3-2-15; IL WC Appellate Court Giveth and Taketh Away; Changes at IWCC with Our Suggestions; New NE Law of Interest, analysis by Lindsay Vanderford and more

Synopsis: The IL WC Appellate Court Giveth and the Court Taketh Away in So-Called “Traveling Employee” Claims.

Editor’s comment: One recent IL Appellate Court Workers’ Compensation Division’s decision confirms accidental injuries occurring during a claimant’s regular commute to his employer’s premises are not compensable under a “traveling employee” theory of recovery. Another IL Appellate WC ruling appears to reverse the Caterpillar Tractor ruling by our IL Supreme Court to make tripping over normal street curbs while “traveling” compensable. As we indicate below, we don’t feel either worker fits the traditional classification of what a “traveling employee” is supposed to be—now anyone injured during the slightest bit of work movement appears to get expanded WC coverage.

WC Benefits Taken Away – By Joseph D’Amato, J.D.

In their ruling in Pryor v. Illinois Workers’ Compensation Comm’n, we see the first major reviewing court analysis of a “traveling employee” fact pattern since our IL Supreme Court’s reversal of compensability in The Venture-Newberg-Perini, Stone & Webster v. Illinois Workers’ Compensation Comm’n in 2013.

Petitioner Pryor worked for Respondent as a car hauler. His job responsibilities included loading automobiles onto an 18-wheel car hauling truck at Respondent’s terminal in Belvidere, Illinois. Petitioner would then drive the 18-wheeler to various dealerships and unload the cars. To get to work, Petitioner drove his personal vehicle from his home to Respondent’s Belvidere terminal and back.

One or two nights per week, Petitioner spent the night at a hotel while on the road delivering cars to dealerships. Respondent provided each car hauler with a list of motels so overnight stays at one of those hotels could be conveniently booked while haulers were on the road. Petitioner testified he packed a suitcase with a change of clothes when he anticipated staying over night at a hotel. The evidence at trial demonstrated Petitioner usually drove to Respondent’s terminal in his personal vehicle and placed the suitcase in the 18-wheeler.

On the morning of the incident, Petitioner was at home and arose at 4 a.m. to get ready for work. He testified he planned to drive to the Belvidere terminal that morning to “start his work.” Petitioner anticipated being out of town for overnight work that evening, so he packed a suitcase with a change of clothes and other items for the trip. Petitioner testified he injured his low back while placing his suitcase in his personal vehicle.

At trial, Petitioner argued he was a “traveling employee” at the time of the incident at his home, as his job duties required him to “travel away” from Respondent’s premises at the Belvidere terminal to deliver cars and occasionally stay overnight in motels during the week. The Arbitrator and IWCC both held the risk giving rise to the incident was personal in nature and denied Petitioner’s claim. The Circuit Court of Winnebago County upheld the IWCC’s decision and Petitioner appealed to the Appellate Court Workers’ Compensation Division.

On appeal, the Appellate Court, WC Division used a “traveling employee” analysis to determine whether Petitioner’s injury arose out of and in the course of his employment. The Court noted an injury suffered by a traveling employee is compensable under the Act if it occurs while the employee is traveling for work. However, the Court confirmed the trip at issue must be more than a regular commute from the employee’s house to the employer’s premises; otherwise, every employee commuting from his home to a fixed workplace on a daily basis would be considered a “traveling employee” and the exception would swallow the rule. The Court poses the threshold question as follows: had Petitioner embarked on a work-related trip at the time he was injured or was he merely beginning his regular commute to Respondent’s premises?

The Court found Petitioner was preparing to begin his regular commute to a fixed jobsite (i.e., the Belvidere terminal) as a necessary precondition to any subsequent work-related travel and therefore, the traveling employee exception did not apply and recovery was properly denied by the IWCC.

We feel this decision offers solid precedence for the concept accidents occurring in the regular course of a commute to a fixed location are not compensable; however, we caution employers, risk managers and carriers to watch out for cases where a claimant is injured during any work-related deviation from what is a “regular commute.” Under the reasoning in this decision, an accident occurring in that circumstance would likely be compensable. This article was researched and written by Joe D’Amato, JD. Joe can be reached for questions and comments at jdamato@keefe-law.com.

