Keefe, Campbell & Associates, LLC

Editor’s comment: Here is an interesting exchange for academics on Illinois’ unusual workers’ comp concept of Section 12 exams.

We recently had a claimant demand that he be allowed to have his treating physician attend an IME. In this case, the IME doctor refused and the adjuster was able to convince the claimant to attend without his physician.

If claimant had refused to attend without his physician and the IME doc had refused to see the claimant with his doctor present, would the claimant have grounds not to go?

Essentially, can claimant control who attends his IME?; or

Does the employer have the ultimate say on whether anyone else can attend (case manager, translator, etc)?

To respond, we first look to our Workers’ Compensation Act; please see the language below.

Section 12: Employer May Request Employee Medical Examination

Section 12. An employee entitled to receive disability payments shall be required, if requested by the employer, to submit himself, at the expense of the employer, for examination to a duly qualified medical practitioner or surgeon selected by the employer, at any time and place reasonably convenient for the employee, either within or without the State of Illinois, for the purpose of determining the nature, extent and probable duration of the injury received by the employee, and for the purpose of ascertaining the amount of compensation which may be due the employee from time to time for disability according to the provisions of this Act. An employee may also be required to submit himself for examination by medical experts under subsection (c) of Section 19.

An employer requesting such an examination, of an employee residing within the State of Illinois, shall deliver to the employee with the notice of the time and place of examination sufficient money to defray the necessary expense of travel by the most convenient means to and from the place of examination, and the cost of meals necessary during the trip, and if the examination or travel to and from the place of examination causes any loss of working time on the part of the employee, the employer shall reimburse him for such loss of wages upon the basis of his average daily wage. Such examination shall be made in the presence of a duly qualified medical practitioner or surgeon provided and paid for by the employee, if such employee so desires.

In this fact situation, we are going to bet the employee read the Act. We were amazed to hear an injured worker would want to pay a doctor to attend an IME–most treaters would charge several thousand to travel to, wait for and attend an IME and it would be at the employee’s cost, as the Act says.

Section 12 exams have a very specific legal impact. If the rules above are followed and the employee fails to attend, all benefits currently due can be denied.

To address the bulleted questions above:

1. If the claimant had refused to attend without his physician and the IME doc had refused to see the claimant with his doctor present, would the claimant have grounds not to go?

In our opinion, the answer is yes and the legal impact of the IME would be lost.

2. Essentially, can the claimant control who attends his IME or does the employer have the ultimate say on whether anyone else can attend (case manager, translator, etc)?

In our opinion, the answer is mixed. The employee could pay a physician of his own choosing to attend. If the employer or their choice of IME blocked such attendance, it would stop/end the legal impact of the IME. We would strongly urge the employer or the carrier to tell your IME doctors to know the rules. We also cannot understand why one doctor couldn’t and/or wouldn’t examine a patient in the presence of another licensed doctor. When doctors are being trained as interns that happens all the time. If your IME doc were training an intern or three, it happens. They are being paid a lot of money to conduct the exam and write a report so who cares if another doctor is present when they do so?

3. Does the employer have the ultimate say on whether anyone else can attend (case manager, translator, etc)?

The employer has a say on who can attend but we suggest the actual exam should be IME doctor, observer doctor for wildly wealthy claimants and examinee. Nurse case managers can be present but not in the examination room. If a translator is needed, a professional translator should be used.

As a rule of thumb for everyone to remember—these kinds of issues are best brought to Illinois Arbitrators at the earliest opportunity. You don’t have to wait for a hearing to ask such a simple question. The Arbitrators, when they aren’t busy, are tremendous resources on such issues and will provide guidance to both sides on what they are going to do with IMEs/Section 12 exams if the matter becomes litigated. Ask them early and you will avoid uncertainty later in the process.

We appreciate your thoughts or comments and/or feel free to post them on our award-winning blog.

