5-30-2016; Why are Illinois WC Rates So Expensive? Thoughts from a Reader; Overview of IL WC Benefits; Why It Is Challenging to Create Teaching Materials in Work Comp and more

Synopsis: Why are Illinois Workers Compensation Rates So Expensive? Thoughts from a Reader.

Editor’s comments: Following our KCB&A Update about Governor Rauner’s Turnaround Agenda, a reader provided his best thoughts on needed IL WC reform for your consideration. We have heard similar thoughts from many readers and publish this important article for your consideration and comment.

Why are IL WC Costs So Expensive:

It is a simple answer that is directly linked to the symbiotic relationship Petitioner attorneys sometimes have with a selected group of medical providers. These medical providers (typically the proprietors of their practice) have an endless stream of referrals and financially benefit from prolonging the course of treatment which in turn drives up the value of the claim for their attorney counterparts.

The high cost and duration of supposedly work-related medical care then extends far beyond what would normally be considered reasonable or necessary if there was no underlying litigation. And if that was not enough, these money-driven medical providers legally have the ability to offer and direct unlimited referrals to their counterparts. This endless and unhappy cycle leads to ballooning work comp settlements or awards which in turn increases Illinois insurance rates which are presently the 7th highest in the nation, and far beyond any of our neighboring states.

Medical Accountability Needed

Illinois needs to hold accountable those medical providers seeking to game the system by creating a way to effectively discipline them. This discipline needs to be enforced at the state level and most importantly by Illinois arbitrators. Arbitrators are far more likely to rule fairly if legislation provides specific guidelines, as it did with the recent limit on the value of carpel tunnel claims.

One of the only saving graces insureds and self-insureds in Illinois currently have, is the ability to request utilization reviews (URs), which are based on ODG guidelines. URs are used to demonstrate what is considered reasonable medical treatment and are presented to all parties involved in the case. It is commonplace for massive amounts of medical treatment to overshadow UR non-certifications and those attorneys who directed the medical care are fully aware of that. Arbitrators become mediators over medical care, forcing insureds to pay for medical care and bills that were deemed medically unwarranted by the UR. Under the present system, IL WC Arbitrators decide what is medically warranted/reasonable, rather than deferring to the expert tool specifically designed by the state legislature for this purpose.

IL WC Has No True Remedy for Unneeded and Expensive Medical Treatment But Needs One!

If an employer or claims handler would like to take an aggressive stance against a medical provider, they can presently file a claim with the IDFPR. However, you will likely be rewarded for your trouble with a complete lack of any response no matter how egregious the medical provider’s excessive medical treatment or billing is. In my view, that has to change and something has to be done about unneeded, endless and expensive medical care in the workers’ comp arena.

At some point, we hope the IL WC Commission itself consider steps to black-list or bar some medical providers from the system. The IWCC can’t stick its head in the sand forever—when everyone knows a medical provider is abusing the process, something needs to be done to push back.

Summary

Issues of causation, fraud, prescription of medically questionable durable equipment and compounds and excessive medical costs are topics for another day, but much of it would not be allowed to sully our system if these aforementioned relationships did not exist. These medical providers, some of which can be tracked back to the Federal investigations and scandals of Raghuveer Nayak, Blagojevich and Jesse Jackson Jr (notice a trend), will continue to damage the state of Illinois’ workers compensation system and financial well being if there is no legal recourse in place to keep them in check. If we had the ability to cut the head off the snake, the snake could not bite us. If we develop effective ways to challenge and possibly bar questionable medical providers in this state, we would be better able to get to the goal of moving IL WC costs to the middle of the pack of all U.S. WC systems.

Ben Lewis, Surestaff Risk Manager

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Synopsis: Overview and Definition of Illinois Work Comp Benefits

Editor’s comment: As we begin the summer, we wanted to provide our readers with a WC teaching update.

Workers’ compensation throughout Illinois and the world provides three main benefits for injured workers: medical care, temporary total disability and permanency. This is a quick outline of Illinois WC benefits:

Medical benefits: Injured workers are entitled to full medical coverage of all reasonable, necessary and related medical care arising from their injury. Illinois enacted a medical fee schedule, effective February 1, 2006, for all related and necessary medical treatment. The fee schedule is changed every year to follow inflation.

