10-28-13; Have IL WC Death Benefits for "Travelers" Morphed into Life Insurance?; Lack of SocSecurity Spread Language Leads to Lawsuit; State Chamber to Release Blockbuster WC Judicial Review and more

Synopsis: Could Arbitrator Neal’s and Arbitrator Holland’s Recent Passings Be Deemed “Compensable” under the New “Traveling Employee” Version of Illinois Workers’ Compensation “Law?” Have IL WC Death Benefits for “Travelers” Morphed into Term Life Insurance? How Far Will the Illinois Workers’ Comp System Go to Try to Catch Up to Global and Indefensible WC coverage like Kooky California?

Editor’s comment: We have discussed the untimely passing of these distinguished administrators and while considering the new “traveling employee” expansion, it compelled us to ask whether this new legal theory would make their passings indefensibly compensable, as a matter of law. At first glance, most of our clients, readers and observers on both sides may reject the concept, because neither hearing officer was actively on duty when they passed but we assure you that isn’t needed any more in our state. While the events leading to their passings clearly didn’t arise out of or in the course of their work, in our view, if you are a “traveler” you are entitled to global, no-fault and indefensible workers’ comp coverage.

In our reasoned legal view, the Illinois workers’ compensation system is trying to out-flank even the most liberal legislators who run California’s workers comp system on our “Left Coast.” News from California last week confirmed a former University of California, Davis police officer who casually pepper-sprayed “Occupy” protesters just reached a worker's compensation settlement with the University system, despite the lack of any defined injury, other than to his feelings. The Davis (California) Enterprise reports a judge on Oct. 16 approved a $38,000 settlement between former Officer John Pike and the University of California. The 40-year-old former official said he suffered depression and anxiety after death threats were sent to him and his family over the Nov. 18, 2011 event. University spokesman Andy Fell said the case was resolved in accordance with their goofy state laws.

It appears video of Pike pepper-spraying the protesters went viral online. His address and other personal information were posted online afterward, and he allegedly received scores of death threats. We find it hard to believe he would keep answering the phone after the first score of such calls. Pike was fired for using the pepper spray in July 2012 but not until receiving $70K plus in payments for eight months of paid administrative leave. To see the viral video, go to http://www.youtube.com/watch?v=uJb-LZGLOgU Again, this sort of workers’ comp handling indicates to us our workers’ compensation colleagues on the Left Coast won’t let any bad deed go un-rewarded and if you make a claim, you will get a settlement. Their benefits aren’t truly defensible—our concern is the administrators and reviewing courts in this state are going down the same silly “yellow-brick road.”

With deepest respect to the families, colleagues and friends of our recently departed administrators, one of them died of cancer and one died at home in bed. We do not feel the details of their passings are necessary for this article. What we do know is both Arbitrators were unquestionably “travelers” as travel was unquestionably an essential part of the Arbitrator job consistent with the Appellate Court, Workers’ Compensation Division’s definition in their ruling in Kertis v. IWCC. Neither Arbitrator conducted hearings anywhere near their homes and both would travel some distance to get to their work sites. To our understanding, all IL WC Arbitrators are provided expenses to make the trips to the hearing sites. Please also note all IL WC Arbitrators of whom we are aware diligently work at their home offices—downstate or out-state Arbitrators are scheduled to work both at their hearing sites and at their homes.

One of the two Arbitrators above was a cigarette smoker. She smoked on her way to work and smoked outside the hearing sites during work—every attorney who practiced before her knew she and her court reporter took regular smoking breaks during the work day. To the extent the new and unprecedented “traveling employee” concept makes the State of IL responsible for her actions basically on a 24/7/365 basis, if her survivors can prove her cancer was from smoking morning, noon or night, it is our view her untimely passing was compensable as a matter of law.

The other Arbitrator mentioned above, passed away recently at home and in his bed. Again, we don’t know the precise cause but we aren’t sure it makes the slightest bit of difference—we feel this new expansion of WC coverage makes such a worker covered on a 24/7 basis both at home, in transit and at work. To the extent this great man clearly and unquestionably fit the new definition of a “traveler” and worked in his home, wouldn’t he be covered for any and all injuries, illnesses and accidents while both at work and at home?

