What happened at the Workers’ Compensation Commission last week was the same sort of secret, clandestine and under-the-cover shenanigans we have grown so used to from past administrations. We knew Paul Rink; he was a former Commissioner who appeared to have been gently nudged out several months ago. We have been awaiting his successor and now he has been appointed. You may all note the vacancy was not filled with a publicized national or even state-wide search for the best possible candidate—we don’t do things that way in this poorly-run state. Everything is closely guarded, like it is a nuclear secret and if the news gets out about what they do filling a state job, the sky might fall.

Last week, Governor Pat Quinn appointed Daniel R. Donohoo as a Commissioner. You may note the Commissioners sit as administrative appeal officers—there are nine of them. While they haven’t completely figured it out just yet, Commissioner Donohoo may fill the “public” member seat on Panel B and be the swing vote between the labor Commissioner, Barbara Sherman and the employer representative, Kevin Lamborn. Please note they may scramble the three panels but they will be certain to insure two members vote for labor and the management member gets to file lots of dissents.

The Commission has advised new Commissioner Donohoo holds a B.S. degree in Business Administration from Southern Illinois University and a J.D. degree from Thomas M. Cooley Law School. He served as the Madison County Recorder of Deeds for 21 years and operated his own accounting firm for 17 years.

We want everyone to note we don’t know and have never met Commissioner Donohoo. He may turn out to be the best administrative appeal officer in Illinois history. To our knowledge, he isn’t going to fill the bill on what some folks feel would represent “diversity.” From our research, we assure our readers he

· Doesn’t have any formal workers’ comp training;

· Doesn’t have a workers’ compensation litigation background;

· Isn’t an associate or partner at a workers’ comp petitioner or defense firm and

· Has never, ever handled a litigated workers’ compensation claim that we can find on the web or elsewhere.

Our research indicates new Commissioner Donohoo graduated from Thomas M. Cooley Law School in Michigan exactly two years ago today on May 17, 2008. We are fairly confident they don’t have a class or even a seminar on Illinois workers’ compensation law and practice in Lansing, MI. The Illinois Attorney Registration and Disciplinary Commission’s website indicates he was licensed to practice law in Illinois November 6, 2008. That is about eighteen months ago, so while he may be a veteran deed-recorder and accountant, he is a complete newbie as a work comp lawyer.

We ask all of our readers, why would they hire someone with absolutely no WC experience to a top-level state job? Whose brother’s-cousin’s-uncle do you have to know to get the nod on that sort of work?

Well from the outside, looking in, we assume Mr. Donohoo is part of the Madison County Insiders—he was the Madison County Recorder of Deeds for more than two decades. He is probably already eligible for a state/county pension when he reaches the right age. If you aren’t aware of it, Madison County is a small, mostly rural county in southern Illinois across the Mighty Mississippi River from St. Louis. Madison County has been repeatedly designated as a “judicial hellhole” for their approach to litigation that comes to this tiny county from all over the United States. Every month for years on end, little Madison County, IL with a population of about 140,000 has a monthly asbestos trial call of about 400 pages—if all those claims were to be tried in a given year, most adults in that county would be on indefinite jury duty. If you ever get to visit the county seat of Edwardsville, you may see what has to be the biggest rural county courthouse in the history of our planet—the place was fully funded with about $90 millions dollars derived from the interest on an appellate bond in the amount of about $600 million dollars on a tobacco verdict later tossed out by the Illinois Supreme Court.

How did Madison County get so prominent in Illinois WC circles? Well, if you go back down memory lane about nine years to 2001-2, our current former-Governor-about-to-be-tried-on-June-3 was locked in a very close three-way primary election battle with Paul Vallas and our current junior U.S. Senator Roland Burris. Rumors are the former Governor made a deal with the Madison County Plaintiffs’ bar that gave him the political edge to win the primary and then the general election. As part of that bargain, we understand the former Governor turned over substantial control of the then-named Illinois Industrial Commission to the Madison County Insiders who quietly changed the name, funding and make-up of the place into a shiny new not-very-diverse Plaintiff-Petitioner-dominated place that has been anathema to Illinois business ever since.

We want to make it clear, the folks brought to the Commission by this group are both honest and outwardly professional and many of them were and are very knowledgeable and ostensibly qualified. We are amazed to see someone move into a second-tier job that completely lacks any true WC background and wonder why he wasn’t started out as staff attorney for a Commissioner to then become an arbitrator and continue to move up. With that in mind, we caution we have no idea, absolutely none, how new Commissioner Donohoo will rule when cases are brought before him. We assume he will learn very rapidly on the job. When he needs help, he can ask the covert, hidden, undisclosed players-not-to-be-named-ever who got him the job. And the observers from Illinois business will continue to sigh and wait for the fall election to see how things go.