Temporary total disability: Illinois allows for 66-2/3% of an employee’s average weekly wage during all periods they are temporarily totally disabled from all work.

Temporary partial disability: If an employee returns to any work following injury—part-time or full-time light duty work at a lower rate of pay on a temporary basis—Illinois law requires an employer make up the difference as TPD, or continue to pay temporary total disability until the employee returns to full duty.

Permanent disability in the IL WC system is awarded in six ways:

1.    Serious and permanent disfigurement: Typically, burns or scarring outside the ‘strike zone’.

2.    Specific loss: Some relative legal definition of percentage of loss of a specified body part or ‘member’—Illinois relies in part on AMA ratings in determining specific permanent loss.

3.    Nonspecific loss (typically referred to as ‘body as a whole’): Some relative legal definition of percentage of loss of the whole body—again Illinois relies on AMA ratings as one of five factors in determining permanent loss/impairment/disability.

4.    Wage differential benefits: Two-thirds of the difference between what the employee would have been making in his old job at present wage levels versus a new, permanent lower-paying job caused by work-related injury or disability.

5.    Total and permanent disability: Two-thirds of the average weekly wage for life. Please note Illinois has a very high minimum and maximum rate for total and permanent disability, and unlike other states there is no cap on the number of years.

6.    Death: Two-thirds of the average weekly wage is payable to the surviving spouse and dependents for twenty-five years. Please note Illinois has a very high minimum and maximum rate for death benefits.

Other matters which may be characterized as WC benefits which any adjuster should be fully aware of:

Vocational rehabilitation is a benefit that may be claimed and/or awarded in specific circumstances. In rare instances, the Commission may order complete re-education or retraining of an individual at the employer’s expense due to an injury-related limitation and job change.

‘Maintenance’ was a term with a tortuous history in Illinois. In 2006, it was codified to equate with the TTD benefit when someone is in vocational counseling and hasn’t yet returned to any work. We always thought we were smart enough to know TTD and maintenance are the same thing but our old Chairman fought to use a duplicate term for the same thing!

Mileage to treating doctors is also a question mark in Illinois—there is no requirement that Illinois employers pay mileage to medical providers in our Rules or Act. There is one odd case that says it is due—the ruling has been routinely ignored. We tell all of our defense clients, don’t, please don’t pay mileage to treating doctors.

For Respondent to schedule an Independent Medical Examination and have the employee legally required to attend, the employee is entitled to mileage, meals, and time lost from work in advance of the appointment. Effective July 20, 2005, the mileage amount based on the current IRS mileage rate is required to be sent to the employee with notice of the IME.

An Illinois employee can seek civil damages for retaliatory discharge and termination or failure to recall as a result of seeking workers’ compensation benefits. This would arise from a separate common law action and would not be heard by the IL WC Commission.

Penalties in Illinois are 50% of the amounts payable for temporary total disability or permanent partial disability which are not paid for frivolous reasons or withheld solely for delay. Penalties can be awarded for not paying penalties resulting in an additional 50% of the 50% already awarded. Although we are not aware of it happening, this could occur on an indefinite basis!

There is an additional penalty of $30 dollars a day with a cap of $10,00.00 which can be awarded for not paying temporary total disability for frivolous reasons or solely for delay.

There is an additional penalty of $30 dollars a day with a cap of $10,000.00 which can be awarded for not paying medical bills that are submitted with appropriate documentation after thirty days has passed.

Attorneys’ fees in Illinois, typically 20% of the disputed benefits can be ordered payable by the Respondent at the discretion of the Commission when benefits are withheld frivolously or solely for delay.

If you have questions or concerns about any of these issues, send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Why It Is Challenging to Create Teaching Materials in Work Comp Across the U.S.

Editor’s comment: We are asked all the time why there aren’t more solid resources for beginners and mid-level execs + claims handlers to understand WC law and practice. In Illinois Workers’ Compensation Practice, there is a distinct challenge when creating reference materials. It is the goal of our lawyers and firm to provide you with the ‘rules’ or what is sometimes called the ‘letter of the law.’ The difficulty is that portions of the Illinois Workers’ Compensation Act and administrative rules are virtually impossible to accurately decipher. For one simple example, take a look and try to make sense of Section 10 on the calculation of the average weekly wage. Because of this arcane nature and the vague and unpredictable rulings which result, a student of the law could spend years reading the statute and still have no idea how to predict the outcome of a fact situation based on Commission and reviewing courts interpretations of those laws.

