9-11-2017; New WCRC Contractor Takes Over for CMS and Recovery Statistics Presented: Gene Keefe's Wish List for IL WC Arbitrators and more

Synopsis: New WCRC Contractor Takes Over for CMS and Recovery Statistics Presented. Research and analysis by Shawn R. Biery, J.D., M.S.C.C.

Editor’s comment: As our readers are already aware, The Centers for Medicare and Medicaid Services had been accepting bids for and now has hired a new contractor who will assist in the review of Medicare set-aside proposals submitted to CMS. As we have become accustomed with CMS, the award of the contract was delayed and implementation is behind schedule…….if anyone truly followed the CMS anticipated schedule.

The CMS contract for Workers’ Compensation Review Contractor, or WCRC, has been awarded to Capitol Bridge LLC of Arlington, Virginia. Capitol Bridge will replace the previous contractor, Provider Resources Inc., of Erie, Pennsylvania.

Generally, the federal contractor will independently price the future medical costs of workers’ compensation claims, (future anticipated treatment, any anticipated prescription drugs and durable medical equipment) and then provide the information to CMS. This allows CMS to accurately determine when amounts offered to be set aside for medical expenses in a workers’ compensation settlement ensure Medicare doesn’t end up paying for work injury related medical charges. Taxpayers—you and I--save money.

The hope for all involved will be a more efficient processing of MSAs to provide more identifiable timeframes when seeking approvals. As in most changes, it is usually one step back to take two steps forward and we anticipate approval times will increase in the short term. The prior contractor had been clearing a backlog and was providing much swifter response times. It is generally expected the prior contractor will finalize file submissions currently under review.

We also hope to see the new contractor process MSAs efficiently while incorporating changes in a new CMS reference guide which include an option for re-review of an MSA when a case has not yet settled and there’s been a substantial change to projected medical costs.

Generally unrelated to the change in WCRC, CMS has also released figures noting amounts recovered in Medicare conditional payments from primary payers, including workers’ comp insurers in fiscal year 2016. As you may recall, in October 2015, CMS expanded the responsibilities of its Commercial Repayment Center, or CRC, to seek out workers’ compensation carriers and other “first” payers who owe conditional payments.

The amount recovered by CRC decreased actually, likely because they are no longer paying for payments which they had in the past now that more extensive reporting has been implemented.  

Net collections of $106 million were confirmed for the Medicare program. Collection efforts will continue on the remaining identified debt which totaled $244 million, it is unclear how much was from workers’ compensation alone. The $106 million is down from the $150 million in net collections in fiscal year 2015. That number was substantially higher than the $59 million in net collections reported for fiscal year 2014.

As insurance carriers/TPA’s continue to report claims as required, the amount paid by Medicare should continue to decrease which in turn should decrease recovery amounts.  

As they determine fewer targets, you can be sure if your company is not paying before Medicare, you will begin to see conditional payment letters which give you 30 days to dispute the bill—and if you miss the deadline, CRC considers your non-response to be agreement with the charges. We are aware of letters from the U.S. Dept of Treasury seeking significant amounts for recovery of charges which do not appear to be actual conditional payments. The hope is that these are avoided as well with more detailed early reporting.

As always, MAKE SURE YOU CONSIDER MEDICARE’S INTERESTS! This article was researched and written by Shawn R. Biery. If you have questions about workers’ compensation issues (Medicare related or otherwise), simply reply to Shawn at sbiery@keefe-law.com and stay ahead of the Feds!

Synopsis: My Illinois WC Arbitrator Wish List – Thoughts, Comment and Opinions from Gene Keefe, J.D.

Editor’s comment: I want my readers to know my thoughts Illinois government is closing in on a financial turning point. The way things have been done in the past may not get our nutty State government to the future. I truly feel we have to start doing things better and more effectively, if we are to have any hope or expectations at all.

