May 12, 2016

5-9-2016; How KCB&A Can Save You WC Dollars on Your Non-Litigated and Litigated Claims!; Brad Smith on New Federal White Collar Salary Exemption; Welcome Back Wrigs on Important 19H Ruling and More!

May 12, 2016/ Eugene Keefe

Synopsis: How Keefe, Campbell, Biery & Associates Can Save You WC Dollars and Insure Your Claims Are Handled Effectively And Efficiently!!

Editor’s comment: We keep getting the same questions and want our readers to know the answers. You can and will save money to use the Midwest U.S. Best Legal Defense Team for your non-litigated and litigated WC defense claims. Here are our best thoughts. Please note we defend claims in Illinois, Indiana, Wisconsin, Michigan and Iowa. Any claim question or concern you pose will be handled by the licensed team member for that respective state. We save any and all emails where we provide legal advice and such record-keeping is attorney-client privileged for your protection. If you haven’t found your concerns below, please, please tell us what you might need help with in handling WC claims!

Non-Litigated Claims—Most Legal/Claim Consulting Services are Free

· Is It Compensable or What?

The phone calls and emails we receive all the time are for a preliminary review of an incident seeking our best legal advice on whether the claim is or is not compensable under the applicable state’s work comp law. Please remember not to quickly and rashly characterize what has occurred as an “accident” or “injury”—they are all incidents until you decide, after consulting with defense counsel whether you are dealing with a work-related accident. One early tool to use is to compare what you are being told at the work site with the medical histories—you would be amazed how many times they tell the folks at the plant one story and then tell the doctors a total different tune.

If you need such advice on any claim, send an email or call any of our defense team members—the cost is gratis, complimentary, free…!

· Free WC Claim Valuations

We are asked all the time for the reserve needed on an accepted WC claim. If you can provide needed details and investigation, we are sure we can tell you a reasonable value and back it up with research. You can document your file to indicate you consulted with counsel and create a reproducible reserve that will stand up to internal and external audits.

Again, this service and any related research is free of charge.

· IME Background Letter Review

We have seen claim after claim where busy claim adjusters do form IME background letters or sometimes let neophyte nurse case managers do IME background letters and innocently turn a non-compensable WC claim into a compensable and expensive one. How, you ask? Well, lots of times the biggest mistake is having a worker claim their shoulder/hip or whatever got sore at work. The worker didn’t even report their concern for a week or even a month later. The busy claims handler will then select an expert and ask that IME doctor if the “injury” is related to “work?” In our view, when you ask an IME doctor that sort of loaded and leading question you are almost certain to get the wrong answers because the onset of soreness at work isn’t an accident and shouldn’t be an injury.

If you want a veteran defense lawyer to review the IME background letter, we will do it at no cost and give you great ideas on how to maximize the use of defense experts.

Litigated WC Claims—We Charge Reasonable Rates to Defend Your Toughest Litigated Claims

· Getting Claimants to MMI and Back to Work

Our first goal in any assignment is to insure you have proper targeting of all pending medical care. By “targeting” we mean looking at an accepted claim and figuring out how much medical care and how long care should continue following an initial injury or post-injury surgical intervention. This is a spot to consult with an EagleOne CMS nurse case manager, if you have one on the file. When you have a claims target for MMI and light/full return to work, we consider it important to document your file with it, let your accounts know and be sure to let the other side know—tell Claimant and/or the attorney for Claimant, where appropriate.

In IL WC and most states, you can use utilization review, IME’s and other techniques to make your valid WC claims target happen. If things break down on a claim, that point is a great time to contact one of the experts at Keefe, Campbell, Biery & Assoc. to seek their help in putting the train back on the rails and getting the worker to end care and return to light/full work.

· Getting WC Claims to Close Faster Than Our Competition

Our motto is “The Only Good File is a Closed File!” We take great pride in closing all WC litigation faster than our competitors—we confirm we have many tactics and techniques to make things come to closure and getting the best possible outcome within your authority. If you want a list of concepts to close WC claims rapidly, send a reply. Basically, our focus is to work the claim up, figure out if there is common ground for a settlement, make an offer and failing that, get the matter in front of the Arbitrator/Hearing Member and get it tried.

· Helping with Ancillary Issues Like Employment Law Beefs and MSAs

We have a team of defense experts who can assist with release/resignations and aggressive defense of employment law charges both at the EEOC and State Departments of Human Rights. If you have concerns about Medicare Set-Asides, we have two lawyers who carry the MSCC certification who can assist with insuring the federal government won’t mess with your biggest and toughest settlements.

