11-21-2016; IL WC Reform Set to Die; Is Lifting a Smidgen Going To Be An Accident in IL WC?--A Two-Part Article; Shawn Biery on our New IL Arbitrators and more

Synopsis: IL WC Legislative Reforms to Die; Is The Act of Lifting a Smidgen Going to Be A Work-Accident?

Editor’s comment: This is a two-part article by Gene Keefe, J.D. and John Campbell, J.D.

First, let’s consider status of the IL WC reform battle in Springfield. The news is not-so-good for our business and government readers.

The seemingly never-ending journey to legislatively limit workers’ comp costs in Illinois may never reach its goals. In Springfield, we are advised four leading legislators from both sides met with Gov. Rauner last Wednesday to continue the battle over a deal that might simultaneously end the budget stalemate between Democrats in the General Assembly and the Republican administration.  

Republican leaders and Governor Rauner reportedly discussed their proposed reforms to lower workers' compensation costs in exchange for an end to the current state budget impasse—to our understanding, on January 1, 2017, our State government won’t have an actual budget like other states. In working out the fight over the budget, Gov. Rauner's “turnaround agenda" workers' compensation reforms codified in HB 4248, and were filed in July 2015 by Republican legislative leader Jim Durkin. The bill would

·         Impose a “major contributing cause” standard;

·         “Sort-of” adopt the “traveling employee” definition from the IL Supreme Court ruling in the Venture-Newberg case (we don’t agree with the wording at all and feel it might be an expansion and not a contraction of our law);

·         Create credits for prior awards and settlements for IL employers;

·         Allow for the use of AMA guidelines on their own to adjudicate/set permanency/impairment values and

·         A WC Medical Fee Schedule expansion/reduction. 

And Last Week, Speaker Madigan Basically Dumped The IL WC Reforms Into a Committee to Die

The impetus of filing House Bill 4248 in year 2015 and bringing it up during Wednesday's meeting was to be a starting point for further negotiations. However, shortly after the legislative leader meeting, Speaker Madigan referred the workers' compensation reform proposal to the House Labor and Commerce Committee for a hearing on November 28, 2016 without the consultation of the sponsor, Jim Durkin. As I have advised in the past, I consider House Speaker Madigan to be our resident megalomaniac—this was another demonstration of his insurmountable power and lack of respect for anyone in IL government who disagrees with him.

In addition, the next scheduled leader's meeting takes place the same day as the scheduled committee hearing. The circus behind scheduling HB 4248 before a House committee on a year old bill, that was always considered a long shot for Republicans in a Democratic controlled legislature, is to effectively dump the bill in by allowing the bill to be quietly defeated by the House committee controlled by Speaker Madigan and his minions.  At this point, IL House Republicans are calling for continued discussions and negotiations on workers' compensation reform so our lawmakers can craft a bipartisan solution. No one knows if a six-month budget for the second half of this fiscal year is going to be worked out. On November 28, we will see if the 2015-2016 IL WC legislative reform is killed.

Part Two by John Campbell, J.D.

Synopsis: IL Appellate Court, WC Division growing proficient in finding distinctions where there is no difference. A recent ruling finds an “accident” for what appears to be a very benign, every-day action.

Editor’s Comment: We were left a bit quizzical to read the recent  IL Appellate WC ruling that we simply can’t get our head around.

In Mytnik v. IWCC, published on 11/10/2016, the Illinois Appellate Court, WC Division overturned another decision of the IL WC Commission denying an assembly line worker benefits for a back injury. Despite statements of the IL Supreme Court in two separate rulings confirming this middle court should use great restraint before reversing IWCC rulings on the “manifest weight of the evidence,” we have seen a number of such reversals in recent years. In the case at hand, Claimant was simply reaching to the ground to pick up a small bolt. Nothing terribly heavy, or awkward or highly repetitive. For these reasons, the reversal is troubling for the IL WC defense industry. Please note the cost of this ruling to Ford Motor Company was at least $160,000!

Aside from the reversal on “manifest weight”, this ruling is also notable for what appears to be a recent struggle by this Court in defining what constitutes a “repetitive accident,” a “neutral risk” and which are “quantitative” or “qualitative” risks. What we see is that compensability hinges on whether the innocuous activity was a “required job duty” at the time of the injury.

Why is the “Required Job Duty” Consideration Important?