Please note in their ruling in Admiral Mechanical v. IWCC, the Appellate Court, Workers’ Compensation Division outlined the Commission and attorneys on both sides should be able to litigate IL WC claims over the issue of “reasonable and foreseeable” actions by the travelers. In our view, 99.44% of human behavior is “reasonable and foreseeable.” We consider the passings of both of these illustrious administrators to be the result of “reasonable and foreseeable” activities—there is nothing unreasonable or unforeseeable about smoking cigarettes or passing while in bed. Both things happen around the state every day of every year. In our view, once you define any IL worker as a “traveler,” you owe WC benefits and there are no true defined defenses for accidents, injuries and illnesses. Maybe one “traveler” case in a thousand might have a defense—in our view, WC death coverage for all IL “travelers” is identical to term life insurance. If you think it isn’t just like term life insurance, please reply to tell us your thoughts.

At a recent meeting we had with a current client, she became incensed to hear our suggestion that such global and indefensible WC coverage might exist for millions of IL workers—we advised her of our opinion she was “shooting the messenger” to get mad at us to even consider this potential. We want to emphasize we are completely opposed to this unsustainable expansion of our state’s already generous workers’ compensation benefits. We simply feel our readers, clients and everyone in the system needs to understand where this clunky WC caravan is now moving. In our view, there is no defined “limit switch” once our State’s WC system starts to openly and unquestionably award WC benefits outside what the legislation provides—if you aren’t crystal-clear about it, we are happy to copy and paste to you the section of the ruling inAdmiral Mechanical where the Court’s majority confirms they are no longer constrained by the statutory requirement that an injury “arise out of and in the course of employment.” If you want that language, please send a reply.

Please note the WC death benefits for such workers would be $1,331.20 per week on a tax-free basis for 25 years or $1,730,560.00. The family will also get an $8,000 burial benefit and COLA increases. All of that money will come from IL taxpayers and businesses. As there are probably tens of thousands of IL state, city and local government workers who are “travelers,” please understand our governments’ workers’ compensation costs may triple or more as these claims start to be filed and indefensible benefits will be due. Taxes are going to have to rise to meet these new and unexpected costs. Your editor and others will be discussing this at the IL State Chamber’s Annual Confab tomorrow—for details or to register, please see their advertisement for it below.

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

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

Synopsis: Insurance Employee Cries Foul over Conduct of Her Petitioner’s Attorney While Lack of Social Security Spread-Language Rider to IL WC Contracts Allegedly Costs Petitioner $100,000.00. Analysis by Joe Needham, J.D.

Editor’s comment: The enemy of your enemy is your enemy? Curious is a circumstance where an employee sues first her employer, then the attorney she hired to sue her employer.   

This past week the Madison-St. Clair Record reported the story of a legal malpractice lawsuit brought by an Illinois workers’ compensation claimant against her former WC attorney for mistakes made in the settlement of her claim. Plaintiff Barbara Boda’s case is filed in St. Clair County under case number 13 L 430 and the Madison-St. Clair Record article can be accessed at http://madisonrecord.com/issues/889-legal-malpractice/260112-attorney-sued-over-work-comp-case-denies-allegations in the event you want greater detail of the allegations and parties involved. The claim of legal malpractice centers around Petitioner’s Social Security Disability status and the fact a lump-sum settlement payment was considered income for SSDI purposes. Common in the industry is the use of Social Security “spread language” wherein a lump-sum settlement payment is extrapolated out over the expected life-span of the recipient to minimize the annual total received, as nominal earnings will not reduce SSDI payment amounts.

Apparent in Ms. Boda’s case is her settlement did not include a spread language rider extrapolating her settlement payment over time, and the lump sum payment resulted in a reduction of her SSDI recovery, consistent with U.S. law. The Complaint also alleges Petitioner was counseled to accept only a third of her original claim suggesting her attorney undervalued her claim in reaching settlement, and alleges damages of $100,000.00 which is curious in its own right.

