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: It is getting to be time to put up or shut up, Illinois business. The former Governor-out-on-bond goes to trial on June 3, 2010, not even six weeks from now. Illinois voters are sure to see one of the tawdriest trials of all federal criminal trials of a public official in Illinois history. And the trials and tribulations of this former deal-maker may continue right up to the November statewide election. In our experience, most times when lots of voters see a leading public official go down, they are likely to vote for reform from the other side of the political matrix.

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

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

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

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

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

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

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

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

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

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

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

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

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

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: 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: Taking you back down memory lane, we recall the first Chairman appointed by our current Governor-out-on-bond, supported a change to the funding of the later renamed Illinois Workers’ Compensation Commission. It was the new Chairman’s goal to follow the model of the State of Missouri and a number of other states to move the Commission out of being funded by the General Revenue Fund for our state and into a new anti-business insurance and payroll surcharge which didn’t require him to go to the legislature and the Governor to make the changes he wanted to make at the Commission. We assure you some of the changes he wanted were to double or triple the number of Arbitrators, bring in or “appoint” any number of Plaintiff/Petitioner attorneys to serve in his image and likeness and more than double the budget of the Commission.

What he got was the Illinois Industrial Commission Operations Fund Surcharge. This was supported the Democrat House, Senate and Governor because they were then free to spend the monies they used to have to spend for the Commission on other fun stuff. In our view, the problems were two-fold.

Illinois business now had to fully fund the Plaintiff/Petitioner-oriented Commission to provide new laws and rules to be administered by folks beholden to Illinois labor;

The monies were used to basically increase workers’ compensation costs in this state to the stratospheric levels they have currently reached;

The surcharge added a new anti-business fee which would more than exponentially increase the budget of the Commission.

On April 22, 2004, the Illinois State Chamber of Commerce filed suit against the State of Illinois boldly challenging the newly imposed fees created by then-Governor Blagojevich’s new Industrial Commission Operations Fund Surcharge. The complaint alleged the statute imposed a surcharge on employers’ and workers’ compensation carriers intended to generate $31-million to fund the operations of the Industrial Commission, even though the actual budget for the Industrial Commission was dramatically lower. The complaint alleged the fees were unconstitutional and improper. The fee imposed the total cost of workers’ compensation administration and adjudication solely on Illinois employers. Most important, the bill over-funded the Industrial Commission for no particular reason.

In November 2004, Circuit Court Judge Patrick McGann declared unconstitutional the Industrial Commission Operation Fund Surcharge. That ruling called into question hundreds of business fees the state enacted or increased at the time. McGann ruled the surcharge created an arbitrary class of taxpayer and violated a provision of the state constitution that requires all new fees to operate like existing fees, which raise only enough money to cover specific activities. In the case of the workers compensation insurance surcharge, the fee ostensibly was to pay the cost of operating then-named Illinois Industrial Commission.

McGann ruled the surcharge had no “reasonable relation” to the cost. He noted in his ruling the workers compensation surcharge brought in $31 million and $22 million of it was not going to the Commission but to the state’s general fund. “The surplus resulting from this fee increase was clearly anticipated,” McGann wrote in his ruling. He added, “This is clearly beyond the role of fees in the financing of governmental operations.”

The Illinois Supreme Court later ruled McGann correctly refused the state’s request to dismiss the case, but added he had acted prematurely in ruling for the State Chamber and sought more factual findings. State Chamber President Doug Whitley was furious to see our highest court not simply note the State agreed with all the allegations and affirm the ruling. The litigation then ran on for five-six more years.

At present, the parties have reached a class action settlement. Your organization may be able to get monies back. Preliminary approval for settlement of the lawsuit has been provided by the Circuit Court of Cook County. The sum of $3,300,000 which now resides in a Protest Fund will be placed in a claim fund to be distributed to class members who can support their claim for repayment. The support for claim can be made with documentation of cancelled 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 method to make a claim is currently proposed to be with either mailing a claim form to the Administrator Robert Langendorf or emailing the Administrator at robert.langendorf@gmail.com.

