1-6-2014; New "Repetitive Working" Ruling Analyzed; No Phones-to-the-Ear While Driving WC People!; IWCC Fee Schedule and WCRI Indicate IL Med Costs Dropping and more

Synopsis: Where’s That Dictionary??—“Activist” IL Appellate Court, WC Division Redefines the IL WC Act So Workers Don’t Have to Suffer an ‘Accident’ and No Longer Need an ‘Injury.’

Editor’s comment: As we advised last week, the IL State Chamber recently issued a report about 19 “activist” rulings from our IL reviewing courts that change or modify the legislative scheme to, in some instances, provide benefits outside the expected language of the Illinois Workers’ Compensation Act. We are sad to report to our clients, readers and business observers the 20th such ruling was issued on New Year’s Eve 2013 or just 12 days after the IL Supreme Court knocked out the Venture-Newberg-Perini Webster & Stone v. IWCC “traveling employee” decision. We hope this new ruling is also sent to our highest court for their consideration.

In the ruling in Village of Villa Park v. The Illinois Workers' Compensation Commission, issued December 31, 2013, a
Village employee suffered from spontaneous knee failure while simply walking down stairs at work. He was going from a meeting to the employee locker room. The unanimous appellate ruling found the employee’s occasional use of the ordinary staircase somehow was an “accident.” The ruling does not describe any safety failure, defect, foreign substance, poor lighting or other issue with the stairs.

We would love to see the dictionary where it says it is an “accident” to occasionally walk on a safe and ordinary staircase. In our view, Illinois is the only state among the United States that now has such a definition. There are numerous IL Supreme Court rulings that define “accident” and it typically means something unforeseen, some unexpected defect that led to a slip, trip or fall with an actual traumatic injury.

We Feel This Unexpected Ruling Reverses Numerous Past Fall-Down Decisions

Numerous IL Appellate rulings from First Cash Financial all the way back to theChicago Tribune v. IC ruling in the early 1980’s all require the employee show a defect or problem in the area of their fall. All of those rulings appear to have been implicitly or explicitly reversed by this new standard. It would appear all a worker now has to demonstrate is they were at work and occasionally had to walk around their workplace before suffering a personal problem that has literally nothing to do with work, other than the coincidence of their body breaking down from typical actions.

Tell us, if you will, how to effectively defend claims such as

·         A school teacher who writes on a whiteboard with a marking pen and suffers a spontaneously dislocating shoulder;

·         A nurse pushing an infant patient on a hospital cart whose hip unexpectedly fractures;

·         A secretary walking to get paperclips whose ankle gives way at work without any known cause.

We don’t feel spontaneous knee failure or any of the problems in the examples above should ever be called an “injury.” Claimant in the Village of Villa Park ruling unquestionably suffered from a non-work-related problem that failed due to the routine progression of his problems. If you have a dislocating shoulder or torn meniscus or avascular necrosis, the body part is going to continue to cause problems of a spontaneous nature; your body gives you some warning but eventual failure can be both unpredictable but also certain. When that failure coincides with your work, it isn’t an “injury” it is the expected presentation of your underlying problem. It isn’t an “aggravation” or “injury.”

We don’t think this new idea makes much sense and it is going to lead to hundreds of new and indefensible “repetitive working” claims where our aging workforce suffers the effects of getting older and can “blame” their problems on their employers to get IL WC high permanency awards. Please remember the word “indefensible” means no one needs go to a lawyer or have a hearing before an Arbitrator—globally covered WC claims that are considered indefensible must be picked up by the insurance carriers and TPAs and benefits paid. In our view, it will be much easier to get WC benefits if our Commission and reviewing courts eliminate the messy requirement of the employee having to suffer an unpredictable accident, as our IL WC Act used to require.

To justify the determination the actions of walking on an ordinary staircase is an “accident,” the appellate ruling cites the Commission decision which we feel laughingly claims the worker was continually “forced” to use the stairway as part of his work and breaks. From that nomenclature, it appears the severe and demanding taskmasters/slave-drivers at the Village of Villa Park compelled, coerced and drove this otherwise innocent man to actually traverse the stairs as much as 6 times per day, both for his personal comfort and to complete his work-related activities. We don’t feel climbing stairs maybe as much as 10-15 minutes in a 480-minute or 8-hour work shift is a whole lot of stair-climbing. There are lots and lots of breaks from stair-climbing in between. That said, the appellate majority found the frequency with which the employee was “required” to traverse stairs was an increased risk compared to general public. In our view, climbing stairs six times every eight hours would only be an increased risk as compared to people who live in homes that don’t have stairs. We have literally no idea how to litigate or defend the level of supposed frequency of stair climbing or walking or normal actions of daily life while at work. Would this claim have been denied if the worker only walked on stairs twice a shift and not six times??

