1-29-13; Understanding Subro/Third Party Practice, Part I; "Offshoring" TPA and UR Services Bulletin Clarified, Sort Of; Izzy Bernstein Has Another Appellate Ruling Issue After Passing and Much More
/Synopsis: Understanding Subrogation and/or Third-Party Practice in Workers’ Comp Claims Handling, Part I of a two-part series.
Editor’s comment: Here are four tough IL WC test questions:
1. Can an injured worker sue their employer in civil court for their work-related injuries?
2. Can an injured worker sue someone else, an individual or another company for their work-related injuries?
3. Can an injured worker sue their physician or other healthcare giver for malpractice following a compensable accident at work?
4. Can an employer sue someone who negligently injures their worker and causes the employer to have to pay WC benefits to a worker?
The simple answer to all four questions is yes, sort of. Here are the answers:
1. An injured worker cannot sue their employer in civil court for anything other than intentional injuries.
a. If an employer hires a bouncer to beat a worker up and they beat the worker up, the worker can sue their employer for such injuries.
b. The worker can’t sue for work-related injuries as the result of an employer’s negligent or arguably reckless actions in the workplace; they are limited to the workers’ comp system only for medical care, lost time and permanency/impairment.
2. An injured worker can and may sue anyone else, not related to their employer for work-related injuries—this may come in the framework of a product liability or motor vehicle claim. It might also be a slip/fall situation.
3. An injured worker who is the subject of medical malpractice by a hospital, physician or other health-care provider who suffers additional lost time, medical bills or permanency/impairment following their work injuries can sue that health-care giver for damages.
4. Finally, an employer who pays WC benefits on behalf of a worker can bring a claim for the injuries suffered by their worker in the worker’s name or in their own name if they closely follow the rules and Act.
In both workers’ comp claims and personal injury actions, one aspect of “damages” is lost wages and medical bills—in WC parlance, we call that money “benefits.” Remember the employer of the injured worker is required by law to pay TTD to replace lost wages along with reasonable, necessary and related medical bills. When an employer has to make such payments for injuries caused to their innocent worker, the employer arguably “shares” the damages and, if the employee recovers from the third party causing injury either via settlement or trial, the employer should get their money back. The legal phenomenon of an employer getting money back as a portion of the damages from a civil claim brought by an injured worker is called “subrogation recovery.” The IL WC Act and parallel legislation in other states does this by creating workers' compensation “liens” on the civil actions for personal injuries.
Two caveats--first, the rules and statutory interpretations constantly change in this area and you should always check for an updated picture of any complex issue. Second, few legal and claims professionals truly understand subrogation recovery--be certain you are getting accurate and updated advice.
For a general concept to utilize in understanding subrogation recovery of workers' compensation liens, begin with the idea WC claims handlers are paying benefits for a personal injury. If the injured worker can sue anyone else to recover such benefits, their claim is “subject to” or subrogated to your claim to recover the WC benefits you have paid. This simple concept of the third party claim being “subject to” your claim underpins almost all aspects of subrogation recovery.
There is one other critical factor you must be aware of--even if the employee doesn't bring a third party claim, in Illinois (and in most states), a defense attorney actually can bring the claim on behalf of the employer or insurance carrier. The rules in Illinois allow defense counsel to bring a third party action in the name of the employer or employee to recover benefits paid in the last three months of the applicable statute of limitations.
The problem which most workers' compensation professionals have with this second aspect of subrogation recovery is we are defense-minded and do not typically view claims from a plaintiff perspective. In recovering a workers' comp lien through a direct claim, you can proceed in both a litigated and nonlitigated fashion--you can actually call the carrier, advise them of the claim, provide documentation and seek a settlement of all or part of your claim. Like a plaintiff attorney making a claim, documentation is critical--but usually you have documentation at hand, it's your claim file. It's also important to be creative in seeking potentially culpable parties and theories of recovery. Remember, we told you that you have to think like a plaintiff.
