On the employment law front, the USDC in the Southern District of IL reaches a retaliatory discharge conclusion diametrically opposite to the Illinois Appellate Court ruling in Grabs v. Safeway and Dominick’s Finer Foods.

In the ruling in Grabs, the question was whether an Illinois employer can order an injured worker back to work in reliance on a defense IME. In their ruling, the Illinois Appellate Court addressed a certified question on an interlocutory appeal on this narrow issue of alleged retaliatory discharge. Plaintiffs filed a joint complaint alleging Defendant terminated them in retaliation for filing workers’ compensation claims. Defendant responded to assert Plaintiffs had been terminated for violating a neutral attendance policy when they missed three consecutive days of work subsequent to being advised to return to work pursuant the opinions given by Defendant’s IME. A battle over the IME and the ability of the employer to rely on the IME to terminate the workers went back and forth.

The Illinois Appellate Court initially ruled it was retaliatory discharge on a per se basis and effectively told the lower court to fire up a jury to simply determine the amount of damages, as they felt liability was not an issue. The Appellate Court later ruled it wasn’t per se retaliation to fire someone in reliance on an IME but the lawsuit was allowed to stand and was returned to the Circuit Court for hearing on both liability and damages. The Appellate Court announced their analysis of the situation required the employer to first go to the Commission to get a ruling about the efficacy of the IME before terminating the worker who ignored it. Many Illinois employers quietly backed off a policy of termination solely in reliance on IME’s.

After this ruling, our advice was not to fire a workers’ compensation claimant in reliance only on a defense ME. If you want to take a strong position, don’t fire the worker who won’t take an available job but put the reluctant worker on either leave of absence or inactive status—issue COBRA notices, etc. Wait for the workers’ comp claim to work itself out.

This week, we noted the new ruling in Keffer v. Olin Corporation a/k/a Olin Brass and Winchesters, No. 09-CV-023-WDS, USDC, S.D. Illinois., issued September 29, 2010. In this ruling, claimant was off work and under the care of his chiro. The chiro released him to work and then took him off again. A defense IME doctor released him to return to work. Claimant didn’t return and was terminated. He then sued. The employer’s motion to dismiss the claim was granted.

The Federal District Court ruled:

Olin has established a non-retaliatory motive, that plaintiff did not return to work after examination and release to return by an independent doctor. Plaintiff does not explain why he did not respond to the requests from Olin to return to work before his termination. Notably, Olin made several efforts to return plaintiff to work after he filed his workers’ compensation claims, which show lack of retaliatory motive. Marin v. American Meat Packing, Co., 562 N.E.2d 282, 286 (Ill. App. Ct. 1990). “Evidence that those responsible for plaintiff’s termination knew he intended to file a worker’s compensation claim is `essential’ to a retaliatory discharge action.” Id. (quoting, Mercil v. Federal Express Corp., 664 F.Supp. 315, 318 (N.D. Ill. 1987)).

Plaintiff asserts that a nurse at Olin, who was unidentified by Plaintiff, stated that his compensation claim would be costly to Olin. This is not enough to show retaliatory motive by defendant. Plaintiff also asserts that Bill Moore’s deposition creates a question on the motive because he admitted he did not rely on Gragnani’s report. Moore testified that he made the decision to terminate plaintiff after he failed to return from leave after being directed to do so by the medical department at Olin. Reliance on the medical report of Gragnani is not critical to that determination, nor does the reliance or lake of reliance on that report amount to retaliatory motive.

Finally, Olin had no duty to offer plaintiff another job when he refused to return to his job. Wright v. St. John’s Hospital, 593 N.E.2d 1070, 1076 (Ill. App. Ct. 1992), and there is no evidence that plaintiff made any effort to return to work at Olin in any capacity. He simply refused to respond to the letters requiring him to return and did not ask for a different assignment.

In our view, this federal ruling runs in the opposite direction of the ruling in Grabs v. Safeway, et. als. They did point to the fact several attempts were made to get the injured worker back into the work force; that didn’t happen in Grabs. We still caution our readers the “ball is in the air” on such situations and the key to all of it is to avoid a blind or blanket policy and treat each problem as an individual challenge. Also, document, document and document your actions to create a solid defense case-in-chief before the litigation erupts. We urge you to avoid a “blind” policy but take every case on its special merits. We are happy to provide direction and counseling on any such claim at hourly rates that are a fraction of what the employment law defense industry normally demands.

The ruling can be found here.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Editor’s comment: We have received so many questions about it, here are some solid pointers to save for the day an IL WC death claim hits your desk. Note the minimum cost for a WC death claim in Illinois, if there is a widow or dependent is over $600,000 and claims costs on top of medical care can be over $1.6M. Such claims are always very serious. Please also remember if you innocently pay the wrong person(s), you can’t ask the IWCC for a refund; you have to sue the wrong person you paid in circuit court and also simultaneously pay the right claimant(s)—it is critically important to rapidly confirm you have identified the proper claimants. If you are unsure of a claimant’s rights, even if they don’t have a lawyer, you may need to get in front of an Arbitrator on an urgent basis to avoid any claim for penalties/fees. The Arbitrator will conduct what is called a “death prove-up” to legally define everyone’s rights and duties. If you need help further understanding this process, send a reply.

Please also note death claims in Illinois can some times be lumped out, if the Arbitrator and/or Commission feel it is in the best interest of all parties. The main reason is the fact all claimants have to keep living and benefits can be lost if they pass away themselves. Please also note a solid risk manager dealing with the death of a worker at your workplace should take whatever steps are needed to keep such issues out of litigation. In an undisputed Illinois WC death claim where benefits are properly paid, our Act only allows for a $100 fee for claimant’s counsel. If there is a dispute, the fees are limited to 20% of seven years of benefits which can still be a lot of money. If you need assistance with undisputed death claim handling, let us know and we will assist in every way possible.

