Synopsis: Did the IL WC Appellate Court allow a statutory “double dip” for both loss of a “person as a whole” and wage loss under 8(d)(1)? Why Is Claimant Working in a Minimum Wage Job and Potentially Costing Village Taxpayers Almost $800K?

Editor’s Comment: In Village of Deerfield v. IWCC (issued December 23, 2014) our Workers’ Compensation Division of the Appellate Court of Illinois explained the basis for what some observers feel is a double PPD recovery when multiple incident claims are involved in litigation.

Claimant Hugh Garrity worked for the Village of Deerfield when he injured his left shoulder in February 2005 (later allegedly aggravating the right shoulder due to “overuse”). In a second injury later that year, Claimant injured his cervical and lumbar spine. There was some discussion by the physicians whether the original shoulder complaints were referred pain from the cervical/neck but ultimately, the first claim resulted in a right shoulder rotator repair and the second claim for the neck and back resulted in a cervical fusion. A third alleged “aggravation” was deemed to not have materially advanced the condition(s).

The cases were tried consecutively and separate awards were issued. For the first shoulder claim, the IL WC Commission affirmed the arbitration award of 20% loss of the right arm and 15% loss of the left, but converted the award into “man as a whole” awards consistent with the Will County Forest Preserve ruling. The second claim for cervical and lumbar injuries resulted in a major wage differential award under Section 8(d)(1). Respondent Village of Deerfield may have been disturbed by what they believed to be a double recovery, arguing there should not have been about $53K in additional compensation aside from the giant lifetime wage loss differential award. Please note these are “weekly” benefit awards. Many observers feel it runs contrary to the intent of the legislature for a claimant to get a double weekly check for permanency. In our view, the current IL WC Appellate Court isn’t strongly concerned with that anomaly.

In their argument before the reviewing Court, the Village cited prior case-law whereupon the IL WC Appellate Court had reduced/eliminated dual PPD awards on the same body part after multiple injuries. Accordingly, the Village argued there should be no weekly PPD award on the shoulder injury plus a weekly wage loss award in the second case. However, the Appellate Court opinion distinguished the facts of the case at hand, pointing out in their prior ruling which eliminated a “dual award” (specifically City of Chicago v. IIC 409 Ill App. 3d 258 (2011)) they found the two injuries in the City of Chicago case involved the same body part (low back). Also, the first injury had not resolved and it was “impossible to distinguish” which accident caused the condition of ill being. Under such facts, a single PPD value was appropriate and there should not be two PPD awards for what appears to be the same condition of ill being.

In the case at hand however, the Court felt there was an original injury to the shoulders and while there was suspicion of cervical involvement, there was no diagnosis or treatment for cervical issues until after the second accident. Therefore, the Court reasoned a separate PPD award on the shoulder claims was proper, in addition to the subsequent wage loss award for the second injury to the spine, which resulted in permanent restrictions and the need for vocational placement. Based on reduced earning capacity after the second accident, a wage loss award was deemed proper.

A lesson here for the claims/defense industry is two-fold; we must be careful not to “combine” body parts in assessing exposure, where there are separate diagnosis for two separate dates of loss. Also, even where the same body part is involved in subsequent accidents, claims handlers should be sensitive to whether the initial injury has fully resolved with MMI and whether the first injury contributed at all to the second claim. In the event a re-injury occurs and is deemed unrelated to the first, the language from the Court suggests additional PPD value may be awarded even for the same body part of the second injury can be sufficiently distinguished from the first.

Should This Ruling Involve Wage Loss Differential Benefits?

In our view, the problem isn’t with the IL WC Appellate Court’s view of the law, the problem is a claims/rehab issue. We feel it is obvious this guy can and should be making a lot more money than he is making now. If proper rehabilitation was provided, wage loss differential benefits would be a lot less or non-existent. We suggest the Village of Deerfield get an actual vocational rehabilitation plan in place and then file a 19H Petition to cut the current benefits dramatically or completely. They have sixty months to do so under the 2011 Amendments to the IL WC Act. If they want our help at no charge, simply send a reply.

