9-24-2018; Trying to Make Sense of Nonsense--Incoming Gov Pritzker and What He Means to Our State + IL Work Comp; Minimizing Wage Loss and Line-of-Duty Claims for High-Income/Wage Workers in IL WC

Synopsis: Trying to Make Sense of Nonsense--Incoming IL Gov Pritzker and What He Means to Our State Gov’t + IL Work Comp.

Editor’s comment: I watched a recent debate with current IL Gov. Bruce Rauner and the leading gubernatorial candidate JB Pritzker with disgust and dismay. They didn’t truly address our State’s Gigantic 900lb. Pink Gorilla—IL Govt’ Pension system that continues to require more and more of our tax dollars. Unfundable and hilariously unfair IL Gov’t pensions are taking one of every four of your state tax dollars and that relative amount is going to continue to spiral until something is done about it. Right now, all they are doing is raising and raising taxes and looking for new taxes.

As you read this, Illinois has the highest combined income, real estate and sales tax load on Illinois citizens in relation to every other State in the country. What we get for that shocking and increasing tax load are over-staffed, over-compensated and “over-retired” state and local gov’t workers. These workers aggressively politically organize/unionize and vote, vote and vote some more for ever-higher salaries, benefits and unfundable gov’t pensions for themselves. No candidate is truly addressing the gov’t pension issue for fear of alienating and motivating this giant voting bloc. If you want my simple spin on why such gov’t pensions are truly unfundable, send a reply.

Further, no governor candidate is truly addressing this phenomenon other than to hear Gov. Rauner complain about “corruption,” whatever that might mean. Candidate Pritzker can be expected to raise our State income tax rate from the current 4.95% to 7-8%. Mr. Pritzker is not shy to advocate for a constitutional amendment for a “graduated” and regressive income tax to insure we continue to over-tax IL doctors, lawyers, accountants, stock brokers, computer experts and other hard-working professionals. I strongly suggest if candidate Pritzker isn’t happy with the state taxes he pays, he should immediately start donating millions or billions to the State to insure he pays whatever he feels his “fair share” should be. I again predict if we put in an even higher graduated income tax to vex and oppress our best and most talented folks, they are going to move out of this State quickly.

In short, we can be sure higher taxes and fewer jobs are going to impact the IL WC system over the next four years.

Illinois Statewide Minimum Wage Will Almost Double Shortly After Gov Election Goes To Pritzker

Candidate Pritzker is leading the election polls by double-digits and appears to be a lock to win. What are called “Republicans-Against-Winning” have their silly splinter candidate running in a fashion that can only insure he and his silly supporters block Gov Rauner’s efforts to keep his job. It is one of the oddest things about the Republican party in this nutty state. They are almost proud to empower IL State Democrats in a vain effort to maintain their supposed “purity” on one minor issue to which they are eternally devoted. Happy to explain this phenomenon further if you want it—send a reply.

In my seasoned and veteran view, as fast as JB Pritzker wins the election in about five-six weeks, we will see the $15 per hour minimum wage bill hit the IL House and Senate. This new law is going to change the IL WC system in several ways.

First, full-time workers at any level across our state will be making something like $600 a week making their TTD rate about $400 and PPD rate about $360. That is going to cost WC insurers and self-insured employers more money in WC benefits.

Next, this new higher wage is going to drive many companies to automate many jobs. We have already seen McDonald’s put in kiosks to have customers automatically order food and allow them to lay off some workers.

Further, my sister is an exec at a supply company that has minimum wage workers in this state customize and assemble supply orders for shipping to clients. She has advised they are already in the process of moving that work to other states—once moved, those jobs won’t be back. That is going to impact lots and lots of folks and will eventually impact the IL WC system.

Finally, please note any IL WC claim involving pending wage loss differential benefits will need to be re-reserved as the higher minimum wage is certain to lower wage loss outcomes. Please put current wage loss diff settlements on hold for about sixty days. If you want further information or advice on this, send me a reply.

Will the IL WC Commission Dramatically Change?

