Keefe, Campbell & Associates, LLC

Editor’s comment: We have been asked the question so many times; we felt a full review was necessary. Trust us the issue cuts in a number of directions for risk managers, brokers, claims handlers and attorneys on both sides. This is another area, like release/resignations, where workers’ compensation claims practice will start to cut into employment law issues—WC claims handlers are not going to be able to take the “ostrich approach” and stick their heads in the sand and ignore the EPLI (or employment practices) ramifications of their decisions. If further training is needed, send a reply.

The Illinois standard—Mechanical Devices = MMI to get injured folks off TTD

First and foremost, the Illinois standard on getting workers off TTD and back to work comes from the ruling of our Appellate Court, Workers’ Compensation Division in the oddly named case of Mechanical Devices v. IWCC. In Mechanical Devices, the Court focused on maximum medical improvement or MMI as the basis to get someone back to work and off your dole. Like a lot of other stuff in Illinois workers’ compensation law and practice, the concept of using MMI as the basis for returning folks to work is not contained in the legislation or rules. There is no legislative history for the Act or Rules so the reviewing courts didn’t get it there. It was basically created by the courts and we will all have to struggle with defining it.

You may note some doctors, hospitals and other caregivers will affirmatively find a claimant to be MMI and some doctors simply won’t. The over-billers in the work comp medical field will almost never use the concept because they will keep providing care and “treatment” so long as folks keep coming back for whatever treatment protocol can be implemented. Whatever you do, you can’t force a doctor to provide an MMI finding—they either will or they won’t. Many doctors and similar caregivers are trained to put in their medical charts “return PRN” at the end of care—the term ‘PRN’ means return “per required need” or is a way of leaving it up to the patient to decide on whether they have a defined medical need.

Either way, MMI is a very liberal standard to use on when to get folks back to work. We don’t feel you should regularly use it; you just have to be aware that when push comes to shove, that is how the Commission and reviewing courts may analyze your actions and claims decisions. The reason we feel it is so liberal is the vast majority of workers will return to light or full work long before they are fully recovered and no longer need care. As you may note below, the federal government is affirmatively requiring U.S. employers to bring workers back to work prior to their reaching maximum medical improvement—they just aren’t providing guidance as to when and how you have to do so. We truly feel getting someone back to work definitively assists them in recovery and brings the medical course to close quicker.

What do you do when injured works want to come back to work faster and want light work accommodation—accommodate!

The second or “inverse” of the situation in which you are trying to “force” the worker to take light or full work by cutting off benefits is what do you do when the injured worker demands it? In the recent settlement in EEOC v. Sears, a class of workers from Sears all affirmatively requested light work or accommodation and were refused or simply put off by Sears. When it was all said and done, the workers didn’t get back to light or full work and were eventually terminated for being off work too long.

The workers seeking “accommodation” or light work all filed EEOC charges. They were later represented by the EEOC. The EEOC took the stance ADA mandates light work or job accommodation for injured workers in the WC setting. Rather than fight and possibly pay both sides attorney’s fees, Sears settled the dispute for over $6 million dollars.

This sets up the legal scenario mandating light work or job modification where possible to facilitate return to work “with reasonable accommodation” whenever and wherever possible.

The problem with unions in all this mess—are they above the law, specifically ADA?

We were recently asked by a client what to do when a union advised their injured members had to be healthy enough to return to “bargaining unit work” or they had to be kept on work comp benefits. The problem we have with the collective bargaining agreement model presented is defining what is “bargaining unit work” and whether such work may ever be modified.

There is no direction from the EEOC on the subject that we are aware of. The ADA says everyone, including the unions have to reasonably accommodate injured workers. We feel some unions try to get out of ADA by saying you, as the employer, aren’t technically “able” to reasonably accommodate injured workers to allow them to perform “bargaining unit work” with accommodation. We feel that position runs directly counter to the intent and purpose of ADA which defines needed job changes to be required when “reasonable accommodation” will allow an over-the-road truck driver or rough carpenter or journeyman electrician do essential job functions with some modifications.

