PASSING OF PETER AKEMANN

Synopsis: Former Arbitrator Peter Alan Akemann passed away peacefully last month after a three-and-a-half-year battle with cancer. He was preceded in death by his parents and his brother, Thomas.

Editor’s comment: He is survived by his wife, Donna and four children, Nathan (Kelly Eberhardt), Rachel (Ikaika Plunkett), Sarah, and Jacob. Peter was the proud grandfather of nine grandchildren: Noah, Katharine, Lucy, Thomas, Joseph, Mahealani, Kupono, Kekoa, and Malia. He is also survived by his twin brother David, his brothers Ernest and Charles, and his sister Mary VanSlyck.

Peter worked for 18 years as an Arbitrator for the Illinois Industrial Commission, then Workers’ Compensation Commission. I always felt he was a quiet and reasonable hearing officer and was respected by all sides of the IL WC community.

A memorial page is found here.

PASSING OF ATTORNEY JOE LOSS

Synopsis: We report the passing of Joseph J. Loss, age 76, a resident of Lisle, Illinois. He passed away earlier this month. Joe was a practitioner at the IWCC for many years and was well liked and respected by all.

Joe grew up in Melrose Park, attended Illinois State University, where he was a proud founding member of the Theta Rho chapter of the Sigma Nu Fraternity, and graduated before pursuing his Juris Doctor at Northern Illinois University College of Law.

A dedicated and respected legal mind, he served as a senior partner at his law firm for over 35 years. Beyond his professional accomplishments, Joseph was a man of deep faith. His presence was warm, thoughtful, and always full of life.

August 2025; Shawn R. Biery's Updated IL WC Rate Charts Are Available!!!; Justice Thomas E. Hoffman RIP and much more

Synopsis: AS WE HEAD TOWARD 2026—IL WC BENEFIT RATES INCREASE SLIGHTLY—SHAWN BIERY’S UPDATED IL WC RATE SHEETS AVAILABLE FOR ACCURATE RATES AND RESERVING!!! 

Editor’s comment: The IWCC has posted new rates, although a new PPD Max rate won’t update until January 2026, and some of the Max portions have gone up but most MINIUMUM WC rates stayed the same.

Our IL WC PPD max doesn’t update until 2026 regardless.

Please also note that the IL State Min Wage is now $15 per hour and the City of Chicago’s minimum wage for employers with 4 or more employees is $16.60 per hour starting July 1, 2025—this is important in IL WC wage differential claims. If you unsure how that works, send a reply to Shawn.

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

As we have mentioned in the past, since the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, WC rates climb.

As we indicate above, rising minimum wages will strip value from Illinois’ expensive wage loss differential claims. We feel reserves and settlements need to reflect the legislative boost to anyone who has any job. If you aren’t sure how this works, send a reply to Shawn.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is $1,045.92. However, this rate is only going to be valid through June 30, 2025 and the new max PPD will be published in January 2026. When it is published in January 2026, this rate will change retroactively from July 1, 2025 forward. At that time, if you don’t make the change backdated to claims from July 2025, your reserves will be incorrect--if this isn’t clear, send a reply.

The current TTD weekly maximum has risen to $1,974.73. An IL worker has to make over $2,962.10 per week or $154,029.20 per year to hit the new IL WC maximum TTD rate.

For WC Death Benefits: The new IL WC minimum sped past the $750k floor for surviving widows/widowers years ago. That amount is now 25 years of compensation or $740.53 per week x 52 weeks in a year x 25 years or $962,689! The new maximum IL WC death benefit is now over $2.5 million at the max $1,974.73 times 52 weeks times 25 years or a lofty $2,567,149 plus burial benefits of $8K. IL WC death benefits also come with annual COLA increases which we feel can potentially make Illinois in the top ten highest in the U.S. for WC death claims—again if you aren’t sure about this issue, send a reply to Shawn.

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. There is no charge. 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 to Marissa if you would like laminated copies sent to your home or office!

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

Synopsis: IL Appellate Court Justice Thomas E. Hoffman Please Rest in Peace.

Editor’s comment: Justice Hoffman passed from this mortal sphere last month at age 77. The 1st District Appellate Court justice is survived by his wife, retired Judge Margarita Kulys Hoffman, and his four children.

Along with other judicial assignments, Justice Hoffman spent a part of his judicial career on the IL Appellate Court, WC Division. I confirm he had an almost encyclopedic memory for case law and legislation. Noting I am one humble representative of Illinois WC legal business community, I note Justice Hoffman probably participated in a streak of numerous rulings that all ruled for Petitioners and their counsels.

Illinois is a “blue state” and will probably remain so for a generation for reasons I would share if send a reply.

Unlike the situation when I first started doing IL WC defense work, in the last several years, it has become very rare for even a single dissent in support of the position of Illinois business and small government to be filed. In my view, there is no IL WC Appellate Court justice that speaks for the interests of Illinois business and small governments. Having carefully considered numerous rulings from the panel Justice Hoffman was on, the ball has moved to where most events occurring at work are compensable without what some Claimant attorneys feel is the irritating need to describe an “accident.”

Justice Hoffman participated in many of the decisions of the IL WC Division that make it extraordinary difficult to challenge or contest any WC denial before that panel. The Illinois WC defense firms now have to deal with things like the simple act of standing up being an “accident” along with a claim from another worker who fell down without any defined reason on a clean, level and well-lit staircase—despite the lack of any mechanical issues with the staircase, the IL WC Appellate panel ruled that event an “accident.” Under Justice Hoffman and others, IL WC is inexorably moving to become a “positional risk” state. I have repeatedly advised—if everything is an “accident,” you won’t need lawyers or judges/justices, as everything will be compensable.

In the good ole days, the worker had to establish a compensable injury to prove “that a work-related accidental injury aggravated or accelerated the preexisting disease such that the employee's current condition of ill-being can be said to have been causally connected to the work-related injury and not simply the result of a normal degenerative process of the preexisting condition.” At the direction of the IL Appellate Court, WC Division which included Justice Hoffman that common sense work comp requirement may have disappeared in “the People’s Republic of Illinois.” It has been my hope that a new theme comes into our combined Illinois workers’ comp brain trust and we don’t make it impossibly easy to present and prevail on a dubious “non-accident” claim. I am also growing tired of being advised literally every WC claim for a hangnail to a sore toe has morphed into a “body as a whole” situation.

I want all my readers to understand I appeared before Justice Thomas Hoffman on any number of occasions and he was solid, straightforward and sharp. Considering my long career in IL Work Comp, he was without question, one of the top jurists of my lifetime. He will be forever missed by me and others. It is unusual to note Justice Hoffman and I went to the same college and law school. I join with my law partners and the entire IL WC community to wish his family and friends all of our best during this difficult time.

Thomas E. Hoffman in 1976