By Elizabeth Alberico

In Skzubel v. Illinois Workers’ Compensation Com’n 927 N.E.2d 1247 Ill.App. 1 Dist.,2010. Four M, newspaper distributor for the Chicago Sun-Times, claimed to use independent contractors to deliver newspapers, prepare and distribute bills and collect payments from subscribers. Four M would enter into a contract with the delivery drivers that specifically stated that the driver was not an employee. Four M provided the drivers with a specific route, which could be amended at anytime, without notice by the company. The driver used his own vehicle. The rate per paper, per driver was set in the contract, but could be changed at anytime without notice by Four M. Drivers had to give seven days notice to cancel the agreement, but Four M could terminate the agreement with the drivers at anytime. Each morning before deliveries were made, Four M would provide the drivers with special instructions.

Petitioner was hired by verbal agreement as a driver for Four M. Because of Petitioner’s pending immigration status, her husband signed the contract with Four M and the paychecks were issued in his name. Petitioner worked exclusively for Four M for two years and never held herself out as an independent contractor.

The arbitrator found that no employee-employer relationship existed, but never addressed the issue of whether Petitioner was an independent contractor. He reasoned that because Petitioner’s husband, not Petitioner, signed the contract for employment and his name appeared on the checks, there was no contractual relationship between the employer and Petitioner.

A majority of the Commission agreed with the arbitrator, with one commissioner dissenting. The dissenting commissioner noted that the employer waived the right to claim that Petitioner was an independent contractor because of their dishonest actions in avoiding her immigration status. He examined all factors and focused on the degree of control the employer exercised over Petitioner as well as whether the job performed by Petitioner was essential to the business of the employer. The commissioner found that these components were enough to support an employee-employer relationship. The trial court affirmed the decision of the Commission.

The issue before the court was whether Petitioner was an employee or independent contractor. The Appellate Court examined a multitude of factors to determine whether an employee-employer relationship existed.

The Appellate Court began by examining the employer’s right to controlthe Petitioner. This well settled principle has time and again been considered the most important factor in determining whether an employee is an independent contractor. Four M had the right to terminate Petitioner without notice, change the rate per paper without notice, provided each driver with special instructions every morning, and could amend a route without notice to the driver.

Another important factor the court examined was the nature of the work in relation to the business of the employer.  The court found that the more essential the job duties are to the success and operations of the business, the more likely it is that an employee-employer relationship exists. In this case, the business of Four M was delivering newspapers. Four M relied on their drivers to carryout the operations of the business. Therefore, Petitioner’s job performance was essential to the success of Four M.

The court considered the label of employee versus independent contractor, in an employment agreement, to hold very little weight in the analysis of whether an employee-employer relationship exists.

The court found that the conclusion of the trial court was against the manifest weight, as an examination of the facts clearly led to the conclusion that Petitioner was an employee. The court agreed with the dissenting commissioner and found that the Petitioner was an employee of Four M.

The court placed the most emphasis on the amount of control the employer had over the Petitioner as well as the work Petitioner performed in relation to the type of business the employer engaged in.

Practice Tip

When an employer controls the actions of an employee and the work performed by the employee is crucial to the operation of the employer’s business, an employee-employer relationship exists.

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.

By Francesca Larsen

In Lenny Szarek, Inc. v. The Workers’ Compensation Commission, 396 Ill.App.3d 597 (2009), Petitioner Daniel Rub was employed by Respondent as a journeyman carpenter.  On the day of the accident, Petitioner was framing the exterior walls on the second floor of a new house.  Since the house was still under construction, there was a nine foot by nine foot opening in the center of the building. The opening was marked with paint but did not have a guard rail around it.  While working, Petitioner fell through the opening in the center of the house and landed in the basement.  Immediately following the incident, Petitioner was transported to the hospital.  His only recollection of the incident was that he thought he was “going to die.”  Petitioner was rendered a paraplegic as a result of the accident.

While in the hospital, Petitioner tested positive for both marijuana and cocaine.  Petitioner admitted a history of substance abuse to the hospital worker, but denied recent abuse.  Petitioner’s co-worker testified that on the morning of the incident he did not observe anything unusual about Petitioner when he arrived for work.  He further stated that Petitioner did not stumble or slur his words and nothing about his appearance indicated that he was intoxicated or impaired.  Petitioner’s supervisor also stated that there were no noticeable signs that claimant had consumed alcohol or drugs.

