4-28-2014; SB 3287 Redux--What is a Safety Consultant Under the New Proposed Law?; The Wolf of Wall Street Rocks RIMS; Tough Subro Test Question and much more

Synopsis: What is a Safety Consultant Under the New Proposed Law? Will the Entire Claims Industry be on the Hook if SB 3287 Becomes IL Law??

Editor’s comment: Following up on our lead article of last week, we received a large number of inquiries about this new law that has already been passed by the IL Senate and is now pending in the House. We understand it has been referred to committee.

By way of history, on February 14, 2014, Illinois Senator Kwame Raoul introduced Senate Bill 3287, which is proposed legislation amending Section 5 of the IL WC Act and seeks to remove an existing exception in the Workers' Compensation Act providing statutory immunity to outside “safety consultants and service providers” for personal injury claims allegedly stemming or resulting from negligent services provided by those service providers. A link to the full text of the bill is here

http://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=85&GA=98&DocTypeId=SB&DocNum=3287&GAID=12&LegID=80445&SpecSess=&Session 

Under current law, if an employee is injured at work and files suit to pursue recovery for his/her injuries from their employer’s outside safety consultant, the outside safety consultant is immune from liability for that claim. Under the proposed legislation, the outside safety consultant would not be immune from liability for that claim, and could be held liable to the injured employee/plaintiff for any judgment rendered against it. The unquestioned impact of the legislation, assuming it passes, will be significantly increased insurance costs for outside safety consultants, and increased safety service and insurance costs for their clients.

As we advised last week, the legislation is being pursued by the Illinois Trial Lawyers Association (i.e. plaintiffs/personal injury lawyers), one of the best funded lobbying forces in Illinois. As outlined above, they are pursuing the legislation because it will allow them the opportunity to pursue civil litigation against an employer’s outside safety consultant for virtually any injury sustained by that employer’s employees.

Please note the important changes to the IL WC Act are underlined:

Sec. 5.  (a) No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization that is wholly owned by the employer, his insurer or his broker and that provides safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.

We are forecasting two major issues for the Illinois claims industry to contemplate in relation to this new bill. First, we assure all of our readers if this bill becomes law and there is a major loss/injury involving death, paralysis or amputation in your workplace, you are certain to see circuit court litigation initiated to allow discovery. The discovery requests are going to routine and will ask risk and safety managers for the names and contact information of anyone who might have provided any safety service, advice or recommendations for your company in the last five years. You are going to have to answer them under oath or be subject to the contempt powers of the Circuit Court judge.

The second major issue to contemplate is trying to define what “safety service, advice or recommendations” might be and who provides it? In our view, such “safety service, advice or recommendations” can be provided to your company by:

·         Your insurance broker;

·         Your insurance carrier/TPA;

·         Your outside safety consultants;

·         Safety trainers;

·         The folks who design, maintain or update machinery or processes used in your business;

·         Treating doctors;

·         Physical and occupational therapists;

·         Nurse case managers;

·         FCE evaluators;

·         IME doctors;

·         CRC’s or certified vocational counselors;

·         Defense attorneys; and

·         Arbitrators/Commissioners at the IWCC.

All of these system participants can arguably be viewed as providing “safety service, advice or recommendations” to IL employers. Isn’t that what we all do? We are all monitoring injured workers/claims and making recommendations on how to smoothly and safely bring them back to work—what if they suffer a breakdown and our “safety advice” on return to work is arguably flawed? Solid human resources, safety, claims and risk managers ask all of us questions and learn from work injuries and modify their processes in light of all the advice they receive—now all of that advice may cause liability for these many component providers.

Have We Revived the Old Scaffold Act in a Much Expanded Form?

In our reasoned legal view, this new bill is going to be a new and improved Scaffold Act. If you don’t remember, the old Illinois Scaffold Act basically made any injury on a construction site a valid common law claim. What ITLA members would do is to sue every business on the site and the various companies would either settle for short money or complete discovery and then file motions for summary judgment to get out of the claim. All of that effort was wasted money and anti-competitive.

What may be coming to an IL Circuit Court near you is a similar situation where anyone who can arguably be responsible for “safety advice” is going to be sued and will then have to either get out for short money or slog through discovery to file a motion for summary disposition.

Illinois also now has a Last Person Standing rule where if everyone else settles and you are stuck as the last Defendant, you can be liable for the entire jury verdict. Again, this ITLA-sponsored concept is going to make this new law a major challenge for our industry to deal with.

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

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Synopsis: Hello From RIMS in Denver—the Highlight of the Party is Jordan Belfort, the Actual Wolf of Wall Street!

