9-25-2017; Appellate Court Shocker!!! IL WC Costs Should Be Dropping; Do We Truly Need Tens of Hundreds of New IL Arbitrators?? and more

Synopsis: IL WC Appellate Court Shocker—We See a Clear Turn to What Should Be Lower IL WC Costs from the IL Appellate Court, WC Division.

Editor’s comment: As part of our role as being the best possible WC defense team in five states, we closely watch new legislation but more important, court rulings. Please note most IL WC “reforms” come from new rulings by our reviewing courts—happy to explain if you don’t understand.

As we have advised, last year, our Illinois workers’ comp system was tied with Oklahoma for 7th most expensive in the United States. The legislature in Oklahoma responded with a number of reforms that clearly cut their WC costs without greatly minimizing important medical and lost time benefits for their injured workers. Illinois needs to keep pace with other similar states in our overall WC costs and benefits to remain competitive. In my view, we don’t want to be like cheap-o Indiana but let’s keep up with great States like Oklahoma and Alabama (‘Bama was considered the median in the last national survey mentioned above).

Earlier this year, the OK Council of Public Affairs reported:

In hard dollar terms, workers' comp premiums paid by Oklahoma employers in 2013 before the reforms passed totaled $961.5 million. In 2015, premiums totaled $792.7 million, despite an increase in employment in those two years of 2.45 percent. When you adjust for that increase, the amount paid by employers for workers' comp insurance dropped in the first two years under the new system by 19.5 percent.

One important development or “reform” that we can and should consider in Illinois and other states is to cut the length of time needed to arbitrate or resolve disputes. IL WC arbitration takes literally forever where other States streamline their litigation. The Director of the OK WC system Robert Gilliland confirmed “most cases are now adjudicated within 8 to 10 months, compared to the year or two that was common under the old system. That boosted medical costs significantly to the point where amounts paid out by insurers were dramatically out of balance. Today, that balance has been largely restored.”

As I have advised my readers many times, our IL WC system has cases that last decades without anyone taking affirmative action to adjudicate them. We have a “three-year” go-to-hearing rule that is routinely ignored by our hearing officers, in my view, the three-year-rule is a joke. What I don’t understand is why a simple WC claim can go on for four, five, six or more years and have no one complain to the ARCD or the IWCC that all sides aren’t guilty of letting their files lapse to the detriment of the clients. In my view, almost any other active legal concern that would sit for 5-10 years would result in consideration of suspension of the attorney involved—I don’t know why that doesn’t happen in IL WC. We challenge Chairperson Joann Fratianni, her top counsel Ron Rascia and the entire IWCC to start getting injured workers’ claims resolved faster.

Either way, we are starting to finally see some evidence our IL WC Commission and reviewing courts are turning to a more conservative focus. If you have been reading this KCB&A Update the last several weeks, we feel our top WC reviewing court is starting to get the message to cut IL WC costs.

IL WC Courts Determine Wet Pavement Is a Risk of Life and Not a “Hazardous Condition”

In Dukich v. IWCC, an employee slipped and fell on wet pavement walking to her car to take a lunch break. She was still on her employer’s premises but not working at the time of the fall. The IL WC Appellate Court ruled she was not eligible for workers' compensation benefits because she was not exposed to any greater risk than the general public.

The Appellate Court, WC Division upheld the Circuit Court of Cook County's decision to deny benefits to Claimant. The Circuit Court's decision adhered to the ruling of the Illinois Workers' Compensation Commission, though the IWCC ruling was a split decision. The IWCC overturned the Arbitrator who found the injury compensable.

The facts are fairly simple. Claimant was an attendance clerk at Fenton Community High School District 100. On a rainy day in February 2012, she left the school to get lunch off premises. When descending a ramp, she slipped on the wet pavement and fell face-first onto a crosswalk. The fall left her with a concussion, a nasal bone fracture and severe headaches. She claimed she aggravated a previous work injury to her right shoulder. Two doctors ordered her off work and recommended physical therapy. She treated with a physical therapist for three months but claimed she had to stop as she had two jobs and didn’t have time.

