9-9-2021; IL WC Appellate Court Stunner--Voc Rehab Needs "Assessments" and Voc Rehab Now Includes Job Placement Services; IN WC Board Update by Kevin Boyle and more
/Synopsis: IL WC Appellate Court Stunner—VocRehab in IL To Include/Require Provision of Vocational “Assessments” and Job Placement Services.
Editor’s comment: Once I think this work comp defense stuff is easy, I read decisions such as this. Please remember there are many rules and requirements in IL WC that don’t have a penalty if you don’t follow the rules. But if the Commission and Courts are going to require it, the legal and claims industry is going to have to follow. As another preliminary thought, please also note this claim is 18 years old and still not done!!!
In their ruling in CDW Corp v. IWCC, our IL Appellate Court noted
The Illinois Workers' Compensation Commission found Claimant's work-related injury precluded her from returning to her usual and customary employment
This meant section 9110.10(a) of the Commission's rules “required” a vocational rehabilitation assessment. [the reason the word ‘required’ is in quotes is the uncertainty with who might be required].
Therefore the IL Appellate Court, WC Division
Reversed the circuit court's reversal
Of the IWCC's reversal
Of the Arbitrator's permanent total disability award and
The IL Appellate Court reinstated the Commission's denial of permanent total disability benefits and its award of $376.66 per week for 300 weeks.
Yes, if you aren’t sure that is a lot of “reversing.” No one can predict what remand might mean.
The dispute in CDW Corp. is whether Claimant Hajrullahu, who injured her back at work, is entitled to permanent total disability benefits on an “odd-lot” theory or, alternately, whether she is entitled to vocational rehabilitation. Arbitrator Dollison awarded her $376.66 per week in permanent total disability benefits for life on an odd-lot theory (among other forms of compensation).
On review, the Illinois Workers' Compensation Commission vacated this arbitration award of odd-lot benefits and instead awarded the claimant $376.66 per week for 300 weeks, representing a 60% loss of the person as a whole. Effectively, the IL WC Commission substituted a loss-of-person award for the permanent total disability benefits. The reason for the switch was the Commission found although Claimant's back injury "precluded her from returning to her usual and customary occupation," the injury "[did] not result in an impairment of her earning capacity."
Claimant appealed to the circuit court of Lake County. In the circuit court's view, the Commission's finding of no impairment of earning capacity was against the manifest weight of the evidence. Therefore, the court reversed the Commission's refusal to award the claimant odd-lot permanent total disability benefits. Please note my view impairment of earning capacity, by and of itself, does not support a total and permanent disability award. Please also note the term “odd-lot” in relation to anything in IL WC is not contained in the IL WC Act or Rules—it is a judicial creation that is whatever our Commission and Court’s want it to be.
The employer, CDW Corporation perfected an appellate challenge to the circuit court's reversal of the Commission's decision. The Appellate panel disagreed with the circuit court ruling the Commission's decision was against the manifest weight of the evidence. However, the claim isn’t over as the Appellate Court panel remanded the case back to the Commission for a vocational rehabilitation assessment.
Claimant is a native of Kosovo which is somewhere in southern Europe. She graduated from high school there. In 1983, she began taking college courses on preschool education. In 1984, however, because of the birth of her son, she had to drop out of college. Consequently, she took only five college courses. From 1981 to 1999, the claimant located a job and worked in Kosovo as a payroll clerk, writing down employees' hours and wages.
In 1999, the claimant immigrated to the United States as a war refugee. Upon arrival, she took a three-month course on English as a second language, as her native language is Albanian. A humanitarian organization helped her obtain a job with CDW. It would appear clear to me she knew she needed to locate work and was successful in obtaining work in at least two settings. On December 6, 1999, the claimant commenced work with CDW as a picker/packer. Her duties were to pick computer components off the shelves of a warehouse, scan them, pack them into boxes, place the boxes on a conveyor, and at the end of her shift, clean up her work area. From that description, I am going to assume she could read and respond to English writing.
On May 28, 2003, the claimant was pulling merchandise off a shelf when she claimed her back gave out. Welcome to Illinois, no real “accident” or safety failure appears to be involved.
The employer's section 12 examiner Dr. Edward Goldberg opined, the workplace incident of May 28, 2003 aggravated her lumbar spondylosis and her left-leg radicular pain. He restricted her from lifting more than 10 pounds. It appears she could not be a picker/packer for CDW anymore because boxes in that job weighed as much as 70 pounds.
About three years later, on November 6, 2006, CDW fired Claimant because she no longer could do the work, even with accommodation. Please note IL WC law does not require employers to keep injured workers on the payroll but you then have to deal with what that might later mean.
In year 2012, about six years after termination and nine years into this “never-ending” claim, Claimant underwent lumbar fusion of L4 to S1. Only in Illinois, the causal relation between this surgery and the workplace injury is undisputed. After the surgery, her treater provided a permanent lifting limit of 10 pounds.
