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by Brad Bleakney
New 2012 Arbitration Hearing Locations (effective 1/01/12)
- 1) Collinsville, Herrin, Mt. Vernon
- 2) Quincy, Springfield, Urbana
- 3) Bloomington, Kewanee, Peoria
- 4) Geneva, Joliet, Ottawa
- 5) Rockford, Waukegan, Woodstock
- 6) Wheaton (3 Chicago arbitrators will be assigned to appear in Wheaton)
The reduction of the current 23 downstate hearing locations to the 16 new locations will increase the efficiency of the Commission by reducing associated facility costs and attempt to evenly spread out pending caseloads between arbitrators for more efficient allocation of human resources.
Three arbitrators will now appear at each of the new hearing site locations in rotation by region as required by the new Illinois workers comp reform law and new cases will be randomly assigned among the 3 assigned arbitrators. A set of 3 arbitrators will circulate within the designated geographical zones with each arbitrator taking their turn at handling the monthly hearings and motions with a return to the 90-day continuance cycle.
Questions regarding the new hearing locations should be directed to Ms. Bertha Parker at email@example.com .
Illinois workers comp attorneys -- 9-05-11
IL Workers Comp Reform: Injures in Aggravated DUI will be denied
On August 8, 2011, Governor Quinn signed Senate Bill1147 into law to prevent workers convicted of serious crimes from claiming workers’ compensation benefits.
Senate Bill 1147 denies workers compensation benefits for injuries sustained during the commission of 1) a forcible felony, 2) an aggravated DUI or 3) a reckless homicide if those crimes resulted in death or severe injury to another person.
According to a Chicago Tribune article, the new law was inspired by the Illinois State Police trooper's high-speed wreck that killed 2 sisters in down state Collinsville. The state trooper was reportedly driving more than 100 mph and using his cell phone on I-64 in southern Illinois when his cruiser crossed the median and slammed into another car killing the 2 sisters. The public was outraged that the injured officer could apply for and perhaps receive workers compensation benefits resulting from his own outrageous conduct. The trooper subsequently resigned and his workers compensation case was denied but even the possibility of collecting benefits pushed the the law into place as part of the workers comp reforms.
Now, after a worker is even charged with a forcible felony, an aggravated DUI or reckless homicide resulting in injury, the injured employee is prohibited from collecting workers compensation benefits until their criminal case is finally concluded. The employer can terminate or refuse to pay benefits until the conclusion of any pending criminal case.
Illinois workers compensation attorney --8-22-11
Keep our Arbitrators and Return Injured Workers to Work
Keep our Arbitrators. It must be clearly stated that our arbitrators, the Courts and the Commission have not been the problem on driving up workers compensation costs in the recent past. I know that certain attorneys have blamed them. But in tracking these awards for over 25 years, the value of most of these disability awards has actually been falling. Part of that decline in the awards is the result of arthroscopic surgery and because our doctors are getting much better surgical outcomes which result in far less disability. Medical costs rose accordingly as more injured workers were considered surgical.
These arbitrators and Commissioners do not need to be replaced in wholesale fashion as the main culprit in increasing the costs of workers compensation claims. Medical inflation had been the real factor since 1995 in driving up claim costs but that was capped off in the 2005 reforms. Recently, Medicare Set Aside funding for Social Security applicants has had a huge impact on driving up the medical costs per claim in Illinois workers compensation cases over the past 8-10 years.
Employers, Medicare and the "Great Recession" should all step forward and take a big bow for their outstanding performance on the recent run up in Illinois workers compensation claim costs. Laying off workers with work related disabilities or medical restrictions in a recession costs big money. Whenever an employer refuses to take an injured employee back to work within the medical restrictions, the value of the claim jumps dramatically. That is an understatement. The claim costs jump by 500%, or maybe 1,000% or more. A lot of Illinois employers during this recession were their own worst enemy by not taking their own injured workers back to work.
My plea here is to keep the current experienced Arbitrators and have all our Illinois employers learn to stop habitually throwing away their injured workers. If a few arbitrators are knowingly replaced for good cause, then so be it. But keep the rest of the highly trained and experienced good ones and let Illinois employers kill off their most costly workers comp claims by taking injured workers back to work. ..... continue reading
Illinois Workers Compensation Attorneys -- 7-11-11
As I see it -- besides the 30 % reduction in the medical fee schedule for medical providers, the introduction of workers comp PPO plans is the biggest reform in decades and the biggest money saver for Illinois employers in the 2011 package.
All savvy employers will now sign up for PPO plans to get contract discount rates below the medical fee schedule rate and the injured worker loses out on 1 choice of doctor under the ILWC Act no matter what they do if the employer has a PPO plan.
The injured worker can select 2 choices of doctor inside the PPO plan but never 2 choices outside the PPO plan. Unless of course, there is no plan then the right to 2 doctors will still exist.
If the injured worker opts out of the employer's workers comp PPO plan it must be in writing.
let me quote the "Opt Out" section:
"8a(4)(B) " …the employee may choose in writing at any time to decline
the preferred provider program,.. which …would constitute one of the two choices
of medical providers to which the employee is entitled"
The Complete Guide to Medicare Secondary Payer Compliance,
by Jennifer C. Jordan, Editor-in-Chief (Published by LexisNexis®)
Brand new out from LexisNexis®, is a Complete MSP Guide Book for achieving MSP compliance in workers comp and liability claim reporting. This book is an insider's review by Jen Jordan, General Counsel at MEDVAL LLC, with highly respected industry contributing editors. It delivers clear MSP compliance advice, explanations on MSA submission procedures and recommendations for accurate MSA allocations with current MSP case law commentary.
MSP reimbursement case law has largely yet to develop given the recent changes to the wording of the Medicare Secondary Payer statutes but a few cases are now winding their way through the court system. This book presents excellent commentary on existing MSP case law and provides some expert insight, guidance and expectations for future MSP application in liability and workers comp claims by an inside industry MSA/MSP expert.
Finally, someone has delivered some clear, concise, understandable, timely resource material in this MSP claim reporting area, with definitive last minute answers for both lawyers and claims specialists alike for accurate details on MSP compliance. This book also explains the current MSA procedures for use with our Illinois workers comp MSA allocations and workers comp settlements with all of the necessary reference materials compiled in one place. This book is simply a "must read" for anyone responsible for MSP compliance.
I admit that I have been a follower of the MedVal Blog written by Jordan and Ryan Roth well prior to this publication. Years ago, Jen Jordan had candidly answered some pretty tough questions for me on structured settlement annuity payments and anticipated future Medicare coverage gap when the yearly future medical annuity payments were possibly exhausted.
I am not being paid for this endorsement or blog post and I would disclose that I did review early content for feedback and recieved a recent copy of the final book. I do presently participate on a Workers Comp Advisory Board for LexisNexis.
As everyone knows, CMS has been progressively changing the Liability and Workers Comp MSP claim reporting requirements that will soon take effect as of January 1, 2011. The recently Updated Workers Compensation and NGHP Mandatory Reporting User Guide Ver. 4.0 (10-7-13) is now 311 pages and presents some rather difficult and technical reading.
This new Guideline on MSP compliance couldn't be delivered any more timely or be more helpful in understanding MSP compliance.
Importantly, this new MSP guideline provides information on MSA submissions for workers comp settlements to present accurate MSA allocations and submissions. This book will help industry claims people and lawyers alike take control of their settlements by explaining how to:
• comply with MSP reporting requirements
• avoid pitfalls and delays under CMS’ policies and procedures
• identify which cases to actually submit for CMS review
• achieve better CMS approval rates and avoid inflated MSAs
• defend lower MSA allocations for future medical expenses
• understand the MSA evaluation process
• and determine when MSAs should be used in liability settlements
I want to congratulate both Jen Jordan and her editor, Robin Kobayashi, of LexisNexis for an outstanding job on delivering a clear and detailed presentation of the MSP requirements and MSA guideline information on what has been a constantly changing, ever morphing and still moving target.
The book is $179 dollars for the 2010 Edition. To order call 1-800-223-1940 or to order online, click here
Illinois Medical Fee Schedule updated FAQ and Guidelines 2010
Answers to many of the common medical questions were already posted on the Illinois Workers Compensation Commission web site found at “Frequently Asked Medical Questions”. Doctors, medical providers or medical bill payers with questions are encouraged to check that page first for answers.
These medical billing questions are often outside of the scope of the normal questions asked of Illinois workers compensation attorneys since they are usually on very specific detailed billing issues. For example, the correct billing modifiers for bilateral surgical procedures. Not your usual type of question for a Chicago workers comp attorney. While our attorneys may not know the answers off hand, we generally know where to look to find the answer. Another example of a recent odd question and answer; yes the MS-DRG hospital inpatient codes are now adopted in the Illinois Medical Fee Schedule for use for treatment on or after 6/30/09.
The above links are intended to help treating physicians, medical providers and workers compensation payers answer their questions but Glen Boyle truly deserves a round of applause for a job well done on all his efforts in implementing the Illinois workers compensation medical fee schedule, for holding the fee schedule seminars around the state to educate the public and for the issuance of the new FAQ's and Guidelines.
Medicare Mandatory Reporting : Revised Timelines and Revised Quick Reference Guide
Q: Why does Medicare supply a "Reference Guide" to mandatory claim reporting?
It is anticipated that yet even more changes will be forth coming but the outline of reporting requirements, data elements and reporting provisions have taken shape. More town hall tele conferences are scheduled for later this year up through October 19, 2011 to address more industry questions and reporting concerns.
Child Support Ordered Paid out of Illinois Workers Comp Settlement
Section 21 of the Illinois Workers Compensation Act (820 ILCS 305/21 (West 2008)) prohibits liens on Illinois workers compensation arbitration awards or settlements. This section specifically provides in pertinent part:
“No payment, claim, award or decision under this Act shall be assignable or subject to any lien, attachment or garnishment, or be held liable in any way for any lien, , penalty or damages."