As a side note, please also remember if a worker passes away at your workplace in front of other workers, anyone who heard or “experienced” the passing may have a potential workers’ compensation claim under the Pathfinder v. IWCC ruling. Therefore, if a co-worker seeks your assistance in dealing with the stress involved in the passing of decedent, get it for them if at all possible. We consider it penny-wise and pound-foolish to ignore calls for help in such a situation and possibly end up in unnecessary litigation.

Going back to managing an Illinois WC death claim; first, fully investigate the passing of the worker. The main goal is to determine compensability.

Always confirm it is an Illinois loss vs. another state or feds—follow traditional subject matter jurisdiction analysis of:

A.      Site of accident;
B.      Site of hiring;
C.      Where work was localized or centered;

Are there any defenses to the accident? Use traditional analyses of all accident factors–is the event bona fide? Could it have been a suicide? Are there any investigative red flags about the occurrence? Did you remember to pull all your surveillance videos of the area? We are telling all of our clients to get webcam interviews of all witnesses—if you want to review our webcam questions, send a reply.

Next, analyze:

A. Arising out of;
B. In the Course of.

As part of the investigation, obtain the autopsy, if performed. Be sure to preserve the scene of the accident to the extent possible for scientific analysis. Remember, if you destroy evidence that might be used in a third party claim, you can be sued for doing so.

For compensability and/or causal connection issues on heart attacks, strokes, suicides, drug use and other unusual situations, we are happy to provide research and counsel at no cost.

After investigation of the accident, then seek needed documentation in this and every major WC claim. Confirm the fact of death — you need a county and not religious death certificate. Also use the personnel file and any other available information, including the web to locate and identify all possible spouses and dependents. You will need marriage certificates and birth certificates for all claimants.

You need to confirm the marriage was valid to the extent possible. Please also remember common law/same sex marriage will certainly cause litigation and confusion in an IL death claim; if you have to deal with one, the best path is to seek out an Arbitrator to learn their view of any controversy. If claimant was in the process of being divorced, you need to ascertain whether a valid divorce might have been entered

Having confirmed compensability and parties; next determine the weekly death benefit from which all parties will be paid—you only owe the weekly benefit once every week; the surviving claimants have to share whatever is owed. If they disagree, again an Arbitrator will work it out.

Illinois’ maximum death benefit today is $1,243.00 a week. An Illinois death claim doesn’t hit the max until a decedent is making more than $1,864.50 a week or $96,954 a year. Illinois minimum death benefit today is $466.13 which applies if decedent was making $20 or $200 per week. The minimum weekly death benefit “ends” or does not apply when a decedent was making $699.20 a week or more.

• The widow or widower receives weekly death benefits for 25 years, if they survive that long.
• Children of decedent are eligible to share in the death benefit until 18. When they become adults at 18, they may continue to share the death benefit until 25 if in a school of higher learning
• Children are defined as “DNA kids” or natural children of decedent. Adopted children also take. “In loco parentis” children may take under special circumstances.
• Parents and other family members are eligible for death benefits in relation to dependency—proving dependency is both necessary and complex in death claims.

What if there is no spouse or children or other claimants? You only have to pay burial expense. Burial expense is potentially controversial. It is $4,200 for a death prior to February 1, 2006 and $8,000 thereafter. But what if decedent isn’t buried but is cremated at a cost of $2,000? Is $8,000 still owed? Does that make sense to anyone other than a Plaintiff/Petitioner attorney?

What do you do about life insurance offered by the company—can it be used in lieu of WC benefits? This is a very complex question and we are happy to outline case law and answers in the appropriate claim.

If you have other questions or concerns, please reply or call and we are happy to assist as needed.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

By Joseph Mulvey

In Boyd Electric v. Workers’ Compensation Commission, the Illinois Appellate Court has set a high hurdle for Respondents’ Petitions to modify the permanent total disability award. The relevant section of the Act, 8(f), states in part:

If any employee who receives an award under this paragraph afterwards returns to work or is able to do so, and ears or is able to earn as much as before the accident, payments under such award shall cease. If such employee returns to work, or is able to do so, and ears or is able to earn part but not as much as before the accident, such award shall be modified so as to conform to an award under paragraph (d) of this Section.

In short, Section 8(f) allows a permanent total disability award to be modified based upon changed circumstances. However, the section affords respondents no way of determining whether Petitioner’s financial situation has changed postaward.

In Boyd Electric, Respondent requested Petitioner’s tax records approximately two years after the Arbitrator’s decision was filed with the Commission. Petitioner, through counsel, refused to disclose the financial records, arguing that Respondent was not entitled to review or investigate Petitioner’s finances.

Respondent filed a Petition to modify the award, consistent with Section 8(f). Respondent’s petition was denied by the Commission and by the Circuit Court of Cook County. Both bodies held that Respondent was not entitled to review Petitioner’s financial records.

Respondent’s argument relied, by analogy, on their right to force Petitioner to submit to a medical examination under Section 12. Respondent argued that the Act made a medical examination available to determine if Petitioner’s medical condition had changed and that, therefore, it was reasonable to infer that there would be some investigative avenue available to determine if Petitioner’s financial situation had changed.

Unfortunately, Respondent’s analogy may have more done more harm to its argument than good. The Appellate Court’s decision relies on the omission
of a specific right to call for a financial investigation. Their decision points out that the Legislature and Commission clearly know how to create what is, in
essence, a right for Respondent to conduct an investigation into a Petitioner’s health status. The inference therefore is that the Legislature and Commission have decided against creating an avenue for financial investigation – expressio unius est exclusio alterius.

Practice Tip

As a practical matter, this ruling makes it much more difficult for a respondent to succeed on a petition to modify a permanent total disability award. However, there seems to be a fairly simple solution. Respondents considering a petition to modify an award based on a suspicion that Petitioner has resumed working should conduct surveillance to determine whether Petitioner is employed and subsequently subpoena his employer. This should allow a respondent to determine with particularity the amount that a petitioner has been making and would allow them to present evidence
during a hearing to reconsider.

