4-6-15; Turning Around the Local Government Entitlement Approach to WC; "Demolition of WC" Being Demolished; OSHA and Your Foreign Speaking Workers and more

Synopsis: Turning Around the Local Government Entitlement Approach to Work Comp.

Editor’s comment: We saw two important articles in our research last week. First, the City of Los Angeles is calling for a review of LAPD and LAFD workers’ comp protocol and exercise programs after a pair of audits of the city's police and fire departments' workers' comp claims found the costs have jumped 35 percent in five years.

Among the audits' findings:

·         The LAPD spent more than $140 million in workers' comp claims over the three-year period studied, with 60 percent of officers filing at least one claim during that period and 42 percent filing two or more;

·         The LAFD spent over $120 million in workers' comp claims over a 3-year period studied, with 66 percent of firefighters filing at least one claim and 44 percent filing two or more;

·         Police and fire claims made up 60 percent of all workers' comp filings the city paid in the past four years.

Second, a solid article from The Chicago Tribune quoted Waukegan IL Mayor Wayne Motley who described an "almost unmanageable" situation with IL WC claims and settlements. Mayor Motley asserted his city’s workers’ comp claims are an “epidemic,” as WC settlements in Waukegan totaled $905,000 in February alone. Waukegan  officials have an additional 108 open workers' compensation cases. Yikes!

The Tribune reported on at least one “repetitive working” hearing loss claim. A firefighter asserted he had 18 percent hearing loss in one ear and 6 percent in the other. The settlement approved by the council included $9,455 to cover the 6 percent loss in both ears plus $6,000 for hearing aids. Please note such settlements now set up the payment of the full cost of hearing aids for any firefighter who wants them. We don’t agree with this settlement and we assure Mayor Motley the City should have fought and not settled such a claim. We are happy to outline how and why they could have fought and won this claim—you can’t “win” when you settle claims.

The remaining WC settlements included

A.   $94,500 for a public-works employee who claims he tore a quadriceps muscle while crawling under a vent system;

B.   $102,048 for a police officer who allegedly injured a bicep muscle shoveling gravel into a shooting-range trap;

C.   $112,834 for a public-works employee who injured both knees falling on collapsed pavement; and

D.   $128,225 for a firefighter who suffered a back injury lifting a back-boarded patient onto a cot.

4th Ward Ald. Harold Beadling was quoted to say: "Our State Legislature needs to do something about workman's compensation. Can you imagine if you owned a business? You'd be out of business." With respect to Alderman Beadling, we think Waukegan officials need to look in the mirror and change what you are doing with your claims to make better sense of workers’ comp costs.

Here are our thoughts on such shenanigans:

Start fighting such claims in all directions. First, start with a safety/training program. you may note of the four claims outlined above, all of them may involve unquestioned safety violations and process mistakes. There is no reason a public-works employee was crawling under a vent system without appropriate and inexpensive knee pads. We are not sure why a sworn police officer would be shoveling gravel but we vote buy a smaller shovel for this task to avoid injuries moving forward. The firefighter who was severely injured lifting a patient onto a cot may not have used appropriate lifting techniques. Stop complaining about the legislature and start with global safety training!

Second, ramp up accident investigation to insure you are only paying for work-related accidents. If you need our KCB&A accident investigation form, send a reply. You can’t “defend” your organization without aggressive accident investigation. Once you have a solid accident investigation completed, target return to work and MMI and make these goals a strong priority for your worker and your managers.

Third, join an IL WC PPP to insure you are getting quality care for your workers while paying medical reimbursements at rates lower than our IL WC Medical Fee Schedule. Just by offering an IL WC PPP, you cut choice of medical provider for your injured workers. We aren’t aware of a single municipality or county government that has joined an IL WC PPP. You can’t blame the legislature if you aren’t going to follow their rules to save money. If you want contact information to join an IL WC PPP, send a reply.

Fourth, consider merging your police and fire forces into one “public safety” body so you aren’t paying for idle workers who are looking for ways to make WC claims and get more dough from taxpayers. We assure our readers fire safety codes have worked and there are way less building fires in your local suburb than 30 years ago. The model for “public safety” with police officers that are also firefighters and EMT’s comes from Glencoe, IL where they have been doing this for over thirty years with great success. Please note most local fire departments send out lots of unneeded equipment on any routine call—the reason to waste taxpayer money in this fashion is to make the idle workers appear busier than they are.

