7-17-2018; Clawing Back IL WC Wage Loss Differential Claims with Thousands of Available Truck Driving Jobs; Understanding the Definition of What a WC accident is in Illinois and Maybe Your State

Synopsis: Clawing Back on IL WC Wage Loss Differential Claims with Thousands of Available Truck Driving Jobs Across Illinois and the U.S.

Editor’s comment: We assure our readers the current IL WC Commission has reined in one of Illinois’ highest conceivable work comp benefits—Total and Permanent Disability. The “T&P” claim has wacky high minimum rates that start today at $555.05, for a part-time worker who might make $50 a week—yes, as a T&P, they will receive at least $555.05 a week! The max rate is similarly sky-high at $1,480.12 or $76,966.24 on a tax-free basis each year.

On top of that largesse, a T&P claimant also gets the hilariously high IL WC Rate Adjustment Fund that can double that weekly benefit in about 23 years or so. If they live long enough, the amount can quadruple.

The overall exposure for a young claimant who is adjudicated totally and permanently disabled can easily be $2-4M or more!

In short, whatever you do, always bring an injured worker back to some sort of work at your organization or outplace them to another place that can accommodate them.

The next most expensive benefit in this nutty State is wage loss differential benefits under Section 8(d-1). This is another lifetime benefit where the worker can’t make as much as they were prior to injury and the hapless employer can be adjudicated to owe them 2/3’s of the difference between what they made while working versus what they are making in the post-injury job.

I saw a recent article confirming the U.S. truck driver shortage is expected to hit 63,000 this year. The shortage is causing delayed deliveries and higher prices for consumers and businesses. Nearly every item sold in America touches a truck at some point, which explains why the challenges facing the industry have special power to affect the entire economy.

Already, delivery delays are common and businesses such as Amazon, General Mills and Tyson Foods are raising prices as they pass higher transportation costs along to consumers. Today, transportation concerns are on the top of every transportation company's list, especially in this area as Chicago is one of the top three transportation hubs in the U.S. Every industry -- from food to manufacturing, banking and finance, health care, retail, and beyond -- relies on trucking to keep goods flowing on time, without damages and within a realistic budget.

Experts confirm when capacity gets tight, shippers often turn to third party logistics (3PL) providers to try to stay competitive as 3PLs have access to a large network of carriers and technology that can optimize shipments and provide visibility into opportunities, including better modes, lanes and routes. Technology is becoming key in this area.

In the meantime, trucking companies must be more creative than ever to attract new drivers. Increasing driver pay, tacking on signing bonuses, becoming more women-friendly, adding more perks and trucks that are more compelling are ideas included in the mix, experts say.

Experts confirm the average age of transportation drivers right now is 58. As a way to increase the numbers, it was recently announced that the Trump administration is advancing a program to let some younger workers drive big trucks across state lines, signaling an openness to lowering the driving age more broadly amid a massive trucker shortage. The federal government currently requires commercial truck drivers to be at least 21 to drive a large truck across state lines. But a Department of Transportation pilot program will soon allow some drivers as young as 18 to drive cross-country for private trucking companies. Specifically, the program would be available to some members of the National Guard and others with military experience.

How does this all impact the field of workers’ comp, particularly in Illinois WC? Well, most Claimants have driver’s licenses and drive to and from their doctors and other care-givers. If you can drive a car, you can and should be able to do small-package delivery for lots and lots of companies. There isn’t a lot of training and the lifting requirements can be very reasonable. What we recommend for many of our clients is to focus on getting injured cops and firefighters and lots of other somewhat healthy workers focused on truck driving and package delivery jobs at the earliest stage of a WC claim. A rapid web search on www.indeed.com brought up more than 1,500 available jobs your claimants can perform right now.

What if they won’t take such a position? Well, remember you don’t have to force them to take the job, all you have to do under longstanding IL WC case law is show there is “available work within a reasonably stable labor market” for them—that is the IL WC golden standard. By doing the online job search and pointing out appropriate and available jobs that pay well and can accommodate restrictions, you can dodge the wage loss differential bullet.

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Synopsis: Understanding the Definition of What a WC accident is in Illinois and Maybe Your State.

Editor’s comment: An initial caveat for the beginner is to understand the definition and scope of accident in Illinois workers’ compensation continues to be more and more liberal. The requirements for a compensable accident twenty or thirty years ago have broadened greatly to the point WC benefits sometimes seem to be awarded for any remote link between work and disability. An ongoing concern is workers’ compensation in Illinois is becoming more and more like indefensible group benefit coverage—if the employee has a job and a medical issue, benefits might be due.

