11-29-2022; Oregon WC Premium Study is Published and IL WC is Actually Close to the Middle; Another “Never-Ending” Story of an IL WC/OD claim and more

Synopsis: Illinois WC Premiums Remain in the Middle of the Pack.

Editor’s comment: The “every-other-year” Oregon WC Insurance Premium Rankings are out. It is difficult to find a metric for WC costs around our great country but Oregon has what I, and most WC observers feel is the most scientifically significant ranking for WC insurance premiums.

New Jersey maintained its spot as the most expensive state in the U.S. for purchasing workers’ compensation coverage in the ranking by the Oregon Department of Consumer and Business Services.

While the top half of the list remains populated by California, New York and Hawaii, Wyoming, of all states, is now in the top 10 following a more than 29% increase in average costs in 2022.

Average premiums of $2.44 per $100 of payroll in New Jersey were 192% of the study median — $1.27 per $100 of payroll set in Pennsylvania. New Jersey also topped the year 2020 analysis with average costs of $2.52.

Hawaii, which ranked fifth in 2020, jumped to second place in 2022 with average premiums of $2.27. California jumped from fourth in 2020 to third in 2022 with average costs of $2.26. New York dropped two spots to fourth in 2022 with average costs of $2.15. And Louisiana, which ranked eighth in 2020, rounds out the top five in 2022 with average costs of $2.13.

The Illinois WC premium costs moved up five spots to 19th with an index rate of $1.39. Noting number 25 is half, our IWCC has kept costs reasonable for the last study period. We are sure they are working to be fair and reasonable in evaluating accidental injuries.

In my view, the biggest and most expensive continuing issues with IL Work Comp are

• The new focus on “body as a whole” for anyone with any arguable job restriction, even if the employer fully accommodates. When a restriction is present, regardless of its validity, PPD spirals up in a fashion I struggle to understand. As I have told my readers repeatedly, don’t use or pay for FCE’s—they don’t help IL WC defense at all. If you are not sure why, send a reply.

• The never-ending litigation where no Arbitrator is willing to put their foot down and start dismissing claims when nothing is happening from a Claimant attorney for years on end.

Another odd potential out there is the possibility things like “walking” at work would be deemed to be an “accident”—I reported this judicial anomaly recently and hope it doesn’t become a legal trend for this system, as costs will then staggeringly skyrocket. I also feel we may then see litigation levels drop, as certainty of indefensible claims may cause employers to pay everything and everyone. That means claim costs/reserves will go up. I ask everyone—how do you possibly reserve an IL WC claim if the only issue is Claimant was “walking” at work when they felt pain? In what language is walking an accident?

Florida and Texas saw little change in their rankings. Florida moved down one spot to 28th in the latest study with average premiums of $1.26. Texas moved up three spots to 46th with average costs of 88 cents.

Oregon moved up three spots to 42nd with average costs of 93 cents per $100 of payroll, tied with Colorado.

The Oregon stat-geeks said the U.S. national median index rate of $1.27 per $100 of payroll is the lowest value since it started conducting the national rate comparisons in 1986. In the first year of the study, the national median index rate was $3.18 and by 1994 it had increased to $4.35.

The Oregon Department also reported narrowing in the range of index rates during the history of the study. In 1988, for example, the index for the most expensive state, Hawaii, was $6.50, and the index for the cheapest state, Wyoming, was $1.04. The spread in the latest report is from $2.44 to 58 cents in North Dakota.

The Oregon study calculates rates for all 50 states and D.C. using a standard mix of the 50 industries with the highest workers’ compensation claims costs in Oregon. Although intended to inform Oregon lawmakers about how the state’s system is performing compared to others, the report is often used as a benchmark by legislators and regulators in other states as well.

The 2022 Oregon work comp premium rate study is here.

Reports from previous years are available here under the “workers’ compensation premium rate ranking summary” tab.

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

Synopsis: Another “Never-Ending” Story of an IL WC/OD claim. Is There Any Way to Move Such Claims Faster?

Editor’s comment: In Cummings v. IWCC, decided August 5, 2022, the IL WC Appellate Court considered a claim that started in November 2014 or about 8 years earlier. What is clearly odd about the claim is Petitioner is seeking benefits for an occupational disease of unknown identity. Please consider how strange that is—how can an Arbitrator and/or the IWCC review panel provide benefits when the disease remains unknown eight years later? To this moment, there is no strong proof of any scientifically documented “occupational disease” process in Claimant’s body.

