Synopsis: A Pirate Turns 80–Former Alderman Ed Burke’s Political Career and Role as a Municipal WC Manager Comes to an Abrupt End.
Editor’s comment: I admit I stole the idea for the title of this piece from the song by the late and great Jimmy Buffett who recently transitioned to a new and hopefully better place.
What Did Former Alderman Ed Burke Have To Do With Workers’ Comp?
Few observers in the U.S. and Illinois workers’ comp industry know that former Alderman Burke “ran” the City of Chicago’s workers’ comp and police/fire disability programs for decades. In my personal opinion, he did so in an openly corrupt fashion. My favorite example of this was the City of Chicago police candidate who claimed his hands became sore shooting guns in the police academy. He was allowed to get police disability, basically for a lifetime.
You can’t make this up–take a look at https://www.police1.com/police-jobs-and-careers/articles/report-claims-disability-pays-for-chicago-police-pipwIaViYisrA5Cf/
Most municipalities would have suggested this candidate who clearly failed at police training should transition to something he was better suited to do. In Chicago, that common sense approach just doesn’t happen.
In my view, under the aegis of former Alderman Burke this job candidate was provided a lifetime of disability pay and actually put himself through college and law school and was most recently seen as a divorce lawyer and funeral director in the south suburbs. He is probably now on a City pension. To my understanding, he never worked as a police officer for a single day but he had to be paid millions of taxpayer dollars in police disability pay over his work life. To my understanding, lots of folks got this sort of largesse via WC or disability pay while working under former Alderman Burke.
Why would anyone in control of the City of Chicago’s WC and police/fire disability programs provide such largesse to someone who clearly wasn’t cut out for the job? Again, in my opinion, this worker and dozens of others like them would always be beholden to their political patron and would be sure to donate time, money and hard work to every political campaign. The main problem is Chicago taxpayers were getting literally nothing for their tax dollars while former Alderman Burke directed political workers using WC and police/fire disability as a carrot.
Please note when Former Alderman Burke was indicted, numerous City workers being paid TTD for years quit immediately. It is my opinion they did so to avoid being part of the indictments, as they may have been running businesses or working “side jobs” while getting TTD. We will never know.
Former Alderman Burke Wouldn’t Do Very Simple Things to Cut Chicago WC Costs for Taxpayers.
Along with putting workers on lifetime TTD and disability benefits, Former Alderman Burke openly refused
To return anyone to work at light duty or
Have his police department or independent surveillance operators check to see what City workers on TTD were doing.
You might know I worked for the City of Chicago for almost a decade and if there is any place that has lots and lots of light duty jobs, it is the City of Chicago. No one working for the City should be on TTD, asserting a lack of light work.
I am sure the City of Chicago has transitioned to outside TPA’s that are handling their WC claims dramatically better, sans political influence. I would bet they are saving Chicago taxpayers millions versus the system run by former Alderman Burke.
I appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: IL Appellate Court, WC Division Finds Truck Driver Entitled to a Hearing for a Currently Impossible-to-Define Wage-Differential Award for Ankle Injury.
Editor’s comment: What Happened to CDW Corp v. IWCC?? If you want to read that ruling, take a look at https://scholar.google.com/scholar_case?case=8091368495711227221&q=CDW+Corp+v.+IWCC&hl=en&as_sdt=400006&as_vis=1 I vote this CDW Corp. ruling be implemented by the parties and the hearing officers in this current claim. If you aren’t sure how and why, keep reading.
In Walsh v. Illinois Workers’ Compensation Commission, our Illinois Appellate Court, WC Division said a former truck driver whose ankle injury precluded him from continuing in his usual and customary line of work was entitled to an impossible-to-determine wage-differential award rather than permanent partial disability benefits awarded by the IL Workers’ Compensation Commission.
The problem I have with this ruling is simple—in my view, it treats the very recent, well-reasoned and solid IL Appellate Court ruling in CDW Corp v. IWCC as non-existent.
In this claim, Petitioner Walsh was a truck driver for Austin Tyler Construction Co. In October 2014, while exiting his truck, his left foot landed in a pothole, and he injured his ankle.
A magnetic resonance image revealed tearing of the superior peroneal retinaculum, peroneal longus tendon and peroneus brevis tendon. Walsh rejected a recommendation to have surgery and opted for physical therapy.
He did one day of light-duty work in December 2014. He testified it was his opinion the work provided was mostly “pointless paperwork” and suggested the company lay him off, which it did.
He returned to work at the same company for the 2015 construction season but continued to complain of ankle pain. In 2016, he complained his ankle was getting worse with each day of work, and he underwent surgery.
After surgery, he was released to return to work with restrictions in November 2017. His employer provided accommodations in the form of assigning him loads that did not require him to spray the trailer after making deliveries and providing him with a truck with an automatic transmission.
In response, four days later, Walsh’s doctor revised work restrictions to prohibit climbing into a truck or trailer. There was no end date for the restrictions, and Walsh did not return to work as a truck driver.
There is no indication in the record vocational counseling was offered or accepted. You may note in the CDW Corp. v. IWCC ruling I cite above, at that point a “vocational assessment” would be required—that didn’t appear to happen at all.
After a hearing, the Arbitrator awarded temporary total disability benefits from the day of the accident — Oct. 19, 2014 — until Walsh was offered light-duty work on Dec. 2, 2014; and from May 19, 2016, when Walsh had surgery, through June 23, 2017, when he was released to return to restricted work.