The School District brought in three co-workers to testify; two groundskeepers and an on-campus police officer. The groundskeepers testified there were no “defects,” unusual pavement or other issues with the sidewalk Claimant slipped on. The police officer testified Claimant told him she slipped on wet pavement. All three workers confirmed the pavement was wet from normal rainfall.

Arbitrator Doherty awarded medical benefits, temporary total disability benefits for her time off work, and 10% of the body as a whole. In finding the fall-down compensable, Arbitrator Doherty reviewed the preliminary WC issues of AOO/COO or arising out of and in the course of employ. There would be little dispute over COO—Claimant was unquestionably in the course of employ as she was at work and doing something she would be expected to do, leave for lunch.

Arb. Doherty considered AOO or arising out of employ to be present as Claimant was walking to a parking spot designated by the employer. She ruled the ramp was "(an employer)-controlled designated pathway" Claimant had to traverse to reach her car, whose position the employer also “controlled.” Therefore, even though the rain was a "neutral risk" — meaning it posed the same risk to the general public as it did to Claimant; Claimant was at an increased risk of being susceptible to normal rainfall because of her employment. Had Arbitrator Doherty found Claimant faced the exact same risk as the general public, Claimant would not have been entitled to workers' comp benefits.

The employer, Fenton Community High School District 100 appealed the decision. The Commission panel reversed. The Commission majority determined Claimant faced no greater risk than the general public when she set out to her car. She wasn't carrying anything the employer had told her to carry, wasn't rushing to complete a work task, the walkway was not defective and there was no accumulation of ice on the walkway. As such, the IWCC majority found Claimant "was not at an increased risk for injury over that faced by any member of the general public in traversing wet pavement."

The Circuit Court of Cook County agreed with the IWCC majority. In response to Claimant's argument a wet sidewalk created a hazardous condition, the Circuit Court found "there was no defect in the sidewalk where the claimant fell and no ice, snow or puddled rain that would constitute a hazardous condition." Unlike rain, snow and ice "can be made safe by plowing or laying down salt," while "there is no such option for rain," the Circuit Court ruled.

The Appellate Court agreed and unanimously affirmed the Circuit Court's analysis. Their decision indicates: "The dangers created by rainfall are dangers to which all members of the public are exposed on a regular basis. These dangers, unlike defects or particular hazardous conditions located at a particular worksite, are not risks distinctly associated with one’s employment."

The Court analyzed Claimant's situation under “neutral-risk” principles, asking whether Claimant was exposed to the risks of injury from rainfall to a greater degree than the general public by virtue of her employment. The Court determined that she was not. "Although the employer provided the claimant a designated parking space, there is no evidence that the employer exercised any control over the particular route the claimant took to her car or required the Claimant to traverse the particular handicap ramp on which she was injured," the Appellate Court wrote. "Nor is there any evidence suggesting that the claimant’s employment duties somehow contributed to her fall or enhanced the risk of slipping on wet pavement," the Appellate Court continued. "For example, the claimant was not carrying any work-related items or hurrying to complete a work-related task at the time she slipped and fell."

Common Sense Stuff from Me

The IL WC website confirms Claimant only missed 3-5/7s weeks off of work for this fall down. Medical bills were about $4,200, were paid under group insurance, and probably would be about half that much if processed under the IL WC Medical Fee Schedule. The Arbitrator awarded 50 weeks of permanency for injuries that were basically complaints of headaches. From my perspective, the Arbitrator could easily have awarded lost time, bills under the IL WC Schedule and 2% BAW. If she had done so, I think this claim would have ended in 2012, obviating five years of appeals.

Another thought to remember—this ruling probably won’t greatly change IL WC handling of fall downs in ice and snow. While we are melting in the current heat wave, winter is coming. If you are an employer, be diligent in efforts to clear ice and snow and salt the employee walkways to avoid serious and difficult to defend IL WC claims.

