10-5-2015: IL State Budget Battle Starting to Squeeze IWCC-Can Efficiency Follow?; Does Your Company Need An Active Shooter Protocol?; Chris Hemenway is our Newest IL Arbitrator and more

Synopsis: IL State Budget Battle Starting to Secretly Squeeze the IL Workers’ Comp Commission—Can Efficiency in Government Follow?

Editor’s comment: We received gossip/random news indicating the IWCC no longer has the money needed to snail-mail decisions and the attorneys on both sides are being called and advised to come pick up Arbitration and Commission rulings. We are further being advised the IWCC staff will only let licensed attorneys pick up and sign for their rulings. There is also the possibility the IWCC will stop pick-ups of decisions and move to do this electronically with emails of all IWCC notices/rulings/orders to the parties. We can foresee a day where the initial Application is filed electronically and the “docket sheets” become electronic spreadsheets or real-time websites. How about emailing draft settlement contracts to the Arbitrators/Commissioners and having them email approved contracts back to both sides asap? From the perspective of the defense team at KCB&A, the sooner the whole place goes electronic, the better.

The source of this change is a rumor the WC Commission may be short on cash and literally can’t pay for postage. We find that interesting to report, as the IWCC is funded by a dedicated fund called the IL WC Workers’ Comp Commission Operations Fund or OPS. The statutory basis for this fund is 820 ILCS 305/4d; 215 ILCS 5/416. The Commission’s Operations Fund (OPS) was created by the secret-powers-that-be-who-run-the-Commission in 2003 to pay for most of the administrative costs of the Commission. In so doing, Illinois was the 46th state to create a source of funds outside State government general revenue for our workers’ compensation agency.

According to the 2014 IWCC Annual Report, OPS revenues come from two sources. The Department of Insurance (DOI) collects a 1.01% surcharge on workers’ compensation insurance premiums paid by Illinois business. In FY14, DOI transferred $26.2 million of these levies to the Commission. The IL WC Commission also assesses self-insured employers 0.0075% of your total Illinois payroll. In FY14, the Commission collected $2.5 million. If you are doing the math, that is $28.7M collected last year for use in running the IWCC and paying a payroll of about 156 employees. You may note there are no funds paid to run the IWCC that come from IL Labor.

So how does the IWCC run out of money for postage? Your guess is as good as ours—the only thing that might make any sense are IL State government fund “sweeps” where our leaders in Springfield secretly take or “borrow” money earmarked for something else and spend it on whatever they want. Sometimes they pay it back but most times who knows? Either way, we assume all aspects of Illinois state government are a financial mess with the continuing face-off between Governor Rauner and Speaker Madigan raging on and on.

We have written about IWCC efficiency in the past and may continue to write about it in the future. WC claims in this state continue to drop and drop. The IWCC’s 2014 Annual Report indicates there were 50,834 new filings in year 2010; last year there were only 43,732. If you do quick math, that is a 14% drop in five years. Everything in IL WC is trending towards less and less claims but we aren’t seeing a concomitant change in the Commission itself. If anything, we feel the IWCC continues to grow and grow.

On other efficiency issues,

·         We still don’t know why the IWCC continues to fund satellite offices where the staffers do little other than print copies of IWCC forms that are continuously available online. We don’t know another reason, other than politics/patronage, to keep these offices open.

·         Someday, someone as smart as Jay Shattuck, Todd Maisch or another IWCC guru will note most of the expensive and unique funds run by the IWCC are a total waste of Illinois business’ money. We urge these funds be fully re-evaluated and/or scrapped—there isn’t a single businessperson in this entire state that knows what most of the money is spent on and they certainly don’t view these multi-million dollar expenditures as favorable to them.

·         For one example, the outdated and comical Illinois Second Injury Fund was implicitly “replaced” when ADA was passed 25 years ago but the significant levy on Illinois business remains. The 2014 Annual Report of the IWCC indicates only 78 Illinois citizens in a state of over 8M people are receiving any money from this arcane and almost secret fund. If you want other examples of dysfunctional IWCC funds, send a reply.

·         Finally, the IWCC Chairman in 2003 convinced our General Assembly and Governor that to make WC rulings faster, we needed to add three more Commissioners. Starting in 2005, Illinois now has nine of them. We assure our readers the speed of resolution of claims didn’t change at all. Each Commissioner has two well-paid assistants that are lawyers. That makes 27 full-time lawyers on the administrative appeal level. If all 27 of these lawyers each decided a single contested claim each week, they would have nothing to do in about ninety days. If we had three Commissioners with 2 lawyer-assistants, our math indicates they would each have to decide less than ten contested claims a month—we don’t consider that an onerous level of work.

