Keefe, Campbell & Associates, LLC

Editor’s comment: At some point in December of each year for several decades, the IWCC posted a new PPD maximum rate. When that happened, the new and higher PPD maximum rate had to be retroactively implemented by claims handlers for claims occurring in the period backward to July of the applicable year and then for future claims until next July. This year nothing happened! The rates simply remained the same.

Well, inquiring minds need to know. Turns out the statewide average weekly wage (or SAWW) went down!! For the first time since the SAWW was implemented to make WC rates spiral up, one would have thought Illinois business would get rate relief in the workers’ comp arena. We learned from George Picha of Picha and Salisbury and KC&A’s own WC rate guru, Shawn R. Biery, the Commission did not change the existing maximum PPD rates since the SAWW actually decreased and also for the reason the Act does not contain a specific provision authorizing a corresponding decrease in the maximum rates.

The Commission’s own website says:

Every six months, the Illinois Department of Employment Security publishes the statewide average weekly wage (SAWW). The SAWW sets the maximum and minimum weekly benefit levels for workers’ compensation. To calculate the SAWW, total wages are divided by the total number of employees in the past six months. Some employees worked every day, and some worked only a few days, but all are counted together. (Federal workers and self-employed workers are excluded.)

Although every attempt is made to calculate the workers’ compensation rates in an accurate and reliable manner, only the Illinois statute governs. Where there is a disagreement between the statute and the IWCC’s calculations, the statute is correct.

*As provided in Section 8(b)4, there is no increase in the benefit rates for 1/15/10 – 7/14/10 because the SAWW decreased.

In a website we have saluted for years, we remain stunned to see they didn’t post their decision as web news or something of note.

We then understood there may be no need for a specific statutory provision authorizing the Commission to reduce the maximum rates since Section 8(b)4 mandates the maximum TTD rate “shall be increased to 133-1/3% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.” Section 8(b)4.1 further states: “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.”

If you do the math, by leaving the current maximum TTD rate at $1,243.00, that number would actually represent 134-3/4% of the current $922.45 SAWW and not 133-1/3% as the statute patently outlines. The current published minimum rate for death, PTD, amputation and enucleation cases would actually be 50.53% of the current SAWW and not 50%. We feel where the current maximum TTD rate applies our readers may want to consider paying $1,229.93 per week, and in Section 8(b)4.1 cases, $461.23 per week. Please note this recommendation may result in litigation to debate this statutory issue.

We have not researched the issue of computing the accurate maximum PPD rate, if the rate retroactive to 7/1/09 is based upon the $922.45 SAWW, there should be a proportionate decrease for the same reason. There is no question the maximum TTD and minimum rates for Section 8(b)4.1 cases are specifically tied to a stated percentage of the SAWW, a specific provision in the Act authorizing a decrease in the rate when the SAWW decreases is unnecessary and, in our view, should be presumed to be the law.

We need your thoughts on all of this. In order to push for a change favorable to Illinois business, we need to take this matter to the courts on what is called a writ of mandamus. A writ of mandamus can be used to have a court compel an administrative agency, such as the IWCC to act and follow the provisions of the law. In Illinois, one may petition the circuit courts for a writ of mandamus “to command a public official to perform some ministerial nondiscretionary duty in which the party seeking such relief has established a clear right to have it performed and a corresponding duty on the part of the official to act.” The authority of the respondent to comply with the writ must also be clear. Finally, Petitioner must show that a demand was made on the official concerned but he or she refused to comply. This is to make sure the officer in question has the option of performance before the court exacts compliance. Please remember the Illinois courts may follow the law and they may make it up as we go along.

So we are asking all of our readers, should we take this to the courts? Well, if we don’t, Illinois business is certain to continue to overpay benefits. And if the economy stays flat and the SAWW goes down even further, the gap will increase. We invite your thoughts and comments. We have made inquiries and the Illinois State Chamber may consider supporting these efforts if this is important to Illinois business.

