March 01, 2016

2-29-16; IL Supreme Ct Abandons "Public Duty Rule" to Allow New Suits Against Local Gov'ts; John Karis on Shocking Workplace Ruling Against a GC and Others; Athletico Starts New WC Customer Service...

March 01, 2016/ Eugene Keefe

Synopsis: IL Supreme Court Follows ITLA Lead and Party Affiliation to Abolish the "Public Duty Rule" and Allow Unprecedented New Lawsuits Against Your Town and Mine—Higher Taxes Are Sure to Follow.

Editor’s comment: This isn’t truly a WC issue so if you aren’t concerned about higher local taxes in your town, skip this one. For insurance brokers among our readers, this is a new and unparalled risk your government clients will now have to deal with, for the first time—call your underwriters!

A divided Illinois Supreme Court recently abolished the common-law "public duty rule." This standard, widely known as the "public duty rule," was conceived by the U.S. Supreme Court more than 150 years ago and has been firmly in place in Illinois for at least 50 years. The rule had long provided local governments and their first-responder and other government employees owe no duty of care to rapidly provide emergency or other government services to individual members of the public—they owe a general duty to all. In short, this rule meant the many government workers couldn't be sued for negligence, like failing to arrive rapidly.

The split Supreme Court panel in Coleman v. East Joliet Fire Protection District, 2016 IL 117952, found the rule is somehow no longer viable based on "the interplay between the public duty rule and governmental tort immunity.” Justice Kilbride wrote the lead opinion, with Justice Burke concurring. Justice Freeman wrote a specially concurring opinion, which was joined by Justice Theis. Justice Thomas dissented, and was joined by Chief Justice Garman and Justice Karmeier. You may easily note the majority was entirely from the IL Democratic Party and the minority was from the Republican side.

In Coleman, Plaintiff filed claims for wrongful death and survival against Defendant East Joliet Fire Department on behalf of the estate of Decedent Coleman, who died of cardiac arrest in the process of seeking EMS or emergency medical service. After extensive pretrial motion practice, the only remaining counts in the complaint were ones alleging willful and wanton conduct on behalf of Defendants. Those counts were disposed of by the trial judge on summary judgment under the “public duty rule.” The Appellate Court affirmed the trial court's ruling.

From the view of IL Business and Government, this is where this case should have ended. We note the “public duty rule” has been affirmed by Illinois courts, including prior panels of our Illinois Supreme Court, for well over 50 years. In short, no one has ever successfully claimed the “public duty rule” was discordant with local government tort immunity.

Surprisingly, the Coleman majority took a radical and different view. After analyzing the history of state governmental immunity in Illinois, our highest court turned to the history of the “public duty rule,” which has existed in some form across the United States since 1855. The majority found it was time to abandon it for three reasons:

· Jurisprudence was muddled and inconsistent in the recognition of the public duty rule and its special duty exception;

· Application of the public duty rule was incompatible with the legislature's grant of limited immunity in cases of willful and wanton conduct; and

· Determination of public policy is primarily a legislative function and the legislature's enactment of statutory immunities rendered the public duty rule obsolete.

Wow, most business and government leaders would strongly disagree with each and every thought above. Previously, a plaintiff's only means of demonstrating liability in the face of Illinois’ statutory governmental immunity was to show the government entity engaged in willful and wanton conduct. This is considered a challenge and also a protection to your town and mine. ITLA and the Plaintiff bar complained the public duty rule eliminated even that path for Plaintiffs, with very rare exceptions. Basically, the now-defunct rule exempted local governmental entities from any liability in connection with providing emergent services even if they were found to have committed willful and wanton conduct.

The Coleman majority also found our legislature carved out liability for cases of willful and wanton misconduct and the common law public duty rule was incompatible with the legislature's decision. Ultimately, the lead opinion left it to the legislature to determine whether it was necessary to retain the public duty rule, noting that it could always codify the existing rule or create a new rule.

Supreme Court Justice Thomas's scathing dissent took both the lead and specially concurring opinions to task for abandoning stare decisis with regard to the public duty rule. His opinion discounts the majority argument the application of the law was muddled. Justice Thomas also notes statutory tort immunity existed for decades prior to the Coleman ruling.

We feel this ruling ending the public duty rule will open up lots of new litigation for plaintiffs' attorneys to sue local governmental entities for good, middle and poor outcomes that might have been arguably prevented by better law enforcement or faster ambulances and fire trucks. The Coleman decision likely will increase the number and duration of lawsuits filed against public employees, despite the immunity provisions of the Illinois Local Governmental Tort Immunity Act. In addition, public employees now are at risk of liability for willful and wanton conduct, unless the Illinois Legislature acts to counter this ruling. To summarize, your town’s insurance costs are going up and your taxes are certain to follow.

