4-7-14; When Do You Need to Start Drug/Alcohol Testing?; Understanding IL WC Hearing Loss Claims; Mary McNichols, RIP and much more

Synopsis: When Do You Need To Start To Drug/Alcohol-Test?

Editor’s comment: Okay, readers--is there any other solid HR/Safety approach to dealing with medical marijuana and other legal/semi-legal drugs in the U.S. workplace? We presented for a great audience last week at MacNeal Hospital/Clearing Clinic in Berwyn, IL. The topic everyone is asking about is what is the optimal approach to dealing with the new challenge of medical marijuana in the workplace. Illinois and many states have recently “legalized” the use of this drug; please note the U.S. Government continues to ban the drug but it appears the feds aren’t going to interfere with doctors prescribing it and patients using it. As we all start worrying about medical marijuana due to expectations it will become commonplace for lots of employers, our readers and clients report lots of other strong drugs like Norco and Oxycodone are being regularly used at work too.

Our main concern for you and all HR/Safety/Risk managers will be reacting to medical marijuana for the first time after it hits your workplace. By that we mean, you don’t want to wait for to learn you have one or two folks using it to then respond and start to make changes. While it is possible to do so, if you start to take job action leading to termination against the first medical marijuana user, you are almost certainly going to be discriminating against that worker, exposing your organization to litigation or EEOC/IDHR claims. Trust us, the EEOC or IDHR love to “attack” or penalize employers in a fashion that allows the agencies to herald their successes.

In our view, some employers have moved aggressively to create alcohol and drug-free workplace policies. If you are thinking about going that route, we have a sample drug and alcohol-free program for your consideration and use—if you want a copy, send a reply. In our view, the risk and cost of one impaired individual in your workplace more than justifies the cost of implementing and enforcing the program.

We also feel there are lots and lots of employers who haven’t made the decision to move their organization and work sites to a completely drug and alcohol-free workplace. There are costs and challenges to implement an alcohol and drug-free workplace program. In some industries, you are required by law to implement them but lots of companies are not so constrained. From the viewpoint of component members of the workers compensation community—do insurance carriers/TPA’s, law firms on both sides, nurse case management providers, physicians, hearing officers and others need to start considering a move to become drug and alcohol-free? Those aren’t considered “high-risk” jobs but heightened risks do come from the use of drugs, even in administrative environments.

We feel the next-best question for such employers is how to deal with use of medical marijuana, prescription narcotics, surreptitious use of illegal drugs and a workers-using-someone-else’s prescriptions during work hours on your job site. Our problem with “Plan B” in trying to manage such a workforce is you are looking at liability, liability and more liability. By that we mean, if you don’t drug/alcohol test and let folks closely follow the legislation to openly use medical marijuana while at work, you have several issues that are inescapable. If the worker is allowed to regularly and routinely use medical marijuana, they are arguably impaired as part and parcel of the work they are doing for you. Whether you like medical marijuana or not, such a worker is an increased health and safety risk to themselves, their co-workers and the public at large.

In the legal world, the concept of “respondeat superior” makes U.S. employers arguably responsible for the actions of your workers when they are doing the things you hired them to do. You can also be responsible for some acts if you don’t take reasonable steps to stop bad behaviors by your workers that you are aware of. As an example, you may have heard about the recent situation where a Chicago Transit Authority elevated train driver fell asleep and then smashed the train into an El station at the end of the line and injured around 30 passengers. Please note that accident could cost Chicago taxpayers several million dollars. For example, if the CTA allowed that worker to legally use medical marijuana and part of the reason the driver fell asleep was use of the drug, the CTA might have greatly heightened liability.

We are sure common carriers such as the CTA have lots of rules barring drug and alcohol use by their transit drivers. We salute the Authority for terminating the driver who had two significant safety issues on her record. However, do HR, safety and risk managers understand you now face the same problems for any of your workers who drive any motor vehicle or operate any machinery as part of their work? If your workers are more likely to fall asleep due medical marijuana use and you don’t take action to stop such use, your responsibilities under both workers’ comp and general liability are greatly increased.

So let’s look at some options. As we have advised our readers, there are four main approaches to drug and alcohol testing:

·         Pre-hire;

·         Random;

·         Reasonable cause and

·         Post-accident.

If you are the slightest bit concerned about drug and alcohol use in your workplace, you can do one of the four above or any combination of the above or whatever you feel best. What we don’t think you can or should do is none of the above!

If you are going to test everyone in a pre-hire setting, you are probably going to spend a significant amount of money with a cost per worker of around $50-200 for each person tested. For lots of major employers, that is a significant cost but on the positive side, you are blocking problem workers before they become your problem.

Random drug/alcohol testing can be managed as you feel best—you don’t have to randomly test a large portion or your workers and can limit the sample to control your costs.

Reasonable cause testing is also a controllable method to handle the issue of seeing impaired workers and stopping them from using drugs or alcohol that create concerns for your managers. The problem with limiting drug/alcohol use in this fashion is the concept comes with a higher potential for your company to get sued over the issue of what “reasonable cause” might be; particularly if you are routinely getting negative results but continuing to test.

Post-accident drug/alcohol testing is a solid fall-back position to insure your workers understand if they are injured, you are going to test. It is relatively simple to let your IL WC PPP network or your company clinics know you want everyone reporting an injury to be tested. We hope you don’t have lots and lots of accidents so this approach should be relatively low in cost.

The only approach we don’t agree with is no testing of any kind. We assure you the decision not to test in any fashion at any time will be a very challenging concept for any employer to follow with the heightened use of drugs, alcohol and other intoxicants that have become commonplace in society.

