1-19-15; Will IL Reviewing Courts Ever "Hear the Other Side?"; Oops, Employer Lists EEOC Charge in SEC Filing, by Brad Smith; Choice Between Brain Specialist or Internist, review by John Karis and...

Synopsis: Will the IL Supreme Court and Appellate Court, WC Division Ever “Hear the Other Side?”

Editor’s comment: Way back in October 2013, the Illinois Chamber of Commerce was increasing efforts to reform Illinois’ workers' compensation system. They issued a comprehensive report that took aim at reviewing court justices and their court opinions for "activism" the business group says hurt our state's economy. In the report called "The Impact of Judicial Activism in Illinois," our State Chamber detailed 19 reported ruling in which it confirmed decisions by the Illinois Workers’ Compensation Commission would have limited benefits to injured workers but the rulings were overturned or otherwise eviscerated by our venerated Appellate and Supreme Court justices. The report can be viewed online at:

http://ilchamber.org/wp-content/uploads/2012/05/1WorkersComp.pdf.#sthash.UHiFD4yl.dpuf

As a result, the report says, at least some of the benefits or cost-reductions promised and adopted by the Illinois Legislature from the 2011 Amendments to the IL WC Act had not arrived. "The pattern of adverse decisions being rendered by Illinois courts in workers' compensation cases is such that an employer or insurance company may well conclude that, no matter how egregious the indignity" it has no choice but to settle and pay, the report says. "The judiciary is not in line with policy objectives aimed at promoting job growth."

Illinois now has the seventh-highest workers’ compensation insurance premiums of the 50 states, when it used to be somewhere in the middle. Political squabbling over the judiciary and its rulings on workers' rights is far from new in Illinois. In 11 of 19 cases reviewed in the report, IWCC rulings denying benefits were overruled, the report says. In seven of those cases "the court overturned or significantly departed from long-standing precedent."

Audi Alteram Partem – Hear the Other Side

We were looking up other things when we saw the Latin phrase above that is at the top of the Illinois Courts website. We have surveyed numerous lawyers on both sides in an informal setting to ask the last time the Illinois Supreme or Appellate Court returned a ruling for the defense side of the bar. The last one anyone could recall was Airborne Express v. IWCC. That decision limited overtime as part of the average weekly wage unless it was mandatory—the ruling was published in March 2007 which is almost eight years ago. In our view, the “other side” has almost disappeared when it comes to workers’ compensation rulings by our reviewing courts.

We did have one person who responded to the survey point out the IL Supreme Court reversed the Venture-Newberg Perini Webster & Stone ruling and they felt that was a defense outcome. We point out it might be construed in that fashion and salute the august members of the Supreme Court for getting it right, in our respectful view. However, it is hard to be happy about a claim that had to go all the way to our highest court to avoid having a truly anomalous legal concept cause the Illinois workers’ compensation system to completely ruin our state’s economy. What we are looking for is a decision, like Airborne Express above that limited WC costs and/or benefits in a favorable way from the start to the end.

What We Continue to See

Case after case where benefits are still being unanimously increased due to the phenomenon of what we call “judicial legislation” or new and unprecedented decisions which expand IL WC benefits. We point to the

·         Village of Deerfield v. IWCC in which the worker was provided a doubled-up award of lifetime wage loss differential benefits along with weekly PPD for the body-as-a-whole for his shoulder.

·         Beelman Trucking v. IWCC ruling where an injured worker could receive an award of lifetime total and permanent disability benefits along with a very expensive doubled-up weekly PPD benefit for statutory loss;

·         Forest Preserve District of Will County v. IWCC where the Illinois courts redefined the “shoulder” to no longer be part of the “arm” so as to strip out the credit employers had for decades for multiple shoulder/arm injuries;

·         Village of Villa Park v. IWCC where walking a staircase at work six times in an eight hour shift was considered to be frequent and the ruling actually indicated Petitioner was somehow “forced” to use the stairs in a police station(?) so as to cause the fall-down on clean, dry, well-lit stairs to be compensable;

·         Interstate Scaffolding v. IWCC and Matuszczak v. IWCC where workers on light work can’t be cut off from TTD when they disqualified themselves from work due to the commission of acts that were criminal in nature.

What we aren’t hearing is “the other side.” We hope there may someday be a single Appellate Court justice of the five venerated members of that judicial body who will present the “other side” in a dissent or in a majority opinion. As we have indicated on many occasions, our IL Supreme Court has three Republicans on the seven-member panel. They control the makeup of the penultimate reviewing panel. We again ask why are there no business representatives on the “activist” appellate panel below?

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

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Synopsis: Proceed With Caution When Disclosing EEOC Charges in SEC Filings! Important Seventh Circuit Ruling Reversing Employer’s Summary Judgment Victory Due to Employer Including Employee’s EEOC Complaint in SEC Filing. Analysis by Bradley J. Smith, J.D.

Editor's Comment: The Seventh Circuit recently reversed the United States District Court for the Eastern District of Wisconsin’s grant of summary judgment to International Monetary Systems Ltd. (“IMS”). In Greengrass v. International Monetary Systems Ltd., the employee sued her former employer, IMS, alleging it retaliated against her for filing a charge with the Equal Employment Opportunity Commission (“EEOC”), when IMS named her in its annual SEC filings and casted her complaint as “meritless.” As a result, the employee argued she was unable to obtain new employment. 

