11-26-13; Goodbye Doug Whitley, You Will Be Sorely Missed; Shawn Biery on New GL Settlement Law; Ellen Keefe-Garner about Work Fatality Stats and much more

Synopsis: Illinois Business to Lose Doug Whitley, Its Long-time Workers’ Compensation Legislative Guru and Guardian Angel. We thank him for his hard work, humor and intelligence and wish him all the best in his next venture.


Editor’s comment: We are truly going to miss the top leader for Illinois business in one of the gloomiest states to do business in the United States. Last week, Doug Whitley, president of the Illinois State Chamber of Commerce, announced he plans to retire in June 2014. Whitley, now 63, became president in September 2001 which had to be one of the odder months to start a job, as our nation was in the midst of recovering from one of the worst attacks on U.S. soil in our history.


During his great tenure, the State Chamber has stridently represented IL business interests including two sweeping workers’ compensation reforms. Doug and his team also helped to defeat a gross receipts tax. He founded and co-chaired the Transportation for Illinois Coalition which advocated infrastructure investment. Doug has fought for fiscal integrity in our always-bankrupt IL State government that just bought giant copper doors for the State Capitol but can’t timely pay billions in overdue government bills. Doug also worked to draft and support legislation to bring long-term solvency to Illinois impossibly underfunded government employee pension systems that borrows and pays more to retired government workers than it pays to active state workers.

Doug entered his position at the IL State Chamber during one of the more tumultuous times in our State’s sordid political history. When Doug got the position in 2001, former Governor George Ryan was under a cloud of indictments. George Ryan had 76 different staff members eventually convicted of crimes and was then convicted himself. Out of the ashes of George Ryan’s repugnant legacy rose Crooked Rod Blagojevich who falsely promised to “clean up Springfield” and was tried twice and convicted once and will be enjoying the cuisine in federal prison until at least 2024.


Few people remember Crooked Blago “sold” the Illinois Workers’ Compensation Commission to win his first gubernatorial primary in 2002. As we stroll down memory lane, you might remember Blago was in a tight three-way primary in 2002. He went to Southern IL and made a deal with the folks in Metro-East to get political support by promising control of the good ole Illinois “Industrial Commission” to those politicians. When the election was over, the Commission’s name was quietly and rapidly changed at the whim of the new administration to “Workers’ Compensation Commission.” IWCC Funding was switched from our state general revenue fund to a levy solely on IL Business—the Commission’s budget tripled and, in our view, remains very high right now. Lots of new Arbitrators, including many former Petitioner attorneys were appointed; awards went up, goofy pro-Petitioner legal theories abounded. IL WC premiums/costs went from 24th to 4th highest in about six years. The Commission’s own 2012 Annual Report indicates from 2006-2010, IL WC benefits grew over four times the rate of other states.


In the middle of all that craziness, Doug Whitley quietly, smoothly and strongly kept working for the interests of IL Business. Doug and his team toiled behind the scenes and out front of the public and legislature to make lots of needed and effective changes. Illinois WC has changed a lot and changed for the better under his quiet aegis. The defense team at Keefe, Campbell, Biery & Associates worked with him and his IL State Chamber Employer’s Law Council to provide training and news of WC trends and changes to IL WC law. KCB&A has provided IL WC training, consultation and webinars for IL State Chamber members for many years. If you are interested in such training, send a reply.


Doug Whitley worked to create and implement the 2005-6 Amendments to the IL WC Act that did have some effect in cutting costs. Much more important were the 2011 Amendments to the IL WC Act that brought:


      WC PPP’s to our state for the first time, cutting choice of medical care for companies smart enough to use the new networks;

      A significant cut to the Illinois Medical Fee Schedule, reducing medical reimbursements to 53% of billed amounts;

      Strengthened UR provisions, cutting overtreatment;

      For the first time, implemented Impairment Ratings to bring our generous permanency awards into line with other states;

      Strengthened WC Fraud provisions;

      Reinforced WC Alcohol-Drug Use defenses;

      Limited Wage Loss Differential Awards.


