I&F Prevails in IL Claim as Petitioner’s Bilateral Carpal Tunnel Held Unrelated to Work Duties

I&F recently prevailed in a trial over the disputed issue of the Petitioner’s bilateral carpal tunnel conditions.  The Petitioner alleged that her diagnoses and surgeries were due to repetitive trauma from her work as an English Teacher.  The petitioner testified that her duties during the school day required her to use her hands for attendance, grades, e-mail and for her teaching of the students during the course of the day.  She also testified that she typically stayed 3 hours after school and worked almost every weekend from home, creating 1,920 lesson plans on her computer from 2007 until her retirement in 2015.

The Petitioner’s surgeon testified that these job duties and regular computer use had caused or aggravated her bilateral carpal tunnel conditions; however, the very limited extent of his knowledge regarding the Petitioner’s job duties was brought to light through diligent cross-examination.

The Arbitrator found the Respondent’s expert witness and IME physician to be much more credible, knowledgeable, and convincing.  In his direct and redirect testimony, the Respondent’s IME physician was able to clearly and succinctly explain his detailed knowledge of the Petitioner’s job duties and the nature of her typing.  Based on the contrasting testimony of the two expert witnesses, the Arbitrator found that there was no causal relationship between the petitioner’s bilateral carpal tunnel and her work duties.

The key to the excellent result in this case was being able to attack the underlying foundation for the opinions of the Petitioner’s expert medical witness, while simultaneously ensuring that the Respondent’s expert witness was provided with thorough and detailed facts regarding the specifics of what the Petitioner’s job duties entailed.

Congratulations to attorney Michael Bantz for this excellent result.

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Missouri Commission Finds Horseplay Equals No Pay

Both in Missouri and in Illinois, accidents caused by horseplay in the workplace are usually not compensable.  Horseplay or “goofing off” is generally not acceptable behavior in the workplace as it may result in injuries to the employees.  It commonly has nothing to do with furthering the interests of the employer.  Generally, an employee actively involved in the horseplay incident is not successful in proving a compensable work related accident.  On the other hand, an employee who does not participate in the horseplay but is injured because of the horseplay will be entitled to benefits.   Additionally, if it is determined that the employer knew of the horseplay and tolerated it, benefits may be awarded even to the participant.

In the recent case decided in Missouri, Grayson v Thorne and Son Asphalt Paving Company, the claimant alleged that he sustained an injury to his shoulder which arose out of his employment when he was involved with an altercation with a co-worker and fell to the ground.  It was shown at trial that the 57-year-old worker began work in a morning in 2015 when a co-worker grabbed him and they wrestled.  Witnesses stated that there were no bad feelings between the two employees and that they continued to work after the incident although the claimant testified that he was not a voluntary participant to the assault.  In addition, another employee reported that people were often joking around but wrestling was not typical conduct.

After hearing the evidence at trial, the ALJ found that at the time of the claimant’s alleged injury on September 25, 2015, the employee was engaged in voluntary horseplay that was neither commonplace in the workplace nor condoned by employer.  The ALJ concluded that the employee did not sustain an injury arising out of and in the course of his employment Based on this finding, the claimant was denied benefits.  The Commission affirmed the denial of benefits finding that the risk source of the employee’s injury in this case was employee’s own voluntary consent to horseplay that was neither commonplace at work nor condoned by employer. Because the risk source of employee’s injury was personal and did not arise out of the work or the workplace, his injury was not compensable.

This is a favorable decision for the employer.  In order to increase the likelihood that injuries from horseplay are found not compensable, it is important for the employer to insure horseplay is not tolerated in the work place.

Please feel free contact us with any Missouri workers’ compensation questions. Thanks to attorney Jill Baker for the summary of this case.  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at jbaker@inmanfitzgibbons.com.

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I&F Upholds Prior Victories in Appeal before Madison County Circuit Court

Partner Kevin Deuschle previously obtained wins at Arbitration and before the Commission, awarding no benefits to the petitioner, in a case involving an allegedly work-related torn meniscus and eventual total knee replacement.

The Petitioner had worked as a truck driver for the Respondent and testified that he stepped out and of his truck and down, feeling numbness and pain in his right leg upon putting his right foot on the ground.  The next day, while walking across a parking lot on the Respondent’s premises, he collapsed and was brought to the ER via ambulance.  The Petitioner, who was noted to be 6’2” and weighing 375 lbs, was diagnosed with a meniscus tear and underwent a meniscectomy followed by a total knee replacement.

