3-28-16; IL Supreme Court Vacates Alleged "Emergency" Response Benefit; Dr. Fletcher on 'Game Ready' Medical Billing Controversy; Arik Hetue, JD on IL Appellate Rule 23 Decision Survey and much more

Synopsis: IL Highest Court Flips/Vacates Alleged “Emergency” Response Lifetime Taxpayer-Paid Health Care Award.

Editor’s comment: We agree with the august members of our Supreme Court but, for us, this one doesn’t pass the “Smell Test” for lifetime line-of-duty benefits for a police officer. We suggest our readers carefully review the IL Supreme Court ruling in Vaughn v. City of Carbondale, 2016 IL 119181 (March 24, 2016).

Plaintiff, a former city police officer, was on duty and while standing outside his patrol car in a parking lot, reached inside the car to answer a dispatcher's call on his police radio. While reaching in, he struck his head on the car’s door frame. It appears his doctors must have opined this action resulted in a compression fracture of the thoracic vertebra. We point out a “compression fracture” isn’t what your mom thinks is a ‘fracture,’ it is simply a shorter vertebra. In our opinion, diagnosing a vertebral compression fracture is very subjective—and relating any complaints and sequalae to it is even more scientifically and medically dicey. We assure our readers it is our view this sort of condition would not provide for lifetime taxpayer-paid benefits to folks in other states, outside this one.

In our reasoned opinion, this officer’s story doesn’t match the asserted result—he would have to lower his head and literally run into the car to create the force needed to measurably crush this middle-of-the-spine vertebra—before that happened, his much lighter and more delicate cervical vertebrae would first show medical concerns. If a “cover story” was needed, why not pick a concussion or some other difficult to measure medical condition? We note there is a physician mentioned in this ruling who indicated Claimant could return to police work, creating a dispute.

None of this would be a concern, if the enabling legislation made any sort of sense. In our state, all a police officer or firefighter has to do to get lifetime line-of-duty disability benefits is demonstrate they can’t be an “active” police officer or firefighter any more—in this kooky state, that is considered by our courts to be “catastrophically injured.” We respectfully disagree with our courts and feel they could just as easily require a police officer or firefighter to be disabled from all work before requiring taxpayers to foot the bill for police officers and firefighters for the rest of their lives at a significant and growing cost. We feel this interpretation makes many of these awards into “fake gov’t pensions.” Again, we don’t mean to be insensitive to police officers and firefighters who suffer severe, life-changing injuries and everyone agrees they can never work anywhere, ever again. But let’s please not compare such maladies to someone who appears to us to have suffered a boo-boo to the noggin and should be doing something for the millions in our tax dollars they may be paid.

Our legislative leaders know of the strained judicial interpretation and have never changed the definition to something more accurate. Unlike other states where common sense reigns, our “not-so-disabled” police and firefighters can and do get jobs and run businesses. Hundreds of them do so. It is completely “legal” if they first establish they aren’t able to do essential job functions of their former job. In other states outside Illinois, if a disabled police officer or firefighter works a regular job or runs a business, they consider them frauds and put them in prison. In Illinois, that sort of behavior is fully but sadly sanctioned.

It appears the IL Fifth District Appellate Court, one of the most liberal and pro-Plaintiff courts in the entire U.S., if not the world, provided this former officer a lifetime, line-of-duty disability pension for his sore thorax and that ruling is now final. We assure all of our readers based on our limited knowledge, this officer can and should be doing something for the money he is going to receive completely for free from now on—don’t they have 911 dispatch in Carbondale? Is there any chance his injuries are so crucial he can’t he answer the Carbondale Police Department’s phones and provide some value?

Either way, Claimant is going to get the lifetime pension benefit—he also sought lifetime taxpayer-paid healthcare for himself and his wife and family. Section 10 of the IL Public Safety Employee Benefits Act or PSEBA provides for lifetime payment of health insurance premiums for employee and family, when “catastrophic injury” occurred in response to what was reasonably believed to be an “emergency.”