Post Provided by Bryce Downey & Lenkov LLC. Bryce Downey & Lenkov is a firm of experienced business counselors and accomplished trial lawyers who deliver service, success and satisfaction. They exceed clients’ expectations while providing the highest caliber of service in a wide range of practice areas. With offices in Chicago, Oak Brook, Merrillville, IN, Memphis and Atlanta and attorneys licensed in multiple states, Bryce Downey & Lenkovis able to serve its clients’ needs with a regional concentration while maintaining a national practice.

Editor’s Comment: We recently noted a number of our readers sent us an article from the blog of a competing Illinois defense firm where UR was followed by the Arbitrator and affirmed by the Commission. In this ruling, the Commission cut overtreatment by a physical therapy provider. Many of our readers appeared stunned or amazed to see this happening. We hope some of you have been following as we have chronicled UR results in decisions issued by the Commission starting in 2006.

We also want everyone in the industry to note UR is a complete lock in Illinois workers’ compensation claims that aren’t litigated. As there are so many non-litigated WC claims, we always wonder why adjusters at insurance carriers and TPA’s don’t use the concept more.

When claims are litigated, a brief analysis of sixty workers’ compensation decisions where UR was involved revealed an increasing number of cases where UR denial of chiropractic or physical therapy treatment was routinely upheld by Arbitrators and the Commission. In contrast, when surgery was recommended and UR denied the reasonableness and necessity of the surgery, very few cases have been found where the end result was denial of the surgical treatment. Instead, the treating physician’s opinion was given more weight and credibility even though according to the Act, “A utilization review will be considered by the Commission, along with all other evidence and in the same manner as all other evidence, in the determination of the reasonableness and necessity of the medical bills or treatment.” 820 ILCS 305/8.7(i). When surgery is recommended by a treater, the Commission considers UR, they just don’t follow it. As Seinfeld® fans will tell you, it isn’t taking the reservations that count; it is keeping them which really matters.

In Early v. United Airlines, the Commission affirmed the Arbitrator’s award of prospective surgery where UR had denied the procedure. 07 IL.W.C. 3021, No. 09 I.W.C.C. 0839, August 10, 2009. Respondent had offered reports from two utilization review physicians both of whom denied certification for the prospective surgery. The Commission decision had the following language, which became familiar while researching this article:

The Commission, like the Arbitrator, assigns greater weight to the opinions of Petitioner’s treating hand surgeon, Dr. Schiffman, than to those of Respondent’s Section 12 examiner and utilization review physicians. Dr. Schiffman has treated Petitioner over an extended period and has consistently taken a conservative approach in addressing Petitioner’s “very appropriate” questions concerning her options.

In James Vaupel v. Ingersoll Machine Tools, the Commission reversed the Arbitrator’s decision which agreed with a UR report indicating Petitioner was not a surgical candidate. 06 WC 25877, 08 I.W.C.C 0130, February 1, 2008. The Commission went as far as noting;

Pursuant to the Utilization Review Program authorized by the Act, 820 ILCS 305/8.7(a), the appropriateness of the proposed medical care recommended by Dr. Korcek [Petitioner’s treating physician] was evaluated by Dr. Garcia, who opined Petitioner was not a candidate for the surgical procedure. Pursuant to an appeal of Dr. Garcia’s findings, the proposed medical care was reviewed by a second medical provider, Dr. Rosenzweig. Dr. Rosenzweig concurred in the findings of Dr. Garcia.

Even though two UR doctors indicated Petitioner was not a candidate for surgery, the Commission ignored UR and went with the treating physician’s recommendations because he was found to be “more persuasive.” Commissioner Lamborn dissented stating, he would have affirmed the Arbitrator’s decision because the utilization review, as outlined in Section 8.7 of the Act, indicated the surgery proposed was not reasonable or necessary.

As we have advised in the past, please note a claimant who wants to litigate the dispute over surgery sought by a treater and denial by UR must put up with a one to three year waiting period for the Arbitrator’s decision and the Commission’s ruling. Some people don’t want to fiddle around that long and will move on with their lives.

While we are pleased UR has had some success in cutting excessive chiropractic and physical therapy treatment it is interesting why, when the treatment involves surgical intervention, a denial pursuant to UR has had limited success in ultimately denying the treatment sought by claimant. We will continue to monitor this issue and keep our readers advised if any changes occur.

This article was researched and written by Matthew Ignoffo, J.D. You can reply and comment to Matt at mignoffo@keefe-law.com.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Editor’s comment: A solid and effective risk manager asked the question and we want to give all our readers simple steps from inception to closure of every workers’ compensation claim. When we audit workers’ compensation claims, we provide clear analysis and an independent measure of all these concepts.

One, stabilize any work accident immediately—then Start and Complete Your Accident Investigation. The dual goal of accident investigation should be documentation and authentication. We had a great lawyer from California tell us a clear axiom about accident investigation in workers’ compensation—you get 99.44% of your solid information in the first 24 hours after the initial report of any accidental occurrence. After that primary period for investigation, you are very lucky to get anything else of value. It can happen but don’t count on it. If you don’t investigate and nail down the report of accidental injury, you have no base from which to work and you may receive surprise after surprise during the course of handling of the workers’ compensation claim. If you need help with accident investigation techniques and concepts, send a reply.

Second, Set up the Link to the Doctors/hospitals/health care givers. As part of your pre-accident work-up, try to insure your workers at any work site are fully aware of where you recommend they receive medical attention on an emergent or non-emergent basis. Post signs and placards making those choices crystal-clear. At your earliest opportunity, get an emergency room set up and also have a defined OccHealth clinic. Please remember in Illinois, you can seek to direct your injured workers to health care, you just can’t truly fight it if they also seek other doctors or health care givers. As a further part of the accident investigation process, get a HIPAA-compliant release signed—if you need one, send a reply. Be sure to let the lead treating doctor know you will promptly see to payment of his/her bills if they will provide medical records with their diagnosis and prognosis for the patient. One goal of HIPAA was to insure a smooth electronic flow of medical records and bills between relevant parties.

