Keefe, Campbell & Associates, LLC

Editor’s comment: The world wasn’t safe while the legislature was in session. Our “liberal” Democratic House, Senate and Governor drop lots more regulations on us. Though 2009 was dominated by a state budget crisis that continues to have multi-billion dollar deficits, and they have not really addressed ethics reform in government, lawmakers approved hundreds of other new laws for Illinois’ citizens to adapt to. Most of them take effect at the midnight on Thursday when the New Year starts. Some legislative changes will hit drivers and others directly, but others are more obscure.

Lawmakers’ bent on keeping people from texting while driving enacted a law this year and it takes hold Thursday at midnight. Drivers caught emailing, “tweeting” or texting behind the wheel can be pulled over and ticketed for the offense. Please assume if an Illinois police officer now wants to stop anyone, they will be able to claim they thought you were texting or emailing.

“Bluetooth” or hands-free devices may be much more popular in Illinois. In addition to not texting, drivers can now be ticketed for talking on the phone without a hands-free device in a school or construction zone starting Jan. 1. The best way to avoid this is to find a way to talk without putting the phone to your ear.

A separate law increases the fine of speeding in a school zone by $5 and sends the extra money to help schools. The fine for not yielding to a pedestrian in a school zone goes up $50.

Trucking companies traveling in or through Illinois will be happy to hear semi-tractor-trailer trucks will now be able to go 65 mph on rural interstates Jan. 1 because of a change in law. However, it will take time for the state to take down the signs that continue to hold truckers to 55 mph.

As part of the state’s plans to help out Illinois’ road builders and the struggling construction industry and build more roads and bridges, the cost of registering a car goes up $20 in 2010. Therefore, a new license plate sticker will cost $99 instead of $79. We have already gotten January renewal bills with the higher cost.

For you outdoorsy types, the cost of hunting and fishing will go up to in an effort to help the state’s cash-strapped outdoors programs. On Jan. 1, the cost of a fishing license goes from $12.50 to $14.50. A deer permit goes from $15 to $25 and hunting license fees rise from $7 to $12.

New laws that we didn’t truly need include naming Feb. 5 Adlai Stevenson Day in Illinois. Adlai Stevenson was Governor of Illinois in the 1950s, unsuccessfully ran for President against Ike and later served as a United Nations Ambassador. The day honoring him won’t get people off of work but official state calendars will note the day.

And last but not least, starting on Friday morning, American flags flying on public property in Illinois, such as outside government buildings, will have to be made in America. No more “Made in China” U.S. flags. A company in Rock Island, Regalia Manufacturing Co. makes American flags. You can buy an unlimited number of Illinois-made U.S. flags, banners or other “regalia” by contacting them online at http://regaliamfg.com/. U.S. flags don’t have to be replaced immediately but after the old ones wear out, new ones have to be made in the U.S.

Now, let’s hope they can make sense of that budget thing. Please send your thoughts and comments.

Editor’s comment: One concept that routinely falls through the cracks of training and handling of legal issues for all lawyers is what you need to do when you are asked by a friend, family member or acquaintance about a matter that you don’t traditionally handle. For example, if you are house counsel for a major software company and handle IT and patent issues but your cousin calls about a real estate closing that isn’t going well and asks for “informal” advice. In such settings, we feel you are going to have to do one of two things;

First, if you are not going to handle or comment on the matter in any way, tell the friend, relative or colleague you will not handle it and they should consider seeking other counsel;

In the alternative, if you are going to affirmatively discuss, comment or provide any sort of direction or advice of any kind, open a file and let them know you are doing so.

In the first instance, you may want to keep a personal record of the inquiry and your response to it. In personal injury claims, you may actually want to advise the person both of the fact you aren’t handling the matter and also advise them of the applicable statute of limitations, as appropriate.

In the second instance, you have not one but two problems to consider. The preliminary issue in “odd jobs” for the lawyer working in-house or being asked to do tasks outside those you were hired by a law firm to provide, you need to consider is what to do in relation to your employer and job. We recommend all law firms and companies that hire attorneys address the concept with a clear written policy. At a minimum, the lawyer should advise the company or firm about all legal inquiries and how they are handling them. Second, the lawyer needs to create a file available for review by your employer and manage/maintain it to avoid either malpractice or ethical problems. Please note in-house counsels can buy “odd-job” legal malpractice insurance to avoid liability if side work goes sour.

We caution the lawyers, general counsels and law firm managers who read this KC&A Update to understand, if you don’t have a policy on “odd jobs,” your lawyers will still get inquiries but potentially fly under the radar on managing the matters—you don’t want that. We truly feel you need full disclosure so you don’t have corporate or partnership liability for claims you don’t even know about. If the attorneys receive any monies or gifts or other income for such work, it should also be disclosed to the main employer, whether you seek some or all of the compensation being provided to the attorney. Again, we recommend you anticipate this potential and address it first and not at a later time.