Therefore in order to make the claim to get the added largess, Claimant asserted answering the routine radio dispatch call was an action in response to an “emergency.” If that was an “emergency,” we assert any and every police activity would also be viewed as emergent. There are some appellate rulings that appear to make the legal question of whether an action is an “emergency” is a subjective decision to be reached by the claimant—again, we feel that means every task performed by a claimant can and will be an “emergency.”  As shocking as it sounds, the Fifth District Appellate Court found this every day activity of responding to any radio call to be an emergency!! Please note this award would cost most IL municipalities another $20-30K a year for the rest of this former worker’s life. The city attorney appealed.

In response, the IL Supreme Court unanimously ruled Section 10 of PSEBA was not applicable here, as there are no facts establishing any imminent danger to a person or property requiring an urgent response to the dispatch call. Moving forward, we strongly hope the lower courts adhere to this new ruling. If you want to read their unanimous ruling, click on the case name above.

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

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Synopsis: The ‘Game Ready®’ Difference: Cash Cow for Physicians or Legitimate Cost Savings for Employers in the Care of Injured Workers? Commentary from David J. Fletcher, M.D. of SafeWorks Illinois.

Editor’s comment: As physicians search for ways to increase revenue in the wake of extreme cuts in reimbursement for Workers’ Compensation services, the widespread prescribing of the Game Ready® system device for injured workers has created quite a commotion within the Illinois Workers’ Compensation Industry.

Many of today’s physicians have entered the Durable Medical Equipment (DME) rental business and, accordingly, prescribe these self-owned Game Ready® devices to their injured patients.  While Game Ready® is a therapeutic device that can provide tremendous benefit to an injured worker, it has, unfortunately, earned a tainted reputation due to what is perceived as outrageous overcharging by some prescribing physicians. In Downstate Illinois, there has been widespread abuse of Game Ready® due to the simple fact there is no specific Healthcare Common Procedure Coding System (HCPCS) fee for the Game Ready® device, resulting in subjective, inconsistent billing practices. To explain, the reimbursement for the Game Ready® system defaults to 53.2% of billed charges, allowing for such extensive exploitation. The Healthcare Common Procedure Coding System (HCPCS) fee schedule used is E1399 DURABLE MEDICAL EQUIPMENT MISCELLANEOUS.

As an occupational medicine primary gatekeeper for injured workers, interacting with multiple Workers’ Compensation carriers, in which multiple referral specialists may become involved, I have become largely sensitized to the rampant billing manipulation by certain colleagues who rent Game Ready® devices. Here, is a recent E-mail message I received from an insurance adjuster in this regard:

I recently received the attached huge invoice from Game Ready® for a compression therapy unit ordered by Dr. X.  This invoice came as a surprise to me because I was not asked to pre-authorize this equipment, like I normally would be. This bill, in excess of $13,000.00, is just for renting this equipment for 28 days.  The rental of this equipment costs more than surgery fees. This is ridiculous. I am wondering if Dr. X has any idea how expensive this equipment is when he orders it? In the future, if Dr. X, or any of your physicians, wants to order DME appliances, I would appreciate it if you could seek authorization from the adjuster first, so that we can, then, coordinate getting the equipment through a vendor that can negotiate a price savings for us.

Likewise, I am aware that many pre-trial hearings have taken place before Illinois Workers’ Compensation Commission (IWCC) Arbitrators regarding this issue in conjunction with Utilization Review reports, which non-certify the treatment, presumably based upon cost factors as opposed to objective medicine treatment benefits due to physician price-gouging initiatives. Respondent attorneys have advised IWCC Arbitrators that, if the Game Ready® device is purchased online, the total price range for the equipment falls between $2,500.00 and $3,000.00 to own outright, resulting in the obvious question: why would an adjuster authorize, or carrier pay for, rental of the Game Ready® device at staggering prices, when, in reality, the Game Ready® device, if deemed reasonable and necessary, could be purchased for four-to-five times less? Essentially, the rate war encapsulated in the rental of the Game Ready® device has given rise to a finger-pointing dispute over unpaid bills, making it very difficult for Petitioner attorneys to settle cases.