As we have said many times in the past, Illinois’ state government core process fault is spending billions of taxpayer dollars to promote political loyalty via politics and patronage. If that is the goal of the IWCC, then so be it. If the goal of the IWCC is efficient and effective resolution of the claims filed before it, let’s take a hard look at how to save money to include getting rid of thousands of old-fashioned envelopes and stamps and moving to email and real-time websites.

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

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Synopsis: Does Your Company/Government Body/School/Church Need an Active Shooter Protocol?

Editor’s comment: We were asked this question after the tragedy in Oregon and wanted to give you our best thoughts. We feel your best online source is the Department of Homeland Security website. Most of this information below is taken directly from that website, basically because it is brilliantly thought out. We are forwarding for your convenience. We are happy to consult or assist our readers in any way with regard to training and preparedness.

Active Shooter Preparedness

The Department of Homeland Security (DHS) aims to enhance preparedness through a ”whole community” approach by providing training, products, and resources to a broad range of stakeholders on issues such as active shooter awareness, incident response, and workplace violence. In many cases, there is no pattern or method to the selection of victims by an active shooter, and these situations are by their very nature are unpredictable and evolve quickly. DHS offers free courses, materials, and workshops to better prepare you to deal with an active shooter situation and to raise awareness of behaviors that represent pre-incident indicators and characteristics of active shooters.

Active Shooter Resources for Law Enforcement and Trainers

• The National Summit on Multiple Casualty Shootings was a joint effort of the FLETC, the Department of Justice’s Office of Community Oriented Policing Services, and the Johns Hopkins University. Subject matter experts from a wide range of disciplines, such as law enforcement, health care, law, social sciences, education, and academia came together in December 2012 to advance the national dialogue on preventing multiple casualty violence. The Report on the National Summit on Multiple Casualty Shootings contains eight recommendations, all centered on the need to create a strategic approach to information sharing in the prevention of multiple casualty violence. A follow-up summit occurred in April 2013 and a report on that event is forthcoming.
• Progress Report on the President’s Executive Actions to Help Reduce Gun Violence: The Obama Administration released a progress report detailing the completion of our significant progress on 21 of the 23 executive actions President Obama laid out in January to help reduce gun violence, including fact sheets and guides to help develop high-quality emergency operations plans for K-12 schools, institutions of higher education and houses of worship.
• The Countering Violent Extremism (CVE) and Active Shooter Web Portal: The Department of Homeland Security (DHS), in partnership with the Federal Bureau of Investigation (FBI), has launched a Countering Violent Extremism and Active Shooter (CVE-AS) Web Portal on the Homeland Security Information Network (HSIN). The purpose is to provide videos and training resources, as well as a document library with information and resources, covering numerous CVE and AS topics. It provides a forum for the exchange of Unclassified FOUO, SBU, and LES information to sworn, full-time, law enforcement officers (federal, state, or local); federal employees affiliated with the criminal justice system or intelligence communities; military personnel; and government agencies associated with infrastructure protection of the United States. The CVE-AS Web Portal also shares Unclassified FOUO or SBU information with private sector partners, civilian security personnel, corporate executives, educational institutions/academia, international partners, community leaders, and other state and local partners, as appropriate. In addition, the portal includes information on outreach initiatives and subject matter experts; and forums to provide feedback, share products, and ask questions.

Active Shooter Training Provided by the Federal Law Enforcement Training Centers (FLETC)

·         The Active Shooter Threat Training Program (ASTTP) is a 24-hour instructor-led training program designed to instill within students the knowledge, skills, abilities, and mindset necessary to successfully respond to an active threat event. This program utilizes dynamic interactive drills and scenario-based training to develop necessary proficiency. It covers tactical subject matters such as individual and team movements and operational formations, and focuses on the roles and responsibilities of responding officers. Upon successful completion of the program, each student receives a certificate of training. 

·         The Active Shooter Threat Instructor Training Program (ASTITP) is a 40-hour instructor-led training program designed to prepare students to serve as instructors or field training officers in the specialized area of active shooter threat response. In addition to covering tactical subject matters such as individual and team movements and operational formations, this program addresses the role of the instructor or field training officer by focusing on instructional methodologies, adult learning, scenario development, evaluation skills, and documentation requirements. Upon successful completion of the program, each student receives a certificate of training and is officially recognized as an Active Shooter Threat Training Instructor.

·         The Law Enforcement First Responder Training Program (LEFRTP) is a 24-hour classroom-based training program designed to help build critical skills that law enforcement officers acting as first responders need to effectively respond to mass consequence events, including criminal acts, terrorist attacks, and other large-scale emergencies. The program provides training, guidelines, and resources to address issues such as using a system of command to achieve a coordinated and effective incident response. The practical application of sound response principles is a main theme of this training program. Upon successful completion, each student receives a certificate of training.

