2-9-2015; Gov. Rauner's State of the State Address for WC; Arik Hetue Reviews Recent WC Legislation; Shawn Biery's IL WC Rates Updated Again and more

Synopsis: Governor Rauner’s State of the State Speech—What It Means for the IL Workers’ Compensation System, by Timothy J. O’Gorman, J.D.

 

Editor’s comment: Governor Bruce Rauner delivered his much anticipated State of the State speech this past Wednesday, February 4, 2015. Governor Rauner addressed several issues including proposed workers’ comp reform which clearly is an early focus of his new administration. The Governor did not discuss WC issues with much specificity. However he did address the problems of businesses in Illinois paying large workers’ compensation premiums in comparison to our neighbors in Indiana. The Governor discussed Modern Drop Forge as an example, which has manufacturing operations in both states. Governor Rauner indicated the manufacturer’s Illinois costs are $750,000-$1,500,000 compared to a $250,000 premium in Indiana. We point out the defense team at KCB&A has saved major national employers millions in IL WC costs. We don’t know who is currently handling Modern Drop Forge’s IL WC claims/defense but we are happy to help them dramatically cut their IL WC costs, if asked.

 

Can Indiana WC Benefits Be Too Low?

 

Our problem in comparing Illinois WC to Indiana is the comparison is too easy—Indiana WC is much lower than any of the United States other than North Dakota. We also point out Indiana’s average annual  cost-of-living expense is also lower than IL. Per the 2014 Oregon WC Premium Rate Rankings, of our other sister states, Missouri is at 21, Wisconsin is at 23, Iowa is at 24 and Michigan is 34. All of them are wildly high when compared to Indiana WC benefits. We feel Illinois WC is trending in the right direction and with the recent reforms, we will be well within the range of the above middle-ground states for the 2016 Oregon study. We don’t know if Illinois workers, union or non-union, will readily accept the penurious benefits provided to injured workers in Indiana. Please note a catastrophically injured worker in Indiana who all doctors agree can never work again only gets 10 short years of benefits and then is left to fend for themselves, their spouses and children.

 

Please Fix Your Own State WC House, Governor!

 

What was missing from the State of the State speech was any indication by the Governor or his new administration to take a hard look at future management of WC claims by Illinois State Gov’t workers. The State itself is one of its biggest employers and is supposedly paying out a whopping $125M a year in workers’ comp benefits to its employees—that is clearly part of our overall interstate ranking. We feel constant overpayment of WC benefits to state workers demonstrates longstanding mismanagement that was chronicled by Illinois Attorney General Lisa Madigan three years ago. Very little has changed in the State of IL WC defense program. The new Governor didn’t cause the problem but he can fix it. We strongly encourage Gov. Rauner to attack this issue. We are sure he can save IL taxpayers millions by doing so. As we indicate above, we are happy to assist, if asked.

 

Let the Current IWCC Do Its Magic

 

KCB&A has long described the problems associated with decades of high workers’ compensation premiums in Illinois and the problems it causes for our States businesses and government bodies. We have been, and continue to be, excited about the steps already taken by the much-more-professional Illinois Workers’ Compensation Commission since the 2011 changes to the IL WC Act which have empirically caused workers’ compensation premiums in Illinois to drop. We are hopeful the changes already made will mean further savings for Illinois self-insured employers and insurers. We are hopeful those savings will pass on to businesses and government bodies through continued reductions in workers’ compensation premiums.

 

Our defense team has recently noticed a clear shift in results from hearings and oral argument at the IL Workers’ Compensation Commission. Under current Acting Chair Ronald Rascia, the Commission and its Arbitrators have issued decisions that, as a whole, tend to be more employer-friendly than in previous years. If you want examples, send a reply. We also point out the number of claims has dropped dramatically—in 2014, there were only about 45,000 new claims filed. As we outline above, the trend for IL WC is to the middle.

