12-22-2014; Did "Off Work" Notes Go the Way of the Dodo in IL WC?; Settlement Contract Tips; Important Drug Use Ruling, Analysis by Lindsay Vanderford and more

Synopsis: Have “Off Work” Notes Gone the Way of the Dodo in Illinois Workers’ Comp?

Editor’s comment: As defense lawyers and counselors, we have always hated what we call “blind” off work notes. What we mean by “blind” off work notes are written notes from an injured worker’s doctor that says “off work” and nothing else. We recently received one from a Petitioner’s lawyer and had to laugh to contact the lawyer and say it doesn’t provide enough information for us to do anything. We also made it crystal clear we weren’t going to pay lost time benefits or TTD/maintenance based solely on an “off work” note due to the lack of information.

Please also remember an injured Illinois worker can receive as much as $1,341.07 in weekly tax-free TTD benefits which is high cotton for most folks. If a worker is getting anything close to the TTD/maintenance maximum, they are happy to provide you a note on a doctor’s stationary with the two words “off work” to supposedly keep having you pay them. We urge our readers, risk managers and claims adjusters to watch very carefully when you are paying almost $70K a year to a worker with the hilariously limited information provided in an “off work” note from a treating doctor.

So What Changed?

Well, one good thing about reading the KCB&A Monday Law Update is we watch legislation, case law and all defense developments in this nutty state’s workers’ comp system. What changed in 2011 were significant amendments to the IL WC Act. One of the most important developments was utilization review or UR became presumptively effective in cutting off unreasonable and unnecessary medical care. In short, if you think an injured worker is treating too long, you can contact CorVel, Genex or CID Management and ask them to give you a strong opinion on the reasonableness and necessity of ongoing care. The preliminary UR determination by a generalist is subject to appeal to a specialist but the whole process can take a week or two to get a defined answer. Either the employee or the treater can ask for the initial determination to be appealed. And, as we outline above, the final UR answer is presumptively accurate.

There are three types of utilization review: prospective, concurrent, and retrospective. A prospective review is also known as a “pre-certification” and is the pre-approval process for necessary and recommended medical treatment. A concurrent review takes place while treatment is in process, this is often used during long hospital stays or stretches of outpatient services/physical therapy. Retrospective reviews are performed after treatment has been completed and is an analysis of specific patient data for medical necessity and appropriateness. Please note the IL WC Act does not allow a UR provider to opine on causal connection—an IME is needed if you disputing that issue.

What also changed in Illinois case law?

In two recent appellate rulings that are generally disliked by the defense industry but have some wisdom to them, the Illinois Supreme Court in Interstate Scaffolding and the Illinois Appellate Court, Workers’ Compensation Division in Matuszcsak laid down a simple rule. In those claims, the reviewing courts made it clear TTD/maintenance has to be paid until the worker reaches “maximum medical improvement” or MMI. In our respectful view, a doctor who is providing a note to allow the injured worker to continue off work and receive benefits has to do more than just say “off work.” The treater has to effectively say/write “Patient is not MMI and needs [insert medical care].” To us, a blind off work note won’t suffice. A doctor’s note indicating specific care is required would support a claim for continued TTD.

However, when a treating doctor recommends their patient has to be off work for a longer period of time and also needs more medical care, claims handlers and risk managers can use the wonderful tool of UR to get a quick and simple response to the question—“is this requested care reasonable and necessary?” If the UR answer is no, please don’t pay any more TTD or maintenance. Send the employee (and the attorney, if there is one) a letter consistent with Rule 7110.70 of the Rules Governing Practice and confirm you are stopping TTD. If you need help with the letter to claimant send a reply.

In the simplest of terms, we feel "blind off work” notes have been rendered worthless and were replaced with the requirement the treater find some additional medical care that will stand up in the cauldron of UR. Please note this concept is only going to work if the IL WC defense industry understands it and starts to implement it.

We recently saw a report from George Pawlaczyk of the Belleville-News Democrat where he outlined an IL prison guard was provided full pay for a year based solely on “off work” notes. If this report is accurate, it indicates the claims handlers for the State of Illinois who work at TriStar don’t understand the new rules and aren’t implementing them. It is possible the claims handlers are “saving money” to not use UR but awarding the worker with more than $60K in pay when he could and should have been working. One can only guess how many government workers are taking advantage of what we feel is a major mistake in handling IL WC claims for our “kleptocratic” state. Take a look at the article for yourself at: http://www.bnd.com/2014/12/13/3561394_injury-a-mystery-off-work-prison.html?rh=1

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

            ------------------------------------------------

Synopsis: Settlement Contracts In Illinois Workers’ Compensation—Thoughts for Veteran Claims Handlers on Closing Claims.