What is Game Ready®?

Game Ready® is an intermittent pneumatic compression and cold therapy system. The device is considered a state-of-the-art recuperation assistance tool and represents the device that professional athletes use to rehabilitate from their work-related sports injuries. Game Ready® was established in 1997 by CoolSystems, Inc. and is the industry leader in active compression, cold therapy technology; injury treatment; and post-operative recovery. Please, refer to http://gameready.com for detailed device information. Game Ready® is clinically proven to help enhance recovery and reach key physical therapy milestones faster than conventional RICE (Rest Ice Compression Elevation) applications. It is also clinically proven to reduce pain and swelling, while simultaneously decreasing the use and/or enabling an earlier discontinuation of narcotic medications that may have undesirable side effects. It helps decrease the risk of deep venous thrombosis (DVT), shorten hospital stays, decrease the risk of permanent lymphedema (swelling in an extremity), reduce the duration needed for narcotic pain medication (as noted in the preceding paragraph), and shorten the length of time needed for physical therapy modalities, all of which save the carrier money in the long-run when the device is properly invoked and priced.

What is the Clinical Evidence that Game Ready® Works?

The Official Disability Guidelines (ODG), which are widely cited by Utilization Review organizations in the certification of medical treatment, recognize the value of Game Ready® In a 2012 Randomized Control Trial (RCT), patients treated with compressive cryotherapy after ACL reconstruction had more sufficient pain relief and less dependence on narcotic use than patients treated with cryotherapy alone (Waterman, The Efficacy of Combined Cryotherapy and Compression Compared with Cryotherapy Alone, Following Anterior Cruciate Ligament Reconstruction. Journal of Knee Surgery. May;25(2):155-60, 2012). In this study, patients undergoing ACL reconstruction were randomized to a cryotherapy/compression device (Group 1) or a standardized ice pack (Group 2). Of all patients, 83% of Group 1 discontinued narcotic usage by six weeks post-operative treatment, compared with only 28% of Group 2 (p = 0.0008). The conclusion of this study was the use of combined cryotherapy and compression in the post-operative period after ACL reconstruction results in improved, short-term pain relief and a greater likelihood of independence from narcotic use compared with cryotherapy alone.

To elaborate, I know, based on my own first-hand experience, Game Ready® offers tremendous healing results.  In 2015, I underwent three major surgical procedures (a four-level lumbar fusion and bilateral hip replacements). I used Game Ready® on an around-the-clock basis for a couple of weeks after my surgical operations. For my two hip surgeries, I was in the hospital one night, when the average, usual hospital stay is two-to-three nights. Because of the Game Ready® device, I eliminated half of the normal hospital time allotment and did not require narcotic pain medication. The Game Ready® device also facilitated my rapid return to work for all three procedures. I only missed one week of work after my final right hip procedure, when most patients are off of work a minimum of five-to-six weeks. In ongoing surveys, over 97% of patients report Game Ready® provided a better post-operative recovery experience than a previous surgery using a different cold therapy. In my own experience with more than 500 patients, including myself, who have received Game Ready® on a post-operative basis, nearly 90% of these patients attest to them as one of the primary reasons they recovered and returned to work faster than they otherwise would have been able to.

What is a Fair Price for Game Ready®?