To me, the expected election of JB Pritzker signals the end of any true ideological or political limit on IL State Democrats. I am told by my sources the jobs of current IL Arbitrators and Commissioners are “safe” and there won’t be a giant turnover of hearing officers. I am sorry and with respect, I don’t believe or trust my sources. IL State Democrats are certain to want to cleanse the IL WC Commission from top to bottom. They may not do so immediately but I have never seen IL State Democrats not “take advantage of their advantage.” They are going to want to reward their supporters and politically connected folks to bask in the money, prestige and loyalty that comes from getting easy and overstaffed State jobs.

Please note the impact of such folks taking IWCC jobs isn’t going to immediately impact us—it takes a couple of years for new hearing officers to have a demonstrable impact. I also feel the inbound Democrat appointees won’t be wacky zealots. But I am sure they are going to want to quietly take care of their cronies and buddies across our State and IL WC benefits are certain to rise. I also feel compensability may take a hit as Democrat theories start to flow in to decisions and settlements.

We are just going to have to wait and see how this plays out. Please send your thoughts and comments or post them on our award-winning blog.

Synopsis: Minimizing Wage Loss Diff and Line-of-Duty Claims for High-Income/Wage Workers in IL Work Comp.

Editor’s comment: I have told you before and I will tell you again. The best way to avoid/minimize wage loss diff claims in the construction and trucking industries along with line-of-duty disability claims for police/firefighters is to move them into 911 Dispatch jobs when and where possible. In IL WC such workers may be entitled to six and seven-figure benefits due to the way our nutty system is set up. In my view, when you see a high wage worker undergo serious shoulder or spinal surgery, start the training for 911 work sooner rather than later.

USA Today reports in today’s edition there are almost 100,000 emergency 911 dispatch jobs in this country and every one of those jobs pays very, very well. There is significant turnover due to the jobs being 24/7/365 work, so there are always openings.

In the greater Chicago area, we have seen starting pay go as high as $80K+ a year with full benefits. These jobs are fully sedentary and therefore perfect for all the trades mentioned above. Please note most police and firefighters are already trained in most of the things an emergency dispatcher has to do and the transition so be smooth.

I don’t understand why it isn’t a violation of the Americans with Disabilities Act to put an injured police officer or firefighter that has job restrictions on a line-of-duty disability pension without first training them to do 911 emergency dispatch. As I have said repeatedly, “there oughta be a law.”

Please see this graphic from USA Today:

If you are interested in moving your injured workers into 911 emergency dispatch work and need more advise, please send a reply.

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

Synopsis: CALLING ALL CHARITABLE GOLFERS !!!    Sept 29th is your chance to help make a difference in the lives of children with brain cancer.

Editor’s comment:  As many of our clients and fans of the KCBA update are already aware, we work hard to support charities which touch our lives.  Please consider playing in the 3rd Annual Kiss of Hope Open. The Open will be held on September 29th with a 12 noon shotgun at Randall Oaks Golf Course in West Dundee. The day will include many on-course contests, raffle prizes, silent auction AND a helicopter ball drop! KCBA is sponsoring a refreshment cart as well-so come have a refreshment with the Bierys!  Gather your group and click on the link http://ckmc.org/golf2018/ to register to play and make a difference.  