Editor’s comment: We receive lots of draft settlement contracts and get asked all the time how to best handle them. The defense team at KCB&A is happy to review such documents at no charge—just send them in an email and we will provide our thoughts.

We feel one of the best things about IL WC is the ability to forever close a claim, unlike similar claims in other states that may “settle” but some benefits also remain open. Here are some thoughts from us. Please provide us your thinking on these intricate issues.

One concern when settling a WC claim is there may be medical bills that both sides know about and the insurance carrier/TPA intends to pay but hasn’t finalized the Medical Fee Schedule pricing process and paid them. We feel the best approach to that concern is to insure the employer or its carrier/TPA is on the hook or may be willing to pay for all care under the IL WC Medical Fee Schedule of which you have knowledge at any time in the claim. If you aren’t willing to pay certain medical bills and the other side will accept denial, the contracts should confirm denial of the disputed care.

On the other side of that issue—never agree to indiscriminately pay “all” medical bills in an IL WC settlement contract. Don’t check that box!! If you do so, you may owe for thousands of dollars in medical bills for care you never knew about. We have had Petitioner’s attorneys sandbag and hold back challenging medical bills to see if you will agree to pay all bills—at that point, they send the previously hidden bills and demand full payment. In our view, this approach has ethical issues for the attorneys but we caution everyone on the defense side—caveat emptor—don’t agree to pay all bills, agree to pay all known bills.

As to Medicare and CMS, the contracts should always address such issues. We have two certified Medicare specialists in Shawn R. Biery, JD and Matt Ignoffo, JD and they are happy to review Medicare compliance in settling IL WC claims. In our view, you will have to take one of two approaches to this issue—you will have to:

1.    Obtain pricing and fund a Medicare Set-Aside Trust or

2.    Leave medical rights open.

Both approaches have challenges for all sides but if claimant is either Medicare eligible or soon to be eligible, you should not and cannot violate U.S. law to avoid the concept. Again, if you need help with these issues, send a reply.

As a final thought on all IL WC settlements, we consider our great Arbitrators to diligently review all contracts. Triple-check your math to avoid having contracts bounce back and cause unneeded delays. Please also remember if you are going to make any changes to the contracts after they were initially drafted, the changes must be initialed by both sides.

We appreciate your thoughts and comments. Please reply with questions or concerns.

            ------------------------------------------

Synopsis: The Fifth District Illinois Appellate Court Interprets an Employer’s Alcohol and Drug Policy to Allow Recreational Drug Use! Thoughts and Analysis by Lindsay R. Vanderford, JD.

Editor’s comment: On December 2, 2014, the Illinois Appellate Court of the Fifth District interpreted an employer’s alcohol and drug policy to mean that use or possession of drugs, or being under the influence, is prohibited only for use while on the job or while on the employer's property. We may want to change our policy language, folks.

In Eastham v. The Housing Authority of Jefferson County and The Board of Review of The Department of Employment Security (9-MR-57), Plaintiff was required to submit to a random drug test by his employer, the Housing Authority of Jefferson County. Plaintiff informed his supervisor he believed he would fail the drug test because he had smoked marijuana during a recent vacation. His employment was terminated before the results of the drug test were available. The test subsequently came back negative. Plaintiff's claim for unemployment insurance benefits was denied. The basis for this decision was a policy of the employer which provided employees may not use or be under the influence of alcohol or any controlled substance "while in the course of employment."

Plaintiff filed a petition for administrative review. The circuit court reversed the administrative decision, finding (1) the phrase "while in the course of employment" includes only the times during which an employee is performing work duties; and (2) the policy was unreasonable to the extent it can be interpreted to regulate an employee's conduct outside of work. On appeal, the Appellate Court affirmed.

Plaintiff was employed by the Housing Authority of Jefferson County (Housing Authority) in its maintenance facility. Its drug- and alcohol-free workplace policy provided, in pertinent part, the "possession, use, consumption or being under the influence of a controlled substance *** while on Housing Authority premises and/or while in the course of employment of the Housing Authority" violated the terms of employment for any employee. The policy further provided "for purposes of this policy, 'under the influence' means having any measurable amount of a prohibited substance under this policy in any test of the employee's breath, blood, urine, hair, or any other test permitted by law." The provisions of the policy were incorporated into the collective bargaining agreement.

