On September 24, 2020, the Illinois Supreme Court filed its decision in the case of Kevin McAllister v. The Illinois Workers’ Compensation Commission. The Supreme Court held that the Commission’s finding that the claimant’s accidental knee injury did not arise out of his employment is against the manifest weight of the evidence, and reversed the Commission’s decision as well as the judgments of the lower courts.

THE ACCIDENT

On August 7, 2014, McAllister was working at a restaurant setting up his station for the evening shift when another cook mentioned that he may have misplaced a pan of carrots in the walk-in cooler. McAllister went into the walk-in cooler to locate the pan of carrots, and knelt down on both knees to check the top, middle and bottom shelves. When McAllister tried to stand up from kneeling, he felt his right knee pop. His right knee then locked up, and McAllister was unable to straighten his leg. He had to hop into the general manager’s office to sit down and tell him what happened, after which the general manager drove McAllister to the hospital.

THE ARBITRATOR’S DECISION

The Arbitrator got this case right, finding that McAllister’s act of looking for the misplaced pan of carrots in the walk-in cooler was an act the employer reasonably could have expected him to perform in his duties as a sous-chef.  In addition to awarding benefits, the Arbitrator found that the employer’s refusal to pay benefits was dilatory, retaliatory, and objectively unreasonable. For that reason, the Arbitrator also awarded penalties and attorney fees.

THE COMMISSION DECISION

The employer filed a petition for review of the Arbitrator’s decision. On review, the Commission set aside the Arbitrator’s decision, finding that McAllister failed to prove that his knee injury arose out of his employment because he was subjected to a neutral risk which had no particular employment or personal characteristics. In other words, the Commission decided that the act of getting up from a kneeling position did not have any peculiar employment characteristics and that McAllister had failed to establish that he was exposed to this “neutral risk” to a greater degree than the general public. One Commissioner did dissent, stating that he would have affirmed the Arbitrator’s decision in its entirety.

THE CIRCUIT COURT DECISION

The Circuit Court agreed with the Commission, finding that McAllister’s act of standing up from a kneeling position was a neutral risk that did not expose him to more risk than the general public.

THE APPELLATE COURT DECISION

A majority of the Appellate Court affirmed the Commission’s decision. All five justices agreed with the Commission’s determination that claimant was not injured due to an employment related risk and that the determination was not against the manifest weight of the evidence. The panel disagreed on whether a compensable injury can arise out of an employee’s employment when the employee is injured while performing job duties that involve common bodily movements or routine “everyday activities” such as bending, twisting, reaching, or standing up from a kneeling position.

THE SUPREME COURT’S DECISION

The Supreme Court states that the first step in risk analysis is to determine whether the claimant’s injuries arose out of an employment-related risk. A risk is distinctly associated with an employee’s employment if, at the time of the occurrence, the employee was performing:

  1. Acts he or she was instructed to perform by the employer,
  2. Acts that he or she had a common-law or statutory duty to perform, or
  3. Acts that the employee might reasonably be expected to perform incident to his or her assigned duties.

The Supreme Court found that McAllister’s knee injury did arise out of an employment related risk because the evidence establishes that at the time of the occurrence his injury was caused by one of the risks distinctly associated with his employment as a sous-chef. The evidence established that the acts that caused claimant’s knee injury (kneeling down on the floor in the walk-in cooler to look for a pan of carrots misplaced by a coworker and then standing up from the kneeling position injuring his knee) were risks incident to the employment because these were acts his employer might reasonably expect him to perform in fulfilling his assigned job duties as a sous-chef.

The Supreme Court went on to find that a compensable injury can arise out of an employee’s employment when the employee was injured performing job duties that involve common bodily movements or everyday activities if it is established that the risk of injury falls within one of the three categories of employment-related acts listed above. The Supreme Court emphasized that common bodily movements and everyday activities are compensable and employment related if the common bodily movement resulting in an injury had its origin in some risks connected with, or incidental to, employment so as to create a causal connection between the employment and the accidental injury. There is no requirement that a claimant provide additional evidence establishing that he was exposed to the risk of injury to a greater degree than the general public once he has proven that he was involved in an employment-related accident.

If you have been injured while performing an act that you were instructed to perform by your employer, or an act that you had a duty to perform, or even an act that your employer might reasonably expect you to perform as part of your job duties, then you have suffered a compensable accident. Even if that accident was something as simple as getting up from a kneeling position, you may be entitled to substantial benefits and compensation for your injuries. Do not hesitate to contact me today for a free consultation.

Kevin McAllister v. The Illinois Workers’ Compensation Commission et. al

What if I am injured, but I work for an employer that is not self-insured and does not have workers’ compensation insurance? 

