August 16, 2017

8-15-2017; IL WC Arbitrator Shuffle Begins--Am I the Only Republican in the IL WC Industry?; 3 Rule 23 Decisions for the Defense Industry to Note; Kevin Boyle with New IN WC Rule and more

August 16, 2017/ Eugene Keefe

Synopsis: IL WC Arbitrator Shuffle Begins!—Is Gene Keefe the Only Republican in the WC Industry in Illinois?

Editor’s comment: The IL WC Commission abounds with gossip and silliness that we can’t confirm. My Secret Squirrels are telling me, again I can’t confirm, there are about six, count ‘em, six different Arbitrators being shown the door. I was hoping against hope the Governor and IWCC managers were cutting staff and trying to save IL business money.

Not so fast, not so fast!!!

As rapidly as we learn the termination of six sitting IL WC Arbitrators might save your company and mine about $700K in fees/taxes or whatever you call the IWCC Operations Fund, we then learned they are replacing some or all of the departing Arbitrators so the savings may be illusory. I salute the soon-to-be-departing Arbitrators and confirm they are all extremely solid, professional and well-versed in our IL WC Act.

The IL WC Operations Fund can be viewed online at Illinois Compiled Statutes, Ch. 820, Para. 305, Sec. 4d; Ch. 215, Para. 5, Sec. 416. This IWCC Operations Fund was almost secretly created in 2003 by the Blago Administration to pay for the administrative costs of the agency and take the cost out of our State’s General Revenue Fund. As soon as that happened, administrative costs skyrocketed without any objection from the defense industry, other than me. I haven’t seen any movement by Governor Rauner, the Illinois State Chamber, the IL WC Self-Insurers’ Ass’n, the IL Manufacturer’s Ass’n or any other entity to attack and cut this levy that is now $30M a year or more.

How the IL WC Operations Fund Assessment Occurs

· IL WC Insurance carriers: Each year, the Illinois Department of Insurance (IDOI) collects a 1.01% surcharge on workers’ compensation insurance premiums from insurance carriers. It sends out an assessment letter each July. Payment is due 30 days after the assessment is sent.

· Self-insured employers: Each year, the IWCC collects an assessment of .0075% of total IL payroll from self-insured employers.

Duh, if you cut the administrative costs of the IWCC, you and I can cut this punitive assessment on our biggest and smallest employers.

Is Gene Keefe the Only Republican in the WC Industry in Illinois?

I am a strong opponent of too much government in this nutty State. Sometimes, that makes me feel like a loner. I think normal people are in denial and don’t believe the State of IL has at least a quarter of a trillion in debt.

I am happy to confirm our State used to have about 75,000 new IL WC claims being filed each year—that occurred about fifteen years ago. Today, there are something like 40,000 new claims being filed—an amazing improvement. These aren’t my numbers—take a look at the IWCC’s annual reports that remain online at http://www.iwcc.il.gov/annualreport.ht

If you do the math or review the IWCC annual reports from the last Republican administration prior to Governor Rauner, our State had about 15 Arbitrators and six Commissioners who were able to handle over 225,000 pending IL WC claims. The IWCC budget was around $9M. Under the Blago Administration, the cost of the IWCC tripled to over $30M and that amount has never been adjusted for the dramatic drop in new claims.

Now, there are less than 125,000 pending IL WC claims. IL WC claims still move as slow as snails on opioids. Our Governor is Republican and the IWCC Chairperson is Republican and the IWCC budget hasn’t been cut a dime. For reasons I don’t understand, we have around 30 Arbitrators and 9 Commissioners and our plucky Chairperson meaning we have 40 hearing officers. None of our sister states have anything like that number—as one example, cheap-o Indiana to our east has just five such hearing officers.

The annual cost to IL business of those combined hearing officer salaries are well over $4M. The cost of those same folks with their fake “defunded” government pensions and lifetime healthcare will be double or triple (or more of) that cost to you, your kids and grandkids.

I suggest if we are cutting six Arbitrators, let them go and don’t replace them. Please don’t stop with that concept at the IL WC Commission. I am asking Governor Rauner and all IL business groups to start to act conservatively and cut the size and cost of IL Gov’t. In a state awash in billions and billions of red ink, start to cut not just the IWCC but all 88 IL State agencies. The tax dollars we save may be our own.

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

Synopsis: Three Rule 23 IL WC Claims of Note.

