3-9-15; Retirement Ends TTD Entitlement--Big Win by Jim Egan; Lots of WC and Other Goings On in Springfield;; Please Act to Stop the Use of Pot in Your Workplace and Why and much more

Synopsis: Undisputed Retirement Ends Entitlement to Temporary Total Disability in Illinois Workers’ Comp—Big Win by Jim Egan, J.D.

Editor’s comment: In a case tried and argued on appeal by KCB&A partner Jim Egan, J.D., the Illinois Appellate Court, WC Division ruled a municipal worker wasn't entitled to temporary total disability benefits after he voluntarily retired from his job, nor was he entitled to permanent total disability benefits because he failed to prove his inability to work.

In a decision published on February 27, 2015, the Court in Sharwarko v. Illinois Workers' Compensation Commission, No. 12-L-51346 carved out what may be an exception to Interstate Scaffolding, a decision that has vexed the defense industry. The Court also affirmed prior decisions that in order to attain “odd-lot” permanent total benefits a claimant must show diligent but unsuccessful attempts to find work or by showing he/she will not be regularly employed in a well-know branch of the labor market because of age, skills, training and work history.

Petitioner Sharwarko worked for the Village of Oak Lawn as a water and sewer inspector. He injured himself when he banged his elbow against a concrete wall while installing a water meter in April 2006.Petitioner was diagnosed with right median and ulnar nerve neuropraxia. While undergoing physical therapy Sharwarko was given medical restrictions on use of his right hand, which the Village accommodated. After conservative treatment failed Petitioner underwent a right carpal tunnel release and a right cubital tunnel release in August 2006. He was again to return to work, subject to restrictions on use of his right hand, in late September. The following month, in response to an offer which was made to all employees, Petitioner elected an early retirement in October/November. The Village paid him temporary total disability benefits from the date of his surgery, until the date of his retirement. Sharwarko continued to receive medical treatment after his retirement, and he continued to complain of pain. He underwent a second surgery in May 2007, but he continued to report pain, tingling and numbness. Doctors placed him at maximum medical improvement in August 2011.

An Arbitrator found Sharwarko suffered an injury to his right elbow and ulnar nerve in April 2006, which entitled him to 188-3/7 weeks of temporary total disability benefits. The Arbitrator also awarded him permanent partial disability benefits for an 80% permanent loss of use of his right arm. The parties filed mutual appeals, the Village asking for reversal of the TTD award, Petitioner seeking reversal of the permanency award and other issues. The Workers' Compensation Commission modified the arbitrator's decision by reducing the Sharwarko's TTD award to 10 2/7 weeks of benefits – having them end on the date Sharwarko retired. The Circuit Court confirmed the Commission's decision.

The Appellate Court held that by retiring, Sharwarko had told the Village he had no intention of returning to the workforce. The Court agreed with the Commission's finding that his retirement was the equivalent of refusing the accommodated duty which the village had provided before his first surgery and it had said it was willing to continue to provide. The Court also said it agreed Sharwarko wasn't permanently and totally disabled. Although his vocational expert opined that Sharwarko wouldn't be regularly employable in any well-known branch of the labor market, the Court said the Commission didn't need to accept this opinion just because the Village didn't present a vocational expert of its own.

Much of this decision was based upon manifest weight of the evidence and isn’t a true “legal” ruling. Petitioner failed to provide evidence that he was taken off work by any of his doctors after his early retirement and because they failed to provide any job search after he was placed at MMI. Petitioner’s counsel relied upon one doctor who took Petitioner off all work. The Appellate Court ruled the Commission’s decision’s were not against the manifest weight of the evidence. The Court further held the Commission’s decision to rely upon the opinions of at least three other doctors who opined Petitioner could work with limited use of the right arm/hand as well as the testimony of the employer that work was available within the restrictions, had Sharwarko not retired.

The decision on TTD is actually a very narrow exception. It is not often an employer can offer its’ entire work force an early retirement option and there was no evidence offered that Petitioner was held off work at any time after the retirement. It is very likely some TTD would have been awarded. Regarding odd-lot PTD benefits the decision was instructive on both sides of the bar. Respondent employers have to be able to show through testimony and vocational reports/job studies that work is/was available. Petitioners cannot just roll out a vocational assessment that does not consider all of the medical evidence and does not consider a job search at all.

We applaud the Court’s ruling as a common sense approach to these simple facts. This article was researched and written by Jim Egan, J.D. He can be reached at jegan@keefe-law.com.

