11-30-15; Bizarre, Cynical and Unconscionable Collaboration of Illinois Injustice--What Will We Do About It?; Shawn Biery on Important Federal Win for Costco; Kevin Boyle Explains IN WC AWW Puzzle...

Synopsis: A Bizarre, Cynical and Unconscionable Collaboration of Illinois Injustice--What Will We Do About it?

Editor’s comment:We quote the Daily Herald newspaper as part of our headline above. We feel every Illinoisan should pause and consider what should be done at all levels of law enforcement after the untimely passing of one of our citizens at the hands of a rogue former police officer. We want the Illinois claims, legal and police community to stand up and contact our leaders and not let this one go to the wayside. There are so many things wrong with the sixteen rounds of high-speed ammo that were shot into this decedent, we simply can’t ignore it and hope you won’t either.

Why Should the Claims Community Care About This Gross Injustice?

Well, we first found out about what happened as part of settlement of a $5M claim to the family of the deceased. The lawyers for the family accurately forecast the video was shocking and revolting. If you haven’t seen it and you understand discretion is strongly advised, you can take a look at this link—jump to the second half for the important viewing: http://abc7.com/news/warning-dash-cam-video-of-police-shooting-of-laquan-mcdonald/1098640/

If you view the autopsy diagram of Decedent, you will note the first round hit him in the head and knocked him out. The second round hit his neck. The third and fourth rounds were “chest-taps” and, in combination with the first two were almost certainly soon-to-be fatal. Despite those facts, 12 more rounds were shot into a prone and non-moving Decedent. Again, understanding it is shocking and discretion is advised, take a look: http://invisible.institute/news/autopsy-of-laquan-mcdonald

No police officer of a large contingent of reporting officers on the crime scene appeared to provide medical care to the unconscious Decedent and they simply left him to quietly perish. Last we heard, all Chicago patrol cars are outfitted with first aid kits. It is unclear why immediate attention wasn’t offered; perhaps it was immediately deemed futile after 16 high-speed rounds were fired and they all struck Decedent.

The municipal and general liability claims community cannot ignore what keeps coming at us over and over again. There are succinct reasons the City of Chicago was so riddled with criminal police activity during the 1970s, 80s and 90s that in May 2015, the Mayor and City Council found it necessary to set aside $5.5 million to create a fund to pay for the admitted attacks on its citizens during those years. These payments are being made despite the City’s multi-billion-dollar deficits. These payments are being made on top of the what ABC7 in New York reports is more than $100 million already paid in recent judgments and settlements because some sworn police officers were subjecting suspects to beatings, electric shock, suffocation and Russian roulette, according to NPR, which tallied up the settlements.

Why Should The Legal Community Care About Bizarre Police Malfeasance and Citizen Attacks?

Lots of lawyers start out as police officers. Lots of lawyers “supervise” patrol officers in criminal and disciplinary hearings and other related legal matters. Many rulings from the U.S. Supreme Court like Miranda v. Arizona on down were designed to reign in police actions and behavior. We feel the Illinois legal community can’t and shouldn’t sit on our hands to allow this current situation to continue. We can’t keep coughing and looking the other way. We have to start making sense of this situation and grab ahold of these issues and start to set things straight.

We are also concerned about the basic problem of having complaints about police being made to other fellow police officers and union brothers. One obvious and glaring concern about what happened with the McDonald claim is the extended duration and questionable actions of the ensuing police investigation. Various politicians and news sources are now calling for the resignation of Cook County State’s Attorney Anita Alvarez. Our related concern is State’s Attorney Alvarez will take literally no action on the issue of IL workers’ comp fraud. Her staff will receive recommendations for criminal prosecution of WC claimants from the state agency that initially handles such investigations or the IL Dep’t of Financial and Professional Regulation (IDPFR) and the assistant state’s attorneys let them languish and refuse to take any action, no matter how egregious the circumstance. 

In short, the IL WC claim community won’t miss State’s Attorney Alvarez, if she resigns to move on to other pursuits or gets voted out.

How Does the Legal and Claims Community Improve Illinois Law Enforcement?

The vast majority of law enforcement officers are well-trained, dedicated and committed to serving their community and all of its citizens. Our police expose themselves to potential life-threatening situations each time they climb into a patrol car and answer calls involving armed robbery, assault, murder, etc. Decedent McDonald had a knife in his hand, had used it to slash tires and refused to obey police commands—17-year-olds sometimes do dopey things. Facing such erratic behavior, our police officers must make snap decisions in high-pressure and dangerous situations. For that, we have to afford them some level of latitude but shooting sixteen rounds, most of them into a prone, unmoving body clearly appears to be over the top. The badge and respect we provide our sworn police officers cannot be a shield for erratic, even criminal behavior of officers in their own right.  

One solution can be found in modern digital video technology. In short order, some patrol officers may not be held accountable for their actions unless and until they are on video. Similarly, any fraudulent/unfounded claim of officer misconduct can be quickly dismissed if the officer’s sound action and handling of a situation is evidenced on a body camera. 

Everyone is clamoring for body cameras on all patrol officers and dash-cams for cars. We agree with that sentiment and the sooner that happens, the better. If police officers know they may be subject to being videotaped by body cams and dashboard cams, it should stop the rogue officer from acting outside the boundaries of the law. Unfortunately in the recent McDonald case, the dash camera didn’t seem to stop the officer and the video certainly doesn’t provide any evidence that McDonald was aggressive or threatening the officer before 16 rounds were fired. 

First, Should It Be Against the Law to Have Police Officers Block/Avoid/Delete Video Evidence?

Cynics will say police officers may be soon practicing how to surreptitiously block/avoid/erase their body cameras to avoid embarrassment, inconvenience or criminal liability to themselves or fellow officers. If you aren’t sure, police officers and their sympathetic managers sometimes seem to go the extra mile to try to delete, avoid, destroy or block video evidence of their actions. Try to imagine the “Keystone Kops” scenario where a rogue police officer makes an inappropriate decision like this one to then have all of his colleagues turn 45 degrees and walk around sideways to avoid having their front-facing body cams record what the rogue officer is doing.