If an employer is not self-insured and does not have workers’ compensation insurance, then an injured worker may have to proceed against both the employer and the Injured Workers’ Benefit Fund (IWBF). The IWBF is a state fund that is funded by penalties and fines paid by uninsured employers. The money held by the IWBF is used for payment of workers’ compensation benefits for injured workers whose employees did not have workers’ compensation insurance coverage. Unfortunately, the worker does not receive any benefits until a final decision is rendered by the Commission. The worker does not receive weekly benefits as they normally would if their employer had workers’ compensation insurance.  

 At the end of the fiscal year, all the decisions that named the IWBF as a Respondent will be paid at a pro rata share of the money available in the fund that year. This means that the worker might not receive the entire amount of the benefits they were owed by their employer. 

 Can I sue my employer for not having workers’ compensation insurance?  

If your employer does not have workers’ compensation insurance and is not self insured, then you have the option to proceed against the employer in circuit court much like a personal injury claim. Before filing in the circuit court, you need to have what has been dubbed a “Keating Hearing”, also known as a 4(d) hearing. 

 How do I request a 4(d) “Keating Hearing”?  

 Your first step is to file an Application for Adjustment of Claim with the Illinois Workers’ Compensation Commission. After your claim is filed, you must verify with the National Council on Compensation Insurance (NCCI) that your employer did not have workers’ compensation insurance on the date of your accident. In order to confirm this with the NCCI, you must send them a subpoena requesting information regarding whether a workers’ compensation insurance policy was in effect with your employer on the date of your accident. 

 Once you receive confirmation from NCCI that your employer is not insured, then you should file a request for a hearing before a Commissioner. Your claim will be assigned a Commission number and be set on an upcoming Commissioner’s call. On the Notice of Motion, you should indicate 4(d) hearing / Keating Hearing in the “Other” section of the form.

 The term “Keating Hearing” is based on the case Keating v. 68th and Paxton, LLC, in which the Illinois Appellate Court made it very clear that an injured worker can’t proceed against an uninsured employer under Section 4(d) until the Commission has made its determination as to whether an employer willingly failed to obtain workers’ compensation insurance.

In order to proceed in circuit court, you need to have a decision by the Commission that the employer was uninsured. You must attach the Commission decision to your complaint, or risk having your complaint dismissed by the Circuit Court. The Commission, and not the circuit court, is the agency empowered to determine whether an injured worker is entitled to seek relief under Section 4(d) of the Act. 

Proving that your employer willingly failed to obtain workers’ compensation insurance is no cakewalk. The Appellate Court recently found that an injured worker fell short in proving that his employer willingly failed to obtain workers’ compensation insurance because the injured worker only provided evidence of a nonrenewal notice, but did not offer evidence showing proof of mailing of that nonrenewal notice. American Kitchen Delights, Inc. v. The Illinois Workers’ Compensation Commission, 2020 IL App (1st) 191593WC (June 12, 2020). 

 DON’T WAIT:  If you have an uninsured employer and want to pursue your case in circuit court, then you must have a decision from the Commission before you file the complaint in Circuit Court. This requires that you have to a Commission decision before the Statute of Limitations runs out on your claim. To say that this is a highly technical undertaking would be an understatement, especially in light of the Appellate Court’s recent ruling in American Kitchen Delights, Inc. I strongly recommend that you find a lawyer to assist you in such an undertaking. But don’t take too long. That statute of limitations clock never stops ticking, so get started immediately! 

The Illinois Workers’ Compensation Act requires that an injured worker give notice of a work accident as soon as practicable, but not later than 45 days after an accident. However, the legislature has mandated a liberal construction on the issue of notice in that no defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings on arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy.

When you are injured at work, you should give notice of the accident as soon as possible. Notice can be written or verbal, but it does not take a rocket scientist to figure out that written notice will always be easier to prove than verbal notice. You can save yourself a lot of time and heartache by giving notice in writing. Whenever you give notice of accident in writing, keep a copy for your records. If you must, snap a photo of the accident report with your smartphone before you turn it in to your employer. If you give verbal notice, write down the person you gave the notice to, and the date of the notice along with any co-workers or witnesses that were present.

These days, many employees are in contact with their employers via email throughout the day. If you email your employer about the accident, make sure you keep a copy of that email. And yes, print one off just in case. If you text your employer about the accident, keep a copy of the text and any response you receive from your employer. If they don’t text you back, it is best to follow up with a phone call or an email.

What if you mess up? Well, the Illinois Supreme Court tells us that the giving of notice within 45 days of an accident is jurisdictional and a prerequisite of the right to maintain a proceeding under the Act. But this applies only when NO NOTICE WHATSOEVER is given to the employer. When some notice is given, but it is defective or inaccurate, then the employer has to show that they were unduly prejudiced by the defective notice.