Under the law, very few liens are allowed on Illinois workers compensation settlements or awards. There are exceptions of course for Public Aid liens and Medicare’s lien for past related payments but generally the purpose of prohibiting liens in Illinois workers compensation is to protect the injured worker from outstanding claims to ensure that the family has sufficient money to support themselves. However, at least one case finds that Illinois workers compensation settlements are not immune from claims for past due child support.
In a recent case of Illinois Dept. of Healthcare and Family Services v. Bartholomew (4th Dist. 12/8/09) an unmarried father was already under a wage garnishment against his paycheck for $428 / month for child support and $85 per month for back due child support. In a further administrative Order, he was prohibited from "dissipating" his workers compensation settlement of $175,000. The father agreed that the mother should receive 20% of the workers comp settlement money to pay for his current child support but he contested the lien of about $9,000 claimed in back due child support and interest.
This case confirms that the Withholding Act, 750 ILCS 28/15 paragraph (d), considers “income” to mean any source of periodic payment, including workers compensation payments or settlements. Further, Section 20 (c) (3) specifically allows for withholding of “income” for past due child support.
If the workers compensation settlement is for payment for the loss of a hand, foot, leg or other injury, that money may not be considered as “income” for other purposes since it is not "earned income" but really compensation for the loss or partial loss of the worker's body parts. But here, the Illinois General Assembly and our legislators have established that it is our public policy to withhold money from statutorily defined "income" to ensure that support judgments are enforced by all available means.
Illinois Supreme Court rules Employer owes TTD disability after a "firing for cause"
Illinois construction worker was working light duty following a
legitimate heat stroke injury and returned back to work on light duty
for quite some time when he was fired for writing religious graffiti on a
store room shelf. It came out that the firing occurred after an
argument over an overpayment in a light duty check which was a payroll
error. All temporary disability benefits were terminated following the
the worker had voluntarily reported the payroll error to the payroll
department, he was confronted in an argument about cashing and keeping
the overpayment. The worker called the police to the job site after the
argument to file charges of harassment and he was terminated shortly
original Arbitrator at trial denied temporary benefits after the
termination. The Commission reversed and awarded the disability benefits
focusing on the fact that the injury had not yet stabilized or reached
MMI. The worker was still temporarily disabled from his regular duty
job despite the employer's termination for cause.
The Appellate Court found that there
was no evidence that the employer terminated the worker merely to avoid
paying disability benefits, but rather that it was the worker's own
conduct in defacing company property that was the real cause for proper
discharge and that the employee would have continued to receive
his light duty benefits until medically stabilized but for his own
misconduct. Accordingly, a divided Appellate Court found temporary
benefits after the termination for cause were properly denied.
The Illinois Supreme Court reviewed the Illinois Workers Compensation Act and found
no statutory provision in the Workers Compensation Act to justify
denial, suspension, or termination of TTD benefits based upon an
employee's discharge by his employer for unrelated cause. Interstate Scaffolding v. Workers Compensation Commission. (1-22-2010, Docket # 107852)
According to the Supreme Court, where an employee has been fired for unrelated causes by his employer, the test
for deciding entitlement to ongoing TTD benefits remains whether the
employee has medically stabilized or whether the employee continues to
show that he is temporarily totally disabled from regular work.Since
the Commission found that this employee proved he remained temporarily
totally disabled from a work injury and he proved that he had not yet
reached maximum medical improvement, the Commission's award of
disability benefits was proper even after termination for cause.
Construction Independent Contractors and Workers May Be Employees
New laws apply to employers and contractors in the construction industry eff., January 1, 2008. Illinois Attorney General Lisa Madigan is now prosecuting non-compliant employers under the new law. All construction workers working for construction contractors after January 1, 2008 are presumed to be employees of the contractor by law unless they meet the specific exceptions listed in sub sections (b) and (c) as set out in Section 10 of the new Employee Classification Act. (820 ILCS 185/10) -- (printer friendly option available)
If employers/contractors miss-classify a worker as an independent contractor in violation of the new law, the Attorney General of Illinois can and will prosecute and the courts can and do assess fines, enter stop work orders or impose other remedies.
The Illinois Department of Labor will also notify other State agencies such as the Department of Employment Security (unemployment taxes), the Department of Revenue (income taxes for State & Fed) and the Illinois Workers’ Compensation Commission (workers comp insurance compliance penalties) who are all then required to review and check the contractor’s compliance with each of their respective laws. Contractors found in multiple violations of multiple agencies can be in a whole world of hurt.
Recently,Attorney General Lisa Madigan settled claims against 5 Chicago area construction firms that were accused of falsely classifying their employees as independent contractors in violation of the new law rather than as employees. The settling defendants are: Jerry Ryce Builders, Inc. and Jerry Ryce Masonry, Inc., 3801 South Archer Chicago, Ill.; and J S Masonary, Inc., JS Masonry & Tuckpointing, Inc., and JS Masonry & Stone, Inc., 9001 W. Deerwood, Palos Hills, Ill.
The 5 companies have agreed to pay more than $79,000 in fines. The settlement agreement forbids the companies from participating in public construction projects for the next 4 years.
“This agreement requires these five companies to legally recognize the hard-working men and women they employ by no longer denying them the benefits to which they are entitled,” said Madigan. “Illinois businesses, especially those involved in the construction trades, should be aware that this practice – which harms workers and puts honest employers at a competitive disadvantage – will not be tolerated.”
The Illinois Workers Compensation Commission will also take notice of the new law when looking at independent contractor defenses in workers compensation construction injury claims involving actual or claimed employees. There seems to be a an ongoing trend in the Illinois courts, the new law and at the Commission to find employment relationships in cases for injured workers in both the trucking industry and the construction industry. Could we be getting ready for the Olympics ??
To look at the actual tests under the new classification law see: Independent Contractor tests in Illinois Construction. The new law is aimed at ending sham classifications where the "independent contractor" really only provides services for one contractor, his employer, who controls all the work and who supplies most of the tools. Real independent contractors who provide professional services to many different companies will still be recognized but the sham classifications are getting much greater attention and enforcement so that injured construction workers will be more likely to be considered covered by workers compensation.
Construction site injury claims and the relationship or rights of the parties are often confusing. Often, a loaned/borrowed employment relationship may exist which may be governed by an additional subcontract or indemnification agreement or by loaning employer agreements for primary liability for workers compensation claims or by other contractual hold harmless and indemnification language or by joint venture agreements in construction contracts and subcontracts. Parties are encouraged to seek out the appropriate legal advice.
Chicago Workers Compensation Attorney-- 9-05-09
Illinois Workers Compensation Medical 2 Doctor Rule
Illinois workers compensation allows an injured worker a choice of chosing 2 doctors for treatment. Hospital emergency care does not count as a 1st choice but after that, when you start medical treatment with any physician, it is going to be considered as using the 1st of your 2 choices for a doctor.
An initial doctor can refer you to as many specialists or therapists as are necessary to evaluate and treat your injuries. But, if you have a disagreement with your 1st doctor or you feel that not enough is being done to treat your injury, then, Section 8(a) of the Illinois Workers Compensation Act allows for a 2nd independent choice of doctor at the employer's expense. A 3rd choice of doctor will not be allowed. An injured worker may see a 3rd doctor but, those bills will not be paid at the employer's expense under Illinois workers compensation to prevent doctor shopping.
All injured workers should be aware of the "two doctor rule" or they may find themselves paying out of pocket for medical expense bills that really should have been covered under Illinois workers compensation. And note, an Illinois workers' compensation attorney will not be able to force payment of those medical bills from the 3rd doctor because by law, an employer is not responsible for bills from a 3rd choice of physician.
A recent court case also reinforces the "two doctor rule" where an injured worker received free accupuncture from a friend of his wife during the course of his medical treatment, it did not count as a "choice of a physician" under the 2 doctor rule and his bills were awarded. See the Appellate Court's most recent decision on the 2 doctor rule at Comfort Masters (May 2008).
For further questions concerning medical rights or Illinois workers compensation benefits contact a qualified Illinois Workers Compensation attorney for answers and assistance. Our Chicago workers compensation attorneys have handled thousands of work injury claims over the past 20 years with a fairly high 98% overall success rate. Call (312) 541-0049.
Annual Report 2008 Ilinois Workers Compensation Commission
On June 30, 2009, the Commission released its Annual Report of Operations for FY2008. Highlights indicate that total claims of 57,515 were up slightly at 1.5% over previous year totals of 56,685 including both filed claims and pro se settlements. Total claims were down approximately 8% from FY2004.
The Commission operates the state court system for workers' compensation cases. In Fiscal Year 2008, the Commission's operating expenditures were $18.6 million. The Commission's end of year headcount was 162 employees, plus the chairman, nine commissioners, and six Self-Insurance employees who are counted separately, for a total of 178 people. Illinois provides 33 Arbitrators statewide for arbitration hearings, settlement approvals and pretrials in approximately 30 hearing locations throughout the state.
The Insurance Compliance unit collected $1.8 million in fines in FY2008 from 66 uninsured employers with 900 workers that were found to be operating without workers’ compensation insurance. If the Commission finds an employer knowingly and willfully failed to obtain insurance coverage, they can be fined up to $500 for every day of noncompliance, with a minimum fine of $10,000. Corporate officers may be held personally liable if the company fails to pay the fine. Under new compliance laws which took effect July 20, 2005, an employer may also face criminal charges and/or a work-stop order for failing to obtain workers' compensation insurance coverage.