Appellate Reversal to Provide WC Benefits in Fall-down Claim 

In Nee v. Illinois Workers Compensation Commission, the worker was a plumbing inspector for the beleaguered City of Chicago. We note the City pays around $100M in WC benefits annually and is awash in red ink from those payments, fake pensions and lots of other over-spending. We are unaware of any other U.S. municipality that has a worse-run WC defense system and we consider it a “secret scandal” because the media never considers it.

In the Nee claim, Claimant testified, after finishing an inspection during his work day, he "tripped on a curb" and fell as he was walking back to his car to go to his next assignment. During the arbitration hearing, the claimant testified he was not sure if the curb was level with the sidewalk, but he thought it might have been higher. Claimant was asked and answered:

Q. Do you remember the street and the condition of the street in any way?

A. What I don't recollect is I didn't take a picture or even look, stare at the curb, to tell you if it was high or cracked. I don't know. I didn't take a look[;] all I know I tripped on it and I fell.

Please note Claimant wasn’t carrying anything that blocked his view of the curb nor was he rushing due to his work. There is no indication the curb had any construction issues or required maintenance. There was no testimony about ice, snow or foreign objects, as factors in the fall. It appears Claimant fell due solely to his own clumsiness or inattention in relation to what he needed to do to step over a normal city curb. Doesn’t this ruling reverse this same panel’s decision in First Cash Financial Services v. IC where they ruled the employee had to prove some reason for the fall-down—Claimant Nee clearly didn’t prove any reason for falling. If you ask us, the IWCC got this one right—compensation denied.

Please also note this ruling is based on a misguided stipulation by the defense counsel for the City of Chicago that Petitioner was a “traveling employee.” This worker’s job required him to walk and drive throughout a city he was thoroughly familiar with. The legal concept of “traveling employee” was never intended to be for employees-in-normal-motion. The legal definition of a “traveling employee” was intended to provide extra WC coverage for workers who were sent to foreign places with heightened risks from unknown food, currency, language and street risks. The concept of “traveling employee” was not supposed to provide extra WC coverage for anyone who happened to be in any sort of movement of any kind while at work. When anyone “moving” gets global coverage of all risks, you have dramatically expanded coverage for thousands of injuries/conditions/diseases from activities of daily life.

In our respectful view, the last legal statement about a curb or street fall-down from the IL Supreme Court in Caterpillar Tractor would mandate denial of this claim. In Caterpillar, the employee also didn’t watch where he was going and tripped on a normal curb. Our highest court basically said, oops--compensation denied.  Instead, in this claim, the Appellate Court, WC Division ruled when a traveling employee is exposed to a certain “risk” while working, he is presumed to have been exposed to a greater degree than the general public. They felt this employee, who was a plumbing inspector for the City of Chicago, was exposed to risk of traversing a curb to a greater degree than a member of general public by virtue of status as a traveling employee at time of accident. Based on that reasoning, they reversed the IWCC on “manifest weight” and awarded benefits.

Again, with respect to the members of this court, Illinois has never been a “positional risk” state—we have always rejected the idea that risks of everyday life are compensable just because someone is at work. The risks described in this ruling are normal risks we all face every day of every year, both at home and at work. We ask our readers, how does it make any difference if it is a curb or a flat surface? If this employee were simply walking across a flat, dry, clean, well-lit street or workplace and tripped over his own feet, wouldn’t this same ruling mandate compensability? We don’t and have never felt such claims were compensable. Please also remember anyone crossing a curb is always “traveling” because no one works in an office or plant that is on a curb. For all these reasons, we hope our IL Supreme Court takes this claim and carefully considers it, in the interests of keeping IL WC theory in line with other states.

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

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

Synopsis: Changes In Light of New Appointments with Suggestions from KCB&A.

Editor’s comment: The IL WC Commission announced guidelines for handling of settlement contracts and motions for cases assigned to New IWCC Chair Fratianni-Atsaves and Commissioner Luskin. The recent promotions of Arbitrator Fratianni-Atsaves to Chairman of the IWCC and Arbitrator Luskin to the position of Commissioner of the IWCC have created a question as to how settlement contracts, motions etc. for their dockets should be handled until a permanent arbitrator has been assigned. In Zone 5 the Commission has asked all correspondence previously sent to Chairperson Fratianni-Atsaves should be sent to either Arbitrator Andros or Arbitrator Falcioni for handling. Both of these arbitrators have the authority to act on motions and approve settlement contracts. In Zone 6, they want all correspondence previously sent to Arbitrator Luskin to be sent to either Arbitrator Cronin or Arbitrator Doherty for handling. Both of these arbitrators have the authority to act on motions and approve settlement contracts. In the event settlement contracts are sent to the Commission the case will be reassigned to the pro se arbitrator of the day for review and/or approval.