So for example, if you have

• A truck driver who ‘has’ to lift 75lbs to do his/her “bargaining unit work” and
• You are confident your staff can modify the vehicle and job to allow him/her to return to work with essential job functions and the same pay at a 50lb limit;

We think you and his unions have to cooperate to allow him to work with modification under the ADA. Many unions say no, you can’t do that and “bargaining unit work” can’t be modified so as to accommodate an injured worker in any way. Therefore, we feel it is their position the worker has to be left on WC to the strong detriment of employers and to the wild benefit of the injured worker who may now receive thousands or possibly millions in WC benefits in IL. It is our opinion labor unions want that outcome and do everything they can to make it happen.

We feel that approach directly violates what ADA demands. We feel Sears got walloped by the EEOC for not being willing to change their job description for an auto mechanic to accommodate similarly injured workers—the cost to Sears was over $6M. We don’t know why that same legal theory wouldn’t apply to the unions and employers in all U.S. industries.

Some day, someone is going to get better direction on whether this approach complies with or violates ADA. However, due to the cost and uncertainty of such litigation, my vote is not to let your organization pay for the test case on the topic.

Can I cut them off TTD in reliance on my defense IME?—not so fast, not so fast!!!

Finally, you need to know about Grabs, et. als. v. Safeway, Inc. and Dominick’s Finer Foods, LLC. In their ruling, the Illinois Appellate Court addressed a certified question on an interlocutory appeal on this narrow issue of alleged retaliatory discharge. Plaintiffs filed a joint complaint alleging Defendant terminated them in retaliation for filing workers’ compensation claims. Defendant responded to assert 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. A battle over the IME and ability of the employer to rely on the IME to terminate the workers went back and forth.

The Appellate Court found it wasn’t per se retaliation to fire someone in reliance on an IME but the lawsuit was allowed to stand and was returned to the Circuit Court for hearing. The Appellate Court felt the employer had to first go to the Commission to get a ruling about the efficacy of the IME.

Therefore, our advice is not to fire a workers’ compensation claimant in reliance only on a defense ME. Put the reluctant worker on either leave of absence or inactive status—issue COBRA notices, etc.

All of this requires close coordination with defense counsel. We are happy to assist in close calls—just send an email or call one of the nice attorneys at their numbers below. We appreciate your thoughts and comments, please reply or post them on our award-winning blog. For details, read below.

Editor’s comment: A few weeks ago we sent a Freedom of Information Act request to the IWCC requesting production of their Arbitrator performance statistics for the last couple of years. We are happy to confirm they answered the request in a timely and professional fashion. While it might seem trivial to a casual reader, we assure our readers this may be the first time in Illinois history such information has been widely and openly published. We applaud the current administration for opening up their inner operations to review by the taxpayers and larger public.

The resulting statistics were was quite interesting. Some time in the last couple of months, some of the opinions we printed about the job requirements of Arbitration staff at the IWCC were felt by some to be a bit controversial. Please accept the following as a brief summary of what those statistics showed.

We will not provide individual Arbitrator statistics, just the highs, lows and averages in some of the more enlightening categories. Several categories of information we received will not be reprinted.

2007 All Illinois Arbitrators

Category                                  Highest Amount           Lowest Amount           Average

Number of Settlements               2,589                            1,146                            1,573

# of Awards                               240                               38                                 110

# of Dismissals                          278                               89                                 205

# of days to issue an award        163                               15                                 49

% of late awards                        88%                              0%                               28%

% of cases appealed                  70%                              25%                              49%

% of appeals affirmed                 100%                            29%                              68%

% of appeals reversed                16%                              0%                               7%

% of appeals modified up            30%                              0%                               14%

% of appeals modified down        43%                              0%                               10%

2008 Chicago Arbitrators only

Category                                  Highest Amount            Lowest Amount           Average

Number of Settlements               1586                             1074                             1267

# of Awards                               107                               68                                 89

# of days to issue an award        72                                 13                                 46

% of late awards                        78%                              0%                               27%

% of cases appealed                  62%                              39%                              49%

% of appeals affirmed                 82%                              48%                              62%

% of appeals reversed                19%                              0%                               7%

% of appeals modified up            26%                              4%                               17%

% of appeals modified down        26%                              0%                               13%

2008 Downstate Arbitrators only

Category                                  Highest Amount         Lowest Amount            Average

# of Settlements                        2,272                            988                               1,715

# of Awards                               268                               52                                 128

# of days to issue an award        93                                 16                                 39

% of late awards                        77%                              0%                               18%

% of cases appealed                  66%                              28%                              50%

% of appeals affirmed                 90%                              41%                              67%

% of appeals reversed                20%                              0%                               8%

% of appeals modified up            24%                              0%                               11%

% of appeals modified down        25%                              3%                               14%

Extrapolating this information, we get some interesting thoughts. For one, the category of “dismissals” is not present in the 2008 statistics, nor are they counted amongst the “total actions” category. We have no idea why they would cease to be counted, as numerous cases are DWP’d every year, with an average of 205 per Arbitrator in 2007.

