7-13-15; OMG-LOL, Great IL WC Statistical News--Not Another IL WC Committee!?; Dan Boddicker on Iowa Sup. Court WC on Surveillance; Jim Egan on 19H v. 19G IL WC Ruling; Get New IL/IN Rate Sheets...

Synopsis: OMG-LOL—Great IL WC Statistical News; Some New IL WC Legislative Recommendations but Please Not Another Illinois Workers’ Comp Committee!!?

Editor’s comment: Great news for Illinois businesses, insurance carriers/TPA’s and government bodies—the IWCC’s 2014 Annual Report is out and indicates there has been a 19% drop in IL WC costs since 2011! There has been a 16% drop in medical costs for the most recent statistical period of 2010-2012. We truly consider this solid news for our defense clients and we expect more progress in the days/months/years to come.

We do feel the every-other-year report from the State of Oregon is a solid statistical comparison of where Illinois stands in relation to other states but please remember their analysis becomes stale as the years roll forward—their last analysis on WC insurance premiums are for research/statistics from 2013 and prior. We are certain IL WC will be much closer to the middle when the report from Oregon next year is issued. In contrast, this new annual report from the IWCC is dramatically more current and outlines scientifically significant news on great progress in our state’s WC system. Take a look online at http://www.iwcc.il.gov/annualreportFY14.pdf

Over the weekend, we also saw various new changes to the proposed IL WC reform legislation coming from the Republicans in Springfield. Once again, we like some of them but have issues with two main changes, as we outline below. The new legislation is HB 4248. You can review it only at http://www.ilga.gov/legislation/99/HB/PDF/09900HB4248lv.pdf

The Proposed Legislation maintains the prior Republican proposals on

Ø  “Causation” or the requirement an accidental injury arises in a situation where the work is felt to be the major contributing cause of the deleterious and work-related medical condition—we feel this legislative change is unnecessary and could be easily and rapidly implemented on an administrative level;

Ø  “Traveling employee” coverage is somewhat confusingly defined but is designed to insure a worker who is “traveling” is only covered for injuries or illnesses when they are actually working, engaged in a work-related risk and not on a paid or unpaid break—we do agree with this legislative effort to rein in the more expansive interpretation seen by some reviewing courts. We also reassert that such a statutory change would be unnecessary if the current statutory construction were strictly construed;

Ø  Credit for any award or settlement under Section 8(d-2) of the IL WC Act.—again, we agree with this concept and hope injuries to the shoulder will again become loss of use of the arm and not loss of use to the body. Again, we feel our legislature is reining in the reviewing courts;

Ø  Medical services covered under the IL WC Act are going to be cut 30% more on June 1, 2016—please note this reduction is infuriating physicians and healthcare givers across our state who provide care to injured workers. We understand it is designed to match what group healthcare providers pay in medical reimbursements—every doctor we have discussed this with affirms there are lots more charges and issues with providing work comp care and the legislation is matching apples to oranges. Many doctors may turn down WC claimants if the reimbursements are not sufficient to cover their growing costs. Please also note Dr. David Fletcher of SafeWorks has written numerous articles contesting the basis for these additional cuts.

New and solid legislative recommendations:

v  No Impairment rating required for the Arb to write PPD. Not a major issue for anyone.

v  Electronic claims for payment of medical care—we assume docs and hospitals will still be mad at our legislators and lawyers but this legislation does appear to be a step forward;

v  State of IL and lots of government agencies and WC funds do not have to file WC appeal bonds—this clarifies what we consider to be a poorly reasoned ruling from our reviewing courts where they contradictorily found an injury claim legally wasn’t a work comp injury but then stripped out their ability to reverse the award due to the failure of the State to file an appeal bond for the fund it represented;

v  WC Fraud investigation and recommendations for prosecution are moving to the IWCC from the inert and hilariously inept IL Dep’t of Insurance that never wanted to handle this any way; and

v  The IWCC is supposed to get a slick new computer system with lots of new super-fast online stuff.

A new proposed IL WC Ombudsman Program

This concept is interesting but truly isn’t needed. If you grab a dictionary, you will note an ombudsman or public advocate is someone appointed with a degree of independence, who is charged with investigating and addressing complaints of maladministration or a perceived violation of rights. Here is the new proposed legislation:

Sec. 14.2. Workers' Compensation Ombudsman Program.

(a) The Illinois Workers' Compensation Commission shall establish  the  Workers'  Compensation  Ombudsman  Program  as a program within the Commission no later than July 1, 2016. The Ombudsman Program shall provide assistance to all regions of the  State. The Ombudsman  Program  shall  be  staffed  with personnel who are trained in techniques performed by ombudsmen and who are familiar with the Commission.

The Ombudsman Program may:

(1)  assist  injured  workers  with  the  use  of  the Commission's information portal;

(2) provide information to employers, employees, and medical   provider   with   questions   about   workers' compensation fraud;

(3) assist injured employees with referral to local, State, and federal financial assistance, rehabilitation, and  work  placement  programs,  as  well  as  other  social services that the Ombudsman Program considers appropriate;

(4) respond to inquiries and complaints relative to the workers' compensation program; and

(5)  serve  as  an  information  source  for  employees, employers,   medical,   vocational,   and   rehabilitation personnel,  insurers,  third-party  administrators,  and self-insurers.