Third, when you have the medical link set up, Set your Targets for MMI (maximum medical improvement) and RTW or return to work light and later full duty. These two factors work hand in hand and should be viewed that way. In Illinois, we strongly disagree with the ruling of our Appellate Court in Mechanical Devices where they claim your worker is owed TTD until MMI. With respect to our reviewing justices, we feel that position is poorly thought out and Plaintiff-driven. Injured workers can and should be brought back to work at the earliest conceivable opportunity and most times the worker should be back to light and possibly full work long prior to MMI.

While we feel a solid claims manager should have their own expectations and reasonable targets, please make sure to ask the treating doctors to help you set fair goals for MMI and return to work. Be sure to do so with the injured worker as part of the targeting process—there is no need to hide the inquiry; the injured worker has a strong stake in the process. If the doctor won’t assist you in setting such goals, try to look for better doctors. We assure you the very worst medical providers in this and every state are doctors who staunchly refuse to allow such targets—they are almost always notorious overtreaters and overbillers. In Illinois, we recommend all of our clients routinely and aggressively implement utilization review to assist you and the treating doctors to set accurate and attainable goals for MMI and return to work.

Fourth, Push your Claim Targets. They need to be clearly defined goals but you need to use every tool in your quiver to make the goals happen. Let’s take a simple example—today, we audited a litigated claim for a trucking company. The worker injured his low back in a slip/fall in January 2010. All diagnostics were negative and demonstrated no disc or nerve root pathology. From our perspective, you are safe to target six to eight weeks as the outside for medical care and lost time for a purely soft tissue back strain. Ergo, some time in March 2010, you are going to start to put the hammer down in every direction. Whatever you do, don’t let the claim get out of hand. Try to give the injured worker a clear date for MMI and RTW—don’t use “six weeks”, use March 15. If you need help setting such dates for a broken arm or operated toe, send us a reply. When your goals start to waiver/wobble, consider the traditional claim tools—independent medical examinations, utilization review and surveillance. But never stop pushing the claim targets for MMI and RTW until you have made them a success on each claim.

Fifth, Keep your friends close, Keep your enemies closer. Never, ever lose sight of a workers’ compensation claimant. Have a clear policy about keeping in contact; tell all employees who are injured and under the care of a doctor to call or come in to your facility no less than once a week. It is completely legal and permissible in Illinois to have the TTD check sent to your facility for pick-up by an injured worker who can’t work but can safely get around. If they can go to the doctor, have them come to you to report in and pick up their TTD checks. If a claimant attorney in Illinois says you can’t talk to your injured worker, be sure to let them know you don’t need and didn’t ask for their misguided advice. Your lawyer can’t talk to a represented claimant; in contrast, you are not a lawyer and can and should insist on regular communication with all injured workers.

When the injured worker reports in weekly via phone or visit, ask:

• How are you doing?
• Are your medical bills being paid?
• Are you happy with your doctor(s)?
• Do you feel you will meet the MMI and return to work goal of [insert date]?

If appropriate, let them know their job is still available and you want them safely back to work at the earliest opportunity but no later than your target date.

Sixth, once the injured worker is at MMI and back to work, Drive Claim Closure. In appropriate claims, make written offers of permanency. We suggest this for “hard-tissue” claims involving surgery or broken bones. You don’t want to pay much money on any soft-tissue strain claim because you will then encourage lots of soft-tissue strains. In states outside Illinois, pay the impairment rating and close the file.

Seventh and finally, in litigated claims, Use Attorneys who Fight to Close your Claims within your authority. We just audited a file where an adjuster was using house counsel on a litigated claim and told the account the matter could not be closed within three years under Illinois workers’ compensation rules. What a hoot!! We would love to read that fictional rule—we like to call it “you-can’t-close-claims-within-three-years-if-you-use-house-counsel.” Our goal at Keefe, Campbell & Associates is to close any and every claim in no less than eighteen months of the accident itself. Every day thereafter, we are confident you can use a lazy, slow firm who won’t push and isn’t motivated to keep you happy. Please do not criticize Illinois arbitrators when your Illinois claims sit around—right now, almost every single one of them will push claims if asked to do so.

And last but not least, never, ever ask claimant’s counsel for a settlement demand—it is the laziest negotiating technique possible!! Do your homework and come up with a fair and reasonable offer. The person who makes the first offer drives the inevitable negotiating bracketing in their favor. If you make the mistake of asking claimant’s counsel to make the first demand, you are always going to have to pay more than if you do the homework, make the first offer and push settlement and closure yourself. When you have offered enough money, get the case in front of a fair arbitrator and push for hearing.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Editor’s comment: In Casanova v. American Airlines, Inc., (No. 09-1020 August 5, 2010), the Seventh Circuit Court of Appeals reviewed a million dollar jury verdict for a claimant.

Following a disputed workers’ compensation claim, the employee was required to participate in what was called in the collective bargaining agreement an Article 29F investigation. Participation in this investigation is required by the agreement. From our review of the record, claimant effectively refused to do so. The Appellate Court ruling indicates:

Casanova did not cooperate. Managers asked him about the injury and his activities since. Casanova usually replied: “I don’t recall.” He could not recall where or how he had hefted the golf bag, or what flight it had been on. He could not recall any of his activities during the days after he had reported the injury. When asked whether “I don’t recall” would be his complete statement about the events, Casanova said: “I don’t recall.” He did, however, give concrete answers to several questions. When he was asked whether he had used his left arm at all during the days after the injury, he replied: “No.” At trial, he admitted that this was a lie, which he justified by telling the jurors that he just didn’t care what answers he was giving, because he was distraught and wanted the interrogation to end.

