Keefe, Campbell & Associates, LLC

Editor’s comment: We were told current Illinois Governor Pat Quinn was a reformer. He has started a number of reform initiatives and actually called for a change to the Illinois constitution mandating what people in other parts of the country call “ethics”—most Illinois politicians don’t understand or use that term much.

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: As we advised, we are licensed by and officers of the courts of this state. Our goal is to provide an academic review of the more controversial decisions we have seen come from the current WC reviewing court members. For representatives of Illinois business, please take a look and “draw your own contusions” from the actual rulings.

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.

Editor’s comment: We received this thought from a reader—we consider it a brilliant and simple idea. He indicated one of the biggest problems with Illinois WC claims is with the billing from medical providers. In most states, the medical provider is required by law to directly bill the insurance company/TPA and not send the bills to the injured worker or the employer. The medical provider is also required to send the medical records with any and all bills.

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.

Editor’s comment: In another secret Illinois WC process, we reported last week, Mitchell Weisz was selected and has been appointed our new IWCC chairman. His professional and simple message to the public on the IWCC website is:

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.

Editor’s comment: Please remember we are licensed by and officers of the courts of this state. Our goal is to provide an academic review of the more controversial decisions we have seen come from the current WC reviewing court members. For representatives of Illinois business, please take a look and “draw your own contusions” from the actual rulings.

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.

Editor’s comment: Well, Amy Masters was “acting chairman” and obviously didn’t have the political pull or clout to make the permanent job. On Friday, November 21, 2008, we first reported former-Governor Blagojevich named Ms. Masters as Acting Chairman of the IWCC, effective that day. Chairman Masters first joined the Commission in 2003. She initially served as the Secretary of the Commission and then was Operations Manager for two years. She previously served as Chief of Staff and Judicial Manager. Before joining the Commission, she managed public relations for the Chicago Bar Association and the Laborers’ International Union-Midwest Region. She holds a B.S. degree in Political Science from Southern Illinois University but was not a licensed attorney.

In 2008, the Illinois Workers’ Compensation Advisory Board recommended the appointment of Ms. Masters as Acting Chairman. We just looked at their most recent meeting on January 21, 2010 and note there is no agenda to consider the appointment or resignation of any one.

Maybe the strangest thing about this article is our understanding—and we caution our readers that everything that happens at the Commission is from the “outside, looking in” because they almost never tell you what they are doing until after it is done, is Amy J. Masters is to be congratulated, applauded, saluted and whatever good thing you want to say about someone who took the Commission’s website and basically made or had someone who worked for her make every major improvement that you can find on the site.

In 2002 and before, the Commission’s website was primarily a place on the web with an eentsy, tweentsy bit of WC information. After Ms. Masters souped it up, you can now find lots and lots of functional and important things for the industry, like the

Status of claims;
The Arbitrator assigned with status dates;
The names and contact information of the lawyers on each side;
Decisions;
Appeals;
Dismissals;
Insurance coverage information;
Commission news;
The Act and Rules in two formats;
Forms (which still may be sort of a work in progress); and
Lots of answers to lots more questions.

We are now told by numerous reliable sources, Mitchell R. Weisz of Crystal Lake will be appointed to replace Ms. Masters, with the announcement to come as early as tomorrow. While we will take his new tenure with an open mind and wish him all the best in a challenging position, we are unhappy to report Mr. Weisz was a personal injury lawyer on the Plaintiff side. He has ties to any number of personal injury and workers’ compensation Plaintiff lawyers across northern Illinois and used to refer cases to them.

We point out three of the last four Chairman have been Plaintiff/Petitioner lawyers. All of them have been selected without notice to the public or any chance for the press, including the editor of this Update to ask any questions about their background, focus or goals as Chairman. Mr. Weisz will take over an agency which collects and spends about $20,000,000 of Illinois’ business money and gives out about $3 billion in benefits every year.

We certainly hope the selection process for choosing the Chairman is opened up to public scrutiny some day. We appreciate your thoughts and comments or you can post them on our award-winning blog.