And please, everyone remember, the State of Illinois under Pat Quinn still ain’t ready for reform. A vote for Bill Brady will be a vote for jobs to grow and stay in this state.

We appreciate your thoughts and comments or feel free to post them on our award-winning blog.

Editor’s comment: We agree with the appellate majority on this one and feel they got it right. In Hagemann v. Illinois Workers’ Compensation Commission (No. 3-08-0989WC January 22, 2010, opinion modified 04/30/10), the Appellate Court was faced with a mildly unique set of facts. Claimant was a trucker. Part of his work involved driving a truck and hauling grain for an agricultural concern from mill to mill. There does not appear to be any concern that he did not take grain from a farm to a mill but all of his work was hauling grain. There did not appear to be any question the work involved less than 400 working days of agricultural or aquacultural labor per quarter in the preceding year.

820 ILCS 305/3 in subsection 19 sets out the agricultural/aquacultural exemption to the Illinois Workers’ Compensation Act and says:

19. Nothing contained in this Act shall be construed to apply to any agricultural enterprise, including aquaculture, employing less than 400 working days of agricultural or aquacultural labor per quarter during the preceding calendar year, exclusive of working hours of the employer’s spouse and other members of his or her immediate family residing with him or her.

The employer filed a motion to dismiss for lack of subject matter jurisdiction under the Civil Practice Act seeking to confirm the matter was not appropriate before the Commission in reliance upon the statutory provision outlined above. The Arbitrator granted the motion and the Commission affirmed.

When the matter was appealed to the circuit court, the issue arose as to the propriety of the return date on the summons. The Appellate Court ruled the Circuit Court properly denied the grain farm business’s motion to dismiss the circuit court appeal. The reviewing court noted the employee did not fail to exercise reasonable diligence in service of summons, where the circuit clerk failed to issue summons on improper grounds their county sheriff would not serve process on persons outside the county in which the claim was filed.

The Appellate Court also ruled the Circuit Court erred in confirming the Workers Compensation Commission’s dismissal of the injured worker’s Application for Adjustment of Claim on motion. The Court noted the worker was injured while driving his semi-tractor trailer to haul grain. The Court’s majority noted a genuine issue of material fact existed as to whether the agricultural/aquacultural enterprise exemption of Workers Compensation Act applied. The Court further indicated “This standard provides a framework for applying the agricultural enterprise exemption in future cases, each of which, ultimately, will require a decision based on its own unique circumstances.” In layman’s terms, the Court ruled this exemption has to be heard to completion and not presented in a summary fashion on a motion.

We welcome your thoughts and comments.

Editor’s Comments: Plaintiff Construction Company is in a fight for its life under this new and anti-business law. The company name is “Jack’s Roofing” and they were investigated by the Illinois Department of Labor (the Department) pursuant to the two-year-old Illinois Employee Classification Act. Despite production by Plaintiff of subcontractor agreements and proof of subcontractor liability insurance, the Department of Labor conducted an informal “telephone interview” and concluded Plaintiff failed to properly classify 10 subcontractors in violation of the Act. Further, Plaintiffs were notified they may be assessed fines up to $1.6 million!

Trust us; fines at that level are a death knell for most small to medium construction companies. If you look up tiny “Jack’s Roofing” they are based in Royalton, IL and have been a family run business since 1977. They have been listed with the Better Business Bureau since October 2002. You may also note the population of Royalton, IL was 1,130 during the 2000 census.

Rhonda and Jack Bartlow, doing business as Jack’s Roofing, may have set the wheels in motion for the Illinois Employee Classification Act to be declared unconstitutional by the Illinois courts. Plaintiff filed a complaint in the Circuit Court of Franklin County, Illinois, for declaratory judgment and for injunctive relief against the Dep’t of Labor. Plaintiffs alleged in their complaint the Department was attempting to enforce the Act despite the fact the Act violates the Illinois Constitution and the United States Constitution. The specific focus of the alleged constitutional violations was interference with their procedural due process rights. The Circuit Court denied Plaintiffs’ request for a temporary restraining order or TRO. They rapidly filed a timely notice of an interlocutory appeal to allow consideration by the reviewing court.