As to maintaining legal work for “odd jobs,” our recommendation is all legal files be updated no less than once a quarter with diary dates for the next action required. Failure to do so will always cause concerns about one of the three most important sources of ethical failures—failure to maintain and update files.

Please do not hesitate to respond with your comments or thoughts or post them on our blog.

Editor’s comment: We are starting to see more and more assignments come in with a truly anomalous claims issue—claims that have been

“Held” by the adjuster for weeks, months and years prior to being sent to defense counsel;

Substantial TTD and medical bills have been paid; and

No true accident investigation has been performed with interviews conducted or forms completed;

The initial treating medical records have not been received and reviewed.

Please note Illinois is not a state that allows a great deal of pre-trial discovery in a meaningful fashion. The idea is the employer in Illinois gets to investigate what happened following the report of injury and medical records are out there for both sides to review—you don’t have to pay medical bills blindly in Illinois, the statute says you get to look at the records, coding and other documentation also.

So we all have some tools at our disposal to see if the claim is either questionable or bona fide. As we have told our clients, readers, Arbitrators/Commissioners and law students for years, the matrix every workers’ compensation hearing officer, attorney, claims handler, participant or risk manager has to review is to compare the initial report(s) of accident with the first medical history or histories to see if they “match” in a meaningful way. If the accident investigation and medical records don’t align, benefits shouldn’t be paid until the questions that arise get answered.

The problem we see across the country is claims adjusters are under the gun. They are handling lots and lots of files, many are at record-high levels to justify their jobs and pay in this demanding economy. The problem they face is it takes a little or a lot of time to get accident investigation protocols completed and medical records in their files. It is tough to match all of it up and make sense out of what they are doing on a file by file basis. Most veteran claims adjusters know the easiest way to quiet down a demanding file is to just take the initial report and just start paying benefits—by doing so, claimants and potentially their attorneys will stop calling/crabbing and sending penalty/fee petitions and making threats of one sort or the other. The problem this causes is files some times get accepted and lots of benefits paid with very minimal accident information and late or lacking medical documentation.

The problem for the defense attorney who later gets the file is multi-layered. In our experience, claims handlers don’t like to be “questioned.” They know if the defense attorney starts to ask pointed questions about the initial determination to simply start paying benefits without a minimal accident investigation; it may put the adjuster in a bad light. The defense attorney knows the claims adjuster usually handles the spigot that sends files—if you tell the adjuster the matter needs to be more fully investigated, they can go to a less aggressive attorney who won’t roil the waters, no matter how poorly the file has been initially set up. The problem for the corporate risk manager or insurance broker with a demanding account is you may be paying a lot of money on a claim when your claims staff and attorneys don’t have the very basic defense tools in the file—you aren’t sure an accident happened or if the medical care your adjuster is paying for relates to the claimed event!!

So what are the three Keefe, Campbell Claim-Acceptance Rules? We recommend the Illinois and possibly U.S. claims industry demand three simple things on every litigated claim or defense assignment. First, each file has to have some definitive accident report in it. The best of all worlds is a hand-written accident investigation report filled out by claimant in their own words and language and signed. If they can’t fill it out due to an inability to write, audiotape or videotape it. If union rules or other administrative issues block a statement from the injured worker, our first rule requires a handwritten accident investigation report completed by the supervisor to whom the event was initially reported. For insurance/risk managers and insurance brokers who watch claims handlers, you shouldn’t allow any adjuster to pay benefits without something other than a call from the account saying “claimant hurt at work.”

If the claim goes litigated early, what do you do about getting an accident investigation report filled out when claimant is represented by counsel? Tell the claimant attorney you have to have the accident investigation report and you are willing to interview their client on the phone with counsel on the line. Tell them your handling rules require it and you can’t pay benefits without a completed accident investigation report. While we don’t mean to talk for Illinois Arbitrators, we assure you most of them support the concept that an injured worker has to preliminarily cooperate with claims adjuster before you start paying lots of benefits. They will not require you to pay blindly.

Next, the claims handler has to have the initial medical treatment records; whatever they might be. As part of this process, we recommend having every injured worker sign a HIPAA-compliant medical release. After you have the signed release, if you don’t know where claimant went for care, ask them! If you know where claimant went for care, call and fax the HIPAA-compliant release and ask for the initial treating records. Please always remember the medical course starts on the date of loss—if they don’t get care for some time after the event, it is always a red flag—it doesn’t mean you can always deny the claim but it is always something to further review and consider. Please also remember to CYA—if you don’t have initial treating records and you aren’t paying benefits, write either claimant or counsel early and often to tell them where you are at in trying to get them. Make clear in all correspondence to tell them you follow the KCCA Rules and you can’t and won’t pay benefits until you have them.