View the appellate court's opinion here. We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Does IL WC Really Need Tens of Hundreds of Arbitrators?

Editor’s comment: Almost as fast as I stopped whining about the secret process to select IL WC Arbitrators, I learn we just added two more!! Again, no one tells me or any other IWCC watcher when the Secret-Powers-That-Be-That-Run-The-Commission decide they need even more Arbitrators or why that decision might be made.

It was my impression the numerous IL WC advisory panels don’t want to openly discuss who to pick for the Arbitrator jobs. I am sure my readers know I disagree with that concept but I can and will live with it.

My beef this week is why we are adding two more new IL WC Arbitrators without any open discussion by any advisory panel or the IWCC itself of what the right number might be and/or what benefit new Arbitrators will mean to IL business who pays every penny of the cost of the IWCC. I consider hiding that process from me, my clients and the entire industry to be objectionable and inappropriate.

I point out about ten-fifteen years ago, there were almost 250,000 pending IL WC claims at the IWCC. Today, there are around 110,000. If we put our minds to it, we could easily work hard to get that pending number under 100,000. In short, with unquestionably fewer claims, why do we have so many more Arbitrators?

Either way, Governor Rauner just appointed Attorneys Tiffany Kay and Charlie Watts as our newest IL WC Arbitrators. I am sure their appointments have to be approved by the Senate.

I looked them up and Ms. Kay was Labor & Employment Counsel at the State of Illinois - Illinois Department of Central Management Services. She attended John Marshall Law School in Chicago, as I did. She will clearly add to much-needed diversity among IWCC hearing officers. She was licensed in May 2012. We wish new Arbitrator Kay all the best in her new position.

The other new Arbitrator is Charlie Watts who apparently goes by the name “Charlie Watts” because that is what is in the IWCC News on their website. I don’t want to in any way upset new Arbitrator Watts but I can’t locate any social media or other information about this new hearing officer other than to be able to confirm his business address is with the IL House Republicans and appears to have a home office in Chicago. He was licensed in 2001. We also wish new Arb Watts all the best in his new position.

We are happy to send any new or veteran IL WC Arbitrator or Commissioner a courtesy copy of our KCB&A IL WC textbook and other helpful materials.

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

Synopsis: Join KCBA at the IL Chamber of Commerce 2017 Workers' Compensation and Safety Conference! Wednesday, October 25, 2017 at the Hilton l 3003 Corporate Drive West l Lisle, IL 60532.  The program runs from 8:30 am – 3:30 pm.

Editor’s Comment: As part of the program, there are several Workshops which will include a presentation on Ethical Management of Disability & Employment Law Concerns Arising in Workers’ Comp Claims presented by our own John Campbell, Shawn Biery, & Brad Smith

The IL State Chamber also wants you to know:

This is the most important annual Workers’ Compensation Conference for Illinois employers!

·        The 10th Annual Workers’ Compensation and Safety Conference will include valuableinformation for all Illinois Employers with all new topics and fresh presenters.  

Workers' Comp. Reform is being debated at the state Capitol.

·        Get the latest analysis and thoughts on WC reform at the conference, along with cost-controlling measures, safety issues to prevent workers’ injuries, and discussion of court cases as well as much more.

Continuing Education Available!

·        This conference has been pre-approved to offer 3 HRCI credits.

·        This conference has been pre-approved to offer 4 SHRM Professional Development credits.

·        This conference has been submitted for approval to offer 4 CLE credits for attorneys.

- Learn More -

You may also contact Shawn Biery at 312-756-3701 or sbiery@keefe-law.com or the Chamber directly via Laurie Silvey at (217) 522-5512 ext 223 or lsilvey@ilchamber.org

9-18-2017; Important Ruling Knocking out the Obama OT Rule; Brilliant IL WC Appellate Ruling on the Positional Risk Doctrine and more

Synopsis: No Go for Obama-era Federal Overtime Rule! Texas Federal Judge Strikes Down Federal Overtime Rule. Research and analysis by Bradley J. Smith, J.D.