 

Three Main WC Legislative Goals for Gov. Rauner

 

Although the Governor did not discuss specific issues regarding proposed workers’ compensation reforms, we feel a number of the following issues are on the Governor’s political agenda in the coming years. It appears to be his hope to implement further workers’ compensation reform legislation that:

1.    Updates how injuries are apportioned to ensure employers pay for injuries that occur at their workplace;

2.    Clarifies the definition of “traveling employees” to ensure a reasonable legal standard that excludes risks a traveling employee encounters that match the risks faced by the general public; and

3.      Implements mandatory American Medical Association (AMA) guidelines when determining impairment.

We point out lots of legislative reforms have been attempted by some legislative zealots with little traction. Please see the article from Arik Hetue below that chronicles these failures. We further feel Gov. Rauner could get much better results if he would reach out to KCB&A and other members of the IL WC defense community who could provide guidance on how to make IL WC benefits and administration more reasonable and middle-of-the-road.

 

Which Impairment Rating Will Apply? Are We Going to Get Into The “Battle of Ratings?”

 

Of particular interest to KCB&A is the possibility of mandatory implementation of permanent partial disability (PPD) awards which are based entirely on AMA impairment ratings. We have heard discussion from a number of parties that PPD values should be based solely on “the reported level of impairment.” We note the terms “disability” and “impairment” are sometimes used interchangeably however medically, they are very different. According to the AMA Guides, the only impairments to be rated are permanent impairments. A permanent impairment is defined as one that has reached maximum medical improvement (MMI) and is well stabilized and unlikely to change substantially in the next year with or without medical treatment. The AMA Guides define disability as "activity limitations and/or participation restrictions in an individual with a health condition, disorder, or disease.” We note by the AMA’s own definition, the term “impairment” only describes a portion of a person’s whole condition after suffering from a health condition, disorder or disease and may not accurately encompass the full extent of an employee’s condition after a work injury.

 

On a more practical level, we note adhering strictly to AMA impairment ratings may not create a system that leads to reduced WC costs for Illinois employers. Routinely we have seen Petitioner’s treating physicians generate impairment ratings which may far exceed any traditional disability determination made by an Arbitrator after considering all five factors in the IL WC Act. If the Act were changed to only allow Arbitrators to consider impairment ratings in finding the nature and extent of an injury, such a change might lead to a scenario where an Arbitrator can only choose between a Respondent-obtained impairment rating and a treating physician or Petitioner-obtained impairment rating. Forcing an Arbitrator or panel of Commissioners to choose between one of two extremes may not lead to the cost cutting results a change would be intended to bring about. Considering the conservative approach to determinations of all issues the current IL WC Commission administration appears to be implementing, we at KCB&A do not feel handcuffing our fact-finders to one of two possible ends of a spectrum would be fruitful.

 

The next major event which may affect the IL WC system is the release of the Governor’s proposed IL State Budget on February 18, 2015. We will keep our readers posted on news we feel you need to know. Tim O’Gorman, J.D. researched and wrote this article. You can reach Tim on a 24/7/365 basis with questions at togorman@keefe-law.com.

 

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Synopsis: What We May Learn About IL WC reform Efforts Going Forward by Reviewing Bills that Floundered in Recent IL Legislative Sessions, by Arik D. Hetue, J.D.

 

Editor’s comment: Every year, new bills are submitted to our IL Legislature. Most of these bills are debated somewhat, but stagnate. Let’s take a look at the IL WC reform bills recently submitted, and see if they tell us anything about changes to come.

 

The last IL legislative term was the 98th General Assembly, which lasted through 2013-2014. During that time many bills were proposed for WC reform. When the congressional session ends at the new year, any bills that were left pending without a vote essentially die, as the new congress comes in. The term of art for this is “Session Sine Die” which means the congress adjourned without assigning a day for a further meeting or hearing on those bills. Since the new legislature comes in, this effectively kills the bill. Not to worry – bills are re-introduced routinely by members who remain after winning a new term, and Governor Rauner has certainly made a lot of noise about WC reform, as Tim O’Gorman outlines above.

 

Looking back on the WC bills that faded away last session (there were 17 of them) we can see some were more comprehensive than others. They can be viewed online at http://www.billtrack50.com/PublicStakeholder/f3rqaAOfUUiAmU3fyWElLg. Below we have summarized their objectives and noted how many bills supported each proposition, in order of which objectives had the most support.

