2-4-2019; City of Chicago's Missing-In-Action WC Defense Program--KCB&A Can Help; Older Job Applicants Cannot Sue for Disparate Impact Age Discrimination by Brad Smith + more

Synopsis: The City of Chicago’s MIA or Missing in Action WC Defense Program Needs HELP!!!

Editor’s comment: KCB&A is here to help rebuild and improve their program, if they want help. Our defense team has the knowledge, guts and drive to do this job right.

While we don’t have a view into the specific inner workings at the City, something isn’t going right if the program is in the shape that it appears to be. A 2016 analysis indicated the City was spending over $100M that year in WC costs/benefits—that number is probably higher today. In our view, that high cost can be dramatically cut while, at the same time, injured City of Chicago workers will still be cared for. We feel all the current Chicago mayoral candidates are going to be seeking solutions to save Chicago taxpayers money and stem rising taxes and fees.

KCB&A Claims Handling/WC Defense Can Save the City of Chicago Millions

In contrast, about a decade ago, Nathan Bernard & Shawn Biery from KCB&A took over handling of WC defense for a large central IL manufacturer. They have directed or helped to direct that program almost exclusively for the last 10 years.

About a year into their exclusive handling, a change in WC manager and Risk Overseer at that facility allowed them to more strongly implement our approach and we closed pending and aged WC claims favorably via hearings or disputed settlements to the extent that their open losses went from over 112 claims to under 35 over the course of about 4 years. Comparing those numbers to what I understand the City of Chicago’s claims count—similar handling would rapidly close around 2,000 pending files and save literally millions of dollars.

Going back to the manufacturer mentioned above, the continued efforts and change in WC claims culture maintained the lower loss runs to the extent that we were made aware of the significantly lower WC cost allocations for the facility which, combined with the lower overall WC costs simply due to lower claims, resulted in 7 figure savings.  If Nathan Bernard and Shawn Biery and the other members of our WC defense team were allowed to provide their genius to the City of Chicago’s WC claim culture, the savings could be in 8 figures.

Without having the room to provide every specific detail, their KCB&A program includes:

•                          Active assistance in developing strategies for investigation of claims

•                          Risk/Safety renewals at the company level

•                          Legal analysis to determine defenses and risks based upon our knowledge of the IL WC Arbitrators and general scenarios which result in benefits

•                          Augmented work accommodation and return to work strategies

•                          Better Medical Experts to match specific and challenging WC claims

•                          Surveillance, where appropriate

•                          Nurse case management to allow for the more rapid flow of information

Bring Injured City Workers Back to Desk Jobs, Please!!

My personal issue for all City of Chicago claims is getting injured workers back to modified work. This applies not only to the City’s WC program, it also applies to the Police and Firefighter Disability program—please remember City of Chicago police officers and firefighters are “exempt” by law from the coverage of the IL WC Act. In the past, they have been put on disability for years, sometimes decades while at the same time, the City is constantly seeking new 911 Emergency Dispatchers. A disabled City police officer or firefighter should require almost no training to transition to such sedentary positions. I don’t know why all the City’s 911 desks aren’t manned by recovered City workers—they are well-paid jobs with great benefits and match any work restriction.

KCB&A is Here To Help

We are ready, willing and able to join with the auditors, city officials, Corporation Counsel and outside vendors being asked to provide their best thoughts and strategies. If you know anyone involved in the City’s efforts to rebuild their WC defense program and save taxpayers money, please send a reply. If you need help cutting significant costs in your WC Defense Program in IL, IN, WI, IA or MI, let me know.

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

Synopsis: En Banc Federal Seventh Circuit Court: Older Job Applicants Cannot Sue for Disparate Impact Age Discrimination. Analysis by Bradley J. Smith, J.D.

