Keefe, Campbell & Associates, LLC

Editor’s comment: Graft occurs when a public official obtains something of value, not part of his/her pay, for doing work that is a part of the job. In Illinois, judges run for office. There are some restrictions on campaign contributions but not a lot. To our knowledge, any public official can take monies donated to their campaign, pay the taxes on it and put the money in their pocket. Please understand we are not accusing anyone of committing a crime but how can anyone say giving a judicial candidate or group of candidates $100,000 or more during a campaign wouldn’t affect their impartiality during any subsequent hearing?

We have gone on record numerous times asserting it should be a conflict of interest for a judge to whom a lawyer has donated campaign funds to allow the attorney to appear before them. Please note the vast majority of judges don’t even disclose substantial campaign donations to all parties prior to a contested hearing.

Now, four Illinois Supreme Court justices have been asked to withdraw from hearing an appeal of a legal-malpractice case against Corboy & Demetrio, one of the nation’s top personal-injury firms, because the justices have gotten major political contributions from the firm’s attorneys. The matter involves a hotly contested case alleging Corboy lawyers mishandled a lawsuit brought on behalf of the family of a woman who was killed and her two daughters who were injured in a car crash in 1995.

The motion seeking the recusal of four Illinois Supreme Court Chief Justices comes just after the U.S. Supreme Court agreed to hear arguments in a West Virginia case testing whether elected judges can take part in cases involving their campaign contributors. In the West Virginia case, Justice Brent Benjamin won election after the chief executive of the Massey coal company contributed $3 million to his campaign and raised half a million more; amounting to 60 percent of the justice’s campaign funds. After the election, Benjamin twice cast the deciding vote to set aside a $50 million judgment against the coal company. Similar complaints were raised involving the campaign between current Illinois Supreme Court Justice Karmeier and his opponent Gordon Maag. Justice Karmeier accepted monies from the tobacco defendants and then ruled in their favor. His opponent raised several hundred thousand dollars from class actions lawyers outside of Illinois that we assure you was implicitly or explicitly designed to curry favor in future class action rulings.

In the Corboy suit, because there are only seven justices on the Illinois court, the motion sets up the possibility that, should the four justices recuse themselves, there would not be enough jurists left to hear the case, rendering the appeal meaningless. The Illinois Constitution requires four votes for any Supreme Court ruling to be official, and the constitution has no provision for appointing substitute justices.

The motion for recusal states some members of the Corboy firm and two of the firm’s experts in the car crash case donated well over $100K to the four justices or their families. That is a substantial amount of money. We invite your thoughts and comments.

Editor’s comment: This ruling confirms a $20 processing charge for copying medical records is not reasonable on its face, but can be reasonable if the expenses incurred by the provider in processing the request justify the charge. We note this ruling is still subject to revision until released for publication.

In Solon v Midwest Medical Records Association, Inc. (No. 07-2723 November 10, 2008), the First District, Third Division of the Illinois Appellate Court held it was not per se reasonable for a custodian to charge a flat $20 handling fee for each request for copies of records. Interestingly, the court clarified their ruling was not that charging the fee was unreasonable and confirmed charging a $20 process fee is not per se unreasonable (emphasis added) either. The court noted if a health care provider incurs $20 in reasonable expenses to process a records request, and can justify those expenses, it should be reimbursed for those expenses. The court made no rulings on the merits of the suit.

We note the background is based upon information obtained from the complaint. By way of background, Defendant is a service company that receives and fulfills requests from patients for copies of their medical records on behalf of health care facilities and practitioners (collectively, health care providers). Defendant assigns its staff to work on-site at health care providers’ offices to receive medical records requests, locate and copy the requested records, and send the records to the patient along with a bill for services. The staff also is responsible for maintaining records of all requests and other administrative matters. Plaintiffs allege defendant does not charge health care providers for these services. Rather, defendant performs this service for health care providers in exchange for the exclusive right to provide medical records to patients for a fee. Defendant and the health care providers negotiate the price per page charged to patients. Defendant then bills and collects the fees directly from patients. In addition to the per-page fee for providing copies of records, defendant also charges patients a flat $20 handling fee, which defendant refers to as a “process fee.” Plaintiffs contend defendant’s billing practices are fraudulent and violate state law. Plaintiffs specifically allege the plain language of sections 8-2001 and 8-2003 of the Code only permits defendant to charge for the lesser of the “reasonable expense of production, Illinois’ statutory price limit for copies applicable to the type of copies [defendant] furnished, or a fair price for the copies.” Therefore, they argue, the flat $20 handling fee is improper.

