Synopsis: Three New IL Arbitrators Secretly Selected, Mike Brennan Gets Nod As New IL WC Commissioner; Governor Claims WC Reforms are Working Despite “Traveling Employee” Nuclear Warhead Waiting to Go Off on IL Business This Fall/Winter.

Editor’s comment: Last week, Governor Quinn announced the appointment of three new arbitrators who will join the 27 sitting IL WC Arbitrators, bringing the total to 30.

What Rhymes With Bloated Bureaucracy?

As observers for IL Business and with respect to these new workers, we don’t feel our state needs that many line administrators and would have preferred the monies had been saved and/or rebated to our clients and readers. As the IWCC is the only state agency funded solely by IL Business one would think the Illinois State Chamber, the Illinois Manufacturers or Illinois Self-Insurers Ass’n would be kicking and screaming about their members’ rising WC assessments. Is KCB&A the only statewide organization that cares about such issues?

We note the number of new IL WC claims continue to dramatically drop as IL workplaces get safer. Less than 50,000 new claims should be filed this year and many of them are pro se settlements. Companies large and small continue to react to the looming presence of federal OSHA that is hitting employer after employer with hefty fines for any unsafe situation or severe injury. With 30 Arbitrators and 8 Commissioners and our Chairman, the total IWCC payroll for administrators has to be one of the highest in the U.S. Along with a high current payroll, Illinois has the great habit of making taxpayers pay the lion’s share, currently 60% of post-employment pay for retired government workers that we misleadingly call “pensions” in this state.

How Does Hiring More Administrators Equate with Efficiency?

As the 2014 Gubernatorial Election is looming, our plucky Governor couldn’t miss the chance to call the 2011 IL WC reforms as “historic” and they assert this legislation “overhaul[ed] the system in Illinois.” The press release further highlights the “Governor's commitment to making Illinois government more efficient, accountable and effective.” We counter to point out adding more IWCC payroll doesn’t equate with efficient, accountable or effective—it is just more government workers.

One galling aspect of Illinois government is the continuing decision by even a “reform” Governor to keep Arbitrator positions purely political and secret. The IWCC didn't openly advertise these new Arbitrator or Commissioner positions. You and I can’t apply for such positions, you have to know someone who knows someone to be considered.

We don’t agree adding more Arbitrators, albeit great candidates, is necessarily efficient. We also didn’t see any discussion or meeting minutes from any advisory board about a defined need to fill these positions. There are many other ways to infuse efficiencies into the IL WC system like putting hard deadlines on trial, settlement or dismissal. The IL legislature did not conduct hearings and mandate there is a need for 20, 30 or 40 Arbitrators to facilitate claim closure. As the number of new IL WC claims continues to drop, we hope Chairman Latz, the Commission itself and the IL WC Advisory Board openly weigh and consider precisely how many Arbitrators and Commissioners are truly required to fulfill the mission of our IL Workers' Compensation Commission. When they start to do that, we may start to see if they are being efficient, accountable and effective in doing so.

While we are on the buzzwords of efficient, accountable and effective, we note the IWCC continues to have four satellite offices across the state that are simply there to provide more "lifetime-salaried-political-plum” government jobs. The addresses of these controversial offices are listed on the IWCC’s first web page. You may note the IWCC’s Collinsville office isn’t staffed and the job isn’t posted for reasons known only to the secret-powers-that-be. In our view, the value of satellite offices to IL business and taxpayers is virtually non-existent and the money to operate them is wasted. The folks who are assigned to the satellite offices do very little work of any demonstrable value; the only task it appears they perform is to provide printed WC forms that are continuously available online and therefore don't need five full-time office-minders across our state to occasionally give them out. Again, the folks who run those offices have payroll that has to exceed $200K plus those pensions that you and I will be certain to eventually pay.

The Three New Arbitrators include an Assistant Attorney General, One of IL Top WC Defense Attorneys and a Former Circuit Court Judge!

Molly Dearing, J.D. – our research indicates she is a solid WC attorney who was licensed in 2007. She has a WC background working in Attorney General Lisa Madigan’s office.

Jeffrey Huebsch, J.D. – Jeff was a very solid and knowledgeable WC defense attorney, licensed in 1984. He was one of the senior attorneys at a great west suburban-based defense firm and probably took a substantial pay cut to take this position. We are certain Jeff will bring strong WC expertise to his new job every day. If the stars were to align, at some future time, Arbitrator Huebsch could become IWCC Chairman Huebsch.

Ketki Steffen, J.D. – our research indicates she is a retired judge but also is a current judicial candidate. She was a Cook County prosecutor for 18 years before being appointed to the bench by our Supreme Court in 2010. There is no indication in her many online resumes and law firm website that she has any WC background but she does appear to be a quick learner.