Editor’s comment: These recent rulings were all filed under IL Supreme Court Rule 23, are oddly considered “non-published” and may not be cited as precedent except in limited circumstances allowed under Rule 23(e)(1). We consider every ruling to be solid and have no true idea why our IL Appellate Court, WC Division files so many “non-published” rulings that are actually “published” on their website.

1. Mitchell v The Illinois Workers’ Compensation Commission

Claimant Mitchell worked as a laborer where she removed dust and debris, vacuuming carpets, washing windows and floors and preparing residential units for occupancy. Claimant also served as a union steward where she was responsible for verifying the laborers on the job were members of the local union.

The issue became whether Claimant was engaged in union activities or her normal employer’s business at the time of injury.

There is no dispute Claimant left her regular job site to go investigate whether other workers in an adjacent building were members of the union. On her way back to her regular job site, as she was walking up a pathway to the door and slipped on a patch of ice and struck her left knee against the pavement. Claimant claimed she informed and received permission from a supervisor she called “Trish” to leave the job site, but other evidence established there was an employee by that name who worked for Respondent.

The Arbitrator and the Commission both held Claimant was engaged in union business at the time of the accident and therefore, the injury did not occur in the course of her employment with her regular employer. The IL Appellate Court, WC Division agreed the record contained enough evidence to support the Commission’s decision and by embarking on a purely union related errand that was not incidental to her regular employment, Claimant engaged in a deviation removing her from the course of her employment. Because she had not yet entered her assigned building and resumed typical employment duties, Claimant had not returned to the course of employment when the injury occurred. Although Claimant may have been on her way back to the job site, she had not completed the deviation from employment duties to perform union business.

2. Douglas Yager v The Illinois Workers’ Compensation Commission

Claimant worked as a “slitter operator” and was responsible for loading, unloading, and operating such machines. Claimant testified while performing his duties, he experienced a sharp pain in his lower back, which he attributed to “repetitive lifting, bending and twisting.” After his shift, Claimant went to the locker room to change. Upon sitting down, Claimant alleged he experienced another sharp pain in his lower back which traveled to his right leg and made it “almost impossible” for him to change his clothes.

Claimant visited three doctors and was ultimately diagnosed with a disk herniation and congenital lumbar stenosis. The doctors noted Claimant reported he experienced a sharp pain in his low back when changing his clothes in the locker room. Claimant completed an accident report, noting the same history.

The IL WC Arbitrator and Commission found Claimant was not in the course and scope of his employment when simple changing his clothes.

The IL Appellate Court, WC Division felt the question became whether Claimant proved a repetitive trauma injury or whether the incident fell within the purview of the “personal comfort” doctrine. The Commission and Appellate Court both held the evidence did not support a repetitive trauma claim, given Claimant reported he first experienced pain in the locker room, while changing out of his uniform at the end of his shift.

The Court held, even assuming the “personal comfort” doctrine applied in this case, the doctrine does not obviate the requirement an employee prove the injury in question arose out of a risk incidental to the employment. For an injury to be considered as arising out of the employment and be compensable under the Act, the employee must have been exposed to the risk greater than that of the general public.

Here, Claimant’s injury occurred while he changed his clothes with the act of merely sitting down. Neither the act of sitting down, nor the act of changing clothes was unique to Claimant’s work as a machine operator. The Court held Claimant was exposed to no greater risk than that to which the general public is exposed. The risk was neutral and therefore the injury did not occur in the course of the employment.

The defense team at KCB&A is the top firm on defending “repetitive working” claims such as this—if you are facing such a claim, give us a call!

3. City of Springfield v Illinois Workers’ Compensation Commission

Claimant worked as a lineman for the city’s Water, Light, and Power Division. Claimant testified his duties included grasping meters, tools, lineman pliers, and cable when pulling and performing other job tasks. Claimant alleged he developed bilateral carpal tunnel syndrome and left ulnar neuropathy due to repetitive trauma.

The treating physician opined Claimant’s condition was causally related to his work duties, while Respondent’s IME physician opined there was no causal connection between the work duties and the claimant’s condition of ill-being, as the degree of force and repetition in the work activities did not meet the criteria of the American Medical Association Guide to Evaluation of Disease and Injury Causation.

