Despite Recession, Illinois Supreme Court Hikes Comp Payouts

Tuesday, June 2, 2009 | 0

By Eugene F. Keefe

Synopsis: Illinois Supreme Court shocker: In the middle of this recession, you now have to send the underwriters back to review and probably raise reserves on your biggest Illinois claims. Please don't shoot the messengers.

Editor's comment: We wonder if our highest court has noticed all the empty homes that no one is buying and all the cars that are sitting rusting on dealer lots that are closing and all the jobs that may be leaving our state. Outside the halls of the Illinois Supreme Court, we see labor's political forces amassed to include the Illinois Trial Lawyers Association and union representatives apparently devoted to making Illinois a graveyard for U.S. business. Their bent seems to be a goal to make our workers' compensation benefits as painful and as expensive as possible. We assure all of you this ruling will add a significant level of confusion and uncertainty to the supposedly structured workers' compensation benefit process. When all is said and done, the ruling may also affect only about one-two hundred Illinois citizens annually. With the awful anti-business message it sends, why did they bother?
 

The Illinois Workers' Compensation Act was initially passed by the Illinois legislature 100 years ago in 1909 following a disaster at the Cherry Mine in central Illinois . We assert Illinois now has the highest total and permanent disability maximum and minimum rates in the world. Right now, an injured Illinois worker making $50 a week who is adjudicated T&P gets $461.78 per week or $24,012.56 per year. The maximum is a hefty $1,231.41 or $64,033.32 per year. An Illinois worker doesn't hit the max until they make $96,049.98 unless Illinois ' wacky method of calculating the average weekly wage under Sylvester is used.

For a 30-year-old worker who has a 45-year life expectancy, the full undiscounted value of a total and permanent disability is $2,881,499.40. While we don't want anyone to suffer a catastrophic injury, if it happens, we consider that amount more than satisfactory when one understands the worker also gets get unlimited on-demand medical attention, home and auto improvements to adjust to their disability and favorable public parking places.

Until last week, the highest benefit payable under our Workers' Compensation Act for a single injury was the lifetime weekly benefits outlined above for a total and permanent disability. Three years ago, our friends in Illinois labor demanded and got funding from Illinois business for COLA increases guaranteed to keep such benefits consistent over the entire life of an injured claimant. Again, while some states do and some states don't, it is hard to fight over COLA benefits for statutory T&P claimants.

So what happened last week? Well, the Supreme Court may have arguably doubled this already gigantic benefit. If they didn't double it, they increased it greatly.

In Beelman Trucking v. Workers' Compensation Commission, claimant suffered a very serious injury involving paralysis to both legs and one arm along with amputation of the other arm at the elbow. We join with the employer in extending our concerns for this severely injured worker. There is no question he is entitled to lifetime statutory total and permanent disability benefits at the appropriate rate - he had already received $274,000 from his employer at the time of the hearing. We don't understand why such a claim needed to be litigated in any way. An attorney taking such a claim gets a statutory $100 fee pursuant to Illinois law. It would appear obvious he found a zealot to represent him who then took the matter through five different levels of litigation over 15 years, probably costing the employer tens of thousands of dollars fighting over this mess.

What the arbitrator and commission did, for the first and only time in Illinois history is not only allow him to prove-up his right to statutory total and permanent weekly benefits for a single injury, they awarded additional or double weekly benefits on top of lifetime benefits!! As our system provides for weekly benefits only, one has to wonder when the benefits following lifetime benefits might be due. Do they have bank accounts that take weekly deposits in heaven?

What the arbitrator and commission panel did instead was to "deform" the weekly benefit system in an unprecedented fashion - they doubled the weekly benefit, requiring the employer to now pay "permanency" twice. The method used was to look at the statute that provides weekly lifetime total and permanent benefits to anyone losing the use of two limbs and confirm that is one benefit under the Act. They then ruled, if someone loses more than two limbs they get additional weekly benefits for the other lost limbs without any "credit" for the T&P weekly benefit already clearly due.

