5-28-2018; Illinois WC Required Forms and Notices; Top Ten Things everyone should know about Illinois Work Comp Law and Claims Practice and more

Synopsis: Illinois Work Comp Required Forms and Notices That You Need to Use.

Editor’s comment: I recommend all IL employers print and post the following notices, both in English and Spanish in a conspicuous location frequented by employees such as the break room, lunch room or time clock. If you have multiple business locations be sure to post the notices at each location.

·        Workers’ Compensation Insurance Notice  (English and Spanish).

·        Anti-WC Fraud Notice (English and Spanish).

I also recommend all IL employers/carriers, print and review the following forms and information:

·         IC45 First Report of Injury (FROI). Section 6(b) of the Workers’ Compensation Act requires that employers or insurers acting on your behalf send paper or electronic reports to the Illinois Workers’ Compensation Commission on all covered accidents involving more than three lost work days. 
 
As soon as you have been notified of a work-related injury or illness, fill out this form and submit it to the Illinois Workers’ Compensation Commission and your carrier. This form must be completed within five days from notice of an accident.

Workplace Fatalities must be reported within two days of the death. The Illinois Workers’ Compensation Commission also accepts the International Association of Industrial Accident Boards and Commissions (IAIABC) first report of injury form: IA-1 IAIABC W.C. First Report of Injury.

·         IC85 Employers Supplementary of Injury (FROI). This is a supplemental form you can ignore. The Illinois Workers’ Compensation Commission does monitor filing of the form IC45). To my understanding, they don’t monitor compliance with filing of this form. If that should change, we will advise.

·         IL WC PPP Form or PPP Preferred Provider Program Mandatory Notice (6/13) [Word]. If you have an IL WC PPP, you need to use this notice. I am happy to consult at no charge if you need it for starting a WC PPP for this State. All you will do by starting one is save a LOT of money.

·         Use and implement an Incident/Accident Investigation Form—If you need one or aren’t comfortable with yours, send a reply. Don’t use the IC45 (the IL WC State Form) as your incident/accident investigation form—it doesn’t work well. Our basic incident/accident form is completed by employee and the employee’s supervisor/manager as soon after the accident as possible. Once completed, please send the report to your carrier and save a copy to your file.

·         HIPAA/GINA Compliant Medical Release—every employer in the U.S. should have a HIPAA/GINA Compliant Release and ask your employee sign it when they report any workplace accident or disease. By doing so, you will have open and crucial access to medical records and bills. I can send you a free copy of our release—just send a reply.

In addition to providing workers’ compensation benefits, Illinois employers are obligated to:

·        Post a notice in each workplace explaining workers’ compensation rights and providing the name, policy number, and contact information of the employer’s insurance carrier. If you need this notice, send a reply.

·        Maintain records of work-related injuries and report injuries involving more than 3 lost work days to the IWCC.

·        Refrain from harassing, discharging, refusing to rehire or in any way discriminating against an employee who exercises his or her rights under the law. This follows the IL Supreme Court ruling in Kelsay v. Motorola.

·        Refrain from charging employees for any part of the workers’ compensation insurance premiums or benefits.

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

Synopsis: Top Ten Things everyone should know about Illinois Work Comp Law and Claims Practice.

Editor’s comment: I consider this some critical common sense thoughts about the WC Legal Battlefield in which we are all deployed.

1.      It’s a no fault law. Unless your injured worker is drunk or reckless (e.g. the worker jumps off a roof for fun instead of using an employer-provided ladder), their fault doesn’t matter if you get hurt at work.  The employee doesn’t have to prove the company was negligent and the employer isn’t off the hook if the worker is careless.

2.      IL WC Plaintiff/Petitioner Lawyer fees are 20% and don’t exceed that amount without special and truly extraordinary circumstances.

3.      100% of reasonable, necessary and related medical bills should be paid for any treatment directly related to an accepted and related job injury or disease.  IL WC has no co-pays, no out of pocket medical expenses or other costs.

4.      Without a signed HIPAA-GINA compliant release, an WC insurance company and the employer may not talk directly to the injured worker’s doctor. Again, without a signed HIPAA-GINA compliant release, employer/insurance carrier reps should not be in WC medical appointments. This includes any nurse case managers. If you want my form, send a reply. Happy to analyze any questions and concerns about this with all you curious medical care managers.

