12-8-14; PART II Rising Min. Wage Bad for Jobs--Good for Your IL WC Claims; Brad Smith, JD Reviews Important ADA Win for Business; WCLA CLE Review by John Karis and much more

Synopsis: The IL Workers’ Comp Lawyers’ Ass’n Final 2014 CLE Presentation for the IL WC Industry. Thoughts and Analysis by John A. Karis JD.

Editor’s comment: On December 4, several crucial IL WC cases were presented by the great folks at WCLA in a continuing legal education format. Some of their key IL WC issues are discussed below. 

·         Fall down rulings compared

One of the cases discussed was Village of Villa Park, in which an employee, claimed he was injured while going down a flight of stairs in a police station. These stairs were only used by employees in the station and were not open to the public. Consequently there was no dispute on the question of whether his injury occurred “in the course of” his employment. The Appellate Court found falling while traversing stairs is a neutral risk and the injuries resulting therefrom generally do not arise out of employment. As with personal risks, the Court ruled compensability under the Act exists where the requirements of the Claimant’s employment create a risk to which the general public is not exposed. “The increased risk may be qualitative or quantitative such as where the claimant is exposed to a common risk more frequently than the general public.” Id.

The Arbitrator denied the claim stating the act of walking down stairs by itself did not establish a risk greater than those faced outside the work place. Thus, the Arbitrator concluded Claimant failed to prove his injuries arose out of and in the course of his employment. The Commission panel reversed the Arbitrator's decision, finding the event was “caused” by an accident. The Commission reasoned, at the time of the fall, Claimant's use of the stairs fell within the “personal comfort doctrine” and, therefore, arose out of and in the course of his employment. Further, the Commission concluded Claimant's necessary and repeated use the stairs for his employment exposed him to a greater risk than the general public.

The IL Appellate Court, agreed with the IWCC decision and found the injury was compensable. They believed the facts supported the Commission’s finding Claimant’s fall and resulting injury arose both out of and in the course of his employment and its holding in this regard was not against the manifest weight of the evidence. The Appellate Court reasoned the evidence of record supported the Commission’s finding that the claimant was “continually forced to use the stairway” both for his personal comfort and “to complete his work related activities.” Specifically, the evidence established Claimant was required to traverse the stairs in the police station a minimum of six times per day. This fact coupled with evidence Claimant informed his superiors, prior to his fall, and his supervisor had seen him limping prior to the work event supported the inference the Village required the claimant to continuously traverse the stairs in the police station, knowing he had an injured knee.

We disagreed with this ruling when it was filed and continue to disagree respectfully with our peers at WCLA. We do not feel walking on stairs six times a day means Claimant was “forced” to do anything—he did his job and walked around his work station like thousands of workers do and that isn’t an unusual number of times to ascend and descend stairs to cause an increased risk.

Not All IL WC Fall Downs are Compensable

What if the claimant was injured walking down a hallway or other flat surface instead of stairs, would the injury still be compensable? Interestingly, the WCLA group discussed Julie Meierdirks  v. Northbrook School District #2 a case decided before Village of Villa Park. This case involved a teacher who fell while walking in a normal fashion without carrying any items and on what was termed by all parties as “industrial carpeting without defect.” The Arbitrator stated Petitioner did present any evidence to explain the cause of her fall. In fact, Petitioner stated she was not carrying any items in her hands nor was she walking at an increased rate. Therefore there was no evidence presented establishing a cause for the Petitioner’s fall which is the Petitioner’s burden in every case. The claim was denied and the decision became final.

·         Interstate Scaffolding/Matuszcsak is still out there

The defense attorneys in Matuszcsak v. IWCC have filed for a rehearing on this case and are awaiting results. The parties disagreed on whether the Commission utilized the correct legal analysis in vacating the arbitrator’s award of TTD following the Claimant’s termination from his employment for admitted theft. The Appellate Court held Claimant's for-cause termination, arising out of theft from employer, did not amount to refusal of light-duty work and thus did not provide basis for denial of TTD benefits.