If you watch the McDonald video at 9:57:36pm, you will note the officer driving the patrol car with the dash-cam taking video of the shooter and suspect, intentionally turned the car to insure the rogue officer who was shooting at the suspect was out of the angle of the camera. There have been suggestions in the media as to why that happened which make absolutely no sense to us at all. One would think the officer driving the car would insure the actions of both the shooter and the suspect were fully depicted. Instead, we see the first round being fired and we are quickly left to see the torso of the suspect taking shot after shot without being able to see the officer rapidly shooting 15 additional rounds into what soon became a prone decedent. 

Second, there was video in a nearby Burger King®restaurant of Decedent minutes prior to the alleged crime. No one questions the fact the Chicago Police Department managers went to the restaurant to view the security video outside the presence of the restaurant’s manager. Subsequent video shows them reviewing the video display and talking about it. At the end of their review, there was now a “magical” gap in the security video of over 85 minutes. At a news conference announcing the charge of tampering with the security tape, State's Attorney Anita Alvarez said “forensic testing” found no evidence that anyone intentionally erased the Burger King® video. Police Superintendent Garry McCarthy called the allegation of erasure "absolutely untrue." Gee whiz, common sense doesn’t appear to fit with these strident denials. We also know of no “forensic test” to confirm a videotape was erased.

Our problem with all of it is very few citizens can believe a word of any of these leaders and every outward indication appears to demonstrate they aren’t telling the truth. There was nothing technically wrong with the restaurant video equipment that accurately photographed everything before this event and everything after it. The police aren’t saying the tape was blocked or jammed or anything else. The only randomizing but certain factor is the lengthy presence of the police department managers and the “magical” gap that ensued.

Please note body cameras do work to limit unreasonable force by police officers. The Wall Street Journal reports a 60% reduction in use of force by patrol officers in first year upon implementation of body cameras: http://www.wsj.com/articles/what-happens-when-police-officers-wear-body-cameras-1408320244 There is also an ACLU article on police body cameras: https://www.aclu.org/police-body-mounted-cameras-right-policies-place-win-all

From these articles, they indicate there have to be consequences for avoidance/deletion/tampering. When a police officer assigned to wear a body camera fails to record, avoids viewing the crime scene or otherwise interferes with any camera video, three responses should result:

·         Direct disciplinary action against the individual officer.

·         The adoption of rebuttable evidentiary presumptions in favor of criminal defendants who claim exculpatory evidence was not captured or was destroyed.

·         The adoption of rebuttable evidentiary presumptions on behalf of civil plaintiffs suing the government, police department and/or officers for damages based on police misconduct. 

The presumptions should be rebuttable by other, contrary evidence or by proof of exigent circumstances that made compliance impossible. That said, body cameras/dash cameras may be the best tool Illinois citizens have to hold police accountable for their actions. As mentioned above, such cameras will also allow those officers acting within protocol to defend against allegations of wrong-doing. It appears we need a law requiring them to use cameras and not interfere with the intent and purpose of the cameras. 

Second, How Do We Create “Skin-In-The-Game” for All Illinois Police Officers?

Our other issue with what happened with this rogue police officer is the unquestioned fact he already had 18 “CR’s” or citizen complaints recognized against him, prior to the shooting in question. We don’t know the merit behind these prior charges or what discipline was dispensed, if any, for the officer’s alleged wrongdoing. However, with 18 prior complaints, the impression one gets is that of recurrent “slaps on the wrist” for police wrong-doing until a police officer ignores the whole process to snap, go rogue and kill.

Please also note this rogue former officer was sued, along with the City of Chicago and city taxpayers paid a verdict of $350K to the plaintiff. The officer didn’t have to pay a penny and we aren’t aware he suffered any penalty of any kind for his actions. From that lesson, we would hope to see a change in protocol with progressive discipline leading to suspensions and terminations for officers who routinely act outside the bounds of their sworn oath and training. We also feel something has to happen when any City settles a claim brought by a citizen and a jury finds liability and awards substantial damages. If taxpayers have to pay, something needs to be done about the police officers causing the issues.

Our sources tell us that in recent years, the Chicago Police Department has increased the penalties for officer wrongdoing, including longer stretches of unpaid suspension and when appropriate, termination. There is also an independent police review board to examine the more serious cases, such as the one addressed here. We understand the actions of this former patrol officer in this case are not representative of the thousands of good, dedicated and upstanding police officers who carefully adhere to their training and the law. However, such tragedies do sometimes seem to place the entire force in a poor light and weakens the trust a community must have in their police and the folks who manage the police.

We feel there has to be a middle-ground short of criminal charges to fairly and openly discipline all police officers and send the strong message we support them when they follow the rules but they can never take the law into their hands without threatening their careers. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Big Winner for the Big Box—FMLA & ADA is for Those in Need, Not Those in Greed! Analysis by Shawn R. Biery, JD, MSCC.

Editor’s comment: U.S. Seventh Circuit confirms summary judgment is appropriate when individual attempted to use FMLA as an avenue to avoid disciplinary demotion with stated goal to secure leave to maintain pay rate.

In Curtis v. Costco Wholesale Corp., (N.D. Ill. Nov. 24, 2015) the federal Seventh Circuit held the District Ct. did not err in granting Defendant-employer Costco's motion for summary judgment in action alleging Defendant violated Plaintiff-employee's FMLA rights when Defendant demoted him even though he had requested leave under FMLA.

The record indicates Costco hired Curtis in 2001 and he was eventually promoted to optical manager at the Orland Park Costco location. The General Manager of that location began monitoring the optical department in May 2011 after learning of customer complaints about the department. Upon doing so, the manager determined Curtis was not sufficiently scheduling workers within his department, in accordance with Defendant Curtis’ duties as optical manager.

In September 2011, Curtis requested and received FMLA due to stress and anxiety and upon his return to work in November 2011, Curtis' work did not improve, so he was counseled numerous times over the following months. Notwithstanding, he was even placed on a 90-day performance improvement plan in April 2012 In early May 2012, an employee working under Curtis advised management of concern that Curtis had advised her he was going to take another leave to secure his managerial rate of pay in the event of demotion. Costco determined that this violated its Manager Standard of Ethics and Curtis was demoted to cashier. He was given a second FMLA leave two days later.