The Eastern District Court granted summary judgment in favor of IMS finding the employee lacked evidence demonstrating a causal link between her EEOC filing and the alleged retaliatory act. In reversing the District Court, the Seventh Circuit reasoned the employee did make out a prima facie case of retaliation by showing she engaged in a statutorily protected activity, and further demonstrated IMS engaged in an adverse employment action when it disclosed her name in its SEC filings. The Court reasoned this could allow a jury to find IMS listed her name because she filed the EEOC charge of discrimination. 

The Seventh Circuit found in 2008, IMS never mentioned the employee filed a charge in its SEC disclosures. The Court further found an email sent by IMS’s general counsel stating it could avoid a “large damages award,” because without the EEOC’s involvement, the employee “likely [will not] have the resources for a lengthy court fight.” Thus, the Seventh Circuit held, a reasonable jury could find IMS intended to retaliate against the employee when IMS finally learned the EEOC was giving credence to the employee’s charge of discrimination, and subsequently filed its SEC disclosure in April 2009 listing the EEOC charge. 

It seems from the tenor of the opinion the general counsel’s email to the management team was the driving force behind reversing the District Court’s entry of summary judgment for IMS and determining IMS’s alleged intent to retaliate. Moreover, the timing of the SEC filing also drew into question the employer’s decision to subsequently include the employee’s charge in its SEC disclosure in April 2009. The Seventh Circuit viewed the continuous shifts in policy by not including and then including the employee’s charge in the SEC filings as evidence of pretext. 

Consequently, public companies should be cautious about what they include in their public filings regarding charges or employment lawsuits pending against them. This information could be deemed retaliatory as it makes it difficult for former employees to find future re-employment opportunities.

We appreciate your thoughts and comments. The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding Title VII, employment law, and general liability defense at bsmith@keefe-law.com.

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Synopsis: IL WC Appellate Court Confirms Physician selected by Petitioner’s Lawyer Trumps Nationally Renowned Physician Selected by Respondent. Thoughts and analysis by John A. Karis, J.D.

Editor’s comment: In Bob Red Remodeling Inc. v. IWCC (issued December 31, 2014) our Workers’ Compensation Division of the Appellate Court of Illinois explained the basis for not suspending benefits and locking in a total and permanent disability award when an employee chose to follow advice of his treating internist rather than a prominent expert. Petitioner suffered an accepted and serious work-related accident on July, when he fell 11 feet from a rooftop. He was transported by ambulance to Advocate Illinois Masonic Hospital where a CT scan revealed small temporal lobe contusions and a seven millimeter hemorrhage. Petitioner speaks Polish but not English.

At Respondent’s behest, Petitioner was examined by Dr. Felise Zollman who is a national specialist and teacher in the field of closed head trauma with a resume and accomplishments of the highest order. Right now, she is the Lead on Memory Disorders and Co-Lead in the Head Injury Program at NorthShore University HealthSystem. She diagnosed moderate brain trauma; a right-knee meniscus tear; and left shoulder pain and stiffness with no range-of-motion limitation. She also diagnosed mild degenerative lumbar spine changes and depression, “likely secondary to” traumatic brain injury. She believed Petitioner’s condition was causally related to his work injury. She recommended a neuropsychological assessment to be conducted by a doctor fluent in Polish to evaluate residual cognitive impairment. Respondent authorized the course of treatment recommended by Dr. Zollman. Petitioner refused to participate in anything but the exam.

Petitioner was examined by Dr. Forys, at the request of his attorney. Dr. Forys is board-certified in internal medicine but is not a brain/head injury specialist that we can tell. General internal medicine physicians or internists are primary-care doctors who perform physical exams and treat a wide spectrum of common illnesses in adult men and women—to our understanding, they wouldn’t take the lead on a brain injury claim but would typically refer such a patient and a chart to a specialist for obvious reasons. Dr. Forys diagnosed Petitioner with a traumatic brain injury, knee pain, and shoulder pain. He recommended Zoloft which is used for anxiety. A physical examination revealed a depression in Petitioner’s skull. Dr. Forys opined Petitioner’s condition was permanent and would not improve. He felt Petitioner would need assistance with all activities of daily living.

Thereafter Dr. Zollman reevaluated Petitioner and she opined his treatment “should be geared towards psychological and psychiatric care.” Dr. Zollman believed Dr. Forys was not providing appropriate care and  he was not “current in his understanding of traumatic brain injury.” She disagreed Petitioner’s condition would worsen, as a traumatic brain injury is not a degenerative event. Respondent moved to terminate payment of benefits under the IL WC Act, arguing Petitioner’s failure to obtain appropriate care in accordance with Dr. Zollman’s recommendations constituted an injurious practice.