Fifth, consider buying this book: It's Your Ship: Management Techniques from the Best D**n Ship in the Navy. The story of Captain D. Michael Abrashoff and his command of the U.S.S. Benfold became legendary inside and outside the U.S. Navy. Abrashoff offers this fascinating tale of top-down change for anyone trying to navigate today's uncertain business/government seas. He basically took his ship from being last to best. The same model would work in Waukegan. How did Abrashoff do it?

·         See your organization through the eyes of your workers: By soliciting workers’ suggestions, Abrashoff drastically reduced tedious chores that provided little additional value.

·         Communicate, communicate, communicate: The more Abrashoff communicated the plan, the better the crew's performance. His crew would eventually call him “Megaphone Mike," since they heard from him so often.

·         Create discipline by focusing on purpose: Discipline skyrocketed when Abrashoff's crew believed what they were doing was important.

Sixth, consider calling on the great defense team at KCB&A to audit your toughest WC claims without charge and insure you are paying what you owe and no more. We create a one-page action plan with a focus on prompt and efficient closure. Our defense team does this on a regular basis and we assure you we save millions for the companies that use this service.

In summary, there is no time like the present, folks. You can’t manage our organization to complain/whine about the legislature and IL Workers’ Comp Commission while ignoring the various strategies that are certain to turn things around. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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

Synopsis: The “Demolition of Workers’ Comp” Authors Are Being Similarly “Demolished” By the Facts on All Sides.

Editor’s comment: You may have hear an organization named ProPublica along with National Public Radio issued what we feel was a very biased report about how workers’ comp benefits have dropped across the U.S. in recent years. Obviously, they don’t mention the problems faced by Los Angeles or Waukegan, IL that we report above.

Numerous national pundits have tried get the ProPublica and NPR reporters working the WC beat to see all sides of an intricate group of national and local WC “systems” and to better understand the nuances and subtleties, and correct their errors publicly. These same observers now agree the positions being presented by these folks are advocacy and PR fluff.

It appears obvious the reporters don’t want to hear anything that doesn’t agree with their subjective view of work comp systems and they are intent upon misusing industry data to support their position and have an agenda they are determined to promote. The latest reports from ProPublica continues an obvious advocacy effort using anecdotal evidence to promote their ideological positions.

Joe Paduda of Health Strategy Associates noted In the original “Demolition” article, reporter Michael Grabell said:

“In 37 states, workers can’t pick their own doctor or are restricted to a list provided by their employers.”

That statement is categorically false. And the nationally renowned Mr. Paduda sent the reporter a detailed explanation of why and where this is false. He also provided the background documents from WCRI, and followed up. His analysis confirmed Mr. Grabell refused to update his article and/or claims. We consider this critically important because in many of the five states where KCB&A has defense lawyers, there are limitations on choice of doctors/medical care. We don’t feel that is a bad thing for workers in those states—in many situations, they are being provided the best possible care with early intervention.

Our point for our readers is to understand there is a strong bias and advocacy surrounding this whole concept of “Demolition of Workers’ Comp.” We hope legislators and other administrators see through the propaganda and fluff.

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

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

Synopsis: Dealing with OSHA and Your Workers That Don’t Speak English.

Editor’s comment: Employers who hire non-English speaking workers have to insure all employees, regardless of the language they speak, receive and “comprehend” safety-related instructions, programs and training. Numerous OSHA standards, from lock-out-tag-out to hazard communication, require employers to train or instruct employees. OSHA treats safety training as “performance-based.” This means OSHA defers to the individual employer to fashion the best manner by which to accomplish the goal of safety standards. For that reason, none of OSHA’s training standards require employers to use particular documents, teaching methods, or language to train employees. Instead, OSHA requires employees to present information in a manner your employees are capable of understanding.

For example, if an employee is not literate, you cannot satisfy OSHA training requirements merely by telling the employee to simply read your training materials or participate in safety programs. Basically, if an employee or group of employees does not speak, read or understand English, training must be provided in a language the employee understands.

OSHA inspectors have the duty to determine whether the safety program or training provided by you their standard. In effect they want to be sure your employees receiving training or undergoing a safety program actually understood and fully comprehend that training. One method for an OSHA inspector to make this evaluation is to try to  interview your workers away from your managers. During such meetings, OSHA inspectors may attempt to hold employees to high standards of safety knowledge, asking employees questions regarding specifics or particulars of your program.

