7-17-2021; The New World of Wage Loss Diff Claims in IL WC--We Can't Ignore Rising Minimum Wage; Three New IL WC Arbitrators! I Didn’t Know The IWCC Was Looking!

Synopsis: The New World of Wage Loss Diff Claims in IL Work Comp—We Can’t Ignore Rising Minimum Wage.

Editor’s comment: In my view, one of the biggest changes in IL Work Comp Law and claims practice is happening and very few people noticed. What is happening is easy to understand—the IL state-wide minimum wage is now on an escalator that won’t slow until it reaches $15 per hour in what I believe is less than 3-1/2 years on January 1, 2025. Please note the increases aren’t tentative—the changes/increases are part of IL law which has already been inked by our wildly liberal legislature and Governor.

What this means to me is any IL worker in Mt. Vernon or Carbondale or anywhere “downstate” (or away from Chicago) who has any job will be making $11 per hour for the next six months, then $12 for next year, $13 for the year after, then $14 per hour, topping out at $15 per hour on 1/1/2025. Wage loss differential claims, for both sides of the IL WC matrix, have to take these increases into account when reserving, settling, trying or handling all such claims.

Increase to City of Chicago Minimum Wage is Already In Full Effect.

Effective July 1, 2021, the Chicago Minimum Wage was increased for all covered employees. The Minimum Wage has increased to either $14.00 or $15.00 per hour, depending on the number of workers at a business. For qualifying employers with 21 or more workers, the new Minimum Wage is now $15.00 per hour. For employers with four to 20 workers, the new Minimum Wage is $14.00.

Additionally, please note that there are also increased Minimum Wages for youth workers and tipped workers. When tipped workers’ wages plus tips do not equal at least the Minimum Wage, their employer must make up the difference. Further, all Domestic Workers are guaranteed Chicago’s new Minimum Wage, even those working for employers with fewer than four workers. Domestic Workers are given a Minimum Wage of $15.00 per hour from large employers and $14.00 per hour from employers with 0-20 employees. In addition to the Minimum Wage increase that comes into effect today, please be advised that effective August 1, 2021, all Domestic Workers, no matter the business size, will be guaranteed a $15.00 Minimum Wage.

Chicago businesses are required to post a notice with information for their employees on their rights under the Chicago Minimum Wage Ordinance – the notice is available in multiple languages on the Office of Labor Standards website.

It is the view of the defense team at KCB&A that anyone living within 50 miles of Chicago is included in “a reasonably stable labor market” for such jobs and should be treated as if they can make at least $15 per hour.

Why Am I Bringing This Up?

Well, the IL WC industry has to adapt to these changes that I am again confirming are the law—they aren’t proposals. If you are seeking wage loss differential benefits under Section 8(d-1) of the IL WC Act, and the worker has returned to a job paying the $11 per hour minimum wage when they are claiming they could have been making $20 per hour in the pre-injury job, I feel it would be a mistake to set wage loss benefits until age 67 at a gross loss of $9 per hour and a net loss of $6 per hour when they are certain to be making $15 per hour in a couple of years.

Please also note if an IL employer violates the law and tries to secretly pay less than minimum wage, all sorts of bad things are certain to happen. In my view, for IL employees, if you are managing and reserving and settling an IL WC wage loss differential claim, you have to use the numbers above, if you are going to get things right. Yes, it is going to be challenging and take more time. Yes, the “new math” is going to apply to settlements or awards for claimants, attorneys on both sides, hearing officers, Commissioners, Circuit and Appellate Court Judges/Justices.

To be blunt, someone who was injured and has permanent restrictions and returns to a minimum wage job paying $11 per hour right now isn’t going to be making $11 per hour in less than six months—they are certain to be making at least $12 per hour. Barring something unforeseen, their annual pay is certain to rise $2,080 dollars in the next year and every year after that until peaking under current law on January 1, 2025. If you need the math on what I am outlining, send a reply and I will help in every way possible.

Please Note IL is a One-Party State and This May Get Worse!

Our wildly liberal and unchecked IL legislature and Governor may again increase the minimum wage to $17, $18, $20 per hour! Both houses of our single-party IL State legislature have super-majorities and can’t be blocked. There is only public opinion to slow their roll. In my view, “democracy” failed in both Chicago and now Illinois and it won’t be coming back any time soon.

