3-7-2016; Matt Ignoffo Outlines Important WI WC Changes; IL Appellate Court Refines Rights Under Section 19G; OSHA Attacks Rapid Accident Reporting Req'ment and much more

Synopsis: Crucial Changes to Wisconsin Work Comp!!!! Agreed Bill 724 Signed into Law on Leap Day February 29, 2016 by Wisconsin Gov. Scott Walker. Analysis by Matt Ignoffo, JD, MSCC.

Editor’s Comment: If you are a Cheeseland workers’ comp adjuster or risk manager, this article is required reading.

The bill was written by the Wisconsin Worker’s Compensation Advisory Council and makes several noteworthy changes, including, but not limited to the following:

  • Modestly increases the maximum weekly permanent partial disability rate from $322.00 to $342.00, effective March 2, 2016 and to $362.00 for injuries on or after Jan. 1, 2017;
  • Decreases the statute of limitations: It starts from the date of injury or date of last payment, for traumatic injuries and is reduced from 12 years to 6 years. The statute of limitations for occupational exposure claims remains 12 years;
  • Allows for a system of apportionment regarding permanent disability with the intention that businesses pay what proportion of an injury they caused and not on any pre-existing injury or disability;
  • Employers can now suspend TTD when an employee is brought back to light duty and subsequently is terminated for “misconduct” or “substantial fault,” as defined under the unemployment insurance law;
  • Provides a defense for indemnity where an employee was found in violation of a drug or alcohol policy and there was a direct causation between the violation and the injury. The worker may still pursue medical treatment expenses;
  • The Department of Justice will prosecute workers’ compensation fraud. This could be fraud by an employee, employer, insurance carrier, or health care provider;
  • Allows workers during retraining to earn part-time wages to supplement their income.

The bill passed the Wisconsin Assembly with a vote of 97-0 and was concurred by the Senate with a vote of 32-0.

Time soon enough will tell if the Illinois workers’ comp system will be implementing any changes of its own. We do feel our IL WC leaders may be able to learn something from the important WC Amendments outlined above.

This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C. licensed in IL and WI who can be reached at mignoffo@keefe-law.com.


Synopsis: Illinois Appellate Court Finds Injured Worker  May Not Bring 19G Petition While Employer Maintains Appeal of Award.

Editor’s comment: In Reed v. IWCC, Nos. 1-13-0681 & 1-13-2138, issued 2/18/2016, Claimant Reed suffered injuries in a motor vehicle accident twelve years ago while working as a truck driver for Respondent. In year 2012, Arbitrator Dollison issued an award for a significant six-figure claim for medical expenses and seven years of temporary total disability benefits. Reed's employers and insurance carrier appealed this decision to the Workers' Compensation Commission and the Commission panel in a decision penned by Commissioner DeVriendt upheld the Arbitrator's decision.

For reasons of which we are unaware, defense counsel or someone then apparently told Claimant Reed or his attorney they planned to seek judicial review of the Commission's calculation of his wages, but not the award of medical expenses. We aren’t sure how that conversation or reference might have made it into the record on appeal because there is no opportunity to add to the record at that point. We also note that statement is later contradicted in the Appellate Court’s opinion where Respondent indicated they wanted the Commission to reconsider the medical expense award on remand.

Either way, after the employers filed their petition for judicial review, Reed’s counsel filed a 19G complaint in the Circuit Court seeking a partial judgment on only the medical expense portion of the workers’ compensation award. Counsel for the employer moved to dismiss Reed's complaint, arguing Claimant Reed could not enforce the Commission's order when part of the Commission's decision was still properly protected by an appeal bond and was pending on appeal.

Circuit Court Judge Lopez-Cepero agreed with the employer and dismissed the 19G complaint.

Counsel for the employers then filed a Supreme Court Rule 137 request for sanctions against counsel for the injured worker. In response, the trial judge denied the motion. Counsel for Claimant Reed appealed from the dismissal order, and attorneys for the employer appealed the denial of their request for Rule 137 sanctions.