Another issue involving employee interviews is whether the employee speaks or comprehends conversational English. Many OSHA inspectors are bilingual, particularly in Spanish, and those who are not may request another employee act as an interpreter to translate during an OSHA-employee interview. Translation issues can present bias problems during employee interviews, whether the interpreter is another employee, a management representative, or an OSHA official. For this reason, you need to ensure your employees understand their right to have a management representative present during the interview.

OSHA believes employers must take into account your employees’ language capabilities and educational levels, and adjust all training programs accordingly. If you have a workforce that speaks predominantly Spanish or Polish, OSHA will require you to provide training in those languages. Further, if you have an uneducated and/or illiterate workforce, OSHA will expect you to provide the training in very simple terms and use pictures or similar materials, as opposed to written materials.

If you have questions or concerns about OSHA requirements or are facing an OSHA complaint, KCB&A has licensed lawyers in five states, IL, IN, WI, MI and IA to handle such concerns at very reasonable rates. Simply send a reply.  

3-30-15; Transitional-Light Work Still is Alive in IL WC; Brad Smith, JD Analyzes an Important Pregnancy Discrim Ruling by SCOTUS; Kleptocracy Abounds in IL and more

Synopsis: Transitional/Light Work Programs are Alive and Well in Illinois Workers’ Comp.

Editor’s comment: We received an email from a reader at an IL WC insurance brokerage who had been advised by a solid insurance adjuster that an IL employer can’t take any action if an injured worker refused light work a doctor certified was within his/her medical restrictions. With respect to the adjuster, we wholly disagree with the advice being provided. It is our assumption they are misreading the Interstate Scaffolding or Matuszcsak rulings. We encourage all of our readers and anyone you know to send such inquiries/legal requests via email to the defense team at KCB&A and we are happy to provide free legal advice and research as we are doing in this article.

In both of the rulings above, injured workers on light duty committed acts that were considered to be criminal in nature. For example, Petitioner Matuszcsak admittedly stole cigarettes from his employer. Neither claimant was convicted of a crime but there was no dispute they did the inappropriate acts. In the contentious and oft-criticized rulings, the employers fired the workers and our courts required them to be paid TTD until they reached maximum medical improvement. This remains a very controversial concept in IL WC because it is felt to reward criminal behavior.

However, neither worker “refused light work” and we maintain the legal position any worker who has light work available has to perform the light work or they are subject to normal discipline leading to termination consistent with your normal personnel policies. The workers in the rulings mentioned above were arguably “blocked” from participating in light work due to termination for their criminal actions wholly unrelated to their injuries. In both rulings, the courts consistently maintained the workers would have had to participate in light work if such work were continuously available.

Interstate Scaffolding states, in pertinent part:

Benefits may also be suspended or terminated if the employee refuses work falling within the physical restrictions prescribed by his doctor. See 820 ILCS 305/8(d) (West 2004); Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 166 (1992); Hayden v. Industrial Comm’n, 214 Ill. App. 3d 749 (1991) (TTD justifiably terminated by the employer, under the Act, when the injured employee was unwilling to cooperate with vocational placement efforts).

If this wasn’t a rule, transitional/light work programs in Illinois workers’ comp would have ended. Basically, no IL employer would be able to have an enforceable RTW program. In contrast, thousands of IL employers have them and they are effective in getting folks back to light and then full work. What remains confusing about the legal rule outlined by our highest court is the concept the worker is entitled to TTD until they reach maximum medical improvement or MMI—what if the worker has returned to work prior to MMI? What if the doctors have recommended transitional/light work programs to insure the worker attains MMI as part of the medical protocols? If that happened, it sets up the confusing situation in which TTD might be due until MMI but the employer would be entitled to credit for salary or wages paid.

Either way, in any situation where a worker is refusing light work or is blocked from light work due to termination for any reason, as a backup claims position to insure the employer doesn’t have to pay TTD at some later time, it is not a bad idea to informally confirm by doing a weekly web search to document there is other light work at other companies in the labor market around the lead employer—we are happy to discuss that approach further.

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

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

Synopsis:  U.P.S. Worker’s Pregnancy Discrimination Suit Reinstated by SCOTUS. Analysis by Bradley J. Smith, J.D.

Editor's Comment: In Young v. U.P.S., a pregnant U.P.S. worker’s doctor recommended she avoid lifting anything heavy due to her multiple miscarriages in the past. When she requested light duties to accommodate those restrictions, U.P.S. was not amenable to those restrictions and placed her on an unpaid leave. 

