NEWSLETTER - June 2008

Back to Newsletter Index...

June 2008

We are pleased to announce that Kathleen Ulbert has been named a partner at Inman & Fitzgibbons Ltd, effective June 1, 2008. Kathleen is a 17-year veteran of the Worker's Compensation Commission and Circuit Court venues and has been with us since 2005. Congratulations Kathleen!

Also in this newsletter, we have news of four new associates joining the firm, a victory before the Worker's Compensation Commission substantially reducing an award to a claimant, a summary of how the Worker's Compensation Commission has handled utilization review in cases that have been tried since the 2005 amendments were enacted and a summary of a favorable retaliatory discharge decision from the US Court of Appeals for the 7th Circuit.

---

• Firm Happenings
• Case Law Updates
  1. 7th Circuit Court Of Appeals Finds Termination Of Injured Worker Pursuant To Company's Policy Regarding Extended Medical Leave Does Not Constitute Retaliatory Discharge
  2. Utilization Review Scorecard Shows That The 2005 Amendments To The Wca Were Not All They Were Cracked Up To Be In Terms Of Saving Employers Money On Medical Costs

---

Firm Happenings

We are pleased to announce new additions to the firm. In recent weeks we have added Colin Mills, Jim McGuiness, Steve Miller and Amy Collins as associates. Colin was admitted to practice in Illinois in 2005, while Jim, Steve and Amy were admitted in 2006. All have litigation experience prior to joining the firm and are welcome additions.

Tom Fitzgibbons recently posted a victory before the Worker's Compensation Commission on his appeal of an Arbitrator's award of a permanent and total disability award. The Decision of the Arbitrator awarded the claimant $374.30 per week for life. With the claimant's life expectancy of 30 years, the award totaled approximately $583,000.00, with a present cash value of approximately $300,000.00. The Commission modified it to 70% man as a whole and, including the TTD awarded, the total award was reduced to $132,970.61.

The petitioner was a 48 year old former professional soccer player in Kosovo who first injured his left knee in the 1970s. He re-injured his left knee while working for our client in December 2000 from “bending and lifting activities at work.” The petitioner also claimed to have re-injured his left knee while working at the insured in October of 2002 when a pallet slid off of a forklift and hit him in the left knee.

After an extensive period of treatment, one of the petitioner's treating physicians opined that he could only perform sedentary work on a permanent basis, and that he was a candidate for total knee replacement. We obtained surveillance in 2003 which showed the petitioner walking without a limp and squatting. A subsequent IME confirmed that the petitioner had nothing more than a contusion, was at MMI, and could return to work full duty.

The petitioner's vocational rehabilitation counselor opined that it was unlikely that the petitioner would be able to induce an employer to hire him instead of other equally qualified candidates. There was also a language barrier given the fact that the petitioner only spoke Albanian.

As noted, the Arbitrator awarded a permanent and total disability. On Review to the Commission, Tom argued that our labor market survey found a number of jobs that met the petitioner's work qualifications and restrictions, and that the petitioner did not offer any evidence that he pursued these or any other jobs. Tom also argued that our surveillance showed the petitioner to be capable of much more than he was reporting to his medical providers. The Commission found that the petitioner failed to prove that he was permanently and totally disabled, and reduced the value of the award by nearly 80% to a PPD award to the man as a whole.

---

Case Law Update

7th Circuit Court Of Appeals Finds Termination Of Injured Worker Pursuant To Company's Policy Regarding Extended Medical Leave Does Not Constitute Retaliatory Discharge

One recurring issue for employers when faced with workers injured on the job who require extended periods of lost time due to their injuries is whether such employees are immune from company policies that call for termination of an employee after a certain period off of work. Employers are always subject to the potential for a retaliatory discharge claim when an employee who is off of work or on light duty due to a work injury is terminated for cause, so the goal is to insure that such a claim cannot succeed.

In Dotson v. BRP U.S. Inc., the 7th Circuit upheld a District Court judge's application of Illinois law to find that termination of an injured worker who had missed 12 weeks of work on account of his work injury was proper pursuant to the company's absenteeism policy. The claimant, Dotson, was injured at work, authorized off of work and was receiving TTD. When his period of lost time exceeded the company's 12 weeks' leave policy, BRP terminated him, and Dotson brought a retaliatory discharge claim.