Curtis filed a federal complaint May 7, 2013 alleging both 1) retaliation; 2) interference pursuant to the FMLA; 3) discrimination due to disability; and 4) failure to accommodate, both in violation of ADA.  Summary judgment for Defendant Costco was granted at least in part due to Curtis' failure to comply with the local rules when submitting an insufficient response to Costco’s separate statement of material facts.

The Seventh Circuit also noted Costco diligently submitted undisputed evidence of a plethora of customer complaints, violations of Costco policies and failure to perform managerial duties. They also noted their manager did not act with animus as the manager didn’t issue the demotion until consulting with at least three others in Management and HR and there was no evidence their decision was initiated by the information from the employee regarding the plan to “scam” the managerial pay. It is noted documentation confirmed the 90 day PIP was in place at the time of the comment and the comment did lead Costco to honestly believe Curtis had violated their Manager Standard of Ethics.

The Seventh Circuit also noted Curtis requested and received a transfer to a different Costco location while on his second FMLA leave and noted the failure to reinstate at a time when he was actively on FMLA did not constitute an adverse employment action and therefore could not sustain an FMLA retaliation claim.

For 1) retaliation & 2) interference both with regard to FMLA, the Court noted the very important factors which bear mention in the FMLA claims. To prevail on the FMLA interference claims, the Court noted (quoting from rulings including most specifically Goelzer v. Sheboygan Cnty., Wis., 604 F.3d 987, 993 (7th Cir. 2010)), Curtis had to establish five factors:

·         Eligibility for FMLA protections

·         Employer was covered by FMLA

·         Curtis was entitled to leave under FMLA

·         Curtis provided sufficient notice of intent to take leave

·         Employer denied FMLA benefits to which he was entitled

The Court also noted the employer has no duty to return an employee to a position if the employee cannot perform an essential functions of the job—and Curtis had not been released to work for the period in which he claimed interference. In fact, once a doctor’s note provided release to work, Costco reinstated him at the new location to which he requested transfer.

For allegations 3) discrimination due to disability & allegation and 4) failure to accommodate, both asserted to be in violation of ADA, the Court noted two types of discrimination claims under the ADA.

1)    Disparate treatment—being treated differently because of disability

2)    Failure to provide reasonable accommodation based upon the statutory elements

a.    Qualified individual with a disability

b.    Employer was aware of disability

c.    Employer failed to reasonably accommodate

With regard to factor 1, Curtis apparently failed to present an argument and with regard to factor 2, the Court noted Curtis was out on FMLA leave and unable to actually work at time his transfer request was made, so Costco’s allowance of the transfer and work immediately after MD clearance was appropriate.

From an “outside looking in” defense standpoint, it appears the strong documentation developed and provided by Costco had a twofold effect in the defense of the claim. Initially, the strong responsive documentation appears to have discouraged Curtis from even presenting detailed arguments for a portion of his allegations. Secondarily, any allegation which may have been supported was more easily refuted by the strong evidentiary documentation resulting in summary judgment being granted and upheld.

In conclusion—without wanting to become known as “Broken Record Biery”—the strongest takeaway from this case is again the strong need to Document, Document, Document whenever taking employment actions within the workplace and maintaining that documentation. If you are not training your middle managers to follow specific guidelines and protocols, and verifying those protocols are being followed in daily practice—you are setting your company up to fail. This article was researched and written by Shawn R. Biery JD, MSCC. If you would like to discuss or obtain free seminar for your company with regard to developing strong protocols, you may contact Shawn at sbiery@keefe-law.com.

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Synopsis:Important Point on a Tricky AWW Question for Indiana WC Adjusters from our Hoosier Legal Specialist, Kevin Boyle, J.D.

Editor’s comment: We’ve been getting a few IN WC cases recently where a newly hired, or sporadically employed employee gets injured and TTD issues arise. The employer wants to use the average weekly wage or AWW from what the employees were supposed to get paid, but employees want more than that because they are often just starting out at low wages and sometimes random hours.

We had an in depth pre-trial last week with opposing counsel and the IN WC judge on one of these cases, and the result surprised us; diligent IN WC adjusters might want to read about it.

What’s the AWW for a newly hired and recently injured IN employee? 

Does the adjuster use the specific wage Claimant was hired at, or something else?

What should you do when calculating an employee’s average weekly wage for sporadically employed workers, or newly hired workers, that get injured soon after starting their job? Do you properly use the wage rate the employee was going to be paid at the time of the injury, or some other number? If you said “some other number,” you are correct. 

Surprisingly, there’s a rarely used section of the IN WC statute that actually covers this situation, as explained last week by a judge on a similar case. Indiana Code 22-3-6-1(d)(2) provides appropriate guidance to use similar/comparable employee wages, not the actual wages at the time of the injury.

(d)(2) Where the employment prior to the injury extended over a period of less than fifty-two (52) weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, if results just and fair to both parties will be obtained. Where by reason of the shortness of the time during which the employee has been in the employment of the employee's employer or of the casual nature or terms of the employment it is impracticable to compute the average weekly wages, as defined in this subsection, regard shall be had to the average weekly amount which during the fifty-two (52) weeks previous to the injury was being earned by a person in the same grade employed at the same work by the same employer or, if there is no person so employed, by a person in the same grade employed in the same class of employment in the same district.

Please be aware of this statute in accurately calculating the AWW. Most adjusters and WC attorneys rarely use it or understand that it applies. If you have any questions, or you’d like to learn more on this rule, please contact Kevin Boyle at kboyle@keefe-law.com.

11-23-15; Illinois Reaching Crisis--Can WC Reform Be the Turning Point?; Brad Smith's Big Wins Make IDC Advance Sheets; Wisconsin Advisory Council Releases Agreed Bill and Republicans Issue Theirs...

Synopsis: As the State of IL Reaches a Crisis-Point, Can IL WC Reform Truly Be The Turning Point?

