7-18-2016; Getting One's Mind Around "Causation" in IL WC; Matt Wrigley on Important Traveling Employee Ruling; Brittany Pendry on Review of Must-Read ADA Decision and more

Synopsis: Trying to Get One’s Mind Around The Troubling Issue of “Causation” In IL Workers’ Comp.

 

Editor’s comment: We had several readers recently bring this issue up and we wanted to give everyone our best thoughts. As you read this, Governor Rauner and the IL State Republican reform forces are struggling to change our IL WC Act to reform the concept of “causation” in this state. Our great Governor’s “Turnaround Agenda” says:

 

Workers’ compensation is a no-fault system. To recover on a workers’ compensation claim, the employee bears the burden of showing s/he has sustained accidental injuries arising out of and in the course of employment. 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 we are proposing. 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.  

 

In our view, the problem with the IL WC Act isn’t the language (or actually the lack of any language) on causation, it is the hearing officers. Again, in our respectful view, if you make the language “major contributing cause,” liberal hearing officers can make any problem at work into a major contributing cause. If you change the language to “predominant cause” or 50% responsible for the injury, liberal hearing officers and our reviewing courts can still find any typical kneel, twist, lift, strain to be the predominant cause or 50% responsible for the injury.

 

Remember There Are Many Illinois WC Terms/Concepts Made Up and Sometimes Modified By Liberal Hearing Officers and Reviewing Courts

 

Please note the legal terms “traveling employee” and “odd-lot total and permanent disability” and “risk of the street” don’t appear anywhere in the IL WC Act. The liberal reviewing courts who started these concepts and later changed/expanded or sometimes ended the concepts did so at their whim. They weren’t reviewing any legislation in doing so—there was no legislation to review. These are made-up terms by hearing officers and reviewing courts to supposedly define something in the IL WC arena.

 

In the last year, for the first time in over 100 years of IL WC history, the shoulder suddenly and without any warning became part of the “body” instead of part of the arm. Literally thousands of earlier and very routine decisions ruled the shoulder was part of the arm. The Appellate Court, WC Division unanimously ruled the dictionary required that outcome, as if the dictionary suddenly changed what an arm is, after over 100 years of the shoulder being part of the arm! We assure our readers most people still think if you punch someone in the shoulder, you have struck then in the bicep muscle that we all feel is part of the arm. Only in Illinois WC does a punch to the shoulder magically mean you have punched them in the “body.”

 

In Beelman Trucking v. IWCC, the IL Supreme Court, for the first time in IL history, allowed a claimant who clearly was a statutory total and permanent disability claimant to also assert a claim for amputation of one of three limbs, as the complete loss of the first two limbs clearly entitled him to lifetime benefits. As all IL WC benefits are paid weekly, this is the first time anyone ever conceived of the idea of someone being entitled to a weekly benefit for T&P along with a “stacked” weekly benefit for amputation loss. This largesse from our highest court provides the staggeringly high T&P benefits to some claimants along with our staggeringly high amputation values. As we have told our readers, it is hard to be cheap in providing high benefits to someone with what was hopefully a rare but catastrophic injury, as suffered by Claimant in Beelman Trucking but such benefits cause our state to be out of whack when comparing us to our sister states.

 

As we reported last week in Chlada v. IWCC, for the first time in IL WC history, what we feel is a very liberal IL Appellate Court, WC Division, “stacked” or awarded simultaneous wage loss differential benefits and total and permanent disability benefits for the same claimant. As we have told everyone, it makes literally no sense to us at all how a claimant can get “wage loss” benefits when the Court’s distinguished members agreed claimant will not have any “wages” but will be getting T&P benefits from the same employer. The Court’s members justified this decision because of their unusual view that Claimant’s T&P weekly award would be lower due to the earlier claim. This anomaly makes their award into “total and permanent disability differential benefits.” Again, there is no provision in the IL WC Act which we feel provides for such benefits—in our respectful view, the concept was made up for the first time by this reviewing court—they reversed the IWCC precisely because the Commission’s administrative hearing officers wouldn’t do what the reviewing justices decided to do.

 

The definitions of all these terms can be changed on a whim because all of isn’t in the IL WC Act or Rules. For the IL WC Appellate Court to blame the change on evaluating shoulder claims from “shoulder” to “body” on the dictionary was unusual to say the least. We assure you no one on the defense side saw that one coming. We can say the same thing about the unusual, unprecedented and sweeping  changes to  made in Beelman Trucking and Chlada, as outlined above.

 

Looking at the bigger picture, we assure you not one of those WC concepts above are defined or otherwise appear in the IL WC Act. For example, what in tarnation is an “odd lot” as it relates to IL WC total and permanent disability awards. Are there “even lots?” Why and how did this concept start in our courts in the early 90’s and how does IL business and local government make sense of whatever-it-might-be?

 

In the unusual ruling in Chlada mentioned above, while writing for a unanimous majority, one of our illustrious Appellate Court justices who has been on the WC Division of that court for decades wrote a plea to our legislature asking for guidance, as if the IL General Assembly ever provides guidance to our courts in this arena. For anyone who knows what is happening in Springfield with the General Assembly and our current Governor, almost nothing may happen for the next six years while the Governor and the Democrats fight out the simplest things one can imagine these two branches of government could disagree on. We are confident clarifying unusual judicial rulings aren’t high on the agenda when our legislative and executive branches can’t agree on a plan to fund our schools!