In this case, they provided a lifetime weekly total and permanent benefit for the undisputed loss of the legs along with another 100% loss of use of each arm or 253 weeks of additional benefits consistent with amputation losses for each lost limb. The additional amount awarded could be as high as $1,231.41 per week times 506 weeks or $623,093.46. The additional amount can be no less than the minimum amputation value of $233,660.68. Ouch.

As you may be able to tell from the tenor of this article, we consider that outcome preposterous under the law as it has evolved. As workers' compensation law professors, such a ruling is a paradigm shift away from the clear language, intent and scope of the legislation that has been in place for 100 years. We also point out the clear alarm for all Illinois employers that chaos appears to be afoot - we have no idea where these folks are going to drive such a concept and what new claims may ensue. We pray calmer heads will prevail and our hearing officers, judges and justices return to a more traditional reading and interpretation of the "plain language" of the Act. 

Although the arbitrator and commission ruling was rubber-stamped by the Circuit Court, the Appellate Court, Workers' Compensation Commission Division should be applauded for reversing it with a very solid ruling confirming how obtuse the legal theory was. Although we do not always agree with their rulings, these justices continue to be a gateway for common sense and tradition in their management of our workers' compensation legal system. We like to characterize them as liberal yet careful jurists. Again, one would have thought this case would have ended with this Appellate Court reversal. However, the Supreme Court agreed to take the case for reasons known only to the members of that court.

In Beelman Trucking, the Supreme Court came up with a theory to allow double weekly benefits for a single accident for the first time in Illinois history. It is worth noting the Illinois Trial Lawyers Association's amicus brief was mentioned in this ruling. At no point do they mention the fact all permanency benefits arising from a single accident for the last hundred years have been paid weekly and now will have to be double-paid.

And try to imagine how happy Sam Beelman, the president of Beelman Trucking had to be to learn the Illinois Trial Lawyers Association lined up to file a brief and thereby advocate against his company. We don't feel any single business entity has any chance against ITLA's political clout and campaign largesse; certainly not a modest-sized southern Illinois trucking concern. If ITLA writes a brief to the court, you can bet the court will listen more than carefullyat this level of the judicial spectrum, whatever ITLA wants, ITLA gets. Again, as the future legal fees on such claims should be capped at $100, why did ITLA care?

The court reaches the conclusion that loss of use of two limbs does entitle a worker to lifetime weekly total and permanent disability benefits - this aspect of the award was proper and undisputed. However, the court then finds the right to permanency doesn't end there and any other injuries suffered in the same event now entitle the injured worker to double their weekly recovery.

So, we ask all of our readers the obvious question, why isn't this claim a "double" total and permanent disability? If the answer is that wouldn't make sense, we don't think any of this makes any sense. The court interprets statutory total and permanent disability to arise from a loss of use of two members. This guy sadly lost 100 per cent of all four members - why doesn't he get lifetime benefits twice? The statute doesn't provide "credit" for the first T&P award, does it?

We read our highest court's ruling as somewhat blurring - they break down the word "case" and note respondent's brief outlined "case" meant "proceeding" and the court's majority felt "case" means "incident" or "example." It is unclear why the court went to such great lengths to analyze these terms since it is something only a lawyer could struggle to make sense of. From the perspective of John Q. Public, the bigger and more important point is for the last 100 years, Illinois employers have been taking full care of any injured worker to pay unlimited on-demand medical for life along with a very generous tax-free weekly T&P benefit with cost-of-living increases. However one dices and slices the word "case," do we really have to throw literally hundreds of thousands of dollars on top of that? Can and should Illinois business have to afford it?

So what do we have to do now? Well, we figure there are three things. One, you have to understand there is blood in the water and sharks swimming all around looking for fresh meat. Where is the next launching place for ITLA to sink its teeth into? These folks have to be emboldened by this victory and looking for new prey to shoot, field-dress and bring back to their membership. We assure you they are going to be advertising for this new business as rapidly as possible. We are also sure that finding new paths to stack benefits will be the next trend at the IWCC - if an Illinois worker is injured and gets a "lazy lot" total and permanent award, can they now go back to the Commission and ask for specific loss for body parts that were injured but did not cause the restrictions that led to total and permanent disability? Is this a new method to stack double weekly benefits? If you can think of any other way benefits could be stacked in this fashion, please send it along and we will share with our readers.

