4-19-2021; Trying For WC News of Interest--CompFile is Coming to an IL WC Claim near you; Just because NCM's aren't mentioned in the IL WC Act or Rules doesn't mean they don't provide value and more

Synopsis: Lots of My Readers are Asking—What is Up, Are You Still Writing the KCB&A Update?

Editor’s comment: The problem I am facing during the Great Pandemic of 2020-2021 is there isn’t much news that I feel is of interest to the greater WC community. There have been very few IL WC Appellate Court rulings to report on. I am not a “news-creator” and don’t feel it necessary to stretch to find headlines. When I have news that is “fit to print,” I promise to publish.

Here are a couple of thoughts that may be of interest to you.

First, CompFile for IL WC is interesting and “real.” Settlement contracts are already part and parcel of this new process. The transcript phase of CompFile is about to launch. Please take the time to read below for information on how the system will work on the court reporter end of things. Also included are a few suggestions that will improve the ease of transition to CompFile for court reporters and attorneys/paralegals on both sides.

In IL Zones 1, 2 and 3, transcripts are ordered by both parties 95% of the time. The transcript is then sent to you by email and a copy is also sent to the Arbitrator. Both parties split the cost. This will remain unchanged. 

When a Petition for Review to the IWCC panel is filed, there will be no more paper copies of the transcripts mailed—it will all be online. All transcripts will now be accessed through CompFile. The assigned court reporter will upload the transcript and associated exhibits to CompFile. If both sides order an interim transcript, the cost of the exhibits will be the only charge remaining to both parties if an appeal is filed and this will be split between both parties. Again, this is ONLY if both sides order an interim transcript at the time of the trial. Please be aware that the CompFile system tracks downloads of the transcripts. If you do not purchase a transcript, you are not entitled to the court reporter’s work product. 

As has been your practice in the past, the certified court reporters would appreciate prompt payment once the transcript is uploaded and available in CompFile. Some court reporters will be requiring pre-payment but they do not want to do that if they don’t have to. When only one party orders at the time of trial, the necessary price adjustments will be applied, but do keep in mind it is considerably more cost=effective when both sides split the transcript at the time of trial, and the arbitrators have all told the reporters it is extremely helpful to them when they have a copy of the transcript when writing their decisions.

Please consider the following while we make the transition to CompFile—Stop With Staples!

The court reporters will be responsible for scanning all exhibit pages which will now be found at the end of the transcript rather than incorporated within. Staples make the scanning process difficult. Pages can be missed and torn. If you would consider using clips instead, it would make the reporter’s job much easier. Accumulated clips will be returned in bulk during dockets to reduce the added expense to your office so they can be reused.

Please don’t submit double-sided pages. 

Another very helpful thing would be if you would number each page within your exhibits. The numbering of pages will ensure that all pages are present and complete.

As far as DVDs, thumb drives, etc., please assume we will be schooled on that at some point but right now we have no idea how those types of exhibits will work. Now they just stay with the file.

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

Synopsis: If Something isn’t Mentioned in the IL WC Act or Rules, It Doesn’t Mean It Doesn’t “Exist.”

Editor’s comment: One of the Top Petitioner’s Attorneys Wrote in the WC Section of the ISBA Blog:

“The Illinois Workers' Compensation Act doesn't have any provisions regarding nurse case managers. So, I do not allow such persons to be involved in any aspect of the case.”

I have heard this objection to nurse case managers before. Please note my constant advice to the other side of the WC bar—no one puts an NCM or telephonic nurse on a claim because it is a minor claim.

Here are some simple thoughts—there are lots and lots of things that we deal with every day as WC professionals that aren’t mentioned in the law.

For one example, in the IL WC Act and Rules, there is a very short mention of Certified Vocational Counselors or CRC’s. The law confirms they have to be “certified.” There are no other provisions. CRC’s are used all the time by both sides of the bar.

Second, there is no provision or description of FCE’s or functional capacity evaluations. I do not feel FCE’s are “medicine” and should not be used, ever. Funny how they appear in case after case.

Third, Surveillance operatives are used constantly in workers’ compensation claims across the U.S. There is no mention of them in the IL WC Act or Rules. Their work, if relevant, is admissible and appears in numerous claims.

