8-30-11; A great thought for IL WC reform, round III

A reader sent us an article about a ruling from Minnesota that might be fodder for future IL WC reform.

In Minnesota, they have a presumption of retirement at age 67 in their WC Act. This presumption cuts off T&P benefits at the time a claimant would normally be able to retire.

The Minnesota Supreme Court in Frandsen vs. Ford Motor Co. reviewed the issue of whether Ford waived the retirement presumption in Minnesota's workers' compensation law simply by failing to expressly reserve the presumption in a settlement agreement. The presumption states that permanent total disability benefits shall cease at age 67 because the employee is presumed retired from the labor market.

Workers can rebut the presumption, court records state. It appears there was no dispute Mr. Frandsen was permanently and totally disabled.

A settlement agreement did not mention Ford potentially discontinuing benefits or the statutory retirement presumption and, in September 2010, Ford petitioned to discontinue paying the PTD benefits pursuant to the retirement presumption.

Ford argued in a hearing Mr. Frandsen could not rebut the retirement presumption because he had stated in a deposition that he planned to retire when he was 66. Mr. Frandsen objected and argued he was entitled to continue receiving the benefits.

In the 2011 Amendments to the Illinois Workers’ Compensation Act, our legislature, in its wisdom, cut wage loss differential benefits at age 67 or five years, whichever is later. We feel the same concept should apply to T&P benefits that currently result in boxcar numbers for settlements.

8-30-11; WC Cost-Controls for Illinois municipalities/governments/businesses based on the experience of the City of Springfield with added thoughts from KC&A

We recently reviewed a newspaper article in the Springfield State Journal-Register indicating the City of Springfield, IL has paid more than $16 million during the last three fiscal years in medical bills, cash settlements, attorney fees and paid time off to employees who submitted claims for on-the-job injuries. As the costs continue to mount, Springfield Budget Director Bill McCarty is calling for an overhaul of the city’s workers’ compensation claims handling protocols. During the next city council meeting alone, Springfield aldermen will vote on eight workers’ compensation settlements totaling more than $420,000.

In response, Budget Director McCarty wants to hire a comprehensive case manager and require new City employees undergo pre-employment physicals and fill out health history questionnaires. We encourage him to ask the pre-hire questions about prior workers’ comp injuries approved by the Seventh Circuit Federal Appellate Court in Carter v. Tennant Company—if you want the questions, send a reply. The ultimate goal, he said, is to reduce the city’s expenses and the amount of time employees are off work because of injuries. Doing so, he feels, could save millions of dollars each year.

McCarty has suggested a number of changes, including:

·         Hire a comprehensive nurse case management company. Similar to what Sangamon County does, McCarty has suggested hiring a company that would contact an injured employee as soon as a claim is filed and keep in contact until the case is resolved — even attending doctors’ appointments. The company has helped reduce workers’ compensation costs significantly — from $1.5 million in fiscal 2004-05 down to $350,000 in fiscal 2007-08, in addition to lowering the county’s premiums for workers’ comp insurance, he said.

·         Involve city directors in claims. McCarty said the city should become more aggressive in investigating claims. The administration wants to involve directors/supervisors who know their employees but currently aren’t asked for their input.

·         Optimize their Safety Leadership Council. One city department has an 11-member council, which includes upper management, that meets monthly to discuss safety and recommend changes in policy and procedures. Since its inception in June 2007, there has been a steady decline in the number of accidents, Sabin said. McCarty said he wants to see such a council created on the city’s corporate side to work with city employees to find ways to reduce workplace injuries.

·         Pre-employment screenings. McCarty said prospective employees should have to take a comprehensive physical as well as fill out a health history questionnaire so the city knows a worker’s physical condition when he or she begins employment. Employees could be disciplined or terminated if it’s discovered that they lied on the questionnaire, he said.

·         Publish employee claims online. The idea is still being debated, McCarty said, but he wants the names of employees who file for workers’ compensation and the amount they receive to be posted on the city’s website. The city wouldn’t include the injury type or any medical data, he said. The information is already available to the public, but putting it online may increase transparency and potentially discourage employees from filing false claims, he said.

KC&A agrees with many of the above concepts and adds the following for everyone’s consideration.

Ø  Get into a Workers’ Comp PPP. This new tool is going to dramatically change the face of Illinois WC. If you need help with it, send a reply and we can point you to the experts on it.

Ø  Demand Accidents Be Reported Timely—many of our clients now discipline for late accident reporting.

Ø  Aggressively Investigate All Accidents. We have an accident investigation form available for use by anyone who needs it—if you want it, send a reply.

Ø  Use Webcam Questions for interviewing injured workers and witnesses on DVD with a webcam to lock in their stories—if you want it, send a reply.

Ø  Always Pull Surveillance Videos in the area of an accidental event. In work areas where you have high accident incidence rates, set up surveillance cameras.

Ø  Target Return to Work to light and full duty.

Ø  Provide Reasonable Accommodation at all times to facilitate return to work at the earliest but safest interval.

Ø  Target Maximum Medical Improvement or MMI.

Ø  Convey The Targets to the injured worker, the supervisor and your claims handlers.

Ø  Make the Targets a Reality by Staying in Close Touch with the worker on at least a weekly basis whenever they are off work. The goal of staying in touch is to keep the worker on track along with insuring their medical bills and TTD are being paid.

Ø  Consider Making Pro Se Settlement Offers on “hard-tissue claims” to minimize litigation.

Ø  Hire better defense counsel who can provide assistance at every step of the process—KC&A provides 24/7/365 assistance to Illinois government organizations and businesses who want to attack WC costs in every direction.

8-30-11; Is the “Manifest Weight of the Evidence” an actual WC rule or is it only a guideline? Will County Deputy Sheriff awarded IL WC benefits despite his misconduct, potential...