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

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Synopsis: Huge Award Against General Contractor for Workplace Injury Following OSHA Investigative Actions and Citations. Analysis by John Karis, J.D.

Editor’s Comment: Be Forewarned--earlier this month, a jury in Harris County, Texas, awarded $54 million to the family of an employee killed while building Kyle Field stadium. Despite having no OHSA violations and not managing the employee, the general contractor was found the most responsible party for the worker’s death.

The facts of the case involve the employee using a loader's bucket to catch concrete debris being removed from the stadium. His work was part of the $450-million renovation. The loader had a 2,700-pound carrying capacity but was bearing a 3,340-pound concrete section as another worker was using a circular saw to cut the piece from a support column. The weight caused the overloaded equipment to topple forward over the side of the stadium. Tragically, the worker was thrown from the loader—falling about four stories to the ground.

OSHA issued two willful citations and placed the employer into their Severe Violator’s Program (SVEP). Being placed into OSHA’s SVEP has immediate and damaging national consequences, but this placement also created potentially unfavorable public evidence against an employer.

The lawsuit involved several site employers, including the Joint Venture/General Contractor, the deceased employee’s employer and another company working on site. Generally, workers’ compensation is the exclusive remedy against an employee’s employer or an injured employee, unless the employer engaged in near-intentional bad conduct resulting in the injury or fatality. This is a tough standard to prove. In Texas, an employer can also chose not to subscribe to workers’ compensation and consequently, be subject to a civil suit.

An OSHA area director, Casey Perkins openly claimed "these experienced contractors failed to provide employees with safe demolition procedures despite concerns from workers." He also said "employees had to work under the load and directly beside the skid-steer where they could be struck by the equipment or heavy, concrete debris. This disregard for worker safety is unacceptable and will not be tolerated." We are sure he has a right to his opinions, as a government worker.

OSHA then rendered a willful citation with a hefty penalty of $56,000 to one of the companies on the site for exceeding the operating capacity of the skid-steer loader where the equipment was loaded with concrete until what OSHA felt were obvious signs of tipping were seen. Another site subcontractor was also cited for a willful violation with a penalty of $63,000 for exposing workers to the hazard of being struck-by the skid-steer loader and concrete.

Due to evidentiary issues, Plaintiff did not get the OSHA citations before the jury but their underlying theories were present. Shockingly, the jury awarded $54 million dollars and their award did not include punitive damages. Plaintiff’s counsel claimed even without the OSHA citations, “Defendants were felt to be callous—refusing to accept any responsibility” which he claimed made the jury mad.

Notably, the general contractor was found 75% responsible despite no OSHA citations. The GC understandably argued a lack of responsibility under the usual multiemployer theory. They did not directly manage the employee and asserted his employer should have been responsible for his safety.

The obvious lesson is general contractors on a site take an enormous risk to leave safety concerns and management to the other contractors on site. The suit involved a construction site but there are lessons for any U.S. employer. An errant supervisor or an unusual/dangerous work situation can lead to bad events at any site.

If you’re a General Contractor, you need to:

· Effectively prequalify your subcontractors and ensure they provide site-specific training and a safety plan;

· Conduct a daily documented walk around and take documented corrective actions;

· Bid the job with provisions for adequate safety professionals;

· Owners need to insure general contractors adequately staff their jobs with safety support;

· Train your site superintendents, project managers and engineers and foreman to recognize and respond to observed hazards; and

· Regardless of who makes the error, all employers on site can pay whether by attorney’s fees and costs of defending a legal action and/or any judgments.

This article was researched and written by John Karis, J.D. You can reach John 24/7/365 for questions about OSHA, general liability defense and workers’ compensation defense at jkaris@keefe-law.com

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Synopsis: Athletico Announces Their New Workers’ Compensation Customer Service Department.

Editor’s comment: Athletico is one of the top physical therapy providers in the U.S. They just announced the formation of a new WC Customer Service Dep’t to optimize services to their patients, doctors, claims handlers, risk managers and attorneys on both sides. We want our readers to know of this new transition to insure when your claimants need physical therapy after a work accident, your needs are fully served.

By providing Work Comp services, educating employees on safe work habits, and creating environments where injuries are preventable, Athletico Physical Therapy really does go to work for their component participants. From the time of injury through claim closure, their Work Comp services make the entire PT process a cost-effective and timely manner for everyone involved.

Athletico's Work Comp Services:

Work Conditioning
Physical Therapy
Occupational/Hand Therapy
Functional Capacity Evaluations
Ergonomics
Job Analysis
Post-Offer Testing

About Their Services:

Athletico works to develop a training protocol for the long-term success of occupational and Work Comp and safety programs by training, equipping, and supporting allied health and safety professionals.