The Arbitrator denied Respondent’s motion to terminate benefits, and he found Petitioner was permanently and totally disabled. He noted Respondent was arguing Petitioner’s failure to follow Dr. Zollman’s recommendations regarding appropriate treatment constituted an injurious practice. Specifically, Dr. Zollman recommended vestibular rehabilitation for vertigo; further neuropsychological testing; speech therapy; and psychological testing and perhaps counseling for depression. The Arbitrator then observed Petitioner had, in fact, “undergone a long course of treatment by qualified physicians and therapists.” Further, after stating the credentials of Drs. Zollman and Forys, the Arbitrator expressly found Dr. Forys more “credible.” As such, the Arbitrator concluded Respondent had not shown Dr. Zollman’s careful recommendations offered a reasonable prospect of restoring Petitioner to a level at which he could perform work. Accordingly, he found Petitioner’s failure to follow her recommendations was not a basis for terminating benefits in accordance with section 19(d) of the Act. The IWCC affirmed. The Circuit Court went on to find the IWCC did not abuse its discretion in denying Respondent’s motion to terminate benefits in accordance with section 19(d) of the Act. The Commission noted Petitioner had, in fact, “undergone a long course of treatment by qualified physicians and therapists.” After reciting Drs. Zollman’s and Forys qualifications, the Commission found Dr. Forys more credible.

On appeal to the Appellate Court, Respondent outlined the Commission should have granted its motion to suspend benefits due to Petitioner’s refusal to follow Dr. Zollman’s recommendations regarding medical treatment. Section 19(d) of the Act provides, in pertinent part, “If any employee shall persist in insanitary or injurious practices which tend to either imperil or retard his recovery or shall refuse to submit to such medical, surgical, or hospital treatment as is reasonably essential to promote his recovery, the Commission may, in its discretion, reduce or suspend the compensation of any such injured employee.” In accordance with this provision, “benefits may be suspended or terminated if the employee refuses to submit to medical, surgical, or hospital treatment essential to his recovery, or if the employee fails to cooperate in good faith with rehabilitation efforts.” Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Comm’n. They also cited our IL Supreme Court which has stated, “[i]f a Petitioner’s response to an offer of treatment is within the bounds of reason, his freedom of choice should be preserved even when an operation might mitigate the employer’s damages.” Rockford Clutch Division, Borg-Warner Corp. v. Industrial Comm’n.

The Appellate Court noted Respondent was complaining Petitioner chose to follow the advice of his treating physician rather than Dr. Zollman. The Appellate Court found Dr. Zollman’s credentials with respect to brain injuries were more “substantial” than those of Dr. Forys. The Appellate Court further found several other doctors agreed with Dr. Zollman’s assessment. Nevertheless, the Appellate Court stated Petitioner was following the advice of his own qualified physician, and held his choices were not unreasonable in this situation. The Appellate Court affirmed the Commission’s decision.

In our opinion this ruling puts a great deal more emphasis upon the opinions of a physician selected by Petitioner’s attorney over a nationally renowned specialist. In doing so, the Appellate Court agreed Dr. Zollman had better credentials and multiple doctors agreed with her extensive diagnosis and opinions. Nonetheless, the Appellate Court still found Petitioner’s actions were “reasonable” because he aligned with his selected physician’s advice. The Appellate Court indicated it was not a question of which treatment plan was superior; it was whether Petitioner’s behavior was reasonable under the circumstances. With respect to the Arbitrator, IWCC, Circuit Court and the members of the Appellate Court, WC Division, we see no reason why Petitioner could not have been pressed to at least attempt to participate in the treatment plan laid out by this great surgeon and teacher of surgeons.

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

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Synopsis: The World of IL Workers’ Compensation mourns the passing of one of our most colorful administrators, Ray J. Rybacki.

Editor’s comment: Ray J. Rybacki, age 83, passed away last week. Ray was a former IL WC Arbitrator and Commission Chairman. He is still known for the ruling in Berrios v. Rybacki where Ray tried to get IL WC claims to hearing or dismissed.

One example of Ray Rybacki at his toughest was handling attorneys and clerks at status calls. If you talked loudly enough to be heard by Ray or drank coffee or read a newspaper at his status calls, Ray would take the newspaper and fold it into a dunce cap and you had to sit on stage with the dunce cap on until the end of the call. Sometimes, if there were newbie lawyers at the call, he would have three-five lawyers/clerks on stage wearing dunce caps during the call. You can’t imagine how quiet the calls got when that happened—you could hear a mouse burp in the large Wheaton auditorium.

Kidding aside, Ray quit/resigned from the IWCC on Y2K. Your editor will always miss his toughness and humor. We consider him one of the best and fairest hearing officers of the last century.

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Synopsis: Engage Directly with Experts in the Workers' Comp Arena at this Year's Illinois Workers' Comp Forum.

Editor’s comment: Do you administer workers’ compensation claims? Are you involved in strategic planning? Concerned with medical costs and utilization? Looking for a better understanding of workers' compensation?

Then you won't want to miss the Illinois Workers' Comp Forum, now in its 5th year. Moved to downtown Chicago at Loyola's Quinlan School of Business on May 4-5, 2015, the event provides attendees the opportunity to hear perspectives from and engage directly with experts in the workers' comp arena including:

• Joan Vincenz, Managing Director – Workers’ Compensation and Managed Care, United Airlines
• Gene Keefe, Esq., Partner, Keefe, Campbell, Biery & Associates, LLC
• Don Phillips, Safety Coordinator, City of Naperville
• Devin Stoll, Human Resources Manager, Cintas Corporation

Download the brochure and view their complete list of speakers. Visit their website or call: (646) 807-8555 to reserve your seat today. We look forward to seeing you this May in Chicago. 

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Synopsis: KCB&A is looking for:

·         A nursing home defense lawyer and

·         A veteran WC claims handler for both IL and IN claims—the position is located in downtown Chicago.

