9-21-2015; Don't Follow the "Herd" in IL WC Voc Rehab; Lindsay Vanderford JD on Important New NLRB Ruling; Matt Gorski Analyzes WC Drug Formularies and much more

Synopsis: Please Don’t Follow the “Herd” Mentality In IL Work Comp and Voc Rehab.


Editor’s comment: The social psych concept of “herd” mentality has been studied for years. Herd mentality and herd behavior have been prevalent descriptors for human behavior since people began to form tribes, migrate in groups, and perform cooperative marketing and agricultural functions. Herd behavior in human societies has also been studied by Sigmund Freud and other noted scientists.


What the attorneys at KCB&A feel is happening in the area of voc rehab in our state is akin to herd mentality. We have seen several major WC Plaintiff-Petitioner lawyers who are pressing to make the choice of a certified voc rehab counselor for an injured worker to be solely their selection but at your sole expense. You may then have to pay endless TTD/maintenance while their voc counselor doesn’t find claimant a job. And if you accept their selection, aren’t you implicitly agreeing to pay them for the rest of this century? How do you stop the voc counselor opposing counsel selects, if the CRC does a rotten job? What rhymes with skyrocketing IL WC costs?


We consider this position from the other side to be unusual to say the least. We point out the IL WC Act and Rules have been in place for over 100 years and prior to this last three-five years, very few IWCC or Appellate Court decisions address this new and unprecedented concept. No one made these claims five-ten or twenty years ago but now this new concept is coming from lots of different Plaintiff firms. We can’t confirm but we are fairly sure ITLA may have discussed this at a WC conference and the firms that attended are now pushing to get the “herd” to move in their ideal direction.


The reason we feel “herd” mentality is used by the Plaintiff-Petitioner bar is they aren’t communicating with our attorneys or our clients to tell them their personal legal position or interpretation. They are telling everyone “this is the law in this state and you have to follow it.” It is almost as if they are threatening “workers’ comp jail” if you don’t concede their version of the law. They are repeating it over and over, as if repeating it will turn it into the law. Some gullible adjusters and risk managers may listen to this repeated diatribe in IL work comp claims prior to retaining defense counsel and believe they have to follow the demands/commands of the other side. We urge everyone of our respected legal opinion you are being led astray in being asked to follow the herd in this instance.


Please also note our strong ethical opinion this concept puts a defense lawyer in a very poor position—we are being asked or actually demanded to hire an expert for the other side with our client’s money. If the expert we ask our client to pay for turns a moderate claim into a seven-figure claim, we can see how clients across the country might not only fire us, they may file ethical beefs asking we be sanctioned to do so.


Shawn Biery, one of our top legal scholars, points out the Rules Governing Practice don’t mandate employers or their insurance carriers/TPA’s have to hire Petitioner’s choice of voc counselor. Shawn wants our readers to remember, besides the Act, there are Rules Governing Practice. Here is the applicable voc rehab rule:


Section 7110.10Vocational Rehabilitation


A.   The employer or his representative, in consultation with the injured employee and, if represented, with his or her representative, shall prepare a written assessment of the course of medical care, and, if appropriate, rehabilitation required to return the injured worker to employment when it can be reasonably determined that the injured worker will, as a result of the injury, be unable to resume the regular duties in which engaged at the time of injury, or when the period of total incapacity for work exceeds 120 continuous days, whichever first occurs.

B.   The assessment shall address the necessity for a plan or program, which may include medical and vocational evaluation, modified or limited duty, and/or retraining, as necessary.

C.   At least every 4 months thereafter, provided the injured employee was and has remained totally incapacitated for work, or until the matter is terminated by order or award of the Commission or by written agreement of the parties approved by the Commission, the employer or his or her representative in consultation with the employee, and if represented, with his or her representative shall:

a.    if the most recent previous assessment concluded that no plan or program was then necessary, prepare a written review of the continued appropriateness of that conclusion; or

b.    if a plan or program had been developed, prepare a written review of the continued appropriateness of that plan or program, and make in writing any necessary modifications.

D.   A copy of each written assessment, plan or program, review and modification shall be provided to the employee and/or his or her representative at the time of preparation, and an additional copy shall be retained in the file of the employer and, if insured, in the file of the insurance carrier, to be made available for review by the Commission on its request until the matter is terminated by order or award of the Commission or by written agreement of the parties approved by the Commission.