Editor's Comment: In Kleber v. CareFusion Corporation, the Seventh Circuit sitting en banc overturned a divided panel of its appellate justices. This opinion affirmed District Judge Sharon Johnson Coleman’s early dismissal of the age discrimination lawsuit. Early dismissal: much less money spent on defense fees and costs by the employer. Notably, the dismissal related to disparate impact age discrimination and not disparate treatment age discrimination. Initially, Plaintiff brought an Age Discrimination Employment Act (ADEA) claim. He originally brought the claims under §4(a)(1) and §4(a)(2) of the ADEA. §4(a)(1) is disparate treatment age discrimination and §4(a)(2) is based on disparate impact age discrimination. Disparate impact age discrimination is based on a company-wide policy that is claimed as discriminatory. Disparate treatment age discrimination is claimed as a single-subjective act or multiple subjective acts of age discrimination.

Plaintiff was a lawyer attempting to gain employment with CareFusion Corporation for a senior in-house position in CareFusion’s law department. The relevant job description underlying the claim required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience.” Plaintiff was 58 at the time he applied and had more than seven years of pertinent experience. Instead of hiring Plaintiff, CareFusion went with a 29-year-old applicant who met but did not exceed CareFusion’s experience requirements. Hence, this is why Plaintiff brought an disparate impact claim based on the job description and his application for that position. 

After Plaintiff brought his claims, CareFusion brought a motion to dismiss based on the Seventh Circuit’s prior decision in EEOC v. Francis W. Parker School. Prior to the district court deciding the motion, Plaintiff voluntarily dismissed the disparate treatment claim under §4(a)(1).  After that, a Seventh Circuit divided panel reversed the district court’s decision. Upon review, the Seventh Circuit sat en banc and extensively reviewed the language of the ADEA and Title VII of the Civil Rights Act of 1964. The pertinent language of the ADEA’s section 4(a)(2) makes it unlawful for an employer

to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.

29 U.S.C. § 623(a)(2).

The majority opinion written by Justice Scudder extensively analyzed that section and indicated that the plain language of that provision confined the prohibited conduct solely to employment status. So if you are not employed, then you cannot bring a §4(a)(2) ADEA claim.  Justice Scudder cited multiple canons of statutory construction throughout his majority opinion. Generally, every application of a text to a particular circumstance entails interpretation.

One of the canons he applied requires reading the text as a whole, and in the case that required the majority refrain from isolating two words when the language surrounding those two words supplied essential meaning and resolved the question before them. He went on to describe the construction of §4(a)(2). He indicated construction was clear from Congress’s use of language. The pertinent language Scudder examined was the provision covers “any individual” deprived of an employment opportunity because such conduct “adversely affects his status as an employee.” Put differently, ordinary principles of grammatical construction require connecting “any individual” (the antecedent) with the subsequent personal possessive pronoun “his,” and upon doing so we naturally read “any individual” as referring and limited to someone with “status as an employee.” Justice Scudder concluded the clear takeaway was that under §4(a)(2) a covered individual must be an employee.

That same portion of the opinion goes on to analyze Title VII’s amendments and that there was no corresponding amendment to the ADEA. Justice Scudder identified Congress’s choice to add “applicants” to §703(a)(2) of Title VII but not to amend §4(a)(2) of the ADEA in the same way as meaningful. The majority examined the precedent supporting using statutory amendments to support its position on the statutory language interpretation. The majority finally identified the solution to the problem as one of legislative prerogative. Justice Scudder disclosed that Congress remains free to extend §4(a)(2) to outside job applicants—similar to amending Title VII. Ultimately, the majority affirmed the district court’s dismissal.

It is quite possible the Supreme Court of the United States (SCOTUS) might take up this case on a writ of certiorari. Given the split in the circuits on this particular issue, SCOTUS may develop an appetite for whether §4(a)(2) of the ADEA covers applicants or non-employees. Indeed, SCOTUS might decide that they need to resolve the circuit split. Given Title VII’s interpretation, it is foreseeable that SCOTUS could overturn the Seventh Circuit’s recent decision. However, for now this is the law of the land in the Seventh Circuit (Indiana, Illinois, and Wisconsin). Given this, employers are currently free to have job application descriptions limiting experience and other matters, which could have an impact of older workers efforts to gain similar positions.