Each year roughly 250,000 work accidents occur in Illinois but only claims involving 3 days or more lost time from work are reportable to the Commission. Approximately 80,000 injuries are reported by employers each year involving 3 days or more lost time. Out of all reportable injuries, approximately 60,000 formal new claims are filed each year by either a formal Application for Benefits or as an original settlement.
In an original settlement, the worker generally does not have an attorney 95% of the time and settles direct with the employer or the insurance carrier. In the year 2008, the annual report reflects original or “pro se" settlements were filed in 9,322 cases representing 16% of all claims. Overall, an injured worker hired an attorney 84% of the time with a formal filed Application for Benefits.
Not surprisingly, Chicago and the collar counties with hub cities within an hour or so from Chicago account for approximately 60% of all Illinois work injury claims. Also not surprisingly, back and neck claims accounted for the largest sector of reported injuries totaling 20% of all injuries in 2008.
Thanks to the addition of a third panel of Commissioners deciding cases at the Review level, the formal written decisions from the Commission in 2008 on appeal from an Arbitration Decision increased by 13% from 2007. A total of 1,195 formal Review Decisions were entered in FY2008 representing 2% of all claim closures. Dismissals accounted for an alarming 9% of cases disposed of while settlements represented 86% of all case closures.
Interestingly, when an injured worker filed an appeal to the Review level before the Commissioners, benefits were increased only 15% of the time. In appeals by the worker benefits were actually reversed or decreased in 13% of the cases. The great majority of appeals by the worker resulted in no change of the Arbitration Decision in approximately 72% of decisions in appeals filed by the employee.
In employer appeals to the Review stage, benefits were affirmed almost 66% of the time. However, the employer was successful in obtaining a reduction or a decrease in benefits from the Arbitration Decision in 21% of the appeals filed by an employer. Outright reversals were obtained in only 6% of the Review Decisions and benefits were actually increased in the Review Decision in 6% of the decisions appealed from.
The average time that it takes a case from filing an Application for Benefits through the final formal Decision on Review is approximately 4.2 years. That number is deceptively high because in most cases the attorneys and arbitrators are forced to wait until medical care has concluded before an assessment of the permanent nature of the injury can be made or while waiting on final medical restrictions and return to work status.
The actual appeal times on Review decreased during 2008 to 16 months or 1.33 years from the date of the Arbitration Decision. This represents a significant improvement in delay times on Review. In 19(b) Emergency Petitions for Benefits, the wait time for a Review Decision was slightly under one year at 11 months.
Most litigated cases at the Illinois Commission are settled by and between the attorneys. While total claims disposed of in 2008 totaled 59,533 between settlements, decisions and dismissals, actual formal Arbitration Decisions were issued in only 3,594 cases representing a ratio of 6% of dispositions.
In comparison, the average time it takes for settlement from date of application for benefits until the date of settlement approval was 1.9 years.
The take away message for most may be that the Commission works best to resolve contested cases by dispute resolution and compromise settlements. In most cases, parties are best served by representation with an experienced Illinois workers compensation attorney to arrive at an early settlement rather than facing uncertainties and delays of trial and appeal.
It should also be noted that the Arbitrators in Illinois perform a crucial key function in supplying sound pretrial recommendations to assist the attorneys in resolving disputed issues and areas of disagreement in contested cases.
Formal Decisions of the Arbitrator were appealed in only 48% of the cases that went to trial so the informal pretrial recommendations by the Arbitrator weigh very strongly with the parties. After all, it's not nice to ignore the pretrial recommendations of the person most crucial to deciding the disputed issues of the case.
Medicare changed its inpatient codes from the DRG (Diagnosis Related Group) to the MS-DRG (Medical Severity-Diagnosis Related Group) to account for degrees of severity in medical treatment and the Illinois Workers Compensation Commission has now followed suit with modifications to adopt to the changes. This will only affect workers compensation treatment for hospital inpatient services.
To allow transition time for the industry to adopt the new payment protocols, the Workers’ Compensation Medical Fee Advisory Board and the Commission have asked providers and payers to follow a July 31, 2009 effective date.
For all prior dates of treatment, the inpatient fee schedule uses the older DRG codes. Providers and payers should work to translate these bills using the CMS crosswalk, Grouper Version 24.0.
No separate right currently exists for medical providers to assert a claim for payment of related medical bills at the Illinois Workers Compensation Commission. However, the law does provide for interest payments and penalties on non payment of injury related medical invoices.
To enforce payment of medical bills for workers compensation, providers will require the assistance of an Illinois workers compensation attorney to file an application on behalf of the patient. For more information or assistance, contact our office.
In an unusual claim for benefits, an employee fractured his hip when he hip checked a vending machine to help a female coworker get a bag of potato chips. The vending machine hip check case even received some national attention. The worker hit the vending machine hard enough with his shoulder that he suffered a displaced fracture of his right hip and required immediate surgery. (the worker did have a pre existing bone cyst that would predispose him to a hip fracture but he was able to play high school baseball)
Over the objections of his employer, compensation was awarded for both disability and medical benefits. Hip checking the vending machine was not part of his regular job duties but the Commission allowed the compensation under the “personal comfort” doctrine. To most people this might seem a bit unusual but, the law provides that personal acts like going to the bathroom or going to the break room are generally considered to be “in the course of" regular employment and are considered a normal part of expected "personal comfort" necessary for regular employment.
The Appellate Court in Circuit City v. Illinois Workers Compensation Commission (2nd Dist, modified 7/09/09)viewed the hip checking case as a “ Good Samaritan” case, in that he was coming to the aid of a female coworker. The worker testified it was more like bumping the machine with his shoulder than an actual hip check. The Court agreed that in this instance the Commission could find that it was compensable so long as the actions were reasonably foreseeable.
Past “Good Samaritan” cases have awarded compensation for a traveling employee killed while helping a stranded motorist while driving on a service call (Ace Pest Control, 1965) and in the case of a Chicago harbor master who jumped in to save someone from drowning in Lake Michigan (Metropolitan Water Dist., 1995). The test for compensation depends on whether the actions are both foreseeable and reasonable.
Larson’s Workers’ Compensation Law, § 21.01 points out that acts of “personal comfort” can be considered to be part of regular employment but they also note that the acts cannot be unusual or unreasonable.
In our view, hip checking the vending machine could just as easily have been denied by the Illinois Workers Compensation Commission as an "unreasonable" act. In fact, the claim probably would have been denied if the injured worker was trying to retrieve his own bag of potato chips rather than in assisting his female coworker. The "Chivalrous Act" of helping the female coworker brought his actions in line with prior awards in other "Good Samaritan" cases.
Employers may soon see a spike in future drug costs for settlements going through the MSA approval process after June 1, 2009. Medicare will begin independent pricing of future drug costs in Workers Compensation Medicare Set Aside proposals as of June 1, 2009 using Average Wholesale Price (AWP) for drugs based on prescription prices listed in the RED BOOK (r) Drug References.
CMS will no longer recognize other pricing methods using workers compensation contractual discounts for prescription drugs in Medicare Set Aside proposals. What does this mean?? Carriers and employers will be required to fund future drug costs based on the average wholesale price of drugs in use before any contractual discounts, before any WC state fee schedule discounts or before any future shift from brand names to generics. MSA submissions can no longer take advantage of pricing in the "Doughnut hole" into MSA proposals by excluding funds for Medicare Part D prescription deductibles.
The new pricing will assume a lifetime supply of drugs in use at the time of the MSA proposal. CMS will also look to the past 2 years of drugs in use and to the expectations for future drug use based on the treating doctor's recommendations.
This recent change adopting uniform pricing is designed to eliminate some of the past abuses in under pricing MSA drug proposals such as "Doughnut hole" pricing and utilization review assumptions of tapering use of narcotics which were not supported by the treating physician's records.
The upshot for most employers is that future drug allowances in a MSA proposals may cost more than if those medical rights had remained open under workers compensation. Carriers may be better off leaving the prescription drug rights open under a settlement and paying for the future drugs using a qualified assignment and purchasing an annuity. That option would allow the carrier or employer to continue to use discounted pricing or use applicable state fee schedules and also let an employer be the residual beneficiary on the annuity policy (should the worker die early) and stand to receive a return of some portion of the money rather than fully funding lifetime drugs at average wholesale prices to satisfy Medicare MSA pricing requirements.
compared the increase in costs from their normal prescription pricing
methods to the new average wholesale pricing (AWP) and came up with an
astonishing $1.4MM difference on the first 17 cases reviewed. If that
jump in pricing is reflective of expected average MSA cost increases
under the new AWP pricing requirements, it would truly be a bitter pill
to swallow for most employers and most workers comp carriers.
Smoking alert. In a recent case, a smoker was denied disability benefits and denied a new surgery by his employer because he could not quit smoking following his low back surgery. While the current social and political consensus is that all tobacco smoking is evil, bad and harmful, Illinois has not yet elevated smoking to the level of a criminal activity sufficient to deny workers' compensation benefits.
In Global Products (1st Dist. June 9,2009) the IME defense doctor blamed a failed back fusion on smoking. Based upon the IME opinion, the employer denied disability benefits and denied a proposed 3rd lumbar surgery. The arbitrator and the Illinois Workers Compensation Commission disagreed and awarded a full 6 years of temporary disability benefits, a third lumbar fusion surgery and awarded penalties and attorneys fees for the unreasonable denial of benefits.
Smoking or obesity are not yet in and of themselves a legitimate reason for an employer to deny surgery or to deny disability benefits in Illinois. That did not stop the employer in Global from arguing that smoking was a form of "injurious practices" under Section 19(d) of the Illinois Workers Compensation Act. The employer argued that continued smoking was a deliberate and intentional act undertaken to retard the medical recovery and therefore, the employer should not be responsible for associated expenses or prolonged disability benefits.