 Editor's Comment: U.S. District Judge Amos Mazzant granted summary judgment to more than 55 business groups that challenged the Obama administration’s 2016 rule that more than doubled the minimum salary required to qualify for the Fair Labor Standards Act’s “white collar” exemptions. As you recall, I wrote an article in November of last year discussing the same court blocking the overtime rule from taking effect. The minimum annual salary would have increased in dramatic fashion, which would have crippled some businesses—it more than doubled from $23,660 to $47,476.00. The rule also required additional increases every three years. Instead, for now, the existing overtime regulations apply, which includes the $23,660.00 exempt salary threshold.

This means U.S. employers do not have to make any changes for now, because the ruling is final, rather than last year’s temporary injunction, which was only temporary. This decision creates more certainty for employers, because it assures employers the Obama rule will not see the light of day.

Although the ruling could be challenged, the new leadership in the U.S. Department of Labor will likely not challenge it. Alexander Acosta, Secretary of Labor under the Trump administration, already sent a request for information on the 2016 overtime rule to the Office of Information and Regulatory Affairs. Those types of requests generally signal a government agency is looking for information to determine whether there is a need for new rulemaking. Acosta said he recognizes the salary threshold needs to be increased. However, he seemingly understands the salary threshold for overtime should not be doubled.

One of the central arguments used by the business community in challenging the new rule was the threshold was increased too high. Plaintiffs also argued the 2016 overtime rule raised the minimum salary threshold so high it made the “duties test” irrelevant. This test also required employees to perform certain duties to qualify for the FLSA’s white collar (executive, administrative, and professional) exemption. The Federal District Court agreed in reasoning that, “Congress unambiguously intended the exemption to apply to employees who perform bona fide executive, administrative or professional capacity duties.” He further said the U.S. DOL does not have the authority to set a salary threshold that effectively eliminates the duties test. Instead, the District Court explained the DOL is supposed to set the minimum salary level as a floor in order to screen out obviously nonexempt employees.

Employers should prepare for an eventual increase to the salary threshold under FLSA. For now, employers can submit comments to the DOL, as the DOL’s request for information offers an additional opportunity for the public to submit comments about the salary threshold.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the FLSA, employment law, and general liability defense at bsmith@keefe-law.com.

Synopsis: An IL Worker Needs to Show More than Simply Being at Work to Get WC Benefits—IL WC Appellate Court Upholds IL WC Commission decision Denying Benefits Again Rejecting the “Positional Risk” Doctrine. Analysis and research by Tim O’Gorman, J.D.

Editor’s comment: In Herff Jones v. Illinois Workers’ Compensation Commission, 2017 IL App (4th) 160346WC-U, again confirms the IL Courts rejected the use of the “positional risk” doctrine in the Illinois WC System..

Claimant in Herff Jones alleged WC benefits were owed for a right hand injury as a result of an alleged fall while at work. Claimant testified initially she believed her fall was caused by a rock which she stepped on while taking a break from work and going on a walk on a normal city street with a co-worker. Claimant testified she felt she stepped on a rock however mentioned the probability of being too close to the edge of the walk. She admitted she could not recall seeing a rock and provided a prior recorded statement denying she saw any defects in the sidewalk or the walkway.

Respondent’s HR manager testified he spoke to Claimant after the incident where Claimant stated she was not sure what happened. Respondent’s HR manager inspected the area where the claimant fell and did not see any rocks and could not identify any defects in the sidewalk or the surrounding environs.

Respondent’s HR manager also testified he took photographs of the area in question. The photographs taken by Respondent’s HR manager were described as “lost forever” save for one, which was not provided at the time of hearing. Instead, photographs taken at an unknown date and unknown time were presented as evidence. It is odd to note the photos were admitted without objection.

The Arbitrator rendered a decision finding Claimant’s alleged injury did not arise out of or occurred in the course of Claimant’s employment. On review, the Commission affirmed unanimously.

