Keefe, Campbell & Associates, LLC

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.

Editor’s comment: We have heard from a number of readers on both sides of the article we wrote last week about the state of our hapless State.

One reader pointed out the Governor has now sporadically ordered some but not all state employees to take 12 furlough days in 11 months. The Gov apparently wasn’t strong enough to take on Illinois’ unions that dodged the furlough bullet. This means workers who are not in a union are again being penalized for it and also not getting raises again. They are all upset and feel either all state employees have to take furlough days or none should. Along with some of the Arbitrators, most state workers feel the furloughs are wholly for public relations effect and are not going to make one bit of difference in this budget mess. They are certain the money will be deflected someplace else and again they are being unfairly penalized

On top of that, many state employees who are entitled to workers’ compensation benefits, particularly medical bills, are not being paid in a timely fashion due to the budget shortfall. We then get to watch the Illinois Workers’ Compensation Commission awarding millions in penalties and attorney’s fees against other state agencies for not paying their bills in a timely fashion!! We are told this new and rapidly spiraling issue is going to again place an extraordinary multi-million dollar burden on Illinois taxpayers. It is a new dirty secret among state administrators who don’t want the public to know.

On top of this sad news, we saw a recent article from one Illinois lobbying group talking about how we need to reform the Illinois Workers’ Compensation Act to require work to be the “primary cause” of a condition causing the need for WC benefits, like carpal tunnel syndrome. We assure all of our readers this restriction was enacted a couple of years ago in Missouri and they have noted dramatic savings from it.

The problem in Illinois returns the focus to the Arbitrators and Commissioners. We have difficulty believing such legislation would be aggressively enforced in our state. We caution all lobbying groups about reform and again quote the President of the Illinois State Chamber of Commerce, Doug Whitley—“sometimes you don’t have to change the thinking, you have to change the thinkers.” We feel reform would be instantaneous, once you allow the sensible and/or conservative thinkers at the arbitration level to believe they won’t be run out of town on a rail for being demonstrably moderate or middle-of-the-road. It would also help to have maybe one of the three Commission panels be similarly moderate and reasonable and not have all three panels dominated by the interests of Illinois labor.

As the primary elections approach next spring, and we assure our readers they will be upon us sooner rather than later, the lead lobbying group for workers’ compensation reform is the Illinois State Chamber. Please consider joining them in the fight to bring the Illinois workers’ compensation system back into the middle of the U.S. marketplace so Illinois is again a business-friendly environment. For information, go to their website at http://www.ilchamber.org/

Editor’s comment: We salute President-elect Barack Obama who won a tidy victory over his Republican challenger. We are also happy his party didn’t get a super-majority so both sides will remain engaged in the current crisis facing all of us.

We are certain Mr. Obama brings enormous intellect and drive to the Office of the President. We all trust he is up to the daunting task of righting the U.S. economy that may sink or swim before he gets sworn in on January 20. We are confident the need to carefully help the U.S. economy is his first and most abiding goal. It is our strong hope he defers the pro-union and anti-business laws that may be streaming onto his desk—U.S. business needs a break in every way and they don’t need the misnamed “Employee Free Choice Act” and other similar laws. And we agree strongly with one of our readers who hopes the government will follow the model of Franklin Roosevelt and start a “roads and bridges” program to put U.S. workers back to work in solid and reasonably paid jobs while improving our economy. We consider that concept strongly preferable to misspending way too much money in the continued military occupation of Arab lands the current administration insists on calling a “war.”

We agree strongly with mercurial stock picker Jim Cramer who points out “jobs trump everything” in economic stimulus packages. It doesn’t matter how low mortgage rates and gas prices drop; if you don’t have a job, you can’t afford to buy. With unemployment rates rising every day, we are watching Christmas retail sales to see if the economy gets a much-needed boost or slumps even further. Our vote for all human resources, insurance, risk and safety managers, if you have been waiting for the right time to make any major purchase, please buy American and buy now.