Illinois workers’ compensation law may be intentionally or unintentionally drafted to allow administrators substantial leeway in interpretation depending on the political group in power or even the whim of the interpreter. By contrast, Indiana WC law is clear and their administrators work hard to keep it simple and patent for both sides.

Illinois workers’ compensation rules and law also are subject to reinterpretation as rapidly as the turnover from state and judicial elections, along with the quirky political tides between elections. For those reasons and more, if you are going to understand the ‘letter of the law,’ you must not look solely at the language of the statute or rules—you must also investigate the chatter, gossip and rulings with the current interpretation of the statutes.

Another problem present today is the daunting complexity of the issues involved. For example, our average weekly wage calculation has been the subject of endless debate yet remains a convoluted concept. It is easy to understand the problem of the writers of this legislation when faced with the task of drafting a statute that will fairly value the wage of the minimum wage earner, the seasonal construction laborer, the truck driver, and the professional who may pay their own expenses from earnings, and all the other means that income is paid to a particular worker. Some courts have expressly indicated that they interpret this Section to provide a ‘windfall’ to the worker - others have recoiled from such largesse. The current Section 10 is not a brilliant effort as enacted but it is the reality of what you will face when handling Illinois workers’ compensation law.

Another issue with consistent application of a statute is that many times the letter of the law is simply ignored by the court or arbitrator but no one has a sufficient monetary stake to actually fight to a conclusion in the Appellate or Supreme Court. A clear example of this concept is ‘mileage to treating medical providers.’ We challenge anyone reading the Illinois statute or administrative rules to locate language that indicates this expense is to be paid by the employer.

If you become challenged in understanding how longstanding IL workers’ compensation law can be routinely changed by the reviewing courts, we recommend you review the Illinois State Chamber’s 2013 treatise The Impact of Judicial Activism in Illinois, Workers’ Compensation Rulings from the Employer’s Perspective. This document remains available online at

http://ilchamber.org/wp-content/uploads/2012/05/1WorkersComp.pdf

This source indicates how the Illinois reviewing courts’ analysis of the law may change rapidly. This document outlines the problems of accurately advising our readers and students ‘this is what the Commission is doing’ without being able to point to clear legislative language which indicates why.

Either way, like it or not, much of Illinois workers’ compensation practice requires that you keep in close touch with knowledgeable defense counsel like the team at KCB&A. You sometimes need to know what is currently happening at the IWCC rather than read a boring statute!

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

5-23-2016; IL WC Reforms Appear to be Dropped; Bradley Smith on New US DOL Overtime Rule and What It Means to You; OSHA Acts Like Pseudo-EEOC to Punish Employer and more

Synopsis: IL Workers’ Comp Reforms Appear Dropped Despite the Unending IL State Budget Impasse.

 

Editor’s comment: As we advised last week, Governor Rauner and his supporters appear determined to get at least one part of his “Turnaround Agenda” in place via four very limited work comp legislative reforms. They are basically holding the IL State Budget “hostage” by not agreeing to move forward with a budget at all. The state budget process is now 11 months into fiscal 2016 and neither side appears ready to truly compromise.

 

For the IL work comp industry, we have outlined our many concerns with the Governor’s four WC reform proposals that we don’t feel are going to dramatically change work comp law and practice in our state. We don’t know the metrics or research on them but we don’t feel there will be a dramatic drop in IL WC costs if they were put into effect.

 

We point out there are numerous other possible changes or “reforms” that could be done on a bipartisan basis to greatly increase State government efficiency and effectiveness in the work comp sector that both sides might more easily agree to. Here are a couple of quick thoughts:

 

·         Find a new TPA to change how IL State Government WC programs are managed—get CCMSI, Gallagher Bassett, IPMG or another Illinois-based third party administrator engaged to streamline and actually “defend” our State when their employees file workers’ comp claims; Right now the TPA for the State of IL is a California-based company that we don’t feel is helping cut claim costs. In our view, IL State Gov’t pays over $150M a year in work comp costs and that staggering amount could be dramatically cut to save the money for taxpayers.