How can an employer be unduly prejudiced? The Illinois courts looked to Professor Arthur Larson for that answer. Professor Larson wrote the treatise “Workers’ Compensation Law”. It was the first publication to treat workers’ compensation as a distinct area of the law. It is still being updated and published today, and lots of lawyers and judges use Professor Larson’s treatise when arguing about difficult or unusual scenarios that pop up from time to time in workers’ compensation cases.

Professor Larson said this about defective notice:

As to notice of injury, however, both courts and legislatures have been inclined to ask whether either of the two purposes of the notice statute has miscarried because of literal compliance with the notice provisions, the two purposes being the facilitation of prompt medical attention and the provision of opportunity for immediate investigation of the circumstances of the accident.

What does that mean? That means that the notice requirement is designed to accomplish two things. First, it makes sure that the employee gets medical treatment as quickly as possible in order to mitigate any adverse consequences of delayed treatment. If your employer knows about an injury, then they can get you to a doctor quickly to get you treatment. Delays in treatment can be very detrimental to recovery and can greatly increase the costs associated with a workers’ compensation claim.

Secondly, the employer is entitled to the opportunity to investigate the accident and determine whether the injury is in fact work related. To deprive the employer of the right to investigate the accident can lead to prolonged litigation.

If you give defective notice, the employer must show that due to that defective notice your treatment was delayed, and /or that they were unable to perform a sufficient investigation of the accident. If your employer can prove prejudice to the satisfaction of the Commission, then you will lose your case on the notice issue.

There is another way to extend the 45-day notice requirement. We refer to this as “8j” notice. In the event that an injured employee receives benefits, including medical, surgical or hospital benefits under any group plan covering non-occupational disabilities contributed to wholly or partially by the employer, which benefits should not have been payable if any rights of recover existed under this Act, then such amounts so paid to the employee from any such group plan shall be credited to or against compensation payment for temporary total incapacity for work or any medical, surgical or hospital benefits made or to be made under the Act.

This means that if you have a group insurance policy that your employer pays for either in whole or in part, then the employer gets to take a credit for any payments made by that plan for your work related injury. But how does this apply to the notice requirement?

In such event, the period for giving notice of accidental injury and filing application for adjustment of claim does not commence to run until the termination of such benefits.

If you use your employer’s group health plan to pay for treatment related to a work injury, then you extend the time period for giving notice of that injury until the last payment is made by that group insurance carrier. For example, let us say that you injured your back lifting a box at work. You don’t report it to your employer, but you do seek medical treatment with your family doctor. Your family doctor charges your group health insurance. That insurance company pays the doctor bill 30 days later. Your 45-day time period for reporting the work injury begins on the same day that the group insurance carrier makes that payment 30 days later. In this scenario, instead of having to report the accident within 45 days of the accident date, you have effectively extended it to 75 days after the date of the accident.

I don’t recommend relying on this method. A doctor is likely going to ask you how you hurt yourself. If you don’t’ tell your doctor about the work injury at the initial visit, you are already well on your way to a denied claim. But if you do tell your doctor that you were injured at work, and the doctor writes down that history of accident and continues to bill your employer’s group insurance plan, then your claim is still in decent shape.

If you do happen to find yourself in this situation, it is best that you speak with an experienced workers’ compensation lawyer as quickly as possible. In my experience, when you are attempting to salvage a case via 8(j) notice, the clock is always ticking and waiting one more day could mean the difference between receiving benefits and losing your case.  Contact me for a free consultation. The case you save may be your own.

Most countries around the world offer some level of protection to workers that are injured on the job.  These workers’ compensation regimes can look very different from what we are used to in the States. This week, we are going to take a quick look at the rights of workers who are injured in the United Arab Emirates. Almost all employment in the United Arab Emirates is subject to the Federal Labour Law, also known as Federal Law No. 8 of 1980. Employment within the Dubai International Financial Center (DIFC) is addressed by the Dubai International Financial Centre Employment Law, DIFC Law No. 2 of 2019. The DIFC is an independent jurisdiction under the UAE Constitution, with its own civil and commercial laws that are distinct from those of the wider UAE. The DIFC has its own courts and judges.

