9/05/2009

Illinois Construction Workers Presumed to be Employees

9-05-09

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 (b) and (c) below as set out in Section 10 of the new Employee Classification Act.

(820 ILCS 185/10)
Sec. 10. Applicability; status of individuals performing service.

(a) For the purposes of this Act, an individual performing services for a contractor is deemed to be an employee of the employer except as provided in subsections (b) and (c) of this Section.

(b) An individual performing services for a contractor is deemed to be an employee of the contractor unless it is shown that:

(1)the individual has been and will continue to be free from control or direction over the performance of the service for the contractor, both under the individual's contract of service and in fact

(2) the service performed by the individual is outside the usual course of services performed by the contractor; and

(3) the individual is engaged in an independently established trade, occupation, profession or business; or

(4) the individual is deemed a legitimate sole proprietor or partnership under subsection (c) of this Section

(c) The sole proprietor or partnership performing services for a contractor as a subcontractor is deemed legitimate if it is shown that:

(1) the sole proprietor or partnership is performing the service free from the direction or control over the means and manner of providing the service, subject only to the right of the contractor for whom the service is provided to specify the desired result;

(2) the sole proprietor or partnership is not subject to cancellation or destruction upon severance of the relationship with the contractor;

(3) the sole proprietor or partnership has a substantial investment of capital in the sole proprietorship or partnership beyond ordinary tools and equipment and a personal vehicle;

(4) the sole proprietor or partnership owns the capital goods and gains the profits and bears the losses of the sole proprietorship or partnership;

(5) the sole proprietor or partnership makes its services available to the general public or the business community on a continuing basis;

(6) the sole proprietor or partnership includes services rendered on a Federal Income Tax Schedule as an independent business or profession;

(7) the sole proprietor or partnership performs services for the contractor under the sole proprietorship's or partnership's name;

(8) when the services being provided require a license or permit, the sole proprietor or partnership obtains and pays for the license or permit in the sole proprietorship's or partnership's name;

(9) the sole proprietor or partnership furnishes the tools and equipment necessary to provide the service;

(10) if necessary, the sole proprietor or partnership hires its own employees without contractor approval, pays the employees without reimbursement from the contractor and reports the employees' income to the Internal Revenue Service;

(11) the contractor does not represent the sole proprietorship or partnership as an employee of the contractor to its customers; and

(12) the sole proprietor or partnership has the right to perform similar services for others on whatever basis and whenever it chooses.

(d) Where a sole proprietor or partnership performing services for a contractor as a subcontractor is deemed not legitimate under subsection (c) of this Section, the sole proprietorship or partnership shall be deemed an individual for purposes of this Act.

(e) Subcontractors or lower tiered contractors are subject to all provisions of this Act.

(f) A contractor shall not be liable under this Act for any subcontractor's failure to properly classify persons performing services as employees, nor shall a subcontractor be liable for any lower tiered subcontractor's failure to properly classify persons performing services as employees.

(Source: P.A. 95-26, eff. 1-1-08.)

If an employer/ contractor miss-classifies 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, stop work orders or 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 own respective laws. Contractors found in multiple violations 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., owned by Boguslaw Omielan and operating out of 3801 South Archer Chicago, Ill.; and
  • J S Masonary, Inc., JS Masonry & Tuckpointing, Inc., and JS Masonry & Stone, Inc., owned by Jan Staszel and operating out of 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,” Madigan said. “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 recent trend at the Commission to favor employment relationships in cases for injured workers in both trucking and the construction industry.

To review construction accident work injury claims, contact an experienced Illinois workers compensation attorney. The construction area and the rights of the parties are often confusing. Often, a loaned/borrowed employment relationship may exist in a construction setting which may be governed by the subcontract indemnification agreements or by the agreements for primary liability for workers compensation claims or other such hold harmless language in the construction contracts.


Chicago Workers Compensation Attorney
-- 9-05-09

8/21/2009

Illinois Workers Compensation Medical Fee Schedule Seminars


8-21-09

The Workers Compensation Commission will hold public seminars for payers and providers to review the new Illinois Workers Comp Medical Fee Schedule for injury related medical care on or after Feb.1, 2009. (Instructions and Guidelines for Treatment )

Payer and Provider Seminars are now scheduled: Mount Vernon (10/13/09), Collinsville (10/14/09), Springfield (10/28/09), Chicago (11/3 and 11/4/09), Peoria (11/10/09) and Rockford (11/17/09) see dates and locations and registration information.

