4-23-2019; TTE May Become IL WC Law or Practice; News And Gossip from the IL State Bar Ass’n WC Section on IL WC Appointments; KCB&A at RIMS Boston and more

Synopsis: TTE or Temporary Transitional Employment May Be Coming to an IL WC Claim Near You!

Editor’s comment: A wonderful reader sent me a recent IL WC Commission decision regarding TTE or Temporary Transitional Employment for injured IL workers. This is a concept used and actually required in many State’s WC systems.

The issue concerns Temporary Transitional Employment (TTE) where the employer doesn’t have focused light duty work but sends Petitioner to a non-profit, charity or other similar facility that can accommodate restrictions.

I am sure getting injured employees back to work can make a huge difference in lowering the cost of workplace injuries. Return-to-work programs can help ensure employees’ success in recovering and getting back to the job. But, what if a given employer can’t support temporary light duty for an injured worker? Temporary Transitional Employment programs, also known as “modified duty off-site” or simply “off-site return to work programs,” can be a solution.

In my humble view, anything that gets a worker off the couch and dressed and off to some sort of “work-like” activity is better than having them sit home and watch talk/game shows. Lots of statistics indicate the longer you leave an injured worker off all work, the more likely it is they will never return to work.

Workers’ compensation claimants placed at TTE by a major national insurer returned a given claimant to work on average 67 days sooner than those who were not placed in such positions. Some programs place injured workers at local nonprofit organizations, which can provide an additional morale boost and sometimes, even a charitable deduction for the employer.

One question I get all the time—what if the worker claims injury or aggravation at the charity? The answer is you almost certainly owe for the injury but the risk/reward is so high, you still need to consider TTE. One way to try to stem such claims is to see if the charity can have the worker perform their job in an area that has security cameras in it.

Here are tips for better understanding TTE programs, and for implementing a program your workers will want to participate in:

1. By setting up a network of nonprofit partners and having a plan to manage hours worked and any performance issues, claims handlers/risk managers can provide an administrative framework to implement the concept.

2. TTE should be mentioned in employers’ handbooks and all communications with workers.

3. The TPA or self-insurer will continue to manage the workers’ compensation claim and will communicate with the worker’s doctor about TTE programs and transitioning the worker back to regular work.

4. Workers should be placed within 50 miles of their homes—the farther the drive, the more push-back you may get.

5. These programs are best for injured workers who are released for transitional restricted duty and whose restrictions are expected to last at least four weeks.

Will TTE “Work” in Illinois WC?

Please note my opinion this concept works best if everyone gets along. Try to nicely convince your worker this is in their best interests and isn’t something to fight about. Please advise the charity work isn’t forever—it is just until they have fully recovered, as you expect them to do.

If you can’t gain cooperation from your work, this question brings up the idea of whether the IWCC will “mandate” such transitional/charity work. In this recent ruling, the IWCC terminated/denied TTD when the worker refused to participate in TTE.

We do note former Commissioner, now Chairperson Mike Brennan joined in this new decision and should be encouraging TTE for all hearing officers to consider. We consider TTE a win-win to get folks off their duffs and back into non-profit/charity jobs that help the charities they work at.

There are prior IL WC cases which found that such an arrangement was not allowed under the Act. I consider that short-sighted and counterproductive.

However, as I indicate above, this new ruling I was sent comes to a different conclusion and confirmed the suspension of TTD or temporary total disability for refusal to attend TTE.  

It is important to note exactly how this employer offered the TTE because they

• Sent a letter advising that Petitioner was still an employee of the Respondent; 

• The worker would get the same pay from the Respondent during participation;

• Petitioner was subject to all of Respondent’s human resources and attendance policies; and

• Any issue that arose during the TTE would be handled through Respondent, documenting ongoing Respondent’s control over or direction of Petitioner.

If TTE is something you can utilize, this case provides an excellent roadmap on how it should be offered. If you want a copy, send a reply. If you want to discuss how TTE can further help your WC claims program, I am happy to conference.

I again thank my knowledgeable reader for the decision—if you want a solid voc rehab expert, send a reply and I will send his contact info.