Please note of the five appellate districts in this state, the Fifth Appellate District in Illinois is, in the view of most business observers, by far the most liberal and pro-labor district. We feel they might be coming around to possibly protect small businesses in little towns who are struggling in this awful economy. In an opinion delivered by Justice Stewart, the Appellate Court, 5th District ruled the Circuit Court abused its discretion in denying Plaintiff’s TRO request. The Appellate Court went on to find Plaintiff’s raised a “fair question” concerning whether the Act violates procedural due process, because the Act “does not appear to provide the accused with a meaningful opportunity to be heard.”

The Appellate Court majority was openly critical of the cursory investigation and evidence of a mere telephone conference held by the Department before a hefty seven-figure fine was assessed. The Court noted the need for a more formal administrative hearing process, concluding “[w]e believe that the plaintiffs have raised a fair question concerning whether due process requires the Department to provide an administrative hearing when there exists a dispute concerning material facts before it can assess fines and penalties or seek other sanctions or remedies against Jack’s Roofing. The Supreme Court has stated that there is “no doubt” that administrative proceedings are governed by the fundamental principles and requirements of due process. Balmoral Racing Club, Inc. v. Illinois Racing Board, 151 Ill.2d 367, 405, 177 Ill.Dec. 419, 603 N.E.2d 489 (1992)”.

We understand the purpose behind the Employee Classification Act is to determine whether an individual performing services for a construction contractor is truly an employee versus an independent contractor. It appears from this case the Illinois Department of Labor is aggressively pursuing massive and business-crushing fines and penalties, even against relatively small family-operated businesses. As we indicate above, we feel the Department of Labor’s goal is to rapidly bring home trophies to warn others not to go down that path. Maybe the courts are noting they can’t do so after a quick review and a telephone call.

What is alarming is the fact Plaintiffs in this case produced substantial documented proof of subcontractor bids, written contracts with subs, and also demonstrated there were certificates of insurance by the subcontractors! Despite all of this, the Department chose to pursue the claim and was poised to assess fines of over one million dollars on a family business. All of this was possible without a formal hearing and/or ruling by an objective ruling body! We applaud the Appellate Court for permitting Plaintiff their day in Court to properly defend against such a claim, which would surely put this small family company out of business. We will work to track progress of this case and the development of the body of law in this area.

At the federal level, please note this effort isn’t going to stop any time soon. Businesses that utilize independent contractors should be ready for increased federal scrutiny. As part of President Obama’s federal budget for the upcoming fiscal year, $25 million was requested by the U.S. Department of Labor (DOL) to enforce wage and hour laws and pursue employers who misclassify employees as independent contractors.

Another $12 million and 90 new investigators were requested by the Wage and Hour Division to expand its efforts to ensure compliance with the law. The “Misclassification Initiative” also supports new targeted efforts to recoup unpaid payroll taxes due to misclassification through state audits of problem industries supported by federal audits. These industries include construction, manufacturing, restaurants and home health care. Additionally, the initiative includes a $10.9 million pilot program that would reward states most successful or improved at detecting and prosecuting employers that fail to pay the appropriate taxes due to worker misclassification.

In addition to the U.S. DOL, the Internal Revenue Service will be scrutinizing independent contractor arrangements. As part of a National Research Project on employment taxes, the IRS is due to audit 6,000 randomly selected companies over the next three years. The audit will focus on, among other things, worker classification. Given the potential liability for penalties, taxes and interest, businesses must pay close attention to this issue. We are confident at the federal level, stricter adherence to due process protocols will occur. We feel employers across the U.S. should engage in proactive self-audits, reviewing, among other things, payroll records and IRS Form 1099s to identify those they have been paying as independent contractors and assess whether these individuals meet the requirements established by federal, state and local laws.

This article was researched and written by John P. Campbell, Jr. Please do not hesitate to reply or send inquiries to John at jcampbell@keefe-law.com or post them on our award-winning blog.

The background to the questions:

Illinois Employer A doesn’t exactly have a light duty program.

The injured worker will eventually be able to return to full work at Illinois Employer A when recovered from an undisputed work injury.

During their recovery, the employer sends them to volunteer in a non-paid position at a not-for-profit organization.

TTD was paid while the employee was showing up and working at the not-for-profit organization.

Their goal was to avoid having the worker sitting at home watching Oprah.

Can the claimant refuse such work?

In the recent ruling in Interstate Scaffolding, the Illinois Supreme Court cited Hartlein v. Illinois Power and Hayden v. IWCC to rule an injured worker who is recovering from injury has to do the work a doctor says they can do.

We feel if they refuse such work, TTD is not due.