Well, please note this same Court recently denied a strikingly similar claim  for an office worker who was reaching to the floor to pick up a pen. In Noonan v. IWCC (issued 20 days prior to Mytnik on Oct. 21, 2016) this same Court upheld the denial of benefits when Claimant hurt his wrist reaching to the floor for a pen he dropped. It was reasoned that reaching for a pen was not a “required duty” of that job, so the injury was not compensable.

So, what’s the difference? Let’s see how the Court distinguishes the facts in Mytnik to reach an opposite conclusion.

Claimant Mytnik worked for Ford Motor Co. on their assembly line. Claimant’s  job consisted of installing car suspensions; the work involved twisting and turning, and he periodically had to pick up small bolts that fell off the articulating arm used them to secure the rear suspension system. In our view, small bolts = the pen in the Noonan case, right?

Not So Fast. Same Court, Different Day.

Claimant in Mytnik explained that during his shift, bolts would occasionally fall to the floor and he had to pick them up. Therefore, picking up the bolts was a required job duty. However, in Noonan, the Court concluded that picking up a pen from the floor was not part of the required job duties for the office clerk and therefore, his injury was not compensable, as it was a “neutral risk” with no “qualitative” or quantitative” increased risk.

It is our impression the scenarios in these two cases are largely indistinguishable. In both claims, the act or “risk” leading to injury was “bending over” to lift something very, very light. Numerous prior denials have come from such facts over the history of IL workers’ comp. One could easily argue that office clerk Noonan is generally obligated to pick up a pen he drops while working and is therefore “required” to do so. One could also argue on the other hand that factory worker in Mytnik didn’t always have to pick up every bolt that dropped, or that the dropping of bolts (or picking them up) was not part of the essential job duties and therefore, his injury was not compensable.

In our respectful view, we would welcome a fresh examination by the higher courts when deciding these very innocuous mechanisms of alleged accident and injury. It may be time to erase the chalk board if you will, where we have our courts supposedly analyzing “neutral risks” and “incidental risks” and “quantitative risks” and “qualitative risks”.

We are nostalgic for the good old days where we simply looked at whether there was a true increased risk related to the job to determine there was an actual accident.

In our view, if you want to reform the IL WC system, you may be hard-pressed to change the thinking so you have to change the thinkers. The IWCC did their job in Mytnik to deny a case where the mechanism of “injury” was truly innocuous; picking up a very small item from the floor occasionally at work is a day to day activity performed by the general public. In light of this reversal, it may be hard to give accurate advice to clients as to what may or may not constitute an accidental injury in this State.

Two lasting thoughts from your editor

·         If you make every innocuous act like smidgen-lifting into an “accident”—IL WC claims cannot be defended. Adjusters will have to accept all medical problems that can be in any way said to arise at work as work-related, then pay benefits and WC costs will soar. If any physical/medical problem for someone with a job is going to be compensable, there will be no further need for lawyers on either side nor will we need to have lots and lots of hearing officers and internal IWCC appeals and reviewing courts.

·         In my view, you can’t possibly change this confusing situation via legislation and we feel our Governor should consider giving up that fight—you can’t legislate what I consider common sense. Whatever you legislate about “major contributing cause,” can be ignored, steered around or used against you. In the words of former IL State Chamber President Doug Whitley and others, “if you can’t change the thinking, you need to change the thinkers.” Consider meeting with new IL Supreme Court Chief Justice Lloyd Karmeier to discuss your overall concerns. I assure you he controls the gate and I am happy to explain.

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

Synopsis: Arbitrator TBA cases will soon have a new hearing officer—Governor Bruce Rauner announced two new Arbitrator appointments to the IL Workers’ Compensation Commission.

Editor’s comment: While we continue to share prior concerns which have been voiced repeatedly regarding the lack of complete transparency in the process of political dealings in Illinois, the two latest Arbitrators appear from background and past experience to be strong appointments if for no other reason than having exceptional experience within the Workers’ Compensation arena.

ü  Governor Rauner has appointed Michael Glaub to the Workers’ Compensation Commission as an arbitrator. He brings decades of experience in workers’ compensation matters, most recently as a partner at Hennessy & Roach in Chicago where he defended workers’ compensation claims for self-insurers and insurance carriers from inception through all potential levels of appeal. He previously served as a Senior Associate at both Spiegel & Cahill and the Roddy Law Group. Arbitrator Glaub earned his bachelor’s degree in economics and political science from Southern Illinois University and his law degree from DePaul University College of Law. Arbitrator Glaub is a seasoned workers’ compensation professional and based upon experience and his handling of claims in which both of our firms handled matters for common clients, Arbitrator Glaub will know how to manage a courtroom and has a solid perspective on what makes a claim compensable and which claims are questionable.

