7-17-2018; Clawing Back IL WC Wage Loss Differential Claims with Thousands of Available Truck Driving Jobs; Understanding the Definition of What a WC accident is in Illinois and Maybe Your State

Synopsis: Clawing Back on IL WC Wage Loss Differential Claims with Thousands of Available Truck Driving Jobs Across Illinois and the U.S.


Editor’s comment: We assure our readers the current IL WC Commission has reined in one of Illinois’ highest conceivable work comp benefits—Total and Permanent Disability. The “T&P” claim has wacky high minimum rates that start today at $555.05, for a part-time worker who might make $50 a week—yes, as a T&P, they will receive at least $555.05 a week! The max rate is similarly sky-high at $1,480.12 or $76,966.24 on a tax-free basis each year.


On top of that largesse, a T&P claimant also gets the hilariously high IL WC Rate Adjustment Fund that can double that weekly benefit in about 23 years or so. If they live long enough, the amount can quadruple.


The overall exposure for a young claimant who is adjudicated totally and permanently disabled can easily be $2-4M or more!


In short, whatever you do, always bring an injured worker back to some sort of work at your organization or outplace them to another place that can accommodate them.


The next most expensive benefit in this nutty State is wage loss differential benefits under Section 8(d-1). This is another lifetime benefit where the worker can’t make as much as they were prior to injury and the hapless employer can be adjudicated to owe them 2/3’s of the difference between what they made while working versus what they are making in the post-injury job.


I saw a recent article confirming the U.S. truck driver shortage is expected to hit 63,000 this year. The shortage is causing delayed deliveries and higher prices for consumers and businesses. Nearly every item sold in America touches a truck at some point, which explains why the challenges facing the industry have special power to affect the entire economy.


Already, delivery delays are common and businesses such as Amazon, General Mills and Tyson Foods are raising prices as they pass higher transportation costs along to consumers. Today, transportation concerns are on the top of every transportation company's list, especially in this area as Chicago is one of the top three transportation hubs in the U.S. Every industry -- from food to manufacturing, banking and finance, health care, retail, and beyond -- relies on trucking to keep goods flowing on time, without damages and within a realistic budget.


Experts confirm when capacity gets tight, shippers often turn to third party logistics (3PL) providers to try to stay competitive as 3PLs have access to a large network of carriers and technology that can optimize shipments and provide visibility into opportunities, including better modes, lanes and routes. Technology is becoming key in this area.

In the meantime, trucking companies must be more creative than ever to attract new drivers. Increasing driver pay, tacking on signing bonuses, becoming more women-friendly, adding more perks and trucks that are more compelling are ideas included in the mix, experts say.


Experts confirm the average age of transportation drivers right now is 58. As a way to increase the numbers, it was recently announced that the Trump administration is advancing a program to let some younger workers drive big trucks across state lines, signaling an openness to lowering the driving age more broadly amid a massive trucker shortage. The federal government currently requires commercial truck drivers to be at least 21 to drive a large truck across state lines. But a Department of Transportation pilot program will soon allow some drivers as young as 18 to drive cross-country for private trucking companies. Specifically, the program would be available to some members of the National Guard and others with military experience.


How does this all impact the field of workers’ comp, particularly in Illinois WC? Well, most Claimants have driver’s licenses and drive to and from their doctors and other care-givers. If you can drive a car, you can and should be able to do small-package delivery for lots and lots of companies. There isn’t a lot of training and the lifting requirements can be very reasonable. What we recommend for many of our clients is to focus on getting injured cops and firefighters and lots of other somewhat healthy workers focused on truck driving and package delivery jobs at the earliest stage of a WC claim. A rapid web search on www.indeed.com brought up more than 1,500 available jobs your claimants can perform right now.


What if they won’t take such a position? Well, remember you don’t have to force them to take the job, all you have to do under longstanding IL WC case law is show there is “available work within a reasonably stable labor market” for them—that is the IL WC golden standard. By doing the online job search and pointing out appropriate and available jobs that pay well and can accommodate restrictions, you can dodge the wage loss differential bullet.