This does not mean a crafty plaintiff’s lawyer cannot create an argument under §4(a)(1) that there was disparate treatment of the job applicant. For instance, if there is an interview and the worker were asked age related questions or something similar that could be interpreted as falling within the purview of age discrimination under a disparate treatment theory, then that could still be actionable. A plaintiff’s lawyer will tell you there are multiple ways to “skin a cat.” And given the multiple ways to prove age discrimination, that admonition is no different here. 

We’ll continue to watch this decision closely as to whether or not further review from SCOTUS is sought. It is quite possible that another similar case could percolate up into another circuit court and then to SCOTUS. We’ll continue to report to our readers developments in this important area of employment law.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the FLSA, employment law, and commercial general liability defense at bsmith@keefe-law.com.

Synopsis: Join KCB&A with the IL State Chamber for the IL WC Workshop on April 2, 2019 in Naperville. The link to register is: http://events.constantcontact.com/register/event?llr=omjkt4dab&oeidk=a07eg2i2618bf7c6629

Synopsis: Illinois WC Rates Jump Again—even with 313 residents leaving the state on average PER DAY, there was a jump in the Statewide AWW and Your existing PPD Reserves May Need To Be UPDATED RETROACTIVELY(!).

To any of our readers and/or fans, Send a Reply to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

Editor’s comment: There continues to be an upward spiral of IL WC rates. Please don’t shoot the messenger for telling you how to get them right.

As mentioned before, twice every year, starting in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, your IL WC rates keep climbing.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $826.79 (up from $790.64—a $36 increase when the last increase was only $15!!!).

When it was published, this PPD Max rate changed retroactively from July 1, 2018 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now, your reserves are wrong.

If you have a claim with a date of loss after July 2017 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies.

The current TTD weekly maximum has risen to $1,506.81.

An IL worker has to make over $2,260.22 per week or $117,531.18 per year to hit the new IL WC maximum TTD rate.

The new IL WC minimum death or T&P rate also went up.

The IL WC minimum death benefit is 25 years of compensation or $565.06 per week x 52 weeks in a year x 25 years equaling a staggering $734,578.00! Yes, if Claimant makes $100 a week in a part-time job and dies in a work-related accident, the benefit is over $734K.

The new maximum IL WC death benefit is $1,506.81 times 52 weeks times 25 years or a lofty $1,958,853.00 plus burial benefits of $8K.

On top of this massive benefit, Illinois employers/governments have to contribute to a fund to pay COLA increases under the Rate Adjustment Fund that may double that already-high benefit, depending on the CPI.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet.

If you want it, simply email Marissa at mpatel@keefe-law.com and include your mailing address if you would like to be mailed a laminated copy & you can also copy Shawn at sbiery@keefe-law.com with any questions, and his great team will get a copy routed to you before rates rise again.

Shawn remains your go-to defense source on any issue relating to IL WC rates!

Synopsis: Get your handy and updated 2019 Indiana Rate Chart Here. Research and reporting by Kevin Boyle, J.D., KCB&A’s Indiana WC defense team leader and Gene Keefe, J.D.

Editor’s comment: A new year, and our new 2019 Indiana WC Rate Chart is available. You can find it on our website, or if you’d like a laminated hard copy, please email Kevin and he’ll mail you as many as you and your staff need.  Happy New Year!  

Kevin Boyle, Esq., Keefe, Campbell, Biery & Assocs., LLC

885 South College Mall Rd. #222

Bloomington, IN 47401

Direct: 312.662.9899

Alternate: 812.369.7182

Email:  kboyle@keefe-law.com

1-28-2019; Understanding What A Mess Work Comp Is In the People's Republic of Chicago; New 2019 IL WC Rates With Free Rate Sheet From Shawn R. Biery, JD and more

Synopsis: Understanding What a Mess Work Comp Is In The People’s Republic of Chicago. Can It Be Reformed?