The arbitrator also awarded Claimant Walsh permanent partial disability benefits for a 30% loss of use of his left foot. In my opinion, this meant the hearing officer didn’t believe Claimant couldn’t locate alternate light work somewhere. That said, I don’t see evidence presented or mentioned in the record to document available light work.
On review, the Illinois Workers’ Compensation Commission panel affirmed and adopted the arbitrator’s decision except for modifying temporary total disability award dates.
The circuit court was undeterred by the IWCC hearing officers. I write with deference to this honorable Court who I am sure did what he or she felt best with the record presented there. The circuit court somehow summarily determined Claimant Walsh was entitled to a longer period of temporary total disability and a wage-differential award to age 67.The court said Walsh should have received temporary disability benefits through Oct. 31, 2017, when the employer accommodated his work restrictions. The circuit court also ruled Walsh’s increased pain and swelling were evidence that continuing his line of work endangered his health and the accommodation of a truck with an automatic transmission was somehow “insufficient.” Finding Walsh was precluded from his customary line of occupation, the court determined that he was therefore entitled to a wage-differential award, as a matter of law(?)
The court remanded the case to the commission to for the first time, calculate such benefits, and the employer appealed.
Respondent Austin Tyler Construction argued the Commission’s decision that Walsh was entitled to a permanent partial disability award and not a wage-differential award should be afforded deference. Wage-differential awards are available to those who prove an impairment of earning capacity based on actual earnings for a substantial period before and after a work accident. Please note the burden of proof in such claims is on Claimant’s counsel.
On appeal, the Illinois Appellate Court, WC Division ruled the circuit court’s decision was “appropriate.”
They noted Claimant Walsh continued to have swelling four years after the surgery. And while a functional capacity exam or FCE showed that he could do his job if given a truck with an automatic transmission, the appeals court said Walsh’s doctor later imposed more stringent restrictions that prohibited climbing into the truck or its trailer. Please note these two sentences above indicate there is a factual dispute and the Commission’s ruling on factual disputes are supposed to be overturned only when “against the manifest weight of the evidence.” In my opinion and with respect to the members of our Appellate Court, WC Division I feel it is impossible to consider the IWCC ruling was against the manifest weight.
From the bigger picture, the Appellate Court, WC Division ruled the evidence showed Walsh could no longer perform the truck driver job. I would point out you don’t have to be a NASA rocket science to concur in that ruling. My point, as a Commission observer, and again with the highest deference to the members of our Appellate Court, the record before it was the responsibility of Claimant’s counsel. If he or she didn’t provide evidence as to the numbers and evidence to allow a wage differential award to be created, that is their issue and their failing shouldn’t be “corrected” or remanded to be re-heard to allow new evidence to create a simple wage diff calculation.
However, once the Appellate Court found Claimant Walsh was partially incapacitated from his usual and customary line of employment and, in my view, “magically assuming” without any factual basis in the record to find there is a difference between how much he could earn as a truck driver and how much he can earn now, the IL Appellate Court ruled Walsh was entitled to a wage-differential benefit in an unstated amount.
The Court’s members found the IL WC Commission’s award of PPD benefits instead of a wage differential was against the “manifest weight of the evidence,” the Court ruled and remanded the matter to the Commission to somehow recalculate the TTD benefits due and create or divine something that might allow someone to calculate Walsh’s wage-differential award.
If this Court had followed their ruling in CDW Corp v. IWCC that I highlight above, it would have been a simple matter—the requisite vocational assessment would have provided everything needed for the Arbitrator to make a reasonable ruling along with the IWCC panel, circuit court and Appellate Court, WC Division. My recommendation to attorneys for Respondent is similarly simple—come to the next evidentiary hearing with a vocational assessment indicating Claimant can and should be working in a sedentary or light job consistent with his injury, surgery and recovery. Considering locating remote work where he doesn’t have to leave home! In my view, there are hundreds of such jobs in the greater IL labor market right now. My recommendation to all attorneys on both sides of the IL WC matrix—start getting voc assessments in such claims and follow IL case law and common sense. If you, as a claims or risk manager, want a recommendation on a solid voc counselor to create such an assessment—send me a reply.
To read the court’s decision in Walsh v. Illinois Workers’ Compensation Commission, 3-23-0174WC, 12/21/2023, published, click here.
I appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: The IWCC has lost another of its greats. Herbert Franks, of Marengo Illinois succumbed to illness and recently passed away at the too young age of 89.
He never seemed to age, as he was always traveling and bringing good cheer to all.
Herb was a practicing attorney for nearly 60 years, never leaving his hometown of Marengo, where he founded the firm of Franks, Gerkin, Ponitz & Greeley. Herb was an excellent litigator, having won Million-dollar verdicts, but never losing sight of the community that he served.
I always respected and got along with Attorney Franks and I will forever miss him and his great sense of humor. He was a solid advocate for his many clients.
Synopsis: IRS Boosts Mileage Rate for 2024
The IRS is raising the standard mileage rate by 1.5 cents per mile for 2024.
The agency announced the business standard reimbursement rate per mile is rising to 67 cents per mile, up from 65.5 cents for 2023, beginning Jan. 1, 2024.
Please note based on IL case law, this rate is used to defray the cost of mileage to IME’s.
We recommend using Google maps to ascertain the mileage from Claimant’s home to the IME docs office and back, multiply by .67 and send the check with the IME notice.