8-8-2016; Can This Be The Biggest Mistake in IL WC History?; NCCI Proposes Another Decrease for IL WC Advisory Rates; OSHA Contradiction and More

Synopsis: Can This Be the Biggest Mistake in the History of Illinois Work Comp?

Editor's comment: With all the respect we can offer to the members of the Appellate Court, WC Division, we have to say we consider their new and unprecedented legal theory to be a major WC mistake. What they are now doing is to develop is the philosophy that post-traumatic stress disorder or PTSD of any sort is now an “accidental injury” in this state. What just hit is their ruling in Moran v. IWCC where they ruled a firefighter lieutenant can receive potentially lifelong benefits for PTSD due to the passing of another firefighter under his command during a live fire. Claimant Moran was not inside the house when the fire overtook his subordinate, and Moran did not participate in the rescue or resuscitation efforts.

Why is that a major league problem for our state? Well, please tell us how to accurately and unquestionably confirm the presence of actual (and not faked) PTSD. You cannot give someone claiming PTSD a lie detector test. There is no effective medical care for PTSD with a start, middle and end. In our view, anyone claiming PTSD can live a normal life, eat, drink, sleep and whine, whine, whine about their situation. Once you stamp someone with the PTSD label, the feigned condition almost never gets better and if it does, it is entirely up to them. If you allow one person in this state to go on temporary total disability for PTSD for a day, you are laying the path for hundreds/thousands of other workers to follow that model to become totally and permanently “disabled” without the need for an actual injury to their person. We promise you every Claimant lawyer from Waukegan to Carbondale is going to teach their claimants and potential claimants how to add PTSD to their IL WC claims to maximize lost time and supposed permanency. We think this is a massive issue for Illinois jobs and government.

Do We Truly Want to Encourage and Reward Cowardice?

We have never seen a PTSD claim where there isn’t a factor of the person suffering from it being afraid of something. In every claim we have dealt with, the man or woman had something happen to them or around them and they are now afraid it will happen again. If the event that occurred was truly unexpected and shocking but only involves mental stress, you can empathize for a time but after a reasonable period of time, it is time to put on the big-boy and big-girl pants and get back into the mix.

You always have to remember, the problem with giving someone lifetime benefits when they are afraid of something that occurred at work is now they don’t ever want to work ever again. If you give lifetime benefits to one person for a non-injurious event, lots of other folks are going to want to sign up as cowards and whiners to get the same money. Please also remember when someone in Illinois making $100 a week in a part-time job is adjudicated totally and permanently disabled in this state, the minimum T&P weekly rate is $535.79 so they will jump to annual tax-free take-home pay of $27,861.08! They will also be entitled to RAF COLA bumps that will eventually double or triple that money. We vote we only give that out to people with actual injuries.

And we aren’t saying workers with PTSD don’t need any medical/psych care at all—let them get the care they need but don’t encourage cowardice, malingering and possibly scamming by paying them to remain off work indefinitely or for the rest of their lives.

Do We Truly Want to Also Encourage Freeloadin’? Will PTSD become the IL WC Equivalent of Another Fake IL Gov’t Pension?

Illinois and the City of Chicago are the epicenter of freeloading gov't workers. We know of no other place in the United States where there are more former government workers who enjoy the greatest government benefit of all--they don't have to work but they still get full salaries, giant annual raises and lifetime Cadillac-coverage group healthcare paid for by you and me. We feel our State and the second largest city in the country have more former gov't workers living on the dole than anywhere in the world.

How do they do it? What in tarnation happened? Well, our leaders in Springfield and reviewing courts figured out if you give create lots of paths to phony retirement plans, the former government workers become your best pals and will vote for you and work for you in elections. Because Illinois and Chicago don't have term limits, several politicians and jurists have stayed in office for decades to reap the benefits of using our tax dollars to line their pockets and the pockets of their government supporters. No one is talking about freeloadin’, all they can say is taxes have to go up and up more to pay for it.

The Biggest Freeloaders of All--Illinois Legislators

Don't believe us? Want a solid example? Well, the phoniest of phony retirement scams in this State is the Illinois General Assembly fake retirement plan. To take advantage of this kooky deal, you need to get elected to the IL House or Senate. You will get paid at least $68K a year for part-time work--they only work 50 days a calendar year. You don't actually have to show up. The scam starts when a married legislator contributes about 10% of that salary or $6,800 a year into the scam, oops, we mean phony retirement plan. They have to serve just two terms or four years to be "vested" in the scam. If you do the quick math, you will "contribute" $27,200 into the pot for your fake retirement plan in that four year period. Let's say the State matches that money during your two terms, putting a combined $54,400 away for your phony retirement needs. You can retire at 55 and collect 85% of your highest salary when you start taking the "retirement." Any school child will note if you remain at $68,000 a year as a legislator, your starting retirement is $57,800 in the first year of collecting this fake pension benefit--yes, in the very first year of retirement, you will collect more than double what you put into the plan and simultaneously use up the entire "matching" amount contributed by the State.

