3-21-2016; New HR "Alphabet Soup"--When Can You Terminate?; Rating IL WC Arbitrators; Is the Statutory Notice Defense Valid in IL WC? and more

Synopsis: When Can An Employer Safely Fire Someone in the New Human Resources Alphabet Soup?

Editor’s comment: Considering the “Alphabet Soup” of FMLA, ADA, STD, LTD and Workers' Comp, you will note they may all be involved when an employee misses work due to a physical malady, work-related or not.  Understanding how all of these laws and employment rights interact when considering termination is a continuing challenge.

We reported a $2.5M runaway jury award against a major Illinois employer last week. We wanted to circle back on our best legal advice with thoughts about canning, oops, we mean firing, workers to minimize your civil and, sometimes, work comp liability in doing so.

What is Short Term Disability or STD and Are Jobs Protected While on STD?

Short term disability is paid for by some employers as a work benefit. Short term disability provides wage protection and payments but comes with no job security. The term Short-Term Disability ("STD") refers to insurance payments made to employees who have to miss work due to a non-work-related physical infirmity.  STD insurance (or self-insurance) is typically purchased by the employer. Employees may be required to contribute some of the premium payment to be entitled to coverage. One's right to STD benefits is usually determined by the insurance company from whom the policy is purchased. In a self-insured setting, the employer may pay some or all of the benefit out of their corporate funds. While an employee may have to make his/her interest in STD benefits known to the company's HR Department, the company has no say into whether an employee is entitled to the relevant benefits, the decision may be made by the STD insurance carrier or the self-insured employers inside or outside claims staff.

STD payments are made by the STD insurance carrier and are typically the equivalent of about 60% of one's regular salary—the benefits are taxable. STD benefits are usually payable for ninety days or six months.  If you are not recovered after the STD period, if the employer offers it, the employee must file for Long-Term Disability benefits. LTD benefits generally bring the same legal rights and duties of STD. An employer can terminate a worker on LTD.

Can an employer fire an employee while they are receiving STD or Short Term Disability?

It is not illegal to fire someone who is out on short-term disability. Their jobs may be at risk. Stated otherwise, an employer does not have to hold open or “save” an employee's job merely because he/she is receiving STD benefits. STD benefits are monetary payments for a non-work-related condition, and do not provide employees with any current statutory right to job reinstatement upon recovery.

Can an Employee Take FMLA or Family Leave and Receive STD Too?

As a general rule, the only federal law that expressly prohibits terminating an employee who is out of work due to a physical condition is FMLA. Leave from work under the Family and Medical Leave Act is unpaid - the purpose of the statute is only to provide a right to job reinstatement provided that the employee returns prior to the expiration of the FMLA leave period. 

However, if an employee has to miss work due to his/her own physical condition, the employee may obtain STD benefits while out on FMLA. Accordingly, by exercising one's rights to FMLA leave and Short-Term Disability benefits in tandem, an employee secures both job reinstatement rights and a portion of one's normal wages.

Can Sick Leave be a Reasonable Accommodation Under the Americans With Disabilities Act or ADA?

A possible source of job security if one is suffering from a health condition causing absence from work is the ADA. There is typically little question that a person missing work due to an ADA disability will qualify for STD benefits. In such cases, if FMLA leave is available, the employee has to be offered such leave.

If, an employee is not entitled to FMLA leave, or is unable to come back to work when FMLA leave expires, then applying for leave as a "reasonable accommodation" under ADA may be appropriate. However, one may expect leave from work as a reasonable accommodation under ADA would be of a shorter duration than the 12 weeks leave provided for under FMLA. If one needs a week or two to fully recover from the onset of an acute problem arising out of a disability, a strong argument can be made such leave is a required reasonable accommodation for an employer to make under ADA. As an example, if a person who suffered a non-fatal cardiac event needs two more weeks after FMLA Leave expire to achieve full recovery and return to work without restrictions, such leave may be a required accommodation under ADA.

Can an Employer Deny STD If A Work Comp Claim is Filed?