ü  Governor Bruce Rauner has also appointed Frank Soto to the Workers’ Compensation Commission as an arbitrator. Arbitrator Soto has also worked with multiple firms and law practices that which oversee workers’ compensation litigation, most recently owning his own law firm, Law Offices of Frank J. Soto, Ltd., where he concentrated on workers’ compensation, civil litigation, and personal injury administrative hearings, municipal, real estate, criminal, contract and business law matters. He previously oversaw administrative hearings conducted by the Illinois Office of the Secretary of State. Arbitrator Soto also has experience as the Deputy Director of Management Operations and Grant Manager at the Illinois Department of Commerce and Economic Opportunity. He received his bachelor’s degree in economics and business administration from Eastern Illinois University and his law degree from The John Marshall Law School. He lives in Bensenville where he also serves as Village President. Arbitrator Soto is another seasoned workers’ compensation professional and based upon experience defending claims presented by his office, Arbitrator Soto has an understanding of the system and rules of evidence and we anticipate he will be a proficient hearing officer.

This article was written by Shawn Biery, J.D., MSCC based on the press release of the Office of the Governor and his experience in past dealings with the new Arbitrators. Shawn is available for your questions via email at sbiery@keefe-law.com or via phone at 312-756-3701.

11-14-16; Breathe and Keep Breathing--Trump Isn't Leaving; Budget Gridlock Again Arises in Springfield; Voluntary Recreational Injuries Aren't Supposed to Be Compensable, Right? and more

Synopsis: Breathe and Keep Taking Deep Breaths, Everyone. President Donald Trump Is Here to Stay.

Editor's comment: The election is finally over and no one will miss the 2106 presidential campaign that was packed with controversy. We have literally thousands of disbelieving folks across the country who can't countenance the outcome. In my view, this is the first time we have elected someone who is less-than-universally-sensitive to the White House in any number of presidential terms. For the many people who simply don't believe what happened, we assure you Donald John Trump won and will be inaugurated. There is literally nothing you or I can do about it other than to take a deep breath, put on our grown-up pants and adjust.

Please remember one important thing that may be getting lost in all the silliness--Donald Trump isn't an emperor or king. He doesn't have plenary power to do almost anything. He is the President of the United States and there are lots and lots of limits on the power of that office. The reasons for all the limits and counterbalances are clear--lots of nutty folks have become President and tried to do stuff either secretly or otherwise to force their will upon the electorate. I assure you that hasn't worked very well. Trump’s power will come primarily from deal-making, if he and his team can make deals.

I also think Donald Trump ran for President, not so much because he truly wanted to be President but because he might perceive he is now sort-of like king or emperor and has sort-of unlimited powers. He will find out very quickly he has to build coalitions and sell lots and lots of legislators and administrators on his policies and programs. Outside looking in, I didn't see him doing that very often during his wildly litigious career in business where he used his money and power to sue and be sued to get his way--I assure all of our readers that approach isn't going to work at all from the Oval Office.

So What Will the Trump-ster Do in Office to Effect Change in Your Life in the Claims and Work Comp Industry?

First, our new and fearless leader has vowed to end or greatly change Obamacare--the Affordable Care Act or ACA. Work comp was in existence long before that concept was put into law and we are sure work comp and our jobs will survive the end of ACA. In my view, the end of Obamacare may create pressure on the work comp system across the United States as medical care continues to rise in cost and scope making group insurance more difficult to maintain with reasonable costs to business and government. We are almost certainly going to see a rise in the number of future work comp claims and assume liberal hearing officers in this state and others may open the door to more of what we call "repetitive working" claims.

If you are new to this column, we use the term "repetitive working" to denote a work comp claim where the worker asserts they have pain in their [insert body part] without the need of an accident, trauma or safety failure on the part of the employer. We remain devoted to fighting such claims when and where we can because they are almost indefensible--our bodies break down as part of the normal aging process. Work comp doesn’t work well to cover aging and its pitfalls. Work comp is supposed to be coverage for the unexpected and untoward event where there is some safety issue that an employer can adjust to. We are going to have to watch and see if the end of Obamacare will cause a rise in this sort of questionable claim.