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

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Synopsis: Understanding Hearing Loss Claims in IL Workers’ Comp.

Editor’s Comment: There are two kinds of hearing loss claims in IL. It is important to understand the nuances of this aspect of such claims.

First is what we call “BOOM” or a sudden, one-time blast/blow-up or a smack to the head/ear. The IL WC Act refers to it as from as arising from “trauma or explosion.”

Such claims are treated like any other accident with injuries. Claims managers need to investigate, seek proper treatment for your worker and get documentation of temporary and permanent hearing loss. We feel such claims could be combined with other injuries—if a worker broke their foot in a loud explosion, you might need to take care of the foot and possibly pay for hearing loss for the explosion. The challenge for the worker is meeting the burden of proof to show their hearing loss is related to the “boom.”

In such a situation, this statutory language applies:

4.         Loss of hearing of one ear-

50 weeks if the accidental injury occurs on or after the effective date of this amendatory Act of the 94th General Assembly but before February 1, 2006.

            54 weeks if the accidental injury occurs on or after February 1, 2006.

            Total and permanent loss of hearing of both ears-

200 weeks if the accidental injury occurs on or after the effective date of this amendatory Act of the 94th General Assembly but before February 1, 2006.

            215 weeks if the accidental injury occurs on or after February 1, 2006.

Second is “repetitive exposure” or more precisely industrial hearing loss. These sorts of claims can become intertwined with OSHA sound requirements in your workplace. To get benefits for industrial loss, the employee has to show exposure to specific levels of loud noise—see below. The baseline is 90 decibels for all 8 hours of a work shift. You don’t typically see that much noise for that long because OSHA may get involved to require hearing protection at appropriate levels.

For that reason, we consider it rare to have an employee exposed to loud or very loud levels for the times indicated. OSHA usually busts employers long before it would apply. If you have any workers who are claiming regular and consistent exposure to 90 decibels or more over an entire day, you need to test and then affirmatively start requiring needed hearing protection for all workers at levels necessary to insure the decibels are under the chart below.

From the IL WC Act:

16. For the permanent partial loss of use of a member or sight of an eye, or hearing of an ear, compensation during that proportion of the number of weeks in the foregoing schedule provided for the loss of such member or sight of an eye, or hearing of an ear, which the partial loss of use thereof bears to the total loss of use of such member, or sight of eye, or hearing of an ear.

             (a) Loss of hearing for compensation purposes shall be confined to the frequencies of 1,000, 2,000 and 3,000 cycles per second. Loss of hearing ability for frequency tones above 3,000 cycles per second are not to be considered as constituting disability for hearing.

             (b) The percent of hearing loss, for purposes of the determination of compensation claims for occupational deafness, shall be calculated as the average in decibels for the thresholds of hearing for the frequencies of 1,000, 2,000 and 3,000 cycles per second. Pure tone air conduction audiometric instruments, approved by nationally recognized authorities in this field, shall be used for measuring hearing loss. If the losses of hearing average 30 decibels or less in the 3 frequencies, such losses of hearing shall not then constitute any compensable hearing disability. If the losses of hearing average 85 decibels or more in the 3 frequencies, then the same shall constitute and be total or 100% compensable hearing loss.

             (c) In measuring hearing impairment, the lowest measured losses in each of the 3 frequencies shall be added together and divided by 3 to determine the average decibel loss. For every decibel of loss exceeding 30 decibels an allowance of 1.82% shall be made up to the maximum of 100% which is reached at 85 decibels.

             (d) If a hearing loss is established to have existed on July 1, 1975 by audiometric testing the employer shall not be liable for the previous loss so established nor shall he be liable for any loss for which compensation has been paid or awarded.

             (e) No consideration shall be given to the question of whether or not the ability of an employee to understand speech is improved by the use of a hearing aid.

             (f) No claim for loss of hearing due to industrial noise shall be brought against an employer or allowed unless the employee has been exposed for a period of time sufficient to cause permanent impairment to noise levels in excess of the following: 

Sound Level DBA 

Slow Response      Hours Per Day

90                                8

92                                6

95                                4

97                                3

100                              2

102                              1-1/2

105                              1

110                              1/2

115                              1/4

         This subparagraph (f) shall not be applied in cases of hearing loss resulting from trauma or explosion.

Sound equivalents from the web:

* 110 decibels, equivalent to deafening factory noises and some music boxes turned up too loudly..

* 100 decibels, equivalent to a chain saw, pneumatic drill, printing plant, jackhammer, speeding express train, some car horns at five yards, farm tractor, riveting machine, some noisy subways [about 20 feet].

* 90 decibels, equivalent to a police whistle, heavy traffic, noisy home appliances subway-rail train, pneumatic drill or hammer at one meter, rock drill at 100 feet, some motorcycles at 25 feet, shouted conversation.

If you need assistance or consultation on a hearing loss claim, “BOOM,” just send a reply.

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Synopsis: Mary McNichols, Rest in Peace.

Editor’s comment: The IL WC community is saddened to hear of the passing of Mary McNichols, J.D. who was a long-time and brilliant workers’ comp lawyer. She lost her battle with an illness  and recently passed in the company of her family. Mary was married to Pat Tallon of Fitz & Tallon, a respected Plaintiff/Petitioner firm.

Mary was the daughter of John J. McNichols, J.D. who was a past president of the Illinois Workers’ Compensation Lawyers Assn.

