Undocumented 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.

Larson on Workers' Compensation Law §66.03: Employment of Illegal Aliens notes that employers in a few other states have attempted to challenge the rights of illegal aliens to workers compensation benefits based on the misrepresentations of illegal aliens in obtaining employment to begin with, thereby voiding the employment relationship. However, the great majority of states, including Illinois, allow for workers compensation benefits for illegal aliens with a few exceptions.

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 ability to earn future wages after an injury appears to remain in question, purely speculative or the subject of vocational expert opinion testimony.

The rights of injured illegal alien workers to receive medical care, temporary disability benefits and permanent disability awards in Illinois are really not in question. The tougher questions involve an employers’ obligation to return an injured illegal alien to work within light duty restrictions or face continuing payments of temporary disability benefits during a light duty return to work release, rights to vocational rehabilitation, rights to maintenance benefits, entitlement to wage differential benefits or the duty of an injured worker to search for work in the face of an obvious inability to legally return to work.

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 looking at the Illinois Workers Compensation Act, the Economy court looked first to the plain meaning of “aliens,” which would include not only foreign-born citizens that can be legally employed to work, but the word aliens would also include those illegal aliens that cannot be legally employed. If the legislature had intended any other meaning for aliens, it could have defined the term “aliens” or modified the meaning with specific language.

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.

It has been argued that denying illegal aliens the right to receive workers compensation benefits could create a permanent class of disposable workers. Denying illegal aliens benefits could actually provide a financial incentive for employers to employ more illegal aliens since they could then knowingly save associated workers compensation injury costs that would otherwise be payable for legal employees. Larson also notes the possibility that if injured illegal alien workers are not covered under workers compensation statutes, that employers would likely loose their exclusive remedy defenses and could then be sued in negligence for personal injuries stemming from an employer’s negligence. This is not an option that most employers would choose.

So if illegal aliens are entitled to workers compensation benefits in Illinois, what are the employee’s rights and the employer’s obligations for returning an injured worker to work or the rights of illegal workers to formal vocational rehabilitation benefits for a return to the workforce in the face of the illegal employment status ??

In the only case on point, the Illinois Workers Compensation Commission 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 Appellate Court affirmed the Commission’s award of permanent total disability benefits not withstanding the injured workers’ illegal alien status. Economy Packing Co. v. Illinois Workers' Compensation Com'n, (Ill.App. 1 Dist., December 09, 2008) --- N.E.2d ----, 2008 WL 5205004.

The tough 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 to be answered. 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 wage differential cases will now turn on expert testimony by vocational and labor market experts.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com -- 12-28-08


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 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 the medical disability.

In reviewing cases from other jurisdictions provided by Larson's, the Interstate Court noted that some jurisdictions deny compensation where the disability played no part in the discharge citing Palmer v. Alliance 917 So.2d 510, 514 (L.A. Ct. App.2005) and Calvert v. General Motors, 327 N.W.2d 542.546 (Mich. Ct. App. 1982) holding an employee discharged for "just cause" is not entitled to ongoing disability benefits.

Other jurisdictions were noted to uphold the right to collect benefits after a firing while on light duty only if the employee could prove that the inability to find other employment is related to the job injury disability itself, citing Cunningham v. Atlantic, 901 A.2d 956 (N.J. Super.Ct. App. Div. 2006) and Marsolek v. Hormel, 438 N.W.2d 922, 924 (Minn.1989) (that a justifiable discharge for misconduct suspends the rights to compensation unless the cause of the employee's inability to find other suitable employment is related to the work injury 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 misconduct. Accordingly, temporary benefits after the termination were properly denied.

Contrast this decision with a 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 on the day of the accident. The employer refused to pay any temporary disability benefits claiming a valid termination and they 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 awarded entitlement to temporary disability benefits.