The IME chosen by CDW, Dr. Goldberg opined lumbar surgery was reasonable and necessary and agreed with the 10-pound limit, although he recommended a functional capacity evaluation. With respect to Dr. Goldberg, it is my opinion FCE’s or functional capacity evaluations are not scientific, do not comprise “treatment” and never, ever help an IL WC claim.
About two years after surgery, on June 23, 2014, the FCE or functional capacity evaluation concluded Claimant was at the sedentary to light physical demand level. Specifically, the report mystically determined she could lift up to 14.8 pounds and that she could carry 17 pounds. In my view, the cost of the FCE was completely wasted and worthless because the lifting difference between the treater, IME doc and available work is miniscule. Send a reply if you want further thoughts.
On March 19, 2015, Claimant's vocational rehabilitation counselor opined no stable labor market existed for Claimant. He based, what I feel is a strained opinion, his expert opinion on Claimant's medical restriction to sedentary labor (not lifting more than 10 pounds), is allegedly sparse “vocational skills”, her education level, supposedly poor English, and limited computer skills.
Twelve years into the claim, her professional vocational counselor noted she would need help from a professional vocational counselor. From my perspective, that is borderline humorous and highlights how silly “professional” vocational counselors in this State can be.
The second voc counselor in the claim identified 14 job titles Claimant could fill: counter clerk, front desk clerk, grocery clerk, motel clerk, reservation clerk, shipping order clerk, production assembly, customer service clerk, administrative clerk, receptionist clerk, accounting clerk, appointment clerk, billing clerk, and car rental clerk. This counselor noted Claimant had transferable skills and positive factors for reemployment, including her high school education, her computer skills ( i.e., her professed ability to use Skype, Facebook, and e-mail), her solid work history, and her restriction to a sedentary or light physical demand level.
Based on all of the above and as I outline above, the Arbitrator awarded a T&P. The IWCC reversed and gave her 60% LOU body as a whole.
The Commission's reason for vacating the award of permanent total disability benefits and substituting a loss-of-person award was “the injury precluded [Claimant] from returning to her usual and customary occupation," the injury "[did] not result in an impairment of her earning capacity." The Commission was convinced by the second voc counselor’s "positive factors." The Commission gave greater weight to her opinions as Claimant] had transferable skills affording her access to a stable labor market."
The Appellate Court noted notwithstanding a disagreement on whether a stable labor market existed for the claimant, both voc counselors were in agreement on one thing: the claimant might benefit from vocational rehabilitation. Again, I consider that evidence to be unusual and amusing. I feel we are in a sad state of affairs to have vocational counselors testify vocational counseling would benefit someone looking for work. On January 15, 2014, Claimant, through her attorney, made a demand on CDW for vocational rehabilitation.
The majority Appellate opinion cited Section 9110.10(a) of the IL WC Commission's rules which provides as follows:
"(a) An employer's vocational rehabilitation counselor, in consultation with the injured employee and, if represented, with his or her representative, shall prepare a written assessment of the course of medical care and, if appropriate, vocational rehabilitation required to return the injured worker to employment. The vocational rehabilitation assessment is required when it can be reasonably determined that the injured worker will, as a result of the injury, be unable to resume the regular duties in which he or she was engaged at the time of injury." 50 Ill. Adm. Code 9110.10(a) (2016).
The Commission found Claimant's injury "precluded her from returning to her usual and customary occupation." In my view, a picker/packer isn’t an “occupation.”
The IL Appellate Court, WC Division, carefully noting two different vocational counselors testified in the matter, sent the matter back to the IWCC to get vocational counseling in the claim. With respect to the members of the Court, it appears vocational counseling was provided by both CRC’s or certified vocational counselors. For whatever reason, the members of the Appellate Court remanded the case to the Commission for a vocational rehabilitation assessment for reasons unclear to me.
Notwithstanding their disagreement on whether a stable labor market existed for Claimant, the two voc counselors/CRC’s were in agreement on one thing: the claimant could benefit from vocational rehabilitation. In her testimony, the second CRC admitted Claimant "[p]otentially" would benefit from job placement services—which were one form of vocational rehabilitation. The IL WC Act in Section (a) (provides "[v]ocational rehabilitation may include, but is not limited to, counseling for job searches" and "supervising a job search program").
The Appellate Court opinion notes on January 15, 2014, Claimant, through her attorney, made a demand on the employer for vocational rehabilitation. In the request for hearing, dated December 13, 2016, the parties identified vocational rehabilitation as an issue, and at the beginning of the arbitration hearing, Arbitrator Dollison acknowledged vocational rehabilitation was one of "the issues before us." In his decision, the arbitrator noted the claimant's demand for rehabilitation services and continued, "[The employer] offered no such services[,] without explanation. [The employer] did not provide [the claimant] with the vocational rehabilitation services she sought.