Definitions in WC Subrogation
However, we digress. Let's go back to an overall view of third party practice and subrogation recovery of workers' compensation liens. A few definitions might be helpful:
a. Third party action
For even a veteran workers' comp professional, this term is a real confuser. There really are three different species of 'third party' claims:
i. There is the action by the injured employee against anyone not his/her employer--the other tortfeasor (defendant) is the 'third' party.
ii. There is the direct action by the employer to institute a claim with or without the employee's participation to recover benefits paid. This is similar to the first claim listed above.
iii. There is the action by the third-party tortfeasor/defendant in the above claim to implead or cross claim against the employer for “contribution.” The goal of a contribution action is to fully or partially defeat their WC lien claim. This is also called a third party claim or an 'action in contribution' or 'action over.' It is a third party claim in the sense the employer may be brought into the claim long after it has begun.
b. Third party Defendant
In definitions 1a and 1b above, the “third-party” is anyone that can be sued to recover for the personal injuries to the employee during work. Remember, it can include both doctors (or related medical personnel) or lawyers who participate in the claim following the initial injury. You as the employer can participate or sue for medical malpractice which affects your injured employee's claim. In definition three above, it is the employer being sued to defeat their lien.
c. Kotecki v. Cyclops Welding/Tort Reform Act of 1995
The appellate decision in Kotecki and the statutory imprimatur in the 1995 Tort Reform Act combine to protect the employer from liability in excess of their workers' compensation payments. In the past and prior to the Kotecki ruling, as a result of the 'action over' against the employer, the employer might potentially have to contribute more to a civil verdict than amounts paid for workers' compensation recovery. In some claims, this concept essentially defeated the limits for benefits in the IL Workers' Compensation Act.
d. Direct action by the employee against the employer
Generally speaking, this is not possible. In cases where the employee claims the employer intentionally injured him/her, the employee (in Illinois) can seek both direct tort recovery against the employer and also seek workers' compensation benefits. In all other instances, acceptance of workers' compensation benefits by the employee should bar the direct action against the employer for personal injuries.
e. Written notice of lien
Correspondence to plaintiff and his/her attorney formally notifying them you are seeking lien recovery. Such correspondence should also be directed to all defendants of which you are aware. Guidelines for the use of such correspondence will be outlined below.
f. Written acknowledgment of lien
Return correspondence from plaintiff or his/her attorney or a defendant acknowledging your written notice and indicating a willingness to protect your lien as part of resolution of the claim.
g. Written notice of suit
Section 5 of the Illinois Workers’ Compensation Act requires written notice by personal service or registered mail to the employer of the fact of filing a civil suit and the court where it is filed with proof of filing in the action.
h. Petition to intervene
A device by which the employer can enter a pending action brought by the employee for personal injuries. It makes the employer a party entitled to notice of all proceedings and enables them to be a party to any settlement discussions. The employer is typically not allowed to participate in the trial against the lead defendants. The employer will be able to defend itself in the contribution action but this is different from a petition to intervene. The employer can institute the petition to intervene as a matter of statutory right. There is no need to be sued in contribution to intervene.
i. Workers’ compensation lien
Any benefits paid to an injured employee as a result of a work accident comprise the lien. In Illinois, the lien is a mandatory right with regard to recovery--a judge has to award the whole lien if you protect your claim. We feel workers' compensation liens, as creatures of statute, are mandatory and if you adequately protect your lien claim, the judge has to adjudicate the lien in the full amount you are entitled to.
j. 75% “rule”
In Illinois, if a petitioner is represented by counsel and files suit to recover against a third party, two things are deducted from lien recovery. First, you lose 25% of the total lien which is paid to petitioner's/plaintiff's counsel for their efforts in recovering your lien. Obviously, since your employee's counsel makes every conceivable effort to cut, diminish or otherwise defeat the lien to maximize their recovery, this seems to be unfair but it is the law. It is also patently unfair that you have to pay such fees when you also need to hire your own counsel, intervene and otherwise protect your interests.
k. Pro rata share of costs
You also lose from the lien a pro rata share of costs. If this sounds confusing, it probably is and many parties forget this matter. If you recover $10,000 as the total workers' compensation payment as your lien and your employee recovers $100,000 with an expenditure of $5,000 in court costs, you will actually get $7,500 less $500 as 1/20 is the pro rata share of the court costs (10,000 times 1/20 equals $500). Your $10,000 lien will be properly adjudicated by the trial court at $7,000.
l. Gross lien vs. net lien
If you understand the two concepts above, this one's easy. Your gross lien is the total work comp benefits paid. Your net lien is the amount you can recover after deducting the 25% attorney fee and a pro rata share of costs.
m. ‘Dollar’ WC lump sum settlement contracts
This is a settlement at the IL Workers’ Compensation Commission where full or partial lien waiver occurs and no additional benefits will be paid. The focus is to close all liability for work comp benefits when petitioner is settling his third party claim.
More next week in Part II. Please reply with any questions or concerns. Please post your thoughts and comments on our award-winning blog.
