4-14-2014; Why Are IL WC Lawyers So Hot About Not Wanting Treaters to Provide Ratings?; OSHA Whacks Railroad for Same-Shift Accident Reporting; Drunk Claims Adjuster Denied WC and much more

Synopsis: Why are IL WC Lawyers So Afraid of Treating Doctors Providing AMA Impairment Ratings in IL WC Claims?

Editor’s comment: We recently saw one of those mildly threatening letters from a noted IL WC Petitioner/Plaintiff lawyer to a nurse case manager or NCM confirming their position about the NCM asking for an impairment rating from a treating doctor. The letter says:

It is understood that treating doctors are not to give AMA Impairment Ratings per the 6thEdition without consent of the patient. Patient herein and his/her attorney irrevocably do NOT consent. Nurse shall not request of any treater any AMA impairment rating and if any is given it shall not be used in evidence or any other way in any hearing before the Workers’ Compensation Commission or any Arbitrator or Commissioner thereof.

If you aren’t sure AMA Impairment ratings landed in Illinois for claims starting on and after September 1, 2011. Ratings are considered to provide permanency values somewhat lower than the Illinois WC system previously provided. An “impairment rating” is defined as a medical percentage estimate of loss of life or work activity reflecting severity for a given health condition, and the degree of associated limitations in terms of activities of daily living or ADL’s. ADL’s are basic self-care activities performed in one’s personal life such as bathing, eating, personal hygiene and getting dressed.

Impairment and disability as used in the 2011 Amendments to the IL WC Act were diverse concepts. Starting in 2011, AMA impairment ratings became an unquestioned component of the PPD percentage loss of use assessment, but the IL WC legislation did not draw a direct equation between the impairment rating and the final determination of permanent partial disability. The most current version of the AMA Guides is the 6th Edition. This study clearly indicates disability is a determination made by an administrative law judge and may or may not have a relationship to impairment. All editions of the AMA Guides state an impairment rating is not equal to disability and is not intended to be a measure of disability since disability has to do with restrictions in job functions rather than the actual anatomic limitation.

What Were the Factors Which Led to the AMA Guides Being Included In the 2011 IL WC Act Amendments?

·         To provide a level of uniformity for our hearing officers in determining PPD awards;

·         To eliminate some of the randomness and/or political smell that arose with the occasional but shockingly high PPD ruling;

·         To mildly reduce the value of PPD awards and save Illinois business and governments money; and

·         To bring IL WC more in line with the 40 or so states that employ AMA Guides for Impairment.

Will You Save Money if You Use/Obtain Impairment Ratings in your IL WC Claims?

Our answer is unequivocally yes. IL WC Arbitrators and Commissioners are required by law to consider them as part of the hearing process. We are seeing solid results whenever impairment ratings are provided for their consideration. We have not seen any recent reported decision where PPD was awarded without careful consideration of a proffered rating. We aren’t saying the Arbitrators/Commissioners will award PPD at the level of the impairment rating but we assure you they will consider it.

If you aren’t sure, that is precisely why we feel Petitioner/Plaintiff lawyers (and some liberal or “cross-over” defense firms) dislike ratings and don’t want treating doctors to readily provide them, as a matter of course.

Please also note in non-litigated claims, we have had success in getting pro se settlements approved for the impairment rating, if you are smart enough to get one.

Who Can Prepare an AMA Rating in an IL WC Claim?

Section 8.1(b) of the IL WC Act requires the report be prepared by a physician licensed to practice medicine in all of its branches. Therefore in Illinois, non-physician medical providers such as chiropractors are not permitted to provide impairment ratings. The Act does not require the licensed physician be certified to perform an AMA rating. Note AMA Guidelines themselves do permit impairment evaluations from “medical doctors who are qualified in allopathic or osteopathic medicine or chiropractic medicine.” This provision is contrary to the plain language of IL WC law.