Governor Rauner just politically reappointed/appointed a number of new IL WC Arbitrators. I believe his appointments have to be rubber-stamped by the IL Senate. We salute all the newbies and reappointments and don’t feel there are any clinkers in a solid, professional group.

I have criticized the system for locating and selection of this hearing officers for years as being secretive and moderately dysfunctional. I had sources tell me the system to source and select IL WC Arbitrators is more open and fair that I might think. I want my sources and readers to all remember Oscar Wilde’s quote about secrecy—“The commonest thing is delightful if one only hides it.” With respect to the insiders at the IWCC and elsewhere, I still feel government is supposed to be done in the light of day.

When I talk about secrecy in selecting IL WC Arbitrators, I confirm I have been in this job for over 37 years. I have never once seen an ad or job posting for an IL WC Arbitrator. They used to do an “Arbitrator’s exam” to give normal folks the impression there was an independent vetting process. The exam was as phony as a three-dollar bill. Thankfully, someone ended that charade about fifteen years ago. Still, I have no current idea who to talk to or beg or even ask about getting on the short list to be an IL WC Arbitrator. I bet I could find out by asking all the right folks—that is precisely what I feel is objectionable about the secret process. Even under a Republican administration, headed by a maverick Governor in Bruce Rauner, you still have to know someone who knows someone who knows someone else. The problem with my complaints about secrecy is everyone in the vetting process was chosen due to their adherence to secrecy and they are all certain the only way to select the “right stuff” is to keep the process secret. If you don’t like secrecy, they are certain to block/exclude you because you simply “don’t know.”

So enough whining by me about the Secret Squirrels who select IL WC Arbitrators. If you are going to do it secretly, please admit to the Governor you and your troops are responsible for the HIGH WC costs in this State. You can’t have it both ways!

Here are three bona fide things I want our existing, re-appointed and newly appointed Arbs to do.

Follow the Rules on Ending Ancient IL WC Claims!!!

I randomly picked three call sheets for this coming week from the IWCC website. The oldest claim I quickly saw was from 1999 or almost two decades ago. The second claim I saw was from 2002. The next three claims were from 2003. In any given IWCC call sheet, there are numerous claims that are well over ten years old. I consider that a national disgrace and feel something has to be done to get such claims current. The Secret Squirrels clearly but quietly don’t agree.

Illinois workers’ comp claims are supposed to be relatively easy to resolve—there are lots and lots of stipulations/agreements the parties are required to enter into as part of resolution. At some point, claims are allowed to sit and grow cobwebs and go literally nowhere. Some of the reasons are due to Claimant attorneys not wanting to deal with nutty or dangerous claimants. That is why motions to withdraw as counsel were created. Some of the reasons for delays in closure are also due to never-ending medical care—that is what UR and IME’s are for. We urge the new and re-newed Arbitrators to start moving ancient claims off the hyeroglyphics and into the present day on the status of medical and lost time.

My other problem is I occasionally see IL WC Arbitrators not caring and not doing nearly enough to get oldie moldie claims closed. I can’t continue to accept that approach.

The IWCC’s favorite “stall” or dodge is the never-ending need for medical records and/or medical bills. For most Arbitrators, if you say you don’t have medical records/bills, the words “case continued” quickly follows. The problem with that concept is many doctors and healthcare givers are moving to electronic records where you can get the records as fast as the speed of light, if the provider is willing to cooperate. FYI, if they are properly served, subpoenas have to be properly enforced to command response. I have only see one Arbitrator in 37 years demand compliance with subpoenas.

One suggestion I have is to create a new and special Arbitrator job—give one or maybe two Arbitrators the job of efficiently and effectively ending any claim over five (or whatever) years old. Have them do only that work. Put all such claims on a computer calendar system designed to put/force any issues on to a reasonable time spreadsheet with accountability for all sides. If the parties know they have to produce or they claim will be defaulted or dismissed, I promise things will start to move faster and we won’t have 10-20 year old WC claims that don’t help anyone.