Editor’s comment: In less than ninety days, our former Governor is going on trial for various counts of bribery and extortion while in public office. There is no indication he will cop a plea and quietly accept his medicine. Illinois voters are going to watch what we feel is a crooked politician do everything he possibly can to wriggle off the hook—the tawdry and embarrassing legal battle will lead right up to the November state-wide election. We don’t feel voters will be amused by the spectacle.

At the same time, this Wednesday, our current Governor is going to tell Illinois voters he is facing a budget deficit of well over $13 billion dollars! He is going to face the situation head-on and demand the legislature dramatically raise our taxes once again. We don’t feel he has the guts or drive to make the changes needed to dramatically cut costs now or in the future. Trust us, Illinois voters apparently don’t mind their money being squandered on our hilariously poorly run state government in Illinois unless and until they find out more taxes are inescapably due. When that happens, history tells us they generally rise up and knock out any politician who supports new taxes. One way or the other, this current administration may be called to task for about a decade of waste and corruption and shown the door.

All of this is pointing toward a Republican rebirth at the state level this fall. Those Republicans are already asking tough questions. We are certain to want to provide guidance and answers that are in the best interests of our clients and the broad base of Illinois employers struggling to compete in a very competitive national and international economy.

Numerous sources indicate workers’ compensation costs in Illinois have steadily risen to be among the highest in the nation. All of our readers and everyone who writes an email reply about workers’ comp costs routinely advises our fair state is out-of-whack with our sister states and the rest of the country. The collective angst of Illinois business is being heard more than ever before. There are various bills now proposed by our state legislators to change the Act and even the Illinois Workers’ Compensation Commission’s system of dispute resolution itself. We also point out administrative change will be inescapable.

This all begs the main question that keeps coming back; what should be changed and how?

The claim the “lawyers have caused the problems” is a flippant, easy answer but it does not address any of the real problems from the perspective of Illinois business. In fact, the Illinois Workers’ Compensation Commission digests over 50,000 cases per year. The attorneys who work within the system are, on the whole, professional and well-versed in the law and practice. Attorneys on both sides represent their clients well. We feel the main cost associated with workers’ compensation claims in Illinois do not stem from litigation; in fact, litigation costs are a very small fraction of the overall cost of claims.

For this reason, the promulgation of an alternative dispute resolution system (ADR) would again do nothing to address some of the real changes that would benefit Illinois business while still protecting injured workers’ rights. Point in fact, the Commission structure already is “alternative dispute resolution” as it is an alternative to the much more ungainly and slow civil court system. The IWCC is comparatively streamlined and works remarkably well when veteran attorneys for both parties are working a case.

As an example, our firm was recently assigned a file on July 14, 2009 with a serious medical and accident dispute. The parties obtained expert opinions, took depositions, tried the case and received a decision on a 19(b) hearing by October 20th. Following that model, this established system can and does work well, regardless of what the critics say. Does litigation always proceed with such economy? Of course not,but when there are delays, it is most often due to the need for further information/fact gathering, which the arbitrator requires to make an informed decision.

If another version of ADR is inserted under the current Workers’ Compensation Act, what changes? Assuming the same statutory rights are protected and the body of case-law that has developed over the past decade or so is still followed, it is our impression that nothing is accomplished by the creation of ADR. Implementation of any such binding arbitration is similarly duplicative, as Section 19(p) of the act has the equivalent of binding ADR with an option for the parties to conduct a one-time binding arbitration which is not appealable to the Commission or any Court. Therefore, if the parties desire such finality without recourse to review an opinion, they are already free to do so under the current Act.

All right then; we save the Commission itself, but what do we change to save Illinois business and bring our WC costs into line?

We offer three proposed changes to the Act which would make Illinois competitive again with our sister States while still protecting workers’ rights (at least in the workers’ comp arena).

Insert a new legal standard for compensability of an “aggravation of a pre-existing condition”.

One of the most frustrating aspects of our system from the employer’s perspective is when an individual has a simple twisted knee claim without blunt trauma or tears, yet due to an advanced degenerative joint, is a candidate for a knee replacement. When the doctors testify the sprained knee is “a cause” of the symptoms, the floodgates open and the employer, through no fault and without ability to prevent such an injury, must pay hundreds of thousands of dollars for joint replacement, TTD and wage differential benefits when such workers are deemed unable to return to work.