Summary

We can’t help you if you don’t let us—all we suggest you consider is giving KCB&A a try—ask questions or send emails about your toughest claim issues. See if you receive strong value and turn your desk around!

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Synopsis: New NLRB Salary Increase to White Collar Exemption Will Affect Telecommuters! Analysis of New Law by Bradley J. Smith, J.D.

Editor's Comment: In accordance with President Obama's directive, the NLRB will soon increase the White Collar Salary Exemption to about $47,000.00, which will affect the way you label certain employees under FLSA. It’s time to take another look at how you classify your salaried employees.

The new NLRB white collar salary increase—as directed by President Obama—will likely change the way any of your formerly exempt employees telecommute. That new rule is expected to be finalized soon. Although the initial proposed salary increase was $50,440, the exempt salary threshold will likely be about $47,000. This will result in many reclassified employees changing their working habits, which might affect those who telecommute.

Prior to this newly implemented rule; generally, an employee that was exempt and telecommuted would only require completion of tasks, with disregard to when they were completed throughout a 24-hour period. However, with the implementation of the new rule, employers may not want to manage the burden of monitoring and compensating overtime worked. In fact, this would require implementing new monitoring techniques to properly manage your telecommuting employees. After all, it is hard to guarantee that your formerly exempt employees are not working overtime hours during the week, when you never had to monitor that before.

Reducing the number of your employees that telecommute will also require examining your previous practice of allowing telecommuting in the past. When something has become so routine amongst your employees that were exempt, it will be a difficult task to remove that prior fringe benefit. Perhaps you even provided telecommuting as a reasonable accommodation to some of your employees. You can expect employees that are allowed to continue to telecommute while others are not will be questioned. Management will need to have logical reasoning as to why some employees are still allowed to telecommute, and why some employees cannot telecommute after the reclassification.

The new rules will require the implementation of strict monitoring procedures to determine the hours that telecommuting non-exempt employees are working. In other words, the telecommuting non-exempt employees will need to carefully track and report all time worked.

Ultimately, the most conservative approach would be removal of the telecommuting option for employees that are no longer exempt due to the rule change. Depending on the employer's appetite for risk, it may proceed to allow employees to telecommute despite their newly non-exempt status. Employers with intermediate risk tolerance will likely need a form of monitoring that requires telecommuting employees to work within certain hours of the day, instead of the prior requirement that employees complete all the tasks that required completion.

As change is in the air, employers must prepare for this rule in many ways. One of those ways is to take a look at how they handle telecommuting employees. If you are late to the party, then you could get caught not properly paying overtime, which can carry additional penalties besides simply paying the overtime that was unpaid. There are multiple options and fixes to deal with changes that are necessary with the way your company manages its telecommuting employees upon implementation of the new rule.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the FLSA, employment law, and general liability defense at bsmith@keefe-law.com.

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Synopsis: In IL WC, Time Period for Filing 19(h) Petition is Not Tolled by Judicial Review Except When a Final Determination of a Court Quashes the Commission’s Award. Analysis by Matt Wrigley, J.D.—Welcome Back, Wrigs!!!

Editor’s Comment: In Weaver v. Illinois Workers’ Compensation Comm’n, 2016 Il App (4th) 150152WC, NO. 4-15-0152WC, the Appellate Court, WC Division dismissed Petitioner’s 19(h) petition filed on November 6, 2013 due to lack of jurisdiction as the petition was untimely. The Appellate Court held the 30-month filing period commenced on February 23, 2010, the date of the Commission decision which affirmed an Arbitrator’s award of 50% loss of use of a person. Thus, the Appellate Court held to be timely under the IL WC Act the petition must have been filed by August 23, 2012. The 30-month period for filing a section 19(h) petition runs from the date of filing of the Commission’s decision and judicial review of the Commission’s decision does not toll the 30-month period. The Court noted it was the February 23, 2010 decision Petitioner sought to modify.

The Arbitrator’s decision was dated January 22, 2009 and awarded 50% loss of use of a person. As noted above, the Commission decision affirming and adopting this award was dated Feb. 23, 2010. On judicial review the Circuit Court found the Commission’s decision to be against the manifest weight of the evidence and remanded the matter to the Commission. The Circuit Court decision was dated January 13, 2011. The Commission issued its decision on remand on June 30, 2011 and found Petitioner permanently and totally disabled. On June 11, 2012, on judicial review the Circuit Court affirmed. On September 25, 2013, the Appellate Court reinstated the Commission’s original February 23, 2010 decision.