It is clear that the doctors agreed there is an increased risk of fusion failure in smokers. Smokers are well advised to quit smoking to increase their healing, decrease their recovery time and increase their chances for a successful back fusion. It is also clear that the doctors advised the injured worker to quit smoking. The law is clear that "If any employee shall persist in insanitary or injurious practices which tend to either imperil or retard his recovery or shall refuse to submit to such medical... treatment as is reasonably essential to promote his recovery, the Commission may, in its discretion, reduce or suspend the compensation." 820 ILCS 305/19(d)
The court found no evidence to indicate that the worker had deliberately attempted to impair or prolong his recovery. In fact, the injured worker made an unsuccessful attempt to quit smoking. The Court held that the failure to quit smoking did not constitute a willful, intentional and deliberate interference with medical recovery. Anyone who has ever tried to quit smoking knows that it is not an easy proposition.
Our Appellate Court held that the employer could however "reasonably rely" upon the IME opinion in denying benefits so, they denied and reversed the award of penalties and attorneys fees.
The "smoker defense" was reasonable enough to avoid an award of penalties and attorneys fees. In effect, is the court creating a new defense or are they merely emphasizing that reliance on an IME opinion will avoid penalties??
Will obesity or diabetes be the next "reasonable defense" sufficient to deny benefits as conditions within the worker's control that can impair and prolong recovery as long an IME doctor blames these two known risk factors for a delay in recovery?? Probably not.
See: Larson's Workers' Compensation Law § 10.10 Refusal of Reasonable Treatment: where it is noted that an unreasonable refusal to follow medical instructions will usually lead to a loss of disability benefits attributable to the refusal. But, when the prescribed treatment involves things like weight loss reduction .... the courts ... are reluctant to stigmatize all-too-human failures as a ''wilful refusal.'' Here, as in the case of (refusing surgery), the test of reasonableness of the refusal applies.
Although the employer in Global relied upon an IME medical opinion to deny benefits, and although an employer's reliance on a medical opinion will generally avoid penalties, here, that medical opinion did not support an existing defense to payment of compensation under Illinois law. I would tend to agree with the dissent that denying disability benefits without an existing legal basis is unreasonable and it should generally lead to an award of penalties.
To review workers compensation benefits and existing defenses to payment of compensation, contact our Chicago workers compensation attorneys.
National Study of Illinois Workers Compensation Proposed
Proposed Bill, H.R. 635, the “National Commission on State Workers’ Compensation Laws Act of 2009” (Jan. 22,2009) would create a federal commission to study the state-based workers’ compensation insurance systems and make recommendations for improvements. Under the proposal, the Commission would have the authority to hold hearings, issue subpoenas, take testimony, and receive evidence. It would be required to make recommendations for improvements within 18 months. You can expect the study to recommend greater adoption of nationalized standards.
Any nationalized system of medical payments would be expected to be modeled after Medicare and severely reduce medical payments to our doctors and hospitals for workers compensation injuries.
Medicare Set Aside Approval Proposed Changes
Reform legislation has been introduced to streamline the Medicare Set Aside review process. Representative John Tanner (Tennessee) re-introduced legislation H.R. 2641 on May 21, 2009, to amend section 1862 of the Social Security Act. The bill proposes to establish an exemption for low dollar settlements and an exemption where there is no expectation of future medical care related to the injury.
The bill establishes (1) a safe harbor for low value settlements of $25,000 or less, (2) an exemption where there is no expectation of future medical care and (3) an exemption where the injured worker is unlikely to become eligible for Medicare within 30 months after the date of the settlement.
Importantly, the proposed bill provides a definition of "compromise" settlements which are now already exempt from the need for Medicare set aside arrangements under the federal regulations but currently the word "compromise" is not adequately defined to provide a real exemption. Under the new bill, "compromise settlements" would mean a settlement where the workers' compensation claim is denied or contested, in whole or in part, and the settlement does not provide for full payment of benefits.
Where a set aside agreement is required, the bill mandates that set-aside account dollar amounts use the state workers' compensation fee schedule amounts in effect as of the date of the settlement.
Importantly, under the proposed bill, Medicare would allow for a reduction of the Set Aside Account by the costs and expenses incurred in establishing, administering, or securing approval. That includes attorneys fees, third-party vendors, and any appointed trust account administrators. The current system does not allow for reduction of Medicare set aside accounts by costs incurred for attorneys fees or costs for approval and administration.
In an effort to achieve fair and equitable assessment for future medical expense accounts, the bill proposes a proportional % reduction for "compromise" settlement agreements. In general the proposal allows the parties to reduce the set aside amount in compromise settlements in direct proportion as the settlement bears to the full value if there were no disputes involved. The percentage reduction for set aside accounts would be equal to the % denied or contested of the total settlement as compared to full value.
This section will cover all those settlement agreements that are partially disputed and represent a reduced workers compensation settlement based on the disputes in the case. This proposal actually attempts to correct the current process whereby parties are forced to pay and fund full value future medical expense amounts even though the benefits in the claim are disputed and even though the injured worker may receive half or less of full value because of the disputes in the case.
Time wise, the bill proposes a 60 day period for the government to approve or disapprove the set aside proposal. Under the current system, final completion of MSA review and approval can take as long as 6 months to a year and a half after reaching a settlement agreement in the workers compensation claim. Meanwhile, the injured worker continues to incur medical bills for medical care and prescription expense but they do not have access to the Medicare set aside funds. While the insurance carrier is waiting for CMS approval, most carriers will not pay any of the ongoing medical bills waiting to see if Medicare approves the settlement.
The proposal is also designed to set certain standards for the review process by CMS contractors and it attempts to set standards for payment amounts in Medicare set aside accounts. The current status as of this writing, HR 2641 has been referred to the House Committee on Ways and Means and to the Committee on Energy and Commerce.
Is that possible, to receive more than lifetime total disability benefits in Illinois from a single accident? Answer: Yes -- it is possible, but it won’t happen very often.
In Beelman Trucking, an injured worker received lifetime total disability benefits for the complete paralysis of both legs and he also received an award for the amputation or loss of use of both arms.
In Beelman, the employer argued that a worker cannot be more than totally and permanently disabled. The employer argued that the Illinois Workers Compensation Act puts a cap on the benefits available at lifetime permanent total disability benefits. (A lifetime award would normally be at 2/3 of his regular pay for life) The employer argued that a worker cannot possibly be more than totally and permanently disabled in a single work accident.
14 years after a tragic truck accident, a truck driver, Jack Carson, was allowed by the Supreme Court to keep an award for the loss of both his arms as well as a lifetime pension for paralysis of both his legs.
There is no dispute that an injured worker in Illinois can receive lifetime disability benefits for the loss of 2 arms, 2 hands, 2 legs, 2 feet, 2 eyes or any combination thereof under Section 18(e)(18). The question was whether Carson could keep an award of 235 weeks for paralysis of his left arm and an extra 300 weeks compensation for amputation of his right arm on top of the lifetime benefits already awarded.
Illinois essentially recognizes 3 types of permanent and total disability pensions. Lifetime disability benefits are available for those (1) that are “obviously unemployable” because they are wholly and permanently incapable of work, or (2) for someone capable of limited work but they are so damaged to the point that there is no stable labor market anymore for a person of like age, training and physical limitations known as our “odd-lot” permanent total disability pension and (3) in the case of someone eligible by statute for disability pension for the amputation or loss of use of 2 arms, 2 hands, 2 legs, 2 feet, 2 eyes or any combination thereof known as a “statutory” permanent total disability.
It is contemplated that someone with a “statutory” total disability pension may eventually return to work earning some wages but the disability pension is awarded by law for the severe nature of the injuries.
Under the first two disability pensions, a worker cannot receive more money by adding up the % of each body part on top of the total disability pension. Under the third type of disability pension, the “statutory” total disability pensions involving amputations, it is possible to obtain additional awards for losses on top of the total disability pension.
As a good example, in Freeman United Coal (1984) 99 ILL.2d 487, a coal miner on a “statutory” total disability pension was allowed to receive an additional award for other injuries he received following a second work accident. The difference in Beelman now is that the Supreme Court recognizes an award for injuries on top of the “statutory” disability pension arising out of the same accident rather than requiring a new, second and separate accident at work.
Will an “economic layoff” be a solid defense against payment of temporary disability benefits where a carpenter worked for over 2 years following a shoulder injury ? The answer is no – that is, as long as the worker is still under medical care and is still “temporarily” disabled from his regular employment.
In Residential Carpentry (May 8, 2009 3rd Dist.) the Appellate Court affirmed an award of penalties for nonpayment of TTD following a layoff and for the unreasonable refusal of the employer to authorize payment of ½ of a proposed shoulder surgery.
Tibbitts was a union carpenter injured while lifting a 100 lb. staircase for installation in October of 2003. Following conservative care, his doctors recommended rotator cuff repair, decompression and possible clavicle resection. The employer obtained an IME exam by their doctor and agreed that the rotator cuff tear was related but not the degenerative arthritic spurs in his shoulder which necessitated the decompression and clavicle resection. So, the employer only authorized ½ of a shoulder surgery.
Since Tibbitts couldn’t get the other ½ of his shoulder surgery approved, he continued working. In June of 2004, Tibbitts reinjured the same shoulder again lifting stairs for installation. Tibbitts continued his work for the employer as a carpenter but under light duty restrictions for 17 months from June of 2004 until his layoff in December of 2005.
His employer ultimately “laid him off” and said they no longer had any work for him because they were “not busy”. Although Tibbits sought work with 15 or 20 other contractors following the layoff, he could not find work within his restrictions. The company denied his disability benefits because they argued he was out of work due to economic reasons rather than due to medical reasons.
