11-26-13; Repetitive Trauma Ruling Trend Reported by John Campbell, Jr.; "Traveling Employee" to be Orally Argued Wednesday; Caveat Emptor when Approving IL WC Care and more

Synopsis: Solid Trend Continues at the IL WC Commission in Repetitive Trauma Claims. Analysis by John P. Campbell, Jr., J.D.

Editor’s Comment: We welcome this Commission trend, not simply due to a particular denial of benefits, but rather, due to the fact they are more carefully analyzing facts in evidence and properly placing the burden of proof on workers who alleged an amorphous “injury” simply due to the fact that they work or have jobs. InGilio v. Unisource Worldwide, Inc., 21 ILWCC 116, the Illinois Workers’ Compensation Commission panel reversed an arbitrator’s award of benefits to a 43 year old truck driver who alleged a repetitive trauma “injury” to his back. Petitioner worked as an over-the-road driver and performed typical tasks involving hooking and unhooking trailers, driving and loading. There was no “accident” described, Petitioner simply claimed an increase in back pain due to his general job duties. His treating doctor diagnosed two herniated discs and also “related the condition to work.” Of note, Petitioner claimed he performed a substantial amount of loading and unloading of trailers which contributed to his worsened condition. This assertion was rebutted by the insured who offered testimony from the operations manager and supervisor to establish far less loading duties were performed by Petitioner than claimed.

In reversing the Arbitrator, the IL WC Commission panel relied more heavily on the testimony from the company witnesses who asserted Petitioner engaged in very limited loading duties, and only on a voluntary basis. While Petitioner alleged a more substantial level of loading work, he offered no corroborating evidence or witnesses to support his assertions. Also noteworthy was the fact Petitioner had a clear prior history of back pain before any “injury” was alleged and Petitioner’s own treating doctor testified his spine was “age appropriate” and the disc problems could possibly be from the natural aging process. It is unclear whether we would have seen a reversal had the treating doctor offered stronger opinions on causal connection.

Nevertheless, this decision exemplifies a continued trend we have seen from the three Commission Panels who truly challenge claimants to prove their case by the required “preponderance of the evidence” standard, particularly when causal connection is asserted under the “repetitive trauma” variety. Regardless of outcome, we applaud the careful analysis by the Commission Panel and adherence to the evidentiary standard. We hope the trend continues.

KCB&A has a complimentary IL WC training presentation for claim adjusters and risk managers on how to handle and best defend such “repetitive working” claims, particularly in setting up IME opinions. As part of the IME process, we caution all defense system participants to avoid calling such claims “accidents” or “injuries” when claimant doesn’t allege any safety failure, trauma or slip/trip/fall. Please note most insurance carriers/TPA’s have form IME letters that ask all the wrong questions and can cost your accounts millions of dollars. We prefer to call this sort of claim “onset of pain” and insure the IME expert has a solid picture of the precise work performed. If you are interested in a complimentary lunch and learn with such IME background letter training, please send a reply.

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

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Synopsis: The “Traveling Employee” Claim Before the IL Supreme Court Will Be Argued in Two Days!

Editor’s comment: The Illinois Supreme Court website indicates:

Call Wednesday, September 18, 2013 - 9:30 A.M.

Registration time for first four oral cases

No later than 9:15 A.M.

No. 115728 - The Venture-Newberg Perini Stone and Webster, appellant, v. Illinois Workers' Compensation Commission et al. (Ronald Daugherty, appellee).

Appeal, Appellate Court, Fourth District.

This means top-notch defense attorney Ted Powers of the Rusin, Maciorowski firm will argue before the IL Supreme Court to seek reversal of this lower court ruling. For all of our readers, this may be the largest change in WC coverage in any state in the U.S. We are certain IL WC costs will skyrocket if it isn’t overturned. What Plaintiff/Petitioner is seeking is to have millions of IL workers designated as “traveling employees” and covered for personal and non-work-related risks/injuries/illnesses. Please note “traveling” has little to nothing to do with “traveling employee” status.

A traveling employee or TE is loosely defined in the lower court rulings as:

·         Someone that doesn’t work on the “premises of their employer”—that new term is even more loosely described as a worker that leaves a central worksite or office to work elsewhere—this will encompass any and all staffing workers;

·         Someone who works at more than one “premises of their employer” so if the employer has two or more central workplaces and the employee travels between them, he/she becomes a TE;

·         Someone whose work involves travel as an “essential part of their job.” We assume this means all workers in the entire transportation industry along with police/fire/attorneys/accountants and lots of other folks.

If a worker can fit into the TE classification from one of the broad definitions above, they are covered “portal-to-portal” or from the moment they leave their home until they return for admittedly personal and non-work-related risks. This means IL employers will owe full IL WC benefits for thousands of traffic accidents that have nothing to do with work. All parking lot falls and actually all fall-downs will be covered for TE’s. If a worker goes to watch a ball game on the way home and gets hit by a baseball, the employer will be on the hook for medical bills, lost time and permanency. We have no idea how this new concept will affect “repetitive working” claims, reported by John Campbellabove, to the extent TE’s may soon tack on their off-work activities to the conditions of life causing needed medical care. On a similar note, we think thousands of illnesses could be covered.