(b) Individuals within the Ombudsman Program may not appear or intervene, as a party or otherwise, before the Commission on behalf of an injured employee, employer, or medical provider.

This Section shall not construed as requiring or allowing legal representation for an injured employee by the Ombudsman Program in any proceeding for the Commission.

Our concern with this program is the State already has an IL WC ‘Ombudsman’ and we don’t need another one. If you aren’t sure, her name is Joann Fratianni-Atsaves and she is the current IWCC chair. Joann is brilliant, tough and fair. There is no maladministration that might occur under her watch. She has lots of folks running around what we feel could be a smaller and streamlined agency who are currently doing good things—we suspect she has some of them acting as ombudsmen already. We see no reason for legislation to do anything outlined in the proposal above that can’t already be done. We recommend Governor Rauner call the great IWCC Chair he appointed and have her start doing all this stuff today/pronto.

WEARING IL WC Out

The final new proposal we have to make fun of is what they are calling the WEAR Commission. We aren’t sure which legislative intern came up with this idea but we hope the idea “wears off”—if you get the pun. The legislation seeks to create the  Workers'  Compensation Edit, Alignment, and Reform Commission, which shall be known as the WEAR Commission. The  purpose  of  the  WEAR  Commission is to develop a proposed recodification of the IL Workers' Compensation Act.

We point out the IWCC is a ‘commission’ itself. The IL WC Commission has lots of boards, blue-ribbon panels and commissions underneath it. They have a:

1.    WC Commission Review Board

2.    Self-Insurers Advisory Board

3.    Workers' Compensation Advisory Board

4.    Workers’ Compensation Commission

5.    Workers' Compensation Medical Fee Advisory Board

As we have repeatedly advised our readers the 2011 Amendments added a seventh committee/commission/blue ribbon panel named the Illinois State Workers' Compensation Program Advisory Board. That board has 13 members and it took about a year to get them empaneled. To our knowledge, they have never met, not even once. The problems they were appointed to attack were the hilariously high overpayment of WC benefits to Illinois state workers. Those problems remain today. This dysfunctional board is our main issue with the new WEAR Commission—are they going to meet and actually do anything?

In our view, if a proposed recodification of the IL WC Act is needed, have the nine veteran and knowledgeable members and the Chair of the bipartisan IL WC Commission handle the concept, hold hearings and propose it. We understand they are busy and hard-working folks but we know they are also devoted to their tasks. We don’t feel another “will-this-work-and-will-we-show-up” committee is a solid legislative concept. While it sounds good to the masses, it is probably all Springfield PR fluff.

We appreciate your thoughts and comments. Please post them on our award-winning blog at www.keefe-law.com/blog.

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Synopsis: Iowa Supreme Court Rules Surveillance of Injured Workers Obtained by Employers and Insurers Doesn’t Have to Be Disclosed Prior to Hearing. Analysis by Dan Boddicker, J.D., A former Hawkeye and our Iowa WC Defense Team Leader.

Editor’s comment: Recently, the Supreme Court of Iowa decided the issue of whether the Iowa Division of Workers' Compensation correctly interpreted Iowa Code section 85.27(2) as overriding the work product immunity and requiring the disclosure of surveillance video of any claimant seeking workers’ compensation benefits before deposition in the negative. Their highest Court concluded Iowa Code section 85.27(2) is limited to health-care related privileges such as the physician-patient privilege and does not affect privileges and protections related to the litigation process such as the work product doctrine.

In Iowa Insurance Institute, et al v. Core Group of the Iowa Association for Justice, et al, No. 13-1627, June 12, 2015, the Iowa Supreme Court upheld work product doctrine immunity with regard to disclosure of surveillance video before a medical or lay deposition in its opinion which limited Iowa Code section 85.27(2).

The Iowa Insurance Institute case was started when Christopher J. Godfrey, Iowa Division Workers’ Compensation Commissioner, ruled on a petition for declaratory order concluding Iowa Code section 85.27(2) applies to surveillance materials and waives the work product privilege except to the extent that requested materials contain mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. The Commissioner concluded employers or insurers must produce surveillance materials upon request from a claimant and may not withhold the materials until after deposing the claimant.

The Court noted the Iowa standard that if a document or tangible thing may fairly be said to have been prepared or obtained because litigation is foreseeable or ongoing, it constitutes work product. The Court agreed that in Iowa surveillance materials are protected as work product, at least initially. The Court stated that surveillance lose the status of protected work product once a determination is made that the surveillance will be used at trial.

The Supreme Court used statutory interpretation to interpret Iowa Code section as being limited to health care provider records and held the declaratory order of Commissioner Godfrey erroneously determined the Iowa Code section 85.27(2) applies to surveillance.

We consider this ruling to be favorable to Iowa business and government entities who can save surveillance until they choose to disclose it.

This article was researched and written by Daniel J. Boddicker, J.D. Dan can be reached for questions, concerns or discussion of Iowa workers’ comp, general liability and employment law at dboddicker@keefe-law.com.