On December 19, 2008, Plaintiff was required to submit to a random drug test pursuant to this policy. After taking the test, he informed his supervisor he had smoked marijuana twice while he was on vacation a few weeks earlier. He admitted to smoking small amounts of marijuana on November 15 and November 22, 2008, and he returned to work on November 24. Plaintiff told his supervisor he did not believe he would pass the test as a result.

Two days later, he made the same admission to the Housing Authority's executive director. On December 22, at the director's request, Plaintiff and his union representative met with the director and Plaintiff’s supervisor. The union representative noted Plaintiff knew about the provisions of the drug- and alcohol-free workplace policy. Plaintiff was discharged for violating the policy. Subsequently, the results of the drug test came back. The test was negative.

Plaintiff filed a claim for unemployment insurance pursuant to the Unemployment Insurance Act (820 ILCS 405/100 et seq. (West 2008)). One of the questions on the application asked if claimant's employer had a rule or policy relating to the last act that led to the claimant's discharge and, if so, what that rule or policy was. Plaintiff responded in the affirmative and described the policy as "not using drugs while employed" by the Housing Authority. A Department of Employment Security claims adjudicator found Plaintiff knew smoking marijuana violated his union contract and, as such, "his choice to use the drug represents willful misconduct." The claims adjudicator therefore found Plaintiff was ineligible for unemployment insurance benefits.

The plaintiff requested an administrative appeal of this decision. A Department of Employment Security referee affirmed the claims adjudicator's decision. The matter then proceeded to the Board of Review of the Department of Employment Security (Board of Review or Board). The decision of the Board of Review focused on the parties' conflicting interpretations of the phrase "while in the course of employment" in the Housing Authority's policy. Plaintiff maintained the phrase did not include time he was on vacation while employed by the Housing Authority. The Housing Authority argued because it was required to provide a drug-free policy for its employees and tenants in order to receive federal funding, the phrase must be interpreted to include even time away from work. The Board of Review accepted this argument and concluded "while in the course of employment" referred to Plaintiff's entire "tenure while working for the employer, not just while performing services." The Board of Review issued its final administrative decision upholding the denial of benefits on September 30, 2009.

The Circuit Court reversed the administrative decision, and the Appellate Court affirmed this decision noting the Housing Authority's policy did not define the phrase "in the course of employment," and the Board of Review did not provide any rationale for its interpretation. Courts of this state have defined that phrase in the context of workers' compensation claims, holding that injuries occur "in the course of employment" if they take place (1) "at a place where the employee is reasonably expected to fulfill her duties," and (2) "while she is performing those duties." Pechan v. DynaPro, Inc.

For Illinois employers, this interpretation means creating an ironclad Alcohol and Drug Free policy is essential. Feel free to contact us for a copy of our draft policy. This article was researched and written by Lindsay R. Vanderford, JD. Lindsay can be reached 24/7/365 for questions about WC at lvanderford@keefe-law.com.

12-15-14; Please Release Me, Understanding HIPAA-GINA; Reviewing the IL WC System in a "Kleptocracy"; Important Medical Bill Collection Ruling, analysis by Lindsay Vanderford, JD and much more

Synopsis: Please Release Me!! How HIPAA-GINA Work to Protect/Regulate All of Us in Workers’ Comp Claims.

Editor’s comment: We get asked all the time and we want our readers to best understand HIPAA-GINA in your day-to-day WC claims handling. If you aren’t sure, HIPAA is about medical records privacy. GINA is about genetic privacy in medical records and any other records you might keep about your workers. These two concepts are federal law to which we are all subject. As defense lawyers, we assure everyone you can’t skip the requirements of federal law if you handle U.S. workers’ comp claims.

What is initially confusing about HIPAA-GINA is the U.S. Department of Labor has an “exception” to the laws for workers’ comp claims. Every reader and anyone attending one of our many presentations/webinar always asks what in tarnation that might mean. No one initially understands what an “exception” to a federal law could be. They don’t have “exceptions” to traffic laws, do they?