Ms. Boda either is or was a Broadspire Insurance Company employee alleging a work-related motor vehicle collision resulting in injury and lumbar fusion surgery. It is not clear in what capacity she was employed or what level of claims sophistication she possesses, but the Madison-St. Clair Record article notes she hired a local workers’ compensation attorney to represent her in the claim. The malpractice suit is still in litigation and to our knowledge there is no records in the WC case other than the settlement contract, so the full facts of either suit are not yet known and the outcome of the malpractice suit has not played out, but while the chips are waiting to fall the matter raises a number of obvious and subtle cautions about the Illinois Workers’ Compensation claims and settlement process.

Obvious is the caution to the claimant’s bar to always know your client’s Social Security status upon settlement, and apply amortizing Social Security approved spread language when necessary to circumvent the reduction of SSDI benefits upon lump sum settlement payment. We can only assume it was ignorance or oversight of the facts of a client’s status and not ignorance of the law and the need for spread language that leads to this type of error, preventable through a detailed but rather simple interview of the client. Between the possible need for Medicare Set-Aside allocation considerations, four separate methods of computing permanency values, additional maintenance entitlement issues, and the SSDI spread language considerations present in this case, there are numerous potential pitfalls on an unwary attorney’s path to case settlement, most if not all of which are avoidable through a single re-interview of the client at the time of settlement negotiation. The alternatives are an ounce of prevention or a pound of pain. If you are interested in reviewing our Social Security spread language to incorporate it into future settlements, please send a reply to the email address below.

Whether there is merit to the claim Boda was counseled to take a short settlement we cannot say without knowledge of the value of the WC claim and Broadspire’s possible defenses, but it raises another less-obvious caution to our insurance community and readers at large; the caution that a legal claim may make for strange bedfellows. There is a certain irony to an employee of a workers’ compensation insurance company claiming to be wronged by an attorney in the business of suing her employer’s clients; the changing of hats does not necessarily make for a better fit. It makes sense Boda’s attorney would negotiate the greatest possible recovery if for no other reason than to maximize his fee and we assume a sounds assessment of the value of the case and the defenses impeding or discounting recovery was employed before counseling Boda on the fair settlement value of her claim. With an employer and a legal advocate comprising notches in her belt and additional litigation pending, we further assume Ms. Boda’s current attorney has made a point to update his own malpractice insurance policy.

It is not our intention to comment on the strengths and weaknesses of Plaintiff’s claim and/or defenses of the parties Defendant. This article was researched and written by Joe Needham, J.D. You can contact Joe about it at jneedham@keefe-law.com.

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

Synopsis: Illinois State Chamber to Release A Blockbuster Report on IL WC Judicial Activism—We Consider It a Must-Read for All IL WC Risk and Claims Managers.

Editor’s comment: The Illinois Chamber will release its latest public policy research document when their Annual Workers' Compensation Conference convenes Tomorrow, Tuesday, October 29 at the Lisle Hilton. The report "The Impact of Judicial Activism in Illinois: Workers' Compensation Rulings from the Employer's Perspective" was created earlier this year. The report was created in recognition of the fact that while significant progress has been made with our Governor's office and with members of the Illinois General Assembly toward improving Illinois' workers' compensation climate for business, there has been little progress in our reviewing courts. At the same time, the IL Courts have had a dramatic influence upon rising workers' compensation costs and our business climate.

In this report, the Illinois State Chamber analyzes numerous workers' compensation rulings from the Appellate Court, Workers’ Compensation Division and our highest court, the IL Supreme Court. The rulings analyzed are generally considered as expanding employer liability and creating Illinois' growing reputation for having a costly workers' compensation system. In about a decade, we note the IL workers’ compensation system’s ranking in relation to other states has moved from about the middle to what is now number 4 highest of all 50 states. As we have advised our readers, the new court-created “traveling employee” expansion is almost certain to take us to no. 1, as the concept becomes more widely known and understood. All but two of the 19 decisions reviewed in this epic report have been decided within the past ten years, eleven of the decisions have been handed down within the past five years.

Illinois' general economic woes - incremental recovery from the recession, continued job losses, and years of high unemployment are highlighted in multiple studies and reports about the high cost of doing business in Illinois and poor showings on numerous competitive business evaluations.  Illinois' high workers' compensation costs are a major contributor to low economic development rankings. Media coverage of scandals and abuse in the workers' compensation system and a very candid expose' on the part of Lisa Madigan and her Attorney General's staff provide important and irrefutable evidence of a system in need of administrative and judicial reform. We join with the State Chamber to confirm our view many of the appellate rulings in workers' compensation cases have effectively rewritten the IL Workers’ Compensation Act in new and unprecedented ways. We are certain some rulings have undermined administrative and legislative efforts to improve the state's standing in the eyes of Illinois and U.S. employers.