The IL Appellate Court stated in their holding, per Interstate Scaffolding, the critical inquiry for the Commission when determining claimant's entitlement to TTD was whether his medical condition had stabilized and he had reached MMI. They ruled the Commission went beyond such considerations in vacating the Arbitrator's award of TTD and reversed to provide benefits. By this theory, anyone in light duty work can quit and still get benefits because almost all workers on restrictions are still under the care of a physician or other healthcare giver.

Please note our thought this ruling makes physician’s “off work” notes even more useless than in the past. We tell the attorneys on the other side and all claims handlers we never recommend paying any IL WC benefits based solely on a blind “off work” note from a doctor. If the legal standard above requires proof the worker needs continued medical attention and hasn’t reached MMI, a doctor can’t satisfy that standard simply by writing “off work” on a piece of paper and signing it.

This article was researched and written by John A. Karis, JD. The opinions John is voicing are his and not those of any member of WCLA or its board. John can be reached 24/7/365 for questions about WC at jkaris@keefe-law.com

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Synopsis: Quick Follow-up on Last Week’s Article about Refusing-to-Hire or Terminating Candidates/Workers with Criminal Convictions.

Editor’s comment: A number of readers asked about it and we have the answers as to what a federal “Statement of Rights” is if you don’t hire or actually fire someone with a prior criminal conviction.

“Statement of Rights” comes from the FRCA:

Under federal law, if an employer uses information from an investigative consumer report for an "adverse action" - that is, denying the job applicant, terminating the employee, rescinding a job offer, or denying a promotion - you must take the following steps, which are explained further in the Federal Trade Commission's web site, www.ftc.gov/bcp/edu/pubs/business/credit/bus08.shtm

• Before the adverse action is taken, the employer must give the applicant a "pre-adverse action disclosure." This includes a copy of the report and an explanation of the consumer's rights under the FCRA.
• A summary of consumer rights under the FCRA can be found at: http://www.esrcheck.com/file/CFPB_Summary-of-Rights-Under-FCRA.pdf
• After the adverse action is taken, the individual must be given an "adverse action notice." This document must contain

• • The name, address, and phone number of the employment screening company,
  • A statement this company did not make the adverse decision, rather that the employer did, and
  • A notice that the individual has the right to dispute the accuracy or completeness of any of the information in the report.

Modified disclosure and adverse action procedures under the FCRA (§604(b)(3)(B)) apply to positions subject to U.S. Department of Transportation (DOT) regulations such as truck drivers. The DOT has independent authority to set qualifications for workers in transportation industries. (49 USC §31502).

We caution all of our readers to grab your employment applications and see if you ask candidates about criminal convictions. If you do, get that out of there or you will soon be breaking the law! Our defense team at KCB&A is happy to assist with any issues.

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Synopsis: JC Johnson of Dorsett, Johnson & Swift, our favorite Texas defense partner.

Editor’s comment: We get asked all the time who the best Texas defense lawyer may be and our response is uniform—JC Johnson of Dorsett, Johnson & Swift. Unlike Illinois, the State of Texas is booming with almost 400,000 new jobs in the Lone Star State this past year. Texas is getting more new jobs in a single month than Illinois has developed in the last year. JC Johnson is our go-to guy for national and regional clients needing solid defense advice.

Serving in senior management executive roles in the insurance and real estate industries, as well as serving as legal counsel for numerous companies within those industries, JC Johnson has extensive knowledge of both the business and legal issues that face companies in the modern business environment. This understanding allows him to offer legal solutions that are efficient and effective. Mr. Johnson manages the real estate, title insurance and workers compensation divisions of Dorsett Johnson & Swift, LLP and supports the firm’s liability defense litigation division in the North Texas region.

Additionally, Mr. Johnson assists clients with commercial contracts, commercial collections, entity formation, employment issues and business litigation. He also serves the business community as a speaker and educator on topics of legal issues, risk management and litigation. They are a one-stop shop with defense coverage for virtually the entire states of Texas and Oklahoma.

His great website with photo, background and contact information is http://dorsettjohnson.com/attorneys/jcjohnson/.

12-1-2014; Two New Illinois Laws Are Coming to Bewitch Illinois Business; Welcome New IWCC Chairman Ron Rascia; Guest Article on FCE's from Joe Castronovo and more

Synopsis: January 2015 is Approaching With *Puff* - Two New Challenges for HR/Safety/Risk Managers.