Editor’s comment: IL Government hasn’t had a budget since July 1, 2015. This has caused widespread consternation but it is amazing how folks adapt. Here are a few things that have gone wrong so far:

·         The IL WC Commission has stopped mailing decisions and is now effectively forcing participants to waive their right to get a copy via snail mail. This is happening even though the Commission has a budget/funding separate from the State General Revenue Fund. If you are short a few stamps, consider closing those unnecessary and do-nothing satellite offices.

·         Illinois 911 emergency centers are not receiving revenue from a dedicated tax on cell phones, which will result in layoffs and longer wait times for people reporting emergencies;

·         The 138-year-old Illinois State Museum in Springfield and its four satellite locations were closed on Sept. 30, along with the World Shooting and Recreational Complex in Sparta, leading to more than 100 layoffs. As we said in No. 1 above, we aren’t fans of unnecessary satellite locations when the State has over $100B in debt;

·         Hundreds of training classes for police department have been canceled, despite the passage of a law on Aug. 14 that requires additional training and re-training for officers;

·         At first, the Illinois Lottery said it wouldn't be able to pay people who win cash prizes of more than $25,000. Now anyone who wins more than $600 won't be collecting a dime until the State budget impasse is resolved. Tickets still are being sold.

There is a meeting set on December 1, 2015, next Tuesday between the Governor and Senate President Cullerton and Speaker Madigan. For reasons unclear to us, workers' compensation is emerging as a key element, as political leaders in Illinois try and find a way to break the state's nearly five-month budget deadlock. Various budget proposals are circulating in the state, with two appearing this week; one from state lawmakers, the other from a well-connected political operator. Both plans include proposals for substantive workers' compensation reform, including changes to the rules on “causation” of a work-related injury. This linking of reform to the budget goes to the heart of the debate and the lack of movement as Democrat leaders, particularly House Speaker Michael Madigan, D-Chicago, want to deal with the budget separately from the Governor's reform agenda. Moderate statutory reform of workers' compensation is inextricably a factor in the wider budget debate. The public meeting of the three most powerful state politicians will be a breakthrough, of sorts, but the bona fide negotiations will be done behind closed doors, as always happens in Springfield.

One plan has been put forward by Illinoisans for Growth and Opportunity, a political action committee led by Greg Goldner, a former campaign manager for Mayor Rahm Emanuel, who is also close to Gov. Rauner. The organization, known as IllinoisGO, leans Democrat. On workers' compensation, Goldner proposes, in the document published by IllinoisGO, that to control costs, the “state should look at the tighter causation definitions.” A second plan, put together by lawmakers on a bipartisan basis, also includes a reference to substantive workers' compensation without going into any strong detail. While workers' compensation forms a small part of the overall budget, it is likely to be key to discussions between political leaders in the state, not least because Rauner has included it as a main element of his turnaround agenda.

With the release of the Goldner plan and the one proposed by legislators, including Democrats, it appears increasingly likely workers' compensation reform is an area where compromise is possible. The Goldner plan supposedly includes potential savings of $300 million in state and local government workers' compensation costs, mainly through tightening rules on causation. We assume this new concept may end what we call “repetitive working” claims. Currently, in Illinois, a work accident does not need to be sole or primary cause of the employee's injury for it to be compensable—it just has to be “a” cause. The Illinois Manufacturing Association wants any new law to mandate at least 50% of a worker’s injury must be related to work done for his or her employer in order to receive compensation.

Michael Lucci, of the Illinois Policy Institute, has published a paper outlining potential savings to state and local government if the $2.35 Oregon WC Premium Rate study level was to be reduced by different percentages. Using information gathered from the Bureau of Labor Statistics, the Illinois Legislative Research Unit and the Oregon study, Lucci calculated the potential reductions on a covered payroll of $24.5 billion and total workers' compensation costs of $590 million for state and local governments. A 20% reduction, bringing Illinois' costs in line with Iowa, would result in savings of $118 million, a 50% reduction would save close to $300 million to state and local governments. “Causation is a core issue, but there are other issues,” said Lucci. Mr. Lucci said in addition to establishing a tougher “causation standard,” specific definitions for “traveling employee” need to be included in any potential workers’ compensation legislation. First, the IWCC and the courts have applied the doctrine to employees who are not traveling to areas that are unfamiliar and who are only engaged in incidental “travel” as a part of their regular job duties. Rauner has proposed an accident would be compensable only if the employee's travel and actions during travel are necessary for the performance of job duties.

Please remember changes to causation in this state will still require hearing officers with the brains and guts to put the legislative changes to work and cut the esoteric claims. We can also safely assume the IL Appellate Court, WC Division may later rule any legislative changes unconstitutional or find some esoteric way to counter the legislation, if that thinking becomes part of their and ITLA’s agenda. In our view, WC legislative changes are a “feel good” concept but their impact will take some time to weigh.

It appears the rather dramatic 30% cut to some IL WC medical costs has fallen out of favor (or maybe just out of sight of the media). We will have to wait and see—we are sure the doctors and hospitals across Illinois aren’t happy about this proposed change on top of almost 50% WC medical fee schedule cuts from 2005 to present.

How About Tackling Illinois’ Government’s Biggest Fiscal Issues?

With respect to Governor Rauner, Mike Lucci and everyone else, we don’t see how the workers comp reforms are on the point as do-or-die changes to save our State from this budget crisis and its decades of internal mismanagement. We continue to wonder why Governor Rauner isn’t using his executive power to cut, cut and cut bloated department budgets and trim staff across the state. We are looking for ABBC—Across-the-Board-Budget-Cuts. Cut the fat out of state government. Once you have accomplished that, there are other simple and patent ways to save Illinois taxpayers billions by bringing hundreds of injured state workers back to light work when sedentary and light duty jobs open up. On top of that, they can and should automate and get rid of hundreds of inefficient and antiquated positions, like collecting tollway tolls by hand—to fully automate the IL tollways would save $100M+ the first year they do it. We don’t need a state treasurer and a state comptroller—they are clearly duplicative departments. We can provide hundreds of other examples of do-nothing state jobs that should have been ended years ago.

How About Reforming State Pensions Before $100B in State Debt Grows to $200B?