The Federal Labour Law addresses workers’ compensation in Chapter 8, entitled “Indemnity for Labour Accidents and Occupational Diseases.” Here are some of the interesting differences between workers’ compensation in the UAE as opposed to workers’ compensation in Illinois:

  • A work injury must be reported instantly to either the Police or the Labour Department. The police investigate the accident, and the law dictates that the police report must indicate whether the accident is related to work, and whether it was deliberate or a result of gross misconduct on the part of the employee. After the police investigation, copies of the report are sent to both the Labour Department and the employer. The Department can request either that the employer conduct an additional investigation, or the Department can decide to complete the investigation on their own. In Illinois, the accident must be reported within 45 days to the employer. In Illinois, the police are not called usually involved in the reporting of a work accident, and certainly are not called upon to render opinions as to whether the accident was work related or the result of gross misconduct on part of the injured worker.
  • If an injury is determined to be work related, or if the worker is deemed to have suffered from an occupational disease, then the employer is required to pay for the injured worker’s treatment at either a government or private hospital until such time as the injured worker has recovered. Treatment includes admission in hospitals or sanitariums, surgeries, imaging and lab fees, medicine, rehabilitation equipment, and artificial limbs or other apparatus provided to the injured worker. The employer is also required to pay the transport expenses associated with the employee’s medical treatment. In Illinois, transportation costs are not guaranteed.
  • Once treatment has concluded, the medical practitioner in charge of the injured worker’s treatment must complete a report detailing the injury, the cause of the injury, the date of the accident, whether the accident is work related, the dates of treatment from beginning to end, whether the worker has sustained permanent infirmity along with the degree of disability (if any) and whether that disability is total or partial. The doctor must also address whether the employee is able to perform his job duties in light of the injury. In Illinois, there is no requirement that a treating physician complete any reports detailing the injury, causation, etc. In Illinois, a treating physician is often called upon by the injured worker’s attorney to prepare a narrative report that addresses these issues. The employer almost always hires a physician to address these questions in the form of a Section 12 exam, which is usually followed by a written report. Whenever a settlement contract is submitted for approval in Illinois, it is supposed to be accompanied by medical records that allow the Arbitrator or Commission to determine the nature, extent, and probable duration of the disability resulting from the alleged accident.
  • If there is a dispute in connection with the extent of disability, fitness for work, or any other matters related to the injury or treatment, the case must be referred to the Minister of Health via the Labour Department. A medical board comprised of three government physicians shall be formed by the Ministry each time such a dispute is referred. This board will decide the extent of the employee’s physical fitness for service, level of disability, or any other disputed matter. The Board is allowed to consult with experts when deciding these disputes. The decision of the board is final, and enforced by the Labour Department. In Illinois, disputes are handled by an Arbitrator. Both parties can be represented and are allowed to present arguments in support of their claims. If one or both of the parties is not satisfied with an Arbitrator’s decision, they have the right to a review by the Commission followed by judicial review.
  • Partial disability is payable in accordance with a schedule. For example, the loss of one foot from the ankle or below is considered to be a 20% disability. The loss of a right arm from the elbow or below is equal to a 60% disability. Illinois also has a schedule of injuries.
  • The amount of indemnity due to an worker in the event of a permanent total disability is the same as the amount due in the event of a worker’s death. That amount is equivalent to the basic pay of the worker for a period of 24 months, provided that the amount of indemnity shall not be less than eighteen thousand Dirhams and not more than thirty five thousand Dirhams. The amount is calculated based on the last pay earned by the employee prior to the onset of his disability. In Illinois, a worker that is permanently disabled as the result of a work injury is entitled to a weekly check for the rest of his or her lift, in addition to payments from the Rate Adjustment Fund to address cost of living increases.

If you were hired in Illinois, and are injured while traveling abroad for your employer, you have the right to Illinois Workers’ Compensation benefits. Any injury suffered by a traveling employee that was reasonably foreseeable by the employer should be found compensable. If you are a government contractor or subcontractor injured overseas, you should be entitled to benefits under the Defense Base Act. Regardless of the circumstances surrounding your injury, if you are injured while working abroad and have questions about your rights, contact me anytime for a free consultation.

 

What if you’re injured while playing softball at a company picnic? What about a teacher injured during a faculty vs. student basketball game at a pep rally? These types of situations are addressed by Section 11 of the Illinois Workers’ Compensation Act, which states: 

 Accidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics do not arise out of and in the course of the employment even though the employer pays some or all the costs thereof. This exclusion shall not apply if the injured employee was ordered or assigned by his employer to participate in the program.

 Voluntary recreational activity claims are fact specific. Most of the decisions related to these claims look at the following circumstances surrounding the injury to determine whether the recreational activity was truly voluntary: 

  •  Was the employee assigned or ordered to participate in the activity? 

 This question goes to whether your participation in the activity was truly voluntary. If you were told by your boss or a supervisor that you had to participate in a recreational activity such as a company softball game, then the activity is no longer voluntary. It is “ordered” or “assigned”. Now, the courts have engaged in some nitpicking over the difference between “ordered” and “assigned” but if you’ve got somebody above you telling you that you have to participate in an activity, any injuries you sustain as a result of that activity should be considered compensable. 

  •  Was the activity “recreational”? 

