11-27-12; How Do We Defend and Win "Repetitive Working" Claims; Top Ten Mistakes in OSHA Recordability; Ellen Keefe-Garner on Dealing with Work-Related Suicide and much more

Synopsis: Aggressive Defense Handling of IL WC Claims—How Do You Defend and Win “Repetitive Working” Claims?

Editor’s comment: Our lawyers at KCB&A are focused on paying the claims we owe but fighting as aggressively, passionately and as fervently as possible where we can on claims our clients have to win. One growing “problem” we see in the IL WC matrix is the growth of “repetitive working” claims and how the WC defense industry is struggling with them.

What is a “repetitive working” claim?—it is onset of pain without a defined accident, trauma or unforeseen occurrence. We feel workers pick the heaviest task or tool in their job duties and try to point to that work as the source of their problems. Lots of older workers and wily younger workers are signing up for Illinois’ generous WC benefits but don’t want to deal with the uncertainty of an unpredictable incident. So when they have any medical issue, like spontaneous sore knees, one way to cash in is to blame the sore body part on “work.” What such workers are doing across the state is to say, “ouch, my [insert body part] hurts” and then say the problem is due to “work.”

On the Defense Side, Don’t Call It an “Accident” or “Injury” unless it is a True “Accident” or “Injury”

An accident or acute injury is something unforeseen and unexpected. One phenomenon we have seen, particularly with nurse case managers, is many veteran NCM’s and defense claims handlers will describe or label any medical condition as an “accident” or “injury” if the worker says their pain started in the workplace.  For one example, if you have a forklift operator with a sore knee they say started from getting off their forklift, in our view, they haven’t suffered an “accident,” they simply have a sore knee. Acute pain or soreness in the adult knee without any history of trauma is usually associated with the degenerative development of bone-marrow edema and/or joint effusion. In this setting, bone marrow edema can be caused by various non-work-related disorders ranging from septic arthritis with or without osteomyelitis, inflammatory and degenerative arthritis, to transient osteoporosis, spontaneous osteonecrosis and acute synovitis. If you aren’t willing to fight such conditions, you may pay lots of money when they randomly arise—you basically own that leg for hip and knee replacements and all the sequalae that might ensue.

We have seen nurse case managers call the onset of chronic knee pain an “accident at work.” Such NCM’s will then get an independent medical exam where they tell the expert medical examiner the worker/examinee with transient onset of knee pain suffered an “accident at work” and ask the doctor if the “accident” is related to work. It is a very solid physician who will see through such questions and ask if there was actually an acute occurrence in the investigation or initial medical history. In our view, the use of the words “accident” or “injury” is very poor nomenclature, as it implies an accident or an injury occurred. The defense attorneys at KCB&A would instead indicate this claimant suffered “onset of pain” or spontaneous onset of knee pain while at work. Where there is no incidence of trauma or an unexpected event in the reporting or investigation, please don’t provide a label for an event that isn’t present.

What about “Repetitive Trauma”—Isn’t that Compensable?

We have some problems with calling the random onset of pain from activities of daily life as being due to “repetitive trauma” or repetitive injury based upon our example of the job duties of occasionally getting on and off forklifts. Most IL Arbitrators don’t feel getting on and off a forklift at the beginning of an eight-hour shift, at a single morning work break, at a lunch break, at an afternoon break and at the end of the day a lot of stress to the body. In our view, they aren’t going to feel that is “repetitive trauma” like a work task performed hundreds of times an hour. Please remember, if you don’t investigate and document the true work situation, the employee can say anything they want at a hearing.

So if we are going to defend such claims, you need

ü  An outline or specifics or investigation of how many times in a day, week or month this worker may have been getting on and off a forklift.

ü  You have to be able to prove it was four times a shift or forty times each hour.

ü  You have to determine if the forklift step is an inch, six inches or two feet off the work floor/surface.

ü  It might be important to know the surfaces the forklift runs on and whether such surfaces were in level, dry, well-lit and clean.

ü  You may also consider getting confirmation the forklifts being used were all in a normal and ordinary state of repair and were being used by numerous other similarly situated workers without any complaint about maintenance or safe use.

We also don’t want any client to have a worker say they got hurt using any equipment without getting the maintenance and safety records of that equipment. Like any Boy/Girl Scout, be prepared to show the equipment in question was in a normal and ordinary state of repair. As soon as possible following a report of a repetitive working problem, have a supervisor “test” or at least use/observe the equipment to insure it is working properly and didn’t fail—you have to “prove a negative” to show things weren’t broken and worked fine.

Next, you might want to look on the web about the ergonomics of stepping on and off forklifts and how that differs, if at all, from routine activities of daily life. You also want to pull and save security videos to give any IME doctor the real picture of the job and work duties before they reach their expert opinions. Such videos also help the Arbitrators to see what really goes on in your workplace and how much stress might be involved.

We make these points specifically to confirm if you accept and pay substantial benefits for what we characterize as a “repetitive working” claim, you may be on the hook and/or implicitly accept any claim for foot, knee, hip, back, neck and shoulder pain for anyone working for this company who wants to point to stepping on and off forklifts as the “cause” of those problems. All of those body parts/areas are used and are arguably “stressed” when one gets on or off a forklift.

Do These Approaches work—Can We Truly Defend “Repetitive Working” claims?

Youbetcha--we want all of our readers to know the 16 lawyers at KCB&A fight and win claims on a regular basis in Illinois, Indiana, Wisconsin and Michigan. If you give us the tools and evidence, we are aggressive and relentless. But we can’t win without our clients’ help and assistance in aggressively investigating claims, documenting/authenticating defenses and possible WC fraud. If you need help in ramping up your accident investigation protocols, send a reply. Please post your thoughts on our award-winning blog.

