Keefe, Campbell & Associates, LLC

Editor’s comment: As part of our KC&A Update of last week, we advised our readers the State of Illinois, County of Cook and City of Chicago did not implement surveillance of their workforce. We feel this concept is crucial to insuring the governmental bodies are paying claims they owe and fighting claims where claimants are phony. We indicated taxes for all three entities are skyrocketing in the business-as-usual environments. We point out every self-insured entity, insurance carriers and TPA’s regularly use surveillance as a tool to fight WC fraud and properly manage losses. Governmental bodies that don’t do so are misusing government funds and paying claims they don’t owe.

We were advised our comment about the State of Illinois was incorrect—they do use surveillance. We apologize and retract that statement. We are told the State of Illinois uses surveillance regularly. Their goal is to insure they only pay claims that are bona fide; benefits are stopped if surveillance efforts are fruitful.

We were also somewhat surprised to learn the State and its legal officers aren’t acting when they learn of workers’ compensation fraud based on surveillance. For reasons we don’t understand, they don’t prosecute. As taxpayers, we hope that trend does not continue and the state gets more aggressive when they learn a state worker is working when collecting TTD or other fraudulent actions are being committed.

We also hope some day the County of Cook and City of Chicago get serious and start actually investigating work injury claims and prosecuting phonies. Until then, your taxes are going to continue to skyrocket under administrations that continue to wink at stealing and fraud in the workers’ compensation arena.

Please feel free to provide your thoughts and comments.

Editor’s Comment: Illinois employers should be aware of this important decision and adjust your HR/workers’ compensation policies accordingly. When mired in a fight between a treating doctor’s work restriction and an IME work release, an employer may suspend TTD benefits in good faith based on the IME opinion. However, employers should not go so far as to terminate the employee for refusing to follow the IME recommendation. This can be viewed as an adverse employment action and expose your company to liability for retaliatory discharge.

In Grabs and Francek v. Safeway, Inc. and Dominick’s Finer Foods, LLC, (No. 1-08-3007 June 17, 2009), our Appellate Court addressed a certified question on an interlocutory appeal on this narrow issue of alleged retaliatory discharge. Plaintiffs Fred W. Grabs and Rudolph Francek filed a joint complaint alleging Defendant Dominick’s Finer Foods terminated them in retaliation for filing workers’ compensation claims. Defendant responded to aver Plaintiffs had been terminated for violating a neutral attendance policy when they missed three consecutive days of work subsequent to being advised to return to work pursuant the opinions given by Defendant’s IME.

By way of background, Grabs’ claim was initially accepted and all medical bills and TTD were paid by Defendant. Pursuant to Section 12 of the Illinois Workers Compensation Act, Plaintiff presented for an IME with Dr. Bernstein, a physician chosen by Defendant. Dr. Bernstein determined Plaintiff Grabs could return to work and further Grabs’ injury was not work-related. Accordingly, Grabs was advised to return to work. He refused, citing treating doctor’s orders, and was terminated after missing three days without calling in.

Similarly, Francek’s claim was disputed from the outset and he presented for an IME with Dr. Papierski who determined his injury was not work-related and he could return to work without restrictions. Francek also chose to follow the advice of his treating physician and was terminated after the third “no call/no show”. Both claims came before the IWCC on 19(b) Motions and in both cases, the Arbitrator sided with Plaintiffs’ personal physicians finding both injuries arose out of and in the course of their employment with Defendant. Further, the Arbitrator found Plaintiffs were exercising their rights pursuant section 8(a) of the Illinois Workers’ Compensation Act when they did not return to work at their treating physicians’ advice.

With regard to the civil action for retaliatory discharge, the Circuit Court granted Plaintiff’s motion for summary judgment. The Circuit Court then granted Defendant’s motion for interlocutory appeal on the following question:

Does the Workers’ Compensation Act give the IWCC the exclusive authority to determine whether an injured employee may return to work, such that when an employer is faced with conflicting medical opinions from the employee’s doctor and the employer’s IME, the employer may not rely upon the IME opinion to terminate the employee under the employer’s attendance policy for failing to return to work, before the Commission has adjudicated the pending dispute over the conflicting medical opinions?