Respondent retained Dr. Jerold Leikin, a toxicologist, to render opinions as to Petitioner’s alleged intoxication the morning ofthe incident. Dr. Leikin testified that Petitioner’s medical record revealed positive tests for both marijuana and cocaine.  Dr. Leikin opined that Petitioner’s test results were “consistent with impairment due to marijuana” and that such results were indicative of “proximal use.”  Dr. Leikin testified that Petitioner’s use of such controlled substances would result in “some visual acuity deficits,” such as Petitioner’s impaired ability to judge distance.  Dr. Leikin ultimately opined that the reason Petitioner “might or could have” mistakenly stepped into an open stairway was from an impaired visual response or cognitive impaired response.

Respondent denied benefits based on the intoxication defense.  The arbitrator rejected the respondent’s intoxication defense and found that Petitioner had sustained an injury arising out of and occurring in the course of his employment.  The Commission adopted the decision of the Arbitrator and noted that Dr. Leikin only opined that Petitioner’s fall “might or could” have been due to his marijuana use.  The Commission reiterated the fact that Dr. Leikin could not state the Petitioner’s consumption of controlled substances was the only cause of the accident.  The fact remained that there were other factors of Petitioner’s employment that could have also caused his accident; namely the unguarded opening in the floor.

The Illinois Appellate Court affirmed the Commission’s decision based on the fact that Petitioner’s drug usage was a mere contributing factorandnot the sole causeofhis injury.  The Court stated, “A Petitioner is not required to prove that employment was the sole principle cause, but only that the employment was a causative factor.”

Practice Tip

Intoxication isnot a slam dunk defense for a respondent.  In order to prevail, a respondent must show that intoxication was the sole cause of the injury.  In order to satisfy this burden a respondent can show that the intoxication was excessive.  A respondent would benefit from providing testimony from the alleged intoxicated employee’s co-worker or supervisor that the employee’s intoxication impaired his abilities to perform his job duties.  Such facts may persuade an arbitrator to rule that the intoxication was the sole cause of the accident.

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.

By Joseph Mulvey

In Patricia Dragovan, Widow of Thomas Dragovan (deceased) v. Western Utility Contractors, Inc. 06 IL. W.C. 31304 (2009), the Commission distinguishes a prior Supreme Court ruling outlining the applicable test for causal connection in heart attack cases.

The Supreme Court case, Twice Over Clean, Inc. v. The Industrial Comm’n et al. 241 Ill. 2d 403 (2005) created a very loose standard for proving a causal connection between employment and heart attacks.  Essentially, a heart attack is compensable if the arbitrator can infer that the occupational activity contributed to the disabling condition.

The specific issue dealt with in both of these cases is the causal connection between physical exertion and a heart attack suffered by an employee with pre-existing and unrelated arterial blockage.  In the Twice Over Cleancase, evidence showed that Petitioner’s right coronary artery was 90% blocked at the time of the accident and that Petitioner was “basically a heart attack waiting to happen.”

Despite the pre-existing risk factors, and medical testimony showing that Petitioner could have suffered a heart attack at any time, regardless of his level of exertion, the Supreme Court found the claim to be compensable.  Their reasoning explicitly disavows what had been known as the “normal daily activity” exception, i.e. that an accident arising from a physical condition that has deteriorated to the point that the condition of ill-being could have been produced by normaldaily activity is not compensable.

The Supreme Court found that there was competent medical evidence to show that the exertion preceding the heart attack was sufficient to aggravate the pre-existing condition and that the ensuing attack was therefore work-related.

In Dragovan, the Commission distinguished the Twice Over Cleanruling by focusing on the lower level of exertion leading to the heart attack.  Whereas the petitioner in the Twice Over Cleancase had been carrying 40-50 lb. bags of asbestos in extremely cold conditions, the petitioner in Dragovanhad been shoveling and clearing loose soil for a relatively short amount of time in temperate conditions.

Ultimately, the distinction rests on a slim factual basis and seems to ignore the Supreme Court’s clear directive that medical evidence showing that the activity may have aggravated or exacerbated the underlying condition is sufficient to show a causal connection between the work activity and the heart attack.

Practice Tip

This decision is noteworthy for employers and offers a strong argument that heart attacks occurring during work hours are not per-se related to the employment. It is important in such cases to mine the factual record for details surrounding the accident itself, particularly with respect to the environmental conditions and the level of work preceding the heart attack.

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: 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: This is a decision that is hard to argue with. It appears some children are better off if their biological forebears are not working. In Illinois Department of Healthcare and Family Services Ex Rel. Elizabeth A. Black v Frank H. Bartholomew, the Illinois Appellate Court affirmed a Circuit Court ruling allowing the payment of child support arrearage from a workers’ compensation award and ruled Illinois law and public policy allow a trial court to apply proceeds from a workers’ compensation settlement toward a child-support arrearage.