 

Solid Causation Concepts and Enforcement Need to Come From IL WC Hearing Officers—Forget the General Assembly

 

Our worry for IL business and local governments is we all might think legislatively changing the causation standard might “work.” Without intending to talk down to you, the proposed causation standard change only works if the hearing officers follow the simple language that you are reading and expect the legal terms to mean what our grade school and high school teachers told us they mean. The defense team at KCB&A would expect the new hearing officers appointed by our Governor to provide a similar outcome but we have years and years of dealing with this silly system and some of the IL WC hearing officers don’t always follow common sense or what you might expect. If you see a current and challenging IL WC causation ruling that makes your head spin—please send it along and we are happy to write about it.

 

In short, Governor Rauner may not have to change the language of the IL WC Act to effectively change the causation standard, he may need to change the people who are enforcing the IL WC Act to match what we think is common sense. That is the simple point, we are trying to make—causation is common sense. If you aren’t “injured” in an unforeseen work “accident,” you shouldn’t get WC benefits.

 

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

 

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Synopsis: A police officer is denied benefits under the Illinois Workers’ Compensation Act for injuries sustained driving his personal vehicle to a mandatory training session in hazardous weather conditions and outside normal workhours. Analysis by Matt Wrigley, J.D.

 

Editor’s comment: In Allenbaugh v. Illinois Worker’s Compensation Comm’n and City of Peoria Police Dep’t, 2016 IL App (3d) 150284WC (decided July 12, 2016), the Illinois Appellate Court, WC Division upheld a decision of the Peoria County Circuit Court which denied benefits to Petitioner holding the “traveling employee” doctrine does not cover a Claimant injured on his way to or from his normal workplace when he is not performing duties incidental to his employment and when Claimant’s regular work shift was different that day.  

 

Petitioner was a sworn police officer employed by the City of Peoria (Respondent). Petitioner was ordered to report for mandatory training at police headquarters outside his usual duty hours. Petitioner was directed to bring various items of police gear to the training session. The weather was poor and roads were hazardous.

 

While en route from home to the training session a motor vehicle struck the left front side of Petitioner’s personal vehicle, which caused injuries to Petitioner’s neck and back. At arbitration Petitioner testified police officers were on duty 24 hours per day. The Assistant Police Chief testified Petitioner was not on duty at all times. 

 

The Arbitrator found Petitioner sustained injuries which arose out of and in the course of his employment. The IWCC reversed this decision, holding at the time of the accident Petitioner was not responding to a report of unlawful conduct or an emergency. Petitioner was required to travel to and attend training outside his normal duty hours but this was insufficient “to avoid the general rule that an ‘employee’s trip to and from work is the product of his own decision as to where he wants to live, a matter in which his employer ordinarily has no interest.’” At the time of the accident Petitioner was not required to drive a particular route, he was not performing any employment activities, and Respondent did not retain control over Petitioner. The IWCC held the “traveling employee: doctrine does not apply when a Petitioner is simply driving his personal vehicle to his normal workplace for whatever mundane reason.

 

On appeal to the reviewing courts, Petitioner alleged at the time of the accident he was under Respondent’s control and he was a traveling employee. As the material facts were undisputed and susceptible to but a single inference, the courts ruled their review was de novo. The Appellate Court, WC Division noted “all employees are required to go to work . . . we fail to see how the fact that claimant was going someplace he was required to go for work distinguishes his situation from normal commuting.”

 

Petitioner proffered no evidence supporting the assertion his obligation to go to the place where he works supports an inference he was within the scope of employment while commuting. The Appellate Court, WC Division noted none of the items Petitioner was required to bring to the training session allowed Respondent to maintain control over him. Further, the Appellate Court, WC Division acknowledged the “traveling employee exception” to the general rule accidents which occur when an employee is traveling to and from work are non-compensable. However, Petitioner failed to establish the fact he regularly drives as part of his job duties brings his commute within the scope of employment. Although he was required to travel to the police station at the time of the accident he was merely driving from his home to the station.

 

Finally, the Appellate Court noted although Respondent required Petitioner to travel in hazardous conditions “we fail to see how this distinguishes claimant’s situation from that of any other commuter in the northern half of this country.”

 

This article was researched and written by Matt Wrigley, J.D. Please direct questions or concerns to Matt at mwrigley@keefe-law.com.

 

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Synopsis: First Things First! Are You Disabled under the ADA? Analysis by Brittany Pendry, J.D.

Editor’s Comment: Recently, the Illinois Appellate Court upheld a Circuit Court’s decision to grant defendant-employer’s motion for summary judgment, finding plaintiff could not meet her burden of showing she was a qualified individual under the Americans with Disabilities Act (ADA). What follows it an assessment of the basics of ADA accommodations in the workplace, and what to expect when an employee files a complaint.

In Plaintiff v. Factory Card & Party Outlet, No. 15-2083 (issued June 13, 2016), the Appellate Court affirmed the Circuit Court’s granting of summary judgment in favor of the defendant-employer. In doing so, the Appellate Court agreed with the Circuit Court in reasoning plaintiff failed to present sufficient evidence to allow a jury to find plaintiff was a qualified individual with a disability under the ADA.

 

Plaintiff injured her foot at home in March of 2009, and was subsequently off work while she treated with multiple doctors over the course of several months. Plaintiff treated with her first doctor, who said she could return to work without restrictions. After continued complaints, she was taken off work and eventually treated with a second doctor. He permitted her to return to work on July 6, 2009 with no restrictions. She disagreed with this assessment and saw a third doctor, Dr. Fleischli, who said she had no ability to work, and would need to be off until August 15, 2009. During this time period, Plaintiff was off on leave under FMLA, and after using up all of her leave, her employer granted her an additional four weeks. However, Plaintiff’s supervisor advised Plaintiff’s employment would be terminated if she could not return at the end of those four weeks, on July 11, 2009. Her supervisor stated Plaintiff would be eligible for re-hire when she could return to work.