The Court majority noted the evidence failed to support the jury’s verdict in favor of Plaintiff in the ensuing action alleging American Airlines terminated Plaintiff in retaliation for their alleged belief Plaintiff would some day be filing a workers’ compensation claim, even though Defendant asserted Plaintiff was fired solely for insubordination and lying about circumstances surrounding his alleged injury to his hand during Defendant’s investigation of this questionable injury.

The majority further note the facts blocked his ability to obtain the verdict received. They further noted:

• Plaintiff did not file a state workers’ compensation claim until several months after he had been fired, and
• Plaintiff failed to present evidence of pretextual termination where he admitted under oath to lying and feigning forgetfulness when responding to management’s questions about purported injury

The Federal Appellate Court reversed the jury’s verdict.

We salute the majority for this language:

Thousands of employees receive workers’ compensation benefits from American Airlines every year without being fired; Casanova himself had received benefits several times yet remained an employee in good standing. Some baggage handlers have made ten or more compensation claims, returning to active duty after each injury healed. So a claim of workers’ compensation benefits does not lead to discharge at American Airlines. What does—what was the sufficient cause of Casanova’s discharge—is dissembling and insubordination. American Airlines has a zero-tolerance policy for material lies by its workers.  Casanova has not identified any other worker who behaved in a similar fashion at and after an Article 29F hearing and was not fired. Indeed, it is almost impossible to conceive that any employee who conducted himself in this fashion would not be fired, by American Airlines or any other employer that wants to maintain the respect and obedience of its labor force. If Casanova had been retained on the payroll, American Airlines could have kissed the Article 29F procedure goodbye.

and this:

American Airlines offered Casanova’s conduct at and after the Article 29F hearing as the explanation for his discharge. He did not provide evidence from which a reasonable jury could conclude that this explanation was pretextual (meaning that the employer did not itself believe it). Indeed, he did not try. He conceded that he had lied and refused to follow directions. He did argue that the employer should not have used the Article 29F procedure, but no rule of Illinois law disables employers from requiring workers to answer questions related to their injuries—and, as Clemons shows, even if the employer’s invocation of the Article 29F procedure had been unwarranted (which it was not), still the right question would be whether Casanova’s balking was a sufficient reason for his discharge. This record does not present a material dispute about why Casanova lost his job. American Airlines is entitled to judgment as a matter of law under Rule 50.

We urge our readers to consider talking to your union and making participation in accident investigation a part of the employment agreement. If you don’t have a union to concern yourself with, just make accident investigation a part of your personnel policies.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Editor’s comment: As we teach all of our students, there are three accident defenses in Illinois and many states.

The first accident defense is simple—we call it “liar, liar, pants on fire.” Not to be overly glib, there is always the possibility someone truly had a mild/moderate or severe accidental injury but they simply aren’t telling the truth about where and how it occurred. To defend such a claim, a veteran defense lawyer has to assume claimant is going to tell a story of being accidentally injured at work. The defense lawyer is challenged by several concepts; the most important of which is you may be faced with “proving a negative” by having to show the accidental injury claimed to have occurred at work “didn’t occur” or more important, didn’t occur at work.

Arbitrators in Illinois and most states take claimants as they present themselves—even the most conservative Arbitrators give everyone a chance to tell the truth and initially assume they are being told the truth. A wise Arbitrator will always take everything with a grain of salt but to be unbiased, a fair hearing officer has to first hear the claimant and their case in full. And remember, claimant always bears the burden of proving by a preponderance of the evidence all aspects of the claim, including a compensable accident.

In response, the defense lawyer, adjuster and risk manager for the employer have to provide an Arbitrator or hearing officer clear and convincing evidence claimant wasn’t telling the truth and shouldn’t be trusted. You can’t do that without aggressive and thorough accident investigation. A solid investigation should include:

·       Handwritten statements by claimant, witnesses and supervisors;
·       Tape-recorded statements of claimant, witnesses and supervisors;
·       Security videotape of the alleged accident site;
·       Medical histories;
·       Surveillance; and
·       Online research.

If you need help with accident investigation forms or protocols, please send a reply and we will forward it. The dual purpose of accident investigation is authentication and documentation of real events and defense evidence to fight phony events.

Please remember, if you have a truly faked accident and can prove it, send your investigation to the Illinois Department of Financial and Professional Regulation and have them start a WC fraud investigation. In some counties, the chicken-liver states’ attorneys won’t pursue it but many counties across Illinois are starting to counter-attack when they have clear evidence of WC fraud.

Accidental injuries arising out of and in the course of the employ

Assuming there is no question about the accident or that it happened during work, the next analysis is “arising out of” the job. In this second section, there is no concern about truth-telling or the occurrence, the question is “did claimant suffer an injury from a work-related risk?”

For pretty much the entire time Illinois has had workers’ compensation benefits from 1912 to present, it isn’t enough to simply say, “I became injured or disabled at work” to be entitled to benefits. With one tenuous exception, the employee has to also show the accidental event was linked to the work or arose from a risk the worker had to encounter as part of their work.

Never forget the ruling in Board of Trustees of the University of Illinois v. Industrial Commission where a teaching assistant turned in his chair from a noise and strained his back. Benefits were denied based upon the fact the events leading to the problem were normal and the work did not increase the risk of injury. Similarly in Greater Peoria Mass Transit, a bus driver reached to lift up a transfer book and her shoulder dislocated; due to the fact the shoulder dislocation arose from a normal activity of life, benefits were also denied. These landmark rulings emphasize the accident has to derive from an increased risk of injury in the workplace.