Trump Will Select and Hire Federal Government Agency Leaders—Such Change is Certain

Next, the quiet change coming to a government office near you will be President Trump's ability to select the federal government heads and control the budgets of the major government agencies that hover around the work comp system. The major government agencies that regularly impact work comp are:

      Our Social Security system that has opened up SSDI benefits and then Medicare to over 1,5 million new claimants under Barack Obama's presidency. When he got the job as President, there were about 7.4 million people on SSDI. In 2015, the last reporting period, there were 8.9 people living off of SSDI. Why work when the government will pay your bills, right? Please remember, after one year on SSDI, you are then eligible for Medicare that we also consider expensive for taxpayers. If you are unhappy with the wacky level of U.S. government debt that is soon to exceed $20 trillion dollars, we feel under the new regime you may be happy to see folks being pushed to stay at work or return to work and get off the dole. We will have to wait and see.

      "Normal" Medicare that is the government's senior citizen healthcare plan that also operates at a giant cost to taxpayers. We can’t tell whether Trump and Pence and their minions may want to tighten Medicare coverage to save dollars. We are sure lots of Americans will beef if that happens. We will see if that battle begins.

      OSHA has been an amazing and growing thorn in the side of U.S. business with their reporting requirements and then hefty, unpredictable and unappealable fines. We feel OSHA’s rabid approach has raised the stakes on safety across the country. We look to see a lessened impact by OSHA under the new administration. You have to decide whether OSHA can only work in an environment where the government is felt to be on the attack and not working for cooperation.

      We are certain the EEOC saw lots of growth under the outbound administration in creating lots of challenging rules and anti-business litigation.

o   If you know of their forced work-comp-related settlements with Sears and other major companies about ADA and reasonable accommodation before implementing auto-termination of injured workers, you would understand how upset some HR folks can be about the federal government. As Trump wants less government regulation, we feel the role and sweep of the EEOC is certain to diminish under the new administration.

o   I still feel the Americans with Disabilities Act is not properly enforced in this country because the EEOC has never forced governments to put injured police, fire, prison guards and other government workers back to work with reasonable accommodation when they can be trained to do the thousands of sedentary jobs regularly available in government. The refusal of the EEOC to do so costs Illinois taxpayers billions in fake government "line-of-duty-disability" pensions. I don't see that changing under the coming administration either but we will have to see.

      ICE or U.S. Immigration and Customs Enforcement may soon grow dramatically and get very aggressive under DJT. I feel we can expect a velvet hammer to be used to insure Americans are working in American jobs and not undocumented immigrants. We always consider it weird to ask/demand the Federal Government enforce their immigration laws as written. We also consider it weird to hear politicians like Chicago Mayor Rahm Emanuel pledge his city may be a haven for folks that flout federal immigration laws.

KCB&A is now dealing with a challenging IL work comp claim from an undocumented immigrant--does anyone feel an undocumented immigrant who files a claim for work comp could or should be sued in Circuit Court for fraud in the hiring process? Am I the only one who considers it odd to sometimes reward undocumented immigrants in the work comp process?

In Summary, Please Keep Breathing!

I feel we are going to have to take a wait and see approach to our mercurial new leader. We are sure millions and millions of voters decided to reject Hillary Clinton whose lengthy political career was at least as odd as Donald Trump's when one considers she was fired/forced out as Secretary of State to then have our President indicate she would be a solid commander-in-chief when he didn’t want her working with and for him. One has to wonder if she will again run for the same office in 2020 and then 2024 and beyond.

I am absolutely sure, we are sure to get a much less genteel and somewhat less sensitive approach from our new federal government. We hope our country, the voters and your business or local government survives and thrives as we do so.

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

Synopsis: Moving from the Federal Government to Illinois State Government, We Still Have Budget Deadlock in Springfield That Threatens Basically Everything in Nutty State Government.

If you don't remember, Governor Rauner approved what was called a "stop-gap" budget plan to get through the election and to the end of the calendar year. Everyone in IL state government is back on tenterhooks worry about how State government may continue to operate without a budget. We note former Comptroller Leslie Munger lost in her re-election run and was replaced by a new comptroller completely loyal to our reigning IL megalomaniac, House Speaker Mike Madigan.