Cancer Kiss My Cooley® is a 501c(3) charitable foundation that was created in memory of a very special boy, Carter Kettner. Carter was the 6 year old son of Joe and Cinnamon Kettner. At age 5, he was diagnosed with an inoperable malignant brainstem glioma on February 17th, 2009. He loved singing, watching movies, and riding his John Deere tractor. His thoughtfulness and appreciation towards others was unfounded. He was a perfect gentleman, and met every girl with a kiss on the lips. His illness didn’t make him the boy he was; cancer was just something that happened to him. He continued to live every day, trusting his mommy and daddy. He loved his crazy little brother Bowen, and he laughed though his antics, calling him a beast and a freak. He loved his hospitals, doctors and nurses, and did everything that was ever asked of him. Carter was perfection in a son. He was indeed, the meaning of HOPE.  Carter passed away 15 months into his journey (on Shawn Biery’s birthday) and after living through this terrible journey and receiving an outpouring of support, the Kettner’s decided that other families living with cancer should share in similar blessings. So, in December 2010, Carter’s parents came together with an extraordinary group of individuals who were always dubbed “Carter’s Crew”. They incorporated together to form cancer kiss my cooley. CKMC® was named after a phrase that Carter used to say when receiving treatment. We called his backside his “cooley”, which is Italian slang for “rear end”. He would sing “cancer kiss my cooley!” pointing to his backside. Since Carter’s passing and this new idea, the phrase has taken on new meaning. We want to show families that they can also tell cancer to “kiss it”! Live your lives with cancer; fight, yes – but live; make memories, and keep HOPE. So indeed, the Kettner journey did not end; it will continue on.

So please consider taking some time to spend September 29th making a difference at Randall Oaks Golf Course in West Dundee. Click on the link http://ckmc.org/golf2018/  to register to play or contact Shawn Biery at sbiery@keefe-law.com for more details.

9-17-2019; Thoughts from Two WC Experts on the Crisis that is IL SB 904; Save the Date for 9-29-2108 Charity Golf to Fight Cancer and more

Synopsis: Thoughts from Two Experts on the Coming Crisis that is IL WC SB 904.

Editor’s comment: Below you will see more thoughts from Dr. David Fletcher who is a strong proponent of the new legal model of IL SB 904 that may divide resolution of workers’ comp claims in this State between our IWCC and the Circuit Courts in the 102 Counties across this State. You may note Dr. Fletcher is concerned about timely collection of WC medical bills, the addition of statutory interest to such billing and the IL WC Medical Fee Schedule. I would comment on my view that IL SB 904 doesn’t directly address adjudication of the accurate medical fee schedule amounts due and owing to a treating doctor or other healthcare giver.

For myself, my colleagues on both sides of the IL WC Bar, numerous insurance carriers and TPA’s, I want to challenge the members of Illinois Workers’ Compensation Commission, the IL WC Advisory Board, the IL WC Lawyers Association and all other interested persons and organizations to stop sitting on their hands about this proposed legislation. The Illinois State Medical Society and Dr. Fletcher repeatedly indicate they have the votes and will rapidly override the Governor’s amendatory veto in the November fall legislative veto sessions. When and if that happens, the IL WC system is going to be shaken to its core. In my view, the number one benefit in WC across the globe is medical care and the number one priority of any effective WC system should be proper and timely payment for medical care rendered.

I have been advised the folks at ISMS feel there is an obvious legislative anomaly in not allowing doctors, hospitals and other caregivers to have standing to collect medical bills on accepted claims. A similar issue applies to the legislation that provided these same businesses with the ability to charge reasonable interest rates on such billing. In general, I agree with their concerns and last week proposed we look to other states for better solutions than IL SB 904.

The main complaint of IL healthcare givers is patent—the IL WC system is dramatically flawed if they have no legal or administrative “standing” to rapidly collect medical billing and statutory interest. I strongly agree with them and assert we need legislation and a strategy to allow doctors, clinics, hospitals and other medical caregivers to rapidly and smoothly use the services of the IL WC Commission to resolve their billing issues and GET PAID.

The main issue with IL SB 904 isn’t the overall goal—it is the problem with creating parallel venues to adjudicate WC issues. In my view this concept isn’t going to work nearly as well as the proponents of this bill feel it is. This is going to create a crisis this troubled state doesn’t need with Circuit Court judges that know little about workers’ comp being asked to become experts on it. Everyone also feels every unpaid WC medical bill may lead to litigation, causing an explosion of lawsuits unlike any this industry has ever seen.

I am sure the legislative experts at the IL State Chamber of Commerce and Governor Rauner are correct—we need to move/correct/retain these medical/legal issues at the IWCC now and forever.