Petitioner filed a Petition for Review under sections 19(h) and 8(a) on November 6, 2013. Respondent filed a motion to dismiss the 19(h) petition arguing it was filed beyond the statutory 30-month filing period. Petitioner responded and argued the 19(h) petition was timely as it was filed within 30 months of the Commission’s June 30, 2011 decision on remand. On April 23, 2014, the Commission granted Respondent’s motion to dismiss the 19(h) petition. On judicial review the Circuit Court confirmed the dismissal on January 30, 2015. Petitioner appealed to the Appellate Court.

The Appellate Court noted the 30-month filing period set forth in section 19(h) constitutes a jurisdictional requirement which may be raised at any time. The Commission is divested of its review jurisdiction under section 19(h) 30 months after an award of compensation. The Appellate Court held judicial review of the Commission’s decision does not toll the 30-month period. The Appellate Court further found the right to review under Section 19(h) does not depend upon whether the Commission decision is enforceable at the time the 19(h) petition is filed except in cases where there is a final determination of a court which quashes the award. Subsequent vacatur and reinstatement of the original Commission decision does not affect the 30-month period for filing. The Appellate Court noted in the case at bar there was no final determination of a Court which quashed the original award.

The lawyers and staff of Keefe, Campbell, Biery & Associates welcome back Matt Wrigley, J.D. who wrote this great article after an hiatus at another firm. Matt can be reached for thoughts and comments about this and any IL WC claim issue at mwrigley@keefe-law.com or call 312 756 3733.

May 03, 2016

5-2-16; 'Dirty Lancing'- IL App. Court Again Reverses To Insure Benefits Awarded; Lindsay Vanderford Analyzes Important Kotecki Ruling; Shocking Child Support Judgmt--Don't Let It Happen to You

May 03, 2016/ Eugene Keefe

Synopsis: “Dirty Lancing”--Illinois Appellate Court, Workers’ Comp Division Maintains Its Role as a Super-Commission to Readily Reverse WC Denials.

Editor’s comment: Taking you back down the path of the “manifest weight of the evidence” rule in IL work comp, we remember the last two decisions on the subject for the IL Supreme Court were Sisbro and Twice Over Clean, both decided about a decade ago. In those rulings, the august members of our highest court were considering awards of benefits from the IL Work Comp Commission. When the decisions were taken on appeal to the IL Appellate Court, WC Division, the reviewing panels reversed to deny benefits. These well-reasoned and carefully thought-out Appellate Court decisions clearly outlined their view that a reviewing court could do so based on the “manifest weight of the evidence” rule. The Appellate Court found the facts didn’t match the record and denied. After lengthy consideration, the IL Supreme Court made it clear the interim reviewing courts weren’t to reverse on the facts and, they are only to reverse the IWCC when the opposite conclusion is very clearly apparent and there is no real support in the record for the factual decision the IWCC reached.

Once those rulings came down, most veteran defense lawyers, risk managers and claims handlers were unimpressed. As the years have rolled on, we have seen ruling after ruling come from the Appellate Court where WC denials mystically turn into benefit awards. It appears to have become so common, the current Appellate Court, WC rulings no longer even try to hide the obvious fact the Appellate Court in work comp appears to act as a “Super-Commission” to insert their own view of the facts whenever they feel it appropriate. In our respectful opinion, this is in direct contradiction to the rulings from the Supreme Court we cite above.

So, last week, we saw a new decision in Dunteman v. Illinois Workers' Compensation Comm'n, (issued April 29, 2016). In this ruling, Claimant filed an application for workers' compensation benefits for a foot blister sustained during work. In our view, the veteran and knowledgeable defense attorney for Big Cat or Caterpillar Tractor stipulated there was an “accident” when this Claimant’s foot rubbed in his shoe.

Claimant supposedly developed a blister on bottom of his left foot at work from having to repeatedly push a clutch down forcefully in operating a machine. A medical concern that clouded everything was Claimant was an uncontrolled diabetic. After Claimant lanced this foot blister using what he testified was his version of a sterilized needle, he later developed a serious infection in the foot that appeared to be due to diabetes and not the blister. Either way, for medical reasons clearly in dispute, the foot and toe required several foot surgeries and partial amputation of one toe.

