12-22-2021; Get Vaccinated or Test Weekly Per OSHA for Employers with 100+ Workers; Important Settlement Ruling by IL Supreme Court; Dr. George Holmes Retires; IL Minimum Wage Goes Up and more

Synopsis: U.S. Employers with over 100 Employees Need to Come into Compliance To Block Covid-19.

Editor’s comment: In short, get them all vaccinated or test and test every week! Don’t get cited by OSHA, you may regret it.

Five days ago, on December 17, 2021, a federal Court of Appeals dissolved the stay of OSHA’s Emergency Temporary Standard (ETS) previously ordered. Therefore, OSHA’s standard mandating workplace vaccination and testing on all private employers with 100 or more employees is back on.

On December 18, 2021, the day after the federal decision was released, OSHA announced that it will not issue citations for noncompliance with the ETS before January 10, 2022 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022 — so long as you are exercising reasonable, good faith efforts to be in compliance.

What should private U.S. employers with 100+ employees do? Get going!!! In the nineteen days from now to January 10, 2022:

1. Finalize and publish your COVID-19 vaccine policy to your employees;

2. Distribute and publish to your employees the following notices:

   1. Workers’ Rights under the COVID-19 Vaccination and Testing ETS https://www.osha.gov/sites/default/files/publications/OSHA4159.pdf

   2. Information for Employees on Penalties for False Statements and Records https://www.osha.gov/sites/default/files/publications/OSHA4157.pdf

3. Finalize your Vaccination Roster by obtaining proof of and confirming who is fully vaccinated and who is not. This should be done in a confidential manner.

4. Provide Paid Leave for anyone obtaining the vaccine (note: Boosters do NOT count) (up to 4 hours per shot).

5. Permit a “reasonable amount of time” of paid leave for the recovery from any ill-effects of any vaccination dose.

6. Mandate masks and appropriate face coverings must be worn by anyone who is not fully vaccinated at all times (unless isolated in an office with four walls and a ceiling).

Then, by February 9, 2022, you need to:

A) Require your employees to be fully vaccinated (Note: boosters are NOT relevant under the current ETS); and/or

B) Require all unvaccinated employees to submit to weekly testing. 

Under the ETS, employees who are exclusively working remotely or predominantly working outside are not subject to these requirements.

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Synopsis: Armstead v. National Freight’s Jurisdictional Issue Highlights the Importance of Settlement Contract Terms. Research and Writing by Michael Palmer, J.D.

Editor’s Comment: Claimant Armstead worked for Manfredi Mushroom Cos. Inc, as a truck driver. Manfredi Mushroom was based in Pennsylvania. Armstead was involved in an MVA or truck accident in Minooka, Illinois, and filed a workers’ compensation claim in Pennsylvania. This case eventually settled. When that happened, his only listed injury on his Pennsylvania settlement contract was a right knee sprain.

Armstead thereafter filed a tort claim against the other driver and his employer in Illinois, asserting the driver’s negligence caused the accident. Armstead sought damages for injuries to the back, shoulder and knee as a result of the collision. Defendant argued “collateral estoppel” or issue preclusion applied, as Armstead’s workers’ compensation settlement contract clearly limited the injuries to a knee sprain. The trial court judge agreed and found the settlement agreement constituted a judicial admission that prohibited Armstead from alleging additional injuries.

Armstead filed a Motion for Reconsideration, which was denied, and he then appealed. Two weeks after filing his notice of appeal, Armstead filed a motion with the trial court for voluntary dismissal with prejudice with leave to refile for any claims for injuries concerning the right knee strain. The Judge ruled that prior orders dismissed any claims for injuries aside from the knee strain, and the case was dismissed without prejudice with leave to refile.

It appears Claimant did not timely refile the claim after this dismissal.

After a second notice of appeal was filed (and consolidated with the first), the Appellate Court ruled Armstead’s claims for additional injuries were barred via collateral estoppel. They further opined there was no unfairness in the ruling because Armstead had the opportunity to pursue the other injuries in his workers’ compensation claim.

