1-26-2015; Can IL WC End Wage Diff Claims with "Dispatch?"; Shawn Biery Publishes Updated IL WC Rate Sheet; IL Supreme Ct Decides Atty Fee Dispute and more

Synopsis: Can the IL WC Defense Industry End Wage Diff Claims with “Dispatch?” Enter Our Contest!!!

 

Editor’s comment: Illinois workers’ compensation is a strange and unusual place to manage claims. We continue to see decisions like the Village of Deerfield v. IWCC where certified rehab counselors on both sides provided challenging opinions indicating the best paying job this government worker could obtain was at or around our minimum wage of $8.25-10 per hour. We consider that outcome embarrassing to all WC system participants. On behalf of the taxpayers of Deerfield, IL and our readers in the insurance/business community, we are infuriated with some voc experts and rulings in reliance on them by IL Arbitrators and Commission. Because of such rulings, we feel taxpayers and Illinois businesses are spending millions more on IL work comp than they should. We feel that challenging voc approach has to be rejected at all stages. We look forward to the day when conservative Arbitrators tell the CRC’s to go back and find Petitioner a better-paying job before they issue a final decision. We can do better than minimum wage, people.

 

‘Bad Job Right Away’—the IL WC claim handler’s nightmare

 

If you’ve been around the Illinois workers’ compensation system for a while, you know that one of the biggest crises facing all Illinois employers is what we call ‘Bad Job Right Away.’ This tactic is designed to take full advantage of Section 8(d-1) in the IL WC Act which provides for wage differential benefits calculated by taking the difference between what the employee could be making in the job when injured and whatever they are “able to make” following an accidental injury. The problem with this concept is many trades involve employees who are paid high wages because their jobs primarily require brawn and not brains. They are paid high wages because they are able to endure the rigors of doing heavy work in dangerous environments. What some of them are doing when they suffer injuries once considered ‘part of the job’ such as operated knees, shoulders or backs is to try to get out of their trade and cash in on novice claims management by the carrier or third party administrator (TPA). The problem in handling wage diff claims for insurance carriers/TPA’s is the need to lump them out to reach closure—what appear to be lifetime benefits are very rarely paid over anyone’s life. As you will see below, the settlements may be enormous.

 

Wily petitioners’ attorneys know that. So when a tradesman, truck driver or nurse suffers an operated shoulder (or knee, elbow or back) that will render it difficult to return to the same work, the tradesperson is advised to complain to their doctor to get a goofy FCE that contradicts all the ongoing findings by a registered physical therapist in weeks of physical therapy. The goal of the FCE for Petitioner and his counsel is to provide work restrictions which arguably push the injured worker out of their trade. Please note Petitioners’ attorneys in this state beg, plead and fight to have FCE’s ordered by an arbitrator to obtain the all-important work restriction. Once the worker with a sore shoulder has the restriction, he or she is then coached to look for a ‘bad job right away.’

 

Why would anyone want a ‘bad’ or lower paying job?

 

Short answer: to maximize their workers’ comp claim for wage loss diff benefits. The tradesperson who takes a minimum wage job after an injury may have a claim for wage loss at the maximum amount allowed by law—currently $1,021.34 per week or about $53K on a tax-free basis each year until they reach 67. Wage loss based upon Section 8(d-1) of the Illinois Workers’ Compensation Act is calculated at 2/3 of the difference between what the employee could be making at the time of the finalization of the claim and what they were making when injured. Starting in 2006, the cap is the Statewide Average Weekly Wage which is already $1,021.34 a week and rising.

 

For a 25-year-old wage-earner, who won’t hit 67 for 42 years, they would have a wage loss with a full value of $2,226,000 (or $1,021.34 x 52 weeks x 42 years). That’s lottery-winning money for an operated shoulder claim and may be 5-7 times more than amputation rates. Even if one would take the present discounted value of all that money, it is still exponentially more than the typical award of 10-15% BAW for most operated shoulder claims.