After a hearing, the Arbitrator denied benefits, the IWCC review panel affirmed the denial and the Circuit Court confirmed denial also.

The IL WC Appellate Court, in its wisdom, focused on 109 pages of medical records. The problem with the records is defense counsel didn’t have a problem with their admission and put the lack of objection on the record. The Arbitrator, acting on his own, noted there was a lack of certification of some of the records and refused to consider them, regardless of the lack of objection by defense.

Please note the rejected records should have been placed into the record as a “rejected exhibit” and therefore could have been informally considered by the Commission, the Circuit Court judge and the Appellate panel. If there was blockbuster evidence in those rejected-but-attached records, I truly feel some one of the three Commissioners, single Circuit Court judge or five Appellate Court justices could have noted it and sought their admission.

Instead, the Appellate Court, WC Division unanimously considered the Arbitrator’s refusal to consider them as reversible error, mandating the entire claim be returned to the Commission for another several years of litigation for an occupational disease that still doesn’t have a name.

On remand, the IL WC Commission will consider the 109 pages, then issue a new decision to then possibly return to the Circuit Court to then return to the Appellate Court, hopefully before the end of the next decade.

All I can do is shake my head and ask everyone in this system to move things faster so employers/insurance carriers and local municipalities aren’t paying exorbitant carrying costs for endless litigation. If you want to read the Appellate Court’s ruling, please send a reply.

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

11-18-2022; What Happened During the Election Last Week; Can Walking Now Be An "Accident" in This Nutty State?

Synopsis: What Happened in Illinois During the Election Last Week.

Editor’s comment: As I have advised our readers, Illinois is a “one-party” State and will remain same for at least a generation to come. In my view, Illinois is no longer a “democracy” because so many voters have an overridingly strong incentive to maintain their government benefits, in particular the fake and unfundable government pensions that are akin to winning the lottery. It is also truly odd for our Governor to admit he spent about $350 million of his own money to be Governor and do very little, almost nothing, in the office.

Along with that, our prior Speaker of the IL House “cooked the books” to gerrymander districts across our State to insure a one-party State was created. The districting will eventually change as the years go on but for now and decades to come, this State is going to be “blue.”

What Does It Mean to IL WC?

Well, the lack of a presence or any political strength by the IL State Republican party will probably mean our hearing officers will remain liberal. We still feel many of our IL WC Arbitrators bring strong common sense, fairness and perspective to what they do but if you read the “non-published” decision I provided below, as veteran defense counsel(s), we remain challenged on when to fight questionable claims and when to best settle. I feel the Arbitrator and Commission did their job to deny the claim to then have the IL WC Appellate Court flip it and provide six or seven-figure benefits. I am stunned to see a reversal if you understand our IL WC Appellate Court routinely allows the IWCC to make the call on medical issues and causal connection.

Most of my readers and I feel our IL State WC system is going to remain uncertain, expensive and unfriendly to businesses, local governments and WC insurers. If you need help with your IL WC defense agenda, send a reply and I assure you I can help.

Did They Change the IL State Constitution? Was That Amendment Truly Needed?

Please also note the so-called “Workers Rights Amendment” passed, creating another major issue for voters/taxpayers. Along with duplicating the fake pension protections already in the IL “pension clause,” the new Amendment will allow government unions to triple the pay and benefits given gov’t unions across the State. They will now be able to fight for taxpayers to subsidize their housing costs, working hours, travel expense, paid paternity/maternity leave, block layoffs and all sort of other benefits.

A New York Supreme Court Justice held:

To tolerate or recognize any combination of civil service employees of the government as a labor organization or union is not only incompatible with the spirit of democracy, but inconsistent with every principle upon which our government is founded. Nothing is more dangerous to public welfare than to admit that hired servants of the State can dictate to the government the hours, the wages and conditions under which they will carry on essential services vital to the welfare, safety, and security of the citizen. To admit as true that government employees have power to halt or check the functions of government unless their demands are satisfied, is to transfer to them all legislative, executive and judicial power. Nothing would be more ridiculous.

Trust me, our IL State Government just signed on to have government unions effectively take over. The only thing I am sure that is going to cause is more debt and taxes in a State already awash in red ink.

