12-25-2017; IL WC Commission Holds the Line on Medical Fees by 30%; Happy Holidays!!!

Synopsis: The IL WC Commission Holds the Line on IL WC Medical Fees. Whew!!!

Editor’s comment: I like to think of my work as being a sentinel for you and WC industry on changes in IL WC costs. Last week, I was mildly surprised to see Crain’s Chicago Business report a planned change to the IL WC Medical Fee Schedule. The idea was to vote on a motion to increase the only low-cost fees in the IL WC system to a much higher cost. I have no idea how this expensive change would come up during the holiday season and consider the approach and timing to be mildly sneaky.

The motion was voted down on a 5-4 vote with Democrats/Labor oddly voting to try to get higher reimbursement for wealthy doctors. Not sure how Democrat votes for higher medical reimbursements would help IL labor or less wealthy workers.

Either way, WCRI reported IL WC Medical Fee Schedule costs are higher than most of our sister states. The stat-rat study can be found on the web at:

https://www.wcrinet.org/news/press-releases/medical-payments-per-workers-compensation-claim-grew-about-3-percent-each-y

The Illinois Workers’ Compensation Commission was asked to vote on whether to increase by 30% physician reimbursements for evaluation and management services, a move that could partially undo a cost-cutting measure signed in 2011 by Governor Pat Quinn.

Our State’s IL WC Medical Fee Advisory Board voted 5-3 (with both physician members voting yes) in March 2017 to increase reimbursements for the six most common evaluation and management Current Procedural Terminology or CPT codes. Physicians and their advocacy organizations argued Illinois’ reimbursement rates for those services were somehow ‘limiting’ injured workers' access to care. I consider that a complete hoot!

The IL WC system took that recommendation to the full nine-member IL WC Commission, which met last week in only its third meeting of the year.

Business and insurance groups argue Illinois has among the most expensive WC medical costs in the U.S. The same industry reps confirmed the IL WC Medical Fee Schedule Advisory Board presented no empirical or statistical evidence to back up these unusual claims of diminished access to work-related medical care.

I was reminded of the Hawai’i WC system where their State cut the medical fee schedule so much docs and hospital started turning away WC patients and sending them to WC “mills” where treatment stunk. No one has reported that issue/problem to me.

As you read this, Illinois is tied with Oklahoma for the seventh-highest WC premiums in the country, according to the national rate ranking summary published by the State of Oregon Department of Consumer and Business Services. But NCCI or the National Council on Compensation Insurance confirmed Illinois’ cumulative voluntary rate level has dropped 36.5% since House Bill 1698 was signed by then-Gov. Pat Quinn and enacted on Sept. 1, 2011. The crux of the bill was a provision that reduced IL WC medical fee payments across the board by 30%.

The proposal before the IL WC Commission last week would cost IL employers “tens and tens of millions of dollars,” said Mark Denzler, vice president and chief operating officer of the Illinois Manufacturers’ Association. “They’re trying to give an early Christmas present to the medical community and trying to give the business community a lump of coal in their stocking,” Denzler said.

By IL law, the IL Workers’ Compensation Commission is empowered to make changes to the medical fee schedule only if there is a proven lack of access to quality medical care, said Steve Schneider, Midwest region vice president for the American Insurance Association. He pointed to the October study by the Workers Compensation Research Institute that showed for 2013 claims, Illinois’ average payment per claim with more than seven days of lost time was 24% higher than the median study state and 28% higher for the same claims in 2015. The same study showed fees for evaluation and management services (office visits) were among the lowest of 44 states with fee schedules, at only 3% above Medicare. Overall, Illinois’ costs for professional services were 74% above Medicare, the WCRI study said.

“Medical costs for workers’ compensation care in Illinois on average are far more than in most other states. This seems to be the wrong move at the wrong time,” Schneider wisely said.

The IL WC Medical Fee Advisory Board’s proposal would increase reimbursements for CPT codes 99203, 99204, 99205, 99213, 99214 and 99215 across four geographic areas. What follows is a breakdown of each code, how much on average it would increase under the IL WC Advisory board’s proposal, and a comparison with other states offered by the Illinois State Medical Society and Illinois Health and Hospital Association in a Nov. 28 letter to the IL WC Commission. They said the numbers came from WCRI.