For those of us in the Illinois workers’ compensation and employment law industry, here are election results of note:

A. Democrat Pat Rogers defeated Republican Maureen H. Masterson-Pulia for the Fourth Subcircuit Schultz vacancy. While we hoped Arbitrator Pulia would be able to rise to the Circuit Court bench, we remain happy to have someone as sharp and as smart in her continuing role as an Arbitrator. We are confident she got the same short-end of the stick the larger legal community routinely hands veteran and capable workers’ compensation Arbitrators and lawyers. If you want to read her analysis of the topic, go to http://www.chicagotribune.com/news/opinion/letters/chi-081021judge_briefs,0,3369157.story.

B. Arbitrator Paula A. Gomora won her race to become a Judge of the Circuit Court for the 12th Judicial District in a more than 2-to-1 margin over Derek W. Ewanic. We understand Arbitrator Gomora is leaving the Commission before the end of November. We wish her all the best in her return to the bench.

C. In southern Illinois, risk and safety manager Dwight Kay lost his race against Jay Hoffman for the 112th District seat. We salute Dwight for his hard-fought efforts in trying to stem the tide in that part of Illinois.

D. Former IWCC chairman Dennis Ruth squeaked out a 100% victory for Circuit Court judge due to the absence of any opponent. We are confident any number of Commission folks are happy to see he will be working anywhere but at the Commission. We wish him all the best in his new challenge.

If you have thoughts and comments about the election, please send a reply.

Editor’s comment: Well, we again come to one of those defining events that is sure to affect the world of workers’ compensation in one way or the other. We are confident our readers are going to see two out of three good things happen tomorrow.

First, the current administration will be ending. While we are sure it will rile some of our readers, we have to admit we will never miss this interesting bunch currently inhabiting the White House and Washington, D.C. They have the lowest approval rating and the highest federal debt in the history of either concept. We aren’t alone in wishing them well while sending them off to the distant horizon. Please note this article from May 2000: http://archives.cnn.com/2000/ALLPOLITICS/stories/05/01/clinton.debt/. You will note U.S. debt was about $5.7 trillion when the current administration took office. In eight years, this country’s national debt is now $10.5 trillion or approximately $5 trillion higher! So when they claim they “held the line on taxes”, always remember they just printed more money and created massive debt for us to pay off in the future while they enjoy their government pensions.

We have also been amazed to see the current administration completely forget to plan, program, sketch, map out, diagram, arrange or prepare in any way for a successor. It is almost as if that concept was skipped. One would think if the members of the administration thought anything they did was the slightest bit important, they might want to see it survive to the next administration—instead; the polls are demonstrating we may have a “blue” president with an untouchable majority in both houses of Congress. It may be a generation before the “red” party gets back into power and lots of changes are going to be needed to resurrect their interests.

Second, the “blue” candidate may win, bringing a published author and brilliant orator to our highest office. It is our hope he will go a long way to end the infernal “victim mentality” in some communities because it is hard to be a victim and claim to be disenfranchised if your candidate is running the country. While we are confident this “blue” candidate will do everything in his wisdom and power to right the ship, we are also concerned when the folks who have donated to his giant war chest come to cash the checks they may think they get to write. Please note Illinoisans have already donated over $31 million to his campaign.

From the level of donations, we assure our readers the unions and trial lawyers are going to want lots of new laws, liberal/radical judges and increased benefits for their largesse. We are concerned the process of “tort deform,” and not reform, may be coming to a courtroom near you. While we don’t want to pre-judge, we also don’t see this candidate contributing to needed reforms that will help U.S. and Illinois businesses effectively compete and succeed in local and world markets. And to the extent U.S. workers’ compensation plaintiff lawyers quietly benefit from the millions donated by their partners, the big tort hotshots in the general liability system, we can expect workers’ comp to get more anti-business and less reasonable in both outcomes and secret legislative changes.