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 IWCC-Chamber preliminary settlement agreement and the preliminary approval order can be found on the web at IWCC-Chamber settlement preliminary approval ORDER.

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.

This article was researched and written by Shawn R. Biery, J.D. You can direct any questions, get help to handle or receive a claim form and/or claim form worksheet with reply to Shawn at sbiery@keefe-law.com.

Editor’s comment: We try to tell our readers the problems with Illinois’ workers’ compensation system is a byproduct of the overall bias in the courts in dealing with the personal injury system. We like to call the workers’ comp system the “red-headed step-child” of the larger personal injury system because Illinois personal-injury Plaintiff attorneys make millions each year while their workers’ comp counterparts make hundreds of thousands. But make no mistake about it; the personal injury plaintiff millionaires unquestionably impact the workers’ comp system.

Why is the composition of the courts so important? Well, they are making it so—in the past; our Illinois Supreme Court in particular looked at workers’ comp as a large piece of smelly limburger cheese. In the ‘80’s, they created a rule that allowed them to avoid hearing WC appeals unless they wanted to. The justices basically dumped it all on the Appellate Court below. Thereafter, the high court justices wouldn’t handle WC with a ten-foot pole. In the last five-ten years, it appears there are true zealots and liberals on our highest Court who seem to want to reform or re-make the whole workers’ comp process into a hotly liberal image and likeness.

Along with their direct impact, it is our understanding the Supreme Court indirectly affects the outcome because they handle the selection of the appellate justices who make up the Workers’ Compensation Division of Appellate Court. In the last several years, those current appellate justices have written a couple of solid defense opinions. In doing so, they were then forced to watch the Supreme Court accept certiorari and basically every defense opinion, other than Airborne Express, was reversed to insure WC benefits are provided early and often. We remain stunned to see the Supreme Court even consider a case so minor as Interstate Scaffolding which only had about $5,000.00 at stake. Legal scholars now feel the ratio of Plaintiff rulings to defense rulings in the reviewing courts in workers’ compensation are running at about 40 or 50-1. Almost all legal defenses are being stripped away by the Illinois courts and no one on in the Illinois defense bar is recommending any appeals because the system is so apparently biased.

For example:

v The statute of limitations in Illinois WC was effectively ended by the ruling in Durand.

v In Cassens Transport, the reviewing courts ruled a claimant getting wage differential benefits could continue to do so even if their post-award income doubled or tripled.

v In Twice Over Clean, our Supreme Court ruled a heart attack that might have happened while a claimant was brushing his teeth was compensable in Illinois.

v In Interstate Scaffolding, the fact claimant committed what might have been a crime while on light duty did not block renewed payment of TTD after he was fired for misconduct.

Doug Whitley, the President of our Illinois State Chamber analyzed the February primary election last week in his recent missive to major Illinois business. He pointed out Illinois voters probably knew little or nothing about the 170 candidates seeking 45 contested judicial offices. He also indicated 170 sitting judges are eligible to seek voter approval for retention for another six or 10 years in their office. We learned there are four members of the Illinois Supreme Court that may be on the November ballot seeking voter approval to retain them on the bench for another ten years. Three of the four likely to seek retention collaborated right after the primary to strike down the medical malpractice caps. The three justices who are likely to ask November voters for another term are:

v Chief Justice Thomas Fitzgerald who wrote the opinion

v Justices Thomas Kilbride and

v Justice Charles Freeman.

Justices Fitzgerald and Freeman represent the First District and answer to the voters of Cook County. Justice Thomas Kilbride represents the Third District in the middle of the state. The fourth Justice eligible for retention this fall is Justice Bob Thomas of the Second District to the west of Chicago. Each Justice must receive approval of 60% of the voters casting ballots in their election in order to be returned to the highest court in the state.

