Synopsis: IL WC Risk Managers/Claims Handlers—Please Don’t Make the Matuszczak-Mistake!!
Editor’s comment: Last week, in Matuszczak v. IWCC, our Appellate Court, Workers’ Compensation refused to rehear the matter which basically makes their ruling final. The matter involved a Wal-Mart worker who suffered an accepted injury but a dispute arose over the need for work-related surgery. While awaiting the hearing and a ruling, it appears the worker was caught stealing cigarettes and appears to have worked out a deal where he admitted the crime and was terminated for it by agreement.
When Wal-Mart and Wally Matuszczak agreed to part company, they weren’t able to also end/settle the pending workers’ comp claim. What happened thereafter was nothing—the injured worker didn’t return to light work elsewhere and his pending WC claim for surgery drug out for about six months. Obviously, Claimant couldn’t work light work at Wal-Mart any more, as he was canned for being an admitted crook.
What did our reviewing courts do then? Well, they looked at the IL Supreme Court’s controversial ruling in Interstate Scaffolding to create another controversial ruling—despite being offered light work at Wal-Mart, Claimant was awarded about 24 weeks of TTD even though he could and would have been working at light work at Wal-Mart other than for his decision to steal from the company. We urge you not to let miscreants profit from wrong-doing when you are nice enough to offer light work.
What do we feel the mistake was? Well, if you have an injured worker on light work who openly or admittedly commits a crime, we vote you fire him/her for it. If they commit “bad acts” short of a crime but which amount to personnel policy violations, take appropriate disciplinary action and consider contacting defense counsel at KCB&A to discuss. But we feel these two rulings require you to take one more step to avoid the Matuszczak-Mistake—find them alternative light work somewhere else.
In both Interstate Scaffolding and Matuszczak, both reviewing courts but specifically our Illinois Supreme Court “acknowledged TTD benefits may be suspended or terminated when a claimant refuses work within his physical restrictions.” This indicates the burden is on the employer to demonstrate claimant is refusing work within physical restrictions. If you can’t demonstrate the refusal of work within restrictions, you have made a major claims mistake. Based on that language, we suggest you push the worker to locate
· Charity work at the Salvation Army, a local church or other suitable institution;
· Part-time sedentary/light/moderate work or
· Full-time sedentary/light/moderate work.
Consider doing an informal online job search with and for the injured worker. Please note many staffing companies and medical institutions in your area may have lots of sedentary, light and moderate jobs posted on their websites—print them out and give/mail/email to claimant and put them in your file. Encourage the worker to apply and obtain alternate work. Carefully document all of your efforts.
What do you do if claimant refuses to even try to find your recommendations for alternative light work?—see the quote from the IL Supreme Court above. If claimant refuses work within his restrictions, they affirm you can suspend/terminate TTD. The message we are trying to get out to our readers is your duty to demonstrate the refusal isn’t implied when you fire the worker for improper actions/conduct.
In a claim with high-end exposure, we recommend you retain a certified vocational consultant to demonstrate the continued availability of alternate sedentary, light and moderate work and the worker’s refusal to obtain such work. Have the CRC provide and document outplacement services for the worker. If you need a recommendation for a great CRC in your area, send a reply.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: Attacking IL WC Wage Loss Claims by Offering CDL Training.
Editor’s comment: Here are thoughts and tactics in dealing with wage loss differential claims under Illinois’ generous workers’ comp system. These claims have become very prevalent and everyone on the other side wants six and seven figures to settle them. The following strategy is a solid approach to completely end the wage loss concept while still providing the worker with reasonable PPD consistent with traditional reserves for impairment/permanency.
Wage loss benefits are defined in Section 8(d-1) of the Illinois WC Act. The IL WC Act says:
§8(d)1: Wage Differential
If, after the accidental injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in cases compensated under the specific schedule set forth in paragraph (e) of this Section, receive compensation for the duration of his disability, subject to the limitations as to maximum amounts fixed in paragraph (b) of this Section, equal to 66-2/3% of the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident. For accidental injuries that occur on or after September 1, 2011, an award for wage differential under this subsection shall be effective only until the employee reaches the age of 67 or 5 years from the date the award becomes final, whichever is later.
We added the bolding of “the average amount which he is earning or able to earn in some suitable employment or business after the accident.” Those are the key words. You have to demonstrate the injured worker is “able to earn” about the same money or more after a work-related accident.
What the defense team at KCB&A found out about two-three years ago is lots of trucking companies will bend over backwards to hire any human of any age with a commercial driver’s license or CDL to drive a truck or other commercial vehicle. There are regional and local driving/delivery jobs that don’t require lengthy periods away from home.
