12-28-15; How Can The IL WC Business Community Disagree More?; Shawn Biery & Matt Ignoffo on SMART Act Change; New IRS Mileage Rate for IL WC IME's and more

Synopsis: Another IL WC Appellate Court “Activist” Stunner—How Can the IL WC Business, Gov’t and Insurance Community Disagree More?


Editor’s comment: In Oliver v. Illinois Workers' Compensation Comm'n, issued December 18, 2015, Claimant worked for an IL construction employer for only three days. His supervisor saw him on all three days and noticed nothing unusual about Claimant during the entire time he worked for the company.


Several days after being laid off, Claimant called his supervisor and surprised the supervisor to tell his boss he was seriously injured while working for the company. As a business observer, one would start to smell the WC equivalent of the proverbial “rat.”


The matter was tried before former Arbitrator Kinnaman who awarded about 12 weeks of lost time, about $20K in medical bills and 20% LOU arm. She also imposed penalties and fees against the employer, asserting there was no basis for disputing the claim. With respect to former Arbitrator Kinnaman who still receives this KCB&A Update, we disagree with the award of penalties/fees.


The matter was then administratively appealed to the IWCC and former Commissioner Dauphine headed the three-member panel who affirmed the award of lost time, medical bills and permanency. They carefully considered the claim and reversed the award of penalties/fees.


The Cook County Circuit Court judge re-imposed section 19(k) penalties and Section 16 attorney's fees against employer for what the Court felt was a deliberate refusal to pay TTD solely based on Petitioner Oliver having reported work accident 6 days after accident rather than on date of accident, as the employer required. The Court noted our IL Worker's Compensation Act allows employees 45 days to report an accident. As we report above, the 5-member Appellate Court, WC Division unanimously affirmed.


The Circuit and Appellate Court indicated their sole focus was on the employer's policy to not pay TTD benefits if a work accident is not reported on day it occurs is unreasonable, given Act's allowance of 45 days to report and also given their view some injuries do not manifest themselves until some point after the alleged accidental event occurs.


As veteran defense attorneys and commentators on behalf of IL business, insurance and employers community, we strongly object to the imposition of penalties/fees in a claim such as this one. In our view, there are so many question marks and uncertainties in this claim we consider it a liberal ruling to award Claimant a dime. We do not know if the defense firm that handled this claim did a solid job at hearing because there are many issues that arise from our review of the Appellate Court’s order.


Here are just a few of our concerns:


1.    Claimant testified he was working on a small barge welding when injured. The work was being performed above the water in Belmont Harbor—from the description, we are sure he was over navigable water while working. It appears this claim isn’t an IL workers compensation claim but a federal Longshore Harbor & WC Act claim—a motion to dismiss should have been brought for that reason. Actually, a motion to dismiss for lack of subject matter jurisdiction by our IWCC can be made right now.

2.    Petitioner Oliver only worked for this employer for three days. As any staffing risk manager will tell you short term workers are much more likely to file questionable claims than long-term workers.

3.    The supervisor was present on the job site all day on the date of claimed loss. The supervisor testified under oath he didn’t notice any medical issues with Claimant at all during the entire day. Petitioner admits he didn’t say a word about the event to his supervisor on the job site on that day. By themselves, these facts clearly presented a basis to deny the claim-it is our view, the Circuit and Appellate Court rulings completely disregard and discount these undisputed facts.

4.    Claimant asserted he smashed his elbow and arm when he recoiled and hit his elbow on a steel wall—despite claiming he yelled in pain, he asserted he didn’t want to report every bump and bruise. He admits he had no demonstrable outward indication of an injury while on the work site.

5.    Claimant also admits he received no first aid, emergency or other medical care on the date of loss.

6.    Petitioner admits he performed his normal job in a normal way without any restriction, job change or assistance.

7.    Petitioner claims this disputed event occurred on a day he knew the job was shutting down and he would be out of work—similar to number 1 above, there are lots more questionable claims filed on the eve of a layoff.

8.    Claimant testified to a supposed witness—the testimony about the witness was clearly hearsay. We are not sure if any objection was made at the time the testimony was offered before the Arbitrator. If an objection was made, the testimony should have been stricken and not considered by any hearing officer or judge/justice.. If no objection was voiced, the defense attorney should be criticized for not making it. Either way, such testimony about “what someone else saw or heard” is not reliable or supportive of an accidental injury.

9.    Petitioner had an undisputed and longstanding pre-existing condition in his arm. There is no question he filed an earlier IL WC claim for the same condition alleged in this claim. He received a hefty settlement from that earlier claim.

10. Because of the pre-existing and longstanding problems with his arm and elbow, it is possible Claimant suffered a failure or tear in his elbow at an earlier date during normal work.  Having felt that problem arise, he became the WC equivalent of a “ticking time bomb” wanting to take advantage of his malady to get the problem repaired and benefit from IL WC PPD values. The best way to “create” such a claim would be the fashion in which this claim unfolded.


The Last Statement by the IL Supreme Court to the Lower Courts—Don’t Flip IL Work Comp Commission Outcomes


We remember Sisbro and Twice Over Clean which comprise two definite legal statements from our highest court that bounced around the IL reviewing courts for years. In those rulings, the Supreme Court made it clear the reviewing courts are not supposed to reverse or “flip” an IWCC outcome simply because the reviewing judge/justices feel there might be a better outcome with their view of the facts.