5.      You can and should tell your injured workers, any lawyer who tells them what their case is “worth” right after they’ve been hurt is probably full of it and telling them that just to try and get them to sign up. There is no accurate way to tell an injured worker for certain what the case is worth until they are finished with medical care and at maximum medical improvement and back to work.

6.      The value of any WC case is determined in part based on the severity of the injury, how it will affect the worker in the future, the medical care they have, how much money they were earning when hurt, their age, the job they can return to, whether or not they have any permanent work restrictions and the need for future medical care.

7.      Work comp isn’t truly a “law suit.” Workers’ compensation cases in Illinois are not lawsuits, but instead are claims for benefits like any other insurance claim. There is no Judge or lawsuit—everything is determined by a state agency, not a judge in a courtroom.

8.      Any IL employer can drug test an injured worker after an accident.  If they test positive it creates a “rebuttable presumption” that the drugs caused the accident. The worker can overcome this presumption based on the facts of how they got injured, medical records and witness testimony.

9.      Any injured worker needs to provide notice to their employer within 45 days of when they knew or should have known their injury or disease was work related.

10. An injured worker can switch attorneys if the first one isn’t doing the job and it won’t cost the worker anything. Lots of case law confirms Plaintiff/Petitioner lawyer fees can’t exceed 20%. The new firm and old firm will have to work it out to split the 20% or the Arbitrator will decide.

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

5-21-2018; Holy Subro! IL Appellate Court Rules IL WC Lien Recovery is Absolute!; Illinois Hospitals Now Have to Search All Patients for Weapons, analysis by John Karis and more

Synopsis: Holy Subro! IL Appellate Court Rules IL WC Lien Recovery is Absolute! This Ruling is Required Reading for All IL WC Insurance Subro Departments.

Editor’s comment: Throughout my legal career, I faced circuit court judges who fought to cut and cut IL WC lien recovery. The judges usually treat workers’ comp payments as being “insurance” and therefore have little value when trying to get a self-insured employer or insurance carrier their money back, regardless of the statutory imprimatur. The judges always feel and would argue insurance companies don’t need their money back, as they were paid premiums and could therefore afford the “loss.”

Now, in a very recent ruling In re Estate of Rexroad, 2018 IL App (5th) 170342 (issued May 15, 2018), the IL Appellate Court, in the most liberal District in this state, ruled a workers' compensation lien, pursuant to Section 5(b) of the Workers' Compensation Act, cannot be subject to reduction or elimination due to

·        Conduct on the part of the insurer in its handling of the workers' compensation claim itself,

·        Or in its cooperation with an investigation of 3rd-party causes of the injury, or

·        In its negotiations with the employee as to satisfaction of its lien.

Under Section 5(b) of the IL WC Act, they found an employer's right to reimbursement of full amount of benefits paid or to be paid to worker is absolute. They further found there was no basis in Illinois law to hold that alleged conduct on part of lienholder (workers' compensation insurer of employer) outweighs absolute right that it has to reimbursement of its IL WC lien.

In this claim, the worker sadly was killed. His widow applied for and is receiving IL WC death benefits. The claim is still pending on arbitration.

The third party claim was pending in Indiana. An action appears to have been started to adjudicate the WC lien to end or otherwise be blocked from enforcement, despite the continuing payment of death benefits. On October 26, 2016, the Estate filed a motion to adjudicate the workers’ compensation lien, in which it requested the remainder of the employer’s workers’ compensation lien be stricken in its entirety. The Estate argued the employer was not entitled to the remainder of its lien due to the following allegations of wrongdoing on the part of the employer:

(1)   Direct communications with the family of Decedent despite knowing the Estate was represented by counsel;

(2)   Obstructing the Estate’s counsel in investigating the wrongful death action by prohibiting the Estate from interviewing its employees, refusing to produce the truck and trailer the decedent was driving for inspection, and providing its inaccurate “alive and well” investigative reports to the defense;

(3)   Supposedly failing to pay Decedent’s widow the full amount of workers’ compensation benefits owed;

(4)   Demanding a distribution toward its lien from the interim settlement;

(5)   Objecting to an unspecified amount of court costs claimed by the Estate as required to effect a settlement of the remainder of the Indiana action; and

(6)   Seeking to recalculate its pro rata share of costs in light of the settlement of the remainder of the Indiana action, which the Estate characterized as a “reneg” of its prior agreement to pay its share of costs at the time of the interim settlement.