Another area that can be demanding is when to accept a fall-down or slip/fall claim. We receive fall-down claims all the time in which claimant simply says, “fell at work.” Of the three factors required to pay for a compensable accident, the history at the end of the last sentence only satisfies two—the employee hasn’t provided a work-related increased risk causing the fall. Sometimes busy adjusters simply accept a fall-down claim without first asking the question—what caused the fall? Please note the burden is supposed to be on claimant to demonstrate a work-related cause for the fall-down; it isn’t enough to simply say “fell at work.” But we all agree the Commission and courts may be lenient about the reasons including reliance on testimony about unnamed “others falling in the area” or flooring/carpeting being new or old and thereby increasing the risk (isn’t all carpeting either new or old?).

One good example of an accidental event that might occur at work but wouldn’t be compensable is an injury during “horse-play.” We had a claim for a major retailer in which a supervisor asked a co-employee to jump up and take a “horsey-back ride” and she ran around the store with the worker on her back. When she strained her back doing so, she asked for workers’ compensation benefits. We were able to successfully defend that claim of accidental injury, despite the fact there was no question she was hurt at work—the Arbitrator accurately pointed out when she decided to offer “horsey-back rides,” she clearly wasn’t performing any work she was hired to provide as a retail manager and benefits were denied.

Similarly, fight or what are also called “assault” cases may result in undisputed accidental injuries occurring at work. The traditional Illinois rule on such claims is simple—the non-aggressor receives benefits and the aggressor starting the fight recovers nothing. The problem with this rule is multifarious—employers don’t want anyone to fight and it can be truly hard to ascertain who started it. There was also a goofy ruling in which both women struck each other at the same time—the Appellate Court ruled one of them had to get benefits; we felt the opposite should have been the law and neither miscreant should have recovered.

We also caution what claimant attorneys do in most fight/assault cases is sit and sit on the file. Many times they don’t want to bring the combatants back together. The problem this creates for the defense side is your witnesses may move on to other stuff and be hard to call at a hearing. Claimant, if they remain interested in the case, will be there and you will lose if you can’t rebut their testimony. Our strong suggestion is to start setting videotaped depositions of defense witnesses to lock in their testimony in a serious fight claim.

Another challenging area is intoxication or drug use that leads to accidental injury. The Illinois workers’ compensation system remains quizzical on what to do with such matters. We can advise our readers with some confidence, drunk drivers who cause accidents and get injured may not be treated well at the IWCC if they seek benefits; many arbitrators will push for lower settlements and outcomes to avoid encouraging illegal behavior. Other folks who are not driving but drunk or under the influence of legal or illegal narcotics at work and suffer injuries are treated with a wide range of responses. The problem for both sides is litigating an intoxication claim can cost $5-10,000 in expert witness fees and related costs. Smaller claims are dropped in many circumstances. Bigger claims routinely produce outcomes considered unsatisfactory for Illinois business.

Psychological injuries remain an area of concern to all risk managers, adjusters and defense attorneys. We always tell our clients if someone is severely injured or killed in your workplace, try to remember there are two types of potential claims. One type of claim involves the person severely injured or killed. We are more than happy to assist in managing such claims. The other type of injury is the psychological trauma that was unexpectedly imposed on all the other workers who saw or experienced the event. Be sure to investigate and assist all such workers as if they were in an accident themselves. It is not a good idea to ignore or avoid helping your workers who can easily make their trauma into a difficult-to-defend claim.

Illinois remains reluctant to allow what we have always called “California-stress” claims. They won’t typically allow a claimant to come to the Commission and whine about how mean their boss was or how bad their breath might be. Most arbitrators will take a dim view of such proceedings and remind claimant’s counsel to look for claimants with real injuries with broken bones and surgical scars. We hope that continues and we avoid the unusual proclivities of the “Left Coast.”

The last legal issues to survey in this article are repetitive trauma and the weird traveling employee concept. Illinois remains liberal to very liberal about providing benefits for carpal tunnel syndrome and cubital tunnel syndrome if the employee is involved in truly repetitive work on a regular basis. The arbitrators and Commission have denied some claims and the diagnosis isn’t the slam-dunk it used to be. On other repetitive-type claims, we feel there are fewer and fewer claims for repetitive walking or repetitive stair-climbing and we salute the Arbitrators and Commissioners who have denied them.

As to “traveling employees,” we continue to criticize the arbitrators and Commissioners when the risks encountered by the traveling employee have

·       Literally nothing to do with travel or
·       The employee’s job is to travel.

We saw a claim for an injury to a flight attendant for a major U.S. airline–she suffered a very innocuous injury. The Commission awarded benefits in a claim that would never be compensable for a worker who didn’t travel. We point out such rulings are dramatically anti-business. Every risk manager in the transportation industry questions their link to our state when we award benefits in a fashion no other state would provide them. We also argue almost every worker is “traveling” in some fashion if their job takes them away from a fixed work site. And there is no discernable reason why a fight attendant should be provided more eligibility to workers’ compensation benefits for injuries that truly don’t arise out of the work.

The final area of accident defense is “in the course of” employ. This defense arises when the employee is going to or coming from the workplace. We tell our clients at some magic point, coverage starts and ends. Each of these cases has to be taken on a claim by claim basis.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Editor’s comment: As we recently advised, throughout the halls of the IWCC, Illinois Arbitrators have been “encouraged” to increase their production by 10%. We have noted throughout the state in the months prior to the edict many Arbitrators were already cracking down on “red-line” cases and pressing attorneys on both sides for action. In those cases they are pulling both attorneys in for conferences at the status calls and making the attorneys look hard at cases that are getting old and just not moving. Much progress is being made in the red-line dockets because of this and we applaud that effort.

At the same time, we also have noted a trend which is a bit disturbing and could affect the defense industry/employers/insurance carriers/TPA if cases are not being managed properly. We have suggested in this update before that once a moderate to significant case is litigated and begins to age, we strongly recommend it be assigned to defense counsel so initial file work-ups can be done and a cogent defense plan put in place. A call can be placed to Petitioner’s attorney so they know defense is on the file and the file is then monitored by the employer/insurance carrier/TPA and defense counsel.