 

Why do they want the ‘bad job’ right away?

 

No one really wants the ‘bad job’ because they might have to starve for a while compared to the high scale they were used to living on, even if they are receiving TPD. They also might have to work in a less than likeable job environment. The employee will rush to get a lower paying job and similarly hurry to seek wage differential benefits determined so they lock in their lifetime claim at a high value. After that happens, they will try to get the carrier or TPA to lump out the benefits—once they get the lump sum, they are ready to return to regular work or start a business they always wanted to start, and the ‘bad job’ will soon be a distant memory. While it may smell like fraud, it is perfectly legal.

 

This strategy, if properly implemented, is difficult to counter—many employers want to get rid of a problem employee. Many treating physicians are thrilled to get rid of a chronic complainer and feel that they have done their job when they get the employee back to limited work. And it is really difficult to continue to try to place someone in a better paying job once they have obtained employment—in fact, the ‘bad job’ itself generally makes it difficult to have the wily claimant continue their job search.

 

How Do You and All Risk Managers/Claims Handlers Stop this Silliness?—With “Dispatch.”

 

We have advised our readers about “no touch” freight driving jobs for job candidates who get CDL’s or Commercial Driver’s Licenses. If you want information on that concept, sent a reply. We also learned there are lots of seated dispatch jobs in the logistics and transportation industry that can be done for reasonable to above-average pay with relatively limited training. Here are numerous open and well-paid dispatch jobs we found in about thirty seconds of searching on the web:

 

911 Dispatcher Part-Time

River Grove

IL

Part-Time

911 Police/Fire Dispatcher

Leyden

IL

Full-Time

911 Police/Fire Dispatcher

Oak Lawn

IL

Full-Time

911 Police/Fire Dispatcher

Cicero

IL

Full-Time

911 Police/Fire EXPERIENCED Dispatcher PART-TIME

Oak Lawn

IL

Part-Time

Call Taker Dispatcher-Superior

Elmhurst

IL

Full-Time

 

We are now running a contest you can enter. We learned there are 911 Dispatch jobs and lots of other dispatch jobs across the entire state of Illinois. The description of the 911 Dispatcher job tasks are seated or sedentary work; High school or GED equivalent accepted and some training/experience required.

 

These jobs pay well to very well—we saw one job in a north suburb of Chicago which paid $88,000 a year with full benefits in a union position. For the vast majority of injured workers, sedentary jobs that pay that much money would completely eliminate IL WC wage loss differential claims. There are all sorts of dispatch jobs out there in our state. A quick search onIndeed.com, Monster.com or www.dispatcherjobs.com will bring lots of hits.

 

Enter to Win!! Find Non-Dispatch Jobs that Fill the Bill.

 

We are also asking our readers and offering prizes for the best response on non-dispatch sedentary jobs that will end lottery-level wage loss differential work comp claims. We don’t want our clients or any business/government to have to pay millions to a worker for a simple operated shoulder or knee. Do you know of open jobs in our state that are similar to dispatch jobs? We are looking for

 

·         Seated or sedentary work;

·         High school or GED equivalent;

·         Private sector or state/local/U.S. government jobs;

·         Jobs that have continuous openings are a plus;

·         Six months or less of training required; and

·         Starting pay from $15 per hour or more.

 

Please send them in and next week, we will share the best “wage-loss-differential-busting jobs” with our readers. KCB&A will send a prize to every participant. We appreciate your thoughts and comments. Please post them on our award-winning blog.

 

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Synopsis: Illinois WC Rates Jump Again and Your PPD Reserves May Be Wrong(!) and Need Retroactive Updating. Send a Reply to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

 

 

Editor’s comment: There continues to be an upward spiral of IL WC rates. Starting in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, our WC rates keep climbing.

 

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $725.81. When it was published, this rate changed retroactively from July 1, 2014 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now,your reserves are wrong. If you have a claim with a date of loss after July 2014 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. If this isn’t clear, send a reply to Shawn at sbiery@keefe-law.com.