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

Synopsis: Updated News And Gossip from the IL State Bar Ass’n WC Section on IL WC Commission Appointments/Staffers.

Editor’s comment: The hard work and expertise of the ISBA WC Section volunteers provides additional guidance and gossip for my readers on what is happening at the IWCC.

As we know, we have a new chairperson in Michael Brennan. I join with my law partners in saluting this great choice to keep at bay the “eye-of-the-hurricane” that are the competing political/legal and insurance forces in IL Work Comp.

Governor Pritzker also elevated Arbitrator Barbara Flores to commissioner. She will sit as a Public member taking Chairman Brennan’s slot. Former Arb. Flores was an appointment of then-Governor Pat Quinn. I learned she had more than five years of law experience as corporate counsel of Alden Management Services. Commissioner Flores previously worked in the Labor and Employment Law Department at the U.S. Postal Service, and as an assistant attorney general in the Labor and Employment Unit at the Office of the Attorney General. Ms. Flores also previously worked at the AIDS Legal Council of Chicago. I agree new Commissioner Flores has a sound reputation for being fair and efficient. She brings welcomed diversity to the IWCC first serving as an arbitrator in Chicago and then downstate and now as a commissioner. I consider her very professional, fair and reasonable.

Governor Pritzker also appointed Arbitrator D. Douglas McCarthy as commissioner of the IWCC representing the labor member and replacing Commissioner David Gore. Commissioner Douglas McCarthy was also first appointed by Governor Quinn as an arbitrator. He brought more than 30 years of legal experience to the Commission. We agree with the ISBA, there are petitioner and respondent attorneys alike who practiced before Arbitrator McCarthy and will feel he will be missed as an arbitrator.

Governor Pritzker appointed Marc Parker as commissioner as a labor member. Mr. Parker is a 54-year-old Collinsville attorney whose experience includes serving as a law clerk for both the Illinois Appellate Court and the Illinois Supreme Court, working as a full-time prosecutor in St. Clair County and as a part-time prosecutor in Madison County. He appeared before the IWCC for more than 26 years and was the Collinsville Township attorney.

Governor Pritzker appointed Maria E. Portela as a public member of the IWCC. Commissioner Portela has devoted her legal career to handling workers’ compensation claims since 1984 in part as corporate counsel for the City of Chicago. She handled defense claims for The Hartford and AIG. Ms. Portela also brings additional diversity to the IWCC.

In August 2019, then-Governor Rauner re-appointed Arbitrator Maria Bocanegra, Paul Cellini, Stephen Friedman, Gerald Granada, Jessica Hegarty, Jeffrey Huebsch, Nancy Lindsay, Christine Ory, Maureen Pulia, Melinda Rowe–Sullivan and Douglas Steffenson. Arbitrator Lindsay retired from the practice and Arbitrator Bocanegra has moved on to a different department within State government.

As of April 1, 2019, none of these arbitrator reappointments have been confirmed by the IL Senate. The ISBA reports there are five vacancies for IL WC arbitrator not considering the arbitrators mentioned above. I vote we have plenty of hard-working arbitrators and leave the positions open. Applications for the arbitration position can be found on the state of Illinois website: https://www2.illinois.gov/sites/bac/Pages/NominateForm.aspx

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

Synopsis: KCB&A will be going to RIMS Boston this coming weekend!

Editor’s comment: If you are going to RIMS and want to meet up with your favorite Midwest GL/WC and EPLI defense lawyers, we are hosting or co-hosting a golf outing and a reception dinner this coming weekend. Send a reply if you have interest.

4-15-2019; Back to Basics--Overview and Definition of Work Comp Benefits; Another Nutty IL WC Bill in Springfield and mor

Synopsis: Back to the Basics--Overview and Definition of Workers’ Comp Benefits.

Editor’s comment: Every now and then, I consider it a strong idea to go back to the basics. Workers’ comp benefits arise when a given worker suffers an accident or disease that “arises out of” and occurs “in the course of” employ. This is shortened to AOO/ICO in WC parlance. In short, not everything that happens at work is covered but lots of stuff is.

