Editor’s comment: Everyone in the claims industry knows who they are but what can we do about them? Please understand we cannot name names in an article such as this—to do so would result in an immediate and expensive libel action from each and every doctor and clinic we named. When you run an ongoing medical scam, you are generally very sensitive about “defending your good name” and most of these joints and scamming physicians/chiropractors in Illinois are ready, willing and able to sue at a moment’s notice.

Our favorite story about medical provider abuse came from a Petitioner’s attorney who told us of a clinic in the central part of Chicago—they were sending a bus out to pick up a patient in a distant suburb and bringing him to town for care. The clinic was billing over (or overbilling) $5,000 per long-distance visit. How do we stop this sort of shenanigans?

What as a start–what defines Unstoppable Medical Fraud Machines? Well, every doctor and healthcare giver across the state knows who they are. Some day, we look forward to actually having a doctor on the IWCC advisory boards who will take steps to identify and stop the abuse. Every veteran Illinois WC claims manager rolls their eyes to hear the names of any of the Unstoppable Medical Fraud providers. When a newbie WC claims handler who is unfamiliar with our strange ways in this state sees a bill from one of them, bingo—you note

Most times chiropractors are involved at the beginning or middle of the process;
Lots of times, claimant lawyers are “secretly” involved in referrals
The treatment is never-ending;
These providers’ medium bills are about five-ten-fifty times higher than reputable providers;
The clinics and doctors are relatively immune to utilization review and IME’s;
All of it looks like fraud.

Why are chiropractors involved? From our perspective, the role of chiropractors in this form of medical care is in the larger personal injury setting, prone to overtreatment and overbilling. If you find a chiro that doesn’t do so, save their name and number and send them business. We feel chiropractors have a bona fide role in medical care but, in our view, is should not be an endless one. It is a rare chiropractor we see in the Illinois WC process who believes in a beginning, middle and end to what they provide. And sadly, lots of chiropractors seem prone to medical abuse when they are taking advantage of the strange situation in which they are fronting the cost of care to then try to scam or wedge out payment from a carrier and not the patient.

Why are lawyers involved in too-much-treatment and clear instances of medical fraud? Well, Plaintiff lawyers started doing so on the general liability side to increase what are called “special damages.” Then they seem to miss the fact it usually doesn’t help to have overtreatment on the much more structured WC side—claimants don’t get more money for a soft-tissue strain when there are $50K in medical bills; it creates a headache no one wants.

The problem is many of the overtreating doctors look for Plaintiff lawyers to trade clients—you send me folks who will overtreat and I will send you clients. In the wildly competitive world of Plaintiff personal injury work, it is hard to turn down new business for newbie lawyers, regardless of the problems present. The old-timer lawyers know the math and don’t want to represent clients of overtreaters but the process had been going on for years and won’t stop any time soon.

How do we stop Unstoppable Medical Fraud Machines from the perspective of defense WC claims handlers? Well, officially you can use utilization review and independent medical exams and our clunky medical fee schedule to counterattack. All of those techniques have strengths and weaknesses. We assure all of you the current Illinois WC Commission does generally cut the medical bills of overbillers and kudos to them for doing so. The problems our clients note is you have to then fight and litigate to win and stop the abuses.

We were asked by a client whether you can pay-off a claimant to get them away from an overtreater/overbiller? The answer is there is nothing in the Act or Rules that prohibits it and whatever isn’t illegal is therefore legal. This is a new one for us and we would love to hear your thoughts and comments on it.

Our vote is to get administrators and WC advisory boards that have brains, guts, talent and care about business in Illinois—we hope to some day see someone consider implementing a blacklist for overtreaters and overbillers to stop clear and obvious instances of repeated medical abuse. Until we start to get serious about identifying and stopping overbillers and medical fee abuse, it will not stop and it is a major pain at every level of WC claims handling. Please let us know your thoughts or post them on our award-winning blog.

Editor’s comment: If you read our KC&A Update last week, you learned the parties have reached a class action settlement of the dispute about the Surcharge you may have overpaid in 2003-9. Your organization may be able to get substantial monies back with minimal effort on your part. Shawn R. Biery, Gene Keefe and the attorneys and staff at Keefe, Campbell & Associates are happy to handle your claim for free, if you will simply fill out and forward the forms to us. We have already submitted a number of applications for refund and more requests continue to come in every day.