The Illinois Supreme Court granted leave to appeal. In response, Defendants filed a motion to dismiss arguing the appeal was moot. The Supreme Court denied the motion to dismiss but claimed it lacked jurisdiction to rule on the issues raised on the appeal. In their reasoning, the Court stated the circuit court’s order simply resolved an issue related to Armstead’s claims but did not dispose of them. Further, they believed the circuit court judge made an error in issuing a finding that there was no just reason to delay enforcement of the appeal, because the order must terminate the litigation in order to be appealable. Our highest Court also believed the IL Appellate Court lacked jurisdiction to review the orders, and as such, jurisdiction remained with the circuit court. Finally, the Court said the action remained dismissed, as Armstead had dismissed his action in the circuit court and failed to timely refile it. Therefore, the Appellate Court’s decision was vacated and remanded for dismissal.

Justice Ann Burke dissented, disagreeing with the decision to remand the claim to the circuit court for dismissal, as she argued there was no such thing as a “claim for a right knee strain”. I agree with Justice Burke but it does appear the matter remained dismissed due to Claimant not refiling it timely.

This ruling is not only interesting for the trucking industry, but any employer in Illinois. The decision highlights the importance of settlement contract terms in Workers’ Compensation, and the effect they have on a third-party action. As this ruling suggests, workers’ compensation settlement contracts may have a controlling effect on any injuries claimed in subsequent litigation. Employers should be aware of such when settling claims.

This article was researched and written by Michael Palmer, a solid defense attorney at KCB&A. Mike can be reached any tie at mpalmer@keefe-law.com.

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Synopsis: Dr. George Holmes, Nationally Known and Respected Foot/Ankle Doc, Retired.

Editors comment: We just learned of the retirement of this great surgeon and want our WC community to know of it. He will not easily be replaced.

Dr. Holmes had a long and distinguished career. I am sure he provided care to IL injured workers and was a fair and reasonable IME doc, when that was needed. He was an Associate professor, Director Section of Foot and Ankle at Rush U. Medical Center and the Foot and Ankle Fellowship Director.

The defense team at KCB&A wishes him all the best in his future endeavors.

Synopsis: Claims Handlers/Risk Managers/Attorneys on both sides--Don’t forget about the January 1 Minimum Wage Increase For Workers In IL But Outside Chicago.

Editor’s comment: Chicago already has a minimum wage of $15 per hour at major employers and $14 per hour for small/mid-sized workers.

Outside Chicago, Illinois employers face another increase in the minimum wage. On January 1, 2022 the IL minimum wage, for companies outside Chicago, rises to $12-per-hour, and will continue to increase one dollar per hour on January 1 of each year until it hits $15-per-hour on Jan. 1, 2025.

Please note this change is IL law. It isn’t pending signature by the Governor—it is the law right now and moving forward. I don’t feel Arbitrators can ignore the law, as enacted. In my view, the change directly impacts reserves and awards/settlements for IL WC wage loss and “loss of trade” claims. Happy to explain.

12-13-2021; "Two Doctor" Rule in IL WC and Other Thoughts; WC/OD Asthma Claim Denied by IL Appellate Court; We mourn the passing of Ellis Sostrin and more

Synopsis: The “Two Doctor” Rule in IL WC and Related Concerns about Controlling Medical Care in this Liberal State

Editor’s comment: A fundamental benefit of the Illinois Workers’ Compensation Act is the employer’s liability for costs associated with reasonable and necessary related medical care pursuant to the effects of or the aggravating effects of accidental injury or illness. The section of the Illinois Workers’ Compensation Act which discusses the employer’s liability to pay for such medical services selected by the employee is discussed in Section 8(a) of the Illinois Workers’ Compensation Act which limits the employer’s liability to the following:

(1) all first aid and emergency treatment; plus

(2) all medical, surgical and hospital services provided by the physician, surgeon or hospital initially chosen by the employee or by any other physician, consultant, expert, institution or other provider of services recommended by said initial service provider or any subsequent provider of medical services in the chain of referrals from said initial service provider; plus

(3) all medical, surgical and hospital services provided by any second physician, surgeon or hospital subsequently chosen by the employee or by any other physician, consultant, expert, institution or other provider of services recommended by said second service provider or any subsequent provider of medical services in the chain of referrals from said second service provider. Thereafter the employer shall select and pay for all necessary medical, surgical and hospital treatment and the employee may not select a provider of medical services at the employer’s expense unless the employer agrees to such selection. At any time the employee may obtain any medical treatment he desires at his/her own expense.

In my view, the term “reasonable” within the context of Section 8(a) of the Illinois Workers’ Compensation Act refers generally to the modality and costs of care and how those costs compare to what is being charged by other medical providers with similar qualification providing similar modalities of care and treatment. The term “necessary” within the meaning of Section 8(a) of the Act refers to whether the necessity of the medical care and treatment which is the subject of the bill being submitted to the employer for payment relates to the effects of or the aggravating effects of the accidental injury or repetitive trauma manifestation at issue.

