7-4-16; Kicking Financial Snowball from IL/Chicago Down the Hill; "Repetitive Working" Claim Turns into Fight Over Need for Ratings; Shawn Biery on Important Federal Retaliatory Discharge Ruling...

Synopsis: Kicking the Ever-Growing Financial Snowball Down the Hill--The U.S. Worst-Run State and City Keep Their Losing Streak Alive!


Editor’s comment: In our view, the last-minute confusion and consternation last week from Springfield, IL brought bittersweet news to all Illinoisans/Chicagoans. Basically, they “kicked the giant financial snowball down the hill” to provide our State and Chicago with what was called a “BIMP” or Stopgap Budget Implementation Bill. Basically, the Governor and State Democrats decided to fight this out during and after the coming November elections.


For the Illinois Work Comp matrix, nothing happened. Governor Rauner was willing to put off his “Turnaround Agenda” that includes his recommended IL WC reforms until sometime around the end of this calendar year when the BIMP or Stopgap Budget runs out. By that time, there will be a new General Assembly to fight over it. Please also note the State of Oregon WC Premium Rankings are expected at about the same time, so we should have a better idea if all the improved IL hearing officers are helping to cut IL WC costs.


For all Illinoisans, not much truly happened other than to watch everything in IL State and Chicago gov’t get financially worse and worse.


Our State and Chicago governments remain a financial shambles with


·        $8 billion and soaring in unpaid, late bills for all sorts of things purchased or used by our State—yes, this does resemble a “bankruptcy” but the State can’t declare bankruptcy;


·        Agencies and vendors that rely on State funding are going out of business in droves;


·        The State of Illinois now has $213 billion in skyrocketing debt;


·        The State of Illinois hasn’t had a balanced budget since 2001;


·        Illinois government is home to the worst credit rating in the nation;


·        Illinois fake government pension costs are already at 25% of all money spent on our state government and that ratio will continue to spiral due to 85% fake government pensions with 3% compounded annual increases guaranteed by our state Constitution;


·        Let’s not leave Chicago out—Last year, they levied the highest real estate tax increase in Chicago history or $588 million—the dramatically higher tax bills just hit the property owners’ mailboxes this weekend. Ouch!


·        They just passed a new Real Estate tax earmarked for police and firefighter fake pensions that won’t go into effect until 2020—folks, that is only three years from now and that looming tax increase is significant;


·        Chicago also is passing a “right-now” increased real estate tax to collect another $250 million for Chicago Teacher’s Union fake pensions;


·        Last week, the Chicago Teacher’s Fake Pension system was paid about $670 million, leaving only $83 million to run the Chicago schools this fall—no one knows where the rest of the money will come from—who cares about the kids, right? Let’s be sure retired teachers are taken care of???


·        One may assume if the Illinois Democrats, headed by Speaker Madigan continue their winning ways in Springfield, they are going to try to dramatically raise income taxes and maybe sales taxes and levy other new taxes on stuff they don’t already tax to force Illinois citizens and businesses to pay for all the financial mistakes the General Assembly made and can’t or won’t reform.


·        While our goal is to remain non-partisan, the financial crisis facing all Illinoisans is not so much political, as it is generated by soaring taxes, spiraling debt, simple math and common sense—we don’t care if the Democrats or the Republicans change the math; we are sure someone has to do so. If you want the math to which we refer, send a reply.


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Synopsis: Non-Accident “Repetitive Working” Ruling Confirms Neither Party to an IL WC Claim Needs to Bring an AMA Rating for PPD to be Awarded.


Editor’s comment: On June 28, 2016, the Illinois Appellate Court, Workers' Compensation Division, held Section 8.1b of the Illinois Workers' Compensation Act does not require a party to submit an AMA impairment report for the purpose of awarding permanent partial disability. In Corn Belt Energy Corp. v. IWCC, the employee parked his truck and physically turned in the truck seat and claimed he injured himself twisting as he exited his work truck on an incline.


It appears Claimant did not offer an AMA rating report into evidence, and neither did the employer. The Arbitrator found this questionable claim compensable and awarded three percent BAW. The award totaled roughly $10,688.25 in permanent partial disability (PPD) benefits, plus some medical benefits. In rendering his decision, the Arbitrator did not address whether an AMA rating report was required or if it was so required, whose obligation it was to obtain and introduce the report. Moreover, the Arbitrator failed to explain any of the five permanency factors set forth in section 8.1b(b).


Either way, Claimant asserted the action of turning in a truck seat was an “injury” or “accident.” While we are not sure, it appears the defense firm handling this claim stipulated those actions were an “injury,” and stipulated to that portion of the claim, choosing instead to fight and lose overa dispute as to causal connection. We completely disagree with anyone who asserts such actions comprise a compensable work injury or accident—Claimant described activities of daily life and there was no safety failure on the part of the employer. There are several longstanding IL WC rulings that rule similar actions of daily life, like standing up from a chair or putting on a coat do not comprise work “accidents.”


The defense firm appeared to focus on an unusual assertion. They claimed, even if they agreed there was an “accident,” the Arbitrator and Commission couldn’t award permanency or PPD without an impairment rating from Claimant’s counsel. We consider that defense tactic to be questionable and it failed.