The decision of four members to overturn the medical malpractice caps is almost certain to result in a simple reply from many doctors and specialists—CYA Illinois! If you aren’t sure, one of the reasons for the med mal caps was to get neurosurgeons and doctors who handled troubled pregnancies to return to our state. The sky-high insurance premiums previously pushed many of such practitioners to Missouri, Iowa and Indiana. Expect that migration to begin again. As we advised last week, anyone in Illinois with a closed head injury may soon have to be med-evac’d to St. Louis or Terre Haute—no doctor will touch such a patient to risk getting sued in Metro East by the rabid Plaintiff bar resident there.

As Doug Whitley indicated, this is exactly the kind of Supreme Court ruling that keeps Illinois at the top of the list of “Judicial Hellholes”. Trust us, that personal injury trend bleeds over into workers’ comp outcomes. So why are judges and justices so biased in this state?—well, it appears they are to some extent selected and certainly strongly financially supported by the Plaintiff bar.

Allen Adomite of the Illinois Civil Justice League notes the 20 appellate court candidates running for six spots have raised almost $2 million. He notes Illinois’ personal injury lawyers are legally and heavily funding campaigns with generous contributions, dropping tens of thousands of dollars on appellate court candidates Thomas Hogan and James R. Epstein in Cook County and Mary Schostok in the 2nd District Appellate Court. Another candidate, Mary Katherine Rochford (in Cook County), is partially self-funding with funds from her trial lawyer husband. Thousands of dollars have found their way from the checking accounts of asbestos lawyers, such as the Alton-based asbestos trial lawyer firm Simmons Cooper, to the campaign bank accounts of Hogan and Epstein. It’s 280 miles up Interstate Highway 55 from East Alton to Chicago, in case you were wondering. Partners at the trial lawyer firm of Cooney & Conway have given more than $70,000 to these campaigns. Trial lawyer Michael Schostok lent his wife’s campaign $108,000. His law partner Patrick Salvi contributed another $12,000. Clifford Law Offices recently chipped in $10,000 and Power Rogers & Smith donated $5,000. Schostok’s opponent, Donna Kelly, has raised $5,075 total.

What ends up happening is Illinois gets a judiciary that is very, very Plaintiff friendly. The sense of healthy balance and legal equilibrium from our Circuit, Appellate and Supreme Courts continues to disappear more and more as the years go on. The problem we feel with what is happening on all sides is a litigation-happy and labor-friendly state may become a state without jobs. We assure our readers the wildly liberal rulings in workers’ compensation are a strong deterrent to new jobs coming to Illinois and the creation of existing jobs from current Illinois employers. As we have told you in the past, we feel merit selection of judges and justices has to come to avoid the anomalies of elections run, in large part, based on generous donations of the Plaintiff bar.

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

Editor’s comment: In our view, Illinois is unquestionably the worst managed of all fifty of the United States. In beautiful Cook County, we clearly have the highest sales tax of all sales taxes in the country. Our local real estate and state income taxes are already staggering and certain to spike, as government spending spirals.

Despite record-level tax loads next year, the State of Illinois is expected to have a budget deficit equivalent to 20% of the approximately $60 billion dollar budget. Illinois will owe $12,000,000,000.00 that we don’t have and won’t collect in taxes or fees. Right now, about $5 billion in state bills remain unpaid and are well overdue. Whoever gets the Governor’s job is going to have a herculean task in front of them. Assume it may be almost impossible for that person to do what needs to be done and remain popular to anyone but his dog.

Over the last fifty years, Illinois voters have shown abysmally bad judgment when voting. We elected four Governors who went to jail for one thing or another. One former Governor who is in jail right now, admitted to some of the blame for not properly licensing truckers and had a trucker who never got a real CDL improperly tie down an angle iron causing it to fly under a minivan full of kids—in the resulting fire, a number of little children were tragically burned to death.