Thereafter, Peggy Young, sued under the Pregnancy Discrimination Act (“PDA”), which specifies Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The PDA’s second clause says employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” SCOTUS looked at the latter provision to determine whether it applies in the context of an employer’s policy that accommodates many (including, on-the-job injuries), but not all, workers with non-pregnancy related disabilities. 

UPS was granted summary judgment by the Federal District Court holding, inter alia, Young could not make out a prima facie case of discrimination under the landmark ruling in McDonnell Douglas. Particularly, the District Court found Young’s purported comparators (employees with on-the-job injuries, losing licenses under DOT, or ADA accommodations) were too different to qualify as “similarly situated.” Subsequently, the United States Court of Appeals for the Fourth Circuit affirmed the District Court’s ruling. Judge Allyson Duncan of the Fourth Circuit wrote, “One may characterize the U.P.S. policy as insufficiently charitable, but a lack of charity does not amount to discriminatory animus directed at a protected class of employees.”

On a writ of certiorari, SCOTUS vacated the decision granting new life to Young’s case. The ruling by SCOTUS reasoned a plaintiff may reach a jury on this issue by providing sufficient evidence an employer’s policies impose a significant burden on pregnant workers, and the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather give rise to an inference of intentional discrimination. SCOTUS indicated Plaintiff might use circumstantial proof to rebut an employer’s apparently legitimate, nondiscriminatory reasons for its adverse action. Ultimately, SCOTUS reasoned the record demonstrated Young created a genuine issue of a material fact as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers. SCOTUS left the Fourth Circuit to determine on remand whether Young also created a genuine issue of a material fact as to whether UPS’ reasons for having treated Young less favorably than other non-pregnant employees were pretextual.  SCOTUS reinstated the claim with a 6-3 majority and Justice Scalia and Justice Kennedy filed dissenting opinions. Justice Scalia’s dissent cautioned the Court’s opinion blurred the lines between a claim brought as disparate impact versus a disparate treatment. Additionally, he warned the Court’s opinion caused unnecessary confusion with the McDonnell Douglas standard.

Regardless, the Illinois legislature has “spoken” on this topic with its recent amendments to the Illinois Human Right Act. Specifically, Illinois passed the Pregnancy Accommodation Act (a.k.a. the “Pregnancy Fairness Law”). This Act is more inclusive than the federal PDA as it applies to employers employing one or more employees and further applies to full-time, part-time, and probationary employees. Notably, inter alia, the Act provides an employer providing light duty to other types of non-pregnant employees, creates a rebuttable presumption the accommodation does not impose an undue hardship on the employer. In other words, if your employee is injured on the job, and you provide light duty to accommodate that employee, it is presumed that you will do the same for a pregnant employee, and failure to do so will create a presumption of discrimination.  

In order to stay out of the Federal and State Courts under the federal PDA or state PAA, employers need to implement and engage in an ongoing interactive process and also accommodate pregnancy-related conditions if they are accommodating similar restrictions through light duty positions with their on-the-job injured employees. The Young opinion allows an employee arguing she was discriminated under the PDA to look to other employees with on-the-job injuries as comparators to demonstrate a prima facie case under the McDonnell Douglas burden shifting test.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the Illinois Pregnancy Accommodation Law, Title VIII, employment law, and general liability defense at bsmith@keefe-law.com.

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

Synopsis: Illinois May Be a Land of Kleptocracy Which is Quietly and Surely Bankrupting Our Governments.

Editor’s comment: We keep seeing this concept play out over and over. We define ‘kleptocracy’ to occur when government workers legally find methods to use or “game” the system to feather their beds in a fashion that can be shocking to taxpayers. The ‘klepto’ part in the term isn’t truly accurate, as it implies the workers are stealing—we emphasize our position, the workers aren’t stealing, they are just getting very expensive benefits we don’t feel taxpayers should have to pay. We just saw legislation being considered to allow Illinois municipalities to file for bankruptcy—rulings like this are one reason such extreme measures are being considered.

In Vaughn v. The City of Carbondale, our IL Appellate Court, Fifth District found a Carbondale police officer bumped his noggin getting into his patrol car to answer the radio. We have no idea how a bump on the head could lead to a lifetime line-of-duty disability pension and the decision doesn’t fully address that issue. However, the patrol officer wanted lifetime family medical coverage asserting his injury occurred responding to an emergency. There is no indication in the record the radio call was due to an actual emergency—the patrol officer was simply answering his radio.