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Synopsis: Petition to Modify IL WC Award Doesn’t Block Claim for Judgment to Collect Undisputed Amounts. Analysis by Jim Egan, J.D.

Editor’s comment: The Illinois Appellate Court has ruled that the fact an injured workers’ petition to modify an award of benefits is pending does preclude the trial judge of jurisdiction to enter a judgment for payment of that award.

In a published decision, Sunrise Assisted Living v Banach, No. 11-MR-1348, the IL Appellate Court held the filing of a 19(h) petition is not a petition for review as considered by 19(g), which would bar a judge from entering a judgment on an award.

Claimant Banach worked for Sunrise Assisted Living and filed a workers' compensation claim after suffering a serious on-the-job injury in March 2007. An arbitrator determined she was entitled to temporary total disability benefits of $250.00 per week for 107 5/7 weeks; permanent partial disability benefits of 45% BAW totaling 225 weeks at the PPD rate of $225.00; $322,922 for her medical expenses; and $1,520 in interest. IWCC upheld the award, as did the Circuit Court and the Appellate Court. Sunrise then paid the award in three installments.

While the case was pending at the Appellate Court, Claimant filed a petition to modify the award due to an alleged worsening of her condition, requesting additional benefits. After employer Sunrise made payment, but before the Commission ruled on her modification petition, Claimant filed an application in the trial court for a judgment on the original award. She also demanded payment of an additional $56,395 as interest that accrued after the date the Commission upheld her award, until Sunrise paid her award.

Sunrise moved to dismiss the application for judgment, arguing the trial court lacked jurisdiction over the matter since Banach’s petition for modification was still pending. It also insisted it owed no additional post-award interest. The trial judge agreed with Sunrise's later argument and denied Banach's request for additional interest.

Analysis: In ruling the trial judge could not enter judgment on a workers' compensation award while the Commission was reviewing whether that award is proper, but judgment on the original award may be entered when the Commission is deciding whether a material change in circumstances warrants a prospective modification, The Appellate Court followed the 1978 ruling in Ahlers v Sears Roebuck Co., 73 Ill. 2d 259,262. In Ahlers, the Court held the prospective nature of a 19(h) petition was different from the subject matter contemplated by 19(g). Accordingly the Court held the Circuit Court judge properly found he had jurisdiction to rule on Banach's application for judgment.

The Court then went on to say that the judge properly found Banach wasn't entitled to additional interest because Sunrise had paid her award before Banach filed her application for judgment.

From a technical perspective, we remain concerned the petition to modify benefits doesn’t guarantee the current amounts due—it could be possible for the IL WC Commission to either increase or reduce the prior amounts at issue. This ruling seems to contemplate only an increase was possible.

This article was researched and drafted by Jim Egan, J.D. Jim can be reached for comment and questions at jegan@keefe-law.com. Please also consider posting questions and concerns on our award-winning blog.

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Synopsis: New IL and IN WC Rate Sheets due out any day—sign up!!

Editor’s comment: Shawn R. Biery, J.D., MSCC and Kevin Boyle, J.D. issue new and updated workers’ comp rate sheets for the states of Illinois and Indiana, respectively. Feel free to sign up for this free and helpful claims information—we will send it as soon as you ask for it. Shawn can be reached at sbiery@keefe-law.com. Kevin is at kboyle@keefe-law.com.

7-6-15; UPS Wins FMLA Beef with Great Documentation, analysis by Brad Smith; Nathan Bernard Reviews Credit Dispute in Death Claim; What is the Correct Year for Wage Loss Calc by Pankhuri Parti and...

Synopsis: Document! Document!  Document! Federal Judge Tosses Former Employee’s FMLA Claim Against UPS Due to Repeated And Well-Documented Performance Issues. Analysis by Bradley J. Smith, J.D.

Editor’s comment: In Parks v. UPS Supply Chain Solutions, Inc., the United States District Court for the Eastern District of Kentucky entered summary judgment on UPS’ behalf related to its former employee, Gene Parks claims for retaliation under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq. While certain claims remained pending under the FMLA (i.e., interference claim) and the Americans with Disabilities Act (“ADA”) (i.e., failure to accommodate claim), the District Court commended UPS on their documentation and other evidence demonstrating their progressive disciplinary plans. Particularly, the plethora of evidence related to Parks’ repeated performance issues were UPS’ legitimate reason for termination.

UPS hired Parks in February 1999 to work at its Hebron campus as a material handler assigned to UPS’ Honeywell account. His job duties included driving a forklift, moving boxes, picking products, and controlling inventory. From 2002 through and including 2009, Parks’ supervisors filled out fifteen SCS Discrepancy Forms detailing his errors in pallet building, putaway and labeling. In 2009, UPS lost its account with Honeywell. Consequently, UPS transferred Parks to the Birkenstock account. He was still a material handler with new supervisors overseeing his work.

