10-12-15; Six Ways to Close an IL Work Comp Claim; Analysis of a "Repetitive Working" Appellate Ruling by Pankhuri Parti, JD; Lindsay Vanderford, JD reports on a WC Fraud Conviction and much more
/Synopsis: The Six Ways to Close an Illinois Workers’ Compensation Claim.
Editor’s comment: We keep having clients ask so we wanted to provide our expert legal guidance on this important topic for all sides of the matrix. When the defense team at KCB&A speak at local, regional and national conferences, we are routinely advised the cool thing about IL WC is a claims handler or risk manager can actually “close” files if you do things correctly. In our neighboring states, many systems don’t allow for “complete” closure and little annoying things can happen to cause claims to re-open. As much as our readers and other observers have issues with the IL WC system, they do like the sense of closure provided in our difficult WC claims.
To our understanding, there are six paths by which an IL WC claim closes:
1. Lack of statutory 45-day Notice;
2. Running of the statute of limitations in Section 6(c) of the IL WC Act;
3. Voluntary dismissal of the claim by Claimant and counsel, if applicable;
4. Dismissal of a claim for want of prosecution;
5. Settlement;
6. Final decision of the Arbitrator, Commissioner or reviewing court.
If any of our readers know of another path to close an IL WC claim, send your best thoughts and we will forward a free KCB&A visor.
Let’s take a closer look at the six paths for closing IL WC claims—Number one is lack of statutory notice of injury/exposure. If someone is injured and they know they are injured at work, they have 45 days for their employer to learn of the accident/exposure. Please note the employee doesn’t have to actively provide notice of accident/exposure, all they have to demonstrate is the employer learned of the accident by any means. If statutory notice becomes an issue, the employer is supposed to be able to demonstrate they are “unduly prejudiced” in such proceedings by such defect or inaccuracy in the notice of accident/exposure. To us, the easiest way to demonstrate undue prejudice is to claim your accident investigation protocols were blocked due to the failure of the employee to notify you and/or for you to learn of the accident/exposure in any other way.
In a more realistic sense, to the defense team at KCB&A, your better shot at defeating/blocking a claim due to lack of statutory notice is to treat it from a common sense perspective—if the employee was seriously/moderately injured at your workplace, how is it that you and your supervisors never learned of it? We feel most Arbitrators will ask the same question—if you broke your arm working for your employer but were regularly at or around work and in the continuing company of your supervisors and other co-workers, how come no one ever knew anything about your medical issues for more than six weeks?
In short, lack of statutory notice should close a claim but that doesn’t mean you aren’t going to have to fight to prove a lack of statutory compliance so it might be a challenge to truly call that “closing” a claim, as much as it is a valid defense.
Number two, the IL WC statute of limitations is also a gauntlet a defense lawyer might choose to run. The IL WC Act requires the Application be filed three years from the date of the accident/exposure. The statute of limitations can be extended or “resurrected” for two additional years, if there is the payment of any WC medical, lost time, permanency or death benefits. This extension or new period for the statute to run can include a medical bill for a work-related injury being paid by the employer’s group health carrier. As the last “twist” on the IL WC statute of limitations, you have to be aware of the IL Supreme Court’s “activist” ruling in Durand v. IWCC where the Court wouldn’t dismiss a claim based upon repetitive trauma where the worker alleged she “worked in pain” for four years prior to filing the Application. In our view, this controversial decision eviscerates the SOL because any and every worker who misses the deadline can simply claim to be “working in pain” to keep the statute open for a new claim. In our view, this legal concept might be more challenging if the delay in filing the Application was five to ten years or more.
Number three, voluntary dismissal of a claim by claimant is easy. This form needs to be completed by Claimant and their attorney, if applicable.
IC17
Motion to Voluntarily Dismiss Case (rev. 12/04)
Once they have signed the form and filed it with the IWCC, the Arbitrator assigned should receive, review and sign the form. When that happens, you need to make the call on just closing your file or waiting for the running of the statute of limitations. Please remember a claim that has been voluntarily dismissed is done without prejudice—they can re-file any time during the SOL.
Number four, the dismissal of a claim for want of prosecution or DWP is a common and generally easy concept to understand. Illinois claims are set on a calendar for each assigned Arbitrator. The calendars can be reviewed on the great website for the IWCC. Each claim will trundle along and trundle along until they reach about two-and-one-half years. After that point, someone has to show up before the Arbitrator to ask for claims to be continued and the defense has to agree or at least, not fight continuances. If they don’t, the decision to DWP the claim is up to the Arbitrator. Sometimes they are tough, sometimes they wait and are tough later.
You can’t always blame your defense lawyer for cases getting endlessly continued but we do recommend you advise your defense lawyer in writing when/if they no longer have your authority to agree to continue claims. We have seen claims continued to the fourth, fifth and more years because defense counsel never puts their foot down to demand a hearing or otherwise demand trial or dismissal of old, moldy claims.