The simple point I am making is nurse case managers have a role in handling a WC claim. They are used when their expertise suits the claim. They follow rules and guidelines recommended by Petitioner’s attorneys. In my view, objections to NCM’s is easily cured—make sure they report to both sides of the claim simultaneously.

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

3-22-2021; Did You Know There are Two Types of IL WC Death Claims; Whole Lotta Shaking Going On at the IL WC Commission; Shawn Biery WC 101 Webinar Approaches and more

Synopsis: Did You Know There are Two Kinds of Death Claims in IL WC?

Editor’s comment: As odd as it sounds, it is true. There are two different sorts of claims which involve the death of a claimant in this State. Claims/risk managers need to be aware of how to handle each type of claim.

Section 7 of the IL WC Act

The first and perhaps most logical benefit stream arising from the death of a Claimant is what I have always called a Section 7 claim. For easy reference, such claims arise when a decedent suffers from an accidental injury or disease that is related to their work for the employer/Respondent. Please note such a claim requires the beneficiaries to prove their entitlement under Section 7—there is no “estate” in such claims. The beneficiaries of such benefits don’t get them via heirship; they get them because they qualify under the IL WC Act.

Each year, many workers die as a result of work related accidents throughout the country. The Illinois Workers’ Compensation Act was first created to protect the families of workers following the Cherry Mine Disaster in 1909 that left lots of starving kids and widows. Accordingly, the Illinois Workers’ Compensation Act protects the families of victims of such devastating events by mandating tax-free life-supporting benefits to the victim’s family and dependents.

The first death benefit is the payment of medical bills related to the life-ending injuries or disease. The employer must pay these charges under the IL WC Medical Fee Schedule. A family suffering from such a life-changing and devastating loss are not stuck with mountains of medical bills that may have been incurred during life-saving efforts and intensive care.

The second death benefit that Illinois law mandates is the payment of burial expenses. Illinois law currently requires the employer pay $8,000.00 for these expenses.

The third and final death benefit that Illinois law mandates is a tax-free benefit of weekly compensation. The surviving spouse and children of a worker killed in a work related accident generally are entitled to weekly benefits of 2/3 of the victim’s average weekly wage. There is a high minimum in this State for such benefits and it rises regularly. The benefit may continue for as long as 25 years (and in certain circumstances, even longer). Please note such benefits to a typical spouse and children can be well into the millions—if you are dealing with an IL WC death claim, we invite you to contact the defense team at KCB&A to insure you are paying what is due and also to be sure you aren’t paying what isn’t due.

In the event that a spouse remarries, he or she may be entitled to an immediate two-year lump payment. If that circumstance applies, the weekly death benefits may end. The surviving children are entitled to benefits until they turn 18 years of age.  If they are enrolled as a full-time student, they are entitled to benefits until the age of 25. In certain circumstances, dependent parents or other dependents also may be entitled to death benefits.

Please also remember you can seek to settle a Section 7 death claim with a lump sum—there are lots of intricacies in doing so and you will have to bring the settlement to an Arbitrator for their approval. Again, the defense team at KCB&A is expert at handling such compromises and can fully advise you in every possible option to get this done and off your books.

Workplace fatalities are not limited to traumatic events.  Workplace fatalities also can be caused by exposures to environmental toxins such as chemicals, radioactive agents, and coal dust. Heart attacks and strokes that lead to death, even in people who may have had preexisting (conditions), are work related if some factor of the victim’s job, such as exposure to extreme temperatures or physical activity, can be said to have caused the heart attack or stroke.

Importantly, for first responders or essential workers that suffer or die from COVID-19, Illinois law presumes such workers got the virus from workplace exposure. The families of these workers are entitled to the same death benefits.

Type Two—the “Other” IL WC Death Claim

The second and possibly confusing-to-newbies IL death claim occurs when someone with a valid IL WC claim passes from causes unrelated to anything to do with their work. This happened during the pendency of a WC claim in an appellate decision called Illinois State Treasurer v. Estate of Kormany.

In Kormany, Claimant suffered an accidental injury that appears to have been valid. Claimant then died of causes unrelated to his workers’ compensation claim. There is no evidence of record that a personal representative was appointed and substituted as the petitioner following Kormany’s death.