The fifth potential felon to be elected by Illinois voters to our Governor’s mansion is currently out on bond and continues to insist on making a complete fool of himself in the media. This past week, we read the new indictment filed by the U.S. Attorney for the Northern District of Illinois—the purpose of the modified indictment was to avoid a U.S. Supreme Court ruling that may technically end some of the federal laws this former Governor was charged with and supplanted them with new charges of bribery and extortion. If you read the new indictment online, you may note the worst of his federal charges clearly have to be the allegations he sought to extort money from a children’s hospital that saves the lives of hundreds of little babies every year.

The recent state primary election has to be the stuff of a Saturday Night Live® comedy script. It is our understanding the Democratic Party candidate chosen for Lieutenant Governor admitted to scandal after scandal in his past. His background and training for the political post was being a successful pawnbroker and having several million to invest in his campaign. It is almost impossible to imagine the voters had done any research on him and simply liked his name. He has now withdrawn and isn’t supposed to recover the millions he spent to get the nod.

We also strongly support merit-selection of judges and justices of the reviewing courts and not leave that process to apathetic, disinterested and confused voters. Elections and voting for judges is tantamount to buying judicial opinions for those who understand our political structure. It is comical to consider our Illinois Supreme Court waited until two days after the primary and struck down the medical malpractice caps designed to keep doctors in our state. If you regularly read this Update, you understand it is our reasoned view the Illinois Trial Lawyers Ass’n strongly supports the candidates for the Supreme Court who may concomitantly support the policies and goals of ITLA. Right now, ITLA doesn’t want malpractice caps and, for the third time, they got them knocked out by our highest Court. Please assume all neurosurgeons south of Springfield will again move to Missouri. This may result in no one being able to treat a closed head injury in the bottom-half of Illinois—all such patients will all be med-evac’d to St. Louis or Terre Haute.

The only way the Illinois State Medical Ass’n can trump ITLA is to have Illinois doctors start to regularly pony up more cash to get new justices who might find malpractice caps to be constitutional. We don’t feel that is the way judicial rulings should occur but, as a wise man once said, “you can’t take the politics out of politics.” We can if we would go to merit selection and de-politicize the selection of judges and justices.

Going back to government, it is clear to us that we need a city manager-type of government at all levels. If you need more information on how it works, send a reply. We truly feel Illinois would be much better off with professional managers who have no stake in raising money as part of the government decision-making process. And we truly feel the Governor and legislature should simply provide direction and set policy for the professional managers. We feel politicians who are mostly lawyers can’t and shouldn’t try to run budgets in the range of $60 billion dollars.

The reasons we don’t feel voters can ever do a solid job is patently clear in several spheres:

No one is voting and apathy is at an all time high.

Voters are basically giving up the antique concept—less than 1 in 5 eligible voters voted in this month’s primary;

The folks who are voting and simply going by what they see and hear with very little knowledgeable research;

With all the monster input of the Internet Age, it is truly demanding to have to research literally hundreds of legislative and judicial candidates and concomitant issues.

How does workers’ comp point in this direction? Here are just a couple of the anomalies.

First, Doug Whitley, the president of the Illinois State Chamber and one of the sharpest folks in our state wrote a brilliant analysis of how Illinois can dig out of the monster budget hole we have put ourselves in. One of his biggest issues is the wildly generous state pensions that wait for all state workers at the end of any reasonable tenure in government. What Doug may not know is workers’ comp provides hundreds of retired state workers with what is effectively a “double-pension!!”