            ------------------------------------------------

Synopsis: Ten OSHA Recordkeeping Mistakes You Have to Know and Avoid.

Editor’s comment: The OSHA experts at KCB&A keep seeing our clients making the same recordkeeping errors and wanted to give you our expert thoughts and advice. All employers should be on the lookout for common errors on maintaining your OSHA 300 logs. Here is our list of ten major mistakes U.S. employers may make on your OSHA 300 logs:

1.    Work restrictions in relation to OSHA recordability

The most common error is failing to understand what an OSHA-recordable work restriction is. Many employers honestly believe an injury may not be recordable as a work restriction if the injured employee still can perform some work. Employers try to avoid OSHA recordability by assigning office work to injured truck drivers. Other employers may think a case is not recordable if the employee still can perform work within his or her job description. For example, they give purely sedentary welding work to ironworkers who otherwise would climb ladders.

However, OSHA's regulations (29 C.F.R. § 1904.7(b)(4)(i)-(ii)) state a restriction occurs when either one of two circumstances occur:

      The employer keeps an occupationally injured employee from performing one or more “routine functions” of his job; or

      A licensed health care professional recommends the employee not perform one or more “routine functions” of his job. “Routine function” is defined as a work activity regularly performed at least once per week. For an injured ironworker who now is unable to climb ladders, the case is recordable because he typically climbs ladders every day.

2.    “Light or medically modified duty” may cause OSHA recordability

Another typical error is the perception light or medically modified duty is not a work restriction. An OSHA recordkeeping regulation (§ 1904.7(b)(4)(vii)) indicates light or medically modified duty can indeed amount to a work restriction and cause recordability. In fact light or medically modified duty is presumptively a restriction according to the regulation cited.

OSHA watchdogs take this regulation to mean “light or medically modified duty” is a recordable work restriction unless the physician affirmatively states the injured worker may perform all of their routine job duties and work a full shift. If you are faced with nebulous restrictions, we tell our clients and readers when faced with vague restrictions such as “light duty,” you have to then contact the physician and get details on what work duties the worker may not perform. If the restricted duty is one the worker regularly performs at least once a week, an OSHA recordable case must be entered on the 300 log.

3.    Always remember the injured worker is an important “witness” and can’t be ignored

A typical mistake is to fail to give proper weight to the report of the injury offered by the injured worker. Employers sometimes discount a worker's version of injury because there were “no witnesses.” However, the injured worker is a witness and if he or she says they twisted their knee when he stepped on an oily surface, the worker's account must be given as much weight as circumstances warrant. You have to remember, sometimes the employee's statement may be enough. If you feel it is not enough and the event should be disputed, an employer has to document and authenticate your disputes.

4.    Overreliance on late reporting as a basis for disputing an injury

Our clients sometimes fail to record an injury on their OSHA 300 log because the worker did not report the event timely or on the same day. Some employers assert a worker’s failure to immediately report is fatal to credibility, especially if the failure violated your “as-soon-as” accident reporting rule. Such reasoning is understandable but can cause issues. Although the worker’s failure to immediately report an injury may violate your accident-reporting protocols, it does not necessarily mean a work-related injury did not occur. You still have to consider whether the worker’s account is reliable and whether there is other defense evidence to dispute the report.

5.    Trying to understand aggravation of pre-existing conditions in relation to OSHA recordability

Another common mistake is our clients and readers make is misunderstanding OSHA's test for recordability of a workplace aggravation of a non-occupational injury or condition. Employers may hope if an on-the-job incident caused a true flare-up of a condition that originally arose off the job or with a previous employer, such aggravation is not OSHA recordable. Such a perspective may be incorrect. Please also note OSHA's regulations on this point can be misleading. Consider an employee who runs a marathon and gets sore knees on vacation, returns to work and picks up a small box. Suppose the lifting of the small box causes a flare-up of knee pain that started during the marathon race and causes the worker to either require medical treatment or makes them unable to perform normal weekly duties. Is such a problem OSHA recordable? It would be understandable for an employer to think lifting incident may be ignored as insignificant in relation to the overall issue. First, the principal provision on aggravation in the regulations §1904.5(b)(3) says an aggravation is not recordable unless the current workplace “significantly” aggravated a preexisting non-occupational condition. Second, the preamble to the regulations describes the provision as not “requir[ing] the recording of cases involving only minor aggravation of preexisting conditions.” So a reasonable employer might think the regulations permit you to distinguish between significant and insignificant aggravations. Employers can and should be forgiven for being confused by a regulation which speaks of “significant” aggravation but requires you to record a case the cause of which is 99.99 percent non-occupational.

6.    The influence of non-OSHA criteria for work-related problems, aggravations and work restrictions

Another issue arises when physicians and employers apply non-OSHA criteria for work-relatedness, aggravations and restrictions. For example, employers commonly ask a doctor whether an aggravation is work-related. Often an OccDoc might respond the “major” cause was non-occupational. Such a response reflects the physician's common-sense test for work-relatedness or aggravation or a given state's workers' compensation causation statute. This analysis does not reflect OSHA's definition of aggravation, which does not require analysis of “major” causes.

This issue also affects work restrictions. Workers' compensation TPAs/insurance carriers urge employers to keep workers working. Risk, safety and health managers who succeed in keeping injured workers working find it difficult, when reviewing a case for OSHA recordability, to place the case on the 300 log as an OSHA recordable restriction.

7.    Common sense first aid can be recordable

Under the OSHA recordkeeping regulations, medical treatment is recordable unless it falls within an exception in the regulations, one of which is “first aid.” The regulations list all treatment comprising “first aid.” Accordingly, we encounter employers who feel if treatment is first aid, it is not recordable. However, as OSHA created its own special and highly restricted definition of “first aid,” there is a difference between first aid in common parlance and “first aid” within the meaning of the OSHA regulations.