Instead, the Application for Adjustment of Claim was amended to substitute the Estate of Kormany as petitioner. When confronted with similar circumstances, Illinois courts have found that the plaintiff’s death suspended the court’s jurisdiction until the appointment of a proper party plaintiff. See Voga v. Voga, (finding that party’s death suspended the trial court’s jurisdiction until the court appointed a proper successor plaintiff); Washington v. Caseyville Health Care Ass’n, (holding that client’s death terminated attorney’s authority and, since there was no plaintiff, the court’s jurisdiction was suspended until a party plaintiff was appointed).

Accordingly, the Appellate Court unanimously held that Kormany’s death suspended the IL WC Commission’s jurisdiction over his claim until such time as a personal representative of Kormany’s estate was properly appointed and substituted as the petitioner. In the absence of such an appointment and substitution, the Commission’s decision was premature and therefore improper. As a result, both the decision of the Commission and the judgment of the circuit court were vacated and things had to start anew.

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

Synopsis: Whole Lotta Shaking Going On At the IL WC Commission.

Editor’s comment: We believe this is accurate news on changes at our IWCC.

• Commissioner Doug McCarthy retired after stellar service and his post is now vacant.

• We have been advised former Commissioner Coppoletti has moved on to other ventures.

• Commissioner Stephen Mathis is now taking over the position held by former Commissioner Coppoletti. Commissioner Mathis has been reappointed for 2years.

• Commissioner Deborah Simpson has been reappointed for 4 years.

• Commissioner Thomas Tyrrell has been reappointed for 2 years.

• I am fairly sure but can’t confirm former Arbitrator Robert Harris is now a Commissioner.

• I am also pretty sure Deborah Baker is a Commissioner.

Found this on the web:

Name (Last, First)

Term Expires

Member Since

Affiliation

Appointed By

Position

Title

County

Baker, Deborah

1/20/2025

3/19/2021

Democrat

Governor

Member, Labor

Cook

Brennan, Michael

1/16/2023

3/15/2019

Democrat

Governor

Chair, Public

Cook

Doerries, Kathryn

1/16/2023

9/23/2019

Republican

Governor

Member, Business

DuPage

Flores, Barbara

1/20/2025

3/15/2019

Democrat

Governor

Member, Public

Cook

Harris, Christopher

1/20/2025

3/19/2021

Democrat

Governor

Member, Business

Cook

Mathis, Stephen

1/20/2025

2/10/2017

Republican

Governor

Member, Public

Cook

Parker, Marc

1/16/2023

3/15/2019

Democrat

Governor

Member, Labor

Madison

Portela, Maria

1/16/2023

3/15/2019

Independent

Governor

Member, Public

Cook

Simpson, Deborah

1/20/2025

3/6/2017

Republican

Governor

Member, Business

None

Tyrell, Thomas

1/16/2023

2/10/2017

Democrat

Governor

Member, Labor

Cook

There is a bill in Springfield that seeks to tie compensation for all IWCC hearing officers and our Chairman to a percentage of the giant and forever escalating salaries of IL Circuit Court judges. Understanding this State is hilariously broke and getting broker every minute of every day, I can only say with chagrin that making our IL WC hearing officers compensation automatically increase in synchronicity with judicial compensation, we, as a State, will be broker, even faster. That isn’t politics folks, it is simple math. I sometimes feel like the only person in the entire State who says: “Hey folks, we can’t afford that….”

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

Workers' Compensation 101: The Basics of Work Comp

Presenter: Shawn Biery

Illinois Workers’ Compensation Defense Attorney, Law Professor & Mediator at Keefe, Campbell, Biery & Associates

Shawn is a veteran workers’ compensation and employment defense attorney who utilizes a lifetime of experience, including Marine Corps experiences conducting desert warfare training, to determine strategies for general litigation defense. He is a member of the Workers’ Compen­sation Lawyers Association, ABA Advisory Board, and National Council of Self-Insured.

Thursday, April 8, 2021 Noon - 1 pm, Central Standard Time
 

SIH Work Care invites you to attend a Webex event. This event requires registration. After you register, you'll receive a confirmation email message with instructions on how to join the event.

Register Here

3-16-2021; 21st Century Cures Act Should Open Up Medical Notes for Patient Use; Appellate Court Rules Injured Worker Can't Sue Employer's Parent Co for Negligence and more

Synopsis: Federal Rules Mandating Open Medical/Treatment Notes—Electronic Medical Records may be Free for Claimants in WC across the U.S.