Editor’s comment: In less than ninety days, our former Governor is going on trial for various counts of bribery and extortion while in public office. There is no indication he will cop a plea and quietly accept his medicine. Illinois voters are going to watch what we feel is a crooked politician do everything he possibly can to wriggle off the hook—the tawdry and embarrassing legal battle will lead right up to the November state-wide election. We don’t feel voters will be amused by the spectacle.

At the same time, this Wednesday, our current Governor is going to tell Illinois voters he is facing a budget deficit of well over $13 billion dollars! He is going to face the situation head-on and demand the legislature dramatically raise our taxes once again. We don’t feel he has the guts or drive to make the changes needed to dramatically cut costs now or in the future. Trust us, Illinois voters apparently don’t mind their money being squandered on our hilariously poorly run state government in Illinois unless and until they find out more taxes are inescapably due. When that happens, history tells us they generally rise up and knock out any politician who supports new taxes. One way or the other, this current administration may be called to task for about a decade of waste and corruption and shown the door.

All of this is pointing toward a Republican rebirth at the state level this fall. Those Republicans are already asking tough questions. We are certain to want to provide guidance and answers that are in the best interests of our clients and the broad base of Illinois employers struggling to compete in a very competitive national and international economy.

Numerous sources indicate workers’ compensation costs in Illinois have steadily risen to be among the highest in the nation. All of our readers and everyone who writes an email reply about workers’ comp costs routinely advises our fair state is out-of-whack with our sister states and the rest of the country. The collective angst of Illinois business is being heard more than ever before. There are various bills now proposed by our state legislators to change the Act and even the Illinois Workers’ Compensation Commission’s system of dispute resolution itself. We also point out administrative change will be inescapable.

This all begs the main question that keeps coming back; what should be changed and how?

The claim the “lawyers have caused the problems” is a flippant, easy answer but it does not address any of the real problems from the perspective of Illinois business. In fact, the Illinois Workers’ Compensation Commission digests over 50,000 cases per year. The attorneys who work within the system are, on the whole, professional and well-versed in the law and practice. Attorneys on both sides represent their clients well. We feel the main cost associated with workers’ compensation claims in Illinois do not stem from litigation; in fact, litigation costs are a very small fraction of the overall cost of claims.

For this reason, the promulgation of an alternative dispute resolution system (ADR) would again do nothing to address some of the real changes that would benefit Illinois business while still protecting injured workers’ rights. Point in fact, the Commission structure already is “alternative dispute resolution” as it is an alternative to the much more ungainly and slow civil court system. The IWCC is comparatively streamlined and works remarkably well when veteran attorneys for both parties are working a case.

As an example, our firm was recently assigned a file on July 14, 2009 with a serious medical and accident dispute. The parties obtained expert opinions, took depositions, tried the case and received a decision on a 19(b) hearing by October 20th. Following that model, this established system can and does work well, regardless of what the critics say. Does litigation always proceed with such economy? Of course not,but when there are delays, it is most often due to the need for further information/fact gathering, which the arbitrator requires to make an informed decision.

If another version of ADR is inserted under the current Workers’ Compensation Act, what changes? Assuming the same statutory rights are protected and the body of case-law that has developed over the past decade or so is still followed, it is our impression that nothing is accomplished by the creation of ADR. Implementation of any such binding arbitration is similarly duplicative, as Section 19(p) of the act has the equivalent of binding ADR with an option for the parties to conduct a one-time binding arbitration which is not appealable to the Commission or any Court. Therefore, if the parties desire such finality without recourse to review an opinion, they are already free to do so under the current Act.

All right then; we save the Commission itself, but what do we change to save Illinois business and bring our WC costs into line?

We offer three proposed changes to the Act which would make Illinois competitive again with our sister States while still protecting workers’ rights (at least in the workers’ comp arena).

Insert a new legal standard for compensability of an “aggravation of a pre-existing condition”.