In the next nine months to the end of his tenure as President, we hope Doug Whitley will keep working to stop the wild and unprecedented expansion of coverage of the IL WC/OD Acts following the mildly misleading “Traveling Employee” court-created legal concept that provides generous IL WC/OD benefits for workers who aren’t on the clock or at work or even near work when injured or ill. Illinois now has two parallel systems for workers’ compensation and occupational disease and this new model is going to be very, very expensive for business and government. We don’t feel the “Traveling Employee” expansion to cover non-work-related injuries is sustainable—it is a cancer on IL business that is certain to drive whole industries out of our state, as these increased WC/OD costs land. If you aren’t sure how, send a reply.


Doug and his legislative team are uniquely positioned to let State Government, the City of Chicago and all Illinois governments understand how this crazy enlargement will triple or quadruple their WC costs and put greater pressure on budgets and will rapidly cause taxes to rise. We hope Doug Whitley gets the message out to all his members and keeps on doing the great work he has done for the last dozen years. From all the partners and associates at KCB&A, we thank him one more time. If you know anyone interested in taking over his position in the eye of the IL State Chamber hurricane, go to their website for more information at www.ilchamber.org.


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Synopsis: Forewarned is forearmed. IL GL/EPLI adjusters and risk managers need to exercise triple caution in “creating” and paying settlements in a  timely manner to avoid penalties and interest in Illinois. Analysis by Shawn R. Biery, J.D., M.S.C.C.


Editor’s comment: Governor Quinn signed a new law which takes effect January 1, 2014 which is designed to expedite payment of settlement funds to plaintiff attorneys and contains language which is going to lead to increased penalty issues for the uninformed and slow-to-pay adjusters, risk managers and defendants.


This law does not apply to typical IL WC settlements that have to be approved by the Arbitrators/Commissioners and have their own IWCC rules. It may apply to IL WC settlements that are intertwined with general liability settlements—if you aren’t sure, send a reply to sbiery@keefe-law.com and we will get you a rapid answer.


Public Act 98-548 creates a new "Part 23" of the Civil Practice Law in the Illinois Code of Civil Procedure which will be titled "Settlement of claims; payment" (735 ILCS 5/2-2301). This new law essentially amends the Code of Civil Procedure to create an enforcement mechanism for cases in which the parties agree to settle, but Defendant or its adjuster won’t comply with the agreement. It appears limited to cases seeking money damages involving personal injury, wrongful death, or tort action and will require a settling defendant to pay all sums due within 30 days of tender of all applicable documents required under this new section. It will also require a “settling defendant” to tender a release to the plaintiff within 14 days of written confirmation of the settlement. 


BE AWARE—this means if plaintiff attorney sends a confirmation agreeing to settlement in any written form (fax-email included), 14 days starts to run to send them the applicable documents and once those documents are sent, you have to have payments issued within 30 days of the tender of those documents. We are cautioning all of our clients and readers—if you discuss settlement in any fashion with opposing counsel and don’t reach agreement, you may want to consider sending an email or fax confirming you didn’t reach an agreement to cover you from OC unilaterally sending a confirmation of settlement letter and causing issues and litigation you won’t want.


There is one caveat for cases needing court approval, such as a settlement involving a minor or an estate--If the law requires court approval of a settlement, Plaintiff must tender to Defendant a copy of the court order approving the settlement.


If there is a known third-party right of recovery or subrogation interest, Plaintiff may protect the third party’s right of recovery or subrogation interest by tendering to Defendant:


(1) A signed release of the attorney’s lien; and

(2) A letter from the plaintiff’s attorney agreeing to hold the full amount of the claimed lien in the plaintiff’s attorney's client-fund account pending final resolution of lien amount; or

(a) A signed release of the healthcare-provider lien or documentation of the agreement between the plaintiff and Medicare or private health insurance company as to the amount of the settlement that will be accepted in satisfaction of the right of recovery; or

(b) An offer that defendant will hold the full amount of the claimed right to recovery pending a final resolution of the right to recovery; or

(c) Documentation of any other resolution of the liens as agreed to by the parties.


If the court finds, after a hearing, that payment has not been made within 30 days of tender of the necessary documents, judgment must be entered against that defendant for the amount in the executed release, costs incurred in obtaining the judgment, and 9 percent interest from the date of Plaintiff’s tender.