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Synopsis: Whole Lotta Shaking Goin’ On In Springfield and Elsewhere in State Pensions and Workers’ Comp This Week.

Editor’s comment: Here are a myriad of concerns for Illinoisans from our State Capitol.

First, on Wednesday, the IL Supreme Court is going to hear debate on three of the five IL State fake pension programs. If you aren’t sure, Illinois has a miserable worst-in-the-country credit rating because our State leaders have borrowed over $110B, yes Billion to keep up with the lavish fake pensions and lifetime taxpayer-funded healthcare money for anyone lucky enough to get vested in these three state fake pension plans.

We caution our readers to also note nothing, absolutely nothing is being done about the legislative or judicial fake pension plans. These two plans provide insanely-high lottery-winning-level benefits to the participants who don’t have to contribute even one year’s pay to then get all their contributions back in a year and actually will get more fake pension money annually than they made while working. To our readers who complain the State didn’t “fund” the pensions as promised, we assert the pensions can’t be fully funded due to the huge amounts of money needed to provide the benefits to which judges and legislators are entitled.

·         If you think we are making this up, please understand Judy Baar Topinka, may she rest in peace, was a state legislator for only six years. Her highest salary was $60K. When she passed, she was receiving $150K a year from that fake pension plan—how can you possibly contribute enough money to annually pay someone 2-1/2 times their highest salary with annual increases for life? If Judy has lived to 90, she would have gotten around $4M from IL taxpayers in return for her total fake pension contribution of about $36K.

·         Judges/justices get a similar deal. They can retire after only nine years. They make $203K a year and would first get around $170K from the fake pension annually with 3% compounded increases—in less than five years, they would get more than they made when they were working. Lots of judges and justices are starting to note there is no reason to endure the stress and continue to sit behind the bench after they are vested. We feel the cost to IL taxpayers to fully fund judicial fake pensions would require annual fake pension contributions for each judge of about $400-500K a year—this would be over and above an annual salary that pays judges more than our Governor. They can receive $9M over their lifetimes for just nine years of wearing their robes—if you want that math, send a reply. We again emphasize this fake pension and the legislative fake pension aren’t being reformed or debated on Wednesday.

Please always remember the “pension clause” protecting fake pensions in Illinois that will be debated on Wednesday is a “stick-it-to-the-taxpayer” clause that puts you and me and everyone who pays taxes on the hook for the fake pensions. No one thought to pass a “taxpayer-protection” clause requiring our corrupt politicians to fund the fake pensions from actual income and not borrow billions to now have to demand “the wealthy” pay higher taxes to cover all of it. We are mildly shocked to hear “the wealthy” don’t want to pay millions in new taxes for legislators and judges who won’t contribute anything close to a fair share and are also doing fairly well financially.

Switching gears, we saw several articles out on the web that are now being debated in Springfield. An organization named ProPublica and NPR are presenting a whiny new series with “real-life stories” about injured workers in North Dakota and Oklahoma they assert were mistreated by their state’s WC comp system. If you want the link for the series, send a reply. What we dislike about the series is the implicit extrapolation of the problems of these workers to every injured worker in the rest of the country. Another recent and similarly whiny study is from OSHA where they claim, among other things that 80% of workers’ comp costs aren’t paid by business or insurance carriers, the injured workers have to go on the dole and taxpayers have to pick up the costs. If you want a link for the OSHA article, send a reply. In our view, the OSHA article publishes similar logical fallacies as the ProPublica/NPR thesis—they pose the theory that if one worker got a poor claims outcome, thousands of workers much be in the same situation.

We were advised there are Illinois House hearings and testimony will be taken from various sources this week about the IL WC reforms of 2011. If any of our readers want our summary of the impact of those changes, send a reply and we are happy to forward them. At present, we don’t see a strong chance there will be 2015 legislative changes but we are sure the business community will keep pushing to “reverse” the controversial decisions by the IL Supreme Court and Appellate Court in Interstate Scaffolding and Forest Preserve District of Will County. We feel there is a much stronger chance for new IWCC Chair Fratianni-Atsaves and the other Commissioners to keep making progress in making IL WC claims move more fluidly through the system and insure reasonable and fair benefits are provided to injured workers while keeping a sharp eye out for WC fraud.