What is good about a higher minimum wage is some workers make more money. What is bad about a higher minimum wage is fewer jobs for humans—private employers have a strong incentive to mechanize, robotize and automate processes to get rid of expensive extra workers if and where possible. Government employers at many levels in this nutty State almost never adapt or cut back and the higher minimum wage will insure higher taxes and fees. I am sure the debate will continue.

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Synopsis: Three New IL WC Arbitrators! I Didn’t Know The IWCC Was Looking!

Editor’s comment: IL WC hiring remains a government secret on the level of nuclear armament. Okay, that might be overdoing it a bit but it remains amazing to me how the IL WC system decides they need to hire and add new staff and how the selection process works. You may note the secret-powers-that-be are working hard to tie Arbitrator compensation to a percentage of a sitting IL Circuit Court judge’s pay—this is going to insure IL WC Arbitrators will get a solid increase and make a tidy salary in the years to come. I am mildly surprised to see the IL State Chamber of Commerce supporting the new and increased hearing officer compensation recommendations, as their members will be paying the bill.

How Many IL WC Arbitrators/Hearing Officers Are Enough?

At present, it feels like the IL WC Commission has about a zillion hearing officers if you include all the Arbitrators and Commissioners and the 18 lawyers who support the Commissioners. To my understanding, Illinois citizens are leaving for lower-tax states, job recovery is slow due to Covid and lots of folks are working from home. It is hard to imagine the number of new IL WC claims is rising.

I am sure the new Arbitrator appointments are following an inclusion and diversity approach. I salute that as a solid idea I have written about and encouraged in the past. I also want to confirm all IL WC hearing officers—Arbitrators and Commissioners are honest, professional and well-versed in the law and practice of work comp. Please note this was not always the case in years past. I feel kudos need to be extended to Chairperson Brennan and the powers-that-be that run the IWCC for their hard work.

Three Newby Arbitrators Named

In short, Illinois Gov. J.B. Pritzker appointed three new Arbitrators to our IL Workers’ Compensation Commission. The new appointees are attorneys Roma Parikh Dalal, Antara Nath Rivera and Ana Vazquez.

• We learned Arbitrator Dalal recently worked as a partner at a solid defense firm, which like KCB&A has operations in a number of states. While at the defense firm, Arbitrator Dalal offered legal assistance, advice and counsel on workers’ comp matters.

• New Arbitrator Antara Nath Rivera was the current chief of general prosecutions at the Illinois Department of Financial and Professional Regulation’s Enforcement Unit. She supervised licensure cases for a “wide variety of professions” and previously worked as an administrative law judge for the Arizona Office of Administrative Hearings, according to the announcement. She has presided over cases involving the Arizona Medical Board as well as Social Security and Medicaid benefits. Rivera also previously worked as an investigator in the Workers’ Compensation Fraud Unit for the Illinois Department of Insurance, according to the announcement.

• Arbitrator Vazquez worked as the assistant attorney general in the Government Representation Division of the Workers’ Compensation Bureau within the Illinois Attorney General’s office. She represented the State in workers’ comp litigation. Before that, she worked as an attorney at a criminal defense firm, according to the announcement.

We assume the Arbitrators will be given calls and replace the TBA1 currently listed on the IWCC website. We look forward to working with them.

6-28-2021; Temp Workers in IL WC Can't Sue Borrowing Employers; Ronald Eugene Biery RIP and more

Synopsis: In IL WC, Temporary or Staffing Worker Can't Sue Borrowing Employer For WC-Covered Injuries. This is a “Must Read” for IL Staffing Risk/Claims Managers.

Editor’s comment: In Torrijos v. International Paper Co., No. 18-L-75, 06/22/2021, published, the Illinois Appellate Court ruled a worker's personal injury suit against her borrowing employer was barred by the exclusive remedy provision of Section 5 of the Workers’ Compensation Act.

International Paper Co. (or IPC) and Cano Container Corp. are packaging companies. In 2015, IPC purchased a glue machine from Cano and assumed its lease of a packaging plant in Aurora. IPC contracted with Kane County Personnel Inc. (or KCP), a staffing company, for workers. KCP hired Plaintiff Torrijos and sent her to the Aurora plant run by IPC.

On Plaintiff’s first day, Cano Container allegedly provided Torrijos with safety equipment and her assignment for the day. According to Claimant, no one from the staffing company ever came to the plant to supervise her work, and she considered a Cano supervisor to be her boss even though she understood KCP was hired her and was her “employer.”

When Torrijos reported for work, Cano Container assigned her to work at the glue machine. When the machine stopped, Claimant stepped down from the platform of the loading station and began to clean the machine table. As she was wiping, the machine restarted.