Parks received numerous written warnings over the remainder of his time with UPS. Finally, after reviewing the numerous performance issues and a final warning, UPS decided to terminate Parks. At the time of his termination, he reiterated that he would be scheduled for surgery related to a spine issue within the coming months and needed UPS' insurance to cover his medicals costs for the surgery. UPS tendered him a COBRA package at the time of termination, but Parks immediately threw it away asserting it was “unaffordable."

During Parks’ employment, he was approved for, and also took numerous leaves of absence. Specifically, in late 2003, he was on a leave of absence for an allergic reaction and a blood clot. He also had leave of absences in July 2003 and November 2004 to deal with complications from a shoulder injury that derived from a prior car accident. In June 2004, January 2005, and February 2006, UPS gave Parks more time off to care for his wife’s serious medical issues. Notably, UPS never interfered with him taking leave on those occasions. UPS granted Parks FMLA intermittent leave in February 2010 for neck pain.

The District Court analyzed the retaliation claims under the well-established McDonnell-Douglas standard to determine whether Parks’ FMLA retaliation claim would survive summary judgment. Although it was easy for Parks to meet his prima facie case of retaliation under the first prong of the test—due to the timing of his termination—in response to UPS bringing forth legitimate and repeated performance issues demonstrating their reasons for terminating Parks, Parks failed to demonstrate any pretext. Accordingly, the district court granted UPS summary judgment and dismissed Parks’ FMLA retaliation claims.

Despite the survival of a portion of Parks’ claims, UPS demonstrated a proper progressive disciplinary plan (both in procedural rules and subjective application). Importantly, UPS maintained records of its prior performance issues with Parks, and also implemented progressive discipline due to his numerous performance issues. Had UPS not properly documented this process, it arguably would have been easier for Parks to demonstrate a material issue of fact requiring a jury trial. Instead, due to the plethora of documentation and testimony related to legitimate performance issues, UPS was able to demonstrate that it maintained legitimate reasons for terminating Parks.

We want our readers to know the defense team at KCB&A handles more than work comp in defending our clients. This article was researched and written by Bradley J. Smith. Brad can be reached for questions, concerns, or discussion regarding the defense of  FMLA, employment law, and general liability claims at bsmith@keefe-law.com.

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Synopsis: Prevent Double Dipping! It Is Imperative Work Comp Settlement Contracts or Commission Decisions Clearly Reflect Credit to be Taken from Final Payment.

Editor’s comment: In the Estate of Burns v. Consolidation Coal Company, 2015 IL App (5th) 140503 (June 30, 2015), the Fifth District Appellate Court clarified how an employer is entitled to offset the amount of federal claim benefits paid at the same time state workers' compensation benefits were paid. To be very clear, it is NOT by verbal agreement between the parties. Be warned, this may not adequately protect an employer from still having to pay the full amount of the award, and then seek significantly increased litigation costs to recoup any potential credit from benefits that may have overlapped from two or more sources, to prevent what is called “Double Recovery”. Further, even if the credit is stipulated to by the parties at hearing, or documented in a settlement contract approved by an Arbitrator/Commissioner, it still may not be enough to prevent the continued time and expense of having to seek the credit via the proper channels, but the defense team here at KCB&A strongly recommend it as absolutely necessary to protect your statutory credit in order to seek to offset it later.

Nota bene (note well): In claims dealing with a potential credit, be prepared to pay the award/settlement in full to avoid the risk of penalties and fees for nonpayment. Then you must file suit to offset any credit. Make sure there is adequate written documentation in the record (or contracts) of that credit at every level of the litigation process.

In the case at bar, and to attempt to make a long story short as the procedural history is somewhat convoluted, the estate of a deceased Petitioner was awarded death benefits and burial expenses under the Workers' Occupational Diseases Act after the deceased Petitioner died as a result of diseases arising out of his employment as a coal miner for 38 years. The employer also conceded liability in a concurrent federal claim which paid the widow amounts during periods of the same time the WC benefits were received. Specifically, the estate received federal death benefits from the U.S. Department of Labor via the Black Lung Trust Fund. Apparently, when the employer went to pay the WC award they had a verbal agreement with Petitioner’s counsel who handled both the state WC claim and Federal Black Lung claim that they would subtract the Black Lung credit and just issue the WC check for the remainder amount.

Admittedly, in a the majority of these claims this is a non-issue and may likely be the more practical approach rather than suing the estate to re-coup the overpayment resulting in even further litigation and distress to all parties. The testimony regarding this oral agreement was that it was reached between the attorneys of both parties "because it's the same agreement we reach in all of these death cases where there is a federal claim and there are benefits that overlap." Simply put, there is no dispute the employer is entitled to the credit. But this short-cut approach to recouping credit was found to be improper after disputes arose when the handling partner for the estate left the firm and the estate claimed they were never aware of the credit to be taken, which they then objected to and filed a Section 19(g) motion to obtain a state judgment on the amount claimed.

When an employer fails or refuses to pay a final award, Section 19(g) provides a statutory remedy to enforce the judgment in the Circuit Court. Commission approval of a settlement agreement constitutes a decision of the Commission and is the equivalent of an award within the meaning of Section 19(g). However, in the context of a Section 19(g) proceeding, the Court can only consider the plain language of the decision or settlement agreement.