E.   The rehabilitation plan shall be prepared on a form furnished by the Commission.


The Rule above is clear--how about the legislation? Having looked carefully, the IL WC Act says literally nothing about who gets to choose the CRC. It does say the Commission gets to “decide disputes” about voc, consistent with the Rules above and the sections of our IL WC Act cited below. In our view, the idea the employer shall pay for something doesn’t mean the employer cannot select it or question it in any way and has to allow the other side sole discretion to make the  selection, as we are being bluntly told.


To the extent our opponents are claiming they get to “choose” this consulting voc service as if it were medical care doesn’t mean there is a voc rehab “fee schedule” or voc IME’s or voc UR or anything else to limit it other than the Commission “deciding disputes,” as we reference above. We are sure our legislature hasn’t addressed control of voc counseling in years. It appears the defense side of the industry may have to start pushing to reform this concept if our Commission and reviewing courts follow the “herd” and upset the legislative scheme that has been in place for over a century.


We are sure the legal standard we, as representatives of Illinois employers have to reach is to show there is appropriate, typically restricted work within a reasonably stable labor market around claimant’s home. We don’t have to “find him/her a job” which is the main flaw we feel our competition and some Plaintiff-oriented adjusters read into the Act and Rules. We assure our clients, you can’t find someone a job, if they don’t want one.


We researched the IL WC Act on this topic and it says:


Section 6d: Application Filing Periods


(d) Every employer shall notify each injured employee who has been granted compensation under the provisions of Section 8 of this Act of his rights to rehabilitation services and advise him of the locations of available public rehabilitation centers and any other such services of which the employer has knowledge.


Section 8a


The employer shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto.


Vocational Rehabilitation Counselors Need Certification


Any vocational rehabilitation counselors who provide service under this Act shall have appropriate certifications which designate the counselor as qualified to render opinions relating to vocational rehabilitation.  Vocational rehabilitation may include, but is not limited to, counseling for job searches, supervising a job search program, and vocational retraining including education at an accredited learning institution.  The employee or employer may petition to the Commission to decide disputes relating to vocational rehabilitation and the Commission shall resolve any such dispute, including payment of the vocational rehabilitation program by the employer.


Maintenance; TPD


The maintenance benefit shall not be less than the temporary total disability rate determined for the employee. In addition, maintenance shall include costs and expenses incidental to the vocational rehabilitation program.


We agree these sections require the provision of voc rehab in an appropriate IL WC claim. We don’t see anything that says Petitioner’s counsel gets to select it as Respondent’s sole expense. We agree if our defense clients select the voc counselor, we are going to pay for it. We hope claims adjusters and risk managers stay out of the “herd” on this concept and ask KCB&A lawyers for our best defense advice on your biggest claims.


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




Synopsis: If It Ain’t Broke, Redefine and Overbroaden It? The NLRB goes overboard in an attempt to protect temporary workers. Thoughts and Analysis by Lindsay R. Vanderford, JD.


Editor’s comment: On August 27, 2015, in a 3-2 decision involving Browning-Ferris Industries of California, the National Labor Relations Board refined its standard for determining joint-employer status. In the decision, the NLRB applied established principles to find that two or more entities are joint employers of a single workforce if 1) they are both employers within the meaning of the common law, and 2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board established it will—among other factors—consider whether an employer has exercised control over terms or conditions of employment directly through an intermediary, or whether it has reserved the authority to do so. Contract workers and other temporary employees will be able to more easily unionize following the landmark ruling.


The ruling from the National Labor Relations Board in Browning Ferris will ripple through the fast-food, construction, and other industries that rely heavily on contract workers and employees of franchisees. Previously, such companies were considered by law to be a step removed from many of their workers when certain labor disputes arose.

Companies increasingly have been turning to temporary contract workers, a business model that gives them more flexibility to add or shed workers as needed. The decision, which came in a 3(D)-2(R) vote on a single case before the board involving sanitation workers, is the latest to attempt to tackle the core question of who counts as an ‘employee’ in a modern economy that is increasingly reliant on shift work, contract workers, and other temporary employees. The board itself was starkly divided on the move, which revised its “joint employer” standard for determining when one company shares responsibility for employees hired by another.