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Synopsis: New and Improved “Offshoring” Memo for TPA’s and UR.
Editor’s comment: As we recently advised, in December 2012, Andrew Boron, the Director of the IL Department of Insurance issued a bulletin indicating they were going to start requiring all TPA’s and UR be provided within the State of Illinois. We considered that mildly unusual and outside the parameters of the Act cited by the Director.
We received a later email from another source that was sent to a UR provider. Basically, that email indicated the initial December 20, 2012 bulletin was limited to Group Health Care insurers only. The clarification in the email said it wasn’t directed at workers’ comp claims. The problem we had with that approach is no one truly knows when medical care transitions from group health coverage to workers’ comp coverage. It is also arguably possible for a claim to start as a WC claim, drop back to group health and then revert to WC status.
On January 18, 2013, Director Boron issued a new and improved bulletin. It says:
We basically accept this as an IL requirement that TPA’s and UR have to operate out of offices in the United States. As we indicated the first time we saw this concept, we don’t agree that is what the law says. That said, it is hard to object to such work being in our country and not in some foreign company that might have lower medical or claims standards. We have forwarded an email to the source of the earlier person who answered the inquiry about the December 20, 2012 bulletin to see if they will clarify whether this new bulletin relates to both group health and WC. We have not received any reply.
Either way, it is our impression that all TPA’s and UR providers who are going to provide such services to Illinois employers are going to have to do so from the confines of an office located in the United States. If you don’t do so, the IL Department of Insurance may pull your ticket. If they do, you may then have to sue to block enforcement of the memo above.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: Legal Malpractice Action against Izzy Bernstein, Deceased Allowed to Move Forward and Not Barred by Res Judicata.
Editor’s comment: Attorney Isadore M. Bernstein was something of a legend in IL WC circles. He was a quiet, successful and hard-working Plaintiff/Petitioner attorney who had a walk-up office on Central Avenue just south of Midway Airport in Chicago for years. He was first licensed in Illinois the month before the Japanese Navy attacked our base at Pearl Harbor on December 7, 1941. From our research Attorney Bernstein passed a couple of years ago but his name lives on in Illinois law—he has had two major appellate rulings issue after his passing!
The Illinois Supreme Court just issued their ruling in Hernandez v. Pritikin that affirmed the ruling of the First District Appellate Court on the issue of res judicata or what is also called issue preclusion. In Hernandez, Plaintiff developed physical problems in the early 1990s, and was ultimately diagnosed with Parkinson’s disease. Defendants were attorneys associated with Mr. Bernstein that represented Plaintiff from early 1999 to late 2002 and pursued a workers’ compensation claim on his behalf. In 2004, now represented by a new law firm, Plaintiff sued various companies allegedly involved in the manufacture and sale of various chemicals he claimed had contributed to his work-related exposure and subsequent occupational disease. When that action was dismissed as time-barred, in 2005, Plaintiff sued his former lawyers for legal malpractice.
Plaintiff’s original complaint alleged Defendants failed to advise him of actual or potential claims against persons or entities other than his employer, failed to file such claims and/or failed to advise him to hire other counsel to pursue such claims. Defendants moved to dismiss, arguing the statute of limitations had run on the products liability claims before they were hired. At the hearing on the motion to dismiss, the trial judge suggested the statute of limitations had begun running on the products claim liability claim by 1995 at the latest, years before Defendants were hired. But when the written dismissal order was granted, it was drafted to say the motion to dismiss was “granted” and Plaintiff had 30 days to amend the complaint. There was no mention in the order of “with prejudice,” nor any suggestion Plaintiff was barred from pursuing any particular facts.
The amended complaint restated all the allegations of negligence relating to failure to advise/file the products liability action, but added further allegations Defendants should have advised the plaintiff to sue his first law firm, who represented Plaintiff on a Social Security disability claim. Plaintiff also added factual allegations apparently intended to justify application of the discovery rule to lengthen the statute of limitations on the products liability claim.
Defendants moved to dismiss again, arguing if the SOL started running on the products claim by 1995 at the latest, then it followed any claim against the first attorneys was time-barred before Defendants were hired. After the hearing on a second motion to dismiss, the written order was more cryptic and indicated Defendant’s motion to dismiss the amended complaint was denied. Again, nothing was said about any particular set of facts being in the case or out of it. Later, Plaintiffs voluntarily dismissed but subsequently refiled the action. At that time, the Circuit Court dismissed it on res judicata grounds.