§  99203 is for office visits by new patients with conditions of low severity. The average reimbursement for this code in Illinois is $115.35, compared with $164 in Iowa, $162 in Indiana and $240 in Wisconsin. A 30% increase in 99203 reimbursements would be an average of $149.96 in Illinois.

§  99204 is for office visits by new patients with conditions of moderate complexity. The average reimbursement for this code in Illinois is currently $174.96, compared with $256 in Iowa, $257 in Indiana and $379 in Wisconsin. A 30% increase in 99204 reimbursements would be an average of $227.45 in Illinois.

§  99205 is for office visits by new patients with conditions of high complexity. The average reimbursement for this code in Illinois is currently $215.63, compared with $313 in Iowa, $293 in Indiana and $425 in Wisconsin. A 30% increase in 99205 reimbursements would be an average of $280.32 in Illinois.

§  99213 is for office visits by current patients with conditions of low severity. The average reimbursement for this code in Illinois is $75.15, compared with $104 in Iowa, $103 in Indiana and $157 in Wisconsin. A 30% increase in 99213 reimbursements would be an average of $97.70 in Illinois.

§  99214 is for office visits by current patients with conditions of moderate complexity. The average reimbursement for this code in Illinois is currently $110.95, compared with $159 in Iowa, $158 in Indiana and $243 in Wisconsin. A 30% increase in 99214 reimbursements would be an average of $144.24 in Illinois.

§  99215 is for office visits by current patients with conditions of high complexity. The average reimbursement for this code in Illinois is currently $151.39, compared with $209 in Iowa, $221 in Indiana and $330 in Wisconsin. A 30% increase in 99215 reimbursements would be an average of $196.81 in Illinois.

“Basically this is about access to injured workers to get them the care they need,” said Danny Chun, vice president of corporate communications and marketing for the Illinois Health and Hospital Association. “We believe the evaluation and management rates are low, and even low compared to surrounding states.”

The IL WC Commission increased maximum reimbursement for 20 CPT codes in 2014, but at that time there was little objection by payers. The increases ranged from 5.7% to 28.8% and impacted CPTs dealing with outpatient visits, initial hospital care, home health services and hospital discharges. 

Of the nine IL WC Commissioners, all either appointed or reappointed by current Republican Gov. Bruce Rauner, three each represent employees, employers and the public. Commission Chairwoman Joann M. Fratianni would have voted in the event of a tie.

The meeting agenda is here. The minutes from the June 15 commission meeting are here. The Illinois Manufacturers’ Association letter dated Dec. 12 to Commissioner Kevin Lamborn is here.

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

12-18-2017; Understanding Workers' Comp Exclusivity and Nuances; Why We Send "Unreps" to Clients, Potential Clients and You, If You Want; HAPPY HOLIDAYS TO ALL!!! and more

Synopsis: Understanding Workers’ Comp Exclusivity and Nuances.

Editor’s comment: All sides in a workers’ comp claim have to have a sense of the rights and responsibilities of the parties to an injured or ill workers’ claim. One confusing aspect of the workers’ comp system is the employee can sometimes “choose” to make it a workers’ comp claim but the worker can just as easily abandon or “evade” the no-fault benefit system and seek benefits/recoveries in other places.

Why would someone avoid/abandon a work injury? It happens all the time—someone makes a mistake and gets hurt and work, treats and goes back to work. They don’t want to trouble with the system and that is their right to avoid the stress.

The other aspect of rights/responsibilities is some workers will become injured and then want to cash in on the “poor person’s lottery” that some common law verdicts now seem to be moving toward. We compare serious paralyzing and tragic injuries to two people that went to a jury verdicts this year. One was a paralyzed construction worker whose common law claim was handled by one of the top Plaintiff firms in Illinois—their work in the common law courts resulted in a reasonable verdict of $64M dollars. The other was a young woman struck by what I call a falling “gazebo” by O’Hare Airport who got a shocking verdict of $148M from the City of Chicago! That is so much money, we assume Mayor Rahm Emanuel and the City Council will have to raise our taxes if this astounding nine-figure verdict isn’t reduced on appeal. I was told but am not sure the City’s defense firm stipulated to liability for reasons no one could understand.

From those verdicts, one could see why someone would file both a WC claim and a GL claim for a worker with serious injuries.

So preliminary questions any claim handler has to routinely consider:

·        Is this a workers’ comp claim?

·        Can the worker bring a common law claim against the employer?

·        Can the worker bring a common law claim against any other entity causing injury?