For clarity, the “exception” to HIPAA-GINA is on the web at 45 CFR 164.512(l) (Download a copy in PDF). It starts by saying:

The HIPAA Privacy Rule does not apply to entities that are either workers’ compensation insurers, workers’ compensation administrative agencies, or employers, except to the extent they may otherwise be covered entities. However, these entities need access to the health information of individuals who are injured on the job or who have a work-related illness to process or adjudicate claims, or to coordinate care under workers’ compensation systems. Generally, this health information is obtained from health care providers who treat these individuals and who may be covered by the Privacy Rule. The Privacy Rule recognizes the legitimate need of insurers and other entities involved in the workers’ compensation systems to have access to individuals’ health information as authorized by State or other law. Due to the significant variability among such laws, the Privacy Rule permits disclosures of health information for workers’ compensation purposes in a number of different ways. 

In short, if you have a workers’ comp claim, you may not have to worry about HIPAA-GINA, if the stars align and everyone knows the rule above and follows it. The problem is medical care givers, doctors and hospitals may or may not know the “exception” and typically don’t care—they still want a signed HIPAA-GINA release to be sure they are routinely following the law.

Why is that a good idea for doctors/hospitals and other folks in that industry? Well, we ask all of our readers—when is a claim for accident or exposure truly a workers’ compensation claim? The simple answer to this question is—no one knows! By that we mean, if you slam your foot into a wall at work, it is up to you to decide whether you want the necessary medical care to be workers’ compensation or group health. If you are embarrassed about a safety mistake and/or don’t want your employer to deal with your foot injury as a work comp matter for whatever reason, it isn’t a work comp claim! You can actually later decide you want work comp coverage which would make access to medical records fall under the “exception” above. You might then withdraw the claim which would put access to your records outside the exception. It is also possible either the injured/ill worker or their selected attorney might withdraw their HIPAA-GINA release and demand all medical records be kept completely secret. They might sue you under HIPAA-GINA if you won’t follow their wishes. In short, the applicability of the HIPAA-GINA exception for WC claims may be contingent on numerous ever-changing factors. For that reason, we consider reliance on the exception to be a claims mistake.

Our advice to everyone in the industry is to routinely have your injured/ill workers who are claiming the injury/illness is related to work complete:

·         An Accident/Work-Related Illness Investigation Form;

·         A HIPAA-GINA compliant release.

We suggest such documents be combined into one longer form. If you need a copy of our accident investigation/HIPAA-GINA release forms, send a reply and we will shoot them to you via email at no charge.

If you have a signed HIPAA-GINA compliant form, you have full and complete access to printed and electronic copies of medical records and bills. You won’t then care if the claim is workers’ comp or not workers’ comp—you still have the ability to obtain and safely store the records. You won’t need to rely on the “exception” above in any way.

Don’t I Have to Keep the Medical Records/Bills Safe and Private?

Youbetcha! All medical records and bills should come with an implied privacy stamp on them. We don’t mean you have to print the word “private” on them but you have to be sure they are all kept private and away from prying eyes. If you don’t, you may get sued. One question we ask corporate safety/risk managers in our readership—do you have a fax machine or computer in your office used for transmission of medical records/bills open to viewing or use by workers that aren’t in safety/risk management? If you have such a fax machine or computer, we assure you that you are breaking U.S. law. Any fax machine or computer that is used to receive medical records and bills has to be in a locked office that is only accessed by your HIPAA-GINA “privacy circle” managers. If you need assistance with this concept, send a reply.

How Does This Apply to WC Nurse Case Managers?

It applies the same way it applies to adjusters.

Ø  If you have our signed HIPAA-GINA release, you have full authority from the patient to get medical records and bills and forward to the insurance carrier/TPA.

Ø  If you don’t have a signed HIPAA-GINA release, you are taking a chance to get medical records and bills but should be protected under the “exception” above.

Ø  If you have a signed HIPAA-GINA release and the release is withdrawn by claimant or counsel as they are entitled to do under federal law, it is problematic to rely on the “exception” and we recommend not doing so.

If the release is withdrawn, our vote is to work out a deal on “transparency” with Claimant and/or their counsel to insure the attorneys are getting the same reports as the insurance company/TPA. Happy to explain.

Wassup with this GINA Thing?

If you are routinely asking your workers about family history of heart attack, stroke or other medical conditions at any time, you have to have a signed GINA compliant release or you may be violating U.S. law. Our vote is to get such questions out of any document you are using. The Feds went after an employer that didn’t know the new and hard-to-understand rule and got a $100K settlement from them to demonstrate the seriousness of genetic privacy.

We appreciate your thoughts and comments. Please post them on our award-winning blog. We remind you we are offering out HIPAA-GINA complaint release free of charge—just send a reply.

            -------------------------------------------------

Synopsis: Understanding the IL WC System in What Some Are Now Calling a “Kleptocracy.”