Is it vocational rehabilitation to put a worker into a light duty position at a charitable or not-for-profit company?

Without intending to be rude, the answer is nobody knows.

Vocational rehabilitation is not clearly defined in the statute or rules.

We have no problem calling it vocational rehabilitation to put someone into such a position because you are rehabbing them to return to their vocation!

But it truly doesn’t make much of a difference—you owe either temporary total disability or temporary partial disability in Illinois if a worker returns to an unpaid position or a low-paid light duty position while recovering from a work-related injury.

What if they get injured in the light duty position?

See the analysis in the first article above—it may now be compensable.

We don’t agree with it but that appears to be the law in this state and we have to adjust.

We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.

Even without the gauntlet facing our prior Gov, Republican State Senator Bill Brady now leads current Governor Pat Quinn 45% to 38% in Illinois’ ongoing gubernatorial contest. The race has tightened slightly since last month, when Brady was 10 points ahead. Polls indicate forty-three percent (43%) of Illinois voters approve of Quinn’s performance as governor, while 56% disapprove. It appears Brady’s job has to be getting his visage in front of the voters as a decent and honest alternative to the shady politics of the prior administration that brought our workers’ compensation system to where it is now.

Everyone with a brain is starting to note the unpaid Illinois state bills are piling high with about $5.5 billion in unpaid bills out there and waiting for someone to find the money to get even reasonably current. All indications are the bills won’t be paid until there is a peak of more than $6 billion outstanding. The party in power has pulled in the mat in on a long-range solution, fearing a tax increase will insure a victory by their opposition. There won’t be any real cost-cutting because they aren’t going to cut their own friends and colleagues from jobs and state contracts.

Instead, Illinois could face a delay of months in billions in payments to public school districts, the curtailment of food deliveries to prisons and mental institutions and the inability of state police vehicles to fill their tanks using gasoline cards. They also face closure of nursing homes, day care centers and other facilities that have run out of cash to pay staff or their own vendors. Local governments, universities and community colleges will face a tough time meeting payroll because of the state’s failure to pay cost reimbursements. All of it will be disenchanting to taxpayers and voters.

So What Would Bill Brady Do? State Senator Bill Brady may be a refreshing change from the politicos in Springfield but we have no idea what his overall approach to workers’ comp might be other than to “reform” it. From our perspective, he doesn’t know what you as a veteran in the trenches may know and can’t be expected to understand the nuances of this nutty and complex benefit system. We are asking all of our readers in the defense industry to start taking a cold hard look at what you think might be the best path for him to take. We suggest our plea might paraphrase the old saying: grant us the serenity to accept the things we cannot change; the courage to change the things we can; and the wisdom to know the difference. If we can change things for the better, let’s get to it folks.

What can and should we change about Illinois workers’ compensation? What are the worst and most anti-business aspects of our current system? Is there anything we can offer the other side to get them to cooperate even a little and make this all happen?

We also want our readers to remember another critically important thought—Money talks and the rest walks. Please understand Illinois business has to try to start raising money and put it into the proper places to get WC reform to happen. For gosh sakes, someone sponsor a golf outing to raise money for a WC Law PAC for business as the labor side of the industry has been doing forever!

For their part, we assure all of you the labor side of Illinois workers’ compensation is going to do everything they can to keep the major legislative gains they sold to all of us in 2005. Whatever we do to change things, they are going to fight and kick and scratch to get and keep their legislation and rules along with hearing officers, Commissioners, judges and justices who are focused in their image and likeness. If we want to change it for the better, we have to start to think about raising money along with what to focus on and where to put the money.

Please understand the major players in 2005 on the defense side were the:

Illinois State Chamber of Commerce;
Illinois Manufacturers Association;
Illinois Hospital Association;
Illinois Retail Merchants.

Those players remain in place—we are simply not seeing a clearly defined WC reform plan from any of them right now. We hope and pray the Illinois State Chamber announces their WC reform recommendations earlier rather than later. We don’t see any association currently calling on Senator Brady to do anything of particular note in WC reform. Most important, we don’t see any of them openly raising money with a goal of insuring your interests are out front in the coming political battles.

We were recently asked about the Illinois Self-Insurer’s Association and their “role” in workers’ comp reform in this state. We point out that association was started in 1978 by the same WC defense firm that runs it today. In over three decades of existence, the next important legislative reform initiative we see from the ISIA will be their first in 32 years. In all this time, we haven’t seen the Self-Insurer’s Association actually doing anything of importance for Illinois’ self-insured companies other than quietly reporting how bad things have gotten while marketing the defense firm that raises dues to operate the organization.