Editor’s comment: Employers in Illinois may have to review your workplace policies to comply with two laws that go into full effect on January 1, 2015.

The first new law is the Compassionate Use of Medical Cannabis Pilot Program Act or CUMCPPA. This legislation becomes fully effective in early 2015 when sixty state licensed marijuana dispensaries begin full-scale operations. This law takes employers into a new and challenging arena. However, initial legal compliance shouldn’t be too complex to rapidly understand.

The law provides a person suffering from one or more of a specific set of ailments may be certified by a licensed physician as a candidate that may benefit from the use of cannabis. Your worker may present this certification to the Illinois Department of Public Health to register as a “qualified patient.” Once approved by IDPH the worker will receive a “Registry Identification Card.” This card is the crucial or game-changing document and must be presented at a licensed dispensary in order to receive prescribed marijuana. Without the card, the dispensary won’t dispense.

The CUMCPPA specifically addresses an employer’s liability with respect to your workers who are registry cardholders.

1.    It is illegal for an Illinois employer to discriminate against someone solely because that person is a registry ID cardholder and marijuana user;

2.    That said, no employer will be held liable solely for employing a cardholder;

3.    No employer is required to allow the cardholder to use or possess cannabis on the premises of the business during working hours—as we have advised our readers, we recommend starting a “no marijuana here” drug policy.

4.    Employers may discipline or discharge an employee if he or she shows objective signs of impairment from the use of cannabis.

5.    If the employer has a “good faith” belief a registered cardholder used or possessed cannabis at work or violated work rules for impairment on the job, there is supposedly no liability for disciplining/discharging the individual.

In our view, the only way to figure this out is going to be expensive litigation. We feel you can and should try to avoid such litigation by the easiest path—barring marijuana from your workplace with a solid drug and alcohol program. If you need a draft policy, send a reply and we will forward our draft policy for your review. Please note one of the toughest things about testing for marijuana is you can prove the person has used it but when they did and how much they used it is much, much tougher. We do feel this new law will also heighten the need for security cameras and footage to demonstrate impairment.

The law further intends to provide Illinois employers should have no liability to a third party who was injured by an employee impaired by cannabis if the employer was not aware of the impairment. We think that provision is almost silly—what is aware? How aware? The only way to figure that out is more lawyers and lawsuits.

CUMCPPA does not apply to employers whose workers are subject to annual random drug testing under U.S. Department of Transportation regulations. If your company or subsidiaries employ interstate truckers, pilots, flight attendants, airline mechanics, limousine or bus drivers your drug testing obligations likely do not change in light of this new law.

This new legislation is a pilot program and has a “sunset” provision that causes it to expire on January 1, 2018, unless renewed by the General Assembly.

The Job Opportunities for Qualified Applicants Act.

The Job Opportunities for Qualified Applicants Act was signed into law in July 2014, and goes into effect on January 1, 2015. This so called “Ban the Box” law is designed to limit an employer’s ability to screen initial job applicants based on criminal convictions. It only applies to employers with fifteen or more employees. The law indicates private employers may not inquire about, consider or require disclosure of an applicant’s history of criminal convictions until the person has:

ü  Been determined to be qualified for the applied-for position and has been notified he/she has been selected for an interview; or

ü  Has been given a job offer conditional on completion of the screening process.

As odd as it sounds, employers may still deny employment based on a criminal conviction but this law shifts inquires about such information to a later point in the application/interview/hiring process. Please note using a record of arrests or an expunged conviction as a basis not to hire remains prohibited.

From an HR perspective, we recommend:

Ø  Review your current initial employment screening documents to see if they ask for information on criminal convictions. If you don’t take that out, you may be sued.

Ø  Once the initial eval is completed and you confirm the candidate is qualified, send a notice indicating the next step is your need for more information.

Ø  If your company conducts formal background checks, at that point, extend the authorization form to the candidate.

Ø  If you make a job offer to any candidate before a background check is completed, advise the candidate your offer is conditional and subject to withdrawal depending on the information later obtained.