The full report "The Impact of Judicial Activism in Illinois: Workers' Compensation Rulings From The Employer's Perspective" will be available on line at the Illinois Chamber's web site www.ilchamber.org after November 1. A limited number of hard copies will be available. We urge you to get a copy for your WC library.

10-21-13; The Real Reason Why the Jury Should Still Be Out on 2011 IL WC Amendments; Trying an IL WC Nature & Extent Case in Ten Mins or Less; Arbitrator Doug Holland, RIP; Employer Exclusion...

Synopsis: Dent This!! Crain’s Chicago Business Article Misses One Major IL Cost-Cutter—Give IL WC PPP’s a Chance!!!

Editor’s comment: In an article published last Friday, October 21, 2013 titled Why Illinois' Workers Comp Reform Only Made A Dent, Crain’s takes the stance the reforms enacted two years ago brought down medical fees charged by for treatment of injured workers. They assert Illinois workers' compensation costs remain “sky high.”

Crain’s reports medical payments for workers' compensation claims dropped 4.6% in Illinois last year even though the Illinois General Assembly reduced the Illinois Workers’ Compensation Medical Fee for workers' compensation-related office visits, surgery and other treatments by 30 percent in 2011--see their PDF. Crain’s relied on the study of 16 states by the Workers Compensation Research Institute or WCRI. The states were selected to represent the high, middle and low end of the cost spectrum.

WCRI asserts IL WC medical costs actually fell 24 percent last year, as IL providers were already charging less than the capped amount allowed by law. The WCRI study further indicates medical cost savings were offset by

      Greater utilization of medical services;

      Increased spending on litigation over medical claims;

      Second opinions by IME’s and other consultants and

      Miscellaneous measures to control medical costs.

Their study concludes total payments on a per claim basis were down just 1 percent.

While the study addressed only costs per claim, the WCRI report also agreed the Illinois WC system is well below the national average in the number of workers’ compensation claims per 1,000 workers. This is attributed to high unemployment across our state, particularly in the construction and manufacturing industries. We are sure their numbers are accurate—we also think the rapid new safety enforcement protocols required by very aggressive bird dogs at OSHA are causing work-related safety to go dramatically up, as OSHA has fined company after company in this state for dangerous or unsafe workplaces. If you want to purchase the WCRI report, please go to http://www.wcrinet.org/result/BMcscope_multi14_IL_result.html

We assure our readers there is a major cost-saving factor missing from this article and the related WCRI report. While the 2011 Amendments to the IL WC Act were implemented on June 28, 2011, the IL WC PPP provision was tied up at JCAR or the IL Joint Committee on Rules for months. In contrast, what we consider mildly humorous is rules required by the 2011 Amendments to manage and maintain drug/alcohol samples were enacted months earlier—these rules, titled "Alcohol and Drug Sample Collection and Testing" (50 Ill. Adm. Code 9140; 36 Ill. Reg. 8626), were made effective and adopted by the IWCC on November 15, 2012. Please note the drug and alcohol testing and sample maintenance rules may provide a block to the defense of intoxication so the Plaintiff/Petitioner bar would want them to move forward much faster than the IL WC PPP concept. We always feel it fascinating to see the interests of ITLA move so much more rapidly in our state’s administration than the interests of IL business.

The effective date of the IL WC PPP Rules being approved/enacted was about seven short months ago on March 4, 2013—the WCRI article couldn’t possibly measure the impact of that part of the 2011 Amendments to the IL WC Act. We feel strongly the IL WC PPP’s are game-changers and will make more than a “dent” in IL WC costs when they get rolled out. We point out the gurus at the IL State Chamber did an awesome job in setting up this concept—just by offering a WC PPP, you cut your employees’ choice of medical care down to one doctor. This means if your WC PPP network provides great care and service to your workers, you will have happy people who should follow the recommendations and come back to work smoothly. If your WC PPP stinks and provides poor care, your employees can still pick a doctor/health-care giver of their own choice. Early returns on network care indicate our clients and their WC adjusters are thrilled with the results—injured workers are sure their medical bills will be paid and are relying on the WC PPP networks to recommend solid medical care. What we tell our clients and readers to tell their workers—“if you treat with the PPP network, your bills will be paid; if you treat outside the network, your bills may be paid.” Most folks like the assurance they won’t have to worry about medical bill payment.