One of the most frustrating aspects of our system from the employer’s perspective is when an individual has a simple twisted knee claim without blunt trauma or tears, yet due to an advanced degenerative joint, is a candidate for a knee replacement. When the doctors testify the sprained knee is “a cause” of the symptoms, the floodgates open and the employer, through no fault and without ability to prevent such an injury, must pay hundreds of thousands of dollars for joint replacement, TTD and wage differential benefits when such workers are deemed unable to return to work.

We propose a statutory requirement as follows: “in the event a work accident reveals pre-existing degenerative medical conditions, the work accident must be the primary aggravating factor which creates the need for treatment and any subsequent disability for the continuation of benefits under the Act.”

Cap wage differential and permanent total disability claims at 10 years of benefits or 520 weeks.

Again, Illinois is the most expensive State in the Union due to such lifetime claims that almost no state provides. We will never be competitive as a state in terms of attracting and keeping business unless such costs are reined in. Workers’ compensation is a no-fault system of benefits that provides 100% medical cost coverage and wage replacement while disabled. Most cases settle based on the traditional “scheduled” loss of the respective body part. For more severe claims, a reasonable “safety net” for employees is to provide a decade of wage replacement benefits. At our high benefit rates, this would still be relatively high compared to other States, but nonetheless better than the current windfall of lifetime benefits. As part of this change, we propose that vocational assistance must continue to be offered to candidates for placement. However, vocational assistance should be suspended after 6 months, with any wage differential based on the median income earning potential pursuant a labor market survey. In other words, claimants don’t get to allege they are “odd-lot” permanent total disability candidates simply because they cannot get hired within their restrictions.

Pay medical bills in workers’ comp at what is paid in the group health-care arena.

Finally, this one is a no-brainer of the highest level. Why have non-parallel systems for Illinois business where doctors and other health care givers are reined in by Blue Cross/Blue Shield or Aetna on the group health side but on the workers’ comp side, medical bills run completely batty? No one has any idea how to rein the abusers and overbillers in on WC—we recommend mandatory UR as a path. In our view, the Commission provides nothing but confusion and consternation when they implement it. Let’s make it mandatory or simplify it but start to come in with true guidelines to the benefit of injured workers and their employers alike.

We can’t tell you we have all the answers but we are sure we know the right questions. Please let us know your thoughts and ideas. This article was written by John P. Campbell, J.D. and Eugene F. Keefe, J.D.

Editor’s comment: As we advised last week, we are certain some of Illinois workers’ comp rates are now wrong. We had at least fifteen readers/clients suggest we write to see if they will address it and voluntarily change the rates to correct statutory values. With greatest respect, we are providing this pre-mandamus letter to the Chairman and all sitting members of our Commission (you may note Commissioner Paul Rink remains listed on their website but retired on February 26, 2010).

Please consider this our formal request to correct the rates posted on the web at http://www.state.il.us/agency/IIC/benefits.htm to be in compliance with §8(b)4 of the Illinois Workers’ Compensation Act. While we note the Commission’s website provides a caveat indicating the statute takes precedence, we do not want our clients to have to set rates at different values and litigate this on a piecemeal basis at a high cost to possibly contradictory outcomes.

We note the relevant parts:

From July 1, 1977 and thereafter such maximum weekly compensation rate in death cases under Section 7, and permanent total disability cases under paragraph (f) or subparagraph 18 of paragraph (3) of this Section and for temporary total disability under paragraph (b) of this Section and for amputation of a member or enucleation of an eye under paragraph (e) of this Section shall be increased to 133-1/3% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

The website lists the rate as $1,243; however 133-1/3% of the State’s average weekly wage calculates to $1,229.93.

§8(b)4.1. Any provision herein to the contrary notwithstanding, the weekly compensation rate for compensation payments under subparagraph 18 of paragraph (e) of this Section and under paragraph (f) of this Section and under paragraph (a) of Section 7 and for amputation of a member or enucleation of an eye under paragraph (e) of this Section, shall in no event be less than 50% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

The website lists the rate as $466.13 however 50% of the State’s current average weekly wage calculates to $461.23.