Editor’s comment: We saw this new term in the Chicago Tribune and will let you draw your own thoughts on whether the State of Illinois can be fairly termed a “kleptocracy.” The term is defined as a form of political and governmental rule where the government exists to increase the personal wealth and political power of its officials and government workers at the expense of the wider population, often with the pretense of honest service. The term is mildly misleading as there is an implication kleptocrats are “stealing”—you can’t truly “steal” when you have the appropriate legal authority to give yourself and your buddies buckets of taxpayer money. Not an "official" form of government (such as democracy, republic, monarchy, theocracy), the term is a pejorative for governments perceived to have a systemic problem with the selfish appropriation of public funds by those in power. The effects of a kleptocratic regime or government are typically adverse to the state's economy, political affairs and civil rights. Kleptocracy in government vitiates prospects of outside investment and drastically weakens cross-border trade. As the kleptocracy normally takes money from its citizens via tax payments, a kleptocratically structured political system tends to degrade nearly everyone's quality of life. In addition, the money kleptocrats take is sometimes derived from funds earmarked for important public needs, such as the building of hospitals, schools, roads, parks and the like which has further adverse effects on the quality of life of the citizens. The quasi-oligarchy that results from a kleptocratic elite also subverts democracy or any other political format.

We Ask You—is Illinois State Government a Kleptocracy?

Please note our past IL Governors and state legislature have blown/spent/squandered over $110,000,000,000 with most of it being spent on pensions and other lavish benefits for retired state workers. Illinois state workers may have locked in their lifetime benefits, including healthcare in the “You-Can’t-Ever-Change-Our-Pensions-Clause” in the kleptocratic Illinois state constitution.

The worst IL state pension program by a mile is the Legislative Retirement System or LRS. As you read this, that system by itself is costing state taxpayers over $100M a year and rising. To our understanding, that system routinely pays more money to retired legislators than they made while working in part-time jobs. Please also remember that program is not being “reformed” and is not the subject of the litigation currently before the IL Supreme Court. Please also note all retired legislators gave themselves a lifetime 3% compounded boost every year. Please further note all retired Illinois state workers receive taxpayer-paid lifetime health care coverage on the taxpayer’s dime—that seems kleptocratic to us.

With deepest respect to a great woman and politician who recently passed away, we always felt former Comptroller Judy Baar Topinka was a “reluctant kleptocrat” who wanted the salaries of state workers to be out there on the web for all to see. She also received a state legislative pension of about $180K a year when she might have contributed a tiny fraction of that lifetime amount in the six years she was in the Illinois legislature. Judy Baar Topinka’s annual income also demonstrated a very irritating aspect of the “pension” program in this kleptocratic state—she was on a pension that was almost fully paid by your current tax dollars without actually retiring. If you aren’t sure, Ms. Topinka’s annual income from the Comptroller’s job and her pension was well over $300,000.

How Does Kleptocracy Affect Our IL WC System?

Well, that happens in lots of ways at high cost to Illinois taxpayers at the local, regional and state levels. As we have advised:

v  Firefighters in this state don’t have to be working when injured to receive workers’ compensation benefits—the Kleptocrats in Springfield passed a law creating a presumption of WC coverage for veteran firefighters who become injured or ill while admittedly off work. Do you feel a firefighter at a Sox game with his kids who has an unexpected stroke should get lifetime WC benefits on your dime?

v  Police officers and firefighters who are injured at work and can no longer return to their official duties are given generous line-of-duty disability benefits—that benefit makes sense to most folks. As a demonstration of how WC works in a kleptocracy, the Illinois Workers’ Compensation Commission also gives such workers generous and legislatively undefined “loss of trade” benefits, as something of a going-away present from unknowing taxpayers. The words “loss of trade” are not contained in the Illinois Workers’ Compensation Act so we consider it impossible to argue/appeal for the relative value of such a permanency award—how much is “loss of trade” supposed to be?

v  As another example of kleptocracy, we are certain there may be hundreds and maybe thousands of State of Illinois and City of Chicago workers who become disabled from work and then are cast aside in what would otherwise be an obvious violation of the Americans with Disabilities Act when the two governments will not accommodate their disabilities or find them alternative jobs. The reason such workers don’t ever file a beef is purely kleptocratic—they are routinely given “odd-lot” total and permanent disability benefits that can be as much as $70,000 a year or more on a lifetime, tax-free basis. Such benefits now come with annual COLA kickers which our Springfield kleptocrats added about a decade ago. All of the money for such benefits come from taxpayers—there is no “contribution” like there is in the hilariously misfunded state pension systems.