Athletico also offers a number of preventative and educational services. Work Comp specialists are trained to assess the work environment and worker behaviors in order to customize intervention techniques and programs. Programs include the following:

Job-Site Evaluations
Job Analysis
Workplace/Ergonomic Assessment
Post-offer/Pre-employment Testing
Injury Prevention Strategies
Spine Control Classes

Benefits of Athletico’s Work Comp Services

Comprehensive: Athletico Physical Therapy offers timely, cost-effective Work Comp services designed to not only treat on-the-job injuries, but also return injured workers to the job with minimal risk of re-injury.

Convenient: Patients are guaranteed easy access to any of their convenient locations within 24-48 hours of their initial call. This allows them to minimize down time by quickly assessing injures and setting return-to-work goals.

Customized: Based on a valid job description and comprehensive interview of the injured worker, their rehabilitation specialist will develop return-to-work goals specific to each patient’s injury and on-the-job activities.

Coordinated Communication: Their comprehensive, convenient, and customized approach to Work Comp extends beyond the injured worker. Athletico staff provides timely communication to all involved parties, including employers, primary physicians, case managers, and legal representatives. In addition to the rehabilitation progress, we will provide 24-hour notice of patient cancellations or no-shows for scheduled appointments.

If you are a work comp professional and interested in learning more about Athletico’s WC Customer Service Dep’t, contact Michael Trombetta at michael.trombetta@athletico.com

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Synopsis: Need WC Training? Learn from the KCB&A Experts about New WC Rules and Decisions from 2015 and Beyond .

Editor’s comment: In our view, training and expertise in new work comp developments is critically important for you to keep ahead of your competition in claims and risk management. We have culled out the important decisions and changes to law for the last year to add to our 2016-17 IL WC Law Textbook. We can present the most important of them for you and your adjusting/risk management staff in a complimentary onsite lunch and learn at your office. We can also “webinar” your remote workers who want to keep pace with the office staff. Let us know if you are interested in a lunch hour presentation that we assure you will be informative and entertaining.

Here is the outline created by John P. Campbell, J.D. and Nathan Bernard, J.D. for your consideration:

When is a Physical Problem Repetitive Trauma versus Repetitive Working?

Question: How Exactly Do You Tackle an IL WC Fraud Claim? IL Courts Play the Laurel and Hardy Game of “Who’s on First?”

IL WC Wage Differential Exposure Expanding based on Recent Appellate Court Ruling.

Defense/Respondent Contact with Treating Doctors Met with Shocking Penalty and Sanction from Circuit Court Judge.

Traveling Employee Expansion When Handling Work Equipment While at Home.

Medicare Set-Aside Process as SMART Act is Implemented.

Comparing How Impairment Ratings are Considered at the IWCC.

We can also do a half-day or whole day seminar to teach all the nuances of IL WC. Let us know is you have interest—all you have to do is send a reply.

February 22, 2016

2-22-16; Can We Use AOO/ICO as the Proper Analysis and Drop the "Traveling Employee" Concept; Kevin Boyle on Important IN Ruling; Is the IWCC Cutting Costs?!!!; IL WC PPP May Save You Millions

February 22, 2016/ Eugene Keefe

Synopsis: Another Odd “Traveling Employee” Ruling—We Continue Criticism of the Confusing Concept.

Editor’s comment: In United Airlines v. IWCC, No. 1-15-1693WC, issued February 22, 2016,.the IWCC and IL reviewing courts had another back and forth about the “traveling employee” concept. We salute the IL WC Commission and courts for getting the ruling “right.” We caution our readers, students and others to remember out highest courts are always arguably ‘right’ because they set the law and we must respect their rulings. Perhaps the better way to analyze it is to indicate our feeling the IL and national business community will agree with this outcome but perhaps for different reasons. The reason we consider the ruling odd is the words “traveling employee” don’t appear in the IL WC Act or Rules. In contrast to our state, Florida and a few other states do have definitions of the words “traveling employee” and such definitions are used by their administrators and courts to openly and fairly implement the legal concept. Due to the lack of any legal definition in this state, almost any decision based on the term “traveling employee” is probably a political and not legal ruling. When we see the words “traveling employee” as the subject of IWCC and reviewing court rulings, we think of silly but comparable terms like “tumbling acrobat” or “drunken stevedore” and confirm there are no similar legal rules arising from these combination terms. Like the term “traveling employee” we assert if the IL WC Commission and Courts created a “tumbling acrobat” rule, it would also have no relevant legal definition or work comp meaning in our state.

