First, the Belleville News-Democrat weighed in Sunday with an excellent and thoroughly researched article which is something of an implicit comment on the main effort of the Illinois State Chamber and other business groups to change the need for a work-related condition to be “caused” by the work. For years, liberal administrators and reviewing courts have created an almost indefensible standard of allowing work to be “a” cause and not “the” cause of the condition. The problem is numerous questionable WC claims have occurred without inclusion of an accidental event or clear work relationship.

The News-Democrat article by Beth Hundsdorfer and George Pawlaczyk titled Menard guards get $1.5 million in workers’ compensation outlines research indicating prison guards at the Menard, Illinois correctional center have already been paid more than $1.5 million since January 2009 in workers’ compensation settlements for hand, wrist and elbow injuries they say were caused by repetitive duties like the onerous task of occasionally locking and unlocking cell doors with keys. One claimant also got substantial benefits he alleged were from the horrors of handling a shaking steering wheel in an older prison vehicle. We all wonder where the next Upton Sinclair might be to investigate and demand regulation of such horrendous work environments.

The tax-free, taxpayer-funded permanency settlements range from $119,184 to $21,860, according to public documents obtained from the Illinois Workers’ Compensation Commission. Fifty-five Menard staff members — including 51 guards, nearly one in every 10 corrections officers at the lockup applied for compensation for injuries attributed to “repetitive trauma” which folks from other states call “work.” About 30 of these cases remain pending.
Four prison medical personnel, nurses and technicians and one maintenance man also have received awards or filed claims for repetitive trauma injuries.

Please note the claims listed above do not involve anything which your father and mother might think of as “accidents.” On top of repetitive trauma claims for turning keys in locks and shaky steering wheels, another 27 workers’ compensation cases were filed since last year on behalf of Menard prison guards and staff for non-repetitive injuries involving actual accidents like slipping and overexertion such as heavy lifting. A dozen of these have been approved and $282,480 was paid out in permanent disability settlements.

We want our readers to understand the amounts of $1.5 million for repetitive trauma and $282,480 for accident claims is compensation to the prison workers for permanency only—it does not include the thousands in surgeries, physical/occupational therapy and lost time that comes with the 78 claims reported above.

In contrast to the Menard facility, Illinois has two other large maximum security prisons; Stateville and Pontiac. A review of similar documents by the crack reporters for these two prisons revealed each had less than a dozen workers’ compensation claims for 2009 and 2010 and none for repetitive injury. Stateville and Pontiac prisons employ electronic systems to open doors, eliminating most of the need for manual tasks for this purpose. One cynic asked if one would wonder why pushing the buttons and flipping the switches couldn’t also be “repetitive” and justify millions in payments by the taxpayers.

Second, there was an interesting informal academic debate on the issue of work being “the” cause” between lawyers on both sides at the Workers’ Compensation Commission. Some Plaintiff attorneys view these efforts by business groups as designed to end the age-old legal concept of the “eggshell Plaintiff” with this proposed legislation. When we heard of the debate, we want all of our readers to understand the academic concept of “eggshell Plaintiff” started in U.S. personal injury law following an actual “accident” where someone made a careless or negligent mistake. To expound, when a tortfeasor or “mistake-maker” carelessly caused injury, the idea was he/she was responsible for all injuries which flowed therefrom, including injuries to someone who was in an already weakened state, such as an elderly person. If you did something careless, like running a stop light and hit an elderly person who suffered much greater injuries than a healthier person, the tortfeasor could not seek a limit on damages as if they had struck a healthier person.

In contrast, Illinois employers, under current Illinois workers’ compensation law are dealing with thousands of “eggshell” workers, such as the Menard prison guards above who apparently can’t turn a key in a door or handled a shaky steering wheel without that becoming a multi-million dollar cost to taxpayers while being a boon to surgeons and doctors who are willing provide and relate their care to “work.” As we have told our readers numerous times, when state and local governments prime the workers’ comp pump for such claims, it is very hard for private companies to make sense of the system and turn it off.

