Keefe, Campbell & Associates, LLC

Editor’s comment: Ms. Wisniewski was the mother of long-time certified court stenographer Henry Wisniewski. Keefe, Campbell & Associates wants to extend our deepest sympathy to Henry and his family. Mrs. Aleksandra Wisniewski died Sunday morning, February 22, 2009.

The wake will be held on Wednesday, February 25, 2009, at Modell Funeral Home, 5725 S. Pulaski Road, Chicago, Il. 60629; visitations will be from 3 p.m to 9 pm.

Funeral mass will be on Thursday, February 26, 2009 at St. Turibius Church, 5646 S. Karlov Avenue, Chicago, Il. 60629, at 9:30 a.m.; followed by burial at Resurrection Cemetery.

We thank the kind reader who sent us the note.

Editor’s comment: We have recently been asked about this issue by our clients. Here are some simple thoughts.

1. Is it an amputation? In Illinois, you can lose parts of your fingers/toes and not suffer a compensable amputation in this state. The first question any adjuster or lawyer will ask is whether there is bone loss? You need to check x-rays or other diagnostic records to be sure. Don’t trust doctors’ notes because traumatic removal of skin at the tip of the finger/toe may be called amputation in a medical record—that won’t legally qualify as an amputation loss unless there is also bone loss. As you may see, the difference can be enormous due to the varying rates that will apply.
2. If it is an amputation, your reserves have to reflect three unusual aspects about Illinois claims practice
3. There is a very high minimum in our state—right now; a worker making $50 per week who suffers a compensable amputation loss is entitled to receive PPD at a weekly rate of $461.78.
4. There is a very high maximum in Illinois for amputation losses. You still take 60% of the average weekly wage but the maximum for a claim occurring today is the TTD maximum or $1,231.41. An amputated arm in Illinois may now entitle a highly paid worker to as much as $311,546.73.
5. You have to pay TTD while the injured worker is treating and then seamlessly change benefits to the weekly PPD amount thereafter. You can continue to negotiate with the worker to reach a lump sum that may be palatable to an Arbitrator but you have to keep paying weekly PPD benefits while doing so. If you don’t, you may be subject to a 50% penalty and a 20% attorney fee on unpaid amounts.
6. Most claimant lawyers shun accepted amputation cases unless there is the possibility of some sort of lump sum settlement. In an undisputed amputation claim where all benefits are being paid timely and in the proper amount, the claimant attorney only receives $100 under the statute for handling the claim. For this reason, many amputation claims are resolved on a pro se basis.
7. Our goal when we are called about an unfortunate amputation event is to advise the client of the above nuances and tell them their abiding goal in such claims is to take care of the employee—get them the best orthopedic surgeons available and provide TLC. Be sure the employee understands they are going to be taken care of and don’t need counsel.
8. An injury to two or more fingers may be handled as loss of use of the hand. However, please also note the combined value of the fingers and thumbs is about the same as the total value of a hand—don’t overpay a claim because counsel wants it to be a hand and not a finger(s) claim.

We caution all of our readers even veteran attorneys miscalculate the amounts due because all these changes haven’t caught up to some of the players in the system. If you have questions or concerns about reserving or handling amputation claims, please send a reply.

Editor’s comment: Several news sources report the world’s largest insurer is again on the verge of bankruptcy. American International Group, Inc. which was rescued twice last year by the U.S. government, is in talks with authorities for more aid as it looks to post its largest-ever quarterly loss. Several different news outlets indicate AIG is expected to post a whopping $60 billion fourth-quarter loss.

On February 25, 2008, their stock price was about $50 per share—it is now about 50 cents per share. If the loss is $60 billion, it may be the largest in world history, exceeding Time-Warner’s $54 billion loss in 2002. Such a quarterly loss would dwarf the $24.5 billion loss this insurer posted in the third quarter, when our government’s first bailout increased the rescue package to about $150 billion. We find it impossible to imagine the government will provide over $200 billion in borrowed dollars from the taxpayers, particularly while our new President is vowing to lower the annual deficit. The major problem they are trying to avoid is the major hit the stock markets will take if this company disappears. But the related problem is what to do if they keep hemorrhaging case with no end in sight.

The same sources report the latest round of talks includes the possibility of additional funds for the insurer and trading debt for equity. The situation is ever-changing and other options are being discussed, adding it was unclear where talks might lead. AIG has said it plans to sell all assets except its U.S. property and casualty business, foreign general insurance and an ownership interest in some foreign life operations, as it looks to raise money to pay back the feds.

The discussions with AIG are going on as the federal government tries to slow the problems on other fronts as well. Citigroup Inc. whose stock has dropped with fears the government may seize the bank and wipe out shareholders, is also in talks to give the government a larger stake and quell nervous shareholders.

AIG remains a major player in the Illinois WC markets and there will be lots of scrambling if they disappear or get dramatically remodeled in a bankruptcy. If you have thoughts or comments, let us know.

Editor’s comment: If it wasn’t such a major issue, we consider much of the misinformation and misdirection facing Illinois nurse case managers to be somewhat humorous. Our favorite inquiry is one we get asked constantly by nurse case managers—can counsel for Petitioner actually have my license taken away or have me put into jail, if I just ask a treating doctor a question? Our answer is no, there is no workers’ compensation jail in Illinois. And they can’t grab your license to be a nurse. We have never heard of a nurse losing her license or being suspended for handling of a workers’ comp claim in this state.