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Synopsis: Understanding the Definition of What a WC accident is in Illinois and Maybe Your State.


Editor’s comment: An initial caveat for the beginner is to understand the definition and scope of accident in Illinois workers’ compensation continues to be more and more liberal. The requirements for a compensable accident twenty or thirty years ago have broadened greatly to the point WC benefits sometimes seem to be awarded for any remote link between work and disability. An ongoing concern is workers’ compensation in Illinois is becoming more and more like indefensible group benefit coverage—if the employee has a job and a medical issue, benefits might be due.


Remember there is a dual requirement of an accidental injury ‘arising out of’ and ‘in the course of’ employment. This is one of the most difficult areas of law for a nonlawyer to understand. The concept of what comprises an ‘accident’ in Illinois workers’ compensation law is difficult to define and harder to predict.


“In the course of”


Of these two 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 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—if the employer owns the parking lot or building, the employee is considered to be ‘working’ when he or she is present there.


Another major concept when dealing with “in the course of” is the “traveling employee rule.” 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 in Illinois. 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 on a trip does 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.


Traveling Employee Expansion


In the case of Bolingbrook Police Department v. Illinois Workers' Compensation Comm'n, a divided 3-2 majority of the Appellate Court considered a claim where a police officer injured his back while loading his duty bag (weighing about 40 pounds) into his personal vehicle in preparation for reporting to the police station for work. While Claimant was dressed for work, he wasn’t on duty or anywhere close to being on duty. He wasn’t paid while at home and isn’t entitled to overtime for work performed at home. He still had to get in his own car and drive it to work. In our view, none of his actions while at his own home should not be considered “work duties.” However, our Appellate Court affirmed the ruling.


The Commission, in affirming and adopting the decision of the Arbitrator, acknowledged the accident occurred while Claimant was at home, but reasoned Claimant was “specifically engaged in an activity performed for the benefit of Respondent, an activity the Respondent could reasonably expect [claimant] to perform.”


As more and more white-collar workers operate out of their home or carry items such as lap-top bags/files to and from work or appointment, we must be aware that our Courts are recognizing injuries once workers leave the “threshold” of their home and proceed to “travel” to work.


Question for discussion:  Would the same injury be compensable if the officer picked up his same bag off the floor of his family room moments earlier?


‘Arising out of’


Returning to the concept of “arising out of” employment, this idea has taken a very 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 airports 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. This has also been applied to cause a 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.


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.


Repetitive trauma



The last two decades have seen a controversial expansion of this doctrine in the concept of repetitive or cumulative ‘trauma.’ Following Peoria Bellwood Nursing Home v. Industrial Commission, in claims involving carpal tunnel syndrome, if the employee can show they were performing any specific repetitive work activity causing a defined medical problem from that work over a period of time, they may prevail and benefits will be awarded.


The ongoing battle is over specific v. general work duties. Something of a scandal erupted several years ago when an IL correctional facility faced hundreds of WC claims for prison guards claiming turning keys in locks and driving prison vehicles with shaky steering wheels caused CTS—this trend reversed itself to denials, as the general work duties of the workers didn’t appear to justify WC coverage.


Inability to implead or seek contribution among multiple employers in repetitive trauma claims


This problem also raises issues for Illinois employers in the developing world of workers’ compensation following the institution of repetitive trauma as a source of disability. As the reviewing courts created the concept, there wasn’t a legislative scheme covering all possibilities. Some states do have legislation allowing the sharing of repetitive trauma claims.


However, there is no provision in the Illinois Workers’ Compensation Act which allows an employer to implead (or add to the claim) another employer as a contributing source of the repetitive ‘trauma.’ The insurance carriers/TPA’s can’t allocate a continuing claim among each other—one carrier/TPA will owe it all and the others owe nothing. Further, the dilemma each IL employer faces is respective employers/insurers cannot seek financial contribution from all employers who might have partially caused an employee’s disability.