Often, in an effort to hold the line on costs, many insurance carriers/TPAs will hold and hold and hold litigated cases while they work on authorized treatment and attempt to resolve the claim without defense counsel on the file. Some times this plan works out, the claim is resolved, contracts approved and everyone goes their merry way. Or they may assign the case to defense counsel as “Appearance Only” with instructions to take no action until authorized. Again, in many instances a veteran adjuster may manage the file properly and get it safely closed.

But we have noticed a new trend in the state in which the Arbitrators are showing less patience with claims that have been open for a while and are suddenly before the Arbitrator on a 19(b) or regular motion for hearing in which Petitioner’s attorney is complaining they want to get the case resolved, the adjuster has offered unrealistic money and their client wants the case over. If the case has been motioned once and recently assigned to defense, the Arbitrator normally understands, grants the requested continuance and tells defense to get moving.

However, what happens when discussions break down and the relationship gets choppier? Many times files get assigned on the eve of a status call/trial date with instructions to get a continuance so an IME can be scheduled or vocational counseling started because what was once a good relationship has gone rapidly sour as the value starts to rise. When Petitioner and his/her attorney believe the case is worth substantially more than the TPA, it is a red flag indicating you need defense counsel. In cases where the case has been motioned for hearing two times or more, Arbitrators are tracking it much more closely than in the past and many of them are now taking a harder stance. We don’t know what claimant attorneys are saying to the otherwise innocent adjuster, but we see what they are saying to the Arbitrators. Those conversations are clearly creating a harder line.

We have witnessed on several occasions since the first of this year, situations in which Arbitrators have told defense counsel, in a pre-trial in front of the masses where all can hear, something along the lines of: “It looks like your people have been sitting on this case for a while and why haven’t they set an IME already/paid for treatment/started voc/wiped claimant’s nose/whatever? I think they’ve slept on those rights and you need to pick a date. This case is going to hearing.” This usually comes on the heels of Petitioner’s attorney telling the Arbitrator that they’ve been working on this case for however many months and “we’re just not getting anywhere.” As veteran defense observers, we have seen cases that have been filed for less than a year in which the Arbitrator has thrown this concept of laches into the conversation and forced defense to scramble to get the case ready for trial with only half of any true defense. We at KC&A haven’t been pushed into a trial in that situation, so we can’t tell you the outcome of any appeals or trials, but we are continuing to monitor the issue.

We would take this opportunity to again recommend to our readers that once a file is litigated you assign it to defense to help monitor the case. Copies of medical records can be obtained, a litigation/handling plan can be put in place and then the entire defense team can monitor the file. If the case goes well, the defense costs will be minimal anyway. But if the case goes sideways, your attorney is not standing in front of the Arbitrator trying to explain why they just got a file, have no medical records or experts and can’t really deny whatever is being said to the Arbitrator. In cases like that your defense costs and exposure spike as more time is spent getting a file ready than is probably necessary.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Editor’s comment: We are certain there were lots of changes to the Illinois Workers’ Compensation Act in 2005. We are fairly confident it hasn’t caught up to doctors, hospitals and other healthcare billers. We do feel the recent ruling from the Appellate Court in Holtkamp may affect what is happening out there and wanted to give you our thoughts.

Plan A, we urge everyone to remember one thing, if a claim is accepted bills are to be sent to the employer or insurance carrier/TPA—take the worker out of the loop and bill the employer or its carrier/TPA directly. The Act says:

Section 8.2 (d)
When a patient notifies a provider that the treatment, procedure, or service being sought is for a work-related illness or injury and furnishes the provider the name and address of the responsible employer, the provider shall bill the employer directly. The employer shall make payment and providers shall submit bills and records in accordance with the provisions of this Section. All payments to providers for treatment provided pursuant to this Act shall be made within 60 days of receipt of the bills as long as the claim contains substantially all the required data elements necessary to adjudicate the bills. In the case of nonpayment to a provider within 60 days of receipt of the bill which contained substantially all of the required data elements necessary to adjudicate the bill or nonpayment to a provider of a portion of such a bill up to the lesser of the actual charge or the payment level set by the Commission in the fee schedule established in this Section, the bill, or portion of the bill, shall incur interest at a rate of 1% per month payable to the provider.

This sounds pretty simple to us. If the medical care/treatment is for a work-related injury, the medical caregiver has to get the name of the employer and/or insurance carrier/TPA from the patient. When you have it, send the bills and records to that contact from then on. Don’t send them to the patient.

So, who pays for the copies of original medical records being sent to the “employer” or insurance carrier/TPA? Who pays for “substantially all the required data elements necessary to adjudicate the bills” as the statute says? Well, under Holtkamp, it says you cannot force the healthcare giver to make free records or unlimited records for a $20 witness fee but you can agree on whatever is fair. Our vote is for the medical caregiver to send/fax/pony express free bills and free records and free whatever, so long as you are getting paid in a timely fashion. You don’t necessarily have to make a complete copy of your entire patient chart, but if you are seeking to get paid for surgery, send the surgical report and other supporting tests and data. Then start adding 1% per month to outstanding balances.

Plan B, what is supposed to happen if there is a fight? What do you do if the accident injury isn’t accepted under WC but the employee is litigating the issue? Can the medical caregiver still continue to seek payment? Well, the law says:

Section 8.2(e-15)
When there is a dispute over the compensability of or amount of payment for a procedure, treatment, or service, and a case is pending or proceeding before an Arbitrator or the Commission, the provider may mail the employee reminders that the employee will be responsible for payment of any procedure, treatment or service rendered by the provider. The reminders must state that they are not bills, to the extent practicable include itemized information, and state that the employee need not pay until such time as the provider is permitted to resume collection efforts under this Section. The reminders shall not be provided to any credit rating agency. The reminders may request that the employee furnish the provider with information about the proceeding under this Act, such as the file number, names of parties, and status of the case. If an employee fails to respond to such request for information or fails to furnish the information requested within 90 days of the date of the reminder, the provider is entitled to resume any and all efforts to collect payment from the employee for the services rendered to the employee and the employee shall be responsible for payment of any outstanding bills for a procedure, treatment, or service rendered by a provider.

