12-11-2017; Gov. Rauner's "Turnaround" Is Happening In IL WC; "Disabled" IL Police Officer Morphs Into TSA Screener; Gene Keefe on Loss of Trade Awards/Reserves and more

Synopsis: Governor Rauner’s Illinois Workers’ Compensation “Turnaround” is Happening and Few Know It.

Editor’s comment: Governor Bruce Rauner came into Springfield as a veteran and successful businessperson but a newbie Governor. Our newly sworn-in Governor had a group of action items he wanted to implement to improve Illinois’ government and overall situation,  particularly in the interest of jobs and business. One headline item in his “Turnaround Agenda” was workers’ compensation reform. At the time of his election, the only national scale of any value was the every-other-year State of Oregon WC Premium Rankings that had Illinois as the seventh highest or most expensive state of the U.S. for workers’ comp insurance premiums.

 

At the time and even now, I don’t feel Governor Rauner got great political advice on how to cut workers’ comp costs for your bosses and mine. His goal was to enact/bargain/force what he felt were significant legislative reforms his advisors had to feel would cut workers’ comp costs. As I said then and continue to assure my readers, several of the legislative proposals could have inadvertently expanded coverage of the IL WC Act and increased IL WC costs! Governor Rauner’s WC legislative “reform” proposals were met with a lot of “crazy-making” from the other side that proposed creating a tiny IL WC mutual insurance company to supposedly demonstrate all major U.S. workers’ comp insurers were somehow magically manipulating “profits” in only our State to somehow keep IL WC premiums artificially high. I pointed out the State is comically broke and to take money from the IWCC would cripple that administrative agency. The gurus at the IL State Chamber of Commerce and other commentators repeatedly confirmed crooked/corrupt/bumbling IL State government has no idea how to run a successful private competitive company. They forecast financial doom for this silly effort.

 

That said, we assure you progress is underfoot for the IL WC system. As always, I closely watch IWCC decisions and reviewing court rulings. Here are three recent rulings of note to all Illinois claims/risk/gov’t and insurance folks.

 

1.    In Taylor v. IWCC (Mt. Vernon Police Dep’t, Appellant), we saw an IL WC claim by a Sheriff’s candidate in which he claimed to have injured his knee restraining/roping in a 15 year old juvenile. The main problem with the claim is Officer Taylor appears to have “forgotten” to immediately mention or document the claimed knee work injury, first claiming this story about a month after the occurrence. The IL WC Arbitrator awarded benefits but the IL WC Commission reversed, denying the claim. The local Circuit Court reinstated the Arbitrator’s award but the unanimous Appellate Court, WC Division reversed and closely followed Illinois WC law to confirm the facts, as found the IWCC panel is controlling.

 

This came to light when the City of Mt. Vernon sued the Jefferson County Sheriff’s candidate for misrepresenting this knee injury. They confirmed their claims handler innocently paid and Claimant improperly received $7,043 in worker’s compensation benefits to which he allegedly was not entitled. The City recently filed a lawsuit against Taylor in small claims court to recover the $7,043.26 it paid him.

 

2.    Second, I recently saw an IWCC ruling in Hansen v. Prairie Material. In this claim, a billing analyst and co-worker finished a task and they “high-fived” each other. Claimant asserted her hand was seriously injured in the process and she suffered from complex regional pain syndrome. The Arbitrator and IWCC ruled her job didn’t include “high-fiving” co-workers and she either voluntarily increased the risk of injury or was engaged in horse-play.

 

3.    Third, Nathan Bernard of KCB&A, one of our top young defense attorneys, recently received another important ruling where Claimant decided for reasons known only to him that it was a good idea to jump off a platform, rather than safely walk down the staircase provided. When Claimant landed, he broke his foot. The Arbitrator and IWCC panel found Claimant unnecessarily and dramatically increased the risk of injury and denied benefits. This claim hasn’t gone final so I am not reporting the names of the parties and have no intention to impact any later appeal, if one might be filed. The point is we salute the IWCC and Arbitrator for their strong views on such challenging claims.

 

Another point I am making is the current IWCC is doing an amazing job of reining in Illinois WC costs. I am sure the numbers are slow to appear but should be significant when the next State of Oregon survey of U.S. WC Premium costs takes place next fall. It is my hope Illinois businesses and local governments benefit from the IWCC’s hard work. And if you support lower workers’ comp costs and want more jobs in this nutty State, align behind Governor Bruce Rauner. I will continue to watch and report the rulings I feel support or rebut my thoughts on lower WC costs/premiums.

 

Please, please send me any IL WC ruling you feel is consistent or runs against the new trend. I appreciate your thoughts and comments. Please post them on our award-winning blog.

 

 

Synopsis: More IL Gov’t Dysfunction—“Disabled” Police Officer Gets Questionable Line-of-Duty Gov’t Pension While Now an Active TSA Officer.