If we are wrong about it, please send a reply and we will be thrilled to correct these statements. We call on the ISIA to be part of the solution–start raising money; create and use their bully pulpit to promulgate a policy for workers’ comp reform in Illinois. If they do so, we will stridently support their efforts on all fronts. However, if major Illinois employers don’t see the ISIA raise money, combined with a plan and actual movement to outline where this state should reform the Commission and legislation, we suggest moving your interests, efforts and most important, money behind any statewide organization that will truly and fearlessly carry your sword.

The election is about six-seven months from now folks. We appreciate your thoughts and comments. Please simply reply or post them on our award-winning blog.

We are trying to focus on how the law may be “shaped” by our reviewing courts in comparison to the legislation. One of the more controversial areas which demonstrate this legal phenomenon is the inclusion of overtime in the average weekly wage in this state. If you read the Act, the first sentence of Section 10 patently and simply states

The compensation shall be computed on the basis of the “Average weekly wage” which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee’s last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52;

820 ILCS 305/10 (Emphasis added).

Your editor assures you this statutory language was routinely interpreted for at least seventy years to mean all overtime wages—any and all overtime wages were excluded from the calculation of the average weekly wage for years and years. We assure everyone it was well-settled law and the issue never made it to the reviewing courts until someone in the Plaintiff/Petitioner bar conjured up the matrix we next analyze.

In 1990, the Illinois Appellate Court issued a ruling in Edward Hines Lumber Co. v. Industrial Commission which sent the whole concept tumbling sideways. What the reviewing court did for the first time in Illinois history in the Edward Hines Lumber ruling in a difficult-to-define circumstance was allow the overtime hour into the average weekly without including any concomitant overtime premium. They found “regular and consistent overtime” to be included in the average weekly wage at the straight hourly rate. Everyone continues to argue over what “regular and consistent” might mean.

In 2007, the Illinois Appellate Court reversed the Edward Hines Lumber ruling, sort of. In Airborne Express v. Workers’ Compensation Commission, the Court’s members looked at a situation in which a truck driver was actively bidding on shifts and using seniority to get a job that unquestionably required overtime. The Court’s members, in their wisdom, said this scenario would not allow for the inclusion of the overtime hour in the average weekly wage—they effectively ruled the overtime hour had to be mandated by the employer and not something the employee opted for. The Court continued to “split the baby in half” by only including overtime hour and not the overtime premium pay.

As we indicated in 2007 and continue to advise our clients, readers and law students today, it is our academic view neither ruling “follows” the simple language of the Act. Section 10 is cited for you above and says nothing of “regular and consistent” or “mandatory” or anything like it. We also point out there is no legislative history to the Workers’ Compensation Act so you have to look at the simple “English language” version of the Act to determine what the drafters intended. With deference to the members of the Appellate Court, Workers’ Compensation Division, we feel they found or “created” a rule in Edward Hines Lumber and then modified the rule they initially created without divining in either instance what we feel is the obvious intention of the legislature—to exclude all overtime pay whether mandatory, regular and consistent, straight overtime hour or premium overtime pay.

The next area of controversy is the continued judicial trend demonstrated by intervention of our highest Court into the workers’ compensation arena. We point out the Illinois Supreme Court was initially the venue where all rulings from Circuit Courts were heard—the Supreme Court disliked hearing such reviews so much, they created the Appellate Court, Workers’ Compensation Division for the express purpose of avoiding such matters. Well, the current court appears to have changed that tune, as we outline below.

It does not take a rocket scientist to note, in the last decade, the current members of our Illinois Supreme Court have accepted and considered any number of Illinois Appellate Court, Workers’ Compensation Division rulings and uniformly reversed any and all of them to insure benefits are always awarded on the side of Illinois labor.

The most painful ruling is the most recent. In Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Commission, our Supreme Court considered an appeal where claimant had a back problem and was working on light duty. He spray-painted graffiti on the employer’s shelving and was fired for it. He then made a claim for TTD after being fired. The Appellate Court, Workers’ Compensation Division issued a solid ruling confirming claimant wasn’t entitled to workers’ comp benefits after being fired for spraying graffiti and not due to his disability or medical care or anything related to the injury.