Editor’s comment: We are happy about some of this stuff and scared of the rest of it—we don’t know what organized labor is cooking up to counter the business initiatives.

Like secrecy in hiring, we hate the secret “agreed bill” process and it appears to be rearing its ugly head yet again. We will never forget the public relations fiasco that led to passage of the 2005 Amendments to the Workers’ Comp Act that might have sounded great but have delivered very little effective savings to Illinois business. We are now advised by several reliable sources; the Governor convened a meeting recently of some employers and organized labor to discuss the agreed bill process involving potential changes to workers compensation law. This meeting led to a discussion of the process in general and several bills may be cooking out there.

Several measures potentially helpful to Illinois employers have been introduced. We add our thoughts at the end of each description in bold.

Workers’ Compensation Alcohol/Drugs HB 5721 (Zalewski-D-Chicago) provides no compensation is payable if an injury was caused “primarily” by the intoxication of the injured worker, to include the influence of alcohol or certain drugs not prescribed by a physician or the combined influence of alcohol and drugs that affected the worker to the extent that the intoxication constituted a departure from employment. We point out if there are no mandatory guidelines the Commission has to follow in enforcement; this bill isn’t worth the paper it is written on. We hate the legal concept of requiring denial of benefits for injury while intoxicated to necessitate a showing of “departure from employment” and consider the whole concept unenforceable and nonsensical.

Workers’ Compensation Workplace Prevailing Cause HB 6159 (Reis-R-Willow Hill) defines injury as an injury that has arisen out of and in the course of employment; provides that an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. Again, we point out that if this bill isn’t coupled with a provision similar to Missouri’s which requires strict adherence to the legislative intent, this bill is similarly not worth the paper it is written on because everyone will simply swim around it, like an ice cube in a hot swimming pool.

Workers’ Compensation Collective Bargaining SB 3829 (Link-D-Lake Bluff) provides an employer or group of employers and the representative of its employees may agree to establish binding obligations and procedures relating to workers’ compensation; provides the agreement must be limited to, but need not include an alternative dispute resolution system to supplement, modify, or replace the procedural or dispute resolution provisions of the Act. We point out this sort of legislation indicates the Commission should be reformed or not; why create a binding arbitration system and another binding arbitration system? If an employer “opts out” of the current system, do they get to keep the money they are required by law to pay for a system they won’t use?

Workers’ Compensation Objective Medical Standards SB 3830 (Brady-R-Bloomington) provides permanent partial or total disability shall be certified by a physician and demonstrated by use of medically defined objective measurements, that subjective complaints shall not be considered unless supported by and clearly related to objective measurements, and a specified publication shall be applied in determining the level of disability; provides that temporary total disability payments shall not exceed 104 weeks. In our view, this legislative concept is borrowed from other states and would be a very solid, sober and sweeping change to Illinois workers’ compensation law. Therefore, in our view, organized labor will fight it like crazy. Please note this is being sponsored by the leading Republican candidate for Governor! We feel it may have a strong chance of enactment if the political winds change as many feel they may during this coming election year.

Workers’ Compensation Fraud SB 3832 (Brady) provides the Workers’ Compensation Commission may recall a decision or settlement when fraud has been determined to be committed related to a case; provides the Commission shall implement a rule to establish a process for recalling a decision or settlement that is subject to recall due to fraud; provides the fraud and insurance non-compliance unit of the Department of Insurance shall employ one or more attorneys as special prosecutors. Again, this is a sweeping change proposed by the leading Republican candidate for Governor.

Workers’ Compensation Coverage HB 6266 (Rose-R-Mahomet) provides a subcontractor under contract to a general contractor may elect to be covered under any policy of workers’ compensation insurance insuring the contractor upon written agreement of the contractor, by filing written notice of the election on a form prescribed by the Workers’ Compensation Commission. This is a simple and solid idea.

If we put you in charge, what would you change about Illinois work comp law? Please reply with your thoughts and comments.