Second, please note this ruling affects all pending claims that have not been settled or tried. One arbitrator who knew of this ruling already advised he had a total and permanent award where he is going to have to add permanent loss for a shoulder surgery on top of the T&P award. We therefore feel all underwriters have to take a fresh look at their biggest claims and reset reserves consistent with this ruling. Reserves on any pending quadriplegic claim just went up around a minimum of $230K and possibly as high as $623K. Triple amputees or paralysis victims will also see concomitant boosts. If you have questions or comments on reserving major cases following this precedent, send the inquiry.

Finally, we have to get to our legislators and try to teach them how bad things are getting in this state. We also ask you to consider joining the Illinois State Chamber and its Employers Council. They remain out on the point for Illinois business in the fight to try to bring workers' compensation benefits back to some semblance of reasonableness. While this ruling doesn't affect thousands of claims, it still sends a brutal message to Illinois business and prospective employers. We assure all of our readers most companies with Illinois operations are holding onto cash in their major claims; it is painful to have to tell them to boost reserves and tie up even more cash and credit while they are fighting for their survival.

The ruling is on the web at: http://www.state.il.us/court/Opinions/SupremeCourt/2009/May/106680.pdf. Please don't hesitate to send your thoughts and comments.

 
   
Synopsis: Can sunshine cause a compensable injury? This is something risk and safety managers have to consider and address in your workplace.

Editor's comment: While looking up other things, we saw an article noting several recent rulings around the country where skin cancer was found to be compensable due to workers being out in sunshine a "lot."

We want all of our readers to understand skin cancer is one of the fastest growing diseases in the United States. Sunlight contains ultraviolet (UV) radiation, which causes premature aging of the skin, wrinkles, cataracts and skin cancer. The amount of damage from UV exposure depends on the strength of the light, the length of exposure, and whether the skin is protected. There are no safe UV rays or safe suntans. The incidence and prevalence of skin cancer in the United States has reached epidemic proportions. One in five Americans will develop skin cancer in their lifetime, and one American dies every hour from this devastating disease. Melanoma, the most serious form of skin cancer, is also one of the fastest growing types of cancer in the United States 62,000 Americans are expected to be diagnosed with the condition this year. Nonmelanoma skin cancers are less deadly than melanomas. Nevertheless, left untreated, they can spread, causing disfigurement and more serious health problems. There are two primary types of non-melanoma skin cancers. These two cancers have a cure rate as high as 95% if detected and treated early. The key is to watch for signs and seek medical treatment.

Another concern is cataracts. They are a form of eye damage in which a loss of transparency in the lens of the eye clouds vision. If left untreated, cataracts can lead to blindness. Research has shown that UV radiation increases the likelihood of certain cataracts. Although curable with modern eye surgery, cataracts diminish the eyesight of millions of Americans and cost billions of dollars in medical care each year. All of these problems can be lessened with proper eye protection from UV radiation - if your troops go outdoors, start requiring sunglasses in the workplace.

Please remember Illinois does not require work to be "the" cause of a condition; just "a" cause. If someone is regularly out in the sunlight and is unprotected, an Illinois arbitrator and the commission panels may award full benefits. When assessing the work-relatedness of skin cancer, claims handlers and risk managers should look carefully at non-work-exposures: hobbies such as hiking, fishing, boating, outdoor sports, surfing, swimming or simply tanning. Balanced against these exposures will be the work setting and the levels of sunlight exposure present.

If your workers are regularly outdoors, demand and enforce a safety requirement they remain protected by clothing, sunscreen and sunglasses. Workers should be asked to periodically examine themselves for skin cancer warning signs, including changes in size, color, surface characteristics, shape, outline or asymmetry of a mole or other pigmented skin spot and any bleeding or crusted sores that won't heal. If skin changes are noticed, workers should be checked and treated by an occupational health doctor as early as possible.