Please remember, under former Governor Pat Quinn, our state’s debt picture doubled from $52B to over $100B. In our view, another spiraling and major problem in Illinois government are the hilariously de-funded state government pensions that are now costing taxpayers 25% of every state tax dollar—that ratio continues to spiral. We assure you your children and their children will be paying or post-funding government pensions for state workers who never worked for the state during their lifetimes—if you don’t understand, send a reply.. State government pensions come with “death math” where the State collects a couple bucks from the lower paid state workers as they rise in the ranks, then State government occasionally and sporadically “matches” that way-too-small contribution and then owes the worker 85% of their highest (and not median) salary plus 3% compounded annual increases that will cause their already-too-high pension to double in about 20 years after retirement. All of the changes to IL state pensions were made stupidly and without any true analysis about what our General Assembly or then-Governors were doing in boosting and boosting the payout. There are close to a million Illinoisans entitled to government pensions and there is no question we are moving to bankruptcy at some future time if the status quo isn’t meaningfully changed. We ask the rhetorical question—when are Governor Rauner, Senate President Cullerton and Speaker Madigan going to stop worrying about work comp issues and tackle meaningful state pension reform?

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

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Synopsis: KCB&A Defense Team Leader Brad Smith’s Big Wins Make the IDC Advance Sheets!

Editor’s comment: As our GL, EPLI and MVA work grows, we want to be sure our readers know of our biggest wins. Here are the reports:

Summary Judgment Granted for Keefe, Campbell, Biery & Associates’ Client

Northern District of Illinois Judge John Z. Lee granted summary judgment for Keefe, Campbell Biery & Associates’ client, a pharmaceutical company. Bradley J. Smith argued in his motion for summary judgment that the defendant is not subject to 42 U.S.C. § 1983 as it is not a state actor subject to liability. Smith further argued that plaintiff failed to bring forth any evidence demonstrating that defendant had a policy or pattern of practice that was deliberately indifferent to the plaintiff’s claimed serious medical needs. Plaintiff is a prisoner at Stateville Correctional Facility located in Crest Hill, Illinois. Plaintiff argued that the defendant was deliberately indifferent to his alleged serious medical needs by failing to timely fill prescription medications for the plaintiff. Plaintiff also argued that defendant was a state actor as it maintained contracts with a private company to fill pharmaceutical products for the Stateville prison population. In turn, the private company contracts with the Illinois Department of Corrections for the purpose of providing medical services to its prison population. Judge Lee granted defendant’s motion for summary judgment and dismissed the defendant from the case. Judge Lee based the summary judgment decision on plaintiff’s lack of evidence supporting a theory that defendant was deliberately indifferent to plaintiff’s alleged serious medical needs. The above matters are still subject to litigation and are subject to appeal. This article is in no way meant to influence the outcome of any potential appeals.

Bradley J. Smith of Keefe, Campbell, Biery & Associates, LLC Successfully Argues Case

After a week and a half of trial and approximately five hours of deliberations, a Cook County Jury found the decedent 50% comparatively at fault for her own death and ultimately awarded only $15,000.00 in pecuniary damages in a case tried by Bradley J. Smith of Keefe, Campbell, Biery & Associates, LLC. The decedent’s estate filed suit against the defendant alleging that its employee/driver was negligent in operating the armored truck at approximately 2:20 a.m. on New Year’s Day 2013 on East State Street in Rockford, Illinois. The plaintiff sought a range of pecuniary damages up to $3,500,000.00. The decedent made contact with the armored truck within the farthest left lane of the eastbound lanes. The employee/driver and his passenger did not see the decedent prior to the impact with the truck, but were keeping a proper lookout and scanning the roadway for hazards. Smith successfully argued that defendant’s employee/driver was not negligent and further that the decedent’s death was caused by her own lack of due care, including becoming intoxicated and impaired, crossing a dark area of roadway while wearing dark clothing, not keeping a proper lookout, and placing herself on a 6-laned roadway at 2:20 a.m. The above matters are still subject to litigation and are subject to appeal. This article is in no way meant to influence the outcome of any potential appeals.  

If you need assistance or counsel on similar claims, you can reach Brad on a 24/7/365 basis at bsmith@keefe-law.com.

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Synopsis: Wisconsin WC Advisory Council Releases Agreed Bill. Wisconsin Republicans Issue Another Version. Lots of New Concepts in the WC Mix.

Editor’s comment: Our top WC defense team members Jim Egan and Matt Ignoffo are closely watching the new workers' compensation legislation introduced to the Wisconsin Legislature this year. The number of stakeholders is a big increase from previous years and reflects the level of interest in the state's workers' compensation system. Last week, the Advisory Council released an agreed bill that represents a hard-fought compromise between the five labor and five management representatives on the panel. The Wisconsin Advisory Council will put finishing touches on the draft legislation, likely by the end of next week. The Council will then present their bill to both sides in the WI State Legislature. If the process is the same as in previous years, the bill will then be assigned to a committee, which will hold public hearings.

Legislators have been considering a break in tradition, in which state lawmakers did not tinker with any aspect of the workers' compensation system without an agreement between the management and labor on the WC Advisory Council. Republican lawmakers have taken an unprecedented step and introduced a separate workers' compensation reform bill—this isn’t typical WI politics. The competing bill that isn’t an agreed bill was filed last week and assigned to the Assembly Committee on Insurance.

The second and Republican-sponsored bill includes completely cutting all benefits to employees injured on the job as a direct result of being intoxicated or high on illegal drugs. That challenging provision would also apply to dependents if the injured worker dies. Presently, compensation for death benefits is only cut by 15% if intoxication is shown to be a contributing cause to an accident. This bill would proportionally reduce benefits for claimants who failed to follow instructions to use safety devices.

Under the bill, employers will not be liable for temporary disability benefits if a worker is suspended or fired for misconduct during the recovery. The legislation would also eliminate the deadline for filing claims for traumatic injuries from 12 to six years. Management had proposed cutting that to three – the second bill would reduce the statute of limitations to two years.

The bill also would change the rules on apportionment of causation for permanent partial disability claims. If a worker is permanently disabled, but only a portion of that disability was caused by an injury sustained at work, the employer would be liable only for the work-related percentage.

In exchange for the concessions by labor, the bill would increase the maximum weekly compensation rate for permanent partial disability to $342 from $322 for injuries occurring before Jan. 1, 2017, and to $362 for injuries occurring on or after that date.

