12-11-2017; Gov. Rauner's "Turnaround" Is Happening In IL WC; "Disabled" IL Police Officer Morphs Into TSA Screener; Gene Keefe on Loss of Trade Awards/Reserves and more

Synopsis: Governor Rauner’s Illinois Workers’ Compensation “Turnaround” is Happening and Few Know It.

Editor’s comment: Governor Bruce Rauner came into Springfield as a veteran and successful businessperson but a newbie Governor. Our newly sworn-in Governor had a group of action items he wanted to implement to improve Illinois’ government and overall situation,  particularly in the interest of jobs and business. One headline item in his “Turnaround Agenda” was workers’ compensation reform. At the time of his election, the only national scale of any value was the every-other-year State of Oregon WC Premium Rankings that had Illinois as the seventh highest or most expensive state of the U.S. for workers’ comp insurance premiums.

At the time and even now, I don’t feel Governor Rauner got great political advice on how to cut workers’ comp costs for your bosses and mine. His goal was to enact/bargain/force what he felt were significant legislative reforms his advisors had to feel would cut workers’ comp costs. As I said then and continue to assure my readers, several of the legislative proposals could have inadvertently expanded coverage of the IL WC Act and increased IL WC costs! Governor Rauner’s WC legislative “reform” proposals were met with a lot of “crazy-making” from the other side that proposed creating a tiny IL WC mutual insurance company to supposedly demonstrate all major U.S. workers’ comp insurers were somehow magically manipulating “profits” in only our State to somehow keep IL WC premiums artificially high. I pointed out the State is comically broke and to take money from the IWCC would cripple that administrative agency. The gurus at the IL State Chamber of Commerce and other commentators repeatedly confirmed crooked/corrupt/bumbling IL State government has no idea how to run a successful private competitive company. They forecast financial doom for this silly effort.

That said, we assure you progress is underfoot for the IL WC system. As always, I closely watch IWCC decisions and reviewing court rulings. Here are three recent rulings of note to all Illinois claims/risk/gov’t and insurance folks.

1.    In Taylor v. IWCC (Mt. Vernon Police Dep’t, Appellant), we saw an IL WC claim by a Sheriff’s candidate in which he claimed to have injured his knee restraining/roping in a 15 year old juvenile. The main problem with the claim is Officer Taylor appears to have “forgotten” to immediately mention or document the claimed knee work injury, first claiming this story about a month after the occurrence. The IL WC Arbitrator awarded benefits but the IL WC Commission reversed, denying the claim. The local Circuit Court reinstated the Arbitrator’s award but the unanimous Appellate Court, WC Division reversed and closely followed Illinois WC law to confirm the facts, as found the IWCC panel is controlling.

This came to light when the City of Mt. Vernon sued the Jefferson County Sheriff’s candidate for misrepresenting this knee injury. They confirmed their claims handler innocently paid and Claimant improperly received $7,043 in worker’s compensation benefits to which he allegedly was not entitled. The City recently filed a lawsuit against Taylor in small claims court to recover the $7,043.26 it paid him.

2.    Second, I recently saw an IWCC ruling in Hansen v. Prairie Material. In this claim, a billing analyst and co-worker finished a task and they “high-fived” each other. Claimant asserted her hand was seriously injured in the process and she suffered from complex regional pain syndrome. The Arbitrator and IWCC ruled her job didn’t include “high-fiving” co-workers and she either voluntarily increased the risk of injury or was engaged in horse-play.

3.    Third, Nathan Bernard of KCB&A, one of our top young defense attorneys, recently received another important ruling where Claimant decided for reasons known only to him that it was a good idea to jump off a platform, rather than safely walk down the staircase provided. When Claimant landed, he broke his foot. The Arbitrator and IWCC panel found Claimant unnecessarily and dramatically increased the risk of injury and denied benefits. This claim hasn’t gone final so I am not reporting the names of the parties and have no intention to impact any later appeal, if one might be filed. The point is we salute the IWCC and Arbitrator for their strong views on such challenging claims.

Another point I am making is the current IWCC is doing an amazing job of reining in Illinois WC costs. I am sure the numbers are slow to appear but should be significant when the next State of Oregon survey of U.S. WC Premium costs takes place next fall. It is my hope Illinois businesses and local governments benefit from the IWCC’s hard work. And if you support lower workers’ comp costs and want more jobs in this nutty State, align behind Governor Bruce Rauner. I will continue to watch and report the rulings I feel support or rebut my thoughts on lower WC costs/premiums.

Please, please send me any IL WC ruling you feel is consistent or runs against the new trend. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: More IL Gov’t Dysfunction—“Disabled” Police Officer Gets Questionable Line-of-Duty Gov’t Pension While Now an Active TSA Officer.

Editor’s comment: Last week, I reported on Martin v. Board of Trustees of the Police Pension Fund of the Village of Shiloh, where, a police officer for the Village of Shiloh, IL was on duty and sitting as a passenger in an unmarked car when it was struck from behind by another vehicle. The IL Appellate Court ruled this officer was subject to all the risks of his job and getting hit while simply sitting in a car was an “increased risk.” The former officer became “disabled” due to Illinois’ odd rule that he gets an increased pension to police and firefighters if they are injured “in the line of duty,” versus a non-line-of-duty pension.