The Illinois Appellate Court unanimous majority ruled Section 19G of the IL Workers' Compensation Act expressly provides a party cannot obtain a judgment enforcing a decision of the IL WC Commission if any proceedings for review of the decision are pending. The opinion noted although the Illinois Supreme Court has said an application under Section 19G for judgment will not barred by review proceedings pending on “unrelated matters,” the Appellate Court ruling indicated this case involved a request for "enforcement on the same matter that was the subject of review proceedings." The ruling further indicated the panel was "not unsympathetic to (Reed's) natural desire for closure, even if only for a portion of this matter," but confirmed his employers had a right to seek judicial review of the Commission's decision. Thus, in accordance with Section 19G, the court said, Reed could not bring his Circuit Court enforcement action at that time.

The court also agreed with the trial judge this attempt to bring a Section 19G enforcement action did not warrant the imposition of Rule 137 sanctions.



Synopsis: The Obama Administration Hates Rapid Accident Reporting Rules. KCB&A Still Recommends Them With a Caveat on Cautious Enforcement.


Editor’s comment: In our view, state-of-the-art in work accident reporting is to ask all workers to report any accident or injury, no matter how minor, as soon as possible. The problem isn’t that goal—the concern is what do employers do to enforce the rule?


We are sad to report our current administration doesn’t appear to like the whole concept and specifically hates enforcement. The U.S. Department of Labor sued United States Steel Corp. to reverse disciplinary actions taken against two employees for reporting workplace injuries in violation of the company's immediate-reporting policy and to force the company to amend the policy. The two employees were suspended without pay for failing to immediately report workplace injuries, per the company's policy, according to the lawsuit, which was filed in U.S. District Court in Wilmington, Delaware, on Feb. 17, 2016. 


In February 2014, Jeff Walters, a full-time utility technician at the Pittsburgh steel manufacturer's Clairton, Pennsylvania, plant found a small splinter lodged in his thumb and extracted it himself, according to the lawsuit. The technician completed his shift without further incident, but the thumb and hand were noticeably swollen two days later, necessitating medical treatment for an infection. When Mr. Walters reported the incident to his supervisor, the company imposed a five-day suspension without pay — later reduced to two days — for violating the company's injury reporting policy, according to the lawsuit.


Later that month, John Armstrong, a full-time laborer at the company's Irvin Plant in West Mifflin, Pennsylvania, bumped his head on a low beam, feeling no pain or discomfort at the time as he was wearing a hardhat, according to the lawsuit. However, he experienced stiffness in his right shoulder and sought medical treatment several days later and was eventually suspended for five days without pay.


Both workers filed complaints with the OSHA or the U.S. Occupational Safety and Health Administration alleging U.S. Steel suspended them in retaliation for reporting workplace injuries, with the agency finding the company violated the anti-discrimination provision of the Occupational Safety and Health Act in both cases. But U.S. Steel failed to rescind its discipline of either worker in addition to refusing to alter or amend its immediate-reporting policy to allow for a reasonable period of time for employees to report worksite injuries, according to OSHA. 


The lawsuit seeks to stop U.S. Steel from violating the Act, direct the company to rescind and nullify its immediate-reporting policy and permanently bar U.S. Steel from enforcing a reporting policy that requires employees to report their workplace injuries or illnesses earlier than seven calendar days after the injured or ill employee becomes aware of his or her injury or illness. The lawsuit also seeks to force the company to rescind its discipline and sanction of the two employees, direct it to compensate the employees for any lost wages and benefits, including interest and compensatory damages, and post notices at all worksites for 60 days stating it will not discriminate or retaliate against employees involved in activities protected by the Act.


In our view, we feel urgent work accident reporting and investigation is critically important. The faster you learn of a claim, the better chance you have to scrutinize and authenticate it. So we feel you want to have such a policy but enforce it as wisely as you possibly can. In our view, OSHA picked two test cases with what they feel are strong facts to allow a challenge to the entire reporting rule. If you read the facts above, we assume you see the problem. If you have minor “bumps and bruises” injuries that are late-reported, consider simply writing the worker up but don’t suspend or terminate. If you have an unquestioned traumatic event with immediate consequences, enforcement can and should be stronger. We are happy to consult on your program, simply send a reply.


Either way, please assume this administration is going to keep fighting and fighting and won’t provide a pro-business approach to accident reporting and investigation. We appreciate your thoughts and comments. Please post them on our award-winning blog.