8-18-14; Death Wish: How WC Adjusters Can "Smoke" a Claim Before Defense is Involved; IL WC Arbitrators Comings/Goings; WCLA CLE Reported by Pankhuri Parti, JD and More

Synopsis: Death Wish—How WC Adjusters Can “Smoke” A WC Claim Long Before Defense/Legal is Involved.

Editor’s comment: We have seen this happen over and over again and we have to tell the WC claims industry what many of you are doing wrong. There appears to be a “presumption” you can’t involve attorneys or legal advice unless and until you have to—that presumption is a problem someone at your organization has to understand and stop. If you want to win or favorably settle WC claims, get defense counsel engaged early and often. Here are some clear reasons why.

First, we have seen claim after claim come in with average to bad accident investigation. As we have advised our readers, clients and friends, if you haven’t done a valid and complete accident investigation in a lost-time claim, you are very much like a ship in troubled seas without a rudder—you are going to bounce and flop around without any direction. When Petitioner tells the adjuster they “hurt themselves lifting,” many adjusters will record that fact and don’t make further inquiries into what was lifted, how many times and how much it weighed. We have actually read recorded statements where an adjuster will ask a claimant if they lift “a lot” as part of their work. With an affirmative answer, the claim starts to go south. If you ask the defense team at KCB&A, we are happy to assist to insure you have a valid and complete accident investigation to get the “ship” that is your pending IL, IN, WI or MI work comp claim moving forward.

The next step in “smoking” the employer on the claim is the adjuster will set an IME. In some instances, the IME letter will invariably call “lifting” a “work injury” without any details or specifics. The adjuster will ask if the “injury is related to work” without providing any further information about what was lifted and how many times the lifts took place. With that minimal information, many IME docs aren’t smart enough or are too busy to ask the adjuster or the worker any details. If the worker confirms they were “lifting at work when they felt pain,” it becomes a causally related event. From that exchange, the employer is now “smoked.”

In contrast, if you send the claim to the defense team at KCB&A or just let us review the draft IME letter at no charge, we won’t call the problem an “accident” or “injury,” we will call it what it is “onset of pain.” We assure you the devil is in the details. If the worker asserts he or she had “onset of pain” while working, it isn’t nearly as “compensable.” Lots of people get sore for lots of reasons both at work and at home.

The next step in completely “smoking” the claim after getting a bad IME opinion from your expert is the FCE or functional capacity evaluation. Some WC adjusters are told to get FCE’s whenever and wherever possible. In our view, the FCE-mistake is certain to further “smoke” the WC claim and the employer. The biggest problem with traditional FCE’s is they have little scientific significance and are based primarily on subjective evaluation of the “effort” of the injured worker. Very few current FCE providers have ramped up their testing to meet scientific standards. If you want examples, send a reply.

Please also understand lots of claimants are coached to or just figure out they should act like disabled people in FCE’s and they get “permanent restrictions” as a result of the testing. If that happens on a claim you are handling, you are now stuck with the questionable restrictions that are very hard to rebut in our IL WC system. Workers with such restrictions will try to use the permanent restrictions to block return to work and then start what our defense team calls the “wage differential dance.”

Unions across Illinois will rely on questionable FCE results to claim the employee can’t do essential job functions and can’t continue active membership—they do that to maximize WC recovery for their union member, even though it almost certainly violates ADA. Then workers with the “right” FCE results quickly get low-paying jobs and want you to pay their differential for life.

Please also remember there are some IL WC Arbitrators that still will provide some credence to invalid FCE’s in a fashion that is infuriating to employers—most employers feel an invalid FCE is completely worthless. We have seen Illinois hearing officers askemployers to pay $100K-500K and more in wage loss or total and permanent disability claims in reliance on wholly invalid and/or questionable FCE’s. And surveillance results routinely indicate FCE testing was a sham. We have seen folks who couldn’t lift the equivalent of a gallon of milk in an FCE, lift 50-100lbs. when they don’t know they are being “tested.” Lots of claimant attorneys are now sending their clients for FCE’s because they know the claim becomes worth more money, even though the testing is silly.

In our view, compare the work of the Registered Physical Therapist or RPT at Accelerated Rehabilitation or Athletico when they have your worker in front of them during physical therapy for, let’s say, six weeks. The RPT can measure progress and insure the worker is doing everything they need to do to recover from care. The RPT is keeping regular notes and a progress chart as part of their normal work. At the end of the period of seeing and evaluation of the worker for all that time, is there any reason to put the worker “on stage” to do an FCE and fail? Isn’t the worker going to contradict everything the RPT recorded, if the FCE is invalid? Isn’t the FCE a complete waste of money and time when compared to the RPT’s expert work?