Our Appellate Court held that despite his lengthy and continued light duty work, the Commission was not prevented from finding Tibbits temporarily disabled.
The mere fact that a worker is capable of some light duty work does not prevent an award of TTD. A worker is entitled to “temporary” disability benefits up until the time he is recovered to the maximum extent possible given his injury. That term is commonly called maximum medical improvement or MMI. Once an injury stabilizes to the maximum extent possible, an employee is no longer entitled to “temporary” disability.
Here, Tibbitts was still under the doctor’s care and still waiting for his surgery so the court confirmed the award of benefits with attorneys’ fees and penalties.
Typically, a good faith challenge to liability for benefits will not subject an employer to penalties under the Illinois Workers Compensation Act but, the employer bears the burden of showing that the denial of benefits was reasonable.
The law clearly provides that an aggravation of preexisting condition is compensable under the Act. Here, the court found it unreasonable to deny ½ the surgery where it was clearly contrary to how it would normally be treated. To try to have the doctors perform only ½ a surgery for a rotator cuff tear but not take care of the impingement or the degenerative arthritic spurring while they were in there was found to be not medically reasonable.
The Illinois Joint Committee on Administrative Rules (JCAR) approved changes to the Medical Fee Schedule to add maximum payment amounts for Hospital Outpatient and Ambulatory Surgery. The legislative committee adopted the proposed changes on January 13, 2009. The new Out-patient rates are effective February 1, 2009 according a formal Commission announcement.
In-patient charges and Physician reimbursement rates were already in place in the Medical Fee Schedule for all inpatient, trauma and doctor's professional fees for medical care effective February 1, 2006. The new inpatient and professional rates for 2009 have been posted to the medical fee schedule website. The new 2009 updated fee schedule rates increase 2008 rates by 5.37%, which reflect the annual cost of living adjustments in the Consumer Price Index (U) for all treatment rendered as of January 1, 2009. Where there is no fee schedule amount listed or available for a procedure, the default rate is 76% of the charged amount.
The new Outpatient and Ambulatory Surgery fee rates were 2 years in the making. Historical charges were analyzed from 2002 to 2004 broken down by the 3 number Geozip (1st three numbers of a zip code) , i.e., 606—for Chicago. Compromises on the rules and fee schedule were reached in long running deliberations between labor, industry and medical representatives of the Medical Fee Advisory Board. Illinois now has one of the most comprehensive workers' compensation medical fee schedules in the United States.
The new Outpatient Medical Fee Schedule sets forth the maximum limits for payment for of 1) ambulatory surgical centers 2) hospital outpatient surgery, radiology, pathology, laboratory, physical medicine and rehabilitation services and 3) new rates for free standing specialized rehabilitation hospitals. Payment rates are based on the medical procedure code, the date of service and the location (or zip code) where the medical care is rendered.
The maximum payment amounts under the fee schedule are set as 1) the lesser of the Fee Schedule amount or the actual amount charged or 2) a prevailing contractual rate amount governed by a "negotiated" medical provider contract. An existing contract will control over amounts set forth in the new fee schedule. Special rates for 65% of amount charged rules still apply for any add-on charges or pass through charges for hardware devices, instrumentation or medical devices.
In progress, Illinois will be converting to the new MS-DRGs for hospital inpatient scheduled to be adopted no later than June 30, 2009 applying new medical procedure severity codes.
Social Security disability and workers comp combined benefits will pay up to 80% of the former monthly income subject to a maximum monthly payment. The general rule is that the combined benefits between Social Security and Workers Compensation cannot exceed 80% of a person’s former monthly income.
Disabled workers can try to maximize the combination of workers compensation benefits and Social Security Disability payments. Workers facing permanent job loss due to injury or total disability should consult a Chicago workers comp attorney for advice as early as possible.
The workers’ compensation credit against Social Security benefit payments, or the “workers compensation offset” as it is known, is any amount over the 80% combined benefit maximum. Social Security disability benefits are reduced dollar for dollar if the total combined monthly benefits are over 80% of former “average earnings.” The 80% rule is designed to prevent people from making more money staying home on disability than they would have earned by working. Social Security takes a credit for workers compensation payments and sets a maximum cap on the combined benefits.
Social Security defines the former average earnings as a person’s highest monthly earnings either (1) from an average from the highest five years in a row after 1950 or (2) based on a single calendar year of the highest earnings.
This 80% of former monthly income rule effectively caps the maximum amount of benefits available from combining both WC and SSD benefits. Social Security disability benefits also have a maximum payment no matter how high the 80% former income figure may be. SSD does not attempt to make sure that an injured worker reaches a full 80% of former income for medium to high wage earners. The low maximum monthly SSD disability payments will usually result in a dramatic income loss for disabled wage earners if they are not otherwise compensated in workers compensation.
The SSD payments under the 80% combined benefits rule usually change to a different monthly payment amount after the WC case is settled. Workers must ask Social Security for a recalculation of their benefits after the WC case is settled. Workers must report all settlements to Social Security. The SSD monthly benefit can often increase after a settlement.
In practice, if the workers compensation settlement is spread out over the lifetime of the injured worker, it will generally result in a smaller workers' compensation offset and an increase in monthly Social Security disability benefits. The terms of a WC settlement are extremely important in order to maximize the combined monthly benefits.
Illinois law allows for a lump sum payment or settlement of the workers compensation case which can reduce the effects of the Social Security offset. The law allows for a proration or spread of the settlement amount out over the expected lifetime of the worker. Failure to use the proper settlement terms can result in a complete suspension or termination of SSD benefits up to the entire amount of the settlement.
Undocumented Illegal Alien Awarded Permanent Total Disability Benefits
Illinois recently joined a majority of states in formally recognizing an illegal alien’s right to receive workers compensation benefits. As noted by our Illinois Supreme Court as far back as 1916, the Illinois Workers Compensation Act includes “aliens” as covered employees. Chicago and much of our country were built by immigrants so its of little surprise that they would be covered as employees under our workers compensation statute.
The Illinois Workers Compensation Act specifically defines the term “Employee” to include “[e]very person in the service of another under any contract of hire... including aliens.” 820 ILCS 305/1(b)(2) (West 2002). The Act does not further define “aliens” to make any distinction between a legal registered alien and an illegal undocumented alien.
The Federal Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful for any employer to knowingly hire an illegal alien. Therefore, when dealing with a workers compensation claim, an injured illegal alien’s ability to return to work despite their illegal status or their likely future earnings after an injury appears to remain in the realm of vocational experts.
In the case of Economy Packing, an injured 60 year old, Mexican female, illegal alien, was employed at Economy Packing manually deboning chickens. Following a slip and fall shoulder injury and subsequent surgery, she was unable to return to regular work due to her permanent 10 lb. lifting restrictions and no work over the shoulder restrictions. She had very little education, she couldn’t drive, she had no special skills and she spoke only Spanish.
Her attorney claimed an entitlement to “odd lot” permanent total disability benefits for life, claiming that there was no stable job market available in Illinois for a person of like age, education, skills and physical restrictions irrespective of her illegal alien status. Vocational rehabilitation experts were called in to testify but they strongly disagreed as to whether the worker could or could not return to work in any stable job market, but for her illegal immigration status.
In Economy, the court concluded that all aliens, whether legal or illegal, engaged in the service of another, pursuant to a contract for hire, regardless of immigration status, are to be considered “employees” within the meaning of the Illinois Workers Compensation Act and that they are entitled to receive Illinois workers' compensation benefits. This is important because it appears to be the first official pronouncement.
The Illinois Workers Compensation Commission has previously held that illegal aliens are entitled to medical and vocational rehabilitation benefits necessary to return them to work in any country where they could be legally employed but, that illegal aliens are not entitled to vocational job placement assistance because of the illegality of mandating employers to assist in obtaining subsequent illegal employment. Tamayo v. American Excelsior (1999) 99 IIC 521.
In Economy, our Appellate Court found that an undocumented alien can be entitled to permanent and total disability benefits, if she can prove that she cannot engage in employment in any well-known branch of the labor market specifically due to her injuries, without regard to her undocumented status. The burden then shifts to the employer to prove that, “but for” the legal inability to obtain employment, suitable work would have been “regularly and continuously” available to a person of like age, skills, education and physical restrictions.
The questions regarding an employers’ obligation to continue payments of temporary disability benefits during a light duty release to return to work or the duty of an injured worker to search for work in the face of an obvious inability to legally return to work remain unanswered. The employer may or may not be required to continue temporary disability payments during a light duty release to return to work where they have light duty available while it appears that from now on wage differential cases or claims for permanent total disability will turn on expert testimony by vocational and labor market experts.
Carpenter Fired for Religious Graffiti Not Entitled to Disability Pay
An Illinois construction worker was working light duty following a legitimate work injury when he was fired for writing religious graffiti on a store room shelf. In a case of first impression, the Appellate Court considered the entitlement of a worker to temporary disability pay or temporary partial disability pay where he was working under light duty restrictions but then fired for an unrelated cause. Interstate Scaffolding v. Workers Compensation Commission (Oct. 20, 2008, 3rd Dist App.)
There the Arbitrator denied benefits after the termination. The Commission however, reversed and awarded benefits focusing in on the fact that the injury had not yet stabilized nor reached MMI, so they awarded the temporary disability benefits while the worker was still temporarily disabled from his regular job.
The Appellate Court looked to Professor Larson on Workers Compensation Law (see Larson's Worker's Compensation Law § 84.04D Physical Incapacity -- Employee's Misconduct, at 84-17 (2007). Under prior Illinois law, the right to ongoing disability after leaving light duty employment centered on whether the departure from the employment was voluntary on the workers part or involuntary due to disability.
