7-7-2011; Vacationing in Cancun may not be the best idea if you are utilizing FMLA for the time off and company policy frowns on such siestas

In Pellegrino v. CWA (W.D. Pa. No. 10-0098, May 19, 2011), Plaintiff Pellegrino requested leave to undergo a medical procedure on Aug. 12, 2008. In response to the request, her employer, Communications Workers of America (CWA), sent her a letter informing her of her eligibility for Family and Medical Leave Act (FMLA) leave and that, under CWA’s sick leave policy, she would be required to substitute paid leave for the period of time she qualified for FMLA benefits. Important information she appears to have missed in the sick leave policy was a provision for filtering FMLA abuse, requiring any employee who was receiving wage replacement benefits (even while on FMLA leave) to remain in the immediate vicinity of his or her home during periods of the leave. Exceptions to this rule were only provided if the employee (1) needed medical treatment, (2) needed to attend to “ordinary and necessary activities directly related to personal or family needs,” or (3) received written permission from CWA.

Plaintiff Pellegrino underwent surgery on Oct. 2, 2008, and both her FMLA leave and sick leave time/pay commenced that same day. She then went to Cancun on October 16, 2008 without permission from her employer and was subsequently terminated for violating the paid sick leave provisions in CWA’s policy when the employer learned of the trip. Thereafter, plaintiff brought a civil action against CWA for interference with her FMLA rights, which required plaintiff to show that: (1) she was entitled to benefits under the FMLA, and (2) CWA illegitimately prevented her from obtaining those benefits.

The Court acknowledged she was entitled to FMLA benefits to undergo her medical procedure, the court addressed only whether CWA improperly prevented her from obtaining those benefits when it terminated her during the course of her leave. However the Court also noted CWA did not interfere with plaintiff’s FMLA leave since FMLA does not shield an employee from an employment action an employer would have taken irrespective of the employee’s status under the FMLA which included enforcing a restriction on unapproved travel that would have applied whether the employee had been out on FMLA leave or non-FMLA covered sick or disability leave. Because CWA’s decision to enforce its sick leave policy was a “legitimate exercise of its prerogative separate from plaintiff’s use of her FMLA leave,” the court in dismissed Pellegrino’s FMLA interference claim as a matter of law.

Pellegrino also made an argument that the employer’s sick leave policy didn’t apply to her because the Collective Bargaining Agreement governed, but that also failed since the CWA sick leave policy and the CBA terms did not conflict and the Court noted that because the CBA was silent on the issue of travel restrictions when employees took leave, this silence did not make the employer’s policy inapplicable to her.

Summer is here. It may be a good time to review your policies to ensure that your workforce is keeping the company productive or legitimately recuperating rather than simply recreating. This article was written by Shawn R. Biery, J. D. who can be reached at sbiery@keefe-law.com. Feel free to post comments on our blog at: http://keefe-law.com/kcablog.html

7-7-2011; Effective dates on the 2011 Amendments to the Illinois Workers’ Compensation Act for your calendar and ours

It may be important to put in an Outlook appointment into your system to keep track to the extent this will effect overall claims handling.

·         The Amendment to Section 1 require an employee to bear the burden of showing, by a preponderance of the evidence, they have sustained an accidental injury arising out of and In the course of employment.

·         The Amendment went into full effect last Tuesday, June 28, 2011.

·         The Amendments to Section 1.1 of the Illinois Workers’ Compensation Act implements Standards of Conduct for Commissioners and Arbitrators, who shall conduct hearings in a fair manner without bias or prejudice. Portions of the canons of the Code of Judicial Conduct have been adopted and are to apply to the Commission and Arbitrators. We also note that pre-trials are specifically addressed as a practice that is permitted as long as the pretrial is performed in accordance with the rules of the Commission.

·         This Amendment went into full effect last Tuesday, June 28, 2011.

·         The Amendment to Section 4(a)(2) of the Illinois Workers’ Compensation Act specifically defines Employee Leasing Companies under the Act and compels them to provide the Commission with proof any client company of the Employee Leasing Firm is listed as an additional named insured on their policy.

·         This Amendment went into full effect last Tuesday, June 28, 2011.

·         The Amendment to Section 4(d) of the Illinois Workers’ Compensation Act allows an investigator with the Illinois Workers' Compensation Commission Insurance Compliance Division to issue citations to employers that are not in compliance with their obligation to establish workers’ compensation insurance under the Act. Fines range from $500.00 to $2,500.00 for violations.