The Illinois Workers Comp Medical Fee Schedule sets forth maximum limits for 1) ambulatory surgical centers 2) hospital outpatient surgery, radiology, laboratory, physical medicine and rehabilitation services and 3) new rates for specialized rehabilitation hospitals.

Maximum payment rates are now set as the lesser of 1) the listed Fee Schedule amount 2) the actual amount charged or 3) the contract "negotiated" rate in provider contracts. An existing contract will control over amounts in the new fee schedule. Interest charges may apply for late payment after 60 days but only after providers supply the necessary minimum information required.

For assistance call our office at (312) 541-0049 or email us at beb@workcomp-chicago.com


Chicago Workers Compensation Attorney
-- 8-21-09

8/18/2009

Mandatory Insurer Reporting User Manual Released 8-04-09

8-18-09

We often report on important developments involving Medicare coordination with Illinois workers compensation claims. For those following the Mandatory Insurer Reporting requirements (MIR), the Centers for Medicare & Medicaid Services (CMS) released an updated Liability and Workers Compensation Insurance User Guide Version 2 dated 8-04-09. The 225 page document is offered to help insurance carriers and administrators understand upcoming claim reporting requirements for cases involving Medicare beneficiaries.


CMS also released an "Alert" dated 7-31-09 to define who is required to report under the new law -- that is anyone that CMS terms a Responsible Reporting Entity (RRE). The definition essentially boils down to any party that is responsible to pay the claim which may include the members of insurance risk pools, self insureds companies, any company with a deductible and workers compensation insurance carriers.


This document is in draft only and is subject to revision after additional public comment. It attempts to solve the double reporting problem with companies that keep deductibles or self insured retentions (SIR) and tries to define exactly who or what entity is responsible for the claim reporting.


Chicago Workers Compensation Attorney -- 8-18-09

8/10/2009

Illinois Workers Compensation Medical 2 Doctor Rule


8-11-09

Illinois workers compensation allows injured workers to have a choice of picking two doctors for treatment. Hospital emergency care does not count as a choice of doctor but after that, if you start medical treatment with any physician, it is going to be considered as using one of your two choices for a doctor.

Your initial doctor can refer you to as many specialists or therapists as are necessary to evaluate and treat your injuries. But say you have a disagreement with your 1st doctor or you feel not enough is being done to treat your injury. Section 8(a) of the Illinois Workers Compensation Act allows for a 2nd independent choice of doctor at the employer's expense under workers compensation. A third choice of doctor will not be paid for as a medical expense under Illinois workers comp 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 care that should have been covered in workers compensation medical benefits. And, an Illinois workers compensation attorney will not be able to force payment of those medical bills because by law an employer is not responsible for a 3rd choice of doctor.

For a review of basic rules and Illinois workers compensation benefits, see our web site for a short article outlining basic benefits. A recent court case also reinforces the two-physician rule where a worker received some free acupuncture, it did not count as a choice of physician. See the Appellate Court's most recent decision on the 2 doctor rule at Comfort Masters (May 2008).

For further questions concerning medical treatment or workers compensation benefits contact a Chicago Workers Compensation attorney for answers and assistance. Our Attorneys at WorkComp Chicago have handled Illinois work injury claims for over 20 years with a 98% overall success rate. Aggressive Illinois workers compensation attorneys with a strong record of success in workers compensation settlements, trials and appeals.


Chicago Workers Compensation Attorney 08-11-09

Illinois Truckers as Independent Contractors or Employees; Nature of the Business Test Matters

8-10-09

Illinois adopted a stricter test in 2007 that favors classifying workers as an employee rather than as an independent contractor. No single factor determines whether a worker will be classified as an employee or an independent contractor but the factors that will be considered are as follows:
  • whether the employer dictates the person's schedule
  • whether the employer pays the person hourly
  • whether the employer withholds taxes
  • whether the person can be discharged (fired) at will
  • and most important whether the employer may control the manner in which the work is done
Every case will of course be looked at individually but the courts will now look at whether the worker's services form a regular part of the employer's general business or whether their duties are part of their own separate business. If that's so, many workers will now be presumed to fall under workers' compensation coverage like in the case of many truck drivers and construction workers who are regularly and wrongly named as independent contractors.