If you or someone you know is qualified and interested, please send resumes in confidence via reply to this Update.

1-12-15; It's Rauner Day!!--What Does It Mean for IL WC?; Pregnancy Discrim by Brad Smith; John Chamberlain, RIP and more

Synopsis: As We Predicted Last Year, It’s Rauner Day—What Will It Mean to Workers’ Compensation in Illinois?

Editor’s comment: We salute our new Governor Bruce Rauner and our new Lieutenant Governor Evelyn Sanguinetti upon their swearing-in today. We are confident they are going to work hard to make Illinois more competitive in relation to our sister states and a better place for jobs and education, as they have promised. We consider both of these executives to be truly unhindered by party politics and we feel they are going to work in the best interests of our state.

Their biggest battle to be waged in the current malaise that is Illinois state government are the many “fake” pension programs that are “de-funded” and are being paid to pensioners primarily from current tax dollars. The automatic reduction in the Illinois state income tax from 5% a year to 3.75% on January 1, 2015 is certain to rapidly exacerbate a problem which our current Governor has inherited from decades of mismanagement and profiteering by kleptocratic legislators in Springfield. We are happy to provide our thoughts on what should be done to end this morass—if you are interested in our thoughts, send a reply.

On the workers’ comp front, we look to the new report from the Rauner camp about what they are up to. Their 91-page document is online and you can click on the following link to review it:

Building a Better Illinois:  Report of the Transition Co-chairs to the Governor-elect

The term “workers’ compensation” appears five times. On page 13, workers’ compensation is used in the context of Costly, uncertain jobs environment. The report accurately indicates Illinois has the seventh-highest workers' compensation insurance premium rate (on average, $2.35 spend per $100 of payroll). The report accurately cites the 2014 Oregon workers' compensation premium rate ranking summary. The Rauner report doesn’t indicate the WC premium rates have gotten dramatically better in the last four years after the passage of the 2011 Amendments to the IL WC Act. We also feel IL WC premium rates have dropped and will keep dropping due to the appointment of many conservative and moderate Arbitrators and Commissioners. We are also certain the five-member IL WC Appellate Court did not get the message about trying to bring Illinois to the middle of the United States in workers’ comp costs. We hope Illinois Supreme Court Chief Justice Rita Garman and the other members of our highest court will someday make changes to the make-up of that important WC reviewing court to perhaps provide some diversity and moderation in future rulings.

On page 14, the Building a Better Illinois report indicates:

Lower the cost of doing business in the state. Illinois should review legislation to ensure its corporate taxes, workers' compensation rates, and unemployment insurance rates are in line with peer states. Currently, many companies choose to locate just across the border in states with more favorable rates, thereby saving significant sums while still taking advantage of Illinois’ transportation and logistics infrastructure. Lowering Illinois’ workers' compensation rates, which are a key factor for executives in determining where to locate or expand operations, could support job retention, create new job opportunities, and significantly improve the business climate.

On page 17, the Building a Better Illinois report recommends Illinois government appoint qualified, highly capable workers’ compensation commissioners and arbitrators.

What’s missing? How about Fixing the IL State WC Defense Program? How About Cutting the IWCC Budget a Bit?

Well, Illinois government is one of the biggest employers in this state and has the worst-run WC defense program. We hope our current Governor and his transition team take a long, hard look at the IL government’s workers’ comp program and start to make changes. We consider the IL WC defense program to be one of the inept and incompetent programs in the history of workers’ comp programs. In our view, it is a paradigm of “kleptocratic” government when it gives prison guards, admin staff and other government workers giant WC benefits that no private organization would ever pay.

We are advised the State of Illinois provides over $150M each year in workers’ compensation benefits to its workers. Current Illinois Attorney General Lisa Madigan and Illinois State Auditor General William Holland both drafted scathing reports that barbequed the State’s WC defense program. If you want these reports, send a reply. This led to the creation of the do-nothing Illinois State Workers’ Comp Advisory Board that was to review, assess, and provide recommendations to improve the State workers' compensation program and to ensure the State manages the program in the interests of injured workers and taxpayers—Yawn. To our understanding, this Board has never met once and has never issued its own report. We are sure IL State government hired an outside TPA to manage its claims but didn’t get rid of the CMS managers the outside TPA was supposed to replace. We are also sure there is a Plaintiff/Petitioner attorney who still “defends” an IL state institution for its defense claims in Chicago.

On cutting the IWCC budget, we note the State of Illinois was able to get along with six Commissioners and about 16 Arbitrators under the last Republican administration. We now have nine Commissioners and about double the number of Arbitrators. As the number of new IL WC claims are down, we feel some careful budget cutting could take place to maximize taxpayer dollars.

In summary, we assume you are going to see a brave, new Illinois under new Governor Rauner and Lt. Gov. Sanguinetti. We hope all of our readers are ready, willing and able to provide your best thoughts and ideas for them. We also appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Compliance with the New Illinois Pregnancy Accommodation Law. Analysis by Bradley J. Smith, J.D.