Despite the unquestioned statutory absence of any definition of “traveling employee,” the IL Appellate Court framed their legal analysis as “The issue that we must decide is whether the claimant was a traveling employee when she injured her knee on the United flight from Denver to New York.” A layman’s answer to that simple question is easy—Claimant was unquestionably an airline employee and while flying in an airplane, she was clearly “traveling,” so why didn’t she get WC benefits? The inescapable response is their question and the whole “traveling employee” concept is, in our respectful view, logically and legally flawed. Instead of answering the question, the Court sort of analyzed the issue of what a traveling employee might or might not be but the unanimous opinion clearly reviews the accurate legal framework for all similar claims—AOO/ICO.

Arising Out Of and In the Course Of (or AOO/ICO) is the Accurate IL Legislative Analysis for Any “Traveling Employee” Claim—Please Stop Using the Political and Not Legal Term!

These terms—AOO and ICO are defined in our law. While a child might not immediately comprehend them, to veteran WC participants, they are generally easy to understand. We urge all jurists, administrators, attorneys, risk managers, claims adjusters and everyone else to adhere to them as the proper method to analyze this claim and all similar WC claims. In this claim, the Illinois Appellate Court ruled a flight attendant was not within the course and scope of her employment when she injured herself while traveling as an unpaid passenger going to work for the airline from a New York hub.

There is no dispute Claimant worked as a flight attendant for United Airlines. She lived in Boulder, Colorado, but she worked on United flights out of their hub in New York. In September 2011, she traveled from her home in Boulder, CO to the Denver International Airport. From there, she boarded a New York-bound United flight, traveling basically for free because she worked for the company. Although Claimant was not working on the flight, she wore her flight attendant uniform to the airport and on the plane so she could more easily bypass the TSA and other security stuff that tortures the rest of us while traveling. Once Claimant was on the plane, she went into the tiny airplane bathroom and changed into normal casual clothes.

On her way back to her seat in the airplane, Isern tripped and fell, injuring her knee. We are uncertain why that description of an accident would make it necessarily compensable but it appears the Arbitrator, IWCC and both reviewing courts didn’t question initial compensability of the occurrence.

IL WC Arbitrator David Kane ruled Claimant’s injury was compensable because she qualified as a "traveling employee." He ruled a "traveling employee" is a person whose work duty required her to travel “away from the employer's premises.” Again, in the case of a flight attendant, that definition in the context of this claim is nonsensical—she was in/on the “premises of the employer” or its airplane! The Arbitrator further ruled a “traveling employee” is mystically considered to be "in the course of" her employment from the time she left her Colorado home until she returned home, and any injury sustained by a traveling employee "arises out of" her employment if she is injured while engaging in conduct that was reasonable and foreseeable. Try to contemplate how much this wildly expanded WC coverage would affect the IL transportation industry.

The Illinois Workers' Compensation Commission panel, headed by Commissioner Stephen Mathis reversed Arbitrator Kane, finding Claimant did not qualify as a “traveling employee” under the legal standard established by the IL Supreme Court's 2013 decision in Venture-Newberg-Perini, Stone & Webster v. IWCC.

Claimant appealed, and Circuit Court Judge Roberto Lopez Cepero reversed the IL WC Commission’s ruling. Judge Lopez Cepero found the Supreme Court’s rule from Venture-Newberg-Perini was inapplicable to this Claimant because that landmark decision supposedly involved a worker on a “temporary assignment” and this Claimant was somehow a “permanent” United employee. If you follow the Judge’s thinking, all construction workers would be on “temporary assignments” and they would all magically lose their purported status as “traveling employees” for that reason. Whatever a “permanent worker” might be would be then entitled to the expanded “traveling employee” WC coverage.

In considering the ruling from Judge Lopez Cepero, this Appellate Court, Workers’ Comp panel unanimously ruled the denial in Venture-Newberg-Perini applied to this Claimant. You may recall the Venture-Newberg-Perini case involved a union pipefitter who took a work assignment at a site 200 miles away from his “permanent” residence because there supposedly was no pipefitter work available locally. Please note many pipefitters are similar to gypsies and travel to their well-paid work when/where they can locate it—some of them live out of campers or their cars. Either way, Claimant in that case was not required to take the job and could have refused the assignment if his local pipefitter union had a closer position available. Claimant and a co-worker decided to stay at the Lynwood Lodge, a motel 30 miles away from the job site. Claimant made all the arrangements for his stay on his own. While traveling from the Lodge but still many miles to the job site, the worker’s auto slipped on ice and crashed. He suffered serious injuries with over $1M in medical bills from the motor vehicle accident.

