5-18-2020; IL State Financial Crisis Brewing--When Will IL WC Commission Go Back to 'Virtual' Work?; IL State Chamber Asks Our Legislature to “Do No More Harm!!!” and more
/
Synopsis: State of IL Financial Crisis Brewing; When Will the IL WC Commission Go Back to “Virtual” Work?
The State of Illinois is going to be reaching a crisis in funding State government agencies, payrolls and expenses very soon, if not already. We assure you it isn’t a question of if there will be an IL State funding crisis—it is just a matter of how big and when that crisis will land.
During this crisis, IL State Tax collections across the board are certain to dramatically suffer, creating a gaping hole that won’t be easily filled in this State with the worst credit rating in U.S. history. There is a hope by Illinois and similar states that the Feds will generously offer a massive bailout. The problem is, other States with their fiscal house in order don’t want to flip the trillion dollar bill, and we can’t blame them. As some of the lawyers at KB&A are life-long Illinois residents, would we like our State totally bailed out from the debt/pension crisis? Well, sort of, yes. Is it fair to put decades of poor financial practices on the back of the rest of America? Of course not.
So, what do you want the State to do?
While the private sector is either forcibly closed or doing all they can to cut cost and survive, it seems very little is being done to shut down costs/expenses in any IL State department that anyone has heard of. Other States, counties and cities like Rock Island, IL are laying off non-essential workers, to our understanding. We don’t understand why our IL State and local governments aren’t running “skeleton crews,” maximizing online capabilities or shutting down like the private sector to save millions. After all, many of the respective government workers have very little to do during the shut-down.
The IL State department we are most familiar with is the IL WC Commission that may be innocently contributing to this situation. The annual cost/budget of the IWCC is $30M or more than $2M a month. The IL WC Commission is significantly shuttered without any layoffs that anyone is aware of. Other than limited emergency hearings, some telephone oral arguments, and telephonic status calls, there are not significant litigation efforts going forward and filings for Request for Hearings are significantly lower. Case filing has slowed significantly as well. There is no question they are almost certainly seeing less work during the entire month of May.
June, July, August—who knows when the regular functions of staff at all levels at the IWCC will come in full swing? The idea of a “shut down” but with full time/full employment of all state workers is troubling some observers.
Our Humble Suggestion:
The defense team for KCB&A doesn’t want layoffs at the Commission. To the contrary, we would like to see the Arbitrators and Commissions “virtually” return to their regular jobs and again start moving claims forward. This will require adjustments, of course. It is what private business does when blind-sided by unexpected challenges. For example, the Starbuck’s on our corner does not allow anyone inside and will not exchange money at all, for our afternoon coffee run. However, they have advertised and set up remote ordering and we are met at the door each afternoon with our coffee placed on an outside table for pick-up. That is how private business adjusts to this unprecedented crisis, and the IL WC Commission can do the same.
To be sure, the Chairman and Commissioners have already taken steps to function on a limited basis during this crisis and we applaud those efforts to have emergency hearings, keep pro-se approvals going and get settlement contracts approved. We can schedule emergency hearings and are also moving toward limited/agreed hearings next month as well. Let’s not stop there. We further advocate pre-trials and motions via conference call or Zoom, allowing preliminary work to be done in advance of trial. Pretrial discussion and recommendations are a great method to resolve disputes short of formal trial. Electronic filing and e-exchange of exhibits prior to trial can limit contact at hearings and the now well-established precautions for distancing can be taken to minimize contact risk for court appearances.
There are also nine IL WC Commissioners who handle administrative appeals in three panels of three. Each of them have two attorney-assistants. Let’s keep them working with conference call or Zoom oral arguments and motions. You may note the U.S. Supreme Court is holding online orals—why can’t every judicial and administrative hearing start again happening/working but online?
In our view, no attorney on either side with a valid and important IL WC administrative appeal is going to waive oral argument. At present, we understand there have been at least a few oral arguments via phone conference (Shawn Biery from our office argued and already received a Commission ruling during the shutdown). We have multiple pending appeals and encourage the continued setting of oral arguments in as many cases as possible. This provides the 27 lawyers who are either Commissioners or assistants to the Commissioners with an ability to work through any backlog and get cases decided.
As indicated above, all of this could be done online with Zoom meetings, phone conferences, FaceTime or some other electronic means. As we indicate above, we understand the U.S. and IL Supreme Court are using such technology to keep their docket moving. We should do the same at the IWCC, not just to justify the Commission payroll, but to also preserve the rights and interests of employees and employers in our industry.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: KCB&A Joins With the IL State Chamber to Beseech Our Legislature to “Do No More Harm!!!”
Editor’s comment: The Illinois State Chamber confirmed our IL Legislature is returning to consider new laws in light of the current crisis. The State Chamber’s top legislative gurus have one message to returning lawmakers "DO NO MORE HARM!" We join with them and our readers to question/challenge our IL General Assembly's enactment of new mandates, new opportunities to sue employers, and new taxes on employers so as to add open and hidden costs that bring many IL businesses closer to shutting their doors and eliminating the jobs that result from the closure of that business.
Two issues our IL State Chamber feels will be considered during next week's IL Special Session are unemployment insurance and workers' compensation.
