2-16-15; KCB&A Comments on ITLA IL WC Propaganda; Handling IL Fall-Down Claims in Ice/Snow; IL WC Rules on Photocopying and more

Synopsis: IL WC Propaganda from the Friendly Folks at ITLA—Our Best Thoughts for the Legislature and our Business Readers.

Editor’s comment: Governor Rauner’s very first Illinois State Budget address to all of us is set for this Wednesday, Feb. 18, 2015. Lots of things may change in our state as the new Governor tries to make up the massive multi-billion gap between expected income and government spending. It is possible he will try to “sweep” the over-500 funds out there to try to make ends meet. We hope our WC administration doesn’t get “swept-away” in the budget overhaul.

While preparing for the budget fallout, we saw a recent Illinois Trial Lawyers Ass’n (or ITLA) “fact-sheet” about Illinois workers’ compensation being distributed around the halls of our State Capitol last week. We wanted to give our legislators and readers our best thoughts and comments—some of this stuff is poorly reasoned and some of the ITLA facts are accurate and spot-on.

1.    First, they ask the longstanding and challenging question—Despite claims Illinois is not profitable for WC insurance, there are 330 insurance competing for and writing WC insurance in our state. If IL WC is so unprofitable, why are these insurance companies climbing over one another to sell insurance here?

We take issue with this entire concept that competition makes any product wildly cheaper and less profitable. We point out gold, silver and diamonds are sold by literally thousands of merchants in Illinois. The competition for these products is intense. Retailers of gold, silver and diamonds don’t and can’t sell them for less than their wholesale cost. They may come at customers with interesting deals or normal marketing spiels but they still have to cover their costs and make a reasonable profit. The same thing happens in workers’ comp insurance—they are all trying to make a buck regardless of profitability. And when anyone has time, who claims WC insurance isn’t at least marginally profitable?

2.    The ITLA fact sheet again makes reference to the NCCI advisory rates and the fact NCCI had recommended a near 20 per cent reduction in premiums since 2011—this statement is inaccurate and misleading. NCCI published “advisory rate reductions” and not premium reductions. The ITLA fact sheet indicates the “advisory rate” reduction should result in a $1B savings in insurance premiums but insurance companies “refused” to reduce premiums in response to industry recommendations.

This section goes back to the silly and challenging problem of NCCI publishing WC insurance premium advisory rates that aren’t mandatory and don’t truly mean anything in the context of actual IL WC insurance premiums. To our knowledge, the IL WC advisory rates have always gone down—our research indicates these ethereal advisory rates have been “dropping” for well over a decade or more. Since you can’t actually buy WC insurance at the advisory rates, the whole concept is misleading.

3.    The ITLA fact sheet touts the fact Illinois is well below average in the number of claims per 1,000 workers.

We assure our readers this is true and something our readers on both sides of the WC matrix should be aware of. Illinois is a safer state and has less work injuries, not because of anything ITLA has actively championed but because of you—risk managers and safety consultants and claims handlers have learned from mistakes. We truly have a safer business environment than many other states. We also feel the hyper-aggressive folks at OSHA in this state make it hard to allow anything unsafe to be present in the IL workplace. If someone gets seriously injured, the hammer of IL OSHA fines is soon to follow.

4.    The fact sheet heralds the fact IL WC claims have dropped and continue to drop. In 2003, the number of litigated WC claims in this state was at 62,000; we are now at 42,500 for 2013.

Again, we assure our readers this is accurate and sometimes surprising. We feel some of this is due to bad job creation numbers. Please note the “shelf-life” of IL WC claims is about three years and the drop means there used to be almost 200,000 claims; now there should be less than 130,000 claims currently pending. The trend of fewer claims should continue as IL job creation continues to fall. If WC benefit levels continue to move into the mainstream, we hope more jobs will come to our state. Please remember the State of Texas “created” 400,000 new jobs last year while Illinois’ jobs growth for the whole year didn’t match one month of the jobs increase that happened in the Lone Star State. If we had 400,000 new jobs in Illinois, we might have lots more WC claims.

5.    The ITLA position paper indicates NASI or the National Academy of Social Insurance indicates WC remains the second most profitable line of insurance after auto insurance.

Like the analysis of gold, silver and diamonds above, profit comes from the sale of goods. More profit comes to the sale of pricier goods. The NASI report has so many statistics, you could basically prove anything you want with it.

6.    The ITLA paper indicates the Oregon WC Premium Rate study indicates Illinois had a 24% reduction in WC rates from 2012 to 2014. They assert this was the biggest drop in the U.S.

We have told our readers over and over, these statistics are accurate. Illinois was much too high and is now simply high—we rank number 7 in the U.S. for WC premiums. We hope our progress continues and the State of IL catches up to Wisconsin, Iowa and Michigan in the middle of the pack with fair and reasonable coverage and benefits. KCB&A doesn’t feel we need to be as penurious as Indiana in doling out pennies to injured workers like they were sewer covers.

7.    Finally, comparing IL WC to IN WC, the ITLA fact sheet indicates

·         Indiana pays it workers 27% less than Illinois and lower wages create lower WC costs. We consider this accurate.

·         IL is 8th in the country for average weekly wages while IN is 35th. Again accurate.

·         IN restricts the right of workers to pick their own doctors/hospitals while IL injured workers can still pick their own docs. Also accurate.

·         The ITLA sheet complains about equal treatment for the same injuries in the never-ending debate about impairment vs. disability. Accurate and boring.

·         Finally, the last beef is about the IN early return to work program or ERTW. We support early return to work in all states—we recommend IL WC consider such a program.