As to lancing of the blister, the IL Appellate Court decision states:

The claimant testified that on or about June 25, 2011, while bathing, he noticed a water blister under the callus on the bottom of his left foot between his third and fourth toes. He went to the kitchen, sterilized a needle by boiling it in hot water on the stove, propped up his foot, and inserted the needle to relieve the pressure of the water blister. He testified that pure "water" drained from the blister. He then used peroxide on a cotton swab to wipe the area. He indicated that he had performed this procedure, which his mother had taught him at a young age, many times in the past without complications. He stated that no physician had ever told him not to pop blisters on his foot in this manner.

To our understanding the word “water” in the paragraph above isn’t water; it is opaque bodily liquid produced in infected tissue, consisting of dead white blood cells and bacteria with tissue debris and serum. There is a possibility Claimant caused infection to the tissue lanced due to any number of reasons, including how clean his hands were, the sanitation in the area where he lanced the blister and numerous other factors. Plaintiff’s counsel hired their medical version of a “hired gun” who said everything was related and caused by work.

Defense counsel for Caterpillar hired their medical version of a hired gun, a noted specialist who is board certified in internal medicine, occupational and environmental medicine, and public health and epidemiologic medicine. Caterpillar’s expert found no causal relationship between the surgeries and Claimant's work duties and asserted Claimant's infection "happened on the top of his foot, not on the bottom." Although this expert acknowledged Claimant's repetitive use of the clutch caused a foot blister and once a blister has formed, complications can arise from it, he believed that neither the blister nor the lancing of the blister contributed to the claimant's foot infection. The defense expert testified Claimant had uncontrolled diabetes and was not exercising proper diabetic foot care. He testified Claimant had roughened and chapped feet with slight cracking of the top of his left foot. On examination, this noted expert found brownish discoloration consistent with atrophic changes involving the left foot consistent with poor blood supply in addition to the lack of any diabetic foot care.

In reliance on this careful and clearly outlined expert testimony, the Commission panel denied benefits. In our view, there is strong support in the record for their determinations and factual findings. Based on the rulings in Sisbro and Twice Over Clean, the Commission decision should have been quickly affirmed by the reviewing courts.

Instead, we feel the Appellate Court, WC Division unanimously drew their own Plaintiff-focused conclusions, which they had to do to reverse. They ruled even if Claimant's lancing of blister was the immediate cause of infection, the infection would not have occurred "but for" the existence of work-related blister. Thus, his employment remained a cause of his current condition of ill-being.

We ask our readers to carefully consider the factual basis for the Commission’s decision is the lancing of the blister and the blister itself had nothing to do with the problem for which Claimant was being treated—the defense expert said there were problems away from the site of the blister and the “dirty lancing” issue. The defense expert felt the problems leading to surgeries and amputation of a toe were due to improper diabetic foot care and skin/tissue problems at a different part of the foot. If that is the basis for the IWCC ruling, how does the appellate panel properly substitute their own version of the facts and resolve medical issues wholly contrary to that of the IWCC? You have to decide--does that view comply with the last rulings of our highest court on factual issues?

Another concern for the IL business and insurance community is this ruling is going to be another demonstration of the unwillingness of our reviewing courts to join in the effort to rein in IL WC costs. Caterpillar CEO Douglas R. Oberhelman is a strident critic of the IL WC system and this ruling is going to be like throwing gasoline on a box of lit matches for him. We hope someone some day gets a message to the members of this appellate panel to try to act in a more moderate fashion while there are still a few large businesses like Caterpillar left in this state.

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

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Synopsis: The “Kotecki Cap” – Good To the Last (Shoe) Drop(s). Thoughts and Analysis by Lindsay R. Vanderford, JD.

Editor’s comment: The IL Appellate Court confirms a Kotecki defense is a set-off which does not have to be pled unless accident is at issue, and an employer can choose to waive its 5(b) lien after trial.

On April 28, 2016, the IL Court of Appeals for the Third District affirmed the Circuit Court in its decision in Burhmester v. Steve Spiess Construction, (issued April 28, 2016). The holding: an employer is not required to raise its Kotecki setoff limit or workers' compensation lien as an affirmative defense or before a trial. As it was undisputed Plaintiff Burhmester was an injured employee receiving compensation under the Illinois Workers Compensation Act from his employer, L.J. Keefe Co., there was no need for L.J. Keefe Co., who was the third-party Defendant in the civil action, to place the Kotecki issue before the jury by pleading an affirmative defense, and the court could address the issue by post-trial motion.