The Arbitrator awarded no benefits, finding that the petitioner failed to prove that he suffered an accidental injury that arose out of and in the course of his employment.  The Arbitrator specifically found the Petitioner not to be a credible witness due to a combination of reasons, including a conflict between the Petitioner’s testimony and the history that he gave to medical providers, the fact that the Petitioner did not give any medical provider a history of injuring himself while stepping out of the truck until almost two weeks after the accident, and also because the Petitioner did not identify his accident as being the act of stepping out of the truck when he gave a recorded statement to the claims handler.

The Arbitrator further found that, even if the Petitioner’s description of the circumstances was accepted, that it would not constitute an accidental injury arising out of and in the course of his employment, due to the fact that the petitioner failed to describe a specific event or accident.  The Arbitrator noted that there was no slip, fall, or twisting of the knee when he stepped out of the truck.  Lastly, the Arbitrator found that there was no evidence that the Petitioner was subjected to a risk of injury greater than that which the general public is subjected, citing Caterpillar Tractor Co. v. Indus. Comm’n, 129 Ill. 2d 52, 56, 541 N.E.2d 665, 666 (1989).

The Illinois Workers’ Compensation Commission affirmed and adopted the Arbitrator’s Decision in its entirety, including the Arbitrator’s specific finding that the Petitioner was not a credible witness.

The case was then appealed to the Madison Circuit Court, where it was argued by attorney Michael Bantz.  The Circuit Court found that the decisions of the Arbitrator and Commission were not against the manifest weight of the evidence; however, the Circuit Court focused on the Petitioner’s failure to properly report the accident and the lack of medical evidence that established a connection between the alleged trauma and his diagnosis, rather than on the credibility of the Petitioner.  The Court specifically found that the Petitioner’s condition was idiopathic and that he was not exposed to any risk of harm when his injury occurred.  The Petitioner then brought a motion to reconsider before a new Judge at the Circuit Court, and Michael Bantz again obtained a favorable ruling with further arguments before the Court.

In this instance we were able to prevail by bringing together a variety of arguments on separate issues.  It is essential to raise all possible defenses at the time of trial, including identifying inconsistent statements that undermine the credibility of witnesses, providing arguments that an incident did not legally arise out of a claimant’s employment, and also clearly detailing the weaknesses in any assertion of a medical causal connection between an accident and a diagnosis.

Congratulations to Partner Kevin Deuschle and Attorney Michael Bantz for their success on this case!

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WI Supreme Court takes first look at 2013 law that disqualifies claimants from receiving unemployment benefits for “substantial fault.”

The May 4, 2017 Wisconsin Supreme Court decision in Lela Operton v. LIRC, 2017 WI 46, highlights the need going forward for employers denying unemployment benefits to present evidence that employee errors resulting in termination were not inadvertent.

In Lela Operton v. LIRC, 2017 WI 46,  the Court interpreted, for the first time, a 2013 law that disqualifies claimants from receiving unemployment insurance benefits for “substantial fault.”

“Substantial fault” includes those acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the employee’s employer but does not include any of the following:

  1. One or more minor infractions of rules unless an infraction is repeated after the employer warns the employee about the infraction.
  2. One or more inadvertent errors made by the employee.
  3. Any failure of the employee to perform work because of insufficient skill, ability, or equipment.  (Wis. Stat. Section108.04 (5g))

Lela Operton worked as a full-time service clerk for Walgreens from July 17, 2012 until her termination on March 24, 2014 for multiple cash handling errors and the inability to improve despite warnings.  She averaged hundreds of cash handling transactions per day during her employment. Operton made eight (8) cash handling errors during her time with Walgreens that led to her termination on March 24, 2014.

Subsequent to her termination,  Operton filed for unemployment benefits. An Administrative Law Judge (ALJ) denied Operton unemployment benefits and concluded that she was terminated for “substantial fault.”  The Labor and Industry Review Commission (Commission) affirmed the ALJ. The Court of Appeals reversed the Commission’s finding. The Supreme Court accepted review.

The Supreme Court agreed with the Court of Appeals and remanded the matter back to the LIRC for a determination as to the amount of benefits owed. The Supreme Court did indicate that fault existed because Operton did exercise “reasonable control” over the cash handling transactions and that the employer “reasonably required” her to handle these transactions. However, the Supreme Court took issue with what it stated was the Commission’s failure to assess whether the errors were “one or more inadvertent errors,” which would preclude a finding of substantial fault.  In assessing this issue, the Court determined that the errors were inadvertent and not reckless or intentional. It noted that there was no evidence that Operton willfully disregarded the employer’s interests or that she was so careless or negligent to be guilty of misconduct. The Supreme Court thus concluded that “substantial fault” did not exist to deny benefits.

Operton shows that an employer must be prepared to present evidence countering the application of the substantial fault exceptions. Certainly counsel for employees will be keen to present evidence of inadvertence and lack of intent.