Third and last, when you have an accident investigation report and the initial medical records with a clear medical history—read and compare them! It sounds simple but we get lots and lots of claims which indicate the claims or risk manager did not take these three simple steps. If the accident investigation report and initial medical history match, you can and should pay benefits. If they don’t match, you don’t and shouldn’t pay benefits. Sounds simple, doesn’t it?

We point out to everyone in the WC claims industry, if you send a file to defense and they aren’t asking these questions and confirming analysis of this matrix, they aren’t doing their job. If these three steps aren’t followed, you are almost certainly paying benefits totally in the dark—you and your defense counsel won’t be able to do most of the important claims steps such as fighting a phony accident, targeting MMI or return to work. When we audit claims files for our clients and potential clients, this is the first thing we look for—we are amazed at how many times it is missing. If it isn’t in the file early, you need to try to “rebuild” it later at usually a major disadvantage due to the passage of time. We recommend everyone look at your major litigated claim files to see if this matrix is present or let us do it for you in an audit.

If you need an accident investigation form, send a reply. If you need/want our recommended questions to interview an injured worker, send a reply. If you want a copy of our HIPAA-compliant release, send a reply. All of these documents are offered at no charge. And don’t hesitate to post your thoughts on comments on our award-winning blog.

Editor’s comment: Watch out HR and EPLI folks, the EEOC is getting lots of money from the Democrats to vex and harass you. The problem is their backlog of whining and crabbing has reached Washington and the folks-in-power want it to stop so the nation’s employment cops will be getting an extra $23 million shortly to help tackle a growing problem: backlogged cases at the U.S. Equal Employment Opportunity Commission.

The 2010 omnibus appropriations bill, passed by the U.S. House of Representatives on Dec. 10 and by the Senate on Dec. 13, would funnel those additional millions to the EEOC to help the agency get a handle on more than 70,000 unresolved discrimination complaints. The cash-strapped EEOC recently saw a 35% jump in its backlog, from 54,970 cases in 2007 to 73,951 last year. Concomitant with the worst economy in several decades, the agency also saw a record number of discrimination complaints in 2008 or 95,402 which was also a nearly 20% increase from 79,896 in 2007. Nearly two-thirds involved racial or gender discrimination.

Meanwhile, the agency has watched staffing levels shrink 25% in recent years, from 2,850 in 2001 to 2,150 in 2008. Currently, the agency is now hiring 200 new investigators.

Employment lawyers and their clients remain tired of watching EEOC cases languish for months; sometimes years. All sides feel there is no advantage in having cases sit for months and years prior to a right to sue letter being issued. So at least for now, we aren’t sounding the alarm about greater scrutiny from a beefed-up EEOC. For the most part, we assume investigators will get their work done and U.S. employers may benefit from it.

What also worries many observers is a concern the new government largesse will also give the creative minds in the agency more time to dream up new paths and strategies to torment U.S. business, such as the approach in EEOC v. Sears that we report above. We are all going to have to take a wait-and-see approach on that possibility.

We want our readers to know KC&A provides EPLI or employment law defense for our clients at hourly billing rates under $200 per hour. When we see our competitors telling you how wildly complex the practice is and demanding $400-700 per hour, we are confident to tell you that you can’t cost-effectively defend most employment law disputes at such rates. You will see the high-priced attorneys work the file up and then you will certainly settle due to the enormous cost of the battle.

Again, we appreciate your thoughts and comments.

Editor’s comment: We are chagrined to see a zealot Plaintiff law firm in Michigan filed a federal RICO case against an Illinois trucking company, an IME doctor and a TPA. Plaintiffs allege these “conspirators” committed fraud and are “racketeers” by conniving to “intentionally deny” WC benefits to six claimants. This month, the matter reached the U.S. Supreme Court that allowed the matter to return to the District Court to proceed to a jury trial. For the first time we can remember, a group of traditional workers’ compensation claims will be litigated before a federal jury. At stake will be triple damages and attorney’s fees against the employer, IME doctor and insurance carrier—you can imagine how happy they are with the prospect of such litigation going forward.

This new facet of workers’ compensation law and practice is simply stunning to the entire WC defense industry. Please understand Defendants have not lost the claim or paid a penny—the matter is simply going to proceed to hearing before a jury. What is stunning about the ruling is the clear statutory mandate in the laws of almost every state in the union which provides the measure of compensation is to be ascertained as a result of state-run administrative hearings only. Workers’ comp benefits in Michigan and almost every state are statutory only—you don’t have common law or federal rights to sue to recover such benefits. Well, thanks to this weird and unprecedented ruling, now lots of workers’ comp issues may be determined in the federal courts.