In brief reminder, Kotecki comes from a 1991 Illinois court decision involving a worker’s job-related injury. A contractor’s employee was hurt on the job and sued while working at a property owner’s location. After collecting workers’ compensation benefits, the worker sued the property owner for damages arising from his injury. The property owner then sued the worker’s employer for contribution. The suit resulted in the decision that an employer’s maximum liability for contribution is limited to the amount of the workers’ compensation claim. This is now referred to as the “Kotecki Cap.”

In Burhmester v. Steve Spiess Construction, Burhmester was working for an electrical subcontractor, L.J. Keefe Co., when he sustained a severe electrical shock. L.J. Keefe Co. was subcontracted by Spiess Construction, as the general. Burhmester brought a workers’ compensation claim against L.J. Keefe Co. and a negligence claim against Spiess Construction. Spiess Construction then filed a third party action against L.J. Keefe Co., attempting to assert L.J. Keefe Co. should contribute to any money damages awarded to Burhmester in the negligence claim.

At the close of evidence, Spiess Construction made an oral motion for a directed verdict against L.J. Keefe Co. asserting this employer had provided no evidence to establish its Kotecki claim. The trial denied the motion, deciding Kotecki automatically applies in contribution claims, and a claim under Kotecki does not need to be raised as an affirmative defense or proven at trial. The jury awarded Burhmester $534,608.82 and apportioned liability 20% to Burhmester, 30% to Spiess Construction, and 50% to L.J. Keefe Co.

L.J. Keefe Co. then filed a post-trial motion to waive its Section 5 lien and dismiss Speiss Construction’s contribution action. L.J. Keefe Co. argued it could choose to waive its workers’ compensation lien after trial. The trial court granted L.J. Keefe Co.’s motion to dismiss the complaint and vacated the judgment against L.J. Keefe Co. Spiess Construction was given a set-off of $95,487.23 (the amount of the WC lien).

On appeal, the Third District affirmed the trial court’s decision, noting case law including Kim v. Alvey, Inc. and LaFever v. Kemlite Co. which clearly allow an employer to raise its lien in a post-trial motion and that by waiving that lien, the employer may avoid liability for contribution to other parties allegedly responsible for the worker’s injury.

The Appellate Court clarified, “…a defense under the Act does not need to be plead before the matter is tried before a jury to be controlling. …[T]he fact that the plaintiff was an injured employee receiving compensation under the Act from L.J. Keefe Co. was not in dispute. Thus, there was no need for L.J. Keefe Co. to place the issue before the jury by pleading an affirmative defense. Rather, the trial court could effectively address the issue by means of a post-trial motion.” Burhmester at 18.

Thanks to this decision, we have a road map for protecting employers’ liens. If accident is at issue, be sure to plead the Kotecki setoff and provide evidence of the lien. No question of accident, no pleadings necessary. That lien remains enforceable until the final decision has come down, at which time, an employer can either enforce or waive the lien and remove itself from liability for contribution. A quick cost-benefit analysis can be performed, and the determination of whether to file that post-trial motion should be at hand.

This article was researched and written by Lindsay R. Vanderford, JD. Lindsay can be reached with any questions related to workers’ compensation defense and employment law defense at lvanderford@keefe-law.com.

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Synopsis: Remember WC Folks, Child Support Liens Attach to All Pending WC Claims and Benefits!

Editor’s comment: We get asked all the time about what liens will legally attach to work comp claims. The main kahuna of effective liens on WC benefits are child support liens. If you have notice of them in any fashion, you have to address them during payment of any WC benefit or settlement.

Failure to address and pay benefits can come with a hefty penalty. Last month, a Cook County Circuit Court Judge on issued one of the largest child support rulings in Illinois history, ordering Country Chevrolet Inc. in Herscher to pay $2.3 million in a case that originally was filed for $7,820 in past due payments! This massive judgment, levied by Cook County Judge Bonita Coleman, surpasses a previous case that went all the way up to the Illinois Supreme Court, ultimately resulting in a judgment of $1.2 million.