We also point out the “eggshell Plaintiff” isn’t supposed to be someone who you nudge past in a crowded bus and then screams you broke their arm or leg. The “eggshell Plaintiff” concept requires an actual “accident.” Illinois workers’ compensation has moved far from requiring an accidental injury—all you need is a:

• Job;
• A problem a doctor can claim needs surgery;
• A doctor who will generally relate the need for that surgery to your “work.”

Third, last Wednesday, December 8, some of our partners and associates attended the second hearing of the Senate Special Committee on Workers’ Compensation Reform at the James R. Thompson Center in Chicago. We consider the whole event to have a circus-like feel.

The initial group of folks providing testimony defended the current Illinois workers’ compensation system. Dr. Linda Forst of the University of Illinois at Chicago testified about AMA guidelines. She provided her opinion they should not be used in Illinois due to a studies as to scientific validity. Despite the fact 38 states use them; she urged the panel to reject the concept. Two witnesses from ISME or the Illinois State Medical Society, Dr. Tierny and Dr. Preston Wolin defended the importance of Illinois’ injured workers retaining control of selection of their physicians. They also opined the current Illinois medical fee schedule was fair even though it has resulted in a decrease of revenue to physicians, therapists and other care-givers. They opposed the adoption of a Medicare-based fee schedule. Finally, they testified to their view utilization review or UR should be decided based on peer-to-peer evaluations. Dr. Wolin has gone so far as to post his testimony on the web.

The next speaker, Howard Peters of the Illinois Hospital Association, testified changes made to Illinois workers’ compensation should only occur in the “agreed bill” process. In our view, an agreed bill isn’t going to be reached in the time frame needed to make any current reform. The next speaker was Illinois Department of Insurance Director Mike McRaith. He testified to a lack of funding for the Workers’ Compensation Fraud Unit. The Fraud Unit is not funded through the General Revenue Fund but receives funds from the surcharge. He pointed out the Fraud Unit’s funding has been cut approximately 50%. Our problem with the Fraud Unit isn’t the IDI troops—it is the fact their hard work is ignored by most of our state’s attorneys across the state. Mr. McRaith’s problem is ITLA doesn’t want any funding for WC Fraud and they will keep quietly trying to cut it or end it.

Interests favoring WC reform were introduced by Kevin Martin, from the Illinois Insurance Association. Barb Malloy was the first speaker. She is a former workers’ compensation administrator for the City of Chicago and was involved with the 2005 Amendments to the Illinois WC Act. Ms. Malloy testified the savings that were supposed to result from the 2005 Amendments were, in her words, largely “ephemeral.” We point out there were no savings and statistics indicate costs have increased on a double-digit level for some time. Next, Max Carney, CEO of Midwest Insurance explained why he believes the Illinois WC system is not profitable for insurance companies. He blamed a lack of predictability, particularly on the indemnity side, for the high costs of the system.

Thereafter, one state senator from Chicago claimed there weren’t enough minorities on the committee; then labor folks got up to extol the need for an agreed bill process; a claimant lawyer argued WC reforms would end protections for workers while increasing profits to business (other than his law firm which touts itself as Illinois’ largest personal injury firm) and a group of injured workers complained they didn’t get enough for their injuries. We are certain the Senate Committee carefully took notes during such testimony.

Joint employer representatives were then allowed to testify and companies represented included the Olin, Safeway/Dominick’s, American Airlines, and Kenny Construction. Ms. Misty Handbright with American Airlines confirmed Illinois was their most expensive workers’ compensation state per claim. Employer representatives echoed the theme that Illinois is a high-cost workers’ compensation claim state. Mike Roark with Olin testified Illinois workers’ compensation costs for his company are one-tenth of the cost in Missouri. Kenny Construction was represented by John Tuisl. Mr. Tuisl was critical in his view that Illinois has an “automatic presumption” that an injury arose out of employment. We point out there is no such legislative presumption, other than for police and firefighters with five years of service for some conditions. Not to correct John Tuisl, the “presumption” comes from administrative decision-making and not the statute.

Fourth, the House Special Committee on Workers’ Compensation Reform has scheduled two meetings this week. The first will be held in Bloomington on December 15. The second will be held in Mt. Vernon/Marion on December 16. If you need the sites, send a reply.