We again point out to the Plaintiff/Petitioner bar we feel such litigation is an overt attack on the system of litigation in work comp benefits. We truly feel highly publicized cases such as this point away from a litigation system because claimant attorneys never seem to want to just win cases, they apparently want to destroy anyone in their path who doesn’t immediately and totally agree with their every demand or wish. We truly feel systemic attacks on otherwise routine and innocuous claims handling actions may point U.S. business away from continuing to use traditional workers’ comp litigation as a bona fide means to resolve work injury disputes because once Plaintiff lawyers become involved, they now can’t seem to stay within the state systems they already dominate—now they have to go federal and seek triple damages and their fees and costs. Our quiet vote for the Plaintiff lawyers bringing this case and those who counsel with them is be very careful what you wish for; we suggest you stand down from the potentially explosive federal battle and just win the respective WC cases if you can and get what you get before the Michigan WC board.

As it would appears the federal courts are making up the law in the work comp arena as they go along, we will have to await direction and guidance on any number of new and strange legal standards such as:

What is the level of assistance and cooperation between IME doctor, the insurance carrier/TPA and the employer which may cause the right to bring a RICO action?

Will rights under the RICO statute lie if these parties supposedly cooperate in two cases? Three cases?

How can a licensed and possibly board-certified IME doctor ever deny a claim or dispute surgery and not be at least arguably called a “fraud.”

Do the rights to bring the federal action depend on the kind of questioning, support and responses being provided between the IME doctor and the workers comp carrier or TPA?”

What we feel is most disgusting about this ruling is what we call “character assassination” of defense IME doctors. We feel the plaintiff bar and many Arbitrators and hearing officers across the United States love to vilify and castigate defense IME providers who may otherwise be amazing surgeons, caregivers and medical researchers and/or professors. What drives us nuts is some hearing officers and many Plaintiff lawyers don’t see the cases where the defense IME physician accepts causal connection and/or finds surgery or other treatment necessary. Those cases don’t result in retention of counsel or, if they do, the insurance carrier/TPA may not let the dispute reach litigation and consideration by a hearing officer.

So we always laugh when we hear an Arbitrator say “Dr. Jones—oh, every time I see one of his reports, he denies claimant’s case.” Well, duh, if he didn’t deny the case, you wouldn’t see it. We are told there are many Illinois Arbitrators who immediately “disqualify” even the best IME doctors from valid consideration in a pretrial or trial and openly announce to both sides their perspective. We truly feel such Arbitrators should disqualify themselves from hearing cases where such physicians are involved because they cannot possibly be fair and impartial. And on the contrary, we have never seen an Illinois Arbitrator similarly toss out of consideration the opinions and recommendations of some of the worst treating doctors or surgeons in the state—they never view treaters with the same derogation reserved solely for the defense IME doctor.

So you tell us the difference between “fraud” and a doctor’s honest belief in his or her medical assessment which is offered for consideration by all sides within a reasonable degree of medical and surgical certainty. Please remember doctors don’t “state facts,” they are medical experts and scientists. If a doctor can truthfully testify that it is his/her medical opinion to deny a claim or return someone to work, please tell us how it can be intentionally dishonest? It is an opinion and in a free country, everyone is entitled to their opinion. The Plaintiff lawyer and even the hearing officer doesn’t have to like or accept their opinion—that is why they are involved in the case! And most important, there are workers’ compensation commissions and boards across the country whose job it is to cull out the good opinions from the less reliable ones—we hate to see this decision now being left to folks on a federal jury who know absolutely nothing about trying and fighting the fight both sides routinely wage in heretofore administrative workers’ comp litigation.

So where does this new and weird twist in WC law and practice evolve from here? Well, if it is sauce for the goose, it should be sauce for the gander. How about the defense industry considering RICO actions against:

Doctors who hook up with Plaintiff lawyers to “exchange” or cross-refer each other patients and/or clients and regularly create questionable WC claims?

Surgeons who are pals and cross-refer numerous patients to each other and always agree with their buddies’ surgical recommendation?

The many “clinics” that obviously and wildly overbill in all of their WC claims? Couldn’t a federal jury find routine and regular medical overbilling to be “fraud?”

Hospitals that wildly overbill for “implants” to intentionally take advantage of gaps in the medical fee schedule? Wouldn’t it appear to be fraud to bill over $150K for a surgical implant in a WC surgery when they bill a fraction of that same cost for surgeries conducted in the group health setting?

We appreciate your thoughts and comments. Please do not hesitate to post them on our blog, for details, see below.

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.