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

Synopsis: IL WC Appellate Court Awards Benefits for Garbage Truck Driver's Claim for Repetitive Trauma “Injuries” While Walking. Is “Walking” now an IL WC “Accident?”

Editor’s comment: As I have advised our readers repeatedly, if Illinois WC goes to a system where accidents cannot be defended, we aren’t going to need lawyers, Arbitrators, Commissioners or most others currently in the IL WC system. Like Group Healthcare, Claimants will be advised to fill out forms and benefits will follow.

Please also note my concern about the use of the term “injury” in this Appellate Court decision—With respect to the members of the Court, in my view, Claimant never described an injury and the way the Court uses the term is troubling, in my opinion. If a claimant tore up a shoulder playing baseball away from work but later noticed pain at work, that isn’t an “injury” and the employer should not have to pay for such claims. To keep Illinois a litigation system of resolving work “injuries” or problems, we can’t have “pain at work” translate into “injury.”

The Illinois Appellate Court awarded benefits to a garbage truck driver based solely on “repetitive trauma” problems. In Malecki v. IWCC, No. 1-21-0713WC, 09/23/2022, Claimant Malecki worked for Waste Management as a commercial garbage truck driver. His daily duties consisted of collecting garbage along a 75- to 125-stop route during a 10- to 12-hour workday.

Between January 2008 and April 2016, Malecki claimed he experienced pain in his lower back radiating down to his right thigh, for which he sought treatment from Dr. Neeraj Jain. A magnetic resonance imaging scan taken in January 2008 revealed degenerative disc and facet arthrotrocopy at L4-L5 and L5-S1; he also had tiny discs in his back that is typical for folks of his age and habitus.

A February 2010 scan revealed degenerative changes and spinal stenosis at L4-L5. A November 2015 scan revealed a grade 1 anterolisithesis at L4-L5, spondylosis changes at L4-L5, mild arterolisthesis, severe spinal and bilateral recess stenosis at L4-L5, and multilevel neural foraminal stenosis. Claimant Malecki received chiropractic adjustments from September 2014 through June 23, 2016.

Malecki claimed he started to feel his right foot get “heavy” while walking to his truck during his route on July 6, 2016. He completed his work shift and went home, where he claimed he continued to have difficulty moving his right foot.

The next day, Malecki alleged he completed an incident report with Rich Sarac, a district manager. Sarac later denied filling out the report with Malecki or that Malecki reported any “injury.”

On July 12, 2016, Malecki saw Dr. Hamidanti, his primary care physician. The doctor’s notes state that Malecki was complaining of leg pain that started three weeks prior. Hamidanti also noted that Malecki was walking with a limp and had decreased sensation on the lateral leg and dorsum of the right foot and thigh. Malecki saw Dr. Darwish on Aug. 5, 2016. He completed a patient assessment form in which he recorded that his symptoms occurred on July 6, 2016, and that it was a work-related “injury.” Darwish made an initial diagnosis of spondylolisthesis.

On Aug. 25, 2016, Darwish diagnosed Malecki with right foot drop and recommended a transforaminal lumbar fusion of L4-L5 and L5-S1. Darwish performed the surgery a week later. He opined Malecki’s job duties have “some causal connection” to the condition for which he was treated.

Malecki filed a workers’ compensation claim, asserting he had suffered repetitive trauma injuries that manifested on July 6, 2016.

An arbitrator denied the claim and found Malecki failed to prove he sustained a compensable injury, did not provide notice of an injury to Waste Management, and that his current condition of ill-being was causally related to a work accident. The arbitrator specifically found Malecki was not credible as well.

The Workers' Compensation Commission affirmed, as did a circuit court judge.

The Illinois Appellate Court said the arbitrator erred in finding Malecki was unable to provide any specific testimony relating to the actual route or activities he was engaged in on July 6, 2016, when he noticed an increase in symptoms.

“Contrary to this finding, the record reflects that the claimant testified to his daily duties as a garbage truck driver and specifically stated that, on July 6, 2016, when midway through his route and after dumping two yard containers filled with cardboard, he started to feel his right foot get ‘heavy’ as he walked to his truck,” the court said.

The Court further said the discrepancy in evidence between whether Malecki worked on July 7, 2016, was not relevant to the issue of whether he had sustained an injury or gave proper notice.