Our suggestion is the Commission should consider not “replacing” Ms. Fratianni-Atsaves or Mr. Luskin at all but move their files permanently to the other arbitrators and save business taxpayers the money. One of our law partners confirmed the status calls they handled are busy, bustling calls and need to be properly balanced. We feel that is a strong idea also. We feel the remaining IL WC arbitrators are a solid, professional group and should be able to step in, balance their new claims and handle things seamlessly.

Another strong suggestion is to take a long, hard look at the controversial “satellite offices” where the IWCC has onsite staff that print and hand out forms that are available online. We have no idea who created these unneeded offices or why but we assert the money to fund them is completely wasted. We are sure the Collinsville office hasn’t been staffed in years and no one appears to care in the slightest—we feel the savings should be expanded across the state.

We are happy to learn former Acting Chair Ronald Rascia remains with the IWCC as counsel to Chairman Fratianni-Atsaves and the other commissioners. He is a hard-working professional and should assist the Commission during this current transition.

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

Synopsis: Nebraska Bill Denying WC Benefits For Claimants Who Lie During the Hiring Process—Is It a Model for Other States? Thoughts and Analysis by Lindsay R. Vanderford, J.D.

Editor’s comment: Should it be against the law to lie during the hiring process? If you block your employer from knowing about or accommodating your pre-existing conditions, should you pay a price? We feel NE Bill 158 would bring positive change to Nebraska’s WC and hiring arenas. The impact of this change may be felt in Illinois and the other states where KCB&A provides defense advice—Wisconsin, Iowa, Indiana and Michigan. The Nebraska Legislature's Business and Labor Committee has scheduled a hearing today on a bill that would deny all WC compensation to claimants who lie about their mental or physical condition when applying for a job and the condition is connected to the cause of a later workplace injury. NE Bill 158 would prohibit benefit payments to claimants who knowingly and willfully made a "false representation as to his or her physical or medical condition" when the employer relied upon that representation when hiring and a "causal connection" exists between the false representation and the injury. Sen. John McCollister introduced the bill in Nebraska's unicameral Legislature in January, and it was assigned to the Business and Labor Committee.

What impact will the outcome of that proposed legislation have on Illinois? With bills such as Illinois HB 2421 attempting to change the IL WC Act’s definition of accident and injury, we would hope a bill paralleling the Nebraska’s denial-of-compensation-for-hiding-your-problems paradigm is not too far behind. Only too often do we deal with claims of injury occurring just days after the worker began a job he knew would create a greater risk of injury due to a pre-existing condition he or she falsely represented.

We await what we hope will be a step in the right direction in Nebraska law—Go Big Red! Perhaps this potential change will make an impression on other states. This article was researched and written by Lindsay R. Vanderford, J.D.

2-23-15; Gov. Rauner's Grand-Slam-Homer on New Chairperson and Others; Arik Hetue on New IL WC Bills; Matt Ignoffo on WI WC Changes and more

Synopsis: Governor Rauner Hits Grand-Slam on Selecting New IWCC Chairperson Joann Fratianni-Atsaves, J.D. and Other Solid Commissioners.

Editor’s comment: We learned over the weekend newly elected Governor Bruce Rauner selected Joann Fratianni-Atsaves as the new chairperson to lead the IWCC. The defense team at KCB&A salutes this choice. Joann has 34 years of experience in workers' compensation law, having served as a Commissioner (Public Member) for three years and as an arbitrator with the Illinois Workers’ Compensation Commission since 1993. She is a Fellow of the Illinois Bar Foundation, assembly member of the Illinois State Bar Association and a member of the Lake County Bar Association Board of Directors. She received her J.D. from Northern Illinois University and a B.A. from the University of Illinois.

In our view, Joann is a veteran, professional and intelligent administrator. We are certain she will move Illinois workers’ compensation in the right direction to insure injured workers receive timely and reasonable compensation. We also feel Joann is sensitive to the needs of the IL business community and will do whatever she can to end the WC claim abuses and odd legal rulings which currently irritate corporate and government leaders.