Thanks to Partner Scott McCain for bringing this new case to our attention.  Scott works out of the Chicago and Milwaukee offices of Inman and Fitzgibbons.

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Iowa WC Bill Signed by Governor

Iowa Gov. Terry Branstad has signed a workers’ compensation bill that reduces benefits for injured workers, notably benefits for shoulder injuries, and decreases coverage for injuries tied to a pre-existing condition.

Des Moines, Iowa – Photo Credit to Des Moines Register

A proposal to end permanent total disability benefits at age 67 was ultimately removed from measure, but Iowa Republicans added an amendment creating a vocational rehabilitation program for some workers with shoulder injuries. Under this provision, an employer would pay up to $15,000 toward a retraining program for qualified workers, according to a report by the Iowa Legislative Services Agency (LSA).

Beginning in the 2018 budget year, payouts from the state Workers’ Compensation Fund are expected to decrease by about $1.8 million annually under the bill, the LSA reported. The LSA said it’s unknown what the fiscal impact of the retraining program will be, but it is expected to increase some costs to the state fund.

In a statement released by his office, Branstad said the Iowa workers’ comp system over the past decade had “mutated into a system benefiting trial lawyers at the expense of Iowa businesses and Iowa workers.”

He said the bill acts “to ensure employees are compensated fairly for being injured on the job, while ensuring that abuses are curtailed. This legislation prevents attorneys from taking fees from injured workers when the employer was voluntarily giving benefits, ends the burden on the employer to demonstrate that intoxicated workers incurred injuries as a result of the intoxication, and ends an individual’s ability to receive workers’ compensation while receiving unemployment insurance.”

The National Council on Compensation Insurance has found the Iowa system overall is fair for employers, according to the Associated Press. The NCCI last year proposed overall decrease in voluntary and assigned risk rates of 4.7 percent that became effective in Iowa on Jan. 1. Rates increased by about 2.2 percent in 2016.

Republicans, echoing arguments in states such as Illinois, argued that that workers’ compensation rates for Iowa businesses are so much higher than rates in neighboring states that it makes it difficult to compete.  Democrats overwhelmingly spoke out against the bill, saying it is a bad deal for injured workers.

The bill goes into effect on July 1.

I&F thanks the Insurance Journal for the summary of the changes on Iowa.

Kevin Deuschle wrote this article and is the Chair of the firm’s Information Technology Practice Management group, including the firm’s Committee on Digital Ethics.  He has managed the firm’s blog since its inception in 2009.

I&F Partner Terry Donohue handles Iowa claims for the firm and works out of the Chicago and Des Moines offices of Inman and Fitzgibbons.  Please feel free contact Terry with any Iowa workers’ compensation questions.

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Indiana Court of Appeals Holds Termination of Employment does NOT Bar Entitlement to TTD Benefits in Indiana

The Indiana Court of Appeals recently weighed in on an issue that could prove troublesome for Indiana employers.  In March, the Court addressed the issue of whether an injured employee was entitled to temporary total disability (“TTD”) benefits after being terminated for misconduct on the job.  Both the Indiana Worker’s Compensation Board and the Court of Appeals said “yes.”

In Masterbrand Cabinets v. Douglas Waid, the employee suffered a compensable injury to his back when he slipped and fell at work on June 6, 2014.  The employee sought medical care two weeks after the fall when his condition had not improved.  The treating physician released him to return to work full duty and the employee returned to work the following day.  After completing his first shift, the employee missed work because he could not get out of bed.  When he returned a day later, the employee engaged in a verbal altercation and cursed his supervisor.  He also threw an ice pack that nearly struck another employee.  The injured employee was later terminated from his employment.

Although the employee received medical benefits, the employer denied TTD benefits because the employee’s termination was related to his own misconduct.  In part, the employer relied on Indiana Code 22-3-3-7(c), which provides that TTD benefits can be terminated when “the employee is unable or unavailable to work for reasons unrelated to the compensable injury.”  The employer argued that his own conduct, not the work injury, rendered him unable or unavailable for work.

The parties proceeded to hearing on the TTD issue before the Single Hearing Member.  The Judge agreed that the employee’s conduct fell well below the expected standards of conduct in the workplace.  Nonetheless, the Judge opined that the relevant inquiry was whether the employee’s inability to work was related to his injury.  The Judge found that the employee was unable to perform work of the same kind or character due to the work injury.  Accordingly, the Judge awarded TTD benefits.  The Full Board agreed and noted in its decision that the employee had a very limited capacity to work and was limited to performing work of a sedentary nature.