In a well-reasoned decision, the Appellate Court held when an employer is faced with conflicting medical opinions from the employee’s doctor and the employer’s IME, an employer may not rely solely on an IME in terminating an employee for failing to return to work. However, the Appellate Court stopped short of finding that any such fact pattern was per se retaliatory discharge, as was argued by Plaintiff. Rather, the Court was careful to explain an employee must meet his burden of proof to show his discharge was causally related to the exercise of his rights under the Act. The Circuit Court went too far by applying a per se rule of retaliatory discharge, rather than affording Defendants the opportunity to outline a valid, non-pretextual basis for termination.

In other words, the mere coincidence of a termination in the midst of a workers’ compensation dispute will not trigger any presumption of wrongful discharge; the terminated worker must still meet his standard of proof for all elements of a retaliatory discharge claim. The Court explained an employee who elects benefits under the Act may be terminated, however, the decision to terminate must be wholly unrelated to the employee’s claim for benefits under the Act, citing the 1998 decision of Clark v. Owens-Brockway Glass Container, Inc., 297 Ill.App.3d 694.

From the perspective of Illinois employers, this is a liberal decision that focuses on the Workers’ Compensation Commission as the source of implicitly determining when and how an employee can be terminated. We consider that judicial legislation of the worst sort. We don’t feel the Commission has or should be provided such power—it isn’t in the enabling legislation that created the Commission. The legislature could have addressed the matter and didn’t. We also feel this ruling would allow an injured worker to remain off work indefinitely by stalling the hearing at the IWCC to maintain their right to continued health care, pension and other employee benefits. Again, the Act and Rules don’t provide such rights.

This article was drafted and researched by John P. Campbell, Jr., J.D. Please feel free to reply with your thoughts and comments.

Editor’s comment: We want all of our readers to understand one of the overall goals of this KC&A Update is to stop, end or minimize the age-old trend toward secrecy and back-door deals in the Illinois political matrix which includes the Workers’ Compensation Commission as an administrative agency that has its sole duty to provide benefits to injured Illinois workers. In so doing, the IWCC has a direct impact on the Illinois economy and our overall business picture. We do understand there are some business associations that are provided what we consider to be very minimal input into the overall process of forming, funding and operating the Commission. To the extent these associations may be provided some indication of what is happening at the Commission and why, it appears to us it is not openly disclosed or discussed with their membership. In the framework of an agency that deals with several billion dollars of Illinois business’ money, we have no idea why business associations and other groups feel their role should be kept quiet.

This Wednesday, July 1, 2009, the Commission’s annual budget will roll-over and start anew. In rolling it over, the Commission will again levy around $25 million dollars or more solely on the Illinois business community—they spent about $18.6 million in the last fiscal year ending in June 2008. The Illinois Commission had 178 employees at that time. In our view and the view of most risk managers with Illinois WC claims, the forces of Illinois labor and its affiliates continue to maintain full control of the Commission. It is also critical for our readers to understand the last chairman of the IWCC was able to get quickly and quietly move the funding of the Commission out of the general revenue fund of the Illinois state budget. Therefore, the battle going on in Springfield about the multi-billion dollar state budget deficit and potential tax increases, billion-dollar deficit borrowing or concomitant budget cuts won’t impact the Commission in a direct fashion.

So what will happen with the Commission’s budget? Well, we are certain of a number of things. First, you and I and most Illinois citizens haven’t been asked and can’t learn that answer. The Commission didn’t hold an open meeting to discuss it as an administrative body. The IWCC budget will be summarily announced to the public at some point. If there are any savings, we will immediately advise our readers. Despite the source of the funding, the reasons and thinking behind the budget aren’t for public or even semi-private consumption. This firm represents a number of the biggest manufacturers, municipalities, hospitals and retailers in Illinois and we assure everyone they weren’t asked or consulted about the IWCC budgetary issues or decision-making.