It is our hope new Chair Fratianni-Atsaves can take a hard look at the IWCC budget and see if the IWCC can make some reasonable budgets cuts, in an environment where more efficient use of government resources can save business taxpayers money. Please note 100% of the cost of the IWCC is paid by Illinois business. We also point out new IL WC claim filings are about 20% lower than they were a decade ago while IL WC administration costs have gone up at least 20% or more!

We also hope Joann will meet with CMS or TriStar or whoever might be running the WC defense program for the State of IL this week and try to make better sense of millions of dollars of our tax money we feel continues to be squandered on specious WC claims by IL State workers. Please note past IWCC chairs never took this step and we feel that was part of the global mismanagement of the past.

The defense team at KCB&A offers her our assistance to help improve IL WC in any and every way.

David Gore Reappointed as Commissioner on Panel C.

Governor Bruce Rauner reappointed Commissioner David Gore, J.D. to another term. This will be Gore's fourth term as a commissioner and he has served as a Commissioner since 2006. David Gore represents the interests of Illinois workers in his role as a labor commissioner on the three person panel.

Gore has more than 20 years of experience as a Petitioner’s attorney and handled claims against KCB&A clients. When he was a practicing attorney, we considered him a quiet and well-prepared advocate for his clients. He also worked as an Assistant Illinois Attorney General and a staff attorney with the Illinois Legislative Reference Bureau; Dave was a staff representative for the United Steel Workers of America, AFL-CIO-CLC. Commissioner Gore holds a bachelor's degree in marketing, a law degree and an M.B.A. from the University of Illinois at Urbana-Champaign.

Commissioner Kevin Lamborn Reappointed to Panel A.

Governor Bruce Rauner reappointed sitting Commissioner Kevin Lamborn, J.D. to his third term. Commissioner Lamborn has served on the IWCC since 2007 representing the interests of Illinois Business on the panel. Commissioner Lamborn came from the Rosemont area and practiced municipal law. We don’t feel he had a great deal of prior WC experience when appointed but we are certain he learned the ropes rapidly and does a very solid job.

Lamborn began his career as an Assistant State's Attorney in Cook County and spent his final two years in the Special Prosecutions Bureau, where he investigated and tried cases involving public officials accused of misconduct. Lamborn received his law degree from The John Marshall Law School in Chicago.

Joshua Luskin moves up to a Commission post on Panel B.

Governor Rauner selected former Arbitrator Joshua Luskin, J.D. to serve as a “public” member commissioner on the IWCC. Luskin was a WC defense lawyer and  has more than 15 years of law experience. New Commissioner Luskin served our country as a Lieutenant in the U.S. Navy Judge Advocate General's Corps, where he handled military prosecution and offered legal service to members of the military. Luskin earned his law degree from the University of Michigan.

Our sources indicate Commissioner Luskin will replace former Commissioner Daniel Donohoo. We do feel this new appointment will make the composition of Panel B more conservative.

Steve Mathis reappointed as Public Member Commissioner for Panel C.

On February 17, 2015, the Full Senate confirmed Stephen Mathis, J.D. to remain in his post as Commissioner. Commissioner Mathis of Sangamon County served for 10 years as Legal Counsel and Staff Analyst for the Illinois Senate Staff, and had been an arbitrator with the Illinois Workers’ Compensation Commission since 1996. He holds a J.D. from John Marshall Law School. We consider him a hard-working and reasonable hearing officer.

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

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

Synopsis: And It Begins. The First Package of Sweeping IL WC Reform Bills Hits the Web. Analysis by Arik D. Hetue, J.D.

Editor’s comment: What does change look like in the new government under Gov. Rauner as compared with the last session? Two weeks ago, we wrote a piece on the prior session’s bills for WC reform. We have now seen the first run at IL WC reform in the current 99th General Assembly. Let’s take a look at the new WC reform bills that have been introduced and see how they compare to the last session’s efforts. It isn’t hard to see almost everything being done in the legislature is to reverse/rehab challenging judicial concepts.

As you may recall from our article two weeks ago, the 98th General Assembly had many WC reform bills die on the vine with the primary focus of the bills looking at “primary causation”; capping out total lifetime PPD at 500 weeks; credits for shoulder injuries, reigning in “traveling employee” concerns, and modifying TTD entitlement in light of Interstate Scaffolding. There were other issues that cropped up, but these were the issues addressed in multiple bills. As of last week, we have now seen a major legislative package, filed by Sen. Kyle McCarter, R-Decatur and Rep. Dwight Kay, R-Edwardsville, which hit on many of the above issues. 