8.    Prescription drugs in relation to recordability

OSHA's recordkeeping rules state use of a prescription drugs is recordable as medical treatment. Employers often overlook, however, that a physician's recommendation for an employee to use even a non-prescription drug at “prescription strength” is recordable.

9.    What to do about “Battling Physicians”

Employers may try to avoid a recordable case by asking a second physician for their opinion on whether medical treatment or a work restriction recommended by, a previous physician was needed, or whether an injury or aggravation is occupational. This seems permitted by OSHA's regulations, which twice state that, “If you receive recommendations from two or more physicians or other licensed health care professionals, you may make a decision as to which recommendation is the most authoritative, and record the case based upon that recommendation.” The trouble is that OSHA's regulations fail to make clear distinctions OSHA enforcement officials can make. Under these distinctions, a second doctor can affect recordability caused by a first physician, and sometimes not.

10.  Recordability can change as a work-related condition changes

Once an injured worker stops reporting for work because of long-term injury leave, record keepers may forget to keep track of days away from work and put them on the OSHA 300 log. The same thing frequently occurs when injured employees make subsequent physician visits sometime after an injury; on these occasions, restrictions may be later imposed, medical treatments given or drugs prescribed of which the employer is unaware. Employers need to establish a system for keeping tabs on subsequent events and for making sure your record keepers consistently track them. If not, recordable cases or data might slip through the cracks and not be reflected on the employer's OSHA 300 log.

We have several OSHA experts on staff at KCB&A. Our hourly rates are dramatically more reasonable than the giant national law firms who want to keep this as mystical and mystifying as possible. We are happy to provide clarity and simplicity to this area of law. If you have concerns or issues with OSHA or recordability, please send an email or call at any time.

            -------------------------------------------------------

Synopsis: Investigating Suicide in the Workplace must involve careful vetting of causation, thoughts from our respected nurse-lawyer Ellen Keefe-Garner, J.D., R.N. B.S.N.

Editor’s comment: Statistics show suicide is the 11th leading cause of death In the U.S. and is in fact a more frequent cause of death than homicide, which is the 13th leading cause of death. If an employee commits suicide, whether at work or outside of work, questions can arise as to whether the death is or should be compensable under workers’ compensation law. In order for any injury or death to be compensable in WC, it must be related to or “causally connected” to work. In workers’ compensation, proof of causation requires death by suicide arise out of and in the course of the employment.  Arising out of the employment means that some act or element of employment is or was a causative factor in the suicide.

Petitioners sometimes try to push the limits of causation by trying to prove a suicide was prompted by or caused by a work-related event even though the suicide happened outside of work. This occurs because the value of a workers’ compensation death case in Illinois is a minimum of approximately $615 thousand dollars with a maximum potential recovery of over $1.6 million dollars. 

Importantly, employers should recognize the fact of an employee’s death by suicide at work does not automatically mean the death is or is not causally related to work. For instance, if a distraught employee commits suicide at work because of depression prompted by a recent divorce, the suicide should not arise out of the employment and should not be causally related to employment, even though it occurred at work. In contrast, if a distraught employee commits suicide at home to avoid some extreme pain arising from a work-related injury, some courts have found a causal relationship between the death by suicide and the work-related accident even though the suicide was committed at home and not at work. 

In the oft-quoted Illinois case of Harper v. Industrial Commission (from 1962), a worker who had sustained a back injury at work committed suicide after leaving work in the middle of the morning. A workers’ compensation award to the widow was ultimately appealed all the way up to the Supreme Court of Illinois since the death had not occurred at work. The Illinois Supreme Court ultimately upheld the award to Decedent’s widow, finding there was sufficient proof of a direct causal relationship between the work-injury and the suicide. Based on the proof of a sufficient causal connection to the work accident, the Court held it was not necessary to prove the precise mental condition suffered by Decedent at the time of the suicide.

In contrast, in the later Illinois case of Goldsamt v Industrial Commission, our Supreme Court affirmed the denial of benefits for injuries resulting to an employee who lost both of his legs after attempting to commit suicide by jumping out of a 9th story window at work. Although the employee argued his suicide attempt was due to stress from work, the key to the denial of benefits in Goldsamt was the presence of the employee’s mental illness unrelated to the work environment. In other words, the Court held evidence of the employee’s long-standing depression and obsessive-compulsive disorder militated against a direct or a sufficient causal link between his suicide attempt and depression from work problems. Ultimately, the Supreme Court upheld the lower courts’ findings indicating Petitioner’s depression arose from causes that were not “work-related” and, therefore, not compensable.

Given that causation is such an important factor in any workers’ compensation case related to an employee’s suicide (or suicide attempt) at work, employers must do a careful investigation to determine the cause of any employee’s suicide. In other words, a suicide death must be diligently treated like any other work-related accident involving a fatality. Before an investigation is completed, no assumptions should be made that a suicide will or will not be compensable even though it arose as a result of an intentional and self-inflicted act unrelated to work.

Of course, when the employer becomes aware of an employee’s suicide at work, the employer should contact the police and OSHA to report the death so a full investigation as to the cause of the death can be started. However, the involvement of these outside investigators should not prevent the employer from doing its own investigation as to the cause of the suicide. Any employer in such a circumstance should gather and preserve important evidence, like a suicide note or statements made by Decedent to co-workers. Ultimately, any workers’ compensation claim that arises out of a suicide death or a suicide attempt will center on issues related to causation. In other words, the main question at trial and later on appeal will be whether the employee’s suicide ultimately arose out of and in the course of the employment.

One other caution in dealing with workplace fatalities—you have to remember witnesses to a sudden, shocking event and “first-responders” may also become claimants if they suffer psychological or related mental issues as a result of the unforeseen occurrence on the job. Following the Supreme Court’s rule in Pathfinder v. Industrial Commission, you have to reach out to such workers and provide care, as needed.