Despite the employer’s arguments to the contrary, the Court of Appeals opined that the relevant inquiry was not the reason for the employee’s termination, but rather “whether his inability to work, even for other employers, was related to his injury.”  To that end, the Court agreed with the Board’s determination that the employee’s inability to work was related to his work-injury.

In its analysis, the Court of Appeals found that I.C. 22-3-3-7(c) did not apply because it pertained to termination of TTD benefits whereas this appeal concerned the issue of entitlement to TTD benefits.  The Court added that the legislature had proven capable of limiting or barring an employee’s claims to worker’s compensation benefits and had done so in other circumstances.  Thus, if the legislature wanted to limit or bar an employee’s entitlement to TTD benefits following a termination from employment, then the legislature could have done so.  In the absence of any such provisions, the Court essentially disregarded the employer’s argument that this section of the Act justified its denial of TTD benefits.

While the Masterbrand Cabinets v. Waid case may make it difficult for Indiana employers to deny TTD benefits for injured workers following termination of their employment, each situation warrants a thorough, fact-specific inquiry.  It is uncertain how narrowly subsequent Courts will construe this decision in the future.  Furthermore, this Court focused on the employee’s entitlement to TTD benefits, not termination of TTD benefits that had already begun.  In that regard, it is unclear if the Court would have reached a different conclusion if TTD benefits been initiated.  Likewise, it is unclear if the outcome would have differed had the employee been deemed capable of performing more than sedentary-type work at the time of his employment termination and subsequent hearings.

Given the complexity of this issue and the likelihood of further litigation, our firm will continue to provide updates on any developments in the law related to entitlement to or termination of TTD benefits as it relates to termination of employees.

Thanks to attorney Dane Kurth for this important case law update.  Dane covers both Illinois and Indiana for the firm.

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I&F’s Lauren Waninski admitted to practice before the United States Supreme Court

Inman & Fitzgibbons Associate Attorney Lauren Waninski traveled to Washington, D.C. where she had the distinct honor of appearing before the United States Supreme Court. Lauren appeared on a Motion to Admit requesting that distinction to practice law in front of the highest Court in the nation.

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Lauren and Associate Justice Neil M. Gorsuch

Chief Justice of the United States, John G. Roberts, presided over the motion hearing. After Chief Justice Roberts heard the Motion to Admit and confirmed Lauren is in good standing to practice law in the State of Illinois, Lauren was admitted to practice law in front of the United State Supreme Court. After the swearing in ceremony, Lauren met Associate Justice Ruth Bader Ginsburg and Associate Justice Neil M. Gorsuch.

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Lauren shares the distinction of admittance to practice law at the United States Supreme Court with Associate Attorney Jill Baker and Partner Kevin Deuschle of Inman & Fitzgibbons.  Jill and Kevin served as Lauren’s sponsors to the Court.

Illinois WC Legislative Update – May, 2017

The Illinois Legislature has been busy with Workers’ Compensation related bills and we have been busy keeping our readers up to date. There are 3 bills that we have been following, and we want to take a few minutes to bring to our readers’ attention:

  • HB 2622 – Creates a non-profit, taxpayer funded mutual insurance company. The idea behind the bill is to create a new competitor with the hundreds of carriers providing coverage throughout the state of Illinois.
  • HB 2525 – A large rewrite of the Workers Compensation Act. The salient changes (not all inclusive) include:
    • Shoulder is paid out as an arm (reverses the Will County decision)
    • Hip is paid out as the leg
    • Codifies current case law of “in the course of employment” & “arising out of the employment” maintaining the “any” cause standard
    • Codifies Venture Newburg by establishing factors for determining traveling employee status and expands liability by also establishing a traveling employee through a reasonable & foreseeable standard
    • Allows AMA guideline submission for impairment rating for PPD benefit
    • Add new electronic billing penalty and new penalties for delay of authorization of medical care
  • HB 2703 – Eliminates the protections afforded by the Freedom of Information Act to self-insured groups. The proposed bill, if enacted, would remove the FOIA language that exempts self-insured groups from copying and inspection.

These bills are in varying levels of the legislative process. The first two bills passed along strict party lines in the House, but are still pending pursuant to a “Motion to Reconsider,” a parliamentary maneuver to allow more time for the sides to negotiate (or grandstand, be that as it may). The final bill has been introduced, gone through a second reading, but no final vote has occurred. Now as our savvy readers know (or those who grew up with School House Rock’s “I’m Just a Bill”), any piece of legislation must pass both the House and Senate before being signed into law by the Governor. As evident by the lack of a State budget for the past two years, getting approval by all three branches is no small feat. There is a long way to go before there is any semblance of workers’ compensation reform, but these 3 bills give a little insight into at least one parties’ thought process. Stay with us as we continue to provide updates on the Illinois Legislature and Workers’ Compensation reform.