·         Get a WC PPP network for IL State Government workers to cut medical costs and outlays—we feel the State could save about $50M with this simple change that one of our great defense clients called a “complete no-brainer.”

·         “Right-Size” the IL Workers’ Comp Commission—as new and pending IL WC claims continue to drop, do we have the right number of staff, hearing officers and sites? Efficiency would equal savings for IL Business/Local Gov’ts.

·         Delete/Drop/Eliminate the Second Injury Fund the way most other states have done—this money is used for about 100 workers a year in a state of 8M people. No one knows what it is for and how to get these benefits. If you dropped this unneeded and arcane fund, the money would be saved to the benefit of IL business and taxpayers.

·         Ditto with Dropping the Rate Adjustment Fund—this money is unneeded because IL WC already has some of the highest rates in the U.S.; do we need to double them in about 20 years at the sole cost of IL Business/Local Governments?

“Turnaround-Dis,” It Appears Speaker Madigan Isn’t Agreeing to More IL WC Reform

A spokesman for IL House Speaker Michael Madigan said last Thursday the State already reformed its workers’ compensation system five years ago, resulting in decreased costs, with more on the way. Madigan press secretary Steve Brown blames the impasse on Republican Gov. Bruce Rauner for pressing a “personal” agenda totally unrelated to budgetary issues. Brown, who represents one of the longest-serving and most dysfunctional State House speakers in U.S. history, accused Rauner of wanting “to bring down wages,” and to abolish the current workers’ compensation system to drive down benefits and the ability of injured workers to receive treatment.

Governor Rauner, facing a Democratic legislature with a super-majority, vowed to consider signing a moderate income tax hike to fund the State budget only if Democrats agree to the four workers’ comp legislative reforms, and other pro-business and anti-union measures.

Speaker Madigan is not strong on further workers’ comp reforms, his spokesman said, because the system was overhauled in 2011; the linchpin was a 30% reduction in medical fee schedules which caused consternation in the hospital and medical community. Yet the reforms brought about modest results, according to the Illinois Policy Institute, a nonprofit think tank that supports limited government and free-market principles.

Illinois Senate President John Cullerton was quoted as confirming his view Illinois’ workers’ comp costs have been cut in half over the past 20 years.

If Illinois lawmakers and the governor fail to agree on a budget before the legislature adjourns May 31, any deal would require a three-fifths vote by both the House of Representatives and Senate to pass. Until May 31, budget passage requires only a simple majority.

In our view, these parties are going to continue to battle/deadlock for months, and possibly years to come. We would appreciate your views. Please post them on our award-winning blog.

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Synopsis: New U.S. DOL Rule Increasing Salary for White Collar Workers Likely Affects You! Analysis by Bradley J. Smith, J.D.

Editor's Comment: The Department of Labor’s (DOL) new law goes into effect on December 1, 2016, which increases the standard salary threshold to $913.00 per week ($47,476 for a full-year worker), 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 DOL law (29 CFR Part 541) defines and delineates the exemptions of FLSA for executive, administrative, professional, outside sales, and computer employees. The final rules will become effective on December 1, 2016. This rule does not make any changes to the duties test for executive, administrative, and professional employees.

The final rule was announced on May 18, 2016, when President Obama and Secretary Perez announced the publication of the DOL’s final rule updating the overtime regulations, which will automatically extend overtime pay protections to over 4 million workers within the first year of implementation. See http://blog.dol.gov/2016/05/18/who-benefits-from-the-new-overtime-rule/ (Accessed on May 22, 2016) for a map demonstrating the number of workers the law affects in each state. The law stems from a 2014 Presidential Memorandum directing the DOL to update the regulations defining which white-collar workers are protected by FLSA’s minimum wage and overtime standards. The DOL then published a Notice of Proposed Rulemaking in the Federal Register on July 6, 2015 (80 FR 38515) and invited interested parties to submit written comments on the proposed rule by September 4, 2015. The DOL received over 270,000 comments in response.