Another suggestion is to steal an idea from the IN WC Board—they have a rule where the parties don’t have to get a hearing date, but if they do, the claim has to change to trial, settlement or dismissal. This approach might stop the incessant back and forth of attorneys moving for hearing and getting the claim kicked to move again and get it kicked again into almost infinity.

Do you have any ideas on how to make this system work more effectively? Please send them along.

Cut IL WC Costs Before Oregon’s 2018 Premium Ratings Come Out Next Year!!

Many folks feel IL WC costs should be “trimmed” somewhat to make our State more amenable to CEO’s and others who care about making money here. I have some simple thoughts to get our costs lower and more competitive with our sister States. Please note I don’t feel we need to win the “Race to the Bottom” to leave Illinois’ injured workers out in the cold when seriously injured, like some of the other insensitive States do. Work comp has to be moderate and reasonable—happy to provide examples.

First, I recommend/suggest Governor Rauner or his staff and IWCC Chair Fratianni and whoever else cares set an informal meeting with all Arbitrators/Commissioners who would voluntarily attend.

Number One on the agenda is to confirm we need to get IL WC costs to the middle of the pack. To my understanding, we only need to cut IL WC costs/awards by about 7% or so to get to the middle of the 2018 Oregon WC Premium rankings.

In the last reported ranking in 2016, Illinois’ workers’ comp premium ranking was Number 7 at 2.23. Alabama was the middle or 25th at 1.85. Take a look for yourself at http://www.oregon.gov/DCBS/reports/Documents/general/prem-sum/16-2082.pdf

The ranking comes out in about 13 months or around October 2018. At the meeting I suggest above, I would challenge for our Arbs is to cut our WC premium rating from 2.23 to 1.85 or thereabouts. They can do it, if they try.

I suggest the Governor or his staff start to watch rulings/decisions to get the “bottom line” on what is happening with his ongoing and future appointees. If they aren’t bringing our IL WC costs in line, consider others for the jobs. Stop re-appointing folks because they are “nice” people and get along with the Secret Squirrels but don’t show verified lower outcomes.

At the meeting, I would strongly confirm the Governor will be happier with the Arbitrators that can demonstrate somewhat lower PPD awards/settlements/pro se approvals. I suggest these thoughts be clearly stated to avoid any confusion.

I also suggest they review and converse on claims where there clearly is no PPD or permanency present. For one example, in years past, hernia claims used to be worth nothing for PPD. Since the Blago years, they have been worth 2-10% BAW. That can be a LOT of money for high wage workers when surgically repaired hernias typically don’t cause “permanent” or measurable loss. For any claimant attorney who feels compelled to tell me hernias cause impairment, please note I have had such surgery and you are wasting your time to tell me there is any sequalae from it. If you want more examples of claims that don’t merit PPD, send a reply.

Consider an IL WC Arbitrator’s Decision Complaint Box

A final thought would be to have someone named to take in IL WC rulings that aren’t just high or challenged but truly a mess.

For one example, I had a claim I defended where the worker had a burn to her thumb from a spark while plugging in an appliance at work. She might already have been a narcotic drug addict. She then clearly had addiction issues. Her job was truly sedentary. My client brought her back to work and quickly noted she was completely buzzed out on narcotics. They simply sent her home and told her to kick the stuff.

A still-sitting IL WC Arbitrator found Claimant was unemployable and provided her a total and permanent disability award for a barely visible burn to her thumb. The value of the award was $2.4M! When I read the award, I not only wanted the claim reversed on appeal, I wanted this Arbitrator to return to the private sector and get out of adjudicating IL WC claims.

I got the claim reversed on appeal and salute the IWCC panel for doing so. In traditional IWCC fashion, the panel did not criticize the Arbitrator in drafting his/her inexplicable ruling.

There needs to be a place to listen to complaints about completely crazy rulings. I am happy to volunteer to review/read and save any IL WC Arbitration award any of my readers feel is controversial for either side of the IL WC matrix. If you send it to me quietly, I will analyze and if I feel it appropriate send it to the powers that be for their consideration. Controversial or crazy decisions should be part of the Arbitrator re-appointment process.