We propose a statutory requirement as follows: “in the event a work accident reveals pre-existing degenerative medical conditions, the work accident must be the primary aggravating factor which creates the need for treatment and any subsequent disability for the continuation of benefits under the Act.”

Cap wage differential and permanent total disability claims at 10 years of benefits or 520 weeks.

Again, Illinois is the most expensive State in the Union due to such lifetime claims that almost no state provides. We will never be competitive as a state in terms of attracting and keeping business unless such costs are reined in. Workers’ compensation is a no-fault system of benefits that provides 100% medical cost coverage and wage replacement while disabled. Most cases settle based on the traditional “scheduled” loss of the respective body part. For more severe claims, a reasonable “safety net” for employees is to provide a decade of wage replacement benefits. At our high benefit rates, this would still be relatively high compared to other States, but nonetheless better than the current windfall of lifetime benefits. As part of this change, we propose that vocational assistance must continue to be offered to candidates for placement. However, vocational assistance should be suspended after 6 months, with any wage differential based on the median income earning potential pursuant a labor market survey. In other words, claimants don’t get to allege they are “odd-lot” permanent total disability candidates simply because they cannot get hired within their restrictions.

Pay medical bills in workers’ comp at what is paid in the group health-care arena.

Finally, this one is a no-brainer of the highest level. Why have non-parallel systems for Illinois business where doctors and other health care givers are reined in by Blue Cross/Blue Shield or Aetna on the group health side but on the workers’ comp side, medical bills run completely batty? No one has any idea how to rein the abusers and overbillers in on WC—we recommend mandatory UR as a path. In our view, the Commission provides nothing but confusion and consternation when they implement it. Let’s make it mandatory or simplify it but start to come in with true guidelines to the benefit of injured workers and their employers alike.

We can’t tell you we have all the answers but we are sure we know the right questions. Please let us know your thoughts and ideas. This article was written by John P. Campbell, J.D. and Eugene F. Keefe, J.D.

Editor’s comment: As we advised last week, we are certain some of Illinois workers’ comp rates are now wrong. We had at least fifteen readers/clients suggest we write to see if they will address it and voluntarily change the rates to correct statutory values. With greatest respect, we are providing this pre-mandamus letter to the Chairman and all sitting members of our Commission (you may note Commissioner Paul Rink remains listed on their website but retired on February 26, 2010).

Please consider this our formal request to correct the rates posted on the web at http://www.state.il.us/agency/IIC/benefits.htm to be in compliance with §8(b)4 of the Illinois Workers’ Compensation Act. While we note the Commission’s website provides a caveat indicating the statute takes precedence, we do not want our clients to have to set rates at different values and litigate this on a piecemeal basis at a high cost to possibly contradictory outcomes.

We note the relevant parts:

From July 1, 1977 and thereafter such maximum weekly compensation rate in death cases under Section 7, and permanent total disability cases under paragraph (f) or subparagraph 18 of paragraph (3) of this Section and for temporary total disability under paragraph (b) of this Section and for amputation of a member or enucleation of an eye under paragraph (e) of this Section shall be increased to 133-1/3% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

The website lists the rate as $1,243; however 133-1/3% of the State’s average weekly wage calculates to $1,229.93.

§8(b)4.1. Any provision herein to the contrary notwithstanding, the weekly compensation rate for compensation payments under subparagraph 18 of paragraph (e) of this Section and under paragraph (f) of this Section and under paragraph (a) of Section 7 and for amputation of a member or enucleation of an eye under paragraph (e) of this Section, shall in no event be less than 50% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

The website lists the rate as $466.13 however 50% of the State’s current average weekly wage calculates to $461.23.

Because numerous sources have requested clarification on this issue, we believe time is of the essence and would appreciate a reply or correction posting by April 1, 2010 to allow us to resolve the matter or request more formal resolution.