Once suffering a work-related disease or illness, workers’ comp across the world provides three main benefits for injured workers: medical care, temporary total disability and permanency. This is a quick outline of Illinois WC benefits:

Medical benefits: Injured workers are entitled to full medical coverage of all reasonable, necessary and related medical care arising from their injury. Illinois enacted a medical fee schedule, effective February 1, 2006, for all related and necessary medical treatment. The fee schedule is changed every year to follow inflation.

Temporary total disability: Illinois allows for 66-2/3% of an employee’s average weekly wage during all periods they are temporarily totally disabled from all work.

Temporary partial disability: If an employee returns to any work following injury—part-time or full-time light duty work at a lower rate of pay on a temporary basis—Illinois law requires an employer make up the difference as TPD, or continue to pay temporary total disability until the employee returns to full duty.

Permanent disability in the IL WC system is awarded in six ways:

1. Serious and permanent disfigurement: Typically, burns or scarring outside the ‘strike zone’.

1. Specific loss: Some relative legal definition of percentage of loss of a specified body part or ‘member’—Illinois relies in part on AMA ratings in determining specific permanent loss.

1. Nonspecific loss (typically referred to as ‘body as a whole’): Some relative legal definition of percentage of loss of the whole body—again Illinois relies on AMA ratings as one of five factors in determining permanent loss/impairment/disability.

1. Wage differential benefits: Two-thirds of the difference between what the employee would have been making in his old job at present wage levels versus the average of what the employee is able to earn within the medical restrictions. For accidents after Sept 2011, this benefit is capped at age 67 or at 5 years of benefits if the injured worker is over age 62 at the time of award. For my readers, please note the new and growing IL minimum wage is going to take some of the sting out of wage loss claims because anyone with a job is going to be making more and more money, as the minimum wage grows.

1. Amputation benefits—IL WC has high minimum and maximum amputation rates. These benefits can be dramatically high. Please also note the amputation benefits are due in full as soon as you are aware of the presence and extent of an amputation—I am happy to help on this one, just send me an email.

1. Total and permanent disability: Two-thirds of the average weekly wage for life. Please note Illinois has a very high minimum and maximum rate for total and permanent disability, and unlike other states there is no cap on the number of years.

1. Death: Two-thirds of the average weekly wage is payable to the surviving spouse and dependents for twenty-five years. Please note Illinois has a very high minimum and maximum rate for death benefits. Again, there are lots and lots of nuances—if you have questions and concerns about a death in your workplace, send me an email for the inside scoop. Please also note if a worker dies in your workplace, everyone who “experienced” the person’s passing may have PTSD claims that should be quietly addressed with counseling and care, if at all possible.

Other matters which may be characterized as WC benefits which any adjuster should be fully aware of:

Vocational rehabilitation is a benefit that may be claimed and/or awarded in specific circumstances. In rare instances, the Commission may order complete re-education or retraining of an individual at the employer’s expense due to an injury-related limitation and job change.

‘Maintenance’ was a term with a tortuous history in Illinois. In 2006, it was codified to equate with TTD when someone is in vocational counseling.

Mileage to treating doctors is also a question mark in Illinois—there is no requirement that Illinois employers/WC insurers pay a specific amount of mileage for an injured worker to go to medical providers in our Rules or Act. 

For Respondent to schedule an Independent Medical Examination or Section 12 Exam and have the employee legally required to attend, the employee is entitled to mileage, meals, and time lost from work in advance of the appointment. Effective July 20, 2005, the mileage amount based on the current IRS mileage rate is required to be sent to the employee with notice of the IME.

An Illinois employee can seek civil damages for retaliatory discharge and termination or failure to recall as a result of seeking workers’ compensation benefits. This would arise from a separate common law action and would not be heard by the IL WC Commission.

Penalties in Illinois are 50% of the amounts payable for temporary total disability or permanent partial disability which are not paid for frivolous reasons or withheld solely for delay. Penalties can be awarded for not paying penalties resulting in an additional 50% of the 50% already awarded. Although we are not aware of it happening, this could occur on an indefinite basis!