Editor's Comment: If you employ one or more workers in our state, review and comprehension of this article is critical. The Pregnancy Accommodation Act (a.k.a. the “Pregnancy Fairness Law”) (P.A. 98-1050) amended the Illinois Human Rights Act to offer enhanced rights to pregnant employees. As of January 1, 2015, this law took effect, affecting every employer within Illinois. The Act applies to employers employing one or more employees and further applies to full-time, part-time, and probationary employees. Under the Act, it is a violation of the IHRA for an employer to:

·         Require a job applicant or employee to accept an accommodation the applicant or employee does not desire;

·         Require an employee to take leave if reasonable accommodation can be provided;

·         Not make a reasonable accommodation, if requested, to an employee for “conditions related to pregnancy, childbirth, or related medical conditions,” unless the employer can demonstrate the accommodation would impose an undue hardship on the employer;

·         Retaliate against an employee applying for a position, or current employee for requesting an accommodation; or

·         Fail to reinstate an employee affected by pregnancy, childbirth, or common related conditions to its original or an equivalent job with equivalent pay and benefits upon her signifying her intent to return or when her need for reasonably accommodation ceases, absent proof of an undue hardship on the employer’s business.

The Pregnancy Accommodation Act further provides a non-exhaustive list of reasonable accommodations, which explicitly includes:

·         Private non-bathroom space for expressing breast milk and breastfeeding;

·         More frequent or longer bathroom breaks, or breaks for increased water intake or periodic rest;

·         Sitting;

·         Assistance with manual labor;

·         Light duty;

·         Temporary transfer to a less strenuous or hazardous position, job restructuring or reassignment to a vacant position;

·         An accessible work site or modification of equipment;

·         A part-time or modified work schedule or time off; and

·         Appropriate adjustment or modifications of examinations, training materials, or policies.

An employer providing light duty to other types of non-pregnant employees, under the Act creates a rebuttable presumption the accommodation does not impose an undue hardship on the employer. In other words, if your non-pregnant employee is injured on the job, and you provide light duty to accommodate that employee, it is presumed you will do the same for a pregnant employee, and failure to do so will create a presumption of discrimination.

An employer may only refuse to provide a reasonable accommodation when it poses an undue hardship on the company. The burden of demonstrating undue hardship is on the employer. The Act provides the following factors in determining whether a reasonable accommodation would be an undue hardship: 1) The nature and cost of the accommodation needed; 2) The overall financial resources of the employer; 3) The number of employees at the facility; and 4) the overall size and financial resources of the employer generally. 

The Act does allow an employer to request a medical certification from the employee’s healthcare provider concerning the reasonable accommodation request, if it is job related and consistent with business necessity.

Notably, employers must post the Illinois Department of Human Rights approved notice poster, or include a statement in their handbook summarizing the requirements of the Act and providing information about filing a charge of discrimination. The new posters are available from the Illinois State Chamber—if you want the link, send a reply.

The Act minimizes the expected outcome of Young v. U.P.S., which is currently awaiting ruling by the U.S. Supreme Court. Arguments in Young were heard on December 3, 2014. The Young case presents an issue related to providing light duty work for pregnant employees pursuant to the Pregnancy Discrimination Act under federal Title VII when their co-employees injured on the job are provided light duty work. 

In order to comply with the Act, employers will need to implement and engage in an interactive process and also accommodate pregnancy-related conditions. This could include not only conditions related to childbirth and pregnancy related sickness, but also to pre-pregnancy conditions, such as, in vitro fertilization treatments.

As you read this, we are preparing a presentation on Managing Pregnant Workers and should have it for your consideration in the near future. If you have interest in a webinar on the topic, send a reply. The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the Illinois Pregnancy Accommodation Law, employment law, and general liability defense at bsmith@keefe-law.com.

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Synopsis: The Great John Chamberlain, Longshore Act Guru and Founding Father of Signal Mutual Insurance Passes Away.

It is with great sadness we report the unexpected passing of John Chamberlain at the age of 74.  A founding father of Signal Mutual Insurance which is a dominant insurer in the LHWCA field, John began work for Charles Taylor in 1969; moving to the United States in the early 1980s to work with a leading maritime consulting and claims adjusting firm, Lamorte Burns, on the early development of the business which would eventually become Signal Mutual.

John served on Signal Mutual’s Board of Directors from its inception until his retirement from Charles Taylor in 2005. John had also held various positions of executive responsibility throughout his tenure. A naturalized citizen of the United States, John always joked that while most of his friends and colleagues were American by “accidents of birth,” that he actively chose to become an American. Upon his retirement from Charles Taylor, John’s dedication to his adopted country led him to accept the position of Branch Chief, Financial Management, Insurance, and Assessment with the United States Department of Labor Office of Workers’ Compensation (OWCP), the regulator for all Longshore underwriters and self-insureds. After five years of service with the OWCP, John again retired to found a consulting firm.

John passed away on January 1, 2015 in Denver, Colorado. He was returning to Connecticut from a family holiday gathering in California and was taken ill in transit. He was rushed to University of Colorado Hospital where he died in the midst of urgent surgeries. He is survived by his wife Diana; five children, Richard, Nick, Clare, William and Tom; and grandson Arlo.

John taught your editor and our other partners Longshore practice. We will always thank him for it.

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Synopsis: Engage Directly with Experts in the Workers' Comp Arena at this Year's Illinois Workers' Comp Forum.

Editor’s comment: Do you administer workers’ compensation claims? Are you involved in strategic planning? Concerned with medical costs and utilization? Looking for a better understanding of workers' compensation?