The dispute was over $5,000. We assure every one of our readers the chances of the Illinois Supreme Court accepting a dispute over that amount of money is infinitesimal—but not in workers’ compensation if it involves the denial of benefits. To the chagrin of just about every defense lawyer, observer and business person in Illinois, our Supreme Court took the case and reversed the Appellate Court, Workers’ Compensation Division. We feel the ruling remains very controversial and is not academically supported by many moderate Plaintiff/Petitioner attorneys across the state.

And most important, our highest Court implemented a new Illinois legal concept for determining when a worker is or is not entitled to temporary total disability—maximum medical improvement or MMI. Our problem with using that concept is the three words don’t appear as a phrase or defined term in the Illinois Workers’ Compensation Act. We are constantly asked by clients and readers how to define it. We are sorry to say there were no legislative hearings on the topic and your guess is therefore as good as ours or anyone else’s.

We also point out hundreds of workers all across this state return to work long before their doctors find them to be MMI. We truly don’t feel it makes common sense to say a worker who has returned to full or light duty is simultaneously somehow entitled to TTD. Whether you like it or not, that is the ruling of our highest court and we will continue to struggle with it.

The prior ruling by the Illinois Supreme Court we feel was controversial was the Beelman Trucking ruling in which the Appellate Court would not allow a statutory total and permanent claimant to get any benefits from his employer other than lifetime total and permanent weekly benefits. We assure our readers the perception of most WC regulars on both sides was the highest benefit an injured worker could receive was total and permanent disability benefits for life. But you have to remember, this is Illinois. In this case, the Supreme Court accepted certiorari and for the first time in Illinois history allowed double weekly benefits for both total and permanent disability and loss of use of specific body parts.

Other controversial Supreme Court workers’ comp rulings in the last decade include Sisbro where a truck driver who stepped out of truck was denied benefits because his foot was so degenerated from a non-work-related medical condition any activity of daily life might cause it to fracture. The Appellate Court, Workers’ Compensation wrote an excellent ruling that denied benefits based on longstanding Illinois law. The Supreme Court reversed their ruling on the facts.

And, as we reported last week, in Twice Over Clean, our highest court accepted a denial on a heart attack case where claimant’s own doctor said claimant’s heart was so bad he might have had an attack brushing his teeth. The Appellate Court again followed longstanding Illinois law and denied benefits—the Supreme Court took the case and reversed to insure benefits were awarded.

In summary, over the last decade, the only appellate ruling we feel favored Illinois business is Airborne Express that we analyze above. In our view, on case after reported case, the Appellate Court, Workers’ Compensation Division either rules for the interests of Illinois labor or the Illinois Supreme Court accepts the case and has uniformly reversed every denial. We open this Update article for rebuttal—if you or any reader feels there is a pro-business ruling out there in the last decade that we have missed, please send it along and we will be happy to publish it and correct this statement.

Please note there are lots of folks who want things to run in favor of Illinois labor and we want to make it clear there is nothing underhanded or implicitly “wrong” with the rulings by our reviewing courts. We just don’t think their rulings provide much grist for crucial issues like the jobs atmosphere or economic recovery, unless you feel economic recovery comes from paying lots and lots of money to injured workers who then spend it and thereby boost the economy. It is our reasoned view any balance on Illinois WC legal rulings has tilted very strongly to the labor side and we hope the fall elections may bring more equilibrium to the WC legal system in this state.

We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog; for information on how to do, see below.

Failure to do so, means their bill won’t be repriced/paid until the records are received by the insurance company/TPA. The reader noted many of insureds hold onto bills, fail to get them coded or bills get lost and/or misplaced with personnel changes.

He also indicated many injured workers receive medical bills (i.e. ambulance bills, emergency room bills) and not turn them in thinking the insurance company/TPA also received the bill which in many cases isn’t the case. By enacting this change:

· Medical bills would get paid timely;

· Providers would get paid or their bills denied quicker;

· Pricing of medical bills would be optimized;

· Penalty and fee petitions might end or significantly drop and

· There might be less unnecessary litigation and controversy.

We would love to hear your thoughts on this simple systemic change.

I would like to take this opportunity to express how honored and privileged I am to join the dedicated staff of the IWCC. Together we will evaluate ideas generated from both within the Commission and outside sources to progressively improve our implementation of the Workers’ Compensation Act. Collectively, we are committed to providing efficient, timely, and respectful service to the employees and businesses in the State of Illinois.

Above all, we aim to administrate the Act within the law fairly and equally on behalf of the workers and employers of the great state of Illinois.

Your input is exceedingly valuable to me and I look forward to hearing from you. Please feel free to email me at mitch.weisz@illinois.gov or call 312-814-6560.