Again, this procedure seems clear and concise and it doesn’t take a rocket scientist to follow it. Following the first section above, get the name of the employer or insurance carrier/TPA. As the patient and the contact with the insurance carrier/TPA:

·       Are our bills accepted? If so, follow the first section cited above.
·       If the bills are disputed, follow Plan B and start sending reminders to everyone. Diary your file ahead every ninety days to continue to follow up.

Plan C—What does the healthcare provider do if the matter settles between the patient and the insurance carrier/TPA and you are left out of the loop? Well, that is becoming more and more common in Illinois. What we are telling the healthcare providers to do is to then start normal collection procedures against everyone—go after the patient, employer, insurance carrier/TPA.

In Hagene v Derek Polling Construction, some of the bills were not paid and remained in dispute after approval of settlement and closure of the claim. The front of the contracts had the box checked to indicate “all medical bills” were paid and the back of the contracts said the settlement was a compromise of all benefits owed under the Act. In contrast, the claim for TTD said it was disputed on the front and to refer to the reverse of the document for settlement terms. After settlement, the patient learned almost $20K in medical expenses incurred prior to settlement remained unpaid by the employer, insurance carrier/TPA or anyone else. The Appellate Court ruled the settlement included all related medical bills.

If the contracts did not have the box checked on the front and the reverse of the contracts indicates all bills were claimant’s sole responsibility; the medical caregiver should be able to recover from the patient in typical collection litigation. Either way, we urge you to avoid that by making sure to continue to send ninety-day reminders to the patient, the employer, insurance carrier/TPA and lawyers for both sides.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Independent medical evaluations (IMEs) are an essential element of the workers’ compensation legal practice.  I represent employers and the IME is one of our main tools to use in addressing and attempting to control medical treatment costs, as well as lost time costs.  The Illinois Workers’ Compensation Act allows injured employees two choices of doctors when seeking treatment.  The two-choice rule means that the employee can seek treatment from any doctor he/she likes, and furthermore, any doctor within the chain of referrals from that first doctor is covered under the first choice.  The employee can then move to another doctor and all of that doctor’s referrals as their second choice.  The employee’s ability to choose his/her own physician leads to higher medical costs in workers’ compensation in this state than in other states that allow employers greater control over medical treatment.

It is important to use IMEs wisely because the Illinois Workers’ Compensation Commission typically accords greater weight to the injured worker’s treating physicians’ opinions than the IME doctor’s opinions.  Therefore, in order to overcome that bias, it is very important to use high quality independent medical evaluators.  At times, employers get caught in the trap of using the same conservative physician time after time and the physician’s reputation is quickly compromised at the Commission from the Arbitrator’s perspective.

Therefore, an independent medical evaluator should be selected with an appropriate specialty to the injury at issue in the case, and one who will exercise independent judgment rather than “tell you what you want to hear.”  By using a variety of highly qualified physicians, employers will put themselves in a position to earn credibility at the Commission regarding their independent medical evaluations.

Secondly, it is important to pay attention to the details.  Section 12 of the Act requires you to send transportation expenses to the employee with notice of the independent medical evaluation.  You should also give an injured worker adequate notice of the evaluation, copy his/her attorney, if there is one, and provide clear instructions regarding your expectations related to the appointment.

Thirdly, and perhaps most importantly, it is very important to give the independent medical evaluator medical records related to the employee’s injury and a clear inquiry as to what you are looking for out of the examination.  When drafting a letter to an independent medical evaluator, keep in mind that that letter may become part of the record of the evidence in the case.  Therefore, it is important to approach the letter in an evenhanded and objective manner.  One good way to test this is to review your letter and ask yourself is there anything in the letter you wouldn’t want read out in public in court in front of you.  If so, re-write your letter.

Next, it can also be very helpful to talk to independent medical evaluators or ask follow-up questions regarding your issues.  Sometimes independent medical evaluators will have research articles or other material that will support their opinions and can be very persuasive at trial.

Finally, once you obtain your IME report, read it carefully and follow up.  I typically immediately send it to my opponent so that I do not run afoul of the 48-hour rule.  That rule requires you to tender any IME report that you want to introduce into evidence to the other side at least 48 hours before the start of the hearing.  IME reports are hearsay documents, so you may need to take your doctor’s deposition if a hearsay objection is raised.  That leads to another good point, which is that ideally your IME physician will be able to provide clear convincing testimony if necessary and be willing to prepare for his deposition.

These are a few thoughts from the defense perspective.

About the Author:

Mr. Christopher J. Gibbons is a Shareholder with the Chicago Law Firm Nyhan, Bambrick, Kinzie & Lowry, P.C., Executive Secretary of the Illinois Self-Insurers’ Association and Chair of the Illinois Employer Workers’ Compensation Coalition (Tuesday Working Group). Mr. Gibbons received his Bachelor of Arts from the University of Wisconsin in 1987 and his Juris Doctorate in 1992 from Loyola University Chicago School of Law.  He is admitted to practice before the United States Supreme Court, the Supreme Court of Illinois, all Illinois state courts, and the U.S. District Court, Northern District of Illinois.   His areas of specialty are trial and appellate practice in the workers’ compensation and employer liability law. Mr. Gibbons’ clients include Advocate Health Care, Caterpillar, Inc., Provena Health Care, Commonwealth Edison/Exelon and Exxon- Mobil. He can be reached at (312) 201-0829 or cgibbons@nbkllaw.com.