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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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