ASA Law Group’s Quarterly Intention 
Author: Jordan Ann Lejcar

Well, that was fast. Time certainly is playing tricks on all of us, huh? I’m quite certain that I sat down to do some work in July and, when I looked up a few hours later, it was October. Needless to say, this year has been quite the roller coaster - filled with ups and downs, thrills and terrors, slow rises, quick drops, and a few loop-da-loops. Due to the industry picking up some speed, additional Commission procedures being rolled out, and dissecting McAllister, Q3 in particular was a whirlwind.

Whether on a small or a pandemic-sized scale, when faced with stress and change, people naturally default to cranking out the work rather than acting with purpose. Keeping this human tendency in mind, ASA’s Third Quarterly Intention is simple:

“Quality Over Quantity”

As a wise, old man once told me (please, no one tell my father that I have publicly admitted he is “wise,” or that I coined him “old”): “quality and purpose are important” and the “long-term rewards will be ten-fold.” In choosing this intention, I pledge to start each day clean, to declutter my mind, and to work through each task with purpose. Quality is not an accident, it is purposeful. To break the “quantity over quality” cycle, we must focus on accomplishing our goals individually and intentionally - giving each the time and attention it deserves until it is completed. Whether this is applied at the office or home, to work, household tasks, or even the time we spend with others, this simple three letter mindset can guide our activities and choices, and how we deliver on them as we close out 2020.

Stay strong, readers! This year will come to an end quicker than we can imagine. But, while we are still knee-deep in 2020, let’s focus on what we are doing and why – on achieving our year-end goals in a manner that will reap rewards ten-fold and set us up for future success, rather than quickly checking tasks off a list with little thought. This way, we will be some of a select few that can look back on 2020 and appreciate just how much we gained, rather than what we lost. 
ASA Gives Back to the Communities We Live In and Work With 
Author: Jordan Ann Lejcar

Whether it’s time, financial support, or even words of wisdom, giving back is ingrained in the ASA Way! Q3 started slowly, with some of the same challenges Q2 ended with. But, as time went on and restrictions were lifted, ASA was able to get back into the “swing of things” by making our annual appearance at the Kids’ Chance of Illinois Chicagoland Golf Fundraiser on October 5.

For those unaware, Kids’ Chance is a multi-state, non-profit organization that provides educational opportunities and scholarships for the children of workers who are seriously or fatally injured. Since 1988, Kids’ Chance has awarded over 5,479 educational scholarships worth $14 million! And, as of 2019, Kids’ Chance of Illinois was supporting 45 semester scholarships a year!

This year, ASA put on our matching “we’re all in this together” masks, dusted off the clubs, and sent our best to compete alongside teams represented by all facets of the industry – from employers, law firms, and medical vendors to other insurance industry professionals. ASA performed on and off the course, coming in 5 under par, making a team donation to the “longest drive pro competitor,” and winning the 50/50 “Greenie” (and, donating a portion back to the organization)!

ASA has also continued our Covid-19 inspired monthly firm donations to:
  • Chicago Food Pantry – continued commitment to 750 meals per month;
  • Illinois Million Mask Mayday – funding the creation of masks for Illinois distribution.

Remember, “no act of kindness, however small, is ever wasted.” Individually, the ASA families have made the following contributions:
  • Donations of gently used toys and party supplies to Sean’s Party Train (Sean is a young boy in the western suburbs who is collecting gently used or new toys and party supplies to help ensure all kids in the area have birthday presents. Each child in need is gifted one to two toys and any supplies, including candles, cake mix, and frosting, the family needs to celebrate!);
  • Car donation to Kars 4 Kids;
  • Poll Worker Volunteer this coming November 3rd;
  • JD Mentor for Hispanic Lawyers Association of Illinois;
  • Monetary donation to Sigma Lambda Beta Education Foundation (for scholarship);
  • Continued monetary donations to the American Society for the Prevention of Cruelty to Animals (ASPCA);
  • Donations of clothing items (men, women, and children), personal hygiene items, and small toys/books to a family of six who lost their home and possessions in a house fire.