The attorneys and staff of Keefe, Campbell, Biery & Associates extend our condolences to the family, friends and colleagues of Ms. McNichols.

3-31-14; Will Northwestern Football Forever Change College Sports/Scholarships to Get WC Benefits?; Important IL WC Death Claim Ruling; Mike Shanahan, JD reports on WCLA CLE Presentation and more

Synopsis: Will Northwestern Football Players Forever Change College Sports and Possibly All Scholarships to Get WC Benefits?

Editor’s comment: This past week, the world of college sports was tossed on its ear with a ruling from the Chicago District of the National Labor Relations Board. The Board ruled last Wednesday that Northwestern football players are now employees of the university and can unionize. NLRB regional director Peter Ohr cited the players' time commitment to the sport and the fact  their scholarships were tied directly to their performance on the field as reasons for granting them union rights. Ohr wrote in his ruling the players "fall squarely within the [National Labor Relations] Act's broad definition of 'employee' when one considers the common law definition of 'employee.'" Ohr ruled players can hold a vote on whether they want to be represented by the College Athletes Players Association, which brought the case to the NLRB along with former Wildcats quarterback Kain Colter and the United Steelworkers union.

Northwestern issued a statement shortly after the ruling saying it would appeal to the full NLRB in Washington, D.C.:

While we respect the NLRB process and the regional director's opinion, we disagree with it," the statement read. Northwestern believes strongly that our student-athletes are not employees, but students. Unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes.

In a statement, NCAA chief legal officer Donald Remy said: "While not a party to the proceeding, the NCAA is disappointed that the NLRB Region 13 determined the Northwestern football team may vote to be considered university employees. We strongly disagree with the notion that student-athletes are employees." Remy added: "Over the last three years, our member colleges and universities have worked to re-evaluate the current rules. While improvements need to be made, we do not need to completely throw away a system that has helped literally millions of students over the past decade alone attend college. We want student athletes -- 99 percent of whom will never make it to the professional leagues -- focused on what matters most -- finding success in the classroom, on the field and in life."

The Big Ten also disagreed with the ruling and released a statement that read: "While we respect the process followed by the National Labor Relations Board, we disagree with the ruling. We don't believe that student-athletes are university employees. The issues raised during the hearings are already being discussed at the national level, and we believe that students should be a part of the conversation."

Colter, whose playing eligibility has been exhausted, said nearly all of the 85 scholarship players on the Wildcats' roster backed the union bid, though only he expressed his support publicly. The United Steelworkers union has been footing the legal bills. CAPA attorneys argued college football is, for all practical purposes, a commercial enterprise that relies on players' labor to generate billions of dollars in revenues. They contend the commercial enterprise makes the relationship of schools to players one of employers to employees.

Should Northwestern Football Players Get IL WC Benefits?

One of the benefits the football player/students are seeking is workers’ compensation coverage for all injuries they suffer. This benefit might provide them full medical coverage for football-related injuries, “lost time” and permanency. Please note one of the fundamentals of workers’ comp benefits other than medical benefits is having a salary or wages from which to compute the Average Weekly Wage, TTD and PPD. The only current salary the players have is the compensation they receive for tuition, room and board. All reports indicate the value to the players for an annual scholarship is $76,000 a year which would render an AWW of about $1,461.54 each week. Their  TTD rate would be $974.36 and PPD would be the current maximum IL WC PPD rate of $721.66.

The problem the football players have is they remain on scholarship on a year-to-year basis so they wouldn’t need TTD until their scholarships ran out. While serious and moderate football injuries do happen, most of the players are young, strong and recover for the most part. We don’t see significant PPD awards other than for the most serious injuries. However the risk and cost of WC insurance for such players would be significant. The whole thing could be replaced by a group health policy for the players with benefits to match need.

In short, we can’t think workers’ compensation is much of a benefit for the players to throw the whole world of college football/sports and scholarships upside-down about. There have to be better paths to remedy the problem. We haven’t seen one compelling reason to change all of it.

How About Federal and State Income Taxes? Aren’t These Players Fighting for the Right to Pay Union Dues?

Please note the football players at Northwestern basically agree their annual scholarship “compensation” or “income” is tax-fee income of up to $76,000 a year. To net that much income if they are going to be taxed, you would have to pay each player from the third-string offensive tackle to the star quarterback over $100K a year.

Starting with $76,000 as tax-free income, it appears from reports there are 85 such NU athletes. The annual cost to Northwestern of 85 football scholarships at $76,000 per year is $6,460,000. There are also multimillion-dollar annual costs paid by the University for equipment, maintenance, coaches, training, transportation and lots of other things. There is an unstated assumption Northwestern University nets zillions of dollars on college football and the school is being “pigs” not to share all or more of it with the players—it is our thinking NU does somewhat better than break even during the good years and use the profits for the overall sports program. We are sure there are lots of college football programs that don’t make money.

To our understanding, for the first time in U.S. history, college scholarship money has been legally ruled to be compensation or income. Up to now, the federal government and all state governments don’t tax it. Please understand our view the lack of taxation to date is precisely because the kids are viewed as students who willingly participate in sports they love in exchange for free education, current popularity and future opportunities. College football players don’t have written employment contracts and can leave college sports to turn professional very rapidly. College football players are promised professional opportunities in and out of sport along with the fame and fun that comes with the college game.