In Interstate, the Illinois Appellate Court said that there was no evidence that the employer terminated the worker merely to avoid paying disability benefits, but rather that the worker's own volitional conduct in defacing company property was the real cause for proper discharge and that he would have continued to have received benefits until he medically stabilized but for his own conduct. Accordingly temporary benefits after termination were denied.
Contrast this decision with recent Illinois Commission decision in Wleklinski v Kelly Services (08 IWCC 254, March 2008) where a temporary worker at RR Donnelly suffered a wrist sprain accident on 11/14/06 with immediate notice and immediate medical care. The employer terminated the worker for leaving her machine early and failing to punch out the day of the accident. The employer refused to pay any temporary disability benefits claiming a valid termination and failed to provide any suitable light duty work.
The arbitrator awarded temporary disability benefits and a total of $7,616.07 in penalties and attorneys fees stating that merely severing the employment relationship was not sufficient to sever the employer's obligation to provide ongoing temporary total benefits for an undisputed accident.
In Sapp v Wal-Mart (06 IWCC 459 , May 2006) a 37 year old cashier had an uncontested low back injury lifting a fan into a shopping cart. She was subsequently terminated for absenteeism while on light duty. The arbitrator denied benefits after the termination but the Commission reversed and awarded temporary benefits. The Commission focused on the test for determining ongoing entitlement to disability benefits following the termination as whether the medical condition had reached Maximum Medical Improvement and not just whether the cashier was capable of working light duty. Accordingly, the Commission awarded temporary disability benefits following the termination.
As well, the Illinois Commission had previously decided Alicea v. Sysco (06 IWCC 596, July 2006), wherein a 42 year old working for Sysco Food Services injured his right shoulder in an undisputed accident and underwent surgery for a shoulder dislocation but the employer previously fired him for violation of a safety rule during the accident. The employer denied benefits entirely during a light duty release to return to work arguing that the violation of safety rule barred the right to temporary disability benefits altogether. The Arbitrator held and the Commission affirmed that the termination based upon the safety rule violation did not entirely remove the worker from the sphere of employment and did not bar entitlement to temporary disability benefits.
The factors for denying benefits following termination while on light duty restrictions would seem to turn on (1) whether the medical condition is currently still temporary in nature and not yet reaching MMI and (2) whether the termination was based on some voluntary act of the worker and (3) whether the work injury disability after termination then physically precludes the availability of suitable alternate employment. Consultation with an Illinois workers comp attorney is advised if you have a case involving light duty and a termination from employment while still under restrictions and under active medical care.
Illinois Workers Compensation Medical Fee Geozips
Critics decry the current WC Medical Fee Schedule as not recognizing enough real present medical cost savings but, if they look at historical rates of medical cost inflation, they would see the true value of the present WC Medical Fee Schedule is in capping the rate of medical inflation and not in the immediate slashing of medical fees.
The WC Medical Fee schedule certainly results in immediate cost savings in those cases where certain medical providers were charging excessive fee amounts beyond the norm but, you don’t hear a single word uttered from the same critics about those savings even being mentioned.
The highest billing medical professionals or hospitals for a given Geozip (a billing area looking at the 1st three numbers of the zip code), billing at the top or 100th percentile of their peers, based on their local historical charges and with the exact same medical billing codes, would be greatly reduced under the new Illinois Workers Compensation Medical Fee Schedule. Those top billing medical providers would be reduced down to 90% of the 80th percentile. Those savings must be occurring statewide and those savings must represent a significant ongoing immediate cost savings for Illinois employers trying to protect jobs here in Illinois.
Where are the reports of those savings? Two of our local orthopedic surgeons are presently studying the immediate effects and extent of those cost savings.
Utilization Review (see sec. 8.7) is the new tool for Illinois businesses specifically designed to achieve medical cost savings by eliminating unnecessary and unreasonable medical care and where the current 2005 reforms are really expected to obtain the most significant medical cost savings for insurers and management besides capping medical inflation. That is why insurers and management lobbied so hard for utilization review to begin with, in and amongst the many other negotiated exchanges in the agreed bill process.
Utilization Review is presently highly under utilized in Illinois workers comp insurance practices and therefore employers and insurers are not properly recognizing the medical cost savings that they were expecting and that were in fact built into the 2005 WC reforms.
The importance of retaining Geozips in Illinois for the Illinois Workers Compensation Fee Schedule is that it maintains historical medical charges for any given area and historical levels of access to medical care.
Critics have complained about the different reimbursement rates for different Chicago suburbs citing Evanston and Oak Park, but Oak Park is one of the nicer neighborhoods in the city of Chicago and the high property taxes and high property values reflect that difference. Those property taxes and the high property costs are built into the past historical medical charges.
The proposed alternative of having just 3 geographical pricing codes for the WC fee caps over an entire state leaves a lot of providers no choice but to move to where they can obtain higher reimbursement rates and thus would deprive the traditionally more rural areas or traditionally poorer urban areas of the state. The 3 code system would be ultimately discriminatory against the rural and poor areas, not by design or intent but discriminatory in applied effect.
Critics should look before they leap. Labor and management were extremely concerned about the future access to medical care issues at the time of the development of the 2005 Workers Comp reforms. The Geozip system answers those concerns and it avoids further depletion of medical care in poor urban and rural areas.
Any attempts to defraud the current system can be properly dealt with and addressed by the newly beefed up Illinois workers compensation fraud unit and prosecuted in a system where the fines can be quite expensive and quite extreme. A medical provider would be extremely foolhardy to attempt shifting medical care to a different geozip merely to obtain a marginally increased payment. Such a thinly veiled attempt at insurance fraud would likely face the workers compensation fraud unit prosecution.
It is illegal for anyone—a worker, employer, insurance carrier or medical provider to intentionally do any of the following:
• Make a false claim for any WC benefits;
• Make a false statement in order to obtain or deny benefits;
• Make a false statement in order to prevent someone from filing a legitimate claim;
• Make a false certificate of insurance as proof of insurance;
• Make a false statement in order to obtain WC insurance at less than the proper rate;
• Make a false statement in order to obtain approval to self-insure or reduce the security required to self-insure;
• Make a false statement to the state’s fraud and noncompliance investigation staff in the course of an investigation;
• Help someone commit any of the crimes listed above;
• Move, destroy, or conceal assets so as to avoid payment of a claim.
A “statement” includes any writing, notice, proof of injury, or any medical bill, record, report, or test result.
Anyone found guilty of any of these actions is guilty of a Class 4 felony, punishable by 1-3 years imprisonment and a $25,000 fine.
Illinois Workers Compensation Annual Report 2007
On October 2, 2008, the Commission released its Annual Report of Operations for 2007. Highlights indicate that total claims were again down from previous year totals with a total of 56,685 new cases filed including both filed claims and pro se settlements. Total claims were down approximately 13% from year 2003.
Each year roughly 250,000 work accidents occur in Illinois but only claims involving 3 days or more lost time from work are reportable to the Commission. Approximately 80,000 injuries are reported by employers each year involving 3 days or more lost time. Out of all reportable injuries, approximately 60,000 formal new claims are filed each year either by a formal Application for Benefits or as an original settlement.
In an original settlement, the worker generally does not have an attorney and settles direct with the employer or the insurance carrier. In the year 2007, the report reflects original “pro se" settlements were filed in 9,231 cases representing 16% of all claims. In the remainder of claims, injured worker's hired an attorney 83% of the time with a filed formal Application for Benefits.
Not surprisingly, Chicago and the collar counties with hub cities within an hour or so from Chicago account for approximately 57% of all Illinois work injury claims. Also not surprisingly, back and neck claims accounted for the largest sector of reported injuries totaling 20% of all injuries in 2007.
Thanks to the addition of a third panel of Commissioners deciding cases at the Review level, formal decisions from the Commission on review from an Arbitration Decision increased by 50%.
Interestingly, when an injured worker files an appeal to the Review level before the Commissioners, benefits were only increased 17% of the time. In appeals by the worker benefits were actually reversed or decreased in 12% of the cases. The great majority of appeals by the worker resulted in no change of the Arbitration Decision in approximately 71% of appeals.
In employer appeals to the Review stage, benefits were also affirmed 70% of the time. However, the employer was successful in obtaining a reduction or a decrease of the Arbitration Decision in 18% of appeals filed by the employer.
The average time that a case takes to proceed from filing an Application for Benefits through the final Decision on Review is approximately 4 1/2 years. That number is deceptively high because in most cases the attorneys and arbitrators are forced to wait until medical care has concluded before an assessment of the permanent nature of the injury, final restrictions or the return to work status can be assessed. The actual appeal time on Review during 2007 represented 19 months or approximately 1 1/2 years from the date of the arbitration of decision.
Most litigated cases at the Illinois Commission are settled by and between the attorneys. While total claims disposed of in 2007 totaled 60,681, between settlements, decisions and dismissals, the actual formal Arbitration Decisions were issued in only 3,644 cases representing a ratio of only 4 % of total dispositions.
The take away message for most might be that most parties are best served by representation with an experienced Illinois workers compensation attorney to arrive at an early compromise settlement rather than facing the delays of trial and appeal.
However, it should also be noted that arbitrators in Illinois perform a crucial key function in supplying sound pretrial recommendations to assist attorneys in resolving areas of disagreement and disputed issues. Formal decisions of the Arbitrator are appealed in less than 50% of all cases that go to trial so therefore the informal pretrial recommendations by the Arbitrator weigh strongly with the parties. After all, it's not nice to ignore the pretrial recommendations of the person most crucial to deciding the disputed issues of the case.