After a relatively shocking decision awarding benefits from the IL Appellate Court, WC Division, the IL Supreme Court reversed and found the accident was not compensable because the pipefitter took the job and he chose where to stay at his own cost, rather than drive the lengthy distance back and forth from his home. In short, our highest court ruled the pipefitter's accident wasn’t “in the course of” employment as it occurred during his unpaid commute. We assure our readers this reversal in Venture-Newberg-Perini probably saved thousands of Illinois jobs because hundreds of employers may have left our state due to the skyrocketing costs such expanded WC coverage might have caused. We point the same criticism at the rulings of Arbitrator Kane and Judge Lopez Cepero—if you don’t understand why/how the “traveling employee” concept would kill jobs in this state, send a reply.

In comparing that ruling to the United Airlines v. IWCC facts, the IL WC Appellate Court reasoned Claimant’s situation was not distinguishable from the worker's situation in Venture-Newberg-Perini. The unanimous ruling noted Claimant made the decision to live in Colorado, and United Airlines had no control over her choice. United also did not pay Claimant a penny for her time traveling from Colorado to New York and she had to make all the arrangements for the trip on her own. Therefore, this Court said, at the time she injured her knee, Claimant "was engaged in her regular commute from her chosen residence to the city where her job assignment was located."

It is our hope the entire IL WC matrix drops the “traveling employee” concept as challenging, confusing and a jobs-killer. The legal terms in our IL WC Act are “arising out of” and “in the course of” employment. Neither the Claimant in Venture-Newberg-Perini or this claim were “in the course of” employment. It is a lot easier for John Q. Public to understand that idea. If we were to simply follow the traditional precepts of AOO/ICO that we all generally understand, there would be no reason for Governor Rauner and his team to try to rein in the “traveling employee” concept with a legislative amendment he continues to press for in Springfield.

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

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Synopsis: AT&T Gets a Solid Outcome in an Indiana Work Comp/General Liability Decision with Analysis by Kevin Boyle, J.D., Our IN Legal Guru.

Editor’s comment: Can a subsidiary avoid worker’s compensation liability under the exclusive remedy provision when your parent company is as huge as AT&T? In Indiana, the answer is yes. See Hall v. Dallman Contractors, LLC, 2016 WL 412984 (Ind. Ct. App. Feb. 3, 2016).

In this claim, Employee Brenda Hall sued AT&T Services, Inc. among others for her serious arm injuries when she tripped and fell on her way into work in 2007. She tripped over a construction sign placed in a walkway adjacent to an ongoing construction project at an AT&T building. In 2009, the Indiana Worker’s Compensation Board issued a stipulated award to Hall for 29% PPI to her right arm. She filed her civil damages suit in state court with subsequent amendments adding AT&T and its subsidiaries as parties defendant.

AT&T Services, Inc. filed a summary judgment motion alleging Hall’s negligence claim was barred by the exclusive remedy provision under I.C. 22-3-2-6. The trial court granted summary judgment holding that Hall’s employers (AT&T Services, Inc. and Ameritech) were both subsidiaries of defendant AT&T Inc. Therefore, as joint employers of Hall, she was barred from suing them, since she already received worker’s compensation benefits from Ameritech.

The Indiana Court of Appeals affirmed. The Court of Appeals rejected Hall’s supporting cases decided before the 2000 statutory changes to the definition of an ‘employer’ under the Indiana Worker’s Compensation Act. The Court also noted the IN WC Act does not define “subsidiary.” However, under other Indiana statutes, subsidiary is defined as “a subsidiary of a resident domestic corporation “ which ‘means any other corporation of which a majority of the outstanding voting shares entitled to be cast are owned (directly or indirectly) by the resident domestic corporation.’

The Court noted that the designated evidence showed that Ameritech owned 8.15% of AT & T Services at the time of Hall's fall, which was clearly not a majority of the outstanding voting shares. Strangely, no further evidence was presented concerning the “complex corporate structure” involved, but the opinion containsa detailed flowchart to explain the complex corporate AT&T structure.

Either way, we feel IN employers have to be happy with the ruling that avoids a double-recovery for Claimant Hall.

Kevin Boyle, J.D. is our top IN GL/WC guru and he researched and wrote this article. He can be reached for further advice and counsel at kboyle@keefe-law.com.

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Synopsis: Is the IL WC Commission Continuing to Cut Costs and Unnecessary Expense?

Editor’s comment: We note the recent announcement from our IL work comp administrators indicating the Peoria satellite office is no longer going to be staffed on a full-time basis. We have always considered the concept of “satellite government offices” to be controversial and a waste of taxpayers’ money because most of the services provided, like printing and distributing IWCC forms is something almost anyone can do for themselves online.

