11-19-12; Fools Rush In Where Wise Men Fear to Tread--IL WC Voc Rehab May Have Just Changed for the Worse; Shawn Biery on "Suitable Seating" Claims; iRatings for Your IL WC Impairment Ratings and...

Synopsis: Fools Rush In Where Wise Men Fear to TreadVoc Rehab in IL WC May Have Just Forever Changed for the Worse.


Editor’s comment: We recommend all business observers take a long hard look before you make the decision to appeal WC cases past the Circuit Court level in this state. We are letting our clients know the math on getting a solid defense ruling or even a dissent from an IL WC Appellate panel member are less than one in twenty rulings. In our view, we have to pick our battles very carefully--there is no discernible reason to spend the money to receive an Appellate Court “beat-down” like this one. If things don’t go well in the Circuit Court, adjust around what you have to deal with and make the tough claim decisions. Why have the veteran and knowledgeable Appellate Court justices join together and unanimously “clobber” every single defense issue you raise?


In W.B. Olson, Inc. v. IWCC (No. 11 L 50222, issued November 5, 2012), Claimant was a union construction laborer with a knee injury in 2006. He underwent two knee surgeries and then an unbelievably long period of physical therapy and later work-hardening followed. He later underwent total knee replacement. Claimant underwent two different FCEs that we feel were provided to maximize recovery in this litigation by giving claimant the “golden diagnosis” of permanent restrictions. We also note he was offered clerical work at the company’s headquarters and the treating doctor magically limited his driving to avoid that job and employer accommodation.


In early 2008, the matter was tried on an emergency petition and claimant was awarded 104 weeks of TTD—neither side appealed. Claimant’s counsel then got a voc counselor who met with Claimant and fiddled around for years but never found Claimant work.


On his own, Claimant found a potential job at a trucking company. The problem that arose is Claimant purportedly wasn’t able to get motor vehicle insurance to drive the vehicle because he hadn’t been driving for two of the three prior years. We haven’t heard of that insurance requirement and would love to hear from the insurance brokers among our readers if there is truly such an industry-wide insurance limitation out there. One would have to wonder how anyone might break into the industry with that odd driving/insurance requirement(?).


In late 2009, the employer hired an expert voc rehab counselor and his services were refused at the direction of Claimant’s counsel. Not sure how the employer was barred by the Commission from providing its own voc eval expert at its own cost—there isn’t a Rule or Section of the IL WC Act which precludes it. We will address this issue in further detail below.


In early 2010, the matter was again tried on a 19B petition for TTD. We can’t tell why they had to try it again if benefits were ongoing. After the hearing, another 116 weeks of TTD was awarded. Then the appeals began—the appeals continue to present and, guess what, another 100+ weeks of TTD has to again be pending. We consider it comical/ludicrous/silly to see six-plus years of TTD being paid when this man clearly can do some sort of work and isn’t unemployable. That said, let’s hope the employer, its defense counsel and its TPA/Carrier aren’t going to drag this mess out any longer and take this ruling to the IL Supreme Court and gain even more notoriety.


In summary, this unanimous Appellate Court ruling:


·         Provides Claimant attorneys may unilaterally select and hire the sole voc rehab experts for their clients—in our view, the Arbitrator has to approve it;

·         Provides Claimant attorneys may be able to indiscriminately block IL employers from providing voc rehab counseling at their own expense—again, this is subject to Arbitrator approval;

·         May require IL Employers to pay for the voc counselors selected/hired by Claimant attorneys;

·         Implicitly blocks IL Employers from disputing the length or scope of voc rehab being provided by the expert selected by the Claimant attorney;

·         Implicitly indicates whatever the IWCC does in ruling on voc rehab isn’t appealable—we ask other defense firms to strongly consider/exhaust all other options prior to taking such claims to this appellate panel to reinforce similar rulings.


We dislike every single aspect of this controversial ruling but we caution our issues are not with the members of the IL Appellate Court who simply followed longstanding and well-settled Illinois law. As we outline above, we have no idea why they were even asked to rule. Moving forward, our main problem will be defending such claims after this published ruling before the IL WC Commission and the wildly aggressive Petitioner/Plaintiff lawyers who practice there. We assure our readers this shocking and anti-business ruling may represent a paradigm shift in handling the biggest and most expensive Illinois workers’ compensation claims--“odd-lot” total and permanent disability claims and wage-loss differential claims. Such claims have values starting in the middle six-figures and move rapidly into the middle seven-figures. If there was a goal to cut IL WC costs, this decision doesn’t follow that model. This ruling, in our view, reverses the trend toward even minimal employer control of WC claims and may give complete control to the claimant bar. In our view, this ruling signals exponentially higher IL WC PPD reserves and payouts. We hope someone in the legislature is listening because they are sure to hear moaning and wailing from business leaders about this one.