To the extent the practicing bar understands the relatively new concept, an impairment rating by a “certified” physician should carry more weight than one by a “non-certified” doctor, although such certification or training is not mentioned or required by either the AMA Guides or the IL WC Act. We haven’t seen any decisions that directly address the value of impairment ratings in relation to the physician’s rating certifications.

Can/Should a Treating Physician Perform an AMA Rating?

Well, it is kind of funny to compare our nutty state to lots of other states. As an example, if you look online, you will note the State of Colorado has a specific provision about treaters providing ratings:

Rule 12-2     PROVIDER RESPONSIBILITIES

(A) Where the authorized treating physician has determined that the injured worker is at maximum medical improvement (MMI) and has not returned to his/her pre-injury state, physically and/or mentally, the treating physician shall determine or cause to be determined a permanent medical impairment rating in accordance with this Rule 12.

This exemplifies the fact AMA impairment ratings are customarily provided by treating physicians in many other states. Please also note the Indiana WC system allows the treating physician who is chosen by the employer can use AMA Guidelines to determine the injured worker’s PPI or impairment rating.

The AMA Guides themselves indicate treating doctors may have concerns about providing AMA impairment ratings for precisely the opposite situation to which Illinois Plaintiff/Petitioners attorneys object. The Guides indicate a treating doctor is not “independent” and therefore, their determinations “may be subject to greater scrutiny” because they are considered biased in favor of the patient. The AMA Guides indicate the “physician’s role in performing an impairment evaluation is to provide an independent and unbiased assessment of the individual’s medical condition, including its effect on function and of limitations to the performance of ADL’s.” The Guides’ explicit acknowledgment of the bias of treating physicians in favor of their patients would appear to indicate Petitioner/Plaintiff attorneys in this state would want treaters to provide them.

Can/Should the Workers’ Compensation Insurance Carrier/TPA Request an AMA Impairment Rating From the Treating Physician?

Our advice to all of our clients is to start every WC claim with three things, where applicable. Be sure to:

1.    Investigate the accident fully;

2.    Get a signed HIPAA-GINA compliant release from the injured worker; and

3.    Give them your IL WC PPP required notice if you have a WC PPP in place.

If you have completed numbers 1 and 2 above, you have no concern about asking a treating doc for an impairment rating when the patient is at MMI. You can then use the rating to seek to settle the matter on a pro se basis—the defense team at KCB&A still handles such settlement approvals at favorable flat rates—if you have interest, send a reply.

If you don’t have a signed HIPAA-GINA release or Petitioner/Plaintiff’s attorney withdraws the release in whole or in part, you may need to get an impairment rating from a physician other than the treater.

Admissibility of AMA Ratings

While an AMA rating is provided for by the IL WC Act, the issue of admissibility remains to be determined. If a treater provides a rating, it might be admitted as part of the larger medical record. However, the rating is clearly created “in anticipation of litigation” and therefore depositions may be required if a hearsay/foundation objection is voiced. However, it is our opinion depositions over impairment ratings are a complete waste of time for both attorneys because there is so little to ask the rater and we don’t see any doctor performing a rating later changing their overall opinion/rating. We will have to take a wait and see approach on this one.

If you need help with getting an impairment rating on any IL WC claim, send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Gotta Love OSHA—They Hit Railroad with $350K+ Fine for Terminating Conductor Who Admittedly Did Not Follow Same-Shift Accident Reporting Rule.

Editor’s comment: We have advised our readers we have clients and others who have “same-day” or same-shift accident reporting protocols. The way the concept works is the employer requires urgency in accident reporting protocols to insure they learn of any accident or injury occurring in the workplace at the earliest opportunity. In this fashion, they can address the dangerous situation resulting in injury.

Some of our clients have done this in union environments where the unions will join with the employer to insure the union membership knows the rules and follows them. If an employee is late in reporting, the workers’ comp claim is investigated and benefits may be paid. However, if the accident is reported late, the employee is terminated, not for the fact of the accident but for late reporting.