The Governor appointed the following New Commissioner and Left the Other Vacancy Open

Michael Brennan, J.D. – Mike is a veteran and longtime IL WC lawyer who was with the storied Kane, Doy & Harrington firm for much of the middle of his career. Mike has written books and lectured about IL WC for years and is one of those brilliant and quiet folks who has forgotten more about workers’ comp than most folks may ever know. We salute this appointment as a great choice for the IWCC panel.

The Governor reappointed the Arbitrators listed below.

We feel every one of them represent the best of the IL WC legal community in terms of knowledge, honesty, training and professionalism. None of them like or will stand for WC phonies and frauds. We tell our readers they aren’t all conservative but they show up on time, listen carefully and decide claims to the best of their ability. We don’t think you can ask for more than that and salute our Governor for reappointing them.

William Gallagher, J.D., Carolyn Doherty, J.D., Joshua Luskin, J.D., Robert Williams J.D., Barbara Flores, J.D., Deborah Simpson, J.D., Brian Cronin, M.B.A., Kurt Carlson, J.D., Gregory Dollison, Edward Lee, J.D., Molly Mason, J.D., Douglas McCarthy, J.D.

The End of IL WC As We Know It May Still **Explode** Later This Year

Last but not least, we again saw the ruling in Mlynarczyk v. IWCC is final and the Appellate Court Workers’ Comp Division would not stay execution of the award of send the ruling to the IL Supreme Court for further analysis—this is the second of the three aberrant IL WC “traveling employee” rulings of which we are aware. We consider this concept to be an IL workers’ comp nuclear warhead waiting to go off and destroy all businesses and governments in our state. This ruling extended WC benefits to a cleaning lady who wasn’t at work or working—she went home for lunch. While off the clock and in her own driveway, she fell down and injured herself. Because she supposedly didn’t work “on the premises of her employer” whatever that may now mean in this nutty state, her employer has to pay for what are unquestionably off-work injuries for a dangerous condition at her home.

Please note if she fell and injured herself and died due to the fall in her own driveway, the employer would have to pay all her bills and lost time and at least $650K in death benefits for an injury that was miles from where she was going to work. If she had to drive two hours to get to and from her job, the employer would owe for anything that happened to her the entire trip.

One has to wonder if her employer couldn’t sue her under Section 5 of the IL WC Act for negligence in maintaining her own driveway and therefore contributing to her own injuries. While that sounds mildly insane, we feel the whole “traveling employee” doctrine, as created and currently implemented by our courts is wholly inconsistent with the intent and purpose of the IL WC Act that is designed to provide insurance coverage for workers who are injured while working. To the extent our current Governor feels IL WC has been “reformed,” we caution this traveling employee bombshell is going to cause our WC costs to dramatically skyrocket. We continue to closely monitor the Venture-Newberg-Perini Webster & Stone v. IWCC claim to see what the IL Supreme Court does with all of it. We again point out Illinois will not need 30 Arbitrators and lots of Commissioners if every “traveling employee” is entitled to full benefits for any risk they face all day, as a matter of law. We hope our Governor and Attorney General Lisa Madigan and great business leaders like Doug Whitley of the IL State Chamber of Commerce and Doug Oberhelman of Caterpillar openly go on the record to let the entire WC community know what a disaster this will be for businesses and jobs in our state.

If you have thoughts and comments, please reply or post them on our award-winning blog.

------------------------------------

Synopsis: Question from a reader in follow-up to our medical marijuana article last week—do drug and alcohol tests have to be performed by a certified professional to be “valid” in IL WC?

Editor’s comment: Our vote for lots of clients is to get a personal breathalyzer and walk around your plant with straws, insert a fresh straw for each worker and test everyone all the time. The question you might want to ask yourself is what to do if you, as an amateur alcohol/drug tester get a positive result? To our understanding, the alcohol or drug test doesn’t have to be administered by certified personnel but the samples have to be carefully stored. Illinois has several hundred pages of rules on storage of drug/alcohol test results.

We have included sections of the IL WC Act below that are pertinent. Please note the “testing” of a sample has to be performed by an accredited or certified testing laboratory. However, testing of a sample doesn’t necessarily equate with administering the initial taking of the sample.

We do not have a problem with our reader’s advice of getting a second sample and test by certified personnel when a non-professional gets a positive test outcome. We consider that a prudent decision. If you are going to deny a moderate or larger IL WC claim, you can’t be too safe and it is worth the additional money.