We assure all of our readers there is no portion of the Illinois Criminal Code which provides for criminal charges against an insurance adjuster or a nurse case manager if they provide information to a treating doctor, attend an examination of a patient or ask questions of a physician. There are no recorded Illinois workers’ compensation cases that provide any direct sanctions against a nurse or an adjuster who makes professional inquiries of doctors or other care-givers.

Going from the general legislation to the specific, to our knowledge, Illinois Arbitrators and Commissioners have no direct “control” over anything a nurse case manager does other than the general control they have over anyone dealing with injured workers. We point out the word “nurse” does not appear in the Illinois Workers’ Compensation Act. The word “nurse” does appear a couple or three times in the Rules Governing Practice but not in the context of a nurse’s rights and duties. There is no provision in the law providing the Commission any sanctioning power as it relates to nurses.

So what is all the fuss about? Well, we have told you many times it is our view Illinois’ workers’ compensation system continues to demonstrate too much control by claimant lawyers. Such attorneys try and try to exert complete control of any and all medical care for injured workers. Many of them are wildly adamant about the topic and don’t want any other interested party in the system to even “pretend” to have input or control. There are some lawyers who simply make every effort to “bar” nurse case managers from their claims, as if there was something untoward or improper about their role.

The main case that is so badly misrepresented as carrying some penalty or danger for nurses is the Hydraulics v. Industrial Commission ruling which followed a 2d District Appellate Court decision that everyone knows simply as Petrillo. The ruling in Petrillo started the concept in the general liability courts of trying to bar “ex parte” communications with treating physicians based upon the patient-physician privilege. An ex parte communication with a treating physician is a communication without permission of the patient. If you have permission of the patient, you can talk to a treating physician all you want—we jokingly call it a parte communication.

From that base, the Appellate Court, Workers’ Compensation Division in Hydraulics implemented an evidentiary ruling which blocks from evidence medical reports or opinions from treating physicians that are arguably the result of those dastardly ex parte communications. Please note the only thing the Appellate Court did in Hydraulics was create an evidentiary ruling about the admissibility of supposedly tainted treating reports—they created no direct supervisory rules or sanctions relating to nurse case managers in any way. Again, if you have the permission of the patient, you can talk, chat, gossip, use smoke signals or communicate with a treating physician as much as time and the doctor will allow.

In either setting, it always remains the option of the physician when and if they will talk to you. And try as you might, doctors’ opinions are their opinions.

Thereafter, in our opinion, the Federal Government superseded all of it in 1996 when they passed and implemented the HIPAA law and regulations. Always remember HIPAA is federal law that trumps state law. HIPAA provided national control and direction on how to store, handle and disseminate any private health information or PHI.

Every Illinois nurse case manager and insurance adjuster should memorize this sentence:

If a nurse case manager has a signed HIPAA release from an injured worker that provides for communication with a treating doctor, you have the legal power to communicate with a treating doctor in any way the release says.

This is the answer to almost every question we get asked about contacts with treating doctors and other healthcare givers. To all the legal, paralegal and other experts out there who want to tell us there is a workers’ compensation exception to HIPAA, we assure you it is only a weak fall-back position in litigated claims in this state and every claim in Illinois is a potentially litigated claim. The best model to follow is the sentence above—if you want to discuss or have questions about the workers’ compensation exception to HIPAA send a reply and we will further explain why this is a much better approach.

Any answer you get to a question from a treating physician when you have a HIPAA-compliant release signed by the patient should be admissible in any hearing whether it is a general liability, employment law or workers’ compensation claim. Such a communication cannot be ex parte because of the existence of the signed release, providing written permission under federal law for all questions.

So what do you do if claimant’s counsel comes on board and tells you all future communication with a treating physician has to follow his/her rules? Our answer is work with counsel to find a fair and reasonable middle ground. The biggest concern of claimant counsel is to insure all communications between the nurse case manager and treating physician are entirely “transparent.” By that we mean nothing about such communications should be hidden or kept secret from the patient or his attorney. The vast majority of claimant attorneys in this state want and need NCM’s to help get records, insure bills are paid in a timely fashion and track progress. The attorneys also want to protect their injured workers from any interference on the decision-making processes of the treating physicians by anyone. We will let all of you decide whether an NCM can unduly influence a doctor but, at the same time, if your records and reports are transmitted simultaneously to both the insurance carrier, the patient and claimant attorney at the same time, it is hard to imagine any undue influence can be demonstrated.

If you need our recommended HIPAA-compliant release, send a reply. We urge all Illinois employers to have your injured workers fill out an accident report and then sign a HIPAA-compliant release when they first stabilize following injury. If you have other questions or concerns about the issues raised in this article, please send your thoughts and comments.

Editor’s comment: The massive stimulus package that has been passed by the Congress is wholly unclear about whether we are going to bring a billion-dollar boost for Illinois. We are told Caterpillar, the Jolly Yellow Giant of Peoria has laid off 22,000 workers and everyone hopes all the new building projects will boost Big Cat’s bottom line and get them to start hiring again. While they are doing that, will they also resurrect an experimental coal power plant in Mattoon? The problem we see in the U.S. is the contradictory and confusing issue about what to do in the face of clear warnings this planet is getting too hot.

One concern with FutureGen is former VP Al Gore’s hard work to make us all aware of the global warming problem is legendary and should be applauded. At the same time, we think his “solution” is almost comical—it isn’t going to dramatically change the planet’s weather and temperature to be thrifty, carbon-penurious and energy-conscious rather than focus on the real culprit, population, population, population. We ask anyone with a slide rule or computer to tell us how much warmer the planet will be if you dramatically cut carbon emissions but also add two to five billion more people on this planet? While we agree every living human needs to become efficient for a number of reasons, we think overpopulation vastly swamps energy savings every time. It is just much harder to slow or stop overpopulation and isn’t as “righteous.”