Editor’s comment: Taking effect in twenty (20) days or on April 5, 2021, rules implementing the bipartisan federal ‘Cures Act’ specify that clinical/medical notes are among electronic information that must not be blocked and must be made available free of charge to all patients. I assure you this includes workers’ comp claimants who obtain care. To meet the interests of some patients, the rules allow specified exceptions that I feel make sense—see the two exceptions at the bottom.

I continue to monitor details affecting the implementation of what is also called the Information Blocking Rule and watch this space for updates as they appear.

Federal Rules on Interoperability and Information Blocking, and Open Notes

The program rule on Interoperability, Information Blocking, and ONC Health IT Certification, which implements the 21st Century Cures Act, and requires U.S. healthcare providers give patients access without charge to all the health information in their electronic medical records “without delay.”

Common questions about the Information Blocking rule can be found in this FAQ.

View the full USCDI

The eight (8) types of clinical notes that must be shared are outlined in the United States Core Data for Interoperability (USCDI), and include:

• consultation notes

• discharge summary notes

• history & physical

• imaging narratives

• laboratory report narratives

• pathology report narratives

• procedure notes

• progress notes

Clinical notes to which the rules do not apply:

1. Psychotherapy notes that are separated from the rest of the individual’s medical record and are recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session. Note: All clinicians and organizations are required to share medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.

1. Information compiled in reasonable anticipation of, or use in a civil, criminal or administrative action or proceeding.

What is the timeline for when these new rules go into effect?

Under this new rule, clinical notes must be shared by health systems by April 5, 2021, and shared with a patient’s 3rd party application (“app”) that may be downloaded to a smart phone or other device by October 6, 2022.

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

Synopsis: Injured Construction Worker Can't Sue Employer's Parent Company for Negligence

Editor’s comment: In Munoz v. Bulley & Andrews LLC, No. 1-20-0254, 02/10/2021, the Illinois Appellate Court ruled a worker injured on a construction project could not proceed with a tort suit against the parent company of his direct employer because it secured workers’ compensation insurance coverage for him.

In Munoz, an LLC named RAR2-222 South Riverside LLC contracted with Bulley & Andrews LLC to serve as the construction manager for a project at a property owned by RAR2. The contract required Bulley obtain a workers’ compensation insurance policy for its employees. Bulley obtained a policy from Arch Insurance Group that covered its employees as well as those of Bulley & Andrews Concrete Restoration.

Although Bulley Concrete was a wholly owned subsidiary of Bulley, the companies had different presidents, employed different people and had different specialties. Bulley used Bulley Concrete workers to perform concrete work for the RAR2 project, though it did not execute a subcontractor agreement with Bulley Concrete as it did with the others.

Donovan Munoz worked for Bulley Concrete. He injured his back in December 2016 while working on the RAR2 project. He has an IL WC claim still pending.

In the civil claim, it was alleged workers placed blankets on top of freshly poured concrete to prevent it from freezing. Precipitation caused the blankets to become waterlogged, and Munoz hurt his back while trying to move one. Bulley paid workers’ compensation benefits to Munoz.

In April 2019, Munoz filed suit against Bulley, RAR2 and Behringer Harvard South Riverside LLC, another alleged owner of the building. Munoz claimed that the blankets placed on top of the concrete were worn out and riddled with holes, which allowed water penetration. He claimed this caused the blankets to become unreasonably dangerous.

Bulley filed a motion to dismiss, contending Munoz’s claims were barred by the exclusive remedy provisions of the Workers’ Compensation Act. The trial judge granted the motion.

On appeal, the Illinois Appellate Court ruled the IL Workers’ Compensation Act generally bars a worker from seeking a civil remedy from his employer for a work-related injury. The court further ruled Illinois case law has established civil immunity extends beyond a worker’s immediate employer to a party that has borne the costs of the workers’ compensation insurance coverage for the injured worker. In this case, the court noted, RAR2 created a legal obligation for Bulley to pay for workers’ compensation benefits of Bulley Concrete’s employees, including Munoz, and the obligation predated his injury.

The court noted Bulley satisfied its obligation by purchasing coverage through Arch, which allowed Munoz to collect benefits. The court, therefore, ruled Bulley was entitled to use the exclusive remedy provisions of the IL WC Act. The Appellate Court affirmed the lower court’s dismissal.

To read the court’s decision, click here.