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Voc-Rehab may have Forever Changed for the Worse

By Eugene Keefe

Tuesday, November 27, 2012 | 705 | 0 | min read

We recommend all business observers take a long hard look before you make the decision to appeal workers' compensation cases past the Circuit Court level in this state. We are letting our clients know the math on getting a solid defense ruling or even a dissent from an Illinois workers' compensation appellate panel member are less than one in 20 rulings.

In our view, we have to pick our battles very carefully. There is no discernible reason to spend the money to receive an Appellate Court “beat-down” like this one. If things don’t go well in the Circuit Court, adjust around what you have to deal with and make the tough claim decisions. Why have the veteran and knowledgeable Appellate Court justices joined together to unanimously “clobber” every single defense issue you raise?
 
In W.B. Olson, Inc. v. IWCC (No. 11 L 50222, issued Nov. 5, 2012), claimant was a union construction laborer with a knee injury in 2006. He underwent two knee surgeries and then an unbelievably long period of physical therapy and later work-hardening followed. He later underwent total knee replacement. Claimant underwent two different functional capacity exams that we feel were provided to maximize recovery in this litigation by giving claimant the “golden diagnosis” of permanent restrictions. We also note he was offered clerical work at the company’s headquarters and the treating doctor limited his driving to avoid that job and employer accommodation.
 
In early 2008, the matter was tried on an emergency petition and claimant was awarded 104 weeks of temporary total disability—neither side appealed. Claimant’s counsel then got a vocational rehabilitation counselor who met with claimant and fiddled around for years but never found claimant work.
 
On his own, claimant found a potential job at a trucking company. The problem that arose is claimant purportedly wasn’t able to get motor vehicle insurance to drive the vehicle because he hadn’t been driving for two of the three prior years. We haven’t heard of that insurance requirement and would love to hear from the insurance brokers among our readers if there is truly such an industry-wide insurance limitation out there. One would have to wonder how anyone might break into the industry with that odd driving/insurance requirement.
 
In late 2009, the employer hired an expert voc-rehab counselor and his services were refused at the direction of claimant’s counsel. Not sure how the employer was barred by the Commission from providing its own vocational evaluation expert at its own cost—there isn’t a Rule or Section of the Illinois Workers' Compensation Act that precludes it. We will address this issue in further detail below.
 
In early 2010, the matter was again tried on a 19B petition for temporary total disability. We can’t tell why they had to try it again if benefits were ongoing. After the hearing, another 116 weeks of TTD was awarded. Then the appeals began—the appeals continue to present and, guess what, another 100+ weeks of TTD has to again be pending. We consider it comical/ludicrous/silly to see six-plus years of TTD being paid when this man clearly can do some sort of work and isn’t unemployable. That said, let’s hope the employer, its defense counsel and its third-party administrator/carrier aren’t going to drag this mess out any longer and take this ruling to the IL Supreme Court and gain even more notoriety.
 
In summary, this unanimous Appellate Court ruling:
 

  • Provides claimant attorneys may unilaterally select and hire the sole voc-rehab experts for their clients—in our view, the arbitrator has to approve it.
  • Provides claimant attorneys may be able to indiscriminately block Illinois employers from providing voc-rehab counseling at their own expense—again, this is subject to arbitrator approval.
  • May require Illinois employers to pay for the voc-rehab counselors selected/hired by claimant attorneys.
  • Implicitly blocks Illinois employers from disputing the length or scope of voc-rehab being provided by the expert selected by the claimant attorney.
  • Implicitly indicates whatever the Illinois Workers' Compensation Commission does in ruling on voc-rehab isn’t appealable—we ask other defense firms to strongly consider/exhaust all other options prior to taking such claims to this appellate panel to reinforce similar rulings.
 
We dislike every single aspect of this controversial ruling, but we caution our issues are not with the members of the Illinois Appellate Court, which simply followed longstanding and well-settled Illinois law. As we outline above, we have no idea why they were even asked to rule. Moving forward, our main problem will be defending such claims after this published ruling before the Illinois Workers' Compensation Commission and the wildly aggressive petitioner/plaintiff lawyers who practice there. We assure our readers this shocking and anti-business ruling may represent a paradigm shift in handling the biggest and most expensive Illinois workers’ compensation claims “odd-lot” total and permanent disability claims and wage-loss differential claims. Such claims have values starting in the middle six-figures and move rapidly into the middle seven-figures.

If there was a goal to cut Illinois workers' compensation costs, this decision doesn’t follow that model. This ruling, in our view, reverses the trend toward even minimal employer control of workers' compensation claims and may give complete control to the claimant bar. In our view, this ruling signals exponentially higher workers' compensation permanent partial disability reserves and payouts. We hope someone in the Legislature is listening because they are sure to hear moaning and wailing from business leaders about this one.
 
It is also our opinion there are very questionable ethics present when a claimant attorney is allowed to select an expert who will undermine the employer’s defenses while forcing the employer to foot the bill for their tormentor. What if the expert charges $5,000 per hour? What if the expert, as happened in this claim, provides never-ending and effectively worthless voc services over several years? There are no cost limitations on voc-rehab expert costs in any Illinois workers' compensation fee schedules. There is no stated or recommended duration for voc rehab in any rule or the Illinois Workers' Compensation Act. We assume several hundred thousand dollars in TTD/maintenance has been paid in this disastrous claim while this voc-rehab expert didn’t get this guy back to work. It is all being left up to the whim of claimant’s counsel, who can continue to get years and years of TTD/maintenance paid by the employer until a giant settlement supplants all of it.
 
What can we learn from all of this?
 
It is our view voc rehab should be provided much earlier in many Illinois workers' compensation claims. If you have claims where the injured worker is off work and on TTD more than 120 days, we recommend you consider getting a voc-rehab plan with your own expert into place. It doesn’t always have to be full voc-rehab counseling and job training. Just carefully consider getting a voc-rehab plan into place. When you have a voc-rehab plan, get together with the other side and bring the plan to the arbitrator assigned for their guidance. If you move to get voc-rehab first, you may be able to get and keep your own expert and not pay to have the other side’s expert shoot your claims/reserves into the heavens.

Stop wasting money and time on functional capacity exams. One of our readers advised this decision stands for the proposition that an independent medical examiner can’t order a functional capacity exam. If you read the decision, it appears the Commission wouldn’t approve a third FCE; we wouldn’t have wasted the time and money on the first two!! We truly don’t care if that is an offshoot of the bigger issues being addressed—we dislike and despise the whole concept of FCEs that are wholly unscientific and many times, silly.

In our view, it is very, very rare to see an FCE that provides an unexpected level of work restriction. By that we mean, someone with an operated low back isn’t going to be found to be capable of lifting 100 pounds in an FCE in this state. We assure you we can predict the outcome of most FCEs and one doesn’t need a crystal ball to do so.

Particularly in the construction and trucking industries but in almost all Illinois workers' compensation claims, when the defense side asks for an FCE, it is usually a journey to claim disaster. If you aren’t sure, claimants’ counsels love to have the defense industry collectively shoot ourselves in the foot with such “testing.” Claimant counsels very carefully coach claimant on precisely what to do to get the “golden diagnosis” of permanent restrictions.

Eugene Keefe is a founding partner of Keefe, Campbell, Anderson, Biery & Associates. This column was reprinted with his permission from the firm's client newsletter.
 

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