In our estimation, most post-accident drug and alcohol sampling and testing is done at the clinic or hospital where the injured worker has been taken for care. Such institutions should have certified personnel to obtain samples and test urine, blood, breath, hair follicles or other appropriate sampling concepts.

Please note the IL WC Act below--if the employee refuses post-accident sampling and testing of blood, breath or urine, the presumption is they were intoxicated and the intoxication proximately caused their injury.

No compensation shall be payable if (i) the employee's intoxication is the proximate cause of the employee's accidental injury or (ii) at the time the employee incurred the accidental injury, the employee was so intoxicated that the intoxication constituted a departure from the employment. Admissible evidence of the concentration of (1) alcohol, (2) cannabis as defined in the Cannabis Control Act, (3) a controlled substance listed in the Illinois Controlled Substances Act, or (4) an intoxicating compound listed in the Use of Intoxicating Compounds Act in the employee's blood, breath, or urine at the time the employee incurred the accidental injury shall be considered in any hearing under this Act to determine whether the employee was intoxicated at the time the employee incurred the accidental injuries. If at the time of the accidental injuries, there was 0.08% or more by weight of alcohol in the employee's blood, breath, or urine or if there is any evidence of impairment due to the unlawful or unauthorized use of (1) cannabis as defined in the Cannabis Control Act, (2) a controlled substance listed in the Illinois Controlled Substances Act, or (3) an intoxicating compound listed in the Use of Intoxicating Compounds Act or if the employee refuses to submit to testing of blood, breath, or urine, then there shall be a rebuttable presumption that the employee was intoxicated and that the intoxication was the proximate cause of the employee's injury. The employee may overcome the rebuttable presumption by the preponderance of the admissible evidence that the intoxication was not the sole proximate cause or proximate cause of the accidental injuries. Percentage by weight of alcohol in the blood shall be based on grams of alcohol per 100 milliliters of blood. Percentage by weight of alcohol in the breath shall be based upon grams of alcohol per 210 liters of breath. Any testing that has not been performed by an accredited or certified testing laboratory shall not be admissible in any hearing under this Act to determine whether the employee was intoxicated at the time the employee incurred the accidental injury.

Please note the following language from the IL WC Act about sample collection and the need for proper scientific testing.

All sample collection and testing for alcohol and drugs under this Section shall be performed in accordance with rules to be adopted by the Commission. These rules shall ensure:

(1) compliance with the National Labor Relations Act regarding collective bargaining agreements or regulations promulgated by the United States Department of Transportation;

(2) that samples are collected and tested in conformance with national and State legal and regulatory standards for the privacy of the individual being tested, and in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable sample;

(3) that split testing procedures are utilized;

(4) that sample collection is documented, and the documentation procedures include:

(A) the labeling of samples in a manner so as to reasonably preclude the probability of erroneous identification of test result; and

(B) an opportunity for the employee to provide notification of any information which he or she considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs and other relevant medical information;

(5) that sample collection, storage, and transportation to the place of testing is performed in a manner so as to reasonably preclude the probability of sample contamination or adulteration; and

(6) that chemical analyses of blood, urine, breath, or other bodily substance are performed according to nationally scientifically accepted analytical methods and procedures.

Please note the bigger the WC claim, the more important the adherence to the rules. Please reply with your thoughts and comments.

------------------------------

Synopsis: Self-Insured Best Practices for IL WC, HR, Safety and Risk Professionals.

Editor’s Comment: You are invited to the following:

What: An informal gathering of occupational health and workers compensation professionals, brought together to communicate and collaborate on leading and best practices in the areas of absence management including worker’s compensation, FMLA, short term disability, and group health.

Where: Edward Hospital in Naperville. Edward Hospital is located at 801 S. Washington Street, Naperville IL 60540. When parking on campus please park in the North Parking garage. You will then proceed to the Main Hospital entrance. At the front desk ask to be directed to the Education Center. Take the Education Center elevators to the 2nd floor. Once exiting off the elevator go to the right as we will be located in the Board Room E200.

Click here to see the location on Google Maps.

When: Friday September 20, 2013. Space is limited so please RSVP via email by August 24.

Time: 11:00 am to 1:00 pm.

Cost: No cost but bring your “A Game” to the discussions!

Meal: Hosted/provided by Go Self Insured, catered by Edward Hospital and Health Services.

What to bring: Your leading practices and best practices that you want to share; areas of concern, roadblocks, processes in needed of improvement, anything that you wish to share that someone else at the roundtable might have a best practice to share with you that will meet your need.

Best Practices: Click here to download the Best Practices Guide..

KCBA Blog

11-26-13; IWCC Gets 3 New Arbs + One New Commissioner; Drug Sampling/Testing Redux; Best Practices Invite and much more