 

However, Plaintiff contended she had a conversation with Dr. Fleischli, who said she could return to work on July 11, if her foot were in a medical boot. Plaintiff claimed she informed her employer’s Regional Resources Manager of this medical recommendation, and the manager indicated it would not be possible as Plaintiff would need to climb a ladder. Plaintiff also submitted an affidavit asserting these same statements of Dr. Fleischli. However, Plaintiff did not list Dr. Fleischli as a witness, but instead intended to assert her own testimony with regard to what the doctor stated. 

 

Subsequently, Plaintiff applied for disability benefits through Aetna Insurance, and the company determined she was totally disabled. Subsequently, Plaintiff filed a suit claiming a violation of the ADA by her employer.

 

In coming to its conclusion, the Court looked to the merits of the summary judgment motion granted by the Circuit Court, and found the Circuit Court was correct in holding “Plaintiff presented insufficient evidence to allow a jury to find that she was a qualified individual with a disability under the ADA.” The Court looked to Section 12112(a) of the ADA, stating discrimination is prohibited against a qualified individual, and defined a qualified individual, pursuant to the Act, as an individual who “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” The Court further stated there is a two-prong test in determining whether a person is a qualified individual, including:

 

(1) “whether the person satisfied the prerequisites for the position, such as possession of the proper educational background, employment experience, skills, or licenses”; and

(2) “whether or not the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation.”

 

Plaintiff acknowledged her evidence was limited to her own observations, and while “she stated in her affidavit that Dr. Fleischli had informed her that the use of the medical boot would allow her to return to work by the July 11 deadline, she chose not to present evidence from Dr. Fleischli to that effect.” Therefore, a jury would have been presented with evidence consisting of Plaintiff’s own statements, and while she contends her testimony would be enough to allow a jury to conclude she could perform the essential duties of her job while wearing a medical boot and delegating the task of climbing the ladder, the Court disagreed due to obvious hearsay and trustworthiness concerns with that testimony. 

 

While the Court admitted a plaintiff does not necessarily have to produce expert testimony in order to demonstrate she is a qualified individual, the need for the evidence depends on the facts of the case, and the Court found the evidence she presented failed to meet her burden.

 

Employers should have a basic understanding of what the ADA covers, and how it could affect their company. The ADA “prohibits discrimination and ensures equal opportunity for persons with disabilities in employment.” Under the ADA, a disability can be a physical or mental impairment that is so substantial it limits at least one major life activity of a person and there is record of an impairment; or, if the individual is regarded as having a physical or mental impairment. 42 U.S.C. § 12102 (1). A person is regarded as having a mental or physical impairment if that person can establish that she has been the subject of an action that is prohibited under the Act because of a perceived physical or mental impairment, regardless of whether impairment actually limits a major life activity. 42 U.S.C. § 12102 (3).

 

If an individual is covered under the ADA, no entity can “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112 (a). This includes not making “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.” Id.

 

The EEOC is responsible for enforcing Title I of the ADA with all employers who have 15 or more employees. Employers are responsible for providing reasonable accommodations to qualified individuals, unless the accommodation would cause undue hardship. If the accommodation causes an undue hardship, the employer must still try to identify another accommodation that will not pose such a hardship, including if there are high costs, whether funding for the accommodation is available. In the event that an employee files an ADA charge with the Commission, the Commission will investigate and initially attempt to resolve the charge through conciliation. The remedies under the ADA can be substantial, including hiring, promotion, reinstatement, back pay, compensatory damages, and attorneys’ fees. Employers should be aware that employees have 180 days to file a charge of discrimination, or 300 days in some states that provide for local or state laws.  

 

This article was researched and written by Brittany Pendry, J.D. You can reach Brittany at any time for questions about ADA accommodations, defending ADA complaints, EEOC charges, employment law, general liability defense, and workers’ compensation at bpendry@keefe-law.com.

 

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Synopsis: Short but Sweet Update on Indiana Worker’s Comp from Kevin Boyle, J.D.

 

Editor’s comment: We were somewhat surprised to hear the IN WC Board has provided notice effective Monday, August 1, 2016, the mileage reimbursement rate is increasing from $0.36 per mile to $0.38 per mile.

 

If you have questions or concerns, please direct them to our IN Defense Team Leader Kevin Boyle, Esq. at kboyle@keefe-law.com.

7-11-2016; IL Appellate Court Shocks the WC Industry with "Benefit Stacking"; Central IL WC Doc Hit With Contempt Order in Federal Court; OSHA Max Penalties to Skyrocket and more

Synopsis: Hard For the IL WC Defense Industry to Disagree More—IL Appellate Court, WC Division “Stacks” Wage Loss Differential and T&P Benefits.

 

Editor’s comment: As we advised our readers in this past year or so, the IL WC system is fighting to bring our benefits to the middle of U.S. systems. We expect the results of the State of Oregon every-other-year analysis of workers’ comp premiums to come this November or in four short months. We are certain the folks at the IL WC Commission are doing their level best to make WC decisions/awards and settlements reasonable and fair for all sides. We are also certain our reviewing courts might seem to have missed this message.