Ø  If you reject the offer of employment based on a criminal conviction record, you must provide a federally approved “Statement of Rights” to the applicant. If you need a copy, send a reply.

To comply with state law and EEOC regulations, notify all candidate any criminal conviction does not automatically disqualify the person from employment. Confirm you will take into account all relevant information, such as the nature of the crime, when it took place and the person’s history of employment since then. Your goal in doing so is to get your candidates to tell the truth.

The defense team at KCB&A is happy to help with implementation and counseling regarding these new laws. If you have questions or concerns, send a reply.

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Synopsis: Former IWCC Chairman Latz Left Yesterday, Long Live Ron Rascia, the New Chairman!

Editor’s comment: Your editor first met Ronald Rascia at The John Marshall Law School in the fall of 1976. He was a great law student and is now a great lawyer and administrator. We are certain he is familiar with all the aggressive interests that intersect at the IWCC.

Governor Quinn has appointed Ronald A. Rascia as Acting Chairman, effective today. Chairman Rascia first joined the IL Workers’ Compensation Commission in 2011 as General Counsel, and later added the duties of the Secretary of the Commission. Ron is a past president of the Central States Ass’n of the IAIBC. Effective today, Assistant Secretary Brendan O'Rourke will serve as Acting Secretary. 

Chairman Rascia worked for the Illinois Attorney General for nine years as a supervising attorney in the General Law Bureau, where he defended State agencies in state and federal courts. As an attorney in the private sector, he served as General Counsel to Northwestern Golf Company and Platinum Financial Group.

Chairman Rascia earned a BA in Economics from DePaul, and both a JD and LLM in Intellectual Property from John Marshall Law School.

Former Chairman Michael Latz resigned yesterday November 30th. Both sides of the IL WC Bar are sad to see him move on but we are sure he will do very well.

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Synopsis: The Functional Capacity Evaluator or FCE-Can It Be a Claims Mistake? Analysis by Guest Commentator Joe Castronovo, PT, DPT, MTC from Illinois Bone And Joint Institute, LLC.

Editor’s comment: In a recent article entitled How WC Adjustors Can “Smoke” A WC Claim Long Before Defense/Legal is Involved, it was suggested that an FCE could create further problems in defending a case. As a seasoned physical therapist and a veteran of over 500 FCEs, I concur with this notion. My work as an expert witness has allowed me to see first-hand how a subpar FCE can incorrectly label a capable human being. In essence, this injustice who can cast a fishing pole and launch a boat, results in a decision of total/permanent disability and a lifelong pension for a capable individual. However, the proper FCE can be beneficial to all parties. So when should a client be referred to a FCE?

First, an FCE is needed to determine a person’s ability to work safely. However, all WC injuries need not be referred for an FCE. I agree with the article that the physical therapist’s notes throughout therapy and work conditioning are generally sufficient to determine a person’s work ability. However, there are several additional factors to consider. The longer a person has been off work, the more likely it is that they will need a FCE to determine current function due to “deconditioned syndrome.” Also, when a person has highly specific or heavy job demands, then the ability for them to work safely may be difficult to determine with therapy interventions alone. A “good” FCE should have components in place within the test that help determine a person’s lifting capacity prior to actually lifting. Through detailed computerized testing of strength and lifting capacity, a skilled clinician can predict what a patient should lift and not be injured.  A therapist may not be able to do this during regular therapy treatments.          

The second reason a person should be referred for an FCE is to determine malingering and sub-maximal efforts. Keep in mind conscious sub-maximal effort and the presences of non-organic signs are two different presentations. I have witnessed people not give maximum effort but they were not inventing or exaggerating symptoms. On another hand, I have seen fabricated symptoms in conjunction with the patient putting forth good effort. It may depend on the way they were coached or how the person feels they should behave during the test. Sub-maximal effort can be measured scientifically and may be conscious but could be subconscious due to pain, fear, or anxiety. Malingering, symptom exaggeration, or non-organic signs require knowledge on the part of the patient and are more of an art form to detect. Yet, non-organic signs can also be measured objectively. It makes for an interesting test when a patient is both malingering and putting forth sub-maximal effort. A FCE that determines sub-maximal effort needs to be based on scientific evidence instead of subjective reports or observations alone. A patient who is coached to act disabled is not a match for the experienced clinician who has compiled scientific evidence to support their results that conscious sub-maximal effort was given.