Second, the Commission’s operations fund more than doubled under the last administration. The reason for the massive hiring was the former Chairman’s perception that cases weren’t being tried often or fast enough. By the end of his term, he applauded a 7% increase in the number of trials being conducted. That increase remained flat and we haven’t seen the pace of rulings move any faster than before.

In contrast to the heightened costs, we feel the business-unfriendly litigation environment has caused the number of new claims being filed to drop steadily. For the last period the Commission reported, less than 50,000 new litigated claims were filed. We simply don’t feel insurance companies and TPAs feel they get a fair shot at the liberal Commission and many observers don’t feel the place is amenable to bona fide disputes. Even though Keefe, Campbell & Associates brings back successful WC litigation outcomes on a regular basis, it is hard to say the Commission can be viewed as a fair and impartial place at which to arbitrate a close legal issue or factual dispute. For whatever reasons, newly filed claims continue to drop and we look to see if the Commission will react to that change and cut staff or offices in the coming budget announcement.

The Commission did realign arbitrator assignments to try to cut mileage/travel expense earlier this year. We have no idea if there are any other cost-cutting measures that can be expected. There are rumors about:

1.         Cutting the number of Commissioners from the current nine back to six—this simple step would save around a million dollars per year because of the salaries of each Commissioner and their two lawyer-assistants along with the secretarial staff;

2.         Cutting the number of Arbitrators from around 35 down into the middle 20’s. The savings in doing so would be proportionate to the level of cuts;

3.         Closing some offices—when he got the money from the new levy, the former Chairman also opened new administrative offices across the state, There are five of them. The staffers hand out forms and Commission calendars. They may provide informal copying/faxing services to trial attorneys on both sides of the bar. The offices have computers that can be used by the public to access the Commission’s website and learn status of claims. Unlike other states, staffers are not allowed to provide legal or claims advice to anyone. Therefore, other than to provide political jobs for the generally nice folks who staff the offices, everything they do and provide to Illinois citizens can be readily located online at the Commission’s website. We project the cost of paying for space, operating and staffing these offices to be close to another million dollars;

4.         Like every other state agency, there are numerous cost-cutting efforts that could be made to improve technology and streamline procedures to save expense. They won’t do so until forced to.

So where do we go from here? Well, we point out to all major Illinois businesses along with the Illinois State Chamber of Commerce, the Illinois Self-Insurers Association, the Illinois Municipal League, the Illinois Retail Merchants, the Illinois Hospital Association and all similar associations that you all have a major stake in what goes on at the Commission. We urge all of you to stop the tradition of secrecy that dominates the Illinois workers’ compensation system and that will produce this coming year’s annual budget wholly cloaked in secrecy. We ask all of you to demand input and comment from your members about how this place is run and their money is spent. The power won’t be shared until you start to openly ask for it to be shared.

We point out that, if administrative and legislative secrecy was good for Illinois business in the workers’ compensation arena, the system would have to dramatically more friendly to business. It isn’t and secrecy clearly doesn’t serve business’ interests. We don’t know a single business-person who feels there is are positive aspects to the way the Commission is secretly operated, funded or run—if there is someone out there who feels differently; please send us your thoughts.

Finally, we suggest all Commissioners, Arbitrators and staff of the Commission continue to work hard and find ways to make Illinois’ workers’ compensation system work to become the best possible “product” it can be. Our favorite model is from an old friend, Cook Circuit Court Judge Jim Riley who will tell anyone in his courtroom that he has no court backlog. He is proud to confirm for all court watchers the parties who appear before him settle their cases or disputes are quickly and fairly adjudicated by him. It would be great to see our Arbitrators take a similar approach—if you can help the parties agree and close a dispute, do so. If you can’t, have your court reporter fire up the stenograph and put the matter on.

