3-23-15; IL Gov't Refusal to Offer Light Work under IL Workers' Comp - A Secret Scandal; Shawn R. Biery on Important Jurisdiction/Lien Ruling; IWCC News/Notices and more
/Synopsis: Government Refusal to Offer Light Work Under IL Work Comp – A Secret Scandal for Springfield to Address
Editor’s comment: Before we start raising taxes, someone please tell us we are going to first run all IL government(s) better.
In brief, we ask legislative action be taken in Springfield to investigate this secret scandal and draft/pass legislation requiring all IL government bodies to have light work programs immediately put into place. Please also note these government bodies are large employers, so the State’s overall workers’ compensation premium measurements are skewed due to their continued mismanagement—on a national level, this projects a poor business environment. Please further note ITLA can’t blame these high WC payouts on “greedy insurance companies”—these monies are misspent by government workers mismanaging return to work issues on accepted WC claims.
Right now, the State of Illinois, City of Chicago, Chicago Park District and Chicago Transit Authority are paying literally hundreds of millions of dollars in workers’ compensation benefits. The State has to be paying over $150M a year in workers’ comp benefits. The City is paying over $100M each year and the Chicago Transit Authority and Chicago Park District are paying over $50M per year. It is not a coincidence all those government bodies are awash in red ink. If light work programs were required for all state and local gov’t bodies by our IL General Assembly we assure our readers the savings to taxpayers would be immense. We further assure you with all the conviction possible, other than California, no U.S. State Government or City the size of Chicago pays anything like the amount we routinely waste on workers’ compensation benefits.
Our sources indicate none of those government bodies are providing light work for their injured employees. To our understanding, Cook County started a light work program under their current chairperson—she had to argue with some of the elected county officials to do so. To our further understanding, the long-time alderman in Chicago who runs the City’s WC “defense” system will not provide light work for City employees unless legislation in Springfield requires it. The Chicago Tribune has asked and asked him about this issue and they are routinely ignored.
Should Your Tax Dollars Be Used for Funding of Political Work by Former Gov’t Workers Now on TTD and Lifetime TPD?
One reason light work isn’t offered to state and local government workers is to insure the workers are indebted and forever beholden to their political patrons. Once on never-ending TTD or lifetime TPD, the workers remain loyal political hacks for the folks endlessly giving them our tax dollars. Would you do sporadic political work for someone who would insure you are paid for years and years not to have to perform real day-to-day work? Could this be a reason there hasn’t been a Republican Party in Chicago in several generations? How can you have a two-party system if the party-in-power can pay former workers the rest of their lives to perform political tasks when the occasional elections occur?
There is No Question Light Work is a Major WC Money-Saver; How Can Anyone Dispute That?
Light work as a path to return workers to some work and progressing back to their former jobs is an unquestioned money saver in workers’ comp claims across the globe. We know of no reason a business or government wouldn’t provide light work or early return to work for their injured employees—it is a complete no-brainer. As taxpayers, we assure you our money is being thrown away by the barrel. Thousands of articles and books on the topic are out there on the web. If you want samples, send a reply.
We also feel light work programs are, to some extent, mandated by the Americans With Disabilities Act—every injured worker we are talking about in this article has permanent restrictions and is kept out of the workplace on an indefinite basis. The ADA requires “reasonable accommodation for qualified individuals with a disability.” An injured worker with restrictions precisely meets that definition but none of these governing bodies offer “reasonable accommodation,” they simply continue to pay tax-free weekly TTD and, as you will read below, weekly total and permanent disability benefits indefinitely. The government workers don’t file EEOC charges because they are being paid so well to do nothing.
Here is How This IL Gov’t Workers’ Comp Catastrophe is playing out:
For example, a City Streets and Sanitation worker gets injured—let’s say they have a routine shoulder surgery. They are given a 40lb lifting restriction. They are allowed to stay off work and on temporary total disability (TTD) indefinitely, even though there are numerous well-paid administrative, dispatch or “no touch” truck driving jobs they could be switched to perform. There are workers still on TTD for 3, 5, even 10 years—they are no longer receiving any medical care, they are simply allowed to stay off work and keep getting paid. Light-duty jobs open up and are filled by other workers when the folks on TTD could be put into such work. In many settings, temporary workers are used in open positions instead of the injured worker on restrictions.
After several years on TTD, the governments above then will make a decision on:
1. Total and permanent disability under the goofy “odd lot” theory. This concept was judicial legislation that comes from an IL Supreme Court ruling named E.R. Moore v. Industrial Commission. The main reason we call it judicial legislation is the words “odd lot” don’t appear in the IL WC Act and they are not defined in any legislation. The Supreme Court said an “odd lot” total and permanent disability is someone who is injured at work with restrictions, hasn’t returned to work and can’t find an alternative position anywhere else. When those three factors are present, it is incumbent on the employer to either offer an alternate job or demonstrate the availability of alternate work. The State of Illinois, City of Chicago, Chicago Park District and CTA, never do that. We assure you all governments outlined above have numerous positions open up every year. They could take folks off TTD/TPD, train them and put them in such jobs to save taxpayers money and get their people back to gainful employ. They almost never, ever do so. We are told the State of IL is paying several million in weekly T&P benefits that could be stopped right now, if the workers being paid lifetime benefits with COLA increases were brought back to available light jobs.