Editor’s comment: For the very first time, the U.S. risk/claims community gathered in the Mile High City to experience RIMS 2014 Annual Conference & Exhibition. This industry-leading event features three days of world-class educational sessions, inspiring keynote speakers and an energetic and resourceful Exhibit Hall. The weather is cold and windy but the conference is rocking.

Of the keynote speakers, the one with the most buzz is Jordan Belfort, who was the author of his autobiography, The Wolf of Wall Street. The book outlines his incredible rise from dental school drop-out to head of a billion-dollar stockbroking firm. His personal and financial excesses became the stuff of legend. He crashed multi-million-pound yachts and helicopters and spent millions more on illegal drugs. Chased by the FBI for years, Belfort eluded the law until 1998 when his firm, Stratton Oakmont, was closed down. In 2003 he was jailed for 22 months for securities fraud.

In prison he got clean, wrote his best-selling memoir and now makes a living out of motivational  speeches as well as helping the FBI investigate financial crimes. The 51-year-old father of two claims to be “above reproach” although the US government is still pursuing him, saying the millions he has made from the book and movie rights should go to the thousands of investors he fleeced. Stratton Oakmont specialized in low-cost shares, around $5 to $10, that were generally overlooked by the established Wall Street firms and the financial authorities. What Belfort’s unwitting investors didn’t realize was that he was using their small sums to make millions for himself.

He developed what became known as a “pump and dump” system. He would persuade friends and relatives to act as “rat holes” for him — they would buy stock in their name but using his money, thereby restricting the supply and boosting the share price.

His employees, at one point numbering more than 1,000 — would then sell the shares at the top of the market. The overhyped shares would soon drop in value, leaving investors with huge losses but Stratton Oakmont and Belfort with huge gains. His presentation was clearly a hit.

Next year the RIMS 2015 Annual Conference & Exhibition will be on April 26-29 at the New Orleans Ernest N. Morial Convention Center in New Orleans, LA. The attorneys of KCB&A hope to see you there.

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Synopsis: Here is a tough subrogation test question for our readers to consider. $25 gift certificate for the first correct answer from a claims adjuster or risk manager. If any Arbitrator or Commissioner gets it right, we will donate $50 to their favorite charity with approval from IWCC management.

Editor’s comment: Claimant is a traveling salesperson who is on a lengthy business sales trip for the employer, USA Industries. There is no dispute about employment, jurisdiction, accident or coverage of the IL WC Act. The salesperson was married on the date of loss.

Her plane crashed on April 1, 2014 and she was killed. She was a max rate employee and the WC death benefit plus $8K burial is worth around $1.6M.

At-Fault Airlines settled the GL claim with the widower on April 3, 2014 the second day after the crash for $1M. A Circuit Court judge approved the $1M settlement for the estate and entered an order approving it a week ago today. The risk manager at USA Industries doesn’t want us to appeal approval of the Circuit Court settlement. The widower took the $1M check and cashed it.

The widower files a valid IL WC death benefit claim and wants us to participate in a death prove-up.

You are asked to write the agreed proposed decision. When will (or if) IL WC benefits be first due and payable to the widower? The correct answer will be a date.

4-21-2014; Do We Really Need "Magic Hook" Legislation to Make Safe Workplaces Harder to Achieve?; Putting Away Reflective Triangles is an "Emergency" in IL; Important ADA Ruling of Note and much more

Synopsis: Let No Good Deed by Our Courts Go Unpunished--Another Unnecessary Attack on IL Business from Our Legislature.

Background: In the 2012 ruling by the First District Appellate Court in Mockbee v. Humphrey Manlift Company, Inc. Case No. 1-09-3189, decided May. 18, 2012, Plaintiffs Brenda Mockbee and spouse Michael Merle Mockbee brought a negligence action against Defendants Harris Industries and R. Harris Electric (collectively Harris) and Humphrey Manlift Company after Ms. Mockbee was severely injured in 2002 when she fell into a floor opening that was part of a manlift platform system at the Quaker Oats Company plant in Danville, Illinois, where she worked. Use of the manlift was optional for all Quaker Oats employees; stairs between the floors of the plant were nearby and could have been used.

On June 6, 2002, Brenda Mockbee suffered severe injuries when she fell into the first floor opening of a manlift platform system at the Quaker Oats Company plant in Danville, Illinois, where she worked as an ingredient handler. The severe injuries rendered Ms. Mockbee a paraplegic. There was no guardrail at this floor opening of the manlift. Our research indicates all medical and lost time benefits were accepted and the estate settled the workers’ comp claim with this major Illinois employer for $200,000 in a settlement approved by the Arbitrator assigned in September 2013.