In our view, the lack of taxation is because the kids weren’t previously viewed as employees and the money wasn’t viewed as “compensation.” For the first time, the kids now demand to be employees, contribute union dues and their scholarships have now been ruled income. At the behest of NU Football Players with the funding of the United Steelworkers, the Chicago District Office of the NLRB has now expressly decided the $76,000 in tuition, room and board is payment for services. The Feds and the State of Illinois always and routinely tax payment of income for services rendered. It is possible we may see class action lawsuits demanding government tax levies. These suits may come from ordinary folks who didn’t get the opportunity to attend Northwestern and who don’t care a whit about what would be semi-pro football players getting an undue pass on the income taxes, FICA and other things we all have to pay..

It isn’t a major leap to then add all Northwestern basketball, lacrosse, soccer or other male and female athletes as being “compensated” for their services. We assure our readers the same legal factors/principles apply to them as they do to college football players. Why can’t all those athletes be similarly taxed? And why stop with athletic scholarships—can’t all college scholarships for science, medicine, arts and other pursuits also be viewed as income for services? Can’t we tax all of those dollars? Don’t universities and colleges make untold millions off research by college students for science, software development and medicine?

If we start to treat college scholarships as “income,” can the students affected afford to pay the taxes on what they demand is their compensation? Well, the federal taxes on $76,000 are something like $20K. The 2015 Illinois state income tax that we now call the “Quinn-come tax” is at 5% is $3,800. Please note the tax monies may be due from all scholarship students to include athletes and non-athletic scholarships. Please further note if the students have to pay taxes and union dues on their scholarship income, they still have to pay their schools the missing balance due—Northwestern isn’t going to take $50K in net scholarship money when room, board and tuition are $76K.

So What is the Best Answer?

We are unsure but uncertainty clearly prevails. In our view, every college football player who excels at this lower level of sports feels they are entitled to much more than they receive. We are also sure the college football system could be improved in lots of ways—what system can’t be improved? But to

·         Turn all college athletes and others on scholarships into university employees;

·         Unionize all college athletes or others on scholarships;

·         Provide global WC benefits and

·         Make college scholarships taxable income

is going to be a major transition. This may go all the way to SCOTUS (Supreme Court of the United States) before it ends. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: IL WC Appellate Court Affirms Denial of Deep Venous Thrombosis Leading to Trucker’s Passing. We Note No “Quantitative Risk;” No “Traveling Employee” Issues Involved.

Editor’s comment: This is an appellate ruling with which we strongly agree. Our single academic concern is the IL WC Appellate Court’s continued determination to “non-publish” many of their important, well-researched and detailed rulings that many observers consider crucial for all sides to understand. Please remember this claim had to have at least $1M in benefits at stake. We think when that amount is in dispute should mandate normal publication.

In Sherrod v. Star Transport, issued in Feb. 2014, Decedent Sherrod began working for Respondent, Star Transport, Inc. (Star), on May 1, 2008, as a long haul truck driver. Before he was hired, he underwent a physical examination and was found medically fit for the job. Upon commencing his employment, Decedent began a probationary training period with Star.

On June 15, 2008, about five weeks into training, he was on a route from Florida to Peoria, Illinois, when he stopped in Lebanon, Tennessee, for the night. When Decedent failed to check in with Star on that date, Star contacted the management of the hotel in which Decedent was staying. A hotel manager subsequently found Decedent lying on the floor of the hotel. An ambulance was dispatched, and Decedent had passed at the scene.

Upon learning of the death, Claimant authorized Tennessee officials to conduct an autopsy on Decedent in order to rule out foul play. According to Claimant, Decedent was not actively “sick” at the time of his death, but had suffered from chronic asthma for which he took over the counter medication. Decedent's fiancé testified in telephone conversations she had with Decedent during his training, he stated he complained to Star about pain and swelling in his leg, and also told his fiancé he was "in the truck constantly and did not have access to the rest area of the cab of the truck." The fiancé also testified she could hear Decedent wheezing in these conversations.

The only expert testimony in this case came from medical examiner Dr. Stacy Turner, who performed the autopsy on Decedent, and testified by deposition on behalf of the claimant. Dr. Turner testified Decedent died in a natural manner and his death was caused by a pulmonary embolism originating from deep vein thrombosis of the leg. Most likely, a blood clot formed in his leg and traveled through his body and into the lungs, causing a pulmonary embolism. According to Dr. Turner, the exact cause of deep vein thrombosis (DVT) is not often known, but it could result from many different things, such as problems with the blood itself; problems with blood vessels or blood flow; injuries; hereditary predispositions; and stasis, which means being still for a long period of time. Dr. Turner testified that obesity and an enlarged heart are also risk factors, and, based upon her examination, Decedent had a significantly enlarged heart and was obese.

Dr. Turner indicated that sitting still for a continuous period of time could cause an abnormal blood clot to form, or result in the formation of additional clots if a clot was already in existence. Although Dr. Turner acknowledged DVT could exhibit symptoms such as a swollen leg, she testified that the autopsy did not indicate Decedent had any leg swelling. When asked about the likelihood someone could develop DVT when being required to sit for days at a time, Dr. Turner responded there was no way to tell, and it would be different for each individual.

On cross-examination, Dr. Turner testified that she could not give an opinion as to whether Decedent's work activities led to his DVT or to the pulmonary embolism that ultimately caused his death. She further indicated that she had no idea of the time sequence in which the blood clot formed or when it traveled through the decedent's body to cause the pulmonary embolism. Finally, she was unable to say that the prolonged sitting lead to the blood clot that caused the decedent's death in this case. According to Dr. Turner, she was not provided information as to the length of Decedent's employment as a truck driver or trainee or how much time he spent driving. She further indicated she did not have any of the decedent's medical records prior to the occurrence.