All of the uncertainty and battling renders Illinois government even more precarious. Our State government has about $163B in debt and something like $10B in pending/unpaid bills. Both amounts continue to spiral every minute of every day. With respect to Governor Rauner and all the members of the General Assembly, we hope they can figure out a plan to make across the board budget cuts and start to make sense of government in this state before it collapses under its own weight.

Chicagobusiness.com says Illinois government is nearing $14 million in unpaid bills along with $163B in debt. State government is relying on the short-term stopgap measures to fund essential services because our General Assembly and Governor have not approved a spending plan in two years.

Gov. Rauner continues to insist he will agree and sign off to raise taxes to “sort-of” balance the budget only if Madigan supports his “Turnaround Agenda,” which includes a few workers’ compensation reforms and limits on unions and collective bargaining. As I have told our readers repeatedly, the proposed WC reforms aren’t going to change much, if anything.

Bruce Rauner personally donated or gave from his political fund at least $41.4 million to unseat Democratic legislators, the news website reported. In response, five Democrats in the Illinois House lost their re-election bids, while the Democrat party recorded one pickup seat. The overall election ended cutting Speaker Madigan’s majority from eleven to seven lawmakers, ending the supermajority previously in place.

Madigan appears to have forgotten the fact he “cooked the books” by unquestionably gerrymandering many districts. Lots of his returning legislators ran unopposed because there was literally no chance for anyone, even with an unlimited budget to unseat them. Speaker Madigan blocked any chance at fair districting when he used his favorite lawyer to appear before his favorite judges/justices to toss out the signatures of about 550,000 signers wanting to take away Madigan’s power to set and reset districts until many of our votes become meaningless. Speaker Madigan ignored the challenged districting to claim the arguably rigged election was a referendum in favor of both him and a Democratic-controlled House. In response, Governor Rauner said taxpayers deserve a balanced budget and job growth.

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

Synopsis: Injuries from Voluntary Recreational Activities Aren’t Compensable In IL WC But It Isn’t a Rule If We Don’t Enforce it.

Editor’s comment: Former Calumet Middle School Teacher was just awarded IL Workers’ Comp benefits for broken arm during an after-school basketball game. The Illinois Appellate Court, WC Division ruled a middle school science teacher was entitled to workers' compensation benefits for his injuries from participating in a recreational game against a group of students in an after-school basketball program.

In Calumet School District #132 v. IWCC No. 1-15-3034WC, issued 11/10/2016, Claimant Jordan worked as a science teacher at Calumet Middle School. He testified the school principal asked him to participate in an after-school basketball program for the students. The program had students play against the teachers, and Jordan suffered a broken arm during his first game.

The Arbitrator found Claimant Jordan was entitled to benefits for his injury. The Illinois Workers' Compensation Commission upheld this decision, but the Circuit Court judge reversed. The judge found Jordan was injured while participating in a "voluntary recreational program," and the injury was therefore not compensable.

Section 11 of the Illinois Workers' Compensation Act is one of the few statutory defenses in the IL WC legislation. In our view, it is regularly circumvented at the IWCC and reviewing courts. The provision provides "injuries incurred while participating in voluntary recreational programs … do not arise out of and in the course of the employment," unless the injured employee "was ordered or assigned by his employer to participate in the program." We feel that rule is fairly clear—if you are ordered or assigned to attend and get injured, you are covered under WC if injured. If you aren’t ordered or assigned, you aren’t covered.

We tell our law students and readers rulings like this indicate how hard it is to “reform” the IL WC system because crafty litigators and willing claimants know how to easily circumvent any defense if the hearing officers don’t stick to the simple wording of the legislation.

In this claim, it appears clear there was no documentation of Claimant being ordered or assigned to play basketball. There is no dispute Claimant Jordan "was not a basketball player and did not want to participate in the student/teacher basketball games." These parties also agree Claimant Jordan "repeatedly tried to avoid having to participate in the games."

To create compensability, Claimant asserted the school principal "repeatedly pressured him to participate in the games," and he “gave in” because "he was concerned that if he again declined to participate, it might reflect badly in his performance review, and he might not be offered a position for the next school year," the appellate ruling said. The Court concluded this evidence "is sufficient to support a finding that the claimant did not participate in the basketball game for his own 'diversion' or to 'refresh' or 'strengthen' his spirits after toil and that he, therefore, was not engaged in a 'recreational' activity under Section 11 of the act at the time of his injury."