Then you won't want to miss the Illinois Workers' Comp Forum, now in its 5th year. Moved to downtown Chicago at Loyola's Quinlan School of Business on May 4-5, 2015, the event provides attendees the opportunity to hear perspectives from and engage directly with experts in the workers' comp arena including:

• Joan Vincenz, Managing Director – Workers’ Compensation and Managed Care, United Airlines
• Gene Keefe, Esq., Partner, Keefe, Campbell, Biery & Associates, LLC
• Don Phillips, Safety Coordinator, City of Naperville
• Devin Stoll, Human Resources Manager, Cintas Corporation

Download the brochure and view their complete list of speakers. Visit their website or call: (646) 807-8555 to reserve your seat today. We look forward to seeing you this May in Chicago. 

1-5-15; PPD Double-Dip Ok'd-Why Isn't Claimant Making More?; Important FMLA Notice/Receipt Req'ment by Brad Smith; New Eavesdropping Law in IL and more

Synopsis: Did the  IL WC Appellate Court allow a statutory “double dip” for both loss of a “person as a whole” and wage loss under 8(d)(1)? Why Is Claimant Working in a Minimum Wage Job and Potentially Costing Village Taxpayers Almost $800K?

Editor’s Comment: In Village of Deerfield v. IWCC (issued December 23, 2014) our Workers’ Compensation Division of the Appellate Court of Illinois explained the basis for what some observers feel is a double PPD recovery when multiple incident claims are involved in litigation.

Claimant Hugh Garrity worked for the Village of Deerfield when he injured his left shoulder in February 2005 (later allegedly aggravating the right shoulder due to “overuse”). In a second injury later that year, Claimant injured his cervical and lumbar spine. There was some discussion by the physicians whether the original shoulder complaints were referred pain from the cervical/neck but ultimately, the first claim resulted in a right shoulder rotator repair and the second claim for the neck and back  resulted in a cervical fusion. A third alleged “aggravation” was deemed to not have materially advanced the condition(s).

The cases were tried consecutively and separate awards were issued. For the first shoulder claim, the IL WC Commission affirmed the arbitration award of 20% loss of the right arm and 15% loss of the left, but converted the award  into “man as a whole” awards consistent with the Will County Forest Preserve ruling. The second claim for cervical and lumbar injuries resulted in a major wage differential award under Section 8(d)(1). Respondent Village of Deerfield may have been disturbed by what they believed to be a double recovery, arguing there should not have been about $53K in additional compensation aside from the giant lifetime wage loss differential award. Please note these are “weekly” benefit awards. Many observers feel it runs contrary to the intent of the legislature for a claimant to get a double weekly check for permanency. In our view, the current IL WC Appellate Court isn’t strongly concerned with that anomaly.

In their argument before the reviewing Court, the Village cited prior case-law whereupon the IL WC Appellate Court had reduced/eliminated dual PPD awards on the same body part after multiple injuries. Accordingly, the Village argued there should be no weekly PPD award on the shoulder injury plus  a weekly wage loss award in the second case. However, the Appellate Court opinion distinguished the facts of the case at hand, pointing out in their prior ruling which eliminated a “dual award”  (specifically City of Chicago v. IIC 409 Ill App. 3d 258 (2011)) they found the two injuries in the City of Chicago case involved the same body part (low back). Also, the first injury had not resolved and it was “impossible to distinguish” which accident caused the condition of ill being. Under such facts, a single PPD value was appropriate and there should not be two PPD awards for what appears to be the same condition of ill being.

In the case at hand however, the Court felt there was an original injury to the shoulders and while there was suspicion of cervical involvement, there was no diagnosis or treatment for cervical issues until after the second accident. Therefore, the Court reasoned a separate PPD award on the shoulder claims was proper, in addition to the subsequent wage loss award for the second injury to the spine, which resulted in permanent restrictions and the need for vocational placement. Based on reduced earning capacity after the second accident, a wage loss award was deemed proper.

A lesson here for the claims/defense industry is two-fold; we must be careful not to “combine” body parts in assessing exposure, where there are separate diagnosis for two separate dates of loss. Also, even where the same body part is involved in subsequent accidents, claims handlers should be sensitive to whether the initial injury has fully resolved with MMI and whether the first injury contributed at all to the second claim. In the event a re-injury occurs and is deemed unrelated to the first, the language from the Court suggests additional PPD value may be awarded even for the same body part of the second injury can be sufficiently distinguished from the first.

Should This Ruling Involve Wage Loss Differential Benefits?

In our view, the problem isn’t with the IL WC Appellate Court’s view of the law, the problem is a claims/rehab issue. We feel it is obvious this guy can and should be making a lot more money than he is making now. If proper rehabilitation was provided, wage loss differential benefits would be a lot less or non-existent. We suggest the Village of Deerfield get an actual vocational rehabilitation plan in place and then file a 19H Petition to cut the current benefits dramatically or completely. They have sixty months to do so under the 2011 Amendments to the IL WC Act. If they want our help at no charge, simply send a reply.