There is a growing trend to classify owner-drivers of trucks as employees when they work continuously for a company and that driving forms an integral part of the employers business. By the court looking to the "nature of the business" test more workers who are labeled independent contractors will be treated as employees for workers compensation and be entitled to Illinois workers compensation benefits.

The Illinois Supreme Court announced the new "integral nature of the business" decision in Roberson (May 2007)

Many Illinois workers are wrongly classified as independent contractors to save the employer from workers compensation premiums and withholding taxes. Injured workers should contact an Illinois workers compensation attorney to determine whether they should be covered by Illinois workers compensation.

For questions call a Chicago workers compensation attorney for answers and assistance with a claim for benefits at info@workcomp-chicago.com.


Chicago Workers Compensation Attorney 8-10-09

7/06/2009

2008 Annual Report Illinois Workers Compensation Commission

7-06-09

On June 30, 2009, the Commission released its Annual Report of Operations for 2008. Highlights indicate that total claims of 57,515 were up slightly 1.5% from 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 hearings, settlement approvals and pretrial 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 the 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, in 2008 the formal written decisions from the Commission 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 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 awarded from the Arbitration Decision in 21% of the appeals filed by an employer. Outright reversals were obtained in only 6% of the Review Decisions filed and benefits were actually increased in 6% of the decisions appealed from.

The average time that a case takes 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 assessing a 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 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 total claim 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 in the vast majority of claims by resolving disputes and contested cases through compromise settlement. Parties may be best served by representation with an experienced Illinois workers compensation attorney to arrive at an early compromise settlement rather than face the uncertainties and delays of trial and appeal.

It should be noted that Arbitrators in Illinois perform a significant crucial key function in supplying sound pretrial recommendations to assist attorneys in resolving disputed areas of disagreement in contested cases.

Formal Decisions of the Arbitrator were appealed in only 48% of cases that went to trial and decision 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.

Contact an Illinois workers compensation attorney for assistance at (312) 541-0049 or email our office at info@Workcomp-Chicago.com.

Chicago Workers Compensation Attorney
-- 7-06-09

7/05/2009

IL Workers Comp Medical Fee Schedule Changes

7-05-09

The Illinois Workers Compensation Medical Fee Schedule adopted new Medicare Medical Severity codes for hospital inpatient services. The new MS-DRG codes are now part of the Illinois Medical Fee Schedule as of June 30,2009.

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 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.

Chicago Workers Compensation Attorney -- 7-05-09

6/22/2009

Good Samaritan: Hip Check to Vending Machine Awarded

6-22-09

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 that he suffered an impacted, displaced fracture of his right hip and required immediate surgery.

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 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" 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, 5/21/09, modified 7/9/09) viewed the hip check case more like a “ Good Samaritan” case, in that he was coming to the aid of a female coworker. The injured worker testified he bumped the machine with his shoulder rather than an actual hip check and it was further noted that the employer knew that the machine was broken. In this instance, the Appellate Court said that the Commission could find it compensable as 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 reasonably foreseeable.

Thomas A. Robinson, J.D., of Larson's Worker's Compensation Law(LexisNexis) wrote a short article for the Workers’ Comp Kit Blog describing the vending machine incident as a “Chivalrous Act” in coming to the aid of the female coworker. The case is also posted on Illinois Top Cases on the Lexis Larson's WC Law Center.

Larson’s Workers’ Compensation Law, § 21.01 points out that “personal comfort” acts can be considered part of regular employment but they also note that the acts cannot be unusual or unreasonable.

This case could have just as easily 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 assisting a female coworker. The "Chivalrous Act" of helping a female coworker brought it more in line with prior awards under past "Good Samaritan" cases.

To review Illinois workers compensation benefits, contact an Illinois workers compensation attorney.