From the ruling:

The claimant was directed to continue work conditioning and was noted to be capable of working at the light-medium physical demand level lifting up to 30 pounds. On April 5, 2010, the claimant underwent a vocational assessment with Vocamotive. He had previously undergone a vocational evaluation on October 13, 2009, by the employer's vocational expert, Brown Rehab Management. Both Vocamotive and Brown Rehab Management noted that the claimant did not have his graduate equivalency degree (GED) and recommended that he obtain it. The claimant took the GED test on March 5, 2011, and passed. The claimant worked with Vocamotive to find gainful employment. Vocamotive noted claimant was no longer able to engage in his customary and usual line of employment. The claimant ultimately secured employment at ATI Physical Therapy as a driver. He began on June 13, 2011, and earned $9.20 per hour. Beginning September 15, 2011, the claimant was given a raise to $10 per hour.

We don’t consider it to be “vocational rehabilitation” for Petitioner to obtain a minimum wage job in his post-injury state. Someone should work to source a real job that pays about what he was making at the time of injury or more. Based on the above findings, Claimant is now entitled to $36,125.96 each year on top of whatever money he makes to drive a car for ATI at minimum wage. He is 57 years old and has a 22 year life expectancy. The award for him to not work for the Village of Deerfield if he lives to a normal life expectancy may cost village taxpayers a tidy $794,771.12. We consider that a painful outcome because he can and should be doing so much more.

If He Can Drive a Car, He Can Get a CDL and Drive Trucks

As we told you last week, this guy is a perfect candidate for CDL training. He should be driving a truck right now and making about what he was making for Deerfield or a lot more. There are available no-lifting truck driving jobs all over Lake County IL that he could be doing right now and completely end this wage loss differential award. As we told our readers last week, throughout the greater Chicagoland area, there are no-lifting CDL jobs that pay $60-200K a year. If Claimant doesn’t like driving a truck, consider lots of secondary jobs in the transportation industry that are currently open and also pay well, like a dispatcher or DOT drug tester.

How About Open Municipal Jobs on the Web Right Now?

But let’s now even go to CDL training—right now the neighboring villages around Deerfield have lots of great jobs advertised on their websites.

· The Village of Northbrook has a police dispatcher position on the web right now. This is a union position with a salary range of as much as $71,184 a year. Petitioner would need some training but clearly could and should pass any training/test. If he got this job, the wage loss award disappears, saving taxpayers almost $800K.

· The Village of Winnetka needs an apprentice electric line worker. Again, Petitioner would need some training but his background matches the job’s requirements. The job pays as much as $88,144 per year plus excellent benefits.

· The Village of Glenview needs 911 dispatchers. The salary is $18.00 - $22.00/hour. Following the training period, part timers may pick up 12-24 hours per week, depending on their availability. The part-time pool is used to fill full time vacancies. Even in a part-time dispatcher job, Petitioner would be making a lot more than he is making at ATI right now.

How About Staffing Jobs?

We looked on the web and found literally thousands of open jobs listed by staffing companies across Lake County, IL where Claimant Garrity lives. Lots of them requiring training but most of them pay more than he is making right now.

This article was researched and written by attorney John P. Campbell and Gene Keefe, partners at Keefe, Campbell, Biery & Associates, LLC. Should you have any questions or comments, please feel free to contact Mr. Campbell directly at jcampbell@keefe-law.com or at 312-907-8222.

-----------------------------------------------------

Synopsis: Updated/Crucial Recommendations For Confirmation of Receipt of FMLA Notices. Analysis by Bradley J. Smith, J.D.