This article was researched and written by Ellen Keefe-Garner, J.D., R.N. B.S.N. Please feel free to send questions or concerns to Ellen at emkeefe@keefe-law.com

11-19-12; Fools Rush In Where Wise Men Fear to Tread--IL WC Voc Rehab May Have Just Changed for the Worse; Shawn Biery on "Suitable Seating" Claims; iRatings for Your IL WC Impairment Ratings and...

Synopsis: Fools Rush In Where Wise Men Fear to Tread—Voc Rehab in IL WC May Have Just Forever Changed for the Worse.

Editor’s comment: We recommend all business observers take a long hard look before you make the decision to appeal WC cases past the Circuit Court level in this state. We are letting our clients know the math on getting a solid defense ruling or even a dissent from an IL WC Appellate panel member are less than one in twenty rulings. In our view, we have to pick our battles very carefully--there is no discernible reason to spend the money to receive an Appellate Court “beat-down” like this one. If things don’t go well in the Circuit Court, adjust around what you have to deal with and make the tough claim decisions. Why have the veteran and knowledgeable Appellate Court justices join together and unanimously “clobber” every single defense issue you raise?

In W.B. Olson, Inc. v. IWCC (No. 11 L 50222, issued November 5, 2012), Claimant was a union construction laborer with a knee injury in 2006. He underwent two knee surgeries and then an unbelievably long period of physical therapy and later work-hardening followed. He later underwent total knee replacement. Claimant underwent two different FCEs that we feel were provided to maximize recovery in this litigation by giving claimant the “golden diagnosis” of permanent restrictions. We also note he was offered clerical work at the company’s headquarters and the treating doctor magically limited his driving to avoid that job and employer accommodation.

In early 2008, the matter was tried on an emergency petition and claimant was awarded 104 weeks of TTD—neither side appealed. Claimant’s counsel then got a voc counselor who met with Claimant and fiddled around for years but never found Claimant work.

On his own, Claimant found a potential job at a trucking company. The problem that arose is Claimant purportedly wasn’t able to get motor vehicle insurance to drive the vehicle because he hadn’t been driving for two of the three prior years. We haven’t heard of that insurance requirement and would love to hear from the insurance brokers among our readers if there is truly such an industry-wide insurance limitation out there. One would have to wonder how anyone might break into the industry with that odd driving/insurance requirement(?).

In late 2009, the employer hired an expert voc rehab counselor and his services were refused at the direction of Claimant’s counsel. Not sure how the employer was barred by the Commission from providing its own voc eval expert at its own cost—there isn’t a Rule or Section of the IL WC Act which precludes it. We will address this issue in further detail below.

In early 2010, the matter was again tried on a 19B petition for TTD. We can’t tell why they had to try it again if benefits were ongoing. After the hearing, another 116 weeks of TTD was awarded. Then the appeals began—the appeals continue to present and, guess what, another 100+ weeks of TTD has to again be pending. We consider it comical/ludicrous/silly to see six-plus years of TTD being paid when this man clearly can do some sort of work and isn’t unemployable. That said, let’s hope the employer, its defense counsel and its TPA/Carrier aren’t going to drag this mess out any longer and take this ruling to the IL Supreme Court and gain even more notoriety.

In summary, this unanimous Appellate Court ruling:

·         Provides Claimant attorneys may unilaterally select and hire the sole voc rehab experts for their clients—in our view, the Arbitrator has to approve it;

·         Provides Claimant attorneys may be able to indiscriminately block IL employers from providing voc rehab counseling at their own expense—again, this is subject to Arbitrator approval;

·         May require IL Employers to pay for the voc counselors selected/hired by Claimant attorneys;

·         Implicitly blocks IL Employers from disputing the length or scope of voc rehab being provided by the expert selected by the Claimant attorney;

·         Implicitly indicates whatever the IWCC does in ruling on voc rehab isn’t appealable—we ask other defense firms to strongly consider/exhaust all other options prior to taking such claims to this appellate panel to reinforce similar rulings.

We dislike every single aspect of this controversial ruling but we caution our issues are not with the members of the IL Appellate Court who simply followed longstanding and well-settled Illinois law. As we outline above, we have no idea why they were even asked to rule. Moving forward, our main problem will be defending such claims after this published ruling before the IL WC Commission and the wildly aggressive Petitioner/Plaintiff lawyers who practice there. We assure our readers this shocking and anti-business ruling may represent a paradigm shift in handling the biggest and most expensive Illinois workers’ compensation claims--“odd-lot” total and permanent disability claims and wage-loss differential claims. Such claims have values starting in the middle six-figures and move rapidly into the middle seven-figures. If there was a goal to cut IL WC costs, this decision doesn’t follow that model. This ruling, in our view, reverses the trend toward even minimal employer control of WC claims and may give complete control to the claimant bar. In our view, this ruling signals exponentially higher IL WC PPD reserves and payouts. We hope someone in the legislature is listening because they are sure to hear moaning and wailing from business leaders about this one.

It is also our opinion there are very questionable ethics present when a Claimant attorney is allowed to select an expert who will undermine the employer’s defenses while forcing the employer to foot the bill for their tormentor. What if the expert charges $5,000 per hour? What if the expert, as happened in this claim, provides never-ending and effectively worthless voc services over several years? There are no cost limitations on voc rehab expert costs in any IL WC fee schedules. There is no stated or recommended duration for voc rehab in any Rule or the IL WC Act. We assume several hundred thousand dollars in TTD/maintenance has been paid in this disastrous claim while this voc expert didn’t get this guy back to work. It is all being left up to the whim of Claimant’s counsel who can continue to get years and years of TTD/maintenance paid by the employer until a giant settlement supplants all of it.