Chicago Workers Compensation Attorney -- 6-22-09

6/20/2009

Settlements: Medicare Set Aside Future Drug Costs and Uniform Pricing

6-20-09

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 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 used 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.

MEDVAL 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.

Contact our Chicago workers comp attorneys for questions on Illinois workers compensation settlements and MSA requirements.

(8-23-09) Update: PMSI records significant increase in MSA allocations under new prescription drug guidelines

Chicago workers compensation Attorney -- 6-20-09

6/14/2009

Failure to Quit Smoking Defense: Disability Benefits and 3rd Surgery Awarded

6-14-09

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 tobacco smoking is evil, bad and harmful, Illinois has yet to make it 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 temporary 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 intentional act undertaken to retard the medical recovery.

The doctors agreed that 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 clear that the doctors did advise the injured worker to quit smoking. The law is also 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, surgical, or hospital 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)

There was no evidence that the worker had deliberately attempted to impair his recovery. In fact, the injured worker did make an unsuccessful attempt to quit smoking. Anyone who has tried to quit smoking knows that it is not an easy proposition.

Our Appellate Court found that the employer could "reasonably rely" upon the IME opinion blaming a failure to quit smoking in cutting off benefits and so they denied the award of penalties and attorneys fees.

What is our court saying ?? That the law did not support the employer's denial of benefits based upon a failure to quit smoking but that the "smoker defense" was reasonable enough to avoid penalties and attorneys fees. Was the court creating a new defense sufficient to tie up benefits without the imposition of penalties and fees for improperly delayed benefits?? Is this the message or are they really emphasizing that reliance on an employer's IME opinion will avoid penalties?? Are obesity and diabetes the next "reasonable defenses" sufficient to deny benefits since they are also conditions allegedly within the worker's control that impair and prolong recovery as long as the IME doctor blames these two known risk factors for a delay in recovery?? In our view, probably not. Obesity and diabetes are much harder to control.

See: Larson's Workers' Compensation Law § 10.10 Refusal of Reasonable Treatment: an unreasonable refusal to follow medical instructions will usually lead to a loss of disability benefits attributable to the refusal but, when the recommended treatment involves things like weight loss reduction .... the courts have generally been far less stern, ... (the courts) are reluctant to stigmatize human failures as a ''willful refusal.'' Here, as in the case of (refusing surgery), the test of reasonableness of the worker's refusal applies.

Although an employer's reliance upon a medical opinion will generally avoid penalties, here, that medical opinion did not support an existing defense to the payment of compensation under Illinois law. The Court held that failure to quit smoking does not constitute an intervening act breaking the chain of medical causation nor does it constitute a willful, intentional and deliberate interference with recovery.

I agree with the dissent that denying workers compensation disability benefits without an existing legal basis is unreasonable and it should generally lead to an award of penalties against the employer.

To review workers compensation benefits and existing defenses contact our Chicago workers compensation attorneys.

Chicago Workers Compensation Attorney -- 6-14-09

6/01/2009

National Study of Illinois Workers Compensation Proposed

6-1-09

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 system 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 to the workers compensation systems within 18 months. You can expect the study to recommend adoption of greater nationalized standards.

I would expect that any suggestion for a nationalized system of medical payments would be modeled after Medicare and severely reduce current medical payments to our doctors and hospitals for workers compensation injuries.

The National Association of Professional Insurance Agents recently came out to oppose to the proposed study as unjustified and simply a waste of taxpayers’ money.

To read further details, see "PIA Opposes Federal Commission to Study State Workers Compensation Laws on LexisNexis. LexisNexis provides the Larson's Workers Compensation Law Center for valuable resources for attorneys and the workers compensation industry.

Chicago Workers Compensation Attorney -- 6-01-09

Medicare Set Aside Approval Proposed Changes

6-01-09

Reform legislation has been introduced to streamline the Medicare Set Aside review process. Representative John Tanner (Tennessee) re-introduced legislation H.R. 2641 ( May 21, 2009) to amend section 1862 of the Social Security Act. The bill proposes to establish an exemption for low dollar workers compensation settlements and an exemption where there is no expectation of future medical care related to the work 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 set-aside account dollars shall be based on the particular state workers' compensation fee schedule 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 for the Medicare set-aside. 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 an equitable assessment for future medical expense accounts, the bill also proposes a proportional % adjustment for "compromise" settlement agreements. In general, the proposal allows the parties to reduce the set aside account amount in direct proportion to the full value of the claim if there were no disputes involved. The percentage reduction for the set aside account would be equal to the % of benefits denied or contested out of the settlement as compared to full value.