Editor’s comment: Many of my readers are asking—what the heck is going on with City of Chicago WC Claims?

The Shakman Decrees

Well, this dates back to a guy named Mike Shakman who got sick of watching patronage politics in Chicago. Politics in Chicago and in the government of surrounding Cook County had been dominated by political patronage. Most city and county employees were expected to belong to the political party of the elected official who controlled that agency. Patronage employees had to support that official and the party organization by donating to campaign funds and performing campaign work: getting signatures on nominating petitions, passing out literature, and going door-to-door to find and cultivate favorable voters. An employee who refused to do this work, or even failed to do it well, could lose his job, whereas the most effective political workers kept their jobs or were promoted in their gov’t jobs, even if they did little or nothing of their official duties. Patronage employees were also forbidden to support any candidate opposed by the political organization to which their patron belonged.

By the 1960s, patronage politics had secured one-party control of Chicago for the Democrats. Democratic candidates for office in Chicago or Cook County-wide were all selected by a "slating committee" of party insiders. All Democratic officeholders and their patronage employees were expected to support the party slate. At the apex of this "Machine" was Chicago Mayor Richard J. Daley.

Mike Shakman filed a class action suit against the Democratic Organization of Cook County, claiming political patronage employment violated the First Amendment and the equal protection clause of the Fourteenth Amendment of the United States Constitution. Shakman asserted Defendants, including a number of government employees and politicians, violated public employees' right of free speech by requiring them to support the slated candidates and by punishing them for supporting opposing candidates. He also asserted that the use of public employees to do political work instead of their official duties was an unnecessary burden on taxpayers. He sought declaratory and injunctive relief.

The case was dismissed in 1969, but reinstated in 1970, leading to a long deliberation. After the reinstatement of the case, the plaintiffs and many of the defendants entered into various consent decrees on most of the issues in the complaint. Defendants agreed to most of the complaints and resolved to make amends. Stipulations of fact were next filed to resolve the remaining issues. The Shakman decrees were a series of federal court orders regarding government employment in Chicago, which were issued in 1972, 1979, and 1983. The decrees barred the practice of political patronage, under which government jobs are given to supporters of a politician or party, and government employees may be fired for not supporting a favored candidate or party Basically, Mike Shakman ended patronage politics in the U.S. crookedest City.

Well, Chicago Still Seems Corrupt—What Happened?

In short, what happened was Ed Burke. Alderman Burke became the head of the City’s Finance Committee in the late 1980’s. When that happened, he took complete and secret control of the City’s WC “defense” program. The reason I put “defense” in quotes is the City almost never defended any workers’ comp claim other than to lose, lose and lose some more.

Please note Alderman Burke also had complete control of the City of Chicago’s Police and Fire Department Disability programs and ran them with the same secretive silliness that he ran the City’s WC program. He would almost never bring anyone back to light work, preferring to keep paying and paying and paying some more. Chicago has a “ghost” work force that costs millions each year—this could be almost immediately eliminated by simply bringing all these folks back to the thousands of desk jobs continuously available to City workers.

What happened is several thousand City workers were allowed to go on City WC benefits or Police/Fire Disability benefits for years and years, many times decades of tax-free benefits. The poster-child for this sort of silliness was Charles Siedlecki, who the Chicago Sun-Times indicated was on “disability” for decades. Starting In 1992, Mr. Siedlecki fell and hurt his shoulder while chasing a group of teens. Since then, he hasn’t worked as police officer, but went to law school, opened a law practice and continued hobbies, such as big-game hunting. During that time, he has collected more than $715,000 in disability pay through 2012, the newspaper reported. Hundreds of other City workers got such benefits. What is so irritating about Police and Fire Disability is the City of Chicago is always in need of 911 desk operators that would be perfect for any disabled police officer or firefighter—they are already trained in such protocols and can do sitting/standing work at such desks.