If an Illinois state worker is adjudicated totally and permanently disabled or entitled to wage loss differential benefits and also gets an Illinois state pension, they get to keep both without any offset. The current cost of this benefit to eligible claimants is well into the millions. If you don’t understand what this means, state workers who qualify for both receive more money from the two pensions than they could have possibly received while working—the state pension is about 60% of the highest wage at the end of their career. The combined total and permanent disability award is 66-2/3s of their average weekly wage on a tax-free basis for life! The Workers’ Compensation Commission is now rabidly focused on insuring such workers always get COLA increases. In total, such workers receive about 123-2/3% of their highest income while employed by the state. All of the money comes from Illinois taxpayers. All Illinois would have to do to end this craziness is input an offset so state workers don’t get both. We are confident it will be a long time before anyone even understands this largesse, much less acts to end it.

Second, another facet of Illinois State, Cook County and City of Chicago government is all three governments run workers’ comp programs that are routinely penalized and/or claimant attorneys are awarded their attorney’s fees for bad or clearly incompetent management of workers’ compensation benefits by the applicable government claims handlers. We consider this a scandal which remains under the radar of the various news media—it simply isn’t a racy enough topic but try to imagine how nutty and incongruous it is for an Illinois arbitrator who works for the state issuing an award penalizing a different state agency for their incompetence. All of the money comes from taxpayers; all of the additional benefits go to injured state workers. We truly feel workers’ compensation claims and legal handling of all state, county and local government bodies should be competitively outsourced for bid and the parties getting the work have to be responsible to the voters for their mistakes. Our only problem is nothing in Illinois politics is every competitively bid—someone’s-brother’s-cousin’s-uncle always seems to get the nod.

Third, there is another anomaly that would make any business or claims manager laugh—the City of Chicago and State of Illinois retain outside defense counsels to represent them in the defense of some of their workers’ comp claims. We assert no one on the planet can tell an innocent bystander how to get picked to represent the City of Chicago in handling such claims—we have asked both major Chicago newspapers to investigate and they both gave up. We are told there is a fat guy who is the gatekeeper for a well-known Chicago alderman. If you start to pony up lots of cash to the alderman, you may be considered for the work in a couple of years. There are no guarantees.

On the state side, there is a state medical institution that outsources their WC defense work. The law firm that gets the work in northern Illinois has one defense client—they are a very successful Plaintiff personal injury firm. The partner who gets the work had a relative, an uncle or father-in-law in the right office in Illinois state government. When that relative recently left state government, we made inquiries to see if the work might be coming up for bid. We were told there had to be an RFP and it would be considered to be let in 2012 or 2013. Sure. We have never seen a prior RFP for such work and have no idea what magical event might occur for the work to again become a subject of open bidding.

All in all, we truly feel there needs to be substantial changes at all levels of government in this state. Gosh only knows if we have the guts and the brains to do so. Please let us know your thoughts or post them on our award-winning blog.

Editor’s comment: We recently read the jobs pitch from the Illinois State Chamber of Commerce in their emails and on their website. Their focus is to support for the U.S. Chamber of Commerce’s Campaign for Free Enterprise. This new national effort, called American Free Enterprise. Dream Big is a comprehensive, multiyear campaign to raise awareness among all Americans about the essential role that free enterprise plays in the success of our country. The announcement comes on the heels of the U.S. Labor Department’s announcement of unemployment exceeding 10%, a number that hasn’t been reached in over two and one-half decades. State Chamber president Doug Whitley and his team are trying to get Illinois to create 670,000 new jobs in Illinois in the next ten years. We continue to support the State Chamber and urge all of our readers to consider joining the organization that is most effective at pointing the way toward improving the climate and culture for Illinois business.

However, despite their strident efforts, we will be amazed to see new jobs come to our fair state in its present configuration. There are a number of reasons but the most glaring is Illinois is the epicenter of truly bad government. The Democratic Party that is now in control at every level appears to be trying to shoot themselves in the foot in the worst possible way. As you read this, the Chicago Sun-Times points out Mayor Richard M. Daley in Chicago is spending at least $300 million each year more than he collects in taxes—he has already sold the Chicago Skyway and the city’s parking meter income for the next 75 years to make up the difference and is looking for more assets to fire-sell. Cook County Board Chairman Todd Stroger is fighting like a wet cat to keep sales taxes for his taxpayers the highest in the country (and possibly the highest retail sales tax on the globe) and despite the painful tax bite, he is still running his government at a deficit.