Thanks to Legislative Watch Group member Frank Johnston for providing the above summary.  Frank practices out of I&F’s Champaign office.

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I&F and Illinois Chamber of Commerce present “The Life of a Workers’ Compensation Claim”

Inman & Fitzgibbons, Ltd. attorneys Allison P. Mecher and Lauren L. Waninski recently presented “The Life of a Workers’ Compensation Claim” to the Illinois Chamber of Commerce. In this presentation, they discussed the intricacies of handling a litigated workers’ compensation claim before the Illinois Workers’ Compensation Commission from start to finish, as well as what to expect when represented by defense counsel like Inman & Fitzgibbons, Ltd.
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If this presentation or any other topic in WC interests you, please contact us to discuss how we can meet your association or company’s needs.  We are available to provide either live presentations or webinars on legal issues in any of the states we cover – Illinois, Wisconsin, Iowa, Indiana, and Missouri.

IL WC Update: Taking the “Voluntary” out of Voluntary Recreation Programs

Pursuant to Section 11 of the Illinois Workers’ Compensation Act, accidental injuries incurred while participating in “voluntary recreation programs” do not arise out of and in the course of one’s employment.  Section 11 even provides some examples of voluntary recreation activities that might be subject to this exclusion such as participation in “athletic events, parties and picnics.”

Despite the exclusion related to voluntary recreation programs, a recent Court of Appeals decision raises concerns about an employer’s liability for injuries incurred by its employees during such recreational activities.  In Calumet School District #132 v.  IWCC, a middle school teacher was injured while participating in a student/teacher basketball game.  The Arbitrator found that the employee was not engaged in a voluntary recreation program and awarded benefits to the injured employee.

Although the Commission affirmed the arbitration decision, the Circuit Court reversed.  In doing so, the Circuit Court concluded that the employee’s participation in the basketball game constituted precisely the type of voluntary recreation activity contemplated in the exclusionary provisions of Section 11.

Thereafter, the Court of Appeals reinstated the Commission decision.  It appears that the court placed significant weight on the employee’s subjective beliefs about how his refusal to participate in the basketball game would impact his employment.  At trial, the employee testified that he only agreed to play because he felt pressured to do so after receiving repeated requests from his principal.  Also, the employee believed that if he declined to participate, it might reflect poorly in his impending performance review.

It should be noted that Section 11 of the Act states that the exclusion does not apply if the employee is “ordered or assigned” to participate.  In this case, aside from the employee’s subjective beliefs, there was no evidence that he was ordered or assigned to participate.  In fact, the employee testified that he was not ordered to participate.  Likewise, the employer presented testimony that participation was strictly voluntary and that teachers were neither punished nor incentivized for their participation.  While the trial testimony suggested that the employee was not ordered to play, the Court of Appeals did not see it this way.  Instead, the court acknowledged that this may have been a “recreational” activity, but the employee’s participation was not voluntary.

Based on this ruling, it appears that the Court of Appeals has taken a narrow view of what constitutes a “voluntary recreation program.”  Of specific concern is that the court relied heavily on the employee’s subjective beliefs and speculation about how his participation might impact his continued employment.  The unfortunate implication derived from this decision and rationale is that employers may need to proceed with caution when asking or encouraging employees to attend and participate in recreational programs or activities such as those described in the Act.  Otherwise, their employees might think, feel or believe (or testify) that their participation is more mandatory than voluntary.

Thanks to attorney Dane Kurth for the update on this issue.  Dane can be reached at the Champaign office of I&F.

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I&F Illinois Legislative Update

In addition to our regular duties defending employers and insurers across the Midwest, I&F maintains a dedicated Legislative Watch Group that stays up to date on all relevant legislative and administrative matters in the jurisdictions in which we practice.

Although we are still waiting for a state budget(!), Illinois legislators are managing to stay busy and pass a multitude of bills, some of which could affect our readers. On January 1, 2017, 192 new laws went into effect. Here is a brief rundown of some of the recent legislation related to Employers, Insurance and general business matters:

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Illinois State Capitol

HB 6162 creates the Employee Sick Leave Act allowing employees to use personal sick leave benefits for absences due to an illness, injury, or medical appointment of an employee’s direct family members.

HB 3554 directs the Department of Labor (DOL) to conduct a good faith search to find aggrieved employees harmed by unpaid wages so they may recover what they are owed. If the DOL cannot locate the aggrieved employee, then the Department can deposit the amount recovered into a specified DOL fund.