Plaintiff in this recent case, currently of Flossmoor, was married to Country Chevrolet's former finance manager. The mother argued the Herscher dealership intentionally shirked state law when it didn't withhold part of the finance manager’s earnings that should have gone toward child support. The mother filed the lawsuit in 2010 over $7,820 and Country Chevrolet eventually paid it. But under another part of the state's child support law, employers can be fined $100 per day for intentionally failing to withhold wages; and those overdue payments can be compounded.

While possibly being the largest child support amount ever granted by a judge in such a case, it is not the first ruling of its kind. The Illinois Supreme Court in 2007 upheld a ruling in favor of child support recipient for $1.2 million in penalties in a precedent-setting case. In recent years, the IL State Legislature has sought to strengthen child support laws by removing caps on penalties and damages.

Country Chevrolet attempted to defend itself by arguing the missed payments were clerical errors and the finance manager was an independent contractor — not an employee. In the ruling this week, Judge Coleman ruled Country Chevrolet's intentionally ignored withholding monthly child support payments. The company wrote a check that bounced, produced witnesses in court whom the judge deemed not credible and ultimately failed to make a convincing legal argument against the claims.

If you have questions and/or concerns about child support issue in a pending WC claim, feel free to send a reply on a 24/7/365 basis and we will get back to you to insure you are protected in handling resolution.

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Synopsis: Kevin Boyle’s NEW Indiana WC RATE SHEETS ARE HERE, if you want the new one, just send an email!

Editor’s comment: We now have the even newer 2016 IN WC Rate Sheet, adding that recent Indiana WC mileage change. We are happy to send to anyone who asks. For IN WC adjusters, you still need to check your PPD Reserves and insure they are in line with the new rates. To get a complimentary copy, simply email Kevin at KBoyle@keefe-law.com and/or Alea at AMcNellis@keefe-law.com for Kevin Boyle’s Updated IN WC Rate-Sheet!

AGAIN—If you want just one or a dozen or more, simply reply to Kevin at KBoyle@keefe-law.com and/or Alea at AMcNellis@keefe-law.com They will get a copy routed to you before they raise the rates again! Please confirm your mailing address if you would like laminated copies sent to your home or office!

May 03, 2016

4-25-2016; Do IL Employers Get Credit for Prior 'Arm As A Whole' Awards?; Don't Blindly Trust Claimant Attorneys About Legal Issues; Get Kevin Boyle's IN WC Rate Sheet; John Karis on Psych Exams

May 03, 2016/ Eugene Keefe

Synopsis: In IL Work Comp, Is An Employer Provided Credit for Prior “Arm as a Whole” Awards/Settlements When There Is A New Arm Injury?

Editor’s comment: Illinois workers’ comp is a very odd place to work sometimes. For reasons known only to our Appellate Court, Workers’ Comp Division, in a controversial ruling in 2012 titled Will County Forest Preserve District v. Illinois Workers’ Compensation Comm’n, 1-14-3044WC they unexpectedly ruled the ‘shoulder’ was no longer to be considered part of the “arm.” In so doing, they reversed about one hundred years of prior and otherwise unremarkable workers’ comp law, rulings and settlements where the shoulder was always considered part of the arm. With respect to the members of this panel, we also think their ruling simply doesn’t match our version of common sense—if you punch someone in the shoulder, most folks think you have struck them in the arm.

Why did the “shoulder” suddenly get legally divorced from the arm in IL WC? Well, we feel there are lots of theories that start with the Plaintiff/Petitioner bar and then somehow make it into law. There can be no area of jurisprudence in this state where the Appellate Court “legislates” more than in workers’ compensation. Many folks feel this comes from ITLA and its leaders who have enormous say before the IL Courts, as they legally donate millions of dollars to IL judicial campaigns. ITLA is also credited with creating what may soon be the highest judicial salaries in the nation with an annual 3% kicker every year. Illinois judges also have the highest “fake” judicial pension program on this planet—we call it “fake” because it is wildly unfunded and most judges/justices who have been retired for a couple of years aren’t receiving pension benefits from the fake pension fund, they are getting paid by you and I from current tax dollars.

So what’s wrong with the concept of judicial legislation in work comp? Well, judges/justices can only decide the new law based on the facts in front of them—unlike legislators, judges/justices cannot consider all the nuances and impact their rulings will have in the future when different facts are presesnt. What does that have to do with taking injuries to the shoulder away from being considered injuries to the “arm”—well, under the new “division” of an arm, do IL employers get credit for prior “arm as a whole” injuries? We are jokingly using the phrase “arm as a whole” because in “body as a whole” awards under Section 8(d-2), there is no legislative language which provides credit for prior awards or settlements. In our view, the reason the Will County Forest Preserve claim was brought to the Appellate Court, WC Division with precisely that idea in mind—strip out any credit for prior shoulder awards/settlements so each IL WC shoulder claim occurs in a vacuum.