The unanimous Appellate Court majority ruled as any typical radio call from police dispatch was one means to notify officers of emergency, it then became the officers' duty to respond to dispatch calls in timely manner in case it is an emergency. Thus, they ruled the officer's injury was incurred as a result of his response to what he reasonably believed was an emergency. With respect to the members of this court, we cannot disagree more. We also point out this ruling provides an enormously expensive lifetime benefit. In our view, this Appellate Court is now ruling basically everything a police officer or firefighter does is in “response to an emergency.” The “emergency” in this one was reaching into his car to answer a dispatch call that clearly wasn’t an emergency. By the theory used in this ruling, a police officer tying their shoes, putting on their hat or buttoning their shirt is acting “in response to an emergency.”

Please start with the fact a police officer or firefighter don’t have to be fully disabled to be entitled to lifetime line-of-duty disability benefits. Our IL Supreme Court ruled “catastrophically injured” means the officer simply has to be disabled from working as a police officer or firefighter. They can have post-employment jobs that make more money than they made while working. We consider that whole approach to be kleptocratic. On top of that, we are now seeing the courts further “bend” the rules to provide not only lifetime benefits for officers who can work but also guarantee lifetime family medical coverage to be paid 100% by taxpayers. The annual added cost of rulings like this is about $30K a year for one officer for this year—that cost continues to climb as health care premium costs rise. The cost of rulings like this to Illinois municipalities is well into the tens of millions and could eventually be into the billions if enough Illinois law-enforcement officials and firefighters claim it.

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

3-23-15; IL Gov't Refusal to Offer Light Work under IL Workers' Comp - A Secret Scandal; Shawn R. Biery on Important Jurisdiction/Lien Ruling; IWCC News/Notices and more

Synopsis: Government Refusal to Offer Light Work Under IL Work Comp – A Secret Scandal for Springfield to Address

Editor’s comment: Before we start raising taxes, someone please tell us we are going to first run all IL government(s) better.

In brief, we ask legislative action be taken in Springfield to investigate this secret scandal and draft/pass legislation requiring all IL government bodies to have light work programs immediately put into place. Please also note these government bodies are large employers, so the State’s overall workers’ compensation premium measurements are skewed due to their continued mismanagement—on a national level, this projects a poor business environment. Please further note ITLA can’t blame these high WC payouts on “greedy insurance companies”—these monies are misspent by government workers mismanaging return to work issues on accepted WC claims. 

Right now, the State of Illinois, City of Chicago, Chicago Park District and Chicago Transit Authority are paying literally hundreds of millions of dollars in workers’ compensation benefits. The State has to be paying over $150M a year in workers’ comp benefits. The City is paying over $100M each year and the Chicago Transit Authority and Chicago Park District are paying over $50M per year. It is not a coincidence all those government bodies are awash in red ink. If light work programs were required for all state and local gov’t bodies by our IL General Assembly we assure our readers the savings to taxpayers would be immense. We further assure you with all the conviction possible, other than California, no U.S. State Government or City the size of Chicago pays anything like the amount we routinely waste on workers’ compensation benefits.

Our sources indicate none of those government bodies are providing light work for their injured employees. To our understanding, Cook County started a light work program under their current chairperson—she had to argue with some of the elected county officials to do so. To our further understanding, the long-time alderman in Chicago who runs the City’s WC “defense” system will not provide light work for City employees unless legislation in Springfield requires it. The Chicago Tribune has asked and asked him about this issue and they are routinely ignored.

Should Your Tax Dollars Be Used for Funding of Political Work by Former Gov’t Workers Now on TTD and Lifetime TPD?

One reason light work isn’t offered to state and local government workers is to insure the workers are indebted and forever beholden to their political patrons. Once on never-ending TTD or lifetime TPD, the workers remain loyal political hacks for the folks endlessly giving them our tax dollars. Would you do sporadic political work for someone who would insure you are paid for years and years not to have to perform real day-to-day work? Could this be a reason there hasn’t been a Republican Party in Chicago in several generations? How can you have a two-party system if the party-in-power can pay former workers the rest of their lives to perform political tasks when the occasional elections occur?

There is No Question Light Work is a Major WC Money-Saver; How Can Anyone Dispute That?