Preliminary approval for settlement of the lawsuit has been provided by the Circuit Court of Cook County. The sum of $3,300,000 now resides in a Protest Fund and will be placed in a claim fund to be distributed to class members who can support their claim for repayment. Judicial approval of the payout may be as soon as June 15, 2010.

The support for claim can be made with documentation of canceled checks, invoices showing the surcharge or other proofs of payment as long as they make a claim for repayment during the claims period in the appropriate manner. The amount of refund will be limited to 45% of the Surcharge paid between July 1, 2003 to June 30, 2004 and 10% of the Surcharge paid July 1, 2004 to June 30, 2009. The current proposed settlement agreement can be seen on the web at http://www.state.il.us/agency/IIC/Chamber-Settlement Agreement.pdf and the preliminary approval order can be found on the web at http://www.state.il.us/agency/IIC/Preliminary approval order.pdf.

This was brought to all Illinois employers by our Illinois State Chamber of Commerce. We urge our readers to continue to support State Chamber President Doug Whitley and the Illinois State Chamber of Commerce that is clearly out on point in trying to reform workers’ compensation in this state.

Illinois employers should review and take note of this important Commission decision which indicates simply because a heart attack or other cardiac event occurs while a claimant is working does not necessarily mean the accidental injury is compensable under the Act. Claimant and their counsel still must meet their burden of proof in demonstrating a compensable event through expert testimony and a preponderance of the evidence. As we indicated when Twice Over Clean was issued, we were greatly concerned any and all cardiac events or dysfunction might be covered in Illinois because claimant in that ruling was found to have arteries that were 95% occluded and his own doctor said he could have had a heart attack while brushing his teeth. It would appear our Commission is still using strong common sense in deciding when and if to provide Illinois’ high death benefit.

In Dragovan v. Western Utility Contractors Inc., 06 IL.W.C. 31304, No. 09 I.W.C.C. 0969 the Commission reversed an arbitration decision which found Decedent to have sustained fatal cardiac arrhythmia. It was undisputed Decedent in Dragovan had a labor intensive job. On the date of claimed loss, he had in fact been digging and performing strenuous physical labor. However this work was performed several hours prior to his death. Decedent was not performing heavy physical labor of any kind when the fatal cardiac event began.

Although Petitioner’s expert opined Decedent’s physical activity “led” to the fatal event, both experts agreed Decedent had a globoid-shaped heart with a longstanding occlusion of the descending coronary artery that left only a pinhole-sized opening, a condition that greatly increased the likelihood Decedent would experience cardiac arrhythmias, thus increasing the risk of sudden death. More important, both expert physicians also agreed Decedent’s heart was in such a diseased state little or no physical activity was needed for cardiac arrhythmia to occur. Nevertheless, the Arbitrator found this case to be analogous to Twice Over Clean and Petitioner’s expert to be more credible and awarded full death benefits. As we have indicated death benefits in Illinois are start at over $600,000 and now cap at $1,615,900!! We consider Illinois to be the third highest state for death benefits in the entire country.

On review the Commission disagreed and clearly distinguished this case from Twice Over Clean in that Decedent in this claim was neither performing physical labor at the time of the incident nor was he working at or near the level of physical activity as claimant in Twice Over Clean. To be clear, in Twice Over Clean the claimant was actually performing physically demanding labor outside in the cold in Minnesota when symptoms related to a non-fatal heart attack were experienced. In this case Respondent’s expert testified the physical activities performed earlier in the day by Decedent were too far away from a temporal perspective to be relevant in causation. Thus even with medical testimony that physical activity could precipitate cardiac arrhythmia and later death, the Commission viewed the facts and testimony in their entirety and issued a well-reasoned thoughtful decision which provides significant insight into how such claims should be handled.

This case is of extreme importance to anyone who might find themselves handling and/or defending a fatal or non-fatal cardiac or stroke claim. Please note this ruling might not apply to firefighters with five years or more of seniority—in Illinois, cardiac problems for such workers are presumed to be related to work.