 

Editor’s comment: Last week, I reported on Martin v. Board of Trustees of the Police Pension Fund of the Village of Shiloh, where, a police officer for the Village of Shiloh, IL was on duty and sitting as a passenger in an unmarked car when it was struck from behind by another vehicle. The IL Appellate Court ruled this officer was subject to all the risks of his job and getting hit while simply sitting in a car was an “increased risk.” The former officer became “disabled” due to Illinois’ odd rule that he gets an increased pension to police and firefighters if they are injured “in the line of duty,” versus a non-line-of-duty pension.

 

In addition to the lifetime line-of-duty disability check, Claimant Martin filed a work comp claim and received a tidy, tax-free settlement from the Village of $121,761.50 for 35% BAW. To me, this means he not only gets paid a generous gov’t pension the rest of his life, our local governments also provide a “going-away” present in the six-figure range.

My article was re-published in the Metro East press/media. I got a voicemail message from one of the City fathers of the Village of Shiloh to let me know they are considering further appeals. One concern is former police officer Martin is now a TSA Officer working at what I believe is the MidAmerica Airport in St. Clair County, IL. From my research, on top of his lifetime pension, he is now probably making something in the range of $40K a year plus federal healthcare and other benefits. Everything TSA Officer Martin is doing is completely legal but, in my mind, controversial.

What many Illinoisans may not understand is an Illinois police officer or firefighter is considered “catastrophically disabled” by our Illinois courts, not due to any significant real “disability” or injury. They don’t have to demonstrate the “catastrophe” is an inability to work at any job for the rest of their lives. They only have to demonstrate they can’t work as a police officer or firefighter. I am aware of supposedly disabled police and firefighters across this State who return to regular work and “double-dip” to get lucrative pensions while also working as business owners, bartenders and construction superintendents. Many of them move away from their former homes out of our State to avoid people seeing them working while supposedly “disabled.”

What drives me nuts about that disability pension “rule” is the misimpression all police officers are routinely engaged in running down bad guys/gals and busting down doors. I always smile/giggle when I enter any police department across this State to see numerous uniformed officers involved in sedentary and light work, answering phones/radios and handling paperwork. At your local school, there are SRO’s or School Resource Officers who provide a police presence for the kids, teachers and public to see. Thousands of such sedentary and light jobs are continuously staffed across this State. Many SRO’s are retired police officers!

I am certain we will never see this concept “reformed” in this State due to the strength, funding and political power of the IL Police and Fire Unions. At some future time, it is my hope the federal government will follow the concepts of ADA and require injured police and firefighters be taken off the pensions and required to perform sedentary and light jobs to give taxpayers some value for our dollars.

 

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

 

 

Synopsis: Quick Thoughts From Gene Keefe on IL WC “Loss of Trade” Claims/Awards.

Editor’s comment: Last week, a claims handler asked how to “define” or make sense of handling/reserving “loss of trade” claims, like the one former Officer Martin might have received, as I report above.

 

The statutory basis for IL WC “loss of trade” claims was cited by our Appellate Court, WC Division in a Rule 23 or “non-published” ruling:

 

Section 8(d)(2) of the Act provides, in relevant part, that the employee may be compensated after sustaining serious and permanent injuries "if such injuries partially incapacitate him from pursuing the duties of his usual and customary line of employment but do not result in an impairment of earning capacity" at a rate of the percentage of 500 weeks that the partial disability bears to total disability. 820 ILCS 305/8(d)(2) (West 2004). The extent or permanency of a claimant's disability is a question of fact to be determined by the Commission, and its decision will not be set aside unless it is contrary to the manifest weight of the evidence. Roper Contracting v. Industrial Comm'n, 349 Ill. App. 3d 500, 506-07, 812 N.E.2d 65 (2004). For a finding of fact to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App. 3d 288, 291, 591 N.E.2d 894 (1992). Put another way, the Commission's determination on a question of fact is against the manifest weight of the evidence when no rational trier of fact could have agreed. Dolce v. Industrial Comm'n, 286 Ill. App. 3d 117, 120, 675 N.E.2d 175 (1996).

 

In my view, that is the only provision in the IL WC Act and Rules that justifies an award of “permanent disability” for someone who changes jobs after an accident but might make more money in the new job or jobs after recovery.

 

That said, I have seen awards/settlements for cops and police officers as high as 80% BAW. One former IL WC Arbitrator, back in the day, wrote a colorful award for a firefighter with a high loss of trade award the hearing officer felt justified because that hearing officer loved giving away lots of local gov’t money.

 

Please remember/note IL cops and firefighters who can’t return to work as cops and firefighters are blocked by the IL Pension Code from wage loss and T&P awards if they are awarded line-of-duty disability pensions. All of them turn to “loss of trade” or loss of occupation to assert big IL WC claims for six-figure permanency as a going-away reward when they are mustered off the force and put on a line-of-duty pension.

 

My main issue for everyone to remember—I can’t imagine any specific reason/measure one person might get an award of 20% BAW for loss of trade versus an award four times higher or 80% BAW. The concept of loss of trade can’t be measured by any independent or reproducible means. In my reasoned legal view the level of PPD for a “loss of trade” claim is random and sporadic. Politics could also come into play, in the wrong claim.

