12-22-11; Important ADA ruling of note—truck driver who could drive long-haul but not city work not entitled to accommodation under federal law

This ruling cuts in lots of directions but is clearly one all of our readers should be aware of.

In Powers v. USF Holland, Inc., No. 10-2363 (December 15, 2011), the Seventh Circuit Court of Appeals ruled the Federal District Court did not err in granting Defendant-employer's motion for summary judgment in Plaintiff's action alleging Defendant USF Holland violated ADA by enforcing its “100% healed policy” when refusing Plaintiff's request

·         To return to work with certain medical restrictions and

·         By failing to provide him with reasonable accommodation of allowing him to return to work as long-haul truck driver that did not require Plaintiff to perform certain loading dock duties.

The ruling indicates Plaintiff was a long-haul driver who asked for short-haul or city driving to adjust for social and family needs. He then claimed he became disabled doing the short-haul/city work and wanted lots of accommodations, as he couldn’t switch back to long-haul due to the provisions in the collective bargaining agreement.

The Seventh Circuit ruled Plaintiff failed to show he was qualified under ADA as individual who was substantially limited in major life activity of working, where record showed Plaintiff was capable of performing long-haul truck driving work. The Federal Appellate Court also noted the record showed at most that he was unable to return to a city-driver position that he held at time of his medical leave of absence.

Probably most important, the Seventh Circuit further held Defendant's “100% healed policy” did not subject defendant to per se liability under the Americans with Disabilities Act where the record below showed Defendant considered Plaintiff's alleged impairment as affecting only Plaintiff's ability to perform Defendant's city-driver position.

We want our readers to know we represent USF Holland but not in the claim outlined above. We appreciate your thoughts and comments.

12-22-11; Can you audit or do wellness checks on total and permanent claimants in IL? Can you ask a claimant to demonstrate they remain alive? Can you ask a claimant to prove they remain totally...

We were asked this question by a reader and consider it an important thing for adjusters and risk managers to consider. In our view, Illinois has three ‘types’ of total and permanent (T&P) disability awards.

In short, there are

1.    T&P’s that are in the category our courts called “odd-lot” where a worker is able to magically prove their disability blocked them from locating work within their restrictions or disability. We call this “lazy-lot” T&P’s because there is no question that, in our view, some of such claimants get the award because they do a great job of “unfinding” work, like claimants seeking unemployment benefits who supposedly can’t find jobs for as long as four years. In our view, such persons aren’t actually trying and U.S. benefit systems like workers’ compensation and unemployment systems reward it. This T&P category would also include state, county and municipal employees who could be returned to government jobs in different agencies but the governments don’t or won’t rehire them, claiming work or union rules block rehiring.

2.    T&P’s where all the doctors say claimant will never be able to work again in any job. For one example, a worker with a severe closed head trauma who has difficulty walking, speaking, eating would fit into this category.

3.    T&P awards called statutory T&P’s—without meaning to be insensitive, this award requires the injured worker to have been paralyzed, blinded or lose several major body parts. Such workers can work after suffering such catastrophic losses and our liberal courts won’t allow their benefits to be cut. If someone is blinded or loses an arm and a leg, it is hard to fight about cutting lifetime benefits if they return to work.

Claims involving T&P from numbers 1-2 above can and should be at least annually reviewed. An insurance carrier/TPA that doesn’t annually audit the status of such claims at least annually may continue to issue T&P benefits to a “dead person” and such weekly checks may start to be cashed.

Please note the categories above aren’t as clearly outlined in our IL WC Act. In fact, the words “odd-lot” total and permanent disability don’t appear anywhere in the Act—in our view, it was judicial legislation to create the concept. More conservative judicial rulings could end this clunky concept in a single bound and Illinois’ injured workers would adjust.

To answer the question about what an employer can do to monitor ongoing payment of T&P benefits in situations we number 1-2 above, you can get an IME on what we feel should be an annual basis. If the injured claimant doesn’t attend the IME, you can move to suspend continued payment of T&P weekly benefits. In King v. Illinois Industrial Commission, the employer filed a motion to suspend the claimant's PTD benefits pursuant to section 12 of the Act, arguing compensation should be suspended because the claimant refused to comply with a section 12 request for a medical examination. After a hearing, the Commission denied the motion, but ruled Section 12 gave the employer the right to a medical exam and ordered the claimant to submit to such an exam. The circuit court confirmed the decision of the Commission and the reviewing courts agreed.

