8-28-2017; Tiny IL WC Insurance Carrier Law Vetoed by Gov Rauner--Whew!; Important PTSD Ruling with Analysis by Tim O'Gorman JD; OSHA Update and more

Synopsis: Creation of Tiny IL State WC Insurance Company Vetoed by Gov. Rauner—Opposition Promises Fight to Override For Reasons Known Only to Them.


Editor’s comment: Gov. Rauner was busy last week taking action on several pieces of legislation—he has to veto the ones he dislikes to avoid them automatically becoming Illinois law.


The bill of most interest to the IL WC community was HB2622. HB2622 (sponsored by Fine/Biss) was vetoed by Gov. Rauner in its entirety. This weird proposed IL WC “reform” measure would use IL employer and insurer fees set up to fund the IL WC Commission to capitalize the creation of a state established, mutual insurance company to compete with the over 300 insurers that already provide workers' compensation coverage in this State. As I have advised my readers in the past, this whole concept started with ITLA or the IL Trial Lawyers Ass’n claiming the problem with IL WC isn’t high benefits, the problem is profit-scrounging insurance carriers. Someone at ITLA started the odd story to claim the internationally focused, multi-zillion dollar insurance companies somehow hoard more profits in IL than they do in other states—the factual basis for this unusual claim comes from a Ouija Board, Crystal Ball or Witch’s Cauldron. Obviously, the ITLA team and the legislators that report to them feel this completely unfounded public relations concept sells to the media and innocent public.  


I truly don’t understand how the funding would work. The $10 million of startup insurance carrier money would be a one-time check taken from the levy on self-insured employers and insurers that currently goes to operate our IL Workers' Compensation Commission. The legislation provides that the funds are a "loan" to be paid back with interest. Even as a loan, I am unsure how one-third of the IWCC funding could be immediately severed out for this odd purpose and not cause complete havoc with their payroll and operations. They have about 150 employees and, in my view, would have to lay off about 50 workers due to this House Bill. If you have some idea how they can do this and not disrupt operations, please let me know.


Lots of folks have commented about the abysmal track record of our State regarding any effort to operate in an appropriate manner, particularly involving finances. You can also point to the IL State Workers’ Comp claims management program as one that can and should be improved with system-wide cost-cutting. I am unaware of any other agency of IL State Gov’t that operates a private and competitive business. I am sure they are not set up to do so with the hilarious level of overcompensation and impossible-to-fund benefits all IL State employees receive. In short, this tiny “low-profit” IL WC insurance carrier, if it ever actually was funded and the work started, would almost certainly fail in weeks or months. In my view, the goals of this legislation will never and can never be met.


The IL State Chamber, myself and others feel it is difficult to believe the loan would be ever be paid. One has to also wonder if the legislature would keep funneling more money to this stupid and unsupportable venture. The IL State Chamber and I also feel removing money meant to support the Commission jeopardizes the entire adjudication of workers' compensation for both injured workers and IL employers. I join with our State Chamber and strongly support Gov. Rauner's veto. I appreciate your thoughts and comments. Please post them on our award-winning blog.



Synopsis: IL WC PTSD Claim Fails Due to Treatment Delay, Analysis and Research by Timothy O’Gorman, J.D.

Editor’s comment: We salute the Arbitrator, Commission panel and the Appellate Court ruling. In RPRD Dykman, Inc. v. Illinois Workers’ Compensation Commission, Claimant was an over-the-road truck driver who witnessed a horrific accident en route to making a delivery. Claimant was driving truck northbound on I-57 when a fellow truck driver (according to the police report) instigated a crash which resulted in a fatality. Claimant continued to work and drive for six months subsequent to the incident however eventually sought treatment with a psychiatrist when he no longer felt able to continue driving due to PTSD or post-traumatic stress. In claims such as this, we always point out there is no reason a truck driver couldn’t transition to logistics or desk work, with his training and background as a trucker. There are literally thousands of such jobs in the Illinois labor market. Obviously, this Claimant simply wanted to go on the dole, like most PTSD claimants.


Claimant testified he felt “in shock,” “sick” and “horrified” from what he witnessed at the scene of the incident. Claimant did not treat with anyone until 6 months after the occurrence. Claimant also failed to return to work as a truck driver subsequent to his treatment and began performing a failed job search, alleging he could not return to work in his pre-injury employment capacity.