Editor’s comment: We are amazed to hear impossible-to-confirm rumors two Illinois Workers’ Compensation Commissioners are in the process of being replaced; most Commission regulars know which two Commissioners may be on the outs. In contrast, there is no indication anyone in the state who isn’t a political heavy has any idea who the replacements are but we are all being told they are already vetted and chosen and will be moving in when terms roll over. We will continue to report further news as received.

As we have said numerous times in the past, secrecy in this process is clearly counterproductive to the interests of what many Illinoisans call “democracy” or open government. We are not amazed but a little confused our current “reform” Governor would want the secrecy and insider dealings of the past to continue. We feel he is working to slowly crack open state government under the Freedom of Information Act and has made strides.

And by the way, we extend the criticisms of secrecy in this process to Illinois Republican and Democrat leaders alike. In many states, open positions like the medium-paying Commission posts are published on the web and open interviews are conducted of qualified candidates from all over the state and country. In contrast, the Illinois workers’ comp appointment process continues to seem like someone’s-cousin’s-brother’s-uncle got the nod. In the past, Republicans leaders have agreed to the same secrecy the Dems cherish. To anyone who likes all the secrecy on either side, please tell us how it has served the interests of Illinois business?

We also point out our understanding the job of staffing the Collinsville office of the IWCC after the retirement of the nice lady who used to work there took place very quietly and without that job being posted on the IWCC website.

So what happened this week? Well if you navigate to the Commission’s website at http://www.state.il.us/agency/iic/job.htm; you will learn they have posted a management position of Chief Legal Counsel on the web! As we indicate above, we hope this means someone may actually be opening up the hiring process a bit. We salute anyone and everyone responsible for this change. In the future, we hope what are supposed to actually be civil service jobs like Arbitrator might actually be posted on the IWCC website where the public would expect them to be posted and not on the relatively hidden and almost-impossible-to-navigate Central Management Services website. We will simply have to wait and see what happens.

Again, please don’t hesitate to reply with your thoughts and comments.

Editor’s comment: The Illinois Commission has posted new versions of the Request for Hearing (IC9) form also commonly known as the “stip sheet” along with five new arbitration decision forms

v Regular

v 19(b)

v 19(b-1)

v Fatal, and

v Nature and extent.

In addition, they have posted a list of boilerplate paragraphs that users can copy and paste into the order section of the decision.

The forms were revised by a forms committee of hearing officers, and the proposed changes were circulated among all arbitrators and commissioners. The committee standardized the forms, added text to reflect the fee schedule and other changes, added email fields and other updates. They are distributing the print version of the Request for Hearing form as soon possible. When the forms are delivered from the printer, they will distribute them to all offices and to Downstate arbitrators. Until then, you will only be able to obtain the form from their website.

When the Illinois Commission issues new forms, they allow six months from the revision date for parties to make the transition. After August 1, 2010, outdated forms may be returned to the filing party.

To download the new forms, go to http://www.iwcc.il.gov/forms.htm

Editor’s comment: The following debate is one reason we need watchdogs as solid as Keefe, Campbell & Associates partner Shawn Biery and George Picha of the Rockford firm of Picha and Salisbury in relation to our state officials. With all the other information posted on the excellent website of the Illinois Workers’ Compensation Commission, we have no idea why they wouldn’t fully disclose what they were doing with rates when the SAWW went down for the first time in recent memory. We don’t agree at all with the position they are taking and it is now incumbent on our readers to tell us your thoughts.

The Illinois Statewide Average Weekly Wage in Illinois went down from $932.25 to $922.45 in the January 15, 2010 changes. However, the calculated amount of the 133-1/3 of the SAWW remained at the previously level of $1,243.00 instead of lowering with the SAWW to the appropriate calculation of approximately $1,230.18. The IWCC website bluntly indicates “* As provided in Section 8(b)4, there is no increase in the benefit rates for 1/15/10 – 7/14/10 because the SAWW decreased.”