In 2007 and again in 2008, the Arbitrator that issued the most decisions issued well over twice as much as the average, while the Arbitrator issuing the least decisions had less than 40% of the average. The Arbitrator with the highest number of decisions was hearing and issuing more than 20 rulings each month; the Arbitrator issuing the least number of rulings was barely averaging 3 hearings each month! We also note in both years there were a significant amount of Arbitrators who were timely issuing their awards, within one to two months, with only a couple higher numbers in each year bringing up the average time to issue an award.

We note the change in breaking apart the statistics in 2008 into Chicago and Downstate indicated our Downstate Arbitrators appear to have their hands full in comparison to their Chicago counterparts, averaging 30 more trials and 450 more settlements per year.

In each year, an average of half of the cases tried were appealed. From a defense perspective, probably the most interesting fact this information presents is that it is more worthwhile you might have suspected to appeal awards. Over the course of the last two years, almost a fifth of all awards appealed were reversed or modified down.

As we have done in years past, we are seeking your vote for the three best and most effective Arbitrators in the state. We truly feel there are a number of truly devoted, hard-working and underpaid Arbitrators and they deserve kudos for their efforts. Please send us your nominees with as much specificity as possible.

If you have any thoughts or comments, we look forward to hearing them. Feel free to respond to ekeefe@keefe-law.com or post them later today on the blog at www.keefe-law.com/blog.

Editor’s comment: We recently read the jobs pitch from the Illinois State Chamber of Commerce in their emails and on their website. Their focus is to support for the U.S. Chamber of Commerce’s Campaign for Free Enterprise. This new national effort, called American Free Enterprise. Dream Big is a comprehensive, multiyear campaign to raise awareness among all Americans about the essential role that free enterprise plays in the success of our country. The announcement comes on the heels of the U.S. Labor Department’s announcement of unemployment exceeding 10%, a number that hasn’t been reached in over two and one-half decades. State Chamber president Doug Whitley and his team are trying to get Illinois to create 670,000 new jobs in Illinois in the next ten years. We continue to support the State Chamber and urge all of our readers to consider joining the organization that is most effective at pointing the way toward improving the climate and culture for Illinois business.

However, despite their strident efforts, we will be amazed to see new jobs come to our fair state in its present configuration. There are a number of reasons but the most glaring is Illinois is the epicenter of truly bad government. The Democratic Party that is now in control at every level appears to be trying to shoot themselves in the foot in the worst possible way. As you read this, the Chicago Sun-Times points out Mayor Richard M. Daley in Chicago is spending at least $300 million each year more than he collects in taxes—he has already sold the Chicago Skyway and the city’s parking meter income for the next 75 years to make up the difference and is looking for more assets to fire-sell. Cook County Board Chairman Todd Stroger is fighting like a wet cat to keep sales taxes for his taxpayers the highest in the country (and possibly the highest retail sales tax on the globe) and despite the painful tax bite, he is still running his government at a deficit.

Now we learn our Governor is secretly letting convicted bad guys out of prison because he is out of money and someone thinks letting crooks and felons out early is a good method to cut costs! Please understand we feel Governor Quinn is a generally honest man and has lived his life as a political reformer. We truly feel his efforts to reform Illinois politics are being hamstrung by other Democrats who will not allow him to either cut spending or raise taxes. The “borrow-spenders” in the state Democratic party feel we won’t notice a budget deficit that will be well over $10 billion dollars annually. When you consider the whole state budget is about $50-60 billion, a deficit of that size is staggering.

Guess what—every one of those government bodies have hilariously poorly run workers’ comp programs. They won’t provide workers light duty which maximizes lost time and encourages over-treating. They won’t look for vendors who are honest and will fight to save them money—WC vendors are still selected the old-fashioned way; you have to donate heavily to the right politician’s war chest to get in. These governments won’t use WC surveillance to catch malingerers—they are worried they will catch someone’s brother’s-cousin’s-uncle’s-kid and cause embarrassment. Their WC litigation levels are off the chart—the State of Illinois has over 400 total and permanent disability claimants who are collecting over $7 million a year in WC benefits. If these workers are also eligible for a state pension, there is no offset for the WC benefits; they get both and receive a lot more money on the dole than they ever made working!