One of the worst aspects of this unprecedented legal concept was pointed out by an employer that has operations in IN and IL—she made it clear she would move as many workers as she can to the other state, forcing her workers to drive to IL to perform services. Her point is she is okay with paying WC benefits for such workers who are traveling across IL for work—she is not okay with having to pay for personal risks in coming to and going home from work as Illinois might do. Other states don’t require WC benefits be paid for purely personal risks, like our state.

We will have someone present at orals to report. A computer file allowing the public to listen to orals will be posted on the IL Courts website—we will send you the link when it is posted. We wish attorney Ted Powers all the best in seeking reversal. We hope and pray our Supreme Court isn’t going to dramatically rewrite the IL WC/OD Acts to provide this expanded coverage so as to cost our state jobs and our remaining employers billions of dollars in increased premiums and reserves. As this is going forward, the legislative gurus at the Illinois State Chamber of Commerce-Employers Law Council are working to find a legislative solution—we strongly support them and hope our readers will also. For info about the State Chamber and how they are working for Illinois business in the WC arena, go to their website at www.ilchamber.org.

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

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Synopsis: Caveat Emptor Recommended for IL WC Adjusters in Authorizing Medical Care/Procedures with IL Hyper-Aggressive Treaters/Billers.

Editor’s comment: One of our readers is a very solid defense attorney in the west suburbs of Chicago. He wanted to provide a warning to all claims adjusters handling IL WC claims. He advised he is currently defending litigation in Cook County brought by a medical center that is very, very aggressive on providing care and billing every last penny they can possibly collect. The litigation is against an insured for an alleged “underpayment” of the surgical center’s bill. The bill went through processing and was paid pursuant to the IL WC Medical Fee Schedule. Despite that fact, the surgical center filed a Circuit Court complaint alleging promissory estoppel and further complaining the bill was not paid “properly.”

An initial motion to dismiss based upon the IL WC Commission having exclusive jurisdiction was denied. The Circuit Court surprisingly found the actions by the WC adjuster to approve/certify the procedure impliedly promised to pay the claimed billed amount thereby somehow creating a “contract.” Whatever they rule may all have to be appealed to the higher courts—if that happens, this is all going to cost these insurance carriers/TPA’s and employers significant money. The defense attorney who has dealt with this nutty litigation advised there are two dozen similar cases pending in Cook County alone and possibly lots more to follow.

In lieu of the “new” outbreak of civil litigation by these medical groups over claimed unpaid or underpaid WC medical bills we join with counsel to recommend you consider implementing a new procedure when certifying any medical care or procedure:

Insurance Company, TPA or Self-Insured Company on behalf of the employer certifies/authorizes this [insert name/description of approved care] procedure pursuant to Section 8a of the IL WC Act and further agrees to pay reasonable and related charges subject to Section 8.2 of the Act (fee schedule), UR review or any other contractual agreement. The provider herein agrees payment of the charges pursuant to the IL WC Medical Fee Schedule, UR or contractual agreement represents payment in full. Any dispute about payment is to be resolved solely by the IL Workers’ Compensation Commission.

In our view, forewarned is forearmed. This short paragraph may save you a little or a lot of litigation, depending on what sort of IL WC claims you are handling.

Please also note none of this might occur if you sign on to an IL WC PPP and your injured workers go into the network for care. We recommend you contact either HFN, Inc. or CorVel for their thoughts and ideas on this growing tool for IL employers to save millions on IL WC medical costs. We understand Procura Management, a subsidiary of Healthcare Solutions has been approved to provide a network by the Illinois Department of Insurance. This marks the sixth organization to be approved to provide such global network IL WC PPP services for you and your troops.

We thank the reader for his thoughts and ideas. Please send your thoughts and comments and we will relay to him.

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Synopsis: New Improvements/Developments at KCB&A. New Southern IL Law Office, New Defense Lawyer!!

Editor’s comment: As we continue to grow our southern IL defense practice, we have now opened a satellite office in St. Louis, MO. It will be managed by our law partner Jim Egan and his team to assist coverage across the lower half of our state. The new address is

Keefe, Campbell, Biery & Associates

7733 Forsythe Boulevard

11th Floor

St. Louis, MO 63105

Phone 855-322-6290

Fax: 855 322-9950

Website www.keefe-law.com.

The new lawyer is Dave Iammartino, J.D. who has substantial experience at the IWCC across our state. Dave has been licensed since 1996 and brings a strong defense focus to his new position. His phone numbers are office: 312-756-3717; cell 773-653-6202; diammartino@keefe-law.com.