Active Shooter: What You Can Do

DHS has developed an independent study course entitled Active Shooter: What You Can Do. This course was developed to provide the public with guidance on how to prepare for and respond to active shooter crisis situations. Upon completion of Active Shooter: What You Can Do, employees and managers will be able to:

• Describe the actions to take when confronted with an active shooter and to assist responding law enforcement officials;
• Recognize potential workplace violence indicators;
• Describe actions to take to prevent and prepare for potential active shooter incidents; and
• Describe how to manage the consequences of an active shooter incident.

The online training is available through the Federal Emergency Management Agency Emergency Management Institute and additional training for law enforcement is available at Federal Emergency Management Agency Law Enforcement Active Shooter Emergency Response.

Active Shooter Webinar; Continuously Available Online

A 90-minute Webinar can help the private and public sector understand the importance of developing an emergency response plan and the need to train employees on how to respond if confronted with an active shooter. The presentation describes the three types of active shooters--workplace/school, criminal, and ideological--and how their planning cycles and behaviors differ. This webinar is free and continuously available on a 24/7/365 basis.

Active Shooter Workshop Series

Active Shooter workshops have already taken place in a number of U.S. cities and will continue to be held in a number of locations in the future. These scenario-based workshops feature facilitated discussions to engage private sector professionals and law enforcement representatives from Federal, State, and local agencies to learn how to prepare for, and respond to, an active shooter situation. Through the course of the exercise, participants evaluate current response concepts, plans, and capabilities for coordinated responses toactive shooter incidents.

If you are interested in future workshops, please contact ASworkshop@hq.dhs.gov.

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

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Synopsis: Governor Rauner Appoints Christina Hemenway as our newest IL WC Arbitrator.

Editor’s comment: While the news still hasn’t made the IWCC website, reliable sources indicate Illinois Gov. Bruce Rauner appointed a Lincoln claims manager as an Arbitrator at the Workers' Compensation Commission. Christina Hemenway has been an attorney specializing in workers' comp for 20 years, the Governor's office said in a press release. She worked for Country Financial Insurance as a workers’ compensation claims manager where she managed major catastrophic claims and employer liability and coverage lawsuits.

In addition, she was a subject matter expert for the company.

Ms. Hemenway is a member of the Illinois Chamber of Commerce’s Workers’ Compensation Committee, the Property Casualty Insurers’ Workers’ Compensation and Medicare Committees, and is a member of the Illinois Advisory Committee for the Workers Compensation Research Institute. Ms. Hemenway is a graduate of Missouri State University and earned her law degree from the University of Missouri. She lives in Lincoln, IL. Chris Hemenway launched a private practice in Peoria after graduating from law school. She said she was hired by County Financial in 1995 as a litigation attorney with the task of creating a workers' compensation division.

We consider Ms. Hemenway one of the sharpest and most knowledgeable members of the IWCC staff. We are confident she will use her encyclopedic knowledge of the IL WC Act and Rules to insure injured workers are taken care of properly under the law.

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Synopsis: A short note for IN WC Claims Handers From Kevin Boyle, our IN defense team leader.

Editor’s comment: Effective July 1, 2015, Indiana’s mileage reimbursement rates changed. The prior mileage rate from May 1, 2011 to June 30, 2015 was .44. It’s now .40 as of July 1, 2015.

If you have questions or concerns about handling an IN WC claim at any time, email Kevin for answers at kboyle@keefe-law.com.

9-28-15; The "Opposite"--Can Illinois Start To Make Sense of How We Spend Taxpayer’s Money?; Kevin Boyle, JD Analyzes IN Workplace Facility Accidents; New Mileage Rate for IN WC Claims and more

Synopsis: The “Opposite”--Can Illinois Start To Make Sense of How We Spend Taxpayer’s Money?

Editor’s comment: Reading the decision below, we recalled the episode for the Seinfeld series where George Costanza’s character was convinced "if every instinct you have is wrong, then the opposite would have to be right". George then resolves to start doing the complete opposite of what he would do normally. We assure our readers it is our impression just about everything occurring in IL politics and some local governments needs to consider this mantra and “do the opposite.”

In Village of Vernon Hills v. Heelan, No. 118170, issued 09/24/2015, Claimant Heelan was a 20-year veteran of the Vernon Hills Police Department. He is a young 48-years-old today. He slipped and fell on a patch of ice while responding to a "panic alarm" call. The fall caused a labral tear in his right hip. Claimant Heelan filed a claim for workers' compensation benefits and he underwent an independent medical evaluation with a noted examiner, Dr. Jay Levin. Dr. Levin opined Heelan's fall aggravated his preexisting right hip osteoarthritis. The Village continued to pay Heelan full salary for a year after his fall pursuant to the Public Employee Disability Act. Heelan underwent a right hip replacement in April 2010 and returned to work in a light-duty capacity. However, he then made the claim the left-hip-is-connected-to-the-right-hip. He got bilateral hip replacements.