For example, if an employee suffers from a work-related disability for three years and has six different employers during that span, he or she can probably have their pick of all those employers and bring a viable claim against any one of them. Our advice to attorneys on the other side is to bring claims against all possible employers/carriers to insure coverage is assessed—this avoids malpractice concerns. One might think the exposure would focus on either the first or last employer but in reality, it might be any of them if the employee is careful to focus on one employer.


Each employer is faced with having to simply defend themselves and hope the Commission denies the claim against them and leaves the employee to go on to make new claims against the other employers. This concept puts the respective employers in the unhappy situation of bickering among each other with the employee sitting back with the ‘benefit clock’ running, remaining confident one of them will have to pay.


In short, the individual employer also has no ‘right of contribution’ which might seem to an impartial observer to be a fairer way to allocate the cost of disability. One employer will have to pay. The biggest problem is this foments litigation with employers going all out to fight responsibility for a significant claim and leaving the employee to wait for the outcome of the dispute. The IL WC Act and rules were amended to allow such disputes to be brought by the defense side. Payment of interim benefits in such a situation is not supposed to be an admission of liability. This situation does not sit well with Illinois employers/insurers who seek speed, fairness and predictability with regard to claims, underwriting and reserves.


Can work be an accident?


Another problem with the concept of repetitive trauma is what happens when the link between the condition and work activity is not as clear as it may be in carpal tunnel. As the baby boomers age, the search for entitlements has led to workers’ compensation. Remember many problems of aging can be indirectly or directly traced to something done while working. Rotator cuffs degenerate, spinal discs herniate and arches fall from the combined activities of work, play and daily life. The aging worker is a growing concern in WC costs and claims.


We call “repetitive working” a new but growing type of WC claim where a worker has an onset of pain without any real or apparent defined cause. A simple example is an office worker who asserts their shoulder is spontaneously sore during their work day. The worker doesn’t truly do any “shoulder intensive” work but will pick the heaviest task, like lifting a ream of copy paper to assert that is the “accident” or cause of their failing shoulder joint.


Such claims are challenging to defend because they come at employers in various ways and can involve lots of medical care and lost time. As defense lawyers, we do not feel such claims should be compensable while the claimant bar feels anything even potentially related to work should be covered by employer. This causation anomaly may lead to legislation mandating the work be the “primary” cause of the medical problem.


The real problem when one makes repetitive work or activities an ‘accident’ is where to draw a line. As most work involves some sort of repetitive activity and all employees suffer from the normal aches and pains consistent with their age, who can say when a disc spontaneously herniates due to work versus one’s physical makeup? In our view this is changing workers’ compensation into group disability coverage. Please note there is little need for litigation, lawyers or hearing officers in the group healthcare arena.


In the case of Williams v. Industrial Commission, the Appellate Court clearly stated the employee cannot come to the courts and claim, “I worked all my life and now I’m sore” as comprising an accident. The best thing that can be said about the problem of repetitive trauma vis á vis the classic definition of accident is this debate will rage on for years to come in the absence of significant reform.


If all the employee has to establish is they regularly performed heavy work and now have orthopedic problems without needing to establish a specific event, time and cause, workers’ compensation will become very much like group disability coverage with the added cost of permanent disability. Hopefully, the line drawn in Williams may remain.


Repetitive Trauma or Repetitive Working?


The decision of the Appellate Court, WC Division in S&C Electric Company v. The Illinois Workers’ Compensation Commission once again highlights the difficulties faced by Illinois employers in demonstrating a disputed condition may not have been work-related despite presenting equally convincing explanation of a non-work related event being the cause of the alleged symptoms.


Many claimant attorneys are filing dual claims such as here, with a blunt trauma claim and a repetitive trauma claim to cover themselves.


Claimant Cortez filed two separate Applications for Adjustment of Claim, one alleging a discrete work accident which occurred on February 4, 2011 resulting in injury to his lumbar spine as a result of lifting and pulling equipment and the second one alleging injury to “man as a whole” caused by repetitive lifting, bending, and pulling in the performance of his employment and thus alleging a more repetitive trauma type condition and not an acute occurrence.


