5-9-2016; How KCB&A Can Save You WC Dollars on Your Non-Litigated and Litigated Claims!; Brad Smith on New Federal White Collar Salary Exemption; Welcome Back Wrigs on Important 19H Ruling and More!

Synopsis: How Keefe, Campbell, Biery & Associates Can Save You WC Dollars and Insure Your Claims Are Handled Effectively And Efficiently!!


Editor’s comment: We keep getting the same questions and want our readers to know the answers. You can and will save money to use the Midwest U.S. Best Legal Defense Team for your non-litigated and litigated WC defense claims. Here are our best thoughts. Please note we defend claims in Illinois, Indiana, Wisconsin, Michigan and Iowa. Any claim question or concern you pose will be handled by the licensed team member for that respective state. We save any and all emails where we provide legal advice and such record-keeping is attorney-client privileged for your protection. If you haven’t found your concerns below, please, please tell us what you might need help with in handling WC claims!


Non-Litigated Claims—Most Legal/Claim Consulting Services are Free


·         Is It Compensable or What?


The phone calls and emails we receive all the time are for a preliminary review of an incident seeking our best legal advice on whether the claim is or is not compensable under the applicable state’s work comp law. Please remember not to quickly and rashly characterize what has occurred as an “accident” or “injury”—they are all incidents until you decide, after consulting with defense counsel whether you are dealing with a work-related accident. One early tool to use is to compare what you are being told at the work site with the medical histories—you would be amazed how many times they tell the folks at the plant one story and then tell the doctors a total different tune.


If you need such advice on any claim, send an email or call any of our defense team members—the cost is gratis, complimentary, free…!


·         Free WC Claim Valuations


We are asked all the time for the reserve needed on an accepted WC claim. If you can provide needed details and investigation, we are sure we can tell you a reasonable value and back it up with research. You can document your file to indicate you consulted with counsel and create a reproducible reserve that will stand up to internal and external audits.


Again, this service and any related research is free of charge.


·         IME Background Letter Review


We have seen claim after claim where busy claim adjusters do form IME background letters or sometimes let neophyte nurse case managers do IME background letters and innocently turn a non-compensable WC claim into a compensable and expensive one. How, you ask? Well, lots of times the biggest mistake is having a worker claim their shoulder/hip or whatever got sore at work. The worker didn’t even report their concern for a week or even a month later. The busy claims handler will then select an expert and ask that IME doctor if the “injury” is related to “work?” In our view, when you ask an IME doctor that sort of loaded and leading question you are almost certain to get the wrong answers because the onset of soreness at work isn’t an accident and shouldn’t be an injury.


If you want a veteran defense lawyer to review the IME background letter, we will do it at no cost and give you great ideas on how to maximize the use of defense experts.


Litigated WC Claims—We Charge Reasonable Rates to Defend Your Toughest Litigated Claims


·         Getting Claimants to MMI and Back to Work


Our first goal in any assignment is to insure you have proper targeting of all pending medical care. By “targeting” we mean looking at an accepted claim and figuring out how much medical care and how long care should continue following an initial injury or post-injury surgical intervention. This is a spot to consult with an EagleOne CMS nurse case manager, if you have one on the file. When you have a claims target for MMI and light/full return to work, we consider it important to document your file with it, let your accounts know and be sure to let the other side know—tell Claimant and/or the attorney for Claimant, where appropriate.


In IL WC and most states, you can use utilization review, IME’s and other techniques to make your valid WC claims target happen. If things break down on a claim, that point is a great time to contact one of the experts at Keefe, Campbell, Biery & Assoc. to seek their help in putting the train back on the rails and getting the worker to end care and return to light/full work.


·         Getting WC Claims to Close Faster Than Our Competition


Our motto is “The Only Good File is a Closed File!” We take great pride in closing all WC litigation faster than our competitors—we confirm we have many tactics and techniques to make things come to closure and getting the best possible outcome within your authority. If you want a list of concepts to close WC claims rapidly, send a reply. Basically, our focus is to work the claim up, figure out if there is common ground for a settlement, make an offer and failing that, get the matter in front of the Arbitrator/Hearing Member and get it tried.


·         Helping with Ancillary Issues Like Employment Law Beefs and MSAs


We have a team of defense experts who can assist with release/resignations and aggressive defense of employment law charges both at the EEOC and State Departments of Human Rights. If you have concerns about Medicare Set-Asides, we have two lawyers who carry the MSCC certification who can assist with insuring the federal government won’t mess with your biggest and toughest settlements.




We can’t help you if you don’t let us—all we suggest you consider is giving KCB&A a try—ask questions or send emails about your toughest claim issues. See if you receive strong value and turn your desk around!



Synopsis: New NLRB Salary Increase to White Collar Exemption Will Affect Telecommuters! Analysis of New Law by Bradley J. Smith, J.D.

Editor's Comment: In accordance with President Obama's directive, the NLRB will soon increase the White Collar Salary Exemption to about $47,000.00, which will affect the way you label certain employees under FLSA. It’s time to take another look at how you classify your salaried employees.

The new NLRB white collar salary increase—as directed by President Obama—will likely change the way any of your formerly exempt employees telecommute. That new rule is expected to be finalized soon. Although the initial proposed salary increase was $50,440, the exempt salary threshold will likely be about $47,000. This will result in many reclassified employees changing their working habits, which might affect those who telecommute.

