1-11-16; Understanding Email in Dealing with Your Defense Lawyers; Nathan Bernard on Important SS Rule Change in the Works; CA UR ruling to Threaten All WC UR and more

Synopsis: Understanding Email for Your Lawyers Handling Litigation Along with the Claims Handlers and Risk Managers We Report To.

Editor’s comment: The most basic technological tool used by virtually every competent attorney on a real time basis is electronic mail or email. It clearly has made the telephone, fax machine and overnight mail greatly less important to all insurance or self-insured legal claim handling. Email is an instrument that has completely changed the manner in which attorneys communicate with our clients, hearing officers and vendors. Used properly, email enhances communication with future and existing clients, thereby augmenting the attorney-client relationship. Almost-instantaneous email is a stark contrast to snail mail where documents could take a week or more to be created and sent to the respective recipient.

However, the improper use of claim email may prove to be a source of embarrassment, or worse, adversely impact the client, vendor, hearing officer or attorney. Care must be taken to ensure the sometimes informal nature of communication via email does not lead to a lack of consideration with respect to the substantive content of the communication. Recipients’ email addresses should be carefully checked and rechecked for pinpoint accuracy to insure you aren’t sending “stray” email to the wrong reader(s).

A great writer pointed out every email in a litigation claim should be composed as if someday an evidence exhibit stamp would appear at the bottom of the document. This caveat applies to emails from risk managers and claims handlers. The rules of proper spelling, punctuation, capitalization and grammar apply and should always be observed. If you copy anyone, all of your emails should start with a simple and clear salutation to the person you send it to first, so other recipients who are merely copied on the communication realize they are not the primary addressee. To maximize a recipient’s understanding of the importance of the communication, use the subject line in a simple but meaningful manner.

We are using/attaching Microsoft Word® documents less and less as email attachments for a variety of reasons—the main one is you have to keep resaving and re-dating a Word doc where email carries its own date/time when sent. As we point out below, since you have to save both the email and attachment, you are saving time to simply send an email.

We train all defense attorneys at KCB&A to be diligent in regularly checking and responding to emails. Our goal is to match or exceed our client’s intensity, so if a client is concerned about an important issue early in the morning or late at night, we try to get back to you on a 24/7/365 basis with great advice and needed research.

Lawyers Have to Save All of Your Emails, Even If You Don’t Assign Us The Claim/Litigation

As we outline above, email has replaced most other modes of communication to all parties in the course of representing a client. Although the obligations may vary depending upon the jurisdiction, in general an attorney must retain emails that have any impact upon the client’s representation and legal interests. Lawyers also have to save them consistent with local rule in the five states KCB&A handles. We have to carefully track and follow the law in individual jurisdictions concerning the retention, protection and storage of client files.

We are asked all the time if we made a settlement offer or filed a motion or some other legal task. If you want a copy of your lawyer’s settlement offer—ask them! If they can’t quickly send it along, you may have issues with your lawyer bigger than the handling of one claim.

We answer lots of emails about potential claims or legal issues. If you ask a KCB&A lawyer a hypothetical legal inquiry about a fact situation, we always like to err on the side of storage of your question and our answer about any legal topic. We will sometimes open a file without any billing until you authorize it. Much more often, we simply retain the email and any attachments in your general client file. We have the capability to search/locate any email to confirm your question and our answer. Case management software permits email to be attached to your electronic file so that all attorneys working on the matter may have access to it. KCB&A has a firm-wide program of email retention to insure all members of our defense team can locate key communications, to optimize your interests.

Please Consider “Replying to All” When Responding to Defense Attorney’s Email

When sending any outbound email, we routinely copy our trusted staff, usually to include a paralegal and secretary. We are responsible for staff and they have the same attorney-client secrecy issues lawyers have.

The purpose of copying staff in any response to our outbound email is twofold—it is much easier for them to follow what we are doing on any given file so they provide backup in keeping files up to date and managing the litigation. Copying our staff also allows them to incorporate our responses into the file and save, save, save what we are doing.