Chicago Workers Compensation Attorneys -- 10-19-08
Mandatory Overtime Included in Average Weekly Wage
The 18 year battle over including or excluding overtime in calculation of the average weekly wage continues to rage. All Illinois benefits are derived from the workers "average weekly wage" in the 52 weeks preceding the accident. Accordingly, weekly earnings or weekly wages have been hotly contested as an area of dispute. Average weekly wages are used to calculate both temporary disability benefits and permanent disability benefits. Section 10 of the Illinois Workers Compensation Act clearly and specifically excludes overtime earnings in calculation of average weekly wage.
However, since 1990, in Edward Hines Lumber, mandatory overtime hours have been included where they form the "regular hours" of employment. There the worker for Hines Lumber was regularly required to work mandatory 10 hour days for 6 days a week as a condition of his regular employment. Since the overtime hours were mandatory and they were required as part of the "regular employment", the regular earnings included the overtime hours included in the calculation of average weekly wages at the straight time rate of pay.
After the Hines case, the Illinois Commission continued to exclude overtime earnings if either not regularly worked or if not mandatory. The Commission's definition of "regularly worked" generally included overtime hours at straight time rate of pay if the worker "regularly worked" overtime in more than 50% of the 52 weeks preceding accident or where the overtime was mandatory. The Illinois Courts also consistently excluded overtime hours that were not mandatory as a condition of employment or which were not part of a set number of hours or regularly worked each week as part of the regular employment. see Edward Don(2003) and Freesen (2004).
Last year in Airborne Express (March 07), the Appellate Court held that voluntary overtime is excluded. The Appellate Court said that merely working voluntary overtime on a regular but voluntary basis, is definitely excluded in calculation of average weekly wage otherwise, the overtime exclusion in Section 10 of the Act would be completely meaningless. Some have argued that under Airborne the overtime must be excluded unless it is both mandatory and consistently regularly worked but that does not appear to comport with prior case law under Don and Freesen or prior Commission decisions.
Shortly after the Airborne decision, the Commission decided Terrell v Jacksonville (07 IWCC 1319, October 2007) where the Commission said that to include the overtime hours, the worker must show that the overtime was either regular and consistent or mandatory. In Terrell, a mental health technician was required to work overtime because the facility was short staffed and the employer did not deny the overtime was mandatory so, the Commission included the overtime. In Lockhart v Dominick's (08 IWCC 318, March 2008) a delivery driver testified that he was required to finish deliveries and some of his overtime hours were in fact mandatory but he failed to prove the exact amount of the mandatory overtime hours so the overtime hours were excluded. In Heffner v Little Lady (08 IWCC 510, May 2008) the Commission also denied the inclusion of overtime hours for a maintenance supervisor where the overtime hours were not shown to be mandatory or part of the regular hours of employment.
In a reading of the case law, it looks like the definition for exclusion of overtime hours under Section 10 is more easily defined than considering all the situations where overtime hours might or should be included in calculation of wages. The Court in Airborne clearly said that they have consistently held the Section 10 exclusion in calculation of wages excludes overtime hours where the worker is not required to work the overtime as a condition of employment (i.e. mandatory) or excludes overtime hours which are not part of a set number of hours consistently worked each week.
The nuance in terms in overtime wages is often misunderstood. Workers and employers should both be concerned with proper calculation of average weekly wage and they should both be encouraged to contact an experienced Chicago workers compensation attorney for consultation given that a fairly large amount of money can be involved in calculation of temporary disability benefits or permanent partial disability benefits. Especially large amounts of money can be involved in long term weekly payments of wage differential benefits and in claims for permanent and total disability, both of which can last for the full lifetime of the worker.
Chicago Workers Compensation Attorneys -- 9-21-08
Mandatory Insurer Reporting (MIR): Medicare Secondary Payer Protections
A new law known as Mandatory Insurer Reporting (MIR) eff. January 1, 2008, will require insurers to report coverage information or claim information for Medicare beneficiaries to CMS for the purposes of coordination of benefits.
Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (PL 110-173) amends the Medicare Secondary Payer (MSP) provisions of the Social Security Act (Section 1862(b) of the Social Security Act; 42 U.S.C. 1395y(b)) to provide for mandatory reporting of insurance coverage for group health plans, liability insurance (including self-insurance), no-fault insurance, and workers' compensation. The new law imposes a reporting duty on carriers to report the identity of Medicare beneficiaries and coverage information to CMS for all those that are covered by "primary" plans like health insurance, or active claims under workers compensation or auto liability plans.
On 8-1-08 CMS released a Statement Summary listing Medicare mandatory reporting "data elements" listing required reporting details and the reasons behind implementing the requirements. Carriers must now notify CMS if a known Medicare recipient has a claim or coverage. Fines for noncompliance are $1,000 /day.
Compliance dates: -- January 1, 2009 information reporting for group health plans -- July 1, 2009 reporting from liability insurance, no-fault insurance, and workers' compensation.
It is expected CMS will demand to be notified of all workers compensation settlements or all liability settlements for any Medicare beneficiaries so as to enforce the Secondary Payer Regulations, Medicare lien recovery rules and credits against future payments for injury related medical expense. Reporting requirements may also include (1) Nature of Injury, (2) Cause of Injury, (3) State of Venue, (4) ICD-9 primary diagnosis codes and (5) Specific Body Part involved. See the Statement Summary above for a detailed listing of data elements.
CMS created a central web page, Mandatory Medicare Insurance Reporting, for summary information regarding the updated carrier reporting requirements, updated memos and .pdf downloads.
Illinois Employee Classification Act: Construction Workers, Proposed Rule Changes
The Illinois Employee Classification Act provides that individuals performing services for construction contractors on or after January 1, 2008 are presumed to be employees of the contractor unless they meet the criteria specified in the Act. If a contractor has misclassified individuals as independent contractors, the Department may assess civil penalties and seek other remedies provided for in the Act.
See link for an overview of the Act’s definitions and prohibitions.
The Act addresses a known practice in the construction industry of contractors misclassifying individuals as independent contractors in order to avoid payroll taxes, unemployment insurance contributions, workers' compensation premiums and minimum wage and overtime payments.
For the purpose of ensuring that all Illinois contractors comply with Illinois tax and employment laws, the Illinois Department of Labor, the Illinois Department of Employment Security, the Illinois Department of Revenue and the Illinois Workers' Compensation Commission will be sharing any information on employers suspected of misclassification of employees as independent contractors.
The Department of Labor issued new proposed rule changes for the act 6/26/08 in response to recent public comments and recent departmental experience. Hearings on proposed rules will be heard before the Joint Committee on Administrative Rules.
Questions regarding proposed rule changes, contact Carmela Gonzalez at 312-793-1808.
Overfunding Workers Comp Medicare Set Aside Accounts: No Appeal Rights
The National Alliance for Medicare Set-Aside Professionals (NAMSAP) issued a recent letter 7/2/08 directed to CMS listing grievances in the CMS review approval process for Medicare Set-Aside Allocation (MSA) proposals. The very real concern for all parties is that these MSA approval decisions are final. There exists no appeal process from the final administrative decisions regarding MSA future medical funding. It has been stated that MSA proposal reconsideration submissions (the only current process available) have been met with resistance and/or were generally ignored.
For the sake of brevity, the short list of pressing concerns is paraphrased below:
1. INCLUDING NON- MEDICARE ITEMS OR TREATMENTS: Recent MSA approvals are routinely requiring funding for non-Medicare items or treatments which would not be covered by Medicare nor for which the workers compensation insurance carriers would be liable under the state workers' compensation laws.
2. APPLYING STANDARDIZED NATIONAL PRICING: CMS has applied their own standardized national pricing for some procedures, such as Spinal Cord Stimulators, without regard to actual price levels in the state of injury, locale of the injured worker or the relevant state Workers C Compensation Fee Schedule. The result is that the national pricing is either too high or too low in funding recommendations for the MSA.
3. UPCODING OF CPT CODES for some treatments that result in higher MSA funding costs. An example was given of upcoding historically accurate 99213 office visits to 99214 office visits. It is alleged that this upcoding occurs as well on MRI's (adding in with contrast codes, instead of standard without contrast code, and x-rays (changing historical 2-3 views to 4 views). By "upcoding", the WCRC is not pricing the MSA pursuant to the amount which Medicare or the insurer would have actually otherwise paid.
4. HIGHEST ONLINE PRICING FOR MEDICAL EQUIPMENT: not using the average price at which the equipment can be purchased and the high pricing is often contrary to the relevant state WC Fee schedules. In some cases CMS required full MSA funding for all of the following: a cane, a walker, a manual wheelchair, and an electric wheelchair even though Medicare would not actually cover or pay for all those items under their own coverage guidelines for an actual Medicare Beneficiary.
5. ACCEPTANCE OF IME REPORTS only when they recommend increases for medical treatment exceeding the recommendations of the treating physician. Conversely, CMS will not accept the IME opinion reports if they recommend less treatment than that recommended by the treating physician.
6. IDENTICAL CASES NOT GIVEN THE SAME MSA FUNDING APPROVAL: Although the irregularities listed are not claimed to occur in all cases, eliminating variances would help in preparing future MSA proposal estimates for ready approval.
7. IGNORING LIMITATIONS UNDER STATE WORKERS' COMPENSATION LAW: The obligations of the WC employer or insurer for payment of injury related medical expense is defined by that particular state’s workers' compensation law, but that liability or limitations of liability of the employer under their state’s law is routinely ignored by CMS when assessing MSA proposals effectively denying the employer or insurer due process and substantive rights.
A copy of the 7/02/08 letter by the NAMSAP Board of Directors is available at the following link: NAMSAP Letter
The hopes are that CMS will now address these consensus problems that have been increasing the overall cost of MSA approval amounts and ultimately, increasing the overall cost of Workers Compensation settlements.
In discussions with local MSA attorneys in Chicago, the unanimous complaint mentioned is the extended delay time in obtaining prior Medicare “conditional payment” amounts in order to finalize any reimbursement claims.