In our respectful view, we hate to see the Appellate Court say “might” over and over again. To our chagrin, there is no mention of Claimant being a union member and he is made to appear as a defenseless waif. It appears this claim is compensable as Claimant “might” have had a problem with his supervisor that his union couldn’t have remedied. Further, Claimant “might” have not been rehired, as his union “might” have cast him adrift. In a similar vein, Claimant “might” be the Easter Bunny or Santa Claus but the taxpayers in Calumet City are now going to have to pay him about $25,000 for his injured arm. We are sure that money could have been put to better use in this financially strapped school district.

From our perspective, Claimant’s state of mind shouldn’t be allowed as evidence to circumvent a clear and simple rule. There is literally no evidence of Claimant being ordered or assigned to participate in what was unquestionably a recreational activity. When Claimant whined about being “repeatedly pressured” to participate, he could have “repeatedly refused” or sought assistance/representation from his union reps to insure the pressure stopped.

For the school districts and other risk managers who read this KCB&A Update, please note the sad outcome of such rulings is to greatly limit recreational activities by your staff to avoid facing the suppositions, possibilities and “mights” from future IL WC decisions. We have a form for your consideration to have participants sign to affirm their participation is voluntary and then are not required to partake—if you want the form, send a reply.

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

11-7-2016; Addressing Problems with PTSD/Psych Claims in WC/Employment Law; Jim Egan on New LHWCA Penalties; Matt Ignoffo on Anti-Fraud Efforts in Cheeseland and more

Synopsis: Major Problems with Defending PTSD in Your Work Comp Claims in Illinois and Across the U.S.

Editor’s comment: Earlier this year, I wrote a rather controversial article about the IL Appellate Court’s unprecedented ruling in Moran v. IWCC where Claimant was a firefighting official who became upset and was diagnosed with PTSD for his role in managing a live fire where an officer under his direction died in an unfortunate “blow-over” during the blaze. My main concern is PTSD may be very difficult to verify, diagnose and treat. I also feel literally every single firefighter, EMT and police officer for the Village of Homewood—or your home town—could make a difficult to defend PTSD claim any time a different officer is seriously injured or killed in the line of duty. I can foresee entire departments walking off the job and seeking expensive taxpayer paid disability benefits. If you need help with a difficult/demanding PTSD or psych claim, send a reply—I am happy to assist, as needed.

Please also note Fire Lieutenant Moran would be entitled to about $400,000-500,000 in TTD for the periods he was off all work litigating the claim—the event occurred in year 2010 and TTD would be owed for those six years and continuing. We aren’t aware the Village brought him back to work in any other capacity. Without being certain, we also assume former Officer Moran would be claiming an inability to work in any capacity due to PTSD.

Police/Fire Disability Pensions In Illinois Reek of Politics and Abuse

If you think I am kidding about the battle going on between government and hapless taxpayers in this nutty state about abuse of disability pensions, take a look at this wonderful article from the Chicago Sun-Times where they report how the City of Chicago has finally started to fight back to get their police and firefighters off of disability, then back to some kind of work and off our dole:

Sun-Times Watchdogs 11-4-16

If you read the article, you will also note there is litigation moving to the very liberal IL Appellate Court that may issue “activist” rulings to allow police and firefighters to remain on the dole, living off our tax dollars when they clearly can and should be working at some sort of government job. The Appellate Courts in this state already provided such largesse for a police officer who felt threatened and may have what he claims is a lifetime of psych issues from feeling threatened by a troubled individual holding an orange-tipped toy gun!

Please also note if a police officer or firefighter in other states is caught working while on disability, it is considered a crime and they are prosecuted. In this nutty state and our biggest city, no one but the taxpayers care if a police officer/firefighter is working while on disability. In our view, our politicians could care less because a police officer or firefighter on disability becomes a loyal precinct worker to insure they keep getting benefits for NOT working.

What Is Another Major Issue for the Work Comp Defense Industry in Managing PTSD Claims?

In our view, we are going to start to see and have to defend more and more work comp PTSD and other psych claims. I am certain some Claimant attorneys and friendly psychiatrists may start coaching claimants to make such claims or add these issues to existing claims due to the potential for income and the difficulty of defending them.