Finally, along with medical records, testimony, disability ratings, and the addition of impairment ratings, a scientific FCE is useful information at the IL WC Commission or Indiana WC Board. When IRs were first introduced, the lecture circuit preached, “Impairment does not equal disability.” Therefore, the impairment rating alone will not decide disability. Disability is a physical impairment that limits life functions. An amicable FCE determines the exact disabilities and abilities that a person can perform for work duties along with validity of effort that reinforces the other medical evidence.

When looking for a “good” FCE, one should ask the following questions.

v  How many validity criteria does your FCE present? I have seen FCEs with less than 10 FCE validity criteria while others have 60-100 validity criteria. Which drug would you trust more, consistency over 100 patient trials or 1000?

v  Is your FCE supported by scientific evidence and has the report (and therapist) held up in legal proceedings? Computer based FCEs that are calibrated regularly help support the scientific evidence.

v  How experienced is your therapist? How many tests has he or she performed? I have seen therapists who took a weekend course and are thrown into the fire and some therapists may only perform a couple of tests a year. It takes time and practice to become confident with administering FCEs. An experienced therapist will be able to detect someone who is coached to be disabled.

v  Is the tester a physical or occupational therapist, or someone with a different degree that may not be fully qualified to perform the exam?

v  The therapist performing the test should never be the treating provider. In my opinion the same company or even the same clinic should not cause an issue, but once a therapeutic relationship exists, a bias exists.

v  Does the report make a clear judgment on the person’s work ability compared to the worker’s actual job demands? Do not pay for general functional descriptions that are left open for interpretation.

v  The WC Community becomes frustrated when a physician determines work ability or MMI based on an invalid FCE. The failed FCE should contain a clear statement similar to, “due to the patient’s sub-maximal effort on today’s test, the test results are not a true indicator of the patient’s current work ability. The patient can perform at higher physical demand levels that are represented in today’s test results.”

If your FCE reports are showing that the patient is working significantly at a lower level than the work conditioning or physical therapy reports, there is something wrong with your tester. The search for an experienced FCE tester and company that provides a strong FCE is worth the effort. An FCE report should never smoke a case but help decide a fair settlement for the defendant or the plaintiff.

We appreciate the writer’s perspective and hard work in creating this article. We are happy to forward comments or thoughts to him.

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Synopsis: Sharpline Allocations, Our Favorite U.S. MSA Provider.

Editor’s comment: One of the great vendors in Vegas last week is the team from Sharpline Allocations. Sharpline Allocations is a customer service and relationship driven provider of Medicare Compliance and Settlement Planning services. At Sharpline, they understand each client’s unique needs, and deliver customized services that allow the claims professional to have complete certainty that each claim is in full compliance with Medicare Secondary Payer regulations.

The main differentiator between Sharpline and their competitors is great service and their hands on approach. They not only make recommendations, but provide assistance and follow up on with adjusters, risk managers, nurse case managers, Plaintiff/Defense counsel and other vendors to follow through on suggestions to reduce exposure and the potentially high cost of an MSA. They stay with the MSA until settlement, as opposed to moving on from the MSA once completed.

They are also piloting a new MSA Intervention program with one of their National accounts that has significant exposure at this time. The idea is that as soon as a Medicare eligible claimant reaches MMI, the file is referred to Sharpline for early intervention/bird’s eye view of any issues and to make recommendations to prep the claim for future settlement with closure of medical rights, and dramatically reduce MSA exposure by that time. This will potentially reduce the future MSA exposure and reserves. It will also drive claim costs down as the client will be able to settle and get the claim closed faster, rather than waiting to address issues at the time of MSA.

They can discuss this concept further if you are interested or to address any questions/ concerns. If you want more information, go to their great website at http://www.sharplineallocations.com/

11-24-14; Cover Your Cough at Work, Folks--Exotic Travel with Exotic Disease = Death Benefits; EEOC Sues Employer over Pre-Employ Testing/Question; Rauner-Watch + IWCC News and more

Synopsis: Eight Years Later, Death Benefits Under IL OD Act Finally Provided for Creepy Ebola-like Disease. “Cover-Your-Coughs” at Work, Folks!