At the same time, we all look with a combination of horror and/or chagrin when considering the misguided young lady from California who knowingly and intentionally gave birth to eight children to add to the six mouths she already can’t feed. From her example, we are worried the human species may be too stupid to see we are poisoning the only place we have for our children and grandchildren to live. If we, as a species, don’t start to attack overpopulation, you can expect the world will turn into the human sewer so painfully depicted in the current Academy Award-nominated movie about the abysmal living conditions in overpopulated Mumbai, India—Slumdog Millionaire.

Members of the Illinois delegation are pushing President Barack Obama to include the $2 billion-dollar FutureGen project, which Mattoon appeared to secure before the Bush administration abruptly pulled the plug last year. Restarting FutureGen could upset environmental groups, who call coal-fired power plants the biggest contributor to global warming because of their high carbon dioxide emissions. A coalition of environmental groups launched an ad campaign that compares “clean coal” to mermaids, space aliens and Bigfoot. For a listing of clean coal initiatives, go to

http://www.fossil.energy.gov/fred/feprograms.jsp?prog=Clean+Coal+Power+Initiative

President Obama has championed FutureGen and similar coal projects in the Senate and across the country. To get FutureGen back on track, the U.S. Energy Department must approve a previously submitted environmental impact statement and funding may be coming in the new package. The government may cover 74 percent of FutureGen’s costs, with the rest coming from a partnership of utilities and energy firms.

Energy lobbyists and the U.S. Chamber of Commerce urged the administration to invest heavily in coal-cleaning research. Almost half of the electricity generated in America comes from coal plants. After the Energy Department stopped backing FutureGen, the project continued to be supported in Mattoon. The community privately raised $3 million of $6.5 million needed to buy the 440 acres where the plant would be located. “We’ve kept the project alive locally,” said Angela Griffin, president of Coles Together, a local economic development organization based in Coles County, IL. “There’s been almost unanimous support from the community.” Building the plant would add as many as 700 construction jobs to Mattoon; the plant would employ about 100 people. All of it would be great for the local Illinois economy that continues to struggle.

We wish them all the best and invite your thoughts and replies.

Editor’s comment: In a strikingly similar claim several years ago, the author of this case summary recovered a substantial lien amount as part of a settlement of a third party claim by arguing the lien could be waived post judgment even while the esteemed Circuit Court Judge disagreed. In many third party claims, the employer is pressured to waive their lien to allow additional recovery to a claimant or limit the liability of the third party in contribution. This case is an example of why an employer should hold firm in negotiations for at least partial lien recovery when a third party contributes since the only jeopardy in allowing trial to proceed should be potential loss of the lien amount.

In Baltzell v. R & R Trucking Co. — F.3d —-, 2009 WL 249981 C.A.7 (Ill.) 2009 (February 4, 2009), Millard “Skeeter” Baltzell was critically injured when he was crushed by a tractor-trailer while working for The Ensign-Bickford Company. Skeeter sought and received workers’ compensation from Ensign-Bickford, and along with his wife Ruth Ann, brought strict liability claims against three companies-R & R Trucking Company, the owner of the tractor-trailer; Freightliner Corporation, the tractor manufacturer; and Lufkin Industries, Inc., the trailer manufacturer. These Defendants then sought contribution by filing third party claims against Ensign-Bickford.

The Baltzells prevailed before a jury, which found the other Defendants and Ensign-Bickford collectively liable for $13,980,120.00. Ensign-Bickford then moved to dismiss the contribution claims against it in exchange for waiving the statutory lien it had on the Baltzells’ recovery. The District Court denied Ensign-Bickford’s motion and entered judgment against the other Defendants and Ensign-Bickford. The Seventh Circuit Court of Appeals concluded the Illinois Workers’ Compensation Act and the Illinois Supreme Court’s decision in LaFever v. Kemlite Co. required the court’s judgment to be vacated and remanded for further proceedings consistent with their opinion.

The Federal Appellate Court noted Illinois has a workers’ compensation system in which employers compensate their employees for job-related injuries or illnesses, regardless of fault. In return for not having to prove fault, employees receive only workers’ compensation benefits from their employers and cannot sue their employers to receive more damages. Sometimes parties other than an employer might cause an employee to be injured at work. An employee in this situation can sue these third parties for damages and these third parties can in turn seek contribution from the employer or an employer may choose to exercise its right to intervene in the suit before satisfaction of judgment to recover their lien for amounts paid. If an employee ends up recovering money from a third party for a work-related injury, it is implicit the employer was not solely responsible for the accident. Illinois law gives the employer a lien on any recovery an employee obtains from a third party for a work-related injury. An employer who exercises this lien gets first crack at any recovery the employee gets from the third party. To calculate the amount of the employer’s lien, one begins with the recovery the employee receives from the lawsuit and then reduces this value by an amount equal to the amount found by the trier of fact to be the employer’s pro rata share of the common liability in the action. The amount of the employer’s lien cannot exceed its total workers’ compensation obligation.

Illinois law caps an employer’s contribution liability at “an amount not greater than the [employer's] workers’ compensation liability.” Kotecki v. Cyclops Welding Corp. This value, which is generally referred to as the “Kotecki cap,” represents the maximum amount an employer has to pay in contribution. Illinois law provides employers with a second option–an employer can escape contribution liability altogether by waiving its lien on an employee’s recovery from third parties. See LaFever. An employer who takes this option can no longer share in damages the employee recovers from a third party. However, the employer can then be certain its only payment obligation will arise under workers’ compensation.

