8-14-2021; "Global Warmed" Has Happened--What Does It Mean for WC?; Shawn Biery's New and Updated IL WC Rate Sheet and more

Synopsis: “Global Warmed” Has Happened and Sure to Get Worse—What Does It Mean for Work Comp?

Editor’s comment: In the last 60 days, the U.S. Pacific Northwest was hit with temperatures over 115 degrees—another boiling hot event is predicted in that area again for right now. Sicily, Italy just hit an all-time record temperature for Europe of over 115 degrees. In short, this planet is getting hotter and hotter and we aren’t truly doing much about it.

While those temps above may bother you and me, my bigger concern isn’t 115+ degrees—it is what we are going to do if Chicago or Milwaukee have to deal with 130 degrees or even 150 degrees! If you don’t think that can happen, trust me, every day it is getting worse and, in my view, thousands remain in denial and won’t admit this is real.

If you haven’t seen former Vice-President Al Gore’s 2006 movie titled “An Inconvenient Truth,” I recommend you and your family do so when possible. Al Gore did what he could to get folks out of denial. He made the clearest possible case for what we are going into from a temperature perspective with “Global Warmed”, as we move to the middle of this century. Basically, all temperatures across the globe are hitting higher and higher marks and are starting to be fatally dangerous.

Two things I believe Al Gore sorta ‘missed’ are simple and need to be considered by you, your family and friends.

First and most important, “Global Warmed” is certain to be deadly and possibly on a large scale. As temperatures claim to 130, 140, 150 degrees, this world will be a HOT mess. If we don’t address it and, in my view, we aren’t doing much to reverse this process, it is going to start killing us in moderate but ever-increasing numbers. “Global Warmed” is going to force millions of humans to move near oceans, rivers and lakes to find low cost methods to beat the heat. Please note that is going to expose those millions to weather events that continue to get wackier and wackier, like giant hurricanes, numerous tornadoes, continent-sized tsunamis, sweeping wildfires and flooding.

Second and probably sadder to contemplate is the problem we have as Homo sapiens—there are too many of us with lots more on the way. Al Gore’s focus in his analysis was “carbon” and all politicians now look at carbon as the apparent villain. In my view, that is missing the point. I feel if you have 15 people in a bathtub, common sense is going to tell you no matter how penurious those 15 people are with energy, the water in the tub is going to get increasingly warm. Right now, we have about 7.9 Billion people on this tiny globe. We are adding about 50 million new humans every year. In my view, India and China are going to lose thousands of citizens due to heat but they may also be the biggest cause of the problem, as they have no true program to slow their population growth and the rising heat that comes from billions of humans tightly packed.

The world population numbers have way more than doubled in my lifetime and they continue to skyrocket. As a species, we have done very little to slow or stop that spiraling number. In my humble view, our inability to cut the number of humans who we are sharing the globe with is causing the globe itself to cut the number, as sweltering heat is going to attack humans directly and also attack us indirectly by both drying up rivers, crops and forests while also flooding us out, as ocean waters rise and flow ashore.

What Does “Global Warmed” Mean for Workers’ Comp?

Well, risk management has to learn about the risks of having people out in triple-digit heat and work hard to avoid heat-related injuries and illnesses/fatalities in the workplace. In my view, your company is going to “own” heat-related risk and it cannot be ignored. To my knowledge, the fastest growing cancer is skin cancer, almost certainly from exposure to the sun’s rays—make sure your workers have appropriate sun-blocking hats, clothes and sprays. Please also remember heart attacks, strokes and fatalities are big number WC claims, from the perspective of lost time and medical care. Consider getting appropriate scientific devices to record and track weather and heat so if a late-reported claim from heat exposure is made, you can return to your computers to document or possibly challenge a major loss.

OSHA Provides Guidance on Heat-Related Risk Management

OSHA’s great website indicates outdoor workers who are exposed to hot and humid conditions are at risk of heat-related illnesses/injuries. The risk of heat-related illness becomes greater as the weather gets hotter and more humid. This situation is particularly serious when hot weather arrives suddenly early in the season, before workers have had a chance to adapt to inbound and ever-changing weather. For people working outdoors in hot weather, both air temperature and humidity affect how hot they feel. The "heat index" is a single value that takes both temperature and humidity into account. The higher the heat index, the hotter the weather feels, since sweat does not readily evaporate and cool the skin. The heat index is a better measure than air temperature alone for estimating the risk to workers from environmental heat sources.