Having performed an average to bad accident investigation, to then get an adverse IME and sought an invalid/worthless FCE, some adjusters will then send the claim to defense counsel and ask for miracles. By that point, many claims are already “smoked” and Plaintiff-Petitioner’s counsel is asking for six and seven figure settlements. Trust us, attorneys don’t “win” claims, we put on evidence and argue for our side. You can’t argue very much when you are handed a bag of feathers that doesn’t help the employer.

Our point at KCB&A to such WC adjusters is to engage us for free at the earlier stages and let us help. Don’t wait until the last minute to validate your accident investigation. Don’t send an IME letter to your primary defense expert without asking your attorney about the questions being posed. And for gosh sakes, please, please never use FCE’s that work against your client’s interests—focus on recorded progress in physical therapy and work hardening.

Or send us a reply. We truly appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: IL WC Arbitrators Are Coming and Going at a Rapid Clip. Will They Ever Take the Politics Out of Politics in Selecting Our Hearing Officers?

Editor’s comment: We learned today former IL WC Arbitrator Brandon Zanotti is rapidly leaving or has already left the IWCC to become the Williamson County State’s Attorney. It appears the current State’s Attorney got into some controversy and has stepped aside. We wish Arbitrator Zanotti the best in this new venture. We have to wonder why the IWCC isn’t reporting this news on their otherwise excellent website. What they are letting us know is:

Arbitrator Brandon Zanotti's August call will be handled as follows:  Arb. Lee will appear in Collinsville August 18-22; Arb. Dearing will appear in Belleville Aug. 25-28.  The Aug. 29th trial date in Belleville has been cancelled. 

We recently learned former IL WC Arbitrator Svetlana Kelmanson was not reappointed and is no longer working for the Illinois Commission. Again, we feel it mildly unusual to see this wasn’t announced. While Ms. Kelmanson may not have been liked in some quarters, the defense team at KCB&A felt she did solid work and brought her best efforts to the job every day.

We looked at the “Jobs” section of the IWCC website that send us to this link: http://agency.governmentjobs.com/illinois/default.cfm?clearsearch=1 and we note the open Arbitrator jobs aren’t posted.

We will keep checking the www.are-you-nuts-these-are-political-positions.com website to see if there is any change on the status of the open IL WC Arbitrator jobs being posted. Someday, we hope someone is going to make the Arbitrator positions non-political by doing an executive search for the best possible candidates.

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Synopsis: The IL Workers’ Comp Lawyers’ Ass’n CLE’s for the IL WC Industry—expansion of “arising out of” definition, clarification of manifest weight of evidence standard, and refusal to expand Statute of Limitations to lung diseases other than pneumoconiosis. Thoughts and Analysis by Pankhuri K. Parti, JD.

Editor’s comment: On August 13, 2014, three IL WC Appellate Court cases, each concerned with a different topic, were presented to the public by WCLA in a valuable and informative continuing legal education format. Some of the key issues are discussed and reported below.

(1)  Expansion of the “arising out of” definition?

The case discussed was Don Young v. Doncasters, dba MECO in which Petitioner, a parts inspector, claimed he was injured while reaching into the box to grab the last part to examine when he felt a pop on his shoulder and little bit of burning sensation. The medical history given by Petitioner to various providers was varied and Petitioner also admitted the act of reaching down was an activity of daily living, which he does at home every day.

The Arbitrator denied Petitioner’s claim citing various cases wherein claimants had claimed injuries occurring as a result of actions of daily living like Nardi v. Village of Harwood Heights, Mary Jo Blake v. Community Care Systems, Crockett v. Casino Queen.Just like all those cases because Petitioner’s injuries arose as a result of an activity of daily living, it was not found compensable and the claim was denied. The Arbitrator also questioned causal connection based on the finding of significant arthritis in Petitioner’s shoulder. On appeal the Commission essentially adopted the findings of the Arbitrator confirming while the injury occurred in the course of employment, it did not arise out of employment as the mere act of reaching down did not increase Petitioner’s risk of injury beyond what he would experience as a normal activity of daily living. As the only change, the Commission struck the Arbitrator’s finding of lack of causal connection explaining once the issue of “arising out of” was decided, causal connection was no longer relevant. In a separate dissent one of the Commissioners noted the injury should have been compensable as even though the act itself was one of daily living, the risk of sustaining an injury was increased due to the frequency of the action and the dimensions of the box Petitioner was reaching into. The circuit court again affirmed the denial of Petitioner’s claim.