11-26-13; Goodbye Doug Whitley, You Will Be Sorely Missed; Shawn Biery on New GL Settlement Law; Ellen Keefe-Garner about Work Fatality Stats and much more

Synopsis: Illinois Business to Lose Doug Whitley, Its Long-time Workers’ Compensation Legislative Guru and Guardian Angel. We thank him for his hard work, humor and intelligence and wish him all the best in his next venture.

Editor’s comment: We are truly going to miss the top leader for Illinois business in one of the gloomiest states to do business in the United States. Last week, Doug Whitley, president of the Illinois State Chamber of Commerce, announced he plans to retire in June 2014. Whitley, now 63, became president in September 2001 which had to be one of the odder months to start a job, as our nation was in the midst of recovering from one of the worst attacks on U.S. soil in our history.

During his great tenure, the State Chamber has stridently represented IL business interests including two sweeping workers’ compensation reforms. Doug and his team also helped to defeat a gross receipts tax. He founded and co-chaired the Transportation for Illinois Coalition which advocated infrastructure investment. Doug has fought for fiscal integrity in our always-bankrupt IL State government that just bought giant copper doors for the State Capitol but can’t timely pay billions in overdue government bills. Doug also worked to draft and support legislation to bring long-term solvency to Illinois impossibly underfunded government employee pension systems that borrows and pays more to retired government workers than it pays to active state workers.

Doug entered his position at the IL State Chamber during one of the more tumultuous times in our State’s sordid political history. When Doug got the position in 2001, former Governor George Ryan was under a cloud of indictments. George Ryan had 76 different staff members eventually convicted of crimes and was then convicted himself. Out of the ashes of George Ryan’s repugnant legacy rose Crooked Rod Blagojevich who falsely promised to “clean up Springfield” and was tried twice and convicted once and will be enjoying the cuisine in federal prison until at least 2024.

Few people remember Crooked Blago “sold” the Illinois Workers’ Compensation Commission to win his first gubernatorial primary in 2002. As we stroll down memory lane, you might remember Blago was in a tight three-way primary in 2002. He went to Southern IL and made a deal with the folks in Metro-East to get political support by promising control of the good ole Illinois “Industrial Commission” to those politicians. When the election was over, the Commission’s name was quietly and rapidly changed at the whim of the new administration to “Workers’ Compensation Commission.” IWCC Funding was switched from our state general revenue fund to a levy solely on IL Business—the Commission’s budget tripled and, in our view, remains very high right now. Lots of new Arbitrators, including many former Petitioner attorneys were appointed; awards went up, goofy pro-Petitioner legal theories abounded. IL WC premiums/costs went from 24th to 4th highest in about six years. The Commission’s own 2012 Annual Report indicates from 2006-2010, IL WC benefits grew over four times the rate of other states.

In the middle of all that craziness, Doug Whitley quietly, smoothly and strongly kept working for the interests of IL Business. Doug and his team toiled behind the scenes and out front of the public and legislature to make lots of needed and effective changes. Illinois WC has changed a lot and changed for the better under his quiet aegis. The defense team at Keefe, Campbell, Biery & Associates worked with him and his IL State Chamber Employer’s Law Council to provide training and news of WC trends and changes to IL WC law. KCB&A has provided IL WC training, consultation and webinars for IL State Chamber members for many years. If you are interested in such training, send a reply.

Doug Whitley worked to create and implement the 2005-6 Amendments to the IL WC Act that did have some effect in cutting costs. Much more important were the 2011 Amendments to the IL WC Act that brought:

      WC PPP’s to our state for the first time, cutting choice of medical care for companies smart enough to use the new networks;

      A significant cut to the Illinois Medical Fee Schedule, reducing medical reimbursements to 53% of billed amounts;

      Strengthened UR provisions, cutting overtreatment;

      For the first time, implemented Impairment Ratings to bring our generous permanency awards into line with other states;

      Strengthened WC Fraud provisions;

      Reinforced WC Alcohol-Drug Use defenses;

      Limited Wage Loss Differential Awards.

In the next nine months to the end of his tenure as President, we hope Doug Whitley will keep working to stop the wild and unprecedented expansion of coverage of the IL WC/OD Acts following the mildly misleading “Traveling Employee” court-created legal concept that provides generous IL WC/OD benefits for workers who aren’t on the clock or at work or even near work when injured or ill. Illinois now has two parallel systems for workers’ compensation and occupational disease and this new model is going to be very, very expensive for business and government. We don’t feel the “Traveling Employee” expansion to cover non-work-related injuries is sustainable—it is a cancer on IL business that is certain to drive whole industries out of our state, as these increased WC/OD costs land. If you aren’t sure how, send a reply.

Doug and his legislative team are uniquely positioned to let State Government, the City of Chicago and all Illinois governments understand how this crazy enlargement will triple or quadruple their WC costs and put greater pressure on budgets and will rapidly cause taxes to rise. We hope Doug Whitley gets the message out to all his members and keeps on doing the great work he has done for the last dozen years. From all the partners and associates at KCB&A, we thank him one more time. If you know anyone interested in taking over his position in the eye of the IL State Chamber hurricane, go to their website for more information at www.ilchamber.org.

