12-23-13 NEWS FLASH IL Supreme Court Strikes Traveling Employee Expansion; Medicare Update by Shawn R. Biery, JD, MSCC; IRS Mileage Rate Announced for 2014 and more

Synopsis: Clearly There is a Sanity Clause!!! The IL Supreme Court Returns Our WC System To Only Covering Work-Related Injuries.


Editor’s comment: Happy Holidays to all of our readers!! We are very happy to advise the IL WC system reversed the decision of the Appellate Court, Workers’ Compensation Division in The Venture-Newberg-Perini Webster & Stone v. IWCC. The high court’s ruling is online at:http://www.state.il.us/court/Opinions/SupremeCourt/2013/115728.pdf


In the lower court ruling and three other similar appellate rulings that followed it, workers were injured going to or coming from work or on breaks. Illinois suddenly and without any warning defined “traveling employee” as any worker who


·         Worked at any worksite that wasn’t the “premises of their employer”;

·         Worked at two or more worksites for the same employer; or

·         “Traveled” as an essential part of their work.


We felt this was effectively global 24/7 WC coverage for many workers in a billion-dollar expansion of WC costs. Please note these odd and unprecedented definitions are not contained in the 104-year-old IL Work Comp Act or Rules Governing Practice. With respect to our jurists, it is our view these now-defunct terms/definitions were all “judicial legislation.” These definitions would render almost every construction worker, staffing employee, municipal employee, attorney, physicians/nurses and all transportation workers into the new legal status of “travelers.”


Having created these unprecedented definitions, the lower court ruled “traveling employees” were covered under workers’ comp or occupational illnesses for any “reasonable and foreseeable activity” from the moment they left their homes until they returned home. The coverage was applied “as a matter of law” so to dispute coverage would result in penalties/fees against the insurer/TPA. In our view, anyone who worked at their home would be covered all day and night. Again, the term “reasonable and foreseeable activity” isn’t defined in the Act or Rules. It is our view 99.99% of human activity leading to injuries and illnesses can be deemed “reasonable and foreseeable”—the terms are unquestionably subjectively viewed in the eye of the beholder because what is “unreasonable” to you might be very reasonable to another. Now, that concept has also been cancelled, invalidated and negated by our highest court.


Basically, what we would have been left with was two wildly different WC systems. One system was for “travelers” as outlined above—they were covered for any malady, injury or illness as a matter of law. The other system was the traditional WC system where you had to show your injury “arose out of and in the course of” employment.


Our IL Supreme Court overwhelmingly tossed all of it out as of December 19, 2013. As court-watchers and academicians, we were moderately happy to see the majority ruling consider whether the issue was factual or legal in origin. Our highest court clearly indicated it didn’t make any difference—under either standard, the lower court and IWCC ruling was over and out.


Is Anyone Embarrassed About This Mess?


Illinois work comp law isn’t that complex. As we advised, it has been around for more than a century. Here is how the IL WC administrative system handled the issue through five different levels of hearings/appeals:


Hearing Officer/Reviewing Court

For Traditional WC Legal Interpretation

For New, Unusual and Unprecedented WC Law


Benefits denied


IL WC Commission

One vote for denial

Two votes for New Rule

Circuit Court

Benefits denied


Appellate Court, WC Division

One vote for denial

Four votes for New Rule

Supreme Court

Six votes for denial

One vote for New Rule


Our IL WC Commission and penultimate reviewing court gave us literally no warning as to what they were doing in the explosive and expansive interpretation provided. On December 6, 2012, the IL WC Appellate Court created new law that no one expected and that clearly would have pushed our state to become the most expensive state in the union for WC costs/premiums/benefits. All of the legislative reforms from 2005-6 and 2011 would have been completely reversed in a random and unfair fashion by our judiciary. Thankfully, 378 days later, the IL Supreme Court flushed it all down the drain and returned us to “sanity.” Our hope is to our IWCC and judiciary follows the law, as drafted, and no longer feels compelled to be a “super-legislature” moving forward.


How Did It End?


Well, you have to give full credit and kudos to our highest court and its illustrious members—they followed the law and common sense and tossed it out. You also have to give credit to lead defense attorney Ted Powers who fought and fought and won the ruling. The IL State Chamber provided their input for their members and followers with a solid report about IL WC judicial “activism.” We were also certain the IL State Chamber was ready with even more legislative changes to try to reverse this concept, if the courts wouldn’t do so.


Without meaning to toot our own horn too much, we also feel the great defense team at KCB&A earned some credit for our hard work in letting all sides understand how silly, unfair and unsustainable this legal concept was—we remain thrilled to see the confusion, costs and craziness kicked to the curb forever.


What Do We Take From It?