Again, I do not rent Game Ready® units to patients, but I do prescribe them and attempt to get them pre-authorized by carriers when I recommend Game Ready® intervention. In the past couple of years, it has come to the attention of CoolSystems, Inc. there are small DME companies (many owned by physicians) that have purchased Game Ready® units and are engaging in their own billing. Similarly, I am aware of several downstate Illinois physicians who have purchased available Game Ready® device on E-Bay (at an average cost of around $3,500.00). CoolSystems, Inc. does not permit the private sale of their devices and, lately, has actively prohibited the sale of units that are listed on E-Bay and other Websites to better control the application and delivery of their product. What CoolSystems, Inc. has found is that these private DME companies are posing as exclusive Game Ready® representatives and billing Workers’ Compensation carriers anywhere from $100.00-to-$300.00 per day for the Game Ready® equipment (as opposed to an average rental fee of $60.00 per day by CoolSystems, Inc., which is emphatic they are not partnering with these private DME companies who are not legitimate, authorized dealers). CoolSystems, Inc. and their authorized representatives obtain pre-authorization on every Workers’ Compensation claim order so the insurance adjusters and Workers’ Compensation carriers know ahead of time what the cost will be through mutual negotiation strategies. The usual cost of a 14-day rental, including the specific body part wrap (CoolSystems, Inc. makes anatomical wraps for nearly every body part, including the head), should be less than $1,000.00, which represents a major costs saving for the employer in the rehabilitation of work-related injuries when the rental is initiated through the manufacturer as opposed to individual physician-owned DME operatives.

Game Ready’s® manufacturer, CoolSystems, Inc. recommends Workers’ Compensation carriers conduct background checks in order to ensure they are working with authorized Game Ready® representatives. Carriers can always call Game Ready® at any time (1-888-426-3732) and ask them for guidance regarding local representation. There are competitor products to Game Ready® system; VascuTherm®, an iceless device, is one such unit. VascuTherm® touts the iceless feature as eliminating patient and/or caregiver stress. Moreover, this iceless equipment allows for consistent temperature, which enables prevention of thermal tissue damage, leading to expedient patient outcomes. The VascuTherm® unit is smaller, lighter, and more compact than Game Ready®. Like the Game Ready® system, though, VascuTherm has also been the subject of physician pricing criticism.

In summary, Game Ready® is a DME device that offers remarkable benefit for patient rehabilitation and fast-tracked recovery. Parallel to the issue of physician dispensing and medication compounding, some of my colleagues are engaging in greed-provoked behavior that is essentially ruining a viable treatment option that offers incredible patient benefits, by gouging Workers’ Compensation carriers with rental fees that sometimes exceed $400.00 per day. Bottom-line:  I recommend getting Game Ready® device usage pre-approved by the carrier in two-week treatment intervals, as most patients only need 14 days’ of Game Ready® usage. (Editor’s note: Dr. Fletcher, the Medical Director at SafeWorks Illinois, has no financial interest in the Game Ready® System Device). Dr. Fletcher can be reached at

Game Ready®

David J. Fletcher - MD, MPH
Owner & CEO, SafeWorks Illinois

T: 217-356-6150 ext 2005 | M: 217-855-0979
E: dfletcher@safeworksillinois.com
A: 1806 N Market St, Champaign IL

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Synopsis: What has the IL Appellate Court WC division been doing this year with its Rule 23 Orders? Apparently, applying case law reasonably! Thoughts and Commentary from Arik D. Hetue, J.D.

Editor’s comment: We can’t respectfully agree with the continued usage of the IL Appellate Court Rule 23 Orders in today’s current technological climate which makes it extremely easy to publish opinions. In fact, we have argued for years now that these “unpublished” rule 23 orders, which are published on the Illinois Court’s website, are being used by both the Petitioner’s bar and defense attorneys as a guidepost for how the court is dealing with issues on a routine basis.

The original intent of the Rule 23 order is to resolve simple issues that have no bearing on other claims or issues – easy peasy decisions, affirming a Circuit Court decision which affirmed benefits, where the only issue is whether the argument was whether the decision was against the manifest weight of the evidence, and similar issues – this is the proper type of issue to be resolved under this arcane rule.

However, when there is a reversal of a lower court or the IL WC Commission, the case has merit and can be instructional to both sides of the bar on how to approach the underlying issues.

