3-26-2018; Chicago Bears WC Program Hits the Headlines in Forbes Magazine with Quotes from Gene Keefe; Kevin Boyle on an Important Indiana WC Claims Caveat and more

Synopsis: Chicago Bears WC Defense Program Hits the Headlines in Forbes Magazine—I Am Not Sure What the Buzz Might Be.

Editor’s comment: Forbes Magazine published an interesting article that highlighted the fact the Chicago Bears spent about $13M in work comp costs over 18 years. With respect to the authors, I don’t consider that a lot of money for a professional team that participates in one of the most brutal and dangerous events on the planet. To my understanding, most professional football teams have lots more “disabling” injuries than players because the players get hurt, hustle hard to recover and then return to work to be injured/disabled again.

To my understanding, almost all professional football players retire, at least in part, due to disabling injuries. The only reason they probably aren’t wildly interested in workers’ comp benefits is the limits on such claims for permanency isn’t close to the salaries many of the players garner. Several Chicago Bears players make close to or more than $13M a year, every year.

The Forbes Magazine article noted, in Illinois, workers injured on the job including professional athletes, can file wage-loss differential claims, entitling them to two-thirds of their wage loss (with a cap) receivable to age 67, or five years after the claim is made, whichever is later. The money is paid by the professional team’s workers' compensation insurance carrier or self-insured program.

The annual statutory cap on such wage-loss awards limits professional athletes and other employees to no more than the average weekly wage in Illinois, but anyone earning $1 million or more per year, such as an NFL player, would be eligible for the current maximum annual wage loss benefit of $55,971. The wage loss payouts are not taxable. And for most professional athletes in their 20’s and 30’s, wage loss benefits to age 67 could be well into the millions.

A professional football team is particularly susceptible to such compensation claims because, apart from the violent nature of the game, teams carry 53-man rosters, with many players coming and going with great regularity throughout the season due to the strain of competition and injuries.

As one of the leading national authorities on workers’ comp from my position with Keefe, Campbell, Biery and Associates, I was quoted by Forbes as saying workers’ compensation to wealthy athletes is “warping” the system. I was further quoted to say “It doesn't match reality. And the Bears just don't fight the cases anymore. They settle instead of going to court and making the player a hero.”

I commented on the claim of Roger Stillwell, who had a limited NFL career with the Bears in the 1970s that was ended by injury. I pointed out Stillwell later became a travel agent making $400,000 per year but still applied for and received lifetime workers' compensation for his football injury. I confirmed Stillwell's case was one of the first to call into question lifetime wage loss compensation for professional athletes. One has to wonder if someone making $400K a year needs further lifetime compensation due to prior football injuries.

On the other side, Forbes reported George Atallah of the NFL Players Association told The Associated Press last year that workers’ compensation benefits “provide a lifeline to players whose athletic careers end suddenly.”

According to Forbes, the “bench is deep” when it comes to former Bears players looking for compensation, with hundreds having put in for payments, according to state records.

·        Lamarr Houston, a linebacker, said his right knee was injured in a 2014 game and his left knee in 2016.

·        Another linebacker, Jon Bostic, said his back was injured in 2014 and his right ankle in 2015.

·        Defensive end Henry Melton suffered a lower-back injury in 2012 and a concussion in 2013, according to records.

Many other former players have settled their cases, including Brian Urlacher, Devin Hester, Tommie Harris and Charles Tillman. In Urlacher's case, he settled with his former team in 2017 for $550,000, for claims filed between 2009 and 2014, covering his neck, back, hands, wrist, legs, knees and shoulders. Urlacher’s settlement might have been heightened by the fact he was a close personal friend with a workers’ comp Plaintiff/Petitioner lawyer.

Cade McNown was a disappointment as a Bears quarterback in the 1999 and 2000 seasons, but his shoulder injuries netted him a $220,000 settlement in 2006.

The largest amount for a single injury in recent years was $400,000, given in 2014 to wide receiver Johnny Knox for a 2011 spinal injury that ended his career.

Forbes reported there have been 458 compensation cases filed against the Bears since 2000, most of which involve players, with the rest involving off-field employees. In that period, the team and its insurer have paid at least $12.8 million in settlements. I consider that a low amount for 18 years of claims brought by professional football players.

Last year, the Illinois Legislature considered a bill that would have prohibited wage loss compensation payouts to athletes beyond age 35. The Chicago Bears, Bulls, Blackhawks, White Sox and Cubs all supported the change. The bill was bundled with a compromise of other proposed WC and other laws, set up so all the bills passed or none did; the measure failed to make it through the goal posts.

Forbes quoted Jay Dee Shattuck, a longtime WC guru with the IL State Chamber and a lobbyist with Shattuck and Associates Consulting who described the bill as an attempt to “bring back some sanity to IL Workers' Comp law.”

Collective bargaining arrangements can also provide compensation for injuries. Please note the math above is a strong reason to avoid making college football players into paid athletes—the initial and increased costs to colleges/universities could be dramatic.

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Synopsis: Important Claims Caveat from Kevin Boyle, KCB&A’s Indiana Defense Team Leader—Always Remember to Check for Employee Bonuses When Calculating TTD in Indiana.

Editor’s comment: The Indiana Court of Appeals recently issued an important ruling to remind us to include bonuses when calculating TTD benefits for Indiana worker’s compensation claims. 

In Midwest Equipment & Supply Co., v. Garwood, 87 N.E.3d 33 (Ind. Ct. App. 2017), the employee received a $20,000 profit sharing bonus and also a $1,750 shipping bonus that was tied to the employee’s performance in the warehouse.  Employer calculated his AWW using the regular wages earned in the 52 weeks immediately preceding his injury, but did not include two large bonuses in the calculation.

The Court of Appeals rejected the employer’s contention that those bonuses should not be included in the AWW because they were not governed by a written agreement, were not automatically paid, were awarded through discretionary management decisions, and the $20,000 profit sharing bonus was not based on his output or performance.

The Court held that “true as those statements may be, the statute defining average weekly wages specifies only one condition for its calculation – that the calculation include the earnings of the injured employee during the period of fifty-two weeks immediately preceding the date of injury. I.C. 22-3-6-1(d).” For Indiana AWW calculations, unlike Illinois where the Illinois worker’s compensation statute specifically excludes bonuses from its definition of AWW, Indiana’s statute does not exclude bonuses from the calculation of average weekly wages.

Finally, the employee also argued that his award should be increased by 10% for the employer’s frivolous appeal. The Court rejected that argument stating the issue presented upon appeal was not frivolous, but rather a genuine legal issue that required clarification. However, the award was increased the standard 5% since the Court affirmed the Full Board on the employer’s appeal.