11-7-2016; Addressing Problems with PTSD/Psych Claims in WC/Employment Law; Jim Egan on New LHWCA Penalties; Matt Ignoffo on Anti-Fraud Efforts in Cheeseland and more

Synopsis: Major Problems with Defending PTSD in Your Work Comp Claims in Illinois and Across the U.S.


Editor’s comment: Earlier this year, I wrote a rather controversial article about the IL Appellate Court’s unprecedented ruling in Moran v. IWCC where Claimant was a firefighting official who became upset and was diagnosed with PTSD for his role in managing a live fire where an officer under his direction died in an unfortunate “blow-over” during the blaze. My main concern is PTSD may be very difficult to verify, diagnose and treat. I also feel literally every single firefighter, EMT and police officer for the Village of Homewood—or your home town—could make a difficult to defend PTSD claim any time a different officer is seriously injured or killed in the line of duty. I can foresee entire departments walking off the job and seeking expensive taxpayer paid disability benefits. If you need help with a difficult/demanding PTSD or psych claim, send a reply—I am happy to assist, as needed.


Please also note Fire Lieutenant Moran would be entitled to about $400,000-500,000 in TTD for the periods he was off all work litigating the claim—the event occurred in year 2010 and TTD would be owed for those six years and continuing. We aren’t aware the Village brought him back to work in any other capacity. Without being certain, we also assume former Officer Moran would be claiming an inability to work in any capacity due to PTSD.


Police/Fire Disability Pensions In Illinois Reek of Politics and Abuse


If you think I am kidding about the battle going on between government and hapless taxpayers in this nutty state about abuse of disability pensions, take a look at this wonderful article from the Chicago Sun-Times where they report how the City of Chicago has finally started to fight back to get their police and firefighters off of disability, then back to some kind of work and off our dole:


Sun-Times Watchdogs 11-4-16


If you read the article, you will also note there is litigation moving to the very liberal IL Appellate Court that may issue “activist” rulings to allow police and firefighters to remain on the dole, living off our tax dollars when they clearly can and should be working at some sort of government job. The Appellate Courts in this state already provided such largesse for a police officer who felt threatened and may have what he claims is a lifetime of psych issues from feeling threatened by a troubled individual holding an orange-tipped toy gun!


Please also note if a police officer or firefighter in other states is caught working while on disability, it is considered a crime and they are prosecuted. In this nutty state and our biggest city, no one but the taxpayers care if a police officer/firefighter is working while on disability. In our view, our politicians could care less because a police officer or firefighter on disability becomes a loyal precinct worker to insure they keep getting benefits for NOT working.


What Is Another Major Issue for the Work Comp Defense Industry in Managing PTSD Claims?


In our view, we are going to start to see and have to defend more and more work comp PTSD and other psych claims. I am certain some Claimant attorneys and friendly psychiatrists may start coaching claimants to make such claims or add these issues to existing claims due to the potential for income and the difficulty of defending them.


What is the preliminary problem with defending a PTSD claim—we can’t use a typical HIPAA-GINA compliant release to get PTSD treatment records and bills. In Illinois and most states, there are psych confidentiality laws. In Illinois the applicable legislation is called the Illinois Mental Health and Developmental Disabilities Confidentiality Act


The Illinois Mental Health and Developmental Disabilities Confidentiality Act or IMHDDCA outlines methods for handling mental health information and records. The IMHDDCA defines confidential communications, provides directions for access to and disclosure of mental health information, creates privileges, and provides for civil and criminal penalties for breach of its provisions. The underlying basis for the provisions of the IMHDDCA is found in the general statement: “All records and communications shall be confidential and shall not be disclosed except as provided in this Act.”


In short, a typical IWCC or Commission subpoena isn’t going to work. Even with a HIPAA-GINA compliant release, you aren’t going to get records and bills from a psych provider. In our view, if you are an adjuster or attorney defending a PTSD claim, make sure to tell Claimant’s counsel if they are making a PTSD or psych claim, you can’t address or pay any benefits, indemnity, medical or otherwise unless and until Counsel or claimant brings you the certified records of psych care.