·         This Amendment went into full effect last Tuesday, June 28, 2011.

·         The Amendment creating Section 4b (not to be confused with section 4(b), which is a subsection of 4) of the Workers’ Compensation Act is an entirely new section. It creates a collective bargaining “pilot program” which applies only to businesses involved in “construction.”

·         This Amendment went into full effect last Tuesday, June 28, 2011.

·         The Amendment to Section 8(a) of the Illinois Workers’ Compensation Act clarified medical bill payment shall fall within the fee schedule even where the accounts receivable of the provider are sold to a third party (e.g., the Med-Finance-type groups). This went into full effect last Tuesday.

·         The Amendment creating Section 8(a)(4) of the Illinois Workers’ Compensation Act outlines when an employer has an approved “preferred provider program” pursuant to Section 8.1(a), the employer shall, in writing on a form promulgated by the Commission, inform the employee of the preferred provider program and then subsequent to the report of injury, the employee may choose in writing at any time to decline the preferred provider program in which case that would constitute one of the two choices of the medical providers to which the employee is entitled.

·         We have requested the “form promulgated by the Commission” mentioned in the Amendment above and will continue to ask on a weekly basis until they promulgate it. When that form is in existence, this Amendment will be in full effect.

·         The Amendment to Section 8(a) Temporary Partial Disability Computation alters the existing computation to hold employers liable for payment to Petitioner of two-thirds the difference between the average amount the employee would be able to earn in his regular employment and his/her gross earnings at the modified employment position. The Act in its existing form requires payment of temporary partial disability at two-thirds the difference between the average amount the employee would be able to earn in his/her regular employment and the net earnings at the modified employment position.

·         This Amendment went into effect last Tuesday, June 28, 2011.

·         The Amendment to Section 8(d)(1) of the Illinois Workers’ Compensation Act confirms any award for wage differential for accidents occurring after September 1, 2011 shall be effective only until the employee reaches the age of 67 or five years from the date the award becomes final, whichever is later.

·         This Amendment only affects “accidents occurring after September 1, 2011” and doesn’t affect existing claims. You do not have to re-reserve any current claims to reflect the coming change.

·         The Amendment to Section 8(e)(9) the Illinois Workers’ Compensation Act specifically delineates hand injuries involving carpal tunnel syndrome due to repetitive or cumulative trauma be returned to their pre-2005 scheduled amount of 190 weeks, and places a disability limit of 15% loss of use of the hand in such cases, unless clear and convincing evidence can show an award should exceed this amount. In such cases the award should not exceed 30% loss of use of the hand.

·         This Amendment goes into effect for CTS claims occurring on or after last Tuesday, June 28, 2011. You do not and should not re-reserve claims prior to that date.

·         The Amendment to Section 8.1(b) of the Illinois Workers’ Compensation Act delineates the determination of permanent partial disability. For all accidents occurring on or after September 1, 2011, permanent partial disability shall be established by a licensed physician reporting on the level of impairment in writing.

·         This Amendment only affects “accidents occurring after September 1, 2011” and doesn’t affect existing claims. You do not have to re-reserve any current claims to reflect the coming change.

·         Section 8.2 of the Illinois Workers’ Compensation Act contains medical fee schedule modification which is the major cost-saving mechanism in the 2011 Amendments. The changes are as follows:

o    Out of state providers shall be reimbursed at the lesser of that state’s fee schedule or the State of Illinois fee schedule. In the event there is no fee schedule in the outside jurisdiction, the lesser of the actual charge or the Illinois Fee Schedule shall apply. This applies as of last Tuesday, June 28, 2011.

o    The Commission is to maintain schedules for procedures and services including ambulatory surgical treatment centers, facilities and prescriptions filled and dispensed outside of a licensed pharmacy.

o    Beginning January 1, 2012 the fee schedule amount shall be grouped into geographic regions which are consolidated from the present geographic breakdown. These include 1) Cook County, 2) DuPage, Kane, Lake and Will County 3) Bond, Calhoun, Clinton, Jersey (and other downstate counties) 4) any counties not delineated in the Act specifically. In the event any fee schedule regions overlap, the Commission shall average the two fee schedule amounts.

