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Recent Illinois Appellate Court Decisions

December 2015


Petitioner's claim for Workers' Compensation benefits was denied by Respondent based on just a six-day delay in notice, along with the observations of his direct supervisor that petitioner displayed no sign of injury on the alleged loss date. The Arbitrator concluded the denial of benefits was unreasonable, and penalties were awarded. The Commission reversed the penalties award, but this decision was itself ultimately reversed by the Circuit Court.

Noting that: a) Respondent had made no investigation into petitioner's claim whatsoever; and, b) regardless, the Act itself gives petitioner 45 days to report the injury, the Appellate Court upheld the Circuit Court concluding there was no just reason to deny petitioner's claim. The Court determined Respondent had failed to discharge its burden of showing the denial was reasonable. Failing to make any kind of investigation, and then denying the matter solely for a six-day delay, was not only unreasonable but showed bad faith. As such, the Arbitrator's original award was reinstated.

Attacking Medical Costs

November 2015

Petitioner settled two cases for $24,702.07, representing 20% loss of use of petitioner's right hand and 37.5% loss of use of her right arm. The settlement was consummated even though the provider claimed a balance was owed on billing arising out of the care it rendered to petitioner, mostly physical therapy. While there was no doubt that the balances remained outstanding, there was good reason for non-payment. They represented unreasonable and unnecessary care based on a Utilization Review secured by the Workers' Compensation carrier. Still, the parties wanted to settle the underlying Work Comp case. To achieve that purpose, a settlement was struck with the contract containing language obligating the insurance carrier to indemnify and hold petitioner harmless regarding any collection attempt made by the provider. This obligation included providing a defense.

When the provider did in fact sue the petitioner, BCM was retained to defend, making us, at least in name, "petitioner's counsel."

I filed an Answer and Affirmative Defense in behalf of petitioner, charging that the bills the provider was seeking to collect represented unreasonable and unnecessary care and treatment. Moreover, the charges exceeded amounts allowable under the Workers' Compensation Fee Schedule. The provider countered that any issues of Utilization Review were irrelevant and the Fee Schedule did not apply. It relied on the written contract that the petitioner had signed when she engaged the provider for care, arguing she had not performed under it, plain and simple. While I could not dispute the petitioner had signed the contract, I argued that any "failure" of the petitioner to live up to it resulted from a lack of good faith and fair dealing on the provider's part. (All contracts in Illinois contain the implied covenant of good faith and fair dealing).

Reform: An Up to the minute Primer (Redux)

November 2015

By Francis M. Brady

What follows is a summary of all the legislation¹ under consideration, or potentially under consideration, as of the end of October 2015, arranged according to the major reform issues.

Connecting the Injury to Work

The ease with which an Illinois worker connects her injury to her job unfairly expands the scope of workers' compensation. Legislation introduced this year seeks to redress this inequity by tightening standards concerning how the accident happened; where the accident happened; when the accident happened; and the quality of evidence necessary to prove all three.

The Senate Republicans introduced legislation addressing whether an injury is actually connected to a petitioner's job. In Floor Amendment 1 to SB0994, filed May 22, 2015, the Senate Republicans (and Governor Rauner, who supports this legislation) formalize the notion that activities that are: a) non-incidental to the worker's job or b) incidental to the job but also faced by the general public do not result in compensable accidents.²

Reform: An Up to the Minute Primer

June 2015

By Francis M. Brady

There has been a flurry of activity regarding Illinois Workers' Compensation Practice in this spring's legislative session. The Firm has been monitoring developments in both chambers. To date, action in the Senate has centered on reforms sought by the business community and supported by the Governor. The Senate measure denies benefits except where the work accident is more than 50% responsible for the employee's injury compared to other causes; limits the coverage afforded traveling employees; establishes credits for 8(d)(2) awards; and makes further cuts in the Fee Schedule.

Consideration in the House has followed a different path. There is legislation now pending focusing on the role of insurance carriers relative to rate setting and premium reduction. Other House measures, like those in the Senate, address causation and traveling employees though, unlike the Senate, they simply codify language from Appellate Court decisions which represents the current practice. House legislation does, however, create a right to contribution, though whether employers would gain any practical benefit from that right is questionable.

Ron Rascia Appointed Acting Chairman

December 2014

By Francis M. Brady

Governor Quinn has appointed Ronald A. Rascia Acting Chairman of the Illinois Workers' Compensation Commission, effective today. Chairman Rascia has been serving the Commission as General Counsel and Secretary.

Prior to joining the Commission in 2011, Chairman Rascia worked for nine years in the Office of the Illinois Attorney General as a supervising attorney in the General Law Bureau, defending State agencies in state and federal courts. As an attorney in the private sector, he served as General Counsel to Northwestern Golf Company and Platinum Financial Group. His tenure as Chairman was not specified beyond his "acting" status.

Former Chairman Michael Latz resigned on November 30th. Brady, Connolly & Masuda, P.C. joins the Commission in thanking Mr. Latz for his service and wishes him the best in his future endeavors.

BCM Presents to Arbitrators and Commissioners

July 2014

By John P. Connolly

At the invitation of Commissioner Michael Latz, I participated in the annual continuing education of the Illinois Workers' Compensation Commissioners, Arbitrators and Staff. The Chairman requested that I address the critical topic of the impact of workers' compensation costs in a depressed economy from an employer's perspective.

Detailed for the Commissioners and Arbitrators were the adverse exposures represented by wage differential and odd lot permanent total claims and their influence on businesses already here or thinking of coming to Illinois. Chairman Latz's invitation provided a welcome opportunity to apprise the decision makers of the outlook of the insurance industry and business community.

The Firm is proud of its efforts to educate stakeholders in the workers' compensation system. We welcome the opportunity to share our insights on areas of interests in recent case decisions. Topics that have recently been addressed by BCM lawyers include:

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
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