We again urge our readers to contact Guy Swanson at HFN, Inc. or Darren Stahulak at CorVel who can get you hooked up with their troops, network program and provide amazing network savings. If you need contact information for either of these great businesspeople, send a reply. They know the ins and outs of implementation and have been running these networks from Day One. Here is the list of all approved IL WC PPP’s: http://insurance.illinois.gov/consumer/approvedwcppplist.pdf If you are being told by your WC carrier or TPA there is something further needed to get into an IL WC PPP, either HFN, CorVel or the defense team at Keefe, Campbell, Biery & Associates can help. Just let us know what push-back you are getting and we will try to provide what you need.

If you aren’t sure why we are saying this to all of our clients and readers, please look at the bullet points above. If you get into an IL WC PPP, they will limit overutilization of medical services simply by the fashion in which medical care networks operate. If you hire a WC PPP, you won’t be litigating spending on medical claims—the network concept ends the need for such litigation. Second opinions and IME’s in a network are faster, cheaper and dramatically more effective. WC PPP networks are the epitome of “miscellaneous measures to control medical costs.”

As Shawn R. Biery, J.D., M.S.C.C. and your editor pointed out at a recent Accelerated Rehabilitation Centers confab, our great clients feel this is a “complete no-brainer” if your goal is to cut IL workers’ compensation costs. We hope the stat rats at WCRI keep their slide rules out and run the numbers again in couple of years when the WC PPP’s have reached broader acceptance and made a greater impact in the IL WC system.

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

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

Synopsis: IL WC Trial Practice for Practitioners: Trying a Nature and Extent Case in Ten Minutes or Less.

Editor’s comment: Here are some thoughts for Plaintiff/Petitioner and Defense Lawyers on how to maximize vital IL WC Arbitrator time in handling the simplest of hearings. If you aren’t sure how to do this, please first watch great veteran WC attorneys to learn their tip/techniques.

§  First, have all exhibits copied, prepared and listed for your opponent—you need one copy for you, one for the court reporter and one copy for your opponent. If at all possible, try to advise your opponent of all exhibits well in advance of the hearing to avoid unnecessary surprise or objections.

Opposing counsel should also advise, in advance of the hearing, about any objections. This process should allow admission of exhibits to occur within about a minute or two. No one in this state did this better than former Arbitrator, now Commissioner Ruth White. We wish she would train other sitting Arbitrators on how to best streamline this aspect of N&E hearings.

Admission of unpaid medical bills--if they ever made the mistake of making me an Arbitrator no one would ever be allowed to ask questions about foundation for unpaid medical bills. This issue should be resolved prior to trial and outside the Arbitrator’s presence. The tender of such exhibits should be to confirm Respondent hadn’t paid them for whatever reason but the time taken to have witnesses testify to foundation is a waste of everyone’s time.

§  Next, the “Stip Sheet” or Request for Hearing form should be filled out and signed by both parties. This document should set the length of the hearing. If all matters other than nature and extent are agreed, there should be extremely limited inquiry on agreed issues. In making this statement, most Arbitrators waste time by asking if the parties ‘agree to the stenographic stipulation”. They already have in paragraph 14 of the “Stip Sheet”. We urge Arbitrators to stop asking this unnecessary and duplicate inquiry.

§  Thereafter, all issues except proof of disability can be proven with leading questions because the issues are undisputed. We suggest a nature and extent claim be called a nature and extent “prove-up” because all the parties are doing is rapidly “proving up” enough necessary information to allow the Arbitrator to make a simple decision on the value of permanency. We strongly urge against Petitioner’s counsel being required or allowed to ask open-ended questions in a prove-up because it provides the relatively nervous and novice Petitioner the opportunity to waste the Arbitrator’s time. For example, the name and job title could be obtained by asking: Your name is Peter/Paula Petitioner, isn’t that correct? Isn’t it also a fact you work at ABC Company as a laborer?