o    If a fee schedule amount is in place, effective September 1, 2011, the charge shall be no more than 70% of the fee scheduled amount. If a fee schedule amount cannot be determined, the default reimbursement shall remain at 76% until September 1, 2011 at which time a 53.2% reimbursement rate shall apply.

o    Prescriptions filled outside a licensed pharmacy shall be reimbursed at a rate that does not exceed the Average Wholesale Price, plus $4.18 as a dispensing fee.

o    Implants shall be reimbursed at 25% above the manufacturer’s invoice price, less rebates.

o    Please note that the timeline for prompt payment has been reduced from 60 days to 30 days whereupon a provider provides a substantially all data required to pay the bill. This imparts an obligation on the insurance companies or self-insureds to promptly identify the basis for non-payment within a 30-day period rather than the prior 60 day window.

o    Of particular relevance, providers may no longer bill or attempt to recover from an employee the difference between the provider’s charge and the amounts paid by the employer for treatment determined by the Commission to be excessive or unnecessary. This is significant to the extent that any denied treatment which has been deemed excessive by the Commission will prohibit those providers from alternatively seeking payment directly from the claimant.

o    The effective dates of these changes are various.

·         The Amendments to Section 8.7(i) of the Illinois Workers’ Compensation Act creates a new section on implementation of UR for treatment after September 1, 2011.

·         This relates to care for any injury but doesn’t start until September 1, 2011.

·         The Amendment to Section 11 of the Illinois Workers’ Compensation Act provides an intoxication defense, however, this was greatly limited. The new section confirms no compensation shall be payable if an employee’s intoxication is the proximate cause of the employee’s accidental injury at the time of the accident, or if the employee was so intoxicated the intoxication constituted a departure from the employment.

·         This went into effect last Tuesday, June 28, 2011.

·         The Amendments to Sections 13 and 14 ended the terms of the Illinois Workers’ Compensation Advisory Board and all sitting Arbitrators.

·         To our knowledge a lot of the Advisory Board members and Arbitrators have reapplied and, as we indicated in the first article above, we are awaiting the decision of the Governor on all of them

·         The Amendment to Section 16 created an odd gift ban relating to lawyers and took effect on June 28, 2011.

·         Section 25.5 of the Illinois Workers’ Compensation Act addresses WC fraud and delineates unlawful Acts and penalties for various violations.

·         The Amendment went into effect on June 28, 2011.

7-7-2011; Hey Fitz, Elvis is still in the building; can you get a clean slate for Illinois?

If you aren’t sure, the United States Attorney for the Northern District of Illinois is the eminent Patrick Fitzgerald. Having already brought in the conviction of prior Governor George Ryan, Pat Fitzgerald was entrusted with the decision to bring a multi-count federal indictment against former Governor Rod Blagojevich and gets credit for bringing justice to our fair State in getting convictions on 17 federal counts along with a conviction on one count from the earlier trial. We are certain U.S. Attorney Fitzgerald is now in the “cat bird” seat in managing and dealing with the extraordinarily complex federal sentencing guidelines that may result in former Governor Blagojevich going to jail for the rest of his time on this planet or serving a shorter sentence that many veteran criminal observers state could be in the range of about ten years. Whatever he does, it is our strong hope Mr. Fitzgerald isn’t done with the man columnist John Kass at the Chicago Tribune called “Meathead.”

What is left to discuss with Rod Blagojevich? Well, if you aren’t sure, the main issues presented to not one but two jury panels were the shakedowns about Barack Obama’s soon-to-be-empty Senate seat and the unbelievable and shocking actions of Rod Blagojevich in relation to a children’s hospital, for gosh sakes. What was completely left out in the hearings was the clear fact numerous state jobs were openly for sale for the right amount of money during the Blagojevich administration.

The problem the U.S. Attorney had in trying to let folks know about how corrupt the Blagojevich administration was about doling out state jobs was convicted dealmaker Tony Rezko. Rezko's relationship with Illinois Governor Rod Blagojevich and his family were at the root of the federal corruption case which led to Rezko's conviction. There is no question Rezko donated $117,652 to Blagojevich's campaigns and was credited by the Prosecutors in his trial with having delivered bundled contributions totaling almost $1.44 million. Blagojevich's wife, Patty who does very little real estate work, made at least $38,000 acting as Rezko's real-estate agent on several of his company's property acquisitions. Rezko “recommended” many of his business associates and their relatives for positions within state government, three of whom were appointed to the state board that oversees hospital projects.