Now we learn our Governor is secretly letting convicted bad guys out of prison because he is out of money and someone thinks letting crooks and felons out early is a good method to cut costs! Please understand we feel Governor Quinn is a generally honest man and has lived his life as a political reformer. We truly feel his efforts to reform Illinois politics are being hamstrung by other Democrats who will not allow him to either cut spending or raise taxes. The “borrow-spenders” in the state Democratic party feel we won’t notice a budget deficit that will be well over $10 billion dollars annually. When you consider the whole state budget is about $50-60 billion, a deficit of that size is staggering.

Guess what—every one of those government bodies have hilariously poorly run workers’ comp programs. They won’t provide workers light duty which maximizes lost time and encourages over-treating. They won’t look for vendors who are honest and will fight to save them money—WC vendors are still selected the old-fashioned way; you have to donate heavily to the right politician’s war chest to get in. These governments won’t use WC surveillance to catch malingerers—they are worried they will catch someone’s brother’s-cousin’s-uncle’s-kid and cause embarrassment. Their WC litigation levels are off the chart—the State of Illinois has over 400 total and permanent disability claimants who are collecting over $7 million a year in WC benefits. If these workers are also eligible for a state pension, there is no offset for the WC benefits; they get both and receive a lot more money on the dole than they ever made working!

Finally, we always laugh to hear this state’s WC administration is penalized regularly and routinely by this state’s Workers’ Compensation Commission!!!! Wouldn’t you think the administrators in this state would fold these two groups together so they stop the silly and embarrassing practice of having one hand slapping the other to the wild benefit of state workers and their selected lawyers?? Not so fast, not so fast, that would make way too much sense! Welcome to Illinois, folks.

Yesterday, the Chicago Sun-Times and the Associated Press reported repeat drunk drivers, drug users and felons convicted of battery and weapons violations are serving less than three weeks’ total time behind bars under a secret change in policy by Illinois Gov. Pat Quinn’s prison system. They have analyzed records which show that since September more than 850 inmates have been released weeks and months earlier than they ordinarily would be. The Corrections Department is “saving money” by abandoning a policy that requires inmates to serve at least 61 days and awarding them discretionary good-conduct credit immediately upon entering prison. Following this policy, some prisoners have enough good-conduct days to qualify for release almost immediately or even before they’ve had a chance to demonstrate any conduct at all, good or bad. The inmates are kept at the Department’s prison processing centers and released after as few as 11 days. One of our readers indicated the fur will start to fly when one of these quick-releases kills someone while they should have been incarcerated.

The problem is finding viable alternatives and we are looking to the Republicans for someone who can figure out government has to live within its means, just like your household or ours. Our readers should know the statewide primary is in the first week of February 2010 or about six weeks away! At risk is just about every major job at most levels of government. We also want everyone to know a majority of the members of the Illinois Supreme Court will be running in the fall elections—it is possible Illinois voters could bring in new justices to our highest court who would not be quite so strongly concerned for the interests and generous donations of the Illinois Trial Lawyers Association who aggressively represent the very strong Plaintiff bar in this state.

One other timeline to watch is the trial of our former Governor that is currently set to start on June 3, 2010. We are advised he will not cop a plea and will risk the rest of his adult life on the chance a jury might vindicate him. Therefore, we will have to watch and wait to see if this potentially lengthy and “untidy” trial will show the inner workings of a state that so badly needs reform at every level. We are hoping the next Governor, Cook County Board President and some day, the Mayor of Chicago might actually be solid administrators who can live within our means and run their governments to encourage job growth.

Please do not hesitate to forward your thoughts and comments. Feel free to post them on our award-winning blog at www.keefe-law.com/blog.