We agree Petitioner should probably testify about the accidental injury in an open-ended fashion but may be unnecessary because there is no dispute about the event or its compensability. Medical treatment should always be provided in a leading fashion. We consider it an abuse of the process to have a witness fumble through visits to doctors, surgeries and physical therapy when the attorney has the information in front of them and could be putting the major medical developments into evidence in a leading fashion. Defense counsel shouldn’t object to this occurring as the client accepted the treatment and should have paid for it, in a nature and extent only hearing.

§  TTD: No questions should be asked about TTD or periods of lost time in a nature and extent hearing. If the parties have agreed in writing on this issue, testimony is a waste of time.

Preliminary prep for the hearing:

      Fill out and sign the N&E Stip Sheet with your opponent.

      Fill out and sign the IWCC envelopes to facilitate transmission of the decision to your office and give to the Arbitrator.

      Show your opponent marked copies of all exhibits and outline any objections.

Direct exam: questions to prove-up a nature and extent case:

1.    State your name, please spell your last name.

2.    You were employed at _______________.

3.    Your job title was __________________.

4.    Your duties were _____________ .

5.    It’s been agreed you had an accident on ______________; tell the Arbitrator briefly what happened.

6.    You then came under the care of Dr. _____________? [Counsel should spell the physicians’ names].

7.    Dr._______________ referred you to ______________________ medical provider/institution?

8.    Please understand all your medical records will be entered into evidence: Dr. _______ performed surgery on your ____________ on ____________, isn’t that correct?

9.    You went to physical therapy at ________________.

10. You returned to work limited duty on ______________.

11. You returned to regular work on _______________.

12. Please outline any permanent work restrictions.

13. Point to any parts of your body in which you notice a change since the accident.

14. Tell the Arbitrator what if anything you notice about yourself at present.

15. What do you notice about yourself as you go through the activities of your daily life?

16. What do you do for yourself when you notice the condition you just described?

17. No further questions.

Cross-examination: Without giving up all of our secrets, sound cross-examination in a nature and extent case should confirm:

1.    The last date treated or seen by a physician;

2.    The last date prescription medications taken for the condition;

3.    The work being performed by Petitioner at present with

a.    physical description of the work and

b.    heaviest object lifted.

c.    Recreational activities.

d.    Confirm claimant is/is not on social security disability.

Both sides offer exhibits. Parties rest, proofs closed.

Proposed decisions: Please note you can waive the need for a written decision. Don’t. The proposed decision protects counsels on both sides.

For Petitioners’ counsels, you have a much better chance of prevailing if you write a decision that mirrors the proof in the hearing and can simply be signed by the Arbitrator. Be reasonable and the Arbitrator will probably follow your lead. For defense observers, understand the Rules require defense counsel present a proposed decision to the Arbitrator within 14 days of the hearing unless the Arbitrator has other requirements.

We recommend adjusters insure defense counsels sends you advance copies of their proposed decisions to insure it matches your understanding of your goals and the goals of your attorney. The proposed decision should also be a readable and intelligent document—it will allow the adjuster to gauge your counsel’s competency and knowledge of the facts of the case and applicable law.

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

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

Synopsis: God Bless and Keep IL WC Arbitrator Doug Holland.

Editor’s comment: He left us much too early. The IL WC Community was stunned to hear of the passing of Arbitrator Doug Holland at his home in Oglesby, IL  last week. Doug was a professional, hard-working and sensitive administrator who brought his best to his job every day. We didn’t know it but, along with a busy schedule as an Arbitrator, Doug was president of the LaSalle County Historical Society.

Your editor has been quoted as providing our opinion Doug Holland was the “Father of the IL WC Pretrial.” During pretrials, Doug did a great job in pushing/prodding lawyers, claimants and adjusters into doing whatever it took to bring the parties together and avoid messy and prolonged hearings. He was so strong about the concept, we understood some attorneys would crab about it to the secret-powers-that-be when they wanted to go to hearing while Doug was trying to move claims to pretrials with much more rapid and fair settlements.