In addition to the lifetime line-of-duty disability check, Claimant Martin filed a work comp claim and received a tidy, tax-free settlement from the Village of $121,761.50 for 35% BAW. To me, this means he not only gets paid a generous gov’t pension the rest of his life, our local governments also provide a “going-away” present in the six-figure range.

My article was re-published in the Metro East press/media. I got a voicemail message from one of the City fathers of the Village of Shiloh to let me know they are considering further appeals. One concern is former police officer Martin is now a TSA Officer working at what I believe is the MidAmerica Airport in St. Clair County, IL. From my research, on top of his lifetime pension, he is now probably making something in the range of $40K a year plus federal healthcare and other benefits. Everything TSA Officer Martin is doing is completely legal but, in my mind, controversial.

What many Illinoisans may not understand is an Illinois police officer or firefighter is considered “catastrophically disabled” by our Illinois courts, not due to any significant real “disability” or injury. They don’t have to demonstrate the “catastrophe” is an inability to work at any job for the rest of their lives. They only have to demonstrate they can’t work as a police officer or firefighter. I am aware of supposedly disabled police and firefighters across this State who return to regular work and “double-dip” to get lucrative pensions while also working as business owners, bartenders and construction superintendents. Many of them move away from their former homes out of our State to avoid people seeing them working while supposedly “disabled.”

What drives me nuts about that disability pension “rule” is the misimpression all police officers are routinely engaged in running down bad guys/gals and busting down doors. I always smile/giggle when I enter any police department across this State to see numerous uniformed officers involved in sedentary and light work, answering phones/radios and handling paperwork. At your local school, there are SRO’s or School Resource Officers who provide a police presence for the kids, teachers and public to see. Thousands of such sedentary and light jobs are continuously staffed across this State. Many SRO’s are retired police officers!

I am certain we will never see this concept “reformed” in this State due to the strength, funding and political power of the IL Police and Fire Unions. At some future time, it is my hope the federal government will follow the concepts of ADA and require injured police and firefighters be taken off the pensions and required to perform sedentary and light jobs to give taxpayers some value for our dollars.

I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Quick Thoughts From Gene Keefe on IL WC “Loss of Trade” Claims/Awards.

Editor’s comment: Last week, a claims handler asked how to “define” or make sense of handling/reserving “loss of trade” claims, like the one former Officer Martin might have received, as I report above.

The statutory basis for IL WC “loss of trade” claims was cited by our Appellate Court, WC Division in a Rule 23 or “non-published” ruling:

Section 8(d)(2) of the Act provides, in relevant part, that the employee may be compensated after sustaining serious and permanent injuries "if such injuries partially incapacitate him from pursuing the duties of his usual and customary line of employment but do not result in an impairment of earning capacity" at a rate of the percentage of 500 weeks that the partial disability bears to total disability. 820 ILCS 305/8(d)(2) (West 2004). The extent or permanency of a claimant's disability is a question of fact to be determined by the Commission, and its decision will not be set aside unless it is contrary to the manifest weight of the evidence. Roper Contracting v. Industrial Comm'n, 349 Ill. App. 3d 500, 506-07, 812 N.E.2d 65 (2004). For a finding of fact to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Caterpillar, Inc. v. Industrial Comm'n, 228 Ill. App. 3d 288, 291, 591 N.E.2d 894 (1992). Put another way, the Commission's determination on a question of fact is against the manifest weight of the evidence when no rational trier of fact could have agreed. Dolce v. Industrial Comm'n, 286 Ill. App. 3d 117, 120, 675 N.E.2d 175 (1996).

In my view, that is the only provision in the IL WC Act and Rules that justifies an award of “permanent disability” for someone who changes jobs after an accident but might make more money in the new job or jobs after recovery.

That said, I have seen awards/settlements for cops and police officers as high as 80% BAW. One former IL WC Arbitrator, back in the day, wrote a colorful award for a firefighter with a high loss of trade award the hearing officer felt justified because that hearing officer loved giving away lots of local gov’t money.

Please remember/note IL cops and firefighters who can’t return to work as cops and firefighters are blocked by the IL Pension Code from wage loss and T&P awards if they are awarded line-of-duty disability pensions. All of them turn to “loss of trade” or loss of occupation to assert big IL WC claims for six-figure permanency as a going-away reward when they are mustered off the force and put on a line-of-duty pension.

My main issue for everyone to remember—I can’t imagine any specific reason/measure one person might get an award of 20% BAW for loss of trade versus an award four times higher or 80% BAW. The concept of loss of trade can’t be measured by any independent or reproducible means. In my reasoned legal view the level of PPD for a “loss of trade” claim is random and sporadic. Politics could also come into play, in the wrong claim.

If you were to point to post-recovery wage loss as the basis for high/low BAW for “loss of trade,” my answer is you are then pointing to the wrong provision in the IL WC Act—The Act specifically covers wage loss for better or for worse and the “loss of trade” concept shouldn’t take its place.

In short, reserve high and try to settle low. If you go to hearing, assume you are looking at a turkey shoot where you might bag a big one or a skinny one.

I appreciate your thoughts and comments. Please post them on our award-winning blog.