What can we learn from all of this?

v  It is our view voc rehab should be provided much earlier in many IL WC claims. If you have claims where the injured worker is off work and on TTD more than 120 days, we recommend you consider getting a voc plan with your own expert into place. It doesn’t always have to be full voc counseling and job training. Just carefully consider getting a voc plan into place. When you have a voc plan, get together with the other side and bring the plan to the Arbitrator assigned for their guidance. If you move to get voc rehab first, you may be able to get and keep your own expert and not pay to have the other side’s expert shoot your claims/reserves into the heavens.

v  Stop wasting money and time on FCE’s. One of our readers advised this decision stands for the proposition that an IME doctor can’t order an FCE. If you read the decision, it appears the Commission wouldn’t approve a third FCE; we wouldn’t have wasted the time and money on the first two!! We truly don’t care if that is an offshoot of the bigger issues being addressed—we dislike and despise the whole concept of FCEs that are wholly unscientific and many times, silly.

v  In our view, it is very, very rare to see an FCE that provides an unexpected level of work restriction. By that we mean, someone with an operated low back isn’t going to be found to be capable of lifting 100lbs. in an FCE in this state. We assure you we can predict the outcome of most FCE’s and one doesn’t need a crystal ball to do so.

v  Particularly in the construction and trucking industry but in almost all IL WC claims, when the defense side asks for an FCE, it is usually a journey to WC claim disaster. If you aren’t sure, claimants’ counsels love to have the defense industry collectively shoot ourselves in the foot with such “testing.” Claimant counsels very carefully coach claimant on precisely what to do to get the “golden diagnosis” of permanent restrictions.

v  Contact Keefe, Campbell, Biery & Associates and get claims like this audited for free. This is a very significant claim with mid-six-figure exposure. With respect, we feel there may have been numerous mistakes made—we could have provided this employer and its adjusters lots of other options that wouldn’t stall and delay the optimal outcome.

v  Contact Keefe, Campbell, Biery & Associates and get our recommendations for top-notch voc providers who can work with all sides to get folks back to the workforce smoothly or document they aren’t trying.

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

            --------------------------------------------------

Synopsis: Will California Class Actions Force “Suitable Seating” at Work? Let’s Hope This California Concept Isn’t Coming to a Workplace Near You! Thoughts and analysis from Shawn R. Biery JD, MSCC

Editor’s comment: About four years ago in California, several lawyers came up with the idea to begin lawsuits based upon a decades-old mandate that seats be provided to workers whose jobs do not necessarily require standing. Since 2009 California courts have grappled with a wave of lawsuits and litigation targeting large retailers, groceries and banks for not providing seats to clerks and cashiers. The so-called "suitable seating" cases have yielded conflicting rulings from state and federal courts on class certification and motions for summary judgment. The first trial in a seating class action is starting in San Francisco before U.S. District Judge William Alsup in Garvey v. Kmart, 11-2575. This bench trial will focus on 65 cashiers employed by one Kmart store in the central valley city of Tulare, CA and involves maximum penalties of about $500,000. Judge Alsup is on record indicating he intends to use the case to test the manageability of statewide certification.

The California regulation at issue has been on the books for decades and states in part "all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." Even more incentive for the State comes from the recent claims being brought under California's Private Attorney General Act of 2004, or PAGA, which means 75 percent of penalties flow into the CA state treasury for enforcement of employment laws. Prevailing employees are entitled to 25 percent of penalties with attorney fees and costs paid by Defendant employer. Because of these incentives, the lawsuits do not allege damages and instead seek civil penalties established by PAGA of $100 per employee per pay period for a first violation, and $200 per employee per pay period for subsequent violations—THERE IS ALSO NO REQUIREMENT EMPLOYEES PROVE THEY SUFFERED PHYSICAL OR EMOTIONAL HARM!!

Legal observers have noted no state or federal appellate courts appear to have analyzed the language of the rule and whether the work of a cashier or teller can reasonably be performed while seated. From our research it does not appear any court has ruled employers are required to give seats to sales associates or cashiers. A recent San Diego County Superior Court case resulted in a decertification of a class of 15,000 Rite Aid cashiers and clerks, concluding individual analysis of each employee's job responsibilities was preferable to a class action. That Rite Aid ruling referenced a federal judge's termination in May of a similar case against CVS which has been appealed to the U.S. Court of Appeals for the Ninth Circuit.

Judge Alsup is the first federal judge to certify a suitable seating class, finding Kmart had a uniform policy of not providing seats to cashiers in its Tulare store. He also reportedly declined to consider expert testimony from Kmart that some cashiers would be too lazy to stand up to safely lift heavier items and rejected arguments class-action lawyers improperly concocted the lawsuit before they had a single client. In San Jose, U.S. District Judge Edward Davila has followed with an August 2012 order certifying a statewide class of 22,000 Wal-Mart cashiers in a case potentially worth more than $150 million.

There is now a split among District Courts in California, and Wal-Mart has appealed class certification. There is a request to stay proceedings pending a decision from the Ninth Circuit which has not been ruled upon. In a distinct case currently at the Ninth Circuit, U.S. District Judge Manuel Real in Los Angeles dismissed Plaintiffs' claims after finding Bank of America only had an obligation to make seats available to employees to the extent that they want them or request them, not necessarily a legal duty to ensure every employee has a seat, regardless of whether they want one or not. In an amicus curiae brief, lawyers for the California Retailers Association, California Grocers Association and California Chamber of Commerce argued businesses should be able to decide whether an employee sits or stands while on the job.

It appears the upcoming trial will focus on the job duties of a cashier and whether that work reasonably permits the use of seats with ergonomics expert testimony anticipated. Our general advice to clients in all situations where ergonomic issues may arise is to ensure there are written policies regarding work duties and availability of accommodations if necessary which may include providing seating if the job allows and to place seats near employee work areas if necessary. We will keep you updated on developments.