Ironically, one of the slowest payers in the state, the State itself is exempt as the new law exempts units of local government, the State of Illinois, and state employees. The new law will make it more difficult to achieve Medicare Secondary Payer compliance as well unless the terms are very clear about when payment would be made for such issues. For that reason, it appears a number of insurance and industry groups objected to the new law.


The law is triggered when a “settlement” occurs as noted above so it will be very important for defense attorneys and adjusters alike to exercise caution in all writings (e-mail, letters, notes, faxes, etc.) so as to not trigger a “settlement” unless all terms are clearly laid out as conditions precedent including any hold back on potential Medicare funds. Our usual advice for any conditional payment is to agree to resolve conditional payments to Medicare directly, since providing the conditional payment amount direct to plaintiff/petitioner does not protect from Medicare seeking payment directly if not paid.  So the settlement will need to be very clear or you may end up double paying and paying with interest. The law requires the defendant to pay the settlement amount to plaintiff attorney within 30 days, if plaintiff attorney includes a letter that he or she agrees to hold the money in their trust account until the conditional payments are resolved.


With regard to Medicare, defendants will still be  required to electronically report to Medicare pursuant to 42 U.S.C. §1395y(b)(8) and this will lead to issues if defendant is unclear as to how plaintiff has or will resolve the conditional payment (again—a bad idea to leave it up to them rather than agreeing to directly reimburse after Medicare identifies the amount due) and the data submitted by defendant may differ and result in gaps between what was reported by the defendant and the information submitted by plaintiff attorney which could toll the Medicare statute of limitations.


We suggest agreement to resolve conditional payments directly and proactive identification of conditional payments owed Medicare if possible. Proper prior planning will prevent having to allow the plaintiff attorney to simply hold the money in his or her trust account, as the law does allow the defendant to hold back the funds at the offer of the plaintiff attorney or agreement of the parties.


As always, if you have any questions about successful resolution of your claims or the impact of Medicare on your claims, you can contact our office. This article was researched and written by Shawn R. Biery, J.D., M.S.C.C. and you can reach him at sbiery@keefe-law.com.




Synopsis: Workplace Fatality Statistics Show Promising Trend. Analysis by Ellen Keefe-Garner, J.D., R.N.


Editor’s comment: There is good news and bad news in the workplace these days. On the good side, the Bureau of Labor Statistics, U.S. Department of Labor has reported fewer work place deaths in 2012 with the numbers falling from a 2011 high of 4,693 to a lower number of workplace deaths in 2012 of 4,383. However, the bad news is the Bureau also reported the first increase in construction workplace fatalities since 2006.


Dying is as inevitable as breathing. However, no one wants to die in a terrible accident at work. Unfortunately, death while working at a construction site usually follows from a disaster or mistake. In such cases, the worker does not slip away into the after-life peacefully. Instead, work-related deaths are frequently the result of a fatal traffic accident, a violent encounter in the workplace, or a harrowing fall. 


Last week, the Bureau of Labor Statistics issued a preliminary report indicating a total of 4,383 fatal workplace injuries were reported in the U.S. in 2012. This number represents a decrease in the number of workplace deaths since 2011. In fact, the 2012 total is the second lowest since such totals were first reported in 1992. Despite the overall decrease in fatal workplace injuries, the number of such deaths has increased by 5% in the private construction sector, with the number of such deaths in 2012, 775, representing an increase of 37 from the number of such deaths in 2011, 738. This increase in the number of fatal occupational injuries in private construction marked a deviation in the trend of declining annual rates of death in private construction during each of the five previous years, from 2007 to 2011.


So who is dying? The data shows some differences in deaths among various races. Fewer deaths of white and Hispanic construction workers were reported than deaths of blacks and Asians working in the same occupation. In addition, younger workers fared worse than older ones, with the number of deaths of workers who were 16 and younger nearly doubling, from only 10 such deaths in 2011 to 19 such deaths in 2012. In contrast, the deaths of construction workers age 55 and older declined for the second straight year. 