From our perspective, the concern remains that CMS/ MSA approval amounts do not correlate with or reflect the actual “compromise” value of the workers compensation settlement. While workers compensation claims often remain disputed in significant respects and settlement dollars usually represent real “compromise” figures pricing in the value of disputed issues, CMS continues to require 100% funding of MSA future medical accounts for anticipated treatment even where that medical treatment itself may remain disputed and/or even where the injured worker is only receiving 50% or less of the full value of the claim. The proportional disputed “compromise” values of disputed issues are not reflected in the MSA account approval amounts.
While workers compensation carriers should not be able to pawn off related future medical expense onto Medicare and the taxpayer, the employers and work comp insurance carriers should not be required to pay for more than their fair share of liability for open medical rights or expenses under the workers compensation claim any more than if that claim had remained open.
Illinois Workers Compensation Medical Fee Schedule: Outpatient Services
The Illinois Workers' Compensation Commission Medical Fee Schedule and the payment guidelines were adopted in 2005 for a statewide comprehensive Workers Compensation Medical Fee Schedule broken down by Illinois zip codes. The maximum allowable payment for a particular medical procedure, treatment or service covered under the Workers Compensation Act is now set in a schedule based on the historical charges for locations throughout the state from 2002 to 2004, cost adjusted for inflation. Historical charges were analyzed and broken down by the 3 number geozip or 1st three numbers of a zip code, i.e., 606—for Chicago. Generally, the reimbursement rates are set at 90% of the 80th percentile of actual historical charges provided for treatment in a specific area zip code. The Illinois medical fee schedule is one of the most comprehensive fee schedules for any state workers compensation program.
The medical fee schedule rules cover all medical care rendered on or after February 1, 2006. The medical fee schedule sets forth the caps or maximum limits for payment of medical invoices based on particular medical procedure code, the date of service and the location (or zip code) where the medical care is rendered.
The amounts payable to a medical provider under the fee schedule is set out as the lesser of the Fee Schedule amount, the actual billing charge or a controlling "negotiated rate" as established by negotiated provider contract with the medical provider. An established contract between the insurance carrier or employer will control over amounts set forth in the schedule.
Inpatient Hospital charges and Physician Professional charges are listed in specific amounts in the fee schedule. Special rules apply for add-on or pass through charges for hardware, instrumentation and medical devices.
The Commission is currently working on adopting a fee schedule for hospital outpatient charges and ambulatory surgical fee charges. The proposed Illinois fee schedule rules for hospital outpatient services and ambulatory surgery charges is available in draft at this link to the Commission website. Official Public Comment hearings are currently being held on the proposed new outpatient fee schedule in both Chicago and Springfield.
Work Comp Chicago, Chicago Illinois Workers Compensation Attorneys
Illinois attorneys in workers compensation and work injury litigation. Experienced trial attorneys practicing before the Commission since 1984. Practice primarily concentrated in Illinois workers compensation claims and work related injury litigation in construction, manufacturing and transportation work injury litigation.
Our Chicago workers compensation attorneys have advanced training and trial experience. Our attorneys maintain a significant competitive edge in Illinois work injury litigation. We offer representation and assistance in work injury litigation for Chicago and surrounding cities in Illinois including:
Chicago, Waukegan, Barrington, Lake Zurich, McHenry, Woodstock, Geneva, St. Charles, Wheaton, Downers Grove, Naperville, Aurora, Romeoville, Joliet, Bourbonnais and Kankakee.
Cook County, Lake County, McHenry County, Kane County, Will County and Kankakee County.
Illinois Trucking Company sues Ohio Employer ADT in 3rd Party claim Ladder accident
Palmer v. Freightliner (1st Dist., June 2008) Ohio employer, ADT was stuck with a 3rd party claim for contribution for negligence even though Ohio law prohibits 3rd party contribution actions in personal injury cases for claims against an employer where the employer provides workers compensation insurance coverage.
An Ohio security & alarm system installer, Palmer, employee for ADT was working on a 20 ft ladder leaning against a loading dock garage door at Freightliner’s Wood Dale, Illinois facility when a Freightliner employee opened the garage door. The ladder fell and Palmer crashed to the ground.
Illinois law allows an employer to be immune from direct suit by an injured employee but not free from suit brought by a primary defendant in a claim for contribution for partially causing the injury. In Ohio, an employer who complies with providing workers compensation insurance is immune from negligence suits in employee personal injury cases.
In an excellent analysis and application of the Restatement 2d of Conflicts of Law and prior Illinois Supreme Court law, the Palmer decision held the Ohio employer could be sued for contribution for their share of negligence.
The general rule (per Section 146 of the Restatement of Conflicts) is that the local laws of the state where the injury occurred will determine the rights and liabilities of the parties in a personal injury action unless some other state “has a more significant relationship.”
Despite the fact that Palmer was an Ohio resident, an Ohio employee and paid Ohio workers compensation benefits, including a $7,500 settlement, Illinois had the “most significant relationship.” The court examined (1) place where injury occurred, (2) place where conduct causing injury occurred, (3) residence and domicile of all parties & place of business and (4) where the “relationship” of the parties was centered.
Illinois applies the principles of comparative fault to all parties in a personal injury accident. Freightliner was allowed to pursue a claim of some portion of blame on the Ohio employer, ADT.
Chicago Workers Compensation Attorneys-- 6-15-08
Illinois Workers Compensation- Medicare Coordination Update
The Centers for Medicare & Medicaid Services (CMS) have consolidated all work related Medicare Secondary Payer (MSP) payment recovery for Auto, Workers Comp & Group Health plans into one Payment Recovery Center. The location provides payout information on conditional payments and coordinates recoveries. For specific Workers Compensation recovery coordination contact:
PO Box 33831
Detroit, MI 48232-5831
For Pay out and Recovery information Contact:
tel: (866) 677-7220 or (866) 677-7294 (TTY/TDD) fax: (734) 957-0998
MSPRC website The real news here is that this new web site gives you explanations on all those form letters that MSPRC sends out.
Employer Assignment of Work Comp Lien-- must pay 25% Attorneys Fees
Normally an Illinois employer that pays workers compensation benefits is entitled to seek repayment of all amounts paid in any 3rd party personal injury action brought by the worker against a responsible 3rd party. In construction injury cases, that responsible 3rd party is often the general contractor or another contractor on the job site that are blamed for causing the workers’ injury.
In any lien reimbursement action where the employer seeks repayment from the proceeds of the personal injury law suit, Illinois law requires the employer to pay the injured workers attorney 25% of any recovery or reimbursement. Therefore Illinois employers usually only obtain 75% reimbursement of amounts paid in workers compensation benefits. Meanwhile, the primary defendants will get to set off 100% of the workers compensation payments as a credit or set-off in any award against them to prevent a double recovery by the injured worker.
Where the employer was also negligent or partially responsible for causing the injury, a law suit for contribution is usually brought by the main defendants against the employer. To the extent that an employer is partially responsible for the workers’ injuries, the right to reimbursement will be reduced by the amount or % of negligence of the employer.
Section 5(b) of the Illinois Workers Compensation Act states:
“Out of any reimbursement received... the employer shall pay his pro rata share of costs… and expenses… and where the services of an attorney… of the employee… substantially contributed to procurement… of the proceeds out of which the employer is reimbursed, then, … the employer shall pay such attorney 25% of the gross… reimbursement.” 820 ILCS 305/5(b) (West 2006)
In a recent case, Evans v Doherty (1st Dist, April 2008) the employer in a construction injury setting attempted to shirk payment of attorneys fees by giving an “assignment” of the employer's workers compensation lien to the primary defendants. The employer had paid out $152,000 in workers compensation benefits and sold their right to reimbursement to Doherty and other primary defendants for the sum of $90,000. The employer in an argument too cute for the court said they received no reimbursement of their workers compensation lien but merely sold their rights to repayment in an assignment of lien. The Court said it was a distinction without a difference and ordered the employer to pay the 25% attorneys fees on the $90,000 they received.
Illinois Borrowing Employer of Temporary Laborer; Exclusive Remedy
Chavez v. Transload, (1st Dist, March 2008 ) again reaffirms that a borrowing employer in Illinois enjoys immunity from negligence suit. A temporary laborer employed by a temporary agency was loaned to a company that unloaded and stored steel for customers. Temporary worker, Chavez, was hit by an overhead crane while off loading a rail car and sued for premises liability and negligence. The Court dismissed the case under Section 5(a) the "exclusive remedy " provisions of the Illinois Workers Compensation Act barring negligence suits against an employer for line of duty job injuries.
The most important among several factors in finding a "borrowed employment" relationship are (1) the borrowing employer's right to control the work performed and, (2) whether the employee gave an express or implied consent to a borrowed employment relationship.
Here, the right to discharge, the right to set the work schedule, the right to control the work and the worker's consent to the job assignment, all lead to dismissal of the negligence suit. Note, the exclusive remedy rule may not apply where there is a joint venture between the companies instead of a borrowed employment relationship. That issue is currently pending before the Illinois Supreme Court.
Illinois Construction Workers Employee Classification Act
Effective January 1, 2008, new laws apply to the Construction industry to guarantee the proper classification of Construction Workers. Individuals performing services for construction contractors on or after January 1, 2008 are presumed to be employees of the contractor unless they meet the criteria specified in Section 10 of the Act. If a contractor misclassified individuals as independent contractors, the Department may assess civil penalties and seek other remedies. The Department must notify the Department of Employment Security, the Department of Revenue and the Workers’ Compensation Commission who are then required to check such contractor’s compliance with their respective laws.
Employee Classification Information Contact #: (217) 782-1710
Chicago Workers Compensation Attorney -- 5-05-08
Work Comp Chicago Illinois Workers Compensation Attorney