In simplest terms, yes. The standard STD insurance policy provides workers' compensation insurance must provide wage reimbursement where work-absences arise out of work-related injuries. Consequently, if one is approved for work comp benefits, one should be ineligible for STD benefits. If, however, an employee's Workers' Compensation claim is denied, the application for STD benefits should be considered. In such a setting, work comp attorneys in IL will ask for a letter consistent with Rule 7110.70 denying coverage of an accident under work comp to facilitate a claim for STD.

What is Workers’ Comp Insurance/Self-Insurance?

Workers' Compensation insurance protects workers from loss of wages, medical expenses and provides permanency/impairment due to serious work-related accidents and injuries. Work Comp laws are enacted by states and typically managed by state agencies. If an employee is injured while performing his/her job duties, a right to workers' compensation benefits arises. The typical employer purchases workers' compensation insurance from an insurance company, which in turn may adjust claims themselves or hire a TPA or third party administrator that has expert claims staff to decide claim compensability and pays benefits where appropriate. Most workers' comp insurance policies or self-insured programs pay employees approximately 2/3rds of their regular wage, pursuant to state laws, and also pay for all medical bills consistent with medical fee schedules. Work comp benefits typically aren’t income taxable.

Can An Employer Fire a Worker Who is Off Work On Workers’ Comp Benefits?

Again, in simplest terms, yes. Workers' Comp statutes typically do not provide for any job protection or right to job reinstatement upon the employee's release to return to work.  Thus, in theory, an injured work may be fired while out of work due to a work-related injury absent FMLA protection. However, Circuit Courts in many states have held that it is illegal to fire an employee because he/she was injured or has filed a work comp claim. An employer doesn’t want to fire the worker for the fact of the injury or for an employee seeking work comp benefits to which they are entitled. If that was allowed to occur, few workers might ever seek such benefits.

In our view, if a company is going to fire someone who has filed a Workers' Compensation claim, they typically want to

·         Wait for the running of what we call an “auto-termination” period or

·         Wait until the person is released back to work.

Auto-terminations policies come with some challenges. If you fire someone after a six-month or one-year waiting period, you have to fire anyone in the organization who is off for such time. This means if a worker is a hero and saves the lives of hundreds of people but is injured and still off for the auto-term period, you have to fire them! Please also remember if a worker seeks reasonable accommodation under ADA during the auto-term program to allow them to return to work, you have to consider such requests and perhaps hold off termination to adjust to the requested accommodations. 

Many employers note that if they fire an employee who is out of work while receiving workers' comp benefits will have the likely effect of prolonging the former employee's recovery period, which in turn has the effect of increasing the company's workers' compensation insurance or self-insurance costs. A similar problem with firing a worker while they are receiving work comp benefits is you can offer light work to bring them back into the workforce more rapidly.

Can an Injured Worker Receive FMLA Leave and Work Comp Benefits at the Same Time?

Another short answer—yes. If it mildly confusing but it is possible to get “unpaid” FMLA leave and paid WC leave simultaneously. FMLA provides another layer of job security, and may be taken when one is required to miss work due to a work-related injury. In our view, employers want workers to exhaust FMLA eligibility while getting TTD or temporary total disability. If you want advice on how to do so, send a reply.

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

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Synopsis: Consider Rating our IL WC Arbitrators.

Editor’s comment: The IWCC used to work behind a veil and if you didn’t like an outcome, there was no one who cared. We salute current IWCC Chair Joann Fratianni and her team for asking you and everyone involved to rate the IL WC Arbitrators.

We copied and pasted below the link to the Arbitrator Evaluation Survey. Arbitrators are to be rated only on the basis of your personal knowledge. It is possible that you will not be able to rate all of the Arbitrators or answer all of the questions for each arbitrator on the evaluation form.  

If you have specific knowledge as to the qualifications of an arbitrator to give a fair, informed opinion as to those qualifications, please respond to the questions for that arbitrator by answering “Y” (Yes) or “N” (No) to the questions asked. If you have no opinion on a particular question, the question should not be answered and will be tabulated as a “No Opinion” response that will not affect the arbitrator’s rating. Specific instructions on form completion and submittal are available on the link.