Causation-Schmausation??

As we have advised our readers and clients, the main issue the legislative leaders for IL business are trumpeting is making causation in Illinois workers’ comp clearer and potentially stricter. As we have advised IL State Rep. Dwight Kay and outgoing IL State Chamber President Doug Whitley, we don’t feel you can change causation unless and until the jurists considering the issue will follow the statutory intent. This ruling basically ends any concept of “causation” because the Court’s majority isn’t truly requiring an accidental injury—unless you agree it is an “accidental injury” to walk on a safe and ordinary staircase six times in an 8-hour shift. If you add language to the IL WC Act requiring work to be the “primary cause” of the medical condition, this court will certainly rule this ordinary and occasional work task was the primary cause.

Consider Fitness for Duty Evals, Folks

The appellate ruling also points to the fact the employer knew the employee had suffered a non-work-related injury to the knee and still allowed him to return to work. This brings up a constant problem for IL and U.S. employers—when do you allow such a worker back into your workforce? This ruling clearly outlines it may be the employer’s responsibility if the off-work injured worker’s problems appear at all while they are at work. In our view, court decisions such as this enhance the need for FDE’s or Fitness for Duty Evaluations. You may want to consider Accelerated Rehabilitation or Athletico for such evaluations if you are faced with this issue moving forward.

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

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Synopsis: IL WC Participants Need to Adjust to No-Hand-Held-Cellphones-To-The-Ear-While-Driving.

Editor’s comment: We are sure the new IL state law banning the use of hand-held cellphones while driving a car or other vehicle raises problems for claims handlers, brokers, attorneys on both sides and our hearing officers, all of whom rely on their phones to keep in touch for business and family. It is our understanding there is no problem using cellphones while driving but you can’t put them to your ear.

Should you or your firm buy a hands-free device to allow legal cellphone use by your drivers?

Our firm is going to offer it for our defense team. It simply makes good common sense. We also are concerned to the extent our lawyers are officers of the courts of this state and can’t break the law. We are encouraging all of our readers to get hands-free devices and use them regularly.

Is your company liable if an employee using work-provided equipment causes an accident?

In our view, the liability comes from having an employee working while driving—use of the phone is secondary. It is also going to be challenging to prove the phone was being used in the proscribed fashion. You can’t simply look up phone records to confirm there was a call ongoing, as that will not provide any information about how the phone was being held.

The new law went into effect Jan. 1, 2014 making Illinois the 12th state to prohibit drivers from using hand-held phones. Chicago, Winnetka, Evanston and other towns already had banned use of hand-held phones by drivers. The law creates a maximum $75 fine for a first offense of using a hand-held phone while driving. Doing so in construction and school zones in Illinois was already illegal, as is texting while driving. Please note the law creates an exception for emergency calls.

We appreciate your thoughts and comments.

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Synopsis: IL WC Commission’s 2014 Medical Fee Schedule Posted and Combines with the October 2013 WCRI Study to Confirm Solid Savings for IL Employers.

Editor’s comment: The 2014 Illinois Workers’ Compensation Medical Fee Schedule rates, increased 1.52% as of January 1, 2014. They are online at https://iwcc.ingenix.com/IWCC.asp

The Commission asserts if the Illinois Medical Fee Schedule had tracked medical inflation, rates would be 30% higher than in 2006; instead, rates are 7% lower than 2006.

Section 8.2(a) of the Illinois Workers' Compensation Act provides that, each year, fee schedule rates shall increase or decrease by the percentage change in the Consumer Price Index-U (CPI-U) in the previous year.

The defense team at KCB&A considers this another instance where legislative reforms are bringing our WC costs into line or making them lower than our sister states.