After evidence was taken, the Arbitrator found Claimant did not meet the burden of proof required to establish a compensable psychological injury under Pathfinder v. Industrial Comm’n, relying mainly on another similar ruling in General Motors Parts Division v. Industrial Comm’n, which interpreted Pathfinder as being “limited to the narrow group of cases in which an employee suffers a sudden, severe emotional shock which results in immediately apparent psychic injury…” (emphasis added). In Pathfinder, a supervisor was next to a worker whose hands were traumatically amputated—the supervisor suffered immediate psych issues, as one might imagine. We have no idea why someone would fight work-related psych care for that shocking event.


In this ruling, the Arbitrator essentially created 2 elements necessary for proving a compensable injury in its review and application of General Motors:


  1. A sudden, severe emotional shock
  2. Immediately apparent and lasting psychic injury


The Arbitrator found Claimant clearly may have suffered a sudden and severe emotional shock, however the six month delay in treatment failed to appropriately establish an “immediately apparent psychic injury,” as required by IL WC law.


A Petition for Review was timely filed along with a motion to cite authority asking the Commission to take judicial notice of the Appellate Court’s decision in Chicago Transit Authority v. Workers’ Compensation Comm’n, an opinion rendered subsequent to the Arbitrator’s decision however prior to the Commission’s decision.


The Appellate Court, WC Division in Chicago Transit Authority may have ended the absolute necessity that a “immediately apparent psychic injury” be proved. Claimant in Chicago Transit Authority was a bus driver who was involved in a fatal accident. He was able to easily establish a sudden, severe emotional shock, did not seek psychiatric treatment until two months after the alleged incident.


In this claim, the Appellate Court distinguished Chicago Transit Authority from General Motors on the basis of a gradual development of psychic injury in the latter, rather than a single identifiable incident. The Appellate Court in Chicago Transit Authority noted


Under Pathfinder, the emotional shock needs to be “sudden,” not the ensuing psychological injury. Thus, if the claimant shows that she suffered a sudden, severe emotional shock which caused a psychological injury, her claim may be compensable even if the resulting psychological injury did not manifest itself until sometime after the shock. To the extent that General Motors holds otherwise, we reject that aspect of the court's holding and decline to follow it.


The Commission then rendered a decision affirming and adopting the decision of the Arbitrator however provided no comment on the application of the decision in Chicago Transit Authority.


The case was appealed to the Circuit Court which found the Commission’s failure to address the apparent change in case law


1. Allowed for a de novo reviewing of the case and

2. Resulted in an incorrect application of case law to the facts.


The Circuit Court reversed the decision of the Commission and directed the Commission to award benefits. The Commission issued a decision awarding 5% of a person as a whole and 34-5/8 weeks of TTD, refusing to award Claimant wage differential benefits. Claimant and Respondent appealed whereupon the Circuit Court affirmed the decision of the Commission and ultimately resulted in an appeal to the Appellate Court, WC Division.


The Appellate Court answered the question of whether benefits are owed in this instance by stating correctly, “we don’t know.” The Appellate Court pointed to the one judicial body to make the controlling ruling: the Illinois Workers’ Compensation Commission. The Appellate Court found the Circuit Court, in remanding the matter back to the Commission with directions to award benefits improperly supplanted the function of the Commission in finding certain facts to be true. The Appellate Court agreed the Commission’s simple adoption of the Arbitration decision was an improper application of law in failing to address Chicago Transit Authority. However the Appellate Court felt the remand should not have included directions to award benefits. Instead, the Circuit Court should have remanded the issue back to the Commission with instructions to simply address the new case law and come to a conclusion itself.


The question of whether benefits should be awarded to a truck driver who claims to have suffered an unexpected and severe shock but then waits six months to treat for a psychic injury is still unclear. The defense team at KCBA will be watching intently to see if six months is “immediately apparent” enough to warrant an award of benefits.


This article was researched and written by Timothy O’Gorman, JD. Tim is a top-notch defense expert and can be reached at togorman@keefe-law.com.



Synopsis: OSHA Update for WC Industry.

Editor’s comment: As expected under the new Administration, potential regulatory action from OSHA has been cut by more than half, according to the U.S. Department of Labor's updated agenda released July 20, 2017.