If you do not have specific knowledge as to the qualifications/actions of a specific Arbitrator please skip that arbitrator and move on to the next Arbitrator. Forms must be submitted to the Commission by next Monday, March 28, 2016.

http://www.iwcc.il.gov/Arbevalform16.pdf

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Synopsis: Is Statutory Notice a Valid “Defense” to IL WC claims?

Editor’s comment: We received this question from a reader and wanted to provide our thoughts. We assure everyone, the “45-day rule” is a valid and vibrant defense in this state. We also feel it works best when you can demonstrate no one in your facility knew of any injury or disability when one is later reported.

The relevant statutory language reads:

“(c) Notice of the accident shall be given to the employer as soon as practicable, but not later than 45 days after the accident. Provided:

(1) In case of the legal disability of the employee or any dependent of a deceased employee who may be entitled to compensation under the provisions of this Act, the limitations of time by this Act provided do not begin to run against such person under legal disability until a guardian has been appointed.

(2) In cases of injuries sustained by exposure to radiological materials or equipment, notice shall be given to the employer within 90 days subsequent to the time that the employee knows or suspects that he has received an excessive dose of radiation.

No defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings on arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy. Notice of the accident shall give the approximate date and place of the accident, if known, and may be given orally or in writing.”

This notice requirement applies to employees who suffer repetitive trauma injuries. Three “D” Discount Store v. Industrial Comm'n (1989). The date of such an accident, from which notice must be given, is the date when the injury “manifests itself.”  

Regarding notice, the statutory element of undue prejudice to the employer is pertinent only where some limited notice is given in the first place. The purpose of the notice requirement is to enable the employer to investigate the employee's alleged industrial accident. Seiber v. Industrial Comm'n (1980).

The last Appellate Court ruling on this issue was an affirmance of denial of benefits due to lack of statutory notice in White v. Workers’ Compensation Commission, decided by a unanimous IL Appellate Court, WC Div. in 2007. If you want to review this important decision, it is online at http://caselaw.findlaw.com/il-court-of-appeals/1364752.html

In short, the statutory notice defense remains alive and “works” if your defense counsel knows the rules and follows them. If you don’t feel an accident was reported, one of the best follow-up defense techniques is to pull time sheets or security video of the worker after the event to demonstrate they were able to work without restriction or assistance in the days, weeks and months following the alleged injury.

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

3-14-2016; John Campbell Confirms No "Double-Dipping" for WC and GL Claims; Dominicks Winces With Runaway Jury Award in Retaliation Claim; Fighting Hotel Manager Loses Court Fight and much more

Synopsis: No “Double-Dipping” Allowed for Chicago Paramedic Injured in Training. Once Recovery is Enjoyed Under One Remedy; Plaintiff Cannot Recover in a Separate Civil Action. Analysis by John P. Campbell, Jr., J.D.

Editor’s Comment: In Locasto v. The City of Chicago, 2016 IL App (1st) 151369 (issued March 8, 2016) our IL Appellate Court explained how an employee may have a valid civil claim against their employer while also filing a workers’ compensation claim. However, once recovery is enjoyed under either remedy, Petitioner/Plaintiff cannot continue on seeking recovery in the separate legal action.

Petitioner/Plaintiff Locasto was a paramedic trainee for the City of Chicago when he suffered severe dehydration and kidney failure due to rigorous training exercises.

Plaintiff Locasto first filed a civil tort action alleging intentional injuries by his training officers, as agents for the City of Chicago. Veteran observers will note this claim of an intentional injury was carefully chosen by Plaintiff here. Remember, an employee’s civil claim for negligence against an employer would be clearly barred under the exclusive remedy provision of the Workers’ Compensation Act. However, intentional injuries inflicted by an employer create an exception to the exclusive remedy provision of the IL WC Act, therefore allowing a Plaintiff to sue his/her employer for civil damages. This is of course why Locasto chose to allege an intentional injury by the City; he was seeking a way around the exclusive remedy provision of Section 5 of the Workers’ Compensation Act.

While the civil case was pending, Locasto also filed for workers’ compensation benefits and recovered substantial medical benefits, TTD and an award of permanent partial disability under the Workers’ Compensation Act.  Once Locasto recovered benefits under the Workers’ Compensation Act, the City of Chicago moved for summary judgment on the civil action, citing the exclusive remedy provision and also pointing to the “election of remedies doctrine” to argue for dismissal of the civil action, since Locasto had now enjoyed compensation/recovery under the Workers’ Compensation Act. Locasto contended the doctrines of election of remedies and estoppel do not bar his lawsuit, as he was alleging intentional tortious conduct on the part of the City.