v  In the kleptocratic WC claims management programs for both the State of Illinois and City of Chicago, everything is kept hush-hush. To our understanding both of our state’s largest governments spend well over $100M a year to give taxpayer dollars to government workers. If anyone in the private sector gave away that much WC money to their workers, you would certainly be fired and/or the company would go broke. Oooops, both governments are rapidly approaching insolvency. We have never seen anyone at either government start a WC cost-savings program or seek consultants to cut WC costs, like we saw with the City of Springfield and other local governments. For one example, take a look http://www.sj-r.com/article/20130224/News/302249938.

We do feel injured state and city workers should be taken care of and don’t oppose reasonable benefits for such workers. We don’t feel pensions, workers’ comp, group healthcare or any state benefit should be provided in a fashion similar to winning the lottery. We hope the great minds and managers in incoming Governor-elect Bruce Rauner’s administration can start to address some of these anomalies and make stronger sense of Illinois government moving forward.

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

                --------------------------------------------------------

Synopsis: Medical Billing/Debt Collection Ruling of Note for Hospitals/Doctors/NCM’s Trying To Collect Unpaid Bills.

Editor’s comment: The federal Seventh Circuit Court of Appeals held it is a Fair Debt Collections Practices Act (“FDCPA”) violation to file a collection action outside of a debtor’s hometown municipal court. Analysis by Lindsay R. Vanderford, JD.

In Suesz v. Med-1 Solutions, LLC, the Seventh Circuit retroactively altered common practice in medical bill collection and other similar cases. In doing so, the Court’s decision requires collection cases to be filed in the Cook County Suburban Municipal District where the debtor lives or where the contract was signed. If not filed there, then it is an FDCPA violation. The Suesz case was remanded to the Southern District Court of Indiana for further proceedings. More recently, a petition for a writ of certiorari was filed with the United States Supreme Court.

On July 2, 2014, the Seventh Circuit ruled that filing a collection case in a municipal court other than where the debtor lives or the originating contract was signed was a violation of the FDCPA. In Suesz, a consumer filed a class action lawsuit against a medical billing collections agency alleging its regular business practice was to file lawsuits in small claims courts located in townships where the consumer neither lives nor signed the contract that created the debt. In doing so, the consumer alleged the medical billing collections agency violated the FDCPA.

Plaintiff lived in Hancock County, Indiana. He entered into a contract with a hospital in Marion County, Indiana. Marion County is divided into several townships, each of which has its own small claims court. The collection agency sued the consumer in Pike Township Small Claims Court. The provider to whom the debt was owed is located in Lawrence Township. Explicitly, the FDCPA requires debt collectors to sue consumers in the "judicial district or similar legal entity" where the consumer lives or where the consumer signed the contract being sued on. See 15 U.S.C. §1692i(a)(2).

Notably, the Suesz Court determined FDCPA does not define the term "judicial district." After a lengthy discussion of the various means of defining the term, the Seventh Circuit held "the relevant judicial district or similar legal entity is the smallest geographic unit relevant for venue purposes in the court system in which the case was filed, regardless of the source of the venue rules." The Suesz Court also expressly overruled Newsom v. Friedman which held the six municipal districts in the Circuit Court of Cook County were not “judicial districts” under the FDCPA. The Circuit Court of Cook County is divided into six municipal districts, each of which has its own courthouse. Each courthouse handles small claims lawsuits, inter alia. Prior to the Suesz decision, debt collectors filed their small claims actions against Cook County residents at the Richard J. Daley Center, which services Cook County’s First Municipal District. In doing so, debt collectors relied on the Newsom decision.

The Suesz holding’s retroactive application is particularly troubling. The Seventh Circuit was asked to overrule Newsom without retroactive application as debt collectors were relying on Newsom when filing their lawsuits. The court declined to do so stating, "reliance on prior law is insufficient in itself to justify making a new judicial ruling prospective." It further noted reliance on the opinion of one intermediate appellate court was not justified as one decision did not rise to the degree of certainty necessary for such reliance. 

The Suesz Court's retroactive application creates a significant problem for debt collectors in Cook County. Many of the small claims cases on file at the Richard J. Daley Center as of the July 2, 2014 date of the decision could potentially violate the FDCPA's venue provisions. Any lawsuit that should have been filed at the courthouses located in Skokie, Maywood, Rolling Meadows, Bridgeview, or Markham could trigger liability under the FDCPA. An immediate motion to transfer to the appropriate Municipal District is a necessary move for our readers involved in such litigation.

