5-16-2016; Interesting Changes May Be Coming to the IL WC System Shortly; Ad Hoc IL WC Rules Committee Streamlines Digital Filings; Brittany Pendry on New Controversial OSHA Rule and More

Synopsis: Hold onto Your Hat!! Lots of Interesting Changes May Be Coming To the IL WC System Shortly.

Editor’s comment: File this Article Under “Nothing is Safe When Our Illinois Legislature is in Session.” The news from those crazy guys/gals in Springfield is both sides may be coming together to finally create a budget framework that may soon be presented to the four legislative leaders and Governor Rauner. The details remain secret but it appears this sweeping legislative proposal could include about $5.7 billion in revenue, including an increase in the individual income tax for all Illinois taxpayers from 3.75% to 4.85% and creating a new and unprecedented service tax for some services. It is our strong hope legal and other professional services are not going to be taxed—that may create something of a nightmare to put it into effect. Crain’s Chicago Business opined last year the new proposed 5% service tax may be on things such as hair grooming/blowouts, haircuts, country club and health club memberships and lawn care.


On top of the new taxes, there are supposed to be $2 billion in budget cuts across the board. This new spending plan leaves room for minutia and specifics to be filled in if there is an agreement from all sides to proceed. However, no one is sure if the Governor and his staff will accept the fledgling plan and ignore some or all of his “Turnaround Agenda.” On top of that, it may be just demanding for the members of the Democratic Legislature to accept many cuts in their proposals and also support many of the key points of the Governor’s Turnaround Agenda. What no one appears to be discussing is the 800lb. pink gorilla—the fake IL government pensions that have to have a deficit of well over $111 billion. Please note the worst fake government pension is for the legislators themselves—they only need to work four years of part-time work and contribute about 40% of one year’s pay to be entitled to millions over the rest of their lifetimes plus “free” taxpayer-paid lifetime healthcare. It may be too demanding for our legislators to look in a mirror to see why our State is approaching an inevitable financial abyss from their own largesse to themselves and other state government employees.


On the work comp side, our IL WC system continues to be a key lynchpin item for agreement to insure most GOP lawmakers and Governor Rauner sign off on the new budget. Please note the national WC premium ratings are going to be published by the State of Oregon later this year—we will see if progress is being made in cutting IL WC costs in that well-respected survey. We remind our readers the four WC reform issues in the Governor’s Turnaround Agenda are:


1.    Causation


Currently, if the employment is related at all to the injury, no matter how indirectly, the employee’s injury is compensable. If a work injury aggravates a pre-existing condition even slightly, the employer is 100% liable for the workers’ compensation claim. Twenty-nine states have a higher causation standard than Illinois. Missouri, Kansas, Oklahoma and Tennessee recently passed laws requiring the workplace to be the primary cause for workers’ compensation to be compensable. Florida’s major contributing cause standard is identical to the one they are proposing.


Turnaround Agenda Proposal


• The causation standard should be raised from an “any cause” standard to a “major contributing cause” standard. The accident at work must be more than 50% responsible for the injury compared to all other causes.


Keefe, Campbell, Biery & Associate’s Position


Causation is common sense and a wily or liberal hearing officer can easily rule any minor work problem is a “major contributing cause.” You don’t need this “feel-good” legislation, just tell the Arbitrators and Commissioners to use common sense in making causation rulings. If they don’t use common sense, consider other hearing officers.


2.    AMA Guidelines


The 2011 IL WC reforms added the use of AMA Guidelines as one of five factors in determining permanent partial disability (PPD) awards. The AMA Guidelines are more conservative in determining the awards and thus it was hoped allowing Commissioners to use these guidelines would reduce WC awards. While complete data on the use of AMA guidelines since 2011 is not yet available, a study of 20 cases from the IWCC shows a 12.24% reduction in awards when using the AMA guidelines. Indiana requires mandatory use of the AMA guidelines when determining permanent partial impairment which results in lower permanency awards.


Turnaround Agenda Proposal


• The language that limits the Commission from using only one of the five factors to determine PPD should be eliminated. This will allow (though not mandate) a Commissioner to solely base an award on the AMA guidelines.

• The language that limits a Commissioner to only considering a treating physician’s medical records should also be eliminated. Instead, the Commission should be able to review both a treating physician’s and an independent medical examiner’s records to provide a more balanced view of the medical condition.


Keefe, Campbell, Biery & Associate’s Position


Like the proposed causation change above, an Arbitrator or Commissioner can consider all five factors and go with the impairment rating under current law. Conversely, they can consider all five factors and award anything they want. Try to get hearing officers who use common sense and move permanency/impairment findings closer to AMA Guides. Please also note AMA Guidelines are not a panacea and will create controversy. They would sometimes render permanency/impairment values that are shockingly low in many serious cases—happy to provide examples on request.