 

We just read what we feel is a somewhat shocking and unprecedented ruling. In Chlada v. Illinois Workers' Compensation Comm'n, decided July 8, 2016, Claimant filed for workers compensation benefits for injuries to his low back sustained in a 1999 work accident. The Arbitrator ordered the employer to pay temporary total disability, temporary partial disability or “maintenance” benefits during rehab. Claimant was working as a beer truck driver when injured and then took a lower-paid job as a warehouseman.

 

The IL WC Commission affirmed the Arbitrator's decision, but vacated temporary partial or maintenance benefits and awarded wage differential benefits. Claimant sought judicial review of Commission's decision. The Circuit Court affirmed the award but made a mistake in setting the wage differential rate by about $30 a week. The mistake was later corrected.

 

By 2002, Petitioner suffered another injury to his spine and later became an “odd-lot” total and permanent claimant. The IL WC Commission panel allowed for wage loss during the initial periods of disability and return to work as a warehouseman. When Claimant was adjudicated to be entitled to an “odd-lot” total and permanent award, the IWCC panel cut off the wage loss and allowed only T&P benefits going forward.

 

Just Because You Can Do Something New Doesn’t Mean It Is A Good Idea

 

The IL Appellate Court, WC Division ruled the wage loss differential provision in Section 8(d)(1) was created with the purpose of compensating a Claimant for diminished earning capacity caused by a work-related injury. They ruled the fact Claimant subsequently suffered unrelated and more disabling work injury to his neck in 2002 did not alter fact the 1999 back injury reduced his earning capacity. By cutting off wage loss differential benefits and substituting T&P benefits, the Appellate Court ruled the Commission's decision failed to “adequately compensate” Claimant for his first economic injury. For any number of reasons, we strongly dislike when our reviewing courts discuss and judicially enact their version of “adequate compensation.”

 

The Appellate Court noted Claimant’s wage loss benefits, capped at $485.65 a week plus the “odd-lot” total and permanent disability award, calculated at the lower warehouseman pay, combined to provide what they felt was “reasonable compensation” for Claimant. For the first time in IL WC history, with an WC Act created in 1909, the unanimous majority opinion held nothing prohibits awarding both PTD and wage differential benefits simultaneously and “indefinitely” under these circumstances. In our respectful view, common sense prohibits awarding Section 8(d-1) wage differential benefits to someone who unquestionably isn’t going to have a “differential” to make up on a weekly basis. In our view, the Court’s members are focusing on some altruistic version of “disability” being locked in without focusing at all on the legislative purpose of making an employer pay this benefit. We also feel any academic or legal scholar would appropriately criticize the majority’s use of the term “indefinitely” as it might be viewed as requiring continuing benefits be paid even after Claimant had passed.

 

It appears Claimant will receive $485.65 plus $862.80 or we can calculate a “base” combined $1,348.45 per week or $70,119.40 on a tax-free basis for life (please remember the word “base.”) Please also note this relatively middle base-amount is due to the fact this decision arises from injuries occurring more than a decade ago in the late 1990’s and 2002. The same award today could require an IL employer to pay as much as the current max of $1,005.80 per week for wage loss and $1,341.07 for a total and permanent disability award. The combined maximum base benefit could be $2,346.87 per week or $122,037.24 on a tax-free basis a year.

 

So What Happened to ANY Discussion of the RAF or Rate Adjustment Fund?

 

 

  Rate Adjustment Fund  

 

 

The Appellate Court, WC Division’s unanimous majority opinion was written by Justice Holdridge who we felt was a conservative Republican—we don’t consider this unprecedented decision to be conservative. What it appears may have been missed is any mention indicating Justice Holdridge or the other distinguished members of this appellate body knew there was a “Rate Adjustment Fund” in this state for total and permanent disability claimants. That Fund costs self-insured employers, carriers and local governments millions of dollars each year because it pays out lots of money to eligible workers.

 

The Rate Adjustment Fund was created to pay cost-of-living increases to individuals who are either permanently and totally disabled or the survivors of fatally injured workers. Individuals who receive awards for permanent and total disability or death benefits are eligible. Benefits are paid each month, beginning on July 15 of the second year after the award is entered by the Commission. Recipients are given an amount equal to the percentage increase in the statewide average weekly wage, as calculated by the Department of Employment Security. Twice each year, self-insured employers, insurance companies, and governmental units pay 1.25% of all workers’ compensation payments, excluding hospital, surgical, or rehabilitation payments, made in the six-month period preceding the payment date.

 

For our readers who are not familiar with Illinois’ unusual WC “Rate Adjustment Fund,” in this claim, it appears Claimant Chlada will also receive this added and ever-spiraling benefit that is currently going to bump up his weekly T&P benefit about 40.58%. You can find that calculation by looking here http://www.iwcc.il.gov/RAFCALCFY16.xlsx. The weekly T&P benefit of $862.80 above will actually be increased from the fund to the tune of $350.12 per week. To our understanding, this will bring the T&P award to $1,212.92 a week. The combined compensation for a T&P along with the RAF would bring Claimant to almost the amount this appellate decision felt would be “adequate compensation.” When adding that higher amount to the new wage loss diff amount, Claimant will get $1,698.57 a week or $88,325.64 on a tax-free basis. We consider that “more-than-adequate” compensation and remember the weekly amount will continue to go up and up, solely on the dime of Illinois business and local taxpayers.