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

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Synopsis: Forewarned is forearmed. IL GL/EPLI adjusters and risk managers need to exercise triple caution in “creating” and paying settlements in a  timely manner to avoid penalties and interest in Illinois. Analysis by Shawn R. Biery, J.D., M.S.C.C.

Editor’s comment: Governor Quinn signed a new law which takes effect January 1, 2014 which is designed to expedite payment of settlement funds to plaintiff attorneys and contains language which is going to lead to increased penalty issues for the uninformed and slow-to-pay adjusters, risk managers and defendants.

This law does not apply to typical IL WC settlements that have to be approved by the Arbitrators/Commissioners and have their own IWCC rules. It may apply to IL WC settlements that are intertwined with general liability settlements—if you aren’t sure, send a reply to sbiery@keefe-law.com and we will get you a rapid answer.

Public Act 98-548 creates a new "Part 23" of the Civil Practice Law in the Illinois Code of Civil Procedure which will be titled "Settlement of claims; payment" (735 ILCS 5/2-2301). This new law essentially amends the Code of Civil Procedure to create an enforcement mechanism for cases in which the parties agree to settle, but Defendant or its adjuster won’t comply with the agreement. It appears limited to cases seeking money damages involving personal injury, wrongful death, or tort action and will require a settling defendant to pay all sums due within 30 days of tender of all applicable documents required under this new section. It will also require a “settling defendant” to tender a release to the plaintiff within 14 days of written confirmation of the settlement. 

BE AWARE—this means if plaintiff attorney sends a confirmation agreeing to settlement in any written form (fax-email included), 14 days starts to run to send them the applicable documents and once those documents are sent, you have to have payments issued within 30 days of the tender of those documents. We are cautioning all of our clients and readers—if you discuss settlement in any fashion with opposing counsel and don’t reach agreement, you may want to consider sending an email or fax confirming you didn’t reach an agreement to cover you from OC unilaterally sending a confirmation of settlement letter and causing issues and litigation you won’t want.

There is one caveat for cases needing court approval, such as a settlement involving a minor or an estate--If the law requires court approval of a settlement, Plaintiff must tender to Defendant a copy of the court order approving the settlement.

If there is a known third-party right of recovery or subrogation interest, Plaintiff may protect the third party’s right of recovery or subrogation interest by tendering to Defendant:

(1) A signed release of the attorney’s lien; and

(2) A letter from the plaintiff’s attorney agreeing to hold the full amount of the claimed lien in the plaintiff’s attorney's client-fund account pending final resolution of lien amount; or

(a) A signed release of the healthcare-provider lien or documentation of the agreement between the plaintiff and Medicare or private health insurance company as to the amount of the settlement that will be accepted in satisfaction of the right of recovery; or

(b) An offer that defendant will hold the full amount of the claimed right to recovery pending a final resolution of the right to recovery; or

(c) Documentation of any other resolution of the liens as agreed to by the parties.

If the court finds, after a hearing, that payment has not been made within 30 days of tender of the necessary documents, judgment must be entered against that defendant for the amount in the executed release, costs incurred in obtaining the judgment, and 9 percent interest from the date of Plaintiff’s tender.

Ironically, one of the slowest payers in the state, the State itself is exempt as the new law exempts units of local government, the State of Illinois, and state employees. The new law will make it more difficult to achieve Medicare Secondary Payer compliance as well unless the terms are very clear about when payment would be made for such issues. For that reason, it appears a number of insurance and industry groups objected to the new law.

The law is triggered when a “settlement” occurs as noted above so it will be very important for defense attorneys and adjusters alike to exercise caution in all writings (e-mail, letters, notes, faxes, etc.) so as to not trigger a “settlement” unless all terms are clearly laid out as conditions precedent including any hold back on potential Medicare funds. Our usual advice for any conditional payment is to agree to resolve conditional payments to Medicare directly, since providing the conditional payment amount direct to plaintiff/petitioner does not protect from Medicare seeking payment directly if not paid.  So the settlement will need to be very clear or you may end up double paying and paying with interest. The law requires the defendant to pay the settlement amount to plaintiff attorney within 30 days, if plaintiff attorney includes a letter that he or she agrees to hold the money in their trust account until the conditional payments are resolved.

With regard to Medicare, defendants will still be  required to electronically report to Medicare pursuant to 42 U.S.C. §1395y(b)(8) and this will lead to issues if defendant is unclear as to how plaintiff has or will resolve the conditional payment (again—a bad idea to leave it up to them rather than agreeing to directly reimburse after Medicare identifies the amount due) and the data submitted by defendant may differ and result in gaps between what was reported by the defendant and the information submitted by plaintiff attorney which could toll the Medicare statute of limitations.