Claimant alleged as a “mechanical assembler basic” his duties included assembling an average of three-four stainless steel tanks each shift and he worked 10 hour shifts and five day weeks. He claimed on February 4, 2011 he was using a manual hand jack with a steel extension to pick up a pallet and to do this he bent at the waist pulling up on the extension bars. This was when he claimed he felt a “click” in his back followed by pain. However, he continued to do his job and did not report the injury to anyone in leadership until ten days later on February 14, 2011, when he informed a co-worker the pain worsened and was going down to his left leg making it difficult for him to walk.


The medical records entered into evidence indicated Petitioner had a severe disc herniation at the L5-S1 level with impingement on the S1 nerve root and it was the opinion of his doctor the severe extrusion of the disc was indicative of a traumatic change. We note there is no indication of a “trauma” at work in the record. At the same time, during her deposition and upon cross-examination, the physician admitted a person could suffer from such a herniated disc from shoveling snow.


It was also the opinion of the treater Petitioner’s ill-being and the eventual need for a lumbar fusion were the direct result of the February 4, 2011 work event. However, the independent medical examiner opined the herniated disc was not a result of the February 4, 2011 work incident and he based his opinions on the incident investigation report in which Petitioner admitted to not having been injured at work and the initial medical records in which Claimant did not attribute his complaints to lifting, pushing, or pulling at work.


Appellate Court Decision: Respondent’s appeal was based on three arguments: (1) Claimant’s co-worker’s testimony was not credible, (2) the discrepancies between the testimony of Claimant and Respondent’s own witnesses, and (3) claimant’s failure to initially provide the details of his alleged accident to the treating physicians.


In typical Illinois WC appellate fashion, it appears an “accident” was presumed despite the fact no accident appears to have been described in any record—Claimant did his normal work in a normal way. In our respectful opinion, this is a repetitive working claim without any description for the factual basis upon which Claimant might have suffered a severe herniated disc.


Action Items: We strongly recommend obtaining job videos reflecting all of the essential elements of claimant’s job. Identify duration of each task with a breakdown of the typical work-day. No need to have claimant on video however, it is recommended to use a similar size/height individual for the video. Have member of management take the video so they can (1) verify the authenticity and lay foundation and (2) verify the accuracy of the contents of the video as the job duties performed by claimant.


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7-10-2018; Jay Shattuck and State Chamber Reply to Dr. David Fletcher's Comments on IL Senate Bill 904; John T. Bowman and Steve Williams, RIP and more

Synopsis: Jay Shattuck and Our IL State Chamber Reply to Dr. David Fletcher’s Comments on IL SB 904.

Editor’s comment: I received permission to reprint these comments and I am doing so with minimal editing. I will point out Jay Shattuck and IL State Chamber President Todd Maisch are among the sharpest folks in this State when it comes to understanding legislation, in work comp and many other fields. I consider these comments required reading for any doctor, hospital administrator or anyone else who cares about the medical side of IL Workers’ Comp. I encourage my readers to join the IL State Chamber of Commerce that is the leading voice for Illinois business and all taxpayers in Springfield. For more information, visit their website at www.Ilchamber.org.

From Jay Shattuck:

In the recent commentary provided to you and your readers by Dr. David Fletcher, there is little to argue with about his thoughts on the friction in our workers’ compensation system between medical providers and employers paying for medical care. Yes, the court has decided that medical providers do not have a mechanism to collect the 1% per month interest for untimely payment of medical bills and one should be created. Also, there is no justifiable reason for payers to require paper submission of medical bills by medical providers. These seem to be the two main issues that he and many in the medical profession believe need to be remedied to improve the system and retain doctor care for workers’ compensation injuries. What Dr. Fletcher’s commentary and those interests supporting SB 904 fail to explain though is how SB 904 will implement the remedies and the negative impact SB 904 will have on employers responsible for paying of medical services in  our workers’ compensation system.