However, the Court reasoned that, once the employee actually receives compensation under the Act, this acceptance precludes recovering in the tort case (citing Rhodes, 92 Ill. 2d at 471). “Once an employee has collected compensation on the basis that his or her injuries were compensable under the Act, the employee cannot then allege that those injuries fall outside the Act's provisions. See Collier v. Wagner Castings Co., 81 Ill. 2d 229, 241 (1980).” Therefore, the Court determined that, having applied for and accepted workers' compensation benefits, Locasto was barred from pursuing an intentional tort action against Defendants under the exclusive remedy provision. Therefore, summary judgment was proper.

While dual avenues of recovery do not typically arise in workers’ compensation cases, the Locasto case is an example of how dual actions may be filed to protect a plaintiff’s right to recover, especially where the correct avenue for remedy is uncertain. In this case, there was an early question as to whether Locasto was even entitled to workers’ compensation benefits as a firefighter/paramedic in training. Remember that Chicago firefighters are actually excluded from coverage under the Act. While the Court ultimately determined Locasto, as a  trainee only, was not a “duly appointed member of the fire department” and therefore, not precluded from Workers’ Compensation Act coverage, Locasto could not have known how the Court would rule on the question initially. Therefore, he should have the right to at least file both the civil action and the workers’ compensation claim. However, Locasto and other similar plaintiffs must be mindful that once recovery is enjoyed under the Workers’ Compensation Act, such recovery will compel the dismissal of the related civil claim. Perhaps future petitioner/plaintiffs in these matters will seek to stay their workers’ compensation claim recovery until the related civil matter is concluded, so as to not lose the right to potential civil recovery to the exclusive remedy doctrine once workers’ compensation benefits are paid.

This article was researched and written by John P. Campbell, Jr, J.D. Partner at Keefe, Campbell, Biery & Associates, LLC. To reach John about these or any other legal issues, email jcampbell@keefe-law.com.

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Synopsis: Dominicks/Safeway Has Runaway Jury Award Plaintiff Staggering $2.65 Million Verdict on Employment Retaliation Claim Where No Lost Wages Were Awarded!!!

Editor’s comment: In the second of three recent legal developments involving the intricate rights for Claimants with both WC and civil claims, we are sad to report this somewhat shocking decision against a major U.S. employer.

We also feel Dominicks Finer Foods had a triad of poor risk management, inept human resources and overpriced defense counsel for years. It was our opinion their litigated claims would drag on forever. In this situation, we feel they made a staggeringly poor HR, legal or claims decision that clearly came back to bite them.

Last week, we learned a runaway jury provided a single Plaintiff a $2.65 million verdict in a retaliation claim against Dominicks/Safeway Inc. Plaintiff-Petitioner worked for Dominicks Finer Foods, a Safeway subsidiary. IWCC records indicate Claimant filed seven different workers comp claims against the company over the years. Dominick's eventually settled all the WC claims but obviously, they didn’t get a coincidental release/resignation. The defense team at KCB&A always assume we want our clients to get a release/resignation if Claimant is leaving your employ at the same time as their workers’ comp claims close. If you need help or advice in putting a release/resignation into place, please send a reply.

Either way, during the pendency of the WC claims, Dominicks/Safeway requested Claimant submit to an IME or independent medical examination. The IME doctor opined Claimant did not have a work-related injury. Although the IME released Petitioner to MMI and full work immediately with no restrictions, Claimant's personal physician recommended Claimant remain off all work. Claimant followed his treating doctor's advice.

No one at Dominicks Human Resources Department, WC Claims or outside counsel told/notified Claimant if he was going to remain off work in that fashion, he had to call in absent. Duh. The HR department treated the absences as “unexcused” because Claimant didn’t know and didn’t call in. After he had three consecutive “unexcused” absences, Dominick's fired him. During a later WC hearing, an Arbitrator with the Illinois Workers Compensation Commission found Claimant could follow his doctor's advice, and ignore the advice of the IME doctor. The IL WC Commission panel eventually upheld this decision. One has to assume, although we can’t be sure, TTD was awarded by the Arbitrator and Commission panel when Claimant was off work for these “unexcused absences.”

