IL Workers Comp Reform: Aggravated DUI will be denied


On August 8, 2011, Governor Quinn signed Senate Bill1147 into law to prevent workers convicted of serious crimes from claiming workers compensation benefits.

Senate Bill 1147 denies workers compensation benefits for injuries sustained during the commission of 1) a forcible felony, 2) an aggravated DUI or 3) during a reckless homicide if those crimes resulted in the death or severe injury to another person.

According to a Chicago Tribune article, the new law was inspired by the Illinois State Police trooper's high-speed wreck that killed 2 sisters in down state Collinsville. The state trooper was reportedly driving more than 100 mph and using his cell phone on I-64 in southern Illinois when his cruiser crossed the median and slammed into another car killing the 2 sisters.  The public was outraged that the injured officer could apply for and perhaps receive workers compensation benefits resulting from his own outrageous conduct.  The trooper subsequently resigned and his workers compensation case was denied but even the possibility of collecting benefits caused the new law to be pushed into place as part of the new Illinois workers compensation reforms.

Now, after a worker is even charged with a forcible felony, an aggravated DUI or reckless homicide resulting in injury, the injured employee is prohibited from collecting workers compensation benefits until their criminal case is finally concluded.  The employer can terminate or refuse to pay benefits until the conclusion of any pending criminal case.

Under the new law, an acquittal or dismissal of the criminal charges does not guarantee receipt of benefits. After the criminal case, an injured worker who is not convicted will still need to prove entitlement to benefits just like any other injured worker but, a finding of guilty will prohibit benefits for injuries sustained during the criminal conduct because the injured employee is considered not to be “in the course of employment” during the commission of any of these crimes.

Usually an employee committing a crime would not collect benefits even without the new law.  Criminal activities are not considered to be in the scope of employment and workers committing crimes are generally not awarded benefits. Traffic offenses were not always included in that prohibition.  It is possible that an employee entertaining business clients or traveling on business might be guilty of drunk driving and recover benefits in an accident.  Now however, if the drunk driving results in injuries to a 3rd party and the employee is convicted,  he or she will be prohibited from collecting benefits.  Workers entertaining clients might want to think twice before driving under the influence. They may be working but their resulting injuries may not be paid and that would also include medical bills.

Conviction for driving drunk or under the influence of drugs and injuring another person will now prohibit the injured worker from collecting benefits including medical bills.  This new law slams the door shut on the possibility of workers trying to collect benefits if found guilty of injuring another person during otherwise criminal conduct.

Illinois Workers Compensation Attorney -- 8-22-11


Attorneys Fees on MSA Funds Confirmed in N.J.


The New Jersey Superior Court recently considered whether Medicare regulations and CMS allowed an attorney to recover attorneys fees for creating a settlement obtained on behalf of a client in a civil suit from the Medicare set aside funds itself.   Surprisingly, they said Yes.

The Court in Hinsinger v. Showboat  (L-3460-07, released 5/19/11) reviewed the provision in the Code of Federal Regulations 42 C.F.R. 411.37 permitting the reduction of procurement costs from MSP recoveries in conjunction with the CMS Memo of May 7, 2004 regarding attorney set up costs associated with MSA trust accounts and found no reason why attorneys fees shouldn't apply to procurement of MSA recoveries in civil settlements as well as other primary insurance such as workers comp.

This case would approve taking attorney's fees on procurement of workers compensation MSA funds as proper under the Code of Federal Regulations.  I know of no controlling case law in Illinois governing the subject to the contrary but, the propriety of taking attorneys fees on funds created for MSA accounts has come up many times in discussions.

This New Jersey civil case would seem to stand for the proposition that attorney's fees for procurement of MSA funds are proper in both personal injury and workers compensation settlements.  42 C.F.R. 411.37 permits the costs borne by the party against which CMS seeks to recover be deducted from Medicare's recovery amount.

Read the Hinsinger article on the MedVal  Official Medicare Set Aside Blog by Jennifer Jordan and Ryan Roth.   It happens to be my best source for keeping up with all things Medicare Set Aside and MSP compliance.   I have previously endorsed Jennifer Jordan's excellent new book on MSP Compliance and Medicare Set Asides .  It is a must read for attorneys and industry professionals involved in MSA or MSP compliance, mandatory claim reporting and those who need insight into CMS  requirements and procedures.   The book covers the regulations, the statutory revisions and relevant case law all in one  place with practical instruction, commentary and recommendations for MSP compliance. 

The problem remains presently that CMS and Medicare do not currently recognize any reduction in the approved MSA funds for attorneys fees for workers comp.  It seems a fairly standard practice in Illinois to allow attorneys fees on most subrogation claims where the settlement funds recovered for the client are paid out to a 3rd party lien holder interest pursuant to the Common Fund Doctrine.  It remains to be seen however whether regular Medicare coverage will kick back in on an MSA fund account that has been reduced for attorneys fees. 

At least in a civil case, the New Jersey ruling would tend to support a claim that Medicare's interests in the litigation were adequately protected even where the MSA future medical funds were reduced by attorneys fees.

Contact our office to speak with an  Illinois workers comp attorney to discuss open medical rights and Medicare set aside fund coordination in Illinois workers compensation claims.

Chicago workers compensation attorney  -- 8-18-11