As indicated by multiple sources, Governor Rauner has pinpointed “primary causation” as the target of any reform package. This is understandable, and as we can see, business has been pushing for this type of change since well before the 2011 WC changes. When looking at Senate Bill 770 and House Bill 2421, we see causation and coverage as the main focus of these bills. The legislation would define "accident" as an "occurrence arising out of the employment, resulting from a risk incident to the employment, and in the course of employment at a time and place and under circumstances reasonably required by the employment” - this is not a significant change, in our honest opinion, from the current interpretation of the law. 

We also point out IL Senate Bill 770 has an additional provision, mirrored in House Bill 2418, which significantly restricts the “traveling employee” doctrine after its recent judicial expansion, and essentially requires the traveling employee to be doing something work related (aka – in the course and scope of work) at the time of the accident in order for it to be compensable. This effectively would require a travelling employee to prove an injury arising out of and in the course of work in order to get benefits. This legislation is designed to rein in the expansive “traveling employee” concept which is felt to provide “global coverage” for Illinois workers who might be on a trip but performing purely personal activities when injured. We also just saw a new IL WC Appellate Court “traveling employee” ruling with a much more conservative approach http://www.illinoiscourts.gov/Opinions/WorkersComp/2015/2130874WC.pdf. We will analyze that claim in next week’s KCB&A Update. As we have said in the past, you don’t necessarily need lots of legislation if we can have hearing officers make better sense of the current rules/law.

Much more interesting is the next legislative change they propose to make - requiring workers to show that an "accidental compensable injury" was a major contributing cause of the injury – meaning the event was more than 50% responsible for the injury compared to all other possible causes – if this kind of language is put into the IL WC Act, it may significantly hamper two types of claims – “repetitive trauma” claims and aggravations of pre-existing conditions. It is our hope “repetitive working” claims may end via such legislation – these are claims where there is no accident, trauma or safety failure; the employee merely indicates they were at work when they got sore.

We caution though – this may not be the end of all the changes the defense industry might need to make. Under current law, we are often working with claims where one side believes there was a “temporary aggravation of a pre-existing condition” - something which neither aggravates or accelerates the underlying condition. Primary causation will effectively lower the bar to prove such defenses, but it may not eliminate such claims, and may in fact lead to more litigation over them in the short run. In the long run it could lead to more disputed settlements in these types of claims, which should drive costs down overall.

The two bills also provide injuries would be deemed to include the aggravation of a preexisting condition only for as long as the aggravation continues to be the contributing cause of the disability. This is essentially a codification of current interpretation of the law – see the note on temporary aggravations above.

The other bills included in the package are summarized below:

SB 769 and HB 2419 -  this bill handles AWW calculation issues in regard to limited or part time work and seasonal workers, in addition to concurrent work – and it essentially does away with the confusing theory of wages being calculated under “parts of a week” - we can clarify if you are interested, its a complex issue that has arisen due to clever Petitioner’s attorneys working within the bounds of unclear legislation. This legislation is designed to clarify issues raised in Sylvester v. Industrial Comm’n.

SB 771 and HB 2420 – this bill does away with the unrestricted entitlement to “TTD until MMI” and allows cessation of TTD/TPD if a worker is terminated for cause – there is a due process right for the employee to challenge this on an expedited basis. It is clear this legislation is designed to “overturn” or reverse the irritating Interstate Scaffolding ruling. We maintain the IL Supreme Court ruling encourages inappropriate actions by injured workers and/or crimes in the case of Matuszczak v. Wal-Mart.

SB 772 and HB 2422  - this bill limits the maximum cumulative compensation for workers receiving partial disability to 500 weeks, and reverts shoulders/hips to be awarded as a part of an arm/leg. This is expressly designed to reverse the Will County Forest Preserve District ruling.

We are excited to see this package of bills introduced early in the session – WC reform is a pillar of the Governor’s campaign, and these efforts mirror the bills from the last session – these are well-thought-out reforms and reasonable requests from the business community. We hope the continued negotiations lead to a set of reasonable reforms going forward. Please note, this is extremely early on in the process. We will continue to keep you posted on the reform process as it continues. 

The prior legislative analysis two weeks ago and 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!

