Ideas to Control Comp Costs
Wednesday, July 22, 2009 | 0
By Eugene F. Keefe
Synopsis: Workers' compensation costs are spiking in every direction. We were asked by a client for strategies to control them in Illinois .
Editor's comment: Here are some thoughts.
Hire carefully, particularly when and if the economy recovers. One concern we all have is hiring workers' compensation system abusers. There is nothing more galling to a human resources or risk manager to find out after hiring a worker to then learn they have filed six other claims and already received six hefty settlements and are now looking to you as Lucky No. 7. There are a couple of legal strategies in the hiring process that may assist you to avoid that status. Please don't hesitate to consult with us, as veteran defense attorneys in the process we don't suggest you implement these without advice of counsel.
First, make sure your employment applications allow you to fire someone for lying on the written application or during the interview process. If you don't do so, change your policies right now. Next, read the federal ruling in Carter v. Tennant Co. and put the "magic questions" from that case into your employment application forms. The ruling is on the web at: http://altlaw.org/v1/cases/1132324. If you are not familiar with the ruling, it came from the Seventh Circuit Court of Appeals. All of Illinois is within the Seventh Circuit. The next higher court after the Seventh Circuit is the United States Supreme Court. The Supreme Court did not take the case and therefore didn't change the ruling, so it remains the last statement of the law on the issues covered.
Carter v. Tennant Co. holds:
An Illinois employer cannot ask whether an employee ever:
- Filed a claim for benefits under the Workers' Compensation or Occupational Disease Act.
- Received benefits under the act.
The court expressly found it permissible to ask a prospective employee if they:
- Ever had any occupational injuries, accidents or illnesses.
- Lost time from work for a work-related injury or illness.
- Saw a doctor for any work-related injury or illness.
We recommend all of our clients and readers modify their employment applications to add the last three permissible questions. If you have questions or concerns, let us know.
Second, consider criminal and background checking for all but the most menial of employment positions. If you are hiring truck drivers, construction workers or for any position that pays over $15 per hour, you are incurring a substantial liability and should be sure you are hiring someone who is otherwise a solid citizen. There is a moderate cost you have to balance against the cost of hiring blindly.
Third, consider post-hire Fitness for Duty Evaluations. We have been advised such evaluations have questionable legality. We consider that legal position impractical and misguided. Illinois is a state where it is dramatically easier to aggravate an existing condition that it is to have what many of us consider an accident. We still subscribe to the wildly liberal theory that the work doesn't have to be "the" cause; it just has to be "a" cause. We had a woman walk onto a construction site with pre-existing carpal tunnel syndrome. She worked six days and the new employer was found by the Illinois Appellate Court to be fully responsible for the whole condition, including surgery, lost time and permanency. Our clients felt like John Dillinger had just driven up with his tommy-gun to steal thousands from them. Also, as we have reported in the past, one Illinois law firm touts their success in getting two major "life-changing" wage loss settlements for the same worker!!
We are confident the condition could have been found in a Fitness for Duty Evaluation performed by someone like Dr. Michael Panuska or any solid provider. Again, there is a cost involved but it has to be worth it when one compares the concomitant workers' compensation exposure for someone who has had a cervical fusion that you have innocently hired for a job that involves heavy lifting. Such a hire is a ticking time bomb waiting to go off. If you don't have someone ask the worker about the fusion and their safe lifting range, they aren't going to tell you and you may have to pay thousands.
Fourth, after you have hired someone consider Enforced Accident Reporting on a regular basis. We reviewed this concept in last week's KC&A Update and won't repeat it here. If you need the form to consider it, send a reply.
Fifth, in heavier jobs, Find/Source/Struggle to isolate and implement permanent light work, if at all possible. While it initially sounds silly; we assure you one of the biggest opponents of reasonable accommodation under the ADA are Illinois ' hyper-aggressive labor unions. They want their workers to enjoy the largesse that comes from our wage loss differential benefits system. We hope some major Illinois employer some day files suit to block unions from not allowing reasonable accommodation for injured workers.
For truck drivers, construction workers, nurses and other folks involved in "heavy" work, we consider permanent restrictions to be a "golden diagnosis." Please don't think it happens by mistake injured workers are told to ask the doctors for them. When a truck driver or other worker who arguably has to lift up to 75 pounds is told by his physician he can no longer lift more than fifty pounds, the employer is thrown into a maelstrom of Illinois wage loss differential benefits. Your reserves, claims experience and overall payout will rise dramatically. The employee may start into what we call "bad job, right away" and seek a low paying job to maximize their wage loss claim.