If IWCC Chair Fratianni or her Counsel Ron Rascia or someone else with Secret Squirrel influence wants to do this, I would ask them to let me know. Something makes me think that won’t happen but you never know.

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

9-4-2017; Did the IL Appellate Court, WC Div Just Reverse Interstate Scaffolding?; Several IL WC Arbitrator Reappointments and Three New IL WC Hearing Officers Come In and more

Synopsis: Did The IL WC Appellate Court Just Reverse Interstate Scaffolding?

Editor’s comments: The Illinois Appellate Court, WC Division has taken another look at whether TTD is warranted when a Claimant with work restrictions is fired.

In Holocker v. Illinois Workers’ Comp. Comm’n, 2017 IL App (3d) 160363WC, the Court’s members appear to have departed significantly from established case law. In this claim, the Court upheld the decision to not award TTD ruling Claimant’s restrictions did not significantly interfere with his ability to find a new job after being terminated.

In the claim at bar, Claimant was a transportation operator who suffered an accident operating a crane, when a broken strap from the crane struck him in the face and chest, causing broken teeth, multiple facial fractures, and chest bruises. After being released to full duty work, Claimant asserted he began experiencing anxiety and panic attacks at the prospect of having to operate any crane at work. Claimant underwent psychological treatment for this anxiety and was restricted from operating cranes. Respondent accommodated these restrictions, providing him with other non-crane duties. Respondent had 40 technical operator jobs, many of which did not require use of cranes, so Petitioner continued working as a transportation operator, but was not required to operate cranes.

Claimant was eventually fired for failing to show up for work and not calling in for three days in a row—the termination was consistent with the collective bargaining agreement in place. TTD was not restarted following termination, even though the work restrictions implicitly continued. We point out there are a LOT of jobs that don’t require using cranes.

Based on the restriction prohibiting him from operating cranes, Claimant asserted entitlement to reinstatement of TTD after being fired. The IL WC Commission and later the IL WC Appellate Court disagreed. The Appellate Court gave significant weight to the employer’s vocational expert, who testified that being restricted from operating cranes did not impact the claimant’s ability to find a new job. Of crucial importance, the Court here distinguished this case from Interstate Scaffolding and Matuszczak (two cases where TTD was awarded after a claimant with restrictions was fired), stating that, “in each of those cases, it was undisputed that, at the time of termination, claimant’s condition had not stabilized, claimant was unable to perform the job he had been performing for the employer prior to the work accident, and when claimant returned to work after the accident, it was in a light duty capacity. Thus, in each case, it was undisputed that the claimant’s work injury had diminished his ability to work, thereby entitling him to collect TTD benefits at the time of his termination.”

In Holocker the Court further held by the time claimant was terminated, his work injuries had what the ruling indicated was “no effect” on his employment situation. The Court emphasized while determining entitlement to TTD “the test is whether the employee remains temporarily totally disabled as a result of a work-related jury and whether the employee is capable of returning to the work force.”

Comparing the rulings—in Interstate Scaffolding, the IL Supreme Court provided TTD to a worker on restrictions/light duty who was terminated for defacing company property. The only true difference between the decisions is the Holocker plaintiff/petitioner had a psych restriction that would not be a factor in looking for literally thousands of jobs outside the crane industry. In short, we feel the same facts and defenses to TTD are present in both claims.

We also believe this ruling is an important development in case law regarding TTD and hints at an increased willingness of the Courts to not merely ask whether or not a claimant has work restrictions, but to instead examine and analyze the type of restrictions that a claimant had, and whether it realistically impacted their employment situation, mandating TTD.

Be sure to stay tuned to the KCB&A blog for regular updates on the changes and clarifications affecting Workers’ Compensation law throughout the Midwest!

This article was researched and written by Pankhuri Parti, J.D. and your editor. Please post comments on our award-winning blog.