The IL Supreme Court then considered whether a claimant who received a PTD award pursuant to section 8(f) can be required to submit to an employer's request for medical examination pursuant to Section 12, even though the employer has not filed a petition to modify claimant's benefits pursuant to section 8(f) or section 19(h). The Supreme Court noted Section 8(f) provides for termination or reduction of a PTD award where a claimant returns to work or is able to do so and earns or is able to earn as much as before the accident. They also noted Section 19(h) grants employers a limited right to have certain compensation awards revised, but only within a specific number of months after the award becomes final.

In King, the Supreme Court also noted Section 12 required a claimant to submit to a medical exam at the request of the employer and the employer could suspend payment of benefits if the claimant refused to submit to such an exam. In summary, the Supreme Court held an employer may suspend payment of benefits where a T&P claimant refuses to submit to a Section 12 medical exam, even in the absence of a petition pursuant to Section 8(f) or Section 19(h).

From our review of that decision, an Illinois employer has a right to make a medical inquiry into the status of disability of a T&P claimant. However, please note in a later ruling in a decision named Boyd Electric, our Appellate Court ruled Illinois employers did not have a right to request copies of tax returns or other indicia of a T&P claimant returning to work. While we completely disagree with that ruling, it does point to the focus of what we feel are hyper-liberal reviewing courts in this state—their focus isn’t typically on whether claimant has or can return to work. The focus of our courts is on a change in “disability” that we consider to be a magical concept that makes sense only to lawyers.

As an example, in the ruling in Cassens Transport, wage loss differential benefits couldn’t be reduced solely in reliance on heightened post-award income of a claimant. The Illinois reviewing court said lifetime wage loss differential benefits could only be reduced if the worker’s disability had changed. What this means is the benefits are set/awarded based on two factors; disability and post-injury income levels. To reduce or modify them at a later time, the reviewing court indicated they would only measure one of the two concepts—“disability” whatever that might mean.

Therefore, if a claimant with a triple-operated low back got a wage differential award of $400 a week due to proof of weekly wage loss and the worker later returned to start a competitor to Microsoft© and was now making several billion a year, the employer would still be required to continue to pay lifetime wage loss benefits, as if the wage loss were still ongoing if the employee could indicate the “disability” remained the same. Most Illinois employers and insurance carriers/TPA’s consider that outcome to be ludicrous.

In our experience, you simply have to remember you are dealing with Illinois. Long story short, wellness checks or annual audits of total and permanent disability claimants are legal and an important part of Illinois WC claims-handling. If insurance carriers/TPA’s and/or self-insured employers aren’t doing them, there is a strong possibility they are overpaying benefits. Please let us know your thoughts.

12-22-11; We are starting to think the “People’s Republic of Illinois” simply can’t ever make sense

In our view, the State of Illinois has the highest workers’ compensation costs on the planet for almost every government or private organization other than the U.S. Government. We will donate $500 to the favorite charity of the first reader who can point to a government/private company that spends more than $133 million each year, as our state does. We consider that a staggering and embarrassing amount that demonstrates how little the last several state administrations care about how they spend taxpayer dollars. It is also astonishing to contemplate there are that many “accidents” being suffered at Illinois state facilities! To cap all of it, in our view, nothing, absolutely nothing is being done about this government largesse.

Here are some cogent thoughts on why it may never make any sense and millions in taxpayer dollars will continue to be flushed down the drain, at least under the current leadership. In the 2011 Amendments to the Illinois Workers’ Compensation Act, they created a WC Program Advisory Board to try to figure out how to stem the tide of red ink from the hundreds of millions of taxpayer’s dollars flowing to state workers under the guise of workers’ comp. The IL WC Act Amendments were signed into law on June 28, 2011 by our Governor. Everyone is still scratching their head about the PPP provision that was supposed to save millions for IL business—the Illinois Department of Insurance appears to be lugging and tugging their feet on final approval. To the extent Illinois already had PPO’s for decades; what is taking so long about finally approving PPP’s? Won’t it save the State of Illinois money if they sign up with a WC PPP?