Remember there is a dual requirement of an accidental injury ‘arising out of’ and ‘in the course of’ employment. This is one of the most difficult areas of law for a nonlawyer to understand. The concept of what comprises an ‘accident’ in Illinois workers’ compensation law is difficult to define and harder to predict.

“In the course of”

Of these two terms, the second, “in the course of” is much easier for the layperson to understand. This concept is best defined by the idea the employee has to be working or about to work for the injuries to be considered covered under workers’ compensation. This requirement is usually satisfied if the employee is ‘on the clock’ or at or around their work station. You can usually assume a typical employee going to and coming from work is not covered by workers’ compensation. There is some magical point at which they get close enough to work to say that an injury is a work-related accident.

One controversy regarding this concept arises in claims occurring in parking lots, shopping malls or common areas of public buildings where the employee works. The question is when does the employee arrive/depart from work? The answer changes on a case by case basis. A good general rule focuses on employer ownership or control of the property—if the employer owns the parking lot or building, the employee is considered to be ‘working’ when he or she is present there.

Another major concept when dealing with “in the course of” is the “traveling employee rule.” When an employee is sent on a mission for the employer which takes the employee away from their typical work site, they obtain what may be characterized as expanded workers’ compensation coverage in Illinois. An employee away from home and on the road might arguably be covered for any accident that can be said to result from any activity they could reasonably be expected to do while on the road.

On the defense side, it is argued not everything a worker on a trip does can be said to occur “in the course of” employment while away from home and their typical work site—what if a worker has an allergic reaction eating a hot dog and coincidentally happens to be traveling? Many states have statutory language which require an injury occurring while on a routine trip has to occur while the worker is actually doing work for the employer. While Illinois doesn’t have any statutory imprimatur either way, we feel common sense requires some nexus to work duties for the employer to have to pay benefits if a worker becomes injured or disabled while traveling.

As defense lawyers and observers, we were challenged by the IL WC Appellate Court’s 2012 ruling in Venture-Newberg Perini Stone and Webster v. Illinois Workers' Compensation Commission. In our reasoned view, this legal precedent turned thousands of IL workers into traveling employees and made their employers responsible for all “reasonable activities” performed while at or going to a jobsite, even when not working. Most defense observers were very happy when, about one year later, our IL Supreme Court tossed this legal concept, ruling it was flawed regardless of whether you looked at the facts or the legal issues presented by the penultimate reviewing court.

We do not feel the “traveling employee” concept should ever apply to an employee whose job is to constantly travel such as a truck driver or traveling salesperson. Such workers face ordinary risks while doing their jobs and away from work and shouldn’t have extraordinary coverage for all activities, at work and at rest. If the reviewing courts and Commission extend benefits to employees whose job it is to travel, all such employees would then have global 24/7 coverage for all their actions, personal and professional, while on the road doing routine work or play. We assure everyone this expanded and indefensible coverage would dramatically increase workers’ comp costs in this state and might render the IWCC and lawyers on both sides unnecessary.

Traveling Employee Expansion

In the case of Bolingbrook Police Department v. Illinois Workers' Compensation Comm'n, a divided 3-2 majority of the Appellate Court considered a claim where a police officer injured his back while loading his duty bag (weighing about 40 pounds) into his personal vehicle in preparation for reporting to the police station for work. While Claimant was dressed for work, he wasn’t on duty or anywhere close to being on duty. He wasn’t paid while at home and isn’t entitled to overtime for work performed at home. He still had to get in his own car and drive it to work. In our view, none of his actions while at his own home should not be considered “work duties.” However, our Appellate Court affirmed the ruling.

The Commission, in affirming and adopting the decision of the Arbitrator, acknowledged the accident occurred while Claimant was at home, but reasoned Claimant was “specifically engaged in an activity performed for the benefit of Respondent, an activity the Respondent could reasonably expect [claimant] to perform.”

As more and more white-collar workers operate out of their home or carry items such as lap-top bags/files to and from work or appointment, we must be aware that our Courts are recognizing injuries once workers leave the “threshold” of their home and proceed to “travel” to work.

Question for discussion:  Would the same injury be compensable if the officer picked up his same bag off the floor of his family room moments earlier?