In this case, Illinois law limited Ensign-Bickford’s contribution liability to the present cash value of its total workers’ compensation obligation (i.e., its Kotecki cap). But the IWCC hadn’t yet finally determined what Ensign-Bickford’s total workers’ compensation liability would be, so the District Court required Ensign-Bickford to submit an estimate of this amount. Ensign-Bickford submitted documentation its Kotecki cap was $4,085,571.21, and it had already paid $873,953.31 in workers’ compensation to the Baltzells. Neither the Defendants nor the Baltzells disputed these values, which the District Court proceeded to adopt. Ensign-Bickford then moved to waive its lien on the Baltzells’ recovery and sought to dismiss the defendants’ third-party contribution claims. On October 4, 2005, the District Court denied this motion, reasoning to waive its lien now would more than partially frustrate the purpose of the Contribution Act, and it would do nothing to promote the purposes of the workers’ compensation statute. The Court then reduced the total judgment of $13,980,120 by the amount Ensign-Bickford would pay and determined cumulative liability for the three defendants, thereby making R & R liable for $5,654,027, Freightliner liable for $2,827,013, and Lufkin liable for $1,413,506. The court entered judgment in favor of the Baltzells in these amounts.

Ensign-Bickford then filed various post-judgment motions, including another motion to waive its workers’ compensation lien and dismiss the third-party contribution claims against it. Meanwhile, the Baltzells and the Defendants entered a settlement agreement in which Defendants agreed to pay their respective pro rata shares of the judgment but reserved their right to litigate contribution and setoff issues. On February 13, 2006, the District Court denied Ensign-Bickford’s post-judgment motions, setting the stage for the current appeal. Defendants also filed related cross/contingent appeals regarding setoff and contribution issues in the event the judgment entered against Ensign-Bickford was vacated.

The Seventh Circuit noted LaFever still held even though the employee in LaFever already paid out the workers’ compensation benefits it owed the employee and was not required to make any future payments while Ensign-Bickford estimated it still owed about $3 million in future workers’ compensation payments. The Seventh Circuit concluded the District Court should have allowed Ensign-Bickford to waive its lien on the Baltzells’ recovery in their lawsuit against Defendants and dismissed the contribution claims against Ensign-Bickford. Since Ensign-Bickfor was not liable for contribution (but still owed workers’ compensation benefits), they next determined an employee should not get a double recovery from a third party for the same injury, so Defendants here were entitled to a setoff for any workers’ compensation benefits the Baltzells have already received from Ensign-Bickford. They further noted the need for setoff of future benefits as they were paid absent an agreement between all parties to resolve the issue. The court noted the most efficient solution might be for all the parties to agree any future workers’ compensation payments be held in trust and distributed to Defendants according to their pro rata liability, but the Seventh Circuit did not actually take this step and order it done.

This case is an example of the bargaining power an employer should have when, after doing the right thing and paying workers’ compensation benefits, they are pressured to waive recovery to allow a potential responsible third party to only pay a part of what they may ultimately be responsible. At KC&A we always recommend our clients seek the most beneficial resolution. This may take many forms—from waiving a lien with $1 contracts to forcing a third party case to trial to recover the lien. This case confirms the strategy is sound as the only thing to lose is the amount you are liable (and may have already paid) for the workers’ compensation claim since you can waive your lien at anytime prior to a decision becoming final. 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: The concept of using the term “traveling employee” has a long history in the Illinois workers compensation system. While the two words “traveling employee” do not appear anywhere in the Act, our liberal Commission and reviewing courts have “legislated from the bench” and created a different sort of burden of proof for a Petitioner in many lines of employ. When it comes to an employee who is required to travel as part of their work in order to perform his job, the Commission and reviewing courts clearly now view such an employee differently when looking at whether an injury “arose out of” and “in the course of” their employment.

The new test for a traveling employee essentially does away with AOO (arising out of) and ICO (in the course of), and instead introduces negligence concepts like “reasonableness” and “foreseeability.” In practice, this means the Commission and reviewing courts now provide coverage based upon the reasonableness of the conduct in which the employee was engaged at the time of the injury and whether it might normally be anticipated or foreseen by the employer. If the employee was acting in an arguably “reasonable” fashion, and the activity was one that could be somehow “foreseen” by the employer, then the employer will be liable for the resultant injury even if the injury would not be compensable under the normal “arising out of” and “in the course of” analysis.

Sounds strange, doesn’t it? Well, the concept at its origination had a seemingly legitimate basis. Take the classic example of a sales representative who is required to travel overseas to a foreign city for business, and therefore has to stay overnight. In such a foreign and unusual setting, if the sales representative was injured doing something “normal” or an action his/her employer would find foreseeable–say trip and fall over one’s own feet, then even though these actions are not specifically work-related, it would still be the type of injury that would be termed a “workplace” injury. Since the trip and fall did not actually arise out of a risk specific to employment under a traditional workers’ compensation analysis the finder of fact would be hard pressed to find such an injury compensable. Rather than focusing on the analysis of “arising out of” and “in the course of,” the traveling employee concept simply requires an injury to be part of the travels and therefore reasonably foreseeable in order to be compensable.

As one can readily imagine, the “rubber hits the road” on defining what a traveling employee may be because everything that happens to a traveling employee is arguably compensable while they are on the “trip.” We truly feel the concept should be limited to someone who is “taking a trip” or traveling in a foreign environment—specifically an environment that has hazards or challenges not common to a normal worker. If your job is taking trips, you shouldn’t be a traveling employee unless you can demonstrate your trip took you somewhere unexpected or unusual.