There is an additional penalty of $30 dollars a day with a cap of $10,00.00 which can be awarded for not paying temporary total disability for frivolous reasons or solely for delay.

There is an additional penalty of $30 dollars a day with a cap of $10,000.00 which can be awarded for not paying medical bills that are submitted with appropriate documentation after thirty days has passed.

Attorneys’ fees in Illinois, typically 20% of the disputed benefits can be ordered payable by the Respondent at the discretion of the Commission when benefits are withheld frivolously or solely for delay.

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

Synopsis: Another New IL WC “Reform” Bill is Proposed. We are watching like hawks!!

Editor’s comment: Please note Illinois is a one-party state with no hope for Republicans to take any effective action to protect the interests of IL business—they are dramatically outnumbered in Springfield. This appears to be another reform bill that isn’t being put through the “agreed-bill” process where all sides make comment, negotiate and seek a consensus. Obviously, the Democrats are laughing at their counterparts across the aisle and doing whatever they want.

IL HB269, as amended is being called the Work Comp-No Insurance Process.

Last Action: Referred to Assignments (April 12, 2019)

Primary Sponsor: Representative Jay Hoffman (D-Belleville)/Senator Linda Holmes (D-Aurora)

Summary: Allows a Commissioner, rather than the Entire IL WC Commission, to issue an emergency work-stop order prior to a hearing.

The bill requires the Commission to issue a notice of emergency work-stop hearing when and emergency work-stop order has been issued.

IL Employers with 2 or more violations are prohibited from self-insuring for a period of one year.

Monies in the IL Self-Insurers Security Fund and in the Illinois Workers' Compensation Commission Operations Fund may be expended for salaries and benefits of the Self-Insurers Advisory Board employees and the operating costs of the Board.

We learned about this legislation via the IL State Chamber of Commerce. I always recommend my clients join and support the State Chamber that is the number one watchdog for the interests of Illinois business.

Synopsis: Update on IL SB 1596.

Editor’s comment: I received an excellent article indicating the changes proposed in IL SB 1596 may not be effective until year 2044 due to a constitutional issue of longstanding nature.

If you are concerned about the business-busting aspects of this new proposed but misguided legislation and want to review that article, I am happy to send it. Please simply send a reply.

4-9-2019; KCB&A Closes Your Toughest WC Claims Faster!!; Is a Workers’ Comp Claim Exempt from a Bankruptcy Claim by Lilia Picazo; How Hyatt Hotels Would Go Broke and more

Synopsis: Keefe, Campbell, Biery & Associates Closes WC Claims Faster Than Our Competition. Try Us and See!!!

Editor’s comment: I/we continue to tell clients and potential clients, KCB&A closes our WC files faster than our competition. We have a number of great approaches to doing so.

First and foremost, we are the only Midwest Defense Firm whose motto is “The Only Good File Is A Closed One!” We are committed to closure of your toughest WC claims in the five States we practice in. We assume you have set aside reserves for each claim and there is a cost involved in looking at money you have sitting there but can’t use. Getting a defense attorney who understands that simple math is hard to understand—we understand it at KCB&A.

Some/many workers compensation claims can be closed rapidly, if a few parameters are satisfied. It is hard to predict what may turn a routine WC claim into a sticky mess that just won't close. That is always the challenge for risk managers, claims handlers and defense attorneys. There probably are as many answers as cases, but the answers likely can be drilled down into a few common themes, some of which apply to your claims action plans.

The course of a claim may be influenced by the accident report, initial care, the claims evaluation and course of treatment. Frequently the employer controls treatment for some period of time post-injury. OccHealth and ER treatment should be provided by a health care provider appropriately qualified to treat the injury. It is also important to have an OccHealth provider that knows your business and the availability of light work. Long prior to an accident in the workplace, we suggest all clients have a designated OccHealth or Emergency provider for all workers—we further recommend you post such information in the workplace and/or your website.