Giving back comes in many shapes and sizes: a word of encouragement, forwarding a resume, cleaning out your pantry, donations of items you have no current use for, or even reaching out to someone who needs a listening ear. As always, we invite you – our colleagues, clients, and friends - to give back in any way you can!

#MoreThanLawyers #PeopleFirst! 

Illinois Procedures
Author: Alexa Venditti

Given the ongoing public health concerns associated with the COVID-19 pandemic, special procedures will continue to be in place at the IWCC Hearing Sites at least through the month of October. These procedures remain in effect until changed or discharged. November procedures will be released near the end of October.

Here is a summary list of pertinent procedural rules in place during these special circumstances:

  • Pro se Arbitrators will be present at the Chicago IWCC hearing site every day the office is open;
  • Monthly status calls will be conducted telephonically via WebEx, numbers for which will be posted on the IWCC website, with respective times and dates;
  • There are limited dates and times available for each arbitrator during the status calla, as posted on the IWCC website;
  • Any matter unable to receive a pre-trial or hearing date at the status call will be automatically returned to the call;
  • Cases will be set for trial on a limited number of dates and times during the hearing cycle after pre-trial discussions are held;
  • Pre-trials continue to be conducted telephonically and/or through WebEx;
  • Copies of motions/petitions must be delivered the arbitrator forty-eight (48) hours prior to the monthly call;
  • Notification of an assigned hearing date and time must be provided to the non-moving party by the moving party;
  • Parties that intend to proceed to trial must tender a complete Stipulation Sheet to the arbitrator prior to the scheduled pre-trial hearing;
  • Trials will be set for special times and conducted in-person. The parties should appear no more than ten (10) minutes prior to the scheduled hearing time at the relevant site, practice social distancing of six (6) feet apart, and remain masked throughout the hearing process;
  • In-person trials will begin at 9:00 AM, there will be a lunch break in between sessions, and afternoon hearings will be conducted from 1:00 to 4:30 PM. Should trials not be completed in the scheduled time, the handling arbitrator will set the matter’s remaining trial portions for a new date;
  • Upon completion of a trial, parties are to leave the IWCC hearing site immediately;
  • Trials for cases in jurisdictions other than Cook County (Chicago) will be held at the assigned venue, unless otherwise indicated;
  • Parties are free to communicate with a case’s assigned arbitrator via email or telephone conference, by schedule, to discuss matters of settlement, continuance, and trial, as well as to hold discussions on other case topics needing assistance.

Another big change to IWCC procedures throughout Illinois comes in the form of electronic submission and approval of lump sum settlement contracts! Attorneys are now able to draft, sign, submit, and obtain arbitrator approval of settlement contracts through the IWCC’s new web portal, CompFile. This new and welcome addition to the IWCC settlement procedure was put into place as of July 22, 2020. This is now the only way to submit and receive approval of settlement contracts at the close of a case as settlement documents mailed or delivered to the IWCC after July 21, 2020 will no longer be accepted. ASA has been utilizing the new submission system since late July with great success!
If you have any questions regarding the existing procedures in place at the IWCC, please feel free to reach out to any attorney at ASA Law Group for clarification!
McAllister vs. IWCC - A Shift in Risk Assessment and Expanded Liability for Employers
Authors: Jennifer Maxwell and Jordan Ann Lejcar