These basic questions are often overlooked. The assumption is that, if an Illinois workers’ compensation claim is filed, the case involves a loss that should be compensated under Illinois workers’ compensation law. However, in order to recover benefits under workers’ compensation law, the activities must be covered by the IL WC Act and not under any other benefit provision in a different system that may be considered exclusive. 

For example, if an Illinois employee is working to maintain a watercraft when injured and the vessel is on a navigable waterway, such injuries would be covered by the exclusive provisions of the federal Longshore Harbor and Workers’ Compensation Act, administered by the OWCP. Such injuries would not be appropriately covered by the relative State’s Workers’ Compensation Act, even though the employee was hired by and working for a local employer. U.S. Postal workers are also covered by a similar federal-only WC Act. There are similar laws that have exclusive coverage to eliminate jurisdiction of the state WC body to hear the claim.

Another aspect of the WC system coverage question is when the employee can bring a workers’ compensation claim against an employer and when the employee can also sue the employer for the same injuries in civil court. This concept is a possibility but under very limited circumstances.

What Is Third Party Liability?

Third-party liability refers to insurance that protects the insured from legal liability claims presented by “third” parties. This means payment is usually not made to the insured, but rather to someone suffering loss who is not a party to the insurance contract. Compensation throughout the industrialized world is the injured employee gave up his/her right to bring a common law action against the employer in exchange for workers’ compensation benefits that are more certain and more rapidly provided but potentially lower than what a jury might be able to provide for a similarly severe injury. 

There have been a number of strange and complex legal devices that have allowed Illinois employees to maintain common law claims against third parties that might require the employer to pay a part of a jury verdict, but the general rule is supposed to be the employee cannot sue the employer at common law if he/she is entitled to workers’ compensation benefits. This rule applies even if the worker doesn’t seek WC benefits or abandons/avoids the WC system.

One clear exception to this concept is when an employer commits an intentional act or hires another to commit an intentional act to injure an employee. For example, if the employer were to hire a ruffian to injure/attack an employee due to a work-related dispute, the employee could seek workers’ compensation benefits and also sue the employer for the injuries suffered in the intentional attack.

In specialized circumstances, the employer and its carrier/TPA may have an ‘option’ with regard to payment of benefits under either workers’ compensation or general liability. For example, if an employer has an employee become injured as a result of slipping on ice and snow while working on company property, it is possible that you might successfully deny the claim for workers’ compensation benefits only to then face a premises liability or other general liability lawsuit which is possibly much more expensive to defend and potentially explosive due to the unpredictability of jury awards. 

The employer can ‘opt’ not to fight the workers’ compensation claim and voluntarily pay workers’ compensation benefits which should block any third party claim against the employer if the employee knowingly accepts such benefits.

Recent Ruling of Note on Exclusivity in Workers’ Comp

In Peng v. Nardi, issued December, 14, 2017, our Illinois Appellate Court ruled a worker could not proceed with her lawsuit against a coworker for injuries in a car accident that occurred while the co-worker was driving her to work in a van owned by their employer.

Claimant Peng and a co-worker named Lei Guan worked for a restaurant. The restaurant was in Hoffman Estates, a community northwest of Chicago. Claimant Peng and Guan both lived on the south side of Chicago, as did a number of other employees.

The restaurant owned and gave co-worker Guan the keys to a 15-seat Ford E350 passenger van to transport himself and other workers to and from the restaurant. The company paid Guan $600 a month for his driving duties and covered the cost of fuel. Guan wasn’t allowed to use the vehicle for personal errands, and he was not allowed to let anyone else drive. The restaurant initially told Guan where to pick up new employees, but he later chose the pick-up and drop-off points on his own. Guan also chose the specific route to take to and from work, based on the vagaries of Chicago-area traffic.

Claimant Peng was a passenger in the van in June 2014 when the van collided with another vehicle on Interstate 90. The car had been struck a van being driven by another individual. Claimant Peng suffered an injury to her hip in the crash. Doctors originally diagnosed Peng with a muscle injury but later determined she had a pelvic fracture.

Claimant Peng filed an IL WC claim currently pending and assigned to one of our State’s more venerable Arbitrators, George Andros.

At the same time, Claimant Peng also filed a negligence suit against co-worker Guan and the other two drivers of separate vehicles, seeking damages for her injury in the MVA. A trial judge granted Guan’s attorney’s motion to dismiss Peng’s claims against him, finding Guan was immune from civil liability to a coworker under the Illinois Workers’ Compensation Act.