 

If you were to point to post-recovery wage loss as the basis for high/low BAW for “loss of trade,” my answer is you are then pointing to the wrong provision in the IL WC Act—The Act specifically covers wage loss for better or for worse and the “loss of trade” concept shouldn’t take its place.

 

In short, reserve high and try to settle low. If you go to hearing, assume you are looking at a turkey shoot where you might bag a big one or a skinny one.

 

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

12-4-2017; When Is An Accident "Accidental", Parts 1 and 2; Charley Neal on Staffing/PEO Liability; Dr. Przybylo's Great New Book and more

Synopsis: When Is an Accident “Accidental?” Part 1.

Editor’s comment: Is a patrol officer sitting in a car “chilling” acting in the line of duty when randomly struck by another car?

 

In Martin v. Board of Trustees of the Police Pension Fund of the Village of Shiloh, No. 15-MR-404, issued 11/29/2017, a police officer for the Village of Shiloh was on duty and sitting as a passenger in an unmarked car when it was struck from behind by another vehicle. He became “disabled” due to Illinois’ odd rule that he gets an increased pension to police and firefighters if they are injured “in the line of duty,” versus a non-line-of-duty pension.

 

Former Officer Martin worked for the Village of Shiloh Police Department as a detective. In May 2012, Martin was a passenger in the front seat of an unmarked squad car when another vehicle struck the car from behind. Martin suffered injuries to his neck and back that were claimed to be permanently “disabling.”

Claimant Martin filed a work comp claim and received a tidy, tax-free settlement from the Village of $121,761.50 for 35% BAW. To me, this means he not only gets paid a generous gov’t pension the rest of his life, our local governments also provide a “going-away” present in the six-figure range. What we find challenging is former Officer Martin may use the money to buy his own business or help run a bar or whatever new occupation he likes. Again, our State doesn’t require him to be disabled from all work to get a generous pension, just work as a patrol officer.

One has to also wonder—could former Officer Martin work at a desk at a 911 call center to provide value for taxpayers for the monies he is being paid? Isn’t that “police work?” No Village/Town/City in this nutty State ever brings injured police officers and firefighters back to sedentary jobs when they become available. It is almost as if such jobs magically don’t exist.

The battle then turns to whether Martin was injured “in the line of duty.” Remember he was certain to receive a non-line of duty pension which pays moderately lower benefits. Former Officer Martin filed an application for line-of-duty disability retirement benefits with the Board of Trustees of the Police Pension Fund of the Village of Shiloh.

The Shiloh Pension Board denied the application for a line-of-duty disability pension, confirming their view he was not performing an “act of duty” at the time of the being struck by a wayward motorist. The Illinois Pension Code defines an act of duty as one “of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life.” The Pension Board reasoned the act of sitting in a car at a complete stop is an situation that is “repeated and experienced numerous times by many citizens within the community.”

Former Officer Martin sought judicial review, and a very well-paid Circuit Court judge reversed the Pension Board, relying on the Illinois Supreme Court’s ruling in Johnson v. Retirement Board of the Policemen’s Annuity & Benefit Fund. The Johnson case involved a police officer who slipped and was injured while crossing an intersection from his assigned post in response to a citizen’s request for assistance in a traffic accident.

In Johnson, our IL Supreme Court found the reporting officer’s actions were an “act of duty” within the meaning of the Illinois Pension Code because the officer was discharging his duties by responding to the citizen’s call. The increased work risk faced by the Officer in Johnson was slipping while crossing an ordinary intersection. I don’t consider the ruling in Johnson to be analogous to this claim at all—in this claim, former Officer Martin was merely sitting in a car when randomly struck. While that doesn’t happen a lot, it does happen to all of us in a random fashion.

That said, this Illinois Appellate Court panel ruled a police officer does not perform an act of duty by merely engaging in action while on duty. “The crux is the capacity in which the police officer is acting,” not the precise manner in which the officer was injured, the decision outlines. Former Officer Martin was injured returning from the St. Clair County courthouse, where he had performed duties not delegated to any members of the general public. He was also a passenger in a squad car, and the Appellate Court majority reasoned it meant he was in a “position” to have to perform his duties to protect life and property, if need be.

The Court opined a police officer “faces special risks when driving in a squad car, as they must have their attention and energies directed towards being prepared to confront any eventuality.” I note Claimant Martin wasn’t driving the car—he was sitting, basically doing nothing.

The Appellate Court concluded former Officer Martin was engaged in the performance of an act of duty at the time of his injury. They affirmed the Circuit Court below.

Trust me, rulings like this highlight how dysfunctional IL local government can be. The cost of this award is already well into six figures and may eventually be well into the millions for Shiloh taxpayers, depending on how long Claimant lives. When I learn former police officers and firefighters then go on to other jobs/work and prosper as bartenders, private detectives and truck drivers, I can only shake my head about it.