 The final rule will:

• Raise the salary threshold indicating eligibility from $455/week to $913 ($47,476 per year).
• Automatically update the salary threshold every three years, based on wage growth over time, increasing predictability. Future automatic updates to the thresholds will occur every three years, beginning on January 1, 2020.
• Sets the total annual compensation requirement for highly compensated employees subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally ($134,004).
• Amends the salary basis test to allow employers to use non discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.

In response to the new overtime rule, U.S. employers do have options.

Obviously, you can pay time-and-a-half for overtime work. You can also raise workers’ salaries above the new threshold. Lastly, you can work to strongly limit workers’ hours to 40 per week. Some combination of these options can also qualify as complying with the new rule. The standard salary thresholds will affect most workers, however, 65,000 will be affected due to the highly compensated employees level alone. In fact, 64,000 will become eligible for overtime while 1,000 will remain exempt because their employers are expected to raise their salaries above the new highly compensated employees threshold.

Essentially, the new rule puts more money in the pockets of middle class workers, or gives them more free time. The rule will also require automatic updates every three years. These automatic updates will start in 2020. The new updates will raise the standard threshold to the 40th percentile of full-time salaried workers in the lowest-wage census region, estimated to be $51,168 in 2020. The highly compensated employees threshold will increase to the 90th percentile full-time salaried works nationally, estimated to be $147,524 in 2020. The DOL will post these new salary level thresholds 150 days in advance of their effective dates, beginning August 1, 2019.

The new rules affects all employers that FLSA affects. Consequently, the law likely affects all employers’ businesses. In other words, employers’ classification of employees will need to revisited and possibly adjusted prior to this new law taking effect on December 1, 2016. Based on the breadth of the Presidential Memorandum, it is likely that the DOL will be strictly and actively enforcing this new rule. Strict and unforgiving penalties are imposed for violations of FLSA, so it is worth it to assess and revise your current overtime exemption classifications and statuses of employees.

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: The OSHA Administration Under Obama Can Act As a Pseudo-EEOC To Enforce Their Version of Employment Rights.

Editor’s comment: We caution our readers that Big Brother is always watching business’ actions. If you need help in dealing with OSHA, Bradley Smith, J.D. is our KCB&A lead defense team member and is very familiar with investigation and defense of all things OSHA.

While researching other things, we noticed a national truck repair company was ordered to pay back wages and punitive damages for demoting, and eventually forcing out, a manager who complained about safety violations, the U.S. Occupational Safety and Health Administration announced last Wednesday.

The company has been ordered to reinstate the manager to his original position and pay nearly $89,000 in back wages. It was also told to pay $100,000 in punitive damages and $1,700 in compensatory damages.

"Censuring a worker for complying with the law clearly violates the whistleblower provisions of the Surface Transportation Assistance Act. This Act is designed to protect the safety of the motoring public," said Ken Nishiyama Atha, OSHA's regional administrator in Chicago. "This employee did the right thing to protect others and was punished for it. OSHA is committed to protecting the rights of America's workers to refuse unsafe and unlawful orders from their employer."

On Sept. 12, 2013, Polar Service Centers suspended the service manager indefinitely, and later demoted and barred him from talking to customers or the Department of Transportation in reprisal for reporting a potential safety violation of a Polar customer's suspected improper certification of tank trailers to haul hazardous waste. The manager had also requested that a driver of the Polar customer provide information concerning the potential safety violation to DOT. After the suspension, demotion and censure, he was forced to resign from his employment.

OSHA has ordered Polar Service Centers to reinstate the manager to his position, pay $88,847 in back wages minus applicable employment taxes, $100,000 in punitive damages and $1,700 in compensatory damages as well as reasonable attorney fees.

OSHA enforces the whistleblower provisions of 22 statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, health care reform, nuclear, pipeline, public transportation agency, railroad, maritime and securities laws.

Both parties have 30 days from the receipt of OSHA's findings to file objections and request a hearing before an administrative law judge.

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

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

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

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

When is a Physical Problem Repetitive Trauma versus Repetitive Working?

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

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

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

Traveling Employee Expansion When Handling Work Equipment While at Home.

Medicare Set-Aside Process as SMART Act is Implemented.

Comparing How Impairment Ratings are Considered at the IWCC.

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

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.