If you want more details on my overall concerns, send a reply. The next part of this is from Dr. Fletcher. I send him my appreciation and thanks for letting me share it with you.

Commentary on the Amendatory Veto for IL SB904 by David Fletcher, M.D., M.P.H.

The Illinois medical community is very disappointed that Governor Rauner issued an amendatory veto (AV) on SB904 that was ghostwritten by his cronies at the Illinois Chamber of Commerce, which continue to propagate  the myth that Illinois has the 2nd highest medical fee schedule in the country, when in fact the most common service (evaluation and management  codes better known as office visits) are reimbursed 85% below the national median and ranks Illinois as the 43rd lowest in the country. 

The point that Governor Rauner, the Illinois Chamber (which fails to advocate my business interests by despite being a dues-paying member), and others opposing SB 904 fail to acknowledge is  that the medical community needs an effective solution right now.  SB 904 is not about reform, it’s about enforcing current law. 

Illinois physicians who render services to patients covered under the provisions of the Illinois Workers’ Compensation Act, 820 ILCS 305, are to be compensated for their services pursuant to the provisions of 820 ILCS 305/8.2. As part of that compensation, physicians are entitled to receive statutory interest on their unpaid bills as set forth in 820 ILCS 305/8.2(d)(1-3) at 1% interest per month.

Serving for the past eight years on the Illinois Workers Compensation Research Institute (WCRI) Advisory Committee I have consistently pointed out to the last three IWCC Chairmen Weisz, Latz, and Fratianni), who also serve on this WCRI committee,  that this interest provision is a joke.

I can provide hundreds of examples that demonstrate that WC insurers have skirted the law regarding interest payments. For example, I had a recent case with Liberty Mutual (08WC012059, McCool v Conair Corp) that the arbitrator ruled on 1/22/18 in favor of the injured worker who got hurt in  December 2007. My bills went unpaid for a decade despite my efforts that got this patient back to  work. Currently, I have $3,420.38 in unpaid interest payments for services I rendered 10 years ago, yet I had to bear upfront all the overhead and labor costs of my practice to care for this injured worker. I have no avenue to recover and my complaint to the Illinois Department of Insurance went unresolved, who instructed me to work it out with Liberty Mutual.

Likewise, why no electronic claims 7 years after the 2011 WC reform law mandated it?  Other states have electronic claims for WC claims as it is done currently in Illinois with commercial health insurers for non-work-related claims

By rejecting SB 904, Governor Rauner also allows insurers to continue ignoring these mandatory electronic billing requirements enacted in 2011. These insurers are clinging to an all-paper based billing system that delays care and payments (and insurers make money on the float with delay in or non-payment of services). Because there has been no enforcement of existing law, I have to employ a full-time person to process paper bills and pay for postage to submit these paper bills. I would be able to eliminate overnight  $65,000 a year in operating costs if SB 904 becomes law with its original language overwhelmingly passed by super majorities in both houses in May 2018.

The Illinois Chamber  wants to keep the unpaid interest dispute in the hands of the Illinois Workers’ Compensation Commission (IWCC).

The esteemed editor of this blog Gene Keefe last week wrote a commentary regarding SB904 and advocates a system like in Indiana (and such a system exists in Wisconsin) that

gives doctors and hospitals a say and, most important, legal standing before their  Indiana work comp Board to fight for payment of unpaid medical bills whereby the claimant is left out of the process.

While I would welcome a similar medical fee adjudication system in Illinois since I currently have absolutely no avenue to collect on unpaid bills, the medical community cannot count on the IWCC to fix these pressing issues. As it operates now the IWCC is not prepared to take over enforcement of existing law. Sadly, the IWCC has cancelled 4 of its last 7 Medical Fee Advisory Board meetings, including the meeting scheduled for today (September 17, 2018)

It’s disappointing that MFAB meeting is cancelled once again, especially since the Commission is well aware of the problems facing medical providers that is trying to be addressed in SB 904.  If the Rauner administration was serious about setting up a whole new process at the Commission to handle medical billing disputes, don’t you think they would be setting up an emergency MFAB meeting to discuss with the Medical Community

State Sen. Michael Hastings, (D-Tinley Park) the chief sponsor of SB 904 was quoted as saying  in the Work Comp Central trade publication: “It’s garbage that the governor thinks it’s OK for doctors to not get paid….This bill would have protected Illinois physicians as job creators and would have ensured that injured workers are returned to work as soon as possible.”