To our knowledge, the Governor and our legislative leaders still haven’t taken any definitive action on several of the Amendments but these are the provisions directly affecting WC claims for state workers:

1.    The Director of Insurance for the State can prepare and implement a plan to purchase Workers’ Compensation insurance for the State.

2.    We note individual State agencies will be compelled to fund TTD payments themselves in the event that light duty is not accommodated once the light duty release is issued pursuant to the treating doctor and the IME physician.

3.    The Department of Central Management will develop an advisory body known as the State Workers’ Compensation Program Advisory Board designed to review, assess and make recommendations to improve the State workers’ compensation program. The Governor is to appoint one member of the Board with the Speaker of the House and Minority Leader to appoint other members. Members of this board shall serve three year terms.

To quickly answer these legislative challenges:

1.    No one in their right mind would ever sell “insurance” to our nutty state—if they are blowing $133M each year, the premiums for next year would have to include a small profit for the insurer. How in tarnation could over-the-counter WC insurance for our state ever make sense?

2.    The second provision is a solid concept and makes common sense to most risk managers. However, you can hear the sound of foot-dragging from here to Springfield. We don’t believe there is any state agency that is following this legislative provision and many don’t even know it is the law. If any of our readers can prove us wrong, please send it along and we will make the same charitable donation to the first reader to send it in.

3.    Finally, the Illinois State Workers’ Compensation Program Advisory Board is an interesting but quizzical idea. It is stunning to contemplate they still haven’t finalized the members. The obvious problem is you only need three folks on the board—everyone else who appears on it will simply be for public relations purposes. The three requisite members are Governor Quinn, Senate President Cullerton and House Speaker Madigan.

In our view, if the Governor, Senate President and House Speaker quietly and quickly tell the folks they have carefully vetted and placed on the Illinois Workers’ Compensation Commission at the hearing/review level to make state WC costs come down by 10, 20 or 50 per cent, we assure our readers such costs will immediately drop by that amount. The hearing officers/administrators don’t need slide-rules or new computers to figure it out, as it isn’t rocket science, folks.

In contrast, if the IL WCPAB conducts hundreds of hearings and listens to hours of boring testimony and reads the transcripts and concocts brilliant concepts and promulgates all of them for us to review and the Big Three listed above don’t sign off on them, fuggettaboutit—Illinois ain’t ready for WC reform. State workers will continue to cash millions of our dollars in WC benefits.

And it is hard not to ask the rhetorical question—if the Big Three were committed to saving taxpayers on the record-high benefits for state worker in our WC system, why has it taken six months to move forward with this simple advisory board concept? Doesn’t the State of Illinois spend at least $11 million every month on these handouts?

Please also note our sources indicate Attorney General Lisa Madigan is now starting to get egg on her face from poor handling of the defense of Illinois state worker claims by her litigation team. Please note someone should have to take the heat for the millions being doled out in southern Illinois WC claims. We are advised the same claimant lawyers handle most state workers’ WC claims across Illinois. Most of the opponents of these claimant attorneys in litigated claims are the same assistant attorneys general in any given region of the state. Most of the hearings involve identical or nearly-identical accident claims. Claimants are told to answer the same questions by their attorneys in each claim.

Most of the defense cases-in-chief presented by AG Madigan’s defense lawyers involve a few dopey questions, no independent medical exams and basically no defense case at all. We are told the number of proposed decisions being filed by assistant attorneys general are about as many teeth as there are on an average duck. You guessed it, if AG Madigan’s troops and CMS don’t spend the time and effort to defend claims, hefty awards are sure to follow. We are also told they get hit with penalties and fees on a regular basis or they drop defenses to avoid claims for penalties and fees as a regular course of practice.

We think it is sort of odd to see Attorney General Lisa Madigan’s lawyers get hit for hundreds of millions in WC awards/benefits by hearing officers vetted and otherwise chosen, in part, by her dad, House Speaker Michael Madigan. A casual observer might think her last name might result in more middling outcomes. However, some observers feel in Illinois WC basically anything goes, so long as claimant wins.

We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog. Happy Holidays to everyone.