Fifth, many of you keep asking and here are some simple thoughts on rapid WC reform.

• Initially, we feel the State Chamber’s initial concept of trying to make the work “the” cause and not “a” cause might and should happen. The problem is how they will write the legislation to see if the IWCC administrators have to change their stripes and start to deny millions in benefits for key-turning and shaky-wheel prison guards who don’t actually suffer “injuries” but enjoy the shiny brand-new SUV’s and pick-up trucks and other perks at taxpayer expense that come from having a simple wrist or elbow surgery.
• Next, another easy way to cut about 7.5% off the permanency awards is to roll back the 2005 increases for weekly PPD. For one example, a leg used to be worth 200 weeks—in 2005, they increased it to 7.5% or to 215 weeks. If you want a defined savings both sides might accept, roll the values back to 2004.
• Last, put a cap on wage loss differential, total and permanent and death claims at 10, 15 or 20 years. Trust us, if you don’t understand how this would save Illinois business a jillion dollars while still giving injured workers money, send a reply.

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.

Synopsis: Illinois Appellate Court, Workers’ Compensation Division holds Petitioner must appeal a Commission decision finding she failed to prove condition of ill-being causally connected to the work incident in order for an Arbitrator, on remand, to reopen the claim and consider additional evidence regarding causal connection.

Editor’s Comment: The facts in Help at Home v. Illinois Workers’ Compensation Commission, (No. 4-09-0977WC, issued November 22, 2010), involved a 19(b) hearing where the Arbitrator found Petitioner sustained injuries to her low back and right shoulder arising out of and in the course of her employment with Help at Home.

It is important to understand the employee or her counsel did not appeal the ruling. We note Help at Home filed a petition for review with the Commission.

The Commission found Petitioner “failed to prove that her condition of ill-being as it pertains to her right shoulder is causally connected to the accident.” The Commission remanded the matter to the Arbitrator and stated, “the Arbitrator may consider any additional evidence with respect to the causal connection of the right shoulder to the accident.”

As we indicate above, the employee did not appeal that ruling but Respondent Help at Home filed a petition for judicial review with the Circuit Court of Morgan County to block remand and a new hearing. The Circuit Court confirmed the Commission’s decision finding the Commission did have authority to remand to the Arbitrator for the purpose of considering additional evidence with respect to the causal connection of the right shoulder.

This appeal followed with Help at Home arguing the Circuit Court erred in confirming the Commission decision. The Appellate Court cited the recent decision of Ming Auto Body/Ming of Decatur, Inc. v. Industrial Comm’n, which held, “under the law-of-the-case doctrine, a court’s unreversed decision on an issue that has been litigated and decided settles the question for all subsequent stages of the action.” 387 Ill.App.3d 244, 252, 899 N.E.2d 365 (2008).

In the present case, the Commission found Petitioner failed to prove her condition of ill-being regarding her right shoulder was causally connected to her work accident. Petitioner never sought judicial review of this determination and it was never reversed. Thus, the Commission decision became the law-of the-case and the Appellate Court found Petitioner was barred from raising the causal connection issue in regard to the shoulder claim during any further proceedings on remand.

It appears the lesson here is to appeal any decision which is not favorable. One cannot count on a tribunal’s ruling that a matter be remanded for the consideration of additional evidence when the law-of-the-case doctrine is applied.

This article was researched and written by Matthew Ignoffo, J.D.  If you have any questions or comments, you can reach Matt via email 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.

Synopsis: Workers’ Compensation Division of the Appellate Court rules employer-employee relationship did not exist when a terminated claimant slipped and hurt her back while returning from an independent medical examination or IME set consistent with Section 12.

Editor’s Comment: We fully agree with the legal analysis but there is a bigger question this ruling couldn’t answer. Either way, we feel the Court got this one right and applaud their ruling.

In the case of Menard v. Illinois Workers’ Compensation Commission, (5-09-0354WC. issued November 22, 2010), the Appellate Court, Workers’ Compensation Division ruled an employer-employee relationship did not exist when Petitioner allegedly suffered a back injury while preparing to travel home from an independent medical examination (IME). Petitioner originally filed an Application for Adjustment of Claim alleging she suffered a work-related accident due to anxiety caused by conflicts working for her employer. Petitioner was terminated several months later for failure to report to work after the alleged accident date.