The change alters a decades-old approach that previously said one business couldn’t be held liable for employment-related matters at another, unless they had direct control over the employees in question. That approach has meant companies could keep arm’s length contract workers supplied by staffing firms, and has allowed franchise arrangements to flourish. Under the revised standard, the NLRB will consider if a business exercises indirect control through an intermediary, or has reserved the right to do so. The Board noted it will consider this on a case-by-case basis.


“If this decision stands, the economic rationale for hiring a subcontractor vanishes,” said a senior legal counsel for the National Federation of Independent Business. “It will make it much harder for self-employed subcontractors to get jobs and of course it will drive up operating expenses for the companies that hire them.”

Browning Ferris discards the existing joint employer relationship that exists when two legally separate businesses are deemed jointly liable for employment-related claims. Under the ruling of Browning Ferris, the well-established legal standard is tossed aside in favor of one in which almost any economic or contractual relationship could be used to show joint employer status. The overwhelming effect will be increased cost of doing business across subcontracting, franchising, etc.


Normally, such a change in regulation would be subject to the administrative process wherein an administrative body is required to provide notice and allow affected parties to have an opportunity to comment on the proposed change. This process often results in a negotiated change favorable to both the administrative body and those it regulates. Instead it appears the NLRB is attempting to effectuate change through case law that refines the scope of the regulation and may be overcome only on appeal.


The Illinois Chamber of Commerce is working with supporters across the country against what it has termed a “misguided and unfair” regulation. It has reached out to members of its congressional delegation to engage with the NLRB to ensure that any proposed changes go through the regular administrative process rather than attempting this change through case law, as the NLRB appears to intend. Changing any definition or regulation through case law does not provide the public or impacted parties the opportunity to comment and provide input as to how changes will impact them as the administrative process would. You can contact the Illinois Chamber of Commerce at http://ilchamber.org/communications/contact-us/.


This article was researched and written by Lindsay R. Vanderford, JD. Lindsay can be reached 24/7/365 for questions at lvanderford@keefe-law.com.




Synopsis: Should Illinois WC Adopt a Drug Formulary? Thoughts and Analysis by Matthew G. Gorski, JD.


Editor’s comment: Drug formularies are a hot topic in WC as more and more states are considering adopting WC drug formularies. More specifically, Louisiana, Nebraska, South Carolina, and North Carolina have joined the WC drug formulary discussion party.


A drug formulary is a list of prescription drugs prescribed by physicians and other medical professionals identified to offer the greatest overall value. The drug formularies are created and maintained by a committee of physicians, nurse practitioners, and pharmacists.


At the moment, only four states have adopted WC drug formularies, and those are Texas, Oklahoma, Ohio, and Washington. Numerous other states have begun discussions with legislators to create WC drug formularies, but Illinois is not one of those states.


The biggest effect a drug formulary in Illinois WC would have is to control costs to the employer on the payment of prescription drugs. If there is a list of the most effective and cost efficient drugs that WC will only approve, it will eliminate WC having to pay for costly and ineffective medications. Also, this will also ensure injured workers will be receiving medications that will actually help them.


There are numerous situations in Illinois WC where doctors continue to prescribe narcotics and opioids, when they likely provide diminishing returns, or ever increasing complaints. As most medical experts will agree, long term narcotic and opioid use hurts an individual’s recovery from an injury—in addition to the addictive side effects of long term use. The injured individual becomes dependent on the narcotics and opioids for pain management, instead of, engaging in work conditioning or physical therapy.  A WC drug formulary will be an indirect effect to lower drug addiction and long term narcotic and opioid use by injured workers.


Overall, WC drug formularies will be beneficial to both employers and injured workers. It will create an efficient way to lower costs for employers, and will help injured workers recover from their work injuries faster. Illinois should join the WC drug formulary discussion, we would benefit from it.


This article was researched and written by Matthew G. Gorski, JD. Matt can be reached 24/7/365 for questions about WC at mgorski@keefe-law.com



Synopsis: KCB&A is Looking for a Great Michigan Defense Lawyer and Legal Secretaries for our Chicago office.


Editor’s comment: We are adding to our Michigan staff—if you are or know a candidate, have them reply to this Update!!


We have one and perhaps two openings for admin staff. If you have or know someone with litigation experience, send a reply with resume asap!