11-11-13; Gay-Lesbian Marriage Soon To Be IL Law-Can We Revisit Death Benefits?; Handling IL WC Hearing Loss Claims; Understanding Psych and much more

Synopsis: Now that Gay Marriage/Divorce Has Landed and is Off the Political Table, Should We Reconsider How IL WC Death Benefits are Awarded?


Editor’s comment: Not sure if you like or dislike gay marriage and divorce but we are certain one’s personal feelings have nothing to do with it any more—it is soon to be the law in our state, our elected leaders have spoken and we are all going to have to adjust. On some levels, we are thrilled to see this relatively minor issue taken off the political landscape so our Governor, General Assembly and other local leaders can move forward to manage and hopefully improve the numerous financial issues that are plaguing all citizens of this troubled state.


From the IL workers’ compensation perspective, there is no question in our mind all benefits previously accorded to widows and widowers will now be expanded to cover legally married gays and lesbians. This is certain to increase the number and premium cost of covered WC death claims in our state. What is ironic is one reason IL WC death benefits most recently increased is, about a decade ago, our former-Governor-Behind-Bars made a political deal to give away control of the IWCC to beat Paul Vallas in a primary—Paul Vallas was just tapped to be Governor Quinn’s running mate. The giant increase in IL WC death claims in 2005 was directly related to that 2002 political agreement which kept Mr. Vallas out of political office years ago. If you aren’t aware, Illinois workers’ compensation death benefits are among the top three WC death awards in the entire country. The minimum a widow or widower may receive is well over $600,000 and the maximum is over $1.7M.


In our view, the death benefit concept was created in 1909 when the first IL WC Act was formed basically as a life insurance policy that is owed regardless of levels of widow/widower dependency. By that we mean, if you are married and your spouse passes, you get a lot of money, whether you need it or not. We think the IL WC Act should be changed so all married couples should have to retain counsel and demonstrate to the Arbitrator assigned some minimal level of dependency before their employers are required to fill in the financial gap caused by the passing of a loved one.


If you stroll down memory lane, you might note the IL WC Act was created as the result of 259 men and boys being killed in the Cherry, IL mine disaster and leaving hundreds of widows and children without any means to pay for their homes, food and educations. Shortly thereafter, the IL General Assembly enacted WC death benefit coverage. As this all predated “Rosie the Riveter” and the movement of U.S. women from being homemakers only to currently being a strong, robust and vibrant part of the U.S. workforce, the life insurance model underpinning WC death benefits may have changed, as marriage has changed.


In our view, the legislative and administrator scheme might improve if we update it also. We feel it would be a solid idea to consider having all widows or widowers obtain legal counsel and then come to the Commission. A hearing could be conducted to demonstrate a need for all or an appropriate part of the death benefit by showing dependency on the spouse who recently passed at work. For one example, please assume we are considering a couple where a wife is very successful—she is a sportscaster and makes $500,000 a year. Her spouse takes care of the home and basically manages the couple’s affairs but only makes $25,000 a year in a part-time job. If the at-home spouse passes due to a work injury or illness, as IL WC law outlines today, the death benefit remains $600K+. We feel the employer should be able to respectfully challenge that high value where dependency is very low or non-existent.


The other WC anomaly is the abandoned marriage—a marriage in which a couple has moved apart from each other and stayed apart in separate homes for years and years. When one or the other spouse in an abandoned marriage has passed, dependency is non-existent. In such a setting, we consider it egregious for an employer to have to pay our generous IL WC death benefit basically as a gift to the survivor who had no recent contact with their former partner. We feel an employer should be able to retain counsel and appropriately challenge all or part of such a claim before the Arbitrator assigned.


Please note we don’t feel this would apply as smoothly to minors who remain legal charges of their parents. But again, we feel our Arbitrators could listen to the facts and insure the protection of the young and innocent offspring of a decedent. One of the most interesting and touching WC death claims we have ever handled was a claim by a widow who had three young girls and an elusive spouse with lots of personal issues who took off on her, never to return. Several years later, she was valiantly raising her girls as a single mom when their absent father was murdered in a robbery where he was working at a convenience store.


As part of handling of the WC death claim, we were asked to do a search for the spouse and dependent children and one of our crack surveillance operatives located the widow. By this time, the girls were ending high school and about to enter college; the mother was despondent about how to afford higher education for her beautiful children. When we called to advise that her troubled husband had passed, she cried for some time. When we advised her of the amount and value of the death benefit, she indicated she didn’t want a penny of it but wanted all of the money to be paid into three trust funds for the girls’ educations. With the approval of the Arbitrator assigned, we were able to put that request into place. To our understanding, several years later, all three of the young women wisely used the money to get their college degrees and move into great jobs. The mother told us the only thing her husband did for her in life was to give her the blessing of the three girls and the only thing he did for her in death was to finally provide for their schooling through our workers’ comp system.