Maintaining Secrecy—Attorney-Client Privilege

In addition to the practical and ethical concerns noted above, the prevalence of email has raised a host of ethical/risk management questions. Primary among them is whether a lawyer may use email to communicate with a client without violating the confidentiality of their relationship. The conclusion is, as with all communications, an attorney must exercise reasonable care to insure he or she does not inadvertently disclose his or her client’s confidential information.

We appreciate your thoughts and comments—if you have a great idea or a new concept on handling email in litigated claims, please send it along. Please post your best thoughts on our award-winning blog.

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Synopsis: Proposed changes to Social Security regarding Workers’ Compensation Offset Age. To all of our readers, please feel free to tender public comments to the Social Security Administration by February 3, 2016. Analysis by Nathan S. Bernard, J.D.

Editor’s comment: KCB&A takes pride in handling claims for defense only so as not to run into conflicts in creating law or precedent unfavorable to our defense clients. We often receive views and comments on our articles from our colleagues on both sides of the bar. But we report on all available stories and facts pertinent to our practice and the plaintiff/petitioner bar may find this fairly important. It is also important to our other readers, specifically our clients or potential clients, as the only good file is a closed file and we would want to avoid re-opening a file we handled should the Social Security Administration come calling on a settled claim.

It is important to note Social Security Disability benefits may be paid at the correct amount when petitioners get workers' compensation benefits at the same time. There is a maximum total amount of combined benefits a recipient is allowed per month. Social Security will “offset” benefits to bring the total to the monthly amount allowable, sometimes completely until other benefits are no longer being paid. Currently, this happens until Petitioner reaches full retirement age (age 65) and begins collecting Social Security Retirement benefits instead of Social Security Disability benefits. That age is now being reconsidered to move up from 65 to 67 depending on the person's date of birth for those who reached age 65 on Dec. 19, 2015, or later. Very generally, full retirement age for those born in 1937 or earlier, to 1942 is 65; from 1943 to 1959 is 66; and after 1960 or later, is 67. Months are also taken into account depending on the exact day and month you were born in a given year.

Often, attorneys settling workers’ compensation claims will add “spread language” to contracts spreading out a lump sum settlement payment into a weekly/monthly amount so as to adequately ensure the offset amount is being taken into account correctly. There is no doubt Social Security will take a close look at the language of the settlement document when it is offsetting benefit amounts. If this language is not included in the settlement agreement, Social Security may ask for documentation of medical and legal expenses, which could be an unnecessary burden easily avoided by paying advance attention to detail.

What the Plaintiff/petitioner bar may soon need to take into consideration (depending on the result of the proposed changes) is being careful about drafting settlement language to ensure the spread language is correct and SS-approved, using the accurate date of birth to confirm the exact months for each individual petitioner, so their client isn’t receiving more than they should but also they are getting all their SS benefits they should each month.

The Social Security Administration is accepting public comments through February 3, 2016 to extend the workers’ compensation offset from age 65 to full retirement age. Comments on the proposed change may be submitted online at www.regulations.gov under docket no. SSA-2015-0018. Those commenting are cautioned to not include personal information such as Social Security numbers, because the comments will become public record. Comments may also be faxed to (410) 966-2830 or mailed to the Office of Regulations and Reports Clearance, Social Security Administration, 3100 West High Rise Building, 6401 Security Blvd., Baltimore, Maryland 21235-6401.

This article was researched and written by Nathan S. Bernard, J.D. You can contact Nathan at (312) 756-3726 or nbernard@keefe-law.com.

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Synopsis: California WC Ruling May Forecast Counter-Attack by U.S. Claimant Bar Against UR.

Editor’s comment: The national WC press is abuzz with news of a ruling by the California 4th District Court of Appeal on whether the exclusive remedy of the workers' compensation system may not be so exclusive after all. In King v. CompPartners, the Court said an injured worker could potentially assert a viable tort claim against a physician utilization reviewer for failing to warn him about the potential risks associated with the withdrawal from psychotropic medications.