What is the preliminary problem with defending a PTSD claim—we can’t use a typical HIPAA-GINA compliant release to get PTSD treatment records and bills. In Illinois and most states, there are psych confidentiality laws. In Illinois the applicable legislation is called the Illinois Mental Health and Developmental Disabilities Confidentiality Act

The Illinois Mental Health and Developmental Disabilities Confidentiality Act or IMHDDCA outlines methods for handling mental health information and records. The IMHDDCA defines confidential communications, provides directions for access to and disclosure of mental health information, creates privileges, and provides for civil and criminal penalties for breach of its provisions. The underlying basis for the provisions of the IMHDDCA is found in the general statement: “All records and communications shall be confidential and shall not be disclosed except as provided in this Act.”

In short, a typical IWCC or Commission subpoena isn’t going to work. Even with a HIPAA-GINA compliant release, you aren’t going to get records and bills from a psych provider. In our view, if you are an adjuster or attorney defending a PTSD claim, make sure to tell Claimant’s counsel if they are making a PTSD or psych claim, you can’t address or pay any benefits, indemnity, medical or otherwise unless and until Counsel or claimant brings you the certified records of psych care.

Understanding/Defending PTSD and Other Psych Claims

PTSD is a serious disorder that results from the experience of a traumatic, life-threatening event, such as war-time combat or other extreme trauma. Those afflicted with PTSD may experience potentially debilitating long-term suffering as a result. However, the diagnosis is increasingly invoked by Plaintiffs/Petitioners who allege PTSD caused by even relatively mild alleged workplace discrimination or retaliation. While attorneys who specialize in representing employers in work comp and employment litigation are well-accustomed to defending generalized claims of emotional distress, a PTSD diagnosis poses unique litigation risks. By following practical strategies geared specifically to defending PTSD claims, defense counsel can help manage those risks.

The Criteria For a Bona Fide PTSD Diagnosis

There is a high threshold for a bona fide PTSD diagnosis. The authoritative reference on psychiatric disorders, the Diagnostic and Statistical Manual of Mental Disorders (“DSM”), provides a specific set of diagnostic criteria for PTSD that includes, for example,“[e]xposure to actual or threatened death, serious injury, or sexual violence.” The DSM describes the “essential feature” of PTSD as “the development of characteristic symptoms following exposure to one or more traumatic events.” The DSM provides a non-exhaustive list of examples of traumatic events that includes exposure to war, threatened or actual physical assault or intimate violence, being kidnapped or taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human-made disasters and severe car accidents.

The Prevalence of PTSD Claims in Work Comp and Employment Cases

Despite the specific, rigorous diagnostic criteria for PTSD, it has now become common for Plaintiffs/Petitioners to claim PTSD in work comp and employment litigation with little regard for whether these criteria are legitimately met. In some cases, a treating mental health professional makes the diagnosis, sometimes with little or no true expertise in the area of PTSD.

Alternatively, a plaintiff may self-diagnose — perhaps with prompting by counsel — and then find an expert who will support the diagnosis in the litigation. In any and every work comp claim there is almost always a psych stressor—the work accident. Even plaintiffs with admittedly mild symptoms, or who attend no more than a few therapy sessions, may nevertheless claim to have suffered PTSD. As risk managers, adjusters and defense counsel, it is critical to learn to distinguish the genuine PTSD claims, such as those that might result from serious bodily injury or intimate/personal violence in the workplace for example, from those that simply do not meet the diagnostic criteria.

Risks Posed by PTSD Claims

A PTSD diagnosis can significantly increase the exposure presented by a work comp claim. Plaintiff’s counsel may try to use the PTSD diagnosis to extend Petitioner’s emotional distress indefinitely into the future, and thereby to increase benefits. For example, Petitioner’s counsel may argue as a result of PTSD, Petitioner will now experience a lifetime of “triggers,” or experiences that remind the plaintiff of the alleged discrimination, and cause him or her to re-experience symptoms.

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

Synopsis: For Longshore Claims Folks--U.S. Department of Labor Increases Penalties to Catch Up to Federal Civil Penalties Inflation Act of 1990, analysis by James Egan, J.D.

Editor’s comment: The Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act) requires agencies to adjust the levels of existing civil monetary penalties with an initial catchup adjustment, followed by annual adjustments for inflation. To implement the Inflation Adjustment Act, the Department of Labor published a department-wide interim final rule (IFR) adjusting its penalties for inflation for all civil penalties assessed after August 1, 2016.