Here, initially the employer made no claim for credit and did not present any evidence, or later in the appeal sufficient evidence, of the oral agreement between counsels. Neither the Arbitrator's order nor the Commission's decision makes any reference to credit claimed. Had the credit been presented to the Commission and approved by it at hearing, or even by a settlement agreement approved by the Commission, it would be an award within the meaning of Section 19(g). However, because the credit was not presented, either via an approved settlement agreement or at hearing, in the context of a Section 19(g) proceeding, the Court could only review the Commission's award or approved settlement contract.

Importantly, even if the credit had been documented, the Code of Federal Regulations in this specific claim, provided a mechanism for the recovery of any overpayment of federal black lung claims, NOT in a Section 19(g) proceeding. Again, there is no dispute the employer is entitled to the credit. While an employer may ultimately obtain a credit, it is not entitled to that credit in a proceeding under Section 19(g) and may still have to pay the full amount of any award, then properly seek to assert that credit elsewhere via proper channels. This is true even if the award/settlement documents the credit clearly.

This article was researched and written by Nathan S. Bernard, J.D. Please feel free to contact Nathan at (312) 756-3726 or nbernard@keefe-law.com with any comments, questions, or concerns.

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Synopsis: The IL Appellate Court, WC Division Held the Weekly Wage Differential Benefit an Injured Worker Receives Is Based On the Statewide Average Weekly Wage For The Year The Worker Was Injured. Thoughts and Analysis by Pankhuri K. Parti, JD.

Editor’s comment: In a decision confirming the intent of the legislators while writing the Workers’ Compensation Act, the Appellate Court upheld a decision of the Commission when it ruled the date of the claimant’s injury controlled the maximum rate of wage differential benefits the claimant could receive.

We believe this to be a positive outcome for the employers and insurers of Illinois, who would have had to pay much higher wage-differential benefits had the Court not limited the benefits to the maximum rate applicable at the time of the injury. This is especially true as the maximum rates for the benefits are adjusted yearly and cases can take up to six years to go through the entire appeals process.  

Facts and Procedural History: According to the undisputed facts of the case, the claimant was injured acting in his capacity as a hoisting engineer when he fell to the ground from a height of several feet and sustained injuries to his right shoulder and cervical spine. He received treatment and underwent surgery on his right shoulder in February 2007 and spinal fusion surgeries in December 2007 and June 2008. A functional capacity evaluation eventually found him capable of working light to medium duty and permanent restrictions were recommended, which precluded him from returning to work as a hoisting engineer. Evidence presented during arbitration showed at the time of the arbitration the rate of pay for a hoisting engineer with the employer was $45.10 per hour.

In her decision the Arbitrator found Claimant has suffered an injury arising out of and in the course of his employment. It was also found Claimant was entitled to wage differential benefits since he was permanently partially incapacitated from pursuing his usual and customary employment. Specifically, and more relevant to this article, the Arbitrator awarded $982.67 per week. Upon an appeal, the Commission modified this decision by reducing the figure to $840.65, the maximum weekly benefit allowable under section 8(b)(4) of the Act based on the claimant’s 2006 injury date. This rate was also affirmed by the Circuit Court.

The Decision: In appealing this modification of the Arbitrator’s decision, Claimant argued the maximum rate applicable to his award should be based on the State AWW at the time of his May 2012 arbitration hearing rather that the State AWW at the time of his December 2006 accidental injury.

In reaching its decision the Appellate Court looked at the language of the Act and considered the issue one of statutory interpretation. It quoted Section 8(d)(1) of the Act and stated the language made it clear the section was limited by the maximum amounts fixed in paragraph 8(b) of the IL WC Act and case law had long since established the maximum rates set forth in section 8(b)(4) of the Act were applicable to the wage differential awards. The Court also held the amendments effective July, 20 2005 had included express language concerning wage differential awards and the maximum wage differential benefits were 100% of the State AWW in covered industries under the Unemployment Insurance Act.

The Court also disagreed with Claimant’s argument since the Act had been consistently interpreted to require wage-differential awards to be calculated based upon the claimant’s earnings at the time of the hearing, the legislature must have intended the State AWW at the time of the arbitration hearing to be used to determine the wage-differential benefits. While the Court agreed prior decisions ruled it was the employee’s earnings at the time of the arbitration hearing which determined wage-differential awards, it also felt Claimant’s situation was distinguishable from those instances since it involved the application of the appropriate maximum rate under the IL WC Act.

It was the opinion of the Court Claimant failed to provide any authority in support of his arguments and its own review of the applicable case law reflected the opposite – it was the date of the injury which controlled the maximum rate applicable. While citing numerous opinions in support of its decision, the Court also referred to a Supreme Court decision in Grigsby v. Industrial Comm’n wherein the Court held the law in effect time of the injury determined the rights of the parties. Finally, the Appellate Court noted if the legislature had wanted the date of the hearing to control the applicable maximum benefits rates, it would have amended the language of the Act when it enacted its amendments in July 2005.