The main factors for denying benefits after a termination while on light duty work restrictions would seem to turn on (1) whether the worker's medical condition is currently temporary in nature as not yet reaching maximum medical improvement (MMI) and (2) whether the termination was based on some voluntary act or conduct of the worker and also (3) whether the work injury disability physically prevents or precludes the availability of alternate employment after the job termination.

Consultation with an Illinois workers comp attorney is advised if you have a case involving light duty restrictions and a termination from employment. The benefits may or may not be payable on a case by case basis depending on the conduct of the employee or the employer and the light duty medical status of the injured worker at the time of termination.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com -- 11-14-08


Illinois Commission Searches for New Chairman


Chairman Gerald Jutila resigned for health reasons effective, November 6, 2008. Chairman Jutila only recently took over the reigns at the Illinois Workers Compensation Commission approximately 30 days ago when former Chairman Dennis Ruth left to become an Illinois state judge. In a formal announcement dated 11/06/08, the Commission staff advised of Chairman Jutila's immediate resignation and return to his former position as an arbitrator.

We expect the announcement of an Acting Chairman should be forthcoming shortly while a post election search is conducted to find a new Chairman for the Commission. Senate confirmation and official appointment by the Governor's office should follow shortly thereafter.

Any new chairman is expected leave his or her stamp on the Illinois Commission with the proposed introduction of a new computer system to more accurately track Illinois work injury claim statistics and to comply with new Medicare and state agency data sharing. Medicare and CMS are currently in the process of identifying those states that are able to provide WC data match with the Medicare eligible database. Also, the late Chairman Ruth had proposed review of the Rules of Practice before the Illinois Commission before his early departure.

The resignation of Chairman Jutila also coincides with recent pending proposed implementation of a new Illinois Medical Fee Schedule for Hospital Outpatient and Ambulatory Surgery Centers. Adherence to the new medical fee schedule and resolution of disputes over accurate payment protocols are sure to follow.

Regrettably, Chairman Jutila's stewardship and leadership will be greatly missed. With over 29 years of practical experience in Illinois work injury claims both as an attorney before the Commission and more recently acting as an Arbitrator ruling on disputed claims, he offered the hope of pragmatic solutions for increased resolution times without compromising due process rights or rights to a full hearing.

Chicago workers compensation attorneys
-- http://wc-chicago.com --11-09-08


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.

The insurers don’t presently like paying claims based on the Illinois WC Geozip system because their software is not geared for the 29 geographical Geozip pricing areas for the entire state. They must take the time and expense to process the workers comp medical bills by the Geozip system. The real protest to the geozip system by insurers is about the inconvenience of processing bills rather than an issue of providers shifting geozip care sites for a marginal profit edge.

Yes, it will require either more workers or new software by the insurers to process the workers compensation medical bills given the many Geozips involved but, the multiple Geozip system guarantees the access to medical care for areas based on the traditional rates and traditional charges.

If an area historically had medical charges that were lower, then the overall cost of providing medical services in that area given the associated lower overhead costs were probably much lower to begin with. Higher local rents, higher local taxes and higher local salaries do in fact run up the cost of medical overhead and therefore are reflected in the historical medical charges. Under the Medical Fee Schedule Geozip system, the lower overhead cost areas are reimbursed proportionately to their surroundings and historical medical charges.

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 areas of the state. The 3 code system would be assailed as being 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.

Illinois Workers Compensation Fraud 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.

Any valid complaints should be addressed to the Illinois Workers Compensation Fraud Unit by calling Toll Free to: (877) 923-8648.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com -- 11-01-08


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 in FY2007 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, the amount of 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 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 -- http://wc-chicago.com -- 10-19-08


Mandatory Overtime Hours included in Average Weekly Wage


The 18 year battle over including or excluding overtime hours in the calculation of 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 a hotly contested area of dispute. Average weekly wages are used to calculate both temporary disability benefit rates 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 required as part of the "regular employment", the overtime hours were included in the calculation of 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 the straight time rate of pay if the worker "regularly worked" overtime hours in more than 50% of the weeks or where the overtime was mandatory. The Illinois Appellate Court 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. Edward Don (2003) and Freesen (2004).