The Appellate ruling confirmed the IL WC Commission found Claimant's injury "precluded her from returning to her usual and customary occupation." Under section 9110.10(a), "[t]he vocational rehabilitation assessment is required when it can be reasonably determined that the injured worker will, as a result of the injury, be unable to resume the regular duties in which he or she was engaged at the time of injury." The Commission so determined. In section 9110.10(a), the only condition for a vocational rehabilitation assessment is that the work-related injury rendered the claimant unable to resume her regular duties. The Commission explicitly found that condition to exist. Therefore, a vocational rehabilitation assessment, which the court felt was never done in this case, is "required."
In my respectful view, it is hard to understand and mildly baffling that not one but two voc rehab counselors testified at the arbitration hearing to their vocational rehab “assessment” of the claim and their testimony doesn’t complete the requirements of the Rule cited. But the Appellate Court found that it did not.
So What Does This Ruling Mean to Your IL WC Claims?
Please note our main Appellate Court WC body indicates a voc assessment is “required.” They don’t advise who is “required” and/or what to do if Claimant or Respondent doesn’t obtain the voc assessment or refuses to participate or misses meetings. As I outline above, there is no particular penalty or sanction applied if an claims adjuster/attorney on either side knowingly or unknowingly fails to get a voc assessment. It does appear our IL WC hearing officers are going to order voc assessments and might threaten penalties/fees if their orders to get an assessment aren’t followed.
Therefore, it would appear to me the IL WC claims industry is going to have to follow this ruling. We suggest CRC’s/voc counselors across the State start to name their initial and continuing reports “assessments.” When and if Claimant’s have to change or/are changing jobs due to injury, we recommend job placement services be offered—this is a no-brainer.
Please also note if you have injured workers that don’t have solid English skills, get them into a English class! Ditto for computer skills. I am in the process of writing KCB&A’s book on job placement counseling and placement advice for your injured workers and will make it available to my readers shortly. Please also consider utilizing the WC defense skills of KCB&A, as we fight not to have claims sit like this one and go on for decades.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: Indiana Worker’s Compensation Board Portal UPDATE: Electronic Appearances Only. This is a “Must Read.” Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.
Editor’s comment: I am happy to report that the IWCB continues its move to update electronic filings. As you know, the IWCB’s EDI system is now greatly improved with updates to streamline and speed up form filings. As part of that switch, the IWCB has created a new Attorney portal as well.
The IWCB will no longer accept paper submissions of Appearances after the end of August 2021. This will save everybody time and money. No more mailing in Appearances and getting filed stamped copies back. It’s finally on-line filing!
Also, in case you didn’t know: paper submissions of SF 36097 (Notice of WC and Occupational Diseases Coverage) will no longer be accepted by the IWCB.
We appreciate your thoughts and comments. Please post them on our award-winning blog. To email Kevin Boyle for great defense advice on IN or IL WC claims, use kboyle@keefe-law.com.
Synopsis: AS WE HEAD INTO SEPTEMBER 2021 STILL IN A PANDEMIC IN IL—WC BENEFIT RATES RISE AGAIN—SHAWN BIERY’S UPDATED IL WC RATE SHEETS AVAILABLE SOON FOR ILLINOIS WC RATE INCREASE!!!
Editor’s comment: Illinois WC Rates Have Updated Again So Please Be Aware Of The New Rates or Your Claims Handling Will Suffer and Penalties May Ensue. Please also note that the IL State Min Wage is now $11 per hour and with the already mandated increases over the next few years wages are sure to go up to $15/hr in 2025, we will see the IL WC rates increase for sure.
Email Marissa at mpatel@keefe-law.com to Get a Free and Complimentary Email or Hard Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet! You can also send any questions to Shawn at sbiery@keefe-law.com
We note that the recent legislation to increase the statewide minimum wage eventually to $15/hr will lead to the continued rate increase in every cycle, so continue to watch the growth of IL WC rates. As we have mentioned in the past, since the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, WC rates continue to climb.
Please also note rising minimum wages will strip value from Illinois’ expensive wage loss differential claims. We feel reserves and settlements need to reflect the legislative boost to anyone who has any job. If you aren’t sure how this works, send a question to Shawn.
We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is $914.85.
The current TTD weekly maximum has risen to $1,693.76. An IL worker has to make over $2,540.64 per week or $132,113.28 per year to hit the new IL WC maximum TTD rate.
For WC Death Benefits: The new IL WC minimum has sped past the $825k floor for surviving widows/widowers. That amount is now 25 years of compensation or $635.16 per week x 52 weeks in a year x 25 years or $825,708! The new maximum IL WC death benefit is now over $2 million at the max $1,693.76 times 52 weeks times 25 years or a lofty $2,201,888.00 plus burial benefits of $8K. IL WC death benefits also come with annual COLA increases which we feel can potentially make Illinois the highest in the U.S. for WC death claims.
The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet. If you want just one or a dozen or more, simply send a reply to Marissa at mpatel@keefe-law.com AND you can also send any questions to Shawn at sbiery@keefe-law.com They will get a copy routed to you once we get laminated copies back from the printer—hopefully before they raise the rates again! Please confirm your MAILING ADDRESS to Marissa if you would like laminated copies sent to your home or office!
We appreciate your thoughts and comments. Please post them on our award-winning blog.