We appreciate your thoughts and comments. Please post them on our award-winning blog. To read the decision, click here.

 

Synopsis: When Is an Accident “Accidental?” Part 2.

 

Editor’s comment: Remember there is a dual WC requirement of an accidental injury ‘arising out of’ and ‘in the course of’ employment. The concept is called AOO/ICO for veterans. This is one of the most difficult areas of law for a non-lawyer to understand. The concept of what comprises an ‘accident’ in U.S. workers’ compensation law is difficult to define and harder to predict. 

             

“In the course of” Employment or ICO

 

Of these two legal terms, the second, “in the course of” is much easier for the layperson to understand. This concept is best defined by the idea the employee has to be working or about to work for the injuries to be considered covered under workers’ compensation. This requirement is usually satisfied if the employee is ‘on the clock’ or at or around their work station.

  

You can usually assume a typical employee going to and coming from work is arguably not covered by workers’ compensation. There is some magical point at which they get close enough to work to say that an injury is a work-related accident.

 

One controversy regarding this concept arises in claims occurring in parking lots, shopping malls or common areas of public buildings where the employee works. The question is when does the employee arrive/depart from work? The answer changes on a case by case basis. A good general rule focuses on employer ownership or control of the property and the exclusive nature of a designated employee parking area—if the employer owns the parking lot or building and only employees are permitted to park in a particular area, the employee may be considered to be ‘working’ when he or she is present there and the risk of injury is unique to the employee, imparting liability on the employer.

 

Another major concept when dealing with “in the course of” is the odd and controversial “traveling employee” concept. When an employee is sent on a mission for the employer which takes the employee away from their typical work site, they obtain what may be characterized as “expanded” workers’ compensation coverage for injuries. An employee away from home and on the road might arguably be covered for any accident that can be said to result from any activity they could reasonably be expected to do while on the road. 

 

On the defense side, it is argued not everything a worker does during travel for work can be said to occur “in the course of” employment while away from home and their typical work site— what if a worker has an allergic reaction eating a hot dog and coincidentally happens to be traveling? Many states have statutory language which require an injury occurring while on a routine trip has to occur while the worker is actually doing work for the employer. While Illinois doesn’t have any statutory imprimatur either way, we feel common sense requires some nexus to work duties for the employer to have to pay benefits if a worker becomes injured or disabled while traveling.

 

As defense lawyers and observers, we were challenged by the IL WC Appellate Court’s 2012 ruling in Venture-Newberg Perini Stone and Webster v. Illinois Workers' Compensation Commission. In our reasoned view, this legal precedent turned thousands of IL workers into traveling employees and made their employers responsible for all “reasonable activities” performed while at or going to a jobsite, even when not working. Most defense observers were very happy when, about one year later, our IL Supreme Court tossed this legal concept, ruling it was flawed regardless of whether you looked at the facts or the legal issues presented by the penultimate reviewing court. We do not feel the “traveling employee” concept should ever apply to an employee whose job is to constantly travel such as a truck driver or traveling salesperson. Such workers face ordinary risks while doing their jobs and away from work and shouldn’t have extraordinary coverage for all activities, at work and at rest. If the reviewing courts and Commission extend benefits to employees whose job it is to travel, all such employees would then have global 24/7 coverage for all their actions, personal and professional, while on the road doing routine work or play. We assure everyone this expanded and indefensible coverage would dramatically increase workers’ comp costs in this state and might render the IWCC and lawyers on both sides unnecessary.

 

“Arising out of” Employment or AOO

 

Returning to the concept of “arising out of” employment, this idea has taken a broad turn in recent years. In analyzing this legal concept workers’ compensation requires more than a showing the employee was working when injured or disabled. The idea is the injury has to arise from some job-specific risk versus a risk felt to be ‘common to the public.’ This requirement focuses on the basic concept of what workers’ compensation coverage/insurance is supposed to be—monetary protection for the worker when they encounter risks specific to work. A clear illustration of this concept is a typical worker who is working and becomes injured when an airplane unexpectedly and randomly crashes into the worksite. Assuming this employee doesn’t work around airport runways or airplanes, such injuries are risks we all face in modern society whether we are at work, at home or at play and there is nothing an employer can do to protect employees from such risks. Accordingly, such injuries should not be ruled compensable, regardless of how serious the injury. This has also been applied to cause denial of WC benefits where an employee suffered an injury putting on a coat, turning in a chair to answer the phone and tripping over a typical curb.

 

While the “job specific” risk may seem easy to understand and implement as a general rule, recent Appellate Court rulings have drawn what appear to be opposite conclusions based on strikingly similar facts. 

 

For example, in Mytnik v. IWCC, a factory worker who injured his back as he bent over to pick up a fallen bolt was deemed to have suffered a compensable injury, since picking up fallen bolts was part of the required job duties. This was deemed compensable despite the fact that bending over to pick up a tiny item is a very innocuous day-to-day activity. 