However, §8(b)6 of the Illinois Workers’ Compensation Act indicates “(t)he Department of Employment Security of the State shall on or before the first day of December, 1977, and on or before the first day of June, 1978, and on the first day of each December and June of each year thereafter, publish the State’s average weekly wage in covered industries under the Unemployment Insurance Act and the Illinois Workers’ Compensation Commission shall on the 15th day of January, 1978 and on the 15th day of July, 1978 and on the 15th day of each January and July of each year thereafter, post and publish the State’s average weekly wage in covered industries under the Unemployment Insurance Act as last determined and published by the Department of Employment Security. The amount when so posted and published shall be conclusive and shall be applicable as the basis of computation of compensation rates until the next posting and publication as aforesaid” (emphasis added).

Based upon the SAWW declining to a point under the January 15, 2009 rates, it appears only appropriate Illinois employers would receive the relief of a rollback to those rate maximums.

To illustrate further—there are multiple rates affected and by plain reading of the Act, the rates posted and promulgated by the IWCC directly controvert the plain language of the Act. §8(b)4 of the Illinois Workers’ Compensation Act says in relevant parts:

The maximum weekly compensation rate from July 1, 1975, except as hereinafter provided, shall be 100% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act, that being the wage that most closely approximates the State’s average weekly wage.

Effective July 1, 1987 and on July 1 of each year thereafter the maximum weekly compensation rate, except as hereinafter provided, shall be determined as follows: if during the preceding 12 month period there shall have been an increase in the State’s average weekly wage in covered industries under the Unemployment Insurance Act, the weekly compensation rate shall be proportionately increased by the same percentage as the percentage of increase in the State’s average weekly wage in covered industries under the Unemployment Insurance Act during such period.

The maximum weekly compensation rate, for the period January 1, 1981 through December 31, 1983, except as hereinafter provided, shall be 100% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act in effect on January 1, 1981. Effective January 1, 1984 and on January 1, of each year thereafter the maximum weekly compensation rate, except as hereinafter provided, shall be determined as follows: if during the preceding 12 month period there shall have been an increase in the State’s average weekly wage in covered industries under the Unemployment Insurance Act, the weekly compensation rate shall be proportionately increased by the same percentage as the percentage of increase in the State’s average weekly wage in covered industries under the Unemployment Insurance Act during such period.

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.

Wage Differential Maximum—For injuries occurring on or after February 1, 2006, the maximum weekly benefit under paragraph (d)1 of this Section shall be 100% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

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.

While it may not affect the majority of cases as it deals with maximum levels of benefits, we feel it illustrates an example of the IWCC actively presenting information which ignores the plain language of the Act to the detriment of Illinois employers. Assume we will see a change without notice as we saw in the stealth increase in the PPD maximum within the prior year’s changes. It doesn’t take a degree in economics to know that increased business costs are inversely proportional to job creation. This article was researched and written by Shawn R. Biery J.D. Please reply to Shawn with your thoughts and comments.

Editor’s comment: You may not recall but the Amendments started in full force on February 1, 2006. The sweeping changes brought forth in the 2005 Amendments to the Illinois Workers’ Compensation Act had a huge impact on our state’s workers’ compensation law and practice as we know it. Some of the changes were immediate and almost shocking but the full impact of many of the changes is still being felt. While researching the effects of this bill there were portions of it that our attorneys found could be read and interpreted in various conflicting ways and the Commission and courts continue to hash all of it out.

What happened was:

Doctors/medical caregivers providing care to workers comp claimants had to deal with a medical fee schedule for the first time in our history. In exchange, they were to get quicker payment protocols and interest on unpaid bills. We are pretty sure doctors liked the old system more but have grudgingly adapted. We do feel the medical fee schedule has been something of a success and has not resulted in doctors refusing workers’ comp patients. We do consider the surgical “implant” issue to remain an embarrassment that has to be addressed.

Other than medical benefits under the fee schedule, all other workers’ comp benefits went up in numerous and subtle ways—we feel the medical fee savings were wildly overmatched by the increased rates and new TPD and PPD benefits.