While the Arbitrator found Claimant proved a causal connection between his condition of ill-being and the work activities, the Commission disagreed and reversed. The Commission found Claimant lacked candor when testifying to his job duties and his reliance on the job description of a lineman and description of the tools used was “disingenuous.” The Commission found neither were indicative of Claimant’s actual activities/duties at work. The Circuit Court then reversed the decision of the Commission, reinstating the Arbitrator’s decision.

The IL Appellate Court WC Division affirmed the Commission’s decision, noting once again it was the province of the Commission to resolve disputed questions of fact and resolve conflicting medical evidence. The Court held the Commission’s determination Respondent’s evaluating physician had a better understanding of the work duties than the treating physician was supported by the manifest weight of the evidence. The Court vacated the judgment of the Circuit Court and reinstated the Commission’s decision, finding it was not against the manifest weight of the evidence.

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

Synopsis: Indiana WC Update by Kevin Boyle, J.D.

Editor’s comment: In case you didn’t hear about it, there is some important news just in from the Indiana Worker’s Compensation Board (the “Board”).

The IN WC Board just put out a notice that the Board is set to formally begin its enforcement protocol concerning the untimely filing of statutorily required IN WC forms and payment of WC benefits. You may have heard in early 2016 that this was eventually going to happen, and now it finally is here.

Please check your procedures for timely filing some of the basic Indiana WC forms like the First Reports of Injury, 1043s and others. A late filing may suddenly become a more real problem than it has in the past, as a result of the new plans for stronger statewide enforcement. But, there is a grace period on penalties through September 30, 2017 so you still have time to work on it.

Their notice provides that “during this period, you may receive letters and notice of actions found to be in violation of IC 22-3-3-7, 22-3-7-16, 22-3-4-13(a) and 22-3-7-37 so that appropriate remedies can be put in place.”

After the grace period ends at the end of September, i.e. for all injury dates on or after October 1, 2017, penalties will be assessed. Pursuant to IC 22-3-4-15, escalation of penalties will apply where more than one violation occurs in a single cause concerning the same injured worker and the same injury date. The Indiana WC Board also noted that “in the future, violations of 631 IAC 1-1-26 shall also become the subject of notice by the Board” if the 15 day time frame is violated.

The IN WC Board also encourages your comments and concerns with this process so they may be addressed by the Board prior to October 1st, 2017. Their contact information is online at http://www.in.gov/wcb/2340.htm

You can also reach out to Kevin Boyle, J.D. at kboyle@keefe-law.com. Kevin has extensive experience and understanding of the internal workings of the IWCB. He can help with whatever an employer or insurance carrier might need in dealing with these intricate issues.

If you have any questions, or could use help with your forms, filings, these new rules, and/or violations, please contact Kevin to discuss.

August 07, 2017

8-7-2017; Another Simple Example of Why State of Illinois Government is Approaching an Inevitable Financial “Fail;” Indiana WC Update About Coming Enforcement of their Rules by Kevin Boyle, J.D.

August 07, 2017/ Eugene Keefe

Synopsis: Another Simple Example of Why State of Illinois Government is Approaching an Inevitable Financial “Fail.”

Editor’s comment: I am trying to get my readers to understand this State is like the good ship, RMS Titanic. Unless we unexpectedly discover oil or gold, this State is headed toward the bottom of the financial ocean. It isn’t a question of “if,” it is simply a matter of when. As I reported last week, the debt from this craziness was evaluated by Moody’s to already be a quarter of a TRILLION dollars. The amount of that debt is more than $250,000,000,000 and continuing to rise by tens of millions each day.

Last week, we saw an Illinois WC Commission Investigator who became the center of a racist email probe. In response to the allegations, he is simply retiring to accept his personal version of the fake IL gov’t pension pot-o-gold. Please understand this means he will shortly be making more tax-free money than he was while employed but he won’t need to show up any more or face further scrutiny.

The Chicago Tribune reported this Illinois Workers’ Compensation Commission employee sent personal emails alleged to be the source of racist, sexist and anti-gay emails that were regularly circulated among City of Chicago Water Department managers/employees. It appears obvious someone in the Water Department didn’t like them and ratted out, oops, I mean told on the State worker.

The IL WC Commission investigator gave notice he will retire effective today, the newspaper said. The IL WC Commission launched an investigation after the Tribune reported this worker’s AOL address was the source of at least four offensive emails that circulated among water department managers. One of the emails described a fake “Chicago Safari” adventure tour that made light of the shootings of children in black and Hispanic neighborhoods, according to The Tribune.