Actually, since the Supreme Court issued the rulings above, we have yet to see a single award of IL WC benefits reversed to impose a denial. Instead we have seen numerous Circuit and Appellate Court rulings where denials are reversed to maximize awards and benefits, like this ruling.


Please note Claimant Oliver received approximately $75K in IL WC benefits. He received that money after the IWCC ruling came out years ago. His lawyers did a solid job in getting him the monies due. We feel our “activist” courts should have left well enough alone and let Claimant Oliver


·         Pay his own legal fees and

·         Not received the “bonus” of two different types of IL WC penalties, as the IWCC turned those down.


The Clear Message to U.S. Risk Managers from This Ruling—Don’t Rely on Same-Day or 24-hour Accident Reporting as the Sole Basis for Denial


We have a number of clients and readers who have same-shift or 24-hour accident reporting requirements for all workers. There are unions who support this concept and will allow disciplinary actions including suspensions and terminations for failure to report any event involving pain or medical problems. You don’t want anyone to say they tried to “tough it out” to then bring a major WC claim.  As most folks have cell phones, they can and should be required to text or call with any medical issue of any kind. We support what we feel is state of the art accident reporting protocols. If you want thoughts and guidelines on how to best implement same-shift or 24-hour reporting, send a reply.


The mistake this employer, or at least the one supervisor made and for which they have to be cautioned is the supervisor’s refusal to take a statement or allow a report of the event due to the lateness of reporting. In our view, they did the “ostrich in the hole” approach to accident investigation—they refused to allow the claim to be reported or investigated due to the lack of timeliness in reporting. The opposite approach should have been taken.


A late reported event should put up a giant red flag to your managers. Such an work accident report needs to be completed with follow-up inquiries to all supervisors and co-workers. Witness statements should be obtained. Surveillance or security camera footage should be sought and preserved. Management review should be completed.


The only thing you don’t want to do is what happened in this claim. Refusal to record or investigate a work injury claim because it was late reported is a crucial mistake that needs to be avoided. The work injury claim doesn’t “disappear” because you don’t investigate. Actually, it will probably come back to bite you. Don’t get bit!!


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




Synopsis: Conditional Payment Process for Medicare In U.S. WC Gets Easier ??? Thoughts and analysis from Shawn Biery, JD, MSCC and Matt Ignoffo, JD, MSCC.


Editor’s comment: As part of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act), the MSPRP will be modified to include Final Conditional Payment process functionality by January 1, 2016. This new functionality will permit authorized MSPRP users to notify CMS that a recovery case is 120 days (or less) from an anticipated settlement and request that the recovery case be a part of the Final Conditional Payment process. After January 1, 2016, settling parties will be able to obtain a Final Demand prior to settlement if CMS is notified 120 days or less that settlement is anticipated. It should also be noted that the SMART Act provides that CMS must be given at least 65 days’ notice prior to the settlement, judgment or award.


As far as the nuts and bolts go, it will be triggered when the Final Conditional Payment process is requested, any disputes submitted through the MSPRP will be resolved within 11 business days of receipt of the dispute. Once all disputes have been resolved, and the case is within 3 days of settling, the beneficiary or their authorized representative will be able to request a Final Conditional Payment Amount on the MSPRP.


Once calculated, this amount will remain the Final Conditional Payment Amount as long as:


·         The case is settled within 3 calendar days of requesting the Final Conditional Payment Amount, and

·         Settlement information is submitted through the MSPRP within 30 calendar days of requesting the Final Conditional Payment Amount.


You can probably see that a number of problems arise specifically when you consider the inability to meet with a sitting Arbitrator in many venues within 3 calendar days, so in practice this does not appear to be a significant help in WC Claims—however it certainly gives a better option to lock in certainty in value if you can move so quickly. We consider it ironic that CMS has such a narrow time period for completion of settlement—especially when you consider that this last piece of the SMART Act to be implemented was supposed to be available 9 months after the SMART Act’s implementation (October 10, 2013).


Overall, we hope this development will be helpful in finding certainty in settlements where conditional payments are an issue. As for the dispute process, an 11-day resolution window by CMS is a quick turnaround time and should help to expedite settlement. However, you should note there is a limitation in that only disputes based upon relatedness can be submitted via the portal and all other disputes must be in writing so for a fair number of disputes (legal or statutory arguments), the disputes have to be submitted outside of the portal, and it is difficult to see how the 11-day turnaround time can apply in real life practice.  


On another note, once you get within the 3 days of settlement, you can simply request another Final Conditional Payment Amount to obtain another time and date stamped Final Demand when ready to settle as we are not aware of any limitation on the number of times you can download a Final Demand.


This may sound like old news to anyone who reads the updates—if not, or for any questions regarding Medicare Set-Asides, CMS review thresholds or other Medicare related issues with regard to your settlements, you can reach Shawn R Biery, J.D. MSCC  via email at sbiery@keefe-law.com or via phone at 312-756-3701 or you can also contact our other MSA certified attorney Matt Ignoffo, J.D. MSCC via email at mignoffo@keefe-law.com or via phone at 312-756-3729.




Synopsis: IRS Mileage Rates for IL WC IME’s Announced.


Editor’s comment: Based on IL WC case law, The Internal Revenue Service issued the 2016 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business purposes.


Beginning on January 1, 2016, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:


·         54 cents per mile for business miles driven (57.5 cents in 2015)


We suggest all IL WC Practitioners note the change.





Synopsis: KCB&A is Looking for a Paralegal and a Michigan WC Defense Lawyer with three to five years’ experience. The positions are open right now. Need resumes.