6-29-15; Gay Marriage as It Relates to Workers Comp; IL PPD Accrues and Due After Death of Petitioner, analysis by John Karis, JD; EEOC Hits UAL But Ignores Gov't Discrimination of Disabled Workers...

Synopsis: Whether You Like This Controversial Topic Or Not, You Need To Know the WC Rules on Gay Marriage for Your Risk Management/Claims Job.


Editor’s comment: Last Friday, SCOTUS effectively mandated gay marriage is here to stay in all 50 states. If you aren’t happy about it for religious or other reasons we understand but as adults we have to deal with what is in front of all of us. A clear effect of the U.S. Supreme Court’s decision legalizing gay marriage nationwide is same-sex couples can travel, vacation or reside out of state knowing their marriages will be recognized across our country. Illinois legislatively approved gay marriage in our state starting in 2014. Whatever the outcome, our highest court’s ruling was not expected to directly affect Illinois law since the case was focused on court judgments and not unions approved by a legislature, as in Illinois. The SCOTUS ruling means 14 other states will have to stop enforcing legislative or judicial bans on same-sex marriage, effectively “approving” or mandating recognition in all 50 states.


The freedom to reside elsewhere on either a temporary or permanent basis along with freedom to travel was among the things Illinois’ gay couples were celebrating after Friday’s decision. Here are other aspects of the ruling:


For Illinois and All of the United States, Gay Marriage Is Here To Stay


The Illinois General Assembly approved gay marriage in late 2013 with an effective date in 2014 and former Governor Quinn signed the bill. This made Illinois the 16th state to allow same-sex unions. Since the law took effect in June 2014, more than 10,400 same-sex couples have married in Illinois. Cook County Clerk David Orr says more than 7,500 marriage licenses have been issued in the Chicago area. The SCOTUS ruling effectively closes the door on any possibility our Legislature or Courts could one day reverse the law under a conservative regime.


The Rights Married Gay Couples Have In Illinois Will Travel With Them To Other States; The Rights Gay Couples Have From Marriages In Other States Will Follow Them Here


Prior to the U.S. Supreme Court decision, Illinois couples could still have faced issues in the remaining states which had bans on gay marriage. When relocating, a gay spouse could be denied workers’ compensation benefits deriving from their relationship. Now, it appears such concerns are gone and not coming back. One of the two parts of the U.S. Supreme Court’s decision specifically dealt with the cross-border issue, finding same-sex marriages “legal” in any state must be recognized by all states.


The other part of the SCOTUS ruling declared gay marriage bans in four states, Kentucky, Michigan, Ohio and Tennessee were unconstitutional, effectively making same-sex marriage fully legal throughout the United States. A gay marriage from any state is going to have to be accepted by the IL Workers’ Compensation Commission and the IL reviewing courts.


No One Knows What To Do With Civil Unions—Our Advice to Gay Couples is Keep It Simple and Get Married


Illinois created civil unions in 2011 as a precursor to gay marriage. The law on civil unions makes the partners in a civil union “spouses.” We are not sure if the surviving spouse in a civil union has to be legally treated as a widow or widower—we think so but it is hard to be certain. See this link from the Illinois Department of Insurance: http://insurance.illinois.gov/General/civilunions.asp We don’t know if the SCOTUS ruling is going to make civil unions a nationally protected legal status. We assume other states may or may not fight that issue and suggest marriage is the simplest way to clarify any concerns moving forward as we are sure the SCOTUS ruling protects marriage and leaves “civil unions” in limbo.


How Does Gay Marriage “Translate” Into IL WC Rights and Benefits?


Well, our research indicates the word ‘spouse’ is mentioned in the IL WC Act on five occasions. Gay couples married in Illinois or any state are now legally ‘spouses.’ Basically, the AWW, TTD and PPD rate calculations are impacted by marital status—if you aren’t sure how, please send a reply. A spouse who remarries can have death benefits cut to a lump sum payment of two years in the right circumstances. Other than those legal facets of the term, WC benefits are not dramatically changed.


The words ‘widow’ or ‘widower’ appear in the IL WC Act on 30 occasions. The surviving spouse of a gay marriage is now legally a ‘widow’ or ‘widower.’ The words widow/widower only appear in Section 7 of the Act which provides for death benefits due to work-related injuries or illnesses. The defense team at KCB&A unequivocally asserts it is our reasoned legal opinion gay couples who tragically lose a partner due to a work-related accident or illness will have the same rights and benefits as all couples moving forward. For claims handlers who aren’t fully aware of how to investigate, document and properly pay death benefits under Section 7, we recommend you contact our KCB&A defense team at no charge and we can greatly simplify all aspects of it. Please remember death benefits in Illinois can cost an employer or insurance carrier/TPA up to $1,770,327.00 right now—please note the numbers are going to go up this week and on July 15. On July 20, 2015, our law partner Shawn R. Biery, JD, MSCC will have a new updated IL WC rate sheet for our readers to document the expected benefit increases. Send Shawn an email if you want his new IL WC rate sheet when ready. Our point is for a widow or widower, gay or straight, you don’t want to get IL WC death benefits wrong, as there is too much at stake.