In our view, the Illinois Appellate Court, Workers’ Compensation Division issued a ruling that appears to contradict the last ruling from the Illinois Supreme Court on the “manifest weight of the evidence” rule. In Sisbro and Twice Over Clean, our Supreme Court issued a clarion call to the reviewing courts below on factual issues. They basically said whatever the Workers’ Compensation Commission finds with regard to the facts is the final ruling—don’t supplant factual determinations with your own views on appeal. In reaching this conclusion, the Supreme Court reversed two denials by the Appellate Court and provided benefits to injured workers.

Now, for the second time since the above-named rulings of the Supreme Court, the Appellate Court, Workers’ Compensation Division has reversed denials by the Commission on the facts. In our view, the members of the Court’s majority have supplanted their view of the facts over the ruling by the Commission below. We again feel the entire IL WC business community continues to ask the rhetorical question of whether the “manifest weight of the evidence” rule actually applies only in situations to insure benefits are uniformly awarded. We have never seen the Appellate Court rule to reverse a claim on the “manifest weight” to deny benefits. We are also pretty confident the taxpayers of Will County aren’t thrilled to see a sworn peace officer awarded substantial WC benefits in a situation in which he was acting in derogation of duty and could have threatened the safety of other officers and the public.

In Johnson v. IWCC, (No. 2-10-0418, issued August 15, 2011), a 3-member majority of the Workers’ Compensation Division of the Illinois Appellate Court found injuries sustained by a Will County deputy sheriff compensable under the IL WC Act despite his having been in violation of clear rules of employment. Will County deputy sheriffs are prohibited by their Code of Conduct from leaving their designated patrol area or Will County without first securing a supervisor’s permission. There are numerous reasons for this rule, the most important of which is protection of fellow officers along with John and Jane Q. Public which is the sworn duty of all deputy sheriffs.

However, on July 20, 2007, the record on appeal indicates Petitioner left his patrol area and the geographic boundaries of Will County to attend to the personal errand of collecting his mail. Despite having a working radio in his vehicle, he did not obtain prior permission from a supervisor or otherwise notify anyone else of his frolic and detour from work. While collecting his personal mail in a remote location outside the county, Petitioner was contacted and dispatched to assist another deputy sheriff. Petitioner alone was dispatched with the understanding of the dispatcher that, if had he been in his assigned and expected patrol area, claimant Johnson would have been the closest deputy to the scene.

Petitioner did not inform the sheriff’s dispatchers he was outside of his patrol area or outside the County of Will. Over the call, Petitioner appears to have knowingly advised the deputy sheriff seeking assistance he would arrive in 3 to 5 minutes. In reality Petitioner was 10 to 15 miles from the scene, giving obviously incorrect positioning to a fellow officer, possibly endangering them. Petitioner testified at arbitration he did not provide dispatch or his co-worker his true location. The dispatcher testified had she known Petitioner was not in his assigned patrol area and was outside Will County she would have assigned the call to another officer.

While still outside of Will County and en route to assist his co-worker Petitioner was involved in a motor vehicle accident (MVA) when he entered an intersection against the light without activating his emergency flashers. Except for his personal deviation Petitioner would not have been driving through the intersection where he was injured. Petitioner sustained injuries to his person. He was eventually returned to full duty.

The Will County Sheriff’s Office disciplined Petitioner for leaving the County without permission. A Chief Deputy testified by leaving his assigned patrol area without permission Petitioner adversely impacted policing and public safety in that area of Will County.

In light of Petitioner’s violation of the Code of Conduct, engagement in a personal deviation, and failure to advise dispatch and his fellow deputy of his true location, the assigned IWCC panel denied the claim. We salute them for making the call as they saw it.

In reversing the Commission’s ruling, the Appellate Court, Workers’ Compensation Division found Petitioner’s violation of his rules of employment did not take him outside “the sphere of his employment.” They found there was only one possible conclusion from the facts.

We note Presiding Justice McCulloch joined with another justice to dissent from the majority’s opinion and noted:

The Commission also finds that the accident arose out of Petitioner’s own misconduct, rather than his employment. Pursuant to Section 25 of Respondent’s code of conduct, Petitioner was prohibited from leaving his assigned patrol area without securing permission from his supervisor. Petitioner violated this work rule when he left his assigned patrol area without permission. If an officer is outside of his patrol area when he receives an assignment from dispatch, he is expected to inform dispatch of his location so dispatch can assign another officer to the call. However, when Officer Schmidt assigned Petitioner  to assist Deputy Kirsch, Petitioner failed to inform her of his actual location. Finally, when Deputy Kirsch contacted Petitioner to request his estimated time of arrival, Petitioner falsely told Deputy Kirsch that he would arrive on the scene within three to five minutes. In reality, Petitioner was fifteen minutes away. The Commission finds that Petitioner exceeded the speed limit when proceeding through the intersection of Route 59 and 75th Street against the light in an attempt to arrive at Deputy Kirsch’s location quickly enough to cover his own misconduct.

As the majority states, “an employee’s injury is compensable under the Act only if it arises out of and in the course of employment. 820 ILCS 305/2 (West 2006).” Will County and the Sheriff are correct. Claimant was engaged in a personal deviation that broke the causal connection between his employment and his injuries.

In our view, there are about fifteen facts which support the ruling of the Workers’ Compensation Commission. Therefore, with respect to the members of the Appellate Court, we consider it wholly incongruous for the majority to rule the “opposite conclusion is clearly apparent.”

The ruling is on the web at: http://www.state.il.us/court/Opinions/WorkersComp/2011/August/2100418WC.pdf. This article was researched and written by Matthew A. Wrigley, J.D.