The record indicates he did not return to work after this second surgery. It appears no effort was made to try to find him work as a police officer. He then got a workers’ comp settlement of $149K that we feel is a “going-away” present, when Claimant shouldn’t be going away. We will return to this later.

Shortly after the second hip replacement surgery, in December 2010, Heelan filed an application for a line-of-duty disability pension. The Board of Trustees of the Vernon Hills Police Pension Fund granted him a line-of-duty disability pension in August 2011. The Village then filed a complaint seeking a declaration the Public Safety Employee Benefits Act did not obligate it to pay the health insurance premiums for Heelan, his wife and his two children. Under Section 10 of the Act, injured law enforcement officers and firefighters, and their families, are entitled to have their municipality and its taxpayers pay their health insurance premiums if the worker has suffered a "catastrophic injury" in the line of duty while responding to what was "reasonably believed to be an emergency."

The Circuit Court ruled in favor of Heelan on this issue, and a divided Appellate Court panel upheld the judge's decision. Obviously someone at the Village of Vernon Hills didn’t like this outcome and they took it to the IL Supreme Court. Oops.

Last week, the Illinois Supreme Court ruled the pension board’s award of a line-of-duty disability pension established the public safety employee suffered a “catastrophic injury” as required by Section 10. Accordingly, our highest court said former officer Heelan’s award of a line-of-duty disability pension established he suffered a “catastrophic injury” as a matter of law. The Supreme Court  went on to reject the idea the Village was denied due process because it never had an opportunity to litigate the question of whether Heelan's injury was catastrophic, saying "there is nothing to litigate" as the legislative enactment of Section 10 itself afforded "all of the process that it was due." To read the Supreme Court decision, click here. We want our readers to assume the Village of Vernon Hills wasted about $50-100K in legal fees getting unanimously turned down by the Court on literally every argument.

For those of you who aren’t hip to this situation and need translating by our knowledgeable defense team—what our highest court is saying is a police officer or firefighter injured in the line of duty has to demonstrate they can no longer work as a police officer or firefighter. When that is present, they are entitled to a lifetime line-of-duty disability pension paid for by local taxpayers. There is no “buy-in” period, these expensive lifetime benefits can be awarded for an injury on day one of public safety work. Part two for this concept is if the police officer or firefighter can demonstrate the injury occurred “during pursuit of an emergency,” we not only owe them lifetime unfunded pension benefits, we also owe their entire family taxpayer-paid health-care benefits. The combined cost for former police officer Heelan is well into the millions—he is only 48 years young. We are now seeing many firefighters and police officers who hear a “bang” or a ‘boom” at work and then need hearing aids consider applying for such largesse, as they are all arguing a hearing aid disqualifies them from public safety work. What? Say again?

Did the Supreme Court Get This Ruling Right?

Well, all Supreme Court rulings are “right” by definition. With the greatest legal and professional respect, we have one major problem with literally everything about how the parties, the Circuit Court judge, the three-member Appellate panel and the unanimous seven-member Supreme Court team dealt with these facts. Our problem is this claim isn’t simply a state claim, as it appears everyone on all sides of the bench appeared to handle it. Illinois hasn’t seceded from the United States. We remain fairly sure Federal law applies to all cases that appear in our state courts.

Just over 25 years back, on July 26, 1990, President George H.W. Bush signed the Americans with Disabilities Act. When he did so, our nation committed itself to eliminating discrimination against people with disabilities, like this claimant. Again, by definition former officer Heelan is a man who clearly has a disability—by federal law, he is entitled to reasonable accommodation. The record is devoid of any mention of anyone trying in any way to reasonably accommodate Claimant Heelan’s disability; it is almost as if the federal law vanished from our state and its judiciary in this claim.

What many folks in our nutty state are doing is to ignore or forget that simple principle for local, regional and state governments. Why don’t police and firefighters file EEOC beefs and demand reasonable accommodation and a job?—you guessed it, they get gigantic fake or unfunded government pensions and family health care coverage paid for by you and me and our kids and their kids. Why would you ask for accommodation to return to work when you make the same dough sitting home watching TV or hanging out on a beach? Please also note lots of former police officers and firefighter with such deals also get jobs and make significant bucks on top of their pensions—remember, they only have to show they are disabled from police and firefighting work, right?