We hope the best for the hard work being provided by our new Governor as he issues his first budget and fights to make our State a better place. If you would like to review the ITLA fact sheet and compare our analysis, send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: When do you pay an icy/snowy IL WC fall-down claim?

Editor’s comment: The true answer is “no one knows.” We get so many questions about this topic, we wanted to give you some quick thoughts.

First, you have to fully investigate and lock in the facts. If you don’t, the facts may “change” and not in the way you might like. Pull security video/take statements/insure you know what happened.

Second, in theory, Illinois WC does not adhere to the concept of positional risk. Just because someone is at work when they fall, it doesn’t mean they are automatically entitled to benefits. They have to show some increased risk caused the fall. Sort of. Accident must have its origin in some risk connected with or incidental to the employment. The risk the injured worker faced must be greater than the degree of risk faced by the general public.

Does the fact a worker is in a parking lot owned by the employer automatically mean coverage for any injury will be present? The IL Workers' Compensation Act does not mention or define parking lots or “company parking lots.” The law governing compensability of parking lot injuries is based on common sense and reviewing court decisions. That said, injuries occurring on an employer’s premises are found to be compensable when the actions leading to the injury arise out of and are in the course of employment.  

Homereding v Industrial Commission--Claimant was a nail technician in a salon located in a strip mall and there was a parking lot in front of and in rear of the salon. The parking areas were owned by the mall and her employer paid a share of the common area maintenance to maintain the adjoining parking lots This employer directly instructed the injured worker to park in the rear lot behind the salon. When Claimant fell on ice going to her car to obtain work supplies during the work day her injuries were ruled compensable.

In Wal-Mart Stores, Inc. v Industrial Commission, the Wal-Mart worker was walking in the store parking lot to her car which was being driven by a friend who was picking her up after work. Wal-Mart generally requested employees park in a designated area but this was not "required" or closely enforced. The general public parked anywhere in the lot, including the area where Wal-Mart requested employees to park. The claim was denied. The message to the larger Illinois business community was not to tell workers where to park or enforce employee-only parking rules.

In Caterpillar Tractor Co. v Industrial Commission which is the last statement by the IL Supreme Court in a fall-down claim, Claimant stepped off a curb onto a blacktop driveway in route to his car parked in the company parking lot. There was a slight cement slope for drainage between the curb and the blacktop driveway. As Claimant stepped off the curb his right foot half landed on cement and half on the blacktop driveway and he twisted his ankle. The cement incline was dry and there were no holes, obstructions or rocks. Claimant did not slip, trip or fall.

The IL Supreme Court denied compensation ruling  there was no defect or hazard. Claimant did not trip, slip or fall and nothing had increased claimant's risk of harm. All members of the general public confront the same risks of traversing curbs.

Contrast the Caterpillar Tractor ruling with the IL Appellate Court ruling in Metropolitan Water Reclamation District v. IWCC claim where a woman was walking to the bank with a bank deposit and tripped on a driveway. The Appellate Court relied on a “risk of the street” analysis that, in our respectful view, directly contradicts the Supreme Court ruling in Caterpillar Tractor.

There are numerous factors that may lead to acceptance or denial of a fall-down claim. In the first instance, if the injuries are minor, there is no reason to fight like crazy over a small amount of money. If you face a serious claim with significant injuries and want the best possible path to dispute the claim, send a reply and the defense team at KCB&A will answer with research and our best thoughts on a 24/7/365 basis.

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Synopsis: Can an IL WC Lawyer Send You a Check for $25 and Demand Unlimited Copies of Your File(s)?

Editor’s comment: This article touches on the Clayton v. Ingalls Hospital ruling. In that ruling, our reviewing court wrote what we consider to be a very confusing decision that is technically accurate but somewhat misleading, as we will indicate below. There is no true “discovery” in IL WC like in general liability claims. Most subpoenas you will receive are sent with misleading correspondence asking for you to cash the check and then make and send unlimited photocopies of medical or other records in your possession.

Nothing in the IL WC Act or Rules requires you to make photocopies at any cost. Please remember the IL WC Act was first passed in 1909. At that time, “photocopying” was unheard of and hadn’t been invented. The Act and Rules haven’t been updated to resolve this “new” technology. If you think the law or the rules should be changed, send a letter to the IL WC Advisory Board.

The $25 check is a “witness fee” plus a small amount for mileage to defray the expense of getting to the hearing. If you cash the check, you are then supposed to bring the original records you have to a hearing before the Arbitrator. The Arbitrator could review the original records and you could then take them back to your office. You don’t need to allow them out of your possession to be copied—they are your property and your only duty as a witness responding to a subpoena is to bring them to the hearing, show them to the hearing officer and then take them back.

Petitioner attorneys don’t want you to bring original records to a hearing so they say you don’t have to bring the records if you will just make thousands of free copies at no further expense to them other than the witness fee of $25. We consider that mildly misleading.

There is a provision for copying of medical records on the IL State Comptroller’s website. Take a look: http://www.ioc.state.il.us/index.cfm/resources/general-resources/copy-fees/

If you get a subpoena and a check for $25, what we suggest you do in the future is to have a clerk price the copying of records under the schedule above and send the pricing to the attorney seeking the records.

If they pay the amount you seek or settle with you for a middle-ground amount that you are willing to accept, copy and send the records. If they won’t pay anything other than $25, tell them you won’t provide the records. If they get mad at you or threaten you, contact Gene Keefe at 312 756 1800 or send a reply.

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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: 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
• Larry Krause, Risk Manager and All-Around Good Guy, Champaign County, IL
• 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. 

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 State’s 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!