It is the systematic failure of the Illinois workers compensation system that drives physicians away from taking care of injured workers, which creates access to care problems, that end up costing businesses more money.

The Governor fails to recognize that access to quality care that SB904 help address is the real cost savings for employers. Sadly, he ignored the recommendations of his own Republican leadership which urged him to sign the bill.

In closing the medical community is encouraged that our message that access to care is being threatened due to non-payment of services has been heard loud and clear by both sides of the aisle in Springfield. The first week of the fall veto session starts Tuesday, November 13 and we work our legislators to override the AV. We believe that SB904 will become law with the amendment intact that was proposed by Jay Hoffman, Democrat, who heads the House labor committee.

David J. Fletcher – MD, MPH


Medical Director, SafeWorks Illinois

Synopsis: CALLING ALL CHARITABLE GOLFERS !!!    Sept 29th is your chance to help make a difference in the lives of children with brain cancer.

Editor’s comment:  As many of our clients and fans of the KCBA update are already aware, we work hard to support charities which touch our lives.  Please consider playing in the 3rd Annual Kiss of Hope Open. The Open will be held on September 29th with a 12 noon shotgun at Randall Oaks Golf Course in West Dundee. The day will include many on-course contests, raffle prizes, silent auction AND a helicopter ball drop! KCBA is sponsoring a refreshment cart as well-so come have a refreshment with the Bierys!  Gather your group and click on the link http://ckmc.org/golf2018/ to register to play and make a difference.  

Cancer Kiss My Cooley® is a 501c(3) charitable foundation that was created in memory of a very special boy, Carter Kettner. Carter was the 6 year old son of Joe and Cinnamon Kettner. At age 5, he was diagnosed with an inoperable malignant brainstem glioma on February 17th, 2009. He loved singing, watching movies, and riding his John Deere tractor. His thoughtfulness and appreciation towards others was unfounded. He was a perfect gentleman, and met every girl with a kiss on the lips. His illness didn’t make him the boy he was; cancer was just something that happened to him. He continued to live every day, trusting his mommy and daddy. He loved his crazy little brother Bowen, and he laughed though his antics, calling him a beast and a freak. He loved his hospitals, doctors and nurses, and did everything that was ever asked of him. Carter was perfection in a son. He was indeed, the meaning of HOPE.  Carter passed away 15 months into his journey (on Shawn Biery’s birthday) and after living through this terrible journey and receiving an outpouring of support, the Kettner’s decided that other families living with cancer should share in similar blessings. So, in December 2010, Carter’s parents came together with an extraordinary group of individuals who were always dubbed “Carter’s Crew”. They incorporated together to form cancer kiss my cooley. CKMC® was named after a phrase that Carter used to say when receiving treatment. We called his backside his “cooley”, which is Italian slang for “rear end”. He would sing “cancer kiss my cooley!” pointing to his backside. Since Carter’s passing and this new idea, the phrase has taken on new meaning. We want to show families that they can also tell cancer to “kiss it”! Live your lives with cancer; fight, yes – but live; make memories, and keep HOPE. So indeed, the Kettner journey did not end; it will continue on.

So please consider taking some time to spend September 29th making a difference at Randall Oaks Golf Course in West Dundee. Click on the link http://ckmc.org/golf2018/  to register to play or contact Shawn Biery at sbiery@keefe-law.com for more details.

9-10-2018; Dysfunction Defined--IL SB 904 Will Create Havoc and More Litigation; Kevin Boyle, JD on Shocking New IN WC Ruling and more

Synopsis: Dysfunction Defined--IL SB 904 Will Create Workers’ Comp Legal Havoc and Lots More Litigation. How About An Alternative??? Thoughts, Comments and Opinions by Gene Keefe, J.D.