October 2013 WCRI Study Confirms Similar Savings for Your Company in WC Medical Costs

The costs of medical care to treat injured workers in Illinois are declining, the result of regulatory change enacted in 2011, according to a study by the Workers Compensation Research Institute (WCRI). The report, Benchmarks for Illinois, CompScope™ 14th Edition, finds medical payments per claim, for claims with more than 7 days of lost time, decreased five percent in 2011. The study reports the decline likely reflected the early impact of the 30 percent reduction in fee schedule rates for medical services.  

In particular, prices paid for professional services to physicians, physical/occupational therapists, and chiropractors were directly affected by the reduction in the fee schedule rates, declining 24 percent between 2010 and 2012. Prices paid for all types of services fell in Illinois, including office visits, major surgery, physical medicine, pain management injections, and minor radiology, according to the study. The study also noted medical cost containment expenses per claim, such as the costs of bill review, case management, and utilization review, rose moderately at five percent in 2011 after little change in the prior year.

The 2011 reforms also focused on some of the large cost drivers behind wage replacement payments—indemnity benefits—particularly the duration of temporary disability, by setting limits on the duration of benefits for carpal tunnel injuries and wage differential benefits.  

In the years prior to the enactment of the reforms, the study found the duration of temporary disability rose rapidly in Illinois, from 16 weeks in 2006 to 21 weeks in 2009, propelling growth in indemnity benefits per claim. Future analysis will determine whether the reforms achieved the intended results.  

WCRI also reported that medical-legal expenses per claim grew much faster in Illinois than in most of the other states in the 16-state study, likely because Illinois does not regulate payments for independent medical examinations, which were used frequently prior to 2011 as part of the utilization review process.

Click on the following link to purchase this study: http://www.wcrinet.org/studies/public/books/BMcscope_multi14_IL_book.html.

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

12-30-13; Our Suggested New Year's Resolution for Supreme Court Chief Justice Rita Garman; How to Best Authorize WC Medical Care; A Must-Read for WC Managers

Synopsis: Our Thoughts on Suggested Workers’ Comp New Year’s Resolutions for IL Supreme Court Chief Justice Rita Garman.

Editor’s comment: We salute esteemed Chief Justice Garman as she has starts her new job as basically the “Five-Star General” of our IL Courts system. As her “captains” and “lieutenants,” we want to provide a few important thoughts.

First, we note the Illinois Supreme Court has complete control of the five-member Illinois Appellate Court, Workers’ Compensation Division. In fact, the IL WC Act still says appeals from the Circuit Court are to be heard directly by our Supreme Court—several decades ago, the IL Supreme Court issued their rule changing that path to require the matter first be heard by the combined panel of the Appellate Court. The IL Supreme Court’s members decide who will be on the penultimate appellate panel. We are respectfully asking Chief Justice Garman take a stronger look at how that panel is made up and potentially open up the selection process with open hearings or discussion from our state’s business and labor leaders.

As you read this, our IL Supreme Court is composed of three jurists of Republican heritage and four who came from the Democratic party. If you read the recent and important report of the Illinois State Chamber of Commerce titled The Impact of Judicial Activism in Illinois, our State Chamber details nineteen WC cases of recent vintage in which the report says decisions by the Illinois Workers’ Compensation Commission that would have limited benefits to injured workers were overturned or greatly weakened by the Appellate Court, Workers’ Compensation Division. It is our reasoned legal opinion the 19 significant rulings demonstrate a strong pro-labor bias by the lower court’s long-term members.

“Sanity Clause” Reinstated by the IL Supreme Court in the WC Arena on December 19, 2013

As we reported last week, the most controversial and shocking of these IL WC appellate rulings was The Venture-Newberg-Perini Webster & Stone v. IWCC that would have increased IL WC benefits by billions of dollars by turning several million Illinois workers into “travelers” who would have then been covered for non-work-related injuries. We were happy to report that last week, our IL Supreme Court’s justices tossed the whole thing, regardless of whether the appeal was over factual or legal issues. Our IL WC system went from pointing to having the highest costs in the U.S. to returning to probably the middle of the top ten of the United States. We again applaud the Supreme Court for their great ruling. However, we hope the Court’s distinguished members see the bigger picture from what they did last week.