This article was researched and written by Shawn R. Biery JD, MSCC and you can contact him directly with any questions at sbiery@keefe-law.com.

                --------------------------------------------

Synopsis: U.S. WC adjusters should take a look at iRatings for your impairment ratings needs.

Editor’s comment: We met these folks at the National WC Conference in Las Vegas last week and were very impressed. iRatings offers a versatile suite of services aimed at assisting their clients with identifying inaccurate impairment ratings, correcting identified errors and disputing erroneous ratings through litigation or other claims strategies. With this goal, they offer the following services:

ü  Rating Reviews

iRatings will review an impairment rating report and applicable medical records to determine the accuracy of the impairment rating assigned. They will then issue a report identifying any errors found within the rating report, outline the correct methodology under the AMA Guides to the Evaluation of Permanent Impairment and provide a corrected rating. The review and report can be basic, intermediate or complex, based on the nature of the case.

ü  Correspondence

Along with any rating review and report, iRatings can provide the claims examiner or attorney with a letter that can be sent directly to the rating physician. This letter can be used to proactively address the issue of impairment prior to MMI, or can be used to address specific concerns with a rating that has that has already been assigned. iRatings can also respond to correspondence from the rating physician, and can issue addendum reports based on this correspondence.

ü  Consultation

The folks at iRatings want you to know they are here to assist you in obtaining accurate impairment ratings until you have reached full resolution of a claim. This means they are available for email/text/phone consultation prior to depositions or hearings and, if necessary, they can testify as an expert witness at trial or hearing. Through review and consultation, iRatings is committed to ensuring national and regional insurance carriers, third party administrators and employers pay appropriate permanent partial disability benefits based on an accurate impairment rating. The entire team of iRatings is comprised of Certified Impairment Raters with the relevant experience required to maximize their services.

As Illinois WC risk managers and adjusters are new to the impairment rating issue, this could be a very solid source moving forward, particularly if you get into a battle over the accuracy of an impairment rating. Feel free to contact them directly via email to info@iRatings.us or phone: 858-413-RATE, fax: 717-490-7283.

 Synopsis: Welcome aboard, Joseph B. Moore.

Editor’s comment: Keefe, Campbell, Biery & Associates proudly announce the addition of Joe Moore, J.D. to our legal team. Joe is licensed in IL and IN and will focus his practice on defense of folks like you who face the enormous challenge of keeping your company’s costs and reserves low in aggressively defending your workers’ compensation, general liability, employment law and motor vehicle defense. Joe is up for the challenge—feel free to contact him at jmoore@keefe-law.com.

11-12-12; The Day the Republican Party in Illinois Died--What It Means to WC; John Campbell Reviews Religious Discrim Ruling; Sean Brogan analyzes Independent Contractor Claim and much more

Synopsis: The Illinois State Republican Party Died Last Week and is Deader’n a Doornail—What Does It Mean to IL WC?

Editor’s comment: One goal in writing this KCB&A Update for our readers is to remain relatively impartial from the perspective of political parties and politics. We represent government bodies on both sides of the political matrix. Our focus is saving such governments and businesses money in the WC arena. However, we have to call ‘em as we see ‘em, folks. In our view, the evidence is irrefutable. While we aren’t happy at all to see the complete lack of options or the protections a two-party system brings, sometimes you may be better served to face reality and try to adjust.

Chicago has had One Political Party for Years; Now the Whole State of Illinois Does

In taking a bipartisan stance on political issues, we are certain Illinois lost its two-party political situation last week. Most folks know the City of Chicago basically lost any vestige of a two-party system when a crooked Republican political boss named Big Bill Thompson was soundly routed by then-mayoral candidate Anton Cermak. That happened 81 years ago in 1931. Thereafter, Richard J. and Richard M. Daley ascended to the post of Chicago mayor and held the post for about ½ of the 80 or so years of Democrat supremacy in Chicago. Their ascendancy indicates one clear facet or failing of Chicago-style politics that impacts our whole state—our lack of term limits for political posts. Once in power, a smart Illinois politician uses patronage, nepotism, the ability to control government contracts, the capacity to appoint friends/supporters to cushy jobs and control of workers’ compensation/government disability benefits to become entrenched. Once embedded, they can hold the job as long as they like. Please don’t expect the Democrats to bring term limits in to hamstring their potentially unending claim to dominion over this state.

From our perspective, the political disaster that befell the Republican party in Chicago generations ago has expanded to a statewide dilemma—in our view, the Illinois Republican Party is smoked, finis, done, over and out. The Illinois “Blue” team hasn’t just won another election, they have thrown the other “Red” side out with the bathwater. How did we get to this point? Why are we sure of this relatively shocking news?

Well, IL Democrats now completely dominate within numerous voting blocs. It doesn’t take a rocket scientist to notice there were no African-American or Latino candidates slated by the Illinois Republican party and the party did very little to actively woo such voters. Black and Latino voters in Illinois came out and voted overwhelming for Democratic candidates. In a similar vein, many Illinois women voters have long been upset to consider a State Republican party with an open focus on controlling abortion, even in cases of rape and incest. Women voters were stunned to hear impossibly stupid comments on such topics from Republican candidates in other states and vented their dissatisfaction at our polling places. In our view, when Republicans can’t figure out a workable strategy on such an issue that will make women voters happy, voters will figure it out for you. A vast majority of IL women voters, particularly among young women voted Blue. We don’t see that changing any time soon.

The last major group we feel everyone is skipping are “government ghost payrollers.” As we have advised our readers in the past, this group is

·         Almost 800,000 eligible Illinois voters receiving or that will be eligible to receive generous government pensions from the five different poorly funded and almost-broke Illinois state pension plans;

·         Thousands of voters who are receiving lifetime “odd-lot” total and permanent disability benefits from State or City of Chicago governments and their impossibly poorly run WC systems;

·         Thousands of former police and firefighters who are now on lifetime line-of-duty disability pensions for things like runny noses where they can have jobs, run businesses and make money but are still considered “disabled” because their condition no longer allows them to be a police officer or firefighter.