Because numerous sources have requested clarification on this issue, we believe time is of the essence and would appreciate a reply or correction posting by April 1, 2010 to allow us to resolve the matter or request more formal resolution.

This letter was drafted by Shawn R. Biery, J.D. It will be forwarded to Chairman Masters and the other Commissioners on March 9, 2010. We will post any reply in a future Update.

Editor’s comment: Effective February 26, Commissioner Paul Rink and chief legal counsel Kathryn Kelley retired.

Commissioner Rink joined the Commission in 1991. He is widely regarded as a thoughtful and hard-working hearing officer. As a person who is blind, Paul rose to be one of the highest-ranking Illinois state employees with a disability, and he brought special insight to deliberations of whether an injured worker was capable of working.

Kathryn Kelley joined the Commission in 1981. Her vast knowledge about the Commission, quiet and careful attention to detail and methodical approach to legal issues were appreciated.

We agree the Commission was better for Paul Rink and Kathryn Kelley having served it. The partners and associates of Keefe, Campbell & Associates extend our best wishes to them in future pursuits.

Until a new commissioner is appointed, the Commission will make every effort to cover Commissioner Rink’s place during oral arguments and review calls with public commissioners. Currently, oral arguments will proceed as scheduled. If any schedule changes are necessary, they will be posted in advance on the Commission website.

As we reported last week, the chief counsel’s position has been posted at http://www.iwcc.il.gov/job.htm.

Editor’s comment: While this ruling isn’t a major change in Illinois WC law, we continue to cringe about what is happening in the work comp arena in our fair state.

In Szarek v. Illinois Workers’ Compensation Commission, (No. 3-08-0530WC October 29, 2009), claimant, an apprentice carpenter, was seriously injured after falling through a floor opening on a second floor of a house he was helping to build. His employer contended marijuana use, detected via urinalysis, was the proximate cause of fall. The decision indicates the employee was winding in a chalk line when he fell. Other than urinalysis, the majority ruled there was

- No evidence … he was so intoxicated he had abandoned his employment, nor
- Was marijuana use was sole cause of fall, and
- Witness statements establish employee was performing his job duties at time of accident.

The court did rule the Commission’s award of penalties and fees was reversed as any “reasonable person” could have concluded claimant might not be entitled to workers’ compensation benefits. We are confident this won’t alleviate the onus of paying lifetime medical and lost time benefits. We also point out this is the third reported decision in the last 12 months where our reviewing courts have awarded benefits to someone who admittedly and unquestionably committed a crime.

In our view, based on the evidence outlined in the ruling, this claim would have been compensable under traditional Illinois’ legal analyses but it was handled by one of the most misguided TPA’s of Illinois TPA’s. In our view, the TPA had their defense counsels do any number of unusual things in spending literally tens of thousands of dollars to lose this claim over the nine years it was unsuccessfully litigated. If you have claims involving intoxication or impairment and want real answers on effectively defending them, send a reply.

Please note this ruling continues to implement what we feel is a contradictory and paradoxical analysis of allowing substantial seven-figure workers’ comp benefits despite an injury under the undisputed influence of drugs or alcohol. One legal device to find such an injury compensable is indicated to be the claim the impaired miscreant did not “abandon employment.” We note this same legal concept was recently proposed in new legislation.

We ask the rhetorical question of how a worker can have a work injury if they have abandoned employment? If the worker abandoned employment while stoned or drunk, they aren’t on the job any more, correct? If they aren’t on the job, they can’t ever have a work injury so how does such language add anything to this analysis? It is our academic view the paradox doesn’t add anything to the compensability of such a situation and it guarantees benefits to any intoxicated or stoned worker who remains on the job after becoming drunk or stoned.

While we feel this case would have been compensable for a number of reasons including possible OSHA violations, we feel legislation is the best way to address workplace intoxication and impairment. Please also understand an impaired worker is a health and safety risk, not just to themselves but to all workers around him or her. We also urge all Illinois and U.S. employers to learn from this lesson and implement drug and alcohol-free workplace protocols. Please let us know your thoughts and comments.