After a motion to dismiss the count in question, Defendant then moved pursuant to Supreme Court Rule 308(a) (155 Ill.2d R. 308(a)) to certify the question reviewed in this decision. Initially, the Appellate Court denied defendant’s petition, however, the Supreme Court subsequently issued a supervisory order directing them to answer the certified question.

At the time Plaintiffs filed their complaint, sections 8-2001 and 8-2003 of the Code provided, in part, that every health care provider shall, upon the request of any patient permit copies of records to be made by him or his physician and that the provider shall be reimbursed by the person requesting copies of records at the time of such copying for all reasonable expenses, including the costs of independent copy service companies, incurred by the health care facility in connection with such copying not to exceed a $20 handling charge for processing the request for copies in addition to the patient reimbursing providers for the cost of the copies at a maximum per-page rate that varies with the number of pages copied, as well as any shipping costs.

Plaintiffs argued that aside from the per-page cost of the copies, the plain language of the statute only permits health care providers to seek reimbursement for “reasonable expenses” incurred in connection with copying the records and that amount may not exceed $20. Defendant argued that it is reasonable per se for health care providers, through defendant’s services to charge patients a $20 flat fee to process the request because it is within the maximum amount allowed to be charged under the statute.

The Court noted their review was based upon giving effect to the plain and ordinary meaning of each word of the statute when its meaning is clear and unambiguous. The Court noted that to “reimburse” means “to pay back (an equivalent for something taken, lost, or expended) to someone” and further noted that the statute directs patients to reimburse the amount of expenses “incurred,” which connotes a quantifiable cost that has actually accrued to the health care provider as a result of processing the records request. The Court noted the legislature intended for patients to repay health care providers for the actual costs they incurred in processing the records request, rather than pay a flat fee in all circumstances, regardless of the costs incurred.

Additionally, the statute states the amount to be recovered by health care providers is “not to exceed” $20, which imposes a maximum amount of recoverable expenses rather than a flat fee. Thus, the legislature acknowledged the actual cost of processing a records request could vary with the complexity of the request. For example, it stands to reason the fewer records a patient requests, the less time defendant’s employees may spend processing the request. The Appellate Court noted their confidence the circuit court is capable of determining the reasonableness of a health care provider’s processing costs based on evidence presented by the parties, as it does in myriad other respects. Accordingly, they answered the certified question in the negative, that it is not per se reasonable to charge a $20 flat fee for processing costs under sections 8-2001 and 8-2003 of the Code since the statutes require patients to reimburse health care providers for reasonable expenses incurred in processing records requests up to $20. With that said, the Court also noted that charging a $20 process fee is not per se unreasonable. If a health care provider incurs $20 in reasonable expenses to process a records request, and can justify those expenses, it should be reimbursed for those expenses.

Justice Greiman dissented from the majority and indicated his belief the question should have been answered in the affirmative in part because of his belief the language of the statute dictates a handling fee of $20 or below is per se reasonable and the intent of the legislature was clear in that it wanted to expressly define the allowable charges for copies requested by presumably thousands of patients a year. Justice Greiman noted one of the drafters, Representative Turner, confirmed the intent of the $20 handling fee was to serve as an “order fee” or a “deposit fee” at the time the records were requested and accordingly, the legislature intended the $20 handling fee to be a one-time charge for obtaining records that was a per se reasonable method to avoid excessive and variable fees.

In the injury claim-related areas of our profession, we are all aware of the time and expense it takes to determine and obtain medical records. Based upon the privacy regulations currently promulgated, it is difficult to believe the record copy providers do not spend at least an average of $20 on each request to ensure record storage and retrieval is confidential and secure and that privacy is protected and all appropriate records are selected and provided. Based upon the normal delays in obtaining records, we certainly would rather not add a “determination of processing costs” step to what can already be a lengthy process. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.