When a case gets dismissed, the IWCC is supposed to snail-mail notices of DWP to the parties or counsel for the parties. The notice indicates there is 60-days to file a Petition to Reinstate the claim. If the Petition to Reinstate is timely filed, it is possible it can sit for weeks, months and years—it is incumbent on defense counsel to demand the Petition be timely adjudicated so the matter is reinstated and then settled/tried. Please also note some defense attorneys “roll over” to allow claims to be reinstated—the team at KCB&A always asks our clients what they want first. Many Arbitrators will allow reinstatement and set the matter on a date certain—if the hearing is held, the matter remains reinstated. If the hearing doesn’t occur, the claim may be again dismissed.
Number five, an approved settlement ends IL WC claims. Please note the IWCC settlement process requires Arbitrator involvement—there clearly were concerns in the olden days that injured workers were being taken advantage of so a state official has to approve the deal to insure there is no funny business. We tell our readers, you can like the IL WC contract settlement approval process or hate it but we are sure it isn’t going to change soon.
For some of our clients, this is a new challenge because they want to close everything a year ago. Some clients now want to provide settlement authority to see their toughest claims close in a day or so—that isn’t slightly possible. We want all Illinois risk and claims managers to understand the IL WC settlement process usually takes about a month. To settle a claim and close a defense file, we have to:
Reach a complete settlement of all issues
Draft settlement contracts that cover all issues and completely protect you—the defense team at KCB&A can do this part of the process on a same-day, real-time basis;
Send the contracts to the adjuster and/or employer for their review, saving-to-file and approval—again, it is sent asap;
Then with client approval from you, we sign and send to opposing counsel via email;
Opposing counsel will print, sign and then contact Claimant for their discussion and signature—this is of unknown duration but many times, Claimants will come to OC’s office to sign to speed things up;
Then opposing counsel will snail mail or bring the contracts to the Arbitrator assigned with an SASE;
Then the Arbitrator gets to the contracts in the normal course of business. We assure our clients all IL WC Arbitrators are diligent and professional—it is not a good idea to tell or demand an Arbitrator to put your contracts at the front of the line because they call them as they receive them;
Thereafter the Arbitrators
o Reject them for technical problems of whatever sort or
o Snail mail them back to Claimant’s counsel who then email them to us to forward to you.
When we get them back, we immediately route them to our clients for payment. We can’t close our files the minute we send the approved contracts to you because we need to know you or your adjuster has paid them to insure you aren’t going to be the subject of either a penalty petition or an 19G Petition for a judgment against Respondent.
If you have any idea how to make IL WC settlements faster, please let us know. Yes, we wish the draft signed contracts could be emailed to and from the Arbitrators—that can’t happen yet.
Finally, Number six, the last of the six ways to close an IL WC claim is via a final decision by an Arbitrator, Commission panel or reviewing court. This means the Arbitrator heard the claim and filed the decision, the parties receive it and no one files an administrative appeal, called a Petition for Review within thirty days. If the Commission reaches a decision, the parties only have twenty days to perfect an appeal to the Circuit Court with lots of little details to be completed very, very rapidly—if you need the many nuances, send a reply. After a Circuit Court judge files an appeal, the parties then have thirty days to appeal to the Appellate Court, Workers’ Compensation Division. If that body decides a claim and you want to appeal to the IL Supreme Court, send a reply and we can explain the many rules that come with that test.
We appreciate your thoughts and comments. Otherwise, feel free to post your thoughts and ideas on our award-winning website.
--------------------------------------------------------------------------
Synopsis: The IL Business Community Groans as a “Repetitive Working” Claim Approved by IL WC Appellate Court. Thoughts and Analysis by Pankhuri K. Parti, JD.
Editor’s comment: The decision of the Appellate Court, WC Division in S&C Electric Company v. The Illinois Workers’ Compensation Commission once again highlights the difficulties faced by Illinois employers in demonstrating a disputed condition may not have been work-related despite presenting equally convincing explanation of a non-work related event being the cause of the alleged symptoms. The decision also underscores the importance of carefully choosing which case to appeal and argue in front of this very liberal Appellate Court panel so as to prevent more precedents like this one being established and making an already difficult road even more tough for all Illinois Respondents and their attorneys.