When You Can’t Change the Thinking, Sometimes You Have to Change the Thinkers

When we think of what happened, we recall a story about “Da Coach” Mike Ditka. When Ditka was a special teams coach for the Dallas Cowboys, during a game, someone went to Head Coach Tom Landry and told him Ditka had called a reverse on a kickoff return. Coach Landry sent a message back: “Tell him if he runs that play, he’s fired.” Ditka changed the call and never called it again while coaching there. When Da Coach became Head Coach of the Chicago Bears, he called and the Bears ran a reverse on a kickoff during Super Bowl XX. Probably the worst possible thing happened—Bears All-Pro cornerback Leslie Frazier tore his ACL during the runback and never returned to his pre-Super Bowl form. There is no question Da Coach made a poorly thought out decision and the Bears paid for it in the seasons to come. The point we are making is that managers may need to make changes when poor decisions are made.

On the IL WC Appellate side, we are never going to forget the system-deforming potential caused by the Venture-Newberg-Perini ruling we outline above. The same five-members of that IL WC Appellate Court are still on the same panel and while we don’t think they will replicate that challenging call, they may move to other similar legal concepts and rulings, again with an overall focus of increasing IL WC costs in any and every way. With respect to the members of the IL WC Appellate Court, we don’t think that is a solid idea. We suggest new members for the IL WC Appellate panel with fresh thoughts and perspectives be considered by Chief Justice Garman and her distinguished colleagues. We point out Chief Justice Garman can’t and won’t “fire” the appellate justices—we respectfully ask they simply be assigned to handle important appellate work other than their current WC assignments.

How About Some Diversity in the Appellate Court, Workers’ Compensation Division?

On another note, an article from the IL State Bar Journal from May 2013 states

The appellate courts fare better with a 35 percent female population. Huge strides have been made on the Appellate bench since 1990 when only two women served in the entire state. Today, the most females are found in the First District, while the court with the highest percent of female is the Second District with females representing 50 percent of judges. Both districts make up Chicago and the northern-most part of the State.

In over three decades of handling WC appeals, we have never seen a woman justice serve on the IL WC Appellate Court five-member panel. We urge Chief Justice Garman to consider increasing diversity in this important appellate group.

How About a Business Member or Two for the Appellate Court, Workers’ Compensation Division?

We also feel Chief Justice Garman and the other members of our highest Court should consider the opinions of business leaders, the IWCC itself, our WC defense firm and many of the other WC defense firms across our state. The last defense-oriented or pro-business member of the five-member WC Division appellate panel was Justice Allan Stouder in the middle 1990’s, about two decades ago. Justice Stouder would write brilliant dissents, highlighting how a given ruling would hurt the interests of Illinois jobs and businesses—we haven’t seen such a dissent since he left. In fact, we were surprised to see a dissent in the Appellate Court ruling in Venture-Newberg-Perini but by the second and third similar “travelling employee” ruling, that Appellate Court justice fell into line with his colleagues and stopped dissenting.

We assure our readers, it is our view the last pro-business ruling from the Appellate Court, WC Division was way back in 2007 when they issued Airborne Express v. IWCC and limited overtime to workers that used their seniority to get it. Seven years is a long time between defense-oriented appellate decisions. Several hundred rulings since then are generally considered very liberal, pro-labor or “activist”—the main ones are highlighted by the IL State Chamber’s great report on the subject.

Right now, all five members of the IL Appellate Court, Workers’ Compensation Division seemingly act in unison for the interests of IL labor and ITLA. We don’t feel one business-oriented ruling every seven years or more is going to bring our IL WC law into line. To the extent our highest court has three Republican members, shouldn’t at least two members of the lower court also have a business focus?

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

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Synopsis: Thoughts on WC Adjusters Authorizing Medical Care in the IL WC System.

Editor’s comment: There are several medical caregivers who may try to take advantage of you, if you orally approve medical care. Therefore, we feel treatment and surgery authorizations for IL WC claims have to be in writing. We also feel the following fundamental concepts should be in every letter authorizing care under Section 8 of the IL WC Act:

#1: This correspondence does not include authority for a physician or other healthcare givers to dispense prescription medications.

Please be advised prescriptions cannot be dispensed from the physician or other healthcare giver’s office. A prescription card has already been issued to cover any and all injury-related medications and has to be used by this patient. Bills received for this physician or other healthcare givers’ prescription services will be denied. Please issue a written prescription to the employee for any medications prescribed and have them fill it within our protocols.

#2: Light duty work is continuously available for this patient. We will not accept and pay benefits based upon “off work” notes without other requisite information.