Editor’s comment: This is one of those, “That’s Illinois” rulings. It doesn’t have to make sense or follow what we call the “plain English language” meaning of legislation. The current legal system, including our Legislature, Supreme Court and Governor’s mansion are run by the Plaintiff trial bar and such laws/rulings will continue until we are able to get reform or some sense of balance for Illinois business. Let us hope this concept and concern doesn’t start to bleed over to federal court, now seeing the current White House and Congress may be beholden to the same folks. We applaud the Illinois State Chamber of Commerce for filing an amicus brief in this case and trying to staunch the bleeding in such matters.

What the Plaintiff trial bar wants to happen in major claims is global settlements. The best way to get all defendants to settle and contribute in a major claim is to have the judiciary leave them holding the whole bag if they force their specific and possibly marginal interests to trial while other defendants bail and close with partial settlements. In a November 25, 2008, 4-2 ruling in Ready v. United/Goedecke Services, the Illinois Supreme Court held settled defendants cannot be taken into account when allocating fault under Section 2-1117 of the Illinois Code of Civil Procedure. Section 2-1117 provides, except for medical expenses and certain toxic tort claims falling under section 2-1118, a defendant is only jointly and severally liable if its share of fault is 25 percent or greater of the total fault “attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants except the plaintiff’s employer.” By excluding settled defendants from this calculation, the Illinois Supreme Court has made it dramatically difficult for any defendant remaining at trial to avoid joint and several liability, even where such defendant may have played only a minor role in causing plaintiff’s injury.

The decedent in Ready was a mechanic at a power plant in Joliet, Illinois. He was killed when a truss slipped and fell from the eighth floor during a pipe-refitting project. Plaintiffs sued United/Goedecke, the subcontractor that dropped the truss, as well as the power plant and the general contractor for the project. They settled with the power plant and the general contractor and went to trial against United/Goedecke. At trial, the judge excluded evidence of negligence by the power plant and general contractor and declined to include them on the verdict form. The jury found United/Goedecke 65 percent at fault and decedent 35 percent at fault. After offsets for decedent’s negligence and prior settlements, the jury found United/Goedecke solely liable for $8.1 million. The appellate court reversed in pertinent part, holding under section 2-1117 fault should be assessed relative to all defendants, including defendants that settled before trial.

The Supreme Court’s plurality opinion, drafted by Justice Freeman concluded the phrase “defendants sued by the plaintiff” is somehow ambiguous with respect to settled defendants. With respect to our highest court, we consider that stretching the English language like a piece of Laffy Taffy. The Court rejected United/Goedecke’s plain English language argument noting “sued” is in the past tense and settled defendants are or were “defendants sued by the plaintiff.” Instead, because “sued” is not defined in the statute, the plurality turned to standard dictionary definitions to support its finding of ambiguity. The plurality noted that “sued” could mean, consistent with United/Goedecke’s view, “to seek justice or right from (a person) by legal process: bring an action against: prosecute judicially.” It could also mean, consistent with plaintiff’s view, “to proceed with (a legal action) and follow up to proper termination: gain by legal process.”

Thus, the Supreme Court’s plurality concluded, the “definitions provide no help in determining which of these contradictory views might have been intended” and “[w]e find no clear indication of a legislative preference for either of the parties’ asserted meanings over the other.” The Supreme Court’s plurality opinion bolstered its finding of ambiguity by noting the conflicting interpretations of the statute by the appellate courts. The plurality sought to determine legislative intent using two principles of statutory construction. The first principle stated that “where the legislature chooses not to amend a statute after a judicial construction, it is presumed that the legislature has acquiesced in the court’s statement of the legislative intent.” The appellate court had ruled in Blake settled defendants are excluded when apportioning fault. The 2003 amendment to section 2-1117 did not react to the prior holding. Thus, the plurality concluded, the “legislature’s failure to address Blake’s holding at that time is an indication of the legislature’s acceptance, as of 2003, of this judicial interpretation of section 2-1117.”