Why did Alderman Burke do this? Well, he clearly didn’t care about the cost to Chicago taxpayers—he wanted an army of folks beholden to him. All WC claimants for the City of Chicago don’t have to work and get hundreds of thousands in tax-free benefits for years, if not decades. To my understanding, the City of Chicago continues to cover them with full healthcare benefits and their fake gov’t pensions continue to vest. In return, if Alderman Burke wanted them to jump, they didn’t ask if, they asked “how high!” The problem is the City of Chicago is now hilariously broke and approaching bankruptcy and all mayoral candidates are pressing for new taxes. They also need some cost-cutting!!

The City of Chicago WC System Was the Paradigm of Crooked Gov’t—Can It Be Reformed?

So what happened with the end of patronage politics was the City of Chicago had a program that was spending over $100M in WC benefits for City workers. I assure you no one truly knows how much—I sent FOIA requests for the actual amounts spent to be told “We don’t know.” I asked how many City of Chicago workers were off work more than five years on TTD—the answer was “We don’t know!!!” I am sure some of the money spent on WC for the City of Chicago is buried in department budgets and other money is buried elsewhere. Good luck figuring it out.

What Alderman Burke also did was hire WC vendors, like outside claims handlers or voc rehab providers to then randomly fire the vendors. All of them were expected to donate heavily to Alderman Burke’s 18th Ward Political Organization.

To my understanding the City of Chicago has around 3,000 pending WC claims at any given time. They don’t have a single City worker listed on the City’s website as a trained WC claims adjuster. To handle 3,000 claims, the City of Chicago needs at least 15-20 veteran claims handlers. In my view, when an organization doesn’t have anyone knowledgeable or trained to handle WC claims, all you do is pay and pay and pay some more.

The same thing goes for the City’s Corporation Counsel’s office—they have one attorney who is designated to handle several thousand WC defense claims. There is no chance, none, that one defense attorney can handle that unbelievable load. There is an outside firm designated to handle “emergency” petitions. To my understanding, they were allowed to bill as much and as often as they liked because of their regular donations and fealty to Alderman Burke. We will see if the City of Chicago’s outside WC defense work goes out to be competitively bid.

Right now, all the mayoral candidates who will be running in what is expected to end up in a run-off election in March are focused on getting their arms around the City’s WC defense program. Let’s hope the hundreds of men and women currently milking Police and Fire Disability benefits are also returned to desk jobs and taken off the dole. Watch this space for news as it develops.

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

Synopsis: Illinois WC Rates Jump Again—even with 313 residents leaving the state on average PER DAY, there was a jump in the Statewide AWW and Your existing PPD Reserves May Need To Be UPDATED RETROACTIVELY(!).

To any of our readers and/or fans, Send a Reply to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

Editor’s comment: There continues to be an upward spiral of IL WC rates. Please don’t shoot the messenger for telling you how to get them right.

As mentioned before, twice every year, starting in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, your IL WC rates keep climbing.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $826.79 (up from $790.64—a $36 increase when the last increase was only $15!!!).

When it was published, this PPD Max rate changed retroactively from July 1, 2018 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now, your reserves are wrong.

If you have a claim with a date of loss after July 2017 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies.

The current TTD weekly maximum has risen to $1,506.81.

An IL worker has to make over $2,260.22 per week or $117,531.18 per year to hit the new IL WC maximum TTD rate.

The new IL WC minimum death or T&P rate also went up.

The IL WC minimum death benefit is 25 years of compensation or $565.06 per week x 52 weeks in a year x 25 years equaling a staggering $734,578.00! Yes, if Claimant makes $100 a week in a part-time job and dies in a work-related accident, the benefit is over $734K.

