7-1-13; Ford Offer of Multi-Disciplinary Pain Program Ignored on Appeal; HB 3390 Now Law; FMLA now 20-yrs old and much more

Synopsis: A Voice of Reason in the Wilderness that is Illinois Workers’ Compensation??—too bad it was a dissent to another of a string of recent unfavorable decisions for Illinois employers. Analysis by Shawn R. Biery, J.D., MSCC.
Editor’s comment: In Kawa v IWCC, (issued June 3, 2013) Claimant, Bryon Kawa was employed as a launch engineer for Ford Motor Co., when he was involved in a job-related vehicle accident. As a result of the accident, the claimant underwent treatment for injuries to his right shoulder, right knee and low back. Claimant indicated he experienced continuous shoulder, back, and knee pain since the date of the accident. While multiple issues were present, the record reflects Petitioner appeared to be exaggerating at times and refused or failed to attempt portions of recommended treatment. The heart of the claim goes to that issue and whether he should have continued to receive benefits or if MMI was appropriately declared.
After a hearing pursuant to section 19(b) of the Workers' Compensation Act, the Arbitrator found Claimant engaged in an injurious practice, which both imperiled and retarded his recovery, by declining to participate in a multidisciplinary pain management program that included psychological treatment. As a result, the Arbitrator ruled Claimant failed to prove his conditions of ill-being were causally related to the work accident and the Arbitrator found him MMI as of February 25, 2008, the day his treating physician recommended the multidisciplinary pain management program.
The Arbitrator also found "any and all treatment after February 25, 2008, was and is neither necessary nor reasonable unless and until claimant fully complied with the prescription of participation in a multidisciplinary pain management program with strong psychological elements." Based upon those findings, the Arbitrator denied TTD after June 4, 2008, and denied entitlement to further TTD until Claimant completed the multidisciplinary pain management program. The Arbitrator also denied vocational rehabilitation, maintenance benefits and Claimant's request for penalties and attorney fees. Finally the Arbitrator found no overtime was included in the wage rate due to lack of being mandatory.
Upon appeal, the Commission affirmed and adopted the Arbitrator's decision, except the Commission found Claimant did not engage in an injurious practice by declining to participate in the multidisciplinary pain management program. The Commission found, however, Claimant had reached MMI because he "chose not to avail himself of further treatment." Claimant appealed and the Circuit Court entered a judgment confirming the Commission's decision.
Claimant appealed and the Appellate Court, Workers’ Compensation Division reversed the portions of the Circuit Court's judgment that confirmed the Commission's findings on the issues of causation, MMI, TTD benefits, medical benefits, and vocational rehabilitation and maintenance benefits, and affirmed the Commission's denial of penalties and attorney fees and its calculation of the claimant's average weekly wage.
The Appellate Court majority focused on the Commission decision noting the employer failed to prove the RIC pain management program was reasonably essential to promote the claimant's recovery or that the claimant's refusal to attend the RIC's program was in bad faith or outside the bounds of reason. Based upon that rationale, the Appellate Court majority indicated claimant's refusal to participate in the RIC program cannot be a basis for denying him further TTD benefits and furthermore noted the RIC program was the only multidisciplinary program Claimant declined to participate in. The Appellate majority held it against the employer that they did not suggest or approve any other multidisciplinary program despite treating MD Dr. Koh's recommendation that an alternative program be considered. They reversed on the finding of MMI based upon a variety of reasons which essentially indicate because he still had recommendations for care and ongoing restrictions, he wasn’t MMI—although it would seem to be a bit circular to refuse to grant MMI when a claimant refuses to work toward any more “Improvement” via recommended “Medical” treatment.
In the interesting dissent, Justice Turner noted the Supreme court has noted in the past that "[t]he Act provides incentive for the injured employee to strive toward recovery and the goal of returning to gainful employment by providing that TTD benefits may be suspended or terminated if the employee refuses to submit to medical, surgical, or hospital treatment essential to his recovery, or if the employee fails to cooperate in good faith with rehabilitation efforts" citing Interstate Scaffolding, Inc. v. The IWCC and Hayden v. Industrial Comm'n where TTD was properly terminated when the injured employee was unwilling to cooperate with vocational placement efforts. The dissent concluded based upon the record before the Appellate Court, the Commission's decision to deny benefits to claimant was not an abuse of discretion as it was clear the Commission found Claimant refused to submit to treatment reasonably essential to promote his recovery so the Commission's error on the issue of causation would not be dispositive and does not require reversal on the denial of benefits noting settled Appellate case law confirms "We will affirm a decision of the Commission if there is any basis in the record to do so, regardless of whether the Commission's reasoning is correct or sound" citing Ameritech Services, Inc. v. Illinois Workers' Compensation Comm'n.
While other issues were discussed and the Appellate Court majority again confirmed that OT must be mandatory to be considered for the average weekly wage, the reading of the case and the strong arguments provided in the dissent which cites IL Supreme Court rulings which remain law appear to more closely follow previous Illinois holdings. It is slightly incredible to believe Petitioner can refuse treatment, doesn’t seek alternative treatment himself and then the employer is effectively punished for not attempting to force Petitioner to undergo some similar alternative to treatment he is already refusing to undergo.
We also ask our readers the underlying but obvious question—isn’t the Appellate Court, Workers’ Compensation Division simply substituting their own view of the proper medical outcome by reversing on “manifest weight of the evidence” grounds. Isn’t that precisely what the IL Supreme Court said wasn’t supposed to happen in both Sisbro and Twice Over Clean?
From the perspective of IL business it is further frustrating when the refusal to begin participation in the program appears to be the reason the program was not yet clearly defined—it is impossible to prepare a treatment plan when someone refuses to present for evaluation!! The appellate dissent and the rational, well-thought decisions of the Arbitrator, IWCC and Circuit Court give hope that someone is noticing that a WC system stretching to provide benefits regardless of valid defenses is not a sustainable proposition. This article was researched and written by Shawn R. Biery, J.D. MSCC. Email Shawn at sbiery@keefe-law.com for a copy of this case or with any questions.