The Appellate Court also disagreed with Claimant’s argument that limiting an employee’s wage differential to the State AWW at the time of the injury was against the Act’s purpose of thoroughly compensating the injured workers. Claimant argued the State AWW at the time of the injury placed him in the financial condition he would have been in if the injury had never occurred. While the Court agreed with this, it noted the purpose of Section 8(b)(4) of the Act was to limit recoveries and depending on the facts of each particular case, the application of the maximum rates could result in no change to the wage-differential award, a significant decrease to the award, or something in between. As a result the Appellate Court found claimant’s arguments to be unpersuasive and not worthy of reversing the decision of the Commission.

This article was researched and written by Pankhuri K. Parti, JD. You can reach Pankhuri 24/7/365 for questions about WC at pparti@keefe-law.com.

6-29-15; Gay Marriage as It Relates to Workers Comp; IL PPD Accrues and Due After Death of Petitioner, analysis by John Karis, JD; EEOC Hits UAL But Ignores Gov't Discrimination of Disabled Workers...

Synopsis: Whether You Like This Controversial Topic Or Not, You Need To Know the WC Rules on Gay Marriage for Your Risk Management/Claims Job.

Editor’s comment: Last Friday, SCOTUS effectively mandated gay marriage is here to stay in all 50 states. If you aren’t happy about it for religious or other reasons we understand but as adults we have to deal with what is in front of all of us. A clear effect of the U.S. Supreme Court’s decision legalizing gay marriage nationwide is same-sex couples can travel, vacation or reside out of state knowing their marriages will be recognized across our country. Illinois legislatively approved gay marriage in our state starting in 2014. Whatever the outcome, our highest court’s ruling was not expected to directly affect Illinois law since the case was focused on court judgments and not unions approved by a legislature, as in Illinois. The SCOTUS ruling means 14 other states will have to stop enforcing legislative or judicial bans on same-sex marriage, effectively “approving” or mandating recognition in all 50 states.

The freedom to reside elsewhere on either a temporary or permanent basis along with freedom to travel was among the things Illinois’ gay couples were celebrating after Friday’s decision. Here are other aspects of the ruling:

For Illinois and All of the United States, Gay Marriage Is Here To Stay

The Illinois General Assembly approved gay marriage in late 2013 with an effective date in 2014 and former Governor Quinn signed the bill. This made Illinois the 16th state to allow same-sex unions. Since the law took effect in June 2014, more than 10,400 same-sex couples have married in Illinois. Cook County Clerk David Orr says more than 7,500 marriage licenses have been issued in the Chicago area. The SCOTUS ruling effectively closes the door on any possibility our Legislature or Courts could one day reverse the law under a conservative regime.

The Rights Married Gay Couples Have In Illinois Will Travel With Them To Other States; The Rights Gay Couples Have From Marriages In Other States Will Follow Them Here

Prior to the U.S. Supreme Court decision, Illinois couples could still have faced issues in the remaining states which had bans on gay marriage. When relocating, a gay spouse could be denied workers’ compensation benefits deriving from their relationship. Now, it appears such concerns are gone and not coming back. One of the two parts of the U.S. Supreme Court’s decision specifically dealt with the cross-border issue, finding same-sex marriages “legal” in any state must be recognized by all states.

The other part of the SCOTUS ruling declared gay marriage bans in four states, Kentucky, Michigan, Ohio and Tennessee were unconstitutional, effectively making same-sex marriage fully legal throughout the United States. A gay marriage from any state is going to have to be accepted by the IL Workers’ Compensation Commission and the IL reviewing courts.

No One Knows What To Do With Civil Unions—Our Advice to Gay Couples is Keep It Simple and Get Married

Illinois created civil unions in 2011 as a precursor to gay marriage. The law on civil unions makes the partners in a civil union “spouses.” We are not sure if the surviving spouse in a civil union has to be legally treated as a widow or widower—we think so but it is hard to be certain. See this link from the Illinois Department of Insurance: http://insurance.illinois.gov/General/civilunions.asp We don’t know if the SCOTUS ruling is going to make civil unions a nationally protected legal status. We assume other states may or may not fight that issue and suggest marriage is the simplest way to clarify any concerns moving forward as we are sure the SCOTUS ruling protects marriage and leaves “civil unions” in limbo.

How Does Gay Marriage “Translate” Into IL WC Rights and Benefits?

Well, our research indicates the word ‘spouse’ is mentioned in the IL WC Act on five occasions. Gay couples married in Illinois or any state are now legally ‘spouses.’ Basically, the AWW, TTD and PPD rate calculations are impacted by marital status—if you aren’t sure how, please send a reply. A spouse who remarries can have death benefits cut to a lump sum payment of two years in the right circumstances. Other than those legal facets of the term, WC benefits are not dramatically changed.