The agreed bill would not make any changes to hold down medical fees in a state that has no workers’ comp medical fee schedule. A study released last week by the Workers Compensation Research Institute or WCRI showed Wisconsin workers’ comp system had the highest average fees for medical services of 31 states studied. On the other hand, WCRI studies have shown that Wisconsin employees get back to work quicker and have a higher level of satisfaction with their medical care.

The Republican-sponsored bill does not include any substantive proposals in relation to workers’ comp medical costs, either.

The Republican-sponsored bill would also:

-  Prohibit a claimant from pursuing claims worth similar amounts in two states, with Wisconsin benefits reduced by the amount paid in another state.

-  Reduce the statute of limitations for reporting traumatic injuries from 12 to two years.

-  Mandate that making a false statement on an application may result in denial of benefits.

-  Give the Department of Justice more powers to investigate and prosecute work comp fraud.

- Direct the Department of Workforce Development to study light-duty programs with the goal of establishing a definition that saves employers money.

- Provide employers are not liable for temporary disability payments if an employee is terminated for good cause.

- Allow employers to choose the medical provider for claimants who are not participating in a health benefit plan and allow the employer to require claimants who are provided a health benefit plan to choose a practitioner from within that plan.

We will continue to watch and report for Wisconsin risk managers and claims adjusters. We appreciate your thoughts and comments. Please post them on our award-winning blog.

11-16-2015; Important IL WC Appellate Ruling on WC Impairment Ratings; Dancing with the Devil in WC?--Can It Be Worth the Risk? Kevin Boyle and Pankhuri Parti on IN WC Medical Cost Study...

Synopsis: IL WC Appellate Ruling Provides Permanency Benefits Even With a -0- AMA Rating By Following the Plain English Meaning of the IL WC Act.

Editor’s comment: In Continental Tire of the Americas v. IWCC, the only issue raised in this workers' compensation appeal concerned the nature and extent of an injury to the left wrist and hand. Claimant worked as a labor trainer for the employer, Continental Tire of the Americas, LLC, at its manufacturing plant in Mt. Vernon, Illinois. He was involved in an undisputed workplace slip and fall accident. Arbitrator Luskin found Claimant sustained a 5% loss of use of his left hand, equaling $6,474.31. The employer appealed the Arbitrator's decision to the Illinois WC Commission panel that includes Commissioners DeVriendt, Tyrrell and Gore. The Commission affirmed and adopted the Arbitrator's decision. The Circuit Court confirmed the Commission's decision. 

The employer argued Claimant failed to prove he suffered any permanent partial disability as a result of the workplace accident. The parties do not dispute Claimant suffered a workplace accident when he tripped and fell while taking trash to a dumpster, landing on his left hand and arm. Subsequent X-rays revealed a serious left wrist fracture. An orthopedic surgeon who treats hand injuries, Dr. David Brown, examined Claimant, placed his arm in a splint, and restricted him to light duty. After appropriate care, Petitioner returned to work full duty with no restrictions and has not sought any further medical treatment as a result of the fall. Petitioner is now making the same  rate of pay that he did prior to the accident and worked more hours. The week before the arbitration hearing, he worked 57 hours. He testified he continued to experience pain from time to time in his left wrist. He testified when he was required to grab tires at work, he sometimes experienced pain in his left hand. In addition, when he carried something heavy, he can feel pain in his left wrist. 

After reaching maximum medical improvement, he played golf in the plant's golf league, which required him to play nine holes of golf one day per week. His team came in first place out of 16 teams in the league. He also played nine additional holes of golf each week. He testified he sometimes had difficulties with his wrist when playing golf.

Dr. Brown testified his initial examination of the Claimant's left wrist revealed a dorsal triquetral avulsion, which is also called a chip fracture of the triquetral bone in the wrist. He described the chip as being approximately three or four millimeters and located on the back or top of the wrist. For treatment, he recommended a removal splint to rest the wrist and allow the swelling to go down and a home exercise program. Dr. Brown released Claimant to work full duty and opined Claimant should not suffer any residual functional loss or difficulties with his left hand or wrist. He believed there would be some soreness for some time, usually four to six months, but the soreness would go away. He noted that typically there was no long-term negative sequelae from this type of injury.

Dr. Brown prepared a written report containing a disability rating based upon American Medical Association guidelines, which is required by section 8.1b(a) of the Act. Dr. Brown opined in his report there was no permanent impairment in the Claimant's left extremity as a result of the chip fracture. He explained in the report at the time of the last examination, Claimant was doing great functionally. He had full range of motion, no tenderness, and no measurable impairment.

The Appellate Court noted the determination of permanent partial disabilities for workplace accidents occurring after September 1, 2011, is governed by section 8.1b of the Act, which became effective on June 28, 2011. Section 8.1b(a) requires a licensed physician to prepare a permanent partial disability impairment report setting out the level of Claimant's impairment in writing. The report must "include an evaluation of medically defined and professionally appropriate measurements of impairment that include, but are not limited to: loss of range of motion; loss of strength; measured atrophy of tissue mass consistent with the injury and any other measurements that establish the nature and extent of the impairment." Section 8.1b(a) requires the physician to use "[t]he most current edition of the American Medical Association's 'Guides to the Evaluation of Permanent Impairment' *** in determining the level of impairment."

In determining the level of a Claimant's permanent partial disability, section 8.1b(b) directs the Commission to consider: "(i) the reported level of impairment pursuant to subsection (a); (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee's future earning capacity; and (v) evidence of disability corroborated by the treating medical records." In the present case, the Arbitrator considered each of the factors contained in section 8.1b(b) and made the following findings: 

      Dr. Brown found an impairment rating of 0% of the left wrist; 

      Claimant was employed as a labor trainer for the Respondent and has continued in his usual and customary employment as of the trial date;

      Claimant was 49 years old as of the date of loss; 

      Claimant was released to his regular job by his treating physician and continues to work in that position as before the incident; and

      Claimant described some minor residual symptoms in the wrist.