In 2002, when an aggressive new IWCC Chairman came to office, we feel the new Chairman wanted to supplant Arbitrator Holland’s proclivities about the importance of and need for WC pretrials. Shortly thereafter, an IWCC rule was enacted at the behest of our then-Chairman requiring pretrials to take second place to trials. With respect to the former Chairman who is now a sitting Circuit Court judge, we feel there is a balance between trials and pretrials that every Arbitrator has to bring to the table and Doug Holland balanced things very well in our view.

In our view, the 2011 Amendments to the IL WC Act, solidified the pre-trial concept to Doug’s thinking—it says:

(f) Nothing in this Section shall prohibit an arbitrator from holding a pre-trial conference in accordance with the rules of the Commission. (Source: P.A. 97-18, eff. 6-28-11.)

Whenever we read that language in the IL WC Act, we will always remember this great man. As you read this, Doug’s funeral is ongoing at St. Mary’s Church in Utica, IL. The condolences and best wishes of the defense team at Keefe, Campbell, Biery & Associates goes out to his colleagues, friends and family.

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

Synopsis: Employer Exclusion Not Applicable to Volunteers in Recent Indiana WC Decision. Analysis by Joseph B. Moore, III, J.D.

Editor's Comments: The Indiana Court of Appeals reversed the dismissal of a trial court claim for damages against Purdue University following injuries suffered by a 4-H volunteer. The lower court initially dismissed the claim based on plaintiff's acceptance of medical benefits under a worker compensation policy. The Appellate Court ruled the acceptance of medical benefits did not change plaintiff’s status from volunteer to employee and the exclusive remedy defense was not applicable. The Appellate ruling may be found at http://www.in.gov/judiciary/opinions/pdf/10101301ewn.pdf 

The Indiana Court of Appeals overruled the trial court in a recent decision following an appeal from a man injured by a runaway horse named Clu. Plaintiff John Einhorn was a volunteer at the Marshall County 4-H Fairgrounds. One of the horses at the Fairgrounds was spooked by noises and eventually broke loose on the grounds. Plaintiff was later trampled in an effort to wrangle the horse and sustained serious physical injuries. Defendant Purdue University, a fair sponsor, used its worker's compensation policy to obtain medical benefits for Plaintiff. Purdue asserted acceptance of those medical benefits triggered the employer exclusion provision excluding plaintiff from seeking civil damages. The trial court ruled in favor of Purdue, dismissing the matter.

The Court of Appeals reversed, finding acceptance of medical benefits did not change plaintiff's status from volunteer to employee. As Mr. Einhorn was not an employee,  the exclusive remedy provision of the Worker's Compensation Act was not a valid defense to the claim. Despite the legal holding by the court, the claim was ultimately dismissed on separate grounds. The “equine activity statute” barred suit against “equine professionals” or “equine sponsors” because Plaintiff’s injuries would be the result of the “inherent risk of equine activities.” Plaintiff's counsel may petition for transfer to the Indiana Supreme Court.

Courts across the nation have struggled with the dilemma of volunteers in the workers' compensation arena. Earlier this year, California ruled despite acceptance of both medical and workers' compensation benefits, a volunteer had not admitted to being an employee. Two months later, the 5th Circuit Court of Appeals ruled a volunteer firefighter was not a government employee for purposes of filing a civil claim against the government. The 5th Circuit Appellate court noted a split among the federal appellate courts. . Some courts have adopted a multi-factor analysis in which compensation is only one element in determining work status. Many districts hold volunteer status may not be revoked or changed without compensation for work. See text of the 5th Circuit opinion here:http://www.ca5.uscourts.gov/opinions/pub/12/12-30274-CV0.wpd.pdf

This ruling may leave companies and volunteers in a precarious dilemma going forward. If employers don’t have the protection of the employer exclusion, they may be reluctant to cover medical costs of injured volunteers, even though it appears those volunteers may be covered under an insurance policy.  Additionally, it is not clear from the current case whether volunteers may assert rights under the worker’s compensation acts as a means for recovery and treatment as they continue to be deemed “non-employees.”

This article was researched and written by KCB&A Indiana defense attorney Joseph B. Moore, III, J.D.  Joe can be reached for questions, comments, or to discuss any defense issues at jmoore@keefe-law.com.

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.

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

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.

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

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.

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

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.