1-9-2018; Will IL WC Wage Differential Claims Disappear for Low-Medium-Level Workers?; Will IL, IN, WI, MI and IA Work Comp Systems Ever More to Virtual Hearings; New IRS Mileage Rate and More

Synopsis: Will IL WC Wage Diff Claims Disappear for Low and Medium Wage Workers?


Editor’s comment: We have been asked repeatedly about Illinois workers’ comp odd concept of wage differential benefits. I have attacked/criticized this concept repeatedly during my years as a defense attorney. The problem with wage differential awards is the concept strongly encourages malingering, hiding and other balderdash by injured workers to get on the gravy train.


Here is how that works. You have an injured worker who has to be able to occasionally lift up to 75lbs to do their job. There is no dispute they unfortunately blow out a shoulder in a job that pays them $11 an hour. The worker gets shoulder surgery and ends up with a 40lbs. lifting restriction. Thereafter the injured worker disappears from sight.


Some Claimant attorneys in this nutty State will ask for total and permanent disability benefits, asserting the worker cannot return to the prior job due to the post-accident work restriction. Most Arbitrators and Commissioners, in pretrial settings, will quickly put the kibosh on T&P awards/settlements because the money is simply too high and the outcome egregious because the worker will be asking for lifetime benefits at our high minimums and maximums for T&P awards plus our goofy Rate Adjustment Fund benefits. It is not impossible for exposure on a mid-range IL WC T&P claim to exceed $2M. That is wildly high for a worker who simply had one operation to one shoulder! Most hearing officers balk at such claims.


Plan B for some Arbitrators and Commissioners are wage differential awards. Some of the hearing officers will say Claimant can and should be making “minimum wage”—the current federal minimum wage is fairly low at $7.25 per hour. There is no sign the federal minimum wage is going up under the current conservative folks in the White House and U.S. Congress. Since Claimant has disappeared and no one knows if he/she has a job, the Arbs and Commissioners will “impute” a minimum wage job to the worker and argue the worker should get the benefit of hiding to receive wage loss diff benefits.


In the case of the worker above, they were making $11 per hour and “imputing” a $7.25 per hour minimum wage would entitle the worker to wage diff of $100 a week or $5,200 a year. For a 25-year-old worker with a 50 year work expectancy, they could receive an award worth $260,000. Most folks, including me, consider that a LOT of money for a single operation to one shoulder.


New IL Minimum Wage Never-Ending Increases May End Wage Diff for Mid and Low-Paid IL Workers


Please note the next Illinois state-wide election is in 11 months. All Democratic gubernatorial candidates have signed off on a minimum wage of $15 per hour or $600 a week. If a Dem wins and gets into the Governor’s mansion, the IL minimum wage will almost certain rise dramatically within a month of the election.


Cook County raised their minimum wage to $10 an hour on July 1, 2017. The wage rises to $11 on July 1, 2018 and to $12 in July 2019. It hits $13 an hour in 2020, and subsequent annual increases will be at the rate of inflation, not to exceed 2.5 percent. The suburbs will be a year behind the city, which will reach $13 an hour by July 2019.


The City of Chicago's ordinance already raised the hourly minimum wage to $12 in 2018, and $13 in 2019, indexed annually to the Consumer Price Index (CPI) after 2019.


So jobs in Chicago are at no less than $480 a week right now and $520 in one year and should continue to rise basically forever. It mildly boggles the mind on how an Arbitrator or Commissioner can accurately ascertain the values of Section 8(D-1) benefits when the amounts of future wages are certain to increase and may eventually double based on legislatively required increases in the minimum wage based on the CPI.


In short, wage loss for middle and low wage workers appears to be ending. For IL WC Arbitrators and Commissioners, it would be challenging to “set” a wage diff award, as the minimum wage is going to be spiral for the rest of the lives of all IL workers.


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


Synopsis: Will IL, IN, WI, MI and IA Workers’ Comp Systems Ever Move to “Virtual WC Hearings?”


Editor’s comment: As I have told my readers repeatedly, IL Workers’ Comp adjudication costs are very high for a State of our size. Everything also moves very, very slooooooooowwww. We also have more hearing officers than any of our sister States. The State of Illinois, as one of the five states where KCB&A provides great defense work, remains reluctant to implement Virtual Hearing technologies to streamline hearings and save money.


Disputed IL WC claims can be torturous to litigate for the defense--we have lots and lots of defense clients who truly cannot stand coming to IWCC arbitration hearings to sit around all day and then find out their contested claim is continued. This is even tougher with a contested claim and lots of defense witnesses—no one wants to take a number of supervisors away from their work sites to sit and sit and do nothing. Our clients would love to have virtual hearings set by the hearing officer and proceed online as planned.


We recently became aware the State of New York has moved to Virtual Hearings to prevent long auto drives, insure hearings are actually conducted and save lots of extra unneeded expense. We consider this concept a model for all states to follow.


Take a look at this link: http://www.wcb.ny.gov/virtual-hearings/


You will learn New York WC Virtual Hearings allow injured workers, attorneys/representatives, witnesses and other participants to attend hearings online. Participants will no longer have to travel to a hearing site to attend their hearing.

Virtual Hearings will be rolled out gradually to districts throughout New York State after the successful completion of the Board's Virtual Hearing pilot.

When a New York citizen, attorney or witness is eligible to attend a hearing virtually, they will see a notification of "Virtual Hearing Available"  at the bottom of your hearing notice, along with detailed instructions.


Virtual Hearings for Claimants


To take part in a New York Virtual Hearing, they must:



How they attend a Virtual Hearing


1.      Enter their Hearing ID, first name, last name and email address; select continue

2.      Select their Role

3.      Wait for the hearing to be called


Webinar Virtual Hearing Training


The New York WC Board is hosting a series of webinar training sessions for attorneys and representatives to provide instructions on how to attend their hearings virtually, as well as how to use the new check-in procedure when appearing in person.


Virtual Hearings for Witnesses and Other Participants



We hope the powers-that-be get moving on using technology to streamline hearings, save money and bring our WC systems to the 21st Century. We appreciate your thoughts and comments. Please post them on our award-winning blog.




Editor’s comment: On December 14, 2017, the Internal Revenue Service released the optional standard mileage rates to use for 2018 in computing the deductible costs of operating an automobile for business, charitable, medical or moving expense purposes.. Beginning January 1, 2018, the standard mileage rates for the use of a car (including vans, pickups or panel trucks) will be:

•54.5 cents per mile for business miles driven—this rate is used for IME’s or what some call Section 12 examinations.

18 cents per mile driven for medical or moving purposes

•14 cents per mile driven in service of charitable organizations

The standard mileage rates for business, medical and moving purposes are based on an annual study of the fixed and variable costs of operating an automobile. The business mileage rate and the medical and moving expense rates each increased 1 cent per mile from the rates for 2017. The charitable rate is set by statute and remains unchanged.


Synopsis: The KCB&A Monday Law Updates are archived on the KCB&A blog!

Editor’s comment: If you are looking for any article previously written in this update, or just want to browse through a host of insightful articles dealing with our Illinois Comp system, stop on over to KCBA Blog and take a look. The blog currently includes archived articles dating back to August 2008.

Synopsis: Another of Gene’s Friends Publishing an Amazing New Book—take a look online at www.ShellyKewWrites.com!!