Light work as a path to return workers to some work and progressing back to their former jobs is an unquestioned money saver in workers’ comp claims across the globe. We know of no reason a business or government wouldn’t provide light work or early return to work for their injured employees—it is a complete no-brainer. As taxpayers, we assure you our money is being thrown away by the barrel. Thousands of articles and books on the topic are out there on the web. If you want samples, send a reply.

We also feel light work programs are, to some extent, mandated by the Americans With Disabilities Act—every injured worker we are talking about in this article has permanent restrictions and is kept out of the workplace on an indefinite basis. The ADA requires “reasonable accommodation for qualified individuals with a disability.” An injured worker with restrictions precisely meets that definition but none of these governing bodies offer “reasonable accommodation,” they simply continue to pay tax-free weekly TTD and, as you will read below, weekly total and permanent disability benefits indefinitely. The government workers don’t file EEOC charges because they are being paid so well to do nothing.

Here is How This IL Gov’t Workers’ Comp Catastrophe is playing out:

For example, a City Streets and Sanitation worker gets injured—let’s say they have a routine shoulder surgery. They are given a 40lb lifting restriction. They are allowed to stay off work and on temporary total disability (TTD) indefinitely, even though there are numerous well-paid administrative, dispatch or “no touch” truck driving jobs they could be switched to perform. There are workers still on TTD for 3, 5, even 10 years—they are no longer receiving any medical care, they are simply allowed to stay off work  and keep getting paid. Light-duty jobs open up and are filled by other workers when the folks on TTD could be put into such work. In many settings, temporary workers are used in open positions instead of the injured worker on restrictions.

After several years on TTD, the governments above then will make a decision on:

1.    Total and permanent disability under the goofy “odd lot” theory. This concept was judicial legislation that comes from an IL Supreme Court ruling named E.R. Moore v. Industrial Commission. The main reason we call it judicial legislation is the words “odd lot” don’t appear in the IL WC Act and they are not defined in any legislation. The Supreme Court said an “odd lot” total and permanent disability is someone who is injured at work with restrictions, hasn’t returned to work and can’t find an alternative position anywhere else. When those three factors are present, it is incumbent on the employer to either offer an alternate job or demonstrate the availability of alternate work. The State of Illinois, City of Chicago, Chicago Park District and CTA, never do that. We assure you all governments outlined above have numerous positions open up every year. They could take folks off TTD/TPD, train them and put them in such jobs to save taxpayers money and get their people back to gainful employ. They almost never, ever do so. We are told the State of IL is paying several million in weekly T&P benefits that could be stopped right now, if the workers being paid lifetime benefits with COLA increases were brought back to available light jobs.

2.    The other theory is “fake” wage differential settlements. Under Section 8(d-1) of the Act, an employer is required to provide lifetime wage loss differential benefits to someone who can return to lower-paid light work. When a worker is left off work for years, at some point, the government agency or its outside WC administrator agree the employee could locate a minimum wage job and will provide a significant lump sum settlement by discounting the overall lifetime liability. The reason we call it a “fake” wage diff settlement is the worker doesn’t have to actually get a job, the government agency will just assume they can only get a minimum wage job. We were advised the City of Chicago is paying such settlements in amounts like $250K-$350K to workers who haven’t had a single surgical intervention and have been receiving years of TTD. Once the worker settles and gets the giant check, they return to work outside city gov’t wherever they want at the highest pay they can find.

Please note this scandal is not common to almost all Illinois governments, just the biggest ones. For a single and exceptional municipal example, the City of Naperville has a very aggressive return to work program and does everything they can to get an injured worker back into some sort of position as soon as they are medically able to do so. Here is a shining example of their long-time and great focus on this issue: http://www.usfa.fema.gov/pdf/efop/efo28156.pdf

To investigate and develop the extent of this continuing and secret scandal, we would suggest someone send a FOIA request to the various government agencies to ask:

·         How many pending workers’ compensation claims do you have?

·         Do you mandate a light work/return to work program for all agencies? If not, why not?

·         How many of your workers have been on TTD for over a year?

·         How many of your workers are receiving weekly lifetime “odd lot” total and permanent disability benefits?

·         How many new workers were hired by you in the last year?

·         What new or open jobs were filled?

·         Were the injured workers considered for any of the open positions?

·         What current efforts are being made to return all injured workers to modified or limited duty, and/or retraining for other available positions?