We continue to feel there is a group from ITLA or the Plaintiff/Petitioner’s bar that doesn’t agree IL WC costs should be reasonable and predictable. This same group doesn’t care if their WC ideas make sense for all sides or fit into traditional workers’ comp principles. They sometimes have the ear of the IWCC and our reviewing courts and won’t stop trying to influence them whenever and wherever possible. While we are sure their efforts are legal, we don’t feel outcomes like this are in any way a good idea for this state. We feel major national employers like Boeing and Safeway lose interest in doing business in our state when they see such confusion and chaos.


As we told our readers last week, simple concepts like firefighters shooting hoops during idle hours clearly isn’t covered under our IL WC Act. The Arbitrator and IWCC panel that recently awarded benefits circumvented the clear statutory scheme by playing with the facts or the law in a fashion that we consider similarly embarrassing—we just don’t see an “wriggle-room” on the topic. When they do things like that, we will forever think of rulings like this one from our highest court saying it doesn’t matter whether you look at the law or the facts, it just isn’t covered.


Our message to the entire IL WC community is clear—provide benefits to IL injured workers to the extent our legislature outlines them. Follow the simple and patent meaning of the law provided to you. Don’t finger-paint new law that no one has considered or expects. We don’t feel the administrators at the IWCC or reviewing courts should have license to deform the statutory language in new, untested and unprecedented ways.


The 2005-6 and 2011 Amendments to the IL WC Act were forged in the hard light of day with all sides present and providing their input. No one on either side of the IL WC matrix likes all of the changes but we are all stuck with them. We are confident the amendments will work to bring our WC costs in line, if we adhere to them.


God Bless All Of Our Readers, Friends and Clients. Season’s Greetings to you and your family.




Synopsis: Update on WC Medicare Issues: More Specific Guidelines on Protecting Medicare’s Interests; Watch for Penalties!


Editor’s comment: The Centers for Medicare & Medicaid Services has submitted two items of interest to our readers for review to the Office of Management & Budget (OMB) in recent months with regard to Medicare Secondary Payer Compliance. The OMB is being asked to approve a Notice for Proposed Rule Making with regard to how CMS expects its interest with regard to future medical be managed in liability claims and has also moved forward to on setting rules regarding Mandatory Insurer Reporting Penalties.

Once approved by OMB, the separate rules will be unveiled for public comment and the public commentary period is then open for 60 days. Assuming the amount of public comment anticipated, there is likely to be a Further Notice of Proposed Rulemaking issued which would extend the process and delay any rule being finalized to the point of having a Report & Order is issued.

You should expect something no sooner than sometime during the first quarter of next year. While the liability claim rules only peripherally affect WC claims with some liability issues concurrent, the rules with regard to safe harbor consistent with the requirements of the MMSEA law of 2007 and the SMART law signed into law in 2013 will be important to know your risk if Medicare’s interests are not seriously considered. It should be noted that there is no true set time frame for CMS to act so the process is open ended to an extent. We will continue to update as the notices come out and are prepared to present public comments to pressure for favorable rules for our clients.

This article was researched and written by Shawn R . Biery J.D., MSCC and he can be reached at 312-756-3701 or sbiery@keefe-law.com. Both Shawn and Matt Ignoffo at mignoffo@keefe-law.com  are certified MSA consultants in our office who are prepared to field any questions you may have.



Synopsis: IRS Announces 2014 Standard Mileage Rates.


Editor’s comment: Claims handlers should adjust IME mileage payments. In Section 12 of the IL WC Act, the law requires self-insured employers, insurance carriers and TPA’s to provide mileage, meals and time lost from work to be paid as part of scheduling an IME for an injured worker. On Dec. 6, 2013, the Internal Revenue Service issued the 2014 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes. This is the rate used by the IWCC to provide mileage for IME’s.


Beginning on Jan. 1, 2014, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:56 cents per mile for miles driven. The expense rate decreased one-half cent from the 2013 rates.


If you have questions or concerns, send a reply.




Synopsis: What Does a U.S. Employer Do With a Worker That Has Severe Medical Issues?


Editor’s comment: Under the ADA, this question is coming at us more and more. In Gogos v. AMS Mechanical Systems, Inc., our federal Seventh Circuit Court of Appeals considered a claim where the employee filed a suit for disability discrimination claim against his employer. The worker alleged he was disabled because of episodes of very high blood pressure, intermittent blindness, and chronic blood-pressure condition. He further alleged these medical problems substantially impaired major life activities involving his circulatory function and eyesight.


Despite all of those significant and game-changing medical problems, the worker alleged he was qualified to perform the “essential functions of his job.” In our view, unexpected temporary blindness would render any worker a health and safety risk to themselves and others. However, we feel the employer would have to carefully evaluate the medical condition’s inception, duration and severity before taking job action.


This worker alleged he suffered an adverse employment action because of his disability, in that he was fired immediately after he reported his medical conditions to his foreman. In our view, the employer has to document, document and further document their investigation, attempts at reasonable accommodation and overall handling of such conditions. If you need help in dealing with similar claims in your workplace, send a reply.