Understanding/Defending PTSD and Other Psych Claims


PTSD is a serious disorder that results from the experience of a traumatic, life-threatening event, such as war-time combat or other extreme trauma. Those afflicted with PTSD may experience potentially debilitating long-term suffering as a result. However, the diagnosis is increasingly invoked by Plaintiffs/Petitioners who allege PTSD caused by even relatively mild alleged workplace discrimination or retaliation. While attorneys who specialize in representing employers in work comp and employment litigation are well-accustomed to defending generalized claims of emotional distress, a PTSD diagnosis poses unique litigation risks. By following practical strategies geared specifically to defending PTSD claims, defense counsel can help manage those risks.


The Criteria For a Bona Fide PTSD Diagnosis


There is a high threshold for a bona fide PTSD diagnosis. The authoritative reference on psychiatric disorders, the Diagnostic and Statistical Manual of Mental Disorders (“DSM”), provides a specific set of diagnostic criteria for PTSD that includes, for example,“[e]xposure to actual or threatened death, serious injury, or sexual violence.” The DSM describes the “essential feature” of PTSD as “the development of characteristic symptoms following exposure to one or more traumatic events.” The DSM provides a non-exhaustive list of examples of traumatic events that includes exposure to war, threatened or actual physical assault or intimate violence, being kidnapped or taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human-made disasters and severe car accidents.


The Prevalence of PTSD Claims in Work Comp and Employment Cases


Despite the specific, rigorous diagnostic criteria for PTSD, it has now become common for Plaintiffs/Petitioners to claim PTSD in work comp and employment litigation with little regard for whether these criteria are legitimately met. In some cases, a treating mental health professional makes the diagnosis, sometimes with little or no true expertise in the area of PTSD.


Alternatively, a plaintiff may self-diagnose — perhaps with prompting by counsel — and then find an expert who will support the diagnosis in the litigation. In any and every work comp claim there is almost always a psych stressor—the work accident. Even plaintiffs with admittedly mild symptoms, or who attend no more than a few therapy sessions, may nevertheless claim to have suffered PTSD. As risk managers, adjusters and defense counsel, it is critical to learn to distinguish the genuine PTSD claims, such as those that might result from serious bodily injury or intimate/personal violence in the workplace for example, from those that simply do not meet the diagnostic criteria.


Risks Posed by PTSD Claims


A PTSD diagnosis can significantly increase the exposure presented by a work comp claim. Plaintiff’s counsel may try to use the PTSD diagnosis to extend Petitioner’s emotional distress indefinitely into the future, and thereby to increase benefits. For example, Petitioner’s counsel may argue as a result of PTSD, Petitioner will now experience a lifetime of “triggers,” or experiences that remind the plaintiff of the alleged discrimination, and cause him or her to re-experience symptoms.


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Synopsis: For Longshore Claims Folks--U.S. Department of Labor Increases Penalties to Catch Up to Federal Civil Penalties Inflation Act of 1990, analysis by James Egan, J.D.


Editor’s comment: The Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act) requires agencies to adjust the levels of existing civil monetary penalties with an initial catchup adjustment, followed by annual adjustments for inflation. To implement the Inflation Adjustment Act, the Department of Labor published a department-wide interim final rule (IFR) adjusting its penalties for inflation for all civil penalties assessed after August 1, 2016.


The Inflation Adjustment Act affects penalties as outlined below:


Section 14(g) of the LHWCA: Failure to Report Termination of Payments—the penalty has increased from $110 to $275. Section 14(g) now states as follows:


Any employer failing to notify the district director that the final payment of compensation has been made as required by § 702.235 shall be assessed a civil penalty in the amount of $275 for any violation for which penalties are assessed after August 1, 2016. The district director has the authority and responsibility for assessing a civil penalty under this section.


