5-16-2016; Interesting Changes May Be Coming to the IL WC System Shortly; Ad Hoc IL WC Rules Committee Streamlines Digital Filings; Brittany Pendry on New Controversial OSHA Rule and More

Synopsis: Hold onto Your Hat!! Lots of Interesting Changes May Be Coming To the IL WC System Shortly.

Editor’s comment: File this Article Under “Nothing is Safe When Our Illinois Legislature is in Session.” The news from those crazy guys/gals in Springfield is both sides may be coming together to finally create a budget framework that may soon be presented to the four legislative leaders and Governor Rauner. The details remain secret but it appears this sweeping legislative proposal could include about $5.7 billion in revenue, including an increase in the individual income tax for all Illinois taxpayers from 3.75% to 4.85% and creating a new and unprecedented service tax for some services. It is our strong hope legal and other professional services are not going to be taxed—that may create something of a nightmare to put it into effect. Crain’s Chicago Business opined last year the new proposed 5% service tax may be on things such as hair grooming/blowouts, haircuts, country club and health club memberships and lawn care.

On top of the new taxes, there are supposed to be $2 billion in budget cuts across the board. This new spending plan leaves room for minutia and specifics to be filled in if there is an agreement from all sides to proceed. However, no one is sure if the Governor and his staff will accept the fledgling plan and ignore some or all of his “Turnaround Agenda.” On top of that, it may be just demanding for the members of the Democratic Legislature to accept many cuts in their proposals and also support many of the key points of the Governor’s Turnaround Agenda. What no one appears to be discussing is the 800lb. pink gorilla—the fake IL government pensions that have to have a deficit of well over $111 billion. Please note the worst fake government pension is for the legislators themselves—they only need to work four years of part-time work and contribute about 40% of one year’s pay to be entitled to millions over the rest of their lifetimes plus “free” taxpayer-paid lifetime healthcare. It may be too demanding for our legislators to look in a mirror to see why our State is approaching an inevitable financial abyss from their own largesse to themselves and other state government employees.

On the work comp side, our IL WC system continues to be a key lynchpin item for agreement to insure most GOP lawmakers and Governor Rauner sign off on the new budget. Please note the national WC premium ratings are going to be published by the State of Oregon later this year—we will see if progress is being made in cutting IL WC costs in that well-respected survey. We remind our readers the four WC reform issues in the Governor’s Turnaround Agenda are:

1.    Causation

Currently, if the employment is related at all to the injury, no matter how indirectly, the employee’s injury is compensable. If a work injury aggravates a pre-existing condition even slightly, the employer is 100% liable for the workers’ compensation claim. Twenty-nine states have a higher causation standard than Illinois. Missouri, Kansas, Oklahoma and Tennessee recently passed laws requiring the workplace to be the primary cause for workers’ compensation to be compensable. Florida’s major contributing cause standard is identical to the one they are proposing.

Turnaround Agenda Proposal

• The causation standard should be raised from an “any cause” standard to a “major contributing cause” standard. The accident at work must be more than 50% responsible for the injury compared to all other causes.

Keefe, Campbell, Biery & Associate’s Position

Causation is common sense and a wily or liberal hearing officer can easily rule any minor work problem is a “major contributing cause.” You don’t need this “feel-good” legislation, just tell the Arbitrators and Commissioners to use common sense in making causation rulings. If they don’t use common sense, consider other hearing officers.

2.    AMA Guidelines

The 2011 IL WC reforms added the use of AMA Guidelines as one of five factors in determining permanent partial disability (PPD) awards. The AMA Guidelines are more conservative in determining the awards and thus it was hoped allowing Commissioners to use these guidelines would reduce WC awards. While complete data on the use of AMA guidelines since 2011 is not yet available, a study of 20 cases from the IWCC shows a 12.24% reduction in awards when using the AMA guidelines. Indiana requires mandatory use of the AMA guidelines when determining permanent partial impairment which results in lower permanency awards.

Turnaround Agenda Proposal

• The language that limits the Commission from using only one of the five factors to determine PPD should be eliminated. This will allow (though not mandate) a Commissioner to solely base an award on the AMA guidelines.

• The language that limits a Commissioner to only considering a treating physician’s medical records should also be eliminated. Instead, the Commission should be able to review both a treating physician’s and an independent medical examiner’s records to provide a more balanced view of the medical condition.