 

Yet, weeks earlier, a decision by the same Appellate Court denied the claim of an office worker who was injured while reaching for a fallen pen on the floor in Noonan v. IWCC. The Court’s ruling explained the office worker was not required to pick up pens as part of his regular job duties and therefore, the mechanism of injury was not compensable as the job itself did not impart an increased risk of such an injury. 

 

From the above analyses, one has to move to the more modern problems of accident definition. When workers’ compensation in Illinois was initially formed, the Commission and courts required the employee establish a definite time, place and cause of injury. The classic definition also required something unexpected and untoward to happen.

 

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

 

Synopsis: Rules on Loaned and Borrowed Employees for IL Staffing/PEO’s Companies. Comment by Charley Neal of Barton Staffing Solutions.

 

Editor’s comment: I appreciate Mr. Neal sending us these important risk/claims/legal thoughts and I am republishing them with his permission. If you want to contact him, send a reply and we will relay it to him. 

 

From time to time, an employee of one company may perform job duties for another company either under a contractual relationship or in a relationship implied by the nature of the employment. In such claims, both employers are simultaneously liable for WC benefits with one of the employers having primary liability for any loss. In these situations, the employer benefiting from the services of the employee at the time of the accident will be found to be the primarily responsible party. Secondary liability will be on the company providing the worker—unless there is an agreement to the contrary.

 

However, if the borrowing employer does not pay or fails to timely pay benefits, the loaning or original employer must pay. The IL WC Act is clear--liability is joint and several in such situations. Again, remember the unstated rule is to insure the injured employee has WC insurance coverage resulting in benefits for the loss. It is incumbent on risk managers and defense attorneys to make sure which entity has primary liability in defending or managing such claims. You may want to address choice of counsel as well as liability for payment of counsel in any agreement.

 

Staffing Agencies are the employer and therefore have to supply the Workers Comp insurance. It may go on the Client’s OSHA 300 log due to who has primary supervision, but that would be the only thing that a client would be responsible for as far as a W/C injury.

 

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

 

Synopsis: Three Minutes and Your Life…Thoughts From Henry Jay Przybylo, M.D. author of the new book and great Christmas present, Counting Backwards: A Doctor’s Notes on Anesthesia.

Editor’s comment: In Counting Backwards, Dr. Henry Jay Przybylo―a pediatric anesthesiologist with more than thirty years of experience―delivers an unforgettable account of the procedure’s daily dramas and fundamental mysteries. Dr. Jay has administered anesthesia more than 30,000 times in his career―erasing consciousness, denying memory, and immobilizing the body, and then reversing all of these effects―on newborn babies, screaming toddlers, sullen teenagers, even a gorilla. It is a fascinating read and perspective where lawyers and claims professions can get a different view on an important part of any case where anesthesia is provided.

Doctor’s comment: Give me three minutes, then you’ll give me your life. These are words that are cause for concern for any lawyer. A vacant promise, a scam, fraud? No. In the time it takes to post the latest announcement on LinkedIn or to listen to Van Morrison’s “Brown Eyed Girl,” we’ll talk, I’ll examine and then we’ll pass through automatic double doors leading to my sequestered place where I’ll induce a chemical coma, steal time, prevent memory, immobilize the body and then reverse these at will.

As an anesthesiologist, I alter heart rate, blood pressure and breathing, but I don’t cure. My care allows physicians to cut, probe and stick. Perhaps not curing isn’t entirely accurate. Without my care, procedures that are painful or require absolute stillness—clipping a brain aneurysm where any patient motion might alter the outcome—are not possible without my intervention In addition, I treat pain beyond the procedure room, both acute and chronic.

Many fear anesthesia and for good reason; it’s an act of faith. When asked how the anesthesia gas I administer day in, day out works, I have no solid scientific answer. It simply does. Forty million times every year in the U.S. alone. So as I ask a patient to have confidence in my abilities, I need to trust in my gas. I know what percent of gas is needed to keep a person safely anesthetized, and I measure continuously every imaginable vital sign and parameter, the percent of inhaled gas included. My intent is singular: that every patient emerges from my care in better condition than on entering.

The motto of anesthesiologists is vigilance. I noticed something unobserved by others in a photo from a recent published article of a wrist surgery on a woman who requested no anesthesia. The center of attention—and all the eyes in the room—were on the surgical site, her wrist. My question: Who was watching the woman? If, God forbid, something untoward happened, who in that room was charged with making life right? In the event of an allergic reaction to an injected medication, who possessed the expertise to successfully treat the woman? More than removing a patient’s senses, my charge as the anesthesiologist is to watch the patient as a whole and to correct confounding issues. High blood pressure is treated, blood sugars are followed and normalized, and so on and so on. For those requesting no anesthesia, the statistics on safety prove anesthesia is very safe and lead me to question, what’s to be gained?