Although it may seem at times as though the Act provides all-encompassing coverage to any employee who happens to be working at the time of a heart attack, stroke or other cardiac problems, thorough investigation and reliable expert testimony may speak to the contrary. With that in mind, we never recommend blind acceptance of cardiac claims simply because the incident occurs at work, it is the employer’s duty and right to fully investigate and make their decision after reviewing the facts in their entirety. Please don’t hesitate to contact us about handling, reserving or defending such claims.

This article was drafted by law student and KC&A paralegal Michael F. Sullivan. Please do not hesitate to reply with thoughts and comments or post them on our blog.

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

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

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

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

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

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

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

We appreciate your thoughts and comments.

Editor’s comment: We noted a great article in www.law.com, where members of the U.S. House were joking with the members of the U.S. Supreme Court about opening up the courts to public scrutiny. The annual House hearing called to consider the Supreme Court’s budget request began with its usual rituals last week. Members of Congress and members of the Court–Justices Clarence Thomas and Stephen Breyer–praised the occasion as a historic meeting of two branches of government. The hearing proceeded in the same vein for a while, full of blandishments and collegiality. But then a Texas congressman decided to test just how well the justices were listening and whether they would take his heartfelt message to heart. He made a plea to the Court to ramp up its transparency and public face. Other committee members proceeded to pile on; telling the Court that the momentum toward openness the Internet has created is so strong that the Court would be wise not to resist it. By the end, Justices Breyer and Thomas could have been forgiven if they started to think they’d been hit by a coordinated attack from wild-eyed techies.

The instigator was conservative Rep. John Culberson, R-Tex. You may note how close his name is to Illinois Senate President John Cullerton, D-Chicago. U.S. Rep. Culberson urged the Court to go to the next level of transparency. The justices had already talked about the occasional release of oral argument audio tapes and of plans for an improved Supreme Court web site. Culberson said there would be “no logical distinction” between what the Court has already done, and streaming the video of oral argument on the Court’s web site. Suddenly, the old debate over cameras in the Supreme Court had been resurrected.

“It’s a very easy matter on the Internet,” Culberson said, and to prove it, he took out a device, aimed at the justices and announced at that very moment, their visages were being seen live on the Internet. Culberson’s video is available on the web. The justices were startled, but smiled for the camera. C-SPAN’s cameras were also rolling. “The next American revolution is going to come through the Internet,” Culberson told the justices. “I encourage you to break down that wall. It’s as easy as pushing this button.”

The justices retreated into their usual arguments against camera access. As he often does, Breyer said the current members of the Court are just temporary stewards of a cherished institution who don’t want to damage it in anyway. Before deciding if the gains are worth the risk, Breyer said “social science research” is needed. Later, Culberson implored Breyer and Thomas, “Don’t wait for the social science research. Trust your hearts.” Justice Thomas also spoke of the Court’s cautious nature, telling Culberson that on the current Court, there is “no one who will aggressively push the institution in a way that will result in some diminishment of the institution.” But he did say that within the Court, “there has been quite a bit of discussion” about the issue, especially since legislation that would require the Court to allow cameras was introduced in Congress.

We live in a state where the judiciary and all administrative bodies are almost allergic to cameras. In some Illinois counties, visitors are not allowed to take camera-phones into the building for fear they may actually or accidentally use them to record anything. In a democratic society, we assert people have a right of access to courts and the Workers’ Compensation Commission. Anyone can sit in the in a hearing room and watch a part or the whole of a trial or oral arguments on appeal. There is therefore no constitutional reason why all trials, hearings and oral arguments should not be televised or streamed on the internet. We vote for IWCC-TV on their otherwise super-charged web site!

At the moment only a few people can take advantage of access to the Commission and courts. As courts and our Workers’ Compensation Commissions sit during the week, it is difficult for people in full-time employment to watch a trial or oral argument. Travelling to courts and hearings across the state is costly. The hearing and oral argument rooms for the public have only a limited number of spaces. We should not have to make such sacrifices of time and money in order to enjoy democratic rights. In addition, the events in court are often difficult for non-lawyers to understand. Coverage on cable or local television could include commentary that would make watching a trial or oral argument a more profitable and educational experience. In the age of the television, and streaming video on the internet, we should utilize modern technology to enhance the rights of the citizens. We would also feel televised hearings and oral arguments would improve the professionalism and demeanor of the attorneys and hearing officers who participate.