On appeal to the Circuit Court, the Court reversed the Commission’s decision stating

There are disputed facts; namely what caused the fall [and] [t]his allows the court to consider this a question of law." The ruling goes on to state: "In this case, it is clear to this court that whether or not the [claimant] employee tripped on a rock is immaterial. The fact is that she was on an official break during her employment and remained on the [employer’s] premises. Thus, her accident arose out of and was in the course of her employment.

The IL WC Appellate Court’s decision on this statement speaks for itself:

The Circuit Court was correct in stating that the cause of the claimant's fall was a disputed question of fact. But that did not justify the circuit court considering the issue "as a question of law." It is the Commission that resolves disputed issues of fact (O'Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253 (1980)), not courts on review of its decisions. The Commission's resolution of a factual issue will not be disturbed on review unless it is against the manifest weight of the evidence. Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 44 (1987). Compounding the error was the circuit court's conclusion that, simply because the claimant was on a scheduled work break and on Herff's premises when she fell, her injury arose out of her employment and "automatic liability applies." The circuit court seems to have adopted positional risk whenever an employee is on the employer's premises and engaging in activities of personal comfort. The positional risk doctrine has been rejected in this State as being inconsistent with the requirements of the Act, and specifically the requirement that to be compensable an employee's injury must arise out of her employment. Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 552 (1991) (emphasis added). Herff Jones v. IWCC, at pg. 8 para 17.

In disagreeing with the Circuit Court’s seeming application of the “positional risk” doctrine, the IL WC Appellate Court found

1. Claimant’s alleged injury was not a result of a personal risk,

2. Claimant’s alleged injury occurring while walking across a sidewalk did not establish a risk greater than that faced by the general public and

3. Claimant’s alleged injury was not a risk incidental to her employment.

The Appellate Court examined the third potential risk in greatest detail. Claimant was not carrying anything in furtherance of her employment with Respondent. Claimant was not traveling from one place to another in furtherance of her employment with Respondent. Based on Claimant’s testimony, she was unable to establish that a defect occurring on Respondent’s premises was the cause of her alleged accident. As such, the Appellate Court vacated the decision of the Circuit Court and affirmed the decision of the Commission denying any and all benefits.

We salute the Court for following the traditional precepts of IL WC law and practice.

We appreciate your thoughts and comments. Please post them on our award-winning blog. This article was researched and written by Tim O’Gorman, JD and your editor.

Synopsis: Join KCBA at the IL Chamber of Commerce 2017 Workers' Compensation and Safety Conference! Wednesday, October 25, 2017 at the Hilton l 3003 Corporate Drive West l Lisle, IL 60532.  The program runs from 8:30 am – 3:30 pm.

Editor’s Comment: As part of the program, there are several Workshops which will include a presentation on Ethical Management of Disability & Employment Law Concerns Arising in Workers’ Comp Claims presented by our own John Campbell, Shawn Biery, & Brad Smith

The IL State Chamber also wants you to know:

This is the most important annual Workers’ Compensation Conference for Illinois employers!

·        The 10th Annual Workers’ Compensation and Safety Conference will include valuableinformation for all Illinois Employers with all new topics and fresh presenters.  

Workers' Comp. Reform is being debated at the state Capitol.

·        Get the latest analysis and thoughts on WC reform at the conference, along with cost-controlling measures, safety issues to prevent workers’ injuries, and discussion of court cases as well as much more.

Continuing Education Available!

·        This conference has been pre-approved to offer 3 HRCI credits.

·        This conference has been pre-approved to offer 4 SHRM Professional Development credits.

·        This conference has been submitted for approval to offer 4 CLE credits for attorneys.

- Learn More -

You may also contact Shawn Biery at 312-756-3701 or sbiery@keefe-law.com or the Chamber directly via Laurie Silvey at (217) 522-5512 ext 223 or lsilvey@ilchamber.org

9-11-2017; New WCRC Contractor Takes Over for CMS and Recovery Statistics Presented: Gene Keefe's Wish List for IL WC Arbitrators and more

Synopsis: New WCRC Contractor Takes Over for CMS and Recovery Statistics Presented. Research and analysis by Shawn R. Biery, J.D., M.S.C.C.