Last year in Airborne Express (March 2007), the court held 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 Airborne excludes all overtime hours unless both mandatory and consistently regularly worked as a set number of hours but, that does not appear to accurately comport with the prior case law under Freesen and Don or prior Commission decisions.

Shortly after Airborne decision, the Commission decided Terrell v Jacksonville (07 IWCC 1319, October 2007) wherein 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 hours 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 he was required to finish daily deliveries and some of his overtime hours were mandatory but, he failed to prove the exact amount of mandatory overtime hours so the overtime hours were excluded. Recently in Heffner v Little Lady (08 IWCC 510, May 2008) the Commission also denied inclusion of the 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 reading the case law, it looks like the definition for exclusion of overtime under Section 10 is much more easily defined than in considering all the situations where overtime hours might or should be included in calculation of wages. The Appellate Court in Airborne clearly said that they have consistently held that the Section 10 exclusion of overtime in calculation of weekly wages excludes all overtime hours where the worker is not required to work the overtime as a condition of employment (i.e. mandatory) or excludes the 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 very concerned with the proper calculation of average weekly wage and they should both be encouraged to contact an experienced Illinois workers compensation attorney for consultation given that a fair amount of money is involved in calculation of temporary disability benefits or permanent partial disability benefits. Especially large amounts of money can be involved in long term payments of wage differential benefits and in claims for permanent total disability, both of which payments can last for the full lifetime of the worker.

Chicago Workers Compensation Attorneys -- http://WC-Chicago.com -- 9-21-08


ISBA Advanced Seminar on Illinois Workers Compensation


The ISBA Workers Compensation Section will be hosting a CLE program on Advanced Illinois Workers Compensation on October 13, 2008 offered both in Chicago at the ISBA Regional Office (map and directions) and in Collinsville, Illinois (map and directions). The course will include current topics facing Illinois workers' compensation attorneys, including repetitive trauma in carpal tunnel cases, workplace slip and fall injuries, parking lot cases, qualifications and obligations for vocational rehabilitation and job retraining, Medicare Set Aside future medical expense accounts – avoiding pitfalls, ethical practice considerations at the Illinois Workers Compensation Commission and an update on recent Illinois workers compensation case law.

John B. Adams,moderator, Roddy, Leahy, Guill & Zima, Ltd, Chicago


David Barish, Katz Friedman Eagle et. al., Chicago (Chicago program)
Deborah Benzing, Law Offices of Lauren Meachum, Chicago (Chicago program)
Brad Bleakney, Bleakney and Troiani, Chicago (Chicago program)
Richard Hannigan, Mundelein (Chicago program)
Carol Hartline, Williams and McCarthy, Rockford (Collinsville program)
Jennifer Kieswetter, Ottawa (Chicago program)
Michelle Lafayette, Ganan & Shapiro, PC, Chicago (Collinsville program)
Kevin Meckler, Carbondale (Collinsville program)
David Menchetti, Cullen, Haskins, Nicholson & Menchetti, Chicago (Chicago program)
Robert C. Nelson, Nelson & Nelson, Belleville (Collinsville program)
Bradford Peterson, Urbana (Collinsville program)
Lawrence Scordino, Chicago (Chicago program)
Kristen Wadiak, Beatty and Motil, Glen Carbon (Collinsville program)
Kenneth Werts, Craig & Craig, Mt. Vernon (Collinsville program)

ISBA members $135 in advance and $150 the week of seminar. 5 MCLE credits For online registration

Chicago Workers Compensation Attorneys
-- http://wc-chicago.com - 9-14-08


New Chairman for Illinois Workers Compensation Commission


Governor Blagojevich appointed a new Chairman of the Illinois Workers Compensation Commission, effective October 3, 2008. Arbitrator Gerald Jutila was unanimously recommended by the Workers’ Compensation Advisory Board and appointed by the Governor. Under the 2005 workers’ compensation reforms, the Advisory Board makes recommendations on Commission appointments to the Governor.