Like the Greeks were able to fool the Trojans, SB 904 is a Trojan horse piece of legislation. Here’s why:

SB 904 could apply to all medical bills, not just undisputed bills…proponents of SB 904 argued that the changes will only apply to undisputed medical bills meaning that the 1% per month interest penalty would be required on any undisputed bill not paid within 30 days. However, nowhere does SB 904 limit the 1% per month penalty to undisputed medical bills. During legislative debate, legislative intent was offered to clarify that the intent was to limit the changes to undisputed bills. Okay, but any first year law student understands that when a court reviews a statute for its purpose, the court looks at the clear reading of the statute.  If SB 904 is signed into law, here is how the 1% per month penalty subsection will read:

(3) In the case (i) of nonpayment to a provider within 30 days of receipt of the bill which contained substantially all of the required data elements necessary to adjudicate the bill, (ii) of or nonpayment to a provider of a portion of such a bill, or (iii) where the provider has not been issued an explanation of benefits for a bill, the bill, or portion of the bill up to the lesser of the actual charge or the payment level set by the Commission in the fee schedule established in this Section, shall incur interest at a rate of 1% per month payable by the employer to the provider. Any required interest payments shall be made by the employer or its insurer to the provider not later than 30 days after payment of the bill.

 If, the changes in SB 904 were meant to apply only to undisputed bills, why was that not specified in the legislation?

The mechanism in SB 904 to collect the 1% per month is the circuit court… Medical providers argue that circuit court is the appropriate mechanism given the court's familiarity with bill collection issues. That may be true for ordinary business transactions, however the determination of whether a workers' compensation medical bill is compensable is far from ordinary. To decide whether the 1% per month interest penalty is due, a circuit court judge will need to determine whether the bill is for a workers’ compensation injury…is the injury work-related and whether the services were necessary. These are not issues that circuit court judges have expertise. The expertise is found at the Illinois Workers’ Compensation Commission. The initial determination of these issues has been the exclusive purview of the Commission and should remain there.

Arguing these issues at circuit court could prematurely expose the employer's defense arguments, providing an advantage to the petitioner's lawyer and harming the employer's case at the Commission. Also, it is possible that the circuit court could render a decision that is diametrically different than what is determined at the Commission. We believe going to circuit court will lead to more friction and litigation in our workers' compensation system, delaying decisions at the Commission for injured workers and employers.

Instead of circuit court, the Illinois Chamber and other business groups suggested that an award of the 1% per month interest penalty be determined in an expedited process at the Commission. Our proposal also allows a medical provider to petition the Commission and have a decision within 180 days as to whether the 1% per month penalty applies. If the medical provider is unsatisfied with the Commission’s decision, we allow an appeal of the decision to go to circuit court.

 SB 904 could limit access to medical records…Two important change proposed in SB 904 could place significant limits on what records an employer can obtain from a medical provider.

First, during the negotiations of the medical bill payment provisions back in 2005, the employer community was very careful in choosing the word “claim” versus “bill” regarding the requirement for the providing of “substantially all the required data elements necessary to adjudicate the bills” to trigger the 30 day clock. SB 904 in two, critical places changes “claim” to “bill”. These changes could be interpreted to limit records provided by a medical provider to only those needed to adjudicate the bill, (rather than the claim), for the specific services provided by the medical provider. This would trigger the 30 day, 1% per month interest penalty, clock requiring payment before an employer has additional information to determine the cause of the injury, whether it’s a work-related injury, and if the services were necessary.

SB 904 also requires the Department of Insurance to adopt rules to " ensure that health care providers are responsible for supplying only those medical records pertaining to the provider's own claims that are minimally necessary under the federal Health Insurance Portability and Accountability Act of 1996". Employers rely on the ability to access appropriate medical records from treating medical providers to determine causation and whether the injury is work-related. This change allows a medical provider to only provide medical records minimally necessary to pay for the services being billed.  

SB 904 creates new penalties for failure to comply with electronic claims process…A new penalty being sought in SB 904 is adding the 1% per month interest penalty for any reason there is a failure to pay or object to an electronically submitted bill within 30 days. This will add additional confusion as to how and when the 1% per month interest penalty applies.

A second, additional new penalty regarding electronic claims provides an administrative fine of up to $1,000 per each violation, not to exceed $10,000 for identical violations during a calendar year. We believe this is overly punitive and any penalty should be limited to intentional non-compliance or a pattern of failing to comply.