The defense firm, acting for the employer argued Section 8.1b of the Act imposes a requirement a claimant tender an AMA rating report. The employer maintained because Claimant did not present an AMA impairment rating report he failed to satisfy Section 8.1b's requirements and was not technically entitled to a PPD award. Section 8.1b of the IL WC Act was enacted as part of the 2011 Amendments to the Act, and became effective for all claims arising after September 1, 2011. According to the provision, entitled "determination of permanent partial disability," "[f]or accidental injuries that occur on or after September 1, 2011, permanent partial disability shall be established using the following criteria;"


(a) A physician licensed to practice medicine in all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing. …


(b) In determining the level of permanent partial disability, the Commission shall base its determination on the following factors: (i) the reported level of impairment pursuant to subsection (a); (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee's future earning capacity; and (v) evidence of disability corroborated by the treating medical records. No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order. Id.


Although the IL WC Appellate Court addressed one aspect of Section 8.1b in its November 2015 decision in Continental Tire of the Americas v. Illinois Workers' Compensation Comm'n, the Court limited its decision to the singular issue of whether a zero AMA rating report meant there could be no permanency as a matter of law. The Continental Tire court found the impairment rating report, even though providing for a zero disability rating, was just one of the five factors to be considered under section 8.1b(b). To give it the effect argued by the employer in Continental Tire, the Court noted, would violate Section 8.1b(b) by giving too much weight to a single factor. The Continental Tire court did not indicate who bore the responsibility for submitting a report, and stated only that an AMA impairment rating report was to be considered if offered; it did not say who had the burden of production.


On review, the IL WC Commission affirmed the Arbitrator's conclusions and the award of PPD, but added language specifically addressing the AMA rating report. According to the Commission, after a "complete reading" of section 8.1b, "a party is not required to provide an AMA rating report for the purpose of determining permanent disability.”. "Instead, we find that the Act simply requires that if an AMA rating report has been provided, then the Commission must consider it, along with all of the other criteria listed, when determining permanent disability" The Commission then addressed each of the remaining factors of section 8.1b(b), and concluded the Arbitrator's award was correct. One Commissioner dissented, finding that "[t]he lack of an AMA report regarding a level of impairment leaves the [t]rier of fact no evidence of level of impairment." He then found Claimant's condition warranted only a 1% BAW award. The Circuit Court confirmed the Commission's decision.


In a 4-1 decision, the IL WC Appellate Court held the express language of Section 8.1b(a) does not limit the Commission's ability to award PPD benefits where no AMA report is submitted. The majority found the Commission's interpretation of section 8.1b – the IL WC Act simply requires if an AMA rating report has been provided, then the Commission must consider it, along with all the other four factors listed in section 8.1b(b), when determining permanent disability – was reasonable.


The majority further found Section 8.1b did not make submission of a report mandatory. "[S]ubsection (a) of section 8.1b is addressed only to a "physician *** preparing a [PPD] impairment report." Rather, the majority opined, "[i]t sets forth what a physician should include in his or her report and establishes that the report must be "in writing." Subsection (a) does not contain any language which obligates either a claimant or an employer to submit a PPD impairment report. Additionally, it contains no language limiting the Commission's ability to award PPD benefits when no report is submitted.


The majority also found Subsection (b) of section 8.1b of the Act was addressed "only to the Commission." The Court said Subsection (b) "lists five factors upon which the Commission must base its determination of the level of PPD benefits to which a claimant is entitled … ." Id. The majority observed, "subsection (b) does not require any action to be taken by either a claimant or an employer. Also, similar to subsection (a), it contains no language limiting the Commission's ability to award PPD benefits in the absence of a PPD impairment report."


The majority continued, "[c]learly, the plain language of section 8.1b places no explicit requirement on either party. Nor does it make the submission of a PPD impairment report a prerequisite to an award of PPD benefits by the Commission. Rather, the section speaks in terms of what factors the Commission is required to consider when determining the appropriate level of PPD." The majority noted its construction of Section 8.1b(a) was consistent with Continental Tire, where the Court held "[t]he statute does not require the claimant to submit a written [PPD impairment] report. It only requires that the Commission, in determining the level of the claimant's permanent partial disability, consider a report that complies with subsection (a), regardless of which party submitted it. Id.


According to the majority, "a PPD impairment report may be submitted by either party." Further, "when one is admitted into evidence, it must be considered by the Commission, along with other identified factors, in determining the claimant's level of PPD." The majority noted, "[n]one of the factors set forth in section 8.1b is to be the sole determinant of the claimant's disability. Further, nothing in the plain language of the Act precludes a PPD award when no PPD impairment report is submitted by either party." As a result, the majority rejected the contention by the employer the AMA impairment report was mandatory.


Appellate Court Justice Hoffman wrote a detailed and solid dissent, asserting an AMA impairment report should be needed by our hearing officers to measure and then award PPD. With respect to this long-time jurist, we don’t see that happening under current law.