Several years ago, we saw the Collinsville IWCC office appeared to have lost its full-time staffer but someone new might have again been added. We assume there will no longer be a full-time staff member at the IWCC’s Peoria office. We strongly suggest full-time staffers at both Rockford and Springfield be eliminated and/or given actual work to do. If cost-cutting is apace, we salute Chairperson Fratianni and General Counsel Ron Rascia. We hope the IWCC continues to carefully cut staff/costs/expenses wherever it can to save money in a state government that is over $100B in debt. The tax dollars they save all come from IL business.

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

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Synopsis: An Absolute No-Brainer—When Will Illinois Governments and Municipalities Get IL Work Comp Preferred Provider Programs to Cut Medical Costs and Save Taxpayers Millions?

Editor’s comment: We saw a national news source last week report Woodford County, outside Peoria was evaluating a WC Preferred Provider Program for their Injured Workers. In an effort to prevent doctor shopping by injured workers and tackle spiraling workers’ comp premiums, the County Board of Woodford County is mulling a Workers’ Comp Preferred Provider Program, according to The Woodford County Journal newspaper.

The Board was scheduled to vote on the proposal and, if approved, it would require injured county workers to seek care from physicians and facilities in the PPP network. Injured workers can refuse to see a doctor in the network, but it would count as one of their two choices of medical providers in Section 8(a-3) of the IL WC Act.

The Board noted besides giving the county more control over work-related medical treatment of injured workers, medical providers in their network would charge and accept lower medical reimbursements. In short, it is a win-win for this local government. The County Board also noted, all of the major medical facilities in the Woodford County area are members of the IL WC PPP network.

The PPP would be administered at no cost to the County, according to the newspaper. They report Woodford County’s workers’ compensation insurance premiums have exploded to $324,000 in the current budget year from $107,000 in 2009 due to increasing claims costs and higher claims frequency, according to the report. If they want free legal claims audits with action plans on how to save millions and close claims, we hope they send us a reply.

We urge Governor Rauner and his IL State WC administration to also get locked in to a WC PPP for the same cost-saving reasons. As they pay over $100M in annual WC costs, a WC PPP could literally save billions over the years.

If your local government or business wants the best thoughts from the legal team at KCB&A on how to save WC claim costs, please also feel free to send a reply.

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Synopsis: Need WC Training? Learn from the KCB&A Experts about New WC Rules and Decisions from 2015 and Beyond .

Here is the outline created by John P. Campbell, J.D. and Nathan Bernard, J.D. for your consideration:

When is a Physical Problem Repetitive Trauma versus Repetitive Working?

Question: How Exactly Do You Tackle an IL WC Fraud Claim? IL Courts Play the Laurel and Hardy Game of “Who’s on First?”

IL WC Wage Differential Exposure Expanding based on Recent Appellate Court Ruling.

Defense/Respondent Contact with Treating Doctors Met with Shocking Penalty and Sanction from Circuit Court Judge.

Traveling Employee Expansion When Handling Work Equipment While at Home.

Medicare Set-Aside Process as SMART Act is Implemented.

Comparing How Impairment Ratings are Considered at the IWCC.

We can also do a half-day or whole day seminar to teach all the nuances of IL WC. Let us know is you have interest—all you have to do is send a reply.

February 16, 2016

2-15-2016; To Dream the Impossible IL WC Dream; Need WC Training?-Learn from the KCB&A Experts; FCEs in Hand Surgery from Dr. Vender + Colleagues and much more

February 16, 2016/ Eugene Keefe

Synopsis: To Dream the Impossible Dream—IL WC Appellate Court Turns Away Unattainable Filing by Plaintiff/Petitioner.

Editor’s comment: To reverse and reinstate this claim based on an unachievable reinstatement effort would have required basically rewriting over 100 years of the IL WC Act and Rules—one has to wonder if sanctions should lie? In Farrar v. Illinois Workers' Compensation Comm'n, issued February 11, 2016, a unanimous Appellate Court, WC Division was faced with the oddest of IL WC claims—Petitioner was a pilot for a major international airline. She alleged an injury occurring in April 2003. She underwent a cervical fusion alleged to be part of the claim. While we don’t know more of the facts, we assure our readers this is a serious claim that might have had some merit, if it had been properly handled by her counsel.

The initial IL WC claim was filed almost five years later in February 2008. Please remember it is possible for the statute of limitations in IL WC to “toll” or expand if any medical/TTD or permanency is paid. Payment of a related medical bill under group health might also toll the SOL, under Section 6.

For reasons known only to her attorneys and Captain Farrar, the claim was allowed to badly age and then get dismissed for want of prosecution. A dismissal order was issued in 2011 and became final when 60 days passed following entry of the order.