The Court found the physician who provided a medical opinion as to the reasonableness and necessity of Claimant’s ongoing treatment with prescription medication had a doctor-patient relationship despite never seeing the patient or actually treating them. Either way, the Court said the doctor owed Claimant a duty of reasonable care.

In finding a duty was owed to an unseen Claimant, the Court did not address whether the doctor's duty encompassed some unstated obligation to advise the unknown Claimant about what could happen if he wasn't weaned off a specific medication. The ruling said Claimant should have been granted leave to amend his complaint to clarify whether this was the conduct for which he sought to hold the UR provider liable.

If Claimant were trying to hold the UR provider liable for wrongfully deciding a prescription wasn't an appropriate treatment for the on-the-job injury, then the Court said the workers’ comp system and its independent medical review processes provided the sole avenue for relief.

We don’t’ know if or how far this particular attack on UR may go—we are sure UR is a touchstone for the battle between the Claimant and defense bar on the Left Coast. UR entered the IL WC matrix in 2005-6 and still is evolving. It hasn’t reached the same level of acceptance as it has in California WC claims handling.

We feel the Court’s ruling indicating there is supposedly a patient-physician relationship in UR setting to be silly for numerous reasons—if you want more reasons than those outlined here, send a reply. We will continue to watch and report whether this new tort concept goes further.

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

1-4-2016; KCB&A Litigation Management Secrets Exposed!; Shawn Biery on WC Setoffs and Lien Recovery; LIlia Picazo on new and scary OSHA Ruling and more

Synopsis: Keefe, Campbell, Biery & Associates Litigation Management Secrets Exposed!! Learn How We Close WC and GL Claims Faster than Other Defense Lawyers.

Editor’s comment: We get asked and asked—we want our readers to understand our best approach to closing all WC and GL claims much faster than our competition. These simple steps are the optimal path for smoothly and rapidly close current and future assignments.

Part One—Closing Workers’ Comp Claims This Week, Part Two--General Liability/Motor Vehicle/Employment Law/Food Claims Next Week

In the work comp arena, claims handlers need to work with defense counsel on two preliminary issues.

a.    Is It Compensable?

If it is not compensable, in non-litigated claims, our KCB&A defense team are happy to provide you case law or citations to the WC Act and Rules to let you tell claimant why the issues are not covered under work comp. In litigated claims, you want the KCB&A team member to start the war and win it—we are happy to highlight the evidence needed to prevail in front of the hearing officer/arbitrator.

b.    If Compensable, How Do We Get Claimant to MMI?

If the claim is compensable, we assume you have accepted it and you are paying benefits. In Illinois and the other four states we cover, you main goal has to be getting medical care to a close so claimant is at MMI. It is very, very hard to close WC claims with treatment, disputed or not, still ongoing. Our favorite tools to cut medical care are utilization review (or UR) and/or independent medical exams (or IMEs). While IMEs have their role in managing litigation, we consider UR to be faster and a stronger tool to have claimant reach MMI because the process directly reaches out to a treater to confirm care is being denied and lets them “appeal” denial to a medical specialist. Either way, if you need help on getting a claimant to MMI, send a reply.

Having Worked to Get Claimant to MMI, What is the Next Step to Rapid WC Claim Closure? Our Vote Never, Ever Wait for the Other Side to Make a Demand, Evaluate/Cogitate/Work Up for Settlement and Make a Fair and Reasonable Offer

We feel many of our competitors make a seminal mistake to tell you they are asking the other side for a demand. The other side of the WC lawyer matrix isn’t always interested in closing cases. Their goal is to have a large book of business where existing claimants send them other business/claimants. If you ask them for a demand, they may view that as a sign of weakness and routinely ask you for the moon, sun and stars. Once they ask for way-too-much, you now have to rein them in to less. Why start out in that fashion?

In our view, you are way better to do your homework and figure out a fair middle-ground that we can justify to one of Illinois’ very sharp, professional and reasonable WC Arbitrators or an Indiana Hearing Member. If the other side won’t take the settlement based on an email from your lawyer, consider telling/authorizing your defense lawyer to set up a pre-trial before an Arbitrator or Hearing Member who may tell the Claimant attorney to take it or ask your defense attorney to bump it up a little but either way, the hearing officer will try hard to get the claim to close. Most IL WC Arbitrators or IN Hearing Members don’t want to hear the boring/whining claim and will drive hard to bring the parties together in a favorable middle-ground settlement.