“The arbitrator also relied upon the fact that the claimant did not demonstrate any increased risk of harm to which he was exposed which contributed to his symptoms while walking to his truck,” the court noted. “The finding is based upon the incorrect assumption that walking was a claimed contributing cause of the claimant's symptoms.”

The Court outlined Malecki’s testimony was that he started to feel his right foot get heavy walking to his truck, not that his symptoms were caused or contributed to by walking to his truck. The Court also said Dr. Darwish also testified that, to a reasonable degree of medical and surgical certainty, Malecki’s job duties have “some causal connection” to the condition for which he was treated.

The Court further said the causation opinion was insufficient to support a finding that Malecki failed to prove that his condition of right foot drop is causally related to his employment, since he never offered an opinion as to whether Malecki’s job duties on July 6, 2016, contributed to his condition.

The Court went on to find the commission’s determination that Malecki failed to give timely notice of an injury was against the manifest weight of the evidence.

“In this case, there is no disputing the fact that the claimant gave notice of his July 6, 2016, injury at the very latest on July 25, 2016, when he gave the completed employee report of injury form,” the Court said, noting this date fell within the 45-day notice period provided by Illinois law.

To read the court’s decision, click here.

10-30-2022; Please, Please Vote Against Amendment 1, the so-called "Workers Rights Amendment"; IL State Chamber WC Seminar This Wednesday--Still Time to Register and much more

Synopsis: Unless You Like Wildly Higher Taxes and Overpaid IL Government Workers, Please, PLEASE Vote Against Amendment 1, the so-called “Workers’ Rights Amendment.”

Editor’s comment: I assure you the State of Illinois is wildly in debt, to the tune of billions and billions of dollars. Our State government got a one-year reprieve from its financial misery because the Democrats in Washington borrowed trillions of dollars and spread it out among the States in a fashion that allows those States, like Illinois, to falsely claim they had a good financial year.

Right now, I feel confident Illinoisans are paying the highest tax load in the entire country. We have ever-higher income, real estate, sales, estate, gas and other taxes unlike any in the 50 states. Our road tolls were increased four times and by as much as 90% in the decade ending in 2019. On January 1, 2022, truck/trailer toll rates were again increased, supposedly to improve things—no one has any idea what those “improvements” might be.

I am sure the County of Cook and City of Chicago also have gigantic debt and spiraling taxes unlike any other governing bodies of like size.

Why are Illinois taxes skyrocketing?

Well, www.OpenTheBooks.com wants us to consider the Illinois government employee $100,000+ Club. They are sure this “club” is comprised of 132,000+ public employees and retirees who earned a new 'minimum wage' of $100,000 or more. These workers cost Illinois taxpayers $17 billion a year, every year with more raises to come.

They point out while crime skyrockets in your neighborhoods, test scores plummet in our public schools, and inflation decimates private-sector paychecks, the Illinois public “worker” class is living the good life. They found nearly 500 educators in the public schools with salaries between $200,000 and $439,000. In small Illinois towns, city managers made up to $341,300. Three doctors working in Illinois government at the University of Illinois at Chicago earned incomes between $1 million and $2.1 million.

How Are Folks in Illinois Government Wasting Your Tax Money?

I have advised my readers in the past, there are 88 Illinois State Agencies. Many of these agencies are duplicative and there are lots and lots of workers whose jobs are unclear and hard to pinpoint. Hundreds of overpaid jobs could be eliminated if State government would use what are called “computers” to eliminate government waste.

As an example, about a decade ago, the late Judy Baar Topinka confirmed the IL State Treasurer and Comptroller’s offices do exactly the same thing—they are duplicate agencies, performing duplicate work with no value to taxpayers. Judy told everyone this more than ten years ago and nothing has been done to cut the fat.

Feel free to ask yourself, “why is there an Illinois Department of Transportation and an Illinois State Toll Authority?” Don’t they both manage our roads? Couldn’t they be consolidated to eliminate duplication and waste?

Please also note Illinois State government has at least six overlapping police departments, many of them tied to IL State agencies. Does anyone have any idea why there is a “Secretary of State Police Department” and what those sleuths do to justify their existence? Does our IL Commerce Commission need its own do-nothing police department?

So What is this New IL Workers’ Rights Amendment?