 

·         Primary Causation/”Major Contributing Cause” – 7

·         Providing credit for MAW injuries and capping PPD loss for cumulative awards at 500 weeks – 6

·         Converting Shoulder to the Arm/Hip to the Leg – 6

·         Reigning in the “Traveling employee” concept to still require an injury arise out of work – 5

·         Eliminating TTD/TPD when workers discharged for cause with work available (doing away with Interstate Scaffolding) – 4

·         Address AWW calculation for part time work or dual employment, eliminating “parts of a week” theory – 3

·         Cutting full duty release CTS cases to Impairment Rating awards – 1

·         Tightening up notice in repetitive trauma cases – 1

·         Expanding the intoxication defense – 1

 

This gives us a clear picture of what may be sought in a compromise process, presuming the Governor chooses not to push for a complete overhaul of the system. We note the changes put in place in 2006 and 2011 are having an impact, and we suggest some of the changes above would bring us up in relation to some of our sister states – we are happy to see broad-based support for doing away with what we feel is the unusual ruling in Interstate Scaffolding – there is no reason an employee terminated for reasonable cause should be entitled to ongoing TTD/TPD when they could have been working but for their own actions. Another solid and easily supported proposition is the adding back in of statutory credits for shoulders and moving those to the arm as they were for roughly 100 years before the Appellate Court decided to alter century-old precedent to eliminate credits for a shoulder surgery. The third objective which had a lot of bills supporting it was to clarify the “traveling employee” doctrine.

 

What can we take from this? The vast majority of the bills deal with issues which only arose after an activist Appellate Court significantly expanded and/or confused issues in our WC system. Interstate Scaffolding’s holdings lead to situations which are not logical. The travelling employee doctrine was widely expanded, although thankfully the IL Supreme Court has weighed in on at least one instance of this type of expansion. The elimination of statutory credits on the shoulder by converting them to MAW awards is just an abnormal occurrence with no basis in precedent.

 

It is the job of the legislature to make laws, and the job of the courts to interpret them. When the courts use that interpretation to expand laws beyond the legislative intent for those laws, it falls back to the legislature to amend those laws to state more clearly what the intention was. Kudos to the hard working legislators who are still working diligently behind the scenes to craft reasonable WC reform. We hope they get the ear of the Governor, and can move forward with some of these easy to argue issues.

 

This article was researched and written by Arik D. Hetue, J. D. who can be reached at ahetue@keefe-law.com. Feel free to email him with any comments or concerns, or post them to our award winning blog!

 

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Synopsis: Illinois WC Rates Jump Again UPDATED AGAIN FOR PPD 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 $735.37. 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.com and he will get a copy routed to you before they raise the rates again!

 

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Synopsis: Dr. Michael Vender and the great specialists at Hand to Shoulder Associates Now Have Office Hours in Belvidere, IL.

 

Editor’s comment: Dr. Vender is one of the top hand surgeons in the United States and has a great team of docs working with him. They have announced they are bringing their practice to Belvidere to provide solid care for workers in that area. Hand to Shoulder Associates began in the early 1970?s as a single physician hand surgery practice located in the growing industrial area of Elk Grove Village, Illinois. Over the last 40 years, they have grown to become a renowned center of excellence, recognized across the Midwest U.S. for specialization in injuries and problems of the shoulder, elbow, wrist and hand. The first replantations of upper extremity amputations in the greater Chicago-area were performed by one of the co-founders of HSA in the 1970s.

 

With their main office still located in the northwest suburbs of Chicago, HSA is the largest non-university single specialty hand group and one of the largest in the Midwest. They have six board certified or board eligible orthopedic surgeons, each having additional training in the upper extremity and microvascular surgery. They operate numerous office locations throughout the Chicago area.

 

Their main number is 847 956-0099. Their website is http://www.handtoshoulders.com/

2-2-2015; Walker Wants to Whack Wisc WC--Will Rauner Follow?; Can IL Wage Loss Settlements Ever Be "Fair?"; LHWCA Enforces Statutory Notice Req'ment as the States Do and more

Synopsis: Walker Wants to Whack Wisconsin WC--Will Rauner Follow?