Heat-related Illnesses/Injuries Can Be Prevented

OSHA does not have a specific standard that covers working in hot environments. Nonetheless, under the OSH Act, employers have a duty to protect workers from recognized serious hazards in the workplace, including heat-related hazards. The OSHA guide helps employers and worksite supervisors prepare and implement hot weather plans. It explains how to use the heat index to determine when extra precautions are needed at a worksite to protect workers from environmental contributions to heat-related illness. Workers performing strenuous activity, workers using heavy or non-breathable protective clothing, and workers who are new to an outdoor job need additional precautions beyond those warranted by heat index alone.

Workers new to outdoor jobs are generally most at risk for heat-related illnesses. For example, Cal/OSHA investigated 25 incidents of heat-related illness. In almost half of the cases, the worker involved was on their first day of work and in 80% of the cases the worker involved had only been on the job for four or fewer days. That's why it's important to gradually increase the workload or allow more frequent breaks to help new workers and those returning to a job after time away build up a tolerance for hot conditions. Make sure that workers understand the risks and are "acclimatized".

Outdoor workers include any workers who spend a substantial portion of the shift outdoors. Examples include first-responders, construction workers, agricultural workers, baggage handlers, electrical power transmission and control workers, and landscaping and yard maintenance workers. These workers are at risk of heat-related illness when the heat index is high. Additional risk factors are listed below. These must be taken into consideration even when the heat index is lower.

* Work in direct sunlight - adds up to 15 degrees to the heat index.

* Perform prolonged or strenuous work

* Wear heavy protective clothing or impermeable suits

Summary

The world around us is ever-changing. “Global Warmed” is certain to bring new and unpredictable challenges. If you and your company are going to succeed, you have to start to read up and research the best approaches to handling rising heat in your work sites.

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7-23-2021; Amazing New Surgery for CTS to Change U.S. Repetitive Stress Claims; Confusion from Colorado about Off-Site Workout Injuries and more

Synopsis: New Surgical Development Greatly Lessens Carpal Tunnel Repairs. This is a “Must-Read” for the United States WC industry. 

Editor’s comment: In Illinois, carpal tunnel claims and repairs skyrocketed for a time when the IL WC community was making giant PPD awards for such conditions. About a decade ago, there was a scandal, when numerous prison guards at a southern IL prison were all claiming CTS due to allegedly shaking truck steering wheels and opening/unlocking prison gates. At least one IL WC Arbitrator made CTS claims during this scandal to cash in. The IL Legislature passed new legislation limiting CTS claims in response to the scandal.

What is now happening is the medical/surgical industry has developed new technology that will dramatically limit the impact of CTS repairs/revisions.

Please note carpal tunnel syndrome (CTS) is a cumulative stress injury felt to be caused by repetitive motion that leads to compression of the median nerve from thickening of the transverse carpal ligament. An individual who suffers from CTS will likely have symptoms such as numbness, tingling, pain, swelling, and weakness in the wrist and fingers. In the early stages, CTS can be managed conservatively by:

• Wearing a splint at night or during certain activities

• Regularly completing strengthening exercises and stretches

• Medications, primarily anti-inflammatory medications

• Adopting recommendations to improve body mechanics, posture, and equipment usage

However, in the event of more severe CTS cases that significantly impact work and daily function, surgery will relieve pressure on the median nerve. Carpal tunnel release surgery has traditionally been performed using an open incision or sometimes endoscopically to cut through the ligament that that is compressing the nerve. Both of these procedures leave behind a 2-4 centimeter scar and require patients to abstain from most activities (including work) for weeks or more. What industry observers saw was a patient getting CTS surgery on one hand and take 90 days off to then have surgery on the other hand and take another 90 days off! Then our liberal IL WC system was awarding thousands of dollars in PPD. Several large businesses moved their operations out of our State due to these sorts of claims.