‘Arising out of’

Returning to the concept of “arising out of” employment, this idea has taken a very broad turn in recent years. In analyzing this legal concept workers’ compensation requires more than a showing the employee was working when injured or disabled. The idea is the injury has to arise from some job-specific risk versus a risk felt to be ‘common to the public.’

This requirement focuses on the basic concept of what workers’ compensation coverage/insurance is supposed to be—monetary protection for the worker when they encounter risks specific to work. A clear illustration of this concept is a typical worker who is working and becomes injured when an airplane unexpectedly and randomly crashes into the worksite.

Assuming this employee doesn’t work around airports or airplanes, such injuries are risks we all face in modern society whether we are at work, at home or at play and there is nothing an employer can do to protect employees from such risks. Accordingly, such injuries should not be ruled compensable. This has also been applied to cause a denial of WC benefits where an employee suffered an injury putting on a coat, turning in a chair to answer the phone and tripping over a typical curb.

From the above analyses, one has to move to the more modern problems of accident definition. When workers’ compensation in Illinois was initially formed, the Commission and courts required the employee establish a definite time, place and cause of injury. The classic definition also required something unexpected and untoward to happen.

Repetitive trauma

The last two decades have seen a controversial expansion of this doctrine in the concept of repetitive or cumulative ‘trauma.’ Following Peoria Bellwood Nursing Home v. Industrial Commission, in claims involving carpal tunnel syndrome, if the employee can show they were performing any specific repetitive work activity causing a defined medical problem from that work over a period of time, they may prevail and benefits will be awarded.

The ongoing battle is over specific v. general work duties. Something of a scandal erupted several years ago when an IL correctional facility faced hundreds of WC claims for prison guards claiming turning keys in locks and driving prison vehicles with shaky steering wheels caused CTS—this trend reversed itself to denials, as the general work duties of the workers didn’t appear to justify WC coverage.

Inability to implead or seek contribution among multiple employers in repetitive trauma claims

This problem also raises issues for Illinois employers in the developing world of workers’ compensation following the institution of repetitive trauma as a source of disability. As the reviewing courts created the concept, there wasn’t a legislative scheme covering all possibilities. Some states do have legislation allowing the sharing of repetitive trauma claims.

However, there is no provision in the Illinois Workers’ Compensation Act which allows an employer to implead (or add to the claim) another employer as a contributing source of the repetitive ‘trauma.’ The insurance carriers/TPA’s can’t allocate a continuing claim among each other—one carrier/TPA will owe it all and the others owe nothing. Further, the dilemma each IL employer faces is respective employers/insurers cannot seek financial contribution from all employers who might have partially caused an employee’s disability.

For example, if an employee suffers from a work-related disability for three years and has six different employers during that span, he or she can probably have their pick of all those employers and bring a viable claim against any one of them. Our advice to attorneys on the other side is to bring claims against all possible employers/carriers to insure coverage is assessed—this avoids malpractice concerns. One might think the exposure would focus on either the first or last employer but in reality, it might be any of them if the employee is careful to focus on one employer.

Each employer is faced with having to simply defend themselves and hope the Commission denies the claim against them and leaves the employee to go on to make new claims against the other employers. This concept puts the respective employers in the unhappy situation of bickering among each other with the employee sitting back with the ‘benefit clock’ running, remaining confident one of them will have to pay.

In short, the individual employer also has no ‘right of contribution’ which might seem to an impartial observer to be a fairer way to allocate the cost of disability. One employer will have to pay. The biggest problem is this foments litigation with employers going all out to fight responsibility for a significant claim and leaving the employee to wait for the outcome of the dispute. The IL WC Act and rules were amended to allow such disputes to be brought by the defense side. Payment of interim benefits in such a situation is not supposed to be an admission of liability. This situation does not sit well with Illinois employers/insurers who seek speed, fairness and predictability with regard to claims, underwriting and reserves.

Can work be an accident?

Another problem with the concept of repetitive trauma is what happens when the link between the condition and work activity is not as clear as it may be in carpal tunnel. As the baby boomers age, the search for entitlements has led to workers’ compensation. Remember many problems of aging can be indirectly or directly traced to something done while working. Rotator cuffs degenerate, spinal discs herniate and arches fall from the combined activities of work, play and daily life. The aging worker is a growing concern in WC costs and claims.

We call “repetitive working” a new but growing type of WC claim where a worker has an onset of pain without any real or apparent defined cause. A simple example is an office worker who asserts their shoulder is spontaneously sore during their work day. The worker doesn’t truly do any “shoulder intensive” work but will pick the heaviest task, like lifting a ream of copy paper to assert that is the “accident” or cause of their failing shoulder joint.