She then filed a second claim, contending she suffered a back injury while preparing to travel home from an IME set by the employer. Please note the IME was set after the termination of claimant’s employment.

At arbitration, the Arbitrator ruled Petitioner was an employee at the time of the IME because “[claimant had been] directed to attend [the IME] as it related to her prior activities at work and, further, [she] was not only authorized by Respondent to attend [the exam], but…. was, in fact, directed to do so.” Please note the right to set an IME is governed by Section 12 of the Illinois Workers’ Compensation Act so the employer and/or its agents were simply following the Act to get the medical evaluation required therein.

In summary, the Arbitrator found the accidental injury to fall within the employment or in effect, the worker was “re-hired” solely for the purpose of getting to and from the examination. With one dissenter, a majority of the Illinois Workers’ Compensation Commission agreed with the decision of the Arbitrator on review. The Circuit Court of Jackson County overturned the Commission’s ruling and found the employer-employee relationship did not exist at the time of the alleged accident.

On appeal, the Appellate Court, Workers’ Compensation Division agreed with denial by the Circuit Court, citing the Supreme Court ruling in Skelgas v. Industrial Commission, 400 Ill. 322 (1948). In that case, the Illinois Supreme Court held under §12 of the Act employers have an absolute statutory right to an IME, and the statutory right is “entirely independent of the relationship between employer and employee.”

As we indicate above, we applaud the decision of the Court for closely following Illinois Supreme Court precedent and the logic provided in the Act. The unanswered question which was not before the Court and therefore couldn’t be ruled on is whether a current employee who is arguably injured going to or coming from an IME would have a compensable claim when it is their responsibility to get from and to the appointment safely.

This article was researched and written by Joseph D’Amato, J.D.  If you have any questions or comments, you can reach Joseph via email at jdamato@keefe-law.com or via telephone at (312) 545-7135.

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.

This year’s event promises to be bigger & better than before so make plans to attend this year’s holiday party!

Please extend this invitation to all others in your office who are members or might be interested in joining the GPCA in 2011.

Who: All GPCA members & their significant other (We also welcome any claims professional that is thinking about joining the GPCA next year!)

When: Tuesday, December 14, 2010 | 5:00 – 8:00 pm — or beyond!

Where: Martini’s on the River – 212 SW Water St, Peoria, IL – (309) 655-5003

This is a happy hour party to allow everyone to come and go as they need – come for a ½ hour or all three!

• Drink tickets will be handed out upon arrival to all GPCA members and their guests.
• We will have fabulous  hors-d’oeuvres from The Rhythm Kitchen.
• There will also be fabulous door prizes from the GPCA for those members attending the party.
• LIVE MUSIC by Doug Brod’s band, The Corn Wolves, will enhance the party
• This year from 6- ?

We hope you can join in the fun!

Please RSVP with Donna Totton at 309-208-9795 or dxtotton@cvty.com by December 10, 2010 so we can make sure we have enough food!

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.

From Rich Lenkov of Bryce Downey & Lenkov LLC:

In mid-August, we helped launch the National Workers’ Compensation Commission. The NWCC is a not-for profit organization dedicated to representing the interests of employers in the workers’ compensation arena. Our mission is to provide the workers’ compensation defense industry with a voice to address the problems and concerns unique to the workers’ compensation arena by monitoring state specific legislation that impacts the insurance risk industry.

On October 7, 2010, we held our first Roundtable/Networking Session, in Columbus, Ohio. We had more than 50 attendees, consisting of a widespectrum of the Ohio workers’ compensation community, including risk managers, attorneys, and vendors. We also had the COO of the Ohio Workers’ Compensation Bureau and a representative of the Ohio Attorney General’s office. We have some exciting upcoming events and are looking for more members. If you join now, you get 2011 for free.

Please use the following link to join: http://www.nwccoalition.com/nwcc/Join_Now.html

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 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.

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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.

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