The paper indicated this soon-to-be former State worker was paid $114,000 annually. He was also the Republican Party Committeeman for the 27th and 26th Wards on Chicago’s West Side. Can it be a coincidence to learn a Chicago Ward Committeeman got a cushy, “do-close-to-nothing” State job? How many other do-close-to-nothing jobs are there at the IWCC where they are spending work hours and State network time emailing other State/County/City government departments with similar silliness? In working over three decades at the IWCC, I saw this worker on a regular basis, typically sitting at a desk, doing very little. He obviously had plenty of time to create and send silly/insulting/inappropriate emails. I have no idea what his job as an “investigator” might have been. I am personally shocked to hear how much you and other taxpayers were paying him to do as little work as I saw him do. If you keep reading, you may note that starting today, we are certain to pay him millions more.

Please note the IL fake government pension system will now provide him 85% of his highest pay or $114,000 times 85% equaling $96,900.00 in the first year of retirement. He will receive 3% compounded annual increases to the fake gov’t pension—in short, he will now be constitutionally guaranteed raises that he wasn’t guaranteed as an active State worker. In five short years after leaving government work this coming week, he will be back to making at least $114,000 a year from his fake gov’t pension. The State of Illinois used to tax his regular income while working—they do not tax State gov’t fake pensions, even when the money being paid dramatically exceeds pension contributions.

In about 24 years from today and he is almost certain to live 24 years, his fake IL government pension will be paying him approximately $200,000 a year or $1M every five years. In 48 years, if he lives that long, his fake government pension will be paying him more than quadruple the initial amount or $400,000 a year, all of it tax-free. At that time, his annual increases/raises to the gigantic fake pension payout will be $12,000 every year. He is certain to get millions more in retirement than he would ever have made if he continued to “work.” We can’t directly blame him but we need to first get everyone to understand how an IL State gov’t fake pension is like winning the lottery.

To my understanding, he will also have “Cadillac” health care coverage paid solely by IL State taxpayers, you and I for the rest of his days. Former Governor Quinn tried to get retirees like him to fractionally contribute to their healthcare plans and it was shot down by our IL Supreme Court with Illinois taxpayers forced to pay millions for the legal fees of the State workers who challenged and blocked the new law.

I point out to you and all my readers, this inevitable financial “fail” is simply math. All of this challenging math is guaranteed by the IL State Constitution and is aggressively protected by the IL Supreme Court. Unless changes are made and made some time soon, our State Gov’t is going to hit the financial ocean floor when Wall Street pulls the plug on continued borrowing. The math above isn’t truly political or a “Republican” or “Democrat” issue because both sides of the political matrix have caused and contributed to the issue over the last half-century. There are also lots of folks like this former investigator from each party that bask in this gov’t largesse.

What can be done about it? Well, the fake IL government pensions can and should be ended asap to try to avert or start to slow this financial gov’t shipwreck. The members of the IL General Assembly can and should stop their fake gov’t pensions for legislature newbies, which could occur in four short years, if they had the guts to do so. The IL judicial pension program would need twenty years for new and incoming judges/justices to end their lottery-like winnings, I mean fake gov’t pension payouts.

IL Senate President Cullerton has a detailed and well-researched plan to cut other state fake gov’t pensions and save something like $1B in doing so. We salute him for his hard work and see the plan as viable. That plan can and should be considered sooner rather than later. Another plan by the IL Policy Institute is to end all State fake gov’t pensions for newbies and rapidly move to a 401K type plan for incoming workers.

Will Illinois Republicans Ever Start to Cut the Size and Cost of our Insanely Expensive State Government?

Right now, the IWCC and other State agencies are being directed by Republicans who were selected by and report to Governor Rauner. I do not believe there are any restrictions on those State agency heads ending the jobs of unneeded and redundant staff. In my view, the IL WC Commission and all 87 of the other IL State Agencies should start to cut staff and get leaner to avoid the punitive future costs of these fake gov’t pensions. The fewer State workers there are, the less we will have to pay to “back-fund” these obviously unfunded fake government pensions. At present, the IWCC annual budget is about $30M. This year, the IL General Assembly wanted to strip out 1/3 of the IWCC annual budget to create a silly and tiny monoline WC insurance carrier. That signals to me and lots of folks who oppose bloated IL State government the IWCC can and would survive and thrive with less staff and a lower budget.

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