In the meantime, Claimant filed this parallel lawsuit against Dominick’s/Safeway in the Cook County Circuit Court, alleging the company fired him in retaliation for seeking work comp benefits. Dominicks/Safeway maintained Claimant was terminated for “legitimate, non-discriminatory reasons,” as he violated its goofy attendance policy in not calling in or showing up for work when the IME reliance by Dominicks mystically required him know about it and do so. Again, the legal controversy arose because he didn’t know and wasn’t told to call in.

Claimant sued for damages due to this HR determination to terminate him based on “no call, no show” and the lack of notice of the need to call in. A Cook County trial judge found Dominick’s kooky change in absence coding was inappropriate. The judge further ruled Dominicks discriminated against Claimant as a matter of law by terminating him while Claimant’s comp claim was still pending.

The Illinois Appellate Court reversed the trial court’s grant of summary judgment and sent the matter back for trial on the question of whether Claimant’s termination was causally related to his exercise of his rights under the Workers' Compensation Act. The Appellate Court specifically found the employer had improperly relied upon the opinions of the respective IME physician in its decision to change the employment and call-in status of the employee. However, the Court further found the employees nevertheless had the burden of establishing all elements of their causes of action in order to seek recovery under the tort of retaliatory discharge. Although the Appellate Court ultimately decided it was wrong for the employer to terminate the employees under its attendance policy based solely upon the IME opinions and the lack of notice of the need to call in, it refused to rule such action would per se cause the employer to be liable for retaliatory discharge and remanded the cases for consideration by the jury.

Why Do We Say It Was A “Runaway” Jury? Well--Where are the Lost Wages???

The employer in this instance failed to communicate directly to each employee their classification status under the attendance policy was changed. Thus, neither employee was on notice that they were required to call in their absences on a daily basis, as the policy required. It is clear an employer who terminates an employee under similar circumstances places itself at significant risk. However, the first and most important part of damages in any retaliation claim is lost wages. Many Plaintiff firms won’t even consider a retaliation claim without substantial lost wages.

The problem with lost wages is the IL WC Commission can and should have awarded TTD during all periods of lost time—that makes it hard for a jury to award anything. And from what we can tell, the WC claims were compromised and settled some time ago, certainly long before this jury verdict.

What just happened is a Cook County jury found in favor of Claimant and awarded Claimant $31,315.50 in medical bills (?), $75,000 for past emotional distress, $50,000 for future emotional and/or psychological damages, and a whopping $2.5 million in punitive damages. In the absence of any lost wages, we consider that award to be shocking and unfounded. Please note this ruling is diametrically the academic opposite of the Locasto ruling reviewed by John Campbell above—in that claim, resolution of the WC claim ended any claim for alleged intentional injuries by the employer. It also makes little sense to us how Claimant could have unpaid medical bills that he could seek as damages in the common law action but were left unpaid in the WC settlements. We also don’t understand how the WC resolution of lost time would still allow Claimant to have such damages for “retaliatory discharge” in the Circuit Court.

While we agree the actions of Dominicks/Safeway weren’t brilliant, the idea of awarding someone who didn’t have any lost time as monetary damages all those punitive damages is hard to comprehend. Understanding we are in one of the most liberal jurisdictions in the U.S. and maybe the world, we don’t feel there is any chance of remittitur or an Appellate Court knocking that award out.

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

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Synopsis: If Your Employees Provoke or Participate In a Fight and Get Injured, It Isn’t Retaliation to Fire Them.

Editor’s comment: Last week, the federal Sixth Circuit Court of Appeals ruled an employer did not retaliate against an employee for having filed a workers' compensation claim due to injuries on the job. The Federal Appellate Court ruled the employer fired her for violating numerous work rules and provoking the physical altercation that led to various injuries.

Video cameras captured the verbal and physical exchange between a manager at the InTown Suites in Louisville, Kentucky, and a patron who came into the hotel lobby to complain about a vending machine malfunction. The man claimed he pressed the button for soda, but the machine gave him a bottle of water.