Please note the patient’s employer has an extensive light duty program and is anxious to have the patient return to medical modified work as soon as the patient is capable of any light duty work. If the employer cannot provide light work for any reason, we will locate and provide alternative light work at a suitable charity. If the patient provides you information to the contrary, please immediately contact the undersigned to discuss.

#3 This authorization is limited to payment of medical billing consistent with the IL WC Act and Rules Governing Practice—all medical bills will be coded, priced and paid consistent with the applicable law/rule.

This authorization does not guarantee payment of the full, undiscounted amount of your billing--we will pay for this surgical procedure and follow up care according to either an Illinois Workers’ Compensation PPP, PPO contract or the Illinois WC Medical Fee Schedule or the combination thereof, whichever applies. If you feel this care might fall outside those laws, please contact the undersigned before proceeding with care.

#4: Additional pre-authorization may be required for all non-emergent care.

In the case of a true medical emergency during care authorized herein, insure the patient is taken care of and contact us as soon as possible thereafter . For non-emergent care, pre-authorization for any further referral or testing/treatment such as physical, occupational or hand therapy, MRI, EMG/NCV, work hardening/conditioning, additional surgery or FCE is required. If such care is provided without preauthorization, medical bills may be denied. Please contact the undersigned with questions or concerns.

We thank our amazing reader who provided many of these ideas. We would love our readers’ best thoughts on HIPAA-GINA, UR and IME’s—should we include provisions for them in such letters?

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Synopsis: A Great Book, A Great Man and a Great Story.

Editor’s comment: For our readers in the U.S. workers’ compensation industry, you need to consider reading this great book about changing your corporate culture and saving your company money in HR, safety and risk.

The book chronicles an inspiring story of innovative leadership and organizational transformation. Captain Mike Abrashoff took command of the worst-performing ship in our Navy and made it #1 by changing his leadership style and the culture but not the crew.

When Mike Abrashoff took command of the naval vessel, the USS Benfold, the ship’s performance ranked at rock-bottom of the entire U.S. Navy. Worse, the ship’s company and crew didn’t feel safe about using their high-tech equipment and weaponry should they be called into action.

Determined to improve performance, but without the power to hire, fire or promote personnel, Captain Abrashoff focused on what he could change: the ship’s culture. His innovative approach broke from the traditional command-and-control leadership style and sought to see the ship from the eyes of his crew; creating a guiding set of principles he called Grassroots Leadership.

When crew members asked Abrashoff to solve a problem, his standard response became, “It’s your ship; what would you do?” The result was an empowered and engaged team that turned the ship into the Navy’s top performer. People at every level in business relate to Captain Abrashoff’s dilemma: being held accountable for safety and performance results without having the ability to make the rules or the players. His results-oriented approach equips organizations with the strategies, tactics and tools necessary to unleash innovation, lead significant change and increase operational performance. We also note his approach crosses all organizational lines—Captain Mike asked the lowest ranking worker to his second-in-command for their “best practices” approach on a regular basis.

Publications have heralded this remarkable story and Abrashoff’s first book, It's Your Ship: Management Techniques from the Best Damn Ship in the Navy, is a best seller with nearly 1 million copies in print. Last year, the much anticipated 10th anniversary edition of It’s Your Ship was released with updated content and a new chapter. We urge everyone to read this great work.

12-23-13 NEWS FLASH IL Supreme Court Strikes Traveling Employee Expansion; Medicare Update by Shawn R. Biery, JD, MSCC; IRS Mileage Rate Announced for 2014 and more

Synopsis: Clearly There is a Sanity Clause!!! The IL Supreme Court Returns Our WC System To Only Covering Work-Related Injuries.

Editor’s comment: Happy Holidays to all of our readers!! We are very happy to advise the IL WC system reversed the decision of the Appellate Court, Workers’ Compensation Division in The Venture-Newberg-Perini Webster & Stone v. IWCC. The high court’s ruling is online at:http://www.state.il.us/court/Opinions/SupremeCourt/2013/115728.pdf

In the lower court ruling and three other similar appellate rulings that followed it, workers were injured going to or coming from work or on breaks. Illinois suddenly and without any warning defined “traveling employee” as any worker who

·         Worked at any worksite that wasn’t the “premises of their employer”;

·         Worked at two or more worksites for the same employer; or

·         “Traveled” as an essential part of their work.