This letter was drafted by Shawn R. Biery, J.D. It will be forwarded to Chairman Masters and the other Commissioners on March 9, 2010. We will post any reply in a future Update.

Editor’s comment: Effective today, March 1, 2010, John Wilson has moved to our firm and will take up the defense of Illinois general liability, employment law and workers’ comp claims. He has been a licensed Illinois lawyer since 1978 and had experience putting bad guys into jail when working for the States’ Attorney’s office. We will start to publish his phone numbers shortly—email is jwilson@keefe-law.com.

We wish him well in his hard work with our firm.

Editor’s comment: Effective February 26, Commissioner Paul Rink and chief legal counsel Kathryn Kelley retired.

Commissioner Rink joined the Commission in 1991. He is widely regarded as a thoughtful and hard-working hearing officer. As a person who is blind, Paul rose to be one of the highest-ranking Illinois state employees with a disability, and he brought special insight to deliberations of whether an injured worker was capable of working.

Kathryn Kelley joined the Commission in 1981. Her vast knowledge about the Commission, quiet and careful attention to detail and methodical approach to legal issues were appreciated.

We agree the Commission was better for Paul Rink and Kathryn Kelley having served it. The partners and associates of Keefe, Campbell & Associates extend our best wishes to them in future pursuits.

Until a new commissioner is appointed, the Commission will make every effort to cover Commissioner Rink’s place during oral arguments and review calls with public commissioners. Currently, oral arguments will proceed as scheduled. If any schedule changes are necessary, they will be posted in advance on the Commission website.

As we reported last week, the chief counsel’s position has been posted at http://www.iwcc.il.gov/job.htm.

Editor’s comment: While this ruling isn’t a major change in Illinois WC law, we continue to cringe about what is happening in the work comp arena in our fair state.

In Szarek v. Illinois Workers’ Compensation Commission, (No. 3-08-0530WC October 29, 2009), claimant, an apprentice carpenter, was seriously injured after falling through a floor opening on a second floor of a house he was helping to build. His employer contended marijuana use, detected via urinalysis, was the proximate cause of fall. The decision indicates the employee was winding in a chalk line when he fell. Other than urinalysis, the majority ruled there was

- No evidence … he was so intoxicated he had abandoned his employment, nor
- Was marijuana use was sole cause of fall, and
- Witness statements establish employee was performing his job duties at time of accident.

The court did rule the Commission’s award of penalties and fees was reversed as any “reasonable person” could have concluded claimant might not be entitled to workers’ compensation benefits. We are confident this won’t alleviate the onus of paying lifetime medical and lost time benefits. We also point out this is the third reported decision in the last 12 months where our reviewing courts have awarded benefits to someone who admittedly and unquestionably committed a crime.

In our view, based on the evidence outlined in the ruling, this claim would have been compensable under traditional Illinois’ legal analyses but it was handled by one of the most misguided TPA’s of Illinois TPA’s. In our view, the TPA had their defense counsels do any number of unusual things in spending literally tens of thousands of dollars to lose this claim over the nine years it was unsuccessfully litigated. If you have claims involving intoxication or impairment and want real answers on effectively defending them, send a reply.

Please note this ruling continues to implement what we feel is a contradictory and paradoxical analysis of allowing substantial seven-figure workers’ comp benefits despite an injury under the undisputed influence of drugs or alcohol. One legal device to find such an injury compensable is indicated to be the claim the impaired miscreant did not “abandon employment.” We note this same legal concept was recently proposed in new legislation.

We ask the rhetorical question of how a worker can have a work injury if they have abandoned employment? If the worker abandoned employment while stoned or drunk, they aren’t on the job any more, correct? If they aren’t on the job, they can’t ever have a work injury so how does such language add anything to this analysis? It is our academic view the paradox doesn’t add anything to the compensability of such a situation and it guarantees benefits to any intoxicated or stoned worker who remains on the job after becoming drunk or stoned.