 

Editor’s comment: Workers’ comp watchers across the Midwest U.S. were stunned to see a memo come out of Cheese-land where it appears Governor Scott Walker is trying to break up or “de-form” their quiet and generally reasonable workers’ compensation system. Labor representatives and attorneys say they are concerned about a report Gov. Scott Walker’s two-year budget plan will call for “drastic” changes in Wisconsin’s well-regarded system for compensating injured workers.

 

Please note the most recent Oregon WC premium rankings puts Wisconsin almost right in the middle of the United States—they are 23d with an index rate of 1.92  and they are 104% of the median of all states. Our Cheese-brothers/sisters were previously 12th in the Oregon 2012 WC premium rate survey so they are tracking precisely where Illinois wants to be in the next two years.

 

It seems someone in the Wisconsin Worker’s Comp Division leaked an unsigned memo authored by a person with knowledge of the potential changes to the worker’s compensation program states the Walker administration plans to upend the current one-stop-shop for injured workers, employers and insurance companies by dividing responsibilities among various agencies that don’t currently handle or understand workers’ comp law and rules. These are changes the anonymous author claims will “clearly have a negative impact on our stakeholders.”

 

The memo, dated Jan. 15, was sent to “WC Stakeholders” and is filled with shorthand and acronyms aimed at people knowledgeable about the WI WC system. The Wisconsin State Journal obtained the memo last week, and it was circulated among the media by Sen. Jon Erpenbach, D-Madison, on Monday. If you want the link to the memo, send a reply. The author declined to be identified publicly for fear of being terminated. Among the changes the memo outlines would be allowing companies and injured workers to reach their own settlements.without approval by the WC Division. Currently, all such agreements must be approved by the Division’s ALJ’s or administrative law judges. The same rules apply in IL workers’ compensation—the concept is to insure injured workers get fair settlements within a reasonable range for other similar injuries.

 

In addition, the memo states ALJ’s and the Division would no longer be available to answer questions from the public, injured workers, employers and insurance companies and instead focus only on rendering decisions in contested cases. This “no-questions-answered” concept wouldn’t be much of a change to Illinois WC practice as our WC administrators rarely answer questions but direct interested parties to attorneys on both sides. We feel this newly proposed Wisconsin approach may lead to more litigation and not less.

 

We are also advised the Governor wants to end the practice of using certified court stenographers for contested hearings—this practice would change the concept of appeals in reliance on transcripts. We are unsure what other system for recording hearings would replace transcripts and the CSRs who create them.

 

Another aspect of the plan would reportedly remove the Worker’s Compensation Division from the Wisconsin Department of Workforce Development and split its future duties between two different agencies, the Office of the Commissioner of Insurance and the Department of Administration, according to the memo. As we outline above, neither agency has anything to do with Wisconsin workers’ comp at present so a rocky and confusing transition may take place. Governor Walker is scheduled to unveil this budget proposal tomorrow Feb. 3.

 

Like IL WC, the cost of administering Wisconsin’s WC program is paid for by worker’s compensation insurers and self-insured employers who remit a yearly fee in proportion to their size. Taxpayers and injured workers do directly not pay for the WC system. For the Wisconsin WC administration, any reorganization would not add or subtract from the 2015-17 Wisconsin budget’s bottom line.

 

What will it mean to Illinois WC?

 

It is hard to tell but we are certain our current Governor Bruce Rauner closely watches the actions of Governor Walker in Wisconsin and Governor Daniels in Indiana. We salute him for doing so, as they are close competitors of our state. Of the three states of Illinois, Wisconsin and Indiana, Illinois has been the worst-run under Democratic control for well over a decade and we have major financial issues including over $110B in debt that is going up at a rate close to $20M every day of the year. As we have said over and over, we do feel the IL WC system can be readily reformed without the need to battle over legislation in Springfield. We are happy to advise Governor Rauner’s staff and/or any of our readers on how to get this done quickly and smoothly—all you have to do is ask. In our view, what Governor Walker is doing in Wisconsin is much too radical and he is trying to “fix-something-that-isn’t-broken.” We don’t feel confusion and chaos is a way to make things better for any of the component players in the WC arena.  