There are lots of low-lifting or no-lifting truck driving jobs out there but the worker has to have a CDL to qualify for such work. Unlike the transportation industry when we started our firm, there are now lift gates, fork lifts and truck jacks and all sorts of equipment to make moving product dramatically easier for truckers or the folks that support them. We also noted lots of my transportation clients were hiring folks who had undergone joint replacement surgeries with significant post-surgical restrictions. Basically, all the “no-lift” truck driving candidate has to be able to do is to drive a car. The equipment on most semi-tractor trailers and lighter commercial vehicles is the same as an SUV.
You might also think a truck driver would have to climb a ladder to get into a cab of a truck. Many trucking companies have folding or fixed staircases attached to the cabs that only require the driver to walk up stairs.
And truck drivers are “able to earn” (per the statute) fairly solid wages, usually starting in the 60’s and going up well into six-figures. Truck drivers are equipment operators and also have computers that monitor them and their work and loads. It isn’t the simplest job but we have seen many folks with eighth grade educations successfully do all necessary job tasks—the equipment/computers are “dumbed-down” to the lowest common denominator.
We have talked to and are working with a certified rehab counselor who is assisting us on rolling out this strategy. So far, we haven’t gone to war or intense litigation on this concept but has proven to be a solid path to get these cases off square one and move to reasonable settlement.
We just did an online search and www.indeed.com has 23,400 Illinois driving job listed. Many of the ads offer bonuses from $2,500-5,000 to sign on. The candidate has to have a CDL.
What you need to put this into place is:
- An injured worker who speaks conversational English (you can’t legally drive a truck without at least conversational English under federal law);
- They can’t be on narcotics from post-injury medical care—our advice is to implement UR to stop/block future narcotic use;
- They have to be physically/medically able to drive a car—you can usually tell if they are driving to their doctor or PT;
- Your willingness to pay about $3,000 for the CDL training program;
- The cost of a DOT physical that is about $100-150—again, we feel this documents is the worker’s medical ability to drive a car; and
- TTD/maintenance during about one month or 160 hours of training.
We have a sample but real offer of CDL training and transportation industry jobs that you can consider. If you want to review it, send a reply. The defense team at KCB&A is happy to assist in implementing this strategy in any pending or future claim. Again, simply send a reply.
Synopsis: What’s New In Illinois Beginning in 2015.
Editor’s comment: The biggest change to this state in the WC arena is the inauguration of Governor-Elect Bruce Rauner in two short weeks on January 12, 2015. Bruce is the first truly independent Illinois governor of our lifetime. He will take office with we feel should be a focus on ending the Illinois “kleptocracy” or what we also call the “mooch-ocracy” where hundreds of billions of dollars, most of them borrowed, are being funneled to current and retired IL government workers.
Soon-to-be-Governor Rauner wants to make further changes to the IL WC system and the rumors about who is going to be running the IWCC are rampant. A new annual report requires the Governor to submit background and demographic data on all of his appointments to the General Assembly. Watch this space for news as we receive it.
What else has changes in Illinois? Here are a couple of thoughts.
Ban Pot in your workplace—Medical marijuana can and should be banned at work. If you want our KCB&A draft drug and alcohol policy, send a reply.
No more hot-rodding—driving 25-mph or more over the speed limit in our nutty state will expose the driver to loss of your driver’s license or jail time. The new law won’t allow you to get probation or a suspended sentence. You will need a lawyer due to the threat of being sentenced to jail. At some point in speeding, the police may impound and auction off your car. In short, don’t speed on Illinois roads.
Pregnancy rights: Employers must provide "reasonable accommodations" for working pregnant women unless it would impose an "undue hardship" on the business. That includes limits on manual labor, more frequent bathroom breaks and a place to breastfeed. The law also says a pregnant woman can't be forced to take a leave of absence when another accommodation is available and that an employer can't refuse to hire a qualified applicant because of a required accommodation.
Criminal background questions/checking are now last in the hiring process--Illinois now prevents private employers from checking an applicant's criminal history until the final round of job interviews. Currently, only state agencies are banned from asking about criminal history on initial job applications. If you need help with this one, send a reply.
No more underage parties--Beginning Jan. 1, parents and guardians can be fined up to $2,000 if they allow those under 21 to drink in vehicles, trailers, campers or boats under their ownership or control. And if a death occurs as a result, parents or guardians can be charged with a felony.
Bulletproof vests now have to be offered to sworn police officers—the new law requires law enforcement agencies to provide bulletproof vests to officers at the agency’s expense.
There are lots more but we have included the major changes we consider important to you. We appreciate your thoughts and comments.