Keefe, Campbell, Biery & Associate’s Position

Like the proposed causation change above, an Arbitrator or Commissioner can consider all five factors and go with the impairment rating under current law. Conversely, they can consider all five factors and award anything they want. Try to get hearing officers who use common sense and move permanency/impairment findings closer to AMA Guides. Please also note AMA Guidelines are not a panacea and will create controversy. They would sometimes render permanency/impairment values that are shockingly low in many serious cases—happy to provide examples on request.

3.    Traveling Employee

The Illinois Appellate Court, WC Division has greatly expanded the scope of what constitutes a “traveling employee” for purposes for workers’ compensation. For example, an employee’s injuries were found to be compensable when that employee slipped and fell on the way to work.

Turnaround Agenda Proposal

• What constitutes “travel” for the purposes of workers’ compensation should be narrowed.

• An employee would only be able to recover workers’ compensation while traveling if the travel was necessary for the performance of job duties. The employee must receive reimbursement for the travel or use a company car, and the travel must be required by the employer.

• This change, in addition to the heightened causation standard, will greatly limit the situations in which an employee “traveling for work” is able to recover.

Keefe, Campbell, Biery & Associate’s Position

Please note the IL Appellate Court’s last two rulings on the “traveling employee” concept returned to more traditional work comp law. There is no definition of “traveling employee” in the IL WC Act and there is little reason to try to lamely redefine something that isn’t already defined. We consider this proposed reform confusing and unnecessary in light of the traditional and common sense language in most U.S. work comp systems—the accidental injury has to “arise out of” and occur “in the course of employment. We need hearing officers who will follow traditional work comp concepts in ruling on injuries to all employees, traveling or not.

4.    IL WC Medical Fee Schedule Reduction

Even with the 2011 reforms, workers’ compensation medical fees in Illinois are significantly larger than the median of other states. Surgery costs are the most egregious fee schedule abuses, with rates 300%- 400% above Medicare rates and 100%-200% above group health. Illinois costs are 40%-60% higher than other states for radiology and emergency services and 90%-100% for pain management injections and surgery. Research has shown that a 30% fee schedule reduction would result in a 15%-20% reduction in medical claim costs.

Turnaround Agenda Proposal

• Reduce the fee schedule by 30% for all services except evaluation and management (office visits), and physical medicine (physical therapy, chiropractic visits and occupational therapy).

Keefe, Campbell, Biery & Associate’s Position

All doctors and hospitals we have talked to HATE this proposed reform. They have not been asked and it is being foisted upon them without any input or debate. We suggest the folks behind it actually talk to the docs and hospitals to see what their position might be.

All of our readers are encouraged to continue to reach out to their legislators and let them know how important WC reform is to our ability to attract and retain good paying jobs with reasonable benefits in Illinois. With only two weeks left in the regular legislative session, now is the best time for employers and local governments to relay that message to our lawmakers.

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

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Synopsis: They Created an Ad Hoc IL WC Rules Committee Right In Front of Our Eyes—Sort of. What Happened to the Five Other IL WC Advisory Boards?

Editor’s comment: Last month, the ISBA WC Section Newsletter confirmed IWCC Chairman JoAnn Fratianni created a new IL WC Rules Committee with Commissioners Stephen Mathis and Michael Brennan co-chairing this new and short-lived committee. This new IL WC Rules Committee was then subdivided into two sections with Commissioner Mathis taking one section and Commissioner Brennan the other section.

As the labyrinth unfolds, the two Committee sections were then broken down to subcommittees. Members of this IL WC Committee as a Whole, included Arbitrators Stephen Friedman, Molly Mason, Christine Ory, Douglas McCarthy, and Maureen Pulia. The bipartisan attorneys that rounded out this committee were: Matthew Belcher, Shawn Biery, Frank Brady, Jack Cannon, James Clune, Richard Hannigan, Richard Johnson, Charles (Denne) Knell, William Lowry, David Menchetti, Elaine Newquist, John Power (Power and Cronin), Arnold Rubin, Jean Swee and Kenneth Werts.

The first meeting was July 29, 2015. This was followed by numerous meetings of the subcommittees as well as meetings of the committee as a whole. The last meeting was March 31, 2016.

The purpose of these meetings was to help bring the rules into conformance with the digital age. The current rules have not had a major overhaul in many years. It appears these Rules subcommittees and committees may have completed their job and the process may be moving forward. All the Commissioners may now meet and go over and fine-tune the proposed rules. Eventually the rules may be sent down to Springfield where JCAR (Joint Committee on Administrative Rule) will review the proposed rules and either adopt, amend or reject the proposed amendments. It is estimated this process will take approximately one more year.