 The court has looked to the Webster’s Third International Dictionary to determine what the word “recreational” means. Webster’s defined it as follows: 

 “The word recreational is derived from the word recreation. The word recreation in turn is defined as “the act of recreating or the state of being recreated; refreshment of the strength and spirit after toil; DIVERSION, PLAY.” 

 But sometimes, a person’s job may require him or her to engage in activities that might otherwise be deemed diversion or play. For example, a fitness supervisor who engaged in a game of wallyball with customers was found not to be doing so as an act of “diversion or play” but as part of his job at the Park District. If your job requires you to engage in activities that might otherwise be defined as “diversion or play”, don’t give up hope. There is a chance that if that activity is part of your job duties, then you could be entitled to workers’ compensation benefits. Even if you get hurt during a wallyball game! 

  •  When did the activity take place? 

 If the activity takes place after work, you’re much less likely to be awarded workers’ compensation benefits than if it takes place during the workday. That doesn’t mean you can’t be ordered or assigned to engage in an activity after work hours, but how often is an after-hours event mandatory? Not very often for most workers. 

  •  Where did the activity take place? 

If the activity takes place at your place of employment, you are more likely to be awarded workers’ compensation benefits for injuries that occur while you are engaged in that activity. For example, if you’re at a company picnic at a park 5 miles away then that’s something your employer will use in order to persuade the court that the activity was not mandatory. If the activity takes place at your place of employment, it is much easier for the court to determine that the event was more likely mandatory than voluntary.  

  •  Would the employee’s failure to participate result in the loss of a benefit? (Vacation Day / Personal Day) 

 If you stand to lose a benefit as a result of opting out of a work activity, then any injuries sustained during that activity will be deemed to be work related. If you are given the choice of attending the event, or taking a personal / vacation day, then that constitutes the loss of a benefit. So if your boss tells you that you can either attend the company picnic or you can take a vacation day, then that picnic is not a voluntary activity. If you’re hurt while playing Frisbee at that picnic, you should be entitled to receive workers’ compensation benefits.  

  •  Would the failure to participate in the activity be noted on an employee evaluation? 

 Do people who do not attend company outings or functions get  nasty notes in their evaluation report? If so, guess what? That can be a factor that the court will use to decide that the event was mandatory as opposed to voluntary. 

  •  Was the employee subjected to pressure from colleagues or superiors to participate? 

This can help tip the scales when it is a close call as to whether an event was voluntary or mandatory. The term “cajoling” has been thrown around in a few Commission decisions. So, if you’re subjected to “cajoling”, which is defined as “persuading someone to do something by sustained coaxing or flattery,” then this might help you to show that this company event wasn’t exactly voluntary. This alone isn’t going to win the day. You will also need to show other elements such as location or loss of a benefit to convince the Commission that the activity was mandatory. 

If you have been injured in a recreational activity at work, don’t be surprised if the insurance carrier denies your claim. Don’t give up hope. Contact me for a free consultation to go over the specific circumstances of your case. You just might be entitled to workers’ compensation benefits.

I have had lots of clients ask me this question over the years. But first, what is a Medicare Set Aside? Let’s look at the Workers’ Compensation Medicare Set Aside (WCMSA) Reference Guide Version 3.1 to see what the Center for Medicare and Medicaid Services (CMS) has to say about it:

Section 3.0: What Are Workers’ Compensation Medicare Set Aside Arrangements?

A WCMSA allocates a portion of the WC settlement for all future work-injury-related medical
expenses that are covered and otherwise reimbursable by Medicare (“Medicare covered”). When
a proposed WCMSA amount is submitted to CMS for review and the claimant (who may or may
not be a beneficiary) obtains CMS’ approval, the CMS-approved WCMSA amount must be
appropriately exhausted before Medicare will begin to pay for care related to the beneficiary’s
settlement, judgment, award, or other payment.

The goal of establishing a WCMSA is to estimate, as accurately as possible, the total cost that
will be incurred for all medical expenses otherwise reimbursable by Medicare for work-injuryrelated conditions during the course of the claimant’s life, and to set aside sufficient funds from
the settlement, judgment, or award to cover that cost. WCMSAs may be funded by a lump sum
or may be structured, with a fixed amount of funds paid each year for a fixed number of years,
often using an annuity.