What Are We Talking About—This is a Police Officer with Artificial Hips??

Well, listen to this folks. Right now, as you read this, the Village of Vernon Hills has a well-paid police job open with great benefits. It is ready and waiting for Claimant Heelan to sit down and start working. He can and should take the job, get off the dole and be earning his keep with appropriate accommodation like lots of other disabled and hard-working folks all across our country. He is fully qualified and they could put him in this job today, right now. The job description below is copied and pasted from the Village of Vernon Hills website:

Telecommunicator

DUTIES: The Vernon Hills Police Department Telecommunications Center provides both police and fire dispatch services. Police dispatch services are coordinated by the Vernon Hills Police Department, which provides services for the Villages of Libertyville, Lincolnshire, and Vernon Hills, as well as the monitoring, receipt and transmission of emergency and non-emergency police messages. In addition, the position involves the monitoring and operating of electronic building security systems; providing general information to the public; and the performance of incidental clerical duties.

This position involves a high level of communication during emergency and non- emergency situations which require the ability to communicate effectively and to employ selective attention in an environment with a variety of distractions. In addition, the individual must possess the ability to perform job duties in a confidential manner.  Click here for a full job description.

REQUIREMENTS: The following requirements must be met:

Graduation from high school or GED; Minimum of one to three year’s experience in public safety dispatch required; Accurate typing ability (minimum 30 words per minute; Possess the ability to perform multiple tasks simultaneously and conduct themselves accordingly under stressful situations; Successful completion of a twelve-month probationary period.

SALARY & BENEFITS (Effective 5/1/15)  $52,709 - $71,310

Take a look at www.blueline.com. Click on any link. Similar jobs are posted online all across the northern half of our state right now, including

•      DeKalb County, IL

•      Lincolnwood, IL

•      Lincolnway Public Safety Communications Center (Frankfort, IL)

•      Itasca, IL

•      DU-COMM (Glendale Heights, IL)

•      Tri-Com Central Dispatch (St. Charles, IL)

These jobs open all the time. While working as a telecommunicator, if former officer Heelan needs to get up and walk around, they have headsets to allow him to do so and keep on the job. We are sure there are other local jobs this man can be trained for and then offered, with appropriate accommodation.

We also hope the EEOC and Illinois Dep’t of Human Rights gets their cumulative heads out of the sand and start to get involved in this secret scandal and do something to have this happen, moving forward.

Let’s Do The Opposite, Illinois!

Starting today, we hope all of our readers and anyone who knows anyone at a local government with police and firefighters to take this message to heart—we need to do “The Opposite” and start to get our unfortunately injured public safety officers back to work, earning a living and off our dime. If they truly are catastrophically injured and can do no work of any kind, well, let’s dig deep and take care of them. But if we have telecommunications or other available medium/light work they can do and gosh knows there is medium and light work at the local government level, let’s put them back to work as ADA requires.

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

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Synopsis: Indiana Department of Labor Issues 2014 Workplace Fatality Statistics. Comments from Kevin Boyle, J.D.

Editor’s comment: Last week, the Indiana Department of Labor (IDOL) released its annual preliminary Census of Fatal Occupational Injuries (CFOI) report for 2014. The IDOL reported 127 worker deaths in 2014.  That number was unchanged from 2013.

“The Indiana Department of Labor remains committed to promoting safe workplaces for all Hoosiers through its multifaceted approach of outreach, training, safety consultations, recognition for exemplary occupational safety and health management systems and a robust enforcement program,” said IDOL Commissioner Rick J. Ruble. “We strive to help Indiana employers improve their safety and health practices to adopt a culture of workplace safety and health excellence.”

Nationally, there were 4,679 report fatalities in 2014, up 2 percent from 4,585 fatalities reported in 2013. The 2014 national number was the highest since 2011. However, the fatal injuries per 100,000 full time equivalent workers remained the same from 2013 to 2014, at 3.3 fatal injuries per 100,000 workers.   --http://www.bls.gov/iif/oshcfoi1.htm#charts

In Indiana, the 2014 report confirmed that worker fatalities have continued to decrease over the past 22 years from a high of 195 in 1994 to a record low of 115 in 2012. Although the number of fatal injuries has not changed from last year’s final total, 2014’s 127 ties 2013 and 2007 for the fourth-lowest number of workplace fatalities on record.

Key statistics from the 2014 CFOI report include:

• 127 Hoosier workplace fatalities were reported in 2014.

• 52 of the workplace fatalities resulted from transportation-related incidents of which more than half (30) were attributed to roadway incidents involving motorized vehicles.

• The agriculture, forestry, fishing and hunting industry experienced more transportation-related fatalities than any other industry (13). 