The second principle holds that “an amendment to a statute creates a presumption that the amendment was intended to change the law.” Here, the plurality relied on the Tort Reform Act of 1995, which was later held unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997). The Act specified that a party is a “tortfeasor” “regardless of whether that person may have settled with the plaintiff.” The plurality found that “the 1995 amendments are a compelling indication that settling defendants were not meant to be included in the apportionment of fault under the 1986 statute.” After applying these principles, the plurality also cited statements by Illinois Senator John Cullerton during the floor debate on Senate Bill 1296. The bill was passed by the Senate in March 2007 but remains pending in the House. Senator Cullerton stated Senate Bill 1296 was intended to clarify “what the intent of the 1986 law was. *** It just makes it clear, if you settle with somebody, their names don’t go on the verdict form.” These statements, according to the plurality, confirm the conclusion settled defendants are not “defendants sued by the plaintiff” within the meaning of section 2-1117.

Justice Garman wrote the dissent, which Justice Karmeier joined. They concluded the phrase “defendants sued by the plaintiff” “unambiguously refers to those individuals or entities against whom the plaintiff filed suit.” The dissent noted Black’s Law Dictionary defines the word “sue” as “[t]o institute a lawsuit against (another party),” and suggested the conflicting general usage definitions cited by the plurality do not make sense in the context of the statute. The statute, as the dissent pointed out, used the word “sued” in the past tense, which “renders only one of the two usages reasonable.” Thus, the dissent concluded, settled defendants were plainly “sued by the plaintiff.” The dissent was also highly critical of the plurality’s tools of statutory construction. With respect to the amendment in the Tort Reform Act of 1995, the dissent noted if a statute is ambiguous (as the plurality had found), “a subsequent amendment will clarify the statute rather than change the law.” Indeed, the Illinois Supreme Court had previously confirmed an “amendment of an unambiguous statute indicates a purpose to change the law, while no such purpose is indicated by the mere fact of an amendment of an ambiguous provision.” Thus, according to the dissent, the plurality’s principle of construction is “entirely misplaced” in this case.

The dissent also explained that the 2003 amendment had nothing to do with Blake. Instead, the legislature was acting for a specific purpose involving a different portion of the statute. The dissent was skeptical the legislature was even aware of Blake, an appellate court ruling, when it made this change. Thus, the 2003 amendment is not an indication of legislative acquiescence. Finally, Justice Garman’s dissent pointed out the fallacy of relying on Senator Cullerton’s statements in 2007 to determine the legislative intent behind the 1986 statute. As the dissent explained, a “member of a subsequent legislature who favors amending the existing statute is not an appropriate source of information as to the intent of the enacting legislature. I strongly object to the suggestion to the circuit and appellate courts that they should look to the content of floor debates in the current legislative session to determine the meaning of statutory language that has been on the books for decades.”

The Illinois Supreme Court’s opinion in Ready will have significant implications going forward. As an initial matter, lower courts will likely face the question of whether evidence concerning settled defendants is ever admissible at trial. In Ready, the trial judge excluded such evidence as irrelevant under section 2-1117, which the Illinois Supreme Court ultimately affirmed. Plaintiffs will likely use Ready to oppose the admission of any evidence concerning settled defendants.

We and most defense observers assert this evidence should still be admissible for other purposes, such as showing that a settled defendant was the sole proximate cause of the plaintiff’s injury. This issue was not addressed in Ready. However, in a tort action, if defendant elects to rebut plaintiff’s case, he is entitled to do so by any available means, including “show[ing]” any “evidence that negates causation.” Leonardi v. Loyola Univ. of Chicago. In Leonardi, the Illinois Supreme Court held that where there is evidence of other causes of a plaintiff’s injury, the defendant is “always” permitted to introduce that evidence so the jury can resolve whether some other cause was the sole proximate cause of the injury. Following two appellate court decisions that held that this evidentiary rule does not apply in asbestos cases, the Supreme Court is currently considering the proper role of a sole proximate cause defense in asbestos cases in Nolan v. Weil-McClain (Case No. 103137).

The rule announced in Ready will also have important practical implications. Plaintiffs can settle with defendants who are predominantly at fault for an injury but have minimal assets and/or insurance to pay any damages. Plaintiffs can then go to trial with deep-pocket defendants, even if their relation to the injury is much more tenuous. With the settled defendants out of the picture, the odds are greatly increased the judge or jury will allocate more than 25 percent of the fault to the remaining trial defendants, rendering them jointly and severally liable for major damages. This scheme naturally increases the pressure on major defendant to settle, even if defendant has strong defenses and/or the settlement is out of proportion to its specific culpability. The exclusion of settled defendants from the joint and several liability calculation under section 2-1117 makes it very dangerous to be the last defendant standing at trial.

