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