 

We hope assume Governor Rauner is going to listen to KCB&A and other IL WC participants to make his goals known and let everyone help him to reach them. Gov. Rauner’s first State of the State speech is later this week so we will see what he has to say and report it for our readers next week.

 

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

 

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Synopsis: Will Illinois’ Workers’ Comp System Ever “Settle” Wage Loss Claims Fairly?

 

Editor’s comment: After last week’s KCB&A Update article about how the defense industry may counter/defend expensive and questionable wage loss differential claims with “dispatch,” we had numerous readers write and call to confirm one of the unquestionable “kinks” or anomalies in settling such claims. In short, we feel the current method of documenting and settling such claims is challenging and may even be borderline fraud. We look to our readers for guidance on closing this claims “loophole” moving forward.

 

IL WC wage loss differential claims are supposed to be lifetime benefits with the assumption the worker will have “permanent restrictions” for the rest of their life. The supposed permanent restrictions can be obtained from an FCE that takes four hours of testing. As we have told our readers and lots of FCE providers, we think FCE’s in IL WC are over-utilized and not scientifically significant, so as to justify hundreds of thousands of dollars in WC settlements being paid.

 

We see lots of claimants coached on how to “fail” such testing to justify the restrictions to be entitled to weekly tax-free benefits for life. Please note the IL WC Act was changed to allow for payments to be challenged for five years or sixty months. When this issue was litigated, our Petitioner-oriented reviewing courts ruled such benefits could only be changed if the “disability” changed. The courts indicated it didn’t make any difference if the worker receiving weekly benefits was making ten times more money than when the benefit level was set, the worker was still entitled the same lifetime benefit. We consider this a controversial approach that doesn’t match the legislative intent of the amendment.

 

The challenging issue is how wage loss differential claims are handled in lump sum settlements. If an Illinois wage loss differential settlement is lumped out for let’s say $350,000, the money is usually called “loss of use of the body as a whole” and/or put on other body parts. IL Employers don’t get “credit” for such settlements if a later claim is made by the same workers. Such settlements occur without the employee “admitting to” the supposed permanent lifetime job change. This sets up the situation in which an injured worker could get a large amount of money to then “recover” from the permanent restrictions to return to the same trade and then suffer another injury and start the path to getting another large settlement. We had a claim where a worker did this four times before we got the fifth such claim. We were able to stop the claimant and his attorney when we got all the prior records and settlements.

 

We have tried to draft settlement contract language confirming the worker can never accept a future job requiring lifting higher than their supposed “permanent restrictions.” Arbitrators and opposing counsels refused to agree with or approve such settlements, asserting we were unfairly limiting the workers’ future rights. We responded to outline our position double or triple wage loss differential settlements in one lifetime was tantamount to workers’ comp fraud. Most of the Petitioners’ attorneys and Arbitrators said to raise that issue when dealing with the second or third such settlement.

 

What do you think? Should lump sum wage loss differential settlements be handled differently? How do you feel they should be worded? Is this the sort of issue that should be brought to the IL Workers’ Comp Advisory Board or the IWCC for their guidance? We appreciate your thoughts and comments.

 

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Synopsis: Lack of Timely Notice for “Repetitive Working” Claim Fails at Longshore WC As It Should In State WC Claims.

 

Editor’s comment: In Mack v. SSA Cooper, LLC., Claimant Mack worked as a longshoreman for 16 years and retired in 2005, when he last worked for SSA Cooper, LLC. Mack filed a claim under the LHWCA, alleging degenerative disc disease was an “occupational disease” related to his working conditions, including lashing, running a bulldozer, driving the lift and using heavy rods, cables, and turnbuckles. He did not allege our outline a true “accidental injury” or unforeseen occurrence of any kind.

 

Claimant testified he stopped working in 2005 because his legs started cramping and his doctor told him he had a disc pressing against a nerve, requiring surgery. The employer controverted the claim, indicating its first notice or knowledge of the claim was on October 31, 2013, more than eight years after Mack last worked for them. At the hearing before the ALJ the employer argued Claimant failed to make a prima facie showing because he improperly alleged an occupational disease claim and, to support such a claim, the conditions causing the harm must be present in a peculiar or increased degree by comparison with employment in general.