Our research patently demonstrates Illinois has gotten away from requiring a “trip” and not may provide benefits to anyone who is ever moving either by foot, car, boat or rickshaw. For example, in the recent ruling in Crissip, we saw the Illinois Appellate Court, Workers’ Compensation Division consider whether a North Aurora police officer was a “traveling employee.” We assure all of our readers; the concept of a traveling employee is being arguably abused or over-expanded in our state, in such a setting. By that, we mean a North Aurora police officer clearly travels as part of their work but there is nothing about North Aurora that might be foreign or unusual to a sworn peace officer whose job it is to know that specific environment like the back of his/her hand.

We also argue the traveling employee concept was not designed to provide global coverage for any problem anyone paid to travel faces. All of such workers still should face the AOO/ICO limitations when they are in the normal environs their jobs routinely bring them. In contrast, the last 35 cases over the last two years where the now-magic words “traveling employee” were mentioned by the IWCC resulted in 34 awards for claimant regardless of how routine or ordinary the circumstances of the injury might have been. If you are counting, the math indicates 97% of all such claims were found compensable!

What is frustrating is while application of the traveling employee doctrine to personal problems and non-work-related accidents strains the imagination; the concept has grown by leaps and bounds and now presents a significant problem in Illinois workers’ compensation. The current state of our workers’ compensation law is essentially causing the employer of any employee who uses a motor vehicle, airplane or other method of conveyance to become an absolute insurer of any possible injury whether work-related or not. In the past several years, the Illinois Commission and reviewing courts have found the following types of injuries compensable:

1. Two firefighters who stayed at a national hotel chain for a typical firefighter conference. The two men began wrestling in their hotel room. One suffered a severe injury to the shoulder as part of what clearly had to be horseplay. Using the traveling employee concept, the Commission court found these otherwise non-work-related injuries compensable. See Smith v. Downers Grove Fire Department, 06 IL.W.C. 26283; 06 W.C. 26283, 07 I.W.C.C. 1339, October 16, 2007.
2. We also found a claim involving a delivery driver who was apparently assaulted for reasons totally unknown and completely unrelated to the deliveries. There was nothing unusual or exotic about the environs of a grocery store on the north side of Chicago, even for White Sox fans. Using the “traveling employee” concept, the Commission and reviewing courts found the injuries compensable. See Potenzo v. Illinois Workers’ Compensation Commission. 378 Ill.App.3d 113, 881 N.E.2d 523 (1st Dist. 2007)
3. The Commission and courts analyzed a decision involving an airline worker who was injured on a layover when she hurt her arm while putting on her coat. The injury was found compensable under the travelling employee doctrine because they found she was on a layover. We point out all flight attendants routinely rest on layovers and there is nothing unusual or unexpected about such work breaks for this occupation. See Leung v. United Airlines, 05 IL.W.C. 11035, 08 I.W.C.C. 0535, May 12, 2008.
4. A partner of this firm handled a claim where an off-duty truck driver fell on his own soap bar taking a shower. Claimant admitted there was nothing unusual about the shower, the soap or the hotel room. He agreed he alone caused the soapy bathtub in which he fell. The Arbitrator wrote an award basically ruling the employer was a global insurer of anything the driver did at any time because of his “traveling” status. If you want the cite, send a reply.

Again, our primary concern in writing this article is the focus on the wildly liberal definition of what a “traveling employee” may be. We truly don’t feel truck/delivery drivers, pedestrians, cab drivers and flight attendants are “traveling employees” and entitled to global coverage of all personal and non-work-related activities. We strongly assert denials should occur when such workers aren’t taking “trips” and are in areas they are familiar with and doing routine activities, like taking a shower, putting on their coats or wrestling like school boys.

We also ask the question of how any slip/fall wouldn’t be compensable because you can’t slip and fall without arguably being a “traveling employee” so it appears they may be taking the logic to its extreme. The concept wasn’t supposed to strip out both the “arising out of” and “in the course of” concept and we assure our readers in most states, it doesn’t. We consider this another area of our law that may or may not actually require reform—what needs to be reformed are the hearing officers who may not follow traditional workers’ compensation concepts and want every injury covered by workers’ compensation, no matter how tenuous the relationship to work may be. As we continue to look to skyrocketing workers’ comp costs in Illinois, one place to start is right here.

We also feel this may be one method to end workers’ compensation litigation in Illinois because it is effectively impossible to truly dispute such claims for many occupations. As we have pointed out when repetitive trauma claims exploded—ending litigation may be bad for both sides, folks. The more paths from which completely indefensible claims appear, the less our defense clients are going to dispute anything and allow the claims to move to claimant attorneys.

This article was drafted by Arik D. Hetue, B.A. and Eugene F. Keefe, J.D. You can reply to Arik at ahetue@keefe-law.com. We would appreciate your thoughts and comments.

Editor’s comment: If you are a risk, health or safety manager and haven’t heard of EFCA, please send a reply. In short, it will allow unions to start card-campaigns to organize U.S. employers and signals the end of traditional organizing elections. Our current President has announced his intention to sign the bill when it hits his desk. Some observers feel this may cause union ranks to double or triple in the coming years.

However, EFCA is not the only concern. In addition to EFCA, there is the Respect Act which will limit management’s ability to exclude supervisors from bargaining units. Along with EFCA and the Respect Act, there will be an opportunity for an Obama-controlled NLRB to reverse numerous pro-employer board precedents.