Despite Dr. Brown's 0% impairment rating, the Arbitrator found Claimant sustained a 5% loss of use of his left hand as a result of the accident. The Arbitrator stated he determined the nature and extent of the Claimant's injury by considering "the totality of the evidence adduced."

In the present appeal, the employer argued, by adopting the Arbitrator's decision, the Commission misinterpreted section 8.1b of the Act. The employer argued, as a matter of law, Claimant's request for permanent partial disability should have been denied because he did not present a physician's report to support a finding of a permanent partial impairment. The employer also argued, alternatively, under the manifest weight of the evidence standard, the Commission failed to give proper weight to Dr. Brown's impairment report, Claimant's extremely limited treatment, and his return to full duty at his prior earning capacity. 

As we expected, the IL Appellate Court WC panel quickly and summarily “knocked out” each of the employer's arguments.

First, the employer asked the Court to interpret section 8.1b under a de novo standard of review and hold Claimant was required under section 8.1b to submit a medical report in support of his disability. This sets up what we call a “battle-of-the-ratings” that happens in other states. The employer complained Claimant did not offer any subsection (a) report that supported permanent impairment; instead, the only report in the record is their report from Dr. Brown, which contained a 0% impairment rating. Therefore, the employer argued the Appellate Court must reverse the Commission's award as a matter of law under Section 8.1b of the Act. The unanimous appellate majority noted the language of section 8.1b(b) required the Commission to consider a report prepared by a physician that includes an opinion concerning the level of the Claimant's impairment. The record in the present case established the Arbitrator and later the Commission considered Dr. Brown's impairment report in determining Claimant's permanent partial disability. They noted the Commission's consideration of this impairment rating report complied with section 8.1b's requirements. 

The IL WC Appellate Court expressly and accurately noted the statutory language does not require Claimant to submit a written physician's report. It only requires the Commission, in determining the level of the Claimant's permanent partial disability, consider a report that complies with subsection (a), regardless of which party submitted it. In addition, the majority notes section 8.1b does not specify the weight the Commission must give to the physician's report. Instead, the language of section 8.1b(b) clear states "[n]o single enumerated factor shall be the sole determinant of disability." Therefore, nothing within the statutory language of section 8.1b requires the Commission to automatically adopt Dr. Brown's reported level of impairment merely because the two parties submitted only one subsection (a) report. To the contrary, the Commission is obligated to weigh all of the factors listed within section 8.1b(b) and make a factual finding with respect to the level of the injured worker's permanent partial disability with no single factor being the sole determinant of disability. 

Second, the employer argued, alternatively, the Commission's decision is improper under the manifest weight of the evidence standard. The Court’s majority again disagreed. The decision notes under the manifest weight of the evidence standard, they must give proper deference to the weight the Commission gave to each of the factors listed in section8.1b(b). There was sufficient evidence to support the Commission's findings with respect to each of the factors, and nothing in the record indicates the Commission panel gave improper weight to any one factor. The ruling indicates “[n]othing in the record compels us to second-guess the Commission.”

We want to add a couple of thoughts—one, we always compare what happened to Claimant as it might compare to a non-employee visitor to the same tire-making plant who fell and suffered the same injury and sued in Circuit Court for premises liability. If you or I suffered the same injury, we could see a jury finding liability and awarding $25,000 or more in damages. In contrast, this Claimant received only $6,474.31. It is tough to imagine the “value” of a rapid and fair workers’ comp award being that low but it is hard to get one’s head around the more intense idea an undisputed and seriously fractured wrist should be zero in a workers’ comp setting.

We also want our readers to note the ruling appealed from for 5% LOU hand for a fractured wrist is a dramatically lower value than would have been issued by this administrative body just ten years ago. In 2005, the traditional value for a broken wrist would have been reserved from 15-25% LOU hand. Lots of Arbitrators under former-Governor-Blago-Now-In-Jail would have awarded 20% LOU hand or about $26,000! Illinois WC isn’t perfect but values continue to inexorably drop.

Please also note our current Governor Bruce Rauner is trying to again change the IL WC Act and a confab is set to discuss these proposed reforms with Speaker Madigan and Senate President Cullerton. The proposed WC reforms include a proposed change to consideration of impairment ratings but we are certain that reform, as drafted, wouldn’t change this outcome at all. We also don’t recommend IL WC move to a “battle of ratings” as it appears this employer wants—it won’t be hard for the Plaintiff-Petitioner bar to do so and litigation expense on both sides is certain to rise. We again suggest our brilliant Governor let the quiet WC reforms already in place take effect and move on to bigger things like fake government pensions, bringing state workers back to light duty and cutting the size of our bloated State government.

Finally, please note this employer probably spent $10,000-20,000-30,000 in litigation costs and expenses to fight these odd issues through four levels of hearings/appeals. Moving forward, our respectful advice would be to carefully read the IL WC Act as written and assume the Arbitrator, Commission and reviewing courts will enforce it as the General Assembly enacted it. While we have seen odd rulings where the Commission and reviewing courts “bend” the law and rules, it doesn’t happen for the WC defense side very often.

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

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Synopsis: The Dumbest Thing a U.S. Risk Manager Can Do In Workers’ Comp—Dancing with the Devil by “Paying Out of Pocket” for WC Losses.

Editor’s comment: We had an inquiry from a reader about a company/risk manager that knew they had a work-related accident with a serious injury but didn’t report it to their WC insurance carrier. To maybe save future insurance premium dollars and keep their “mod rate” low, they were paying medical bills and lost time out of their own bank account. As you can bet, the claim got bigger and bigger and it appeared they weren’t going to care any more about their future insurance premiums, they started to care about their current cash flow. They reported the claim very late and asked the carrier to reimburse the WC dollars paid to date and pick up the claim thereafter.

If you aren’t sure, this is the WC equivalent of “dancing with the devil.” In short, you are taking a giant risk to maybe save a few bucks in the near term. Why is it an enormous risk to pay a couple of bucks and avoid your insurance carrier for a work-related injury? Late reporting of injuries drives up costs. Workers are less likely to get proper care outside of the workers' comp system if the claim goes unreported. Prompt accident investigation and early treatment of injuries is often the key to successful claim handling. Late-reported injuries also tend to involve more costly litigation, as the insurance carrier and injured worker debate the necessity of medical care and time off from work.