All of this can be avoided if you can find the worker a job within his/her restrictions as ADA requires. The work doesn't have to actually be available if you are laying off in a bad economy it has to be something you are continuously ready to offer. Yes, we understand your unions may stand in the way you have to go to the unions and ask whether they enjoy having members in Illinois or not. We assure you the unions take advantage of the fact most managers don't understand the nuances of workers' compensation in negotiations. If you need help with it, send a reply.
Sixth, Avoid litigation in accepted claims whenever and wherever possible. We are aware of a major Illinois employer in downstate Illinois that saved thousands if not millions by implementing a pro se settlement program to resolve accepted workers' compensation claims. Their idea was to reach out to injured workers and explain the system and where they had accepted "hard-tissue" claims involving surgeries and fractures simply make a fair offer upon the worker reaching MMI. Understanding this doesn't truly help us as defense lawyers, we are still feel as counselors to Illinois business, we have to let you know it is a strong claims strategy. Some times you may want to do "pink-sheet" settlements where claimant is brought before the IWCC and sometimes you may want to do "green-sheet" settlements that are simply payment of permanency you have to fully understand the difference so if you have questions, send a reply.
Also, if you have run a pro se program and still have lots of workers who "lawyer-up" before you get a chance to talk to them, after their claim is closed, you can and should ask such workers how to avoid future litigation. If you want thoughts and concepts in implementing a pro se program at your work sites, send a reply.
Having given you six strong money-saving concepts, we ask our readers for their thoughts and ideas. We have a number of clients asking every day how to cut overall litigation in this state and what the best path might be for their organization. We know many of our readers are brilliant and we ask that you shine your intellect and best thoughts in our direction. If you have any further ideas or concepts, please send a reply.
Synopsis: Some times one has to sit back and just shake your head — Dangling Doritos® ruling changed from compensable under "personal comfort" doctrine to compensable under the "Good Samaritan" doctrine.
Editor's comment: One wag in our office pointed out the Appellate Court probably could have also found it compensable under the "traveling employee" doctrine because the worker was running or "traveling" at the time of injury. Like the recent "stray bullet" claim, most observers are starting to feel rulings such as this epitomize a state where there are so many ways for a claim to be compensable, there is no way to ever defend an Illinois employer.
As you may recall, we reported a claim that got national attention in the workers' compensation press when a worker ran and jumped into a concessions machine to try to dislodge a bag of Doritos® that wouldn't fall under its own weight. The poor guy broke his hip and had expensive surgery. The poor and recently defunct employer is now responsible for all of it when they just wanted their workers to be able to have a simple convenience.
In Circuit City Stores, Inc. v. Illinois Workers' Compensation Commission (No. 2-08-0722, this replaces original opinion and was filed July 9, 2009), our unanimous Appellate Court, Workers' Compensation Division ruled on rehearing by admitting they were initially wrong. They found the "Good Samaritan" doctrine, rather than "personal comfort" doctrine applied when the employee was injured while coming to the aid of co-worker seeking personal comfort.
The court ruled the employer had "notice" of the arguably defective vending machine which was made available to employees for their use and personal comfort. Therefore, the employee's hip fracture injury, suffered helping coworker by trying to dislodge product from vending machine, was reasonably foreseeable.
With respect to the august members of the court, we don't agree even a little bit. They knocked out their earlier ruling when they noted the employee wasn't addressing his own "personal comfort" but someone else's. It is our opinion their expansion of the "Good Samaritan" doctrine is inappropriate and wildly overbroad. A Good Samaritan is someone who steps up to save the life of a stranger or otherwise minimizes imminent peril. It is our view this misguided quest for Doritos® should only be applied if the other worker needed the chips to stay alive.
It would have been a lot easier for both workers to simply track down someone who could have opened the machine up and provided the food or a refund. The worker who acted rashly to cut a corner in a wholly unpredictable way should not be awarded benefits in a fashion that encourages others to act without regard for safety.
If you have such machines in your workplace (and we do), we suggest putting up signs indicating employees should not strike, run at or otherwise shake the machines but contact management for assistance. We appreciate your thoughts and comments.
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Eugene F. Keefe is a partner in the Chicago law firm of Keefe, Campbell & Associates.
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