Synopsis: HB3390 signed into law. Yaaaawn....
Editor’s comment: Last Friday June 28, 2013, Governor Quinn signed HB3390 into law. The bill becomes law effective immediately (PA98-0040). Please note the new procedure for filing review in the Circuit Court applies to decisions entered by the Commission after the effective date, which is June 28, 2013.
The bill makes technical changes by deleting language pertaining to Arbitrators made obsolete due to the 2011 Amendments. For example, because Arbitrators are now appointed by the Governor with advice and consent of the Senate, they are no longer subject to the Personnel Code.
Also, unless a pro se Petitioner who does not either read or communicate in English provides his or her own translator, the Commission shall provide a translator.
The bill makes a substantial change to 19(f) that practitioners must be aware of now that the Governor has signed the bill into law. Because 19(f) deals with filing review of the Commission's decision in the circuit court, strict compliance is required to confer jurisdiction to the Circuit Court.  
The bill does away with the provisions requiring the appealing party to exhibit to the Clerk of the Circuit Court proof the $35.00 charge for the probable cost of the record has been paid to the Commission. Instead, when parties file a review in the circuit court they will have to file proof that Notice of Intent to File Review in the Circuit Court has been filed with the Secretary or Assistant Secretary of the Commission. Proof may be either
(1)  a file stamped copy of the Notice of Intent form, which the Commission is currently drafting, or
(2)  an affidavit stating the Secretary or Assistant Secretary of the Commission has received the Notice of Intent to File Review.
The changes to Section 19(f) will be effective for all decisions the Commission enters after the effective date of the amendment.  As we all know, the 20 day limit to file a review to the Circuit Court begins from the time the Commission's decision is received rather than filed/entered. Therefore, those attorneys filing reviews of Commission decisions/Orders in the near future should pay close attention to the date the Commission files its decision to determine whether they need to pay $35.00 for the probable cost of the transcript versus filing a Notice of Intent.
If you are still awake after reading all this, please feel free to send your thoughts and comments. Please also post them on our award-winning blog.    