The manner of death was also studied. Transportation injuries were a frequent cause of death and accounted for 2 out of every 5 fatal work injuries in 2012. Out of the total of 1,789 transportation deaths, 58% of those were roadway incidents involving motorized vehicles. Non-roadway incidents with motorized vehicles like tractors accounted for another 13% of the transportation-related deaths. Another 16% of the transportation-related injuries involved pedestrians who were struck by motorized vehicles. Fatal injuries involving airplanes, on the other hand, declined in 2012 by 14%.


Some of the workplace deaths were related to violence--with both suicides and homicides being reported. Altogether 767 workers died in violent encounters with people or animals, including 463 homicides and 225 suicides. Shootings were the most frequent manner of death in both suicides and homicides. Of the 338 fatal workplace injuries involving female workers, 29% involved homicides.


In 2012, a total of 668 workers died in slips, trips and falls. Falls, which totaled 544, accounted for 81% of such deaths. Strangely, the height of the fall did not have to be great, with about one in four fatal falls occurring from a height of 10 feet or less.


Sixteen percent of the deaths in 2012 occurred after workers came into contact with equipment or objects on the work site. The number of workers who died after being struck by equipment increased by 7% from 476 in 2011 to 509 in 2012. This number includes 233 workers who died after being struck by falling equipment and 199 workers who died after being struck by powered equipment or vehicles. Only 3% of the workers died in explosions, and another 7% died from exposure to toxic chemicals. 


The industries in which the deaths occurred were also studied. The industries with the greatest number of deaths included construction, transportation and agriculture. These industries were followed closely by a large number of reported deaths in government, professional/business and manufacturing.  The fewest number of deaths were reported in the industries of financial activities, information and utilities. 


Occupations were also considered. Fatal work injuries in construction rose for the second year in a row, with a 5% increase from 2011 to 2012.  In 2012, some of the occupations with high fatality rates included logging workers, fishing workers and drivers (including truck drivers).  Fatal injuries to those working in management declined by 8% to 429. This decline was related to a 19% decrease in fatal injuries to farmers, ranchers, and other agricultural managers from 268 in 2011 to 216 in 212. 


Where are the deaths occurring? The state with the highest number of workplace deaths was Texas, with 433 deaths in 2011 and 531 in 2012.  Three other states reported a high incidence of fatal workplace accidents, though at a declining rate, in 2012, with California trending downward from 390 in 2011 to 339 in 2012, Florida declining from 226 in 2011 to 209 in 2012, and New York dropping below 200 deaths from 206 in 2011 to 196 in 2012.  Illinois reported 145 workplace deaths in 2012, marking a drop from 177 in 2011. 


Of course, whenever a fatal injury occurs at work, many factors need to be considered in determining the cause of death. If the family of a deceased worker brings a workers' compensation claim, the incident leading to the worker's demise will need to be very thoroughly investigated and evaluated.


This article was researched and written by Ellen Keefe-Garner, J.D., R.N. who is a licensed attorney and nurse. Please feel free to contact or reply to Ellen at EMKeefe@keefe-law.com.




Synopsis: Self-Insured Best Practices for IL WC, HR, Safety and Risk Professionals.


Editor’s Comment: You are invited to the following:

What: An informal gathering of occupational health and workers compensation professionals, brought together to communicate and collaborate on leading and best practices in the areas of absence management including worker’s compensation, FMLA, short term disability, and group health.


Where: Edward Hospital in Naperville. Edward Hospital is located at 801 S. Washington Street, Naperville IL 60540. When parking on campus please park in the North Parking garage. You will then proceed to the Main Hospital entrance. At the front desk ask to be directed to the Education Center. Take the Education Center elevators to the 2nd floor. Once exiting off the elevator go to the right as we will be located in the Board Room E200.

Click here to see the location on Google Maps.




When: Friday September 20, 2013. Space is limited so please RSVP via email asap.
Time: 11:00 am to 1:00 pm.

Cost: No cost but bring your “A Game” to the discussions!

Meal: Hosted/provided by Go Self Insured, catered by Edward Hospital and Health Services.


What to bring: Your leading practices and best practices that you want to share; areas of concern, roadblocks, processes in needed of improvement, anything that you wish to share that someone else at the roundtable might have a best practice to share with you that will meet your need.


Best Practices: Click here to download th