Synopsis: IL WC Arbitrator Secret Appointment Process Sadly Continues.

Editor’s comment: As I have told my readers in the past, the method by which IL WC Arbitrators are selected, measured and fired or reappointed is a process that takes on the secrecy of nuclear armament. I have no idea why or how this always has to be done under a veil of silence that challenges information going into and out of Fort Knox.

In my view, Governor Rauner bought into this process the way he has bought into most processes the State of Illinois continues to bungle under his watch. As I have told my readers and will continue to say—we don’t need and can’t afford all these hearing officers, no matter how solid they may be. I remain amazed Governor Rauner spent about $50M of his own money to get the job and has then made precisely the same challenging decisions/processes of his predecessors to overstaff our virtually-bankrupt State Gov’t.

That said, last week Governor Rauner reappointed the following Arbitrators for the Illinois Workers’ Compensation Commission: Anthony C. Erbacci, Steven J. Fruth, David A. Kane, Michael K. Nowak, Ketki Shroff Steffen. I consider these veteran Arbitrators to be generally solid and professional hearing officers.

Joining the Illinois Workers' Compensation Commission as newly appointed Arbitrators are Thomas Ciecko, Robert M. Harris and Robert E. Luedke. If you keep reading, you may note it appears to be a relatively moderate/conservative bunch.

1.    New Arbitrator Thomas Ciecko doesn’t appear to have any workers’ comp trial experience that we know of—his resume indicates he will probably catch up fairly quickly. Our research indicates he was General Counsel for the Suburban Bus Division of the Regional Transportation Authority, senior attorney with Oak Brook-based McDonald's Corp, a former Assistant Illinois Attorney General, former Chief of the Organized Crime Division of the Will County State’s Attorney’s Office and former Special Assistant United States Attorney.

2.    New Arbitrator Robert Harris is a defense attorney and previously held administrative positions at the Illinois Workers’ Compensation Commission from 1990–2004. He was Manager of Insurance Compliance (1996 – 2004), Executive Assistant to the Chairman (1996 – 2003) and Senior Staff Attorney (1990 – 1996). Robert also taught classes as an adjunct faculty member at Triton Community College. He is a trained and certified mediator and arbitrator and arbitrated over 100 cases for the Better Business Bureau since 1994 and was recipient of the 1998 Arbitrator of the Year award. Robert is accredited as a Medicare Set-Aside Certified Consultant by the International Commission on Health Care Certification (2012, re-certified 2015) and is a designated Registered Workers’ Compensation Specialist by the National Registry of Workers’ Compensation Specialists (2015).

3.    New Arbitrator Robert Luedke is also a defense attorney and has been defending Illinois Workers' Compensation claims for over 25 years. He is a frequent author and lecturer regarding Illinois workers' compensation issues. He is a member of the Workers' Compensation Lawyer's Association. He has made presentations regarding legal issues to the Winnebago County Bar Association and the Chicago Bar Association. Mr. Luedke has presented seminars to insurance carriers and self-insured employers. Mr. Luedke has argued numerous workers' compensation cases before the Illinois Appellate Court, WC Division.

We wish all of them the best in their work at the IWCC.

8-28-2017; Tiny IL WC Insurance Carrier Law Vetoed by Gov Rauner--Whew!; Important PTSD Ruling with Analysis by Tim O'Gorman JD; OSHA Update and more

Synopsis: Creation of Tiny IL State WC Insurance Company Vetoed by Gov. Rauner—Opposition Promises Fight to Override For Reasons Known Only to Them.

Editor’s comment: Gov. Rauner was busy last week taking action on several pieces of legislation—he has to veto the ones he dislikes to avoid them automatically becoming Illinois law.