Similarly, workers’ compensation cases should not sit for years and years so as to cause criticism and suggestions of new methods to move cases faster. Illinois Arbitrators should be proud to work a full day, control their calendars and insure cases are settled amicably wherever and whenever possible. If the parties need to get experts and conduct depositions, all of it should be put on a calendar to be sure timely compliance is watched and then enforced. Once preparations are complete, a fair and impartial hearing should be conducted. We have some very solid and knowledgeable hearing officers in this state and we want to encourage all of them to get faster and more efficient in their day-to-day handling of claims.

As always, we appreciate your thoughts and comments.

Editor’s comment: We note our Illinois Commission is now searching furtively for more claimants to provide additional monies for the Rate Adjustment Fund. Funding of the Rate Adjustment Fund to increase the highest total and permanent and death benefits in the U.S. is the result of an assessment on Illinois employers as determined by the Workers’ Compensation Commission. Their website has a clarion call to claimants and attorneys to step up and get more money. They appear to lament the fact that only half of their inquiries result in responses. Our vote is to save the money spent in looking for these folks—if they need the dough, they will come to you to find it. If they don’t need it, they won’t.

On the Left Coast, we hear California has stepped up anti-fraud efforts to stop system abusers. California Insurance Commissioner Steve Poizner announced nearly $30 million in grants to district attorneys in 37 counties for aid in combating workers’ compensation fraud. The amount was an increase of almost $1 million over last year.

According to Commissioner Poizner, WC insurance fraud amounts to “a $500 hidden tax on every man, woman and child in California.” Funding for the grants is the result of an assessment on employers as determined by the Fraud Assessment Commission. The panel makes a recommendation to the insurance commissioner who can accept or amend the panel’s recommendation and the Insurance Commissioner’s final decision must be ratified by the Fraud Assessment Commission.

The United States Postal Service says they save about $200 million each year from surveillance and other fraud-busting efforts.

The amount of money spent by the Illinois Workers’ Compensation Commission to assist Illinois State’s Attorneys in stopping workers’ compensation fraud is -0-, zero, zip, nada. The way for their agencies to apply for such assistance doesn’t exist. Trust us, the wise guys who run the Commission don’t want it and we may need something short of a revolution to put it into place.

Along the same lines, the amount of money spent by the State of Illinois, the County of Cook and the City of Chicago to perform surveillance on their injured workers and try to ferret out workers’ compensation fraud is the same amount, -0-, zero, zip, nada. They all have silent or open policies that anti-fraud efforts are not to be considered, implemented or funded. Our state, county and city taxes are going up exponentially. Does anyone see a link here?

Editor’s comment: On July 1, 2009: the minimum wage increase takes employees 18 years or older from a minimum of $7.75 up to $8.00 per hour. Tipped employees will increase from $4.65 up to $4.80. Employers may still deduct 50 cents off of the minimum wage for employees in the first 90 days with the employer or for minors under the age of 18 ($7.50). However, an under age 18 new employee may not be paid 50 cents less for both criteria (the employer can only take one 50 cent deduction). Tipped employees under 18 must now be paid $4.50, an increase from the previous $4.35.

Our law partner and statistician extraordinaire, Shawn Biery has the daunting task of updating his rate sheet to account for the new rates. If you need his most recent effort on the calculations, send a reply.AI areas as you make it look better claims came back that way looks like you got in when overheated iodide drafted a motion to strike that I asked you take a look at I don’t idle to VJ drafted so you can build for

These new minimum wage rates will continue through June 30, 2010.

Editor’s comment: In the Illinois work comp industry, there may be unexploded malpractice bombs all across our landscape. For attorneys in the workers’ compensation arena, the potential for malpractice often comes in dealing with benefits in the federal Medicare and federal/state Medicaid systems.

First, claimant attorneys need to be concerned their clients will lose benefits if they mishandle their cases and most particularly settlements that close medical exposure for the employer/insurance carrier. This could lead to malpractice liability if clients learn they hired counsel that has not protected them properly. Second, attorneys need to be concerned that they will be liable to the Medicaid and Medicare systems personally should claims made by either system be disregarded or mishandled.