While the case law remains limited, there are examples of compensable skin cancer rulings where benefits were awarded to a limousine chauffeur in New York and an architect in Texas . More rulings are certain to follow. It is safe to assume the burden of proof remains on the employee to show the cancer is work related, but this burden is now supported by substantial medical evidence. You don't want to be the first Illinois employer to get socked with a hefty award of medical bills, lost time and permanency for this rising problem.

As far as length of employment prior to diagnosis goes, it usually will not matter. As in the case of repetitive trauma injuries, the most recent employer may be on the hook for coverage, even if the employee has only been working for a few days or weeks. This concept is another strong basis for implementing preemployment fitness-for-duty physical examinations with folks like SafeWorks Illinois .

We note employers should and must take steps to prevent work-related skin cancer by sun screen and enforcing dress codes designed to minimize exposure. Employers should stick with the basics: provide and enforce the use of high SPF sunscreens and require appropriate head gear. Any time you see a worker in the hot sun who is uncovered and without a hat; please assume the cancer issue is simply being ignored by the employer and benefits may be later awarded - you won't have any way to defend the claim.

We hope Illinois employers take action before the commission and courts force the issue. This is a known risk and there are proven remedies. It requires awareness and common sense to understand an ounce of prevention is worth several thousand dollars of cure. We also feel this should be discussed at safety and tool-box meetings so employers, at a minimum, are sharing this information with exposed and high risk workers. Our recommendation to all of our readers is to put high SPF sunscreen on your bathroom sink - brush your teeth, comb your hair, take a vitamin and put on sunscreen to prevent cancer. Please forward your thoughts and comments.



Synopsis: Web-cams for the Illinois claims industry, part III.

Editor's comment: We want to follow-up to tell you this is a concept we feel should and must be used by all claims handlers.
           
Here are some additional thoughts:

•  Web-cams don't have a track record, because no one is using web-cam statements yet. Anywhere. But we are confident they are coming.
•  Always ask the witness for their permission to take their statement. Always confirm the witness is freely and voluntarily giving their statement and is telling the truth on all issues to the best of their ability. Ask them if they will tell the same story at court and under oath when and if called.
• Most of our clients and insurance carriers still use hand-written statements that we consider illustrative but basically worthless. Handwritten statements don't tell a claims manager, adjuster or defense attorney the true story of the strength and demeanor of a rebuttal witness. It is much more compelling to actually have someone speaking to a camera and saying precisely what they would testify to if asked in court under oath.
• The great thing about web-cams is the claims handler can take a statement from someone at their workplace and grill them to your heart's content without leaving your desk. The cost to your company is about $50 for your desk and $50 for the location at the workplace along with the cost of a blank CD-Rom or DVD. That isn't much money to allow you to view the strength of your defense(s) in a major claim. And you can easily e-mail the file to your defense attorney for their thoughts.
• If the person giving the statement seems evasive or hiding something or making something up, it truly helps to hear and see it. And if three people giving such statements totally corroborate the claimant, you had better accept such claims.
• Please understand the recorded CD or DVD and the statement on it isn't admissible by itself - it is the definition of a hearsay statement. However, the person taking the statement might be able to testify about what was said in the statement under the right circumstance.
• The person in the video can always confirm it was their statement and was accurate when recorded. It is a consistent prior statement. The witness can also later deny or change what they said or "clarify" it. It will be up to the arbitrator to rule when and if they are telling the truth.
• In the right circumstance, the recorded statement legally can and should be used to help jog someone's memory. In evidence class, it would be called "past recollection recorded." Any witness can review it before or during testimony to refresh their recollection.
• As to refusing to participate in a web-cam statement, we don't think your company should fire people for not cooperating in an accident investigation - you may get sued for doing so. But you certainly can tell them it is your policy and they need to follow policy.
• If the injured worker doesn't cooperate with an investigation, you shouldn't fire them but, if there are other facts supporting it, you could deny the claim.
• And we would truly ramp up a complete accident investigation if the injured worker avoided giving a web-cam statement.
• We are also hoping there are Petitioner/Plaintiff lawyers who would drop claims if you had two or three rebuttal witnesses give web-cam statements confirming the injured worker was lying.