Workers’ comp fraud was introduced by our former Governor-waiting-trial almost by mistake and has gone just about nowhere, as our states’ attorneys across the state ignored the pleas of business to take action when clear fraud was present. While we salute the folks at IDFPR for their hard work investigating fraud, we simply don’t see any real impact.

Many of the new changes thought to be beneficial to the businesses and government bodies of Illinois were unclear in how they were to be applied. The jury remains out on utilization review that has not caught on—at the last training session for Illinois arbitrators, it is our understanding UR was given a rousing “thumbs down.” We truly don’t feel this will change until the Commission itself changes, if the election in the fall goes red and not blue.

As we indicate above, in exchange for the medical fee schedule, Illinois labor got a huge increase in various rates, with disability schedule increases and minimum TTD/PPD calculations. We are certain increased benefits encouraged claims of astronomically higher exposure. We truly feel Illinois business now needs caps on skyrocketing reserves for wage loss differential claims, total and permanent disability and death claims that arose from these Amendments. For example, we were listed dead last in 40 states recently surveyed for U.S. workers’ comp costs and outcomes.

Along with the 2005 Amendments to the Act, we saw judicial rulings that we feel increase the overall cost and expense of workers’ comp in our state. We are asking all of our readers for their thoughts on reform—if we put you in charge of Illinois workers’ comp, what would you do different? Please reply with your thoughts and comments.

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

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

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

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

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

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

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

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

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

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

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

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

So for example, if you have

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

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

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

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

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

Finally, you need to know about Grabs, et. als. v. Safeway, Inc. and Dominick’s Finer Foods, LLC. In their ruling, the Illinois Appellate Court addressed a certified question on an interlocutory appeal on this narrow issue of alleged retaliatory discharge. Plaintiffs filed a joint complaint alleging Defendant terminated them in retaliation for filing workers’ compensation claims. Defendant responded to assert Plaintiffs had been terminated for violating a neutral attendance policy when they missed three consecutive days of work subsequent to being advised to return to work pursuant the opinions given by Defendant’s IME. A battle over the IME and ability of the employer to rely on the IME to terminate the workers went back and forth.

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

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

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

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

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

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

2007 All Illinois Arbitrators

Category                                  Highest Amount           Lowest Amount           Average

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

# of Awards                               240                               38                                 110

# of Dismissals                          278                               89                                 205

# of days to issue an award        163                               15                                 49

% of late awards                        88%                              0%                               28%

% of cases appealed                  70%                              25%                              49%

% of appeals affirmed                 100%                            29%                              68%

% of appeals reversed                16%                              0%                               7%

% of appeals modified up            30%                              0%                               14%

% of appeals modified down        43%                              0%                               10%

2008 Chicago Arbitrators only

Category                                  Highest Amount            Lowest Amount           Average

Number of Settlements               1586                             1074                             1267

# of Awards                               107                               68                                 89

# of days to issue an award        72                                 13                                 46

% of late awards                        78%                              0%                               27%

% of cases appealed                  62%                              39%                              49%

% of appeals affirmed                 82%                              48%                              62%

% of appeals reversed                19%                              0%                               7%

% of appeals modified up            26%                              4%                               17%

% of appeals modified down        26%                              0%                               13%

2008 Downstate Arbitrators only

Category                                  Highest Amount         Lowest Amount            Average

# of Settlements                        2,272                            988                               1,715

# of Awards                               268                               52                                 128

# of days to issue an award        93                                 16                                 39

% of late awards                        77%                              0%                               18%

% of cases appealed                  66%                              28%                              50%

% of appeals affirmed                 90%                              41%                              67%

% of appeals reversed                20%                              0%                               8%

% of appeals modified up            24%                              0%                               11%

% of appeals modified down        25%                              3%                               14%

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

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

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

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

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

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

Editor’s comment: We note on the IWCC website they have announced a group is going to review and possibly amend the Rules Governing Practice before the Commission. A blue-ribbon panel has been created for this purpose composed of petitioner attorneys, defense attorneys, Arbitrators and Commissioners. We view such changes with the same dread that we viewed the failed effort to “reform” the Workers’ Compensation Act in 2004 and the tortured amendments that were passed by the Illinois legislature and put into law when signed by our former Governor-awaiting-trial during the fall of 2005.