• Workplace fatalities in Indiana’s transportation and warehousing industry decreased by approximately 12 percent, from 59 in 2013 to 52 in 2014. 

The preliminary review of 2014 workplace fatalities shows the primary cause of worker fatalities in Indiana was vehicle crashes. This is consistent with prior years’ reports. In 2014, the IDOL partnered with the Indiana Department of Transportation, Bureau of Motor Vehicles, Indiana State Police and the Criminal Justice Institute to launch the DRIVE NOW outreach campaign and social media contest. The DRIVE NOW campaign was initiated to educate motorists on the dangers of texting while driving.

If you are concerned about having a process in place if your workforce suffers a workplace fatality, we have a presentation we are happy to send without charge for your review and use. Simply send a reply to Kevin Boyle at kboyle@keefe-law.com

Worker's Compensation Board of Indiana

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Synopsis: A short note for IN WC Claims Handers From Kevin Boyle.

Editor’s comment: Effective July 1, 2015, Indiana’s mileage reimbursement rates changed. The prior mileage rate from May 1, 2011 to June 30, 2015 was .44. It’s now .40 as of July 1, 2015.

If you have questions or concerns about handling an IN WC claim at any time, email Kevin for answers at kboyle@keefe-law.com.

9-21-2015; Don't Follow the "Herd" in IL WC Voc Rehab; Lindsay Vanderford JD on Important New NLRB Ruling; Matt Gorski Analyzes WC Drug Formularies and much more

Synopsis: Please Don’t Follow the “Herd” Mentality In IL Work Comp and Voc Rehab.

Editor’s comment: The social psych concept of “herd” mentality has been studied for years. Herd mentality and herd behavior have been prevalent descriptors for human behavior since people began to form tribes, migrate in groups, and perform cooperative marketing and agricultural functions. Herd behavior in human societies has also been studied by Sigmund Freud and other noted scientists.

What the attorneys at KCB&A feel is happening in the area of voc rehab in our state is akin to herd mentality. We have seen several major WC Plaintiff-Petitioner lawyers who are pressing to make the choice of a certified voc rehab counselor for an injured worker to be solely their selection but at your sole expense. You may then have to pay endless TTD/maintenance while their voc counselor doesn’t find claimant a job. And if you accept their selection, aren’t you implicitly agreeing to pay them for the rest of this century? How do you stop the voc counselor opposing counsel selects, if the CRC does a rotten job? What rhymes with skyrocketing IL WC costs?

We consider this position from the other side to be unusual to say the least. We point out the IL WC Act and Rules have been in place for over 100 years and prior to this last three-five years, very few IWCC or Appellate Court decisions address this new and unprecedented concept. No one made these claims five-ten or twenty years ago but now this new concept is coming from lots of different Plaintiff firms. We can’t confirm but we are fairly sure ITLA may have discussed this at a WC conference and the firms that attended are now pushing to get the “herd” to move in their ideal direction.

The reason we feel “herd” mentality is used by the Plaintiff-Petitioner bar is they aren’t communicating with our attorneys or our clients to tell them their personal legal position or interpretation. They are telling everyone “this is the law in this state and you have to follow it.” It is almost as if they are threatening “workers’ comp jail” if you don’t concede their version of the law. They are repeating it over and over, as if repeating it will turn it into the law. Some gullible adjusters and risk managers may listen to this repeated diatribe in IL work comp claims prior to retaining defense counsel and believe they have to follow the demands/commands of the other side. We urge everyone of our respected legal opinion you are being led astray in being asked to follow the herd in this instance.

Please also note our strong ethical opinion this concept puts a defense lawyer in a very poor position—we are being asked or actually demanded to hire an expert for the other side with our client’s money. If the expert we ask our client to pay for turns a moderate claim into a seven-figure claim, we can see how clients across the country might not only fire us, they may file ethical beefs asking we be sanctioned to do so.

Shawn Biery, one of our top legal scholars, points out the Rules Governing Practice don’t mandate employers or their insurance carriers/TPA’s have to hire Petitioner’s choice of voc counselor. Shawn wants our readers to remember, besides the Act, there are Rules Governing Practice. Here is the applicable voc rehab rule:

Section 7110.10Vocational Rehabilitation

A.   The employer or his representative, in consultation with the injured employee and, if represented, with his or her representative, shall prepare a written assessment of the course of medical care, and, if appropriate, rehabilitation required to return the injured worker to employment when it can be reasonably determined that the injured worker will, as a result of the injury, be unable to resume the regular duties in which engaged at the time of injury, or when the period of total incapacity for work exceeds 120 continuous days, whichever first occurs.

B.   The assessment shall address the necessity for a plan or program, which may include medical and vocational evaluation, modified or limited duty, and/or retraining, as necessary.