Driver logs were critically important—Decedent was employed by Star for six weeks. He drove an average of 34.5 hours a week. In our view, that isn’t a lot of sitting, as it is about 20% of the time in a 168-hour or 7-day week.

From the evidence, the Arbitrator denied the claim. The IL WC Commission wrote a solid and excellent opinion which carefully weighed the medical/expert evidence and noted there was no clear opinion on causal connection in the record. To the extent Dr. Turner opined “prolonged sitting” might contribute to DVT, she also outlined lots of other factors, like the personal conditions of obesity and an enlarged heart could have caused the issues leading to death.

Unlike the IL WC Appellate Court’s ruling in the controversial ruling in Village of Villa Park and its progeny, the Court’s majority didn’t go into the ‘qualitative” and “quantitative” analysis of risk. We are also ecstatic to report the IWCC and this Court didn’t even mention or analyze the facts based on their previous and controversial expansion of the “traveling employee” concept. We assume IL truck drivers are no longer implicitly defined as “traveling employees” and each injury claim has to be viewed on its merits, as in years past. The IL WC Appellate Court simply affirmed making the double-negative finding the IWCC’s ruling wasn’t against the manifest weight of the evidence.

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

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Synopsis: The IL Workers’ Comp Lawyers’ Ass’n CLE’s for the IL WC Industry--Dealing With Impairment Ratings at the IWCC. Thoughts and Analysis by Michael Shanahan, JD.

Editor’s comment: On March 27, 2014, the concept of impairment ratings was presented by WCLA in a continuing legal education format. We salute the officers of WCLA for making such presentations open to the public. A point/counterpoint discussion was held to highlight how the IL WC Commission has treated the 5 statutory factors relating to impairment ratings in the recent decisions and the trends that have emerged.

This past week senior WCLA reps discussed the five factors of permanent partial disability under Section 8.1b and how the Commission has treated each factor in recent decisions. As we know by now, for injuries occurring after September 1, 2011, the level of an injured worker’s permanent disability is statutorily based on the following factors:

(i)            Medical impairment rating;

(ii)          Occupation;

(iii)         Age;

(iv)         Future earning capacity; and

(v)          Evidence of disability corroborated by treating medical records.

As to the first factor, the Illinois Workers' Compensation Act explains how the AMA guidelines are to be used. Section 820 ILCS 305/8.1a "Determination of permanent partial disability" provides that, "for accidental injuries that occur on or after September 1, 2011, the most current edition of the American Medical Association's ‘Guides to the Evaluation of Permanent Impairment' shall be used by the physician in determining the level of impairment."

The single most important aspect of the first factor, which is cited in nearly every Commission decision, is the distinction between disability and impairment. The AMA Guide does not evaluate “disability” - it rates “impairment” and impairment does not necessarily mean disability.

The second factor and fourth factor (occupation and future earning capacity) are closely tied so we will discuss them together. The WCLA discussion suggested veteran and knowledgeable lawyers on both sides may present evidence on not only the current occupation, but all work experience. Providing the total picture of work history may show the injured employee has recovered and is now capable of adjusting to new positions and learning new skills. Transferable job skills and adaptability are fundamental to employability and employability is inherent in determining future earning capacity.

Next, a worker’s age. While this may seem innocuous and straightforward, do not be lulled into cutting corners. With regard to age, it seems the trend is best exemplified as follows:

·         The younger the worker, the longer the work life expectancy, the more PPD

·         The older the worker, the more residual effects/less time to recover, the more PPD.

Any way you slice it…it seems like it goes the other way for those of us on the Respondent’s side. So, what can we do? A colleague made a great point – there are plenty of 60 year olds who are as healthy as 40 year olds. On the flip side, there are plenty of 40 year olds who have the misfortunate health of some declining 60 year olds. Our job is to argue for inferences. For example (not to pick on older guys/gals), we could argue the older guy/gal will not be living with disability as long as a younger worker.

The fifth and final factor requires evidence of disability “corroborated” by treating medical records. The statute gives examples of impairment such as loss of range of motion, loss of strength, atrophy of the tissue, or any other measure that establishes the nature and extent of the impairment. These and other impairment measures must be “corroborated” by treating records. Based on recent Commission decisions, it seems corroborated has been interpreted to mean the testimony is “credible and generally consistent” with the treating records. Looking beyond the bias of a treating doctor towards a patient, it seems the Commission has taken a somewhat varied approach. Some decisions look to records of the last visit while others will examine the diagnosis, necessity of surgery, and/or course of treatment.

In our view, the bottom line for the veteran lawyer on either side is analyze each and every factor individually and provide evidence favorable to your case. This article was researched and written by Michael Shanahan, JD. The opinions Mike is voicing are his and not those of any member of WCLA or its board. Mike can be reached 24/7/365 for questions about WC at mshanahan@keefe-law.com.

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Synopsis: One Reason to Study History is When Illinois Legislators Make Mistakes, We Remember They Aren’t New and We Made Them Before.

Editor’s comment: Along with the “Quinn-come Tax” at 5% of income we mention above, we were less-than-thrilled last week to hear House Speaker Madigan is pushing for a constitutional amendment we call the “Madigan-Hates-Millionaires” Tax. It will mean anyone who brings in $1M a year or more will now owe our state 8% of that income over and above federal tax. Speaker Madigan promises the money will be used “for the kids” which we consider both irritating and misleading. Please note the most recent and largest tax increase in IL history went 100% to fund what we call “lifetime pay” for former government workers who are back on our payroll despite the fact they left government employment years ago..