Here are some of the NLRB decisions currently in question:

1. Harborside Healthcare: Supervisors Soliciting Authorization Cards

Current law reversed a series of older board decisions. These decisions held solicitation of union authorization cards by employees who are later determined to be supervisors is not objectionable if the supervisor’s actions were not threatening or intimidating. The most recent NLRB held, absent mitigating circumstances, solicitation of an authorization card by a supervisor has an “inherent tendency” to coerce the employee solicited and therefore the challenging employer does not have to establish that the supervisor engaged in coercive conduct.

The Harborside Healthcare decision posed a significant problem for union organizers in that it is often unclear during an organizing campaign whether an employee is a statutory supervisor or not. It is expected an Obama-controlled board will reverse the decision at the first opportunity.

2. Register Guard: E-mail Solicitation

The previous NLRB held employers have a basic property right regarding e-mail systems and are entitled to promulgate and enforce blanket “business only” e-mail policies.

The Board went further and adopted a stricter standard for determining when an employer has discriminatorily enforced its “business only” e-mail policy against union-related solicitation. The Board majority chose to adopt the analysis of the U.S. Court of Appeals for the Seventh Circuit instead of existing Board precedent which effectively did not allow the employer to distinguish between charitable and noncharitable solicitations, or solicitations of a personal nature as opposed to solicitations for an organization.

We expect the holding in Register Guard to be reversed fairly quickly, given many cases presented to the NLRB contain allegations of discriminatory treatment by the employer.

3. Dana Corp.: Voluntary Recognition

The previous NLRB reversed earlier precedent that stood for forty years and held an employer’s voluntary recognition of a labor union did not bar a decertification or rival union petition filed within 45 days of the notice to employees of the voluntary recognition. This may have been the most unpopular NLRB decision for labor because it undermined neutrality/card check and voluntary recognition agreements unions increasingly used as a major organizing device in lieu of filing petitions for election. In addition, the Dana Corp. decision flies in the face of the proposed EFCA legislation. Essentially, EFCA proposes to replace Board elections with card check recognition. If EFCA passes in its current form and Dana Corp. is still standing, Dana Corp. would provide a method for employers to get the election EFCA is designed to abolish. Either way, it is expected that the first challenge to this 45-day rule to come before the new Board will result in reversal.

4. Crown Bolt: Threat of Plant Closure Not Presumed Disseminated Throughout Plant

Crown Bolt held an employer’s threat to close its facility if employees voted for the union will not be presumed disseminated throughout the bargaining unit. The ruling overruled another precedent which held that all plant-closing threats are presumed disseminated throughout the plant. Threats of plant closure have traditionally been considered the most severe form of coercion of employees’ right to organize, so it is predicted the earlier presumption will be restored.

5 Lutheran Heritage Village-Livonia: Work Rule Prohibiting “Abusive Profane” Language

The NLRB set forth new rules for determining whether a work rule is unlawful, requiring a showing of one of the following:

• The employee reasonably construed the work rule to prohibit or restrict protected activity,
• The rule was promulgated in response to union activity, or
• The rule had been applied to restrict the exercise of protected rights.

Applying their own test, the majority held the employer’s rule prohibiting “abusive or profane” language was lawful because it would not reasonably be interpreted by employees to prohibit protected activity.

6. Brevard Achievement Center: Disabled Workers in Rehab Settings are Not Employees

This case held disabled workers in a primarily rehabilitative relationship with their employers are not statutory employees, even though the disabled workers work the same hours, receive the same wages and benefits and perform the same tasks under the same supervisor as the nondisabled employees. The prior Board did not reverse precedent in this case, but the dissent labeled the majority decision as “bad policy” and complained that “it means that the employer’s disabled workers have no protection under the Act.”

Given the fact that Congress has already strengthened the Americans With Disabilities Act (ADA), expanding protections to disabled workers effective in January 2009, it is likely the new NLRB will reverse Brevard when it gets the opportunity.

If you have questions or concerns about continuing changes in your workplace, please send a reply.

Editor’s comment: We have to first warn our readers the General Assembly is not friendly to Illinois business with a Democrat majority in both the House and Senate. But one never knows what the political winds may bring, particularly in this tremulous economy and with the coming indictment/prosecution of the former Democrat Governor that is certain to be embarrassing to everyone involved.

Today, the Chicago Sun-Times reports as part of their probe of former Gov. Rod Blagojevich, federal investigators are examining state bid proposals and other records from 18 engineering and construction companies that made large political contributions to mostly Democrat candidates and then got big contracts from the state and from the City of Chicago, records show. We are confident embarrassing disclosures such as this may continue in the weeks and years to come. It is impossible to predict the effect of such disclosures on the electorate but the next statewide election is about a year and a half away.

State representative David Reis has proposed the following legislation for the General Assembly to consider:

ILLINOIS H.B. 58 – WORKERS’ COMPENSATION (GENERAL)

Summary: Amends the Workers’ Compensation Act and the Workers’ Occupational Diseases Act as follows:

• Provides an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability;
• Makes changes regarding notice of accident;
• Makes changes in computation of compensation paid to certain employees who, before the accident for which an employee claims compensation, had sustained an injury;
• Makes changes regarding review of awards;
• Limits certain cumulative awards for partial disability;
• Provides for certification of permanent partial or total disability by physicians;
• Provides that no compensation is payable for certain injuries involving alcohol or drugs;
• Changes qualifications for Illinois Workers’ Compensation Commission commissioners and arbitrators;
• Contains provisions regarding evidentiary matters and statutory construction;
• Makes changes regarding the duties of the Workers’ Compensation Advisory Board;
• Requires performance audits of arbitrators; provides that an employer;
• The exclusive representative of its employees may agree to establish binding obligations and procedures relating to workers’ compensation.