The IL Appellate Court reversed, holding both actions raised a single claim for legal negligence. The successive allegations, first for failure to advise about the products liability claims and later for failure to sue the first law firm were merely differing facts in support of that claim. Accordingly, the order dismissing the allegations centered on the products liability claims did not finally resolve a “claim” for res judicata purposes.
The IL Supreme Court affirmed the Appellate Court on different grounds. Although the original trial judge had expressed a view about when the statute of limitations began running on the products liability claim, the critical fact was what the written order actually said and didn’t say. The orders indicate Defendant had the right to amend the complaint. There was no suggestion further allegations on the products liability claims were barred. Therefore, it necessarily followed the order finally decided nothing, and res judicata couldn’t apply.
While we aren’t sure of the facts of this claim, it is now eight years old, having been first filed in 2005. It is difficult to believe the matter has value significant enough to justify eight years of litigation costs, fees and appellate battling. We appreciate your thoughts and comments.
1-23-13; The Least An Adjuster/Attorney/Arbitrator Needs to Know about Medical Stuff in IL WC; Shawn Biery's IL WC Rate Sheet Updated; New WC Reforms from Dwight Kay and much more
/Synopsis: The Least IL WC Claims Adjusters/Attorneys/Arbitrators Need to Know About Common Medical Conditions in the WC Arena.
Editor’s comment: Here are our thoughts and information from your editor and his fellow lawyer and sister, Ellen Keefe-Garner who is a brilliant trial lawyer and also a registered nurse in IL and MI. We tell our law students to always refer towww.wikipedia.org or www.youtube.com for simple follow-up information/research to what we are providing below.
Head: The main IL workers’ comp concerns in relation to head injuries are skull or facial bone fractures. For a diagnosed fracture of a non-facial skull bone, there is a minimum of six weeks of PPD due. For a fracture of most facial bones, there is a 2-week minimum. It would be a rare Illinois WC claim where the minimum statutory weekly value would be all that an injured worker would be awarded for a skull fracture.
In dealing with instances of severe closed head/brain trauma, we recommend adjusters/attorneys/arbitrators consider getting the injured worker to either the Rehabilitation Institute of Chicago www.ric.org or QLI Omaha www.qliomaha.com for short or long-term care. Both institutions are amazing and at the top of the field in this part of our planet.
Neck/Back/Spine: The neck is the top of our spinal column which is the primarily bony structure that protects our spinal cord. The spinal cord is our bodies’ information/electric superhighway. The four spinal “sections” are called cervical, thoracic, lumbar and sacral. The human spinal column is made up of 33 bones - 7 vertebrae in the cervical region or C1-7, 12 in the thoracic region or T1-12, 5 (usually) in the lumbar region or L-1-5, 5 in the sacral region or S1-5 and 4 in the coccygeal region that are fused into one bone for adults.
The bones are separated by “intervertebral discs” or tough, fibrous material that our bodies use to keep the bones from touching/grinding on each other. The problem we face is overstressing or traumatizing an intervertebral disc may cause it to bulge or rupture and put pressure on the nerves that swing in and out of this superstructure. When they bulge, the docs usually give patients anti-inflammatories and painkillers to keep us from whining too much. When the discs rupture, spine docs will sometimes treat them with drugs but more often may go into our bodies and clean out the disc material, as it will compress your nerves. They may “fuse” the spine where the disc ruptured by taking bone from other parts of your body, usually your hip and grafting it into place where the disc used to be. This fusion procedure may include hardware, such as plates and screws to stabilize the newly placed bone grafts.
For adjusters/attorneys/arbitrators, the important or “most-seen” sections are the cervical and the lumbar spine. Those are the action areas of our bodies—if you suffer “whiplash” or otherwise injury your cervical spine the joint most commonly affected and operated on is C6-7. For lumbar injuries, the joint most commonly problematic is the L5-S1 which is the arched fulcrum upon which the spinal column rests.
Past IL WC PPD awards for bulging discs range from 0-15% LOU of the BAW or body as a whole. Spinal surgeries that aren’t fusions, like a laminectomy/discectomy traditionally resulted in PPD awards in a range from 12.5%-25% LOU of the BAW. Fusions are considered complex surgeries with an expectation of permanent restrictions. The IL WC awards for fusion surgeries run from 20-35% BAW. All of the traditional values may be impacted by implementation of impairment ratings for IL WC claims occurring on and after September 1, 2011.