In our view, hundreds of thousands of government ghost payrollers are supporting, donating and voting for one issue—“keep-my-pension/disability/WC-pay-in-place-and-growing.” Political observers are still laughing about Prop. 49, which would have provided such state and local pensions couldn’t be raised without a 3/5’s vote. The proposition failed miserably. We feel this phenomenon demonstrates the power of this heretofore unknown voting bloc. It is our view “government ghost payrollers” raised a campaign fund of about $500,000 and ran a major media blitz designed to let all of us know they don’t want limits on their current and future “rights” for the major taxpayer-paid benefit they receive. IL state pensions go up 3% each year. “Odd-lot” T&P WC benefits get business-funded COLA increases. Don’t expect either rising cost to slow without a major battle or three.

The State of Illinois has been “Gerrymandered” and Will Stay That Way for Ten More Years, Further Blocking a Republican Comeback

Gerrymandering is a practice that locks in a political advantage for a particular party or group by manipulating voting boundaries to create slanted, partisan or incumbent-protected districts. On top of getting slaughtered in double and triple-digits in many defined voting blocs, as we outline above, Illinois State Republicans will struggle with another monster mess for the next ten years—IL State Democrats “took advantage of their advantage” and just redistricted the entire state in their image and likeness. They bolstered Democratic strongholds and combined Republican districts to force Republicans to fight and oust other Republicans. This obvious political manipulation of the state’s election boundaries was attacked in IL state courts. Guess what, IL state judges/justices who have to run for election in the same districts quickly and quietly approved the distorted redistricting that helps them and their supporters stay entrenched. Another aspect of gerrymandering is voters start seeing little chance of their candidates winning and stop voting, making the party in power even stronger. We assure our readers this gerrymandering will insure the State Republican party is decimated and powerless in almost all areas of the state for at least the next decade.

So Where Is Illinois Going? How Will This One-Party Political System Affect Workers’ Comp Claims?

At present, Illinois now has veto-proof Democratic majorities in the state House and Senate. If you aren’t sure, Democratic Governor Pat Quinn just became a figurehead—he can’t stop anything in the legislature as they have the power to overrule him if he doesn’t support a bill. We are sure Senate President John Cullerton and House Speaker Mike Madigan are running things and no one will be able to stop them other than via old age or retirement. Both of them are active, wealthy and healthy men who worked hard to get where they are and appear to want to keep their posts and unsurpassed power.

We are predicting you will see one to three new gambling casinos in Chicago, as Mayor Rahm Emanuel sorely needs the cash for his underfunded City payroll and public school system. The only one who was blocking gambling expansion was Governor Quinn—all he can do now is go on the television and whine about it; he has no power to stop it. The veto session that is starting November 27th has lots of “lame duck” legislators on their last laps; odd and unexpected legislation may happen because outgoing legislators have nothing to lose; they are leaving in January no matter what. Often during lame duck sessions, controversial bills are passed. During 2011’s lame duck session the IL General Assembly passed a 67% income tax hike – the largest tax increase in Illinois history. It is possible an additional tax increase may be passed and all wealthy Illinois citizens are worried state legislators may “occupy” their wallets and savings in the same direction our President is taking to turn around his ballooning and massive federal deficit.

On the workers’ comp front, everyone on the defense side has our fingers crossed Illinois WC reform and progress in cutting costs will stay at the same levels. About two years ago, Senate President Cullerton took an across-the-board review of workers’ comp costs and supported the 2011 reforms that unquestionably trimmed rising costs. As one prominent Plaintiff/Petitioner lawyer put it, “everyone got a haircut” and WC benefits were similarly clipped. The Arbitrators and Commissioners are now very, very professional and most of the defense bar will affirm they are not issuing shocking, pro-Plaintiff/Petitioner rulings and work to be fair to both sides. We are still the fourth-highest WC state in the United States but things have gotten better since the Blagojevich era. That said, we do predict:

·         PPP’s or Preferred Provider Programs are going to be magically and mysteriously tied up in committee for several more years—they were enacted on June 28, 2011 and remain entwined in JCAR or the IL Joint Committee on Administrative Rules 17 months later (if you want our suggestion on what to do about this, send a reply);

·         Impairment ratings will continue to be politely considered but won’t have the impact their proponents wanted in cutting reserves and payouts on permanency;

·         The Illinois Workers’ Compensation Commission’s budget isn’t going to be cut to match the dramatic and continuing drop in new claims;

·         State of Illinois and City of Chicago workers’ comp defense programs will continue to payout hundreds of millions in benefits to political supporters as no one will be able to rein them in.

Whatever happens on the One-Party Political Matrix in Illinois, Keefe, Campbell, Biery & Associates will continue to look out for the interests of Illinois business. If you want thoughts, concepts and strategies to cut your WC, GL, EPLI or MVA budgets and free up reserves, send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.

            --------------------------------------------

Synopsis: Employers must be sensitive to the religious practices of employees, but there is a limit to everything. Thoughts from John P. Campbell, Jr., J.D.

Editor’s Comment: We were comforted by this recent decision from our Seventh Federal Circuit, as it reflects a pragmatic and fact-specific analysis of Plaintiff’s claim of religious discrimination. In  Porter v. City of Chicago our U.S. Court of Appeals for the Seventh Circuit found insufficient evidence for Plaintiff to proceed with her claim of religious discrimination, as the employer, City of Chicago, demonstrated sufficient effort to accommodate the request for accommodation.