This section will cover all those settlement agreements that are currently partially disputed and represent a real reducuction in workers compensation settlement value based on the disputes in the case. This proposal actually attempts to correct the current process whereby parties are forced to fund full future medical amounts even though the benefits in the claim are disputed and even though the injured worker is only receiving half or less of full value because of the disputed issues 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, we have had MSA approval take from 6 months to as long as 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 expenses but they do not have access to the Medicare set aside funds. While the insurance carrier is waiting for CMS approval on the MSA, most carriers will not pay the medical bills waiting to see if Medicare approves the settlement.

The proposal is also designed to set out standards for the review process by CMS contractors and attempts to set review standards for amounts to be reserved in Medicare set aside accounts.

The current status of the bill 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.

chicago workers compensation attorney
-- 6-01-09

5/24/2009

More than Totally and Permanently Disabled from Work Injury in Illinois

5-24-09

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, (May 21, 2009, Ill. Supreme Ct.) 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 Illinois 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 additional 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 damaged to the point that there is no stable labor market anymore for a person of like age, training and physical limitations known as “odd-lot” permanent total disability pension and (3) in the case of someone eligible by statute for total 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 even 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 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 pension 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.

Chicago Workers Compensation Attorney – http://wc-chicago.com -- 5-24-09

5/23/2009

Temporary Disability Benefits Following “Economic Layoff"

5-23-09

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 confirmed 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 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 clearly not medically reasonable.

Chicago Workers Compensation Attorney ---- http://WC-Chicago.com/ -- 5-23-09

2/02/2009

New Illinois Workers Comp Medical Fee Schedule for Outpatient Services

02-02-09

New Rules and a new Medical Fee Schedule apply for maximum fees in hospital outpatient and ambulatory surgical centers under Illinois workers' compensation effective Feb. 1, 2009. (See: Illinois Workers Compensation Medical Fee Schedule Instructions and Guidelines for Treatment on or after Feb. 1, 2009)

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 to Ms. Susan Piha in 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 fee schedule rates increased 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 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 implementation were reached in long running deliberations between labor, industry and medical representatives of the Medical Fee Advisory Board. Their hard work and endless hours of analyzing data by the Commission staff have finally come to fruition. 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.

Workers' compensation 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 out as 1) the lesser of the Fee Schedule amount or the actual charge or 2) a 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 65% of amount charged rules still apply for any add-ons or pass through charges for hardware devices, instrumentation or medical devices.

In progress, Illinois will be converting to the new MS-DRGs scheduled to be adopted no later than June 30,2009 applying the new Medicare severity codes.

Chicago Workers Comp Attorneyhttp://wc-chicago.com/ 02-02-09

2/01/2009

Social Security Disability and Illinois Workers Comp Settlements

2-01-09

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 compensation 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 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 actually reaches the full 80% of former income level for medium to high wage earners. The low maximum SSD disability payments will usually result in an income loss for disabled wage earners if they are not adequately compensated in workers compensation.

The SSD portion of payments under the 80% combined benefits rule usually changes from when a worker is receiving WC weekly temporary disability payments compared to a different 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. The SSD monthly benefit can often increase after a settlement.

Stated simply, the monthly SSD benefit and the WC benefit cannot be greater than 80% of the worker’s former income. 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. The terms of a WC settlement are extremely important in order to maximize the combined monthly benefits.

Illinois law allows for a single lump sum payment of 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 however can result in a complete suspension or termination of SSD benefits up to the entire amount of the settlement.

Chicago Workers Compensation Attorney ----http://wc-chicago.com/ -- 2-01-09

1/26/2009

Workers’ Comp Lien and Employer’s Uninsured Motorist Coverage

1-26-09

The Illinois Supreme Court recently decided that a workers’ comp lien does not apply to a recovery on an employer’s uninsured motorist policy under the plain meaning of Illinois workers’ compensation lien statute since there was no recovery from a 3rd party. Taylor v. Pekin Ins. Co., 2008 WL 4943700, --- Ill.2d--- (Nov. 2008).