The District Court granted BRP's summary judgment motion on the basis that Dotson could not establish a causal link between his discharge and the worker's compensation claim. The Court of Appeals affirmed, and relied extensively on the Illinois Supreme Court case of Hartlein v. Illinois Power. The Appeals Court noted that the Family and Medical Leave Act (FMLA) allows companies to run FMLA time concurrently with lost time from work injuries, so long as the employees are provided proper notice of this. BRP provided notice of this policy in its employee handbook and in a letter to Dotson following the commencement of his lost time from the work injury.

Dotson also argued that the recent Illinois Appellate Court case of Siekierka v. United Steel Deck barred his termination, but the Appeals Court disagreed. The Court noted that the employer in Siekierka had a policy where the human resources and plant managers would determine on a case by case basis whether an employee's leave would be extended following exhaustion of FMLA time. In addition, the employer and its insurer manipulated the worker's case such that the IME requested by the insurer partially caused the delay that resulted in the claimant being fired due to the company's absenteeism policy. Since BRP had a clear policy that was communicated to its employees and was consistently applied, the Appeals Court found that Dotson could not prove a retaliatory intent in his discharge from BRP.

In short, the 7th Circuit Court confirmed the concept that terminations of employees who have made claims under the Illinois Worker's Compensation Act can be supported if the policies by which the employees are terminated are “previously published and equally enforced.” There are, of course, circumstances in each case that need to be considered to determine if a termination can withstand judicial scrutiny, but the farther an employer gets from consistent enforcement of a policy, or the less publicized the policy is to the individual employee, the more ground exists for a successful retaliatory discharge claim.

Utilization Review Scorecard Shows That The 2005 Amendments To The Wca Were Not All They Were Cracked Up To Be In Terms Of Saving Employers Money On Medical Costs

One of the supposed benefits touted to employers in Illinois by the backers of the 2005 amendments to the Worker's Compensation Act was the medical cost savings that would be experienced through such vehicles as the Fee Schedule and the adoption of utilization review. The savings to employers on medical costs were to equal or even exceed the increased exposure from the 7.5% increase in the specific loss tables for PPD awards, the increased minimums for PPD and TTD and the increases in death benefits and penalties.

In reality, the terms of UR as reflected in section 8.7 of the Act state simply that UR will be considered by the Commission, along with all other evidence and in the same manner as all other evidence, in the determination of the reasonableness and necessity of the medical bills or treatment. The Commission and Arbitrators are thus not compelled to adopt the UR report as the basis for authorizing or denying treatment or payment of bills.

Clearly, the intent was that UR should be considered equally as persuasive on the issue of medical treatment and bills as the opinions of the treating physicians. This would be a statutorily imposed improvement over the historical tendency of most Arbitrators and Commissioners to favor treating doctors' opinions over those of Respondent IME opinions.

Cases that have been tried since the 2005 amendments were enacted are now reaching the Commission Review stage. In practice so far, UR is holding its own at the Commission level, but its grip may be slipping.

In a canvass of five recent decisions which were rendered based in part on utilization review evidence at trial, we find that the Commission adopted the UR findings in two of them, and denied the proposed treatment (victories for the Respondents); rejected the UR findings in two of them, authorizing the proposed treatment (victories for claimants); and adopted the UR findings in the remaining case, but found that the Respondent was nonetheless liable for additional testing suggested by the treating doctor, even though the UR report called for no further treatment (a tie, but with the Respondent still liable for additional medical treatment and bills).

The disturbing trend is that in the cases decided more recently, the Commission has rejected the UR findings, even where the Arbitrator had adopted them. In short, it appears at this point that UR may give Respondents more of a fighting chance in disputing medical treatment and bills, but it will likely not deliver the savings in medical costs that were advertised by the backers of the 2005 amendments.

Newsletter Archives:

Newsletter Index

2008 November June 2007 October February

2006 December September August July June May April March

See also more recent posts on our blog: http://inmanfitzgibbons.wordpress.com