Not everyone requires the mysterious, all-in-one anesthetic gas. Deconstructing anesthesia leaves its components: anxiety relief, amnesia, pain therapy (analgesia), remaining still (akinesia) and stable vital signs throughout (in my term, a-reflexia). All can be treated separately with a variety of medications and techniques. If inhaling a gas is undesired or medically unwise, pain relief and stillness can be achieved by blocking the nerves to the region of the procedure using local anesthetics, while supplemental medications treat anxiety and amnesia. Allow me the opportunity to build an anesthetic that best fits needs and leaves you in better health after my care.

Anesthesia is not a limelight specialty. I stand in the wings, and yet, I alter nearly every body function. Anesthesiology intervenes in life with a breadth, depth, and intensity that no other medical specialty possesses. Forgetting my name within minutes of discharge, I take no offense. Practicing in one of the RU—relative unknown—medical specialties such as anesthesiology, radiology and pathology means little to no face time with patients. That should not be taken to mean as the RU physicians’ work is secretive—just secluded. Most of my waking day is spent cloistered behind automatic double doors. But you can still speak with me; inquire about all options. Choices exist.

Please visit www.henryjaymd.com for more information on Dr. Jay and buying a copy of his amazing new book: Counting Backwards.

11-27-2017; Employment Relationships in WC; Amazing New Book From Our Favorite Gas-Passer and more--Happy Holidays, Everyone!!!

Synopsis: Employment Relationships in Work Comp for Illinois and Your State.

 

Editor’s comment: I caution my readers—if you have detailed questions about any of these complex WC issues for the five states KCB&A covers, email me at ekeefe@keefe-law.com. Outside our five states, I can hook you up with a solid local WC defense attorney—just email me.

 

When is It Your Employee vs. Independent Contractor

 

In situations where elements of both an employee-employer relationship and an independent contractor relationship are present, most WC hearing boards and reviewing courts look to the following major factors in determining whether Claimant is an employee:  

 

· The relationship of the work performed to the overall business of both the individual performing the work and the regular work of the alleged employer;

 

· The party most likely to have insurance coverage for the loss;

 

· The right to control the manner in which the work is performed;

 

· The method of payment for the work performed;

 

· The right to discharge and the means of discharge;

 

· The party furnishing tools, materials and equipment.

 

Case law and outcomes are generally unpredictable. U.S. WC Boards/Commissions and courts ostensibly utilize formal legal standards as their published decisions are presented to the larger public—they may typically indicate the ‘right to control the work’ is a paramount standard. Illinois WC also now has the Employee Classification Act (820 ILCS 185) which outlines the above elements to assist in categorizing workers as employees or independent contractors. 

 

More veteran observers point to the ‘deep pocket’ theory of who has available insurance (or ‘self-insurance’) coverage when an individual suffers a serious injury and is left without any source of paying for time lost and medical bills. Remember if the injured party had his or her own workers’ compensation policy, they probably wouldn’t be bringing the claim. The party most likely to have insurance coverage faces a very strong burden of establishing the individual claiming to be an employee was an employer in their own right and had an equal responsibility to obtain insurance to cover his or her own injuries.

 

The above concept is critically important in ongoing work relationships, particularly where the individual claiming to be an employee worked alone and continuously performed most or all of their work for the individual or organization claiming to be the employer. 

 

A good example of this is a truck driver who only delivers loads for one organization, even if the driver owns his own truck and pays all of his own expenses (not including workers’ compensation coverage). Where this is occurring, we strongly urge you require such an individual to present continuing proof of workers’ compensation coverage for his own injuries. Where the injured individual is left without coverage, the IL WC Commission and courts have gone to great lengths to find that such an individual is an employee.

 

Another growing area of legal controversy is the mischaracterization or misclassification of workers as independent contractors when they are filling traditional employee roles. If a general contractor or building owner hires five plumbers and keeps them working at all times, it may become difficult to call each of them “independent,” particularly if they only work for the same company for weeks, months and years. 

 

Misclassification of workers is designed to avoid payroll taxes, unemployment benefits, workers’ comp insurance and other costs. The Illinois Department of Labor and many of our sister states are “attacking” this concept with new and punitive laws whenever and wherever they see it. In the workers’ comp arena, we do feel protections should be in place to insure injured workers are provided benefits when the unforeseen occurs.

 

‘Independent Contractor Agreements’

 

Also, you can be confident the IL WC Commission and other states’ WC systems tend to be extremely suspicious of ‘independent contractor agreements’ or other documents designed to clearly state or claim an individual is an independent contractor in advance of the injury. 

 

When all the facts and circumstances of the work being performed lead to the conclusion the individual performing the work is an employee, the IL WC Commission may completely reject the terms of the ‘independent contractor agreement’ as a subterfuge designed to mislead both the Commission and the injured employee.

 

Our favorite example of this is the trucking company that had each driver execute an ‘independent contractor agreement’ when further investigation also disclosed the driver also had to fill out a typical ‘employment application’ which was contained in the same file. Don’t be misled into thinking an ‘independent contractor agreement’ will be necessarily be legally enforceable—in many instances, the Commission or other Board will provide an even higher level of scrutiny when presented such documents. 