We felt this was effectively global 24/7 WC coverage for many workers in a billion-dollar expansion of WC costs. Please note these odd and unprecedented definitions are not contained in the 104-year-old IL Work Comp Act or Rules Governing Practice. With respect to our jurists, it is our view these now-defunct terms/definitions were all “judicial legislation.” These definitions would render almost every construction worker, staffing employee, municipal employee, attorney, physicians/nurses and all transportation workers into the new legal status of “travelers.”

Having created these unprecedented definitions, the lower court ruled “traveling employees” were covered under workers’ comp or occupational illnesses for any “reasonable and foreseeable activity” from the moment they left their homes until they returned home. The coverage was applied “as a matter of law” so to dispute coverage would result in penalties/fees against the insurer/TPA. In our view, anyone who worked at their home would be covered all day and night. Again, the term “reasonable and foreseeable activity” isn’t defined in the Act or Rules. It is our view 99.99% of human activity leading to injuries and illnesses can be deemed “reasonable and foreseeable”—the terms are unquestionably subjectively viewed in the eye of the beholder because what is “unreasonable” to you might be very reasonable to another. Now, that concept has also been cancelled, invalidated and negated by our highest court.

Basically, what we would have been left with was two wildly different WC systems. One system was for “travelers” as outlined above—they were covered for any malady, injury or illness as a matter of law. The other system was the traditional WC system where you had to show your injury “arose out of and in the course of” employment.

Our IL Supreme Court overwhelmingly tossed all of it out as of December 19, 2013. As court-watchers and academicians, we were moderately happy to see the majority ruling consider whether the issue was factual or legal in origin. Our highest court clearly indicated it didn’t make any difference—under either standard, the lower court and IWCC ruling was over and out.

Is Anyone Embarrassed About This Mess?

Illinois work comp law isn’t that complex. As we advised, it has been around for more than a century. Here is how the IL WC administrative system handled the issue through five different levels of hearings/appeals:

Hearing Officer/Reviewing Court

For Traditional WC Legal Interpretation

For New, Unusual and Unprecedented WC Law

Arbitrator

Benefits denied

IL WC Commission

One vote for denial

Two votes for New Rule

Circuit Court

Benefits denied

Appellate Court, WC Division

One vote for denial

Four votes for New Rule

Supreme Court

Six votes for denial

One vote for New Rule

Our IL WC Commission and penultimate reviewing court gave us literally no warning as to what they were doing in the explosive and expansive interpretation provided. On December 6, 2012, the IL WC Appellate Court created new law that no one expected and that clearly would have pushed our state to become the most expensive state in the union for WC costs/premiums/benefits. All of the legislative reforms from 2005-6 and 2011 would have been completely reversed in a random and unfair fashion by our judiciary. Thankfully, 378 days later, the IL Supreme Court flushed it all down the drain and returned us to “sanity.” Our hope is to our IWCC and judiciary follows the law, as drafted, and no longer feels compelled to be a “super-legislature” moving forward.

How Did It End?

Well, you have to give full credit and kudos to our highest court and its illustrious members—they followed the law and common sense and tossed it out. You also have to give credit to lead defense attorney Ted Powers who fought and fought and won the ruling. The IL State Chamber provided their input for their members and followers with a solid report about IL WC judicial “activism.” We were also certain the IL State Chamber was ready with even more legislative changes to try to reverse this concept, if the courts wouldn’t do so.

Without meaning to toot our own horn too much, we also feel the great defense team at KCB&A earned some credit for our hard work in letting all sides understand how silly, unfair and unsustainable this legal concept was—we remain thrilled to see the confusion, costs and craziness kicked to the curb forever.

What Do We Take From It?

We continue to feel there is a group from ITLA or the Plaintiff/Petitioner’s bar that doesn’t agree IL WC costs should be reasonable and predictable. This same group doesn’t care if their WC ideas make sense for all sides or fit into traditional workers’ comp principles. They sometimes have the ear of the IWCC and our reviewing courts and won’t stop trying to influence them whenever and wherever possible. While we are sure their efforts are legal, we don’t feel outcomes like this are in any way a good idea for this state. We feel major national employers like Boeing and Safeway lose interest in doing business in our state when they see such confusion and chaos.