Editor’s comment: IL SB 904 is unusual and unprecedented IL WC legislation that may be coming at the IL WC community in about sixty-seventy days during the fall veto session of our legislature. Sponsored by ISMS, the dual goal appears to be getting doctors, hospitals and other caregivers the ability to sue in Circuit Court to collect both unpaid medical bills and statutory interest of 1% per month on unpaid bills. Governor Bruce Rauner provided an amendatory veto that would alter the basic model of having work comp claims decided in two venues and bring all WC claims back to the IWCC.

Please note I always want doctors and hospitals to be paid in a timely fashion and in the accurate amounts when properly coded medical bills are presented to a self-insured employer or insurance carrier. In this day and age, I am sure it is amazingly hard to believe how few doctors and other medical vendors can provide properly coded medical billing. I do feel most hospitals do a much better job of handling, coding and collecting medical bills.

Let’s look at Dysfunction Defined in IL WC.

Starting around 1909 after the Cherry Mine Disaster which left thousands of widows and children, the IL legislature, in its wisdom crafted the first workers’ comp bill in this State’s history. For the most part and with very few exceptions, all workers’ comp issues are adjudicated by a State agency specifically created and exclusively managed for the sole purpose of adjudicating workers’ comp benefits.

Please note if you analyze the tri-partite benefits under all workers’ compensation systems in the history of this planet, we are looking at medical costs and care as the number one WC benefit to injured workers. Lost time replacement benefits and permanency/impairment awards/settlements are usually the next two WC benefits in terms of costs and importance. IL SB 904 would therefore unquestionably split adjudication of the number one WC benefit into two separate venues—the Circuit Courts across the 102 counties of this State and the IL WC Commission which also holds hearings in numerous locations.

Please also remember the adjudication of workers’ comp benefits at the IWCC is tightly controlled at all levels—Petitioner attorneys cannot charge whatever they decide as hourly rates to handle WC claims. Their compensation is generally limited to 20% of whatever benefits might be in dispute.

Under IL SB 904, there are no limits on what attorneys might charge to represent their clients in the Circuit Courts. I am also certain there are court costs and other levies attendant to all Illinois litigation. As you read this, the IWCC does not charge any fees or other levies to reimburse the State for what is spends on hearing officers, court calls, computer tracking/storage and other related costs. Those costs are paid from levies on Illinois employers.

Similarly medical bills presented for care under the IL WC Act are tightly controlled—there is the ever-changing IL WC Medical Fee Schedule that greatly cuts what might otherwise be due or paid under the appropriate CRT medical billing codes. Lots of doctors and others complain about how low some of the WC medical reimbursements have become but the important thing to remember is a WC medical bill is not the same a what you might be charged by a plastic surgeon or other healthcare giver not constrained by IL WC law.

What Do You Mean Attorneys’ Fees Will Be Needed for Lots of Parties in WC Circuit Court Collection Claims?

I don’t believe ISMIS and the others lobbying for SB 904 looked at the whole enchilada, baby. In my humble view, when work comp-related medical bills go unpaid and the medical caregiver wants their dough plus statutory interest, there is going to have to be a judicial finding the claim is “workers’ comp.” Before a Circuit Court judge could make such a determination, they would have to have all relevant parties in front of them to be subject to the Court’s final ruling. The relevant parties would be the

• Party seeking collection—the doctor, hospital or other medical vendor;

• The injured worker;

• The employer for the injured worker and

• The WC insurance carrier or TPA (third party administrator).

Please note the determination a workers’ comp medical bill is due and owing would require the judge to make a binding determination—the matter has to truly be “workers’ compensation.” To make that decision, preliminary issues would include the Court having to make findings as to jurisdiction, employer-employee status, accident arising out of and in the course of employment and causal connection. It is also possible the judge would have to determine the bills are reasonable, necessary and related. The judge would also have to be presented accurately coded bills that comply with the IL WC Medical Fee Schedule.