Plaintiff Porter worked in data entry for the Chicago Police Department. The position required 24hr/7 day per week coverage by those employees, so of course, Sunday shifts were part of the obligation, utilizing rotating and alternating shifts among all assigned workers. Ms. Porter attended Sunday church services regularly and made a prior request for Sundays off. A few years prior to this claim, her request had been accommodated. However, upon her return from FMLA leave, she was placed on a weekend shift which included Sunday work. She again made the request for accommodation for Sunday off, citing her religious obligation. This time however, her supervisor explained she would have to wait for other similarly situated employees to either

(1)  agree to switch shifts or

(2)  for a position to open up on her desired shift schedule.

Also, her supervisor offered to place her on the Sunday afternoon shift, allowing her to attend Sunday morning church services. Ms. Porter was dissatisfied with this offer and her EEOC complaint followed.

Drawing from the legal rule cited in the text of the case:

Title VII prohibits employers from “discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII defines “religion” as “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to [sic] an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” Id. § 2000e-(j).These provisions of Title VII prohibit an employer from intentionally discriminating against an employee based on the employee’s religion, and require an employer to make reasonable efforts to accommodate the religious practices of employees unless doing so would cause the employer undue hardship. See Reed v. Great Lakes Cos., 330 F.3d 931, 934-35 (7th Cir. 2003) (citations omitted).

With the affirmation of the summary judgment for the City of Chicago, our Seventh Circuit explained the employer here made a reasonable attempt to accommodate Plaintiff’s request for accommodation, offering an alternate Sunday (afternoon) shift. This shift would have allowed Plaintiff to attend her Sunday services. Also, evidence the supervisor attempted to get co-workers to switch shifts is further evidence a reasonable accommodation was attempted. Plaintiff on the other hand, refused to accept the form of accommodation offered. Therefore, her decision to elect sick leave or vacation days was her own choice, having refused the option to simply work the Sunday afternoon shift.

Although employers may draw solace from the Porter decision, Human Resource directors and managers everywhere should be mindful of similar such requests by employees wishing to meet their religious obligations. As explained in this decision, a routine dismissal of such an employee’s request may very well be met with a valid charge of discrimination unless the employer makes a good faith effort to accommodate. As always, we strongly recommend you document, document, and  document your efforts to accommodate employees if such a scenario should arise.

This article was researched and written by John Campbell, Jr., J.D. Please direct your thoughts and comments to John at jcampbell@keefe-law.com.

            -----------------------------------------------

Synopsis: Illinois trucking company unsuccessful in using signed “independent contractor” agreement to establish that status.

Editor’s Comment: We are regularly asked whether an employer or contractor can establish “independent contractor” status and avoid paying WC benefits for an injured worker simply by having a worker sign such an agreement. Our answer is uniformly “no��—you have to look at the bigger picture of the relationship between the two parties. If you truly want anyone providing services for you to be “independent,” make them buy their own WC insurance to protect themselves or assume you are going to have to pay such benefits, if the unfortunate or unforeseen occurs.

In Labuz v. JKC Trucking, both parties appealed an order from the Circuit Court of Cook County which confirmed a decision of the IWCC awarding claimant benefits for neck, back and left shoulder injuries. Among the more pertinent issues on appeal was whether the Circuit Court should have dismissed claimant’s petition for review for lack of subject matter jurisdiction; whether the Circuit Court erred in finding claimant was an employee rather than an independent contractor; and whether the Circuit Court erred in denying penalties and fees against JKC.

JKC argued Claimant failed to effect proper service of the summons related to his petition for review in the Circuit Court as claimant mailed its summons addressed to the Commission generally and not to a particular member of the Commission. Relying on section 19(f) of the Act which notes “[s]ervice upon any member of the Commission or the Secretary or Assistant Secretary thereof shall be service upon the Commission…”, JKC argued the statutory language indicated service on the Commission may be accomplished only by serving a particular Commission Member or the Secretary or Assistant Secretary thereof. Thus, claimant’s general service to the Commission was insufficient to trigger Circuit Court jurisdiction. 

Reading section 19(f) in its entirety, the Appellate Court, Workers’ Compensation Division noted the statutory language immediately following the quoted language goes on to explain service on the Commission is to be effected by mailing notice “to the office of the Commission.” Thus, the Court rejected JKC’s argument reasoning the quoted language in section 19(f) is not a restriction on proper service but an expansion as it mandates service on the named individuals be considered service at the Commission.

The Court also rejected JKC’s independent contractor argument. In so doing, it assigned no weight to the fact Claimant signed a document indicating he was retained as an independent contractor for JKC. Interestingly, JKC was able to successfully argue against penalties and fees based on the same grounds that proved unsuccessful in its argument that claimant was an independent contractor.

While the Appellate Court found there was sufficient evidence to allow a rational trier of fact to conclude Claimant was an employee and not an independent contractor. The Court’s ruling outlined there were reasonable grounds for JKC’s position he was an independent contractor. In addition to the signed document, it was undisputed JKC did not withhold taxes from claimant’s pay checks and there was evidence claimant exercised control over his routes and over which gas stations he used. Thus, JKC’s basis for withholding payment—its argument he was an independent contract and not an employee—was neither unreasonable nor vexatious. 

This article was researched and written by Sean C. Brogan, J.D. He can be reached for questions or comments at sbrogan@keefe-law.com.

            -------------------------------------------

Synopsis: Welcome aboard, Tim O’Gorman.

Editor’s comment: Keefe, Campbell, Biery & Associates proudly announce the addition of Tim O’Gorman, J.D. to our legal team. Last week, Tim was sworn in as an IL lawyer and will focus his practice on defense of folks like you who face the enormous challenge of keeping your company’s costs and reserves low in aggressively defending your workers’ compensation, general liability, employment law and motor vehicle defense. Tim is up for the challenge—feel free to contact him at togorman@keefe-law.com.