Finally, we always laugh to hear this state’s WC administration is penalized regularly and routinely by this state’s Workers’ Compensation Commission!!!! Wouldn’t you think the administrators in this state would fold these two groups together so they stop the silly and embarrassing practice of having one hand slapping the other to the wild benefit of state workers and their selected lawyers?? Not so fast, not so fast, that would make way too much sense! Welcome to Illinois, folks.

Yesterday, the Chicago Sun-Times and the Associated Press reported repeat drunk drivers, drug users and felons convicted of battery and weapons violations are serving less than three weeks’ total time behind bars under a secret change in policy by Illinois Gov. Pat Quinn’s prison system. They have analyzed records which show that since September more than 850 inmates have been released weeks and months earlier than they ordinarily would be. The Corrections Department is “saving money” by abandoning a policy that requires inmates to serve at least 61 days and awarding them discretionary good-conduct credit immediately upon entering prison. Following this policy, some prisoners have enough good-conduct days to qualify for release almost immediately or even before they’ve had a chance to demonstrate any conduct at all, good or bad. The inmates are kept at the Department’s prison processing centers and released after as few as 11 days. One of our readers indicated the fur will start to fly when one of these quick-releases kills someone while they should have been incarcerated.

The problem is finding viable alternatives and we are looking to the Republicans for someone who can figure out government has to live within its means, just like your household or ours. Our readers should know the statewide primary is in the first week of February 2010 or about six weeks away! At risk is just about every major job at most levels of government. We also want everyone to know a majority of the members of the Illinois Supreme Court will be running in the fall elections—it is possible Illinois voters could bring in new justices to our highest court who would not be quite so strongly concerned for the interests and generous donations of the Illinois Trial Lawyers Association who aggressively represent the very strong Plaintiff bar in this state.

One other timeline to watch is the trial of our former Governor that is currently set to start on June 3, 2010. We are advised he will not cop a plea and will risk the rest of his adult life on the chance a jury might vindicate him. Therefore, we will have to watch and wait to see if this potentially lengthy and “untidy” trial will show the inner workings of a state that so badly needs reform at every level. We are hoping the next Governor, Cook County Board President and some day, the Mayor of Chicago might actually be solid administrators who can live within our means and run their governments to encourage job growth.

Please do not hesitate to forward your thoughts and comments. Feel free to post them on our award-winning blog at www.keefe-law.com/blog.

Editor’s comment: While looking up other things, we note a recent poll found the inflation rate for workers’ compensation drug costs, which had been slowing, has now increased 7.5 percent, driven upward by overuse of medication. Madison, Connecticut-based Health Strategy Associates’ (HSA) announced their findings after their Sixth Annual Survey of Prescription Drug Management in Workers’ Compensation. The firm said the increase follows five years of lower drug costs documented in previous surveys.

We also recently heard any number of claimant attorneys at the Illinois Workers Compensation Commission extolling how awful utilization review was because of their feeling such issues should be handled by the Commission. We want to advise them and anyone else who is listening, the Commission cannot possibly undertake to actually provide UR in an effective way. We feel it is almost an apples to oranges comparison. There are a number of reasons but here are just a few:

· The Arbitrators and Commissioners are lawyers and not doctors! We are unaware of any administrator with formal medical training;

· Most workers’ compensation claims aren’t litigated—the vast majority of utilization review implementation would be on non-litigated claims;

· UR has to occur on-demand when crucial medical care is needed; in contrast, it takes months or years to get a claim heard at the Commission.

Going back to rising drug costs, workers’ comp payers said the primary cost driver was over-utilization, citing such specific issues as the overuse of pain medications and physician prescribing patterns. To combat inflation, payers are increasing investments in analytics and moving towards step therapy and stronger clinical management of pharmacy. Concerns cited were per-unit cost increases, the predominance of single-source brands and the rebranding of the pain medication Oxycontin.

HSA said some poll respondents saw significant decreases in WC drug costs with four participants reporting drops of nine percent or more from their 2007 costs. Unlike previous years, drug cost inflation trended lower at smaller payers than their larger competitors.