Please Also Remember—Don’t Have Defense Counsel Simply Make a Written Offer, Send Draft Settlement Contracts to Push Hard to Close

If the offer is fair and reasonable, when your defense attorney writes it up and puts it on contracts, you get to see it to confirm your authority and insure everything is in order. The devil can be in the details. When you approve and the draft lump-sum contracts are sent to Claimant’s counsel, the other side can deduct their fees and costs and send them to Claimant for signature. The great advantage to doing so is Claimant can tell precisely what they will receive and sign off on it. This is a win-win for all sides and brings many WC claims to rapid closure.

The defense team at KCB&A has other various tactics and concerns to bring litigated WC claims to closure. If you have questions or concerns, send a reply or post it on our award-winning blog.

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Synopsis: Important Ruling for Decision Makers Regarding Setoffs and Lien Recovery…or when making decisions while implementing cross coverage policies.
Analysis by Shawn Biery, J.D., MSCC.

Editor’s comment: While not new information, this can guide those who need to determine settlement when a lien or other causes of action are still in play. In Acuity v. Decker, 2015 IL App (2d) 150192 issued December 23, 2015, Plaintiff Decker was injured in motor vehicle accident while working for his employer and received workers' compensation benefits through the employer's worker's compensation carrier. He eventually also reached settlement with insurer for third-party tortfeasor (other driver), for full policy limit, and Plaintiff paid worker's compensation insurer fromthat settlement the amount required to satisfy workers' compensation lien. Plaintiff also filed UIM claim with his employer's auto insurance carrier which also had coverage and since employer's auto policy did not treat workers' compensation as an element of loss under a "Liability Coverage Form", Plaintiff was allowed to present all elements of loss in UIM arbitration, including those elements paid through workers' compensation with the employer auto carrier only having those elements subject to the set off for the amount Plaintiff actually recovered on his workers' compensation claim and on his claim against other driver.

Factually, Defendant Decker suffered personal injuries in an automobile accident while working for his employer, Groot Industries, Inc. (Groot) and Decker received workers’ compensation benefits totaling $350,942 from plaintiff, Acuity, which was Groot’s insurance carrier. Decker settled his claim against USAA, the insurer for Carol Hunter, the third-party tortfeasor, for the full policy limit of $50,000, and Decker paid Acuity the portion of that settlement required for satisfaction of the workers’ compensation lien totaling $37,067.48. Decker filed an underinsured motorist (UIM) claim with Acuity who was also Groot’s automobile insurance carrier. Acuity filed a declaratory judgment action against Decker and Groot, contending that it was entitled to a set off for the entire amount it paid to Decker on the workers’ compensation claim, plus the entire amount that Decker received from USAA, and that certain elements of loss for which Decker had been compensated through workers’ compensation were precluded under Groot’s automobile insurance policy.

The parties each filed motions. In its declaratory judgment complaint, Acuity sought a judgment that the UIM coverage from which Decker sought compensation precluded certain elements of loss for which Decker had already been compensated. Acuity contended that Decker was not allowed to make a claim for lost wages, past medical expenses, and future medical expenses on his UIM claim. Acuity also contended that it was entitled to a set off for the full settlement that Decker received from USAA, including the $37,067.48 Decker paid Acuity from the settlement, plus the full amount paid for the workers’ compensation claim. Acuity sought a total set off of $400,942. Decker argued there should only be credit for the amounts remaining after the repayment of $37,067.48 was taken into account and credited to the lien and Decker argued he should be able to seek damages for all elements subject only to the remaining set off.