3.    Traveling Employee


The Illinois Appellate Court, WC Division has greatly expanded the scope of what constitutes a “traveling employee” for purposes for workers’ compensation. For example, an employee’s injuries were found to be compensable when that employee slipped and fell on the way to work.


Turnaround Agenda Proposal


• What constitutes “travel” for the purposes of workers’ compensation should be narrowed.

• An employee would only be able to recover workers’ compensation while traveling if the travel was necessary for the performance of job duties. The employee must receive reimbursement for the travel or use a company car, and the travel must be required by the employer.

• This change, in addition to the heightened causation standard, will greatly limit the situations in which an employee “traveling for work” is able to recover.


Keefe, Campbell, Biery & Associate’s Position


Please note the IL Appellate Court’s last two rulings on the “traveling employee” concept returned to more traditional work comp law. There is no definition of “traveling employee” in the IL WC Act and there is little reason to try to lamely redefine something that isn’t already defined. We consider this proposed reform confusing and unnecessary in light of the traditional and common sense language in most U.S. work comp systems—the accidental injury has to “arise out of” and occur “in the course of employment. We need hearing officers who will follow traditional work comp concepts in ruling on injuries to all employees, traveling or not.


4.    IL WC Medical Fee Schedule Reduction


Even with the 2011 reforms, workers’ compensation medical fees in Illinois are significantly larger than the median of other states. Surgery costs are the most egregious fee schedule abuses, with rates 300%- 400% above Medicare rates and 100%-200% above group health. Illinois costs are 40%-60% higher than other states for radiology and emergency services and 90%-100% for pain management injections and surgery. Research has shown that a 30% fee schedule reduction would result in a 15%-20% reduction in medical claim costs.


Turnaround Agenda Proposal


• Reduce the fee schedule by 30% for all services except evaluation and management (office visits), and physical medicine (physical therapy, chiropractic visits and occupational therapy).


Keefe, Campbell, Biery & Associate’s Position


All doctors and hospitals we have talked to HATE this proposed reform. They have not been asked and it is being foisted upon them without any input or debate. We suggest the folks behind it actually talk to the docs and hospitals to see what their position might be.


All of our readers are encouraged to continue to reach out to their legislators and let them know how important WC reform is to our ability to attract and retain good paying jobs with reasonable benefits in Illinois. With only two weeks left in the regular legislative session, now is the best time for employers and local governments to relay that message to our lawmakers.


We appreciate your thoughts and comments. Please post them on our award-winning blog.




Synopsis: They Created an Ad Hoc IL WC Rules Committee Right In Front of Our Eyes—Sort of. What Happened to the Five Other IL WC Advisory Boards?


Editor’s comment: Last month, the ISBA WC Section Newsletter confirmed IWCC Chairman JoAnn Fratianni created a new IL WC Rules Committee with Commissioners Stephen Mathis and Michael Brennan co-chairing this new and short-lived committee. This new IL WC Rules Committee was then subdivided into two sections with Commissioner Mathis taking one section and Commissioner Brennan the other section.


As the labyrinth unfolds, the two Committee sections were then broken down to subcommittees. Members of this IL WC Committee as a Whole, included Arbitrators Stephen Friedman, Molly Mason, Christine Ory, Douglas McCarthy, and Maureen Pulia. The bipartisan attorneys that rounded out this committee were: Matthew Belcher, Shawn Biery, Frank Brady, Jack Cannon, James Clune, Richard Hannigan, Richard Johnson, Charles (Denne) Knell, William Lowry, David Menchetti, Elaine Newquist, John Power (Power and Cronin), Arnold Rubin, Jean Swee and Kenneth Werts.


The first meeting was July 29, 2015. This was followed by numerous meetings of the subcommittees as well as meetings of the committee as a whole. The last meeting was March 31, 2016.

The purpose of these meetings was to help bring the rules into conformance with the digital age. The current rules have not had a major overhaul in many years. It appears these Rules subcommittees and committees may have completed their job and the process may be moving forward. All the Commissioners may now meet and go over and fine-tune the proposed rules. Eventually the rules may be sent down to Springfield where JCAR (Joint Committee on Administrative Rule) will review the proposed rules and either adopt, amend or reject the proposed amendments. It is estimated this process will take approximately one more year.

The IL House and Senate passed out of their individual chamber legislative amendments that included mandates for the IWCC to create a format for digital filings of applications for adjustment of claim, motions etc. They must also implement safeguards for privacy issues. One aspect of these changes may mean lawyers that are not based in downtown Chicago may soon be able to electronically file documents, similar to what is happening in the state and federal courts.