For the fourth consecutive year, the survey was sponsored by Cypress Care, a national workers’ compensation pharmacy benefits manager, and its successor organization, Healthcare Solutions, Inc. Decision makers and operations staff from eighteen WC insurance carriers and third party administrators participated. Respondents’ 2008 drug expenses ranged from $1.2 million each to $148 million; Respondents’ cumulative drug spending totaled $810 million, 19.3 percent of the total workers’ comp drug spend.

A copy of the survey results will be available online after Jan. 15 at info@healthstrategyassoc.com. Please don’t hesitate to send your thoughts and comments.

Editor’s comment: We were asked how Illinois generally handles “mental injuries” and provide this simple review. In the landmark ruling in Pathfinder v. Industrial Commission, the female claimant making the claim wasn’t touched or contacted in any way. However, she trained a co-worker and worked next to her during the regular shift. She was stunned to see her co-worker suffer traumatic amputation of both hands. Claimant actually recovered the hands to try to assist in having them reattached.

As one might imagine, claimant had immediate and severe psych problems and difficulty with work and daily life. She needed physical and mental treatment for a time after this awful occurrence. For reasons we will never agree with, the defense attorney fought the case all the way to the Supreme Court. As one might imagine, the members of the Court were not concerned about the lack of physical touching. In what we feel was an enlightened ruling, the Court found this shocking and stunning event to be an “accidental injury” under the Act and awarded full benefits.

The Pathfinder ruling has always been called a “physical-mental” claim because something physical happened that is easy to prove which caused the expected mental problems, even though there was no “touching” of claimant. Such claims are compensable and will remain so. The standard is “sudden, shocking” event which causes psychiatric or medical issues.

Illinois remains slightly conservative in the area of psychological work injury. We have generally avoided “mental-mental” claims where a psych problem comes on from a supervisor or other worker

• Being mean or difficult to a worker;
• Being demanding, seeking long hours or some sort of “high-stress” in the work environment.

We have always called such actions “California-stress” claims because the folks on the Left Coast used to award money to workers who made claims arising from a supposed challenging work environment without any sudden, shocking event. California legislators and administrators tried to rein the concept in to require proof the work was at least 50% of their problems and stress. We have no idea how one splits mental illness in half but we are told the rule did work to limit such claims.

As we are able to report Illinois continues to avoid “California-stress” claims, we have always felt Illinois’ claimant lawyers, who are demanding of their staffs and live in their self-made world of high-stress don’t want their entire support group to quit and file such claims. They probably know they would be inundated with such claims from everyone who worked for them and learned the ropes on what to say and claim.

And if Illinois ever went to a “mental-mental” standard for psych claims in the work comp arena, we don’t think Illinois would have one job in the whole state in about five years because every non-governmental employer would move even faster. And all governments would be swamped with whining claimants and forced to raise taxes to the point you couldn’t live here any way.

Editor’s comment: We saw an excellent article in the Daily Herald we want to share with our Illinois readers. If you take a look at it on the web, you will note it has a nice picture of former IWCC Commissioner David Akemann who is running as a judicial candidate in Kane County.

The article points out there are three Kane County judicial candidates in the Feb. 2, 2010 primary who say they’re limiting or refusing campaign contributions from other attorneys to avoid the appearance of bias in the courtroom, if they win. The rest of their competitors say the move is a publicity stunt, and is reflective of the candidates’ insecurities about making impartial decisions.

The debate ensued after Republican David Akemann and Democrat John Dalton issued news releases pledging to forego attorney donations out of ethical concerns. At issue is whether a campaign contribution could present a conflict of interest or the appearance of one at least if the donor-attorney later argues a case in front of the candidate.

We are telling everyone who will listen we consider impossible for someone to take a campaign donation of $1,000 to $100,000 from a law firm and then be unbiased if the lawyers from that firm later appear before the candidate. We will always remember the debate that raged in the Illinois Supreme Court election between Gordon Maag and Lloyd Karmeier with literally millions coming into Illinois from outside the state. When Justice Karmeier won, he later appeared at oral argument and participated on a majority that tossed out a multi-billion dollar ruling on behalf of the tobacco companies. His participation stoked criticism from the Illinois Trial Lawyers Ass’n until someone pointed out Justice Karmeier’s opponent also took literally millions from the Plaintiff bar.