 

The ALJ indicated back problems qualified as an occupational disease and therefore was immaterial to the 20(a) presumption. The medical evidence showed Claimant suffered from a back condition requiring surgery, meaning Claimant established he suffered a harm. Mack’s job was described as tough, heavy, physical work that included bending, stooping, and lifting heavy objects. These conditions were felt to cause, aggravate or accelerate his degenerative condition. Thus, the ALJ held Claimant established the prima facie elements and was entitled to the §20(a) presumption. 

 

The crux of the case was the statutory date of injury. The question of whether Claimant was entitled to benefits under the LHWC Act depended on a determination of when he was aware or should have been aware his employment and injury were related. The ALJ found there was substantial evidence that Mack had not given sufficient notice to entitle him to the §20(b) presumption for Sections 12 or 13. The ALJ further found Mack should have reasonably been aware his injury was related to his work on August 8, 2005 when he first sought treatment for his back condition. The ALJ also noted the  record was replete with evidence Mack was aware, or reasonably should have been aware, of a causal relationship between his injury and his work through both medical advice and loss of wage-earning capacity. 

 

There was no question Claimant testified he became aware in 2005 he was disabled from longshoring because of his back surgery. Mack also said he last worked on August 8, 2005 because he was totally disabled, and he had not worked since then, and his doctor had told him there was no way possible he could return to work at the docks. These statements showed a direct causal link between Mack’s  work and injury as well as an immediate impact on his wage capacity. The ALJ pointed out, regardless of Mack’s proclaimed lack of awareness, the appropriate standard for determining the date of injury was not subjective, but objective. The medical advice showed Mack should reasonably have been aware of the relationship between his injury and his job in August 2005. There was nothing in the record to indicate SSA knew of Mack’s injury prior to the October 15, 2013 notice.  In summary, the ALJ found the record showed Mack knew or reasonably should have known his injury was related to his employment and his disability affected his wage-earning capacity. The ALJ found Mack failed to provide a satisfactory reason for the late notice. SSA properly raised an objection to the failure to give timely notice, and would be greatly prejudiced if the failure were excused. Accordingly, the ALJ held Mack’s claim is time-barred and the claim was denied.

 

The ruling was issued on January 12, 2015 and may be appealed. We are simply reporting this decision and it is not our intention to affect the outcome of the litigation in any way. The defense team at KCB&A handles and defends LHWCA and Jones Act claims—if you have questions or concerns about one, send a reply.

 

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Synopsis: Dr. Michael Vender and the great specialists at Hand to Shoulder Associates Now Have Office Hours in Belvidere, IL.

 

Editor’s comment: Dr. Vender is one of the top hand surgeons in the United States and has a great team of docs working with him. They have announced they are bringing their practice to Belvidere to provide solid care for workers in that area. Hand to Shoulder Associates began in the early 1970?s as a single physician hand surgery practice located in the growing industrial area of Elk Grove Village, Illinois. Over the last 40 years, they have grown to become a renowned center of excellence, recognized across the Midwest U.S. for specialization in injuries and problems of the shoulder, elbow, wrist and hand. The first replantations of upper extremity amputations in the greater Chicago-area were performed by one of the co-founders of HSA in the 1970s. 

 

With their main office still located in the northwest suburbs of Chicago, HSA is the largest non-university single specialty hand group and one of the largest in the Midwest. They have six board certified or board eligible orthopedic surgeons, each having additional training in the upper extremity and microvascular surgery. They operate numerous office locations throughout the Chicago area.

 

Their main number is 847 956-0099. Their website is http://www.handtoshoulders.com/

 

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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!

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

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

IL

Part-Time

911 Police/Fire Dispatcher

Leyden

IL

Full-Time

911 Police/Fire Dispatcher

Oak Lawn

IL

Full-Time

911 Police/Fire Dispatcher

Cicero

IL

Full-Time

911 Police/Fire EXPERIENCED Dispatcher PART-TIME

Oak Lawn

IL

Part-Time

Call Taker Dispatcher-Superior

Elmhurst

IL

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. IWCCwe 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. Espositothe 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.