In this third party ruling, Plaintiffs sought to reverse the Circuit Court's grant of summary judgment to Defendants Harris and Humphrey. Plaintiffs contended Harris and Humphrey were safety inspectors of the manlift platform system and owed Ms. Mockbee an independent duty of care and arguably breached that duty when their respective inspections failed to note the need for a safety guardrail required by the Occupational Safety and Health Act (OSHA) (29 U.S.C. § 651 (2006).

The Appellate Court affirmed the grant of summary judgment to Harris and Humphrey, but on the ground that both are immune from liability for injuries sustained by Quaker Oats’ employee Mockbee under section 5(a) of the IL WC Act as providers of safety services to the employer. Basically, the legal ruling puts a safety engineer or inspector into the shoes of the employer and provides protection from a third-party action.

“Magic Hook” Legislation May Create a Cottage Industry of New Third Party Claims

Our legislature, spurred by ITLA, is seeking to overturn this concept via SB 3287. The immediate impact of this legislation is the elimination of the workers’ compensation exclusive remedy/immunity enjoyed by service companies that provide safety consulting unless those companies are wholly-owned by the employer, insurance broker or the insurer. If you don’t understand, if this bill passes, it will create a cottage industry of new litigation for any significant injury in the workplace. While the employer only has to pay IL generous workers’ comp benefits, any safety consultant or inspector will be required to have what we call a “magic hook” or a method to insure no one ever gets hurt because if anyone gets mildly to seriously hurt, the safety consultant is certain to get sued. If the “magic hook” fails and someone falls or otherwise gets injured, wasn’t it their job to globally insure no one ever gets hurt? Massive liability for safety engineers/consultants will be unavoidable and ever-present.

Why is this a poor idea? Well, workplace safety should be everyone’s goal and IL business has made great strides, prompted in part by OSHA, the IWCC and WC costs. Right now, Illinois’ injury rate is 16% lower than the national median. From the Illinois Workers’ Compensation Commission 2012 Annual Report:

Accidents continue to decline. From the FY95 peak of 72,000 cases, fewer than 47,000 were filed in FY12, a 35% decrease. The overall injury rate in Illinois is lower than most states, and the injury rate has declined dramatically over the years: the 2009 injury rate is 64% lower than in 1990.

Do We Really Want to Make It Harder or Impossible for IL Employers to Hire Safety Consultants?

SB 3287 is going to make it much more challenging for IL employers, large and small to hire safety consultants and inspectors because those service providers will have dramatically higher exposure for any injury. Please note the third party exposure for the Mockbee claim listed above could easily be $30-60 million. Trust us, the members of the IL Trial Lawyers Assn. are pushing your legislators to guarantee those monster paydays. For that reason, SB 3287 will have an immediate and dramatically negative effect on retention of safety engineers, resulting in decreased workplace safety, exposing more workers to injury. If Illinois workplaces are getting safer, why jeopardize that continued improvement?  

Small employers especially will be adversely impacted. This is because smaller IL employers typically cannot afford a full-time safety professional on staff to address safety issues. Employers with 5-300 employees use outside consulting firms which provide expertise to help keep their business in compliance with OSHA standards and limit workers’ compensation exposure to employee injury. As we indicate above, this approach is working very well. If you make outside safety consulting exponentially higher in cost, employers aren’t going to want to use them and may not be able to afford them, even if they want to use them.

Please further note erosion of the exclusive remedy provision will only create more expensive litigation and higher costs for Illinois employers—this means increased costs for both private employers and governments across our state.  The liability exposure will immediately increase liability insurance costs for safety consultants and inspectors. Those increased expenses will be passed onto employers and taxpayers. In turn, these dramatically increased costs will be passed along to consumers, making IL even less competitive.

The attorneys and staff at KCB&A join with the IL State Chamber and many other groups in opposing this unnecessary legislation. We thank the reader who provided information leading to this article. We urge our readers to join the IL Chamber and get more information on their website at www.ilchamber.org.

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

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Synopsis: Why Illinois is Soooo Bankrupt—“Lifetime Pay” for Government Workers Plus WC Benefits Plus Lifetime Family Healthcare Coverage.

Editor’s comment: We bet the average IL citizen doesn’t understand what a mess our State of IL and City of Chicago governments are in. The combined pension debts of these government bodies are over $140 billion, yes billion dollars. Despite that giant debt, we already have the second highest property taxes in the country and an income tax that is already at 5% with our legislators trying to find lots of ways to justify even higher taxation. We are starting to become concerned some of our older leaders are becoming senile when you read the contradictions and craziness coming from Springfield.