 

In a serious injury, it is likely the employee may seek out legal assistance and a veteran workers’ compensation attorney will readily bring such a claim and ignore the misleading agreement. An employer may get caught without needed WC coverage if you don’t report to your insurance carrier/TPA or otherwise reserve for such losses. 

 

Only to the extent an injured individual views such a document as legally enforceable and doesn’t seek benefits, it may have its intended informal effect. In our view, the risks are much too high to rely on it.

 

Special employment relationships

 

Undocumented Workers—“Illegal Aliens”

 

This is a challenging area of U.S. law. Our U.S. Supreme Court in their landmark ruling in Hoffman Plastic Compounds, Inc. v. NLRB rendered employment agreements with undocumented workers illegal. Most states ignore this ruling and I consider all of it very controversial. Please note my personal view you can’t/shouldn’t get state or federal workers’ comp benefits unless you are first part of a legally binding employment agreement. Many state courts interpreting WC laws ignore this simple concept and dole out benefits, even if the “agreement” isn’t legally binding.

 

The whole problem is employers shouldn’t be able to take unfair advantage of hiring an undocumented worker to have that worker become seriously injured or killed without any recourse or benefits for either the worker or their family. The other side of this same problem is many U.S. employers are presented with and hire workers who are lying or falsifying documents to get hired and then use their faked status as “employees” to make questionable, fraudulent or unsupported WC claims. There isn’t a great answer to this conundrum--I am sure this legal battle and its contradictions will continue for the foreseeable future.

 

Volunteers

 

Volunteers are not generally considered employees under most states’ WC Acts—check with KCB&A or your local defense counsel. Purely volunteer workers who are not paid and have no expectation of payment are excluded from coverage even if they suffer severe injuries. Please note, workers’ compensation benefits other than medical bills such as TTD/TPD and PPD are calculated based on the wages/salary of the worker—volunteers don’t have a wage/salary from which to calculate those weekly benefits.

 

Again, remember this concept may give you a legal ‘option.’ It is possible the volunteer may have a viable common law liability claim and it is conceivable workers’ compensation benefits can be paid which might serve to cut off the third party exposure.

 

Casual or part-time employees

 

Casual or part-time employees even with very low wages are covered by most state and federal Workers’ Compensation Acts and should be entitled to benefits despite part-time status. In these situations, the employees’ average weekly wage may be under or close to the minimums for TTD and PPD. It is not the minimum for amputations, death or total and permanent disability benefits—those minimums are exponentially higher. The part-time employee’s average weekly wage may actually become the amount they can be paid for TTD and PPD (see the last two sentences in Section 8(b)(2) and 8(b)(2.1)). This low rate leads to minimal exposure in claims involving part-time employees unless the individual was working more than one job and the employer was aware of dual employment.

 

Loaned and borrowed employees—Staffing/PEO’s 

 

From time to time, an employee of one company may perform job duties for another company either under a contractual relationship or in a relationship implied by the nature of the employment. In such claims, both employers are simultaneously liable for WC benefits         with one of the employers having primary liability for a loss. In these situations, the employer benefiting from the services of the employee at the time of the accident will be found to be the primarily responsible party. Secondary liability will be on the company providing the worker—unless there is an agreement to the contrary.

 

However, if the borrowing employer does not pay or fails to timely pay benefits, the loaning or original employer must pay. The IL WC Act is clear--liability is joint and several in such situations. Again, remember the unstated rule is to insure the injured employee has WC insurance coverage resulting in benefits for the loss. It is incumbent on risk managers and defense attorneys to make sure which entity has primary liability in defending or managing such claims. You may want to address choice of counsel as well as liability for payment of counsel in any agreement.

 

Lack of WC Insurance Now Ends IL WC Exclusivity

 

The other aspect of handling such claims is the IL WC Commission’s heightened efforts to police and patrol all Illinois employers to stop uninsured employers from operating without WC insurance and/or file for civil and criminal penalties where appropriate. Starting in 2011, the Act was amended to allow two possible legal outcomes where an employer does not have insurance for a work injury.

 

First, the employee can make a traditional WC claim against the employer and due to the lack of WC insurance, the employer can try to adjust the claim and pay what is due under the Act.

Second, the employee can also sue the employer in Circuit Court for the injury. When they do so, damages are effectively unlimited. Due to the lack of WC insurance, there is no more exclusivity protection. Section 4(d) of the Act now states:

  

Employers who are subject to and who knowingly fail to comply with this Section shall not be entitled to the benefits of this Act during the period of noncompliance, but shall be liable in an action under any other applicable law of this State. In the action, such employer shall not avail himself or herself of the defenses of assumption of risk or negligence or that the injury was due to a co-employee. In the action, proof of the injury shall constitute prima facie evidence of negligence on the part of such employer and the burden shall be on such employer to show freedom of negligence resulting in the injury.

 

This statutory provision basically creates “all-fault” liability on the uninsured employer.