Any claimant who receives a WC settlement, judgment, or award that includes an amount for
future medical expenses must take Medicare’s interest with respect to future medicals into
account. If Medicare’s interests are not considered, CMS has a priority right of recovery against
any entity that received any portion of a third-party payment either directly or indirectly—a right
to recover, or take back, that payment. CMS also has a subrogation right with respect to any such
third-party payment. “Subrogation” literally means the substitution of one person or entity for
another. If Medicare exercises its subrogation rights, Medicare is a claimant against the
responsible party and the liability insurer to the extent that Medicare has made payments to or on
behalf of the beneficiary for services related to claims against the responsible party (and the
responsible party’s liability insurance). In this example, Medicare is substituting for the claimant
in this situation. Medicare can be a party to any claim by a beneficiary or other entity against a
responsible party and/or his/her liability insurance, and can participate in negotiations concerning
the total liability insurance payment and the amount to be repaid to Medicare.
Medicare may also refuse to pay for future medical expenses related to the WC injury until the
entire settlement is exhausted. These arrangements are typically not created until the individual’s
condition has stabilized so that it can be determined, based on past experience, what the future
medical expenses may be. CMS prefers this, so that future medical and prescription drug costs
can be planned with a reasonable degree of certainty.

Once the CMS-approved set-aside amount is exhausted and accurately accounted for to CMS,
Medicare will pay primary for future Medicare-covered expenses related to the WC injury that
exceed the approved set-aside amount.

Thanks for the info on Medicare Set Asides, but I have a Medicare Set Aside even though I’m not on Medicare, yet. When can I start using my money to pay for treatment? Do I have to wait?

As long as your Medicare Set Aside was approved by CMS, you can begin using your funds, immediately. Section 17.4.2 of the WCMSA Reference Guides tells us that “[f]or claimants who are not yet Medicare beneficiaries and for whom CMS has reviewed a WCMSA, the WCMSA may be used prior to becoming a beneficiary because the accepted amount was priced based on the date of the expected settlement.”

It is important to remember that CMS approval of Medicare Set Asides is voluntary, not mandatory. But if you are not a Medicare beneficiary at the time of settlement, it may behoove you to make sure any proposed Set Aside is approved by CMS so that you can begin using the Medicare Set Aside funds to pay for treatment immediately after your case has settled. If your settlement includes a Medicare Set Aside and you are not Medicare entitled, you should insist on professional administration of the Medicare Set Aside. This means that a Medicare professional will be hired by the workers’ compensation insurance carrier to make sure that any money spent on medical treatment will be done so in accordance with CMS’ rules and regulations. Professional administration will go a long way in protecting your future Medicare benefits, regardless as to whether the Medicare Set Aside is approved by CMS. And the best thing about professional administration is that the workers’ compensation carrier pays for it. Your Medicare Set Aside funds can’t be used to pay for professional administration. Section 17.1 of the WCMSA Reference Guide, CMS states that “[a]lthough beneficiaries may act as their own administrators, it is highly recommended that settlement recipients consider the use of a professional administrator for their funds.” Insist on professional administration of your Medicare Set Aside. There are very few insurance carriers that would scuttle a settlement over the cost associated with the professional administration of a Medicare Set Aside.

If you need more information, or have other questions about Medicare Set Asides, conditional payments or any other workers’ compensation questions, feel free to contact me. I will get back to you within 24 hours and the initial consultation is always free.

 

These days, more and more injured workers are questioning whether they are employees, and if so, who is their real employer? The increase in the number of  so called “independent contractors” and the rise of the gig economy has resulted in both confusion and litigation. There are plenty of unscrupulous employers out there whose business plan consists of designating everybody as an independent contractor. They may even go so far as to have their workers sign “independent contractor agreements” that would never hold up at the Commission or in a court of law.   

There is no question that “an employment relationship is a prerequisite for an award of benefits under the Act, and the question of whether a person is an employee remains one of the most vexatious in the law of compensation.The courts have made it clear that the definition of an “employee” for purposes of the Illinois Workers’ Compensation Act should be broadly construed.The mere existence of an “independent contractor agreement” does not mean that the Commission or a court won’t find an employment relationship. No rigid rule of law exists regarding whether a worker is an employee or an independent contractor. When deciding whether a worker is an employee for the purposes of an Illinois Workers’ Compensation Claim, the Commission will look at several factors. No single factor is determinative, and the significance of these factors can change depending on the work involved. However, the single most important factor is whether the purported employer has a right to control the actions of the employee. Also, of great significance is the nature of the work performed by the employee in relation to the general business of the employer. 

 Here are the factors that the Commission will look at in order to determine whether an injured worker is an employee:  