In September, the Illinois Supreme Court issued a long-awaited decision in McAllister v. IWCC, 2020 IL 124848, greatly impacting the “arising out of” requirement for compensability under the Illinois Workers’ Compensation Act.
In McAllister, the petitioner was a chef at a restaurant. During his shift, he entered a walk-in cooler in the kitchen to locate a missing pan of food. While searching, he knelt down inside the walk-in and, while standing up, felt a pop in his right knee followed by pain. At the time he knelt and stood up, he was not carrying anything, nothing struck his knee, and there were no alleged defects or hazards on the walk-in floor. He treated for a recurrent medial meniscal tear surgically and was eventually returned to full duty work. 
At the arbitration level, the petitioner was found to have suffered a compensable injury. The arbitrator ruled that when the petitioner knelt down in the cooler, he was performing a function that was reasonably expected as part of his job as a chef. The Commission reversed this decision, stating that the performed mechanism (standing up from a kneeled position) was simply a neutral risk activity. The Appellate Court confirmed, with the majority opinion holding that the injury was non-compensable where the petitioner’s activity (trying to locate something in the walk-in) was too remote from his job requirements to be considered incidental to his employment. 
Because the facts of the case were subject to more than a single inference, the Illinois Supreme Court reviewed the Commission’s decision under the “manifest weight of the evidence standard.” In reversing said decision, they held that the “injury was employment related because it was caused by kneeling and standing while assisting a coworker’s search for carrots in a walk-in cooler - acts that were incident to and causally connected to claimant’s job duties as an arranger of the walk-in cooler.”  

How did the Court reach this conclusion?

The factual scenario before the Court raised no question of whether the injury occurred “in the course” of petitioner’s employment; rather the ultimate question remained whether the injury “arose out of” his employment. As is customary, the Court looked to the three traditional risk categories: 
  1. Employment risks, or risks that are distinctly associated with the employment;
  2. Personal risks, such as nonoccupational diseases or personal infirmities; and
  3. Neutral risks, which have no particular employment or personal characteristics, such as stray bullets, dog bites, or lightning strikes.
In this case, the Commission found that the act of kneeling and standing was a “neutral risk” because he was performing an “activity of daily living” and not performing that activity of daily living any more than a typical person. The Illinois Supreme Court disagreed with the Commission’s classification of risk. Rather, the Supreme Court held petitioner’s knee injury fell squarely within “employment risk” because, in this scenario, his duties included arranging the walk-in cooler. Thus, the act of kneeling and standing back up again was “an act the employer might reasonably expect him to perform to fulfill his job duties,” i.e. looking for a misplaced item. Of significance, the Court specifically found that “common bodily movements” and “everyday activities” ARE compensable if they resulted in injury that had its origin in a risk incidental to employment.

Of note, the Court maintained that Caterpillar Tractor “remains the starting point for analyzing ‘arising out of’ injuries, even those that involve common bodily movements and everyday activities.” The Court further noted that if the petitioner can prove he was involved in an employment accident, Caterpillar Tractor did not require him to additionally prove greater exposure - thereby overruling Adcock and its progeny to the extent they hold that injuries attributable to common bodily movements or routine everyday activities (such as bending, twisting, reaching, or standing up from a kneeling position) are not compensable unless a claimant can prove exposure to a greater extent than the general public.

In concluding its decision, the Supreme Court considered the “alternative arguments” raised by both parties. The Court stated it did not need to address the claimant’s alternative argument that the knee injury was compensable under the neutral-risk analysis because it found the claimant’s knee injury was “employment related.” The Court went on to state “similarly, and for the same reasons, we need not address the employer’s argument relating to the positional risk doctrine, which this court has declined to adopt . . . and which only applies to neutral risks.”

What Do Employers Need to Know?

  • This case is clear shift in risk assessment in Illinois workers’ compensation cases.
  • Going forward, the term “activities of daily living” no longer applies.
  • Going forward, we will be working under the umbrella “common bodily movements.”
  • Liability for “common bodily movements” will likely be expanded to include cases where a claimant is performing an act:
  • As instructed by an employer;
  • Pursuant to common-law or statutory duty; and/or
  • That an employee might reasonably be expected to perform incident of his or her assigned duties.
  • Continued questions and litigation regarding the definition of “common bodily movements,” such as walking, sitting, standing, etc.
  • Continued questions and renewed litigation regarding the “Positional Risk” doctrine in Illinois.
  • Investigation of these type of claims will be more important than ever. Moving forward, detailed and contemporaneous documentation of the accident will be key in assessing and asserting other defenses. 