Defense attorneys have to make certain the interests of Medicare are protected or they may face treble damages. Similarly, state Medicaid liens do effectively attach to workers’ compensation recoveries and should be addressed at the time of claim closure.

Similar concerns should and must be shared by claims professionals. From a professional standpoint, identifying and understanding the opposing side’s concerns adds to the claims handler’s preparations when negotiating with these attorneys. Additionally, a comprehensive understanding of these intricate government programs will help the claims manager when the worker is not represented by counsel. In such settings, the claims specialist must be aware of Medicare and Medicaid issues on the claimant’s behalf, and also must protect their account, the employer from liability from these two benefit systems.

The key to correctly working within the Medicare and Medicaid systems is first to understand their differences.

A. Medicare is a federal health insurance system only; there is no companion state-specific program.

1.       A claimant may become entitled to participate in Medicare when he is declared disabled or reaches retirement age.

2.       There are no financial criteria to participate; multi-millionaires and paupers alike receive benefits from the federal program which is one reason it is go large.

B. Medicaid, in contrast, is a federal and state system that provides health benefits to those who meet specific financial criteria.

1. If assets and/or income get too high and exceed the mandated thresholds, all of the benefits received under the program are lost.

2. A claimant may receive benefits under both programs at the same time, and often a claimant may receive Medicaid benefits while awaiting Medicare eligibility.

3. The receipt of compensation benefits can disqualify a claimant from receiving Medicaid benefits, as can receipt of a lump sum or a funded Medicare Set-Aside Trust.

An annuity that is not irrevocable, non-assignable, and does not make equal payments of income and principal over a claimant’s life expectancy can similarly cause disqualification. In both systems the law states government is the secondary payer, meaning that if another source of payment is available, the programs should be reimbursed for inadvertently paying bills in the first place.

It is critically important to understand Medicare or Medicaid claims for benefits paid before or after a workers’ compensation settlement may lead to liability for claimant. When claimants face claims from the government, it may lead to malpractice claims against their attorney, defense counsels or the respective insurance company.

If you have thoughts or comments, please send a reply. If you have questions or concerns about Medicare Set Aside trusts or other issues in the workers’ compensation arena, send your inquiries to ekeefe@keefe-law.com.

Editor’s comment: Business observers may ‘draw your own contusions’ but we again feel Illinois workers’ compensation claims are invariably being drawn toward global coverage of all injuries. Our heart goes out to the unfortunate claimant who, regardless of the legal analysis, suffered a life-changing injury.

In Restaurant Development Group v. Hee Suk Oh, (No. 1-08-2143WC June 16, 2009). a unanimous Appellate Court, Workers’ Compensation Division ruled claimant’s job as a bartender in the Bucktown area of Chicago exposed her to a higher risk of injury than the “general public.” The record indicated the Bucktown neighborhood was a “high crime area” with a history of gang violence. A Chicago police officer was called to testify and indicated the neighborhood was in the top 25-33% of Chicago neighborhoods for violent crimes. There also appears to be a lot of evidence presented indicating the Bucktown area was “gentrifying” or improving rapidly and the gangs were being moved out. Obviously, that process didn’t happen fast enough.

The court also noted the property had floor to ceiling glass near which claimant worked on evenings and weekends. We point out you don’t build restaurants with floor to ceiling glass in poor neighborhoods—the presence of such restaurants signaled the improving neighborhood. Regardless, the members of the court felt the presence of such glass placed claimant at an increased risk of injury from gunfire. Therefore, injuries she suffered when a stray bullet pierced the window and paralyzed her arose out of and in the course of her employment. The court affirmed a permanent total disability award as not being against the manifest weight of the evidence.