 

As we outline above, please note the RAF or Rate Adjustment Fund bumps/increases don’t stop during a T&P Claimant’s lifetime—we assure you they will continue for the rest of Claimant Chlada’s life. If you search the link above, you will note a T&P claimant who started getting such benefits in 1987 or just 29 years ago is now getting double benefits!! That math isn’t going to stop. We note Claimant Chlada is 61 years old as you read this so while the Rate Adjustment Fund is already bumping up his T&P benefits at a current 40% clip, you can reasonably expect he will be at double in another 15 years and triple or more tax-free benefits if he lives to his nineties. We don’t feel any state in the United States provides such WC benefits. We also feel the IWCC panel knew of the RAF and their decision to award just a T&P in this case was predicated on that knowledge.

 

Don’t Wage Loss Benefits Assume One Has “Wages” That Are Being “Lost?”

 

As a final thought, we also feel the unanimous majority’s assertion their unprecedented view of this “benefit-stacking” issue needs to be addressed by the legislature is also a proper subject of respectful academic criticism. We feel the IWCC panel noted Claimant Chlada, once being provided total and permanent disability benefits would no longer have wages. To award “wage loss” benefits to someone who is never going to work again but live off the insurance carrier or self-insured employer makes literally no sense to us in a setting where the same benefactor is paying the worker tax-free benefits for the rest of his/her life and also contributing lots of money to the RAF to insure the benefit levels stay even with inflation.

 

What is Coming Soon to Serious IL WC Claims Near You

 

Now we hate to tell you but we are sure you can assume the entire Plaintiff-Petitioner bar is going to teach/coach and educate all current and future claimants to try to take advantage of these new and unprecedented “stacked” wage loss/total and permanent disability awards. Every guy or gal who is getting TPD is going to want wage loss and then “stacked” T&P benefits.

 

If you want thoughts on how to stop/defend such claims, send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.

 

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Synopsis: A federal judge in Springfield holds a Normal, IL doctor in contempt of court for misleading testimony about his credentials during a May federal trial.

 

Editor’s comment: The trial ended with a $300,000 jury verdict in favor of a prison inmate who claimed he received poor medical care at Taylorville Correctional Center. The case, however, has lived on as U.S. District Court Judge Sue Myerscough is demanding answers from Dr. Dru Hauter, a defense expert who presented himself as board-certified during the jury trial and filed a curriculum vitae with the federal court stating he held board certification.

 

“Are you board certified in any areas?” Michael Kokal, defense attorney, asked Hauter at the beginning of the doctor’s testimony.

 

“I’ve been board certified in internal medicine,” Hauter answered. “I’ve also been certified by the American Board of Independent Medical Evaluators.”

 

However, Dr. Hauter’s board certifications expired – records at the Illinois Department of Financial and Professional Regulation show his board certification for internal medicine ended in 2013. Judge Myerscough grew suspicious during a lunch break midway through the doctor’s testimony. When court reconvened, she announced outside the jury’s presence she’d been told by an attorney not connected with the case Dr. Hauter wasn’t currently certified as a medical evaluator and asked the doctor if that was true. Hauter answered he didn’t hold board credentials as a medical evaluator or in internal medicine.

 

Under questioning from Judge Myerscough during last month’s trial, Hauter said he had once been board certified in internal medicine but twice failed board exams, once in 1991 and again in 2013. The federal judge called Hauter’s testimony about his credentials misleading, “if not an outright lie,” and she warned both the doctor and Michael Kokal, attorney for the defense, they were both in trouble.

 

After the verdict came in, Judge Myerscough ordered Kokal to file an accurate resume for Dr. Hauter that included all current certifications for the physician as well as the dates of any lapses. Kokal subsequently filed a resume, but Myerscough wasn’t satisfied with the document, which included years but not specific dates showing when board certifications were granted and when they ended. The new resume also didn’t include dates showing when certifications had lapsed. Myerscough ordered the lawyer to file an updated resume with that information prior to the hearing set for July 7 in which she will hear testimony on whether the doctor should be held in contempt.

 

If you check out this link from this year, you will note it indicates Dr. Hauter continues to hold board-certification to conduct IME’s-- http://www.iwirc.biz/staff/dr-dru-hauter-md-cime-mro/

 

We were advised Judge Myerscough held Dr. Hauter in civil contempt of court. He was given ten days to respond to her finding. We will continue to report developments.

 

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Synopsis: Gotta Love the Anti-Business Zealots at OSHA—Maximum Fines to Go Up 78% in Three Weeks.

 

Editor’s comment: The U.S. Occupational Safety and Health Administration on Aug. 1 will increase the maximum penalty for serious violations from $7,000 to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709. The maximum penalties have not been increased since 1990, and the U.S. Department of Labor said the move is intended to modernize penalties that have lost ground to inflation.

 

“Civil penalties should be a credible deterrent that influences behavior far and wide,” U.S. Labor Secretary Thomas Perez said in a statement. “Adjusting our penalties to keep pace with the cost of living can lead to significant benefits for workers and can level the playing field (for) responsible employers who should not have to compete with those who don’t follow the law.”

 

But the Center for Progressive Reform wants OSHA to take things a step further. This anti-business organization has asked OSHA to establish national guidelines to discourage the agency’s area offices from informally settling cases by slashing penalties. They assert the practice has resulted in a substantial reduction in the amount of fines assessed. In 2012, for example, penalties resulting from fatality investigations at private companies were reduced by a total of $1.28 million from the original citation amounts, the organization said in a report released June 30. The group is especially concerned about reduced-fine settlements in cases involving what it calls “unconscionable violations,” such as those involving trench collapses, machine guarding, or hospitalizations or fatalities.