The IL House and Senate passed out of their individual chamber legislative amendments that included mandates for the IWCC to create a format for digital filings of applications for adjustment of claim, motions etc. They must also implement safeguards for privacy issues. One aspect of these changes may mean lawyers that are not based in downtown Chicago may soon be able to electronically file documents, similar to what is happening in the state and federal courts.

We point out our state work comp system has the

·         IL WC Commission Review Board

·         IL WC Self-Insurers Advisory Board

·         IL Workers' Compensation Advisory Board

·         IL Workers’ Compensation Commission

·         IL Workers' Compensation Medical Fee Advisory Board

It seems slightly of note to see all five existing boards couldn’t cover the issues handled by the hard work of the ad hoc group. That said, we salute the ad hoc committee and subcommittees and sub-subcommittee members for their volunteered time and best efforts. We do feel it was for a good cause including government efficiency. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: U.S. Employers’ Injury Data Published for All to See. OSHA’s Latest and Controversial Rule Attempts to “Nudge” Employers to Focus More on Workplace Safety. Analysis by Brittany Pendry, J.D.       

Editor’s Comment: On May 11, 2016, OSHA issued a final rule that will modernize injury data collection. While employers in most industries with more than 10 employees are required to record each employee injury or illness that occurs at their establishment, the final rule will require employers in certain industries to send OSHA injury and illness data for posting on the Agency’s website for all to see. OSHA claims this will better inform workers, employers, and the public. OSHA also claims the behavioral metrics of this unprecedented rule will “nudge” U.S. employers to focus more on safety.

Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year there­after, the information must be submitted by March 2. OSHA lists high-risk industries at the following address: https://www.osha.gov/recordkeeping/NAICScodesforelectronicsubmission.pdf.

OSHA is pushing this rule because it believes public disclosure of work injury data should encourage employers to increase their efforts to prevent work-related injuries and illnesses, as well as to provide a more competitive hiring market that will allow employees to identify work places where the risk of injury is the lowest. OSHA believes this will provide an incentive to employers to make injury prevention a high priority.  

Notably, this new Rule also provides an avenue for an employee’s right to report injuries and illnesses without fear of retaliation. The Rule requires that employers must have reasonable procedures outlined for reporting work-related injuries. In OSHA’s view, these procedures cannot discourage employees from reporting injuries or illnesses.

However, one big concern should be whether the benefits outweigh the costs. OSHA is estimating once the Rule is fully implemented, the first-year costs for all provisions may be approximately a whopping $28 million.

The final rule will go into effect on August 10, 2016, with phased-in data submissions beginning in 2017. Despite the obvious sentiment that this provision is overbearing and will not practically work, employers must heed the new rules to avoid stepping into OSHA’s cross hairs. As always, a call to the Keefe, Campbell, Biery & Associates, LLC defense team to make sure you have your OSHA reporting system in order should be your first step.

This article was researched and written by Brittany Pendry, JD. You can reach Brittany at any time for questions about OSHA regulations, employment law, general liability defense, and workers’ compensation at bpendry@keefe-law.com.

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Synopsis: Yeaaa!!! Cashless Tolling on Illinois Route 390 Starts July 5. When Will the Rest of the Illinois Tollways Follow Suit?

Editor’s comment: This isn’t truly a work comp issue but we wanted to report an important incidence of good government in our nutty state. How much do you think Illinois spends/wastes on payroll to collect tolls each year? Would you believe over $100M!!! This can be saved for Illinois taxpayers by simply automating our tollways. Tollway automation isn’t new—it is been in place in some areas for over 30 years. There is no reason for our state to spend/waste hundreds of millions on toll takers who then get fake government pensions and lifetime healthcare.

This will be Illinois Tollway’s first all-electronic roadway on the Tollway system, and they want to reach/educate as many people as possible before the roadway opens up. Beginning July 5, 2016, cashless tolling will be coming to the Illinois Route 390 Tollway from Lake Street to I-290. This is the first, all-electronic roadway on the Illinois Tollway system, which provides for a safer, more efficient and seamless method of collecting tolls from customers.

Toll collection equipment over the traffic lanes reads the I-PASS transponder on the windshield and automatically collects tolls. Drivers continue at highway speeds without the need to slow down or stop to pay at a toll. Tolls are lower on the Illinois Route 390 Tollway because they are assessed more frequently than other parts of the system. This allows for greater sensitivity for shorter trips and helps local communities provide congestion relief on adjacent roads.

I-PASS users always pay the lowest toll rates available, 50 percent less than those who do not have an I-PASS and must pay online. Those without an I-PASS can get a transponder at an I-PASS Customer Service Center or any Jewel-Osco location. For more information, visit www.illinoistollway.com.

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!

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.

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

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!