12-28-2021; Toward a Better Understanding of Workers’ Compensation; Illinois' Awful BIPA Law Rears Its Business-Busting Head Again; HAPPY NEW YEAR and more
/Synopsis: Toward a Better Understanding of Workers’ Compensation, As We Enter a New Year.
Editor’s comment: I have been doing this stuff—workers comp—for several decades. Here are some thoughts about my life’s work and where the system is at from a veteran WC defense lawyer. Please note very few business schools teach WC so what most of us learn, we learn by the seats of our pants—by that I mean we rely on training in other fields and our best judgment. To all adjusters and risk managers and attorneys on both sides out there in “Blog-Land,” I am happy to answer any questions or provide training, usually at no cost—send a reply.
I have always told defense clients and my students ‘workers compensation’ is “work injury” insurance or self-insurance. The concept of WC being insurance is slightly difficult because most people with a job are entitled to WC benefits for a bona fide work-related injury or disease whether “insurance” is in place or not. If the employer doesn’t have insurance or self-insurance, they face the dual challenge of paying benefits that are due along with facing potential penalties/criminal charges for not acquiring the requisite WC insurance policy. If you are an employer, please, please get WC insurance.
Keeping WC in the context of insurance does provide some basic concepts for folks that don’t understand how WC “works.” Basically, if you have a job and get hurt or sick, you can seek coverage through your employer for medical care, lost time and “permanency” or impairment. To obtain that coverage, a worker has to jump through a few hoops. The incident/event has to be “real” and not made up. Every State and the Federal WC systems have reporting requirements--if you injure yourself or become sick and don’t tell anyone, the WC claim is, at some point, going to fail.
In IL WC, an incident or illness that you claim is related to work in this State has to become known to the employer within 45 days of the employee knowing their condition is related to something that happened at work. Once the employer is aware of an incident or event causing disability or disease, it is incumbent on the employer and/or their carrier to fully investigate and document the claim.
Please also remember not every incident/event occurring at work is necessarily covered under WC. IL WC and many states have “litigation systems” to resolve WC claims. A litigation system works in many ways by insuring injured workers are represented and get solid legal advice/counsel. I want all sides of the WC matrix to understand a litigation system doesn’t work well if there are no defenses and literally every claim is compensable. If all an arguably injured worker has to do to get WC benefits is to fill out a form and check the right boxes, the carriers are certain to simply pay. In short, if there are no viable WC defenses, we won’t need attorneys on either side or Arbitrators and Commissioners.
Are There Real and Valid Defenses to IL WC Claims—YES!!!
I recently wrote about an IL Appellate Court ruling where a worker asserted she tripped over a curb—as there was no true defect in the curb, sidewalk and roadway, benefits were denied and the worker didn’t receive anything under the WC system. Please note it would have been extraordinarily challenging to get a defense decision if the incident investigation wasn’t thorough.
You have to investigate any incident at work to defend your company and limit the loss. A strong workers comp claims program has to carefully and thoroughly investigate incidents and do solid follow-up work to insure you are reserving and then paying what you owe under your WC program and carefully fighting what you don’t owe. You can fight claims to challenge
“Accident arising out of and in the course of employ”—this includes two disputes
Is the worker telling the truth about the event/incident and
Assuming the worker has told the truth are the injuries technically covered under WC
Causal connection—whether a given condition is medically or mechanically related to what happened in the incident as being related;
Lost time or TTD;
Medical care and/or potential over-treatment or overbilling;
MMI or Maximum Medical Improvement;
Permanency or Impairment;
Other miscellaneous issues, like getting the TTD/PPD rates correct or paying statutory loss early in amputations or fatalities.
A New Challenging Trend—Global Compensability
We are recently seeing some employers who are basically “accepting” any and all actual and potential WC claims. For any number of reasons, we disagree strongly with this claims approach and assure everyone this approach is going to result in
Unpredictable reserves and
Lots of other workers making specious and unsupported claims as they are seeking an easy way to get a pot o’ gold.
Two issues are almost certain to arise when you don’t investigate properly. First, if the employer doesn’t investigate and document each and every actual or potential claim, you end up having to “own” all aspects of the claim and very rapidly lose any chance to defend, accurately reserve and manage what is coming at you from your worker and the medical community.
Second, if an employer is doing little or no work incident investigation and Claimants are getting whatever they like from the WC claim, you will see LOTS and LOTS of claims. There are lots of workers who are happy to get “free money” and be paid not to work.
Most folks are happy to remain home, treat with their doctor occasionally and then seek large PPD/Impairment settlements. For claims and risk managers who want to insure you are doing a good job investigating, the defense team at KCB&A has a great presentation on Incident/Event Investigation that will allow you to carefully and thoroughly document any potential WC claim. If you have interest, send a reply.