Status: Introduced and referred to the Rules Committee January 14, 2009.

Outlook: This measure will need to be referred out of the Rules Committee to a policy committee before action on this legislation can occur. Currently, this legislation lacks majority party support. Majority party cosponsorship is seen as beneficial for a bill’s passage through the Democratically-controlled Legislature.

We consider this sweeping legislative proposal similar to the work done by the Missouri legislature a few years back. Those reforms made Missouri dramatically more competitive than our state. As we have advised our readers, we get the system we deserve. If you support this bill, contact Representative Reis at http://www.davidreis.org/contact.htm. Please do not hesitate to send thoughts and comments about this bill.

Editor’s comment: We were fascinated to see a news report in the Chicago Tribune indicating Illinois Attorney General Lisa Madigan Attorney General Lisa Madigan blasted former “coo-coo” Gov. Rod Blagojevich for imposing a “culture of secrecy” on state agencies under his control and hampering release of public records. As part of this article we learned there is now an Illinois Reform Commission and they have their own new website at http://reformillinoisnow.org/mission.php. Most of you will be stunned to learn they are asking you and me and everyone reading this for comments, thoughts and questions on what to do to reform our nutty state government.

The Tribune article indicates Ms. Madigan told the Illinois Reform Commission the Blagojevich administration repeatedly refused to release information the public and the press were legally entitled to under the state’s Freedom of Information Act. She is quoted as saying: “Former Gov. Blagojevich made secrecy, not sunshine the default position of state government.”

The article further indicates new Gov. Pat Quinn created the Reform Commission to come up with ways to sanitize our smelly state government in the wake of the numerous Blagojevich scandals. The Commission includes many notables including the man who put former Gov. George Ryan in jail, Patrick Collins, Northwestern Head Football Coach Pat Fitzgerald, Cook County State’s Attorney Anita Alvarez, Pamela Davis, the CEO of Edward Hospital and Lawrence Oliver, Chief Counsel, Investigations for the Boeing Company among others. We wish them all the best. We will send relevant parts of this KC&A Update article to them for their consideration.

The Tribune quotes Madigan who said agencies under Blagojevich “arrogantly” refused to respond to information requests and she said agency officers told the attorney general’s office they were directed “from the top” to deny requests. While Madigan had created a position to help the public get access to information, there were limits on how much they could do because of the state’s weak Freedom of Information Act law. Madigan gave suggestions to Gov. Quinn about using an executive order to increase compliance with public records laws. For example, she said Quinn could designate an attorney within his office to serve as a senior public information officer to ensure that state agencies, boards and commissions comply with the law. Madigan has suggested a senior public information officer then review all the FOIA request denials during Blagojevich’s six years in office and determine whether that information can and should be made public.

Keefe, Campbell & Associates falls into the group of folks who were asking for information and getting stone-walled. In years past, we repeatedly wrote and made formal Freedom of Information Act requests seeking test results and the selection process for Illinois arbitrators. We have always considered it comical to see police and fire candidate testing results posted on the web but our arbitrator testing for jobs that are paid substantially more money are kept secret to the point of being similar to nuclear weaponry. After pushing, calling and writing over and over again, we were told they would never voluntarily respond and the only way to get such information was to file suit. We then made the clear decision not to waste the money litigating such a difficult and complex claim. We hope someone will start to open the door and let the light in.

What else is kept unnecessarily secret and not in the “sunshine” in our Illinois’ Workers’ Compensation system? Who are these folks who secretly run the place? Please note we are not suggesting anything is “illegal” in keeping things quiet. Some of the secret decisions are bad simply because they are kept from the public and the people and businesses that have a stake in the decision-making process. Please understand hundreds of businesses across Illinois are continuously considering Illinois as a location for more or less business and most important, jobs. They all ask us the same questions—is Illinois a good place for business? Is the workers’ compensation system open and fair? If you don’t know it, Illinois business spends between $3-6 billion every year on workers’ compensation costs. They need and must have a say in the process. We urge everyone to “let the sunshine in.”

So, for starters:

1. Judiciary–no one in the public eye has any idea how or why the justices who sit on the Appellate Court, Workers’ Compensation Division are selected. The justices may have lengthy experience in the workers’ comp arena or they may know nothing about it at all. We have seen justices sit on the panel for two or three years until they ask a single question in oral arguments. In 29 years of practice, your editor has only seen one appellate justice who ever actually tried a workers’ compensation (he sits on the current panel). Other than that justice, we have never seen any member of the panel visit the IWCC or sit in on hearings or listen to orals at the Commission. We don’t think learning on the job is a great idea at that level. To our knowledge, this selection process may involve the inner workings of our Supreme Court and we elect those folks so it may be up to us to ask them to tell us how this panel is picked and what the candidates’ qualifications and proclivities may be.
2. Judicial rulings–No one knows how or why so many secret and non-precedential Rule 23 orders are issued by the Appellate Court, Workers’ Compensation Division.. We truly feel it gives the whole WC appeal process a feeling of happening in a clandestine “star chamber.” In the last year and for the first and only time, we saw this honorable panel attack a law firm for filing a frivolous appeal and the Court hammered them with enormous fees and costs, causing a major rift between counsel and client. We agree strongly with the Court’s ruling but found out about it only because a reader sent it to us—every member of the practicing bar on both sides had a right to be forewarned of this new proclivity of the Court but the striking and detailed Rule 23 order remains hidden to this day. Every year, we attend a national roundtable for Illinois WC defense lawyers and all of them routinely talk about a ruling that helped them or a ruling that hurt their client or a legal nuance the practicing bar should be aware of. After telling the audience about it, the defense lawyer then shrugs and says—“well, it is Rule 23 decision so forget I just told you about it.” What is staggering about this whole concept is the members of the court never tell anyone why or how they make the determination to keep a vitally important ruling or possible precedent secret from the public. What is even more maddening is when we hear a number of claimant lawyers all talking about or citing a Rule 23 decision they consider favorable when the only way to learn about it is through their grapevine. We have been advised Petitioners’ lawyers actually send such rulings to uninformed adjusters and possibly mislead the adjuster into thinking such rulings bear on active claims when the Appellate Court says they have no precedential value. Rule 23 was supposed to allow mundane and routine orders to not reach the level needed for publication—it was not supposed to be a tool to hide crucial important rulings from the practicing bar and the public eye. In this day and age, it costs thousands of dollars and years of hard work for either side to take a WC case all the way to the Appellate Court. The parties have a right to demand publication of the outcome. Every appellate ruling of any possible merit should be published every time and all the time. We consider the non-publication of so many important legal rulings to be wholly unnecessary and a public disgrace—numerous secret rulings run completely contrary to what U.S. justice is supposed to be about—let the sunshine in.
3. Chairperson/Commissioners–the entire process for selecting and then confirming Chairpersons and Commissioners is kept completely out of the public eye. We still laugh about the politician who knew absolutely nothing about workers’ compensation and got the job solely to improve his pension. We understand such jobs are created and designed to be purely political appointments. ‘Political’ equals “secret” only in Illinois. In other states and the U.S. Government, they vet or display potential political appointees to the media and public, prior to their final selection and confirmation. The process subjects the candidates to being scrutinized from every quarter. Former Illinois citizen and current U.S. Secretary of State Hilary Rodham Clinton wasn’t secretly selected by the President and her confirmation by Congress wasn’t done completely in secret. This firm closely watches the Illinois WC system for several thousand of our readers. For the last thirty years, we first learned the identity of every IWCC chairperson only after they were selected, appointed and confirmed by the legislature. For example, if we learned a candidate hadn’t paid his/her taxes for ten years, he/she would still have the post and the secret power-that-be would have to make quiet adjustments to quell any media outburst. This hidden selection process reeks like really new cheese or really old meat.
4. Arbitrators–the testing and selection of Arbitrators is clearly not a civil service process. Those secret powers-that-be are always manipulating it. There is no question Arbitrator selection and retention is purely political. As we have pointed out many times, the first Chairperson selected by Blago had the political power to insure all hearing officers in the arbitrator position were completely under his and only his thumb. He bragged at numerous presentations that he and only he “appointed” this Arbitrator or that Arbitrator. Civil service jobs are supposed to be earned by testing and other open selection criteria, like military preference. The Chairperson was very clear to indicate he considered military service in making decisions and we are sure he might have done so—however, what it meant to “consider military service” is known only to him, as his full selection standards, if there were any, have never been disclosed. We are confident future Arbitrator candidates will continue to be quietly hand-picked by the secret-powers-that-be and then told to take a test that isn’t openly publicized on the Commission’s website and then “appointed” solely for personal or political reasons in a clandestine process that is never, ever made available for public analysis or scrutiny. Thankfully, that is not how police and fire officers are selected but it will remain the way of our Workers’ Compensation Commission until it is changed and reformed.
5. Commission makeup/budget—as we have told our readers in the past, Illinois business pays every penny of the cost of the place. We truly feel everyone needs an open, honest and fair assessment of staffing needs and efficient use of resources. This has never, ever been done in the open. We question whether Illinois needs 35 Arbitrators—Indiana to our east has 5. Illinois has 9 Commissioners—each Commissioner has 2 full-time attorney assistants. For one clear example of budgetary indifference, the Commission’s 2007 Annual Report says the 9 Commissioners consider up to 1,500 administrative appeals each year. They settle as many as 600 of those cases. On an annual basis, they dismiss about 100 cases. They summarily affirm about ½ of the remaining Arbitrator decisions and don’t actually write an award other than to confirm they aren’t changing the Arbitrator awards. Worst case, that leaves about 400 contested decisions to consider each year and they have 27 lawyers working full-time to do so. If you do the math, that is 14 cases per lawyer per year or approximately one contested case to decide every month. With deference to our hearing officers, it is impossible to consider the Commission is working efficiently when one considers those numbers.
6. Legislation–the legislative process in Illinois WC has been done on an agreed bill process that is also kept a tight secret. How one gets to be on a legislative panel or seek any real say in the legislative process is similarly secret. We think they give out secret rings to the members, have a secret handshake and all of the participating organizations may have to all swear on their pinkies not to tell anyone about anything. That is how things in Illinois have been done in the past—we hope it stops in the future. If you think that Illinois business gets repeatedly slammed because the claimant bar has very strong veteran representation on legislative changes and the defense bar is left on the outside looking at a big wall, we agree with you. We have told you how business reps agreed in 2005 to legislative changes that sounded good but that had no legal value when the affected claims were considered by our hearing officers. We feel the secret process led directly to that outcome and will continue to cause similar dysfunction in a system that cries for reform. We hope the sunshine gets into future legislation from now on.

If you are with Illinois business or labor and think the code of secrecy in Illinois WC is good for Illinois, please tell us why. We think Illinois business gets their brains beat in every day at the IWCC and will continue to do so until these processes are opened up and someone can balance the system. We appreciate your thoughts and comments.