The bill of most interest to the IL WC community was HB2622. HB2622 (sponsored by Fine/Biss) was vetoed by Gov. Rauner in its entirety. This weird proposed IL WC “reform” measure would use IL employer and insurer fees set up to fund the IL WC Commission to capitalize the creation of a state established, mutual insurance company to compete with the over 300 insurers that already provide workers' compensation coverage in this State. As I have advised my readers in the past, this whole concept started with ITLA or the IL Trial Lawyers Ass’n claiming the problem with IL WC isn’t high benefits, the problem is profit-scrounging insurance carriers. Someone at ITLA started the odd story to claim the internationally focused, multi-zillion dollar insurance companies somehow hoard more profits in IL than they do in other states—the factual basis for this unusual claim comes from a Ouija Board, Crystal Ball or Witch’s Cauldron. Obviously, the ITLA team and the legislators that report to them feel this completely unfounded public relations concept sells to the media and innocent public.  

I truly don’t understand how the funding would work. The $10 million of startup insurance carrier money would be a one-time check taken from the levy on self-insured employers and insurers that currently goes to operate our IL Workers' Compensation Commission. The legislation provides that the funds are a "loan" to be paid back with interest. Even as a loan, I am unsure how one-third of the IWCC funding could be immediately severed out for this odd purpose and not cause complete havoc with their payroll and operations. They have about 150 employees and, in my view, would have to lay off about 50 workers due to this House Bill. If you have some idea how they can do this and not disrupt operations, please let me know.

Lots of folks have commented about the abysmal track record of our State regarding any effort to operate in an appropriate manner, particularly involving finances. You can also point to the IL State Workers’ Comp claims management program as one that can and should be improved with system-wide cost-cutting. I am unaware of any other agency of IL State Gov’t that operates a private and competitive business. I am sure they are not set up to do so with the hilarious level of overcompensation and impossible-to-fund benefits all IL State employees receive. In short, this tiny “low-profit” IL WC insurance carrier, if it ever actually was funded and the work started, would almost certainly fail in weeks or months. In my view, the goals of this legislation will never and can never be met.

The IL State Chamber, myself and others feel it is difficult to believe the loan would be ever be paid. One has to also wonder if the legislature would keep funneling more money to this stupid and unsupportable venture. The IL State Chamber and I also feel removing money meant to support the Commission jeopardizes the entire adjudication of workers' compensation for both injured workers and IL employers. I join with our State Chamber and strongly support Gov. Rauner's veto. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: IL WC PTSD Claim Fails Due to Treatment Delay, Analysis and Research by Timothy O’Gorman, J.D.

Editor’s comment: We salute the Arbitrator, Commission panel and the Appellate Court ruling. In RPRD Dykman, Inc. v. Illinois Workers’ Compensation Commission, Claimant was an over-the-road truck driver who witnessed a horrific accident en route to making a delivery. Claimant was driving truck northbound on I-57 when a fellow truck driver (according to the police report) instigated a crash which resulted in a fatality. Claimant continued to work and drive for six months subsequent to the incident however eventually sought treatment with a psychiatrist when he no longer felt able to continue driving due to PTSD or post-traumatic stress. In claims such as this, we always point out there is no reason a truck driver couldn’t transition to logistics or desk work, with his training and background as a trucker. There are literally thousands of such jobs in the Illinois labor market. Obviously, this Claimant simply wanted to go on the dole, like most PTSD claimants.

Claimant testified he felt “in shock,” “sick” and “horrified” from what he witnessed at the scene of the incident. Claimant did not treat with anyone until 6 months after the occurrence. Claimant also failed to return to work as a truck driver subsequent to his treatment and began performing a failed job search, alleging he could not return to work in his pre-injury employment capacity.

After evidence was taken, the Arbitrator found Claimant did not meet the burden of proof required to establish a compensable psychological injury under Pathfinder v. Industrial Comm’n, relying mainly on another similar ruling in General Motors Parts Division v. Industrial Comm’n, which interpreted Pathfinder as being “limited to the narrow group of cases in which an employee suffers a sudden, severe emotional shock which results in immediately apparent psychic injury…” (emphasis added). In Pathfinder, a supervisor was next to a worker whose hands were traumatically amputated—the supervisor suffered immediate psych issues, as one might imagine. We have no idea why someone would fight work-related psych care for that shocking event.