From our perspective, the matter was done, finito, finished, kaput. If you read the applicable Rule and case law interpreting it, the IWCC lost all jurisdiction over this claim. Despite that irresistible fact, another law firm filed their appearance for Petitioner and then filed a new Application for Adjustment of Claim in April 2012 for the same accident that occurred in 2003! The Arbitrator assigned dismissed the second claim in July 2013, the Commission affirmed in February 2014 and an appeal to the Circuit Court was taken. Almost four years later, the second claim is now actually over with this Appellate Court ruling.

Claimant cited Section 13- 217 of the IL Code of Civil Procedure (735 ILCS 5/13-217 (West 1994)) as supposed authority for “refiling” the Illinois WC claim within one year after it was dismissed for want of prosecution, regardless of the language of Commission Rule 9020.90 or whether the statute of limitations had long expired. The IL Appellate Court, Workers’ Comp Division unanimously ruled Section 13-217 of Code of Civil Procedure, which allows a Plaintiff with a claim pending in the Circuit Court to refile within 1 year after dismissal for want of prosecution (regardless of whether statute of limitations expired during pendency of original action) does not apply to IL workers' compensation claims. The Appellate Court ruled dismissal of a workers' compensation claim for want of prosecution requires claimant to file for reinstatement within 60 days of receipt of dismissal order to allow the Arbitrator to reinstate within the Rule.

Should Supreme Court Rule 137 Sanctions Be Considered?

As court observers and longtime proponents of the defense side of the WC industry, we feel this protracted litigation, following dismissal of the initial claim and the passing of the sixty day period for reinstatement, rendered any further action an unhappy and complete waste of the time and money for this employer. We further assert if a defense firm has spent four years clowning around at the IWCC and then the Circuit and Appellate Court with pleadings that had zero chance of success, the Appellate Court may have appropriately considered sanctions against a defense firm on their own motion. There is case law where the Appellate Court, Workers’ Compensation Division ruled IL Supreme Court Rule 137 Sanctions may lie in workers’ comp claims that reach the reviewing courts for frivolous actions.

The Rule says:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

In our respectful and academic view, there is no chance, none, that this pleading was “warranted by existing law.” The monies spent to win final dismissal at arbitration, IWCC appeal and in two reviewing courts could have been put to much better use by this major U.S. employer. In short, this second Application should never have been filed and it was a colossal waste to have our hearing officers take time from other important duties to get rid of it. Please also note there is also the potential for a legal malpractice claim that might have been considered by Captain Farrar. This interim five-year circus that followed might possibly have misled her and delayed such a claim.

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

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Synopsis: Need WC Training? Learn from the KCB&A Experts about New WC Rules and Decisions from 2015 and Beyond .

Here is the outline created by John P. Campbell, J.D. and Nathan Bernard, J.D. for your consideration:

When is a Physical Problem Repetitive Trauma versus Repetitive Working?

Question: How Exactly Do You Tackle an IL WC Fraud Claim? IL Courts Play the Laurel and Hardy Game of “Who’s on First?”

IL WC Wage Differential Exposure Expanding based on Recent Appellate Court Ruling.

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Synopsis: Functional Capacity Evaluation in Hand Surgery, a scholarly article from three great hand specialists Michael V. Birman, MD, Gary S. Solomon, MBA, OTR/L and Michael I. Vender, MD

Editor’s comment: Dr. Michael Vender forwarded this important article for your consideration. We did not modify it in any way—references at the end are available on request. Dr. Vender is one of the top hand surgeons in the central United States and is a great caregiver and scientist. Dr. Vender has been quoted in numerous IL WC Commission decisions and he and his colleagues can be reached for help with your toughest hand/upper extremity injury claims at 847 956 0099 or for more information go to www.handtoshoulders.com.

A functional capacity evaluation (FCE) utilizes a combination of performance measurements to assess an injured patient's functional ability. The aim of these evaluations is to determine whether the patient has met the physical and functional criteria demanded for their job tasks or category in order to determine timing and capacity for return to work. A number of methods have been described to assess a patient's abilities, and various subsets of these make up some of the described FCE regimens, including those described by Matheson, Isernhagen, Hart, and others.1

In the Journal of Hand Surgery in 1987, two therapists individually addressed evaluation of work capacity for occupational hand injuries.2,3 A typical FCE includes patient interview, musculoskeletal screening, and functional testing. The entire upper extremity is generally assessed. FCE protocols vary among providers, as there is no universally endorsed method. Physical evaluation includes range of motion, muscle/strength testing, sensation, and dexterity. The functional testing component of the evaluation includes, but is not limited to, positional tolerances, job analysis and simulation, standardized assessments, and lifting capacity.