Section 30(e) of the LHWCA: Penalty for Late Report of Injury or Death—the maximum penalty amount has increased from $11,000 to $22,587. Section 30 (e) now states as follows:


Any employer, insurance carrier, or self-insured employer who knowingly and willfully fails or refuses to send any report required by § 702.201, or who knowingly or willfully makes a false statement or misrepresentation in any report, shall be subject to a civil penalty not to exceed $22,587 for each such failure, refusal, false statement, or misrepresentation for which penalties are assessed after August 1, 2016. The district director has the authority and responsibility for assessing a civil penalty under this section.

When assessing this penalty, the District Director considers how many penalties, if any, have been assessed against the employer in the previous two years. A graduated penalty schedule is then consulted as outlined below. However, the District Director has broad discretion to increase or decrease the amount of the penalty assessed based on aggravating or mitigating factors. The District Director also considers whether the employer is considered to be a small business as defined by the Small Business Regulatory Enforcement Fairness Act when determining the penalty amount.


Graduated penalty schedule as of August 1, 2016:


1.         •   1st late report: $500

2.         •   2nd late report: $1,000

3.         •   3rd late report: $2,000

4.         •   4th late report: $4,000

5.         •   5th late report: $8,000

6.         •   6th late report: $16,000

7.         •   7th late report (& above): $22,587 (statutory maximum)


Section 49 of the LHWCA: Discrimination Against Employees Who Bring Proceedings—the penalty amount has increased from a $1,000 minimum and a $5,000 maximum to a new minimum of $2,259 and a maximum up to $11,293. Section 49 now states as follows:


Any employer who violates this section, and has penalties assessed for such violation after August 1, 2016, shall be liable for a penalty of not less than $2,259 or more than $11,293 to be paid (by the employer alone, and not by a carrier) to the district director for deposit in the special fund described in section 44 of the Act, 33 U.S.C. 944; and shall restore the employee to his or her employment along with all wages lost due to the discrimination unless the employee has ceased to be qualified to perform the duties of employment.


The penalties are outlined in detail in Industry Notice 158, which is available on the Office of Workers’ Compensation (OWCP), Division of Longshore and Harbor Workers’ Compensation (DLHWC) website.


This article was researched and written by Jim Egan, J.D. our Longshore and Jones Act guru. If you need help with any Longshore or Jones Act claim, reach out to Jim at jegan@keefe-law.com.



Synopsis: The Wisconsin Department of Workforce Development strengthens and streamlines the ability to report WC fraud!!! News and analysis by Matt Ignoffo, J.D., MSCC.

Editor’s Comment: The generally excellent DWD website was made even better recently as it now includes the ability to fill out an email web form when WC fraud is suspected.

The new anti-fraud form can be viewed here. Our research finds the suspects for the reported fraud may be employers, insurers, providers, or workers.

The DWD indicates, generally, it will refer the matter to an insurance carrier for investigation. See Section 102.125 of the Wisconsin statutes.

The carrier will be required to report back to the Department the results of its investigation. However, an insurer is not required to report back until it is satisfied that making the results of investigation known to the Department will not hurt its ability to handle the workers’ compensation claim.

It appears the individual reporting the possible fraud can remain anonymous, but providing contact information may be “very helpful.” If contact information is provided it will not be public, but may be available to the parties involved in the alleged workers’ compensation claim.

Based on the results of the insurer's investigation, the Department will make a decision about whether there is a reasonable basis to believe fraud has occurred. If so, the Department will refer the case to the Wisconsin Department of Justice or local District Attorney for prosecution. An assistant attorney general or the local District Attorney must then decide whether to start criminal proceedings.

It would appear that this updated process is in line with Governor Scott Walker's signing of legislation authorizing a special prosecutor for WC fraud.

Governor Walker signed 2015 Wisconsin Act 180, which includes funds to support a position at the Department of Justice to investigate and prosecute WC fraud.

This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C. (Medicare Set-Aside Consultant Certified) licensed in IL and WI who can be reached at mignoffo@keefe-law.com.