If you have a WC PPP or designated health plan for all workers, push hard to have them get into it and stay in it. I have a presentation that includes the concept of an IL WC PPP—if you want to review it, simply send a reply. We consider an IL  

Claims closure stops if you have a physician chosen by Claimant who is a “disability enabler” who predictably writes off-work slips regardless of objective findings and sometimes without any medical basis. It's important to focus on what the injured worker can do, not what he/she can't do. Also note a physician or other caregiver who does not identify, diagnose and appropriately treat a legitimate injury, and who might return the patient to full duty despite the existence of objective clinical findings, may turn short-term impairment into a long-term problem.

When there is a dispute between claimant and employer or insurer, operate by the rule of reason. Our claims history suggests claims become protracted when any party to the claim takes an unreasonable position about a key issue or issues, whether it is medical treatment, return to work, continuing disability or settlement value. Positioning a case for the best possible outcome is the goal of the risk manager and claims handler along with your defense attorney. If either side digs in with unrealistic goals, lengthy and expensive litigation may ensue. Stay objective, avoid hardened positions, and keep personal competitiveness on the sidelines.

No One May Be Able to Move a WC Claim Until MMI.

Drive your claims to maximum medical improvement or MMI. It is possible but much more challenging to get a claim closed while treatment or surgery is ongoing. There are lots of paths to MMI—press the button on great experts for IME’s, nurse case managers and return to work coaching/meetings. It is possible to get a claim settled before care is completed, send a reply if you have such a claim and need my insight.

Once at MMI and Back to Work—Make the First Offer of Permanency/Impairment!

As a veteran defense lawyer, I smile when asked to request a demand from opposing counsel. To me, that can be a sign of lazy negotiating. Two things can happen when I am told to “ask for a demand.” One is the other side rapidly looks at their best case and asks for “way too much money.” I then have to fight and kick to bring them back down to a reasonable middle ground. The time it takes to get them to the land of reasonableness can then be characterized as being my fault when the problem is the approach.

The other bad thing that happens with “asking for a demand” can be even worse—now I have given control of the claim to my opponent! If they ignore the request, the adjuster is certain to email or call and ask what the heck I have been doing. All I can say in response is—I made the request for a demand and the other side is ignoring me.

The answer to all of it is to carefully look at your file and figure out what you feel is best to settle and make the first offer. Then I have the ability to tell the hearing officer I am being reasonable, my client is okay with this and let’s get ‘er done and closed!

To sum up, have a plan in place for OccHealth; identify necessary accident information and obtain medical records and bills in the claim; rely upon the knowledge, expertise and contacts of defense counsel; keep the case moving by cajoling whomever is dragging their feet; seek out appropriate experts (I can help if you want recommendations); and consider using KCB&A’s Medicare/CMS experts.

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

Synopsis: Is a Workers’ Compensation Claim Exempt from a Bankruptcy Claim? – Seventh Circuit Certifies the Question to the Illinois Supreme Court. Analysis by Lilia. Y. Picazo, J.D.

Editor’s Comment: On December 1, 2016, Ms. Hernandez filed for Chapter 7 bankruptcy in the Northern District of Illinois. She reported as exempt a pending workers' compensation claim she valued at $31,000.00. Ms. Hernandez owed large sums of money to three medical providers who provided treatment for her work-related injuries. Ms. Hernandez settled her claim shortly after without knowledge of the trustee or approval by the bankruptcy court. 

In February 2017, the medical providers filed an objection to Ms. Hernandez's claimed exemption, arguing a failure to notify the bankruptcy court of the settled claim was a product of fraud, and that a 2005 amendment to the IWCA permitted the unpaid providers to reach the workers' compensation settlement. In April 2017, a hearing was held on the claimed exemption in bankruptcy court. The bankruptcy court denied the exemption. Ms. Hernandez appealed. 

The U.S. District Court for the Northern District of Illinois in Chicago affirmed the ruling and held "using the workers' compensation exemption to thwart this specific class of creditors would frustrate the Act's purpose." Ms. Hernandez appealed to the Seventh U.S. Circuit Court of Appeals on the following issues:

Whether the Illinois Workers’ Compensation Act, as amended, allows care-provider creditors to reach the proceeds of workers’ compensation claims. Section 21 of the Act has been interpreted by bankruptcy courts to create an ex-emption for these assets. The 2005 amendments made several changes to the Illinois workers’ compensation regime, imposing a new fee schedule and billing procedure for care providers seeking remuneration. Did those changes alter the scope of section 21?