While we feel this case would have been compensable for a number of reasons including possible OSHA violations, we feel legislation is the best way to address workplace intoxication and impairment. Please also understand an impaired worker is a health and safety risk, not just to themselves but to all workers around him or her. We also urge all Illinois and U.S. employers to learn from this lesson and implement drug and alcohol-free workplace protocols. Please let us know your thoughts and comments.

Editor’s comment: This is a decision that is hard to argue with. It appears some children are better off if their biological forebears are not working. In Illinois Department of Healthcare and Family Services Ex Rel. Elizabeth A. Black v Frank H. Bartholomew, the Fourth District of the Illinois Appellate Court affirmed a Circuit Court ruling allowing the payment of child support arrearage from a workers’ compensation award and ruled Illinois law and public policy allow a trial court to apply proceeds from a workers’ compensation settlement toward a child-support arrearage.

By way of background—in March 2005, Elizabeth and Frank, who were not married, had a son, Nicholas. Frank signed a voluntary acknowledgment of paternity and “accepted the obligation to provide child support” for Nicholas. On February 6, 2007, the Department issued an administrative support order pursuant to its authority under article X of the Illinois Public Aid Code (Code) (305 ILCS 5/10-1 through 10-28 (West 2006)) requiring Frank to pay child support of $428.52 per month. On August 23, 2007, the Department issued an income-withholding notice to Frank’s employer ordering it to withhold $428.52 per month for current child support, as well as $85.70 per month toward a delinquency of $6,602.34. On October 23, 2007, Elizabeth filed a petition to establish the existence of a father-child relationship and for other relief. With her petition, Elizabeth provided a copy of the voluntary acknowledgment of paternity, the administrative support order, and the income-withholding notice and alleged Frank had filed a workers’ compensation claim and was awaiting settlement. She asked the trial court to adjudicate Frank the father of Nicholas, order him to pay child support, prohibit him from dissipating any workers’ compensation settlement, and grant her 20% of any such settlement as current child support. On January 3, 2008, the trial court held a hearing on Elizabeth’s petition. Frank failed to appear.

On January 7, 2008, the court entered an order finding Frank the father of Nicholas, ordered him to pay child support pursuant to the administrative order, ordered Frank not to dissipate any of his workers’ compensation settlement without court order, and determined Elizabeth should receive 20% of the net settlement in addition to the child-support arrearage already owed her, which amounted to $6,602.34 as of August 23, 2007. On January 28, 2008, Frank filed a motion to vacate the part of the trial court’s order requiring payment of past-due support from his settlement, arguing such payment was barred by Section 21 of the Illinois Workers’ Compensation Act, which prohibited workers’ compensation awards from “be[ing] held liable in any way for any lien, debt, penalty[,] or damages.” On April 1, 2008, the court entered an amended order requiring Frank to place his settlement funds in trust until further order of the court determining the amount to be paid Elizabeth. Thereafter, Frank received a workers’ compensation settlement of $175,000. After multiple proceedings, an order was issued indicating funds previously ordered to be held in trust in the amount of $9,216.77 shall be applied toward the child-support arrearage and interest due under the administrative support order and Frank appealed from the court’s orders.

There was no objection to the use of Frank’s workers’ compensation settlement to pay current child support. He argues, however, a request for payment of an arrearage pursuant to a child-support lien for payment of a past-due support obligation is a debt that is barred from collection from his compensation settlement. Frank argues workers’ compensation benefits are exempt from judicial process for child-support arrearages.

Section 21 of the Act provides, in pertinent part, as follows: “No payment, claim, award[,] or decision under this Act shall be assignable or subject to any lien, attachment[,] or garnishment, or be held liable in any way for any lien, debt, penalty[,] or damages.” 820 ILCS 305/21 (West 2008).

The exception to income exemptions from judgment appears in section 15(d) of the Income Withholding for Support Act (Withholding Act) (750 ILCS 28/15(d) (West 2008)), which provides as follows: “(d) ‘Income’ means any form of periodic payment to an individual, regardless of source, including *** workers’ compensation ***[.] * * * Any other [s]tate or local laws which limit or exempt income or the amount or percentage of income that can be withheld shall not apply.”