The new maximum IL WC death benefit is $1,506.81 times 52 weeks times 25 years or a lofty $1,958,853.00 plus burial benefits of $8K.

On top of this massive benefit, Illinois employers/governments have to contribute to a fund to pay COLA increases under the Rate Adjustment Fund that may double that already-high benefit, depending on the CPI.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet.

If you want it, simply email Marissa at mpatel@keefe-law.com and include your mailing address if you would like to be mailed a laminated copy & you can also copy Shawn at sbiery@keefe-law.com with any questions, and his great team will get a copy routed to you before rates rise again.

Shawn remains your go-to defense source on any issue relating to IL WC rates!

Synopsis: Get your handy and updated 2019 Indiana Rate Chart Here. Research and reporting by Kevin Boyle, J.D., KCB&A’s Indiana WC defense team leader and Gene Keefe, J.D.

Editor’s comment: A new year, and our new 2019 Indiana WC Rate Chart is available. You can find it on our website, or if you’d like a laminated hard copy, please email Kevin and he’ll mail you as many as you and your staff need.  Happy New Year!  

Kevin Boyle, Esq., Keefe, Campbell, Biery & Assocs., LLC

885 South College Mall Rd. #222

Bloomington, IN 47401

Direct: 312.662.9899

Alternate: 812.369.7182

Email:  kboyle@keefe-law.com

1-21-2019; How Illinois WC Benefits are Delivered and the Role of the IWCC; Kevin Boyle Offers Free IN WC Rate Sheets for 2019 and more

Synopsis: How Illinois WC Benefits are Delivered and the Role of the IWCC.

Editor’s comment: Unlike many states, the delivery of benefits in Illinois workers’ compensation could take place without the Illinois Workers’ Compensation Commission having any real role in the process—the system is supposedly “self-effectuating” but can be so complicated lawyers are usually involved. The Workers’ Compensation Commission’s current role is to resolve conflicts via litigation, but it does not actively manage or supervise benefit delivery unless someone raises a dispute.

IL Workers’ Compensation Commission’s powers and authority

We like to point out at this early stage the IL Workers’ Compensation Commission is an administrative agency that ostensibly has only those powers given it by our legislature and the Rules Governing Practice, which is also created by an open hearing process and limited in scope. In recent years, we feel the IWCC has expanded its decision-making to claims or WC coverage outside the traditional scope of our WC Act. In other states, the Circuit Courts hear workers’ compensation matters and, in those settings, the judges may have plenary power over the participants on both sides. That doesn’t happen in Illinois’s WC model.

In Illinois, administrators have limitations on their powers and, in limited instances, the aggrieved parties have to go to the Circuit Courts for complete relief. To name a few examples, Illinois Arbitrators are not accorded the power to enforce subpoenas, enter judgments on their awards or hold the parties in contempt as a Circuit Court judge has the power to do. In each instance, the Illinois Workers’ Compensation Act and Rules require the parties to file a separate lawsuit in the circuit courts to get such relief, consistent with the clear statutory requirements. Very few practitioners know how to do this.

We want to make it clear: if an Arbitrator acts without statutory authority to act, their actions are arguably void and may be collaterally attacked in the Circuit Courts at any time.

The Ostensibly Minimalist Role of the Illinois Workers’ Compensation Commission

When the unforeseen occurs and a worker is injured, Illinois does have two forms that it provides to employers and their insurance carriers or third party administrators called TPA’s to report accidental occurrences. One is the Form 45 or initial report of injury, and the other is the Form 85, the supplementary or final report of injury. What is unusual about these forms is, due in large part to lack of state funding, they are not currently used for any significant statistical or administrative function.

To be more clear, unlike other states, no one currently logs them, nor is there a database which results from the filing of these forms. No IWCC employee generally cross-checks them to insure medical or temporary total disability is being paid on time or in the correct amount. Illinois has moved to allow some carriers and large self-insured companies to perform this routine reporting function electronically. There is no ongoing use of the electronic forms other than to require they be filed.