When you have a strong incident reporting protocol in place, you have a much stronger ability to accurately accept/deny a claim and then set reserves for accepted pending claims. If you aren’t thoroughly investigating WC claims at the first instance, you are like a ship without a rudder in high seas—you are going to bounce around and struggle to manage the claim.
If you do a solid investigation, you can
Confirm technical compensability by asking the defense attorneys at KCB&A;
Set accurate goals for maximum medical improvement;
Protect the workers job, if you want the worker back upon recovery;
Keep the worker advised of their continuing position with the company;
Project medical and indemnity costs and claim costs with accuracy;
Drive closure within your expectations.
How About An Online or Web WC portal?
Understanding the internet has been around for some time, I suggest some of you look into and set up a WC web portal to facilitate reporting, access to forms and assistance when issues arise. One great examples is Northwestern University’s Risk Management website—
https://www.northwestern.edu/risk/risk-insurance/university-insurance-programs/workers-compensation/
My recommendation is to create web links for your WC forms, confirm availability to communicate/email quickly and smoothly with your risk and claims managers and get a better sense of what the injured/ill worker wants and needs.
I appreciate your thoughts and comments. Please post them on our award-winning blog at www.keefe-law.com/blog.
Synopsis: BIPA Won’t Go Away—An Awful Legislative Scheme Conceived by ITLA and Certain to Bankrupt Some IL Employers Without Any Real Reason.
Editor’s comment: The Illinois Appellate Court revived a worker’s suit against his former employers for alleged violations of the Biometric Information Privacy Act or BIPA. In my opinion, BIPA is a legislative scheme concocted by the IL Trial Lawyers Association to attack and bankrupt IL employers who were innocently tracking employees with modern biometric methods. It is moderately hilarious to note BIPA doesn’t apply to public entities so if your city, county or state government keep and retain biometric information, they don’t have to worry about the horrors of BIPA at all. No other State in our country or the world has our plaintiff-focused BIPA scheme.
You may note if our legislature wanted to stop the biometric tracking process, it would have been very simple to do so—pass a law banning it. Instead, ITLA and their friendly legislators put in a Plaintiff-oriented punitive and goofy law that requires employers to pay at least $1,000 each and every day they tracked a worker with such systems, as if the workers were being “injured” to provide a fingerprint or eye scan. Please note there are about 260 working days in a year so Plaintiffs such as this one would be entitled to about $260,000 a year in “damages.” Do the math and assume Claimant will be entitled to millions, while his employer files for bankruptcy when all the other workers sign up for this indefensible largesse. In short, the “Gotcha” BIPA legislation is almost impossible to defend and provides guaranteed business-busting damages and attorney fees and costs.
In Watson v. Legacy Healthcare Financial Services, Claimant Watson alleged he worked for his employer as a certified nursing assistant at different locations in Chicago. According to Claimant, his employer provides health care services at 26 facilities throughout Illinois. The company provides residential health care services.
Plaintiff asserted he worked at one location from December 2012 through February 2019 and at another from May 2017 through November 2017. From what I can tell in reading the decision, he wasn’t “injured” in any way and as I outline above, Plaintiffs don’t need to show any injury or economic problem. Throughout the duration of employment, Claimant alleged he was required to have his fingerprint and/or handprint collected and/or captured so that his employer could store it and use it as an authentication and/or bookkeeping method.
Claimant filed suit for violation of BIPA or the Biometric Information Privacy Act for their mistaken decision to track him with “biometrics.” The employer moved to dismiss the complaint, arguing the claim accrued on the first day they collected his biometric information in 2012 and this suit was barred by the statute of limitations.
In the alternative, the employers argued the claim was preempted by the coverage of the IL Workers' Compensation Act and the Labor Management Relations Act.
A trial court judge granted the motion to dismiss, finding this claim accrued in December 2012 with the initial scan. Therefore, the statute of limitations was five years and the suit, filed in March 2019, was time-barred. The trial judge also found the claim was not preempted by either the Workers' Compensation Act or LMRA.
The Illinois Appellate Court ruled Plaintiff’s claims against his employers were not time-barred. The court noted BIPA does not contain an express statute of limitation or set forth an accrual date, but its plain language establishes that it applies to each and every capture and use of a plaintiff's fingerprint or hand scan. The Act defines biometric information as any information, regardless of how it is captured, so long as it is based on an individual's fingerprint or hand scan and used to identify an individual.
Since Defendants allegedly used biometric information to check him into work each day and check him out, the court said, the act plainly applies to the twice-daily capture of Claimant’s hand to identify him.
BIPA requires an entity that collects and captures biometric information must "first" inform a worker and receive a release, and the court read this to mean the requirements apply to each and every collection and capture, and the entity may not collect or capture without "first" informing a subject and receiving a release.
While this employer argued if the accrual date is not the first collection and damages will unquestionably be ruinous, the court said it was not deciding whether each scan was a new and separate violation or a continuing violation.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: HAPPY NEW YEAR from KCBA!!!
Editor’s comment: 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. 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.