For reference, in Governor Rauner’s “Turnaround Agenda,” he is seeking to have the IL WC Act amended to only require the Arbitrator and/or Commission consider one and not all five factors as currently required by IL WC law. Those proposed amendments may again come up for debate after the November election.


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Synopsis: Retaliation can arise from many agents--and your company is likely to be responsible for all of the agents, so choose your battles—and your warriors—carefully. 


Editor’s comment: In Baptist v. Ford Motor Company, No. 15-2913 (June 27, 2016) N.D. Ill., E. Div.,  a prior dismissal was vacated and remanded when the US Seventh Circuit Court of Appeals decided the District Court erred in granting Defendant-employer's motion for summary judgment.

This action arose due to Plaintiff Baptist filing suit for an allegation of termination in retaliation for exercising his workers' compensation rights after Plaintiff failed to show up for work for consecutive days while at least one MD had him off work.


James Baptist was a former forklift operator at Ford Motor Company who sued Ford after he was fired in retaliating for exercising his workers’ compensation rights. After Ford’s motion for summary judgment was granted, Baptist appealed contending the District Court drew improper inferences and there was a genuine issue of material fact about Ford’s motivation for the discharge.


Baptist worked at Ford’s Chicago assembly plant operating a forklift starting February 2012 and in April 2012 he inadvertently drove a forklift into a pillar and injured his left wrist, visiting Ford’s medical department and submitting an injury report. The report triggered a workers’ compensation investigation conducted by Jessica Nawracaj who was employed by Bartech, a company which provided Ford with workers’ compensation benefits administration services. Nawracaj and Dr. Patricia Lewis emailed each other with doubts regarding the account of the injury and also forwarded the information to Ford’s labor relations department.


Ford paid for the initial visit to an ortho, Dr. Heller, who ordered an MRI which revealed a left wrist ligament tear. Ford denied coverage and the claim is noted as being litigated at the Illinois Workers’ Compensation Commission however it is not listed in a public record search of the IWCC website.


Baptist worked for two months until June 24 when he left work as the wrist allegedly worsened and Dr. Heller then diagnosed Baptist with a complete ligament tear and recommended surgery with a form submitted to Ford confirming Baptist could not perform the essential function of the job though he added Baptist was not totally disabled. Due to the lack of specificity, Ford sought additional information and Dr. Heller submitted a new form which indicated Baptist should be off work for 4-6 weeks after surgery but cleared return to work July 2 so long as he did not lift or grip over 5lbs with his left hand.


Dr. Lewis testified she reviewed the forms and based upon her knowledge of the job, did not believe the restriction affected any activity necessary to operate the forklift and removed the note from Baptist’s file, clearing him to return to work. Baptist refused and asked for another position and after several days, was suspended by Ford for one month.


Upon return from suspension, Baptist met with Quandra Speights, Ford’s labor rep and contends he was told he would be fired if he did not return to the forklift position and fired if he did not agree to state his injury did not happen at work, in which case he would be given an approved leave of absence. Speights denied the allegation. However, after Baptist indicated he could not return and did not August 24-26, he was terminated for having three consecutive absences without proper justification. Baptist sued in Illinois state court in November 2013 for retaliation under Section 4(h) of the IL WC Act. Ford moved for summary judgment from that suit which was granted with the District Court noting they followed the attendance policy in making their decision which was acceptable.


This order was vacated here in the Seventh Circuit with the Court noting there was conflicting evidence which gave rise to a true question in controversy and also noted the emails from Dr. Lewis gave rise to an inference she was hostile to his claim for WC benefits. The Court also noted a triable issue with regard to whether it was appropriate to give him the impracticable choice to retain his job in exchange for dropping the claim noting that similar issues of choice in past claims have been found appropriate and therefore this issue survived summary judgment. The Court also noted multiple issues of fact regarding the disparate testimony of Baptist. Dr. Lewis and Speights.


The Court found a jury could infer Defendant's company doctor harbored hostility to Plaintiff's request arising out of disputed injury to Plaintiff's wrist by clearing Plaintiff to work, even though Plaintiff claimed he could not operate a forklift with his injury, where the doctor doubted Plaintiff's injury based, in part, on prior injury claim to other wrist that Plaintiff made with a prior employer and further due to the allegations management attempted to coerce him into abandoning his workers' compensation claim in exchange for maintaining his job.                                           


The best policy in any interaction with employees in similar situations would be to not only have independent witnesses, but to also document to summarize the interactions in writing to avoid later allegations. It is also important to base decisions on firm evidence rather than anticipated information. If the employee will not allow access to past information, that gives rise to potential additional defenses. Finally—DON’T THREATEN OR COERCE. The job you save, may be your own.


Our regular general advice when dealing with any termination with an employee who has ongoing litigation against the company is to suspend any decision on final termination until all information is in—which at times means until the end of the WC claim via either hearing or settlement. This can be as simple as an extended leave and at times can be much more nuanced and difficult. This article was researched and written by Shawn R. Biery, JD, MSCC. For questions regarding handling issues of EPLI comingled with WC claims, you can contact Shawn at 312-756-3701 or sbiery@keefe-law.com.