11-24-14; Cover Your Cough at Work, Folks--Exotic Travel with Exotic Disease = Death Benefits; EEOC Sues Employer over Pre-Employ Testing/Question; Rauner-Watch + IWCC News and more

Synopsis: Eight Years Later, Death Benefits Under IL OD Act Finally Provided for Creepy Ebola-like Disease. “Cover-Your-Coughs” at Work, Folks!

Editor’s comment: There are two odd things about this ruling. First, your editor was asked for and provided a detailed opinion about defending this death claim in 2006. There were a couple of defense firms who were asked their thoughts. We wrote up a detailed analysis and told the employer and their claims people it was a compensable death claim and to either settle amicably or just pay the widow. Almost everything you will read in the decision was predicted in our analysis—it was clear to us and we feel most veteran claims handlers would also see this unusual and exotic infection would be ruled to have occurred during Decedent’s distant travels, which were unquestionably part of his job. How would you feel if your boss sent you to Asia/South America and you came home sick with a horrifying strange disease and your employer denied your claim?

We are chagrined to see a hapless defense firm advised the employer it was a fight they could win but lost badly. The firm was able to “un-defend” the death claim for eight years. In our view, the defense attorneys were lucky to avoid what would have been a substantial award of penalties and fees to drag out an expensive claim such as this with nothing being paid to the widow for over eight years—we estimate the current amount due to the widow to be more than $500,000 plus judgment interest at 9%. She will receive benefits for about 12 more years—we feel the KCB&A defense team could have amicably and favorably settled for a lump sum years ago.

Second, as a purely technical issue, it appears the widow didn’t appear before the IWCC/reviewing courts or present the claim as a ‘widow.’ She presented the claim as the wife and “special administrator” of something. Section 7 of the IL WC Act and the parallel section in the IL OD Act don’t provide any benefits for a “wife” or a “special administrator.” To the extent she is supposed to meet the requirements of the relevant legislation, our advice to attorneys on both sides is have the claim and caption match the Act under which you will proceed. Obviously, the IWCC and the venerated members of our Workers’ Compensation Division of the Appellate Court weren’t strongly concerned with the legal standing of the widow to proceed with the claim under whatever legal title she or her attorney chose.

In Omron Electronics v. IWCC and E. Belinda Bauer, our Illinois Appellate Court, WC Division affirmed an award of death benefits to the widow of an executive who died after contracting Neisseria meningitides. Neisseria meningitides is routinely confused with the more commonly known bacterial condition of meningitis--they are related diseases. Meningitides is often referred to as meningococcus; it is a bacterium that can cause meningitis and other forms of meningococcal disease such as meningococcemia, a life-threatening sepsis. N. meningitides is a major cause of illness and death for childhood in industrialized countries and has been responsible for large-scale epidemics in Africa and in Asia.

Yes, N. meningitides is a yucky and aggressive killer, just like Ebola and can be contracted from someone coughing on you. For safety/risk managers and others, as a safety thought, we recommend you require everyone in your facilities to “cover their coughs” by sneezing into the elbow. You might want to go a step further and make “cover your cough” part of safety training and an enforced safety rule. For the past five years, the Centers for Disease Control and Prevention, most doctors and safety managers have been encouraging everyone to cough and sneeze into their elbows. Plan B is to cough/sneeze into a tissue and dispose of it quickly. The reasoning makes sense, as we touch a lot of things at work including our mouths, and most workers don’t run to the bathroom to wash their hands every time they cough or sneeze.

To our recollection, at the time of the infection, Decedent Bauer was the president of Omron Electronics. As part of his job, he would travel all around the work on what were effectively sales calls. He became infected apparently while on a business trip to Sao Paolo, Brazil. The Appellate Court, WC Division ruling noted the parties offered conflicting medical evidence about the infection and rapidly ensuing fatal condition. The unanimous IL Appellate Court ruling followed longstanding law to confirm it was within the sound province of the IL Workers’ Compensation Commission to resolve such conflicts and make a determination as to the scientific opinions and weight of expert testimony and reports.