By way of background—in March 2005, Elizabeth and Frank, who were not married, had a son, Nicholas. Frank signed a voluntary acknowledgment of paternity and “accepted the obligation to provide child support” for Nicholas. On February 6, 2007, the Department issued an administrative support order requiring Frank to pay child support of $428.52 per month. On August 23, 2007, the Department issued an income-withholding notice to Frank’s employer ordering it to withhold $428.52 per month for child support, as well as $85.70 per month toward a delinquency of $6,602.34. On October 23, 2007, Elizabeth filed a petition to establish the existence of a father-child relationship. With her petition, Elizabeth provided a copy of the voluntary acknowledgment of paternity, the administrative support order, and the income-withholding notice and alleged Frank had filed a workers’ compensation claim and was awaiting settlement. She asked the trial court to adjudicate Frank the father of Nicholas, order him to pay child support, prohibit him from dissipating any workers’ compensation settlement, and grant her 20% of any such settlement as current child support.

On January 3, 2008, the trial court held a hearing and entered an order finding Frank the father of Nicholas, ordered him to pay child support pursuant to the administrative order, ordered Frank not to dissipate any of his workers’ compensation settlement without court order and determined Elizabeth should receive 20% of the net settlement in addition to the child-support arrearage already owed her, which amounted to $6,602.34. On January 28, 2008, Frank filed a motion to vacate the part of the trial court’s order requiring payment of past-due support from his settlement, arguing such payment was barred by section 21 of the Illinois Workers’ Compensation Act, which prohibited workers’ compensation awards from “being held liable in any way for any lien, debt, penalty, or damages.” On April 1, 2008, the court entered an amended order requiring Frank to place his settlement funds in trust until further order of the court determining the amount to be paid Elizabeth. Thereafter, Frank received a workers’ compensation settlement of $175,000. After multiple proceedings, an order was issued indicating funds previously ordered to be held in trust in the amount of $9,216.77 shall be applied toward the child-support arrearage and interest due under the administrative support order and Frank appealed from the court’s orders.

There was no objection to the use of Frank’s workers’ compensation settlement to pay current child support. He argues, however, a request for payment of an arrearage pursuant to a child-support lien for payment of a past-due support obligation is a debt that is barred from collection from his compensation settlement. Frank argued workers’ compensation benefits were exempt from judicial process for child-support arrearages.

The Appellate Court also noted applying Frank’s workers’ compensation settlement funds to his past-due child support also served the intent of the Act because the Illinois workers’ compensation scheme was enacted “to furnish a measure of financial protection to the workman and his dependents for injuries received by him which arose out of and in the course of his employment.” They further noted the Act recognizes a worker’s dependents are intended beneficiaries. Because dependents are intended beneficiaries of workers’ compensation awards, public policy furthered by the exemption in section 21 of the Act is to protect workers and their dependents from the claims of outside creditors, not to shield workers from their own internal family obligations. As the Illinois Supreme Court explained in Logston, the purpose of income exemptions in general is to ensure creditors cannot deprive debtors of the means of supporting themselves and their dependents. Illinois law and public policy allow a trial court to apply proceeds from a workers’ compensation settlement toward a child-support arrearage. Accordingly, the trial court did not err when it ordered Frank’s child-support arrearage plus interest be paid from his workers’ compensation settlement.

So the bottom line is that at some point if you get some benefit, the state and the taxpayers will expect you to take care of your obligations to your family. We highlight the fact the settlement was $175,000 and the amount of child support in arrears was less than $10,000. It is difficult to fathom why the time and effort was spent trying to avoid paying child support which was past due. Here is hoping that little Nicholas learns his lessons from someone other than his proud papa.

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.

Editor’s comment: In our view the Appellate Court flew straight and true on this dispute. In Atanus v. American Airlines (No. 1-09-2380 June 18, 2010), the Appellate Court, First District affirmed the lower court’s dismissal. Plaintiff was injured while working for Defendant and another company. Plaintiff sued the airline and its employee for tortious interference with prospective business expectancy.

He alleged the airline and its manager made false statements that he committed workers’ compensation fraud to his other employer, an electric company for whom he worked as an engineer. Defendant Airline’s security investigator, upon learning Plaintiff’s work hours at O’Hare overlapped, obtained a copy of the O’Hare gate entry records and provided a copy to electric company. Upon reviewing the records, the electric company boldly terminated him.

The Circuit and later Appellate Court ruled there was no unjustified interference by the airline in providing this copy, which was a proper and accurate business record. The Court majority reasoned it was reasonable one employer would request such a record from the other.

As Plaintiff necessarily alleged transmittal of false information by Defendant airline, he must establish this allegation of false transmittal to survive the summary judgment. As he couldn’t, the claim was dismissed. We applaud the hard work of the folks at American Airlines in not backing down.