We were advised Rezko wasn’t called to testify because he sort of went goofy after being convicted. He wrote a letter to U.S. District Court Judge Zagel about what he claimed were efforts by the U.S. Attorney to force him to lie. That letter and Mr. Rezko’s unpredictability as a prosecution witness caused the job-selling to be left out of the list of federal indictments. If you aren’t sure, evidence during Rezko’s trial demonstrated there was at least one state job which was sold for $50,000 in cash. Well, now that Blago is convicted, we aren’t so much concerned about Rezko, U.S. Attorney Fitzgerald can go right to the source who had the jobs to give to Rezko—Rod Blagojevich. The “clout list” on jobs that might have been doled out by Blago for cash or favors remains on the web at: http://media1.suntimes.com/multimedia/show_case_doc.pdf_20080221_10_50_44_45.imageContent

Workers’ compensation observers may note there are not one but two WC candidates listed along with their political patrons. As our readers are keenly aware, numerous other jobs at what is now called the Workers’ Compensation Commission were filled during the Blagojevich administration. We have been advised by numerous sources “control” of the IWCC was given to members of the Madison County bar in exchange for their support of Blagojevich. John Q. Public doesn’t know if anyone paid to get the jobs or control of the Commission. It is our view the public has a right to know and the person who can tell us now has an enormous reason to come completely clean—Rod Blagojevich is facing 300 years in federal prison and we assume he may be ready to sing loud and clear on what he did.

Are Random and Inexperienced Job Candidates from the Governor’s Posse Actually Any Better than Pay-to-Play?

It is our further hope the current powers-that-be start to see what the heck is wrong with Illinois State government. Current Governor Patrick “Tea-bag” Quinn started his career as a purported reformer with the self-styled “Coalition for Political Honesty” and appears to have slipped into the malaise of Illinois politics. His first three choices for the Workers’ Compensation Commission include the current Chairman Mitch Weisz who is a veteran and reasonable administrator. The other two choices for Commission posts include two men whose first days as Commissioners brought them their initial taste of complex workers’ compensation claims—to our knowledge neither had ever tried or appealed a workers’ compensation claim in their lives prior to being appointed by our Governor. One of them didn’t even go to law school in this state.

We know who the political backers for the two most-recent Commissioners are—we assure our readers pay-to-play had nothing to do with their selection. However, we also find it strikingly distasteful to tell our readers the powers-that-be are still running state government where you have to be “sponsored” to get an important and well-paid position. We don’t think that bodes well for the 30-plus Arbitrator positions now being considered by the Governor. While we are confident Pat Quinn has not and will not “sell” them to the highest bidder, we hope he doesn’t give them out to friends or friends of friends who have no WC background or training. He would be much better off to simply keep the existing, honest and veteran Arbitrators who already know, for example, what temporary partial disability is and how it just changed.

In our view, the rights and interests of Illinois business and its injured workers is not a joke or something to be taken lightly. The Workers’ Compensation in this state doles out about $2.5 billion in benefits each year. While we are certain Governor Quinn isn’t randomly raffling off jobs in the fashion of the last two, it isn’t much of an improvement for the current Governor to be doling out important jobs as workers’ compensation hearing officers to his “posse” regardless of their background, knowledge and training in this system. Last week, Arbitrators were supposed to be civil servants with needed protection when they handled difficult claims. Due primarily to the Menard C.C. “scandal,” the arbitrator jobs are now basically political plums to be provided to neophytes in exchange for quiet fealty to the party in power. To us, that isn’t much of an improvement over the tainted personnel methods employed by George Ryan or Rod Blagojevich.

In our view, some day, somehow this State is going to start to select candidates for important jobs after doing an open and honest national or statewide search. We can imagine a state where the best candidates are always selected regardless of their politics and loyalties. Someday, the goals of Michael Shakman in getting partisan politics out of middle and lower level state jobs is going to take hold. Until then, we are going to keep writing about all of it. In summary, it is our strongest hope U.S. Attorney Patrick Fitzgerald holds Rod Blagojevich’s feet to the fire and finds out what happened about buying and selling state jobs and more important, lets the public, the members of the state bar and the media know what truly happened. If Mr. Fitzgerald goes the extra mile on this, it may demonstrate to future Governors-to-be what they have to do to actually fulfill their jobs and then “retire” in a setting where there are no prison bars anywhere in sight.