How Does Gay Marriage Affect WC Benefits in KCB&A’s Other Covered States/Offices in Indiana, Wisconsin, Iowa or Michigan?


If you have questions about WC benefits in Hoosier-land or Indiana, contact Kevin Boyle kboyle@keefe-law.com or Pankhuri Parti pparti@keefe-law.com. For issues in Cheeseland, ooops, we mean Wisconsin, contact Jim Egan at jegan@keefe-law.com or Matt Ignoffo at mignoffo@keefe-law.com. For Iowa claims and benefits, contact Dan Boddicker at dboddicker@keefe-law.com. For Michigan WC claims, contact Ellen Keefe-Garner at emkeefe@keefe-law.com. Or just send a reply.


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




Synopsis: IL WC Appellate Court Rules Accrued PPD Benefits Are Due To An Injured Worker’s Estate. Thoughts and analysis by John A. Karis, J.D.


Editor’s comment: In Bell v. IWCC (issued May 1, 2015) our Workers’ Compensation Division of the Appellate Court of Illinois reversed the IWCC and sent a claim back for a calculation of PPD and an award due to the estate of an injured worker. The majority ruling explained the basis for allowing Claimant's estate to seek and obtain permanent partial disability (PPD) benefits accrued and would have been arguably due to Claimant-decedent prior to her death.


Quick Thoughts From Your Editor:


·         We are glad to see the Appellate Court, WC Division concedes the IL WC Act mandates IL PPD benefits “accrue” on a weekly basis—we note our activist reviewing courts don’t seem to follow that simple rule in


o   Greene Welding and Hardware v. IWCC where they changed traditional views of the IL WC Act to find amputation benefits magically, completely and instantaneously accrue in the minute where the employer or insurance carrier/TPA learns of bone loss—from an academic perspective, we don’t agree that is what the IL WC Act says;

o   We have no idea what weekly “accrual” of PPD means in the IL Supreme Court decision in Beelman Trucking v. IWCC where an injured employee is now allowed to get lifetime weekly statutory total and permanent disability benefits along with “doubled” weekly PPD benefits arising under Sections 8c, 8d or 8e at the same time. We assert the legislature intended lifetime benefits to be the sum of what an IL employer owes.


·         We also feel the outcome of this ruling is anti-business and agree with our great and now-deceased Arbitrator Neva Neal-Mundstock and the solid appellate ruling from the IWCC panel. What possible reason is there for permanent partial disability benefits to be paid to folks that aren’t married to, children of or in any way dependent on decedent? Why do accrued PPD benefits have to be paid to distant relatives or legatees eight years after the accident and a half-decade after the passing of the injured worker? It again feels like Illinois business always has to lose money by paying unneeded benefits in the WC system in this state. With respect to the august members of our Appellate Court, WC Division—they may be signaling to our legislature the need to change the IL WC Act and modify the statutory language to have it make more sense.


There is no question Claimant Nash filed an Application for Adjustment of Claim under the IL WC Act, seeking benefits for a fall-down injury sustained while working for Respondent. Prior to the arbitration hearing, Claimant Nash died of causes unrelated to her work accident. Ms. Nash’s sister and the administrator of her estate filed an amended Application, substituting Claimant Bell as the new party-petitioner. The new Claimant sought recovery of the PPD benefits accrued from the date Ms. Nash reached MMI until her death on August 19, 2010. The employer disputed Claimant’s right to recover such benefits, arguing any PPD benefits to which Claimant would have been entitled abated upon her death.


We are wholly unsure why the issue of accidental injury was stipulated to at hearing, as the burden of proof would have been on the new Claimant to prove an injury to decedent. This would have brought various evidentiary challenges which might have resulted in a compromise settlement. It is also difficult to understand how this simple fall-down claim would merit six years of litigation, at what will now be the fifth level of hearing or appeal—the defense legal fees might exceed the overall exposure.


After conducting the hearing, Arbitrator Neal awarded temporary total disability (TTD) benefits and medical expenses and found Claimant sustained permanent partial disability from her work injury. However, the arbitrator ruled any PPD benefits which accrued prior to the passing of decedent’s death abated with her death and declined to award any such PPD benefits to her estate. Arbitrator Neal noted the IL WC Act “allows dependents to recover from the economic loss caused by [Claimant’s] injury,” and concluded “[a]llowing [Ms. Nash’s] estate to collect permanency benefits, where she had no dependents, really serves no purpose.”


Claimant appealed Arbitrator Neal’s decision to the Illinois Workers’ Compensation Commission. The Commission unanimously affirmed and adopted her decision. Claimant then sought judicial review of the Commission’s decision in the Circuit Court of Coles County, which confirmed the Commission’s ruling.