It is also our opinion there are very questionable ethics present when a Claimant attorney is allowed to select an expert who will undermine the employer’s defenses while forcing the employer to foot the bill for their tormentor. What if the expert charges $5,000 per hour? What if the expert, as happened in this claim, provides never-ending and effectively worthless voc services over several years? There are no cost limitations on voc rehab expert costs in any IL WC fee schedules. There is no stated or recommended duration for voc rehab in any Rule or the IL WC Act. We assume several hundred thousand dollars in TTD/maintenance has been paid in this disastrous claim while this voc expert didn’t get this guy back to work. It is all being left up to the whim of Claimant’s counsel who can continue to get years and years of TTD/maintenance paid by the employer until a giant settlement supplants all of it.


What can we learn from all of this?


v  It is our view voc rehab should be provided much earlier in many IL WC claims. If you have claims where the injured worker is off work and on TTD more than 120 days, we recommend you consider getting a voc plan with your own expert into place. It doesn’t always have to be full voc counseling and job training. Just carefully consider getting a voc plan into place. When you have a voc plan, get together with the other side and bring the plan to the Arbitrator assigned for their guidance. If you move to get voc rehab first, you may be able to get and keep your own expert and not pay to have the other side’s expert shoot your claims/reserves into the heavens.

v  Stop wasting money and time on FCE’s. One of our readers advised this decision stands for the proposition that an IME doctor can’t order an FCE. If you read the decision, it appears the Commission wouldn’t approve a third FCE; we wouldn’t have wasted the time and money on the first two!! We truly don’t care if that is an offshoot of the bigger issues being addressed—we dislike and despise the whole concept of FCEs that are wholly unscientific and many times, silly.

v  In our view, it is very, very rare to see an FCE that provides an unexpected level of work restriction. By that we mean, someone with an operated low back isn’t going to be found to be capable of lifting 100lbs. in an FCE in this state. We assure you we can predict the outcome of most FCE’s and one doesn’t need a crystal ball to do so.

v  Particularly in the construction and trucking industry but in almost all IL WC claims, when the defense side asks for an FCE, it is usually a journey to WC claim disaster. If you aren’t sure, claimants’ counsels love to have the defense industry collectively shoot ourselves in the foot with such “testing.” Claimant counsels very carefully coach claimant on precisely what to do to get the “golden diagnosis” of permanent restrictions.

v  Contact Keefe, Campbell, Biery & Associates and get claims like this audited for free. This is a very significant claim with mid-six-figure exposure. With respect, we feel there may have been numerous mistakes made—we could have provided this employer and its adjusters lots of other options that wouldn’t stall and delay the optimal outcome.

v  Contact Keefe, Campbell, Biery & Associates and get our recommendations for top-notch voc providers who can work with all sides to get folks back to the workforce smoothly or document they aren’t trying.


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Synopsis: Will California Class Actions Force “Suitable Seating” at Work? Let’s Hope This California Concept Isn’t Coming to a Workplace Near You! Thoughts and analysis from Shawn R. Biery JD, MSCC


Editor’s comment: About four years ago in California, several lawyers came up with the idea to begin lawsuits based upon a decades-old mandate that seats be provided to workers whose jobs do not necessarily require standing. Since 2009 California courts have grappled with a wave of lawsuits and litigation targeting large retailers, groceries and banks for not providing seats to clerks and cashiers. The so-called "suitable seating" cases have yielded conflicting rulings from state and federal courts on class certification and motions for summary judgment. The first trial in a seating class action is starting in San Francisco before U.S. District Judge William Alsup in Garvey v. Kmart11-2575. This bench trial will focus on 65 cashiers employed by one Kmart store in the central valley city of Tulare, CA and involves maximum penalties of about $500,000. Judge Alsup is on record indicating he intends to use the case to test the manageability of statewide certification.


The California regulation at issue has been on the books for decades and states in part "all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." Even more incentive for the State comes from the recent claims being brought under California's Private Attorney General Act of 2004, or PAGA, which means 75 percent of penalties flow into the CA state treasury for enforcement of employment laws. Prevailing employees are entitled to 25 percent of penalties with attorney fees and costs paid by Defendant employer. Because of these incentives, the lawsuits do not allege damages and instead seek civil penalties established by PAGA of $100 per employee per pay period for a first violation, and $200 per employee per pay period for subsequent violations—THERE IS ALSO NO REQUIREMENT EMPLOYEES PROVE THEY SUFFERED PHYSICAL OR EMOTIONAL HARM!!