The words ‘widow’ or ‘widower’ appear in the IL WC Act on 30 occasions. The surviving spouse of a gay marriage is now legally a ‘widow’ or ‘widower.’ The words widow/widower only appear in Section 7 of the Act which provides for death benefits due to work-related injuries or illnesses. The defense team at KCB&A unequivocally asserts it is our reasoned legal opinion gay couples who tragically lose a partner due to a work-related accident or illness will have the same rights and benefits as all couples moving forward. For claims handlers who aren’t fully aware of how to investigate, document and properly pay death benefits under Section 7, we recommend you contact our KCB&A defense team at no charge and we can greatly simplify all aspects of it. Please remember death benefits in Illinois can cost an employer or insurance carrier/TPA up to $1,770,327.00 right now—please note the numbers are going to go up this week and on July 15. On July 20, 2015, our law partner Shawn R. Biery, JD, MSCC will have a new updated IL WC rate sheet for our readers to document the expected benefit increases. Send Shawn an email if you want his new IL WC rate sheet when ready. Our point is for a widow or widower, gay or straight, you don’t want to get IL WC death benefits wrong, as there is too much at stake.

How Does Gay Marriage Affect WC Benefits in KCB&A’s Other Covered States/Offices in Indiana, Wisconsin, Iowa or Michigan?

If you have questions about WC benefits in Hoosier-land or Indiana, contact Kevin Boyle kboyle@keefe-law.com or Pankhuri Parti pparti@keefe-law.com. For issues in Cheeseland, ooops, we mean Wisconsin, contact Jim Egan at jegan@keefe-law.com or Matt Ignoffo at mignoffo@keefe-law.com. For Iowa claims and benefits, contact Dan Boddicker at dboddicker@keefe-law.com. For Michigan WC claims, contact Ellen Keefe-Garner at emkeefe@keefe-law.com. Or just send a reply.

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

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Synopsis: IL WC Appellate Court Rules Accrued PPD Benefits Are Due To An Injured Worker’s Estate. Thoughts and analysis by John A. Karis, J.D.

Editor’s comment: In Bell v. IWCC (issued May 1, 2015) our Workers’ Compensation Division of the Appellate Court of Illinois reversed the IWCC and sent a claim back for a calculation of PPD and an award due to the estate of an injured worker. The majority ruling explained the basis for allowing Claimant's estate to seek and obtain permanent partial disability (PPD) benefits accrued and would have been arguably due to Claimant-decedent prior to her death.

Quick Thoughts From Your Editor:

·         We are glad to see the Appellate Court, WC Division concedes the IL WC Act mandates IL PPD benefits “accrue” on a weekly basis—we note our activist reviewing courts don’t seem to follow that simple rule in

o   Greene Welding and Hardware v. IWCC where they changed traditional views of the IL WC Act to find amputation benefits magically, completely and instantaneously accrue in the minute where the employer or insurance carrier/TPA learns of bone loss—from an academic perspective, we don’t agree that is what the IL WC Act says;

o   We have no idea what weekly “accrual” of PPD means in the IL Supreme Court decision in Beelman Trucking v. IWCC where an injured employee is now allowed to get lifetime weekly statutory total and permanent disability benefits along with “doubled” weekly PPD benefits arising under Sections 8c, 8d or 8e at the same time. We assert the legislature intended lifetime benefits to be the sum of what an IL employer owes.

·         We also feel the outcome of this ruling is anti-business and agree with our great and now-deceased Arbitrator Neva Neal-Mundstock and the solid appellate ruling from the IWCC panel. What possible reason is there for permanent partial disability benefits to be paid to folks that aren’t married to, children of or in any way dependent on decedent? Why do accrued PPD benefits have to be paid to distant relatives or legatees eight years after the accident and a half-decade after the passing of the injured worker? It again feels like Illinois business always has to lose money by paying unneeded benefits in the WC system in this state. With respect to the august members of our Appellate Court, WC Division—they may be signaling to our legislature the need to change the IL WC Act and modify the statutory language to have it make more sense.

There is no question Claimant Nash filed an Application for Adjustment of Claim under the IL WC Act, seeking benefits for a fall-down injury sustained while working for Respondent. Prior to the arbitration hearing, Claimant Nash died of causes unrelated to her work accident. Ms. Nash’s sister and the administrator of her estate filed an amended Application, substituting Claimant Bell as the new party-petitioner. The new Claimant sought recovery of the PPD benefits accrued from the date Ms. Nash reached MMI until her death on August 19, 2010. The employer disputed Claimant’s right to recover such benefits, arguing any PPD benefits to which Claimant would have been entitled abated upon her death.

We are wholly unsure why the issue of accidental injury was stipulated to at hearing, as the burden of proof would have been on the new Claimant to prove an injury to decedent. This would have brought various evidentiary challenges which might have resulted in a compromise settlement. It is also difficult to understand how this simple fall-down claim would merit six years of litigation, at what will now be the fifth level of hearing or appeal—the defense legal fees might exceed the overall exposure.

After conducting the hearing, Arbitrator Neal awarded temporary total disability (TTD) benefits and medical expenses and found Claimant sustained permanent partial disability from her work injury. However, the arbitrator ruled any PPD benefits which accrued prior to the passing of decedent’s death abated with her death and declined to award any such PPD benefits to her estate. Arbitrator Neal noted the IL WC Act “allows dependents to recover from the economic loss caused by [Claimant’s] injury,” and concluded “[a]llowing [Ms. Nash’s] estate to collect permanency benefits, where she had no dependents, really serves no purpose.”