In this ruling, the Arbitrator essentially created 2 elements necessary for proving a compensable injury in its review and application of General Motors:

1. A sudden, severe emotional shock
2. Immediately apparent and lasting psychic injury

The Arbitrator found Claimant clearly may have suffered a sudden and severe emotional shock, however the six month delay in treatment failed to appropriately establish an “immediately apparent psychic injury,” as required by IL WC law.

A Petition for Review was timely filed along with a motion to cite authority asking the Commission to take judicial notice of the Appellate Court’s decision in Chicago Transit Authority v. Workers’ Compensation Comm’n, an opinion rendered subsequent to the Arbitrator’s decision however prior to the Commission’s decision.

The Appellate Court, WC Division in Chicago Transit Authority may have ended the absolute necessity that a “immediately apparent psychic injury” be proved. Claimant in Chicago Transit Authority was a bus driver who was involved in a fatal accident. He was able to easily establish a sudden, severe emotional shock, did not seek psychiatric treatment until two months after the alleged incident.

In this claim, the Appellate Court distinguished Chicago Transit Authority from General Motors on the basis of a gradual development of psychic injury in the latter, rather than a single identifiable incident. The Appellate Court in Chicago Transit Authority noted

Under Pathfinder, the emotional shock needs to be “sudden,” not the ensuing psychological injury. Thus, if the claimant shows that she suffered a sudden, severe emotional shock which caused a psychological injury, her claim may be compensable even if the resulting psychological injury did not manifest itself until sometime after the shock. To the extent that General Motors holds otherwise, we reject that aspect of the court's holding and decline to follow it.

The Commission then rendered a decision affirming and adopting the decision of the Arbitrator however provided no comment on the application of the decision in Chicago Transit Authority.

The case was appealed to the Circuit Court which found the Commission’s failure to address the apparent change in case law

1. Allowed for a de novo reviewing of the case and

2. Resulted in an incorrect application of case law to the facts.

The Circuit Court reversed the decision of the Commission and directed the Commission to award benefits. The Commission issued a decision awarding 5% of a person as a whole and 34-5/8 weeks of TTD, refusing to award Claimant wage differential benefits. Claimant and Respondent appealed whereupon the Circuit Court affirmed the decision of the Commission and ultimately resulted in an appeal to the Appellate Court, WC Division.

The Appellate Court answered the question of whether benefits are owed in this instance by stating correctly, “we don’t know.” The Appellate Court pointed to the one judicial body to make the controlling ruling: the Illinois Workers’ Compensation Commission. The Appellate Court found the Circuit Court, in remanding the matter back to the Commission with directions to award benefits improperly supplanted the function of the Commission in finding certain facts to be true. The Appellate Court agreed the Commission’s simple adoption of the Arbitration decision was an improper application of law in failing to address Chicago Transit Authority. However the Appellate Court felt the remand should not have included directions to award benefits. Instead, the Circuit Court should have remanded the issue back to the Commission with instructions to simply address the new case law and come to a conclusion itself.

The question of whether benefits should be awarded to a truck driver who claims to have suffered an unexpected and severe shock but then waits six months to treat for a psychic injury is still unclear. The defense team at KCBA will be watching intently to see if six months is “immediately apparent” enough to warrant an award of benefits.

This article was researched and written by Timothy O’Gorman, JD. Tim is a top-notch defense expert and can be reached at togorman@keefe-law.com.

Synopsis: OSHA Update for WC Industry.

Editor’s comment: As expected under the new Administration, potential regulatory action from OSHA has been cut by more than half, according to the U.S. Department of Labor's updated agenda released July 20, 2017.

The report, typically published twice a year, lists the status of and projected dates for all OSHA regulations. The updated agenda lists 14 OSHA regulations in three different stages – pre-rule, proposed rule and final rule – compared with 30 on the fall 2016 agenda. Overall, 469 proposed federal regulations have been withdrawn and a combined 391 have been reclassified as “long-term” or “inactive” to allow for “further careful review.”