SB 3163 creates the Illinois Freedom to Work Act and provides that no employer shall enter into a covenant not to compete with any low-wage employee defined as a wage earner making the greater of the applicable minimum wage or $13 per hour.

SB 2813 amends the Coal Mining Act by modifying mine safety standards in Illinois to be more in line those of our surrounding states, in an effort to make Illinois more competitive with surrounding states.

HB 4633 requires all authorized insurers in Illinois to locate and pay beneficiaries’ proceeds under unclaimed life insurance policies, annuity contracts, and retained asset accounts issued in the State or remit such proceeds to the Treasurer’s Unclaimed Property Division.

It is also important to note that the Illinois Workers’ Compensation Commission recently adopted amendments to and new parts for its administrative rules. While too numerous to list here, the amended rules allow the IWCC to better serve its purpose in a more efficient, effective, fair and neutral manner. The administrative rules are the framework in which the Commission operates on a daily basis.

Thanks to Legislative Watch Group member Frank Johnston for providing the above summary.  Frank practices out of I&F’s Champaign office.

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Temporary Transitional Employment in Illinois

Transitional Temporary Employment plans or programs (TTE) are a tool used to address return to work issues. In these programs a third party vendor is typically used to locate temporary employment for the petitioner when their work restrictions cannot be accommodated by their employers. These programs come into play during two pivotal points in the handling of a case: (1) when the employee is first released to return to work with some restrictions but is still actively receiving treatment, and, (2) upon completing treatment, when the employee is released to return to work with permanent restrictions. In both instances, the employer cannot accommodate the employee’s restrictions.

There are two discrete separate issues here: the use of TTE before the petitioner is at MMI and still treating, and the use of a TTE program after the petitioner has reached MMI but given permanent restrictions.

It must be noted that the Illinois Workers’ Compensation Act does not explicitly authorize TTE. The petitioner is not required to accept a TTE position, nor can TTD benefits be reduced or terminated upon the petitioner declining a TTE position. The case law for those who are temporarily disabled is clear.  The petitioner is entitled to receive TTD where he is still receiving medical care, not working due to restrictions, and has not reached MMI.

Conversely, the Act also does not expressly forbid the use of TTE programs. TTE positions could potentially be used as part of a legitimate vocational rehabilitation program for those claimants that are placed on permanent work restrictions, with the key phrase being “legitimate vocational rehabilitation program.” Terminating maintenance benefits based upon the refusal of TTE position alone could lead to the imposition of penalties and attorneys’ fees.

The use of TTE programs is fairly new and developing part of the Illinois Workers’ Compensation law. The Act neither authorizes nor bar the use of TTE programs. However, the cases that have addressed it make one thing certain. Arbitrators have not treated TTE programs too kindly thus far. Perhaps, it is just a case of bad facts making bad law but the Commission has been clear that TTE is not part of the Act and the petitioner’s non-compliance with TTE cannot be used to terminate TTD benefits in the case of a petitioner who has not reached MMI. See Richard Lee, Petitioner, v. Fluid Management, Respondent,. 11 WC 48656 and 11 WC 48657.

With that said, it is possible to imagine a scenario where the TTE program is component of a comprehensive vocational rehabilitation program for those that have reached MMI with permanent restrictions as it provides the petitioner with transferable market skills, real job training, or could lead to a bona fide job offer. It is then no different than a vocational rehabilitation program in the sense that TTE can be another tool in limiting exposure. However, the devil is in the details. The Commission will not allow TTE programs to defeat permanent total disability exposure if it appears that the job offer is a sham. The Commission has found issue with TTE where the TTE program used sham companies (See Dan Perkins v. Turner Industries Group, 15 IWCC 0468) or the actions of the Respondent were so egregious, unreasonable, and vexatious, that the use of TTE program was of little consequence. See Eric Alvarez, Petitioner, v. Foodliner, Inc., Respondent, 15 IWCC 443.

  • Bottom Line:

The Commission has made it clear that TTE programs can be used prudently as a component of a legitimate vocational rehabilitation program in an effort to help a claimant return to work.

Thanks to attorney Frank Johnston for the summary of the current status of this developing issue.  Frank can be reached at the Champaign office of I&F.

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I&F Presents to Hotel Human Resources Association of Chicago

Inman & Fitzgibbons, Ltd. attorneys Steve Murdock and Allison Mecher recently presented to the Hotel Human Resources Association of Chicago on two topics related to Illinois Workers’ Compensation Law. They first presented on the topic of “Accident Investigation,” covering the basics of Illinois Workers’ Compensation Law, discussing best practices for accident investigation, and providing useful tips for the audience members to put into practice when conducting an accident investigation. The second topic was Workers’ Compensation Fraud, which covered the Illinois laws regarding fraud, what employers need to know, and what employers can do if fraud is suspected.