The Appellate Court, however, reversed this decision and found the injury was compensable. In doing so it held the activity Petitioner was performing was a risk distinctly related to his employment because evidence clearly showed Petitioner was performing acts which the employer might have expected him to perform so he could fulfill his assigned duties. The Appellate court also went ahead to clarify that the “increased risk” analysis was only undertaken when the risk to which an employee was exposed was a neutral risk and since this was not the case here there was no need to for the issue to be analyzed.

In our opinion by its reasoning to find the injury compensable, the Appellate Court may have opened the floodgates to potential litigation. We find it difficult to determine at what point an employer might be able to definitively state the claimed injury was not from an action the claimant was expected to perform to fulfill his assigned duties. To change the facts a little, if Petitioner had injured his shoulder while reaching down to tie his shoe laces, would it have been an action the employer expected him to perform? What about tripping while walking from one point to the other? Stepping off a truck or climbing stairs? It can definitely be argued all these actions were something which could have been expected and we see the petitioners’ lawyers citing this case often to claim any and all actions arise out of employment thus making the injury compensable.

(2)  Manifest Weight of Evidence Standard

As we are aware a reviewing court looks at issues of fact decided by the Commission with the “manifest weight of evidence” standard unlike issues of law, which are reviewed de novo. In Dig Right In Landscaping v. IWCC the Appellate Court clarified the manifest weight of evidence standard did not mean the findings of the Commission would be upheld only if the reviewing court reaches the same conclusion as the Commission on an issue of fact. Instead, the test is whether there is sufficient evidence in the record to support the Commission’s determination. In the cited case the Arbitrator denied the claim finding Petitioner was not credible, however, the Commission awarded benefits finding Petitioner credible and his testimony supported by facts. The Circuit Court found the Commission’s decision to be against the manifest weight of evidence and reinstated the Arbitrator’s decision.

The Appellate Court, however, again found the Commission based its decision on credible evidence and held its decision was one which could be reached by a rational trier of facts. The decision noted the Circuit Court had found Claimant lacking in credibility which made the causation opinion of treating physician unreliable, but gave more weight to the findings of the Commission over the Circuit Court. The decision explained while the reviewing court could view the credibility of claimant differently than the Commission, it was the exclusive function of the Commission to judge credibility and assign weight to medical opinion testimony. However, in reaching this decision it seems the Appellate Court overlooked the fact the Arbitrator, who was in the best position to judge credibility of the claimant by actually listening to the testimony, had also found him to be unbelievable.

It can be argued through this decision the Appellate Court has indicated it will adopt any decision made by the Commission – the actual trier of facts – as long as it was rational and based on facts in evidence.

(3)  Refusal to expand Statute of Limitations for lung diseases other than pneumoconiosis.

Under the Occupational Disease Act the Statute of Limitations for filing a claim for pneumoconiosis is 5 years and 3 years for the rest of the occupational exposure diseases. In Jack Carter v. Old Ben Coal the Appellate Court refused to expand the Statute of Limitations for a claimant suffering from COPD despite arguments COPD was essentially the same disease as pneumoconiosis.  

Petitioner filed his Application four years after his last date of exposure and argued the phrase “coal miners pneumoconiosis” in section 6(c) of the Act should be interpreted to include COPD caused by exposure to coal dust because doing otherwise violates the Equal Protection clause of the Illinois Constitution by treating similar classes of claimants differently without a rational basis. Because the argument concerned an issue of law, the case was reviewed de novo.

The IL WC Appellate Court disagreed with Petitioner and held under the plain meaning of its terms, the OD Act’s five-year Statute of Limitations applied only to “coal miners’ pneumoconiosis” and not to COPD. Although the federal definition of legal pneumoconiosis included COPD caused by coal dust exposure, this fact did not help Claimant here because the Illinois OD Act did not define pneumoconiosis in that manner. So even though the claimant had forfeited this argument by not raising it before the IL WC Commission in the first place, it did not change the fact the OD Act’s limitation of the five year statute of limitation to claims involving coal workers’ pneumoconiosis did not violate the Equal Protection clause.

It is our understanding the court has indicated through its decision that constitutional arguments against the Act will not be very successful.

This article was researched and written by Pankhuri K. Parti, JD. The opinions Pankhuri is voicing are hers and not those of any member of WCLA or its Board. Pankhuri can be reached 24/7/365 for questions about WC at pparti@keefe-law.com.