Editor’s comment: 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

Editor’s comment: Three major things happened the last two weeks on the Illinois legal/political/jobs scene.

First, the statistics on the U.S. economy again showed Illinois now has double-digit unemployment and is losing jobs to our sister states by the thousands. The Illinois unemployment rate was 6.7 percent a year ago. The Midwest U.S. jobless rate comes with no help from Illinois, where unemployment rose to 10.5% — a 26-year high, according to figures from the Bureau of Labor Statistics released Wednesday. Our state lost about 14,200 jobs from August to September 2009, according to the Illinois Dept. of Employment Security. The Midwest region of the U.S. was hit hard during this recession by job losses in manufacturing. Let’s all hope we can pull hard at the oars to get out of this recession.

Second, current Illinois Governor Pat Quinn threw his hat into the ring and is now running for Governor in next year’s elections. Governor Quinn officially kicked off his campaign to keep his job Thursday with a statewide tour. The theme of that tour: Jobs and Growth for Illinois. “I’ve got three priorities: jobs, jobs, and jobs,” the Democrat told supporters in nine cities, including Herrin, West Frankfort and Mt. Vernon. He said he plans to create jobs by investing in public works, high speed internet and education. The plan also focuses on encouraging entrepreneurship, marketing Illinois overseas, and investing in renewable energy like biodiesel.

Third, not one, not two but four unanimous and overwhelming rulings from our Appellate Court, Workers’ Comp Division for Illinois labor. In our humble view, with a single exception of reversing penalties, every factual and legal nuance went toward the labor side. Our goal in writing this article is to let our readers on both sides of the matrix understand the workers’ compensation system in this state is the “Lead Egg” of job creation—every one of these rulings points Illinois business towards our borders and does not show a state that is the least bit friendly to the interests of business. We urge everyone, including the Commission and reviewing courts; start to bring Illinois to the middle of U.S. workers’ comp systems and away from the bottom of the job-creation barrel.

In Bassgar v. Illinois Workers’ Compensation Commission, (No. 3-08-0781WC Oct. 15, 2009), a truck driver refused a route and was fired on the spot. As he was leaving, he admittedly “waved” at his supervisor—the record doesn’t indicate the nature of the wave or whether he had a single digit out as part of the wave. Both the fired worker and supervisor ended up battling and rolling around on the dock like a pair of silly schoolboys. You guessed it—after an extended scuffle, the goofy worker ended up with a broken arm. Claimant was later convicted of criminal battery for his role in the fight.

To his credit, the Arbitrator ruled claimant and his supervisor’s job had nothing to do with rumbling on a dock and benefits were denied. The Commission followed Illinois’ amorphous fight rule to find claimant may not have “started” the fight and therefore gets full benefits to the tune of $35,065 plus interest. The unanimous Appellate Court affirmed. We have no idea why anyone agreed this individual was an employee-he had already been fired! We are also certain there is a human resources/benefits manager who viewed the outcome with the same relish Chicago Bears fans had for Chad Ocho-Macho-Cinco prancing in the end zone this past weekend.

We caution our readers to understand the Appellate Court followed Illinois law in their ruling. We assert this is one of those Illinois laws that need to be changed to make our state more job-friendly—no one should be “rewarded” for injuries suffered in a fight, particularly when they are convicted of a crime. The “non-aggressor-gets-full-benefits” rule isn’t in the Workers’ Comp Act or Rules. It was made up by the Courts and it should be eradicated by our judiciary at the earliest opportunity. We can see an award of medical benefits but why add lost time and permanency? We consider it ironic to see the third ruling below providing benefits to a recreational worker whose “job” was found to be recreation when the Arbitrator accurately ruled this driver’s job had nothing to do with fighting. We also consider it ironic in the fourth ruling below to see the Appellate Court telling everyone it is not up to them to change the rules on marijuana/cocaine in the workplace and Illinois business needs to take that issue to the legislature—in this case, they are clearly providing benefits based solely on “judicial legislation” because the rule the courts created and continue to apply isn’t in the Illinois WC statute or rules.