The report, typically published twice a year, lists the status of and projected dates for all OSHA regulations. The updated agenda lists 14 OSHA regulations in three different stages – pre-rule, proposed rule and final rule – compared with 30 on the fall 2016 agenda. Overall, 469 proposed federal regulations have been withdrawn and a combined 391 have been reclassified as “long-term” or “inactive” to allow for “further careful review.”

“This agenda represents the beginning of fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burden on the American people. By amending and eliminating regulations that are ineffective, duplicative and obsolete, the administration can promote economic growth and innovation, and protect individual liberty,” the agenda's preamble states.

President Donald Trump signed an Executive Order on Jan. 30 requiring federal agencies to cut two regulations for every new one that is proposed. The White House published a guidance memo three days later clarifying that the Executive Order would apply only to those regulations with a proposed cost of $100 million or more.

The Natural Resources Defense Council, fellow watchdog organization Public Citizen and the Communications Workers of America labor union filed a lawsuit on Feb. 8, claiming the order “directs federal agencies to engage in unlawful actions that will harm countless Americans.”

Only one OSHA regulation, Standards Improvement Project IV, is listed as being in the final rule stage, in part because the Occupational Exposure to Beryllium final rule was moved back to the proposed rule stage on June 27. Under the new administration, OSHA is seeking to remove specific provisions regarding worker exposure in construction and shipyard industries. The final rule on beryllium went into effect May 20. In the interim, OSHA stated it is not enforcing it in the two industries and is seeking comments on its new proposal until today.

President Trump also signed a Congressional Review Act resolution on April 4 to strike down the “Volks” rule, which was published in December 2016. That regulation allowed OSHA to issue citations for inadequate injury and illness recordkeeping for five-and-a-half years instead of the current six-month statute of limitations. In May, five members of Congress introduced the Accurate Workplace Injury and Illness Records Restoration Act, which would reinstitute the “Volks” rule, but that bill remains in committee.

Removed from the regulatory agenda:

·         Blood borne Pathogens

·         Combustible Dust

·         Preventing Backover Injuries and Fatalities

·         Revocation of Obsolete Permissible Exposure Limits (PELs)

·         1-Bromopropane (1-BP) Standard

·         Noise in Construction

·         Occupational Exposure to Styrene

·         Updating Requirements for the Selection, Fit Testing and Use of Hearing Protection Devices

Now listed under “long-term” actions:

·         Update to the Hazard Communication Standard

·         Amendments to the Cranes and Derricks in Construction Standard

·         Process Safety Management and Prevention of Major Chemical Accidents

·         Shipyard Fall Protection – Scaffolds, Ladders and Other Working Surfaces

·         Emergency Response and Preparedness

·         Infectious Disease

·         Tree Care Standard

·         Prevention of Workplace Violence in Health Care and Social Assistance

·         Occupational Injury and Illness Recording and Reporting Requirements – Musculoskeletal Disorders (MSD) Column

·         Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records

“In his first speech as President of the United States, Donald Trump pledged that every decision he made would be to benefit the nation's workers,” Christine Owens, executive director of the National Employment Law Project, said in a July 20 statement. “The administration's Spring Regulatory Agenda reflects yet again just how hollow the president's promise has been.”

Along with the rulemaking on beryllium, proposed rules carried over from fall 2016 or added to the agenda include:

·         Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection

·         Crane Operator Qualification in Construction

·         Cranes and Derricks in Construction: Exemption Expansions for Railroad Roadway Work

·         Technical Corrections to 16 OSHA Standards

·         Puerto Rico State Plan

·         Tracking of Workplace Injuries and Illnesses

·         Improve Tracking of Workplace Injuries and Illnesses

Five regulations remain in the pre-rule stage, a decrease from 16 this past fall: Communication Tower Safety, Mechanical Power Presses Update, Powered Industrial Trucks, Lock-Out/Tag-Out Update, and Blood Lead Level for Medical Removal.

Much of the agency's Walking-Working Surfaces and Personal Fall Protection Systems final rule, issued in November 2016 under the Obama administration, went into effect in January 2017, and three of its six remaining provisions are scheduled to be phased in by the end of this year.

Source: National Safety Council.

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