  • Does the employer have the right to control the work? 
    • The right to control the manner of work is often called the most important consideration in determining whether an injured worker is an employee or an independent contractor. The courts have provided us with some examples of actions by employers that can be used to show that the worker was in fact supervised, directed and controlled by the employer. For example, if the worker is required to wear a uniform, this would tend to show that the worker was an employee as opposed to an independent contractor.
    • If the injured worker was a truck driver, and the company required that driver to take certain routes, this would tend to show an employer-employee relationship.
    • If the company tells the worker how he or she must maintain equipment, that the worker must notify the company of any accidents, or if the company logo is displayed on the worker’s vehicle or other equipment, these would be factors favoring an employment relationship.
    • Remember that you only need to show that the employer has the right to control your work, you don’t have to show that the employer actually exercised that right. However, if the employer DOES exercise that right to control your work, then it is going to be even more difficult for an employer to argue that you are an independent contractor as opposed to an employee.
  • What is the nature of your work? 
    • Because the theory of workers’ compensation legislation is that the cost of industrial accidents should be borne by the consumer as part of the cost of the product, the courts have held that a worker whose services form a regular part of the cost of the product, and whose work does not constitute a separate business which allows a distinct channel through which the cost of an accident may flow, is presumptively within the area of intended protection of the Act.
    • For example, if you are operating an ice cream cart and working for an ice cream distributor whose sole method of distribution is through those same ice cream carts, you are likely to be designated an employee.
    • On the other hand, if you are doing roofing work for a company that does landscaping work, that would tend to show that you are an independent contractor.
  • What skills are required to perform the work?
    • When a worker possess a level of skill and expertise in a specialized field, and is hired to complete a particular job based on that skill and experience this will tend to show that the worker is an independent contractor and not an employee.
    • But if the job duties are easily performed, and don’t require much skill, then this would weigh in favor of an employer-employee relationship.
  • Who owns the equipment?
    • If the equipment being used is owned by the employer, or even partly owned by the employer, this favors an employment relationship and not an independent contractor agreement.
    • The courts have instructed us that “control may be realistically inferred even when the employer owns only a part of the equipment, if that part is of considerable size and value.”
  • What is the method of payment? Are taxes withheld?
    • When a worker is paid a percentage of gross revenue, or when the claimant pays his own income taxes and social security, this tends to show that the worker is an independent contractor and not an employee.
    • An hourly rate of pay tends to show that the worker is an employee.
    • If an employer is deducting taxes and social security, this weighs heavily in favor of an employer-employee relationship as opposed to an independent contractor agreement.
  • Does the employer have the right to discharge?
    • Here in Illinois we have what is known as “employment at will.” This generally means that you can be terminated for any reason, good cause or not, or no cause at all. In other words, you can be fired at any time (if that firing is non-discriminatory) and you can quit anytime you wish.
    • The lack of a right to discharge is an indication that the worker is an independent contractor and not an employee.
    • The easier it is for your employer to fire you, the more likely the Commission and the courts will classify you as an employee as opposed to an independent contractor.
  • What are the terms of the agreement?
    • Although a contractual agreement is a factor that the Commission will consider, it does not determine your employment status.
    • The terms of the agreement are a minor consideration when determining whether an injured worker is an employee or an independent contractor when deciding whether you are entitled to workers’ compensation benefits if you are injured in the course and scope of your employment.

They might call you an independent contractor. They might even call that paper you signed an independent contractor agreement. But that doesn’t mean that the Illinois Workers’ Compensation Commission won’t find that you are an employee entitled to workers’ compensation benefits if you are injured in the course and scope of your employment. If you are injured at work, and you are denied benefits because you are alleged to be an independent contractor, don’t abandon hope. Give me a call, and we will thoroughly review your employment arrangement and see if you are entitled to workers’ compensation benefits.

The origins of the Illinois Workers’ Compensation Act can be traced back in history to the little town of Cherry, Illinois. Cherry is a village located in Bureau County that was established in 1904 and named after James Cherry. Mr. Cherry had been the former mayor Seatonville, Illinois and he was also the Regional Superintendent of mines.  

Cherry was home to a vast, seemingly inexhaustible vein of bituminous coal. The St. Paul Coal Company established what was then the state’s largest coal mine hoping that within a few years, Cherry would be the principal coal center of the Midwest. 

The town of Cherry sprang up around the mine. The St. Paul Coal Company offered 120 acres of land for sale as home and business sites, and the railroad built a new railway station two blocks from the business district. The Company also built a fifty-room hotel and fifty modern model homes as both the mine and the village continued to grow. 

The Cherry Mine was alleged to be the epitome of modernity and safety in both construction and equipment. The engineer who built the tipple rated it the world’s safest, and it was one of the only mines in the entire country outfitted with electricity. Even the darkest areas of any mine, the mule stables and pumping room, were strung with incandescent light. With a tower of steel, a foundation of concrete and its engine, boiler and fan houses all made of brick and stone, the men who built it declared the Cherry Mine fireproof. Unfortunately, this proved untrue. The Cherry Mine caught fire on November 13, 1909.  

Back in 1909, mules were used to pull coal cars deep in the mine. The mules were fed with bales of compressed hay. Normally, compressed hay does not burn. In fact, cut hay is allegedly so fireproof that a blowtorch held to it will leave nothing more damaging than scorch marks. 