It should be noted that current law does not require a medical provider to submit its bill electronically. If a bill is submitted electronically the payor is obligated to accept electronic claims for payment. The Illinois Chamber has supported electronic billing and electronic payment since its inclusion in the statute in 2005 and believes the time is right to require all transactions to be electronic both from medical providers and payers. 

Illinois Chamber additional suggestions to expedite medical bill payments…We propose adding three provisions to SB 904 to help advance the expediting of medical bills and to reduce friction in the payment process.

  • First, upon receipt of notice of injury, the employer is to provide the employee or the injured employee’s medical provider mailing and electronic addresses to send medical bills to. Adding this step will help prevent medical bills from being sent to improper addresses which results in unnecessary delay of bill payment.
  • Second, an employer is able to timely process medical bills when the bills are submitted to the employer by the medical provider in a timely fashion. To that end, we recommend that a medical provider submit its bill to the employer within 90 days of providing its service to the injured worker.
  • Finally, we recommend that an employer providing a compliant utilization review report has a rebuttable presumption that the 1% per month interest penalty does not apply to the services covered in the utilization report. This will incentivize a medical provider to cooperate with the employer in what is authorized and will reduce the friction caused when payment is sought for unauthorized services.

Dr. Fletcher indicates a crisis is at hand for medical providers in receiving medical payment for services provided in workers’ compensation. The Illinois Chamber hears his words and we agree medical care is a strong determinant of whether the injured worker is able to return to work, the timeliness of the return to work, the need for future medical care, and the impact on disability and indemnity costs to employers. However, SB 904 is not the solution and could dramatically tip the balance in favor of medical providers in a system where Illinois has the second highest medical fee schedule in the country for overall professional services and the highest in the country for major surgery services. SB 904 as sent to the Governor also will diminish an employer's ability to determine causation and whether an injury is work-related.

To show our good faith in solving the two issues Dr. Fletcher points out needing to be addressed, the Illinois Chamber and other business groups had SB 3617 and HB 5910  introduced at the end of May. As we said during the closing weeks of the Spring session when SB 904 was amended with the Illinois State Medical Association’s language, we are prepared to solve their issues with legislative changes that work for them as well as the employer community.

As your editor, I appreciate your thoughts and comments. I am happy to pass them along to both Jay Shattuck and Dr. Fletcher. Please also post them on our award-winning blog.

Synopsis: Steve Williams and John T. Bowman, RIP.

Editor’s comment: The IL WC community was mildly stunned to recently hear of the passing of these two stalwarts of our industry. John Bowman was a long-time friend and colleague of mine and will always be missed. I still remember his battles with a former law partner that I believe went all the way to the IL Supreme Court.

Steven Robert Williams was the son and law partner of the venerable Bob Williams at Williams and Swee—they were both fixtures at the Bloomington IL WC call for decades. Steve and I didn’t always agree but we did have great respect for one another. He left us much too early in his mid-40’s.

KCB&A sends our condolences to their friends and families.

7-2-2018; Janus Ruling Issued by SCOTUS; What Does It Mean to Workers’ Comp?; Lilia Picazo, J.D. on Important Exclusive Remedy Ruling; Matt Wrigley J.D. on Change to Michigan Application and more

Synopsis: Janus Ruling Issued by SCOTUS; What Does It Mean to Workers’ Comp?


Editor’s comment: I have a relative who is a school teacher. He told me his School District had a union for teachers but he didn’t feel they were effectively representing him and his fellow teachers. So, while he never joined the union, he was still required by law to pay “fair share” dues to the union. On their side, the unions did participate in collective bargaining and my relative got whatever benefits the union obtained for their dues-paying members.


If you aren’t sure, that was the issue presented to the U.S. Supreme Court in their Janus ruling—could government workers who don’t join government unions still be required to support the unions with “fair share” dues payment? Last week, our highest Court ruled such workers can no longer be required to make such payments if they don’t want to be in the union.