“This agenda represents the beginning of fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burden on the American people. By amending and eliminating regulations that are ineffective, duplicative and obsolete, the administration can promote economic growth and innovation, and protect individual liberty,” the agenda's preamble states.

President Donald Trump signed an Executive Order on Jan. 30 requiring federal agencies to cut two regulations for every new one that is proposed. The White House published a guidance memo three days later clarifying that the Executive Order would apply only to those regulations with a proposed cost of $100 million or more.

The Natural Resources Defense Council, fellow watchdog organization Public Citizen and the Communications Workers of America labor union filed a lawsuit on Feb. 8, claiming the order “directs federal agencies to engage in unlawful actions that will harm countless Americans.”

Only one OSHA regulation, Standards Improvement Project IV, is listed as being in the final rule stage, in part because the Occupational Exposure to Beryllium final rule was moved back to the proposed rule stage on June 27. Under the new administration, OSHA is seeking to remove specific provisions regarding worker exposure in construction and shipyard industries. The final rule on beryllium went into effect May 20. In the interim, OSHA stated it is not enforcing it in the two industries and is seeking comments on its new proposal until today.

President Trump also signed a Congressional Review Act resolution on April 4 to strike down the “Volks” rule, which was published in December 2016. That regulation allowed OSHA to issue citations for inadequate injury and illness recordkeeping for five-and-a-half years instead of the current six-month statute of limitations. In May, five members of Congress introduced the Accurate Workplace Injury and Illness Records Restoration Act, which would reinstitute the “Volks” rule, but that bill remains in committee.

Removed from the regulatory agenda:

·         Blood borne Pathogens

·         Combustible Dust

·         Preventing Backover Injuries and Fatalities

·         Revocation of Obsolete Permissible Exposure Limits (PELs)

·         1-Bromopropane (1-BP) Standard

·         Noise in Construction

·         Occupational Exposure to Styrene

·         Updating Requirements for the Selection, Fit Testing and Use of Hearing Protection Devices

Now listed under “long-term” actions:

·         Update to the Hazard Communication Standard

·         Amendments to the Cranes and Derricks in Construction Standard

·         Process Safety Management and Prevention of Major Chemical Accidents

·         Shipyard Fall Protection – Scaffolds, Ladders and Other Working Surfaces

·         Emergency Response and Preparedness

·         Infectious Disease

·         Tree Care Standard

·         Prevention of Workplace Violence in Health Care and Social Assistance

·         Occupational Injury and Illness Recording and Reporting Requirements – Musculoskeletal Disorders (MSD) Column

·         Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records

“In his first speech as President of the United States, Donald Trump pledged that every decision he made would be to benefit the nation's workers,” Christine Owens, executive director of the National Employment Law Project, said in a July 20 statement. “The administration's Spring Regulatory Agenda reflects yet again just how hollow the president's promise has been.”

Along with the rulemaking on beryllium, proposed rules carried over from fall 2016 or added to the agenda include:

·         Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection

·         Crane Operator Qualification in Construction

·         Cranes and Derricks in Construction: Exemption Expansions for Railroad Roadway Work

·         Technical Corrections to 16 OSHA Standards

·         Puerto Rico State Plan

·         Tracking of Workplace Injuries and Illnesses

·         Improve Tracking of Workplace Injuries and Illnesses

Five regulations remain in the pre-rule stage, a decrease from 16 this past fall: Communication Tower Safety, Mechanical Power Presses Update, Powered Industrial Trucks, Lock-Out/Tag-Out Update, and Blood Lead Level for Medical Removal.

Much of the agency's Walking-Working Surfaces and Personal Fall Protection Systems final rule, issued in November 2016 under the Obama administration, went into effect in January 2017, and three of its six remaining provisions are scheduled to be phased in by the end of this year.

Source: National Safety Council.

If you need help with any matter involving OSHA, send a reply.