While the old-method surgeries are technically considered minimally-invasive, operating in such a small space is challenging, costly for both the procedure, surgicenter fees and several months of rehab treatment, and increases the risk of complications. The aftercare for these procedures is similarly burdensome. CTS has yielded some of the highest workers’ compensation payouts of all injuries/conditions and the longest average disability duration among employees receiving workers’ compensation.

We have recently learned of Ovation Hand Institute with locations in Chicago, Minneapolis, Milwaukee and Green Bay. Their highly innovative surgical technique redefines the term “minimally-invasive” by involving only two minuscule pinholes at the wrist. The new procedure is called Thread Carpal Tunnel Release (TCTR)—it is a proven-effective surgical procedure with over 2,000 cases to date and more being performed every day. TCTR eliminates the need for surgical tools and resulting scars. TCTR uses ultrasound imaging to insert a tiny thread into the hand/wrist that cuts the ligament and relieves pressure on the nerve.

This new and amazing surgical procedure:

• Reduces the risk of cutting nearby nerves, blood vessels, or tendons and this has never occurred in over 2,300 cases

• Has been successfully performed on over 2,300 patients with CTS, and no significant complications

• Only requires local anesthesia

• Is typically performed in under 20 minutes

• Performed in an office-based surgical suite with a single global fee with no equipment/surgical device costs and no surgicenter fees

Most importantly, TCTR has an unsurpassed recovery time and a much more rapid return to normal activities than was previously possible with endoscopic and traditional mini-open techniques.  All the Boston CTS scores of symptoms and functional abilities in the first six months after TCTR are also far superior to the endoscopic and mini-open scores.  Patients who received TCTR report returning to most daily activities within 1-2 days. The majority of patients even returned to work in under one week. TCTR is a revolutionary treatment method that stands to change the surgical care of carpal tunnel syndrome one patient at a time.

In my view, all aspects of CTS work comp claims should change as this new surgical procedure grows. Please note lost time in such claims may be contained to the IL WC three-day waiting period, ending the need to pay any TTD or otherwise greatly limit lost time. The results of the surgery leave the patient with pin-hole scars that may disappear and should provide greatly limited PPD, if any.

If you have Claimants seeking CTS repairs due to work, you have to recommend this new surgical phenomenon. Learn more at http://www.ovationhand.com

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Synopsis: Colorado Ruling Adds Confusion to “Working-Out-Away-From-Work” Injuries in the Post-Pandemic Era. Comments and research by Michael J. Palmer, J.D.

Editor’s Comment: A ruptured Achilles during offsite workout leaves a former Denver Broncos player without a career and hung out to dry. This injury posits a novel question for employees injured away from employer premises.

During the past NFL offseason, the NFL Players Association made a push for players to workout away from team facilities due to Covid-19 concerns. Former Denver Broncos offensive tackle, Ja’Wuan James, elected to do so and tore his Achilles while working out away from the team. The Broncos promptly placed him on the “non-football” injury list and released/fired him a week later.

This scenario raised the question, whether an injury sustained during an offsite workout arose out of and in the course of employment. A 1996 Colorado Supreme Court decision lends some guidance to the situation.

In Price v. Industrial Claim Appeals Office, the Colorado Supreme Court upheld benefits denial for two off-duty law enforcement officers who suffered injuries while working out away from their employer’s facilities. The Court laid out a five-prong test, giving more weight to the first two prongs. The Court stated

(1)  The injury must have occurred during working hours;

(2)  it must have happened on the employer’s premises;

(3)  the employer had to initiate the exercise regimen;

(4)  the employer had to exhibit some control over the regimen; and

(5)  the employer stood to benefit from the worker’s exercise. 

The Court noted, however, that an “extremely strong showing” on the last three factors could overcome a failure to satisfy the first two.

In James’ case, he was following a team workout plan the Broncos recommended, and the team sent letters to players encouraging them to stay in shape during the offseason. James can arguably make a strong showing on prongs three through five of the test laid out in Price, were he to seek workers’ compensation benefits. Employers who require their employees to stay in shape for their job should contemplate the level of control they exert while the employee is away from the premises.

This Article was researched and written by Michael J. Palmer, J.D. Please do not hesitate to inquire or ask for more information at mpalmer@keefe-law.com.

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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.