Section 21 of the Illinois Workers' Compensation Act provides:" No payment, claim, award or decision under this Act shall be assignable or subject to any lien, attachment or garnishment or be held liable in any way for any lien, debt or damages." In 2005, several amendments were made to the IWCA, including permitting a medical provider to seek payment from the employee where a disputed claim settled. Section 8.2(e-20). 

Ms. Hernandez argued the 2005 amendments to the IWCA did not contain specific language or exemptions permitting medical creditors to reach workers' compensation settlements. 

The medical providers argued allowing the exemption would go against the purpose of Section 8.2(e-20) of allowing medical providers to seek payment directly from an employee after a claim has settled. 

The Seventh Circuit agreed with both arguments. However, the court stated the Illinois Supreme Court had not yet "addressed the interplay between these competing components of state workers' compensation law." The court found itself "genuinely uncertain about the correct interpretation," and certified the question to the Illinois Supreme Court. We’ll continue to apprise you of any developments in this case.

The research and writing of this article was performed by Lilia Y. Picazo, J.D. Lilia can be reached with any questions regarding workers’ compensation law at lpicazo@keefe-law.com.

Synopsis: How Hyatt Hotels Would Surely Go Broke—Follow the Insane State of IL Government Business Model.

Editor’s comment: Try to imagine Hyatt Hotels BROKE and in bankruptcy… Try to imagine if new IL Gov. J.B. Pritzker adopted the State of Illinois’ insane business model for his family business, Hyatt Hotels.

Try to imagine if Hyatt Hotels provided non-competitive salaries for their workers that were much higher than its competition. Trust me, the State of Illinois overpays most of their workers, compared to the same jobs in the private sector.

Try to imagine if Hyatt Hotels allowed workers who became vested in unfundable fake gov’t pensions to be paid the same money as their highest salaries they made at their gov’t jobs within five years of retiring.

Try to imagine if Hyatt Hotels funded unfundable fake gov’t pensions for workers who didn’t work for Hyatt!!—The State of IL funds fake pensions for Circuit Court judges who are county employees and your local school teachers who don’t work for the State.

Try to imagine if Hyatt Hotels retirees were then given lifetime 3% compounded annual increases in retirement and were then were paid double, triple or quadruple their highest salaries at leisure in retirement literally until the day they died.

Try to imagine if Hyatt Hotels retirees were provided virtually free group medical coverage from the day they are hired until the day they died.

Try to imagine if Hyatt Hotels had 88 different departments to handle their affairs with each department having its own director, assistant to the director, HR manager, accounting manager, etc.—the State of IL has 88 departments set up in this flawed and awful business model with lots of redundancy.

Try to imagine if Hyatt Hotels had seven different security departments, like the State of Illinois that has seven different police departments. Let me say that again—seven different and independent State police departments???

Try to imagine if Hyatt Hotels had two entirely different accounting departments, like the State of Illinois that has both a Treasurer’s Office and a Comptroller’s Office that do almost exactly the same job.

Try to imagine if Hyatt Hotels had two different transportation departments, like the State of Illinois that has both the IL Toll Authority and the IL Department of Transportation that both do the same job.

This insane business model is why the State of Illinois has created the highest combined tax load for its citizens of all the United States and is working right now to possibly change the IL Constitution to add a crushing graduated income tax and planning to double (or higher) the Motor Fuel tax…

You don’t have to imagine--this is why thousands of Illinois citizens and businesses are departing our State for other places that aren’t insane.

If Gov. Pritzker can change the IL Constitution to raise taxes, why can’t he change the IL Constitution to change this insane gov’t business model and eliminate the redundancy and waste? Is there a Sanity Clause?

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

Synopsis: Update on IL SB 1596.

Editor’s comment: I received an excellent article indicating the changes proposed in IL SB 1596 may not be effective until year 2044 due to a constitutional issue of longstanding nature.

If you are concerned about the business-busting aspects of this new proposed but misguided legislation and want to review that article, I am happy to send it. Please simply send a reply.