Amendments to the original Section 8(a) of the Illinois Workers’ Compensation Act were made. The most notable change to Section 8(a) of the Act at that time was the inclusion of what has now come to be known as the “two doctor rule.” Simply stated, the two doctor rule limits the injured worker to two medical providers of their own choosing. However, the injured worker can still see as many medical providers as is necessary providing the injured worker is referred to subsequent physicians by one of the two medical providers. In other words, the injured worker is entitled to two chains of referred doctors providing their care is reasonable and necessary.

Many times, despite the obvious nature of a work injury and the necessity for related medical care, medical providers, particularly specialists, will insist on receiving authorization from the claims adjuster in the workers’ compensation case before the specialist will provide the injured worker the care he or she needs.

Reining in What Appears to be Unlimited Medical Care in IL WC

In my view, the three top “tools” for IL WC adjusters, risk managers and defense attorneys implement to limit or block medical care are

1. Utilization Review—submitting a claim for medical care or surgery or PT thru UR provides all sides a quick and simple analysis of what the world of medicine offers to insure appropriate care but not “over-care.” I personally feel UR is not considered or used enough by many IL WC adjusters. When you, as an adjuster see a doctor extending care or asking for authorization for too much treatment, UR should start and remain in place for any and all care from that point forward. Please note UR has “presumptive effect” if it is properly implemented. Please note UR analysis is technically not supposed to include opinions about causal connection.

2. IME’s or Independent Medical Exams—this is an exam of the claimant by an expert in the field who can opine about the nature of the accident, causal connection and the appropriateness of surgery and medical care. An IME expert can also opine about restrictions and return to work. The problem with IME’s is there is a cost for hiring a great expert and there are delays in setting the exam and getting reports. I recommend veteran and well-versed experts who know the IL WC system. If you want a recommendation on the right expert for your claim—send a reply.

3. Surveillance—this is a tool that makes sense in bigger claims. Please see the review of a recent decision involving surveillance below. If you can catch a Claimant acting in a fashion inconsistent with their complaints and requested care, it is a strong tool to block over-treatment. In some settings, you may want to share the surveillance results with an IME expert to give them a “big picture” of how claimant appears when they aren’t in a doctor’s office. If you disclose the surveillance to the IME doctor, it will almost certainly be disclosed to opposing counsel.

FCE’s or Functional Capacity Evaluations are Routinely Hogwash—Please don’t approve or authorize.

An FCE is a supposed “test” of a Claimant at some point as they approach MMI or maximum medical improvement. The FCE test is a two-hour or four-hour job focused analysis. The problem with the FCE process is there is no conceivable way to insure the test has any validity. Lots of Claimants will feign injury/complaints or lack of recovery to then have the person performing the test assert the worker has permanent restrictions. When that happens, IL WC claims move into wage loss differential or total and permanent disability values that can run into the six and seven-figure range.

What drives me slightly batty about FCEs is a given Claimant will be with a registered physical therapist who tracks their recovery and abilities for weeks and sometimes months. The RPT will carefully document improvement and capabilities to then, at the end of PT, have claimant undergo a short FCE test and summarily be adjudicated “disabled” in contradiction of PT records. Validity for some FCE testers can be based on “grip strength” for a worker with knee or spine issues—I have no idea how grip strength has anything to do with such claims.

I would ask the various FCE providers not to waste their time and my time writing to tell me their FCE’s are brilliant and I am wrong. I have grown tired of hearing it and won’t agree so, please save your time.

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

Synopsis: IL Gas Worker Loses WC/OD Claim for Alleged Aggravation of Asthma.

Editor’s comment: The IL Appellate Court issued a ruling denying workers compensation benefits for a gas journeyman with pre-existing asthma who claimed he was exposed to toxic fumes. I feel the surveillance evidence in this claim strongly supported a denial of the claim for total and permanent disability.

Claimant, an employee at Ameren Corp. in Springfield, Illinois, was diagnosed by one doctor with a “permanent and irreversible condition” of “severe irritant induced workplace associated bronchial reactivity” after inhaling gas fumes in 2013.