Acuity’s motion was denied, but Decker’s was granted with the court finding that (a) Decker was allowed to present all elements of loss in his UIM claim, even though he had already been compensated for certain elements through workers’ compensation, and (b) Acuity was not entitled to a set off for the full settlement with USAA, because Decker was statutorily required to pay 75% of the settlement toward the workers’ compensation lien. The trial court concluded that the total set off that Acuity was entitled to was $363,874.52. After Acuity timely appealed, the court here affirmed for the following fairly simple reasons:

1)    COVERAGE:  Where ambiguous, insurance coverage is construed liberally in favor of coverage.                  

a.    Pertinent to the present case, the policy noted “No one will be entitled to receive duplicate payments for the same elements of loss under this Coverage Form or any Liability Coverage Form.” However the policy also later stated “Except in the event of a settlement agreement, the Limit of Insurance for this [UIM] coverage shall be reduced by all sums paid or payable:

                                          i.     (a) By or for anyone who is legally responsible, including all sums paid under this Coverage Form’s Liability Coverage.

                                        ii.    (b) Under any workers’ compensation, disability benefits or similar law.

                                       iii.     

2)    SET OFF:  The Court noted that the Illinois Supreme Court has noted the underlying purpose of UIM coverage is to “place the insured in the same position he would have occupied if the tortfeasor had carried adequate insurance. ”  

a.    UIM coverage was not designed to give either the injured party or the insurer a windfall and if they were to provide set off for more than the statutory lien amount, Acuity would be essentially allowed to count the $37,067.48 twice as part of the “sums paid” under Acuity’s UIM policy or the “amounts actually recovered” under the statute.

It appears Acuity takes issue with any reduction in the $50,000 however in actuality, the full $50,000 was set off because in receiving the $37,067.48 from Decker, it no longer had paid that $37,067.48. (As noted—placing each in the position he or she would have occupied).  Since Acuity’s policy does not treat workers’ compensation as an element of loss under a “Liability Coverage Form”, their position was not well founded. It appears the court rightfully concluded Decker should be allowed to present all elements of loss in the UIM arbitration, including those elements paid through workers’ compensation. However, those elements will be subject to the set off for the amount Decker actually recovered on his workers’ compensation claim and on his claim against Hunter.—that total now being $363,874.52.  

It would appear that the biggest takeaway after revisiting case law on lien reimbursement under Section 5 of the IL WC Act is that when one chooses to obtain multiple elements of insurance coverage, it would be wise to include language in all policies that recovery under one policy precludes recovery under the others—and frankly including language which verifies the exclusivity of the WC remedy for employees should also be  a consideration if possible. This article was researched and written by Shawn R. Biery, J.D. MSCC. You can reach Shawn via email at sbiery@keefe-law.com or via phone at 312-756-3701 with any questions regarding this case or general questions regarding workers' compensation liens, discussion on obtaining coverage or overall litigation coverage.

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Synopsis: A Slippery Slope Around Due Process! OSHA Administrative Law Judge issued a precedential ruling that allowed a claim for enterprise-wide abatement beyond specified violations in OSHA citations. Analysis by Lilia Picazo, J.D.

Editor’s Comment: On December 7, 2015, Administrative Law Judge Carol A. Baumerich issued a ruling reasoning a provision in the OSHA Act authorizing “other appellate relief” permits the U.S. Department of Labor grounds to seek enterprise-wide abatement to proceed to trial on said issues. With respect to ALJ Baumerich, we disagree.

On November 2014, OSHA cited Central Transport, LLC for 14 workplace safety and health violations at a shipping terminal in Billerica, Massachusetts. In its complaint, OSHA alleged Central Transport failed to comply with agency standards for the safety of industrial trucks at all of its locations. OSHA requested an order compelling Central Transport to comply with safety standards at each location and proposed a fine of $330,800.

On December 2014, Central Transport filed a notice to contest the motion with the OSHA Review Commission asking it to strike OSHA’s claim on the basis the OSHA Act did not permit enterprise-wide abatement. Judge Baumerich denied Central Transport’s motion and held a provision in the OSHA Act authorizing “other appellate relief” permitted the Department of Labor to lodge claims for enterprise-wide abatement.

OSHA’s ruling is the first decision to allow enterprise-wide abatement beyond the specified violations mentioned in the issued citation. Put simply, OSHA can now seek to require a company abate hazards that may be present at a site or multiple sites that have not yet been inspected.