2. The other theory is “fake” wage differential settlements. Under Section 8(d-1) of the Act, an employer is required to provide lifetime wage loss differential benefits to someone who can return to lower-paid light work. When a worker is left off work for years, at some point, the government agency or its outside WC administrator agree the employee could locate a minimum wage job and will provide a significant lump sum settlement by discounting the overall lifetime liability. The reason we call it a “fake” wage diff settlement is the worker doesn’t have to actually get a job, the government agency will just assume they can only get a minimum wage job. We were advised the City of Chicago is paying such settlements in amounts like $250K-$350K to workers who haven’t had a single surgical intervention and have been receiving years of TTD. Once the worker settles and gets the giant check, they return to work outside city gov’t wherever they want at the highest pay they can find.
Please note this scandal is not common to almost all Illinois governments, just the biggest ones. For a single and exceptional municipal example, the City of Naperville has a very aggressive return to work program and does everything they can to get an injured worker back into some sort of position as soon as they are medically able to do so. Here is a shining example of their long-time and great focus on this issue: http://www.usfa.fema.gov/pdf/efop/efo28156.pdf
To investigate and develop the extent of this continuing and secret scandal, we would suggest someone send a FOIA request to the various government agencies to ask:
· How many pending workers’ compensation claims do you have?
· Do you mandate a light work/return to work program for all agencies? If not, why not?
· How many of your workers have been on TTD for over a year?
· How many of your workers are receiving weekly lifetime “odd lot” total and permanent disability benefits?
· How many new workers were hired by you in the last year?
· What new or open jobs were filled?
· Were the injured workers considered for any of the open positions?
· What current efforts are being made to return all injured workers to modified or limited duty, and/or retraining for other available positions?
· How many WC settlements over $200,000 were made by your government in the last two years? What was the basis for such settlements?
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Synopsis: IL Appellate Court nails another one in confirming IL WC Commission is the proper and exclusive venue to determine questions with regard to workers’ compensation benefits in Illinois. Analysis by Shawn R. Biery, J.D., MSCC.
Editor’s comment: The 5th District Appellate Court ruled the Illinois Workers' Compensation Commission, not the Circuit Court, has exclusive jurisdiction to decide whether a claimant who settled a third-party lawsuit resulting from a work related accident may also pursue workers' compensation benefits from his employer after resolving the initial lien.
In Bradley v. City of Marion, http://www.state.il.us/court/Opinions/AppellateCourt/2015/5thDistrict/5140267.pdf Plaintiff Bradley had been injured in an automobile accident while working for the City of Marion and initially sought recovery from the motorist who arguably caused the accident. He settled that case for $650,000 and as part of the settlement Bradley reimbursed Marion $190,112.89 for their current workers' compensation benefits it had paid and voluntarily dismissed his workers' compensation claim after Marion and its insurer, the Illinois Public Risk Fund, released the existing lien in writing. Bradley then filed a new workers' compensation claim after the City and its insurer released their lien and the City argued Bradley waived his right to further workers' compensation benefits when he settled the third-party suit and received the lien release.
Bradley filed a complaint for declaratory judgment at the Williamson County Circuit Court with his argument there was no waiver or closure of workers' compensation benefits without approval by the Workers' Compensation Commission—and the IWCC had not approved any waiver.
Marion/Public Risk filed a counterclaim and requested declaratory judgment for breach of contract and also argued Bradley waived his right to benefits. The trial court decided there was no jurisdiction to consider the disputes since benefits under the Workers' Compensation Act were the sole function of the Commission who had exclusive jurisdiction and the Appellate Court affirmed there was no jurisdiction for the same reason.
Both sides of the bar can understand the frustration of a case where there is a third party issue, and with a settlement for $650,000 which included reimbursement of $190,112.89 for benefits for WC benefits paid, it seems reasonable for Marion and its defense counsel would have considered the WC claim ended with the voluntary dismissal. Realistically, in hindsight they would have been much better with a $1 WC settlement contract along with return of the lien amount. The Act is very clear in Section 23 in noting a claimant “cannot waive the amount of compensation which may be payable to the employee except after approval by the Commission”. 820 ILCS 305/23.
There appears to be a strong argument the lien release “contract” has a substantial issue and no proverbial “meeting of the minds” occurred based upon the significant amount achieved over the lien amount and lack of incentive for Marion to leave additional benefits open and it would appear the best result for each party would be for rescission of that agreement and either some final settlement approved by the IWCC or ongoing benefits to be credited at 75% until the third party settlement value is exhausted. We will report on the outcome of the claim as it is determined.
One final thought—there have been a plethora of new actions in Circuit Courts in Illinois attempting to circumvent the IL WC Act and directly sue industry components with attempts at
Ø “Assignment of rights” (which is specifically not allowed for certain portions of WC claims) or
Ø Interest on unpaid medical bills.
This is generating anti-business and anti-insurance carrier/TPA litigation outside of the IL WC Commission jurisdiction. For those reasons, it is good to see the Appellate court confirm the exclusive jurisdiction of the Commission for benefits under the IL Workers' Compensation Act.
This article was researched and written by Shawn R. Biery JD, MSCC who can be reached at sbiery@keefe-law.com with any comment or question.
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Synopsis: IL WC Housekeeping News and Notices.
Editors’ comment: Effective April 1, 2015 Arbitrator Friedman will take over the docket previously assigned to now-IWCC-Chair Fratianni in Zone 5 and Arbitrator Hegarty will take over the docket previously assigned to new Commissioner Luskin in Zone 6. All documents and correspondence related to these dockets should be forwarded to their attention effective immediately.
Please be advised New Lenox Village Hall will be closed on April 3, 2015 in observance of Good Friday. The status call scheduled for Friday, April 3rd will be moved to Monday, April 6th. All trial dates will remain unchanged. Notices will be mailed to all interested parties.
Please be advised the Woodstock hearing site will be closed on April 3, 2015 in observance of Good Friday. The status call will remain on Wednesday, April 1st, and there will be an additional trial day on Thursday, April 2nd.