This issue presented on appeal is whether the estate of an unmarried Claimant who dies without leaving any dependents may recover PPD benefits accrued prior to the employee’s death, or, alternatively, whether any claim to such benefits abates with the injured worker’s death.


The Appellate Court indicated the IL WC Commission erred in their interpretation of Section 8(e)(19) and Section 8(h). The Appellate Court noted these provisions merely establish to whom benefits will be paid if the employee dies with a spouse or dependents before they have been fully compensated for the work-related injury. The statute does not limit the ability of a deceased employee’s estate to collect accrued, unpaid benefits were due and owed to the employee while he/she was alive. Neither provision addresses what happens when an employee dies without leaving a surviving spouse or any surviving dependents, as in this case. Accordingly, neither provision should be read as barring an employee’s estate to collect accrued PPD benefits under such circumstances.


In our opinion the Appellate Court set the precedent to allow Claimant’s estate to inherit accrued PPD benefits owed. They sent the matter back to the IWCC to determine the amount due to the estate.


This article was researched and written by John Karis, J.D. You can reach John at jkaris@keefe-law.com. We appreciate thoughts/comments. Post them on our award-winning blog.




Synopsis: What We HATE about IL State Gov’t, the City of Chicago and Some Local Gov’t Units—Unlike Private Sector Employers, Some Gov’ts Pay Endless TTD but Don’t Accommodate Injured Workers Into Open Positions.


Editor’s comment: We saw a recent headline where the federal EEOC took $1 Million from United Airlines to settle a disabled-workers suit. In 2013, the Supreme Court refused to reconsider a 7th U.S. Circuit Court of Appeals ruling in EEOC v. United Airlines Inc., which held reasonable accommodations under the Americans with Disabilities Act requires U.S. employers to reassign employees to vacant positions when the employee cannot be accommodated in his/her current position. The EEOC charged by requiring employees with disabilities to compete for vacant positions for which they were qualified, the company's practice frequently prevented disabled workers from continuing employment with the airline.

The EEOC said in a statement the airline will pay $1 million to a small class of former United employees with disabilities and make changes nationally, under a consent decree. United Airlines will revise its ADA reassignment policy, train employees with supervisory or human resource responsibilities regarding the policy changes, and provide reports to the EEOC regarding disabled employees who were denied a position as part of the ADA reassignment process, the EEOC said.


While many cost-conscious Illinois cities, school districts and others will follow this rule, we assure you IL State Government, the City of Chicago and some local governments continue to refuse to do so. The reason very few folks beef about it is the workers keep getting paid by taxpayers with TTD, TPD or generous disability pay for months and years. In some cases, workers are provided “odd lot” total and permanent disability benefits for life despite the unquestioned fact the workers could be placed, like UAL now has to place such workers, in other open positions.


What is sauce for the goose ought to be sauce for the gander—we ask the EEOC to stop attacking private industry while giving a pass to the public sector. You may note the State of IL and City of Chicago, along with the CTA and Chicago Public Schools have combined debt of over $150B. One of the reasons for that high debt is the endless payment to former workers who no longer work for taxpayers when they could be put to available work and save billions.


Does or Should this Ruling End Fake Police/Firefighter Pensions?


In Illinois, a police officer/firefighter only has to demonstrate they are restricted from their police or fire job to be entitled to a lifetime pension. In rulings like the 2014 Appellate decision in Pedersen, et. als. v. Village of Hoffman Estates, the municipality owes lifetime line of duty disability pension benefits and lifetime family medical coverage for a man with moderate hearing loss due to an accidental siren which caused hearing loss. We assure our readers Plaintiff Pedersen isn’t deaf; he needs hearing aids to function normally. With respect to him and agreeing he has a disability requiring accommodation, we don’t consider that a life-disabling and catastrophic condition. This man can and should be working somewhere where hearing aids could allow him to safely be a building inspector or perform another available municipal job. If you go to the Village of Hoffman Estates website, you will note this year they filled Administrative Staff Assistant and Front Desk Customer Service Rep positions—Mr. Pedersen can safely do such jobs with hearing aids.


Hundreds of “not-so-disabled” police and firefighters across our state could be brought back to other available municipal jobs, as this EEOC ruling and settlement dramatically requires. If that happens, workers like Mr. Pedersen and others would not be put on our dole to receive lifetime line-of-duty disability pensions with taxpayer-funded family healthcare benefits which cost IL taxpayers billions. Current workers already on line-of-duty disability pensions should be taken off the fake pensions and returned to other available work. They can and should do lots of other available municipal jobs with reasonable accommodation. Trust us, the police officers and firefighters getting the pensions aren’t going to complain when they are getting thousands of our tax dollars without having to work—someone has to complain about it for taxpayers. We truly feel the General Assembly should investigate, hold hearings and consider legislation over this issue.


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