Third, and finally, the “red” candidate may win, bringing a maverick to Washington who may be able to rein in some of the special interests and pork projects. This senator is a highly decorated and distinguished war-hero who is a decent, honest and hard-working man who forecast the battles that have been waged during this long and arduous campaign that now is at an end. If he doesn’t win, we again feel his party will be headless and adrift in a sea run by the other side.

Please also note the very concept of “government” and politics are changing very rapidly. A number of very wealthy Illinois political insiders are facing federal indictments and trials. Political graft and job-buying are becoming dangerous things to do for those who prefer being out of prison. Some day, we hope this applies to the Illinois Workers’ Compensation Commission where supposedly “civil service” jobs still remain political plums. You may not know it but the Indiana Toll Roads and Chicago Skyway are no longer operated by the State of Indiana or City of Chicago. Midway Airport has been sold and O’Hare Airport may follow shortly. The Illinois Lottery is repeatedly on the block for the highest bidder. Major facets of government are being considered for privatization right now.

Could the Illinois Workers’ Compensation Commission be “out-sourced” and privatized? There is no reason why it couldn’t be—please remember the taxpayers don’t pay for it any longer; Illinois business pays the full cost but gets very little in return for their money. Will the IWCC be privatized? Well, there are major political objections and roadblocks, the biggest being the entrenched sources who have worked hard and long to have the place running in their image and likeness. As we have said in the past, Illinois business will get a say in running the Commission when they demand to do so and politically force that to occur.

Lots of different services that have traditionally been viewed as government-only may soon be sold by the respective governments for the upfront cash. The main reason is the power that comes from having the rights to broker the jobs, equipment and vendors may be disappearing. Once government services and equipment are sold, the jobs and workers are privatized and won’t be going back to the public sector. We predict this trend will grow and continue. Please expect the political landscape will continue to morph with it.

However the election turns out, we are sure it will herald a new kind of democracy and even newer election techniques that are going to be watched and copied for years to come. Please give us your thoughts and comments on the election. Whatever you do, please be sure to vote!!

Editor’s comment: Many indicators point to a “blue” President. However you feel about it, please get out and vote. Early voting started today!!

If the pollsters are right, we are confident the current darling of the Democrats will provide support to their quiet friends, the American plaintiff bar and U.S. unions. You can bet the tort reform movement is going to be fighting an uphill battle the entire time when and if the Democrats wear the mantle of power. One clear demonstration of how this may unfold is an unusually named bill called the Employee Free Choice Act (EFCA) now working its way thru Congress. If passed by the Congress, we are advised the bill would be signed into law by the Democratic candidate, should he be elected President.

The proposed legislation would overturn a 43-year-old system in which union representation elections are conducted via a federally overseen secret ballot process, and replace it with a less formal “card check” procedure where the rules are enforced not by an unbiased federal representative, but by decidedly partisan union organizers. Instead of having employees vote secretly to join a union or not, the employees would be bullied, bluffed or pressured into signing a card—when enough cards are signed, the union will be in.

This new legislation would disenfranchise 105 million American workers. Please note all employees don’t have to actually vote, the “pollsters” simply have to get enough cards to indicate a majority want a union and the rest of the votes are rendered superfluous. Workers would never have the option of voting against union membership and millions of workers could be forced into a union without ever getting the chance to vote on the matter. Without secret ballots, union organizers know exactly who has signed union cards and who has not. In the past, union organizers have repeatedly approached and pressured—and, in some cases, threatened—reluctant workers. They have also used pro-union co-workers to solicit signatures, putting peer pressure on “holdouts” to change their minds.

The card-check process also denies workers the right to vote “yes” or “no” on joining a union. Workers can only vote “yes” by signing the card. Not signing a card simply means “not yet.” Organizers are free to return again and again until they get the result they want. That is not ‘voting,’ which by definition is a one-time choice between two or more options. In essence, this legislation is designed to do one thing and one thing only–to make it easier for labor unions to shore up their shrinking membership rolls by openly or clandestinely pressuring potential members.