The delivery system of Illinois workers’ compensation benefits is designed to be self-effectuating—by that we mean the employee is required to demonstrate someone at the employer in a supervisory capacity become aware of the loss within 45 days. When that happens, the Form 45 must be filed at the Workers’ Compensation Commission by the employer, but, as stated above, the Workers’ Compensation Commission will simply file/store this document and will not generally take any action based upon the information outlined on the form. Thereafter, it is contemplated the employer and carrier or TPA will adequately investigate the claim on their own and render a decision with regard to whether WC benefits are owed. If additional time is needed to decide whether benefits are due, the carrier or TPA is supposed to notify the employee in writing of what information is required to render a decision. If the decision is to pay benefits, no one has to be advised of the decision other than the employee; you don’t have to tell the IWCC. If the decision is to deny, there is a rule which requires written notification of denial, but it is often ignored or not widely known.

It is entirely possible to accept a claim, pay medical, temporary disability, and permanent disability, and close the file without notifying the IWCC (other than filing the Form 45). Due to the minimal role of the Commission in active claims management, what may happen at a relatively higher level in Illinois than in most states is litigation. Our  Workers’ Compensation Commission is more like a courthouse for industrial injury claims than an institution which manages compliance, supervises insurance carriers or TPA claims management, as other states do. In an effort to maximize benefits on behalf of claimant and/or due to aggressive petitioners’ lawyers, the ‘typical’ Illinois workers’ compensation claim begins at the IWCC with the filing of an Application for Adjustment of Claim.

The free filing of this single pleading or form by the employee (usually with counsel) is carefully catalogued, indexed, and tracked by the Illinois Workers’ Compensation Commission. The claim is randomly assigned to an arbitrator and will pend for up to three years before either side has to take some significant action to resolve it. Subsequent claims by the same employee against the same employer “shall” be consolidated before the Arbitrator assigned the first such claim. Consolidation of claims means they are tried in order but separately—there is a misconception the consolidated claims become blended. A filed WC claim will appear on a status call every ninety days unless an emergency petition is filed by the employee to accelerate the matter to a more rapid hearing.

Claims typically are filed due to a dispute over medical bills or termination of TTD. These claims may move immediately to a hearing because Illinois allows for two emergency interim petitions, a 19(b) or 19(b-1) petition. These petitions will be discussed in greater detail later in this treatise, but it is safe to say that the resolution of these so-called ‘emergency’ claims will render a binding decision on the issues of jurisdiction, accident, causal connection, notice, medical benefits, and temporary disability. It may therefore be critically important to aggressively defend what is ostensibly an interim petition because many of the major legal and factual issues may be determined as part of the resolution of the emergency 19(b) or 19(b-1) petition, leaving only permanency (i.e., the settlement value of the injury) to be later decided.

WC claims adjusters in and out of Illinois are usually amazed that claims are also regularly filed when all benefits are paid in full and on a timely basis solely to maximize the recovery of permanency. For anyone not familiar with the management of Illinois workers’ compensation claims, AMA Impairment guidelines or “ratings” currently play a growing role in reserving awards or payment of permanency. For accidental injuries after September 1, 2011, ratings “shall” be considered by the IWCC along with other factors. Generally speaking, Illinois permanency awards are significantly higher than the percentages which AMA Impairment guidelines call for in most work injuries.

Permanency in Illinois workers’ compensation is also ostensibly handled by a system similar to that of stare decisis—the IWCC publishes its decisions with regard to permanency to provide guidelines for what they will award in similar injuries. Again, it is felt in some quarters that this leaves the determination of permanency at the whim of the Commission’s current members. In any event, it does require the adjuster to watch Commission decisions and to try to use them as guidelines in dealing with petitioners and employers alike.