This ruling is troubling for business observers in many respects. First, it does not pass the “smell test” for complying with Respondent’s due process rights. In fact, it allows OSHA to blindly lodge claims without actual knowledge of any violations. Generally, OSHA issues citations, which advises an organization of the specific violations OSHA claims it violated. With this ruling, OSHA can proceed on one violation and request a trial on company-wide abatement, despite the fact it has not inspected any other facilities. Second, it subjects Respondent to additional discovery without any allegations of what specific violations there are at other unrelated facilities.

Some important lessons from OSHA’s ruling:

1.    Review and stay up to date with your company’s or industry’s most common violations;

2.    Communicate all health and safety patterns or challenges throughout all facilities; and

3.    Implement and provide continuous up-to-date training to all levels of management and employees to regularly inspect in order to avoid a future violation.

With OSHA’s new ruling, we would not want to see companies get hit with hefty fines over violations that could have been prevented had the proper protocols been set in place.

This article was researched and written by Lilia Picazo, JD. You can reach Lilia 24/7/365 for questions at lpicazo@keefe-law.com.

12-28-15; How Can The IL WC Business Community Disagree More?; Shawn Biery & Matt Ignoffo on SMART Act Change; New IRS Mileage Rate for IL WC IME's and more

Synopsis: Another IL WC Appellate Court “Activist” Stunner—How Can the IL WC Business, Gov’t and Insurance Community Disagree More?

Editor’s comment: In Oliver v. Illinois Workers' Compensation Comm'n, issued December 18, 2015, Claimant worked for an IL construction employer for only three days. His supervisor saw him on all three days and noticed nothing unusual about Claimant during the entire time he worked for the company.

Several days after being laid off, Claimant called his supervisor and surprised the supervisor to tell his boss he was seriously injured while working for the company. As a business observer, one would start to smell the WC equivalent of the proverbial “rat.”

The matter was tried before former Arbitrator Kinnaman who awarded about 12 weeks of lost time, about $20K in medical bills and 20% LOU arm. She also imposed penalties and fees against the employer, asserting there was no basis for disputing the claim. With respect to former Arbitrator Kinnaman who still receives this KCB&A Update, we disagree with the award of penalties/fees.

The matter was then administratively appealed to the IWCC and former Commissioner Dauphine headed the three-member panel who affirmed the award of lost time, medical bills and permanency. They carefully considered the claim and reversed the award of penalties/fees.

The Cook County Circuit Court judge re-imposed section 19(k) penalties and Section 16 attorney's fees against employer for what the Court felt was a deliberate refusal to pay TTD solely based on Petitioner Oliver having reported work accident 6 days after accident rather than on date of accident, as the employer required. The Court noted our IL Worker's Compensation Act allows employees 45 days to report an accident. As we report above, the 5-member Appellate Court, WC Division unanimously affirmed.

The Circuit and Appellate Court indicated their sole focus was on the employer's policy to not pay TTD benefits if a work accident is not reported on day it occurs is unreasonable, given Act's allowance of 45 days to report and also given their view some injuries do not manifest themselves until some point after the alleged accidental event occurs.

As veteran defense attorneys and commentators on behalf of IL business, insurance and employers community, we strongly object to the imposition of penalties/fees in a claim such as this one. In our view, there are so many question marks and uncertainties in this claim we consider it a liberal ruling to award Claimant a dime. We do not know if the defense firm that handled this claim did a solid job at hearing because there are many issues that arise from our review of the Appellate Court’s order.

Here are just a few of our concerns:

1.    Claimant testified he was working on a small barge welding when injured. The work was being performed above the water in Belmont Harbor—from the description, we are sure he was over navigable water while working. It appears this claim isn’t an IL workers compensation claim but a federal Longshore Harbor & WC Act claim—a motion to dismiss should have been brought for that reason. Actually, a motion to dismiss for lack of subject matter jurisdiction by our IWCC can be made right now.