We suggest agreement to resolve conditional payments directly and proactive identification of conditional payments owed Medicare if possible. Proper prior planning will prevent having to allow the plaintiff attorney to simply hold the money in his or her trust account, as the law does allow the defendant to hold back the funds at the offer of the plaintiff attorney or agreement of the parties.

As always, if you have any questions about successful resolution of your claims or the impact of Medicare on your claims, you can contact our office. This article was researched and written by Shawn R. Biery, J.D., M.S.C.C. and you can reach him at sbiery@keefe-law.com.

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Synopsis: Workplace Fatality Statistics Show Promising Trend. Analysis by Ellen Keefe-Garner, J.D., R.N.

Editor’s comment: There is good news and bad news in the workplace these days. On the good side, the Bureau of Labor Statistics, U.S. Department of Labor has reported fewer work place deaths in 2012 with the numbers falling from a 2011 high of 4,693 to a lower number of workplace deaths in 2012 of 4,383. However, the bad news is the Bureau also reported the first increase in construction workplace fatalities since 2006.

Dying is as inevitable as breathing. However, no one wants to die in a terrible accident at work. Unfortunately, death while working at a construction site usually follows from a disaster or mistake. In such cases, the worker does not slip away into the after-life peacefully. Instead, work-related deaths are frequently the result of a fatal traffic accident, a violent encounter in the workplace, or a harrowing fall. 

Last week, the Bureau of Labor Statistics issued a preliminary report indicating a total of 4,383 fatal workplace injuries were reported in the U.S. in 2012. This number represents a decrease in the number of workplace deaths since 2011. In fact, the 2012 total is the second lowest since such totals were first reported in 1992. Despite the overall decrease in fatal workplace injuries, the number of such deaths has increased by 5% in the private construction sector, with the number of such deaths in 2012, 775, representing an increase of 37 from the number of such deaths in 2011, 738. This increase in the number of fatal occupational injuries in private construction marked a deviation in the trend of declining annual rates of death in private construction during each of the five previous years, from 2007 to 2011.

So who is dying? The data shows some differences in deaths among various races. Fewer deaths of white and Hispanic construction workers were reported than deaths of blacks and Asians working in the same occupation. In addition, younger workers fared worse than older ones, with the number of deaths of workers who were 16 and younger nearly doubling, from only 10 such deaths in 2011 to 19 such deaths in 2012. In contrast, the deaths of construction workers age 55 and older declined for the second straight year. 

The manner of death was also studied. Transportation injuries were a frequent cause of death and accounted for 2 out of every 5 fatal work injuries in 2012. Out of the total of 1,789 transportation deaths, 58% of those were roadway incidents involving motorized vehicles. Non-roadway incidents with motorized vehicles like tractors accounted for another 13% of the transportation-related deaths. Another 16% of the transportation-related injuries involved pedestrians who were struck by motorized vehicles. Fatal injuries involving airplanes, on the other hand, declined in 2012 by 14%.

Some of the workplace deaths were related to violence--with both suicides and homicides being reported. Altogether 767 workers died in violent encounters with people or animals, including 463 homicides and 225 suicides. Shootings were the most frequent manner of death in both suicides and homicides. Of the 338 fatal workplace injuries involving female workers, 29% involved homicides.

In 2012, a total of 668 workers died in slips, trips and falls. Falls, which totaled 544, accounted for 81% of such deaths. Strangely, the height of the fall did not have to be great, with about one in four fatal falls occurring from a height of 10 feet or less.

Sixteen percent of the deaths in 2012 occurred after workers came into contact with equipment or objects on the work site. The number of workers who died after being struck by equipment increased by 7% from 476 in 2011 to 509 in 2012. This number includes 233 workers who died after being struck by falling equipment and 199 workers who died after being struck by powered equipment or vehicles. Only 3% of the workers died in explosions, and another 7% died from exposure to toxic chemicals. 

The industries in which the deaths occurred were also studied. The industries with the greatest number of deaths included construction, transportation and agriculture. These industries were followed closely by a large number of reported deaths in government, professional/business and manufacturing.  The fewest number of deaths were reported in the industries of financial activities, information and utilities. 

Occupations were also considered. Fatal work injuries in construction rose for the second year in a row, with a 5% increase from 2011 to 2012.  In 2012, some of the occupations with high fatality rates included logging workers, fishing workers and drivers (including truck drivers).  Fatal injuries to those working in management declined by 8% to 429. This decline was related to a 19% decrease in fatal injuries to farmers, ranchers, and other agricultural managers from 268 in 2011 to 216 in 212. 

Where are the deaths occurring? The state with the highest number of workplace deaths was Texas, with 433 deaths in 2011 and 531 in 2012.  Three other states reported a high incidence of fatal workplace accidents, though at a declining rate, in 2012, with California trending downward from 390 in 2011 to 339 in 2012, Florida declining from 226 in 2011 to 209 in 2012, and New York dropping below 200 deaths from 206 in 2011 to 196 in 2012.  Illinois reported 145 workplace deaths in 2012, marking a drop from 177 in 2011. 