If you ask, what does this have to do with workers’ comp, we point out Illinois used to have a vibrant and growing economy. Illinois WC claims used to run at about 75,000 each year. Last year, we would have been lucky to be at 60% of that total. Jobs are leaving our state and unemployment is skyrocketing. Governor Quinn and Speaker Madigan aren’t helping to create new jobs or a business-friendly environment with their recent announcements. In our view, their overriding goal is to make sure government workers have cush jobs and even cushier retirements.

We remember in March 2007 when Crooked Blago was bashing businesses and calling corporate leaders “fat-cats.” In response, Rich Daley, the powerful Chicago mayor said he didn't appreciate the business bashing as Blagojevich tried to rally support for what was then the biggest tax increase in Illinois history to pay for education and health care.

Daley especially didn't like the characterization of business people as "fat cats." At the time, Daley said it was important to remember Illinois businesses don't have to stay in the state. "If you wanna beat up businesses, go beat 'em up and when they leave, just wave to 'em and they're gonna wave back to you," Daley said.

Now Speaker Michael Madigan is going to attack/smack business leaders with the highest combined income tax in Illinois history. The numbers are shocking and won’t be well received by any successful businessperson living in this state. Each and everyone one of them are thinking about waving back to Speaker Madigan as they move elsewhere.

For a couple of interesting examples:

Bulls All-Star Center Joakim Noah makes $12M a year. If his career last ten years, he will be very lucky—he has to make what he can while young and healthy. He is in the middle of a five-year contract. The combined 5% Quinn-come tax and the added Madigan-Hates-Millionaires Tax of 3% will cost Joakim Noah almost $1M each year, actually $960K to remain in Illinois. If he moves from IL to Merrillville or Dyer, Indiana, he would save almost $5M over the five year contract. That would pay for a very nice crib somewhere else.

For Chicago Bears QB Jay Cutler, the savings to move out of Illinois would be even higher. The combined IL taxes will cost him $1.44M each year or about $10M over the term of his new 7-year contract. QB Cutler will save 8-figures over the term of the contract to get out of our state.

The top five companies that remain willing to be headquartered in Illinois are ADM, Walgreens, Boeing, State Farm and Caterpillar. All of their CEO’s and executives are now subject to Speaker Madigan’s new anti-business tax. Trust us, none of their executives are happy with the State of Illinois.

We ask the rhetorical question--why would any member of the Bears, Bulls, Sox or Cubs live in this state? Why would the execs of any of the companies listed above be happy to hear of the Madigan-Hates-Millionaires tax? Why would any successful doctor, lawyer, accountant, stockbroker or other business person stay here?

Where is the money going to go? We assure you lots of our tax dollars are going to pay lifetime pay for lots of former government workers that don’t contribute nearly enough to justify what they get after leaving public work:

·         Legislators in Illinois only have to work/contribute for four years of government work to get lifetime pay in the millions;

·         IL Judges/Justice only have to work/contribute for 9 years to get $9 million or more during the rest of  their lives or as much as $1M for each year of service—becoming a judge is like winning the lottery in Illinois (if you want the math, send a reply);

·         Chicago public school teachers only contribute 2% of their salary to their “pensions” or what we call lifetime pay  each year—after 20 years, they haven’t contributed ½ of one year’s salary to their lifetime pay and they get it all back within six months of leaving work. Thereafter, Chicago taxpayers are picking up the tab or our Mayor is going to borrow to pay the tab and our grandkids might be able to pay it off.

We remain concerned about the biggest problem with Illinois—no one in government is doing anything to truly address the many cost-cutting possibilities to make our state or its largest city efficitent, effective and still provide good schools, roads and other needed concepts. Things are simply swirling down and down under the current administrations. If you want our simple thoughts about how to start effectively cut Illinois/Chicago governments, send a reply.

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

3-24-14; Post-Primary Report on How to Improve the IWCC; Louisiana MSA Ruling Provides Guidance on Fee Claims; Opioid Epidemic Attacked! and much more

Synopsis: Post-Election News—Should We Try to Get the Illinois Workers’ Compensation Commission Ready-For-Rauner Or Keep Making Progress Under the Current Administration?

Editor’s comment: As we predicted, upstart candidate Bruce Rauner basically came from nowhere to sweep to become the Republican candidate for Governor. The oddest aspect of the primary was the millions spent by government unions to support Mr. Rauner’s leading Republican opponent and the phone calls and pleas for Democrat voters to cross over and vote against Mr. Rauner, rather than for anyone. The coming fall election in Illinois is starting to take on the appearance of the Governor’s election in the State of Michigan a couple of years ago where both sides spent over $50M to elect a governor to a post that pays about $175,000 a year. The battlefront isn’t over the job itself; it is over the billions of dollars in contracts and positions the job controls.

What is mildly bizarre is the response by veteran politicians to the outcome of the primary. IL House Speaker Mike Madigan has called for a special billion-dollar-plus tax levy on, well, himself and other Illinois millionaires. We assume this is another shot at Bruce Rauner but we are also sure Mr. Madigan’s personal wealth has to be in the $50M-150M range as he has been in IL state politics for decades and makes millions each year off the silly “tax appeal” concept where our Cook County Assessor always overvalues real estate taxes to then have attorneys like Speaker Madigan, Senate President Cullerton and Chicago Alderman Ed Burke step in to have their law office staff attorneys supposedly appeal and “correct” the mistakes and then haul away millions every year in attorney fees. Yes, you might note how crazy and conflicted it sounds for our top state leaders to make millions working to randomly lower real estate taxes for their clients so other taxpayers have to pay even more money to make up the shortfall. One also has to wonder when and if our government leaders might buy Cook County Assessor Joe Berrios one of those new-fangled “computers” so he might get the initial assessments correct and avoid all the appeals, attorney’s fees and uncertainty.