 

Never Allow Executives of Independent Contractors to “Opt-Out” of WC Coverage and Contract to Work for You Without Coverage

 

There is a little-known provision of the IL WC Act that allows the owner or partners of a company to “opt-out” of coverage to save money and take the risk of injury upon themselves. This sets up a situation where a company that hires that executive or partner is doing so in a setting where there is no protection/insurance for a work-related injury in your workplace.

 

We consider that model very dysfunctional. If the executive of what might be a true “independent contractor” suffers a serious injury, resulting in injury or death, there is always the specter of the executive or their family coming to the company that hired them and seeking WC benefits due to the lack of insurance. When you understand a serious WC claim can cost millions of dollars, you don’t want such exposure. Even if the company allowing such an executive or partner on your premises wins the coverage battle, you have to face the costs and uncertainty of litigation.

 

The defense team at KCB&A can readily assist my readers on all such issues/topics. If I can help, please send a reply.

 

We appreciate your thoughts and comments. Please post them on our award-winning blog. Happy Holidays to all!!!  

 

Synopsis: Three Minutes and Your Life…Thoughts From Henry Jay Przybylo, M.D. author of the new book, Counting Backwards: A Doctor’s Notes on Anesthesia.

Editor’s comment: In Counting Backwards, Dr. Henry Jay Przybylo―a pediatric anesthesiologist with more than thirty years of experience―delivers an unforgettable account of the procedure’s daily dramas and fundamental mysteries. Dr. Jay has administered anesthesia more than 30,000 times in his career―erasing consciousness, denying memory, and immobilizing the body, and then reversing all of these effects―on newborn babies, screaming toddlers, sullen teenagers, even a gorilla. It is a fascinating read and perspective where lawyers and claims professions can get a different view on an important part of any case where anesthesia is provided.

Doctor’s comment: Give me three minutes, then you’ll give me your life. These are words that are cause for concern for any lawyer. A vacant promise, a scam, fraud? No. In the time it takes to post the latest announcement on LinkedIn or to listen to Van Morrison’s “Brown Eyed Girl,” we’ll talk, I’ll examine and then we’ll pass through automatic double doors leading to my sequestered place where I’ll induce a chemical coma, steal time, prevent memory, immobilize the body and then reverse these at will.

As an anesthesiologist, I alter heart rate, blood pressure and breathing, but I don’t cure. My care allows physicians to cut, probe and stick. Perhaps not curing isn’t entirely accurate. Without my care, procedures that are painful or require absolute stillness—clipping a brain aneurysm where any patient motion might alter the outcome—are not possible without my intervention In addition, I treat pain beyond the procedure room, both acute and chronic.

Many fear anesthesia and for good reason; it’s an act of faith. When asked how the anesthesia gas I administer day in, day out works, I have no solid scientific answer. It simply does. Forty million times every year in the U.S. alone. So as I ask a patient to have confidence in my abilities, I need to trust in my gas. I know what percent of gas is needed to keep a person safely anesthetized, and I measure continuously every imaginable vital sign and parameter, the percent of inhaled gas included. My intent is singular: that every patient emerges from my care in better condition than on entering.

The motto of anesthesiologists is vigilance. I noticed something unobserved by others in a photo from a recent published article of a wrist surgery on a woman who requested no anesthesia. The center of attention—and all the eyes in the room—were on the surgical site, her wrist. My question: Who was watching the woman? If, God forbid, something untoward happened, who in that room was charged with making life right? In the event of an allergic reaction to an injected medication, who possessed the expertise to successfully treat the woman? More than removing a patient’s senses, my charge as the anesthesiologist is to watch the patient as a whole and to correct confounding issues. High blood pressure is treated, blood sugars are followed and normalized, and so on and so on. For those requesting no anesthesia, the statistics on safety prove anesthesia is very safe and lead me to question, what’s to be gained?

Not everyone requires the mysterious, all-in-one anesthetic gas. Deconstructing anesthesia leaves its components: anxiety relief, amnesia, pain therapy (analgesia), remaining still (akinesia) and stable vital signs throughout (in my term, a-reflexia). All can be treated separately with a variety of medications and techniques. If inhaling a gas is undesired or medically unwise, pain relief and stillness can be achieved by blocking the nerves to the region of the procedure using local anesthetics, while supplemental medications treat anxiety and amnesia. Allow me the opportunity to build an anesthetic that best fits needs and leaves you in better health after my care.

Anesthesia is not a limelight specialty. I stand in the wings, and yet, I alter nearly every body function. Anesthesiology intervenes in life with a breadth, depth, and intensity that no other medical specialty possesses. Forgetting my name within minutes of discharge, I take no offense. Practicing in one of the RU—relative unknown—medical specialties such as anesthesiology, radiology and pathology means little to no face time with patients. That should not be taken to mean as the RU physicians’ work is secretive—just secluded. Most of my waking day is spent cloistered behind automatic double doors. But you can still speak with me; inquire about all options. Choices exist.

Please visit www.henryjaymd.com for more information on Dr. Jay and buying a copy of his amazing new book: Counting Backwards.