The Court noted the language of section 15(d) of the Withholding Act is clear and straightforward. Any other state or local law purporting to exempt statutorily defined income, which includes workers’ compensation benefits, does not apply to proceedings involving the collection of child support and further noted that if the legislature wanted to exempt workers’ compensation payments from collection of child-support arrearages, it could have done so when it enacted the Withholding Act in 1999. Instead, the language of section 15(d) of the Withholding Act is clear.

The Court also noted applying Frank’s workers’ compensation settlement funds to his past-due child support also serves the intent of the Act because the Illinois workers’ compensation scheme (THEIR TERM, NOT MINE) was enacted “to furnish a measure of financial protection to the workman and his dependents for injuries received by him which arose out of and in the course of his employment.” They further noted Sections 7 and 8 of the Act recognize a worker’s dependents are intended beneficiaries. Section 7 provides for compensation to go directly to a worker’s dependents in the event of a fatal injury (820 ILCS 305/7 (West 2008)), and Section 8(b) provides a worker’s compensation for nonfatal injuries is increased if he/she has a spouse and/or child (820 ILCS 305/8(b)(1), (b)(2), (b)(2.1) (West 2008)).

Because dependents are intended beneficiaries of workers’ compensation awards, the public policy furthered by the exemption in Section 21 of the Act is to protect workers and their dependents from the claims of outside creditors, not to shield workers from their own internal family obligations. As the Supreme Court explained in Logston, the purpose of income exemptions in general is to ensure creditors cannot deprive debtors of the means of supporting themselves and their dependents. Logston, 103 Ill. 2d at 279-80, 469 N.E.2d at 172-73. Illinois law and public policy allow a trial court to apply proceeds from a workers’ compensation settlement toward a child-support arrearage. Accordingly, the trial court did not err when it ordered Frank’s child-support arrearage plus interest be paid from his workers’ compensation settlement.

So the bottom line is that at some point if you get some benefit, the state and the taxpayers will expect you to take care of you obligations to your family. I highlight the fact the settlement was $175,000 and the amount of child support in arrears was less than $10,000. It is difficult to fathom why the time and effort was spent trying to avoid paying child support which was past due. Here is hoping little Nicholas learns his lessons from someone other than his proud papa. The ruling is on the web at http://www.state.il.us/court/Opinions/AppellateCourt/2009/4thDistrict/December/4090197.pdf. This article was written by Shawn R. Biery, J.D. Please feel free to email Shawn at sbiery@keefe-law.com with your thoughts and comments.

Editor’s comment: At some point in December of each year for several decades, the IWCC posted a new PPD maximum rate. When that happened, the new and higher PPD maximum rate had to be retroactively implemented by claims handlers for claims occurring in the period backward to July of the applicable year and then for future claims until next July. This year nothing happened! The rates simply remained the same.

Well, inquiring minds need to know. Turns out the statewide average weekly wage (or SAWW) went down!! For the first time since the SAWW was implemented to make WC rates spiral up, one would have thought Illinois business would get rate relief in the workers’ comp arena. We learned from George Picha of Picha and Salisbury and KC&A’s own WC rate guru, Shawn R. Biery, the Commission did not change the existing maximum PPD rates since the SAWW actually decreased and also for the reason the Act does not contain a specific provision authorizing a corresponding decrease in the maximum rates.

The Commission’s own website says:

Every six months, the Illinois Department of Employment Security publishes the statewide average weekly wage (SAWW). The SAWW sets the maximum and minimum weekly benefit levels for workers’ compensation. To calculate the SAWW, total wages are divided by the total number of employees in the past six months. Some employees worked every day, and some worked only a few days, but all are counted together. (Federal workers and self-employed workers are excluded.)

Although every attempt is made to calculate the workers’ compensation rates in an accurate and reliable manner, only the Illinois statute governs. Where there is a disagreement between the statute and the IWCC’s calculations, the statute is correct.

*As provided in Section 8(b)4, there is no increase in the benefit rates for 1/15/10 – 7/14/10 because the SAWW decreased.