Editor’s comment: There are two odd things about this ruling. First, your editor was asked for and provided a detailed opinion about defending this death claim in 2006. There were a couple of defense firms who were asked their thoughts. We wrote up a detailed analysis and told the employer and their claims people it was a compensable death claim and to either settle amicably or just pay the widow. Almost everything you will read in the decision was predicted in our analysis—it was clear to us and we feel most veteran claims handlers would also see this unusual and exotic infection would be ruled to have occurred during Decedent’s distant travels, which were unquestionably part of his job. How would you feel if your boss sent you to Asia/South America and you came home sick with a horrifying strange disease and your employer denied your claim?

We are chagrined to see a hapless defense firm advised the employer it was a fight they could win but lost badly. The firm was able to “un-defend” the death claim for eight years. In our view, the defense attorneys were lucky to avoid what would have been a substantial award of penalties and fees to drag out an expensive claim such as this with nothing being paid to the widow for over eight years—we estimate the current amount due to the widow to be more than $500,000 plus judgment interest at 9%. She will receive benefits for about 12 more years—we feel the KCB&A defense team could have amicably and favorably settled for a lump sum years ago.

Second, as a purely technical issue, it appears the widow didn’t appear before the IWCC/reviewing courts or present the claim as a ‘widow.’ She presented the claim as the wife and “special administrator” of something. Section 7 of the IL WC Act and the parallel section in the IL OD Act don’t provide any benefits for a “wife” or a “special administrator.” To the extent she is supposed to meet the requirements of the relevant legislation, our advice to attorneys on both sides is have the claim and caption match the Act under which you will proceed. Obviously, the IWCC and the venerated members of our Workers’ Compensation Division of the Appellate Court weren’t strongly concerned with the legal standing of the widow to proceed with the claim under whatever legal title she or her attorney chose.

In Omron Electronics v. IWCC and E. Belinda Bauer, our Illinois Appellate Court, WC Division affirmed an award of death benefits to the widow of an executive who died after contracting Neisseria meningitides. Neisseria meningitides is routinely confused with the more commonly known bacterial condition of meningitis--they are related diseases. Meningitides is often referred to as meningococcus; it is a bacterium that can cause meningitis and other forms of meningococcal disease such as meningococcemia, a life-threatening sepsis. N. meningitides is a major cause of illness and death for childhood in industrialized countries and has been responsible for large-scale epidemics in Africa and in Asia.

Yes, N. meningitides is a yucky and aggressive killer, just like Ebola and can be contracted from someone coughing on you. For safety/risk managers and others, as a safety thought, we recommend you require everyone in your facilities to “cover their coughs” by sneezing into the elbow. You might want to go a step further and make “cover your cough” part of safety training and an enforced safety rule. For the past five years, the Centers for Disease Control and Prevention, most doctors and safety managers have been encouraging everyone to cough and sneeze into their elbows. Plan B is to cough/sneeze into a tissue and dispose of it quickly. The reasoning makes sense, as we touch a lot of things at work including our mouths, and most workers don’t run to the bathroom to wash their hands every time they cough or sneeze.

To our recollection, at the time of the infection, Decedent Bauer was the president of Omron Electronics. As part of his job, he would travel all around the work on what were effectively sales calls. He became infected apparently while on a business trip to Sao Paolo, Brazil. The Appellate Court, WC Division ruling noted the parties offered conflicting medical evidence about the infection and rapidly ensuing fatal condition. The unanimous IL Appellate Court ruling followed longstanding law to confirm it was within the sound province of the IL Workers’ Compensation Commission to resolve such conflicts and make a determination as to the scientific opinions and weight of expert testimony and reports.