InTown hired the manager in 2010, and she claims she received glowing performance reviews during two years with the hotel. While at work on Nov. 19, 2012, a man entered the hotel lobby seeking a refund for a beverage he purchased from a vending machine outside the property. The man said he was not a hotel guest, but a resident of the apartment complex nearby. After the manager told him the machine was for guests only, the man made an inaudible reply that was apparently offensive. The manager then demanded he leave.

Shortly thereafter, the manager and patron began arguing, and the manager said “bye” sarcastically and made an exaggerated waving gesture as the man turned to leave. The manager repeated this gesture twice as the man was walking away before he turned and began yelling at her once more. The manager confronted him and responded by basically daring him to come across the front desk and engage her. After the man knocked a computer screen on the front desk to the ground, the manager called for her trainee to summon the police. She also came out from behind the front desk and went to the lobby door, blocking the patron from exiting. The man tried to get past her and out the door, but the manager positioned her body to prevent the door from opening. When the patron pushed the manager aside, she charged back toward him, swinging and clawing at his face. The man threw the manager to the floor, kicked her twice, then fled.

The manager was injured and then sought medical treatment for her face and hands, and she also informed InTown Suites upper management of the incident.

InTown’s general counsel and its chief executive officer viewed the security footage two days later, the day before the Thanksgiving holiday. They discussed the video with two other executives, and everyone agreed to place the manager on administrative leave until after the holiday. On the following Monday, the injured manager called InTown’s employee benefits department to inquire about filing a workers' compensation claim. That same day, the four executives who had placed the manager on leave reconvened and unanimously decided to terminate her.

Along with bringing a work comp claim, the manager filed a retaliatory discharge claim against InTown in a Kentucky state court, seeking more than $1 million in damages. InTown Suites quickly removed the case to federal court based on the parties’ diverse citizenship, and it then filed a motion for summary judgment.

U.S. District Court Judge David J. Hale granted the motion and noted "[the former manager] has no direct proof of a causal connection between her requested workers’ compensation and the decision to terminate her." And the federal judge said he believed no reasonable jury would deny that InTown had sufficient reason for firing the former manager after watching the security camera video.

Plaintiff appealed. Her attorneys told the 6th Circuit Appellate Court "this case has been a literal and figurative kick to the face" for Plaintiff. They emphasized the video footage established the patron was a "trespasser," and he was the one to escalate the situation, first by insulting the manager, then by turning the fight physical. Although the manager obviously engaged the man, her attorneys insisted she "was not the aggressor and acted only to defend herself and InTown’s facility from a violent and verbally abusive trespasser." They further took issue with the trial judge's acceptance of the testimony from InTown's executives insisting the decision to terminate Plaintiff had nothing to do with her pursuit of work comp benefits. Plaintiff’s attorneys contended the federal trial judge treated the content of this testimony as "undisputed fact," and improperly placed the burden on Plaintiff to rebut it. They also said it was "difficult to conceive of how [the former manager] could directly rebut it" because she was not present when the InTown executives made the decision to terminate her and those meetings were not recorded.

The 6th Circuit Court of Appeals was not persuaded. Although Kentucky's statutory scheme protects a worker from adverse employment actions taken in retaliation for pursuing a legitimate workers' compensation claim, the federal appeals court said Plaintiff’s claim failed as a matter of law. Even if it were to assume Plaintiff had a valid claim, the federal appeals court said, "she cannot show that InTown’s explanations for discharging her—supported by the video—amounted to pretext." The Court ruled the fact that InTown's executives knew Plaintiff had a workers’ compensation claim at the time they decided to fire her did not mean they discharged her because of that claim. And the brief delay in the company making its decision to fire her also did not create an inference of retaliation.

"Companies need not rashly discharge an employee at the first sign of trouble to prove the sincerity of their motives, and InTown’s minimal delay does nothing to undermine its explanation for firing [the former manager]," the federal appeals court said.

To read the court's decision, click here. If you have thoughts or comments, feel free to post them on our award-winning blog.