We also caution, provided plaintiff’s settlement with another defendant is in good faith, the trial defendant(s) may be unable to sue the settling defendant for contribution. Accordingly, the value of proportionate fault and limited joint and several liability appears to be greatly diminished. The legislature originally enacted section 2-1117 with the intent that minimally responsible parties should not have to pay entire damage awards. But the Supreme Court’s ruling and interpretation of the Code of Civil Procedure will inexorably lead to this result.

The decision is on the web at: http://www.state.il.us/court/OPINIONS/SupremeCourt/2008/November/103474.pdf. Please reply with your thoughts and comments.

Editor’s comment: We like the outcome and feel it presents something of a primer on this issue. In Taylor v. Pekin Insurance, (2008 WL 4943700, issued November 20, 2008), the Illinois Supreme Court was faced with a claimant who was struck by an uninsured motorist. The injured worker received $162,588.33 in workers’ compensation benefits. He went to arbitration on the UIM claim and got $250,000. The same insurer handled both WC and UIM coverage. Upon learning of the UIM decision, the carrier delivered a check to plaintiff for $87,411.67-the difference between the $250,000 arbitration award and the $162,588.33 workers’ compensation award. His total recovery was the higher of the two amounts–$250,000. Claimant, who is not a lawyer, then asked for attorney’s fees for himself!

To do so, Plaintiff filed a complaint in the circuit court of Madison County seeking a declaration that he was entitled to $40,467 from the carrier for attorney’s fees which he claimed pursuant to section 5(b) of the Act. The insurance carrier filed a motion to dismiss, arguing Plaintiff was not entitled to the $40,467 because neither the auto policy nor any statute authorizes Plaintiff to collect attorney fees. The trial court granted the motion and dismissed Plaintiff’s complaint. The appellate court reversed, finding Plaintiff was entitled to the $40,467 which would have brought his total recovery to $290,467.00.

The Supreme Court opinion noted the employee obtained recovery for his injuries through his employer’s uninsured-motorist coverage. No legal proceedings were undertaken against a third party responsible for the injuries. There was no “third-party claim, action or suit” under the express language of section 5(b). The insurance carrier’s setoff was pursuant to the contract between the parties, not pursuant to section 5(b). The Supreme Court opinion noted the dissent by Appellate Court Justice Donovan who stated: “No monies were paid back to the workers’ compensation carrier or employer. There simply was no recovery or reimbursement triggering the reduction for 25% attorney fees under section 5(b) of the Act.”

The opinion goes on to note the Appellate Court majority misconstrued the way the section 5(b) attorney fee operates. Under the court’s holding, the plaintiff would receive “the additional sum of $40,467, reflecting the 25% paid to plaintiff’s attorney in the workers’ compensation case.” We agree strongly with our highest court such result distorts the statute, for two reasons. First, plaintiff is not entitled to reimbursement for any attorney fees he may have incurred in his workers’ compensation case. The 25% fee in section 5(b) is payable to plaintiff’s attorney based on the attorney’s services in obtaining a recovery against a third-party tortfeasor in his tort claim. The fee has nothing to do with the fees owed to Petitioner’s attorney in the workers’ compensation case.

Second, under the plain language of the statute, the 25% fee is payable to an attorney, not to the plaintiff. The Court ruled “The second paragraph of section 5(b) contemplates a single recovery against a third party with the employee’s share of the attorney’s fee to be based on the part he recovers and the employer’s share of the fee to be based on the part he recovers. While the employee’s counsel is entitled to a part of his fee from the employee and a part from the employer, the total fee is in essence a single fee based on the single recovery from the third party.”

If you have thoughts or comments, please send a reply.