Editor's Comment: Two recent federal decisions will likely cause U.S. employers to review their practices to account for using and retaining verification documentation in sending notices under the FMLA. The Family Medical Leave Act (“FMLA”) requires employers to provide general notice to their employees of their FMLA rights, both by posting a notice on the employer’s premises and by including information regarding the employer’s specific FMLA policies and procedures in an employee handbook, as well as specific notice to those employees seeking to exercise their rights under FMLA. The individual notice specific requirements are designated under FMLA regulations. If prejudice to an employee results from defects in the individualized notice, then this can give rise to an FMLA interference claim and potentially unneeded litigation.

In Lupyan v. Corinthian Colleges, the Third Circuit Appellate Court reversed a federal district court’s decision granting summary judgment to an employer, where the ruling rested on a presumption the employee received individualized notice of FMLA rights. The employee, when presented with evidence the employer sent the requisite individualized notice by regular U.S. mail, denied having ever received it. Whether or not the notice was received was an important issue as the mailing would have informed the employee her absences would be counted against her twelve (12) weeks of FMLA leave. If the employee did not receive it, then she could offer an explanation for not knowing that she would be terminated if she failed to return after exhausting her available FMLA leave.

While many courts recognize the “mailbox rule” as a rebuttable presumption that a document sent by U.S. mail was received by the recipient, the Third Circuit stated the “mailbox rule” is not ironclad, and under applicable law creates a weak rebuttable presumption. Analyzing the evidence before it, the court held the employee’s allegation in her affidavit that she did not receive the FMLA notice by mail was sufficient to rebut the aforementioned presumption and create an issue of material fact that should be resolved by a jury. The Third Circuit made it clear employers wishing to evade material disputes regarding whether an employee has received a required notice regarding his or her FMLA rights should send such a notice using a method that allows for verification upon receipt. In other words, the notice should be sent via certified mail, express mail with tracking capabilities or some other means proving receipt of delivery.

Subsequently, the District Court for the Eastern District of Michigan held transmitting FMLA requests for recertification via e-mail, without any proof the e-mail had been opened and received by the employee, could constitute proof of “constructive’ as opposed to “actual notice of an FMLA-related communication.” In Gardner v. Detroit Entertainment, LLC, the court denied the employer’s request for summary judgment on the employee’s FMLA interference and retaliation claims, finding a material issue of fact existed as to whether the employee had received the employer’s request for recertification informing her of the need to recertify her eligibility for intermittent FMLA leave. The question of whether the recertification request had actually been received was material as the employer terminated the employee pursuant to its attendance policy after a number of absences were not excused as FMLA-related due to her failure to recertify by the deadline set forth in the e-mailed notice. Although the employer’s third-party FMLA administrator contended the employee had requested e-mail delivery of notifications, she claimed otherwise, stating she rarely read her e-mails and thus elected to receive communications by mail after the employer retained the third-party administrator to process FMLA requests. None of this would have mattered had the employer sent the employee a certified letter or confirmed the need to recertify orally with an acknowledgement signed by the employee; relying instead on an e-mail left the company unable to conclusively rebut the employee’s claims.

Based on the aforementioned decisions, employers looking to ensure an administrative or clerical issue does not preclude them from proving they provided an employee with a required FMLA notice should consider sending the notice by registered, express or certified mail, requiring return receipt, or by using some other physical or transmittal method by which receipt can be verified and confirmed. At the same time, employers should also make certain they retain the documentary evidence in their personnel files.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the FMLA, employment law, and general liability defense at bsmith@keefe-law.com.

------------------------------------------------------

Synopsis: Secrets in the Workplace!--This Amendment to the Illinois Eavesdropping Act Affects All of Us! Thoughts and Analysis by Matthew G. Gorski, JD.