As we told our readers last week, simple concepts like firefighters shooting hoops during idle hours clearly isn’t covered under our IL WC Act. The Arbitrator and IWCC panel that recently awarded benefits circumvented the clear statutory scheme by playing with the facts or the law in a fashion that we consider similarly embarrassing—we just don’t see an “wriggle-room” on the topic. When they do things like that, we will forever think of rulings like this one from our highest court saying it doesn’t matter whether you look at the law or the facts, it just isn’t covered.

Our message to the entire IL WC community is clear—provide benefits to IL injured workers to the extent our legislature outlines them. Follow the simple and patent meaning of the law provided to you. Don’t finger-paint new law that no one has considered or expects. We don’t feel the administrators at the IWCC or reviewing courts should have license to deform the statutory language in new, untested and unprecedented ways.

The 2005-6 and 2011 Amendments to the IL WC Act were forged in the hard light of day with all sides present and providing their input. No one on either side of the IL WC matrix likes all of the changes but we are all stuck with them. We are confident the amendments will work to bring our WC costs in line, if we adhere to them.

God Bless All Of Our Readers, Friends and Clients. Season’s Greetings to you and your family.

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Synopsis: Update on WC Medicare Issues: More Specific Guidelines on Protecting Medicare’s Interests; Watch for Penalties!

Editor’s comment: The Centers for Medicare & Medicaid Services has submitted two items of interest to our readers for review to the Office of Management & Budget (OMB) in recent months with regard to Medicare Secondary Payer Compliance. The OMB is being asked to approve a Notice for Proposed Rule Making with regard to how CMS expects its interest with regard to future medical be managed in liability claims and has also moved forward to on setting rules regarding Mandatory Insurer Reporting Penalties.

Once approved by OMB, the separate rules will be unveiled for public comment and the public commentary period is then open for 60 days. Assuming the amount of public comment anticipated, there is likely to be a Further Notice of Proposed Rulemaking issued which would extend the process and delay any rule being finalized to the point of having a Report & Order is issued.

You should expect something no sooner than sometime during the first quarter of next year. While the liability claim rules only peripherally affect WC claims with some liability issues concurrent, the rules with regard to safe harbor consistent with the requirements of the MMSEA law of 2007 and the SMART law signed into law in 2013 will be important to know your risk if Medicare’s interests are not seriously considered. It should be noted that there is no true set time frame for CMS to act so the process is open ended to an extent. We will continue to update as the notices come out and are prepared to present public comments to pressure for favorable rules for our clients.

This article was researched and written by Shawn R . Biery J.D., MSCC and he can be reached at 312-756-3701 or sbiery@keefe-law.com. Both Shawn and Matt Ignoffo at mignoffo@keefe-law.com  are certified MSA consultants in our office who are prepared to field any questions you may have.

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Synopsis: IRS Announces 2014 Standard Mileage Rates.

Editor’s comment: Claims handlers should adjust IME mileage payments. In Section 12 of the IL WC Act, the law requires self-insured employers, insurance carriers and TPA’s to provide mileage, meals and time lost from work to be paid as part of scheduling an IME for an injured worker. On Dec. 6, 2013, the Internal Revenue Service issued the 2014 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes. This is the rate used by the IWCC to provide mileage for IME’s.

Beginning on Jan. 1, 2014, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:56 cents per mile for miles driven. The expense rate decreased one-half cent from the 2013 rates.

If you have questions or concerns, send a reply.

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Synopsis: What Does a U.S. Employer Do With a Worker That Has Severe Medical Issues?

Editor’s comment: Under the ADA, this question is coming at us more and more. In Gogos v. AMS Mechanical Systems, Inc., our federal Seventh Circuit Court of Appeals considered a claim where the employee filed a suit for disability discrimination claim against his employer. The worker alleged he was disabled because of episodes of very high blood pressure, intermittent blindness, and chronic blood-pressure condition. He further alleged these medical problems substantially impaired major life activities involving his circulatory function and eyesight.

Despite all of those significant and game-changing medical problems, the worker alleged he was qualified to perform the “essential functions of his job.” In our view, unexpected temporary blindness would render any worker a health and safety risk to themselves and others. However, we feel the employer would have to carefully evaluate the medical condition’s inception, duration and severity before taking job action.

This worker alleged he suffered an adverse employment action because of his disability, in that he was fired immediately after he reported his medical conditions to his foreman. In our view, the employer has to document, document and further document their investigation, attempts at reasonable accommodation and overall handling of such conditions. If you need help in dealing with similar claims in your workplace, send a reply.