An Overview of the California Employment Development Department and Workers’ Compensation Liens
Authors: Talin Maghakian

As we all have likely heard, the unemployment division of the California Employment Development Department recently made the news with respect to the fraudulent activity carried out by numerous criminals and opportunists when personal information from the dark web was stolen and used to obtain hundreds of thousands of dollars in unemployment benefits. Therefore, it is timelier than ever to pay closer attention to the details surrounding disability benefits issued by the state to injured workers.

In the world of California workers’ compensation, the California Employment Development Department is often a necessary evil to be dealt with, particularly in the instances of denied workers’ compensation claims. Put simply, when a claim is denied, the alleged injured worker will seek disability indemnity benefits from the state by presenting a physician’s certification of disability. Since the claim is denied, the physician’s evaluation and treatment rendered are obtained on a lien basis, or, the provider will seek to be compensated once the claim is resolved. When this happens, the California Employment Development Department will file a lien with the Workers’ Compensation Appeals Board for the entire amount of indemnity disbursed to the injured worker. Since the employer defendant and its attorney of record are required to litigate the liens (with limited exceptions) once the claim is resolved, the lien for unemployment benefits are left to either dispute or settle. When “EDD liens” are presented, there are several important considerations to be made and they are as follows: 

Was the certification of disability issued by a physician?

This requirement seems like a no brainer and although we do very much respect the work of herbal healers, yoga instructors, and shamans, they are not qualified to issue a certification of disability for purposes of state disability benefits. Therefore, it is good practice to research the name of the physician and establish that they are indeed qualified. 

Was the physician’s certification of disability connected with the work-related injury in question? 

This is where a careful review of the medical reports become necessary. More often than not, the injured worker presented to the physician and advised that they were injured at work and have ongoing symptoms to the body parts they have pled as part of their injury. Sometimes, however, the physician’s certification of disability will relate to a different body part that has not been pled or to an entirely different injury. In that case, the lien will not be compensable and EDD will be required to withdraw their lien.

Was the alleged work-related injury found to be compensable?

This is where the nuts and bolts of litigation present themselves. If a claim was denied, however, there is later a finding of disability on a work-related basis by a primary treating physician, a QME, or AME, then CA EDD has more leverage to assert recovery for the full amount of indemnity that was paid to the injured worker. There are, however, other factors that come into play, namely whether the injured worker made a fraudulent claim of a work-related injury, filed the claim after they were terminated from employment, or failed to report the injury to their employer. These are all good considerations to undertake when negotiating settlement of an EDD lien, however, more often than not, the medical findings tend to prevail. 

What was the rate at which EDD issued benefits to the injured worker?

There are times when EDD will pay disability benefits to the injured worker at a rate higher than what the employer would have paid had the claim of injury been admitted. In those limited instances, and assuming that all three of the above requirements have been met, EDD should be reimbursed at the appropriate rate, which is two-thirds of the worker’s average weekly wage. 

Although these considerations for EDD liens have been broken down here in a simplified and more digestible fashion, just as anything else, no two claims are alike and come with their own set of unique challenges. We are always available to discuss strategies when it comes to workers’ compensation liens, especially those of EDD.  

Third Quarter Highlight: ASA Participates in Judicial Training
Author: Jennifer Maxwell
This quarter ASA Law Group had the privilege of participating in the Illinois Workers’ Compensation Commission’s 2020 Mandatory Legal Education program. President/Owner Shuaib Ahmed and Attorney Jennifer Maxwell virtually presented the topic of “Recreational and Medical Marijuana” to the Commissioners, Arbitrators and staff of the IWCC. The presentation included discussion of relevant statutes, recent case law and the impact of recreational and medical marijuana on the workers’ compensation industry in Illinois.