We initially note claimant lived in the Wicker Park neighborhood and worked in an area called Bucktown. For our readers from outside the Chicago area, in the 60’s and 70’s, both areas were pretty run down but had similar transformations where gangs were pushed out and nicer folks who like Starbucks® moved in during the late 1990’s and into this century. From our view of the Wicker Park and Bucktown neighborhoods, the risks of getting hit by a stray bullet were a 24/7/365 issue for this worker whether at home, work or play. But also understand it is a wildly uncommon thing for someone to be hit and seriously injured while at work in this fashion.

The question faced by the court is when something is “a risk common to the public” versus a work-related risk. We point out the adjective ‘stray’ in the term ‘stray bullet’ means random and unexpected. Employers aren’t supposed to owe workers’ compensation benefits for random and wholly unexpected events that cause injury. We assert the reasoning provided in this ruling would render all actions leading to anyone becoming a victim of any crime at work compensable. We also point out Chicago doesn’t have a neighborhood that doesn’t have violent crime and gang issues, some have more and others have less. President Obama’s neighborhood is closely watched for violent crime and gang issues—they won’t let you or I travel within six blocks of his home due to appropriate concerns for his safety. We are in Chicago that has violent crime and, sadly, stray bullets—that is why many of our readers don’t live there. With deference to the court, they clearly don’t compare apples to apples—they say they are comparing the risk of being in Chicago to the risk of being in rural Illinois. We agree there are not a lot of stray bullets in the cornfields outside Bloomington, Mendota or Marengo. In contrast, we assert the risk of stray bullets is a “risk common to the public” that lives, works and plays in this city, like this claimant.

We had a claim where a woman’s purse was snatched near her job in front of twelve co-workers. As the unlucky victim, she claimed injury. While we are sorry to hear it, there are purse-snatchings in that area. Are all such events going to be work-related? When is it a work-related risk and when is it a risk of being a human in this state? Folks in Mendota and Marengo don’t have their purses snatched so is it compensable?

Our problem with the reviewing courts in this state is they do a solid job of legal and factual analysis. As a group, they tell us why cases are compensable, in their view. As a matter of fact, on the issue of accidental injuries being compensable, we can’t remember any case coming from the reviewing courts that wasn’t eventually found to be compensable. In this ruling, they don’t give anyone any guidance on when a victim of any crime who is at work in a shady or run-down area of cities like Chicago, Rockford or Aurora won’t get benefits. We want our readers to understand we can’t have a system of litigation if our hearing officers and the reviewing courts are going to make all events uniformly compensable under the repetitive trauma concept, the traveling employee model or the “risk common to the great public that doesn’t live in a cornfield in Mendota” approach.

We appreciate your thoughts and comments.

Editor’s comment: What government program is run “well?” How do you like the U.S. Postal Service that is now hemorrhaging money? Does anyone feel the Social Security Administration operates efficiently? Do we all understand Medicare is presumed dead within a decade?

Try to imagine a truly poor person, let’s say a bag-man or bag-lady in Chicago. They don’t want to sleep on a park bench or under a bridge in January. If they have a sore back or a painful shoulder or demonstrate psychiatric impairment (what bag-person isn’t somewhat impaired?), they may soon be able to go to a hospital and have the government provide three square meals and a warm bed and round-the-clock care. Someone please tell me how to eventually kick them out of the warm hospital into the cold or snow? Utilization review? By a government worker whose job it will be to spend our tax money?

We will all have to keep a watchful eye on that issue that may be coming to a medical institution near you shortly. Some observers are telling us the program cost will exceed $2 trillion dollars we simply don’t have.

On the WC side, as our nation edges closer to universal health care, the implications for workers comp are both profound and troubling. Policy makers in Washington may be inclined to ignore the special needs of the workers’ compensation community and create problems for employers, insurers, TPAs and hearing officers who deal with comp issues.

There are a number of key reasons why reform of health care may undermine the ability of states to deliver a quality workers’ compensation system.

• The overall goal of the broader health care system is to preserve the life and health of individuals and families. This system provides treatment from conception up to the moment of death.
• In contrast, the workers’ compensation system provides treatment only to workers who are in the course and scope of employment.