We do feel the Illinois judiciary may be getting on the WC-fraud-by-injured-worker bandwagon a little bit. We have also heard of several recent criminal prosecutions across the state. If you need a workers’ compensation fraud poster for your workplace, please send a reply. We appreciate your thoughts and comments.

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: One thing we are trying to tell the voices of WC reform in this state is our commitment to all of our readers that we don’t have to focus all our money and attention on changing the Act. The problem we have is the way the Act is interpreted. The paradigm of odd interpretation of wildly high and out-of-control workers’ compensation benefits in Illinois is Section 8(d-1) that provides lottery-level-winning benefits to individuals with non-life-changing conditions such as sore elbows. This is one such case. We want our readers to understand wage loss “differential” benefits are supposed to make up the difference between what an injured worker was making and what he/she could be making in a new job—if you don’t have a new job, there is no “differential” to make up. Regardless of that fact, the current Commission and reviewing courts may not seem to mind and may be willing to award millions in a fashion a more conservative Commission wouldn’t. Let’s see how it currently works.

In Copperweld Tubing Products v. Illinois Workers’ Compensation Commission, (No. 1-09-1422WC June 22, 2010), the Appellate Court considered a claim in which Claimant was employed as a mill operator. On November 28, 2001 Claimant was pulling a spacer which fell and strained his left elbow. Claimant was diagnosed with left lateral epicondylitis and underwent an anterior submuscular transposition of his left ulnar nerve on September 20, 2002 and a second submuscular transposition of the left nerve in December 2002. He later had a third surgery. Despite the fact claimant only had one injury to one elbow, following claimant’s surgeries an FCE was performed which revealed claimant possessed the ability to work at the light to medium physical demand level.

As we have told our readers on numerous occasions, an FCE resulting in permanent work restriction provides the “golden diagnosis” that leads to a claim for lifetime wage loss benefits under Section 8(d-1). As our law requires to best set up such a claim, the injured worker clowned around in vocational rehabilitation and didn’t find the jobs recommended. At one point, the vocational rehabilitation counsel for the employer opined he could locate work in a range between $8-12 per hour. Almost two years after being released from care, claimant got a job on his own as a security guard making $8 per hour. He quit six months later and has never worked again. This happened in 2006.

Why would a guy who was making that much money grab a job as a security guard at that low rate of pay? We have called this Section 8(d-1) strategy Bad-Job-Right-Away for about twenty years. You don’t see these sorts of shenanigans in other states. The idea is to document the ability to work but set the rate of pay at the lowest possible amount to concomitantly insure the highest possible wage loss differential benefit.

What happened then was the creation of a problem with the claim—the Petitioner side might have gotten a little too aggressive. For comparison purposes, they used another employee who made $78,000 per year. The problem arose when some of the co-worker’s wages were from mandatory overtime but some of his wages were from overtime that he bid for. All of it delayed the claim while the parties appealed it all the way to the Appellate Court which still hasn’t resolved the claim four years after the security job ended. While we aren’t completely certain, we are confident claimant still has refused to return to any job and vocational counseling probably ended four or more years ago.

Where is the claim at right now? Well the Commission previously awarded this claimant $534.16 per week for wage loss differential. If that amount stands up to further scrutiny, he will be paid $27,776.32 on a tax-free basis for life. And, in this state, he is entitled to the benefits and he can still work even in the same pre-injury job or at a job that pays double or triple what he was making—this all comes from the odd ruling in Cassens Transport. Please note the current decision in Copperweld Tubing Products above doesn’t state Claimant’s age but if he lives forty years, he will receive a cool $1,111,052.80 without having to pay state or federal taxes. He will receive all of that money for one injury to one elbow. You may note it would be the equivalent of about 400% loss of use of the arm. There is no state in the United States that provides such largesse.

The Appellate Court sent it all back to the Commission for reconsideration of the award without the mandatory overtime. When the Commission gets it back, they will now be considering a record in which claimant has been out of the work force and appears to have retired from all work and withdrawn from the workforce. If someone with the slightest defense focus were to look at such facts, it is possible they could reasonably limit the award to specific loss of use of the arm and maybe something under Section 8(d-2) for “loss of trade.” Again, in Illinois, with respect to our current Commissioners, we don’t think the administrative hearing officers will care. It is our view no one will have any problem with awarding wage “differential” benefits to someone who has had no wages for more than four years and is obviously participating in litigation gaming.

So you either have to change the thinkers or change the rule. With respect to the current Commission, it may be dramatically easier to change the thinkers. Either way, from the defense side of the bar, we have no problem awarding wage loss differential benefits to make up actual or even projected “lost wages.” It is our view it is outrageous, business-busting and anti-job creation to force Illinois employers to award potentially seven-figure lifetime benefits in the fashion awarded in this claim.

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.