From the ruling:

The claimant was directed to continue work conditioning and was noted to be capable of working at the light-medium physical demand level lifting up to 30 pounds. On April 5, 2010, the claimant underwent a vocational assessment with Vocamotive. He had previously undergone a vocational evaluation on October 13, 2009, by the employer's vocational expert, Brown Rehab Management. Both Vocamotive and Brown Rehab Management noted that the claimant did not have his graduate equivalency degree (GED) and recommended that he obtain it. The claimant took the GED test on March 5, 2011, and passed. The claimant worked with Vocamotive to find gainful employment. Vocamotive noted claimant was no longer able to engage in his customary and usual line of employment. The claimant ultimately secured employment at ATI Physical Therapy as a driver. He began on June 13, 2011, and earned $9.20 per hour. Beginning September 15, 2011, the claimant was given a raise to $10 per hour.

We don’t consider it to be “vocational rehabilitation” for Petitioner to obtain a minimum wage job in his post-injury state. Someone should work to source a real job that pays about what he was making at the time of injury or more. Based on the above findings, Claimant is now entitled to $36,125.96 each year on top of whatever money he makes to drive a car for ATI at minimum wage. He is 57 years old and has a 22 year life expectancy. The award for him to not work for the Village of Deerfield if he lives to a normal life expectancy may cost village taxpayers a tidy $794,771.12. We consider that a painful outcome because he can and should be doing so much more.

If He Can Drive a Car, He Can Get a CDL and Drive Trucks

As we told you last week, this guy is a perfect candidate for CDL training. He should be driving a truck right now and making about what he was making for Deerfield or a lot more. There are available no-lifting truck driving jobs all over Lake County IL that he could be doing right now and completely end this wage loss differential award. As we told our readers last week, throughout the greater Chicagoland area, there are no-lifting CDL jobs that pay $60-200K a year. If Claimant doesn’t like driving a truck, consider lots of secondary jobs in the transportation industry that are currently open and also pay well, like a dispatcher or DOT drug tester.

How About Open Municipal Jobs on the Web Right Now?

But let’s now even go to CDL training—right now the neighboring villages around Deerfield have lots of great jobs advertised on their websites.

·         The Village of Northbrook has a police dispatcher position on the web right now. This is a union position with a salary range of as much as $71,184 a year. Petitioner would need some training but clearly could and should pass any training/test. If he got this job, the wage loss award disappears, saving taxpayers almost $800K.

·         The Village of Winnetka needs an apprentice electric line worker. Again, Petitioner would need some training but his background matches the job’s requirements. The job pays as much as $88,144 per year plus excellent benefits.

·         The Village of Glenview needs 911 dispatchers. The salary is $18.00 - $22.00/hour. Following the training period, part timers may pick up 12-24 hours per week, depending on their availability. The part-time pool is used to fill full time vacancies. Even in a part-time dispatcher job, Petitioner would be making a lot more than he is making at ATI right now.

How About Staffing Jobs?

We looked on the web and found literally thousands of open jobs listed by staffing companies across Lake County, IL where Claimant Garrity lives. Lots of them requiring training but most of them pay more than he is making right now.

This article was researched and written by attorney John P. Campbell and Gene Keefe, partners at Keefe, Campbell, Biery & Associates, LLC. Should you have any questions or comments, please feel free to contact Mr. Campbell directly at jcampbell@keefe-law.com or at 312-907-8222.

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Synopsis: Updated/Crucial Recommendations For Confirmation of Receipt of FMLA Notices. Analysis by Bradley J. Smith, J.D.

Editor's Comment: Two recent federal decisions will likely cause U.S. employers to review their practices to account for using and retaining verification documentation in sending notices under the FMLA. The Family Medical Leave Act (“FMLA”) requires employers to provide general notice to their employees of their FMLA rights, both by posting a notice on the employer’s premises and by including information regarding the employer’s specific FMLA policies and procedures in an employee handbook, as well as specific notice to those employees seeking to exercise their rights under FMLA. The individual notice specific requirements are designated under FMLA regulations. If prejudice to an employee results from defects in the individualized notice, then this can give rise to an FMLA interference claim and potentially unneeded litigation.

In Lupyan v. Corinthian Colleges, the Third Circuit Appellate Court reversed a federal district court’s decision granting summary judgment to an employer, where the ruling rested on a presumption the employee received individualized notice of FMLA rights. The employee, when presented with evidence the employer sent the requisite individualized notice by regular U.S. mail, denied having ever received it. Whether or not the notice was received was an important issue as the mailing would have informed the employee her absences would be counted against her twelve (12) weeks of FMLA leave. If the employee did not receive it, then she could offer an explanation for not knowing that she would be terminated if she failed to return after exhausting her available FMLA leave. 

While many courts recognize the “mailbox rule” as a rebuttable presumption that a document sent by U.S. mail was received by the recipient, the Third Circuit stated the “mailbox rule” is not ironclad, and under applicable law creates a weak rebuttable presumption. Analyzing the evidence before it, the court held the employee’s allegation in her affidavit that she did not receive the FMLA notice by mail was sufficient to rebut the aforementioned presumption and create an issue of material fact that should be resolved by a jury. The Third Circuit made it clear employers wishing to evade material disputes regarding whether an employee has received a required notice regarding his or her FMLA rights should send such a notice using a method that allows for verification upon receipt.  In other words, the notice should be sent via certified mail, express mail with tracking capabilities or some other means proving receipt of delivery. 