Legal observers have noted no state or federal appellate courts appear to have analyzed the language of the rule and whether the work of a cashier or teller can reasonably be performed while seated. From our research it does not appear any court has ruled employers are required to give seats to sales associates or cashiers. A recent San Diego County Superior Court case resulted in a decertification of a class of 15,000 Rite Aid cashiers and clerks, concluding individual analysis of each employee's job responsibilities was preferable to a class action. That Rite Aid ruling referenced a federal judge's termination in May of a similar case against CVS which has been appealed to the U.S. Court of Appeals for the Ninth Circuit.


Judge Alsup is the first federal judge to certify a suitable seating class, finding Kmart had a uniform policy of not providing seats to cashiers in its Tulare store. He also reportedly declined to consider expert testimony from Kmart that some cashiers would be too lazy to stand up to safely lift heavier items and rejected arguments class-action lawyers improperly concocted the lawsuit before they had a single client. In San Jose, U.S. District Judge Edward Davila has followed with an August 2012 order certifying a statewide class of 22,000 Wal-Mart cashiers in a case potentially worth more than $150 million.


There is now a split among District Courts in California, and Wal-Mart has appealed class certification. There is a request to stay proceedings pending a decision from the Ninth Circuit which has not been ruled upon. In a distinct case currently at the Ninth Circuit, U.S. District Judge Manuel Real in Los Angeles dismissed Plaintiffs' claims after finding Bank of America only had an obligation to make seats available to employees to the extent that they want them or request them, not necessarily a legal duty to ensure every employee has a seat, regardless of whether they want one or not. In an amicus curiae brief, lawyers for the California Retailers Association, California Grocers Association and California Chamber of Commerce argued businesses should be able to decide whether an employee sits or stands while on the job.


It appears the upcoming trial will focus on the job duties of a cashier and whether that work reasonably permits the use of seats with ergonomics expert testimony anticipated. Our general advice to clients in all situations where ergonomic issues may arise is to ensure there are written policies regarding work duties and availability of accommodations if necessary which may include providing seating if the job allows and to place seats near employee work areas if necessary. We will keep you updated on developments.


This article was researched and written by Shawn R. Biery JD, MSCC and you can contact him directly with any questions at sbiery@keefe-law.com.




Synopsis: U.S. WC adjusters should take a look at iRatings for your impairment ratings needs.


Editor’s comment: We met these folks at the National WC Conference in Las Vegas last week and were very impressed. iRatings offers a versatile suite of services aimed at assisting their clients with identifying inaccurate impairment ratings, correcting identified errors and disputing erroneous ratings through litigation or other claims strategies. With this goal, they offer the following services:


ü  Rating Reviews


iRatings will review an impairment rating report and applicable medical records to determine the accuracy of the impairment rating assigned. They will then issue a report identifying any errors found within the rating report, outline the correct methodology under the AMA Guides to the Evaluation of Permanent Impairment and provide a corrected rating. The review and report can be basic, intermediate or complex, based on the nature of the case.


ü  Correspondence


Along with any rating review and report, iRatings can provide the claims examiner or attorney with a letter that can be sent directly to the rating physician. This letter can be used to proactively address the issue of impairment prior to MMI, or can be used to address specific concerns with a rating that has that has already been assigned. iRatings can also respond to correspondence from the rating physician, and can issue addendum reports based on this correspondence.


ü  Consultation


The folks at iRatings want you to know they are here to assist you in obtaining accurate impairment ratings until you have reached full resolution of a claim. This means they are available for email/text/phone consultation prior to depositions or hearings and, if necessary, they can testify as an expert witness at trial or hearing. Through review and consultation, iRatings is committed to ensuring national and regional insurance carriers, third party administrators and employers pay appropriate permanent partial disability benefits based on an accurate impairment rating. The entire team of iRatings is comprised of Certified Impairment Raters with the relevant experience required to maximize their services.


As Illinois WC risk managers and adjusters are new to the impairment rating issue, this could be a very solid source moving forward, particularly if you get into a battle over the accuracy of an impairment rating. Feel free to contact them directly via email to info@iRatings.us or phone: 858-413-RATE, fax: 717-490-7283.

 Synopsis: Welcome aboard, Joseph B. Moore.


Editor’s comment: Keefe, Campbell, Biery & Associates proudly announce the addition of Joe Moore, J.D. to our legal team. Joe is licensed in IL and IN and will focus his practice on defense of folks like you who face the enormous challenge of keeping your company’s costs and reserves low in aggressively defending your workers’ compensation, general liability, employment law and motor vehicle defense. Joe is up for the challenge—feel free to contact him at jmoore@keefe-law.com.