Chairman Jutila holds a B.A. degree in Political Science from the University of Minnesota and a J.D. degree from John Marshall Law School. Chairman Jutila also served as an arbitrator at the Chicago Commission since September 2004. He has over 29 years of practical experience in workers’ compensation as an attorney primarily representing injured workers.

As an attorney, Jutila has a broad range of experience at all levels of workers compensation practice, appellate practice and 3rd party negligence practice bringing a well rounded perspective and depth of prior case law to the Chair of the Commission. His knowledgeable and practical legal background will provide the Commissioners and members of the Commission with an invaluable resource.

Chairman Jutila's talents in both personal persuasion and leadership should gain cooperation from Commission staff and practicing attorneys from both sides of the isle.

As a practicing Chicago workers compensation attorney we more than welcome the appointment.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com 9-10-08


Mandatory Insurer Reporting (MIR): Medicare Secondary Payer Reporting

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.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com 8-12-08


Chicago Workers Compensation Attorneys


Chicago workers compensation attorneys with advanced trial and appeal practice before the Illinois Workers Compensation Commission since 1984. We have successfully tried all types of Illinois work injury claims in construction, food service, hospital, manufacturing and transportation.

Our Chicago workers compensation attorneys have extensive trial experience in Illinois injury claims covering a broad range of medical conditions and injury types. Our experienced attorneys work to maintain a competitive edge in Illinois work injury litigation and workers compensation injury claims.

We attempt to provide each client with individual instruction, preparation, education and available options in Illinois work injury claims. We provide dedicated and aggressive representation in Illinois workers compensation and assistance in work injury litigation in Chicago and the surrounding area cities which include:

Chicago and suburbs, Waukegan, Barrington, Lake Zurich, Mundelein, Libertyville, McHenry, Woodstock, Geneva, St. Charles, Wheaton, Downers Grove, Orland Park, Hinsdale, Naperville, Aurora, Romeoville, Joliet, Bourbonnais and Kankakee.

Covering Cook County, Lake County, McHenry County, Kane County, DuPage County, Will and Kankakee County.

If in need of assistance, contact our office at (312) 541-0049 for a review, meeting or claim consultation.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com 8-02-08


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. The 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.

Chicago Workers Compensation Attorneyshttp://wc-chicago.com 7-28-08


Overfunding Workers Comp Medicare Set Aside Accounts with 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 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 the average price at which the equipment can be purchased and the high pricing is often contrary to the relevant state WC fee schedule. 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 here at the following link: NAMSAP Letter (http://www.gouldandlamb.com/files/NAMSAP_Position_Letter.pdf)

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.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com 7-21-08


Illinois Workers Compensation Medical Fee Schedule proposal for 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 new 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 and rules for hospital outpatient services and ambulatory surgery charges are available in draft at this link to the Commission website. Official Public Comment hearings are currently being held on the proposed new outpatient schedule in both Chicago and Springfield.

Chicago Workers Compensation Attorneyshttp://wc-chicago.com 7-16-08


Illinois Trucking Company sues Ohio Employer ADT in 3rd Party claim in 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 that 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.

Questions by Illinois employers on actions for indemnification, contribution or workers compensation lien recovery should be addressed by an Illinois workers compensation attorney with practical experience and knowledge in this specific area of the law.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com 6-15-08


Illinois Workers Compensation -- Medicare Coordination Update


The Centers for Medicare & Medicaid Services (CMS) have consolidated all 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

The real news is the new MSPRC website for direct contact and a nice explanation of the MSPR form letters.

On May 20, 2008, CMS also issued a new memo indicating all future Workers' Compensation Medicare Set-Aside allocations must be calculated based only on life expectancy tables using Table 1 of the CDC Life Tables for Total Population.

Read the 5/20/08 CMS update memo online.

Questions related to Illinois workers compensation settlements and Medicare Set aside coordination should be addressed to our Chicago workers compensation attorneys.