Prior to this newly implemented rule; generally, an employee that was exempt and telecommuted would only require completion of tasks, with disregard to when they were completed throughout a 24-hour period. However, with the implementation of the new rule, employers may not want to manage the burden of monitoring and compensating overtime worked. In fact, this would require implementing new monitoring techniques to properly manage your telecommuting employees. After all, it is hard to guarantee that your formerly exempt employees are not working overtime hours during the week, when you never had to monitor that before.

Reducing the number of your employees that telecommute will also require examining your previous practice of allowing telecommuting in the past. When something has become so routine amongst your employees that were exempt, it will be a difficult task to remove that prior fringe benefit. Perhaps you even provided telecommuting as a reasonable accommodation to some of your employees. You can expect employees that are allowed to continue to telecommute while others are not will be questioned. Management will need to have logical reasoning as to why some employees are still allowed to telecommute, and why some employees cannot telecommute after the reclassification.

The new rules will require the implementation of strict monitoring procedures to determine the hours that telecommuting non-exempt employees are working. In other words, the telecommuting non-exempt employees will need to carefully track and report all time worked.

Ultimately, the most conservative approach would be removal of the telecommuting option for employees that are no longer exempt due to the rule change. Depending on the employer's appetite for risk, it may proceed to allow employees to telecommute despite their newly non-exempt status. Employers with intermediate risk tolerance will likely need a form of monitoring that requires telecommuting employees to work within certain hours of the day, instead of the prior requirement that employees complete all the tasks that required completion.

As change is in the air, employers must prepare for this rule in many ways. One of those ways is to take a look at how they handle telecommuting employees. If you are late to the party, then you could get caught not properly paying overtime, which can carry additional penalties besides simply paying the overtime that was unpaid. There are multiple options and fixes to deal with changes that are necessary with the way your company manages its telecommuting employees upon implementation of the new rule.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the FLSA, employment law, and general liability defense at bsmith@keefe-law.com.



Synopsis: In IL WC, Time Period for Filing 19(h) Petition is Not Tolled by Judicial Review Except When a Final Determination of a Court Quashes the Commission’s Award. Analysis by Matt Wrigley, J.D.—Welcome Back, Wrigs!!!


Editor’s Comment: In Weaver v. Illinois Workers’ Compensation Comm’n, 2016 Il App (4th)  150152WC, NO. 4-15-0152WC, the Appellate Court, WC Division dismissed Petitioner’s 19(h) petition filed on November 6, 2013 due to lack of jurisdiction as the petition was untimely. The Appellate Court held the 30-month filing period commenced on February 23, 2010, the date of the Commission decision which affirmed an Arbitrator’s award of 50% loss of use of a person. Thus, the Appellate Court held to be timely under the IL WC Act the petition must have been filed by August 23, 2012. The 30-month period for filing a section 19(h) petition runs from the date of filing of the Commission’s decision and judicial review of the Commission’s decision does not toll the 30-month period. The Court noted it was the February 23, 2010 decision Petitioner sought to modify.


The Arbitrator’s decision was dated January 22, 2009 and awarded 50% loss of use of a person. As noted above, the Commission decision affirming and adopting this award was dated Feb. 23, 2010. On judicial review the Circuit Court found the Commission’s decision to be against the manifest weight of the evidence and remanded the matter to the Commission. The Circuit Court decision was dated January 13, 2011. The Commission issued its decision on remand on June 30, 2011 and found Petitioner permanently and totally disabled. On June 11, 2012, on judicial review the Circuit Court affirmed. On September 25, 2013, the Appellate Court reinstated the Commission’s original February 23, 2010 decision.


Petitioner filed a Petition for Review under sections 19(h) and 8(a) on November 6, 2013. Respondent filed a motion to dismiss the 19(h) petition arguing it was filed beyond the statutory 30-month filing period. Petitioner responded and argued the 19(h) petition was timely as it was filed within 30 months of the Commission’s June 30, 2011 decision on remand. On April 23, 2014, the Commission granted Respondent’s motion to dismiss the 19(h) petition. On judicial review the Circuit Court confirmed the dismissal on January 30, 2015. Petitioner appealed to the Appellate Court.


The Appellate Court noted the 30-month filing period set forth in section 19(h) constitutes a jurisdictional requirement which may be raised at any time. The Commission is divested of its review jurisdiction under section 19(h) 30 months after an award of compensation. The Appellate Court held judicial review of the Commission’s decision does not toll the 30-month period. The Appellate Court further found the right to review under Section 19(h) does not depend upon whether the Commission decision is enforceable at the time the 19(h) petition is filed except in cases where there is a final determination of a court which quashes the award. Subsequent vacatur and reinstatement of the original Commission decision does not affect the 30-month period for filing. The Appellate Court noted in the case at bar there was no final determination of a Court which quashed the original award.


The lawyers and staff of Keefe, Campbell, Biery & Associates welcome back Matt Wrigley, J.D. who wrote this great article after an hiatus at another firm. Matt can be reached for thoughts and comments about this and any IL WC claim issue at mwrigley@keefe-law.com or call 312 756 3733.