In a website we have saluted for years, we remain stunned to see they didn’t post their decision as web news or something of note.

We then understood there may be no need for a specific statutory provision authorizing the Commission to reduce the maximum rates since Section 8(b)4 mandates the maximum TTD rate “shall be increased to 133-1/3% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.” Section 8(b)4.1 further states: “Any provision herein to the contrary notwithstanding, the weekly compensation rate for compensation payments under subparagraph 18 of paragraph (e) of this Section and under paragraph (f) of this Section and under paragraph (a) of Section 7 and for amputation of a member or enucleation of an eye under paragraph (e) of this Section, shall in no event be less than 50% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.”

If you do the math, by leaving the current maximum TTD rate at $1,243.00, that number would actually represent 134-3/4% of the current $922.45 SAWW and not 133-1/3% as the statute patently outlines. The current published minimum rate for death, PTD, amputation and enucleation cases would actually be 50.53% of the current SAWW and not 50%. We feel where the current maximum TTD rate applies our readers may want to consider paying $1,229.93 per week, and in Section 8(b)4.1 cases, $461.23 per week. Please note this recommendation may result in litigation to debate this statutory issue.

We have not researched the issue of computing the accurate maximum PPD rate, if the rate retroactive to 7/1/09 is based upon the $922.45 SAWW, there should be a proportionate decrease for the same reason. There is no question the maximum TTD and minimum rates for Section 8(b)4.1 cases are specifically tied to a stated percentage of the SAWW, a specific provision in the Act authorizing a decrease in the rate when the SAWW decreases is unnecessary and, in our view, should be presumed to be the law.

We need your thoughts on all of this. In order to push for a change favorable to Illinois business, we need to take this matter to the courts on what is called a writ of mandamus. A writ of mandamus can be used to have a court compel an administrative agency, such as the IWCC to act and follow the provisions of the law. In Illinois, one may petition the circuit courts for a writ of mandamus “to command a public official to perform some ministerial nondiscretionary duty in which the party seeking such relief has established a clear right to have it performed and a corresponding duty on the part of the official to act.” The authority of the respondent to comply with the writ must also be clear. Finally, Petitioner must show that a demand was made on the official concerned but he or she refused to comply. This is to make sure the officer in question has the option of performance before the court exacts compliance. Please remember the Illinois courts may follow the law and they may make it up as we go along.

So we are asking all of our readers, should we take this to the courts? Well, if we don’t, Illinois business is certain to continue to overpay benefits. And if the economy stays flat and the SAWW goes down even further, the gap will increase. We invite your thoughts and comments. We have made inquiries and the Illinois State Chamber may consider supporting these efforts if this is important to Illinois business.

Editor’s comment: Human resources and benefits managers across the U.S. are smiling to hear a federal judge in Iowa ordered the Equal Employment Opportunity Commission to pay $4.56 million in attorney fees and expenses to a Cedar Rapids trucking business after dismissing the agency’s sexual harassment lawsuit. A team of attorneys successfully defended CRST Van Expedited in the lawsuit, which was filed in 2007.

The fee award against the EEOC by a federal judge is unusual and may be among the largest imposed by a federal court. They are appealing. The agency alleged CRST’s lead drivers or team drivers subjected approximately 270 female drivers to sexual harassment and a sexually hostile work environment and the company had failed to correct and protect them.

In a series of rulings, Chief Judge Linda Reade of the Northern District of Iowa dismissed the agency’s claims. She previously granted summary judgment on the claim CRST tolerated a “pattern and practice” of sexual harassment against female drivers. The EEOC presented the court with what was felt to be solely anecdotal evidence to show some members of CRST’s management may have occasionally violated CRST’s anti-sexual harassment policy by failing to respond appropriately to sexual harassment in the workplace.

The EEOC did not present the failings of CRST’s managers in any meaningful way to show CRST had a defined pattern or practice of tolerating sexual harassment in its workplace. This summary judgment ruling effectively left 200 or so EEOC claims with nothing in common.