Subsequently, the District Court for the Eastern District of Michigan held transmitting FMLA requests for recertification via e-mail, without any proof the e-mail had been opened and received by the employee, could constitute proof of “constructive’ as opposed to “actual notice of an FMLA-related communication.” In Gardner v. Detroit Entertainment, LLC, the court denied the employer’s request for summary judgment on the employee’s FMLA interference and retaliation claims, finding a material issue of fact existed as to whether the employee had received the employer’s request for recertification informing her of the need to recertify her eligibility for intermittent FMLA leave. The question of whether the recertification request had actually been received was material as the employer terminated the employee pursuant to its attendance policy after a number of absences were not excused as FMLA-related due to her failure to recertify by the deadline set forth in the e-mailed notice. Although the employer’s third-party FMLA administrator contended the employee had requested e-mail delivery of notifications, she claimed otherwise, stating she rarely read her e-mails and thus elected to receive communications by mail after the employer retained the third-party administrator to process FMLA requests. None of this would have mattered had the employer sent the employee a certified letter or confirmed the need to recertify orally with an acknowledgement signed by the employee; relying instead on an e-mail left the company unable to conclusively rebut the employee’s claims.

Based on the aforementioned decisions, employers looking to ensure an administrative or clerical issue does not preclude them from proving they provided an employee with a required FMLA notice should consider sending the notice by registered, express or certified mail, requiring return receipt, or by using some other physical or transmittal method by which receipt can be verified and confirmed. At the same time, employers should also make certain they retain the documentary evidence in their personnel files. 

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

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Synopsis:  Secrets in the Workplace!--This Amendment to the Illinois Eavesdropping Act Affects All of Us! Thoughts and Analysis by Matthew G. Gorski, JD.

Editor’s comment: Several new laws took effect at the stroke of midnight on January 1, 2015. One of those is a major Amendment to the Illinois Eavesdropping Act correcting its prior versions to reflect the Illinois Supreme Court's ruling in People v. Clark. To accommodate the Illinois Supreme Court's ruling finding the prior Illinois Eavesdropping Act unconstitutional, the Legislature required parties need only consent to the recording of private conversations. In other words, the new law attempts to refine the scope of the prior Eavesdropping Act to conversations deemed private. The five (5) notable changes to the law are:

• An eavesdropper is defined as someone who uses an eavesdropping device to secretly record a private conversation without the consent of all parties involved in the conversation. A private conversation is defined as only one of the parties had a reasonable expectation the conversation is private.
• An eavesdropper is anyone who uses a device to secretly record electronic communications without the consent of everyone involved.
• An eavesdropper is someone who discloses the content of a private conversation or private electronic communication without permission.
• The penalty for eavesdropping a judge, law enforcement officer, or state’s attorney was reduced.
• The amendment increases the number of crimes in which law enforcement does not need judicial permission to eavesdrop.

Last year, an earlier version of the Illinois Eavesdropping Act was struck down by the Illinois Supreme Court on First Amendment bases. The Illinois Legislature framed the new Eavesdropping Act amendments on the "reasonable expectation of privacy" test in a further attempt of framing the new law in a manner that would satisfy the Illinois Supreme Court's constitutional issues with the prior law being overbroad. In doing so, the Legislature focused on whether the parties involved in the conversation would have a reasonable expectation whether their conversation was in a private location.

Specifically, the test of whether the conversation can be expected to be private applies two (2) factors: 1) the intent that the conversation to be private; and 2) surrounding circumstances reasonably justifying that expectation of an intent the conversation be private.

How can you stay on the right side of this newly enacted law? It is recommended at this infancy stage of the newly enacted law that you make sure any video security surveillance within your business does not record sound. Although there may not be a reasonable expectation of privacy within the common areas of your business, this newly enacted law is untested in the common areas of a business and/or workplace, and those common areas might fall within the reasonable expectation of privacy of individuals participating in a conversation. We don’t suggest you take a chance your business will become a test case and you will have to incur the cost of litigation.

As previously mentioned supra, another change to the law includes electronic communication. Obviously, this includes emails, but it also includes other various forms of electronic communications, possibly even text messages. Make sure you do not save any form of electronic communication without the consent of your employees, vendors and the public. This should be added to disclaimers at the bottom of your outgoing emails. It may be a good idea to have your employees sign a waiver upon employment providing you permission to save their electronic communications. Additionally, restrictions on private email use in the workplace may allow for avoidance of any issues related to eavesdropping on electronic communications with a possible expectation of privacy. With proper employer policies and disclosure, there should be no expectation of privacy related to company email.

Employers should work with their counsel to develop internal privacy policies to properly plan for compliance with the amendments to the Illinois Eavesdropping Act. Particularly, employers should develop and implement internal policies related to disciplinary meetings to account for the "reasonable expectation of privacy" test. If the disciplinary meetings are held in locations or manners that do not account for a "reasonable expectation of privacy," then any potential recording by an employee could be used in legal proceedings, regardless of an employer’s lack of consent concerns. 

The research and writing of this article was performed by Matthew G. Gorski, J.D. Matt can be reached with any questions regarding the Illinois Eavesdropping Act, general liability defense, employment law, and workers’ compensation law at mgorski@keefe-law.com.

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Synopsis: This Friday John P. Campbell, Jr. and Gene Keefe will be speaking!

Editor’s comment: We will be at the ASSE Three Rivers Chapter at the Hilton on 3003 Corporate West Drive, Lisle IL. The program is designed to help local safety professionals better understand the new law and what a precautions they should take. 

Here is the link to the event page in case you are interested in attending. http://threerivers.asse.org/events/?ee=36