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

Synopsis: Possible Changes May Be Coming to Wisconsin Workers’ Compensation through Gov. Walker’s New Budget Bill released on February 3, 2015. Analysis by Matt Ignoffo, J.D., M.S.C.C.

Editor’s comment: If the proposed bill goes through as is, on January 1, 2016 the entire WI Division of Workers’ Compensation would be eliminated from the Department of Workforce Development and future functions split between different agencies. The Department of Administration and Division of Hearing and Appeals would get the Administrative Law Judges and adjudication functions would go to the Department of Administration. The Office of the Commissioner of Insurance would obtain the DWD WC insurance section and claims staff.

The proposed changes to the WI WC Act come in the Budget Bill even though the administration of Wisconsin’s worker’s compensation system is not paid out of the state’s budget. As noted by Dee J. Hall in recent Wisconsin State Journal articles, the cost of administering Wisconsin’s program is paid for by workers’ compensation insurers and self-insured employers who pay a yearly fee proportional to what they paid out in workers’ compensation benefits in the previous year. Taxpayers do not pay for the system, and any reorganization would not add or subtract from the 2015-17 WI state budget’s bottom line.

Certain notable changes would be to allow employers and claimants to reach settlement agreements on their own versus the current structure where such agreements must be approved by an administrative law judge. Also, the ALJs would no longer be available to address questions from the general public and instead focus only on rendering decisions in contested cases. The bill also plans on removing the requirement for a stenographic reporter but will allow for hearings to be recorded and copies of the recordings available to be ordered.

According to a discussion at a recent seminar of the Wisconsin Association of Worker’s Compensation Attorneys, the WC Division not only did not request this legislation, but were not invited to participate or provide thoughts on the portion of the Budget Bill changing the WC Act. If you would like a copy of the handout presented at this seminar please contact me directly at mignoffo@keefe-law.com.

On February 3, 2015, DWD Secretary Newson sent correspondence to WC Division employees noting they feel the claimed advantages of moving the department functions as being: improved efficiency, moving in line with other states such as, Texas, Florida, Illinois (?), and Michigan, and increased consistency. From an employer perspective it certainly seems strange that Wisconsin would want to move more in line with Illinois. We consider it wholly unclear how these changes would mirror IL WC in any way.

Of particular interest is the fact these proposed WC changes to the WI WC Act come as part of a budget bill and not an independent bill. It is suspected this detail may be an obstacle to the bill actually going through as in the same budget bill, Gov. Walker plans to cut the budget of the University of Wisconsin system. This portion of the budget bill has apparently sparked heated opposition from legislators on both sides.

In addition, this move by Gov. Walker appears to remove the discussion and input on WC Act changes from the Worker’s Compensation Advisory Council and bypass it in having the planned changes a part of the overall budget bill. The Worker’s Compensation Advisory Council was set up to advise the DWD and the Legislature on changes to the system and has traditionally drafted bills agreed to by both management and labor representatives on the council.

Whether or not the proposed changes by Gov. Walker get implemented through the budget bill or an alternative route in the future there is no question changes are being discussed to Wisconsin’s WC system and such changes are getting press/media attention and comment by experts on both the claimant and defense sides. Neither side appears to believe changes need to be made. With Illinois having a new Governor he may want to keep up with changes being proposed by its neighbor to the north. We will keep you posted as further information develops.

This article was written by our Wisconsin-licensed and practicing Defense Team Member Matthew Ignoffo, J.D., M.S.C.C. Please feel free to contact Matt at mignoffo@keefe-law.com.

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

NEXT WEEK - CONSTRUCTION EXPO & SAFETY CONFERENCE 2015

Registration Now Open!

Construction Safety Council and ASA Chicago proudly present the Construction Expo & Safety Conference 2015

The Construction Safety Council and ASA Chicago, an association representing subcontractors of all construction trades, announces its annual Construction Expo & Safety Conference 2015. This year, the Safety Conference will be held on Monday, March 2, 2015 from 7:00AM to 12:00PM (noon), and Tuesday March 3, 2015 from 7:00am to 4:30pm at the Drury Lane Conference Center in Oakbrook Terrace. The Construction Expo will take place on Tuesday, March 3, 2015 from 9:00AM to 4:00PM.  

Shawn R. Biery and Gene Keefe will present Workers’ Comp 101 at 9am on Tuesday, March 3.

Please visit their home page at www.buildsafe.org for more information or to register.

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.

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

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.

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

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.

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

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!

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

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.