The FCE report typically includes a summary of test results as well as categorization of work based on the U.S. Department of Labor Dictionary of Occupational Titles. The report will include job-specific tolerances as demonstrated during the exam, as well as measures of consistency and validity. These measures may include correlation of heart rate with perceived exertion, correlation of performance with standardized assessments, as well as any observed inconsistencies between performances during functional testing compared to measurements during musculoskeletal screening.

There are a variety of reasons hand surgeons may choose to or be requested (such as by an insurance entity) to order an FCE. Often, the aim is to assess the patient's abilities and capacity to return to their prior employment, and comparison may be made to a detailed profile of the physical requirements of their job in interpreting the outcome of the FCE. Therefore, the purpose is to determine if the patient can safely return to their prior employment.

Studies have looked at the reliability and validity of these tests, as well as their predictability, to determine a patient's abilities and safety to return to work and stay at work (i.e., sustained recovery). However, little evidence is available to validate these studies specifically for upper extremity complaints. The limited studies assessing validity of FCEs in orthopaedics largely pertain to generalized musculoskeletal complaints and, specifically, chronic back pain. A systematic review considered four evaluation regimens; among these regimens, only the Isernhagen Work System showed good inter-rater and predictive reliability.4 Even for this system, the intra-rater reliability studies were found to not be rigorous enough for conclusion. Other authors examined patients with chronic low back pain, and they concluded most variables in the Isernhagen FCE were reliable based on FCEs repeated two weeks apart for each patient.5

A two-part study examined the ability of an FCE to predict return to work and sustained recovery following chronic low back pain. The authors of the study concluded better FCE performance was mildly associated with indicators of faster return to work. Despite this association, there was no relationship to recurrent back problems.6,7 A Cochrane review specifically tried to address the effectiveness of FCE-based return to work recommendations.8 Based on a lack of randomized controlled trials on this topic, it concluded there is no evidence for or against the effectiveness of FCEs in predicting re-injuries following return to work.

Gross and Battié used the Isernhagen FCE to look at predicting timely and sustained recovery in workers’ compensation claimants with upper extremity disorders.9 The study included 336 patients. The authors concluded better FCE performance was a weak predictor of faster benefit suspension. Specifically, higher weight lifted during the FCE was “consistently, yet modestly” associated with faster time to benefit suspension and claim closure. There was no relationship between functional performance that met or exceeded physical job demands and future recovery. The authors further concluded FCE performance was unrelated to sustained recovery. Specifically, no factors were associated with future recurrence; in fact, there was a 39% one-year recurrence rate, when the claim was reopened or a new upper extremity claim was filed. Furthermore, the FCE proved no more helpful in claimants with specific pathology/injury versus those with more ambiguous, pain-mediated conditions.9

FCEs have inherent limitations that affect their utility. FCEs have not been standardized and validated for upper extremity diagnoses. An additional complicating factor is that individual providers determine testing protocols and method of administration. Also, these studies have limited ability to disengage the patients’ motivation from their effort during the tasks of the evaluation, particularly when secondary gain is a factor. It requires cooperation and effort by the patient to generate an accurate assessment. A patient who provides an extreme effort can lead to an overstated assessment of their capabilities on a long-term basis, while a person who gives suboptimal effort can lead to an understated estimate of his capabilities. At best, they are essentially a snapshot of the patient’s performance at a particular time and place.

Hand surgeons are asked to interpret the results of FCEs, and it is not sufficient to simply skip to the summary page of the evaluation. The details of the evaluation and the specific functions being evaluated must be considered. For example, if a task during the FCE was stopped, possible limiting factors include patient fatigue or pain, breakdown of mechanics, or exceeding performance. Deciding when a specific task is stopped involves a subjective determination, and the physician is relying on the therapist’s judgement rather than his or her own as to when the evaluation should be stopped. Also, consider differences between the injured and uninjured sides; a worker may have always been able to perform their job even though their baseline lifting abilities on their uninjured side do not satisfy the documented job requirements. Finally, because FCEs attempt to measure capabilities, these should not be misused as a rationale to impose restrictions, which are used to protect the patient during recovery from injury or surgery so as not to compromise outcome.

The FCE should not replace the surgeon's determination of a patient's abilities based on their objective physical examination and radiographic findings. An FCE may be more useful when assessing specific activities in someone who has objective impairment (i.e., wrist fusion, loss of digits, etc.). It is least beneficial when assessing a patient who has subjective complaints only. The results of an FCE should be used as one factor in determining work capabilities. It should not be utilized as a rigid guideline or rule. When considering the limitations of current FCE protocols, the best form of assessing ability to return to work is still based on a competent physician’s understanding of residual impairments combined with knowledge of the patient’s work requirements.

If you have questions or concerns, please simply reply and we will relay the inquiry to Dr. Vender.

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