We recommend retaining counsel familiar with the FDCPA when attempting to collect on an unpaid debt. In doing so, call a KCB&A attorney to determine how to properly bring your cause of action in the correct venue in order to avoid the FDCPA’s harsh penalties. 

This article was researched and written by Lindsay R. Vanderford, JD. Lindsay can be reached with questions regarding collection actions and workers’ compensation at lvanderford@keefe-law.com.

12-8-14; PART I 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: Higher Minimum Wage is Bad for Jobs but Great for Claims Adjusting in IL Workers’ Compensation.

Editor’s comment: We hate to see our State keep pushing the button on the very populist theory of raising the minimum wage. Our former Governor basically ran almost his entire campaign on the concept because the people who were in his camp love the idea of getting raises without having to do anything other than vote for them. Our main problem with a high minimum wage is the concept is a jobs-buster. Real economic growth would naturally increase the demand for labor-increasing wages without costing jobs. Perhaps the best example of this is from Williston, North Dakota where their vibrant and growing economy is creating a strong demand for labor. Crew-level restaurant employees are already making $11 to $15 an hour and big box retailers are offering work starting at $17 an hour. Even without a government mandate, wages will be higher in any region where economic growth increases the demand for labor.

From the workers’ compensation perspective in the State of Illinois, higher minimum wages are a counterpoint and may cut the popularity of the worst of Illinois WC benefits—wage loss differential benefits. In order to qualify for Section 8(d)(1) differential benefits, Claimant must prove two things:

ü  a partial incapacity which prevents the pursuit of his/her “usual and customary line of employment,” and

ü  an impairment of earnings.

The wage differential was to be paid for the duration of disability which had previously interpreted to mean “for life” – not “work life,” even if after an award was rendered, the employee changed jobs resulting in a change of wages. This aspect of the ruling made the values on a wage loss claim very high. However, for claims starting in 2011 and after, the Amendments to the IL WC Act now mandate wage differential benefits would terminate when the employee reaches the age of 67 or five (5) years after the award becomes final, whichever is later.

Under the IL WC Act, Petitioner cannot recover for both section 8(d)(1) wage differential and a specific loss of use for a man as a whole under section 8(e) or section 8(d)(2). In a wage loss differential claim, the injured worker is entitled to 2/3 of the difference between what they would be making now based on the job they had at the time of the injury and what they are able to make in alternative work at present. From our perspective, the IWCC doesn’t want and won’t provide total and permanent disability benefits if the doctors and medical care providers agree the injured worker can locate some sort of alternative work after recovering from their injury. And the Americans With Disabilities Act also federally mandates reasonable accommodation in the hiring process, so injured workers have to be provided job modifications and other adaptations to allow them to return to functionality.

So is the current and coming math on traditional IL WC wage loss calculations. We are assuming the worker would be making $800 a week in the job they had prior to injury. They become injured and don’t recover fully and the only work they can now locate is an entry-level job at minimum wage:

·         At the current federal minimum wage of $7.25 per hour times 40, the worker would be making $290.00 per week. Wage differential would be calculated as $800 minus $290 times 2/3 or $340 a week.

·         At the current Illinois minimum wage of $8.25 per hour times 40, the worker would be making $330.00 per week. Wage diff would be $800 minus $330 times 2/3 or $313.33 per week.

·         At the minimum wage of $9 passed by the IL Senate that is to start in July 2015, wage diff would be $800 minus $360 times 2/3 would be $293.33 per week.

·         At the Chicago minimum wage, the City-mandated raises are $10.00 per hour by July 1, 2015, then $11 by 2017, and $13 by 2019. Wage diff for jobs in Chicago will soon be calculated $800 minus $400 times 2/3 or $266.67 a week. Those values are sure to be getting lower and lower, as the minimum wage goes up and up.

·         In calculating the minimum wage at the future City of Chicago rate of $13 per hour in 2019, the math is $800 less $520 times 2/3 or $186.67. This means such a wage loss claim would provide an annual benefit of only $9,706.84 a year and more traditional permanency values for serious work injuries may supplant wage loss.

We feel these coming numbers can be used right now to start to recalculate reserves and settlements on any wage loss differential claim. We are happy to assist risk managers and claims handlers in doing so.