Of course, whenever a fatal injury occurs at work, many factors need to be considered in determining the cause of death. If the family of a deceased worker brings a workers' compensation claim, the incident leading to the worker's demise will need to be very thoroughly investigated and evaluated.

This article was researched and written by Ellen Keefe-Garner, J.D., R.N. who is a licensed attorney and nurse. Please feel free to contact or reply to Ellen at EMKeefe@keefe-law.com.

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Synopsis: Self-Insured Best Practices for IL WC, HR, Safety and Risk Professionals.

Editor’s Comment: You are invited to the following:

What: An informal gathering of occupational health and workers compensation professionals, brought together to communicate and collaborate on leading and best practices in the areas of absence management including worker’s compensation, FMLA, short term disability, and group health.

Where: Edward Hospital in Naperville. Edward Hospital is located at 801 S. Washington Street, Naperville IL 60540. When parking on campus please park in the North Parking garage. You will then proceed to the Main Hospital entrance. At the front desk ask to be directed to the Education Center. Take the Education Center elevators to the 2nd floor. Once exiting off the elevator go to the right as we will be located in the Board Room E200.

Click here to see the location on Google Maps.

When: Friday September 20, 2013. Space is limited so please RSVP via email asap.
Time: 11:00 am to 1:00 pm.

Cost: No cost but bring your “A Game” to the discussions!

Meal: Hosted/provided by Go Self Insured, catered by Edward Hospital and Health Services.

What to bring: Your leading practices and best practices that you want to share; areas of concern, roadblocks, processes in needed of improvement, anything that you wish to share that someone else at the roundtable might have a best practice to share with you that will meet your need.

Best Practices: Click here to download th

11-26-13; Shocking Statement From IL App. Court--IL WC Now Has Two WC Systems; Solid Rule-Making on Repackaged Drugs; Insurer to Pay Defense Costs in "Groundless" Claim and much more

Synopsis: Shocking Words in a “Traveling Employee” Semi-Secret Ruling for the Illinois-You-Don’t-Have-To-Be-At-Work-To-Get-Workers’-Compensation Commission. Is Illinois Really Going to Have One WC Act for Some Workers and Another Act for Whatever Traveling Employees Are?

Editor’s comment: We join with the Chicago Tribune editorial team when they ask In Illinois, it's 'Where's the Labor?' Day. Their editorial is online at http://www.chicagotribune.com/news/opinion/editorials/ct-edit-laborday-20130902,0,7810420.story

The Chicago Tribune editorial points to the five border states and confirm they have an average unemployment rate of 7.12 percent. In contrast, Illinois is looming at just under 10 percent with everything pointing towards our state soon reaching all-time record high unemployment. Unlike our neighbors across the country, Illinois raised personal and corporate income taxes just as other states cut their tax burden. To pay for government workers who are retired and no longer work for their respective governments but still get paid, Illinois borrowed and spent its way into massive government debt.

It is hard to imagine any national or international employer that doesn't know Illinois has worst-in-the-nation credit ratings and multi-billion dollar unfunded pension obligations? Many Illinois political leaders don't openly welcome employers and foolishly dictate terms to companies like Wal-Mart and Ford Motor Co. who might otherwise bring jobs here. Having looked at those issues, we now see this new anti-jobs WC “parallel universe” that is certain to further infuriate longstanding business people across our country.

The Chicago Tribune editorial team clearly doesn’t know what is happening in our reviewing courts and the IL WC system. We received a comment from an influential Plaintiff/Petitioner attorney in response to earlier KCB&A Updates about the new “traveling employee” concept indicating ITLA or the Illinois Trial Lawyers Association not having much influence before the IL legislature to the extent they were unable to block legislative amendments like impairment ratings in the last IL WC Amendments in 2011. The implementation of impairment ratings has caused permanency awards to drop and the bankrolls/fees of ITLA members to go down. All of the hard work from the 2005-6 and 2011 IL WC Amendments were causing costs to be more reasonable. But that is soon ending, folks.

In our view, where the IL Trial Lawyers Association may have limited sway in the legislature, they have strong influence in the reviewing courts. We truly feel they are the behind-the-scenes force on this new anti-jobs WC duality and coverage expansion. If you don’t know, along with massive government debt and unfunded pension chaos, the five men who compose the IL WC Appellate Court, Workers’ Compensation Division have moved to a new WC standard where most Illinois workers don’t have to be working or anywhere near work to be entitled to our generous workers’ compensation coverage. In our view, the most shocking statement we have read as WC lawyers is the Court’s willingness to completely ignore or “not address” the IL WC Act in making rulings. In another of those controversial “unpublished” rulings under IL Supreme Court Rule 23 that only appear on the IL Appellate Court’s website, we read the ruling in Admiral Mechanical Services v. Illinois Worker’s Compensation Commission, No. 02-12-0694WC, filed May 31, 2013. In that ruling, this language indicates:

Respondent next argues that, using a traditional analysis, claimant’s injuries neither arise out of or occurred in the course of his employment. See Illinois Bell Telephone Co. v. Industrial Comm’n, 131 Ill. 2d 478, 483 (1989). However, we have determined that claimant was a traveling employee. Therefore, we need not address these arguments.