We would point everyone to comedian Robin Williams current comedy special on HBO—he suggests judges and politicians be decked out like NASCAR drivers with the names of their sponsors on their robes, jackets, shoes and outerwear. If they did so, it might make it easier to understand their decision-making processes.

The problem we have with the judicial candidates in Kane and Will and DuPage and Grundy and every other Illinois county who sanctimoniously contend they are certain to be unbiased is to have them ask attorneys from other parts of the state how they feel when they wander into a courtroom with a local veteran attorney who not only knows the judge but actively contributed to his/her campaigns. Under Illinois’ current ethical canons, the existence or amount of the campaign contribution to a judicial candidate does not have to be disclosed at all.

There is one other factor we want all of you to understand. Defense attorneys aren’t on a level playing field in making campaign donations to judges and justices. We sporadically appear before numerous judges in lots of venues. There is and will always be an imbalance when you compare that sort of legal practice with a Plaintiff attorney who lives and practices law in a smaller county with a few judges. It is much, much easier for such an attorney to wisely sprinkle the local infield during each election with cash to insure the judges and justices remember him/her when they walk into a courtroom. It isn’t unethical, yet. But we are starting to see the more enlightened members of the bar notice it is truly tantamount to legal “bribery” because if the judicial candidate doesn’t use the money, he/she can pay the taxes and keep it.

We appreciate your thoughts and comments. We also hope the local WC community in Kane County steps up to support our WC alumnus in David Akemann.

Editor’s comment: Hang on to your hats, readers. We feel a novice or outsider looking at the Illinois system of WC jurisprudence might consider some of what is done in this state to be unusual, to say the very least. We always find the rules to be fascinating and challenging for judges, lawyers, the parties and the public to truly understand and comprehend. Illinois Supreme Court Rule 23 allows our Illinois Appellate Court, at its sole discretion, to “non-publish” its orders disposing of cases. We have always been captivated to see how this Rule is employed by our higher court. “Non-publication” means the court’s ruling is not released for public consumption and is generally non-precedential. The parties alone are typically given a copy of the order and the case some times moves up to the Supreme Court or some times back to the Circuit Court or the litigation simply ends.

We note Rule 23 orders are issued in Illinois workers’ compensation rulings at least as much or perhaps even more than regular rulings. Your editor has handled several dozen Appellate Court cases before the five-member Workers’ Compensation Division of the Appellate Court—if you do the research, very, very few are actually published and out there for review. The vast majority of these carefully drafted rulings, some of them involving extraordinarily complex and intricate legal decisions, all remain “non-published” and are effectively kept secret from the public eye.

As you can tell from the tone of this Update, we prefer all legal and political rulings and decisions to always be made public. Good, bad, happy or sad, the public votes and pays the taxes that fund the courts and have a right to know what is going on and debate it in this free society. We particularly feel appellate court rulings with wild and mild impact should be out there for review and open for debate and comment from you and John Q. Public. We don’t like anything in the legal sphere to be intentionally or routinely kept from the public eye.

So, please understand our view is the “plain English” meaning of “non-publication” would indicate the members of the Court are affirmatively ruling the order isn’t to ever be published or generally disseminated. Not so fast, not so fast!! We always wonder why the Illinois Appellate Court would spend all the time and effort in carefully and thoroughly reviewing the facts and law and creating a serious dissertation on a specific matter and then “non-publish” it. Particularly in this day and age of super-fast communication and the worldwide web, one would think it is simple matter to publish even the simplest opinions. Every ruling of the august members of this Court is clean, clear and generally excellent—why hide them under a bushel basket? We assure all of you there are numerous legal services waiting to grab their orders and put them out there first.

What is even stranger is some of the “non-published” opinions are then occasionally leaked out and published!!! The editor of the quarterly Illinois State Bar Ass’n newsletter is a very solid and knowledgeable academician with whom we have debated this issue for some time. He feels there is nothing wrong with publishing or otherwise reporting “non-published” opinions of interest to the State Bar membership. The problem we have with that approach is John Q. Public and the business side of the WC industry can’t be ISBA members if they want to be—you have to be a lawyer to join. His newsletter is always well-thought out and contains excellent content that would be important for many of you to read. So, we guess it is up to us to re-publish his publication of the important non-published rulings for the greater good of everyone!