In short, it is another hoax being foisted on Illinois taxpayers, this time by government union bosses. Naming it the “Workers’ Rights Amendment” is the first hoax—the law only applies to IL Government Union Workers. As I have outlined above, hundreds of thousands of Illinois government workers make over $100K while working and get hefty fake gov’t pensions after retirement. If you want to know why I call them “fake” gov’t pensions, send a reply and I will expand on that thought.

The two main concepts these government union bosses are seeking is to

• Block any chance our State may take the “fake” out of our unquestionably fake and unfundable government pensions. The amendment will prevent the Illinois legislature, governor, city councils, county boards and every other elected official or governing body to create any law or ordinance now or in the future that is designed to reform Illinois’ public pension systems.

• The amendment will also permit any public union to negotiate and receive whatever it wants at the bargaining table. This would include police, fire and other public safety employees who are currently unable to walk off their job to do so. The amendment will allow such public safety employees to bargain over the “right” to strike. Additionally, the amendment will prevent the state or local units of government the ability to create any law or ordinance that prevents unlimited giveaways at the bargaining table --- allowing public sector unions to demand and receive an unlimited amount of pay and benefits (with dues going back to the labor unions, of course). If this isn’t clear enough, perhaps think about this way: what current Illinois politician who controls the state’s finances will want to say “no” to the very labor unions supporting them politically? Can you imagine paid maternity and paternity leave for a year or two years or three years for government union workers? If you can’t imagine it, I promise they can and may do so.

In short, this fake and stupidly named “Workers’ Rights Amendment” will insure we are beholden to Illinois government union bosses and our State taxes are unquestionably going to continue to rise, rise and rise again.

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

Synopsis: Great WC Seminar this Wednesday—Register ASAP!!

Join us November 2, 2022

3003 Corporate West Drive, Lisle, IL 60532

8:00 am - 3:30 pm | In Person Conference

11:10 am–12:00 pm Workshop #2:

Shawn Biery, John Campbell, and Jim Egan

Keefe Campbell Biery & Assoc.

Working Remotely and Workers Compensation Claims

The Illinois Chamber of Commerce along with attorneys from Keefe, Campbell, Biery & Associates will present a workshop regarding Working Remotely & Workers’ Compensation Claims in the Covid Era. The workshop will provide an overview of some of the pitfalls and strategies with remote workers in this new Era as well as tips for utilizing various combined approaches to investigate claims, deal with subrogation issues, and tools to effectively manage employee expectations as well as determining when and where to implement protocols for claim management. As applicable, we will discuss HIPAA compliance, outside insurance issues, and managing injured workers remotely to effectively move toward closing claims and day-to-day injured worker management. The presentation is conducted in format where the audience is welcome to participate with questions to drive the discussion to areas of specific concern.

Register Here

Our Speakers

Shawn Biery received his JD from Thomas Jefferson School of Law in 2001. He was a founding member of Keefe, Campbell, Biery & Associates in 2003 after practicing in employment law and patent law firms prior. Shawn utilizes strategies similar to those he developed while an active duty member of the US Marines conducting desert warfare training. In addition to his work as a courtroom litigator, Shawn is also an adjunct law professor and regular speaker regarding workers’ compensation and employment law issues.

John Campbell received his John Campbell received his JD from Chicago-Kent College of Law in 1999 and co-founded the Keefe, Campbell, Biery & Associates firm in 2003. John’s area of concentration is in workers’ compensation as well as employment and OSHA citation defense. John enjoys teaching as an adjunct professor of workers’ compensation law as well.  JD from Chicago-Kent College of Law in 1999 and co-founded the Keefe, Campbell, Biery & Associates firm in 2003. John’s area of concentration is in workers’ compensation as well as employment and OSHA citation defense. John enjoys teaching as an adjunct professor of workers’ compensation law as well. In addition to his work as a courtroom litigator, John is also an adjunct law professor and regular speaker regarding workers’ compensation and employment law issues.

Jim Egan received his JD from John Marshall Law School in 1988. He is a thirty-year practitioner with extensive civil practice throughout the State of Illinois. Formerly managing partner of James F. Egan and Associates, Ltd., Jim was recruited to merge his practice with Keefe & Associates as of January 1, 2004.  He has lectured frequently on the Illinois Workers’ Compensation Act and is a contributing lecturer for Rosecrance Legal Considerations of Marijuana in the Workplace presentations and podcast. 

To register to attend or for any questions, contact Pam Holleman,

at (855) 239-6150 or pholleman@ilchamber.org