ASA Law Group is honored to have been chosen by the IWCC to participate in the Legal Education program and thankful to be recognized as a firm that can be relied on by the Commission for information on current workers’ compensation issues. ASA’s participation is another example of our commitment to professional excellence and industry leadership.
ASA Book Club’s Q3 Read: The Power of Positive Thinking by Norman Vince Peale
Author: Adan Ramirez

Norman Vince Peale’s, The Power of Positive Thinking, is a guide to victory against the everyday problems, pains, struggles, and difficulties that plague human existence. Peale provides a holistic approach to cultivating peace and conditioning the mind for living a successful life through his spiritual techniques and faith.

All of Peale’s teachings revolve around one simple principle, positive thoughts get results. Think about it this way - stress, anger, worry, and self-doubt are all mental creations. However, these mental creations have direct physical effects on our bodies. When we are angry our palms tense up, when we worry, we are unable to physically fall asleep, and when we are stressed our hair falls off. What if we could defeat these mental creations through the power of positive suggestion? More importantly, if these negative feelings have such negative effects on our physical bodies and world, what are the positive physical effects that positive thoughts could bring upon our lives?

Of course, the logical question is then, how the heck can we condition our minds to extrude positivity when we’re constantly faced with life’s challenges? For Peale, the answer is through God, prayer, and faith.

“If God be for us, who can be against us?” (Romans 8:31). It is Peale’s belief that God does not only give upon us, but that we too can ask upon God for the power to fill our mind with positivity. If our pattern of thought is a negative one, we will fill our lives with the same. It is also Peale’s belief that in each of us there are all the potential abilities we need to be successful, but it is up to us to tap into such abilities and develop them. So, if God is on our side Peale thinks there is no reason why we can’t all tap into our full potential.

The Power of Positive Thinking shares workable techniques on how to find peace in your life, how to generate constant energy, how to get people to like you, how to decrease anger, build self-confidence, and the list goes on. Before you pick up this book, think and reflect on what are the problems that are inhibiting you from reaching your success? During the time I read this book, my first year as a practicing attorney was coming to a close, I began planning big life events, and, like many, am still learning how to manage life through Covid-19. With this in mind, here my three personal takeaways from this book:

1)    How I perceive life and face challenges depend on the thoughts that habitually occupy my mind. If I think defeat, I’m bound to feel defeated. But, if I make confident thinking a dominant habit of mine, I will be able to overcome the challenges that come my way as I start my career and the changing circumstances brought by Covid-19.

2)    “It isn’t hard work that drains up energy, but emotional upheaval.” If my mind is tired, then my body will feel tired. Therefore, I must make a conscious decision to uplift my mental energy to have the physical energy I need to plan and prepare for my big life events that will ultimately bring me happiness.

3)    Lastly, although my schedule can sometimes get hectic and overwhelming with work, family, and everything that’s thrown my way, I must invest time into finding inner peace to give my mind space to create the positive thoughts needed to be successful.

Would I recommend this book? Yes, with the caveat that Peale centers his techniques around the teachings of Christianity. Now, that’s not to say that if you practice another belief system this book will not be helpful, but you will be simply tasked with making the distinction between Christianity and your own faith system.
Don’t have the time to read this book just yet? Here are three simple techniques from this book that you can implement in your life right away!

1.     Repeat 10 times in the morning and 10 times before you go to bed a positive affirmation. Peale recommends you say, “I can do all things through Christ which strengthens me.” (Phillippians 4:13).

2.     Make the effort to spend 10 minutes a day to quiet and calm your mind. Take a walk, sit outside, no phone, no work. Give your mind the space to create positive thoughts.

3.     Anger often stems from the culmination of many little inconveniences that build up throughout the day. To tackle this, find solutions to these small factors first. When you’re done, you will find the thing that broke your temper seal was also small enough to solve.

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