2.    Petitioner Oliver only worked for this employer for three days. As any staffing risk manager will tell you short term workers are much more likely to file questionable claims than long-term workers.

3.    The supervisor was present on the job site all day on the date of claimed loss. The supervisor testified under oath he didn’t notice any medical issues with Claimant at all during the entire day. Petitioner admits he didn’t say a word about the event to his supervisor on the job site on that day. By themselves, these facts clearly presented a basis to deny the claim-it is our view, the Circuit and Appellate Court rulings completely disregard and discount these undisputed facts.

4.    Claimant asserted he smashed his elbow and arm when he recoiled and hit his elbow on a steel wall—despite claiming he yelled in pain, he asserted he didn’t want to report every bump and bruise. He admits he had no demonstrable outward indication of an injury while on the work site.

5.    Claimant also admits he received no first aid, emergency or other medical care on the date of loss.

6.    Petitioner admits he performed his normal job in a normal way without any restriction, job change or assistance.

7.    Petitioner claims this disputed event occurred on a day he knew the job was shutting down and he would be out of work—similar to number 1 above, there are lots more questionable claims filed on the eve of a layoff.

8.    Claimant testified to a supposed witness—the testimony about the witness was clearly hearsay. We are not sure if any objection was made at the time the testimony was offered before the Arbitrator. If an objection was made, the testimony should have been stricken and not considered by any hearing officer or judge/justice.. If no objection was voiced, the defense attorney should be criticized for not making it. Either way, such testimony about “what someone else saw or heard” is not reliable or supportive of an accidental injury.

9.    Petitioner had an undisputed and longstanding pre-existing condition in his arm. There is no question he filed an earlier IL WC claim for the same condition alleged in this claim. He received a hefty settlement from that earlier claim.

10. Because of the pre-existing and longstanding problems with his arm and elbow, it is possible Claimant suffered a failure or tear in his elbow at an earlier date during normal work.  Having felt that problem arise, he became the WC equivalent of a “ticking time bomb” wanting to take advantage of his malady to get the problem repaired and benefit from IL WC PPD values. The best way to “create” such a claim would be the fashion in which this claim unfolded.

The Last Statement by the IL Supreme Court to the Lower Courts—Don’t Flip IL Work Comp Commission Outcomes

We remember Sisbro and Twice Over Clean which comprise two definite legal statements from our highest court that bounced around the IL reviewing courts for years. In those rulings, the Supreme Court made it clear the reviewing courts are not supposed to reverse or “flip” an IWCC outcome simply because the reviewing judge/justices feel there might be a better outcome with their view of the facts.

Actually, since the Supreme Court issued the rulings above, we have yet to see a single award of IL WC benefits reversed to impose a denial. Instead we have seen numerous Circuit and Appellate Court rulings where denials are reversed to maximize awards and benefits, like this ruling.

Please note Claimant Oliver received approximately $75K in IL WC benefits. He received that money after the IWCC ruling came out years ago. His lawyers did a solid job in getting him the monies due. We feel our “activist” courts should have left well enough alone and let Claimant Oliver

·         Pay his own legal fees and

·         Not received the “bonus” of two different types of IL WC penalties, as the IWCC turned those down.

The Clear Message to U.S. Risk Managers from This Ruling—Don’t Rely on Same-Day or 24-hour Accident Reporting as the Sole Basis for Denial

We have a number of clients and readers who have same-shift or 24-hour accident reporting requirements for all workers. There are unions who support this concept and will allow disciplinary actions including suspensions and terminations for failure to report any event involving pain or medical problems. You don’t want anyone to say they tried to “tough it out” to then bring a major WC claim.  As most folks have cell phones, they can and should be required to text or call with any medical issue of any kind. We support what we feel is state of the art accident reporting protocols. If you want thoughts and guidelines on how to best implement same-shift or 24-hour reporting, send a reply.

The mistake this employer, or at least the one supervisor made and for which they have to be cautioned is the supervisor’s refusal to take a statement or allow a report of the event due to the lateness of reporting. In our view, they did the “ostrich in the hole” approach to accident investigation—they refused to allow the claim to be reported or investigated due to the lack of timeliness in reporting. The opposite approach should have been taken.