We also hope to see the day that Rule 23 is greatly limited by our Illinois Appellate Court, Workers’ Compensation Division who appear to actually “publish” or openly disseminate about one in ten of their rulings. We feel appellate court oral arguments should be streamed on the internet or made available to local cable TV. We also feel all court rulings, some of which are lengthy, fully researched and carefully written, cannot and should not be hidden from the public and left non-precedential. As we have said numerous times, no one pays the thousands of dollars necessary to prosecute a claim on either side of the bar to our Appellate Court without it being vitally important to the parties and other members of Illinois society and the larger legal community. What is most galling is the courts truly have the resources to “publish” all of their rulings—to the extent they “non-publish” numerous decisions, they are spending public funds to hide what they are doing.

We ask the light of sunshine be brought to all judicial proceedings, including the Illinois Workers’ Compensation Commission and reviewing courts. We assert the opposite approach that remains the rule of law across this state leaves court observers and other citizens with the strong impression the courts have something to hide and remain amenable to corruption and hidden rulings. We would appreciate your thoughts and comments.

Editor’s comment: We figured someone might step over the line one of these days but it is still something to wince about. Last week, we saw a civil action for libel filed in the Cook County Circuit Court by one of Illinois’ top surgeons. In our view, this surgeon is one of the very best in the U.S. We consider him a scientist and craftsman who is unsurpassed in his field. He has published books and articles on his intricate area of surgical expertise and lectures regularly.

We are aware of this surgeon working round-the-clock with teams of fellow surgeons to successfully reattach limbs. We consider all such surgeons to work miracles to help injured workers with space-age technologies—twenty-five years ago, such workers would be amputees where today with a little luck and a lot of hard work by doctors like him, the injured worker may get to keep and recover full use of a traumatically detached limb. We feel there should be a special deference given to such devoted and competent care-givers regardless of which side of the practice of law one may come from.

This surgeon’s problem is that part of his practice takes him out of the surgical arena and into the maelstrom that is Illinois workers’ compensation law and practice. As a small part of his overall practice, he gets involved in giving opinions in independent medical examinations. We researched for this article and note he has been cited 196 times in reported Illinois decisions. Please understand he is probably called upon slightly more by Respondents than claimant attorneys. We assure all of our readers this defense firm sends claimants to him and we are thrilled to have someone this solid and fair participate in the sometimes tawdry world of workers’ compensation.

We also recommend our clients send claimants to him. We rely strongly upon his opinions and tell all of our defense clients to rely on him because he is a both a man of science and a solid practitioner. If he feels a condition is related to work or that surgery is needed, we tell the clients that is how the chips fell and to pay benefits and certify recommended care. If there is a way for a claimant to actually treat with him, we tell our clients to authorize such care, understanding we are now “welded” to his determinations as to the need for surgery and time off.

The problem he has is the same with anyone denying any part of any WC claim by anyone in this state. Many of the zealous practitioners on the other side of the workers’ compensation field seem to live to attack, vilify, malign, denigrate and belittle anyone who doesn’t uniformly agree every claimed condition of any type has to be related to work. As we have told our readers in the past, some of the Arbitrators who were claimant attorneys prior to becoming hearing officers continue to draft and issue decisions indicating this bias. We have now identified two new strategies or workers’ compensation concepts, “repetitive [insert any noun or verb]” and “traveling employee” that seem designed to provide uniform or global workers’ compensation coverage of any malady, big or small.

So what happened? Well, this attorney wrote a letter to a well-known rehabilitation specialist, telling the specialist he has no idea what he is doing and “firing” him from that case and any case with his firm. We always love claimant attorneys who feel they have that sort of power because there is no “rule” or legislation that allows claimant attorneys to select or reject Respondent’s rehabilitation counselors.

Then counsel for Petitioner took a parting shot at the surgeon saying: “Dr. …. is the most widely purchased Respondent hand surgeon opinion in the history of Illinois. How sad that you have chosen to become his bedfellow. Shame on you.”