We feel there is nothing about this bill that is good for American business or anyone in the United States. We are perplexed by the name of this bill. How in the world can something that actually reduces freedom and eviscerates a fair process be known as “employee free choice?” Isn’t it an oxymoron to see the “Democrats” support something so arguably undemocratic?

Please remember, if you like complex and ever-changing legislation like FMLA, ADAAA and EFCA, get ready for a fun four years. We are confident the minds behind such legislation have lots of other zany ideas for all of us. Please feel free to reply or comment on this new legislation.

Editor’s Comment: We didn’t think new Chairman Gerry Jutila would be very active but there is lots of new stuff. One of the best things may be reining in the gaps in the Illinois medical fee schedule.

First, the 2009 Arbitration calendar has been posted with lots of Arbitrator reassignments included. It is our understanding there is a push to limit mileage expense among the Arbitrators. We applaud that effort. The 2009 arbitration calendar is on the web at http://www.iwcc.il.gov/calendars.htm.

As Chairman Jutila will not longer be handling claims, Arbitrator Bob Lammie will handle Arbitrator/Chairman-designee Jutila’s cases for the rest of 2008; in 2009, Arbitrator Greg Dollison will take over Chairman Jutila’s call. At that time, Arbitrator Lammie will return to handling pro se settlements, status calls, and vacation trial dockets.

The following Arbitrator assignment changes take effect January 1, 2009:

• Arbitrator Peter Akemann will handle 3/4th of Rockford cases;
• Arbitrator George Andros will handle DeKalb, 1/4th of Rockford cases, and 1/4th of Waukegan cases;
• Arbitrator John Dibble will handle Whittington/Herrin;
• Arbitrator Anthony Erbacci will handle 1/3rd of Wheaton cases and Woodstock;
• Arbitrator Bob Falcioni will handle 2/3rd of Joliet cases;
• Arbitrator JoAnn Fratianni will handle 3/4th of Waukegan cases;
• Arbitrator James Giordano will handle Kankakee and Ottawa;
• Arbitrator Leo Hennessy will handle 1/4th of Geneva cases and 1/3rd of Joliet cases;
• Arbitrator Doug Holland will handle Clinton, Danville, Galesburg, Rock Falls, and Rock Island;
• Arbitrator Jackie Kinnaman will handle 3/4th of Geneva cases;
• Arbitrator Steve Mathis will handle Peoria;
• Arbitrator Andy Nalefski will handle Collinsville and Lawrenceville;
• Arbitrator Neva Neal will handle Carlinville, Decatur, and Urbana;
• Arbitrator Peter O’Malley will handle 2/3rd of Wheaton cases;
• Arbitrator Jennifer Teague will handle Belleville and Mt. Vernon;
• Arbitrator Jeff Tobin will handle Jacksonville, Quincy, and Springfield;
• Arbitrator Ruth White will handle Bloomington and Mattoon.

The Carlyle and Taylorville hearing sites have been eliminated and cases are being reassigned to nearby hearing sites.

Commissioners Dauphin and Rink will switch panels on January 1, 2009. Commissioner Rink will be assigned to Panel B and Commissioner Dauphin to Panel A.

Fee schedule gaps may be closed: On September 26, 2008, the Commission met and voted to adopt and submit the proposed changes to the fee schedule first voted on at the February 21, 2008 meeting. These changes create fee schedules for the following areas: ambulatory surgical treatment centers; hospital outpatient radiology, pathology and laboratory, physical medicine and rehabilitation services; hospital outpatient surgical facility services; and rehabilitation hospitals. The hated “76%” charge for these services may be ended. To view the proposed rules fees, instructions & guidelines, etc., go to

http://www.iwcc.il.gov/news.htm#fs. Please note the rules are not in effect yet. We will advise when they are implemented.

2009 medical fees will increase by 5.37% Section 8.2(a) of the Illinois Workers’ Compensation Act provides the rates in the Illinois workers’ compensation medical fee schedule will be increased by 5.37%, which is the increase in the Consumer Price Index-U for the relevant period. This increase will take effect for treatment on or after January 1, 2009.