Workers Compensation Attorneys http://wc-chicago.com 6-7-08

Illinois 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 as attorneys fees. 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 ( 1ts Dist., 4/25/08) the employer in a construction injury setting attempted to shirk payment of attorneys fees by giving an “assignment” of the employers 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.

Questions on Illinois workers compensation lien recovery and reimbursement should be addressed by an Illinois workers compensation attorney with practical experience and knowledge in this frequently changing area.

Chicago Workers Compensation Attorneys --WC-Chicago.com 6-07-08


Illinois Borrowing Employer of Temporary Laborer; Exclusive Remedy


Chavez v. Transload
, (1stDist 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 workers consent to the job assignment, all lead to dismissal of the negligence suit. Note, the exclusive remedy defense rule may not apply where there is a joint venture between the companies instead of a borrowed employment relationship. At the time of this post, that issue is currently pending decision before the Illinois Supreme Court.

Questions on the exclusive remedy defense in loaned borrowed employment relationships often arise in the construction industry where employees of one subcontractor may be under the direction and control of another contractor. Court decisions in this area are often fact specific. A true borrowing employer shares the exclusive remedy defense from any negligence suits by the injured employee. However a borrowing employer may have liability for workers compensation claims brought by the injured worker in the absence of a specific written agreement with the loaning employer.

Questions in this heavily contested area can be addressed by our Chicago workers compensation attorneys with practical experience with the exclusive remedy defense and borrowed employee relationships.

Chicago Workers Compensation Attorneys --- http://wc-chicago.com 5-11-08


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. Workers performing services for construction contractors on or after January 1, 2008 are presumed to be employees of the contractor unless they meet the exceptions specified in Section 10 of the Act. If a contractor chooses to misclassify a worker as an independent contractor in violation of the new law, the State of Illinois can assess civil penalties (money, stop work orders) or other remedies. The Department will notify other State agencies such as the Department of Employment Security (unemployment taxes), the Department of Revenue (income taxes for State & Fed) and the Workers’ Compensation Commission (Work comp insurance compliance penalties for no insurance) who are then required to review and check the contractor’s compliance with each of their respective laws. www.state.il.us/agency/idol/laws/Law185.htm

Employee Classification Information Contact #: (217) 782-1710

This new law is certain to give rise to litigation in construction negligence cases and in workers compensation cases for construction site injuries. For a current update on the practical effect of the new law and new cases interpreting the application of this new law, contact our Chicago workers compensation attorneys with any questions or seek out an experienced Illinois attorney specializing in construction litigation.

Chicago Workers Compensation Attorneys --- http://wc-chicago.com 5-04-08


Illinois Work Comp Injury Rates Fall 53% from 1991 to 2003


The Illinois Workers Compensation Commission tracks injury rates for Illinois employers and provides break downs of injuries by specific body parts involved. Back injuries are fairly common in most occupations and represent a high cost for both injured workers in future lost earnings and Illinois employers in workers compensation claim payments.

Illinois employers and workers have proved to have an increased safety record. According to the Illinois Workers Compensation Commission, the overall worker-injury rate in Illinois decreased by 53% between 1991 and 2003. The most recent Illinois Workers’ Compensation report shows the number of cases filed have dropped 20% from fiscal year 2001 of 71,038 claims filed statewide to fiscal year 2006 of 56,911 claims filed. Illinois now maintains the 10th lowest injury rate in the country.

Among the 50 states and the District of Columbia, Illinois is ranked:

10th lowest in w.c. injury rate;

25th lowest in w.c. benefit cost rates (w.c. benefits divided by payroll);

26th lowest in w.c. medical costs per claim;

30th lowest in w.c. insurance premium rates;

30th lowest in w.c. indemnity costs per claim

These figures are directly quoted from the Illinois Workers Compensation Commission 2006 Annual Report.

Chicago Workers Compensation Attorneys --http://wc-chicago.com 4-29-08