C.   At least every 4 months thereafter, provided the injured employee was and has remained totally incapacitated for work, or until the matter is terminated by order or award of the Commission or by written agreement of the parties approved by the Commission, the employer or his or her representative in consultation with the employee, and if represented, with his or her representative shall:

a.    if the most recent previous assessment concluded that no plan or program was then necessary, prepare a written review of the continued appropriateness of that conclusion; or

b.    if a plan or program had been developed, prepare a written review of the continued appropriateness of that plan or program, and make in writing any necessary modifications.

D.   A copy of each written assessment, plan or program, review and modification shall be provided to the employee and/or his or her representative at the time of preparation, and an additional copy shall be retained in the file of the employer and, if insured, in the file of the insurance carrier, to be made available for review by the Commission on its request until the matter is terminated by order or award of the Commission or by written agreement of the parties approved by the Commission.

E.   The rehabilitation plan shall be prepared on a form furnished by the Commission.

The Rule above is clear--how about the legislation? Having looked carefully, the IL WC Act says literally nothing about who gets to choose the CRC. It does say the Commission gets to “decide disputes” about voc, consistent with the Rules above and the sections of our IL WC Act cited below. In our view, the idea the employer shall pay for something doesn’t mean the employer cannot select it or question it in any way and has to allow the other side sole discretion to make the  selection, as we are being bluntly told.

To the extent our opponents are claiming they get to “choose” this consulting voc service as if it were medical care doesn’t mean there is a voc rehab “fee schedule” or voc IME’s or voc UR or anything else to limit it other than the Commission “deciding disputes,” as we reference above. We are sure our legislature hasn’t addressed control of voc counseling in years. It appears the defense side of the industry may have to start pushing to reform this concept if our Commission and reviewing courts follow the “herd” and upset the legislative scheme that has been in place for over a century.

We are sure the legal standard we, as representatives of Illinois employers have to reach is to show there is appropriate, typically restricted work within a reasonably stable labor market around claimant’s home. We don’t have to “find him/her a job” which is the main flaw we feel our competition and some Plaintiff-oriented adjusters read into the Act and Rules. We assure our clients, you can’t find someone a job, if they don’t want one.

We researched the IL WC Act on this topic and it says:

Section 6d: Application Filing Periods

(d) Every employer shall notify each injured employee who has been granted compensation under the provisions of Section 8 of this Act of his rights to rehabilitation services and advise him of the locations of available public rehabilitation centers and any other such services of which the employer has knowledge.

Section 8a

The employer shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto.

Vocational Rehabilitation Counselors Need Certification

Any vocational rehabilitation counselors who provide service under this Act shall have appropriate certifications which designate the counselor as qualified to render opinions relating to vocational rehabilitation.  Vocational rehabilitation may include, but is not limited to, counseling for job searches, supervising a job search program, and vocational retraining including education at an accredited learning institution.  The employee or employer may petition to the Commission to decide disputes relating to vocational rehabilitation and the Commission shall resolve any such dispute, including payment of the vocational rehabilitation program by the employer.

Maintenance; TPD

The maintenance benefit shall not be less than the temporary total disability rate determined for the employee. In addition, maintenance shall include costs and expenses incidental to the vocational rehabilitation program.

We agree these sections require the provision of voc rehab in an appropriate IL WC claim. We don’t see anything that says Petitioner’s counsel gets to select it as Respondent’s sole expense. We agree if our defense clients select the voc counselor, we are going to pay for it. We hope claims adjusters and risk managers stay out of the “herd” on this concept and ask KCB&A lawyers for our best defense advice on your biggest claims.

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

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Synopsis: If It Ain’t Broke, Redefine and Overbroaden It? The NLRB goes overboard in an attempt to protect temporary workers. Thoughts and Analysis by Lindsay R. Vanderford, JD.

Editor’s comment: On August 27, 2015, in a 3-2 decision involving Browning-Ferris Industries of California, the National Labor Relations Board refined its standard for determining joint-employer status. In the decision, the NLRB applied established principles to find that two or more entities are joint employers of a single workforce if 1) they are both employers within the meaning of the common law, and 2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board established it will—among other factors—consider whether an employer has exercised control over terms or conditions of employment directly through an intermediary, or whether it has reserved the authority to do so. Contract workers and other temporary employees will be able to more easily unionize following the landmark ruling.

The ruling from the National Labor Relations Board in Browning Ferris will ripple through the fast-food, construction, and other industries that rely heavily on contract workers and employees of franchisees. Previously, such companies were considered by law to be a step removed from many of their workers when certain labor disputes arose.