On appeal, the Illinois Appellate Court explained an employee injured on the job normally cannot sue the employer if they receive worker’s compensation benefits, and an employee acting in the course of his employment who accidentally injures a colleague is also immune from a common law negligence action because of the WC Act’s underlying policy outlining the costs of work accidents be placed on that industry and not insurance or assets of co-workers.

The Court ruled accidents occurring while an employee is traveling to or from work generally are not treated as occurring within the course of the worker’s employment, although there is an exception when the employer has provided a means of transportation or “controls” the method of the worker’s travel.

The ruling also indicates Claimant Peng was not compensated for her commute time and was not required to use the restaurant vanpool to get to and from work. However, she relinquished control over the conditions of transportation when she climbed into a vehicle owned by her employer and driven by her co-employee under the employer’s selection/direction. Accordingly, the Court concluded the accident occurred while Claimant Peng was in the course of her employment, and the workers’ compensation system provided her exclusive remedy against Guan.

Please also note when your company provides transportation and/or company vehicles to facilitate workers getting to and from work, you may be expanding work comp coverage for accidents/injuries occurring during trips that might otherwise not be covered.

To read the decision, click here Ping v. Nardi We appreciate your thoughts and comments. Please post them on our award-winning website.

Synopsis: Why the Defense Team at KCB&A Provides Free Emails Confirming We Saw an “Unrep.”

Editor’s comment: For our clients and potential clients, our KCB&A defense team scours the WC call sheets to check and see if your company or insured has a pending claim that you might not be aware of. If you would like, we can add you to the list of companies we watch out for—simply send a reply.

If we see a WC claim without defense, we send a very brief email indicating it is on the call and/or set for hearing. We quickly advise don’t see a defense attorney assigned. You don’t have to reply to such emails if you are covered.

It is possible you have relayed the claim to an attorney for defense—if their appearance isn’t on file, we assure you they won’t get IWCC notices or decisions. That isn’t a great idea and you might want to let them know to contact the IWCC information desk and get the situation remedied.

We also know some claims handlers will hold off on assigning files to defense to see if they can rapidly settle and save that cost of counsel. That isn’t a problem for us with the single caveat—if a matter is set for trial and a trial begins, even if we are hired and quickly join in defending the claim, there is a chance the Arbitrator won’t allow further defense evidence, consistent with IL case law. We don’t suggest claims handlers play a game of WC “chicken” to see how long you can wait before sending a claim to counsel.

Please also remember another service the defense team at KCB&A provides—we fight to get your claims closed. Sometimes we feel adjusters may hold claims for months and years, as claimants’ counsels may not be aggressive in moving the file. We don’t feel you should rely on claimant’s counsel to take months and years to get around to closing files. This also may be counterproductive and result in reserves sitting.

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

12-11-2017; Gov. Rauner's "Turnaround" Is Happening In IL WC; "Disabled" IL Police Officer Morphs Into TSA Screener; Gene Keefe on Loss of Trade Awards/Reserves and more

Synopsis: Governor Rauner’s Illinois Workers’ Compensation “Turnaround” is Happening and Few Know It.

Editor’s comment: Governor Bruce Rauner came into Springfield as a veteran and successful businessperson but a newbie Governor. Our newly sworn-in Governor had a group of action items he wanted to implement to improve Illinois’ government and overall situation,  particularly in the interest of jobs and business. One headline item in his “Turnaround Agenda” was workers’ compensation reform. At the time of his election, the only national scale of any value was the every-other-year State of Oregon WC Premium Rankings that had Illinois as the seventh highest or most expensive state of the U.S. for workers’ comp insurance premiums.

At the time and even now, I don’t feel Governor Rauner got great political advice on how to cut workers’ comp costs for your bosses and mine. His goal was to enact/bargain/force what he felt were significant legislative reforms his advisors had to feel would cut workers’ comp costs. As I said then and continue to assure my readers, several of the legislative proposals could have inadvertently expanded coverage of the IL WC Act and increased IL WC costs! Governor Rauner’s WC legislative “reform” proposals were met with a lot of “crazy-making” from the other side that proposed creating a tiny IL WC mutual insurance company to supposedly demonstrate all major U.S. workers’ comp insurers were somehow magically manipulating “profits” in only our State to somehow keep IL WC premiums artificially high. I pointed out the State is comically broke and to take money from the IWCC would cripple that administrative agency. The gurus at the IL State Chamber of Commerce and other commentators repeatedly confirmed crooked/corrupt/bumbling IL State government has no idea how to run a successful private competitive company. They forecast financial doom for this silly effort.