Editor’s comment: As our readers are already aware, The Centers for Medicare and Medicaid Services had been accepting bids for and now has hired a new contractor who will assist in the review of Medicare set-aside proposals submitted to CMS. As we have become accustomed with CMS, the award of the contract was delayed and implementation is behind schedule…….if anyone truly followed the CMS anticipated schedule.

The CMS contract for Workers’ Compensation Review Contractor, or WCRC, has been awarded to Capitol Bridge LLC of Arlington, Virginia. Capitol Bridge will replace the previous contractor, Provider Resources Inc., of Erie, Pennsylvania.

Generally, the federal contractor will independently price the future medical costs of workers’ compensation claims, (future anticipated treatment, any anticipated prescription drugs and durable medical equipment) and then provide the information to CMS. This allows CMS to accurately determine when amounts offered to be set aside for medical expenses in a workers’ compensation settlement ensure Medicare doesn’t end up paying for work injury related medical charges. Taxpayers—you and I--save money.

The hope for all involved will be a more efficient processing of MSAs to provide more identifiable timeframes when seeking approvals. As in most changes, it is usually one step back to take two steps forward and we anticipate approval times will increase in the short term. The prior contractor had been clearing a backlog and was providing much swifter response times. It is generally expected the prior contractor will finalize file submissions currently under review.

We also hope to see the new contractor process MSAs efficiently while incorporating changes in a new CMS reference guide which include an option for re-review of an MSA when a case has not yet settled and there’s been a substantial change to projected medical costs.

Generally unrelated to the change in WCRC, CMS has also released figures noting amounts recovered in Medicare conditional payments from primary payers, including workers’ comp insurers in fiscal year 2016. As you may recall, in October 2015, CMS expanded the responsibilities of its Commercial Repayment Center, or CRC, to seek out workers’ compensation carriers and other “first” payers who owe conditional payments.

The amount recovered by CRC decreased actually, likely because they are no longer paying for payments which they had in the past now that more extensive reporting has been implemented.  

Net collections of $106 million were confirmed for the Medicare program. Collection efforts will continue on the remaining identified debt which totaled $244 million, it is unclear how much was from workers’ compensation alone. The $106 million is down from the $150 million in net collections in fiscal year 2015. That number was substantially higher than the $59 million in net collections reported for fiscal year 2014.

As insurance carriers/TPA’s continue to report claims as required, the amount paid by Medicare should continue to decrease which in turn should decrease recovery amounts.  

As they determine fewer targets, you can be sure if your company is not paying before Medicare, you will begin to see conditional payment letters which give you 30 days to dispute the bill—and if you miss the deadline, CRC considers your non-response to be agreement with the charges. We are aware of letters from the U.S. Dept of Treasury seeking significant amounts for recovery of charges which do not appear to be actual conditional payments. The hope is that these are avoided as well with more detailed early reporting.

As always, MAKE SURE YOU CONSIDER MEDICARE’S INTERESTS! This article was researched and written by Shawn R. Biery. If you have questions about workers’ compensation issues (Medicare related or otherwise), simply reply to Shawn at sbiery@keefe-law.com and stay ahead of the Feds!

Synopsis: My Illinois WC Arbitrator Wish List – Thoughts, Comment and Opinions from Gene Keefe, J.D.

Editor’s comment: I want my readers to know my thoughts Illinois government is closing in on a financial turning point. The way things have been done in the past may not get our nutty State government to the future. I truly feel we have to start doing things better and more effectively, if we are to have any hope or expectations at all.

Governor Rauner just politically reappointed/appointed a number of new IL WC Arbitrators. I believe his appointments have to be rubber-stamped by the IL Senate. We salute all the newbies and reappointments and don’t feel there are any clinkers in a solid, professional group.