Accordingly, in the case of Carper v. CMT Enterprises, as affirmed in a Rule 23 decision by the Appellate Court of Illinois, Workers’ Compensation Commission Division, the Arbitrator awarded Petitioner, in an ex parte hearing, 21 2/7 weeks of temporary total disability benefits, $55,268.52 in medical expenses, Section 16 attorney fees in the amount of $12,302.47, Section 19(l) penalties in the amount of $1,490 and 19(k) penalties in the amount of $30,756.17. The Commission on review modified the order of the Arbitrator taking away the penalties/fees. It appears claimant’s counsel didn’t file a proper petition for them.

The critical concern you will see in this ruling is the problem with Illinois employers and adjusters hanging onto defense files until the last minute and beyond. We always caution adjusters, employers and claims managers to understand you make a massive mistake to hang onto a file until either just before or just after a hearing. While we trust many of our brethren on the other side, you also are taking a chance to rely on some members of the claimant bar. We actually had an adjuster hold a file until a deposition of claimant’s expert was taken on an ex parte basis pursuant to dedimus and then sent it to us for handling. It was technically impossible to then cross-examine the other side’s expert. When you do that, there isn’t much even the best defense lawyer can do to get a solid outcome.

When the adjuster holds the file after the litigation starts and motions are noticed and filed, the claim file may then be sent to the defense counsel. At that point, the defense attorney is then given the unhappy task of trying to straighten things out or reverse things in mid-stream. In the Carper case we cite above, Petitioner was injured and unquestionably gave notice to the employer and sought treatment in an emergency room. He was diagnosed as having fractures of the hand. He underwent surgery and was later scheduled for more surgery but it was cancelled due to non-authorization from the workers’ compensation carrier. Now, every veteran adjuster should know, at that point, you have a fight on your hands and truly need defense counsel.

Petitioner later developed an infection and osteomyelitis requiring further surgeries and treatment. He sought competent, veteran legal counsel who simultaneously filed an Application for Adjustment of Claim and a 19(b) petition. The claim was set on a notice of hearing and the Arbitrator assigned a trial date. Petitioner’s attorney notified the employer of the trial date—please note, under the Rules, the claimant attorney doesn’t have to send notice to the adjuster or insurance carrier/TPA; it only has to be sent to your account. No one appeared.

On the hearing date, Petitioner’s attorney asked the Arbitrator to enter an order specifically setting the matter for a second trial setting about one month later. The order was specific and noted, “Petitioner filed a petition for immediate hearing with the Application for Adjustment of Claim. The Commission issued notice…for the status call. Petitioner appeared and a trial date was set. Respondent [or its counsel] failed to appear. This matter is now set for [a second trial date]. No further continuances will be allowed. Respondent’s failure to appear for trial will result in a trial ex parte.” On the second setting of the hearing, the employer’s president and owner appeared before the Arbitrator, acknowledged he received a copy of the order setting the matter and he forwarded a copy of the order to his insurance carrier/TPA who acknowledged receipt. The respondent/owner declined to participate in the proceedings and left the hearing room before the hearing. Thereafter, the matter proceeded ex parte. After a hearing on the merits of the case the adjuster apparently sent his file to a defense attorney. The defense attorney then sought to set aside the evidence by filing a motion to strike the evidence presented during the hearing on the grounds of defective notice. The Arbitrator denied that motion and entered his decision as stated above. As we indicate, the matter went all the way to the Appellate Court who entered a very clear and well-researched ruling that we hate to say we have to agree with.

The message from this article is three-fold:

1. Don’t hang onto unquestionably disputed defense files to save a dollar or two—the cost can be perilously high if you get whacked as the result of an ex parte hearing. If you know you are in a fight, get someone to fight for you and protect you at the hearings. Illinois workers’ compensation claims are becoming increasingly expensive and rapidly moving into the six and seven-figure ranges.
2. Keefe, Campbell & Associates’ attorneys know we are sometimes like firefighters. If you need assistance at the last minute, send us an email or call the numbers at the bottom of these Updates. We have attorneys across the state who handle every status call in Illinois, every month. We are used to trying to catch up rapidly but please give us a fighting chance—the more time for preparation you can provide the better but, if things fall through the cracks, send us an email with the file, give us a shout and we will do our fighting best.
3. If this excellent and well-reasoned ruling was important enough for the Illinois State Bar Association to learn about it, it should be important enough for everyone in the industry to read. As court observers, we again ask the great and storied members of our Appellate Court, Workers’ Compensation Division to put simple, moderate and critically important rulings out there for everyone to read.

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