We also have a great claim strategy on how to completely avoid or end wage loss differential claims for construction and other industries. If you have interest in learning how to cut reserves and save millions by completely avoiding wage loss claims, send a reply.

If you have questions and concerns about how this will impact your current IL WC claims, send a reply and we will get right back to you.

            -----------------------------------------------

Synopsis: Document! Document! Document Performance and Absences! In an Employment Law opinion as it relates to the Americans With Disabilities Act (“ADA”), the Seventh Circuit affirmed entry of summary judgment on a diligent employer’s behalf. Analysis by Bradley J. Smith, J.D.

Editor's Comment: In Taylor-Novotny v. Health Alliance Medical Plans, Inc., the Seventh Circuit rejected the employee’s claims of 1) failure to accommodate multiple sclerosis under the ADA; 2) discrimination and retaliation based on a disability; 3) interference with Family Medical Leave Act (“FMLA”) rights; and 4) discrimination based on race. The Court reasoned the employee could not succeed on her ADA claims because she failed to establish she was a “qualified individual” under the ADA.  The Court further determined the employee failed to meet her employer’s legitimate expectations for punctuality and accountability. Consequently, the Court’s determination of failure to meet her employer’s legitimate expectations was also fatal to the employee’s race discrimination claims. Next, the Court concluded the employee did not establish the reasonableness of her accommodation request and also the evidence presented for her ADA retaliation claim was insufficient to form a “convincing mosaic” suggesting her employer retaliated against her because she sought accommodations. Last, the Court reasoned the employer never denied the employee any FMLA leave. 

From a period of January 2007 through and including the employee’s termination in 2010, the employer repeatedly documented the employee’s issues with attendance and tardiness in its annual performance reviews. Shortly after the initial performance review, the employee was diagnosed with multiple sclerosis. In October 2007, the employee was placed on a Corrective Action Plan regarding her tardiness. A majority of the performance reviews and documentation demonstrated a finding of marginal performance relating to attendance and punctuality throughout her employment. On May 25, 2008, the employee submitted FMLA Certification paperwork to the employer for her multiple sclerosis requesting certification of intermittent FMLA leave related to her illness and the fatigue derived from it. Although the employer authorized the FMLA intermittent leave, it further informed the employee it was her responsibility to alert her manager each time an absence from work would be necessary, as well as whether or not her absence should be charged to the approved FMLA leave. In December 2008, the employer began allowing the employee to work from home three (3) days per week. In May 2009, the employee received an additional FMLA Certification approval for intermittent leave. Again, the employer required the manager be notified if an absence was to be applied to the FMLA approved leave. In February 2010, the employee requested and was approved to work from home two and one-half days per week. Beginning in March 2010, the employee requested her employer allow her to use badgescans to clock-in, instead of checking in with her supervisor. That request was denied. In March 2010, the Human Resources Director of the employer told Plaintiff she would need to use her FMLA leave for the other half of each office day if she limited her office work to two half-days per week. The Director informed the employee her request did not meet the employer’s “business needs.” 

Thereafter, in March 2010, the employee was given a final written warning for arriving late eight times, ranging from seven to forty-two minutes. In May 2010, the Director requested information from the employee’s physician as to whether her illness met the ADA definition of disability, which was responded to on July 13, 2010. The employee’s physician suggested “a flexible work schedule that would allow her to work efficiently when she is doing well, but allowed for rest on bad days.” On the same day, the employer terminated the employee for her continued tardiness and failure to accurately report her work time.

Upon de novo review, the Court reasoned the employee was not a “qualified individual,” as regular attendance was an essential function of her job. Additionally, the Court reasoned the employee was not meeting her employer’s legitimate expectations, which was fatal to both her ADA claim and Title VII race discrimination claim. Finally, the Court reasoned the employer did not interfere with any FMLA rights of the employee as it continued to approve intermittent FMLA leave, while the employee failed to use her FMLA leave for the two half-days per week. The employer’s continuous and thorough documentation of its issues with the employee’s attendance was critically important to its defense. It continued to provide performance reviews throughout the employee’s employment documenting the employee’s marginal attendance and punctuality. Additionally, it documented the discrepancies between the employee’s alleged performance and audits of her performance.

At KCB&A, we encourage our clients to implement progressive disciplinary policies and to accurately document and review performance of their employees. As demonstrated in Taylor-Novotny, the accurate documentation of performance issues is essential to the defense of an employment discrimination claim.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding employment discrimination claims and any other general liability defense questions at bsmith@keefe-law.com.

          --------------------------------------------------