Shoulder: The shoulder is your arm’s “universal joint” with lots of range of motion in lots of directions. The shoulder is a ball and socket joint held into place with a tough membrane called our “rotator cuff.” The rotator cuff is a group of four tendons that stabilize and basically comprise the shoulder joint. Each of these tendons attaches to a muscle that moves the shoulder and the biggest arm bone, your humerus in a specific direction. Rotator cuffs can tear—when that happens, doctors will go back in an clean out the debris and sew the tear up. This can leave an injured worker with less range of motion and sometimes limited strength, particularly above the waist. There are several different versions of surgical shoulder repairs—most of the time, they will result in traditional values at about 5-15% BAW. Remember, in the Forest Preserve District of Will County ruling, after about 100 years of the shoulder being awarded PPD benefits based upon LOU of the arm, our resolute Appellate Court, Workers’ Compensation Division found a dictionary and then magically changed valuation for an Illinois injured worker’s shoulder problems to compensation for loss of use of body as a whole.
Elbow: The elbow is the simple joint in the middle of your arm. The most common WC elbow surgery is cubital tunnel repair or “cleaning” we consider to be more common in our state than any other place on the globe.
Wrist: The wrist is the joint between your forearm and hand. For reasons lost in time and IL workers’ comp tradition, injuries to the wrist are usually compensated as LOU of the hand and not the arm; despite the fact most wrist injuries involve arm bones or tissue. You may occasionally see a condition called a ganglion cyst—these are almost never traumatic or work-related in origin.
Hip: Like the shoulder, this is your leg’s universal joint. It is also a ball and socket joint with a tough, fibrous membrane that holds the biggest bone in your body, your femur in place. We don’t see as many hip tears as we see rotator cuff tears in the shoulder. We are starting to see more and more hip arthroplasties or hip replacement surgeries. In such a procedure, the surgeons enter, cut out the bones above and below the joint and put in a plastic/metal thing that takes over the place of your creaky old bones. We have seen awards in the range of 40-60% LOU leg for such work.
Knee: The knee is an oft-abused but simpler joint between your femur and your tibia bone that is in the bottom of your leg. Basically there is a very limited range of motion—this joint is a limited hinge. The most common surgical issues are menisectomies and ACL repairs. The meniscus is tissue that goes across the knee and is designed to keep your femur and tibial plateau from coming into bone-on-bone contact. Orthopedic surgeons for decades have been trimming out damaged and cut tissue which leaves a small area of such bone-on-bone grinding. If they take enough out, you may eventually need knee arthroplasty or joint replacement surgery. Traditional menisectomy PPD awards were 12.5% to 25% LOU of the leg. Like hip arthroplasties, knee joint replacement is also 40-60% LOU leg.
Your ACL is a ligamentous membrane that is in a “cross” or x-configuration and keeps your knee in line. If that is ruptured, docs need to harvest similar tissue from somewhere else in your body and reattach it. The values for such complex surgeries are from 20-35% LOU leg.
Ankle: The ankle is the joint between your lower leg and foot. The most common injuries are ATF or ankle ruptures. Like wrist injuries, these are treated as LOU foot and not leg.
AMPUTATION LOSSES:
· Amputation = bone loss.
· Always pay on statutory losses immediately or the minute you are aware of the extent of bone loss.
· Failure to pay exposes employer to 50% penalties and 20% fees—why wait?
· Attorneys’ fees capped at $100 for accepted statutory loss that you pay—amputation, skull/vertebral fracture
· Illinois has very high minimum and maximum amputation rates—check Shawn Biery’s current rate chart
IL WC PPD RULES OF THUMB:
· Simple fracture/simple surgery traditionally utilized an informal 15-25% rule;
· Simple strains w/o fracture or surgery shouldn’t rise to 15%;
· For injuries involving more than simple fractures/surgery, go to www.qdex.com or call/email KCB&A;
· PLEASE NOTE physician’s AMA disability ratings “shall be” considered by the IWCC for injuries after September 1, 2011. If you don’t bring a rating, they can’t consider it!
We appreciate your thoughts and comments. If you want our KCB&A Rules of Thumb, send a reply. If you want our list of recommended vendors/experts, send a reply.
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Synopsis: Illinois WC Rates Jump Again and Your PPD Reserves Need Retroactive Updating. Send a Reply to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!
Editor’s comment: We remain chagrined to continue to watch the endless spiral of IL WC rates. Starting in the 1980’s, the IL WC Act provides a formula that effectively insures no matter how poor the IL economy is doing, our WC rates keep climbing.