On October 2, 2015 the Appellate Court, WC Division published its decision which, not surprisingly, affirmed and adopted the decisions of the Arbitrator and the Commission finding Claimant suffered an injury arising out of and in the course of employment and his current condition of ill-being was causally related to the alleged event
Claimant Cortez filed two separate Applications for Adjustment of Claim, one alleging a discrete work accident which occurred on February 4, 2011 resulting in “trauma” to his lumbar spine as a result of lifting and pulling equipment and the second one alleging injury to “man as a whole” caused by lifting, bending, and pulling in the performance of his employment and thus alleging a more repetitive trauma type condition and not an acute occurrence. If you think this sort of double-pleading is blurring the lines between what an “accidental injury” is supposed to be and what “repetitive trauma” is, we agree with you. If all typical work is now going to be “repetitive trauma,” work comp costs in this state are going to skyrocket, because any medical condition can now be mystically “related” to work. Please note this claim was decided by an IWCC panel from years ago—we hope our current hearing officers are going to take a stricter look at what an “accident” might be moving forward.
Both claims were adjudicated in a consolidated hearing on September 11, 2012 and the Arbitrator concluded Petitioner established compensability and awarded applicable benefits. Upon review the Commission affirmed and adopted the Arbitrator’s decision, and then later the Circuit Court affirmed the decision of the Commission.
Facts of the Case: During the arbitration hearing and all the appeals thereafter, the facts of the claim were significantly disputed with both sides putting on more than one witness to establish the veracity of their individual positions. Claimant alleged as a “mechanical assembler basic” his duties included assembling an average of three-four stainless steel tanks each shift and he worked 10 hour shifts and five day weeks. He claimed on February 4, 2011 he was using a manual hand jack with a steel extension to pick up a pallet and to do this he bent at the waist pulling up on the extension bars. This was when he claimed he felt a “click” in his back followed by pain. However, he continued to do his job and did not report the injury to anyone in leadership until ten days later on February 14, 2011, when he informed a co-worker the pain worsened and was going down to his left leg making it difficult for him to walk. The co-worker then told Claimant to report the event to supervisor who sent Claimant to the nurse allegedly saying in a “threatening manner” the symptoms were not work-related.
Claimant also presented an affidavit from his co-worker indicating the co-worker was working near claimant, when the co-worker saw claimant “injure his back” in the course of his employment. Although he could not recall the exact date of the incident, the co-worker stated in his deposition Claimant did not appear to have any back problems prior to the work onset.
It was the testimony of the supervisor all employees were allowed to leave work early on February 1, 2011 due to a snow storm and when Claimant returned to work on February 3, 2011 he showed the supervisor a picture of the snow in his alley allegedly saying “he had to shovel the snow to get out to the street.” While Petitioner admitted showing the picture of the snow, he denied saying he shoveled snow, claiming instead he did not own a shovel at the time. The supervisor also testified Claimant denied injuring himself at work when he reported the symptoms on February 15, 2011 and later attributed them to work because another employee had also allegedly experienced the same symptoms.
The co-worker in his testimony stated Claimant informed him of getting similar pain when claimant was working at a liquor store and the pain would just come and go.
Respondent also presented the testimony of a nurse about a February 15, 2011 nurse’s note in which she wrote Claimant complained of pain which started “three weeks ago” and because other day shift employees asserted the same symptoms, he felt his pain must also be related to “work.”
The medical records entered into evidence indicated Petitioner had a severe disc herniation at the L5-S1 level with impingement on the S1 nerve root and it was the opinion of his doctor the severe extrusion of the disc was indicative of a traumatic change. We note there is no indication of a “trauma” at work in the record. At the same time, during her deposition and upon cross-examination, the physician admitted a person could suffer from such a herniated disc from shoveling snow.
It was also the opinion of Dr. Malek that Petitioner’s ill-being and the eventual need for a lumbar fusion were the direct result of the February 4, 2011 work event. However, Dr. Soriano – the independent medical examiner – opined the herniated disc was not a result of the February 4, 2011 work incident and he based his opinions on the incident investigation report in which Petitioner admitted to not having been injured at work and the initial medical records in which Claimant did not attribute his complaints to lifting, pushing, or pulling at work.
Appellate Court Decision: Respondent’s appeal was based on three arguments: (1) Claimant’s co-worker’s testimony was not credible, (2) the discrepancies between the testimony of Claimant and Respondent’s own witnesses, and (3) claimant’s failure to initially provide the details of his alleged accident to the treating physicians.
In typical Illinois WC appellate fashion, it appears an “accident” was presumed despite the fact no accident appears to have been described in any record—Claimant did his normal work in a normal way. In our respectful opinion, this is a repetitive working claim without any description for the factual basis upon which Claimant might have suffered a severe herniated disc. Thus the Court affirmed the decisions of the lower courts and held the Commission’s determination of Claimant sustaining a compensable work-related accidental injury on February 4, 2011 was not against the manifest weight of the evidence.
We note this decision of the Appellate Court further highlights the difficulty Illinois employers face in denying a disputed onset of pain and the almost insurmountable burden they face in proving the negative – that an alleged medical problem was not caused by the work onset.