The widow’s experts opined Sao Paulo, Brazil was a well-known area where there was an increased incidence and prevalence of Neisseria meningitides. While the disease was considered somewhat rare, even in Sao Paulo, the endemic rate there was at least twice the rate of the condition in the United States. There was no dispute the Omron executive became rapidly and visibly ill and then quickly passed within a few days of returning to his family from Brazil. Prior to the trip to Brazil, the executive had traveled to Japan and China where medical experts indicated he likely contracted bronchitis that made him more susceptible to the deadly strain of Neisseria meningitides. The employer’s defense counsel countered the incubation period for the disease was two to ten days, pointing to a time before the executive traveled to Brazil. They also asserted there was no direct evidence showing the executive had come in direct contact with anyone carrying the disease germs while in Brazil. The Appellate Court, WC Division clearly disagreed, noting the executive had been in public places and evidence supported the Commission’s findings.

Their ruling is on the web at: http://www.state.il.us/court/Opinions/WorkersComp/2014/1130766WC.pdf

Please note we aren’t telling our readers that OD cases can’t be fought and won—each claim has to be weighed on its merits. While this one appeared to be a loser to us, the defense team at KCB&A has won many OD disputes or resolved them very favorably. If you need assistance on defending such claims, please send an email with the relevant facts and we will provide our best thoughts.

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

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Synopsis: EEOC Sues IL Employer for Using Screening Exams and Questionnaires to Avoid Hiring Carpal Tunnel Claimants.

Editor’s comment: We saw this one on the web and want our readers to know about it, particularly if you are doing pre-employment medical screenings. We are familiar with the chipper-grinder position and we assure our readers it is a very challenging job with a high incidence of CTS—we understand why an employer would want to minimize the risk of the condition. We have some thoughts for employers about the best approach and will provide them if you send a reply. That said, we feel confident this is not the optimal path. Either way, we feel one of the worst things that can happen to a U.S. employer is to be sued by our federal government, as the feds have basically an unlimited budget.

In EEOC v. Amsted Industries and Amsted Rail, the Feds filed suit under ADA and the Civil Rights Act to correct allegedly unlawful employment practices on the basis of disability and to provide relief to a class of job applicants who were denied employment opportunities because Defendants regarded them as disabled and / or because they had a record of a disability, carpal tunnel syndrome. The EEOC alleges Defendants violated the ADA when they refused to hire a class of qualified applicants for employment as chippers because of this alleged disability.

One Plaintiff filed a charge with the Commission alleging violations of Titles I and V of the ADA by Defendants. On February 28, 2013, the EEOC found reasonable cause to believe Defendants discriminated against a class of similarly aggrieved job applicants in violation of the ADA. Conciliation efforts required by law occurred and were unsuccessful.

The EEOC alleges Defendants engaged in unlawful employment practices at their Granite City facility due to medical evaluations of applicants for chipper/grinder positions. A chipper uses a chipping hammer or grinder to remove metal protrusions from steel castings. Defendant Employers require applicants for the position of chipper to undergo a medical evaluation as part of the application process. The medical examination consists of the completion of a medical questionnaire, taking of the applicant’s vital signs, and administration of a nerve conduction test and physical agility tests.

The complaint indicates Midwest Occupational Medicine was under contract with Defendants to perform medical evaluations of applicants for the chipper position. Dr. Dirker owns Midwest Occupational Medicine and is board certified in internal medicine. The allegations outline Dr. Dirker relied on the nerve conduction velocity test results without any further inquiry or examination of applicants before making a decision about candidates’ qualifications for hire.

The EEOC specifically alleged the nerve conduction test results used by Defendants and Midwest Occupational Medicine during the hiring process do not reliably predict applicants’ likelihood of developing carpal tunnel syndrome. The Feds further claim Defendants did not rely on the most current medical knowledge in using only nerve conduction tests and / or applicants’ prior record of carpal tunnel syndrome in concluding that particular applicants were medically unqualified for chipper positions. The allegations indicate the most current relevant published medical literature does not support the use of nerve conduction test results alone nor the use of prior history alone to predict the development of carpal tunnel syndrome. The Feds feel such tests are considered largely ineffective at predicting a person’s current ability to perform the essential functions of a position which requires repetitive hand motion such as the chipper position.

In effect, all workers were sent to the same doctor who examined them, asked them to fill out a very detailed and lengthy medical history and they would then be given the NCV test. If either the history included anything about CTS or the NCV indicated any findings positive for CTS, the worker was not hired. We are simply reporting the existence of this lawsuit and cannot comment on its merits.