We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $712.55. When it was published, this rate changed retroactively from July 1, 2012 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now, your reserves are wrong. If you have a claim with a date of loss after July 2012 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. If this isn’t clear, send a reply.
The current TTD weekly maximum is $1,320.03. A worker has to make over $1,980.04 per week or $102,962.34 per year to hit the new IL WC maximum TTD rate. Do such folks truly need full TTD value? Does any state in the United States have a TTD maximum that high?
The new IL WC minimum death benefit is 25 years of compensation or $495.01 per week x 52 weeks in a year x 25 years or$643,513.00! The new maximum IL WC death benefit is $1,320.03 times 52 weeks times 25 years or a lofty $1,716,039.00 plus burial benefits of $8K.
The best way to make sense of all of this is to get Shawn Biery’s awesome and easy-to-understand IL WC Rate Sheet. If you want it, simply reply and we will send it along.
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Synopsis: New IL WC Reform Legislation proposed by Dwight Kay, R-112th Dist.
Editor’s comment: While we don’t think they will pass, here are new bills/reform legislation our plucky, pro-business rep has floated out there in Springfield. The comments are the opinions of your editor and don’t reflect Mr. Kay’s thoughts.
HB0114—At present, a ruling on a IL WC claim by state workers ends at the IWCC. This creates the weird situation in which a WC claim by a state worker goes before other state workers--the IL Arbitrator and Commission panel. Many folks feel it has a less-than-objective perspective. The same situation was present when IWCC Arbitrators were having their personal WC claims handled by other IWCC Arbitrators. The 2011 Amendments created “independent” arbitrators to hear such claims.
The IL State agency that currently manages WC claims, Central Management Services has crabbed about being limited to hearings/appeals only at the IWCC for years and they wanted what they felt were poor rulings from the IWCC to be appealable to the local circuit courts, so the matter would be brought to someone outside the IWCC. This legislation would then stop the appeal at the Circuit Court level so claims would not then move to further appeals before the liberal and pro-labor IL Appellate Court, Workers’ Comp Division.
HB0115—Medical bills and TTD for state workers would be charged to the budgets of their respective state agency. We thought this was already enacted in recent Senate bill. We feel any T&P benefits paid to a state worker due to the respective state agencies’ almost criminal refusal to accommodate them, creating the fantasy of an “odd-lot” total and permanent claim for hundreds of state workers, should also be charged to the respective agencies.
Someday, we hope the media or the Governor or someone in the federal government should investigate and stop the “odd-lot” thing for all state workers. Every single one of them are, by definition, ghost-payrollers. If you don’t understand why this is a secret WC scandal in our state, send a reply.
HB0107—This is the “major contributing cause” requirement. The same bill was floated out in the legislature last April and didn’t get much traction.
HB0109—This language would require a signed, written, verified report of injury within 45 days of onset. That language would be a very sweeping change to WC law and practice in IL. The language would potentially reverse the Durand ruling where a woman knew of a condition and didn’t report it for four years. In Durand, the IL Supreme Court said they couldn’t “punish” her for failing to report a known condition while “working in pain” for the four-year period. We have always wondered what “punish” has to do with following the very clear rules and why our highest court didn’t feel they were “punishing” the employer by making them pay benefits not due.
HB0112—This language would limit CTS claims to impairment ratings only if the worker went back to regular work. In large part, we feel such legislation would completely eviscerate any CTS claim because the impairment ratings for CTS are almost always zero. Try to imagine a state where the “tunnels of Illinois” were closed in the WC arena and the number of CTS claims would again mirror the rest of the country. Another concern is the same concept should apply to cubital tunnel syndrome.
HB0113—This legislation mildly changes the intoxication defense so the employee has to show intoxication was not the proximate cause of the injury where the Act currently says either sole proximate cause or just proximate cause. We are not sure how this would truly modify what we are dealing with in the battle over the intoxication defense.
HB0111—This proposed law would effectively create a “limit” on body as a whole awards of 500 weeks. Business reps have wanted “credit” for prior BAW awards so if someone got 30% BAW, they would have to show 50% loss to be entitled to a 20% recovery. From our view, this legislation doesn’t take that approach—it simply caps all lifetime BAW awards at 500 weeks. We feel common sense should make this law unnecessary; Duh??--how can the IWCC find someone to be 145% disabled while they are on the same planet? The problem Rep. Kay is addressing is the sometimes missing “common sense” thing in this WC system.
We appreciate your thoughts and comments. Please post them on our award-winning blog.