We point out our state work comp system has the


·         IL WC Commission Review Board

·         IL WC Self-Insurers Advisory Board

·         IL Workers' Compensation Advisory Board

·         IL Workers’ Compensation Commission

·         IL Workers' Compensation Medical Fee Advisory Board


It seems slightly of note to see all five existing boards couldn’t cover the issues handled by the hard work of the ad hoc group. That said, we salute the ad hoc committee and subcommittees and sub-subcommittee members for their volunteered time and best efforts. We do feel it was for a good cause including government efficiency. We appreciate your thoughts and comments. Please post them on our award-winning blog.




Synopsis: U.S. Employers’ Injury Data Published for All to See. OSHA’s Latest and Controversial Rule Attempts to “Nudge” Employers to Focus More on Workplace Safety. Analysis by Brittany Pendry, J.D.       


Editor’s Comment: On May 11, 2016, OSHA issued a final rule that will modernize injury data collection. While employers in most industries with more than 10 employees are required to record each employee injury or illness that occurs at their establishment, the final rule will require employers in certain industries to send OSHA injury and illness data for posting on the Agency’s website for all to see. OSHA claims this will better inform workers, employers, and the public. OSHA also claims the behavioral metrics of this unprecedented rule will “nudge” U.S. employers to focus more on safety.


Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.


Establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year there­after, the information must be submitted by March 2. OSHA lists high-risk industries at the following address: https://www.osha.gov/recordkeeping/NAICScodesforelectronicsubmission.pdf.


OSHA is pushing this rule because it believes public disclosure of work injury data should encourage employers to increase their efforts to prevent work-related injuries and illnesses, as well as to provide a more competitive hiring market that will allow employees to identify work places where the risk of injury is the lowest. OSHA believes this will provide an incentive to employers to make injury prevention a high priority.  


Notably, this new Rule also provides an avenue for an employee’s right to report injuries and illnesses without fear of retaliation. The Rule requires that employers must have reasonable procedures outlined for reporting work-related injuries. In OSHA’s view, these procedures cannot discourage employees from reporting injuries or illnesses.


However, one big concern should be whether the benefits outweigh the costs. OSHA is estimating once the Rule is fully implemented, the first-year costs for all provisions may be approximately a whopping $28 million.


The final rule will go into effect on August 10, 2016, with phased-in data submissions beginning in 2017. Despite the obvious sentiment that this provision is overbearing and will not practically work, employers must heed the new rules to avoid stepping into OSHA’s cross hairs. As always, a call to the Keefe, Campbell, Biery & Associates, LLC defense team to make sure you have your OSHA reporting system in order should be your first step.


This article was researched and written by Brittany Pendry, JD. You can reach Brittany at any time for questions about OSHA regulations, employment law, general liability defense, and workers’ compensation at bpendry@keefe-law.com.




Synopsis: Yeaaa!!! Cashless Tolling on Illinois Route 390 Starts July 5. When Will the Rest of the Illinois Tollways Follow Suit?


Editor’s comment: This isn’t truly a work comp issue but we wanted to report an important incidence of good government in our nutty state. How much do you think Illinois spends/wastes on payroll to collect tolls each year? Would you believe over $100M!!! This can be saved for Illinois taxpayers by simply automating our tollways. Tollway automation isn’t new—it is been in place in some areas for over 30 years. There is no reason for our state to spend/waste hundreds of millions on toll takers who then get fake government pensions and lifetime healthcare.


This will be Illinois Tollway’s first all-electronic roadway on the Tollway system, and they want to reach/educate as many people as possible before the roadway opens up. Beginning July 5, 2016, cashless tolling will be coming to the Illinois Route 390 Tollway from Lake Street to I-290. This is the first, all-electronic roadway on the Illinois Tollway system, which provides for a safer, more efficient and seamless method of collecting tolls from customers.


Toll collection equipment over the traffic lanes reads the I-PASS transponder on the windshield and automatically collects tolls. Drivers continue at highway speeds without the need to slow down or stop to pay at a toll. Tolls are lower on the Illinois Route 390 Tollway because they are assessed more frequently than other parts of the system. This allows for greater sensitivity for shorter trips and helps local communities provide congestion relief on adjacent roads.


I-PASS users always pay the lowest toll rates available, 50 percent less than those who do not have an I-PASS and must pay online. Those without an I-PASS can get a transponder at an I-PASS Customer Service Center or any Jewel-Osco location. For more information, visit www.illinoistollway.com.