We have performed a complete review of the unpublished Rule 23 orders currently published on the Court’s website for 2016. What we found is a somewhat reasonable panel applying the law in a reasonable manner, for the most part.

The initial takeaway once again appears to be the fact a large amount of attorneys on both sides of the bar do not understand the concept of when a case is appealable – multiple orders were entered where the Appellate Court indicated it did not have jurisdiction to hear an appeal. Please remember, if the Circuit Court remands a case to the Commission, the case has to go down on remand before you can take it up to the Appellate court. Illinois considers a remand decision from the Circuit Court not to be final, as the Commission has to weigh in on the issues that were the basis of the remand before the order is appealable. You can save yourself or your client a lot of time and money by correctly handling the appeal process in this setting.

Secondarily, we are happy to report there was only one case where a denial of benefits was reversed – we are no pleased to report the Court stepped in with respect to weighing issues we feel are more appropriate for the Commission to determine, but the facts of the case did lend themselves to a finding of an award – this issue dealt with intervening accidents cutting off the causal chain – frankly, under current caselaw, unless you have the ability to affirmatively identify physical changes and/or a change in symptoms and/orneed for treatment, you are unlikely to win this argument. If there has been a surgical recommendation, and then an intervening accident occurs, but the same surgery is recommended, you better have some other evidence to argue the first surgical recommendation was not warranted. Which brings us to the next point…

Moving on to the “good stuff” – there was one claim in particular we feel should have been a true “published” opinion and therefor one that would become precedent – but it involves a simple concept: If you want to argue a point on appeal, you have to SUBMIT EVIDENCE AT TRIAL. Seems like a silly thing to remind people about doesn’t it?

In Monterey Coal Company v. Illinois Workers' Compensation Comm'n, a unanimous panel affirmed the Commission award of wage differential benefits, but modified the amount awarded to a lower number.  At first glance, this appears to be a defense opinion, doesn’t it? Kind of, but there was one portion of the order that will cause your heart to palpate if you are on the defense side.

Claimant Steward was a coal miner for many years, over 30. He suffered from a range of allergies as a child, and had his first occupational exposure to vulcanized glue in 1976. The record indicated he had been on allergy medication or some sort of lung inhaler for the last 15-20 years of his work at the mine. His testimony confirmed he voluntarily quit work there, but he also noted it was due to his lungs not being able to take the strain any longer. Both before and after he left work for the mine, claimant was the local Union President, earning a small annual sum for his work in that role.

Claimant’s testimonywas the basisfor the determination he could no longer work in the mines. There were conflicting doctor’s opinions on the issue, but all of them agreed that continued work in the mines “could aggravate” his pre-existing asthma and lung issues.

The issue faced by the parties was one of wage differential benefits in this context. Respondent contended there was "no evidence claimant tried to find any suitable full-time employment" after he stopped working and he simply retired and took himself out of the work force. The Court noted  when seeking a wage differential award there is no affirmative requirement that a claimant even conduct a job search. The Court also confirmed existing caselaw confirming claimant need only demonstrate an impairment of earnings and cited prior rulings confirming evidence of a job search is just one way to show impairment of earnings.

In Monterey Coal Company, claimant did not engage in a job search after he quit working for the employer, his testimony confirmed he was employed in positions which he testified were suitable given his health and work history. And here is the kicker -  the employer did not present any evidence showing claimant's earning capacity was greater than the amount asserted by claimant at arbitration.

We tell all of our clients, if you are going into trial and wage differential is a potential outcome, if you do not have a vocational opinion and/or at the very least a blind labor market survey, you are effectively bringing a knife to a gun fight. Please remember, it may cost a little bit more to prepare for the hearing, but it can save you a whole lot of money on the back end of the claim.

This article was researched by Arik D. Hetue, JD and coauthored by Arik and your Editor in Chief. Please feel free to email comments to us at ahetue@keefe-law.com or ekeefe@keefe-law.com, or you can post them on our award-winning blog!

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.