12-4-12; "Reverse-The-Illinois-WC-Reforms" Effort is Ongoing; Arik Hetue on Anti-Price-Fixing Drug Pricing Rules in IL; John Campbell analyzes important Exclusive Remedy Ruling and much...

Synopsis: No “Haircuts” Here—Plaintiff/Petitioner Attorneys in Illinois Won’t Stop Stripping Out Defenses In Our Courts. Please assume the “Reverse-the-IL-WC-Reforms” effort is proceeding apace.

Editor’s comment: We are pretty sure the concept of an IL workers’ comp “haircut” started with Governor Quinn in February 2012. He asserted lots of different things in state government like pensions and WC benefits would be cut. He was quoted as saying “Everybody is going to get a haircut. No one will get scalped – that’s the basic concept.” At the most recent SafeWorks Annual Convention, prominent claimant attorney David Menchetti confirmed the “haircut” approach was the intent of the 2011 Reforms to the IL WC Act. We joined with Dave in our hope IL WC benefits would be brought back into a middle-range of the U.S. so we didn’t stick out so much and make existing and future Illinois employers feel Illinois would be a bad place to expand or start new businesses.

The main problem we feel present with trying to make Illinois workers’ compensation reasonable is our rabid Petitioners’ Bar and/or ITLA with very successful and well-to-do work comp lawyers across our state who don’t want a “haircut” and don’t want spiraling IL WC benefits to become moderate and reasonable. These lawyers know how to change the law without any need to go to the two major branches of government—they don’t care about executive branch or Governor Quinn who has the worst approval ratings in the history of approval ratings. Looking at the legislative branch, the Claimant lawyers also understand Senate President Cullerton and Speaker Madigan have to deal with lobbyists and legislators and public attention, all of which are challenging to say the least.

So constitutional scholars, what’s left? If you want to rapidly and dramatically change our Illinois workers’ compensation system, move to our Courts. Why the Illinois Courts—well, the Plaintiff/Petitioner Bar legally and ethically donates millions to Supreme, Appellate and Trial Court judges/justices when they are running for election. Those judges/justices are the best paid in the nation (making more than the Governor and more than twice what legislators earn) and qualify for pensions very quickly. Those judges/justices have a tendency to invite supportive lawyers to host/fund campaign receptions for them, attend victory parties and perhaps share a cup of java at a later time. It doesn’t take a quantum leap to contemplate legal controversies and other issues might be discussed along the way. At present, one could donate jillions to a judicial campaign, the judge/justice could win and Illinois law does not require disclosure of that fact to the other side prior to what are supposed to be fair and impartial hearings.

If you aren’t sure, the WB Olson v. IWCC ruling we recently reported is the first salvo in this “Reverse-the-IL-WC-Reforms” effort. The Plaintiff-Petitioner’s Bar doesn’t like vocational rehabilitation other than when they completely control voc rehab. In that case, claimant’s counsel got a ruling that may now mandate IL employers have to pay for his personal choice of voc rehab provider. His choice of voc rehab provider may be completely inept and not find claimant a job for years and years. Understanding that is a complete WC-claim-train-wreck, following the WB Olsonappellate ruling, IL employers may still be required to pay endless and expensive TTD benefits and the full cost of the valueless voc efforts. Does anyone think this new and unprecedented model for voc rehab is going to save Illinois businesses money? Is there any state in the United States that has a voc rehab system that goofy? Does anyone care this claimant attorney is a sworn member of our Commission, as he is on the Illinois Workers’ Compensation Advisory Board with the power to recommend hiring, suspension or termination of the Arbitrators he appears before every day? Are we the only folks who view that as an actual or potential conflict?

What’s next? Well, we have now seen several Plaintiff/Petitioner lawyers, including the eminent claimant lawyer we mention above, who want to take control of the IME process. They are touting and promulgating a year 2000 ruling in Griffin v. Mark Vend, 99 WC 22267 by now Justice Quinn. The goal of the claimant bar is to remove any responsibility that a claimant sign a medical release and/or provide a history to a physician who is performing an independent medical examination. The ruling states:

Plaintiff’s employer never introduced any medical evidence because its doctor never examined the plaintiff. The employer argues that the plaintiff did not properly submit to the physical examination required by 820 ILCS 305/12 because she would not provide a complete medical history., details of the accident, and a description of her job duties to the doctor selected by the employer to conduct the exam (Dr. Levin). Plaintiff was instructed by her attorney to only respond to questions about her medical condition during the physical examination. Section 12 requires that an employee submit to a physical examination “for the purpose of determining the nature, extent and probably duration of the injury received by the employee.” Nothing in this statute requires any more information from an employee than the plaintiff was willing to disclose. Furthermore, plaintiff’s employer failed to accede to a compromise solution offered by the Arbitrator that would have provided a the employer’s doctor with an agreed statement of facts so that questioning of the plaintiff would not have been necessary. Lastly, the questionnaire that plaintiff refused to complete and which led to Dr. Levin’s refusal to examine her was not made part of the record.

