February 24, 2015

1-26-2015; Can IL WC End Wage Diff Claims with "Dispatch?"; Shawn Biery Publishes Updated IL WC Rate Sheet; IL Supreme Ct Decides Atty Fee Dispute and more

February 24, 2015/ Eugene Keefe

Synopsis: Can the IL WC Defense Industry End Wage Diff Claims with “Dispatch?” Enter Our Contest!!!

Editor’s comment: Illinois workers’ compensation is a strange and unusual place to manage claims. We continue to see decisions like the Village of Deerfield v. IWCC where certified rehab counselors on both sides provided challenging opinions indicating the best paying job this government worker could obtain was at or around our minimum wage of $8.25-10 per hour. We consider that outcome embarrassing to all WC system participants. On behalf of the taxpayers of Deerfield, IL and our readers in the insurance/business community, we are infuriated with some voc experts and rulings in reliance on them by IL Arbitrators and Commission. Because of such rulings, we feel taxpayers and Illinois businesses are spending millions more on IL work comp than they should. We feel that challenging voc approach has to be rejected at all stages. We look forward to the day when conservative Arbitrators tell the CRC’s to go back and find Petitioner a better-paying job before they issue a final decision. We can do better than minimum wage, people.

‘Bad Job Right Away’—the IL WC claim handler’s nightmare

If you’ve been around the Illinois workers’ compensation system for a while, you know that one of the biggest crises facing all Illinois employers is what we call ‘Bad Job Right Away.’ This tactic is designed to take full advantage of Section 8(d-1) in the IL WC Act which provides for wage differential benefits calculated by taking the difference between what the employee could be making in the job when injured and whatever they are “able to make” following an accidental injury. The problem with this concept is many trades involve employees who are paid high wages because their jobs primarily require brawn and not brains. They are paid high wages because they are able to endure the rigors of doing heavy work in dangerous environments. What some of them are doing when they suffer injuries once considered ‘part of the job’ such as operated knees, shoulders or backs is to try to get out of their trade and cash in on novice claims management by the carrier or third party administrator (TPA). The problem in handling wage diff claims for insurance carriers/TPA’s is the need to lump them out to reach closure—what appear to be lifetime benefits are very rarely paid over anyone’s life. As you will see below, the settlements may be enormous.

Wily petitioners’ attorneys know that. So when a tradesman, truck driver or nurse suffers an operated shoulder (or knee, elbow or back) that will render it difficult to return to the same work, the tradesperson is advised to complain to their doctor to get a goofy FCE that contradicts all the ongoing findings by a registered physical therapist in weeks of physical therapy. The goal of the FCE for Petitioner and his counsel is to provide work restrictions which arguably push the injured worker out of their trade. Please note Petitioners’ attorneys in this state beg, plead and fight to have FCE’s ordered by an arbitrator to obtain the all-important work restriction. Once the worker with a sore shoulder has the restriction, he or she is then coached to look for a ‘bad job right away.’

Why would anyone want a ‘bad’ or lower paying job?

Short answer: to maximize their workers’ comp claim for wage loss diff benefits. The tradesperson who takes a minimum wage job after an injury may have a claim for wage loss at the maximum amount allowed by law—currently $1,021.34 per week or about $53K on a tax-free basis each year until they reach 67. Wage loss based upon Section 8(d-1) of the Illinois Workers’ Compensation Act is calculated at 2/3 of the difference between what the employee could be making at the time of the finalization of the claim and what they were making when injured. Starting in 2006, the cap is the Statewide Average Weekly Wage which is already $1,021.34 a week and rising.

For a 25-year-old wage-earner, who won’t hit 67 for 42 years, they would have a wage loss with a full value of $2,226,000 (or $1,021.34 x 52 weeks x 42 years). That’s lottery-winning money for an operated shoulder claim and may be 5-7 times more than amputation rates. Even if one would take the present discounted value of all that money, it is still exponentially more than the typical award of 10-15% BAW for most operated shoulder claims.

Why do they want the ‘bad job’ right away?

No one really wants the ‘bad job’ because they might have to starve for a while compared to the high scale they were used to living on, even if they are receiving TPD. They also might have to work in a less than likeable job environment. The employee will rush to get a lower paying job and similarly hurry to seek wage differential benefits determined so they lock in their lifetime claim at a high value. After that happens, they will try to get the carrier or TPA to lump out the benefits—once they get the lump sum, they are ready to return to regular work or start a business they always wanted to start, and the ‘bad job’ will soon be a distant memory. While it may smell like fraud, it is perfectly legal.

This strategy, if properly implemented, is difficult to counter—many employers want to get rid of a problem employee. Many treating physicians are thrilled to get rid of a chronic complainer and feel that they have done their job when they get the employee back to limited work. And it is really difficult to continue to try to place someone in a better paying job once they have obtained employment—in fact, the ‘bad job’ itself generally makes it difficult to have the wily claimant continue their job search.

How Do You and All Risk Managers/Claims Handlers Stop this Silliness?—With “Dispatch.”