In summary, we feel dependency and an appropriate level of a death benefit for any widow or widower should be an issue fairly litigated in the right IL WC death claim. Such litigation would insure the property parties are receiving fair and reasonable benefits and the cost to IL employers is similarly appropriate. We appreciate your thoughts and comments.




Synopsis: Handling IL WC Hearing Loss Claims for Either Side of the WC System.


Editor’s comment: We are asked all the time about hearing loss claims and wanted to provide our expert thoughts. In our view, there are two kinds of IL WC hearing loss claims. Actually, two and one-half, if you include IL firefighters with 5+ years of service.


BOOM as a Hearing Loss Claim


The first type of hearing loss claim we call "BOOM" where there is a loud noise or explosion in the workplace that causes a hearing problem. We assume that concept is fairly simple for newbie lawyers and other student. Defending/presenting "BOOM" hearing loss claims are akin to defending any WC accident--did it happen, how bad was it, how bad were the results/effect on the hearing.


Hearing Loss as Occupational Exposure


Two, or the second type of IL WC hearing loss claim is statutory. You don't get hearing loss benefits if you aren't exposed to levels higher than provided in the IL WC Act—the exposure levels are below. If someone is exposed to decibel levels of a certain amplitude and loses some or all of their hearing, they get money. IL Employers have to insure their workers aren't so exposed—seems pretty simple, right?


Other than for 5+ year firefighters, there is no IL WC provision for hearing loss benefits for simply losing your hearing. What? Say that again? You don't get benefits if you simply start to lose your hearing. We all start to lose our hearing as we age. Hearing loss in 5+ year firefighters is presumed to be related to work, like lots of other conditions.


Finding Your Firefighters Something to Do All Day as Public Safety Officers


Our vote on saving money for those expensive and typically idle firefighters is to move to “public safety” officers. There are way less house fires than when our grandparents were young; we don’t actually remember seeing the remains of a house fire in the last ten years. Building codes and approved fire safety protocols have effectively eliminated fire risk but lots of municipalities and governments haven’t realized you don’t need to spend millions and millions on idle, unused and very expensive, round-the-clock firefighters. The National Fire Protection Association indicates over the past 35 years, the number of fires in the United States has fallen by more than 40% while the number of career firefighters has increased by more than 40%.


Some communities now have public safety officers that are police officers who fight the occasional kitchen fire and/or firefighters that are kept busy as police officers. The Village of Glencoe, IL is a model for this much more efficient path for all U.S. taxpayers to consider. The Glencoe Department of Public Safety is a combined public safety agency where officers receive combined training as police officers, firefighters, and paramedics. Glencoe has operated a combined Public Safety Department since 1956. The only conceivable reason not to move to this concept is your local fire union officials are certain to fight it.


5+ Year Firefighters Get Special WC Coverage


In the workers’ comp arena in Illinois and about forty states, firefighters with seniority are presumed to be globally covered for almost any on or off-work malady that befalls them—this causes a giant spike on WC costs for firefighters. In our view, the only reason for this heightened statutory coverage for firefighters is their union got the increased coverage they wanted for their members from our General Assembly. In this state, where the choice is extraordinary benefits for government workers at the sole cost of Illinois taxpayers, taxpayers always lose.


What the IL WC Act Provides for Hearing Loss


So other than for 5+ year firefighters, here is the language from the IL WC Act. You will note “BOOM” is covered at the bottom.


16. For the permanent partial loss of use of a member or sight of an eye, or hearing of an ear, compensation during that proportion of the number of weeks in the foregoing schedule provided for the loss of such member or sight of an eye, or hearing of an ear, which the partial loss of use thereof bears to the total loss of use of such member, or sight of eye, or hearing of an ear.


(a) Loss of hearing for compensation purposes shall be confined to the frequencies of 1,000, 2,000 and 3,000 cycles per second. Loss of hearing ability for frequency tones above 3,000 cycles per second are not to be considered as constituting disability for hearing.


(b) The percent of hearing loss, for purposes of the determination of compensation claims for occupational deafness, shall be calculated as the average in decibels for the thresholds of hearing for the frequencies of 1,000, 2,000 and 3,000 cycles per second. Pure tone air conduction audiometric instruments, approved by nationally recognized authorities in this field, shall be used for measuring hearing loss. If the losses of hearing average 30 decibels or less in the 3 frequencies, such losses of hearing shall not then constitute any compensable hearing disability. If the losses of hearing average 85 decibels or more in the 3 frequencies, then the same shall constitute and be total or 100% compensable hearing loss.