Well, what if the injured worker had a prior shoulder claim that was awarded before 2012 for loss of use of the arm?

In Dorsey v. Illinois Workers' Compensation Comm'n, (decided April 8, 2016), the Appellate Court, WC Div., considered a claim by a City of Chicago street light maintenance electrician employee who filed a claim for workers' compensation benefits for undisputed injuries to his left arm. Claimant acknowledged he had a previous injury to his left shoulder (rotator cuff) which resulted in a settled WC claim with his employer for 30% loss of use of left arm. Under traditional analysis, any new injury to the same wing would come with a credit to the employer for that settlement.

In the new claim, the IL WC Commission awarded Claimant benefits for 15.57 weeks, which was for 37.5% of loss of use of left arm minus a credit for 30% loss of use of same arm as a result of prior settlement. Medical records from the prior injury indicate that surgery was limited to an area near the elbow, supporting the IL WC Commission's finding of prior injury to the arm and not the “shoulder.” The unanimous Appellate Court majority ruled the IL WC Commission properly awarded this municipal employer a credit per Section 8(e)(17) of Workers' Compensation Act, as the prior settlement was under Section 8(e) of the Act, for partial loss of use of left arm.

We think the whole thing is a model for how odd IL workers’ comp claims can be. We wish this reviewing court would simply return to the days where the shoulder was part of the arm so these anomalies would end. If they won’t, we hope some day the IL Legislature would consider the issue and legislatively “re-attach” the shoulder to the arm.

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

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Synopsis: “Mind-Speak” From the Workers’ Comp Section of the IL Bar Ass’n.

Editor’s comment: Like the article above, we saw an analysis of the “traveling employee” doctrine in the ISBA Section on Workers’ Compensation Law Quarterly Report for April 2016. The long-time and hardworking newsletter editor Rich Hannigan of Hannigan & Botha, Ltd. http://www.illinoisworkerscomplawyer.com/ is a strident and otherwise brilliant Plaintiff-Petitioner attorney from Lake County and the northern part of our state published this statement:

An injury that occurs when an employee is traveling from his home to work is not compensable because it does not occur in the course of the employment. An exception to this rule applies when employee qualifies as a “traveling employee.” A traveling employee is one whose work duties required him to travel away from his employer’s premises and therefore the traveling employee is considered to be in the course of his employment from the time he leaves his home until the time he returns.

What we take issue with is the summary fashion in which Editor Hannigan defines the term “traveling employee” as if that term appears in the IL WC Act or the IL Rules Governing Practice Before the Workers’ Comp Commission. We assure all of our readers it doesn’t. Again, you can take what you want from the “judicial legislation” that may or may not follow what he writes but we truly feel he should indicate he is providing you his personal theory or version of what he wants a “traveling employee” to be and why he wants it that way.

Please also remember lots of claims handlers mistakenly ask Claimant attorneys what they thing about a set of facts—from our experience, many claimant lawyers simply tell you how they think a situation is compensable. They rarely add the fact they are putting forward their theories or versions of what may be complex factual and legal questions. You can’t blame them for doing this—their job is to make money for their clients! We urge our readers including claims handlers, adjusters, risk managers, brokers, consultants to send an email for the KCB&A answer to any legal issue. We promise we won’t summarily tell you our version—we will give you research and case law on all situations or versions with the strengths and weaknesses of each. Just send a reply!!!

Attorney Hannigan does properly report the last decision on the topic by the IL Supreme Court in a ruling we shorten to Venture-Newburg-Perini denies the injured worker “traveling employee” status and work comp coverage. The editor also accurately notes the last decision by our Appellate Court, Workers’ Compensation Division in United Airlines v. Illinois WC Commission also denies both traveling employee status and coverage to a flight attendant injured on a United Airlines flight.

In short, we think the definition of what is a “traveling employee” is in constant flux. In our respectful view, we believe Editor Hannigan may want to agree the definition he provides in the quote above doesn’t match his analysis of the last two rulings on the issue by our reviewing courts.