3-7-2016; Matt Ignoffo Outlines Important WI WC Changes; IL Appellate Court Refines Rights Under Section 19G; OSHA Attacks Rapid Accident Reporting Req'ment and much more

Synopsis: Crucial Changes to Wisconsin Work Comp!!!! Agreed Bill 724 Signed into Law on Leap Day February 29, 2016 by Wisconsin Gov. Scott Walker. Analysis by Matt Ignoffo, JD, MSCC.

Editor’s Comment: If you are a Cheeseland workers’ comp adjuster or risk manager, this article is required reading.

The bill was written by the Wisconsin Worker’s Compensation Advisory Council and makes several noteworthy changes, including, but not limited to the following:

• Modestly increases the maximum weekly permanent partial disability rate from $322.00 to $342.00, effective March 2, 2016 and to $362.00 for injuries on or after Jan. 1, 2017;
• Decreases the statute of limitations: It starts from the date of injury or date of last payment, for traumatic injuries and is reduced from 12 years to 6 years. The statute of limitations for occupational exposure claims remains 12 years;
• Allows for a system of apportionment regarding permanent disability with the intention that businesses pay what proportion of an injury they caused and not on any pre-existing injury or disability;
• Employers can now suspend TTD when an employee is brought back to light duty and subsequently is terminated for “misconduct” or “substantial fault,” as defined under the unemployment insurance law;
• Provides a defense for indemnity where an employee was found in violation of a drug or alcohol policy and there was a direct causation between the violation and the injury. The worker may still pursue medical treatment expenses;
• The Department of Justice will prosecute workers’ compensation fraud. This could be fraud by an employee, employer, insurance carrier, or health care provider;
• Allows workers during retraining to earn part-time wages to supplement their income.

The bill passed the Wisconsin Assembly with a vote of 97-0 and was concurred by the Senate with a vote of 32-0.

Time soon enough will tell if the Illinois workers’ comp system will be implementing any changes of its own. We do feel our IL WC leaders may be able to learn something from the important WC Amendments outlined above.

This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C. licensed in IL and WI who can be reached at mignoffo@keefe-law.com.

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Synopsis: Illinois Appellate Court Finds Injured Worker  May Not Bring 19G Petition While Employer Maintains Appeal of Award.

Editor’s comment: In Reed v. IWCC, Nos. 1-13-0681 & 1-13-2138, issued 2/18/2016, Claimant Reed suffered injuries in a motor vehicle accident twelve years ago while working as a truck driver for Respondent. In year 2012, Arbitrator Dollison issued an award for a significant six-figure claim for medical expenses and seven years of temporary total disability benefits. Reed's employers and insurance carrier appealed this decision to the Workers' Compensation Commission and the Commission panel in a decision penned by Commissioner DeVriendt upheld the Arbitrator's decision.

For reasons of which we are unaware, defense counsel or someone then apparently told Claimant Reed or his attorney they planned to seek judicial review of the Commission's calculation of his wages, but not the award of medical expenses. We aren’t sure how that conversation or reference might have made it into the record on appeal because there is no opportunity to add to the record at that point. We also note that statement is later contradicted in the Appellate Court’s opinion where Respondent indicated they wanted the Commission to reconsider the medical expense award on remand.

Either way, after the employers filed their petition for judicial review, Reed’s counsel filed a 19G complaint in the Circuit Court seeking a partial judgment on only the medical expense portion of the workers’ compensation award. Counsel for the employer moved to dismiss Reed's complaint, arguing Claimant Reed could not enforce the Commission's order when part of the Commission's decision was still properly protected by an appeal bond and was pending on appeal.

Circuit Court Judge Lopez-Cepero agreed with the employer and dismissed the 19G complaint.

Counsel for the employers then filed a Supreme Court Rule 137 request for sanctions against counsel for the injured worker. In response, the trial judge denied the motion. Counsel for Claimant Reed appealed from the dismissal order, and attorneys for the employer appealed the denial of their request for Rule 137 sanctions.