I have criticized the system for locating and selection of this hearing officers for years as being secretive and moderately dysfunctional. I had sources tell me the system to source and select IL WC Arbitrators is more open and fair that I might think. I want my sources and readers to all remember Oscar Wilde’s quote about secrecy—“The commonest thing is delightful if one only hides it.” With respect to the insiders at the IWCC and elsewhere, I still feel government is supposed to be done in the light of day.

When I talk about secrecy in selecting IL WC Arbitrators, I confirm I have been in this job for over 37 years. I have never once seen an ad or job posting for an IL WC Arbitrator. They used to do an “Arbitrator’s exam” to give normal folks the impression there was an independent vetting process. The exam was as phony as a three-dollar bill. Thankfully, someone ended that charade about fifteen years ago. Still, I have no current idea who to talk to or beg or even ask about getting on the short list to be an IL WC Arbitrator. I bet I could find out by asking all the right folks—that is precisely what I feel is objectionable about the secret process. Even under a Republican administration, headed by a maverick Governor in Bruce Rauner, you still have to know someone who knows someone who knows someone else. The problem with my complaints about secrecy is everyone in the vetting process was chosen due to their adherence to secrecy and they are all certain the only way to select the “right stuff” is to keep the process secret. If you don’t like secrecy, they are certain to block/exclude you because you simply “don’t know.”

So enough whining by me about the Secret Squirrels who select IL WC Arbitrators. If you are going to do it secretly, please admit to the Governor you and your troops are responsible for the HIGH WC costs in this State. You can’t have it both ways!

Here are three bona fide things I want our existing, re-appointed and newly appointed Arbs to do.

Follow the Rules on Ending Ancient IL WC Claims!!!

I randomly picked three call sheets for this coming week from the IWCC website. The oldest claim I quickly saw was from 1999 or almost two decades ago. The second claim I saw was from 2002. The next three claims were from 2003. In any given IWCC call sheet, there are numerous claims that are well over ten years old. I consider that a national disgrace and feel something has to be done to get such claims current. The Secret Squirrels clearly but quietly don’t agree.

Illinois workers’ comp claims are supposed to be relatively easy to resolve—there are lots and lots of stipulations/agreements the parties are required to enter into as part of resolution. At some point, claims are allowed to sit and grow cobwebs and go literally nowhere. Some of the reasons are due to Claimant attorneys not wanting to deal with nutty or dangerous claimants. That is why motions to withdraw as counsel were created. Some of the reasons for delays in closure are also due to never-ending medical care—that is what UR and IME’s are for. We urge the new and re-newed Arbitrators to start moving ancient claims off the hyeroglyphics and into the present day on the status of medical and lost time.

My other problem is I occasionally see IL WC Arbitrators not caring and not doing nearly enough to get oldie moldie claims closed. I can’t continue to accept that approach.

The IWCC’s favorite “stall” or dodge is the never-ending need for medical records and/or medical bills. For most Arbitrators, if you say you don’t have medical records/bills, the words “case continued” quickly follows. The problem with that concept is many doctors and healthcare givers are moving to electronic records where you can get the records as fast as the speed of light, if the provider is willing to cooperate. FYI, if they are properly served, subpoenas have to be properly enforced to command response. I have only see one Arbitrator in 37 years demand compliance with subpoenas.

One suggestion I have is to create a new and special Arbitrator job—give one or maybe two Arbitrators the job of efficiently and effectively ending any claim over five (or whatever) years old. Have them do only that work. Put all such claims on a computer calendar system designed to put/force any issues on to a reasonable time spreadsheet with accountability for all sides. If the parties know they have to produce or they claim will be defaulted or dismissed, I promise things will start to move faster and we won’t have 10-20 year old WC claims that don’t help anyone.

Another suggestion is to steal an idea from the IN WC Board—they have a rule where the parties don’t have to get a hearing date, but if they do, the claim has to change to trial, settlement or dismissal. This approach might stop the incessant back and forth of attorneys moving for hearing and getting the claim kicked to move again and get it kicked again into almost infinity.

Do you have any ideas on how to make this system work more effectively? Please send them along.