That said, we assure you progress is underfoot for the IL WC system. As always, I closely watch IWCC decisions and reviewing court rulings. Here are three recent rulings of note to all Illinois claims/risk/gov’t and insurance folks.

1.    In Taylor v. IWCC (Mt. Vernon Police Dep’t, Appellant), we saw an IL WC claim by a Sheriff’s candidate in which he claimed to have injured his knee restraining/roping in a 15 year old juvenile. The main problem with the claim is Officer Taylor appears to have “forgotten” to immediately mention or document the claimed knee work injury, first claiming this story about a month after the occurrence. The IL WC Arbitrator awarded benefits but the IL WC Commission reversed, denying the claim. The local Circuit Court reinstated the Arbitrator’s award but the unanimous Appellate Court, WC Division reversed and closely followed Illinois WC law to confirm the facts, as found the IWCC panel is controlling.

This came to light when the City of Mt. Vernon sued the Jefferson County Sheriff’s candidate for misrepresenting this knee injury. They confirmed their claims handler innocently paid and Claimant improperly received $7,043 in worker’s compensation benefits to which he allegedly was not entitled. The City recently filed a lawsuit against Taylor in small claims court to recover the $7,043.26 it paid him.

2.    Second, I recently saw an IWCC ruling in Hansen v. Prairie Material. In this claim, a billing analyst and co-worker finished a task and they “high-fived” each other. Claimant asserted her hand was seriously injured in the process and she suffered from complex regional pain syndrome. The Arbitrator and IWCC ruled her job didn’t include “high-fiving” co-workers and she either voluntarily increased the risk of injury or was engaged in horse-play.

3.    Third, Nathan Bernard of KCB&A, one of our top young defense attorneys, recently received another important ruling where Claimant decided for reasons known only to him that it was a good idea to jump off a platform, rather than safely walk down the staircase provided. When Claimant landed, he broke his foot. The Arbitrator and IWCC panel found Claimant unnecessarily and dramatically increased the risk of injury and denied benefits. This claim hasn’t gone final so I am not reporting the names of the parties and have no intention to impact any later appeal, if one might be filed. The point is we salute the IWCC and Arbitrator for their strong views on such challenging claims.

Another point I am making is the current IWCC is doing an amazing job of reining in Illinois WC costs. I am sure the numbers are slow to appear but should be significant when the next State of Oregon survey of U.S. WC Premium costs takes place next fall. It is my hope Illinois businesses and local governments benefit from the IWCC’s hard work. And if you support lower workers’ comp costs and want more jobs in this nutty State, align behind Governor Bruce Rauner. I will continue to watch and report the rulings I feel support or rebut my thoughts on lower WC costs/premiums.

Please, please send me any IL WC ruling you feel is consistent or runs against the new trend. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: More IL Gov’t Dysfunction—“Disabled” Police Officer Gets Questionable Line-of-Duty Gov’t Pension While Now an Active TSA Officer.

Editor’s comment: Last week, I reported on Martin v. Board of Trustees of the Police Pension Fund of the Village of Shiloh, where, a police officer for the Village of Shiloh, IL was on duty and sitting as a passenger in an unmarked car when it was struck from behind by another vehicle. The IL Appellate Court ruled this officer was subject to all the risks of his job and getting hit while simply sitting in a car was an “increased risk.” The former officer became “disabled” due to Illinois’ odd rule that he gets an increased pension to police and firefighters if they are injured “in the line of duty,” versus a non-line-of-duty pension.

In addition to the lifetime line-of-duty disability check, Claimant Martin filed a work comp claim and received a tidy, tax-free settlement from the Village of $121,761.50 for 35% BAW. To me, this means he not only gets paid a generous gov’t pension the rest of his life, our local governments also provide a “going-away” present in the six-figure range.

My article was re-published in the Metro East press/media. I got a voicemail message from one of the City fathers of the Village of Shiloh to let me know they are considering further appeals. One concern is former police officer Martin is now a TSA Officer working at what I believe is the MidAmerica Airport in St. Clair County, IL. From my research, on top of his lifetime pension, he is now probably making something in the range of $40K a year plus federal healthcare and other benefits. Everything TSA Officer Martin is doing is completely legal but, in my mind, controversial.