Either way, we have never heard of a billion-dollar-plus tax increase being pushed by the incumbent party during an election year. Illinois Democrats are also pushing for a mandatory retirement program for all businesses large and small along with a 21% increase in our state’s minimum wage. It would appear the anti-business, anti-competitive atmosphere in Springfield is going to continue until the fall of this year.

From the perspective of the Illinois Workers’ Compensation Commission, we again hope to provide some thoughts on getting “Ready-For-Rauner” if you feel he has a realistic chance to be our next Governor. If it turns out Mr. Rauner doesn’t prevail, the same concepts may also serve the continuing administration of the IWCC under incumbent Governor Quinn. There are three issues we see that could be addressed moving forward.

First, every single Republican primary candidate said “causation” in our workers’ comp system was their main campaign concern. We have been telling everyone who will listen it is our academic view “causation” in workers comp can’t be changed by legislation. It is our view any legislative scheme on the topic that you propose can be avoided by wily administrators and reviewing courts. For example, if you write legislation requiring work be the “sole and primary cause” of a medical problem, a liberal or radical administrator can always rule the work was the sole and primary cause of the medical issue. You tell me how to write common sense into the legislation and we will happily pass it along to the IL State Chamber’s new President-To-Be Todd Maisch.

Please also note the Appellate Court, Workers’ Comp Division has quietly moved to a new and very liberal causation standard, right before our very eyes. In the recent Village of Villa Park v. IWCC ruling, they outlined an unprecedented criterion that we wholly disagree with. The penultimate reviewing court has indicated the IL WC industry is supposed to look at both “quantitative” and “qualitative” work activities in analyzing an accident or the relationship of a medical problem to work. If you read Matt Ignoffo’s analysis of the Dixon v. IWCC ruling last week, the reviewing court issued a similar analysis in a Rule 23 or “non-published” decision indicating the Appellate Court’s view this concept no longer needs to be promulgated to the larger public—a Rule 23 decisions means it is a routine legal concept for this Court.

In the controversial ruling in Village of Villa Park outlined above, the “quantitative” risk leading to a compensable or “causally connected” injury was regularly walking on stairs. In the Commission’s nomenclature that was adopted by the Appellate Court ruling, the employer “forced” the employee to walk a flight of stairs about six times each shift. Where is Upton Sinclair when you need him to again reform the Illinois workplace? One of the wags at our office said we should call OSHA in to investigate the horrible working conditions which require such involuntary servitude climbing stair after stair in this otherwise peaceful Illinois village. Kidding aside, we don’t see how the actions of traversing a staircase six times in an eight-hour shift is either “forced” work or “quantitatively” unusual. Please note the case went to the Appellate Court and resulted in an award of full benefits without any indication or evidence of a safety failure, sudden event or trauma or anything your grandmother might think would be part of a work “accident.”

I would challenge any of our readers to create legislation that ends or overrules the concept above. Please note our view the model being pressed by the Court and Commission panel is just about impossible to defend, as it is our view millions of IL workers walk on staircases six or more times a shift. If that activity defines an accident in this state, most work is similarly “accidental.” In short, to change this concept, you have to have a Commission panel that focuses on traditional accident analysis of an increased risk with some sort of safety failure causing bodily injury.

We do feel IWCC Chairman Michael Latz and newly appointed IWCC Secretary Ron Rascia know the issues involved and they continue to work to make sense of our challenging laws and rules. Our concern isn’t with them, it is with the Commissioners who support “quantitative risk” as the basis to define accidental injury for someone who walked on stairs six times in eight hours—would it have been denied if the worker was only “forced” to be on the staircase twice? Four times?

Second, we assure all of our readers, clients and friends, the second major issue in getting Ready-For-Rauner or remaining with the current administration is the problem of endless WC claims. We assure everyone the defense team at KCB&A can work with you to close your five to ten year old claims much faster than your current defense attorneys. If you want a free audit to give you the needed action plan on your oldie and moldy IL claims, send a reply.

But even with our hard work and defense strategies, the rank-and-file work injury claim in the IL WC system sometimes moves slower than molasses in January. The “worst” states in the United States for workers’ comp are the states that don’t bring closure to their pending book of claims. In our view, the Arbitrators and Commissioners should continue their progress to rein in delays and get serious about closure. We long for the day where our computer-savvy Arbitrators will hold a pretrial like the judges in federal court and outline a discovery schedule for both sides and then adhere to it. To the extent we have 30 or more Arbitrators on salary in Illinois, we have the staff necessary to move claims much more efficiently.

Finally, this leads to the last of the major issues we have with Illinois government efficiency. With respect to Chairman Latz and everyone else at the Commission, the place remains a bloated bureaucracy. With an annual budget of about $30M, we feel the IWCC could thrive and survive on half that much money. There is never a sense of efficiently and effectively spending taxpayer dollars. For one simple example, we still feel there is little need for the three IWCC “satellite offices” that do little more than print workers’ comp forms that can be accessed just as easily by the public online. We consider it truly odd to have a satellite office in Collinsville that hasn’t been staffed in about two years—why not just get rid of it?