After complete briefing was filed by both sides, the Circuit Court struck the workers’ comp lien in its entirety. The appeal followed.

The IL Appellate Court unanimously ruled:

According to this plain language of section 5(b), an employer’s right to reimbursement of the full amount of benefits paid or to be paid to the injured or deceased worker is absolute. This is because the workers’ compensation lien is a crucial foundation of workers’ compensation law in Illinois. See, e.g., Taylor v. Pekin Insurance Co., 231 Ill. 2d 390, 397 (2008); Harder v. Kelly, 369 Ill. App. 3d 937, 942 (2007). This important public policy, that an employer, even if it is not negligent, should compensate the employee for an injury incurred on the job, is predicated upon there being no other recovery available. Denius v. Robertson, 98 Ill. App. 3d 83, 87 (1981). However, when recovery is obtained from the parties actually responsible for the employee’s injury, fairness and justice require that the employer be reimbursed for the workers’ compensation benefits he has paid or will pay. Id. There is no basis under Illinois law to hold that the alleged conduct on the part of [the employer], even if true, outweighs the absolute right, pursuant to statute, that [employer] has to reimbursement of its lien and the public policy underlying that right.

I assure all my readers on both sides the language in the paragraph above should be required reading and part of any IL WC law school course on the issue of subrogation recovery of IL WC liens. If a motion is made attacking an IL WC lien, this most recent ruling is crystal clear—our IL WC Act provides no discretion in cutting or evading WC lien recovery. Click on the link above if you want to read the Appellate ruling.

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

Synopsis: Illinois Hospitals Now Have to Search All Patients for Weapons. Analysis by John Karis, J.D.

Editor’s Comment: The IL Appellate Court finds it was reasonably foreseeable to find liability upon a hospital if it did not search patient before being admitted, as the patient or others might be harmed. On May 14, 2018, the Appellate Court of Illinois ruled for viability of a wrongful death action, alleging Defendant hospital was arguably negligent in not searching Decedent for weapons on day of his admission was sufficiently established. The Court ruled a hospital owed decedent a duty to protect him from harming himself or someone else.

In the case of Coleman v. Provena Hospitals, a patient named Russell was admitted to defendant, Provena Hospital, doing business as Provena Mercy Medical Center. The day after patient Russell was admitted, a nurse discovered he had a gun. It appears police were called. Shortly thereafter, during a confrontation with the Aurora Police Department, Russell was shot to death. Plaintiff Coleman, Russell’s sister and the administrator of his estate, filed a wrongful-death action against Defendant, alleging it was negligent in not searching Russell for weapons on the day he was admitted. The Circuit Court of Kane County subsequently granted Defendant’s motion for summary judgment, finding Plaintiff could not establish Defendant had proximately caused Russell’s death, because there was no evidence Russell had a gun when he was admitted. The matter was appealed to the IL Appellate Court.

On appeal, Plaintiff argued the trial court erred in granting the defendant’s motion for summary judgment, because a question of fact remained as to whether the gun would have been recovered had a proper search been conducted. In response, Defendant maintained summary judgment in its favor was proper because, not only did its actions not proximately cause Russell’s death, it owed no duty to Russell to protect him from his own criminal acts. Defendant Hospital further argued summary judgment was proper because Plaintiff cannot recover any damages based on Russell’s criminal acts

In order to succeed in a negligence action, Plaintiff must prove three elements:

(1) Defendant owed a duty of care;

(2) Defendant breached that duty;

(3) Plaintiff’s resulting injury was proximately caused by the breach.

Whether Defendant owed a duty to Plaintiff is a question of law, to be decided by the court. Whether Defendant breached its duty and whether the breach was the proximate cause of the injury are factual questions, for a jury to decide, as long as there is a genuine issue of material fact about breach and causation.