Editor’s comment: Call us dazed and amazed. After years of not caring, now the Illinois Workers’ Compensation Commission appears to have hired more staff and started to search for supposedly “lost” beneficiaries to its COLA benefits for total and permanent disability and death beneficiaries. About thirty years ago, the Illinois legislature created a truly unnecessary fund to pay cost-of-living adjustments to individuals who have been found to be either permanently and totally disabled (PTD) or the survivors of fatally-injured workers. In response to the legislation, the IWCC was supposed to collect assessments from employers, and then pay cost-of-living adjustments to beneficiaries. Trust us, this legislation was ignored for years and no one was picketing Springfield in protest.

For all the folks who are going to write and tell us how we are picking on widow(er)s and disabled folks, please calm down. Illinois already pays what has to be the highest T&P and death benefits of the whole United States. All such claimants receive between $456.28 to $1,216.75 per week. Those amounts calculate to an annual benefit of $23,726.56 to $63,271.00 on a tax-free basis per year. The death benefit has been extended to 25 years for widows and widowers. The minimum current Illinois death benefit is now $593,164.00. The current maximum death benefit in Illinois is a cool $1,581,775.00.

In contrast, our sister state of Indiana caps total and permanent disability benefits at ten years—they figure after ten years, you move on to other stuff. Indiana WC death benefits end after 500 weeks—in Illinois, they are paid for 1,300 weeks.

Please remember you aren’t supposed to get wealthy in the world of workers’ compensation—it is supposed to be a back-up system for those who have no back-up. Please also remember the injured worker or decedent can negligently cause their own injuries or death and their families may still receive benefits. For this reason, the benefits are supposed to be moderate. Most states have death benefits that maximize at amounts less than our minimum amount.

There is no “limit” on total and permanent benefits; the worker gets the benefit until they pass away so it could be 50, 60, 70 or more years of tax-free benefits. And what many observers consider even more shocking, you don’t actually have to be permanently “disabled” in Illinois to get this enormous largesse. In Ernesto Diaz v. Chicago Heights Steel, 99 IL.W.C. 55210, No. 08 I.W.C.C. 1149, issued October 3, 2008; the Commission considered a claim for a 46-year-old Hispanic steelworker with a bad back who all doctors agree can work albeit with a permanent 10-20 lb. lifting restriction. As an aside, we don’t agree with just about anything the defense did in this claim and the ruling reads like a primer on how to get a bad decision in a major claim at the Commission—if you want our analysis of the many claims mistakes, send a reply.

The Arbitrator and Commission clearly noted claimant didn’t speak English and therefore had limited job opportunities. One might think the Commission would order ESL classes or other training necessary to get this worker back to gainful employ; please remember he was 46 and not 76. Rather than do so, they termed him what we call a “lazy-lot” total and permanent disability and provided tax-free benefits for life. In Illinois, we reward people who don’t want to go back to work and do a good job not finding work. The full, undiscounted value of that award is a cool $700,000. Now, this new fund will be paying him COLA increases on top of that amount.
So what just changed in Illinois? Please note for years, the Commission has been run by claimant lawyers and claimant lawyers don’t get a fee from COLA increases. We feel that is one reason nothing has been done about this for decades. Obviously, the last administration and the current administration have a number of zealots who don’t care about anything other than making sure Illinois business every possible penny in this area of benefits.

So what will happen is individuals who currently receive a workers’ compensation check for PTD or fatality from an employer or insurance company are also eligible to receive a separate check from the State of Illinois for this cost-of-living adjustment. The cost to Illinois business requires self-insured employers and insurance companies to pay an assessment of 1.25% of all indemnity benefits paid in the preceding six-month period. From the Commission’s 2007 report, it appears more than $5 million was spent by our administration to insure these nice folks get an even bigger benefit than before. IWCC staff hired by the current administration notified the Auditor General and Comptroller’s Office the IWCC may not be paying cost-of-living adjustments to all eligible beneficiaries.