When the machine restarted, Claimant’s hand became trapped inside. She suffered severe injuries requiring multiple surgeries. Claimant’s claim was accepted and she received workers’ compensation benefits from KCP and its WC insurer.

Thereafter, Claimant filed a third=party lawsuit in the circuit court of Kane County against IPC. Torrijos named Cano Container and KPC as respondents in discovery as well.

Under Illinois law, Plaintiff in any civil action may designate parties other than named defendants as respondents in discovery if she believes they have information essential to the determination of who should properly be named as additional defendants. A person or entity named as a respondent in discovery may be made a defendant in the same action within six months.

IPC removed the case to federal court. Notwithstanding removal to federal court, the case remained on the Kane County management call. Later, a federal trial court judge remanded the case to the state court, since Cano Container had been joined as a defendant, eliminating federal jurisdiction.

Back in state court in Kane County, IPC moved for summary judgment on its exclusive remedy defense, arising from Section 5 of the IL WC Act. Cano also moved to dismiss the claims.

The Kane County state judge granted both motions. Plaintiff appealed.

In their ruling, the Illinois Appellate Court said IPC was entitled to immunity under the exclusive-remedy defense as a borrowing employer.

“An employee in the general employment of one person may be loaned to another for the performance of special work and become the employee of the person to whom he is loaned while performing the special service,” the court ruling said. If the worker is injured, the borrowing employer is obligated to pay WC benefits. If the employer does not pay, the lending employer is responsible for payments. As long as the lender or borrower pays benefits, they have immunity from civil liability based on the provisions of Section 5 of the IL Workers’ Compensation Act.

The Appellate Court ruling said the record established IPC had the authority to direct Claimant’s work. She worked the same shift as IPC employees and received instruction and assistance from the company's supervisors and employees. IPC set her schedule and she received safety equipment from the company.  

Though Claimant said only KPC could remove her from her assignment, she acknowledged IPC could dismiss her by requesting KPC, as a staffing company, no longer send her to work at IPC.

“Accordingly, viewing the evidence in the light most favorable to plaintiff, the record demonstrates no genuine issues of material fact with respect to IPC’s direction and control of plaintiff’s work,” the court said. The court ruling also said Claimant’s acceptance of an assignment and awareness she worked for a borrowing employer amounted to implied consent to the borrowed employee relationship.

I checked online and Claimant’s WC claim is pending and active.

We appreciate your thoughts and comments. Please post them on our award-winning blog. To read the court’s decision, click here.

Ronald Eugene Biery   January 3, 1949 – Rest in Peace June 16, 2021

Some people just garner a reaction and Ron Biery was one of them. Ron was born January 3, 1949 in Rosebud County, Montana and he was raised by his mother Gladys and stepfather Hugh, however he was also raised by his brothers and sisters. He grew up in Rosebud and spent a lot of time on the farm with his brothers. He left Rosebud for the U.S. Marines after he graduated high school in 1968, and then came home from Vietnam decorated, including a Purple Heart, and honorably discharged.

He became an apprentice butcher in Hardin Montana in 1970, and wed Vicki Yerger in August 1970. Ron and Vicki had three kids, Shawn (named in honor of Hugh), and twins, Ronda and Renae. They owned Camp Custer Service before purchasing Hardin Meat Market in 1976 and eventually owning a grocery store, Shawnalan’s. They moved to Bozeman, Montana in 1985 and after exploring several opportunities, he entered into auto sales and later expanding to include transport.

He spent the last 35 years in business in the Gallatin Valley, watching his kids build their families, even after he and Vicki parted. He went from being the baddest man in Montana to become ”Papa Cupkake” to the last generation who were lucky enough to know him. If he was on your side, there was no greater friend. When you heard the stories, you were sure they cannot be true, but everything you heard was “mostly” true.

He was proceeded in passing by his parents and all of his siblings, save Julia Ann (Judy) Juell.  He is also survived by the mother of his children Vicki Little, his children, Renae (Kevin) Mattimoe, Ronda Thompson, and Shawn (Debbie) Biery, and his current companion Ann Lower.  He is survived by 12 grandchildren and one great grandson, too many nieces and nephews to count, as well as hundreds of honorary children and grandchildren who will all be better off from him being in their world. Graveside services were in Forsyth MT on Saturday June 26, 2021 at 1pm. A celebration of life is being planned tentatively for August 8, 2021 in the Gallatin Valley.