Such claims are challenging to defend because they come at employers in various ways and can involve lots of medical care and lost time. As defense lawyers, we do not feel such claims should be compensable while the claimant bar feels anything even potentially related to work should be covered by employer. This causation anomaly may lead to legislation mandating the work be the “primary” cause of the medical problem.

The real problem when one makes repetitive work or activities an ‘accident’ is where to draw a line. As most work involves some sort of repetitive activity and all employees suffer from the normal aches and pains consistent with their age, who can say when a disc spontaneously herniates due to work versus one’s physical makeup? In our view this is changing workers’ compensation into group disability coverage. Please note there is little need for litigation, lawyers or hearing officers in the group healthcare arena.

In the case of Williams v. Industrial Commission, the Appellate Court clearly stated the employee cannot come to the courts and claim, “I worked all my life and now I’m sore” as comprising an accident. The best thing that can be said about the problem of repetitive trauma vis á vis the classic definition of accident is this debate will rage on for years to come in the absence of significant reform.

If all the employee has to establish is they regularly performed heavy work and now have orthopedic problems without needing to establish a specific event, time and cause, workers’ compensation will become very much like group disability coverage with the added cost of permanent disability. Hopefully, the line drawn in Williams may remain.

Repetitive Trauma or Repetitive Working?

The decision of the Appellate Court, WC Division in S&C Electric Company v. The Illinois Workers’ Compensation Commission once again highlights the difficulties faced by Illinois employers in demonstrating a disputed condition may not have been work-related despite presenting equally convincing explanation of a non-work related event being the cause of the alleged symptoms.

Many claimant attorneys are filing dual claims such as here, with a blunt trauma claim and a repetitive trauma claim to cover themselves.

Claimant Cortez filed two separate Applications for Adjustment of Claim, one alleging a discrete work accident which occurred on February 4, 2011 resulting in injury to his lumbar spine as a result of lifting and pulling equipment and the second one alleging injury to “man as a whole” caused by repetitive lifting, bending, and pulling in the performance of his employment and thus alleging a more repetitive trauma type condition and not an acute occurrence.

Claimant alleged as a “mechanical assembler basic” his duties included assembling an average of three-four stainless steel tanks each shift and he worked 10 hour shifts and five day weeks. He claimed on February 4, 2011 he was using a manual hand jack with a steel extension to pick up a pallet and to do this he bent at the waist pulling up on the extension bars. This was when he claimed he felt a “click” in his back followed by pain. However, he continued to do his job and did not report the injury to anyone in leadership until ten days later on February 14, 2011, when he informed a co-worker the pain worsened and was going down to his left leg making it difficult for him to walk.

The medical records entered into evidence indicated Petitioner had a severe disc herniation at the L5-S1 level with impingement on the S1 nerve root and it was the opinion of his doctor the severe extrusion of the disc was indicative of a traumatic change. We note there is no indication of a “trauma” at work in the record. At the same time, during her deposition and upon cross-examination, the physician admitted a person could suffer from such a herniated disc from shoveling snow.

It was also the opinion of the treater Petitioner’s ill-being and the eventual need for a lumbar fusion were the direct result of the February 4, 2011 work event. However, the independent medical examiner opined the herniated disc was not a result of the February 4, 2011 work incident and he based his opinions on the incident investigation report in which Petitioner admitted to not having been injured at work and the initial medical records in which Claimant did not attribute his complaints to lifting, pushing, or pulling at work.

Appellate Court Decision: Respondent’s appeal was based on three arguments: (1) Claimant’s co-worker’s testimony was not credible, (2) the discrepancies between the testimony of Claimant and Respondent’s own witnesses, and (3) claimant’s failure to initially provide the details of his alleged accident to the treating physicians.

In typical Illinois WC appellate fashion, it appears an “accident” was presumed despite the fact no accident appears to have been described in any record—Claimant did his normal work in a normal way. In our respectful opinion, this is a repetitive working claim without any description for the factual basis upon which Claimant might have suffered a severe herniated disc.

Action Items: We strongly recommend obtaining job videos reflecting all of the essential elements of claimant’s job. Identify duration of each task with a breakdown of the typical work-day. No need to have claimant on video however, it is recommended to use a similar size/height individual for the video. Have member of management take the video so they can (1) verify the authenticity and lay foundation and (2) verify the accuracy of the contents of the video as the job duties performed by claimant.

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