What we find shocking and unprecedented about the language in this ruling is the clear indication from our penultimate reviewing court they don’t have to follow or, in their words, “address” the mandatory statutory WC coverage language given them by the legislature. Most legal scholars state the IL legislature provides the enabling law for the IL WC Commission and our courts to review and enforce—in this simple statement, this Illinois court has made it clear they are not limited by nor do they even have to address the statutory coverage scheme and are free to create their own laws and rules. In so doing, we have new and impossible-to-ascertain court-created definitions of things like “traveling employee” and “street risk” and “reasonable and foreseeable” activity. As we indicate above, this new theory creates a dual WC system. What we feel the bottom line is IL Plaintiffs get money in ways no other state provides and jobs are certain to suffer as this judicial trend continues to grow and take hold. We are certain lots of trucking/construction/staffing and other companies with this Court’s definition of “travelers” are going to seriously consider moving out of our state due to this confusion along with added WC/OD coverage and certain-to-increase insurance premiums/costs.

In Admiral Mechanical Services, claimant was an HVAC worker who was going to drive from his home to a place where he was going to work. He was in a car wreck miles and miles away from his eventual workplace. It is a classic “going to and coming from” ruling and, since he wasn’t working and wasn’t yet on the clock, our sister states and every state/country that we know of doesn’t provide WC benefits, as the worker picks the place you put their home, picks their route to and from work and spends what they need to get to work. When the worker arrives at the job site, the traditional law confirmed they are then covered under WC. Seems simple, doesn’t it?

Why Do We Feel this New Judicial Creation is a Disaster for Jobs and Labor in our State?

Well, the “traveling employee” concept means IL business is now covering folks on the way to work, on breaks, at lunch, on the way home for just about anything that befalls them. The admission by this court confirming in this somewhat hidden “traveling employee” ruling that “arising out of and in the course of” no longer has to be addressed by our Commission and reviewing courts “reverses” hundreds, if not thousands of prior IL WC judicial rulings. For one example, in the Caterpillar Tractor v. IIC ruling, our Supreme Court denied benefits for an off-work worker on his way to his car who tripped on a typical street curb. The Court majority found Claimant had “no increased risk” from that of the public in crossing a typical street curb and outlined that as the basis for denial. Now, if the worker was a “traveling employee” under about six different bewildering court-created definitions of the new term, he would have received benefits, as tripping on street curb is reasonable and foreseeable.

Almost all traditional WC defenses are now stripped away to allow compensation for millions of workers.

·         AOO/ICO is the biggest IL WC accident defense and this ruling now tosses that on the rocks and says the IWCC and courts can now ignore it or not “address” it.

·         Horseplay is no longer a defense for traveling employees—for example, two Illinois firefighters got into a school-boy wrestling match, as they were found to be “traveling employees” benefits were awarded. Horseplay was stripped out by our courts as a defense to this personal risk.

·         Idiopathic conditions that are somehow “reasonable and foreseeable” are compensable and this defense is now ended for such workers.

·         Fights—the “Aggressor” rule is no longer a defense for “reasonable and foreseeable” fights.

·         Intentional injuries to self/suicide would covered when “reasonable/foreseeable.”

·         Alcohol/drug abuse causing or contributing to injury is no longer a defense for the intrepid “traveling worker.”

·         Safety violations—probably gone for intrepid “travelers” with jobs.

·         Fall-downs without proof of increased risk—Mlynarczyk claimant received compensation without having to prove an increased risk; this defense is gone for all “travelers.”

In effect, we now have two different IL WC/OD Acts—there is the traditional IL WC Act for some workers and the new “hybrid” Act that wildly expands coverage for benefits.

When should IL Business, the Defense Bar and the IWCC Take Action to Address This New and Unprecedented Uber-Concept?

What do we mean the IWCC has to take action? Well, the IWCC hearing, decision forms and handbook all continue to remain in the traditional mode—like the IL WC Act, the term “traveling employee” isn’t mentioned anywhere in IWCC documentation but now should be. After jurisdiction and coverage of the Act, the “traveling employee” finding is the single most important thing in determining when WC/OD coverage would immediately apply. There are now four Appellate Court rulings that adhere to it--isn’t it kind of odd it isn’t mentioned anywhere at the IWCC? Maybe a news flash?

From the perspective of the defense bar, right now, we think our competition is ignoring it and hoping (as we do) that it will go away. Please also note for hundreds of so-called “traveling workers,” you may not need defense attorneys in the future and should do what you can to keep “traveling employees” away from Petitioner’s/Plaintiff’s lawyers—it is going to be very, very hard to win claims involving anyone who is first found to be a “traveling employee.” The IWCC may turn into one big “pro se” settlement place. If your defense attorneys aren’t telling you what has happened to IL WC/OD law, we are certain they aren’t fully advising you.