6-21-2021; Why We Send You Draft Contracts before Settlement Submission to the Arbitrator; IL Firefighters Unions Get Expanded/Presumptive MRSA and other conditions and more

Synopsis: Why KCB&A Sends Draft IL WC Settlement Contracts to YOU For Review Before Getting IWCC Approval.

Editor’s comment: We had someone question why draft settlement contracts were being forwarded for adjuster and risk management approval before IWCC submission and Arb approval. I have been advised there is a national WC insurer that may be directing their adjusters not to “review” such contracts. With respect, I don’t understand or agree with that approach, to the extent outlined below.

Our goal isn’t to have adjusters or risk managers “approve” settlement contracts from a legal perspective—that is what your legal defense team does. But there are important issues that need to be brought up, if relevant, to insure the adjusters, risk managers and legal defense are all on the same page.

Please remember when IL WC claims settle and most of them settle, it is not technically possible to “close all rights” without a settlement contract signed by the parties and then approved by the Arbitrator assigned. Please also note it is a challenge, legal and otherwise, to change an IL WC settlement contract after an Arbitrator or Commissioners stamps them as approved.

As defense attorneys, KCB&A’s focus in sending IL WC settlement contracts is to be completely certain, at the end of the claim, that all issues are resolved to the claims and risk managers expectations. Anything less may be tragic and/or unfortunate. Please note it is challenging to “blame” the hearing officers if you mess up the settlement terms/issues.

First and most important, when sending contracts for claims/risk approval, we want to be sure the math on the settlement matches the adjuster’s  and risk manager’s reserves and authority—they can clearly “approve” the amount they extended and expect to pay. That isn’t legal—it is common sense.

Next, we also want to be sure we aren’t missing something of importance, like

• Completely filling out the IL WC settlement contract to insure you have the accurate amount of lost time and TTD paid;

• Accepting or otherwise “handling” unpaid, disputed or unpresented medical bills—this is intricate and I am happy to fully explain how KCB&A handles this issue;

• Insuring we cover/pay a child support lien the adjuster or the account is aware of or

• Recouping a missed IME appointment fee or

• Innocent overpayment/miscalculation by the adjuster or risk managers that we may or may not seek to recover at settlement.

We consider this to be solid, common sense stuff that all defense attorneys should adhere to and all insurance carriers/TPA’s should require. I appreciate your thoughts and assistance and will publish settlement concepts with your permission.

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Synopsis: IL Firefighters Union Gets Expanded/Presumptive Coverage for Staph and Other Infections.

Editor’s comment: Please note IL Firefighters Unions are “hotly” aggressive and want more and more perks for their members. I truly feel this legislative change is unneeded but our legislators almost never turn down a request from these unions. Please note in many villages, towns and municipalities, the number one cost of firefighters is their benefits.

As I have told my readers in the past, our IL Firefighters Unions like to paint the picture of firefighters being constantly exposed to smoke from thousands of fires. In fact, most firefighters don’t deal with live fires at all or very infrequently—building codes ‘work’ and our houses and commercial properties are rarely involved in live fires. I recommend your municipality consider going to “Community Service” officers, trained to have police/fire and EMT abilities so they can fulfill and rotate at all three positions and eliminate feather-bedding for do-nothing workers. You can save millions in tax dollars to do so. If you have interest, send a reply.

Staph Infection Presumption Measure Heading to Governor Pritzker

Illinois lawmakers have passed a bill that would create a rebuttable presumption that Methicillin-resistant Staphylococcus Aureus, also known as MRSA, is compensable for firefighters, emergency medical technicians and paramedics.

The Senate on May 28 voted 52-0 to pass House Bill 3662, sponsored by IL State Rep. Marcus Evans, D-Chicago.

The bill was not amended since the IL State House of Representatives voted 115-0 to pass it April 21 and it has been presented to Gov. J.B. Pritzker who isn’t going to fight with the unions over this bill.

HB 3662 would add staph infections, including MRSA, to a list of other conditions presumed compensable for first responders that include lung or respiratory disease, heart conditions, hypertension, tuberculosis and cancer.

The bill would take effect immediately if signed into law.

Pritzker has 15 days — excluding Sundays — from receiving the bill to sign it, veto it or allow the measure to become law without his signature. Our wildly liberal Governor is expected to sign and make it seem like it was his idea.

The Illinois General Assembly adjourned its 2021 session. The world of Illinois government may again be safe for a time!

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