The Commission appeared shocked this situation existed for the past 30 years—so don’t be surprised they feel they have to spend even more money and run around and find potential claimants and force them to cash the COLA checks! Please note we now may have the only workers’ compensation commission/board in the U.S. that is now actively seeking to locate represented claimants to give them benefits. We ask our readers who are claimant lawyers whether any of them are uncomfortable with this new focus by the IWCC. Will this cause legal malpractice claims and/or class actions to be filed against claimant lawyers for not writing and telling their eligible clients of this possible right? Should we move to a system where there are ombudsmen who you can call to find out everything about your claim, regardless of what your attorney says? Should we try to eliminate claimant lawyers from the process and let the administrators and Commission lawyers take over to make sure no claimant misses a single penny to which they may be entitled?
Most of the situation appears to have occurred in the late 1980s and early 1990s, when the fund experienced funding shortages. The legislature increased the employer assessment several times and authorized loans from other state funds, but during that time people may not have been paid a cost-of-living adjustment. They survived some how. Throughout the years, some people did not respond to RAF notices, or failed to inform the IWCC of address changes, which contributed to the challenge of locating potentially eligible recipients. As directed by the Governor’s Office, the IWCC obtained outside legal counsel and conducted a joint investigation with the Office of Internal Audit. In response, the IWCC has already implemented the following controls:

1. Started shifting responsibility for RAF from the Fiscal Department to a separate RAF Department;
2. Hired an attorney who is dedicated to RAF;
3. Established tighter, clearer procedures;
4. Created a database to better track cases, and continues to improve the technology;
5. Searched LexisNexis databases to find beneficiaries’ addresses and verify eligibility status;
6. Redesigned forms to better identify potential RAF cases and to verify beneficiaries’ ongoing eligibility;
7. Educated arbitrators and commissioners on how to write PTD and fatal awards; and
8. Added an RAF web page to its website.

The IWCC and the Office of Internal Audit have entered into a multi-year interagency agreement to work on improving internal controls further. We are told that FY09, the IWCC has paid beneficiaries appropriately, and is furtively searching for people who were missed in the past. We wish them all the best in their search for the unknown claimant(s).

One interesting facet of all this hiring, searching, departmenting, databasing and everything else is the first notice of it to the public and our firm was the Commission news flash. We assume the “dedicated” attorney who has already been hired isn’t being paid minimum wage and this is going to be a significant new expense. We feel confident someone’s cousin’s uncle’s brother-in-law got the cushy job. To our knowledge, that job wasn’t posted on the Commission’s website and we don’t recall seeing it on the CMS website. We certainly hope the Commission isn’t going to go to the same time and expense for the antiquated Second Injury Fund that may cost Illinois business over a million dollars a year and actually provides benefits for less than 100 Illinois citizens.

To our knowledge, the Commission itself doesn’t hold meetings and or post its minutes on their own website. The Commission’s various boards mention nothing about any of this in their minutes other than to say they are working on implementing the 2005 changes to the Act. There is no mention of this new job or all these changes on the Illinois State Chamber of Commerce website, the Illinois Self-Insurers Ass’n website or the Illinois Workers’ Compensation Lawyers Ass’n website so they appear to have been kept in the dark. The Illinois State Bar Association’s WC section newsletter just came out and there is not a hint of these major developments.

If the business members of the Commission’s own advisory board signed off on all this stuff, we are stunned and chagrined. If they didn’t, it appears to be more of the same clandestine manipulation of the system that we came to love about the last administration. We will keep you all posted as the news unfolds. Please give us your thoughts and comments.

Editor’s comment: On November 17, 2008, the United States Department of Labor (“DOL”) published long-awaited revised and updated final rules interpreting the Family and Medical Leave Act (“FMLA”). The new regulations go into effect on January 16, 2009, unless Congress votes to disapprove the regulations. The new rules help implement the military family leave provisions enacted in the National Defense Authorization Act for fiscal year 2008 and provide clarifications in response to court decisions and public comments pertaining to both the 2008 Notice of Proposed Rulemaking and public comments submitted in reply to DOL’s 2006 Request for Information. The changes and clarifications are detailed and we believe you will begin to see incident specific issues almost immediately. With the potential specifics resulting in many different scenarios, we strongly encourage you to consult legal counsel to answer your case specific questions.

Overview of clarifications and changes we consider significant

§         FMLA protection is expanded to include family members caring for a “covered service member” with a serious injury or illness incurred in the “line of duty on active duty.” These family members are able to take up to 26 work weeks of leave in a 12-month period.