What should IL Business do? Well, we join with all of our friends and colleagues to hope and pray the IL Supreme Court hasn’t already made their minds up on this one. We hope this fall or early next year, we will see a favorable ruling on the Venture-Newberg-Perini claim that doesn’t throw the whole IL WC/OD system that has been in place for 104 years down the tubes. Like higher taxes and pension debt and unpaid government bills, this new WC/OD legal mess and lasting uncertainty can’t be good for jobs and IL labor.

Does the Media Know about This? Does the Legislature?

In our view, everyone is confused by the term “traveling employee” and thinks there is some sort of hubbub about people who are traveling abroad and getting hurt. We again point out Claimant in Venture-Newberg-Perini would have gotten benefits if he had a bad dream and rolled out of bed and broken his harm. He was an hourly worker that was not on the clock, not being paid to travel and was at least 20 miles away from the worksite when injured; he has been awarded over $1M in benefits currently pending on a final appeal before the IL Supreme Court.

We feel the IL legislature isn’t yet aware of all of it due to the pension fights that are raging across our state. They may take this issue up when that settles down. If the Supreme Court doesn’t flip Venture-Newberg-Perini, we hope the legislature returns our state to the traditional WC/OD format.

We don’t think the Chicago Tribune or Crain’s Chicago Business or WorkCompCentral or the various TV stations across our state know about the new dual system for IL WC/OD benefits. Feel free to send this article to them or provide your own thoughts and comments to us and the media. Please!!

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Synopsis: Finally! The IWCC implements new “combo-drug” price-fixing rules, bringing some sanity back to the world of IL WC/OD 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 IL WC 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 been 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 a 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 that price 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, 2013 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: The Seventh Circuit Court of Appeals rules an excess insurer must pay an employer’s defense and settlement costs consistent with broad terms used in policy, even though the underlying lawsuit was “groundless.” Analysis by Chris St. Peter, J.D.

Editor’s comment: We feel the Federal Seventh Circuit Court of Appeals correctly took an insurer to task and required coverage consistent with the broad terms of the policy at issue. Any other result would allow an insurer to dispute coverage based upon an exception that does not exist in the plain language of the policy itself.      

In TKK USA, Inc. v. Safety National Casualty Co., Nos. 12?1988 and 12?2091 (7th Cir. Aug. 21, 2013), Safety National Casualty Corporation sold an excess liability insurance coverage policy to TKK USA, Inc., (formerly known as The Thermos Company). The policy covered excess losses resulting from liability imposed on TKK “by the Workers’ Compensation or Employers’ Liability Laws” of Illinois. The dispute centered on whether the policy covered TKK’s costs to defend and settle a “groundless” lawsuit brought under Illinois common law by the widow of a former TKK employee alleging TKK’s negligence caused the employee to become ill with and eventually die from mesothelioma. The common law negligence claim was subject to a “rock?solid” affirmative defense under the Illinois Workers’ Occupational Diseases Act, which bars common law claims by or on behalf of an employee against a covered employer “on account of damage, disability or death caused or contributed to by any disease contracted or sustained in the course of the employment.” 820 Ill. Comp. Stat. 310/11.

TKK filed suit after Safety National denied TKK’s claim for coverage of losses above the policy floor. The U.S. District Court for the Northern District of Illinois granted summary judgment in favor of TKK for its costs in defending and settling the widow’s suit. The District Court found the policy’s reference to “Employers’ Liability Laws” included the widow’s negligence claim even if it ultimately could not prevail. The district court denied, however, TKK’s claim for attorney fees and costs in the coverage lawsuit itself.

In a decision issued August 21, 2013, the Seventh Circuit Court of Appeals affirmed the District Court’s decisions in all respects. The Seventh Circuit explained the key policy term—“Employers’ Liability Laws”—was broad enough to include claims brought under the common law, even if the claims are “wholly groundless, false, or fraudulent.” The Seventh Circuit also found no error in the district court denying plaintiff’s motion for attorney’s fees in the coverage lawsuit, holding Safety National took a reasonable position on an unsettled issue of law.

As noted above, we feel this is the correct result. The policy at issue broadly covered any losses incurred as a result of “Employers’ Liability Laws” with no exception based upon the type or merits of the claim. Where a policy uses such broad policy language, the insurer should not be able to dispute coverage by asserting an exception that does not exist in the policy itself. This should also remind our clients to pay close attention to the language used in an insurance or any other contract—if the language purports to provide unlimited coverage, it probably does.     

This article was researched and written by general liability and employment practices liability law specialist Chris St. Peter, J.D. Contact him at cstpeter@keefe-law.com or (312) 756-3714 and ask him to review your insurance policies and other contracts.