(c) In measuring hearing impairment, the lowest measured losses in each of the 3 frequencies shall be added together and divided by 3 to determine the average decibel loss. For every decibel of loss exceeding 30 decibels an allowance of 1.82% shall be made up to the maximum of 100% which is reached at 85 decibels.


(d) If a hearing loss is established to have existed on July 1, 1975 by audiometric testing the employer shall not be liable for the previous loss so established nor shall he be liable for any loss for which compensation has been paid or awarded.


(e) No consideration shall be given to the question of whether or not the ability of an employee to understand speech is improved by the use of a hearing aid.


(f) No claim for loss of hearing due to industrial noise shall be brought against an employer or allowed unless the employee has been exposed for a period of time sufficient to cause permanent impairment to noise levels in excess of the following:


Sound Level DBA  Slow Response Hours Per Day

90                                8

92                                6

95                                4

97                                3

100                             2

102                             1-1/2

105                             1

110                             1/2

115                             1/4


This subparagraph (f) shall not be applied in cases of hearing loss resulting from trauma or explosion.


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Synopsis: Handling Psych Claims in Workers’ Compensation.


Editor’s comment: As liberal/radical as our IL WC system can be, Illinois actually remains somewhat “conservative” about psych events/injuries. The IL WC system still hasn’t moved to what we call “California Stress” psych claims. By that we mean if your boss is mean to you or your customers are challenging, you still can’t get WC benefits for the discomfiture normally associated with regular or demanding work. The main reason we feel this focus continues is the reluctance of Plaintiff/Petitioner attorneys and most Arbitrators have about dealing with psych-challenged folks—in our view, Arbitrators listen to enough whining when real injuries are present; they don’t get paid enough money to listen to weeping, wailing and gnashing of teeth over normal or even extraordinary work stress.


In contrast to “job stress” claims, there is the sudden and unexpected shock that may occur when someone, other than claimant, is seriously injured or dies in the workplace. These cases fall under the parameters of an older ruling from our IL Supreme Court namedPathfinder. In the Pathfinder ruling, the worker making the claim was working next to a subordinate who had both hands traumatically amputated by a machine. The worker had to retrieve the severed hands from the machine. For reasons we will never understand, a defense lawyer took that case all the way to our Supreme Court to make law that was, in our view, bad for the defense industry—they would have been much better off paying for appropriate psych care and trying to amicably and quietly work something sensible out with the traumatized worker and their attorney.


Please note in any accepted or disputed psychiatric claim there are often no objective physical findings that can be measured.  With subjective mental symptoms, the question of their validity may be influenced by the opinion the employer had of the employee prior to the claim.  If the employee was known to be indolent or lazy prior to the WC psychiatric claim, supervisors are less likely to accept the claim of a mental injury. In contrast, a hardworking and effective employee may be given every benefit of the doubt when their psyche becomes an issue in a post-accident setting. Either way, a detailed investigation into the medical/psychiatric documentation and the other non-work related factors that could affect the employee’s mental state may be necessary.


The investigation into a psychiatric claim is unquestionably complicated by the inability to easily obtain psychological and psychiatric records—you can’t simply send a subpoena. The Illinois Mental Health Confidentiality Act renders traditional subpoenas worthless and an adjuster or attorney has to closely adhere to the Act to get such records. You are much better off to advise the worker or their attorney you need records to support any claim for compensation and without certified records, you are unable to consider any payment.


There are two types of mental injury claims, physical-mental and mental-mental.  In a physical-mental psychiatric claim, the employee had incurred a physical injury at work, and as a result of the acute or traumatic physical injury, has developed a related mental injury.  A common example is the employee who injured their back, and from worries about how they will support their family on reduced income or TTD, develops depression and melancholy. Please also remember employees with work injuries may be coached by a Plaintiff/Petitioner’s attorney to magically suffer post-traumatic stress disorder after their injury—the best way to defend such claims is to focus on the DSM-V or the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, which is the 2013 update to the American Psychiatric Association's classification and diagnostic tool.


Mental-mental claims are the “California stress” claims we mention above where your boss is mean or your customers are demanding and the worker becomes imbalanced. To date, we do not see such claims gaining traction in our state.


If you need legal assistance in dealing with the intricate nature of psych claims, please send a reply any time. We can recommend a number of solid psych experts for the psychiatric-legal opinions. We appreciate your thoughts and commen