We do not have all the facts, but it appears that two miners left a car filled with compressed hay next to a kerosene torch. One story is that the end of that torch was blazing five to eight inches below the top of the hay bales. Another story alleged that the hay car was parked directly beneath a kerosene torch, and that the kerosene dripping from the torch soaked into the hay. Regardless, that hay eventually caught fire. 

The fire was discovered by two miners at approximately 1:25 P.M. Neither of them was overly concerned. Small fires were commonplace in the mine and were easily extinguished. In fact, several men quitting the mine for the day ignored the fire on their way out, even though they could have put it out easily. They considered the fire so inconsequential that they left the mine without ever mentioning it to anyone else. That small fire grew, and eventually became unmanageable. It spread to the support timbers and throughout the mine. The fire got so bad that mine officials had to seal the mine. Of the four hundred and eighty men working in the Cherry mine on November 13, 1910, two hundred and fifty-nine of them died. The families of the dead miners not only had to deal with the loss of their husbands and sons but were now face to face with the uncertainty of providing for all the children that were left behind.  

To give you an idea of the magnitude of the problems faced by the families of the dead miners, read the following quotes from the book “Trapped: The 1909 Cherry Mind Disaster” by Karen Tintori:  

“Almost two-thirds of the missing men leave widows,” McDonald said. “Each of these widows has from one to three children. I saw one woman who has nine children, all under twelve years old. She has not enough money to pay for a week’s provisions. In a month from now, the distress of these people will be pitiable. 

“Illinois United Mine Workers Union president Duncan McDonald issued a roll call of the immediate family members of the entombed miners. In a town of twenty-five hundred, canvassers tallied two hundred probable widows and nearly one thousand probable orphans.”  

 “The problem of taking care of all these children will be a big one,” Bicknell said. “The relief work is now being done systematically. No one is allowed to go hungry if we know about it. The future, however, is staring us in the face. How are the widows and orphans going to get through the winter? It will take every cent that is contributed to prevent the suffering and want that may come.”  

The initial settlement offers from the St. Paul Coal company ranged from $800 for childless miners up to $1200 for those leaving the greatest number of offspring. Mediator John E. Williams determined five hundred thousand dollars more would be needed for the Cherry families. Williams looked to English law in proposing a settlement, studying Parliament’s Workmen’s Compensation Act of 1906, which set the compensation for an accidental death at three times the employee’s annual salary. Williams then drafted two settlement proposals. One based on the new English law, and one based on recommendations from a commission to be appointed by the President of the United States. 

Although the company favored the settlement plan based on English law, they refused to pay out any more than $250,000.  Negotiations continually broke down, but in the end an agreement was achieved based on the English code. A total of $281,538.13 was paid in aid. The coal company had made flat cash payments of $1,620.00 to every widow regardless of family size. A $25 monthly pension was allowed to widows with children under 14, increasing $5 per child to a maximum of $40 per month. Between the mine company and other relief funds paid by organizations such as the United Mine Workers and the Knights of Pythias, each victim’s family received approximately $3,261.72.  

The St. Paul Mine Company also pled guilty to 9 counts of child labor law violations and was fined $630.  

 In March of 1910, State lawmakers had enacted Senate Bill 42 creating the Mine Rescue Station Commission of the State of Illinois, the first in the nation. It was mandated to build rescue stations both to furnish rescue teams trained to respond to mine accident scenes and to serve as training facilities to instruct state miners in mine rescue procedures and first aid. 

The Illinois Legislature, convened by Governor Deneen immediately enacted stronger regulations, requiring mine owners to purchase and maintain firefighting equipment and workers in certain key jobs such as hoisting engineer, to pass certification exams.   

In 1911, the Illinois legislature passed the state’s first liability act, allowing miners and their families to recover damages for injuries and deaths caused by their employer’s negligence. This legislation was the precursor of the Illinois Workers’ Compensation Act. 

Much of the information you have just read about the Cherry Mine Disaster comes from the book “Trapped: The 1909 Cherry Mine Disaster by Karen Tintori.” Ms. Tintori is the granddaughter of one of the miners that survived the Cherry Mine Disaster. Her book is masterfully written and is available on Amazon. It should also be available at your local library. If you are interested in learning more about the Cherry Mine Disaster, I strongly suggest that you take the time to read Ms. Tintori’s book. You will not be disappointed. 

I also recommend you watch a Panel Discussion on the Cherry Mine Disaster that was hosted by the Abraham Lincoln Museum in January of 2010. You can listen to the authors of 4 books on the Cherry Mine Disaster, including Ms. Tintoritalk about their books and the events surrounding the Cherry Mine Disaster. The panel discussion is available on YouTube and is in 10 parts. The link to the first video is:  https://www.youtube.com/watch?v=9nB9sq22xGM