 

OSHA’s area offices routinely negotiate with employers to reduce penalties assessed on safety citations in exchange for the employer taking prompt action to correct the safety hazard. In the absence of a settlement, the employer can contest the citation and delay abatement of the hazard, the organization said. The organization also would like to see OSHA use the settlements to encourage employers to take steps beyond abating specific safety violations, for example by developing safety plans or undergoing third-party safety audits. CPR also wants workers to be more involved in the settlement process, and suggested OSHA reach out to them using modern communication methods such as email or text messages rather than just citation notices posted in a break room.

 

Many employers have been expecting OSHA to increase its maximum penalties and aren’t overly surprised by this move. Veterans know even though the maximum penalties are increasing, OSHA doesn’t necessarily assess the maximum fines for safety violations. OSHA’s increased maximum penalties may apply to citations for alleged violations occurring as far back as Feb. 1, under a six-month statute of limitations.

 

Our KCB&A law partner Brad Smith heads our OSHA team and recommends employers immediately begin correcting any safety violations or hazards identified during an inspection, even if they plan to challenge the citation. Doing so shows your company is acting in good faith and failure to correct the hazards could result in higher penalties, all the way up to the new maximum.

 

If you need advice and counsel on OSHA issues, send a reply or contact Brad directly at bsmith@keefe-law.com.

 

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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.

7-4-16; Kicking Financial Snowball from IL/Chicago Down the Hill; "Repetitive Working" Claim Turns into Fight Over Need for Ratings; Shawn Biery on Important Federal Retaliatory Discharge Ruling...

Synopsis: Kicking the Ever-Growing Financial Snowball Down the Hill--The U.S. Worst-Run State and City Keep Their Losing Streak Alive!

 

Editor’s comment: In our view, the last-minute confusion and consternation last week from Springfield, IL brought bittersweet news to all Illinoisans/Chicagoans. Basically, they “kicked the giant financial snowball down the hill” to provide our State and Chicago with what was called a “BIMP” or Stopgap Budget Implementation Bill. Basically, the Governor and State Democrats decided to fight this out during and after the coming November elections.

 

For the Illinois Work Comp matrix, nothing happened. Governor Rauner was willing to put off his “Turnaround Agenda” that includes his recommended IL WC reforms until sometime around the end of this calendar year when the BIMP or Stopgap Budget runs out. By that time, there will be a new General Assembly to fight over it. Please also note the State of Oregon WC Premium Rankings are expected at about the same time, so we should have a better idea if all the improved IL hearing officers are helping to cut IL WC costs.

 

For all Illinoisans, not much truly happened other than to watch everything in IL State and Chicago gov’t get financially worse and worse.

 

Our State and Chicago governments remain a financial shambles with

 

·        $8 billion and soaring in unpaid, late bills for all sorts of things purchased or used by our State—yes, this does resemble a “bankruptcy” but the State can’t declare bankruptcy;

 

·        Agencies and vendors that rely on State funding are going out of business in droves;

 

·        The State of Illinois now has $213 billion in skyrocketing debt;

 

·        The State of Illinois hasn’t had a balanced budget since 2001;

 

·        Illinois government is home to the worst credit rating in the nation;

 

·        Illinois fake government pension costs are already at 25% of all money spent on our state government and that ratio will continue to spiral due to 85% fake government pensions with 3% compounded annual increases guaranteed by our state Constitution;

 

·        Let’s not leave Chicago out—Last year, they levied the highest real estate tax increase in Chicago history or $588 million—the dramatically higher tax bills just hit the property owners’ mailboxes this weekend. Ouch!

 

·        They just passed a new Real Estate tax earmarked for police and firefighter fake pensions that won’t go into effect until 2020—folks, that is only three years from now and that looming tax increase is significant;

 

·        Chicago also is passing a “right-now” increased real estate tax to collect another $250 million for Chicago Teacher’s Union fake pensions;

 

·        Last week, the Chicago Teacher’s Fake Pension system was paid about $670 million, leaving only $83 million to run the Chicago schools this fall—no one knows where the rest of the money will come from—who cares about the kids, right? Let’s be sure retired teachers are taken care of???

 

·        One may assume if the Illinois Democrats, headed by Speaker Madigan continue their winning ways in Springfield, they are going to try to dramatically raise income taxes and maybe sales taxes and levy other new taxes on stuff they don’t already tax to force Illinois citizens and businesses to pay for all the financial mistakes the General Assembly made and can’t or won’t reform.

 

·        While our goal is to remain non-partisan, the financial crisis facing all Illinoisans is not so much political, as it is generated by soaring taxes, spiraling debt, simple math and common sense—we don’t care if the Democrats or the Republicans change the math; we are sure someone has to do so. If you want the math to which we refer, send a reply.

 

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

 

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Synopsis: Non-Accident “Repetitive Working” Ruling Confirms Neither Party to an IL WC Claim Needs to Bring an AMA Rating for PPD to be Awarded.

 

Editor’s comment: On June 28, 2016, the Illinois Appellate Court, Workers' Compensation Division, held Section 8.1b of the Illinois Workers' Compensation Act does not require a party to submit an AMA impairment report for the purpose of awarding permanent partial disability. In Corn Belt Energy Corp. v. IWCC, the employee parked his truck and physically turned in the truck seat and claimed he injured himself twisting as he exited his work truck on an incline.

 

It appears Claimant did not offer an AMA rating report into evidence, and neither did the employer. The Arbitrator found this questionable claim compensable and awarded three percent BAW. The award totaled roughly $10,688.25 in permanent partial disability (PPD) benefits, plus some medical benefits. In rendering his decision, the Arbitrator did not address whether an AMA rating report was required or if it was so required, whose obligation it was to obtain and introduce the report. Moreover, the Arbitrator failed to explain any of the five permanency factors set forth in section 8.1b(b).