• The general health system provides defined services to individuals and families. Virtually any illness or injury is covered, including many forms of mental illness.
• In contrast, workers’ compensation covers only what occurs during work and is proven to be work-related, with an almost phobic disregard for mental impairments.

• In the broader health care system, premiums for coverage are paid by individuals and their employers. Depending upon the plan, individuals and their family members assume at least some of the cost of treatment, through premiums, co-pays and deductibles.
• In workers’ compensation, employees never pay premiums and are never charged co-pays or deductibles. Thus, only the employer who purchases mandatory coverage and their insurer has the incentive to control costs. We are seeing a tremendous fight in Illinois over who gets to control medical costs—claimant attorneys or the employers. That fight will continue for years to come.

• The new mandates for health insurance coverage come from Washington, D.C.
• Workers’ compensation, in contrast, is strictly a state program. New federal mandates (for example, total and unfettered patient choice of doctor) may well conflict with long-established state systems.

Ultimately, the new direction for federally run health care may be driven by cost and coverage. Whether the providers are public, private or both, health care cost controls and rationing will lurk in the shadows: will there be a cap on total expenditures for any given individual and any given conditions? Will there be limits on end-of-life services? How much of the costs will be shifted to consumers? What incentives can or will be created to try to reduce utilization that we predict will run costs to the breaking point?

In contrast, workers’ comp is and will always remain an early 20th century system. It already provides virtually universal coverage for people who work. The costs belong exclusively to employers and carriers; there is no cost-shifting onto injured workers and there are no incentives for these workers to limit expenditures. The goals are returning injured workers to employment and providing lifetime benefits for the totally disabled.

We are all going to have to wait and watch and see what federal government’s provision of 100%, on-demand coverage of all medical conditions may bring. If they don’t meet that model, the weeping, wailing and gnashing of teeth will be heard ‘round the world. We would appreciate your thoughts and comments on this coming change to our lives and community.

Editor’s comment: We have carefully reviewed this ruling. We have no idea why or how the Appellate Court didn’t affirm about $50,000 in penalties and fees.

In Global Products v. Workers’ Compensation Commission, (No. 1-08-1914WC June 9, 2009), the Appellate Court was faced with a case that started with an injury in August 1999. Claimant had an undisputed fall-down and two lumbar surgeries, one of which was a fusion. As a result of the Commission’s ruling, claimant will now receive 323+ weeks of TTD and all his medical bills. Substantial additional TTD is now due along with voc rehab. From our review, there was no real defense present in the reported ruling. We have no idea why an insurance carrier would pay defense counsel to fool around with an undisputed and compensable case for ten years.

But it gets better. The “defense” focused on the fact an IME doctor said claimant’s failure to quit smoking may have contributed to the failure of his first and second surgeries. The defense argued this was an injurious practice, citing Section 16D of the Illinois Act. The Appellate Court, in its wisdom ruled smoking did not break causal relationship between his work related injury and need for further treatment; nor did it constitute injurious practice entitling employer to refuse further surgical intervention. They completely rejected the defense.

However, the Appellate majority found the employer’s examining physician stated what they felt was a compelling although failed case for a defense of injurious practice. With respect to the Court, we consider that argument blurring but the Appellate Court found the award of fees and penalties was an “abuse of discretion” and reversed them. The whole matter was returned to the Arbitrator for consideration of voc rehab and more TTD.

Our vote is to bring such a dispute to a head much sooner. Voc rehab was a virtual certainty based on these facts. Why wait five-ten years to do what you will have to do any way?