The Illinois workers’ compensation lien statute clearly creates an employer’s right of reimbursement for any workers compensation benefits paid from any 3rd party recovery. By statute, the workers’ compensation lien applies to any award, judgment, or fund received by an injured employee from a 3rd party. 820 ILCS 305/5(b).

It was decided earlier that a workers comp lien does not attach to an employee’s uninsured motorist coverage (Terry v. State Farm Insurance) (2d Dist.1997) as the uninsured motorist recovery is a contract recovery by the claimant against his or her own insurer and not a recovery against a responsible 3rd party.

By way of background in this case, Taylor filed a workers’ compensation claim for a car accident with an uninsured driver. Plaintiff received $162,588.33 in workers’ compensation benefits. Plaintiff then filed a claim for injuries under the employer’s uninsured motorist policy for the employer’s auto policy issued by Pekin Insurance.

At arbitration on the uninsured motorist claim, Taylor was awarded $250,000. The uninsured motorist policy contained a setoff clause for all sums paid under workers’ compensation so Pekin delivered a check to the plaintiff for $87,411.67 representing the $250,000 arbitration award less the setoff for workers comp benefits paid of $162,588.33.

Taylor filed suit claiming he should get 25% attorney’s fees on the $162,588,33 setoff. The Supreme Court said that Taylor’s claim for attorney’s fees misses the point.

The Supreme Court said the plain language of 5(b) clearly states the workers’ comp lien applies where proceedings are instituted against a person, other than the employer, who is liable for damages. Here the claim was not against a 3rd party so the workers comp lien doesn’t apply. If a workers’ comp lien had applied, the employer would have paid 25% attorney’s fees on any lien reimbursement in order to prevent an unjust enrichment to the employer. (Reno v. Maryland Casualty) (1962). Here, there was no workers’ comp lien to apply and there was no reimbursement of lien but rather a setoff in the auto policy.

The Court said that if Taylor had recovered $250,000 from an actual insured 3rd party, he would have received the same net recovery of $87,411.67 after deducting out the employer’s workers’ compensation lien reimbursement. Plaintiff was left in no better or no worse shape than he would have been in if he had recovered from an insured 3rd party.

Workers’ compensation lien questions should be addressed to Illinois workers’ compensation attorneys knowledgeable in workers’ compensation lien reimbursement.


Chicago Workers Compensation Attorney
-- http://wc-chicago.com 1-26-09

1/01/2009

Work Comp Chicago Workers Compensation Attorneys Chicago

01-1-09

Illinois workers compensation lawyers with advanced training and trial experience in Illinois Workers Compensation injury claims and related work injury litigation. Our experience covers all types of work injury claims, medical conditions and related Illinois injury litigation in Chicago and suburban areas since 1984.

Our workers compensation lawyers concentrate in Illinois work injury claims involving construction, manufacturing, health care and transportation.

We have over 20 years of experience in Illinois injury claims covering a broad range of medical conditions including complex fractures, arthroscopic knee and shoulder repairs and advanced experience with back injury claims, disc herniations and spinal fusions.

Aggressive representation in all cases involving loss of occupation, permanent wage reductions or cases of permanent total disability. Our Chicago workers compensation lawyers work with each client to prepare for the expected and anticipate the unexpected. We work to maintain a significant competitive edge in Illinois workers compensation claims and work related injury litigation.

Our attorneys provide instruction, education and preparation available for options in Illinois work injury cases. We provide dedicated, aggressive representation in both Chicago and the surrounding area cities:

Chicago, Waukegan, Barrington, Mundelein, Libertyville, McHenry, Woodstock, Geneva, St. Charles, Elgin, Wheaton, Aurora, Downers Grove, Naperville, Romeoville, Joliet and Kankakee.

Serving greater Chicago and outlying surrounding areas in N.E. Illinois for over 20 years.

For assistance, please contact (312) 541-0049 for conference, meeting,
claim review or consultation.


Chicago Workers Compensation Attorney -- http://wc-chicago.com 1-1-09