 

Either way, Claimant asserted the action of turning in a truck seat was an “injury” or “accident.” While we are not sure, it appears the defense firm handling this claim stipulated those actions were an “injury,” and stipulated to that portion of the claim, choosing instead to fight and lose overa dispute as to causal connection. We completely disagree with anyone who asserts such actions comprise a compensable work injury or accident—Claimant described activities of daily life and there was no safety failure on the part of the employer. There are several longstanding IL WC rulings that rule similar actions of daily life, like standing up from a chair or putting on a coat do not comprise work “accidents.”

 

The defense firm appeared to focus on an unusual assertion. They claimed, even if they agreed there was an “accident,” the Arbitrator and Commission couldn’t award permanency or PPD without an impairment rating from Claimant’s counsel. We consider that defense tactic to be questionable and it failed.

 

The defense firm, acting for the employer argued Section 8.1b of the Act imposes a requirement a claimant tender an AMA rating report. The employer maintained because Claimant did not present an AMA impairment rating report he failed to satisfy Section 8.1b's requirements and was not technically entitled to a PPD award. Section 8.1b of the IL WC Act was enacted as part of the 2011 Amendments to the Act, and became effective for all claims arising after September 1, 2011. According to the provision, entitled "determination of permanent partial disability," "[f]or accidental injuries that occur on or after September 1, 2011, permanent partial disability shall be established using the following criteria;"

 

(a) A physician licensed to practice medicine in all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing. …

 

(b) In determining the level of permanent partial disability, the Commission shall base its determination on the following factors: (i) the reported level of impairment pursuant to subsection (a); (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee's future earning capacity; and (v) evidence of disability corroborated by the treating medical records. No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order. Id.

 

Although the IL WC Appellate Court addressed one aspect of Section 8.1b in its November 2015 decision in Continental Tire of the Americas v. Illinois Workers' Compensation Comm'n, the Court limited its decision to the singular issue of whether a zero AMA rating report meant there could be no permanency as a matter of law. The Continental Tire court found the impairment rating report, even though providing for a zero disability rating, was just one of the five factors to be considered under section 8.1b(b). To give it the effect argued by the employer in Continental Tire, the Court noted, would violate Section 8.1b(b) by giving too much weight to a single factor. The Continental Tire court did not indicate who bore the responsibility for submitting a report, and stated only that an AMA impairment rating report was to be considered if offered; it did not say who had the burden of production.

 

On review, the IL WC Commission affirmed the Arbitrator's conclusions and the award of PPD, but added language specifically addressing the AMA rating report. According to the Commission, after a "complete reading" of section 8.1b, "a party is not required to provide an AMA rating report for the purpose of determining permanent disability.”. "Instead, we find that the Act simply requires that if an AMA rating report has been provided, then the Commission must consider it, along with all of the other criteria listed, when determining permanent disability" The Commission then addressed each of the remaining factors of section 8.1b(b), and concluded the Arbitrator's award was correct. One Commissioner dissented, finding that "[t]he lack of an AMA report regarding a level of impairment leaves the [t]rier of fact no evidence of level of impairment." He then found Claimant's condition warranted only a 1% BAW award. The Circuit Court confirmed the Commission's decision.

 

In a 4-1 decision, the IL WC Appellate Court held the express language of Section 8.1b(a) does not limit the Commission's ability to award PPD benefits where no AMA report is submitted. The majority found the Commission's interpretation of section 8.1b – the IL WC Act simply requires if an AMA rating report has been provided, then the Commission must consider it, along with all the other four factors listed in section 8.1b(b), when determining permanent disability – was reasonable.

 

The majority further found Section 8.1b did not make submission of a report mandatory. "[S]ubsection (a) of section 8.1b is addressed only to a "physician *** preparing a [PPD] impairment report." Rather, the majority opined, "[i]t sets forth what a physician should include in his or her report and establishes that the report must be "in writing." Subsection (a) does not contain any language which obligates either a claimant or an employer to submit a PPD impairment report. Additionally, it contains no language limiting the Commission's ability to award PPD benefits when no report is submitted.

 

The majority also found Subsection (b) of section 8.1b of the Act was addressed "only to the Commission." The Court said Subsection (b) "lists five factors upon which the Commission must base its determination of the level of PPD benefits to which a claimant is entitled … ." Id. The majority observed, "subsection (b) does not require any action to be taken by either a claimant or an employer. Also, similar to subsection (a), it contains no language limiting the Commission's ability to award PPD benefits in the absence of a PPD impairment report."

 

The majority continued, "[c]learly, the plain language of section 8.1b places no explicit requirement on either party. Nor does it make the submission of a PPD impairment report a prerequisite to an award of PPD benefits by the Commission. Rather, the section speaks in terms of what factors the Commission is required to consider when determining the appropriate level of PPD." The majority noted its construction of Section 8.1b(a) was consistent with Continental Tire, where the Court held "[t]he statute does not require the claimant to submit a written [PPD impairment] report. It only requires that the Commission, in determining the level of the claimant's permanent partial disability, consider a report that complies with subsection (a), regardless of which party submitted it. Id.

 

According to the majority, "a PPD impairment report may be submitted by either party." Further, "when one is admitted into evidence, it must be considered by the Commission, along with other identified factors, in determining the claimant's level of PPD." The majority noted, "[n]one of the factors set forth in section 8.1b is to be the sole determinant of the claimant's disability. Further, nothing in the plain language of the Act precludes a PPD award when no PPD impairment report is submitted by either party." As a result, the majority rejected the contention by the employer the AMA impairment report was mandatory.