Sincerely,

Mitch Weisz, Acting Chairman

We wish him the best and look forward to working with him whenever and wherever possible. However, during the same week, we received correspondence from him refusing the recalculate Illinois’ WC rates in light of the fact the statewide average weekly wage went down for the first time since the WC rate spiral was set up. We note the math on a number of rates simply can’t and doesn’t make sense. He did not indicate the position of other members of the Commission on the issue and we assume they are aligned behind him.

Therefore we have a number of clients that want us to file a mandamus writ to see if we can get a Circuit Court judge to order the Chairman and members of the Commission to make the rates match the statute. Please keep your eyes peeled here to follow progress of the litigation.

If you are interested in joining as a party plaintiff, send a reply.

Our initial pick for judicial controversy is the ruling in Durand v. Workers’ Compensation Commission. In this decision, we feel our reviewing court stripped out the statute of limitations in Illinois WC claims.

Illinois law mandates an injured worker has to file an Application within three years of the accidental injury or onset of a work-related condition.
In this case, claimant made four admissions she was aware of a repetitive trauma condition and its relationship to her employment.

Claimant didn’t file the Application until four years later—the filing was clearly and unquestionably outside the rules under any reading of the Act.
Benefits were awarded.

The Court said: “[w]e decline to penalize an employee who diligently worked through progressive pain until it affected her ability to work and required medical treatment.”

We ask our readers what “penalty” has to do with workers’ compensation rules—you either follow them or you don’t.

When you follow the rules and enforce them, someone is always being arguably “penalized.”

We ask our readers and the law students we teach and all of the administrators who handle workers’ comp claims in this state the rhetorical question—isn’t every injured worker who waits more than three years to file a claim going to say—“I have been working in progressive pain and now it affects my ability to work”?

We ask anyone to tell us how the legislature’s determination to limit workers’ compensation claims to injured workers who file for benefits within three years can possibly survive and/or be enforced after this decision.

The next source of judicial controversy is the parallel rulings of Sisbro and Twice Over Clean.

In Sisbro, the Appellate Court ruled a guy with a deleterious and non-work-related bone condition who shattered his ankle simply stepping out of truck wasn’t entitled to benefits because an action of every day life wasn’t compensable under the WC Act.

In Twice Over Clean, the Appellate Court ruled a guy whose heart was so degenerated his own doctor said he could have had a heart attack brushing his teeth was not entitled to benefits.

The Supreme Court went back and forth on both cases and then ruled the decisions were based upon facts and the reviewing courts couldn’t deny benefits by reversing the Commission on the facts.

Our highest court basically indicated if any ruling of the Commission is “within the manifest weight of the evidence” it can’t be reversed by a reviewing court.

We just had a denial of benefits reversed by a reviewing court with a ruling the denial was not “within the manifest weight of the evidence.” That ruling was not certified by the lower court for further appeal so it is now final. As we have said in the past, the “manifest weight of the evidence” factual standard appears to be liberally focused to insure benefits are always awarded and never denied.

From a purely academic standpoint and with respect to our highest court, we don’t agree at all with their rulings above which outline their position the lower court decided the cases on the facts—many academicians feel the lower court relied on longstanding Illinois legal principles.

Another source of judicial controversy is Franklin v. Industrial Commission. In this ruling, the Supreme Court basically found “two left jabs don’t make a right.”

Two cosmetic salesladies got into a fight and struck each other at precisely the same time.

Following longstanding Illinois law, the Commission ruled they were both denied benefits, as they were both aggressors.

This silly and unusual case made it all the way to our Supreme Court.
As we have pointed out many times, no one commented about the fact both ladies were breaking the law when injured.

The Supreme Court found the Commission misconstrued the “aggressor defense” to find injuries sustained by an injured employee in an altercation over work-related issues was not compensable by finding both Petitioner and the person who may have injured her were “aggressors.”

In this supposedly “typical” fight, the Court found the Commission must determine someone has to get benefits and sent it back for such a ruling.
Lots of our readers feel both combatants should have been “punched out” of any claim for benefits.

The next source of judicial controversy is Illinois Supreme Court Rule 23. This rule was designed to allow routine or mundane decisions to be “non-published.”

Well, in one ruling during the last several years, all five members of the Appellate Court unanimously decided to simultaneously “non-publish” a decision as supposedly “routine” while certifying the same case as crucially important for review by the Supreme Court.

For those of you unfamiliar with Illinois unusual WC Rule 23 decisions, they are almost all very detailed, well-researched by the members of the Court and carefully thought out. We have never seen one that is short and arguably “routine.”