Understanding we are considered conservatives, as law professors and court observers, it is painful to agree with the dissent from the very liberal justice of the Fifth District but we truly cannot understand the reasons for reversal of penalties and fees. Take a look at the case and give us your thoughts http://www.state.il.us/court/Opinions/AppellateCourt/2009/1stDistrict/June/1081914WC.pdf

Editor’s comment: They didn’t provide any guidelines!! This is a major political football that may keep getting kicked around for years to come. We are confident this is one of the reasons Illinois is such a judicial mess or what has been called a “hellhole” in the judicial arena. It is fascinating to see nothing has been done to stop the practice. We aren’t even aware of any Illinois Bar Association committee meeting or anyone looking into the new problem. It is impossible to contemplate any judge who has accepted a significant campaign donation from a litigant wouldn’t be favorable to their donor. We assure you this is the major problem with getting a defense ruling in either Cook or Madison Counties in this state. Some members of the judiciary appear to be bought and paid for at every step of their handling of litigation.

In the 2004 Supreme Court election race between now-Illinois Supreme Court Justice Lloyd Karmeier and his opponent Gordon Maag, millions of dollars flowed into Illinois from all over the United States. Illinois set a record when over $9 million was spent on a judicial election. All of your favorite “1-800-Call-Plaintiff” class-action lawyers from New Jersey, Texas, California and elsewhere donated heavily to candidate Maag’s war chest to ostensibly seek favor with someone who might soon be providing important rulings in their behalf. In response, many businesses across the country ponied up funds. Later, when a multi-billion-dollar verdict was reviewed by the Supreme Court and reversed, criticism was raised due to the fact Justice Karmeier accepted campaign donations from tobacco companies who had the major stake in the claim. At the time, we pointed out the Supreme Court race was a crossroads of money moving on both sides. We considered it completely nonsense to claim Justice Karmeier had a conflict because he won and his opponent lost.

Now, in their ruling in Caperton, et. al. v. A.T. Massey Coal Co., Inc., the U.S. Supreme Court ruling reversed a West Virginia judge’s refusal to step aside in the case of a million-dollar campaign supporter. In the courts below, a state Supreme Court judge took $3 million in campaign contributions from a coal executive with Defendant but would not recuse himself from a case concerning the executive’s company. The nation’s highest court responded, saying judges can’t appear impartial in cases involving major donors and therefore have to recuse.

“The probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable,” wrote Justice Anthony Kennedy for the Supreme Court majority in a 5-4 ruling.

In Illinois, our campaign finance system has no limits on contributions. This flawed system of selecting judges/justices has produced record-setting fundraising well into the millions of dollars in judicial contests. The U.S. high court’s ruling in Caperton renders it impossible to determine whether we now need to establish new thresholds for impartiality. While the high court made it clear judges shouldn’t hear cases involving big-time donors, it didn’t establish an amount of campaign donations that should disqualify a judge or require recusal. We argue what is “reasonable” is in the eye of the beholder.

We also point out our system of law has no ethical requirement in this state requiring counsel for a litigant to even disclose $1 of contributions to a judge or justice, as part of court documents, discovery or pleadings. Try to imagine going into a courtroom where one’s opponent or their law firm had donated thousands of dollars to the judge. Good luck getting a fair hearing. We feel Justice Kennedy’s quote would apply—there would clearly be a “probability of actual bias.”

We want everyone to understand you can independently search for all campaign donations online at http://www.elections.state.il.us/campaigndisclosure/Welcome.aspx. As defense counsel, we always perform such a search.

Please also understand raising the issue of campaign contributions from your opponent is like spitting on a judge’s gavel—it is tantamount to calling them a crook. Good luck with that judge/justice moving forward unless you have a major claim and your client is willing to fight the issue into the reviewing courts. We assure our readers everything about this issue only benefits the Plaintiff’s bar. Everything about it for the defense industry is bad and worse but the question is—will the defense industry do anything to stop the bias present in Illinois courtrooms?

In states such as Missouri, the ruling isn’t an issue because a nonpartisan commission submits judicial nominations to the governor, who makes the final choice. We vote that system would be a much better alternative to the judicial elections in Illinois—we would get political appointees as judges/justices but they wouldn’t be bought an paid for, as Illinois does now. Our current Governor prefers judicially funded elections. We also would support that approach.

We ask all of you for your thoughts and comments.