In the present case there was clearly conflicting testimony – Claimant and his witnesses were claiming it was the work onset of February 4, 2011 which caused his current condition of ill-being, while the witnesses from the Respondent’s side testified Claimant repeatedly contradicted himself and had not linked his back pain to an “accident” when he initially reported the condition and also when he initially sought treatment. Additionally, Respondent also provided a perfectly viable alternative explanation for the symptoms – shoveling of snow by Claimant after the historic blizzard in Chicago back in 2011. Even Petitioner’s own doctor – Dr. Brown – agreed the disc herniation seen in the MRI could have been caused by shoveling snow.
This article was researched and written by Pankhuri K. Parti, JD. The opinions Pankhuri is voicing are hers. Pankhuri can be reached 24/7/365 for questions about WC at pparti@keefe-law.com.
------------------------------------------------
Synopsis: Claimant Convicted of Workers’ Compensation Fraud. Thoughts and Analysis by Lindsay R. Vanderford, JD.
Editor’s comment: In an August 2015 announcement, Illinois Department of Insurance Acting Director Anne Melissa Dowling publicized an investigation by their Department’s Workers’ Compensation Fraud Unit (WCFU) which resulted in the conviction of an Algonquin woman, Tracy Williams (aka: Tracy Wanker). Williams, who was named in a ten-count indictment on charges of workers’ compensation fraud, insurance fraud, aggravated insurance fraud, and perjury related to her claims for benefits, was convicted and sentenced in Kane County, IL.
Williams, who pleaded guilty to felony workers’ compensation fraud on July 29, 2015, was sentenced to two years’ probation and ordered to pay $14,737.86 in restitution, as well as fines, fees, and court costs for obtaining nearly $90,000 in workers’ compensation benefits. Williams was also charged with three additional counts of workers’ compensation fraud, four counts of insurance fraud, and one count each of aggravated insurance fraud and perjury resulting from the investigation of three complaints related to claims she filed with the Illinois Worker’s Compensation Commission (IWCC).
“The Department takes accusations of WC fraud very seriously and will investigate to determine any wrong doing,” said Acting Director Anne Melissa Dowling. “Our reports about workers’ compensation fraud cases and convictions send a clear message that fraud will not be tolerated in Illinois.”
Williams filed false reports of work-related injuries; she subsequently misrepresented her medical condition and exaggerated her symptoms to her employers, medical treatment providers, and insurance companies. She created the impression the injuries she claimed to have suffered while at work were more extensive than they really were in order to collect temporary total disability (TTD) benefits, receive unnecessary medical care, and to remain off work. Since 1987, Williams has filed nineteen claims with the IWCC against multiple employers.
The Department’s Workers’ Compensation Fraud Unit (WCFU) conducted the investigation, which involved claims filed against three employers, proving several of the reported accidents did not happen as Williams claimed. The cases were referred to the Office of the Illinois Attorney General for prosecution.
"We are pleased to work closely with the Workers' Compensation Fraud Unit to prosecute instances of fraud," said Attorney General Lisa Madigan. "My office will continue to aggressively prosecute fraud."
In our experience, WC fraud investigations were not as tantalizing to pursue as the Attorney General may have made it sound. The WCFU generally takes over a year to assign an investigator to a claim, and the matter is likely to have reached a head at the Arbitration level by that point and more certainly so by the time an investigation has been completed. Additionally, settling a claim, even for a nuisance value, appears to negate any WC fraud claim filed by Petitioner’s employer. As with nearly any business decision, the decision to file a WC fraud action comes down to a cost-benefit analysis. Will litigation cost outweigh any hope of a return from the filing? Will a determination of fraud discourage other employees from following the same path? And how much is that worth?
We assure you, the conviction against Williams is the exception rather than the rule, but it makes us optimistic for the numerous fraud claims filed by our firm and our clients. We echo the Attorney General’s desire for aggressive prosecution of Petitioners who make false claims.
For more information about workers’ compensation fraud, including matters that may involve fraud perpetrated by a claimant, employer, or insurance agent, please visit the DOI website at http://insurance.illinois.gov/WCFU/default.asp. To report a claimant, employer, healthcare provider, attorney, insurance agent or company, contact the Workers’ Compensation Fraud Unit at 877-WCF-UNIT (877-923-8648) or DOI.WorkCompFraud@illinois.gov.
This article was researched and written by Lindsay R. Vanderford, JD. Lindsay can be reached with any questions related to workers’ compensation defense and employment law defense at lvanderford@keefe-law.com.
----------------------------------------------
Synopsis: KCB&A is Looking for an IL WC Defense Lawyer with three to five years’ experience. The position is open right now.
Editor’s comment: We are adding to our legal staff—if you are or know a candidate, have them reply to this Update!!
We have one opening for admin staff. If you have or know someone with litigation experience, send a reply with resume asap!