A late reported event should put up a giant red flag to your managers. Such an work accident report needs to be completed with follow-up inquiries to all supervisors and co-workers. Witness statements should be obtained. Surveillance or security camera footage should be sought and preserved. Management review should be completed.

The only thing you don’t want to do is what happened in this claim. Refusal to record or investigate a work injury claim because it was late reported is a crucial mistake that needs to be avoided. The work injury claim doesn’t “disappear” because you don’t investigate. Actually, it will probably come back to bite you. Don’t get bit!!

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

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Synopsis: Conditional Payment Process for Medicare In U.S. WC Gets Easier ??? Thoughts and analysis from Shawn Biery, JD, MSCC and Matt Ignoffo, JD, MSCC.

Editor’s comment: As part of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act), the MSPRP will be modified to include Final Conditional Payment process functionality by January 1, 2016. This new functionality will permit authorized MSPRP users to notify CMS that a recovery case is 120 days (or less) from an anticipated settlement and request that the recovery case be a part of the Final Conditional Payment process. After January 1, 2016, settling parties will be able to obtain a Final Demand prior to settlement if CMS is notified 120 days or less that settlement is anticipated. It should also be noted that the SMART Act provides that CMS must be given at least 65 days’ notice prior to the settlement, judgment or award.

As far as the nuts and bolts go, it will be triggered when the Final Conditional Payment process is requested, any disputes submitted through the MSPRP will be resolved within 11 business days of receipt of the dispute. Once all disputes have been resolved, and the case is within 3 days of settling, the beneficiary or their authorized representative will be able to request a Final Conditional Payment Amount on the MSPRP.

Once calculated, this amount will remain the Final Conditional Payment Amount as long as:

·         The case is settled within 3 calendar days of requesting the Final Conditional Payment Amount, and

·         Settlement information is submitted through the MSPRP within 30 calendar days of requesting the Final Conditional Payment Amount.

You can probably see that a number of problems arise specifically when you consider the inability to meet with a sitting Arbitrator in many venues within 3 calendar days, so in practice this does not appear to be a significant help in WC Claims—however it certainly gives a better option to lock in certainty in value if you can move so quickly. We consider it ironic that CMS has such a narrow time period for completion of settlement—especially when you consider that this last piece of the SMART Act to be implemented was supposed to be available 9 months after the SMART Act’s implementation (October 10, 2013).

Overall, we hope this development will be helpful in finding certainty in settlements where conditional payments are an issue. As for the dispute process, an 11-day resolution window by CMS is a quick turnaround time and should help to expedite settlement. However, you should note there is a limitation in that only disputes based upon relatedness can be submitted via the portal and all other disputes must be in writing so for a fair number of disputes (legal or statutory arguments), the disputes have to be submitted outside of the portal, and it is difficult to see how the 11-day turnaround time can apply in real life practice.  

On another note, once you get within the 3 days of settlement, you can simply request another Final Conditional Payment Amount to obtain another time and date stamped Final Demand when ready to settle as we are not aware of any limitation on the number of times you can download a Final Demand.

This may sound like old news to anyone who reads the updates—if not, or for any questions regarding Medicare Set-Asides, CMS review thresholds or other Medicare related issues with regard to your settlements, you can reach Shawn R Biery, J.D. MSCC  via email at sbiery@keefe-law.com or via phone at 312-756-3701 or you can also contact our other MSA certified attorney Matt Ignoffo, J.D. MSCC via email at mignoffo@keefe-law.com or via phone at 312-756-3729.

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Synopsis: IRS Mileage Rates for IL WC IME’s Announced.

Editor’s comment: Based on IL WC case law, The Internal Revenue Service issued the 2016 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business purposes.

Beginning on January 1, 2016, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:

·         54 cents per mile for business miles driven (57.5 cents in 2015)

We suggest all IL WC Practitioners note the change.

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Synopsis: KCB&A is Looking for a Paralegal and a Michigan WC Defense Lawyer with three to five years’ experience. The positions are open right now. Need resumes.