What does this mean to our country and more specifically, the State of Illinois? Well, I personally consider it a good thing. In my personal view, government unions have always been a bad idea. Believe it or not, one of the first folks to notice this problem was President Franklin Roosevelt. It was President Franklin Roosevelt’s judgment “the process of collective bargaining, as usually understood, cannot be transplanted into the public service.” In private-sector bargaining, unions contest management concerning the distribution of companies’ profits. In the public sector, government gets its revenues from a third party — you and I as taxpayers.


Allowing government unions to thrive and grow makes for high government salaries and benefits, like the fake and unfundable pensions many former IL government workers receive and are already crushing State, County and local gov’t budgets. I also feel most gov’ts in this State are vastly overstaffed due in part to government unions—this also adds to costs and high taxes.


Here are a couple of thoughts about government unions in this State:


  • Forbes reported more than 30,000 Illinois teachers and retirees receive over $100K a year in compensation at an annual and ever-rising cost of $3.7B to taxpayers. Please note these retirees are guaranteed 3% annual compound increases that will double then quadruple their retirement pay if they live long enough (someone said such retirees are on a “fixed income”—not when they get guaranteed annual increases!)




  • Every day of every year, Cook County Sheriff Tom Dart has to deal with 7 government unions—that is for just one County Department. That means Cook County administration may have to deal with 50-100 or more government unions.


  • All of these IL gov’t workers vote with consistency and with one thought in mind—keep my pay, healthcare and benefits! No one seems to care about taxpayers—we have the highest combined income, real estate and sales taxes in the U.S. As fewer and fewer normal citizens vote, the impact of the thousands of gov’t-workers-voting-to-keep-or-increase-benefits has completely skewed our State, County and local governments away from efficiency and effective governance to enriching government workers.


What Does the Future Look Like for Workers’ Comp After Janus?


The defense team at KCB&A is sure there will be a decline in union membership following this ruling. Unions, like all entities, need money to operate, maintain and grow. The estimates I have seen indicate there may be 5.5 million workers who won’t have to continue to make “fair share” payments. That is a lot of money for gov’t unions to rapidly lose. The U.S. Supreme Court's decision in Janus continues the trend in the private sector, where more and more states have passed laws outlawing all forms of mandatory union dues. Currently, 28 States have laws that make it illegal to require workers to join a union or pay related fees as a condition of employment. But some of those state laws affect only the private sector. The Janus ruling will financially challenge all public-sector unions in the remaining states that allowed compulsory fees. We are sure this decision will lead to a further decline in the percentage of the American workforce that is unionized.


I assure my readers lots of Claimant lawyers live off those millions paid to gov’t workers for work comp benefits. If you are familiar with IL State Gov’t’s and Chicago’s WC programs, you will note literally millions are spent and misspent in managing and mismanaging those defense programs. You might think the jobs are “dangerous” due to the high level of “accident” claims and the higher level of attorney involvement. I don’t feel that is the case at all.


In my view, there is a very high level of involvement of Plaintiff-Petitioner lawyers due, in part, to contributions made to union stewards and friendly politicians. I make the rough estimation both gov’ts each spend about $150M a year in WC benefits—if all those benefits are paid at a 20% statutory clip to Plaintiff-Petitioner attorneys, that is $60M in fees!


One of my favorite stories was a successful Plaintiff lawyer who finally got the chance to make a presentation to a gov’t union local. When he got there, he was mildly stunned to learn he was the 23d Plaintiff-Petitioner lawyer presenting that day. Everyone of the presenters was expected to make a “contribution” to someone to get to the dais. Less money for unions may mean fewer lawyers involved in union claims.


Please also note some of the corruption in IL WC in years past was due to the shenanigans seen in the southern IL jails where unionized prison guards and lots of other gov’t folks, including at least one Arbitrator, were making bogus carpal tunnel syndrome claims. The guards were claiming the malady was from turning keys in locks and driving supposedly reluctant state vehicles. Lots of private workers started to make similar bogus claims—we felt this caused a major southern IL ammunition manufacturer to move their operations out of our state. Someone later put the kibosh on this silly stuff but it still shows you the gov’t sector can somewhat “poison” the private sector in IL WC.