Claimant appealed Arbitrator Neal’s decision to the Illinois Workers’ Compensation Commission. The Commission unanimously affirmed and adopted her decision. Claimant then sought judicial review of the Commission’s decision in the Circuit Court of Coles County, which confirmed the Commission’s ruling.

This issue presented on appeal is whether the estate of an unmarried Claimant who dies without leaving any dependents may recover PPD benefits accrued prior to the employee’s death, or, alternatively, whether any claim to such benefits abates with the injured worker’s death.

The Appellate Court indicated the IL WC Commission erred in their interpretation of Section 8(e)(19) and Section 8(h). The Appellate Court noted these provisions merely establish to whom benefits will be paid if the employee dies with a spouse or dependents before they have been fully compensated for the work-related injury. The statute does not limit the ability of a deceased employee’s estate to collect accrued, unpaid benefits were due and owed to the employee while he/she was alive. Neither provision addresses what happens when an employee dies without leaving a surviving spouse or any surviving dependents, as in this case. Accordingly, neither provision should be read as barring an employee’s estate to collect accrued PPD benefits under such circumstances.

In our opinion the Appellate Court set the precedent to allow Claimant’s estate to inherit accrued PPD benefits owed. They sent the matter back to the IWCC to determine the amount due to the estate.

This article was researched and written by John Karis, J.D. You can reach John at jkaris@keefe-law.com. We appreciate thoughts/comments. Post them on our award-winning blog.

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Synopsis: What We HATE about IL State Gov’t, the City of Chicago and Some Local Gov’t Units—Unlike Private Sector Employers, Some Gov’ts Pay Endless TTD but Don’t Accommodate Injured Workers Into Open Positions.

Editor’s comment: We saw a recent headline where the federal EEOC took $1 Million from United Airlines to settle a disabled-workers suit. In 2013, the Supreme Court refused to reconsider a 7th U.S. Circuit Court of Appeals ruling in EEOC v. United Airlines Inc., which held reasonable accommodations under the Americans with Disabilities Act requires U.S. employers to reassign employees to vacant positions when the employee cannot be accommodated in his/her current position. The EEOC charged by requiring employees with disabilities to compete for vacant positions for which they were qualified, the company's practice frequently prevented disabled workers from continuing employment with the airline.

The EEOC said in a statement the airline will pay $1 million to a small class of former United employees with disabilities and make changes nationally, under a consent decree. United Airlines will revise its ADA reassignment policy, train employees with supervisory or human resource responsibilities regarding the policy changes, and provide reports to the EEOC regarding disabled employees who were denied a position as part of the ADA reassignment process, the EEOC said.

While many cost-conscious Illinois cities, school districts and others will follow this rule, we assure you IL State Government, the City of Chicago and some local governments continue to refuse to do so. The reason very few folks beef about it is the workers keep getting paid by taxpayers with TTD, TPD or generous disability pay for months and years. In some cases, workers are provided “odd lot” total and permanent disability benefits for life despite the unquestioned fact the workers could be placed, like UAL now has to place such workers, in other open positions.

What is sauce for the goose ought to be sauce for the gander—we ask the EEOC to stop attacking private industry while giving a pass to the public sector. You may note the State of IL and City of Chicago, along with the CTA and Chicago Public Schools have combined debt of over $150B. One of the reasons for that high debt is the endless payment to former workers who no longer work for taxpayers when they could be put to available work and save billions.

Does or Should this Ruling End Fake Police/Firefighter Pensions?

In Illinois, a police officer/firefighter only has to demonstrate they are restricted from their police or fire job to be entitled to a lifetime pension. In rulings like the 2014 Appellate decision in Pedersen, et. als. v. Village of Hoffman Estates, the municipality owes lifetime line of duty disability pension benefits and lifetime family medical coverage for a man with moderate hearing loss due to an accidental siren which caused hearing loss. We assure our readers Plaintiff Pedersen isn’t deaf; he needs hearing aids to function normally. With respect to him and agreeing he has a disability requiring accommodation, we don’t consider that a life-disabling and catastrophic condition. This man can and should be working somewhere where hearing aids could allow him to safely be a building inspector or perform another available municipal job. If you go to the Village of Hoffman Estates website, you will note this year they filled Administrative Staff Assistant and Front Desk Customer Service Rep positions—Mr. Pedersen can safely do such jobs with hearing aids.

Hundreds of “not-so-disabled” police and firefighters across our state could be brought back to other available municipal jobs, as this EEOC ruling and settlement dramatically requires. If that happens, workers like Mr. Pedersen and others would not be put on our dole to receive lifetime line-of-duty disability pensions with taxpayer-funded family healthcare benefits which cost IL taxpayers billions. Current workers already on line-of-duty disability pensions should be taken off the fake pensions and returned to other available work. They can and should do lots of other available municipal jobs with reasonable accommodation. Trust us, the police officers and firefighters getting the pensions aren’t going to complain when they are getting thousands of our tax dollars without having to work—someone has to complain about it for taxpayers. We truly feel the General Assembly should investigate, hold hearings and consider legislation over this issue.

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