So whether you like Bruce Rauner or the incumbent, keep your eyes peeled for developments leading to the November election. In our view, if you like the progress made by the current administration, stick with them and vote Democrat. If you want a change, vote for Mr. Rauner who has vowed to “shake up Springfield.”

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

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Synopsis: Louisiana Ruling Denying Attorney Fee Claim on MSA Trust Funds in a WC Settlement May Provide Guidance for IL Claims Adjusters, Hearing Officers and Arbitrators.

Editor’s comment: We have heard this debate rage back and forth. In the states we provide defense services, we haven’t seen an Illinois, Indiana, Wisconsin or Michigan ruling on this precise fact situation. We also know Louisiana has been a traditionally Plaintiff-oriented state.

In Benoit v. MMR Group, et. als, issued March 19, 2014, Claimant and counsel settled the indemnity portion of the claim for $30,000. The medical aspect of the claim settled in an approved MSA trust for $50,846.00. The amount was approved and was further determined to adequately protect Medicare’s interests.

Mr. Benoit’s attorneys filed pleadings to allow them to recover attorney’s fees on the seed money for the MSA Trust. When they were initially denied, they filed for reconsideration and later appealed denial.

The Appeals Court noted the MSA agreement specifically states:

The Medicare set-aside funds in this case are to be self-administered. The Claimant has been provided with the directives issued by CMS regarding his rights and responsibilities in this regard. The Claimant understands that the MSA funds must be placed in an interest- bearing account, and this account must be separate from the individual' s personal savings and checking accounts. The funds in this account may only be used for payment of medical services related to the work injury that would normally be paid by Medicare. If payments from this account are used to pay for services that are not covered by Medicare, Medicare will not pay injury-related claims until these funds are restored to the MSA account, and then properly exhausted.

The Court ruling highlighted the language “The funds in this account may only be used for payment of medical services related to the work injury that would normally be paid by Medicare.” The Court felt such language was crystal-clear and limited any portion of the money from being used for attorney’s fees, expenses or any other aspect of the litigation. The decision is available to review online at http://www.la-fcca.org/opiniongrid/opinionpdf/2013%20CA%200537%20Decision%20Appeal.pdf

The problem for the Petitioner-Plaintiff bar is they don’t like to work for free. In this claim, there is no question the lawyers for Claimant worked to get their client a medical benefit of about $50K. The concern on the other side of that coin is there isn’t truly any solid “source” for a legal fee—if money is taken from the Medicare Set-Aside, taxpayers lose out when we have to pay for work-related medical care.

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

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Synopsis: S&H Medical Management Takes on the Opioid Epidemic.

Editor’s comment: We have all heard about the Opioid Epidemic, and the toll it is taking on society and on healthcare costs. However, what about an integrated solution that specifically addresses this issue in the workers’ compensation setting? Has your case management provider discussed with you their approach to address and mitigate the costs of this epidemic on workers’ compensation claims?

S&H Medical Management Services, Inc. has researched best practices to provide an integrated approach to this crisis based on ACOEM guidelines, and various states have developed their own internal Opioid Guidelines. As a result of this research, S&H has set up protocols for working with the physician, the injured worker, the claims handler, the attorney and the pharmacy benefit manager at the time an opioid is prescribed, and through subsequent prescriptions. The S&H Consultant works collaboratively with the prescriber to explore alternatives to opioids, and to ensure treatment protocols based on current best practices are explored. The goal of these protocols are to increase function and eliminate any prescribed opioids either before they are prescribed or as soon as possible during treatment. The question the S&H RN is trained to ask: “If the opioid is not facilitating decreased pain and increased function, then why is the injured worker receiving an opioid?”

The S&H Consultant obtains detailed information from the treating physician regarding the exact opioid and dosage. Utilizing best practices, S&H completes a Medication Reconciliation Assessment during the Initial Evaluation Meeting. The Nurse Consultant utilizes tools documenting specific pain levels and its interference with functional levels at each appointment assessing for response to the opioid and consistency in reporting. This assessment is shared with the treating physician.

Utilizing a morphine dosage calculator, Total Morphine Equivalent Dosages (MED) are calculated along with the length of time the opioid is prescribed. Assessment for aberrant drug behaviors is also completed on an ongoing basis. Advancement through the S&H opioid protocols are based on these calculations and assessments. Information regarding safe handling, usage and storage of the opioid is provided to the injured worker.

The physician is requested to utilize the state-specific Prescription Monitoring Program each time an opioid is prescribed, and pill counts may be requested at appropriate intervals at in-person appointments.

With the client’s authorization, at the point in which urine drug testing or a peer to peer review including telephonic intervention is appropriate (utilizing criteria set forth at the time the opioid is prescribed), the S&H partner that provides cost-effective Urine Drug Screening with GCMS and Peer to Peer reviews that specifically address the appropriateness of ongoing opioid prescribing or weaning can be utilized. Should the client have their own providers, the Nurse Consultant will alert you to the appropriate timeframe for intervention and be happy to work with this vendor.

Should our client decide to work with our partner providing these services they do so knowing S&H has negotiated favorable pricing with our partner and their goal is to keep your IW off any unneeded opioids and to do this as soon as possible! In addition because the S&H Nurse Consultant is working closely with the prescribing physician and the injured worker, they assess adherence to any plan agreed upon during the Peer to Peer Reviews/Meetings. As a result, any RN assessments are provided by the S&H Nurse Consultant, during regularly scheduled appointments, thereby saving the costs of the RN assessments and follow-up normally completed by these vendors.

S&H Medical Management Services, Inc. believes these protocols will mitigate the costs opioids are exacting on your claims and on our society!