After about 11 months of collecting this fake pension benefit, you win!! After 200 days or the equivalent of one year of actual work, you are now a lifetime freeloader and taxpayers will owe you the $57,800 plus 3% annual not-actually-COLA benefit increases. If you don't know the math on 3% compounded annual raises, the indisputable math means a former legislator will enjoy increases that will double their retirement benefit in about 21 years and will eventually quadruple the starting amount well into middle six figures. All of that money and your taxpayer-paid Cadillac healthcare coverage comes from current tax dollars--remember, you blew through the fake pension contributions in the first year of participation!

What Does This Mean to IL Workers' Comp?

Well, our Appellate Court, WC Division just expanded the availability of similar lifetime fake benefits for Illinois police and firefighters (and probably lots of other workers). In Moran v. IWCC, a lieutenant on the Village of Homewood Fire Department was managing a live house/building fire. He was outside the property and making the best possible radio calls on where and what his team was doing in battling the blaze. Sadly, while doing so, two of his team members were hit by what is called a 'flashover' and they were seriously injured. Both of them were taken by other firefighters to emergency medical care and one survived while the other passed. Our best thoughts and wishes go out to the brave survivor and the family and friends of these heroes who gave their all to the community.

So what happened? Well, the fire lieutenant quarterbacking the fire claimed he suffers from post-traumatic stress disorder or PTSD. In our view, he is now scared to do the job. From our review of the record, we don't see what would be the basis for a work comp stress claim other than the fact he was on the site of the event and did everything he possibly could do to protect his team from afar. Claimant did not go into the live fire or see/experience what happened to the injured men or otherwise deal with anything other than what we all feel firefighters and their managers sometimes have to do—bravely fight fires at moderate to high risk to life and property.

So this became a workers' comp claim? Yep--remember, we are in the People's Republic of Illinois! Despite the lack of any immediate threat to his life or what we felt was a sudden, shocking or unexpected occurrence, Claimant maintained he was and remains disabled from all work. In fact, it appears he has already been off work for half-a-decade or more. The Arbitrator carefully considered these facts and denied the claim. The IL Work Comp Commission panel also denied the claim. The Circuit Court judge assigned confirmed their decision based on the fact above.

Last week, in a ruling that we can only describe as unprecedented, a unanimous Appellate Court, WC Division reversed the denial to award this firefighting manager potentially lifetime benefits with Rate Adjustment Fund increases. If you read their ruling, we truly feel the entire Homewood Fire Department and all the members of the other local fire departments that pitched in to help could sign up for the same benefits when they learned any other firefighter passed in the line of duty. Similarly, if one police officer at a stakeout or bank robbery were to be killed, we feel all the members of that city's police department and the neighboring departments could follow the path to lifetime retirement benefits as laid out by this ruling and the entire police department could start claiming PTSD due to the passing of their comrade-in-arms.

Please understand we do not mean to be insensitive to the dangers these public servants face each day. We salute our police and firefighters because we see them as brave tough men and women who put their lives on the line for us at a moment's notice. We are absolutely sure the Village of Homewood rightfully paid for the widow of the fallen firefighter as is appropriate when a catastrophic accident occurs. The taxpayers in Homewood have and should also pay for the medical bills and whatever the other injured firefighter needed. If you write to say we are insensitive to Claimant Moran, we will write you back to confirm you are insensitive to the taxpayers of Homewood and the entire State of Illinois!

As to this claim for PTSD for someone who admittedly wasn't touched, burned or injured in any way, we don't feel it is insensitive for the Commission to have denied this claim and for the firefighter to go back to his job or a different, less-challenging job. There is no shame to former Officer Moran to learn he can’t handle this demanding job—if he wasn’t cut out to do it, he should find other less-demanding work. But to pay him for his mistake in thinking he could handle that challenging firefighting work, there is no way you or I or anyone can tell if he is telling the truth or making it all up to get very expensive WC benefits from unsuspecting local taxpayers. The Commission weighed the evidence and ruled accordingly. In our view, the Appellate Court simply re-tried the case and weighed evidence themselves rather than abide by our view of the manifest weight standard.