A court will find a duty where a plaintiff and a defendant stand in such a relationship to one another that the law imposes upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. The “relationship” referred to in this context acts as a shorthand description for the sum of four factors:

(1) the reasonable foreseeability of the injury;

(2) the likelihood of the injury;

(3) the magnitude of the burden of guarding against the injury;

(4) the consequences of placing that burden on the defendant.

The Appellate Court noted it has long been recognized, hospitals are under a duty to exercise reasonable care to protect their patrons from harm. In their pleadings, Defendant insisted it owed no legal duty to Russell, because the harm that befell him was not reasonably foreseeable. Defendant maintained it was not foreseeable that a patient would engage in a series of bizarre acts that would ultimately result in his being shot and killed by police officers. The Appellate Court noted Defendant’s argument was undermined by its policy to search people going into its behavioral health unit. The apparent purpose of this policy is to prevent patients who are possibly mentally ill from harming themselves or others. Based on the existence of this policy, it was reasonably foreseeable someone would be injured if the policy were not adhered to. Plaintiff asserted there was no reason why the policy should not exist throughout the hospital. Therefore the court found allegations of their complaint sufficiently established Defendant owed the patient a duty to protect him from harming himself or someone else.

It is hard to wrap your head around this ruling as common sense would say the hospital owed no duty for someone who engaged in criminal acts. It is unclear what the result of this matter will as it is in the early stages of litigation. However the one take-away from the court ruling is that hospitals owe a duty to their patients to prevent them from harm.  Included in these duties is to search patients for anything that could harm them or others. From this ruling, we feel IL hospitals now have to search any patient regardless of whether they have a mental condition for weapons.

This article was researched and written by John Karis, JD. You can reach John 24/7/365 for questions about general liability, employment law and workers’ compensation at jkaris@keefe-law.com.

Synopsis: Marge (Keefe) Madden Kottcamp, Rest in Peace.

Editor’s comment: My Dear Aunt Marge passed away this past weekend. She was three weeks shy of her 95th birthday. She was an inspiration to me for always being healthy and athletic, well into her 90’s. Marge had 12 children and about one zillion grandkids and great-grandkids.

If you are someone who says prayers, please say a prayer for the passing of this wonderful person. There will always be a twinkle at the end of every rainbow when I think of her.

5-15-2018; IL State And Chicago Governments Continue Their Inescapable Plummet to The Bottom of the Financial Ocean; E-Notice Announcement from the IL WC Commission and more

Synopsis: IL State And Chicago Governments Continue Their Inescapable Plummet to The Bottom of the Financial Ocean. When Are You Moving?

Editor’s comment: While this article isn’t necessarily about workers’ comp, the crushing debt and skyrocketing taxes in this State are driving businesses, jobs and all of us over the borders. That is certain to affect this industry and all industries across this State. If you aren’t sure, keep reading.

About a year ago, Moody’s confirmed IL pension debt was about $250B. This State’s pending fiscal collapse is the culmination of decades of budget gimmicks used to cover over Illinois government’s structural spending problems that will soon crush ordinary taxpayers.

Please Remember Two Numbers When Considering Our Fake IL Gov’t Pensions—85 and 3.

Why are those numbers important? Well, IL State workers retire at 85% of their highest pay. Someone who makes $100K a year, retires at $85K a year. They don’t pay State income tax on that fake pension money. The reason I call it a “fake pension” is that it doesn’t make any difference how much they contributed to the pension—they all get 85% of their highest pay to start.

On top of that, add the ‘3’—all vested IL State workers get a constitutionally guaranteed 3% compounded bump on their fake pension every year, as long as they live. The bump doesn’t follow the Consumer Price Index or anything else—the worker above who starts at $85K a year will be making more on their gov’t pension in five years than they made while working. In just 23 years, the initial payout of $85K will be doubled!! Yes, that worker will be getting $170K a year in a fake and unfunded gov’t pension when their highest pay was only $100K a year. In 23 years after initial retirement, the gov’t pension will quadruple and they will be getting more than $1M every three years not to work. The 3% compounded annual increases continue for the life of the pensioner, again regardless of their contribution.