The widow’s experts opined Sao Paulo, Brazil was a well-known area where there was an increased incidence and prevalence of Neisseria meningitides. While the disease was considered somewhat rare, even in Sao Paulo, the endemic rate there was at least twice the rate of the condition in the United States. There was no dispute the Omron executive became rapidly and visibly ill and then quickly passed within a few days of returning to his family from Brazil. Prior to the trip to Brazil, the executive had traveled to Japan and China where medical experts indicated he likely contracted bronchitis that made him more susceptible to the deadly strain of Neisseria meningitides. The employer’s defense counsel countered the incubation period for the disease was two to ten days, pointing to a time before the executive traveled to Brazil. They also asserted there was no direct evidence showing the executive had come in direct contact with anyone carrying the disease germs while in Brazil. The Appellate Court, WC Division clearly disagreed, noting the executive had been in public places and evidence supported the Commission’s findings.

Their ruling is on the web at: http://www.state.il.us/court/Opinions/WorkersComp/2014/1130766WC.pdf

Please note we aren’t telling our readers that OD cases can’t be fought and won—each claim has to be weighed on its merits. While this one appeared to be a loser to us, the defense team at KCB&A has won many OD disputes or resolved them very favorably. If you need assistance on defending such claims, please send an email with the relevant facts and we will provide our best thoughts.

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

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Synopsis: EEOC Sues IL Employer for Using Screening Exams and Questionnaires to Avoid Hiring Carpal Tunnel Claimants.

Editor’s comment: We saw this one on the web and want our readers to know about it, particularly if you are doing pre-employment medical screenings. We are familiar with the chipper-grinder position and we assure our readers it is a very challenging job with a high incidence of CTS—we understand why an employer would want to minimize the risk of the condition. We have some thoughts for employers about the best approach and will provide them if you send a reply. That said, we feel confident this is not the optimal path. Either way, we feel one of the worst things that can happen to a U.S. employer is to be sued by our federal government, as the feds have basically an unlimited budget.

In EEOC v. Amsted Industries and Amsted Rail, the Feds filed suit under ADA and the Civil Rights Act to correct allegedly unlawful employment practices on the basis of disability and to provide relief to a class of job applicants who were denied employment opportunities because Defendants regarded them as disabled and / or because they had a record of a disability, carpal tunnel syndrome. The EEOC alleges Defendants violated the ADA when they refused to hire a class of qualified applicants for employment as chippers because of this alleged disability.

One Plaintiff filed a charge with the Commission alleging violations of Titles I and V of the ADA by Defendants. On February 28, 2013, the EEOC found reasonable cause to believe Defendants discriminated against a class of similarly aggrieved job applicants in violation of the ADA. Conciliation efforts required by law occurred and were unsuccessful.

The EEOC alleges Defendants engaged in unlawful employment practices at their Granite City facility due to medical evaluations of applicants for chipper/grinder positions. A chipper uses a chipping hammer or grinder to remove metal protrusions from steel castings. Defendant Employers require applicants for the position of chipper to undergo a medical evaluation as part of the application process. The medical examination consists of the completion of a medical questionnaire, taking of the applicant’s vital signs, and administration of a nerve conduction test and physical agility tests.

The complaint indicates Midwest Occupational Medicine was under contract with Defendants to perform medical evaluations of applicants for the chipper position. Dr. Dirker owns Midwest Occupational Medicine and is board certified in internal medicine. The allegations outline Dr. Dirker relied on the nerve conduction velocity test results without any further inquiry or examination of applicants before making a decision about candidates’ qualifications for hire.

The EEOC specifically alleged the nerve conduction test results used by Defendants and Midwest Occupational Medicine during the hiring process do not reliably predict applicants’ likelihood of developing carpal tunnel syndrome. The Feds further claim Defendants did not rely on the most current medical knowledge in using only nerve conduction tests and / or applicants’ prior record of carpal tunnel syndrome in concluding that particular applicants were medically unqualified for chipper positions. The allegations indicate the most current relevant published medical literature does not support the use of nerve conduction test results alone nor the use of prior history alone to predict the development of carpal tunnel syndrome. The Feds feel such tests are considered largely ineffective at predicting a person’s current ability to perform the essential functions of a position which requires repetitive hand motion such as the chipper position.

In effect, all workers were sent to the same doctor who examined them, asked them to fill out a very detailed and lengthy medical history and they would then be given the NCV test. If either the history included anything about CTS or the NCV indicated any findings positive for CTS, the worker was not hired. We are simply reporting the existence of this lawsuit and cannot comment on its merits.