To any and all of our readers, we aren’t shy to tell you we despise the made-up term “traveling employee” because it is questionable as a tool and arises from quirky and unpredictable judicial legislation. We ask everyone on both sides of the IL WC matrix to stop using the goofy concept “traveling employee” that to a pure analysis makes little sense—no worker should get workers’ comp benefits for the simple/sole fact they are arguably “traveling” when injured.

We prefer you use the traditional legal analysis that actually is in our legislation along with that of many of our sister states—“arising out of and in the course of” employment.

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

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Synopsis: Kevin Boyle’s NEW Indiana WC RATE SHEETS ARE HERE, if you want the new one, just send an email!

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Synopsis: Are You NUTS?? When Can An Employer Demand a Worker Undergo a Psych Eval--Federal Appellate Court Finds No ADA Violation When the Facts Are There. Analysis by John Karis, J.D.

Editor’s Comment: Sometimes alarming statements made at work may justify a fitness examination. Earlier this month, the 6th Circuit Court of Appeals found the Ohio State University Medical Center did not violate the ADA with the use of a psychiatric examination to determine if Plaintiff was still capable of performing her job. The Federal Court found there was enough evidence to allow the employer to inquire whether the Plaintiff was still capable of performing her job.

In the case of Barnum v. The Ohio State University Medical Center, Plaintiff worked as a Certified Registered Nurse Anesthetist. In 2011, she was having issues at home due to a divorce and other family matters. A co-employee advised her supervisor that Barnum said, “…maybe I’d be better off (if) I wasn’t here, maybe I should just put a gun to my head, maybe I should just not be here.”

An anesthesiologist at the hospital also became concerned about the employee’s ability to concentrate on taking care of patients. A surgeon had to ask her twice to raise a patient’s operating table because she was not paying attention. When the surgeon got the employee’s attention, she said words to the effect that “I’m not worth anything or I’m worthless, what good does it do or what difference does it make, why should I even be here, maybe I should do everybody a favor and not be around.” For her part, the employee denied ever having this specific conversation with this doctor, but she did admit to being unable to adjust the height of the operating table and becoming frustrating and tearful.

Several doctors at the hospital became concerned about possible suicidal risk, leading the hospital to place the employee on sick time leave for one to two weeks in October 2011. The hospital requested a fitness-for-duty examination with a psychiatrist. The employee was concerned about doing this in part because her husband worked as a case manager for the OSU mental health department and he might see the medical records. Eventually the employee saw a psychiatrist, Dr. Masterson, on November 16, 2011. The hospital wanted to make sure this psychiatrist spoke with one of the physicians from the hospital who was aware of some of the comments that had been made at work.

Dr. Masterson prepared her report, which the employee delivered on February 22, 2012. In that report the doctor stated the employee was fit for duty and always had been. However, the doctor had not spoken with the key physicians at the hospital, so the hospital would not allow its employee to return to work. The employee filed a Charge of Discrimination with the Ohio Civil Rights Commission in April 2012 because she was not being permitted to return to work. Eventually, the employee signed an authorization allowing Dr. Masterson to speak with two doctors at the hospital about her behavior and comments at work. On July 31, 2012 the employee presented a second medical report from Dr. Masterson stating the conversations with the doctors did not change her opinion: The employee remained fit for duty.

On November 9, 2012, the employee was reinstated to her position. She then sued for discrimination on the basis of disability. She argued OSU violated the Americans with Disabilities Act by requiring her to undergo a medical examination that was not job related. The Sixth Circuit Court of Appeals disagreed:

An employer may request a medical examination when ‘there is significant evidence that could cause a reasonable person to inquire as to whether the employee is still capable of performing her job… The burden is on the Defendants in this case to show that the required mental-health evaluations were ‘job-related and consistent with business necessity.’

The Federal Court said in this case there were numerous and legitimate concerns about whether the employee could perform job tasks and concentrate at work. The hospital had been informed the employee had made a comment suggesting suicidal thoughts. “These circumstances constitute significant evidence that would cause a reasonable person to inquire whether the employee is still capable of performing her job.” The Court therefore dismissed Plaintiff’s suit.

It is important to consider this decision when handling delicate matters similar to this case. Psychiatric examinations are a sensitive topic but as this decision shows, if the warning signs are there and the employee is having difficulty completing their tasks, it is okay for an employer to request a psychiatric fitness examination to determine if an employee is capable of working.

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

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