By issuing such rulings, an indefinable amount of the work of our WC Appellate Court is arguably secret.

While it is impossible to tell because the decisions can’t be readily located or researched, we assert more workers’ comp appellate rulings are “non-published” than published, keeping them hidden from the public.
When we hear about another Rule 23 decision in Illinois WC, we love to quote a guy you might remember named Barack Obama who, during his presidential campaign repeatedly quoted Justice Louis Brandeis by saying, “sunshine is the best disinfectant.”

We hope some day; sunshine or publication of all relevant WC appellate rulings will be a routine disinfectant in our WC legal arena.

We continue to laugh to see the Illinois State Bar Ass’n WC Section newsletter openly report the occasional Rule 23 decision thereby “publishing” rulings ordered “non-published” by the Illinois courts. This doesn’t mean the rulings are openly published—it means the members of the ISBA can be “in on” the secret rulings.

We truly don’t care if the rulings are good or bad or pro-labor or pro-business; our reviewing courts should publish everything of the slightest substance or impact.

More to follow next week. If you want the website of the above rulings, send a reply. Please do not hesitate to reply with your thoughts and comments or post them on our award-winning blog.

The chiropractor wanted to be paid $550 per hour, paid in advance, with a 2 hour minimum. At one point, Defendant’s attorney offered $300.00 per hour with no minimum payment or prepayment. This offer was refused and the matter brought before the assigned judge. Circuit Court Judge Kathleen Flanagan then set an hourly fee of $66.95 and held the chiropractor in contempt of court for refusing to appear and testify at the deposition. The chiropractor appealed.

On appeal, Defendant contended a chiropractor was not a physician under Supreme Court Rule 204(c) and therefore only a subpoena with a $20.00 witness fee and mileage need be paid to the chiropractor to compel his appearance at the discovery deposition.

In considering Judge Flanagan’s ruling, the Appellate Court first examined Supreme Court Rule 204(c) and did not find any Illinois case law defining the term “physician” as used in this rule. The reviewing court then used the definition of the word “physician” as found in Illinois case law dating back to 1917, as well as the current version of the Medical Practice Act of 1987 to find the term “physician” as used in Rule 204(c) is intended to encompass a treating chiropractor. Therefore under Rule 204(c), a chiropractor is entitled to “a reasonable fee” for time spent in a discovery deposition in a case which he or she is not a party and not just a $20.00 witness fee and mileage.

The Appellate Court ruled that although the trial court’s formula for determining the reasonable fee was not the only way to calculate a reasonable fee, they affirmed the trial court’s calculations of the chiropractor’s hourly fee at $66.95 per hour. The reviewing court also affirmed the trial court’s order stating Defendant was not required to pay a 2 hour minimum or prepay the fee. This portion of the ruling was based on the committee comments to Rule 204(c), which explain the fee should be paid only after the doctor has testified, and the fee should not exceed an amount which reasonably reimburses the doctor for the time actually spent testifying at the deposition. The Court felt the trial court’s order properly reflected the Supreme Court’s intended application of the rule and reasonably compensated the chiropractor for the time spent testifying.

The question then becomes, does this case affect either a chiropractor or a physician’s deposition in a workers’ compensation case? The answer is “sort of.”

Obviously, Supreme Court Rule 204(c) which is applicable to discovery depositions does not apply to workers’ compensation because there are no discovery depositions in the WC rules. However, the rationale behind this decision is well thought out and reasonable. In that regard, the reasoning of the Court may likely be applied to the similar dispute in a worker’s compensation case if the evidence deposition of a chiropractor is needed.

Additionally, one of the paragraphs of Section 16, provides in relevant part,

The Commission shall have the power to determine the reasonableness and fix the amount of any fee of compensation charged by any person, including attorneys, physicians, surgeons and hospitals, for any service performed in connection with this Act, or for which payment is to be made under this Act or rendered in securing any right under this Act.

While this paragraph is not as detailed or explicit as Supreme Court Rule 204(c) is, it has the same intent. This paragraph allows the Commission or assigned arbitrator to determine the reasonableness of a doctor’s or chiropractor’s deposition fee. Under the “reasonable standard” of this paragraph, it would also seem that this paragraph would allow an arbitrator to deny or allow payment of a minimum hourly requirement, as well as to deny or allow prepayment of the deposition fee.

This article was written by our most recent addition to our associates, John C. Wilson, J.D. Please do not hesitate to reply or direct thoughts and comments to John at jwilson@keefe-law.com.