The EEOC is seeking a permanent injunction stopping the whole process, normal damages for the class members and punitive damages. We will keep you posted on developments.

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Synopsis: Rauner Watch and Illinois WC News of Note.

Editor’s comment: Here are recent developments we consider of importance.

1.    Will Bruce Rauner toss the IL WC system under a bus?

To our understanding, no. Our new Gov-elect Bruce Rauner has learned what a smoking mess things are in IL State Gov’t in Springfield. He has learned there are more feudal fiefdoms than Medieval Europe. There is a reason our much-too-entrenched government leaders have already borrowed and spent $110B of our money—chaos. We have heard rumors to indicate there are several hundred different state government accounting systems and few of the systems interact. Our new leader is going to have to work with the deeply rooted legislators who created the mess. We are told Gov-Elect Rauner is seeking assistance from execs in the private sector to help with the transition--we are happy to assist in any and every way, if we receive direction from his transition team on how to do so.

To the various Petitioner/Plaintiff lawyers who consider any change to be the end of our workers’ comp system, we point out IL WC claims are down by more than half because hundreds of thousands of jobs and people have left our state. If state taxes have to dramatically go up again to keep paying for unnecessary government payrollers with unfundable pensions, redundancy and waste, even more private jobs will move. As we tell our kids, you have to fix things or the world may fix them for you.

2.    Are we going to have a new IWCC Chairperson?

We vote for continuity in Current IWCC Chair Mike Latz and his team but we are unsure if that will happen. We feel he would effectively input any changes, including budget cuts, if recommended by the current Governor. Chairman Latz will also be a transition point for all Commissioners and Arbitrators. Gossip abounds with about six different defense lawyers suggested as the new Chairperson. We have no idea if there is a selection process ongoing or if it is already a done deal. If we get news that is fit to print, we will let our readers know.

3.    IL WC Arbitration territory changes in 2015.

As of now, all Collinsville/Belleville cases are set in Collinsville. The IWCC has not been able to reserve the Belleville location during the trial cycles. If that changes, they will announce it. Zone 4 now consists of New Lenox, Ottawa, and Kankakee, a new site. Zone 6 now consists of Geneva, Wheaton, and Elgin, another new hearing site. A new accident location table has been posted. All Chicago cases that were assigned to Zone 6 arbitrators will be reassigned to new Arbitrators Bocanegra and Fruth. To fill out the new arbitrators' caseloads, other Chicago cases will be reassigned as well.

4.    2015 Arbitration calendars posted.

The 2015 Arbitration calendars are now online. The Commissioners' calendar will be posted on the IWCC’s great website as soon as it is ready.

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Synopsis: Sharpline Allocations, Our Favorite U.S. MSA Provider.

Editor’s comment: One of the great vendors in Vegas last week is the team from Sharpline Allocations. Sharpline Allocations is a customer service and relationship driven provider of Medicare Compliance and Settlement Planning services. At Sharpline, they understand each client’s unique needs, and deliver customized services that allow the claims professional to have complete certainty that each claim is in full compliance with Medicare Secondary Payer regulations.

The main differentiator between Sharpline and their competitors is great service and their hands on approach. They not only make recommendations, but provide assistance and follow up on with adjusters, risk managers, nurse case managers, Plaintiff/Defense counsel and other vendors to follow through on suggestions to reduce exposure and the potentially high cost of an MSA. They stay with the MSA until settlement, as opposed to moving on from the MSA once completed.

They are also piloting a new MSA Intervention program with one of their National accounts that has significant exposure at this time. The idea is that as soon as a Medicare eligible claimant reaches MMI, the file is referred to Sharpline for early intervention/bird’s eye view of any issues and to make recommendations to prep the claim for future settlement with closure of medical rights, and dramatically reduce MSA exposure by that time. This will potentially reduce the future MSA exposure and reserves. It will also drive claim costs down as the client will be able to settle and get the claim closed faster, rather than waiting to address issues at the time of MSA.

They can discuss this concept further if you are interested or to address any questions/ concerns. If you want more information, go to their great website at http://www.sharplineallocations.com/