In a recent ruling in Pedersen v. Village of Hoffman Estates, we saw another example of how challenging it is for taxpayers to understand where their money is going. Former Firefighter Pedersen had hearing issues and used hearing aids. He went to a fire on the expressway and put the fire out in the company of other firefighters. The fire was over and the crew was cleaning up and preparing to leave. Another firefighter mistakenly turned on the siren on the truck. It appears Pedersen wasn’t able to cover his ears in time and suffered more hearing loss. Despite the fact he can currently work and make money in lots of jobs, to the extent his hearing issues preclude him from being a firefighter, the taxpayers of Hoffman Estates now have to pay him for the rest of his life as if he is completely disabled from all work. Our legislature could change this “lifetime pay” concept today but we assure you there is no chance they will do so.

On top of the “lifetime pay” he is currently receiving, our research indicates former Firefighter Pedersen also received workers’ comp benefits of 11% BAW and about 42% loss of use of the left ear and about 30% loss of use of the right ear. This was a “going-away-present” of about $70,000.

Sounds like a pretty good deal, huh? Lifetime pay with the ability to also work at any job(s) you can find plus $70K? Well, why stop there? In Illinois, if a firefighter can demonstrate their injuries were the result of a "response to what is reasonably believed to be an emergency," they are also entitled to full lifetime family health care group health coverage. If you aren’t sure the additional cost to the taxpayers of Hoffman Estates is probably in the range of $25K per year and that amount is going to continue to rise.

Please note the Village determined the firefighter wasn’t in the act of responding to an emergency. We strongly agree with that determination—the fire was out! They were cleaning up after the fire and putting things away. There was no reason for the siren that arguably caused injury—all parties agree it was set off by mistake. The Circuit Court affirmed denial of family group health benefits.

In a somewhat shocking turn of events, the unanimous IL Appellate Court found the determination by the Village and the Circuit Court was “clearly erroneous” and there was no question the injury occurred in response to an emergency. You may note the dictionary defines “emergency” as an “unexpected and usually dangerous situation that calls for immediate action.” At the time of this unfortunate event, Claimant Pedersen was returning reflective triangles to their storage place. We don’t consider that a clear and immediate emergency but in Illinois, it would appear that it is. It seems a lot more justified for taxpayers to pay the extra money for group family lifetime coverage for a firefighter injured while actively tangling with a fire, explosion or pulling children out of a burning building. How do you equate that heroic work with putting shiny triangles back into a truck?

So along with:

·         The thousands of IL and Chicago government workers receiving total and permanent disability awards with hefty COLA increases that could be ended today by using voc rehab and job placement to return the workers to other government or private jobs;

·         The firefighters and police officers now being paid for life when they are also working and making lots of money in other jobs;

·         Along with the hundreds of thousands of former government workers currently receiving what some call pensions or what we call “lifetime pay” being paid out of our current tax dollars

you start to see why this state is in the dire financial mess that it is.

If you would like the website of the ruling above, send an email. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Dealing with ADA—The Burden May Be on the Worker to Show Existence of Another Position.

Editor’s comment: After the Americans with Disabilities Act Amendments Act of 2008 and the recent legislative changes that hit U.S. employers where prior defenses to ADA were arguably stripped by the Feds, lots of employers in the public and private sector have struggled with the best approach to dealing with this challenging law. Most HR and other managers want to get people to work with reasonable accommodation but they also want to make money in their businesses or be effective government managers. It appears the new battlefield may be over whether the worker can demonstrate you have a position that will “reasonably accommodate” their disability but also it appears they have to be able to safely perform the “essential job functions” of a job you have available.

In Perez v. Transformer Manufacturers, Inc., the Federal District Court dealt with a “wire-winder” from Norridge, IL who developed hand issues with resulting work restrictions. There was no question the worker could not perform the prior position.

The Court further noted the employee failed to show there was another position to which his employer reasonably could have assigned him following his alleged on-the-job accident or disability. Thus, because the employee was admittedly unable to perform at least some essential functions of his previous job after his on-the-job accident, his ADA discrimination claim for failure to accommodate was not viable. The Federal Court rule the employer was not required to “manufacture a job that will enable the disabled worker to work despite his disability.” The Court also noted “an employer need not create a new job or strip a current job of its principal duties to accommodate a disabled employee.” The employer “need only transfer the employee to a position for which the employee is otherwise qualified.”

The record indicates the employee never asked to be reassigned to another position within the company. Also, Plaintiff Perez merely referred to injured workers who were placed in vacant light-duty positions at some time in the past, without presenting anything to show comparable vacant positions were available at the time he was injured. Further, even if there had been such vacancies, he offered nothing to show he was capable of performing the essential functions of those positions.

The defense team at KCB&A has a number of veteran trial attorneys who can consult or assist you with ADA issues and avoid litigation. If you need assistance, send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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.