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If these presentations or any other topic in WC interests you, please contact us to discuss how we can meet your association or company’s needs.

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I&F Presents 2016 Illinois Workers’ Compensation Case Law Year in Review Webinar

On February 16, 2017, Jynnifer Bates and Mark Carter hosted a webinar entitled “2016 Illinois Workers’ Compensation Case Law Year in Review” through the Illinois Chamber of Commerce. From case law to legislation, as well as the overall direction of the practice, they reviewed the landscape of Illinois WC law.  The webinar included a discussion of procedural rulings involving credits for prior injuries.  They also evaluated decisions regarding independent contractors, impairment of earning capacity, the inclusion of overtime earnings in average weekly wage calculation. Last but not least, they addressed trends and court rulings in the hottest topic of all:  impairment ratings.  If this seminar or any other topic in WC interests you, please contact us to discuss how we can meet your business’s needs.

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Elimination of WC Review Board Sought by Governor Walker of Wisconsin

On February 8, 2017 Wisconsin Governor Scott Walker  submitted his 2017-2019 budget recommendations under Assembly Bill 64 and Senate Bill 30.  Therein, Governor Walker has proposed the elimination of the State’s Labor and Industry Review Commission (LIRC).

Under current law, administrative law judge workers’ compensation decisions can be appealed to the LIRC, which is a three-person review board whose members are appointed by the governor. The LIRC has the power to confirm, overturn, or remand the issues presented to it. Decisions of the LIRC can be appealed to the state’s circuit courts. The new law would provide for appeal and review of administrative law judge workers’ compensation rulings to the administrator of the Division of Hearings and Appeals (DHA), but does no go into further detail.  The overall goal of the  proposed legislation is to speed up the appellate process.

The Joint Finance Committee will hold public hearings on the proposal and ultimately prepare its own budget recommendation. Then both houses of the legislature will debate until there is a compromise version of the bill voted on by each house. The Governor gets the final review where he can make line-item vetos. The final review is to occur by July 1, 2017.

Please feel free contact us with any Wisconsin worker’s compensation questions. Thanks to Partner Scott McCain for bringing this news to our attention.  Scott works out of the Chicago and Milwaukee offices of Inman and Fitzgibbons.
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New Appointments to the Illinois Workers’ Compensation Commission

Governor Rauner has appointed Ms. Deborah Simpson and Ms. L. Elizabeth Coppoletti to the Illinois Workers’ Compensation Commission. Commissioner Simpson will be assuming the vacancy on Panel C but handling the case load formerly assigned to Commissioner White.  Commissioner Coppoletti will be assuming the vacancy on Panel B but handling the case load formerly assigned to Commissioner Basurto.

A CMS Policy for LMSA Reviews is Imminent

The Centers for Medicare & Medicaid Services (CMS) recently issued documentation signaling that Liability Medicare Set-Asides (LMSAs) and No-Fault Medicare Set-Asides (NFMSAs) will be notated fields in CMS’ Common Working File. Effective October 1, 2017, Medicare Administrative Contractors will begin denying payment for services associated with an open LMSA or NFMSA record. The CMS Manual Update can be found here.

This update follows closely to other recent indications in the past year from CMS that it was working toward creating a voluntary LMSA/NFMSA review process. On June 9, 2016, CMS issued an Alert that it was considering expanding its voluntary MSA review process to include the review of LMSAs and NFMSAs.

Please follow our blog for updates to this developing issue.

Update on Illinois Workers’ Compensation Reform

At Inman & Fitzgibbons, our Legislative Watch Group continues to monitor pending legislation in Springfield and, when the opportunity arises, we provide input through the Illinois Chamber’s Workers’ Compensation Committee on language contained within proposed legislation and input on what issues should or need not be addressed in the current efforts to continue reform of the Illinois Workers’ Compensation Act and the administrative process.  We most recently blogged about Senate Bill 12 (SB 0012), which is included in the “Grand Bargain” of twelve senate bills that must all pass or none shall pass.

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It may surprise many of you that there are actually 12 bills pending in the State House of Representatives and 14 bills (including SB 0012) pending in the State Senate that in one way or another, some to a greater degree than others, impact Illinois workers’ compensation.  All of these bills are currently assigned to committees or subcommittees, which in pending legislation terms means they are being discussed among a group of senators or representatives, with the discussion focused on the merits of the proposed legislation, the language in the bill, and the process for advancing or not advancing the legislation.  Many bills die in committee, but others may take new form and gain some support.  We should also note to you that several of the bills are somewhat duplicative, in that the proposed changes impact the some of the same elements of the Act or the administration of Illinois workers’ compensation cases, benefits and insurance.