Many of my readers don’t believe this math—I point out the math is immutable. If you want me to prove it to you, send a reply. I also am advised something like 700,000 thousand former IL State workers are getting this impossible-to-fund benefit stream. Start to plan to move out of this State if you don’t want to have to pay 100% of the spiraling fake pension costs for all these former State workers who are becoming wealthy off our dime.

State politicians have resorted to all sorts of schemes, from pension “ramps” to issuing pension obligation bonds to temporary tax hikes, to help “balance” budgets without reforming the underlying spiraling costs. These ploys have enabled politicians from both parties to preserve the status quo and to spend more on their misplaced priorities, such as high government worker compensation and impossible-to-fund retirement benefits for State and City of Chicago government workers. The gimmicks are running out.

Illinois’ out-of-control spending spurred credit downgrades almost a decade ago

Illinois has suffered 21 credit downgrades from the three major ratings agencies since 2009. The only thing that slows down the credit free-fall are higher and more taxes on you. These credit downgrades began when Illinois gov’t started borrowing to conceal its growing gov’t pension crisis. As Governor, Quinn borrowed a total of more than $7 billion in two years to make the state’s pension contributions. That sort of borrowing hasn’t slowed and there is a plan to borrow $107B to cut the gov’t pension gap.

By 2010, Moody’s had already downgraded Illinois’ credit to the worst rating in the nation. The next five downgrades happened in the midst of the State’s record tax hike. The tax hikes that brought in $32 billion in new revenues failed to quell rating agencies’ concerns about Illinois gov’t finances. And since then, in the absence of major economic reforms, eight more downgrades have followed. The only thing that slows credit downgrades are higher taxes.

Why Does IL State Government Over-staff, Over-Pay and Over-Retire Its Workers?

The answer is simple—all those workers are voters. They vote in a bipartisan bloc to keep their pay, benefits and unfunded pensions in place. Even at record taxing levels, State gov’t still has to borrow to make ends meet. The seams on this huge debt are starting to swell and the bolts are popping out.

The common theme in Illinois’ budget and ratings history is that the state has refused to pass real spending and economic reforms. They are ready, willing and able to pass a constitutional amendment to pass a graduated income tax—they aren’t willing to cut fake and impossible-to-fund gov’t pensions.

Aren’t We In the Middle of a State-Wide Election? What Are the Candidates for Governor Saying About This Crisis?

As I indicate above, this is another 800lb. pink gorilla that no one is mentioning. Neither billionaire IL Governor candidate, JB Pritzker or Bruce Rauner, are saying anything about it. Why? They don’t want to alienate the voting bloc of thousands of current and past IL government workers who won’t be happy to hear things have to change to their impossible-to-fund compensation, benefits and gov’t pension.

So What Happened This Week?

Crain’s Chicago Business reported Illinois homeowners, who already pay some of the nation's highest property taxes, should pay 43 percent more for the next three decades to wipe out the state's crippling pension debt, according to a trio of economists from the Federal Reserve Bank of Chicago. The economists argue paying off the State's $129.1 billion in unfunded pension obligations cannot be done with revenue from new taxes.

"In our view, Illinois' best option is to impose a statewide residential property tax," they wrote, in part because it would be somehow “fair.” They claimed "Illinois residents who have benefited most from the past services of governmental employees are more likely to be homeowners, so it seems reasonable that they should pay a larger share of the costs."

The economists are proposing a statewide tax of 1 percent of a home or building's value. Under their plan, the RE tax bill on a $500,000 house would go from about $11,600 to $16,600, an increase of $5,000, paid each year for 30 years. Please note the RE tax payout at $16,600 over 30 years would equal the current value of the home! These economists—Thomas Haasl, Rick Mattoon and Thomas Walstrum—calculated a property tax equal to 1 percent of a home's value could possibly plug the State's pension gap in a mere 30 years.

Right now, Illinois homeowners pay an average of 2.32 percent of their home’s value in property tax every year, which according to WalletHub is second only to New Jersey's 2.40 percent. Please note the economists proposal would raise IL property taxes by 43 percent making the RE tax 3.32 percent of the home value—this would put this State way into the lead on having the highest property taxes in this country. Please note this staggering tax increase might kill your neighborhood dry cleaner or convenience store who would be hard-pressed to raise their prices to cover the new RE tax. Please also note the 4.95% IL State income tax is expected to possibly double or more if JB Pritzker is elected and the Governor’s mansion, IL Senate and House are all controlled by the free-spending Democrat party leaders.