Please note all of the above decisions might and could be made long before Claimant might later file an Application for Adjustment of Claim at the IWCC. That said, the Circuit Court’s determination would be res judicata or under what is also called “issue preclusion,” the Circuit Court judge’s ruling would be at least a preliminary ruling that would unquestionably impact all other issues in the IL WC claim.

The “binding determination” I mention above might not be simple at all. I think the drafters and supporters of IL WC SB 904 think everyone gets injured in front of five nuns and six rabbis and there are never any questions about compensability. To the contrary, many IL WC claims have obvious issues and concerns and run the gamut from reliable to fraud-laced.

Please also remember starting the IL WC process in Circuit Court opens up a can of litigation worms like discovery, motion practice, appeals and whatever. Our courts aren’t always rapid and smooth—that is why we have courts.

Either way, if SB 904 gets past the Governor’s amendatory veto, a sweeping new sort of litigation will hit our Circuit Courts. Lots of new litigation over WC-related medical bills could be brought shortly after the care is provided and this is going to bring lots of injured workers, their employers and insurance carriers into our Courts. In my view, if a worker is sued by their doctor for an unpaid medical bill, the worker is going to need an attorney at their own expense to avoid getting defaulted or their work injury claim denied without a hearing.

How Do We Fix This Mess? Please look to the IN WC System!!!

Our amazing law partner Kevin Boyle confirms IN WC gives doctors and hospitals a say and, most important, legal standing before their IN WC Board to fight for payment of unpaid medical bills. Claimant is left out of the process.

The important thing to me is the whole issue is resolved rapidly under their WC system and NOT in the Circuit Court.

This IWCB link has all the info, with links to the procedures, rules, too:

https://www.in.gov/wcb/2486.htm

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

Synopsis: Shocking New Indiana Court of Appeals case: No CGL Coverage Owed for Employee’s Electric Shock Injury. Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D.

Editor’s comment: The Indiana Court of Appeals just issued an interesting Memorandum Decision relevant to worker’s compensation claims in Smith v. Progressive Southeastern Insurance Co., Case No. 18A-PL-340, published 08/31/2018.

Smith worked for Skelton’s tree-trimming business for many years. Skelton provided all tools and work apparel for about $10/hr in cash. He periodically worked 30 hours/week with no overtime, no income taxes were withheld, and no 1099 was ever completed.

Smith cut down a tree by himself that struck an electric wire on a nearby utility pole, knocking the wire to the ground. Smith called Skelton about it, and Skelton drove to the scene with his bucket truck and 65-foot boom. Both men got into the bucket of the truck to fix the situation, Smith grabbed the wire, and ZAP: he sustained serious injuries and was in hospitals for a couple months.

Skelton’s CGL carrier filed a declaratory judgment to determine whether it owed coverage for Smith’s accident. The CGL policy excluded coverage for any worker’s compensation claims, injuries to employees arising out of and in the course of employment, with certain Auto and other  exclusions potentially relevant to the incident.

The trial court granted summary judgment for the carrier that no coverage was owed for Smith’s accident, and the Court of Appeals affirmed. The Court of Appeals held that Smith was employed by Skelton and that there was a causal nexus between his employment and his activities when injured. Smith wasn’t in the bucket or trying to fix the broken wire for person reasons. His injuries were born out of a risk incidental to the employment, and they occurred in the course of that employment. Broken wires tend to occur during this type of work and Skelton had previously broken wires before, too. The policy language that excluded coverage for employees and for obligations arising under the workers’ compensation law were both applicable here.

Also, the Auto coverage exclusion applied because the bucket truck qualified as an “auto” and the truck’s use was the cause of Smith’s injuries. Finally, the policy was not void as against public policy, too. It did not provide illusory coverage.

If you’d like a copy of the opinion, please email me: kboyle@keefe-law.com. Please be aware that technically, pursuant to Indiana Appellate Rule 65(D), this Memorandum Decision should not yet be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.