Cut IL WC Costs Before Oregon’s 2018 Premium Ratings Come Out Next Year!!

Many folks feel IL WC costs should be “trimmed” somewhat to make our State more amenable to CEO’s and others who care about making money here. I have some simple thoughts to get our costs lower and more competitive with our sister States. Please note I don’t feel we need to win the “Race to the Bottom” to leave Illinois’ injured workers out in the cold when seriously injured, like some of the other insensitive States do. Work comp has to be moderate and reasonable—happy to provide examples.

First, I recommend/suggest Governor Rauner or his staff and IWCC Chair Fratianni and whoever else cares set an informal meeting with all Arbitrators/Commissioners who would voluntarily attend.

Number One on the agenda is to confirm we need to get IL WC costs to the middle of the pack. To my understanding, we only need to cut IL WC costs/awards by about 7% or so to get to the middle of the 2018 Oregon WC Premium rankings.

In the last reported ranking in 2016, Illinois’ workers’ comp premium ranking was Number 7 at 2.23. Alabama was the middle or 25th at 1.85. Take a look for yourself at http://www.oregon.gov/DCBS/reports/Documents/general/prem-sum/16-2082.pdf

The ranking comes out in about 13 months or around October 2018. At the meeting I suggest above, I would challenge for our Arbs is to cut our WC premium rating from 2.23 to 1.85 or thereabouts. They can do it, if they try.

I suggest the Governor or his staff start to watch rulings/decisions to get the “bottom line” on what is happening with his ongoing and future appointees. If they aren’t bringing our IL WC costs in line, consider others for the jobs. Stop re-appointing folks because they are “nice” people and get along with the Secret Squirrels but don’t show verified lower outcomes.

At the meeting, I would strongly confirm the Governor will be happier with the Arbitrators that can demonstrate somewhat lower PPD awards/settlements/pro se approvals. I suggest these thoughts be clearly stated to avoid any confusion.

I also suggest they review and converse on claims where there clearly is no PPD or permanency present. For one example, in years past, hernia claims used to be worth nothing for PPD. Since the Blago years, they have been worth 2-10% BAW. That can be a LOT of money for high wage workers when surgically repaired hernias typically don’t cause “permanent” or measurable loss. For any claimant attorney who feels compelled to tell me hernias cause impairment, please note I have had such surgery and you are wasting your time to tell me there is any sequalae from it. If you want more examples of claims that don’t merit PPD, send a reply.

Consider an IL WC Arbitrator’s Decision Complaint Box

A final thought would be to have someone named to take in IL WC rulings that aren’t just high or challenged but truly a mess.

For one example, I had a claim I defended where the worker had a burn to her thumb from a spark while plugging in an appliance at work. She might already have been a narcotic drug addict. She then clearly had addiction issues. Her job was truly sedentary. My client brought her back to work and quickly noted she was completely buzzed out on narcotics. They simply sent her home and told her to kick the stuff.

A still-sitting IL WC Arbitrator found Claimant was unemployable and provided her a total and permanent disability award for a barely visible burn to her thumb. The value of the award was $2.4M! When I read the award, I not only wanted the claim reversed on appeal, I wanted this Arbitrator to return to the private sector and get out of adjudicating IL WC claims.

I got the claim reversed on appeal and salute the IWCC panel for doing so. In traditional IWCC fashion, the panel did not criticize the Arbitrator in drafting his/her inexplicable ruling.

There needs to be a place to listen to complaints about completely crazy rulings. I am happy to volunteer to review/read and save any IL WC Arbitration award any of my readers feel is controversial for either side of the IL WC matrix. If you send it to me quietly, I will analyze and if I feel it appropriate send it to the powers that be for their consideration. Controversial or crazy decisions should be part of the Arbitrator re-appointment process.

If IWCC Chair Fratianni or her Counsel Ron Rascia or someone else with Secret Squirrel influence wants to do this, I would ask them to let me know. Something makes me think that won’t happen but you never know.

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