We have no true idea how any Illinois municipality will ever defend such impossible-to-document PTSD claims. In our view, there is no true way to confirm or deny the presence of PTSD. You don't have to take a lie detector test to establish or document the condition. All this former firefighter has to do is keep occasionally going to a psychiatrist and claim he has issues and he can stay on the freeloadin' dole for the rest of his life.

Is this going to be expensive? The only thing all Illinois taxpayers can be sure of is skyrocketing taxes in the years to come due to similar fake government pensions created by the legislature and our radical reviewing courts. The City of Chicago has already hiked taxes $833M over the next four years with almost all of that money earmarked to their freeloadin' and completely unfunded pension programs. In the Village your editor lives in, the benefits for firefighters already surpass the annual payroll set aside for them. Try to imagine how expensive it will be to have all the firefighters or police officers in your local fire/police department walk off the job to start freeloadin' if and when one of their fellow officers in the department pass away for any reason on the job. Could firefighter/police benefit costs double/triple? It boggles the mind. It is also mind-boggling to think any time someone dies in a factory from a heart attack or in an office from a fall-down, everyone in and around the building might be able to claim PTSD.

Can This Ruling Be Appealed? Can Our IL State Chamber Change the Law to Stop PTSD Claims?

This ruling is another example of this very liberal Appellate panel randomly and sporadically changing IL WC law by flipping denials on the “manifest weight of the evidence” standard. When they reverse the IWCC on the facts, there is supposed to be literally no basis for the Commission’s ruling. This comes from the last two IL Supreme Court rulings on the topic in Sisbro and Twice Over Clean. We find it impossible to contemplate there was no basis for this current IWCC ruling and we feel numerous facts demand/support summary affirmance.

In our view, there was also strong support in the record for the decision of the Arbitrator, the three-member Commission panel and the Circuit Court judge to deny this claim. In our view, their combined denials should have been quickly and quietly affirmed by the Appellate panel with the message to former Officer Moran to get whatever psych care he needed on his own dime but get back to the job. If he truly couldn’t go back to the job, he should be advised to seek other government work without being rewarded with hefty WC benefits from taxpayers for his personal and non-work-related issues.

Legislatively “controlling” or reigning in what we feel will be a flood of new PTSD work comp claims is going to have to be considered by the gurus at the IL State Chamber, like the eminent Jay Dee Shattuck. He is among our readership and we strongly hope both he and State Chamber President Todd Maisch work to stem the PTSD tide that we are sure is coming.

If you need help defending these new PTSD claims that are certain to come at you and your claims, contact John Campbell at jcampbell@keefe-law.com or Shawn Biery at sbiery@keefe-law.com or any KCB&A defense lawyer for our top psych experts and defense strategies. Trust us, you will need all of it!


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Synopsis: NCCI Proposes Decrease for Workers Compensation Advisory Loss Costs and Rates in Illinois for 2017—Yawn!! It is Advisory???


Editor’s comment: On July 26, 2016, the National Council on Compensation Insurance delivered a workers compensation advisory rate and loss cost filing, and an assigned risk rate filing to the Illinois Department of Insurance. Based upon its review of the most recent available policy year data (2013 and 2014), NCCI has proposed an overall average workers compensation advisory voluntary loss cost level change of -13.4%, advisory voluntary rate level change of -12.9% and an assigned risk rate level change of -6.7% to become effective January 1, 2017.


Here are some of their key observations:


·         The financial data experience period evaluated as of December 31, 2015 shows significant improvement when compared with the data evaluated as of December 31, 2014, that showed no change was warranted.

·         Lost-time claim frequency decreased 6.5% in policy year 2014.

·         The average indemnity and medical cost per case for lost time claims decreased in policy year 2014.


Since the enactment of the 2011 Amendments to the IL WC Act in HB 1698, effective September 1, 2011, the cumulative voluntary loss cost level change is -30.1% and the cumulative voluntary rate level change is -28.7%. These cumulative changes include the proposed loss cost and rate level changes described above.


In our view, this is generally good news for the IL WC industry. However, it doesn’t mean a great deal. From our review of their data over the last decade or two, the NCCI has recommended enough “advisory rate reductions” to make WC premiums free in IL. We ask the rhetorical question--can advisory rates go negative where the insurance carriers owe money to their insureds???