Our concern when we first heard of this concept was the potential for litigation due to the termination. OSHA obviously received a beef about such a termination from a railroad conductor for Wisconsin Central Railway. There is no question the conductor was within his 60-day probation period when injured in Manitowoc, WI. It appears from the facts the injury was reported on a “same-day” basis but not during the same shift. On the last day of probation, the conductor was issued a removal-from-service letter rejecting his application for employ. The railroad asserted he violated an enforced work rule, leading to non-retention.

OSHA awarded $217K in back pay, $60K in compensatory damages and $75K in punitive damages. The railroad is also required to reinstate the worker, pay attorney’s fees and give out whistleblower rights information to its workers. The matter may be appealed by either party.

Please note this is not a published ruling. The reasoning for the OSHA determination is not available that we can locate on the web. We have no idea if OSHA is going to continue to provide such anti-business rulings in other work settings. But we do consider this a “word to the wise” about your accident reporting protocols.

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

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Synopsis: Fall-Down Drunk Claims Adjuster Denied WC Benefits by Washington State WC Court.

Editor’s comment: A claims adjuster will not receive workers compensation benefits for a head injury he mysteriously suffered while on a Texas beach because he was intoxicated at the time of his accident, a Washington state appeals court has ruled. Rudolph Knight was a Seattle, WA-based catastrophic claims adjuster for State Farm Mutual Automobile Insurance Co. In 2008, he was sent to work on assignment in Galveston, Texas after the area was hit by Hurricane Ike. If you aren’t aware, Galveston Island is a great vacation and party location, rivaling New Orleans and many tropical beach locations.

On a day Mr. Knight wasn't scheduled to work, he alleged he drove 30 miles from his hotel to Galveston Island to supposedly survey the six-year-old hurricane damage, according to records. While driving, he believes he saw a group of men riding dune buggies on a beach and stopped to watch them. That was the last memory Mr. Knight had before his wife visited him in a Texas hospital 24 hours later.

Mr. Knight's wife indicated she spoke to him by phone while he was watching the dune buggy riders, and she heard the men and machines approach him, records show. A few hours later, paramedics responded to a 911 call and found Mr. Knight lying in the surf mumbling “help me.” Mr. Knight had small lacerations and some bruising, and was treated for hypothermia and intoxication, records show. Mr. Knight told paramedics he had not used drugs, but he “had a lot of alcohol to drink.”

Police and doctors noted Mr. Knight smelled strongly of alcohol after he was found, records show. Police did not further determine how Mr. Knight was injured and did not take any witness statements from any of the other drunks on the beach where Mr. Knight was found.

We are happy to note the Washington court did not sweep this obvious bender into WC coverage with the two recent legal paths sporadically used by the Illinois WC Commission or reviewing courts of “traveling employee” or “street risk.”

We appreciate your thoughts and comments.

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Synopsis: Important Ruling for WC Plaintiff/Petitioner Attorneys on Attorney Fee Splits.

Editor’s comment: If Plaintiff/Petitioner Attorneys have an agreement to divide attorney’s fees, you need to take a look at this ruling.

In Donald W. Fohrman & Associates, Ltd. v. Marc D. Alberts, P.C., issued March 14, 2014, two firms had a dispute over attorney fee-sharing based on claim referrals. The record indicates Fohrman’s office was sending med mal referrals to Defendant Alberts. It appears the attorney-client agreement didn’t confirm the participation of both attorneys in the litigation.

The Circuit Court dismissed the claim on motion. The Appellate Court ruled the lower court properly entered summary judgment in favor of Defendant attorney to whom cases were referred, as attorney-client agreement did not comply with Illinois Supreme Court Rule 1.5(e) of our Rules of Professional Conduct, as it did not inform clients of details of attorney responsibility and how fees would be split, as the Rule requires. The failure of the documentation to demonstrate compliance meant the referral agreement and attorney liens were thus unenforceable.

The Illinois 1st District Appellate Court ruled public policy places rights of clients above and beyond attorneys' remedies in seeking to enforce fee-sharing arrangements. We assure our readers the same concepts apply to workers’ comp claims.

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.