In Washington District 50 Schools v. Illinois Workers’ Compensation Commission, (No. 3-08-0923WC Oct. 15, 2009), the Court affirmed the Workers’ Compensation Commission that ruled a school teacher whose undisputed annual salary was $40,416.48 will have an “imputed” salary for workers’ comp purposes of $53,888.64. We consider the reasoning for this obvious windfall to be blurring—they took out the weeks from summer break in calculating the average weekly wage. In our view, an “annual wage” is an annual wage and not 9/12s of an annual wage. We wonder if a school teacher who took his/her annual pay in a single lump sum of $40K could claim they were paid 365 times $40K for workers’ comp purposes. The Commission and reviewing courts obviously are going to be buffeted with claims from everyone who takes what is commonly called a “vacation” and seek to have those days eliminated from the equation in calculating the AWW. Please note police and firefighters usually work 9-10 days a month or about 120 days a year—you can bet they are all going to claim their imputed income for workers’ comp purposes should be tripled.

In Elmhurst Park District v. Illinois Workers’ Compensation Commission, (No. 1-08-2289WC Oct. 6, 2009), the Appellate Court reviewed a claim for an employee of a fitness facility who fractured his leg in a Wally-ball game during his shift, after a co-worker had asked him to participate or they would not have enough players and paying customers were in the game. Noting Section 11 of the Act bars recovery for voluntary recreational activities unless the worker is “ordered or assigned” to participate, the Court ruled the injury arose out of and in course of employment. The members of the Court analyzed the job and found it was part of the employee’s “job” to participate in voluntary recreational activities and accommodate customers. We ask the simple question—was it a “voluntary recreational activity?” If the answer to that question is yes and in our view it was voluntary and not mandatory participation, the risk of the activity and injuries arising therefrom is supposed to be the employee’s and not the employer’s.

In Szarek v. Illinois Workers’ Compensation Commission, (No. 3-08-0530WC Oct. 20, 2009), the Appellate Court considered a claim where an apprentice carpenter was rendered a paraplegic after falling through a floor opening. There was no question the worker violated not one but two criminal laws to the extent he had both marijuana and cocaine in his system—last time we checked it was a violation of both state and federal law to “possess” either. The employer contended a high level of marijuana use detected via urinalysis was the proximate cause of fall. Again, the Court followed the judicial rule in Illinois workers’ compensation law which effectively requires evidence the worker was so intoxicated he/she has to have “abandoned employment” to lose the right to benefits. We consider this to be another rule that isn’t much of a rule—how can you get hurt at work if you have to be so intoxicated or stoned you can’t work? We also point out most unions don’t want workers to be on the job impaired because they may drop things on or otherwise injure innocent co-workers. As we indicate above, the Appellate Court pointed the employer to the legislature to remedy the judicially created rule allowing compensability. This worker will receive $23,184.20 per year for life—as of today, he has a 47.6 year life expectancy so the pay out, if he lives that long will be $1,103,567.90 plus medical bills.

If you start to notice everything in the Illinois workers’ compensation system seems to be slanted towards Illinois labor and giving everyone benefits at the highest conceivable level, please don’t shoot the messenger. We don’t see a positive effect on the job situation on this state until there are a few rulings that bring hope back to HR/benefits/safety managers in Illinois. To our readers who want all this kept quiet and out of the public light, we want you all to understand the public has a right to know and insurance premiums and self-insured reserves will clearly be affected by these sorts of rulings—we don’t control such things.

If you also notice not one but two of these claimants violated state and federal criminal laws and still will receive substantial benefits, you are correct. We wonder if there is a provision in Illinois law which does not allow a criminal to profit from the crime by receiving things like state mandated benefits. We appreciate your thoughts and comments on all these rulings.