We have advised our readers about “no touch” freight driving jobs for job candidates who get CDL’s or Commercial Driver’s Licenses. If you want information on that concept, sent a reply. We also learned there are lots of seated dispatch jobs in the logistics and transportation industry that can be done for reasonable to above-average pay with relatively limited training. Here are numerous open and well-paid dispatch jobs we found in about thirty seconds of searching on the web:

911 Dispatcher Part-Time

River Grove

Part-Time

911 Police/Fire Dispatcher

Leyden

Full-Time

911 Police/Fire Dispatcher

Oak Lawn

Full-Time

911 Police/Fire Dispatcher

Cicero

Full-Time

911 Police/Fire EXPERIENCED Dispatcher PART-TIME

Oak Lawn

Part-Time

Call Taker Dispatcher-Superior

Elmhurst

Full-Time

We are now running a contest you can enter. We learned there are 911 Dispatch jobs and lots of other dispatch jobs across the entire state of Illinois. The description of the 911 Dispatcher job tasks are seated or sedentary work; High school or GED equivalent accepted and some training/experience required.

These jobs pay well to very well—we saw one job in a north suburb of Chicago which paid $88,000 a year with full benefits in a union position. For the vast majority of injured workers, sedentary jobs that pay that much money would completely eliminate IL WC wage loss differential claims. There are all sorts of dispatch jobs out there in our state. A quick search onIndeed.com, Monster.com or www.dispatcherjobs.com will bring lots of hits.

Enter to Win!! Find Non-Dispatch Jobs that Fill the Bill.

We are also asking our readers and offering prizes for the best response on non-dispatch sedentary jobs that will end lottery-level wage loss differential work comp claims. We don’t want our clients or any business/government to have to pay millions to a worker for a simple operated shoulder or knee. Do you know of open jobs in our state that are similar to dispatch jobs? We are looking for

· Seated or sedentary work;

· High school or GED equivalent;

· Private sector or state/local/U.S. government jobs;

· Jobs that have continuous openings are a plus;

· Six months or less of training required; and

· Starting pay from $15 per hour or more.

Please send them in and next week, we will share the best “wage-loss-differential-busting jobs” with our readers. KCB&A will send a prize to every participant. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Illinois WC Rates Jump Again and Your PPD Reserves May Be Wrong(!) and Need Retroactive Updating. Send a Reply to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

Editor’s comment: There continues to be an upward spiral of IL WC rates. Starting in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, our WC rates keep climbing.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $725.81. When it was published, this rate changed retroactively from July 1, 2014 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now,your reserves are wrong. If you have a claim with a date of loss after July 2014 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. If this isn’t clear, send a reply to Shawn at sbiery@keefe-law.com.

The current TTD weekly maximum has risen to $1,361.79. A worker has to make over $2,042.69 per week or $106,219.62 per year to hit the new IL WC maximum TTD rate. Do such folks truly need full TTD value? Does any state in the United States have a TTD maximum that high?

The new IL WC minimum death benefit is 25 years of compensation or $510.67 per week x 52 weeks in a year x 25 years or $663,871.00! The new maximum IL WC death benefit is $1,361.79 times 52 weeks times 25 years or a lofty $1,770,327.00 plus burial benefits of $8K. On top of this massive benefit, Illinois employers/governments have to pay COLA increases.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet. If you want it, simply reply to Shawn at sbiery@keefe-law.comand he will get a copy routed to you before they raise the rates again!

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Synopsis: Illinois Supreme Court Decides Another WC Attorney Fee Dispute.

Editor’s comment: Along with Alvarado v. IWCC, we now see a second WC dispute made it all the way through the trial and appellate court to our highest court.

In Ferris, Thompson and Zweig, Ltd. v. Esposito, the dispute involved the question of subject matter jurisdiction between the Illinois Workers’ Compensation Commission and the Circuit Courts. The Court held that an attorney fee dispute based upon referral agreements wherein a Plaintiff attorney referred new workers’ compensation claims to Defendant attorney fell within the Circuit Court’s jurisdiction and wasn’t properly litigated at the IWCC.

Plaintiff sued Defendant in Circuit Court claiming they had a written agreement for Plaintiff to act as co-counsel in representing two women who had IL workers’ compensation claims. After the cases settled, Defendant stiffed Plaintiff on its share of fees. When the civil complaint was filed, Defendant moved to dismiss the suit, contending the claim fell within the jurisdiction of the Workers’ Compensation Commission. Defendant relied on section 16a(J) of the Workers’ Compensation Act, which provides “[a]ny and all disputes regarding attorneys’ fees,” including disputes related to division of fees, shall be heard by the Commission.

The Circuit Court denied the motion and, following trial, Defendant appealed. Upon review from the Appellate Court opinion affirming the Circuit Court, the IL Supreme Court also affirmed. Our highest court held the Commission did not have jurisdiction because the dispute did not require determination of the amount of fees charged for representing claimants before the Commission or an apportionment of those fees between attorneys who represented the claimants before the Commission. Plaintiff here had not represented the claimants before the Commission. Instead, the dispute was merely a routine breach-of-contract action based entirely on the referral agreement.

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

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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.

February 24, 2015

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...

February 24, 2015/ Eugene Keefe

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.

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.

February 24, 2015

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

February 24, 2015/ Eugene Keefe

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.

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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