 

Appellate Court Justice Hoffman wrote a detailed and solid dissent, asserting an AMA impairment report should be needed by our hearing officers to measure and then award PPD. With respect to this long-time jurist, we don’t see that happening under current law.

 

For reference, in Governor Rauner’s “Turnaround Agenda,” he is seeking to have the IL WC Act amended to only require the Arbitrator and/or Commission consider one and not all five factors as currently required by IL WC law. Those proposed amendments may again come up for debate after the November election.

 

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

 

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Synopsis: Retaliation can arise from many agents--and your company is likely to be responsible for all of the agents, so choose your battles—and your warriors—carefully. 

 

Editor’s comment: In Baptist v. Ford Motor Company, No. 15-2913 (June 27, 2016) N.D. Ill., E. Div.,  a prior dismissal was vacated and remanded when the US Seventh Circuit Court of Appeals decided the District Court erred in granting Defendant-employer's motion for summary judgment.

This action arose due to Plaintiff Baptist filing suit for an allegation of termination in retaliation for exercising his workers' compensation rights after Plaintiff failed to show up for work for consecutive days while at least one MD had him off work.

 

James Baptist was a former forklift operator at Ford Motor Company who sued Ford after he was fired in retaliating for exercising his workers’ compensation rights. After Ford’s motion for summary judgment was granted, Baptist appealed contending the District Court drew improper inferences and there was a genuine issue of material fact about Ford’s motivation for the discharge.

 

Baptist worked at Ford’s Chicago assembly plant operating a forklift starting February 2012 and in April 2012 he inadvertently drove a forklift into a pillar and injured his left wrist, visiting Ford’s medical department and submitting an injury report. The report triggered a workers’ compensation investigation conducted by Jessica Nawracaj who was employed by Bartech, a company which provided Ford with workers’ compensation benefits administration services. Nawracaj and Dr. Patricia Lewis emailed each other with doubts regarding the account of the injury and also forwarded the information to Ford’s labor relations department.

 

Ford paid for the initial visit to an ortho, Dr. Heller, who ordered an MRI which revealed a left wrist ligament tear. Ford denied coverage and the claim is noted as being litigated at the Illinois Workers’ Compensation Commission however it is not listed in a public record search of the IWCC website.

 

Baptist worked for two months until June 24 when he left work as the wrist allegedly worsened and Dr. Heller then diagnosed Baptist with a complete ligament tear and recommended surgery with a form submitted to Ford confirming Baptist could not perform the essential function of the job though he added Baptist was not totally disabled. Due to the lack of specificity, Ford sought additional information and Dr. Heller submitted a new form which indicated Baptist should be off work for 4-6 weeks after surgery but cleared return to work July 2 so long as he did not lift or grip over 5lbs with his left hand.

 

Dr. Lewis testified she reviewed the forms and based upon her knowledge of the job, did not believe the restriction affected any activity necessary to operate the forklift and removed the note from Baptist’s file, clearing him to return to work. Baptist refused and asked for another position and after several days, was suspended by Ford for one month.

 

Upon return from suspension, Baptist met with Quandra Speights, Ford’s labor rep and contends he was told he would be fired if he did not return to the forklift position and fired if he did not agree to state his injury did not happen at work, in which case he would be given an approved leave of absence. Speights denied the allegation. However, after Baptist indicated he could not return and did not August 24-26, he was terminated for having three consecutive absences without proper justification. Baptist sued in Illinois state court in November 2013 for retaliation under Section 4(h) of the IL WC Act. Ford moved for summary judgment from that suit which was granted with the District Court noting they followed the attendance policy in making their decision which was acceptable.

 

This order was vacated here in the Seventh Circuit with the Court noting there was conflicting evidence which gave rise to a true question in controversy and also noted the emails from Dr. Lewis gave rise to an inference she was hostile to his claim for WC benefits. The Court also noted a triable issue with regard to whether it was appropriate to give him the impracticable choice to retain his job in exchange for dropping the claim noting that similar issues of choice in past claims have been found appropriate and therefore this issue survived summary judgment. The Court also noted multiple issues of fact regarding the disparate testimony of Baptist. Dr. Lewis and Speights.

 

The Court found a jury could infer Defendant's company doctor harbored hostility to Plaintiff's request arising out of disputed injury to Plaintiff's wrist by clearing Plaintiff to work, even though Plaintiff claimed he could not operate a forklift with his injury, where the doctor doubted Plaintiff's injury based, in part, on prior injury claim to other wrist that Plaintiff made with a prior employer and further due to the allegations management attempted to coerce him into abandoning his workers' compensation claim in exchange for maintaining his job.                                           

 

The best policy in any interaction with employees in similar situations would be to not only have independent witnesses, but to also document to summarize the interactions in writing to avoid later allegations. It is also important to base decisions on firm evidence rather than anticipated information. If the employee will not allow access to past information, that gives rise to potential additional defenses. Finally—DON’T THREATEN OR COERCE. The job you save, may be your own.

 

Our regular general advice when dealing with any termination with an employee who has ongoing litigation against the company is to suspend any decision on final termination until all information is in—which at times means until the end of the WC claim via either hearing or settlement. This can be as simple as an extended leave and at times can be much more nuanced and difficult. This article was researched and written by Shawn R. Biery, JD, MSCC. For questions regarding handling issues of EPLI comingled with WC claims, you can contact Shawn at 312-756-3701 or sbiery@keefe-law.com.