Resolution of the claim is typically accomplished by settlement. Year after year, approximately 90% of all Illinois workers’ compensation claims are settled at or during arbitration. In most instances, your focus in managing the claim is to position it to settle. Cases can also be resolved by voluntary dismissal, involuntary dismissal for want of prosecution, or on motion by the arbitrator or Commissioner, decision or award by the arbitrator and the Commission and resolution of the claim on appeal to the circuit, appellate or supreme court.

All rights of a claimant in an Illinois workers’ compensation claim are adjudicated solely by the IWCC or by the passing of the statute of limitations. If you pay benefits and do not have the matter resolved by settlement at the Commission, you usually get ‘credit’ for amounts paid prior to litigation, but the claim remains ‘open’ or viable until the statute of limitations passes.

If an Application for Adjustment of Claim is later filed, it is possible a petitioner could subsequently seek higher benefits and protect his or her right to lifetime related medical benefits at the cost of the employer. For this reason, many claims managers feel it prudent to resolve a claim via a pro se settlement, which is approved by the Commission. In this setting, the arbitrator usually provides an oversight function to insure a petitioner appearing pro se (or without counsel) is accurately advised with regard to their rights and receives a fair amount in settlement of the claim.

Having filed the Application for Adjustment of Claim, the matter is assigned to an arbitrator for hearing. Assuming a settlement does not occur, at some point the matter will have to be presented to the arbitrator for hearing. Prior to that point, pre-trial discovery in Illinois workers’ compensation is very limited.

Have Your Own Accident Reports and Combine with a HIPAA-GINA Compliant Release

Most employers require employees fill out accident reports when an employee is injured. We strongly recommend this practice to our defense clients and do not recommend you rely upon the IL WC Form 45 for accident information. If you get to the employee before he or she gets to counsel, it is possible to obtain a recorded statement. If the employee refuses and the matter becomes litigated, there is no legal device in the IL WC system to force the employee to give a recorded statement. The injured worker does not have to submit to a deposition under oath as they do in some states.

As we will discuss later, you can request medical records with a HIPAA-GINA complaint authorization or by subpoena. Workers’ compensation subpoenas are frequently used inappropriately by some petitioners’ attorneys. If you want my form for your use and/or consideration, send a reply.

The employer has the right, at its expense, to obtain an independent medical examination of petitioner at any time. Again, this will be discussed in more detail at a later time.  Petitioner may rely both on the treating doctors and his own independent medical examiner.

Medical testimony of either a treating physician or independent medical examiner is generally provided to the arbitrator by evidence deposition. It remains an open question as to who has to pay for the depositions of treating physicians. The 2005 changes to the IL WC Act made treating records of treating physicians admissible in the majority of cases.

Medical depositions provide the expert opinions which the arbitrators sometimes rely upon in reaching medical conclusions. There is no requirement for expert medical opinions for the Commission to make a finding on a medical issue, but generally they do review all medical reports or depositions.

The hearing before the arbitrator is generally conducted in a streamlined fashion with the parties stipulating to all factual issues not in dispute. There is a “request for hearing” form that contains those stipulations and which the parties are required to fill out. Failure to stipulate to an undisputed or uncontested matter may result in an award of penalties and attorneys’ fees. Testimony is not taken on issues which are uncontested.

This is a starting point and the devil is in the details. If you have further questions or concerns, send a reply. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Get your handy and updated 2019 Indiana Rate Chart Here. Research and reporting by Kevin Boyle, J.D., KCB&A’s Indiana WC defense team leader and Gene Keefe, J.D.

Editor’s comment: A new year, and our new 2019 Indiana WC Rate Chart is available. You can find it on our website, or if you’d like a laminated hard copy, please email Kevin and he’ll mail you as many as you and your staff need.  Happy New Year!  

Kevin Boyle, Esq., Keefe, Campbell, Biery & Assocs., LLC

885 South College Mall Rd. #222

Bloomington, IN 47401

Direct: 312.662.9899

Alternate: 812.369.7182

Email:  kboyle@keefe-law.com