Unemployment Insurance: Three issues that need to be addressed to secure much needed federal funds for administration of the unemployment system by the Illinois Department of Employment Security are:
1) waiver of the benefit charges for individual employers due to COVID-19;
2) waiver of the one week waiting period for benefits to start; and
3) addition of 13 weeks of benefits past the 26 weeks of regular benefits.
Workers' Compensation: With the judicial victory and subsequent repeal of the Workers' Compensation Commission's emergency rule to broaden the rebuttable presumption for COVID-19, we expect the General Assembly will push for enactment of similar provisions in the statute. Preparing for a potential legislative solution, the State Chamber’s Employment Council staff with assistance from members of its Workers' Compensation Committee has prepared a legislative compromise to be introduced by Sen. John Curran (R- Willowbrook). We salute them for their hard work in trying to stay on the point with legislators.
The State Chamber’s proposed legislative compromise seeks several changes to the current law.
Expands the current workers covered by the rebuttable presumption by:
Removing the five year requirement for firefighters, emergency medical technicians (EMT), emergency medical technicians-intermediate (EMT-I), advanced emergency medical technicians (A-EMT), and paramedics;
Adding law enforcement officers; and
Adding health care providers, nurses, or assistive employees employed in a health care, home care, or long-term care setting with direct COVID-19 patient care.
Requires the employee to show contraction of COVID-19 by either a confirmed positive laboratory test or, if a test was not available, by the employee's physician's documented diagnosis based on the employee' symptoms.
An employer is able to defeat the presumption if :
the employer provides evidence to support a possible finding that the employee's occupation was not a cause of the disease; or
if the employer shows that the employee's worksite followed the appropriate Centers for Disease Control (CDC) interim COVID-19 Guidance for Businesses and Employers and any updated changes to such guidance.
Specifically provides an employee who has contracted COVID-19 but who fails to establish the rebuttable presumption is not precluded from claiming an injury.
Provides the date of injury/exposure is the date that the employee was unable to work due to a diagnosis of COVID-19, or due to symptoms that were later diagnosed as COVID-19, whichever occurred first.
Provides an employer shall be able to offset liability for temporary total disability (TTD) benefits for payments to the injured employee for:
paid leave due to COVID-19;
sick leave benefits or family medical leave benefits paid under the federal Families First Coronavirus Response Act; and
unemployment insurance benefits paid pursuant to the federal Families First Coronavirus Response Act.
Requires the IL WC Commission to provide a detailed report on COVID-19 workers' compensation and occupational diseases claims to the Governor, members of the General Assembly and the Workers' Compensation Advisory Board by January 15, 2021.
Provides for an effective date for the rebuttable presumption for employees who contracted COVID-19 on or after March 9, 2019 and until 30 days after the Governor's COVID-19 State of Emergency expires.
We ask our readers to consider joining the IL State Chamber, as they are the lead organization watching out for the needs of IL business. For more information, go to www.ilchamber.org.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: When Will the Media Start to Actually Help Avoid/End Covid-19 Exposures?
Editor’s comment: Common sense thoughts from your Editor, Gene Keefe.
I am carefully watching the news approach on reporting of Covid-19. I consider it mildly hogwash and will explain why. They track the total number of infections, the number of deaths and the number of new cases. In my view, that simple and summary information isn’t helping and the media should start to focusing on helping folks avoid infections.
We all know about masks and gloves. Despite that common skill set, please note we had around 1500 to 4000 new cases a day this past week in Illinois. To me that is a staggering number given what we know about this bug and how to stop it. The only way to get infected that I am aware of is human contact. Right?
In contrast, Florida has around 30% or significantly less than our new cases with about 8 million more people in that State than Illinois—what are they doing that we aren’t???
And why isn’t someone trying to reach out to new Illinois cases and ask them for their spin on how they may have gotten the infection?
Please note the CDC website is the normal federal blur---I am not sure what they are doing and why/how. I don’t feel they are strongly effective based on current performance. Take a look at: https://www.cdc.gov/coronavirus/2019-ncov/php/principles-contact-tracing.html
If most infected people are asked, I am sure a number of people wouldn’t participate and you can’t force anyone to violate their federal HIPAA privacy rights.
But there is no harm in having the news media asking and reporting when infected people cooperate and give you their best thoughts on how they got this awful bug.
I am asking my readers who are willing to cooperate to let me know what the reported source of the infection is for your Covid-19 WC/OD claims. I don’t want the workers’ names and I won’t publish your name, unless you want me to. Also, feel free to confirm all your Covid-19 avoidance efforts so I can relay to the secret-powers-that-be who run the IWCC.
My focus is to use and publish data to start making sense of why 1,500-4,000 Illinoisans are getting newly infected each day in this about-90-day-old crisis and, along with distancing, masks and shields and other stuff, let’s tell people what to avoid.
I appreciate your thoughts and comments, please post them on our award-winning blog.
Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.
Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com
What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:
Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;
Investigate and verify claims for other workers possibly not covered by the Rules and
Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.
We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.
Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.
Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:
Interviewing – the ability to draw out the relevant information through effective questioning
Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations
Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation
Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk
Interaction – personal attributes that enable effective relations with other people
Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified
If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com