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So without being overly cumbersome with all of the gritty details, here are some of the main points proposed in the various bills noted in parenthesis.  If you would like to read more on any one of these bills, you can go to the Illinois General Assembly website and do a search for the bill and click on “full text” or the synopsis to read more about them:

  • Creation of a state-run Illinois Employers Mutual Insurance Company, a state WC/OD insurance company, as an alternative to private WC/OD insurance (HB 2622)
  • Immediate creation of a “Workers’ Compensation Transparency Task Force” to collect and review information and data on the effects of the changes in workers’ compensation law to make as transparent as possible all information relating to the medical treatment, legal representation, and benefits paid to injured workers in this State (HB 0412)
  • Reduction in WC insurance ratings for employers implementing a state-certified safety training and return to work program (HB 2645, SB 1349, SB 1504)
  • Restriction on allowable prescription reimbursements to medical providers (HB 2892, SB 1660)
  • Elimination of Kotecki exclusive remedy protection for borrowing employers and prohibition of reimbursement to the loaning employer when the borrowing employer fails to cover the claim (HB 3075, SB 1571)
  • Repeal of the “rebuttable presumption” provision for firefighters, EMT’s and paramedics currently afforded under Section 6(f) of the Act (HB 3526)
  • Return of scheduled PPD values to pre-2006 amendment values along with reduction of minimum TTD and PPD rates, amputation maximums, burial and death benefits to pre-2006 values (HB 3526, HB 3653, HB 3764)
  • Strict PPD evaluation based solely on AMA ratings using most current edition of AMA guide (HB 3526)
  • Supplemental funding of the Injured Workers Benefit Fund from surpluses in the IWCC Operations Fund, the Rate Adjustment Fund, the Settlement Fund and/or the Second Injury Fund (HB 3566, SB 1315)
  • Entitle and require the IWCC Compliance Division to perform on-site job inspections to determine Section 4 compliance (SB 1237)
  • Legislatively define “accident arising out of and in the scope of” employment, particularly addressing idiopathic, personal and neutral risks and traveling employee definitions (HB 0411, SB 0862, SB 1309, SB 1358)
  • Reverse the holding in Will County Forest Preserve District confirming that a shoulder is part of the arm and that a hip is part of the leg for determining PPD values (SB 0862, SB 1309, SB 1358)
  • Create a stricter “major contributing cause” standard (HB 0411, SB 1358)
  • Set a maximum cumulative PPD compensation for the life of an employee at 500 weeks (SB 1358)
  • Reverse the rulings in Interstate Scaffolding and Matuszek by stating that employees on accommodated restrictions that are terminated for cause shall not be entitled to receive TTD (SB 1358)
  • Establish a method for calculating workers’ compensation and liability insurance premiums for the construction industry based upon work hours rather than payroll (SB 1454)
  • Statutorily confirm that a 14-delay in payment of benefits as rebuttable presumption of unreasonableness in determining whether penalties are warranted (SB 0862)
  • Set statutory cap on employees’ attorneys’ fees at 15%, rather than the current 20%, of 364 weeks of PTD benefits (SB 1863)
  • Clarifies some of the appeal deadlines for recalled decisions and extends the time for correcting clerical errors in IWCC Decisions (SB 0640)

It sounds like a lot, and it is.  But keep in mind that many of these are still in committee and drafting/re-drafting phase, and some have little hope of seeing the floor of either house.  (It took the Cubs 108 years to win a World Series – it will likely be at least that long to get a “major contributing cause” standard in Illinois.)  We will continue monitoring the legislation and provide updates as any of these advance.  Please continue to follow our blog or call to communicate with our office regarding any concerns you have with these pending bills.

WCRI Study Shows High Worker’s Compensation Medical Costs in Wisconsin

According to a recent study from the Worker’s Compensation Research Institute (WCRI) comparing the price of providing worker’s compensation treatment in 31 large American states,  Wisconsin stands apart as far as the cost of treating injured workers. The study revealed that Wisconsin’s treatment prices were the highest of all the 31 states. To be sure, the results reveal that Wisconsin insurers paid 138% more than the median prices for treatment in 2014 and 2015. Additionally, between 2008 and 2015, the cost of treatment rose by 30% in Wisconsin, transcending the price hikes in all other status. Obviously this is cause for concern to Wisconsin employers and insurers. The study can be accessed by going to the WCRI website at http://www.wcrinet.org/

Please feel free contact us with any Wisconsin worker’s compensation questions. Thanks to Partner Scott McCain for bringing this study to our attention.  Scott works out of the Chicago and Milwaukee offices of Inman and Fitzgibbons.
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