We have always felt the NCCI IL WC advisory rate filing is mildly misleading. In our experience the advisory rates have almost always dropped, dropped and dropped some more. The problem with NCCI advisory WC rates is just that—they are ‘advisory’ and you can’t purchase IL WC insurance at those rates.


We assure our readers the NCCI statistical analysis is more significant. The metrics clearly point in the right direction for IL business and local governments. Overall, the latest WC experience in Illinois is a mixed bag with different components applying offsetting pressure on system costs. An increase in indemnity severity, higher benefit payments because of inflation and a slow-down in claim closures at early reports are putting upward pressure on costs.


At the same time, indemnity claim frequency declined slightly in 2012 and 2013 and medical severity increased at the same rate as inflation, helping to mitigate any cost increases. The two big questions for Illinois involve the lagging economy and pending legislation A standoff between Gov. Bruce Rauner, a Republican, and Democrats in the House and Senate prevented the Illinois General Assembly from passing anything other than a “stopgap” half-year state budget. The Governor and Democratic lawmakers are deadlocked over “turnaround” workers' compensation reforms.


In our view, the much preferred metric is the every-other-year analysis from the State of Oregon that will rank actual WC premiums in a state-by-state fashion. In their 2014 survey, IL WC rated 7th.


http://www.cbs.state.or.us/external/dir/wc_cost/files/report_summary.pdf Their next survey should be out in October 2016. We will report the minute we see it.


In the interim, we are hoping the brave and hard-working IL WC Arbitrators and Commissioners will continue to carefully limit costs and deny questionable IL WC claims to bring us into line with the surrounding states and thereby encourage jobs and development of new business in this state.


To contact the NCCI person on their report, call or email Terri Robinson via phone: 501-753-5180; fax: 561-893-5655 or email Terri_Robinson@ncci.com


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Synopsis: OSHA Postpones Enforcement of Anti-Retaliation Measures While They Try to Figure Out What The Heck They Are Doing.

Editor’s comment: The federal Occupational Safety and Health Administration is delaying enforcement of anti-retaliation measures contained in a new injury-reporting rule, following the filing of a recent lawsuit challenging their new provisions. Enforcement of the new provisions is now scheduled to begin Nov. 1 rather than Aug. 10 as previously scheduled, OSHA announced.

A day earlier, a group of Plaintiffs filed an emergency motion for a preliminary injunction seeking to delay implementation of the new provisions. The provisions would prohibit safety-incentive programs that could potentially discourage a worker from reporting an injury — for example, programs that give workers a bonus for remaining accident free for a particular period. Post-accident drug testing in some cases also would be prohibited by the new rule, while in contradiction to that rule, post-accident drug testing performed to comply with state or federal laws would not.

On July 8, 2016, a workers’ compensation insurer, several trade organizations and three employers filed a lawsuit against OSHA, saying the anti-retaliation measures would eliminate programs that have improved workplace safety. The lawsuit, filed in U.S. District Court for the Northern District of Texas, alleges that OSHA exceeded its statutory authority in enacting the rule and didn’t follow legally required procedures.

In a news release, OSHA said the enforcement delay is to “conduct additional outreach, and provide educational materials and guidance for employers.”

From the perspective of the defense team at KC&BA, if a U.S. employer is aware of a fatality or amputation or other serious injuries in their workplace, they have 24 hours to report the accident to OSHA’s hot line or the employer could be charged by OSHA with a crime and prosecuted. In short, OSHA demands/commands “same day” accident reporting from U.S. businesses.


At the same time, OSHA was fighting (sort of) to not have injured workers have to report claims to their employer on a same day basis, as OSHA assert that policy will somehow inhibit accident reporting.


Are we the only ones who see those two positions as inherently contradictory?


We can foresee a situation in which two workers are on the same job and both are injured. Worker A is killed and the Worker B injured but Worker B hides the death of the other worker and his/her own injury from the employer to avoid drug testing. When the employer finds out about late reporting, they fire Worker B for it.


Couldn’t OSHA bring criminal charges against the employer for not rapidly reporting the fatality and then also sue the employer for firing Worker B in retaliation for late reporting?


On a related issue, we recently reported where a federal court ruled in response to an OSHA lawsuit against a South Beloit, IL employer for “restitution” and the federal judge awarded the widow $350K on top of the state WC death benefit. OSHA’s litigation and this judge basically doubled the death benefit payable to the widow, asserting there were safety violations. In our view, that is what state WC death benefits are for. We are concerned OSHA appears intent upon creating a “super-WC” benefit structure in the federal courts at their whim on the claims they select.


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