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Synopsis: IL Appellate Court Affirms Trial Court Order to Bar Plaintiff’s Common-Law Negligence Claim Against a Coworker Based on the Exclusive Remedy Provisions of the WC Act. Analysis by Lilia Picazo, J.D.


Editor’s Comment: In Peng v. Nardi, 2017 IL App (1st) 170155, the Illinois Appellate Court affirmed a trial court’s order dismissing Xiao Ling Peng (“Peng”) negligence claim against co-worker Lei Guan (“Guan”) for injuries sustained as a result of a 3-car collision.  


In June of 2014, Peng and Guan worked at a restaurant located in Hoffman Estates, Illinois. The employer provided Guan keys to a Ford passenger van to transport himself and other employees to and from the restaurant. The employer also paid Guan $600 a month for his driving duties and covered the cost of fuel. Guan was prohibited from using the van for personal use. He was prohibited from letting any other employee drive the van.


The employer initially told Guan where to pick up new employees, but Guan later chose the pickup and drop-off locations. Guan also chose the route to and from work based on Chicago traffic conditions.


On June 20, 2014, Peng was a passenger in the van when it was involved in a 3-car collision on northbound I-90. She suffered an injury to her hip. Peng filed a negligence suit against Guan and the two other drivers involved in the collision. Peng also filed a WC claim. The employer’s WC insurance carrier paid portions of her medical bills.


The trial court initially denied Guan’s motion to dismiss, but later granted Guan’s motion to reconsider and eventually dismissed Peng’s claims against him. The trial court found Guan was protected from liability in the common-law negligence action pursuant to the exclusive remedy provisions of the Illinois Workers’ Compensation Act.


Peng appealed arguing she was not in the course of her employment at the time of the collision. She also argued she filed a WC claim to protect her rights as the statute of limitations was approaching.


In affirming the trial court’s decision, the Illinois Appellate Court noted accidents generally occurring during travel to and from work are not considered to have arisen out of or in the course of employment under the exclusive remedy provisions of the Act. An exception exists; however, when the employer controls the means of transportation or method of transportation, thereby extending the risk and course of employment. The court explained Peng renounced control of her travel to and from work when she rode in the employer-owned and controlled vehicle driven by Guan.


Therefore, the court concluded the workers’ compensation system provided Peng exclusive remedy for her injuries against Guan and the employer as the accident occurred while Peng was in the course of her employment.


We want our readers to be aware that by providing company-controlled vehicles or transportation to and from work to employees may increase liability under the WC Act.


This article was researched and written by Lilia Picazo, J.D. You can reach Lilia 24/7/365 for questions about general liability, employment law and workers’ compensation at lpicazo@keefe-law.com


Synopsis: State of Michigan Revises Application For Mediation or Hearing – Form C. Research and analysis by our Michigan Defense Leader Matthew Wrigley.


Editor’s Comment: Michigan Department of Licensing and Regulatory Affairs (LARA) has revised Form WC-104C to include a checkbox to add any “non-employer entity.”


Prior to this revision Claimants were able to add a second employer but no mechanism was in place to add a separate entity as a party. The revised form will allow Claimants to more easily indicate their intentions and will aid LARA in the processing of such claims. All parties requesting mediation or hearing may commence using this form immediately.


We note Claimants who wish to settle for a lump sum cash payment must request the Workers’ Compensation Agency (WCA) file be sent from Lansing, the state capitol, to the appropriate hearing site. The assigned Magistrate will determine whether the settlement is just and proper. Form WC-104C is used to streamline the file request procedure and the box “Redemption Only” should be checked. Many claims involve disputes over medical care and such issues can sometimes be resolved through an informal telephone mediation process. Each party is provided an opportunity to discuss relevant issues and seek resolution. It is anticipated this will be more frequently utilized in disputes involving new opioid treatment rules.


This article was researched and written by Matt Wrigley, J.D. You can reach Matt 24/7/365 for questions about general liability, employment law and workers’ compensation at mwrigley@keefe-law.com