The EEOC is seeking a permanent injunction stopping the whole process, normal damages for the class members and punitive damages. We will keep you posted on developments.

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Synopsis: Rauner Watch and Illinois WC News of Note.

Editor’s comment: Here are recent developments we consider of importance.

1.    Will Bruce Rauner toss the IL WC system under a bus?

To our understanding, no. Our new Gov-elect Bruce Rauner has learned what a smoking mess things are in IL State Gov’t in Springfield. He has learned there are more feudal fiefdoms than Medieval Europe. There is a reason our much-too-entrenched government leaders have already borrowed and spent $110B of our money—chaos. We have heard rumors to indicate there are several hundred different state government accounting systems and few of the systems interact. Our new leader is going to have to work with the deeply rooted legislators who created the mess. We are told Gov-Elect Rauner is seeking assistance from execs in the private sector to help with the transition--we are happy to assist in any and every way, if we receive direction from his transition team on how to do so.

To the various Petitioner/Plaintiff lawyers who consider any change to be the end of our workers’ comp system, we point out IL WC claims are down by more than half because hundreds of thousands of jobs and people have left our state. If state taxes have to dramatically go up again to keep paying for unnecessary government payrollers with unfundable pensions, redundancy and waste, even more private jobs will move. As we tell our kids, you have to fix things or the world may fix them for you.

2.    Are we going to have a new IWCC Chairperson?

We vote for continuity in Current IWCC Chair Mike Latz and his team but we are unsure if that will happen. We feel he would effectively input any changes, including budget cuts, if recommended by the current Governor. Chairman Latz will also be a transition point for all Commissioners and Arbitrators. Gossip abounds with about six different defense lawyers suggested as the new Chairperson. We have no idea if there is a selection process ongoing or if it is already a done deal. If we get news that is fit to print, we will let our readers know.

3.    IL WC Arbitration territory changes in 2015.

As of now, all Collinsville/Belleville cases are set in Collinsville. The IWCC has not been able to reserve the Belleville location during the trial cycles. If that changes, they will announce it. Zone 4 now consists of New Lenox, Ottawa, and Kankakee, a new site. Zone 6 now consists of Geneva, Wheaton, and Elgin, another new hearing site. A new accident location table has been posted. All Chicago cases that were assigned to Zone 6 arbitrators will be reassigned to new Arbitrators Bocanegra and Fruth. To fill out the new arbitrators' caseloads, other Chicago cases will be reassigned as well.

4.    2015 Arbitration calendars posted.

The 2015 Arbitration calendars are now online. The Commissioners' calendar will be posted on the IWCC’s great website as soon as it is ready.

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Synopsis: Sharpline Allocations, Our Favorite U.S. MSA Provider.

Editor’s comment: One of the great vendors in Vegas last week is the team from Sharpline Allocations. Sharpline Allocations is a customer service and relationship driven provider of Medicare Compliance and Settlement Planning services. At Sharpline, they understand each client’s unique needs, and deliver customized services that allow the claims professional to have complete certainty that each claim is in full compliance with Medicare Secondary Payer regulations.

The main differentiator between Sharpline and their competitors is great service and their hands on approach. They not only make recommendations, but provide assistance and follow up on with adjusters, risk managers, nurse case managers, Plaintiff/Defense counsel and other vendors to follow through on suggestions to reduce exposure and the potentially high cost of an MSA. They stay with the MSA until settlement, as opposed to moving on from the MSA once completed.

They are also piloting a new MSA Intervention program with one of their National accounts that has significant exposure at this time. The idea is that as soon as a Medicare eligible claimant reaches MMI, the file is referred to Sharpline for early intervention/bird’s eye view of any issues and to make recommendations to prep the claim for future settlement with closure of medical rights, and dramatically reduce MSA exposure by that time. This will potentially reduce the future MSA exposure and reserves. It will also drive claim costs down as the client will be able to settle and get the claim closed faster, rather than waiting to address issues at the time of MSA.

They can discuss this concept further if you are interested or to address any questions/ concerns. If you want more information, go to their great website at http://www.sharplineallocations.com/