§         Family members of personnel on active duty may also take FMLA leave for “qualifying exigencies,” defined as: (1) short-notice deployment (2) military events and related activities (3) childcare and school activities (4) financial and legal arrangements (5) counseling (6) rest and recuperation (7) post deployment activities and (8) additional activities where the employer and employee agree to the leave.

§         Exigent Circumstances Leave is not available to family members of individuals in the Regular Armed Forces, but rather extends only to those covered military members called or ordered to active duty as part of a contingency operation – retired members of the Regular Armed Forces, members of the Reserves, including the retired reserves, and/or members of the National Guard.

§         Professional Employer Organizations (“PEOs”) which contract with employers are not joint employers with their clients unless the PEO: (1) has the right to hire, fire, assign, or direct and control the client’s employees, or (2) benefits from the work that the employees perform.

§         The final rules now codify an existing rule that an employee may voluntarily settle or release FMLA claims without the approval of the court or DOL.

§         Consolidation of multiple provisions on employer notice which provide that an employee needing FMLA leave must follow the employer’s usual call-in procedures for reporting an absence unless unusual circumstances exist. An employee’s consequences for failing to provide proper notice remain the same to enhance employer planning for employee absences.

§         Under the current regulations, there are six types of conditions that qualify as a serious health condition. The new regulations keep each of the definitions, but clarify three:

o        First, to meet the definition requiring that an employee have a condition involving more than three consecutive days of incapacity plus “two visits to a health care provider,” the employee must make two visits within the 30 days beginning with the initial date of incapacity and the first visit must occur within the first seven days of the incapacity.

o        Second, to meet the definition that requires an employee have a condition that involves more than three consecutive days of incapacity plus continuing treatment, the first visit to a health care provider also must occur within seven days of the first day of incapacity.

o        Finally, to qualify as an employee with a “chronic serious health condition,” an employee must make at least two visits to a health care provider per year.

§         Employees who take intermittent FMLA leave for planned medical treatment have a statutory obligation to make a “reasonable effort” to schedule such leave so as not to disrupt unduly the employer’s operations.

§         If an employee voluntarily performs “light duty” work, time spent doing such work will not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is held in abeyance during the light duty period.

§         Employers may deny “perfect attendance” awards to employees who do not have perfect attendance because they took FMLA leave, provided the employer treats employees taking non-FMLA leave in the same way.

§         Employers (e.g., Human Resources) may contact an employee’s healthcare provider directly, but only for clarification and authentication of a medical certification. The employer may not request additional information beyond that included in the certification form. If an employer deems a medical certification incomplete or insufficient, the reasons must be stated in writing and the employee must be given seven days to cure any deficiency.

§         Employers must account for FMLA leave using an increment no greater than the shortest period of time used to account for other forms of leave, provided that it is not greater than one hour.

§         The terms and conditions of an employer’s paid leave policies apply and must be followed by the employee in order to substitute any form of accrued paid leave for unpaid FMLA leave. (Essentially an employee may elect to use or an employer may require use of paid time off concurrently with unpaid FMLA leave and this eliminates procedural distinctions between the use of paid vacation or personal leave versus paid medical or sick leave as a substitute for FMLA leave.)

§         Employers are required to provide employees with a general notice of FMLA rights, an eligibility notice, a rights and responsibilities notice, and a designation notice. The healthcare certification form has been updated and revamped. The DOL has provided several new sample forms that employers can use for these different purposes, including forms covering exigent circumstances and covered service member family leave.

§         If an employer has no handbook or other written materials, it must provide general FMLA notice to new employees upon being hired. An employer has 5 business days to respond to an employee’s request for leave. If an employee suffers individual harm because the employer fails to follow the notification rules, the employer may be liable.

§         Where the amount of leave to be taken is not known at the time of FMLA designation, an employer may inform the employee of the number of hours counted against his or her FMLA leave entitlement only upon employee request, and no more often than every 30 days.

§         Allow employers to require a fitness-for-duty certification before an employee on intermittent FMLA leave may return to work.

We again note these changes are voluminous and detailed. We suggest clarifying any specific issues with legal counsel to review your existing policies and to consider changes to those existing policies. We continue to recommend appropriate documentation be completed and maintained in all cases. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts, comments or questions, please send a reply to sbiery@keefe-law.com.