Some state laws sanction employers who do not report compensable injuries to their insurance carriers. In some cases, employers wish to avoid paperwork and costs associated with a workers' comp injury and simply tell the injured worker to seek medical treatment, for which the employer will pay out of pocket. To avoid this practice, most states set a short deadline for filing a first report by an employer to the carrier; in Minnesota, the deadline is 14 days, while in South Dakota it's 20 days and in Iowa just 11 days. If the deadline passes without a report, state’s WC law may assess fines against the employer. This action can also incur inquiry, investigation and issues with your the insurance carrier, including denial of defense or cancellation of the workers' compensation policy.

In the Illinois workers’ compensation system, the risks of late reporting and ending up uninsured for a WC injury are dramatic. First, you can face both the administrative workers’ comp claim at the WC Commission, you can also be simultaneously sued in Circuit Court as a lead defendant. If you are sued in Circuit Court, any money you pay to your worker as a result of that litigation is not a credit against the WC claim. In short, you can owe double-benefits to your worker.

You may think “well, that can’t happen, because I have WC insurance, right?” Again, you are driving down a very scary road because you only have WC insurance if you timely report your WC claims to the carrier. At some unstated but important point, your WC insurance carrier has a valid basis to deny your WC coverage. There is a mountain of case law on denial of insurance coverage for late reported insurance claims. Please also remember you may be fighting a WC claim at the IWCC, a Circuit Court claim brought by your worker and an insurance coverage fight with your carrier. All of these sources of litigation can easily be avoided by simply following the rules.

In a late reported work comp claim, some WC insurance carriers may accept and start to pay appropriate benefits beginning when they learn of the WC claim and some carriers will deny WC insurance coverage entirely. The insurance carrier will want to be able to demonstrate what is called “late-notice-prejudice” and not simply late notice.

In a late-reported WC claim, for an insurance carrier to demonstrate “late-notice-prejudice” should be relatively easy. Some of the factors an insurance carrier isn’t able to do in a late-reported claim are:

ü  If prompt reporting had occurred, their claim adjuster could have insured key evidence was preserved;

ü  Witnesses could have been interviewed in completing a timely investigation of the loss to determine compensability and to determine an appropriate plan of action for resolving the claim.

ü  Prompt reporting allows the detection of “red flag indicators” for fraud and determines whether a work comp case should be referred for surveillance or if there is an opportunity to pursue subrogation against a negligent third party.

ü  Nurse case management could be used to monitor and manage all medical decisions;

ü  Medical treatment could be moved to a WC PPP or in specialized occupational medical clinics familiar with treating workers’ compensation injuries with a focus on facilitating an early return to work to promote quicker healing.

ü  Legal counsel could have been retained to set a litigation plan and validate evidence;

ü  IME’s and utilization review could be used to control medical costs.

Veteran WC readers will also remember the McMahan v. IWCC ruling from year 2000. In this claim, the employer didn’t timely report an undisputed injury. After late reporting, the carrier and employer got into a legal dispute over coverage and neither one of them paid the work-related medical bills. The claim went all the way to the Illinois Supreme Court who judicially changed longstanding and well-settled Illinois law to start allowing penalty petitions on unpaid medical bills.

Either way, our strong recommendation to all of our readers—it isn’t worth it, report your claims to your carrier as soon as you are sure you are dealing with a work injury. If you need advice relating to these issues, please contact us to discuss. 

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

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Synopsis: Surprise--Indiana WC Medical Payments Per Worker’s Compensation Claim Are Higher Than 17 States, WCRI Study Says. Analysis by Kevin Boyle, J.D. and Pankhuri Parti, J.D..

Editor’s comment: Indiana is often cited as one of the states with the lowest worker’s compensation costs for their businesses. Indiana politicians often make headlines after landing out of state companies that move to Indiana for this benefit. However, Indiana WC might not really be the lowest when you look at the highest cost in any work comp claim—medical care.

A national study indicates medical payments are actually higher in Indiana and rising faster than in most states examined by a recent study from the Workers Compensation Research Institute (WCRI). Their report, "CompScope™ Medical Benchmarks for Indiana, 16th Edition, covers 2008 to 2013, before the introduction of a hospital fee schedule enacted under Indiana’s House Enrolled Act (HEA) 1320, which went into effective on July 1, 2014. 

“Before HEA 1320, Indiana had higher prices for medical care than most states, and prices were rising faster, situations our studies have found among states with no price regulation,” said Ramona Tanabe, executive vice president and counsel for WCRI. “In Indiana, utilization of medical care was somewhat lower, which tended to offset the higher prices paid.”

Information in the current study serves as a baseline for Indiana, to compare with experience after the adoption of the hospital fee schedule.  The other states examined in the study were: Arkansas, California, Florida, Georgia, Illinois, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Texas, Virginia, and Wisconsin.

 Surprisingly, from those states studied, every other state in our law practice, Illinois, Michigan, Iowa and Wisconsin, has better metrics than Indiana.

The following are among the study’s findings:

·         Medical payments per claim with more than seven days of lost time rose 6 percent per year on average from 2008 to 2013 in Indiana, a faster rate than in most of the 17 states WCRI studied.

·         The percentage of medical payments for care within networks increased since 2010, which may have had a dampening effect on price increases. States that lack fee schedules tend to use medical networks frequently to help control medical costs through claims management and negotiated payment discounts. 

WCRI studied medical payments, prices and utilization in 17 states, including Indiana, looking at claim experience through 2014 on injuries that occurred in 2013 and earlier. WCRI’s CompScope™ Medical Benchmark studies compare metrics of medical costs and care from state to state and across time.

This article was researched and written by Kevin Boyle, J.D. and Pankhuri Parti, J.D. who are our top KCB&A Indiana legal specialists. Please do not hesitate to email them at kboyle@keefe-law.com or pparti@keefe-law.com.

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Synopsis: We are happy to announce the appointment of former IWCC Arbitrator Ketki Shroff Steffen to the Circuit Court bench.

Editor’s comment: She worked hard but wasn’t at the IWCC long and already had a number of years’ experience as a judge. We extend kudos to her and wish her well.