Synopsis: FMLA Had Its Twentieth Anniversary This Year and U.S. Employers Still Groan to Hear the Four Letters Together
Editor’s comment: For the last twenty years, U.S. employers still have many concerns with the Family and Medical Leave Act. Washington lawmakers, the U.S. DOL and family advocates marked the 20th anniversary of the signing of the unpaid federal leave law last week with the release of a report on the use of FMLA leave and renewed calls for paid leave initiatives.
Our recommendation to all risk, claims and HR managers on the workers’ compensation front is to insure you always run workers compensation leave concurrent with FMLA leave. The FMLA specifically provides that unpaid leave under the Act runs concurrently with other forms of legally protected absences from work, including Workers' Compensation leave. Any eligible employee who suffers a “Serious Health Condition” as defined under the FMLA as the result of a workplace injury should immediately be placed on FMLA leave. By running the FMLA leave concurrently with the Workers' Compensation leave, the employer can eliminate the potential that an employee returning from Workers' Compensation leave claims the full FMLA leave entitlement for an unrelated absence. If you aren’t sure how or why you should do this, please send a reply and the defense team atKCB&A will be happy to assist.? ?The FMLA provides workers with 12 weeks of unpaid leave to care for themselves or a family member with a serious illness or after the birth or adoption of a child. However, the law only applies to workplaces with at least 50 employees, and workers must have been at their job for at least a year and have worked at least 1,250 hours in the year prior to the leave. As a result, only 59 percent of surveyed employees in a national study reported they met the qualifications to take FMLA leave. The US DOL report, Family and Medical Leave in 2012, consists of survey results by Abt Associates, a Cambridge, Mass.-based consulting firm. The firm surveyed 1,812 worksites and 2,852 employees last year, including both employers and employees who are covered by the FMLA and those who are not.? ?The survey found 13 percent of all employees, both those who were covered under the FMLA and those who were not, took leave for an FMLA-covered reason in 2012. That figure was unchanged since the last time a similar survey was conducted, in 2000. Among workers who were eligible for FMLA leave last year, 16 percent took leave, while only 10 percent of ineligible employees did so.? ?Some 57 percent of the leave workers took was due to their own illness, the report said, while 22 percent took leave in connection with the birth or adoption of a child and 19 percent said they took leave to care for a spouse, child, or parent. Another 2 percent took leave for other reasons. Of the leave that was taken, 42 percent was for a period of 10 days or less, the survey found, and only 17 percent lasted for more than 60 days. Those findings were similar for both FMLA-eligible and non-eligible employees, the report found.? ?Although the FMLA only mandates that covered employers provide workers with unpaid leave, the survey found that most workers who took leave for FMLA-covered reasons received some pay, with 48 percent receiving full pay and another 17 percent receiving partial pay. However, for leaves of more than 10 days, only 40 percent of workers received pay, while 60 percent were paid during leaves of 10 days or less.? ?Please feel free to send your thoughts and comments. Please also post them on our award-winning blog.

Synopsis: KCBA welcomes general liability, employment law and litigation defense specialist Chris St. Peter from the law firm of Winston & Strawn LLP??

Editor’s comment: Keefe, Campbell, Biery & Associates proudly announce the addition of Christopher H. St. Peter, J.D. to our legal team. Chris joins us from Winston & Strawn LLP, where his practice involved all aspects of complex commercial litigation in state and federal court.  Chris graduated with honors from Chicago-Kent College of Law, where he was an executive articles editor of the Chicago-Kent Law Review and an extern for the Honorable Magistrate Judge Arlander Keys in the U.S. District Court, Northern District of Illinois. Chris will focus his practice on a full range of defense work, including general liability, employment law, product liability, and contract disputes.  Chris can be contacted at any time at (773) 301-7244 or cstpeter@keefe-law.com.?