 

The current TTD weekly maximum has risen to $1,361.79. A worker has to make over $2,042.69 per week or $106,219.62 per year to hit the new IL WC maximum TTD rate. Do such folks truly need full TTD value? Does any state in the United States have a TTD maximum that high?

 

The new IL WC minimum death benefit is 25 years of compensation or $510.67 per week x 52 weeks in a year x 25 years or $663,871.00! The new maximum IL WC death benefit is $1,361.79 times 52 weeks times 25 years or a lofty $1,770,327.00 plus burial benefits of $8K. On top of this massive benefit, Illinois employers/governments have to pay COLA increases.

 

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet. If you want it, simply reply to Shawn at sbiery@keefe-law.comand he will get a copy routed to you before they raise the rates again!

 

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Synopsis: Illinois Supreme Court Decides Another WC Attorney Fee Dispute.

 

Editor’s comment: Along with Alvarado v. IWCCwe now see a second WC dispute made it all the way through the trial and appellate court to our highest court.

 

In Ferris, Thompson and Zweig, Ltd. v. Espositothe dispute involved the question of subject matter jurisdiction between the Illinois Workers’ Compensation Commission and the Circuit Courts. The Court held that an attorney fee dispute based upon referral agreements wherein a Plaintiff attorney referred new workers’ compensation claims to Defendant attorney fell within the Circuit Court’s jurisdiction and wasn’t properly litigated at the IWCC.

 

Plaintiff sued Defendant in Circuit Court claiming they had a written agreement for Plaintiff to act as co-counsel in representing two women who had IL workers’ compensation claims.  After the cases settled, Defendant stiffed Plaintiff on its share of fees. When the civil complaint was filed, Defendant moved to dismiss the suit, contending the claim fell within the jurisdiction of the Workers’ Compensation Commission. Defendant relied on section 16a(J) of the Workers’ Compensation Act, which provides “[a]ny and all disputes regarding attorneys’ fees,” including disputes related to division of fees, shall be heard by the Commission. 

 

The Circuit Court denied the motion and, following trial, Defendant appealed. Upon review from the Appellate Court opinion affirming the Circuit Court, the IL Supreme Court also affirmed. Our highest court held the Commission did not have jurisdiction because the dispute did not require determination of the amount of fees charged for representing claimants before the Commission or an apportionment of those fees between attorneys who represented the claimants before the Commission. Plaintiff here had not represented the claimants before the Commission. Instead, the dispute was merely a routine breach-of-contract action based entirely on the referral agreement.

 

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

 

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Synopsis: Engage Directly with Experts in the Workers' Comp Arena at this Year's Illinois Workers' Comp Forum.

 

Editor’s comment: Do you administer workers’ compensation claims? Are you involved in strategic planning? Concerned with medical costs and utilization? Looking for a better understanding of workers' compensation?

 

Then you won't want to miss the Illinois Workers' Comp Forum, now in its 5th year. Moved to downtown Chicago at Loyola's Quinlan School of Business on May 4-5, 2015, the event provides attendees the opportunity to hear perspectives from and engage directly with experts in the workers' comp arena including:

 

  • Joan Vincenz, Managing Director – Workers’ Compensation and Managed Care, United Airlines
  • Gene Keefe, Esq., Partner, Keefe, Campbell, Biery & Associates, LLC
  • Don Phillips, Safety Coordinator, City of Naperville
  • Devin Stoll, Human Resources Manager, Cintas Corporation

 

Download the brochure and view their complete list of speakers. Visit their website or call: (646) 807-8555 to reserve your seat today. We look forward to seeing you this May in Chicago. 

 

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Synopsis: KCB&A is looking for:

 

  • A nursing home defense lawyer and
  • A veteran WC claims handler for both IL and IN claims—the position is located in downtown Chicago.

 

If you or someone you know is qualified and interested, please send resumes in confidence via reply to this Update.