Many of the group who contributed to the 2005 WC Act Amendments are back in the fold for this effort. Once rules revisions are formalized, they will be voted upon by the Commission, as a body. The proposed rules will then proceed through the formal rulemaking process during which the public will have opportunity to review and comment.

We will report progress as information is received that is fit to print—sometimes you don’t want to watch as sauerkraut is being made! If you have thoughts and comments about needed changes to the rules, please reply or post them on our blog at www.keefe-law.com/blog and we will pass them along.

Editor’s comment: As many business observers are aware, beginning in 2005, Illinois has a wildly hefty penalty for any company that does business in Illinois and doesn’t have workers’ compensation insurance. The minimum penalty is $10,000 and the fines can be $500 for every day a company is in operation without coverage. If you do the math, a company that doesn’t have coverage for a year can readily be fined enough money to force it to be quickly disbanded or bankrupted. In this rotten economy, hundreds of WC insurance coverage complaints are now pending against businesses all over the state.

In the situation of small or start-up businesses, the cost of workers’ compensation coverage can be a determining factor in corporate viability, representing a hefty anti-business penalty as the Illinois workers’ compensation system now imposes can be a death knell. As we tell all of our readers and everyone who will listen, Illinois WC needs to be made more business-friendly if business and jobs are going to survive and grow in this state. We are not only concerned about the anti-business penalties, we are deeply concerned about the spiraling cost that gave rise to them—Illinois’ workers’ compensation insurance premiums that have to be among the highest in the U.S.

We were advised these punitive anti-business insurance coverage penalties made it to the desk of an unknown legislator. The legislator probably found out what we have known since 2005—any Illinois business that made even an innocent mistake on insurance coverage can still be locked into a potential bind from which they may never recover. Some of the folks at the Commission don’t care if they “kill” such businesses—the mindset is force WC insurance coverage or get out. Obviously, the legislator may have wanted to create some quiet leeway or gap in the rules for the “right” people. We consider it a shame he or she didn’t get to the root of the problem—wildly high WC premiums. We will leave that issue for a later date.

Our sources indicate the legislator supposedly put in a call to the secret-powers-that-be who run the Illinois Commission. The word went out to the Commission staff involved to cut the lack-of-coverage penalties to more bearable levels in selected situations. The internal grapevine at the Commission advised us the former Manager of Insurance Compliance responded to the call to cut the penalties with a simple response—the statute doesn’t allow it. We have been advised this former Manager who is a licensed Illinois attorney and was a former Assistant States’ Attorney in Cook County clearly indicated she swore an oath to enforce the laws and Illinois Constitution and would continue to follow that oath. We are advised she was then told to do what she was being asked or hit the highway. Welcome to Illinois!

Commission observers can now look at the IWCC’s website and note someone has been quietly appointed a new Acting Manager of Insurance Compliance in our state. We again ask all of our readers if this is a solid way to run the joint—should things like this be kept on the QT? Should there be open meetings where the so-called “Commission” considers and votes on such issues and policies? Does everyone at the IWCC owe their jobs to the secret-powers-that-be who wield all-encompassing political power?

Our answer is consider reform, Illinois. The next statewide election is 351 days away, folks. If we are going to do something, it is going to happen between now and then. We will keep you posted if we see any candidate on either side of the political parties who is willing to work hard to open up the political labyrinth that is the Commission and bring Illinois back into the middle of the fold on WC costs—we consider it a gargantuan task. Please let us know if you have thoughts and comments on the process. Please also do not hesitate to put such thoughts on our award-winning blog at www.keefe-law.com/blog