Editor’s comment: Several new laws took effect at the stroke of midnight on January 1, 2015. One of those is a major Amendment to the Illinois Eavesdropping Act correcting its prior versions to reflect the Illinois Supreme Court's ruling in People v. Clark. To accommodate the Illinois Supreme Court's ruling finding the prior Illinois Eavesdropping Act unconstitutional, the Legislature required parties need only consent to the recording of private conversations. In other words, the new law attempts to refine the scope of the prior Eavesdropping Act to conversations deemed private. The five (5) notable changes to the law are:

An eavesdropper is defined as someone who uses an eavesdropping device to secretly record a private conversation without the consent of all parties involved in the conversation. A private conversation is defined as only one of the parties had a reasonable expectation the conversation is private.
An eavesdropper is anyone who uses a device to secretly record electronic communications without the consent of everyone involved.
An eavesdropper is someone who discloses the content of a private conversation or private electronic communication without permission.
The penalty for eavesdropping a judge, law enforcement officer, or state’s attorney was reduced.
The amendment increases the number of crimes in which law enforcement does not need judicial permission to eavesdrop.

Last year, an earlier version of the Illinois Eavesdropping Act was struck down by the Illinois Supreme Court on First Amendment bases. The Illinois Legislature framed the new Eavesdropping Act amendments on the "reasonable expectation of privacy" test in a further attempt of framing the new law in a manner that would satisfy the Illinois Supreme Court's constitutional issues with the prior law being overbroad. In doing so, the Legislature focused on whether the parties involved in the conversation would have a reasonable expectation whether their conversation was in a private location.

Specifically, the test of whether the conversation can be expected to be private applies two (2) factors: 1) the intent that the conversation to be private; and 2) surrounding circumstances reasonably justifying that expectation of an intent the conversation be private.

How can you stay on the right side of this newly enacted law? It is recommended at this infancy stage of the newly enacted law that you make sure any video security surveillance within your business does not record sound. Although there may not be a reasonable expectation of privacy within the common areas of your business, this newly enacted law is untested in the common areas of a business and/or workplace, and those common areas might fall within the reasonable expectation of privacy of individuals participating in a conversation. We don’t suggest you take a chance your business will become a test case and you will have to incur the cost of litigation.

As previously mentioned supra, another change to the law includes electronic communication. Obviously, this includes emails, but it also includes other various forms of electronic communications, possibly even text messages. Make sure you do not save any form of electronic communication without the consent of your employees, vendors and the public. This should be added to disclaimers at the bottom of your outgoing emails. It may be a good idea to have your employees sign a waiver upon employment providing you permission to save their electronic communications. Additionally, restrictions on private email use in the workplace may allow for avoidance of any issues related to eavesdropping on electronic communications with a possible expectation of privacy. With proper employer policies and disclosure, there should be no expectation of privacy related to company email.

Employers should work with their counsel to develop internal privacy policies to properly plan for compliance with the amendments to the Illinois Eavesdropping Act. Particularly, employers should develop and implement internal policies related to disciplinary meetings to account for the "reasonable expectation of privacy" test. If the disciplinary meetings are held in locations or manners that do not account for a "reasonable expectation of privacy," then any potential recording by an employee could be used in legal proceedings, regardless of an employer’s lack of consent concerns.

The research and writing of this article was performed by Matthew G. Gorski, J.D. Matt can be reached with any questions regarding the Illinois Eavesdropping Act, general liability defense, employment law, and workers’ compensation law at mgorski@keefe-law.com.

----------------------------------------------------------

Synopsis: This Friday John P. Campbell, Jr. and Gene Keefe will be speaking!

Editor’s comment: We will be at the ASSE Three Rivers Chapter at the Hilton on 3003 Corporate West Drive, Lisle IL. The program is designed to help local safety professionals better understand the new law and what a precautions they should take.

Here is the link to the event page in case you are interested in attending. http://threerivers.asse.org/events/?ee=36

KCBA Blog

1-5-15; PPD Double-Dip Ok'd-Why Isn't Claimant Making More?; Important FMLA Notice/Receipt Req'ment by Brad Smith; New Eavesdropping Law in IL and more