Claimant sought medical treatment after the alleged first exposure in September 2013 and returned to work two days later. In May 2014, he was diagnosed with a bronchial condition associated with workplace irritants and was advised to take work leave. He later returned to work in September 2014 and claimed he experienced a second work-related exposure.

In reviewing his WC/OD compensation claim, some medical records indicate Claimant’s respiratory issues and preexisting asthma were temporarily exacerbated by the two gas exposures, as outlined in part of the appellate opinion.

The Arbitrator found Claimant failed to prove any permanent ill effects from the exposures and denied this claim. Respondent accepted the claim to an extent and paid for medical treatment and other benefits for what the arbitrator found to be temporary exacerbations.

Claimant appealed and lost at the IWCC. The Commission's decision denying the claim for total and permanent benefits was reversed in Circuit Court. Respondent appealed, contesting the claim for permanent loss. In the IL Appellate Court, WC Division, they noted medical records were introduced that revealed 15 or 16 separate occasions from May 1999 to August 2013 where Mr. Duncan complained of pulmonary symptoms, including shortness of breath, coughing, tightness in his chest, and wheezing.

While Claimant was on disability leave from work, investigators videotaped him attending an outdoor barbecue at the Elks Lodge in Fairview Heights, Illinois. Claimant stood next to a smoking grill, wrapped hotdogs and hamburgers, and placed them on trays. The barbecue smoke did not appear to cause him any respiratory distress. He unloaded children's bicycles from a pickup truck and jumped down from the bed of the truck. He walked around on the grounds. He stood in a group of people, one of whom was smoking cigarettes. The tobacco smoke did not appear to bother Duncan. On a different date, at the Elks Lodge, he was videotaped moving picnic tables.

In the arbitration hearing, Claimant asserted, at the Elks Lodge, the wind was blowing hard and he was upwind of the barbecue smoke and cigarette smoke.

The IL Appellate Court reversed the circuit court's judgment and reinstated the Commission's denial.

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Synopsis: The IL WC community mourns the passing of attorney Ellis Sostrin, may he forever rest in peace.

Editor’s comment: Attorney Sostrin was one of the top Claimant attorneys of a generation at the IL WC Commission. He is survived by his daughter who is as sharp and as smart as her amazing father. Ellis and I didn’t always see eye-to-eye but we had great respect for each other. He was a kind, hard-working and congenial man and I think a part of him will always be in our hearts.

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11-29-2021; Covid-19 and Its Late-comer Mutants Are Staying for Now—What is Happening in IL Work Comp/OccDisease; Understanding IL WC Status calls and more

Synopsis: Covid-19 and Its Late-Comer Mutants Are Staying for Now—What is Happening in IL Work Comp/OccDisease.

Editor’s comment: Decisions from IL WC arbitrators indicate the “presumption” of coverage for Covid-19 exposure/illness should be rebuttable, if done so carefully. Early results indicate Illinois employers and insurers might be able to rebut the presumption making COVID-19 or its new mutations compensable by providing

• Evidence of employer efforts to mitigate the spread of the disease in the workplace;

• A contact history of other folks to whom the worker might have been exposed in the workplace;

• Documentation of the worker working from home or outside the traditional workplace;

• Use of PPE or personal protective equipment by the worker.

Please note my view Covid-19 is, to some extent, an all-or-nothing-at-all WC-OD claim. Some folks who test positive for Covid-19 have little to no side-effects and return to full health rapidly. Some folks can be very, very ill and/or pass from this awful bug. The nature of such serious WC-OD claims can be devastating with six and seven-figure reserves.

Last year, Gov. Pritzker signed House Bill 2455, creating a presumption COVID-19 is compensable for anyone in an “essential business” with more than 15 employees. Most observers feel the definition of essential businesses is so encompassing it includes almost all IL employees.

This bill allows employers and insurance carriers to rebut the presumption of Covid-19 infection when:

§  Claimant worked away from your normal workplace for 14 or more consecutive days immediately prior to getting sick.

§  The employer used workplace sanitation, social distancing and health and safety practices for at least 14 days prior to the claimed injury.

§  Claimant was exposed to the Covid-19 by a defined source outside employment.

Please also note Illinois is a one-party liberal state and by all appearances is going to remain a one-party state for a generation or more due to what I feel is our impossible-to-fund-fake government pensions. In a one=party state, I feel it is going to be challenging to get a defense decision without overwhelming evidence of infection outside the workplace.