The complaint for libel asserts the letter and statements above severely prejudices the surgeon and imputes a lack of integrity in the surgeon’s professional, medical and business activities. The complaint further alleges the statements are false and defamatory. The complaint asserts the letter was published to a third party with the knowledge the statements were defamatory and false. All of this is now public record.

We want to point out to all of our readers we consider the letter by counsel and inflammatory statements to demonstrate tunnel-vision of the highest (or lowest) water. We assure all of you this surgeon doesn’t keep score; he just calls them as he sees him. The last claim your editor sent to this doctor resulted in a finding the condition was related to work and we accepted the claim and paid benefits, quickly settling for fair value. Arbitrators don’t actually see such reports and such opinions are not the subject of litigation. Our advice to the advocates on the other side is to try to look at the bigger picture—you get the claims where there is a dispute and where the doctor has provided a defense opinion. That is not a high percentage of all claims; but it may be a high percentage of litigated claims.

We will advise of the progress of the litigation as it moves forward. We would appreciate our readers’ thoughts and comments.

Editor’s comment: We recently saw an article where a Chicago law firm requested $1,100 as an hourly defense rate in a bankruptcy claim. The federal bankruptcy court judge in Wilmington, Del., said he wouldn’t okay the fee requested in a newspaper company’s bankruptcy claim. However, he approved a top hourly fee of $925 in the bankruptcy. The billable rates charged by the Chicago-based firm in the case start at $575 for some attorneys, according to a filing requesting court approval of legal fees and billing rates. By the by, $925 per hour is more than $15 every minute. We also understand bankruptcy lawyers get to bill for creating their bills to present and get paid upon approval of the courts.

The $1,100 rate requested is higher than any in a database kept by Lynn LoPucki, who teaches bankruptcy law at the University of California at Los Angeles. However, it was just a bit less than the $1,110 requested last month by a different Chicago-based firm in a corporate bankruptcy case. There’s no word yet on whether that fee request was approved. One has to wonder what miracle of legal work justifies such billing rates.

However, these rates pale in comparison to the highest legal rate ever recorded when a southern Illinois judge approved a fee bill of $1.15 billion for legal work performed on the tobacco litigation. For reference, if the firm put 100,000 hours into the case, their legal fees would still be over $10,000 per hour!! Thankfully, the Illinois Supreme Court knocked it all out.

Please do not hesitate to send your thoughts and comments.

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

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

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

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

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

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

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

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

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

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

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

So, for starters:

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

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

Editor’s comment: As we have told our readers, this is a concern in the area of independent medical examinations where we feel there may be administrative fees and costs being “bundled” into the IME fee that aren’t being disclosed to insurance carrier and TPA accounts. We caution everyone involved in IME billing to disclose such fees in an open fashion and avoid unnecessary litigation like this one.

Fourteen Illinois MRI/radiology centers settled a lawsuit last week alleging they paid illegal kickbacks to doctors in exchange for referrals. The settlement requires the 14 MRI centers, which are owned by Virginia-based Midi LLC, to pay a total of $1.2 million in damages, restitution and penalties, according to Attorney General Lisa Madigan’s office. The State of Illinois will receive $840,000 of the settlement, which it plans to use for grants to provide health care for low-income patients.

The lawsuit, filed in 2007, alleges the radiology centers entered into questionable agreements with doctors under which the doctors paid a reduced rate for MRI and CT scans, billed patients’ insurance a higher rate and pocketed the difference. “This settlement sends a strong message that medical professionals cannot engage in schemes to line their pockets at the expense of the best patient care,” Ms. Madigan said in a statement. The attorney general also settled with five other imaging companies, according to the release.

The companies that also settled are:

1. •           National Medical Imaging of Palos Heights.
2. •           Rand Imaging Center, LLC of Arlington Heights.
3. •           Central States Imaging, LLC of Lake in the Hills.
4. •           Gurnee Radiology Center, LLC in Gurnee and Libertyville.
5. •           Bannockburn Radiology Center, LLC of Bannockburn.
6. •           Open MRI of Northern Illinois.
7. •           Nydic Open MRI of America – Westchester.

We thank the reader who gave us the “heads up” on this topic. To read more, go to the web at: http://www.illinoisattorneygeneral.gov/pressroom/2009_01/20090114.html

Please send your thoughts and comments.