The Inflation Adjustment Act affects penalties as outlined below:

Section 14(g) of the LHWCA: Failure to Report Termination of Payments—the penalty has increased from $110 to $275. Section 14(g) now states as follows:

Any employer failing to notify the district director that the final payment of compensation has been made as required by § 702.235 shall be assessed a civil penalty in the amount of $275 for any violation for which penalties are assessed after August 1, 2016. The district director has the authority and responsibility for assessing a civil penalty under this section.

Section 30(e) of the LHWCA: Penalty for Late Report of Injury or Death—the maximum penalty amount has increased from $11,000 to $22,587. Section 30 (e) now states as follows:

Any employer, insurance carrier, or self-insured employer who knowingly and willfully fails or refuses to send any report required by § 702.201, or who knowingly or willfully makes a false statement or misrepresentation in any report, shall be subject to a civil penalty not to exceed $22,587 for each such failure, refusal, false statement, or misrepresentation for which penalties are assessed after August 1, 2016. The district director has the authority and responsibility for assessing a civil penalty under this section.

When assessing this penalty, the District Director considers how many penalties, if any, have been assessed against the employer in the previous two years. A graduated penalty schedule is then consulted as outlined below. However, the District Director has broad discretion to increase or decrease the amount of the penalty assessed based on aggravating or mitigating factors. The District Director also considers whether the employer is considered to be a small business as defined by the Small Business Regulatory Enforcement Fairness Act when determining the penalty amount.

Graduated penalty schedule as of August 1, 2016:

1.         •   1st late report: $500

2.         •   2nd late report: $1,000

3.         •   3rd late report: $2,000

4.         •   4th late report: $4,000

5.         •   5th late report: $8,000

6.         •   6th late report: $16,000

7.         •   7th late report (& above): $22,587 (statutory maximum)

Section 49 of the LHWCA: Discrimination Against Employees Who Bring Proceedings—the penalty amount has increased from a $1,000 minimum and a $5,000 maximum to a new minimum of $2,259 and a maximum up to $11,293. Section 49 now states as follows:

Any employer who violates this section, and has penalties assessed for such violation after August 1, 2016, shall be liable for a penalty of not less than $2,259 or more than $11,293 to be paid (by the employer alone, and not by a carrier) to the district director for deposit in the special fund described in section 44 of the Act, 33 U.S.C. 944; and shall restore the employee to his or her employment along with all wages lost due to the discrimination unless the employee has ceased to be qualified to perform the duties of employment.

The penalties are outlined in detail in Industry Notice 158, which is available on the Office of Workers’ Compensation (OWCP), Division of Longshore and Harbor Workers’ Compensation (DLHWC) website.

This article was researched and written by Jim Egan, J.D. our Longshore and Jones Act guru. If you need help with any Longshore or Jones Act claim, reach out to Jim at jegan@keefe-law.com.

Synopsis: The Wisconsin Department of Workforce Development strengthens and streamlines the ability to report WC fraud!!! News and analysis by Matt Ignoffo, J.D., MSCC.

Editor’s Comment: The generally excellent DWD website was made even better recently as it now includes the ability to fill out an email web form when WC fraud is suspected.

The new anti-fraud form can be viewed here. Our research finds the suspects for the reported fraud may be employers, insurers, providers, or workers.

The DWD indicates, generally, it will refer the matter to an insurance carrier for investigation. See Section 102.125 of the Wisconsin statutes.

The carrier will be required to report back to the Department the results of its investigation. However, an insurer is not required to report back until it is satisfied that making the results of investigation known to the Department will not hurt its ability to handle the workers’ compensation claim.

It appears the individual reporting the possible fraud can remain anonymous, but providing contact information may be “very helpful.” If contact information is provided it will not be public, but may be available to the parties involved in the alleged workers’ compensation claim.

Based on the results of the insurer's investigation, the Department will make a decision about whether there is a reasonable basis to believe fraud has occurred. If so, the Department will refer the case to the Wisconsin Department of Justice or local District Attorney for prosecution. An assistant attorney general or the local District Attorney must then decide whether to start criminal proceedings.

It would appear that this updated process is in line with Governor Scott Walker's signing of legislation authorizing a special prosecutor for WC fraud.

Governor Walker signed 2015 Wisconsin Act 180, which includes funds to support a position at the Department of Justice to investigate and prosecute WC fraud.

This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C. (Medicare Set-Aside Consultant Certified) licensed in IL and WI who can be reached at mignoffo@keefe-law.com.