While the IL House and Senate are at it, we assure our readers the ruling we reviewed last week by the IL Appellate Court, WC Division in Nee v. IWCC has to be given legislative consideration. In this ruling, the employee was provided “traveling employee” status from his actions in walking across a city street and stepping over a curb when Claimant Nee hurt his knee. This “activist” ruling implicitly reverses every fall down denial in IL WC history because everyone who falls down is also typically walking. It also covers such “travelers” for personal actions, like sitting in a restaurant on a break and spilling hot coffee on themselves. In our respectful view, the decision can’t be made to make sense—a worker doesn’t take on “traveling employee” status when they are walking to then magically lose that legal status when they stop walking or sit down. Either way, the term “traveling employee” isn’t in the IL WC Act and maybe it should be more specifically defined, as the Florida legislature did.

On another front, we were advised by a reliable source long-time Chicago Alderman Ed Burke still will not allow City of Chicago workers to return to work at light duty. This obvious instance of what we feel is WC claims mismanagement is causing the City to have to pay millions upon millions in wage loss differential settlements. There is literally no conceivable reason not to bring workers back to work at the earliest opportunity. We assume Alderman Burke and the other members of the City Council are going to want to “tax the wealthy” which appears to be the constant mantra to cover-up government fumbling and kleptocracy.

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

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Synopsis: Employers Can and Should Screen for Pot. We Consider This a Workers’ Comp No-brainer, Folks.

Editor’s comment: We saw an article in the Chicago Tribune from Gina Tron titled Employers Should Stop Screening for Pot. We want to be sure to advise our readers this article is wishful thinking and doesn’t match up with the risks you will face by allowing your workers to use pot in your workplace.

Our main concerns are safety, safety and more safety. If you allow your workers to start using medicinal marijuana they are a health and safety risk to themselves and those around them.   Illinois law is the same with respect to employees who are injured while under the influence of drugs as it is for those employees who under the influence of alcohol. In 2009, the Appellate Court, Third District upheld a compensation award for an employee who had marijuana in his system. In Lenny Szarek, Inc. v. Illinois Workers’ Compensation Comm’n, Petitioner filed a claim pursuant to the Workers’ Compensation Act alleging he was injured while employed by Szarek, Inc. Petitioner was working as an apprentice carpenter for Szarek when he fell through a 9 x 9 foot hole in the middle of the floor. He fell two stories to the basement level and is now a paraplegic.

While being treated at the hospital, Claimant’s urine was tested with results showing cannabis. He admitted prior use of drugs, but denied any recent use. The defense retained an expert to review the medical records and testify as to the petitioner’s possible intoxication at the time of the accident. The expert testified the amount of cannabis in Daniel’s system was “consistent with impairment due to marijuana.” The expert also testified cannabis intoxication would result in visual deficits, perceptional abnormalities, coordination problems, impaired judgment and increased reaction time. In his ultimate opinion, the expert testified the use of the cannabis “might or could” have caused Daniel’s fall due to the vision and reaction changes attributable to marijuana intoxication. The medical expert testified marijuana intoxication definitely caused an increased risk of injury.

This worker was born in 1980 and is 35 years of age. He might live another 50 years so the total and permanent award could go well into seven figures. He received over $200K in medical care, as part of the award—medical care and other duragble medical equipment could also be in the millions. There are other published IL WC rulings involving deaths and serious injuries due to marijuana use in the workplace—if you want more, send a reply. No safety manager should incur such risk when it can be easily avoided by acting now.

In our view the only way to minimize this exposure is to start an Alcohol and Drug-Free Workplace program asap. Don’t take anything for granted and take a million dollar risk. We have a free program for our readers—if you want it, simply send a reply.

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Synopsis: Come to Dallas with KCB&A for Hoops for Hope at the Rustic on March 26, 2015.

Editor’s comment: We are one of the sponsors for this great event—if you have interest, please send a reply.

· 

Hoops for Hope - Dallas

Join your industry colleagues at your local 2015 NCAA Men's Basketball post season networking fundraiser! Admission includes access to the appetizer buffet, beverages and the chance to win some incredible prizes in support of City of Hope’s innovative research and treatment programs. We are expecting 150+ industry members to gather for this fun event at each location – Los Angeles, San Francisco, Des Moines, Philadelphia and, NEW for 2015, Dallas, TX! 

March 26, 2015 - Sweet Sixteen

DALLAS, TX

The Rustic
5 - 9:30 P.M.

REGISTER NOW!

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.

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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.

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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.

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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!

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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.

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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.