What many Illinoisans may not understand is an Illinois police officer or firefighter is considered “catastrophically disabled” by our Illinois courts, not due to any significant real “disability” or injury. They don’t have to demonstrate the “catastrophe” is an inability to work at any job for the rest of their lives. They only have to demonstrate they can’t work as a police officer or firefighter. I am aware of supposedly disabled police and firefighters across this State who return to regular work and “double-dip” to get lucrative pensions while also working as business owners, bartenders and construction superintendents. Many of them move away from their former homes out of our State to avoid people seeing them working while supposedly “disabled.”

What drives me nuts about that disability pension “rule” is the misimpression all police officers are routinely engaged in running down bad guys/gals and busting down doors. I always smile/giggle when I enter any police department across this State to see numerous uniformed officers involved in sedentary and light work, answering phones/radios and handling paperwork. At your local school, there are SRO’s or School Resource Officers who provide a police presence for the kids, teachers and public to see. Thousands of such sedentary and light jobs are continuously staffed across this State. Many SRO’s are retired police officers!

I am certain we will never see this concept “reformed” in this State due to the strength, funding and political power of the IL Police and Fire Unions. At some future time, it is my hope the federal government will follow the concepts of ADA and require injured police and firefighters be taken off the pensions and required to perform sedentary and light jobs to give taxpayers some value for our dollars.

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

Synopsis: Quick Thoughts From Gene Keefe on IL WC “Loss of Trade” Claims/Awards.

Editor’s comment: Last week, a claims handler asked how to “define” or make sense of handling/reserving “loss of trade” claims, like the one former Officer Martin might have received, as I report above.

The statutory basis for IL WC “loss of trade” claims was cited by our Appellate Court, WC Division in a Rule 23 or “non-published” ruling:

Section 8(d)(2) of the Act provides, in relevant part, that the employee may be compensated after sustaining serious and permanent injuries "if such injuries partially incapacitate him from pursuing the duties of his usual and customary line of employment but do not result in an impairment of earning capacity" at a rate of the percentage of 500 weeks that the partial disability bears to total disability. 820 ILCS 305/8(d)(2) (West 2004). The extent or permanency of a claimant's disability is a question of fact to be determined by the Commission, and its decision will not be set aside unless it is contrary to the manifest weight of the evidence. Roper Contracting v. Industrial Comm'n, 349 Ill. App. 3d 500, 506-07, 812 N.E.2d 65 (2004). For a finding of fact to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App. 3d 288, 291, 591 N.E.2d 894 (1992). Put another way, the Commission's determination on a question of fact is against the manifest weight of the evidence when no rational trier of fact could have agreed. Dolce v. Industrial Comm'n, 286 Ill. App. 3d 117, 120, 675 N.E.2d 175 (1996).

In my view, that is the only provision in the IL WC Act and Rules that justifies an award of “permanent disability” for someone who changes jobs after an accident but might make more money in the new job or jobs after recovery.

That said, I have seen awards/settlements for cops and police officers as high as 80% BAW. One former IL WC Arbitrator, back in the day, wrote a colorful award for a firefighter with a high loss of trade award the hearing officer felt justified because that hearing officer loved giving away lots of local gov’t money.

Please remember/note IL cops and firefighters who can’t return to work as cops and firefighters are blocked by the IL Pension Code from wage loss and T&P awards if they are awarded line-of-duty disability pensions. All of them turn to “loss of trade” or loss of occupation to assert big IL WC claims for six-figure permanency as a going-away reward when they are mustered off the force and put on a line-of-duty pension.

My main issue for everyone to remember—I can’t imagine any specific reason/measure one person might get an award of 20% BAW for loss of trade versus an award four times higher or 80% BAW. The concept of loss of trade can’t be measured by any independent or reproducible means. In my reasoned legal view the level of PPD for a “loss of trade” claim is random and sporadic. Politics could also come into play, in the wrong claim.

If you were to point to post-recovery wage loss as the basis for high/low BAW for “loss of trade,” my answer is you are then pointing to the wrong provision in the IL WC Act—The Act specifically covers wage loss for better or for worse and the “loss of trade” concept shouldn’t take its place.

In short, reserve high and try to settle low. If you go to hearing, assume you are looking at a turkey shoot where you might bag a big one or a skinny one.

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