We assure our readers the more rabid members of the IL Plaintiff/Petitioner bar are now telling their clients not to “cooperate” with IME’s and advising them to refuse to sign releases or otherwise provide any medical history to the IME doctors. We consider this approach silly and completely unnecessary. That said, we are fairly confident there are some claimant lawyers who aren’t going to stop until they control every aspect of the IL workers’ compensation system. Our strongest hope is to tell all the members of the defense community—let the IWCC handle this one and deal with whatever they do. Right now, the IWCC is generally fair and moderate. We feel they are sensitive to the concerns of both sides. There is literally no need or value that will be derived in appealing this newly concocted issue to the Circuit and Appellate Courts. As we saw in WB Olson v. IWCC, you are going to lose every aspect of the claim before our judiciary and their ruling will then become Illinois law. We assume the claimant bar is next going to attack nurse case management and UR and surveillance and anything else that might provide any balance or defense for employers in our IL WC system. Watch this space for any new developments.

FYI, we looked up the Griffin v. Mark Vend claim on the IWCC website. It appears the case was dismissed and claimant did not receive either an award or settlement.

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

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Synopsis: Finally! The IWCC implements new “combo-drug” price fixing rules, bringing some sanity back to the world of WC medication pricing. We applaud all those involved for a rare instance of rapid and reasonable reform in Illinois.

Editor’s comment: We have previously advised you of the egregious practice of “repackaging” medication and selling it out of a doctor’s office. As discussed in previous law updates, the 2011 amendments to the Act had this tiny provision snuck into the legislation that was unassuming and innocuous, however it ended up potentially costing Illinois business millions of dollars. The provision has at long last be modified.

Repackaging drugs is a process by which a pharmaceutical shop essentially comes in and sets up a dispensary in a doctor’s office. They will take 10 cent medication, put it in a new bag, and slap a 75 cent price tag on it, then have the doctors hand out the medication at patient visits. Meanwhile, the outside vendor will issue charges to the payor without complicating the doctor’s practice. It is a clear price gouge, but unfortunately the practice was written into law by unwitting or uncaring politicians.

The proposed rules were published in the Aug. 17 issue of the Illinois Register, and according to the IWCC website, they took effect as of November 20, 2012. The amendment that took effect reads as follows:

If a prescription has been repackaged, the Average Wholesale Price used to determine the maximum reimbursement shall be the Average Wholesale Price for the underlying drug product, as identified by its National Drug Code from the original labeler.

What this does is essentially eliminate the increase in price that could have been created by the repackaging process. We applaud our legislators and the Commission for recognizing a problem, and moving rapidly to resolve it in a very reasonable manner.

Per the IWCC website notification, the final text of the rule will be published in the December 7, 2012 edition of the Illinois Register. This article was researched and written by, Arik D. Hetue, J. D. who can be reached for question or comment at ahetue@keefe-law.com.

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Synopsis: Although Plaintiff may have felt “robbed” of her right to sue her employer for civil damages, the Appellate Court correctly followed the exclusive remedy provision in the Workers’ Compensation Act and affirmed the summary dismissal of the Circuit Court.

Editor’s Comment: In Glasgow v. Associated Banc-Corp, 2012 IL App (2d) 111303 (November 20, 2012) Plaintiff, a bank teller, filed a personal injury suit against her employer for physical and psychological injuries sustained during armed bank robbery. Specifically, Plaintiff alleged her employer/defendants “knowingly, willfully, [and] purposely failed, with obvious intent and outrageous conduct, [to] provide adequate bank security to deter and/or prevent the robbery.” Plaintiff’s complaint alleged the robbery was not accidental, but that, because of Defendants’ failure to implement increased security measures to deter robberies, there was a “direct invite” to rob. Plaintiff sought punitive damages against Defendants for their “outrageous conduct”.

Aside from the obvious strain of logic in this complaint, Plaintiff also pursued and was provided benefits under the Workers’ Compensation Act for her injuries. Her election of workers’ compensation benefits was but one of the reasons the Appellate Court continued to deny her prayer for relief in this separate civil action. The Court cited the exclusive remedy provision in Section 5(a) of the Act, explaining that “no common law or statutory right to recover damages from the employer for injury or death sustained by any employee while engaged in his line of duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to anyone wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.” 820 ILCS 305/5(a) (West 2008).

While the Court made clear intentional acts of an employer to harm an employee are not immune from civil suit, “intentional inaction” by an employer is not the type of intent which could give rise to an exception to the exclusive workers’ compensation remedy. Therefore, the lack of adequate security at the bank, even if proven, is insufficient to prove intent to harm the employee. Further, once an employee has collected compensation on the basis that his or her injuries were compensable under the Act, the employee cannot then allege that those injuries fall outside the Act’s provisions (Court cited Collier v. Wagner Castings Co., 81 Ill. 2d 229, 241 (1980). Accordingly, the Court concluded, once Plaintiff applied for and accepted workers’ compensation benefits, she was barred from pursuing this intentional-tort action against Defendants.

We feel the Court correctly applied the law and properly drawn the boundaries of any potential civil action by an employee after a work injury. Just as a claimant’s negligence shall not bar their right to workers’ compensation benefits, an employer’s negligence shall not permit a double recovery under both the Workers’ Compensation Act and civil recovery. This theory of “intentional negligence” formulated by Plaintiff was correctly identified as legal sophistry and summarily dismissed accordingly.

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.

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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.

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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.

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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.

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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.