·         How many WC settlements over $200,000 were made by your government in the last two years? What was the basis for such settlements?

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

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

Synopsis: IL Appellate Court nails another one in confirming IL WC Commission is the proper and exclusive venue to determine questions with regard to workers’ compensation benefits in Illinois. Analysis by Shawn R. Biery, J.D., MSCC.

Editor’s comment: The 5th District Appellate Court ruled the Illinois Workers' Compensation Commission, not the Circuit Court, has exclusive jurisdiction to decide whether a claimant who settled a third-party lawsuit resulting from a work related accident may also pursue workers' compensation benefits from his employer after resolving the initial lien.

In Bradley v. City of Marion, http://www.state.il.us/court/Opinions/AppellateCourt/2015/5thDistrict/5140267.pdf Plaintiff Bradley had been injured in an automobile accident while working for the City of Marion and initially sought recovery from the motorist who arguably caused the accident. He settled that case for $650,000 and as part of the settlement Bradley reimbursed Marion $190,112.89 for their current workers' compensation benefits it had paid and voluntarily dismissed his workers' compensation claim after Marion and its insurer, the Illinois Public Risk Fund, released the existing lien in writing. Bradley then filed a new workers' compensation claim after the City and its insurer released their lien and the City argued Bradley waived his right to further workers' compensation benefits when he settled the third-party suit and received the lien release.

Bradley filed a complaint for declaratory judgment at the Williamson County Circuit Court with his argument there was no waiver or closure of workers' compensation benefits without approval by the Workers' Compensation Commission—and the IWCC had not approved any waiver.

Marion/Public Risk filed a counterclaim and requested declaratory judgment for breach of contract and also argued Bradley waived his right to benefits. The trial court decided there was no jurisdiction to consider the disputes since benefits under the Workers' Compensation Act were the sole function of the Commission who had exclusive jurisdiction and the Appellate Court affirmed there was no jurisdiction for the same reason.

Both sides of the bar can understand the frustration of a case where there is a third party issue, and with a settlement for $650,000 which included reimbursement of $190,112.89 for benefits for WC benefits paid, it seems reasonable for Marion and its defense counsel would have considered the WC claim ended with the voluntary dismissal. Realistically, in hindsight they would have been much better with a $1 WC settlement contract along with return of the lien amount. The Act is very clear in Section 23 in noting a claimant “cannot waive the amount of compensation which may be payable to the employee except after approval by the Commission”. 820 ILCS 305/23.

There appears to be a strong argument the lien release “contract” has a substantial issue and no proverbial “meeting of the minds” occurred based upon the significant amount achieved over the lien amount and lack of incentive for Marion to leave additional benefits open and it would appear the best result for each party would be for rescission of that agreement and either some final settlement approved by the IWCC or ongoing benefits to be credited at 75% until the third party settlement value is exhausted. We will report on the outcome of the claim as it is determined.

One final thought—there have been a plethora of new actions in Circuit Courts in Illinois attempting to circumvent the IL WC Act and directly sue industry components with attempts at

Ø  “Assignment of rights” (which is specifically not allowed for certain portions of WC claims) or

Ø  Interest on unpaid medical bills.

This is generating anti-business and anti-insurance carrier/TPA litigation outside of the IL WC Commission jurisdiction. For those reasons, it is good to see the Appellate court confirm the exclusive jurisdiction of the Commission for benefits under the IL Workers' Compensation Act.

This article was researched and written by Shawn R. Biery JD, MSCC who can be reached at sbiery@keefe-law.com with any comment or question.

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

Synopsis: IL WC Housekeeping News and Notices.

Editors’ comment: Effective April 1, 2015 Arbitrator Friedman will take over the docket previously assigned to now-IWCC-Chair Fratianni in Zone 5 and Arbitrator Hegarty will take over the docket previously assigned to new Commissioner Luskin in Zone 6. All documents and correspondence related to these dockets should be forwarded to their attention effective immediately.

Please be advised New Lenox Village Hall will be closed on April 3, 2015 in observance of Good Friday. The status call scheduled for Friday, April 3rd will be moved to Monday, April 6th. All trial dates will remain unchanged. Notices will be mailed to all interested parties.

Please be advised the Woodstock hearing site will be closed on April 3, 2015 in observance of Good Friday. The status call will remain on Wednesday, April 1st, and there will be an additional trial day on Thursday, April 2nd.