The Illinois Appellate Court unanimous majority ruled Section 19G of the IL Workers' Compensation Act expressly provides a party cannot obtain a judgment enforcing a decision of the IL WC Commission if any proceedings for review of the decision are pending. The opinion noted although the Illinois Supreme Court has said an application under Section 19G for judgment will not barred by review proceedings pending on “unrelated matters,” the Appellate Court ruling indicated this case involved a request for "enforcement on the same matter that was the subject of review proceedings." The ruling further indicated the panel was "not unsympathetic to (Reed's) natural desire for closure, even if only for a portion of this matter," but confirmed his employers had a right to seek judicial review of the Commission's decision. Thus, in accordance with Section 19G, the court said, Reed could not bring his Circuit Court enforcement action at that time.

The court also agreed with the trial judge this attempt to bring a Section 19G enforcement action did not warrant the imposition of Rule 137 sanctions.

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Synopsis: The Obama Administration Hates Rapid Accident Reporting Rules. KCB&A Still Recommends Them With a Caveat on Cautious Enforcement.

Editor’s comment: In our view, state-of-the-art in work accident reporting is to ask all workers to report any accident or injury, no matter how minor, as soon as possible. The problem isn’t that goal—the concern is what do employers do to enforce the rule?

We are sad to report our current administration doesn’t appear to like the whole concept and specifically hates enforcement. The U.S. Department of Labor sued United States Steel Corp. to reverse disciplinary actions taken against two employees for reporting workplace injuries in violation of the company's immediate-reporting policy and to force the company to amend the policy. The two employees were suspended without pay for failing to immediately report workplace injuries, per the company's policy, according to the lawsuit, which was filed in U.S. District Court in Wilmington, Delaware, on Feb. 17, 2016. 

In February 2014, Jeff Walters, a full-time utility technician at the Pittsburgh steel manufacturer's Clairton, Pennsylvania, plant found a small splinter lodged in his thumb and extracted it himself, according to the lawsuit. The technician completed his shift without further incident, but the thumb and hand were noticeably swollen two days later, necessitating medical treatment for an infection. When Mr. Walters reported the incident to his supervisor, the company imposed a five-day suspension without pay — later reduced to two days — for violating the company's injury reporting policy, according to the lawsuit.

Later that month, John Armstrong, a full-time laborer at the company's Irvin Plant in West Mifflin, Pennsylvania, bumped his head on a low beam, feeling no pain or discomfort at the time as he was wearing a hardhat, according to the lawsuit. However, he experienced stiffness in his right shoulder and sought medical treatment several days later and was eventually suspended for five days without pay.

Both workers filed complaints with the OSHA or the U.S. Occupational Safety and Health Administration alleging U.S. Steel suspended them in retaliation for reporting workplace injuries, with the agency finding the company violated the anti-discrimination provision of the Occupational Safety and Health Act in both cases. But U.S. Steel failed to rescind its discipline of either worker in addition to refusing to alter or amend its immediate-reporting policy to allow for a reasonable period of time for employees to report worksite injuries, according to OSHA. 

The lawsuit seeks to stop U.S. Steel from violating the Act, direct the company to rescind and nullify its immediate-reporting policy and permanently bar U.S. Steel from enforcing a reporting policy that requires employees to report their workplace injuries or illnesses earlier than seven calendar days after the injured or ill employee becomes aware of his or her injury or illness. The lawsuit also seeks to force the company to rescind its discipline and sanction of the two employees, direct it to compensate the employees for any lost wages and benefits, including interest and compensatory damages, and post notices at all worksites for 60 days stating it will not discriminate or retaliate against employees involved in activities protected by the Act.

In our view, we feel urgent work accident reporting and investigation is critically important. The faster you learn of a claim, the better chance you have to scrutinize and authenticate it. So we feel you want to have such a policy but enforce it as wisely as you possibly can. In our view, OSHA picked two test cases with what they feel are strong facts to allow a challenge to the entire reporting rule. If you read the facts above, we assume you see the problem. If you have minor “bumps and bruises” injuries that are late-reported, consider simply writing the worker up but don’t suspend or terminate. If you have an unquestioned traumatic event with immediate consequences, enforcement can and should be stronger. We are happy to consult on your program, simply send a reply.

Either way, please assume this administration is going to keep fighting and fighting and won’t provide a pro-business approach to accident reporting and investigation. We appreciate your thoughts and comments. Please post them on our award-winning blog.