From Gene Keefe—How Do These Skyrocketing Taxes “Cure” The Underlying Gov’t Problems? In Short, They Don’t.

To all my readers, please note the systemic failure of our current government to cut State staff, cut gov’t worker compensation and truly reform these hilarious fake gov’t pensions isn’t going to be changed by this proposed RE tax. The IL WC Commission is the agency I am most familiar with. I am sure this agency could be combined with other agencies to dramatically cut costs while preserving services. Their $30M annual budget could be cut to $25M or even $20M. Yes, it might take longer to get some things done but I bet we can and would adjust.

Numerous other IL State agencies and positions could be cut without any impact on gov’t services. Please note there is no reason for

·        The State of Illinois to have a do-nothing Lieutenant Governor;

·        The State of Illinois to have two mirror agencies--a Treasury Dep’t and Comptroller that fulfill precisely the same job;

·        At least seven State agencies have their own “police departments” that I assure you are cushy, no-work jobs;

·        Several State agencies, including the IWCC, have “remote offices” that are do-nothing, no-work jobs.

·        The State of IL has “tow-trucks-that-don’t-tow-trucks”—the Minutemen tow trucks aren’t allowed to tow your car in a wreck. Why bother buying expensive equipment that isn’t used for its intended purpose?

If we don’t have the money and we aren’t going to be able to borrow to make up the gap forever, folks are going to continue to quietly start leaving. For this State to remain viable, things are going to have to change.

Wanna Get Away?

I can’t help you avoid property taxes, specifically the new and huge tax increase proposed by these federal economists. I can legally help you avoid skyrocketing IL income and estate taxes if you are interested in moving to a different state while maintaining a part-time IL residence. I can send you the lead ruling from the IL Supreme Court on how to do so. Just send a reply.

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

Synopsis: E-Notice Announcement from the IL WC Commission.

Editor’s comment: IWCC Chairman Joann Fratianni is pleased to announce another step forward in the IWCC’s modernization and technological upgrade of operations. Pursuant to the IWCC’s Rules, as found in Section 50 of the Illinois Administrative Code, parties will receive case activity notices electronically beginning on July 2, 2018. The IWCC will no longer send case notices via U.S. Mail as of this date.*  All parties (law firms on behalf of clients and pro se litigants) will be required to maintain a designated electronic mail (“e-mail”) address for receiving case notices, just as they are now required to maintain a physical address to receive them by U.S. Mail. You only need to fill out the “E-Mail Registration Form” once (just like providing the IWCC your physical address), so they can update their system.  PLEASE NOTE it does not matter if you already have an e-mail on file or in use with the IWCC – they are populating the system with new and updated information.  So, please submit a law firm/pro se e-mail address again.

* The only exception to electronic notices is respondent parties at the time a case is initially filed, whom will be notified that a case has been filed against them by U.S. Mail at the address provided by petitioner. This is the current practice.

Attorneys – Their system links cases before the IWCC to the law firm, not the individual practitioner. Please provide your firm’s e-mail address for receipt of electronic notices. If one of your attorneys “updates” your firm e-mail address with their own, all firm notices will go to the most updated address.

INSTRUCTIONS (for law firms and pro se litigants) There are two ways to provide the IWCC an e-mail address:

1.         Go on their website to: https://www2.illinois.gov/sites/iwcc/resources/Pages/Request-for-Attorney-Code-Number-.aspx (their website, followed by “forms”).

Fill out the “E-Mail Registration Form” and click “submit.”

2.         Fill out the “E-Mail Registration Form” in person at the IWCC’s Chicago office located at:

Illinois Workers’ Compensation Commission

100 W. Randolph St.

Suite 8-200

Chicago, IL 60601

You will receive a confirmation e-mail to the address provided in three to five business days.  If you are concerned you failed to receive an e-mail from the IWCC, please contact Greg Ettling at (312) 814-6639.