The first reported IL WC-OD decision addressing the presumption and coverage for a Covid-19 infection, was filed October 2021. You may note, from the media report I have reviewed, it appears the employer lost the dispute.

Claimant worked as a computer operator, and the employer met the wide IL WC-OD definition of an essential business (I am unsure what is “essential” about operating a computer). Claimant tested positive for COVID-19 in April 2020 and claimed he was exposed to coronavirus at an on-site work meeting earlier in April. The employer argued they implemented safety measures, including sanitation and handwashing stations, and encouraged workers to maintain social distancing. The company also said it was possible Claimant, who was in the company of his family, could have been exposed outside the workplace via family and friends.

The employer presented evidence at the time the worker got sick, between 10-15% of its staff had COVID-19. The infection rate across the County was triple that percentage but there still was evidence the bug was present in the workplace in question.

The arbitrator noted evidence the employer implemented workplace efforts to reduce transmission, and confirmed that evidence could be sufficient to rebut the presumption. However, the arbitrator also found there was no evidence the employee had direct contact with the virus outside of the workplace and that it was more likely than not that he was exposed to the disease through employment. Benefits were awarded.

The defense team at KCB&A has a number of Covid-19 claims pending that we are aggressively handling in the best interests of our clients. We/I am happy to consult on a set of facts without charge—simply reply.

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Synopsis: Understanding IL WC Status Calls by Mike Palmer, J.D. and Eugene Keefe, J.D.

Editor’s comment: We’ve received many questions from our clients and friends asking how exactly an Illinois Workers’ Compensation “status call” works. In sum, the status calls are the lifeblood that drives closure of IL workers’ compensation files.

There are approximately 29 Arbitrators at the Illinois Workers’ Compensation Commission, with more on the way after recent appointments from Governor Pritzker. Once a case is filed with the IWCC, it is randomly assigned to an IL WC Arbitrator in the relevant area of our State. Somewhere around 35,000 new cases are filed annually in this State so with a “shelf-life” of about three years, there are about 100,000 or so in the works at any given time.

Once the computer puts the matter on the Arbitrator’s status call, it goes on a calendar, which runs every 90 days. For 2-1/2 years, the matter will roll over without either side needing to getting engaged, other than an emergency petition. The status call calendars can be readily accessed online via the IWCC’s great website—go to https://www2.illinois.gov/sites/iwcc/resources/Pages/calendars.aspx

Attorneys on both sides can elect to file a motion for hearing at the call, whether it be a Petition for Immediate Hearing under 19(b) or 19(d), a regular Request for Hearing, Motion to Dismiss, Motion to Withdraw or any other relevant motion. To our understanding, you can’t try a claim without a pretrial first.

Please also remember before most hearings/settlements, claims, legal and risk handlers in this State need to drive claims to MMI with claimant back to some sort of work, if and when possible. IL WC cases tend to sit longer until MMI and RTW are reached. Happy to explain or help with a given claim, send a reply.

An IL WC claim has a shelf life of three years before it is “above the redline”, which means the case has to start to reach disposition--it must have a hearing, be dismissed or be settled. These older cases take priority in getting a date before the Arbitrator, along with 19(b) Motions. However, since the Covid-19 Pandemic began, the redline has not been strongly enforced, leaving many cases sitting. We have been advised the redline will begin being enforced again starting November 1, 2021.

If the claim does not receive a hearing date or if it actually received a hearing date that was later determined to be not needed, it is what we call “returned to the call”. This means no action will be taken until the next cycle of status calls. Often a case will receive a pretrial date and the parties will work out issues prior to the pretrial and return the case to the call. If the case proceeds to pretrial, the parties discuss the claim before the Arbitrator and seek to resolve the issue at hand.

Please note the stallers and grinders on the Claimant side will always claim they “need medical records/bills” and can’t be prepared to try/settle their claims. There are any number of IL Claimant lawyers who assert this as a reason for endless continuances. What KCB&A lawyers do when we hear this dodge is to ask what doctors/records/bills are needed and we go after the bills/records to then share electronically with our clients and the attorneys on the other side.

As noted, the redline begins to be enforced next month. This will be great for Respondent attorneys looking to move files that have been languishing since the beginning of the pandemic as a result of inactive Petitioner’s attorneys.

Happy to discuss any aspect of this email topic and/or IL WC status calls. This article was researched and written by Mike Palmer, J.D. and your editor. Mike can be reached at mpalmer@keefe-law.com. Or just send a reply.

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