Please don’t hesitate to reply with your thoughts and comments.

Editor’s comment: We are happy about some of this stuff and scared of the rest of it—we don’t know what organized labor is cooking up to counter the business initiatives.

Like secrecy in hiring, we hate the secret “agreed bill” process and it appears to be rearing its ugly head yet again. We will never forget the public relations fiasco that led to passage of the 2005 Amendments to the Workers’ Comp Act that might have sounded great but have delivered very little effective savings to Illinois business. We are now advised by several reliable sources; the Governor convened a meeting recently of some employers and organized labor to discuss the agreed bill process involving potential changes to workers compensation law. This meeting led to a discussion of the process in general and several bills may be cooking out there.

Several measures potentially helpful to Illinois employers have been introduced. We add our thoughts at the end of each description in bold.

Workers’ Compensation Alcohol/Drugs HB 5721 (Zalewski-D-Chicago) provides no compensation is payable if an injury was caused “primarily” by the intoxication of the injured worker, to include the influence of alcohol or certain drugs not prescribed by a physician or the combined influence of alcohol and drugs that affected the worker to the extent that the intoxication constituted a departure from employment. We point out if there are no mandatory guidelines the Commission has to follow in enforcement; this bill isn’t worth the paper it is written on. We hate the legal concept of requiring denial of benefits for injury while intoxicated to necessitate a showing of “departure from employment” and consider the whole concept unenforceable and nonsensical.

Workers’ Compensation Workplace Prevailing Cause HB 6159 (Reis-R-Willow Hill) defines injury as an injury that has arisen out of and in the course of employment; provides that an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. Again, we point out that if this bill isn’t coupled with a provision similar to Missouri’s which requires strict adherence to the legislative intent, this bill is similarly not worth the paper it is written on because everyone will simply swim around it, like an ice cube in a hot swimming pool.

Workers’ Compensation Collective Bargaining SB 3829 (Link-D-Lake Bluff) provides an employer or group of employers and the representative of its employees may agree to establish binding obligations and procedures relating to workers’ compensation; provides the agreement must be limited to, but need not include an alternative dispute resolution system to supplement, modify, or replace the procedural or dispute resolution provisions of the Act. We point out this sort of legislation indicates the Commission should be reformed or not; why create a binding arbitration system and another binding arbitration system? If an employer “opts out” of the current system, do they get to keep the money they are required by law to pay for a system they won’t use?

Workers’ Compensation Objective Medical Standards SB 3830 (Brady-R-Bloomington) provides permanent partial or total disability shall be certified by a physician and demonstrated by use of medically defined objective measurements, that subjective complaints shall not be considered unless supported by and clearly related to objective measurements, and a specified publication shall be applied in determining the level of disability; provides that temporary total disability payments shall not exceed 104 weeks. In our view, this legislative concept is borrowed from other states and would be a very solid, sober and sweeping change to Illinois workers’ compensation law. Therefore, in our view, organized labor will fight it like crazy. Please note this is being sponsored by the leading Republican candidate for Governor! We feel it may have a strong chance of enactment if the political winds change as many feel they may during this coming election year.

Workers’ Compensation Fraud SB 3832 (Brady) provides the Workers’ Compensation Commission may recall a decision or settlement when fraud has been determined to be committed related to a case; provides the Commission shall implement a rule to establish a process for recalling a decision or settlement that is subject to recall due to fraud; provides the fraud and insurance non-compliance unit of the Department of Insurance shall employ one or more attorneys as special prosecutors. Again, this is a sweeping change proposed by the leading Republican candidate for Governor.

Workers’ Compensation Coverage HB 6266 (Rose-R-Mahomet) provides a subcontractor under contract to a general contractor may elect to be covered under any policy of workers’ compensation insurance insuring the contractor upon written agreement of the contractor, by filing written notice of the election on a form prescribed by the Workers’ Compensation Commission. This is a simple and solid idea.

If we put you in charge, what would you change about Illinois work comp law? Please reply with your thoughts and comments.