Companies increasingly have been turning to temporary contract workers, a business model that gives them more flexibility to add or shed workers as needed. The decision, which came in a 3(D)-2(R) vote on a single case before the board involving sanitation workers, is the latest to attempt to tackle the core question of who counts as an ‘employee’ in a modern economy that is increasingly reliant on shift work, contract workers, and other temporary employees. The board itself was starkly divided on the move, which revised its “joint employer” standard for determining when one company shares responsibility for employees hired by another.

The change alters a decades-old approach that previously said one business couldn’t be held liable for employment-related matters at another, unless they had direct control over the employees in question. That approach has meant companies could keep arm’s length contract workers supplied by staffing firms, and has allowed franchise arrangements to flourish. Under the revised standard, the NLRB will consider if a business exercises indirect control through an intermediary, or has reserved the right to do so. The Board noted it will consider this on a case-by-case basis.

“If this decision stands, the economic rationale for hiring a subcontractor vanishes,” said a senior legal counsel for the National Federation of Independent Business. “It will make it much harder for self-employed subcontractors to get jobs and of course it will drive up operating expenses for the companies that hire them.”

Browning Ferris discards the existing joint employer relationship that exists when two legally separate businesses are deemed jointly liable for employment-related claims. Under the ruling of Browning Ferris, the well-established legal standard is tossed aside in favor of one in which almost any economic or contractual relationship could be used to show joint employer status. The overwhelming effect will be increased cost of doing business across subcontracting, franchising, etc.

Normally, such a change in regulation would be subject to the administrative process wherein an administrative body is required to provide notice and allow affected parties to have an opportunity to comment on the proposed change. This process often results in a negotiated change favorable to both the administrative body and those it regulates. Instead it appears the NLRB is attempting to effectuate change through case law that refines the scope of the regulation and may be overcome only on appeal.

The Illinois Chamber of Commerce is working with supporters across the country against what it has termed a “misguided and unfair” regulation. It has reached out to members of its congressional delegation to engage with the NLRB to ensure that any proposed changes go through the regular administrative process rather than attempting this change through case law, as the NLRB appears to intend. Changing any definition or regulation through case law does not provide the public or impacted parties the opportunity to comment and provide input as to how changes will impact them as the administrative process would. You can contact the Illinois Chamber of Commerce at http://ilchamber.org/communications/contact-us/.

This article was researched and written by Lindsay R. Vanderford, JD. Lindsay can be reached 24/7/365 for questions at lvanderford@keefe-law.com.

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Synopsis: Should Illinois WC Adopt a Drug Formulary? Thoughts and Analysis by Matthew G. Gorski, JD.

Editor’s comment: Drug formularies are a hot topic in WC as more and more states are considering adopting WC drug formularies. More specifically, Louisiana, Nebraska, South Carolina, and North Carolina have joined the WC drug formulary discussion party.

A drug formulary is a list of prescription drugs prescribed by physicians and other medical professionals identified to offer the greatest overall value. The drug formularies are created and maintained by a committee of physicians, nurse practitioners, and pharmacists.

At the moment, only four states have adopted WC drug formularies, and those are Texas, Oklahoma, Ohio, and Washington. Numerous other states have begun discussions with legislators to create WC drug formularies, but Illinois is not one of those states.

The biggest effect a drug formulary in Illinois WC would have is to control costs to the employer on the payment of prescription drugs. If there is a list of the most effective and cost efficient drugs that WC will only approve, it will eliminate WC having to pay for costly and ineffective medications. Also, this will also ensure injured workers will be receiving medications that will actually help them.

There are numerous situations in Illinois WC where doctors continue to prescribe narcotics and opioids, when they likely provide diminishing returns, or ever increasing complaints. As most medical experts will agree, long term narcotic and opioid use hurts an individual’s recovery from an injury—in addition to the addictive side effects of long term use. The injured individual becomes dependent on the narcotics and opioids for pain management, instead of, engaging in work conditioning or physical therapy.  A WC drug formulary will be an indirect effect to lower drug addiction and long term narcotic and opioid use by injured workers.

Overall, WC drug formularies will be beneficial to both employers and injured workers. It will create an efficient way to lower costs for employers, and will help injured workers recover from their work injuries faster. Illinois should join the WC drug formulary discussion, we would benefit from it.

This article was researched and written by Matthew G. Gorski, JD. Matt can be reached 24/7/365 for questions about WC at mgorski@keefe-law.com

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Synopsis: KCB&A is Looking for a Great Michigan Defense Lawyer and Legal Secretaries for our Chicago office.

Editor’s comment: We are adding to our Michigan staff—if you are or know a candidate, have them reply to this Update!!

We have one and perhaps two openings for admin staff. If you have or know someone with litigation experience, send a reply with resume asap!

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