2-19-2018; Odder then Odd--IL Senate Hearing to Grill, We Mean Question, New WC Arbitrators; Two New IL WC Reform Bills; Dan Boddicker on Active/Passive Prosthetics in Iowa and more

Synopsis: Odder than Odd—the IL Senate Sets a Hearing on Five New IWCC Arbitrators this Friday.


Editor’s comment: One never knows what is going on in this nutty State. We are sure there are lots less new IL WC claims being filed every year than in years past. I am sure there used to be around 75,000 new IL WC claims being filed annually about fifteen years ago. With a shelf-life of about three years, there were about 225,000 pending claims.


I am also sure there were a lot less Arbitrators when there were a lot more claims. When former Governor Blagojevich basically traded political and administrative control of the good ole “Industrial Commission” to the aggressive Plaintiff-Petitioner bar from southern IL, there were about 15 sitting Arbitrators covering about 225,000 IL WC claims across this State. Back in that day, there were six Commissioners who handle post-Arbitration administrative appeals.


About fifteen years ago, when the newly named Illinois Workers’ Compensation Commission took over for the good ole Industrial Commission, a new levy was placed on IL WC insurance premiums along with a similar levy on self-insured employers. This unprecedented levy more than tripled the budget of the IWCC. The number of IL WC Arbitrators increased to where it is now over 30. The number of newly filed claims is now just over 40,000 a year. Again, with a shelf-life of about three years, simple math indicates there are about 120,000 pending claims with more than 30 Arbitrators and 9 Commissioners who hear administrative appeals.


When does someone do a study and see if we are truly keeping around 40 hearing officers busy? Please remember I don’t want to challenge or question the hard work of the hearing officers myself and our other attorneys appear before—my worry is the State of IL is awash in red ink. Our crazy State government routinely overstaffs almost any and every job and service it provides. No one ever appears to care about efficiency or effectiveness in providing government services—all anyone in gov’t cares about is raising taxes and borrowing billions we don’t have and can’t afford.


The idea from the secret-powers-that-be that run the IWCC was more hearing officers would mean faster adjudication of IL WC claims. There isn’t a single defense client of our firm that believes IL WC claims move rapidly. Some of them feel we could have 200 Arbitrators and Commissioners and it would still run at a snail’s pace. The defense team at KCB&A takes pride in saying we move files faster than any of our competitors but there are still factors that stymie us and make it hard to get some claims closed if the other side wants to stall and stall and stall.


IL Senate Hearing to Meet Newly Appointed IL WC Arbs??? Wassup???


In an unusual move, we learned the IL Senate Judiciary Subcommittee on Tort Reform has scheduled a hearing for this Friday, February 23rd at 11 am to grill, we mean question the 5 newly appointed IL WC Arbitrators. I feel this is unprecedented and I am sure no IL Senate Committee or Subcommittee has ever done this in the past.  


·        Thomas Ciecko,

·        Robert Harris,

·        Robert Luedke,

·        Tiffany Nicole Kay, and

·        Charles Watts.


Please note these hearing officers are all Rauner appointees and are expected to be moderate and not wacky liberal. They have not been around for very long but it is our understanding they were all approved by the Senate for their appointments or they wouldn’t have started work.


The hearing will be held in room C600 Michael A. Bilandic Building 160 N. LaSalle St., Chicago.


We understand all 5 of these arbitrators were supported by the Illinois Chamber through the IWCC Advisory Board within the last year. We are also advised IL Labor and petitioner attorney representatives to the IL WC Advisory Board also supported these appointments. I encourage my readers to send someone to this odd hearing in support of these Arbitrators. Please also send me your best thoughts and I will print them with or without attribution to you.


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Synopsis: Two new IL WC reform bills of interest to my readers were introduced into the IL legislature before the deadline.


Editor’s comment:


1.      HB 5240 This is an effort from the WC gurus at the Illinois State Chamber of Commerce that amends the IL Workers' Compensation Act to require a recipient of some pain management medications to sign a written agreement with the prescribing physician agreeing to comply with the conditions of the prescription.


The bill also prohibits additional prescriptions while the recipient is noncompliant. This bill limits the applicability of the lack of pain management as a consideration in awarding IL WC benefits. The bill also provides for the disclosure of violations of the agreement upon request by the employer. Finally, the bill requires the prescribing physician to file quarterly reports to obtain payment. I support most of the legislative efforts of the IL State Chamber of Commerce and I strongly support this one. I believe it is now in a Rules Committee.


2.      The other WC “reform” bill is HB 5354. It appears to be supported by the IL State Chamber but not by me. I feel it is an effort to make changes to allow the Republicans to claim it will magically bring IL WC costs down. It is possible it may make some costs and coverages go up.


This bill amends the Workers' Compensation Act and limits the scope of the longstanding term "arising out of and in the course of employment". In my view, why tinker with something that isn’t broken? Focus on great hearing officers that understand and apply the law.


The bill makes changes regarding recovery when an employee is travelling—I hate any effort to twist or skew the term “traveling employee.” Someday, our legislature may realize they can’t fix the impossible-to-understand WC term so stop “reforming” it.


The bill increases the duration of the period of temporary total incapacity supposedly necessary for medical recovery. Huh?


The bill provides returns injuries to the shoulder and hip to be considered as injuries to the arm and leg and not “body as a whole.” This implicitly reverses a controversial Appellate Court ruling.


The bill provides for the implementation of a closed formulary for prescription medicine. It also provides for electronic claims.


For reasons no one will ever understand the bill requires the posting of collateral when seeking judicial review of a decision of the IWCC and not just an appeal bond.


The bill also provides another penalty for vexatious delay in payment of IL WC benefits. The bill also increases criminal penalties for specified unlawful acts. This new bill requires the IL Workers' Compensation Commission to provide annual reports to the Governor and General Assembly regarding self-insurance. Yawn.


The bill amends the IL Freedom of Information Act to exempt certain workers' compensation related information from the scope of that Act. Finally, the bill amends the Criminal Code of 2012 to create the criminal offense of workers' compensation fraud and prescribe penalties.

Synopsis: Iowa Appellate Court holds a set of prosthetic devices includes both a passive and active prosthetic hand. Analysis by Daniel J. Boddicker, J.D., KCB&A’s Iowa Defense Team leader.

Editor’s Comment: A recent Court of Appeals of Iowa decision holds Iowa employers are legally obligated to provide both an active and passive prosthetic hand to an injured worker.

In the case of Nestle USA v. Conell, 2018 Iowa App. LEXIS 119 (Feb. 7, 2018), the Court held Iowa Code §85.27 required the employer to furnish no more than “one set” of permanent prosthetic devices. Section 85.27 states, in part, that “The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices.” The employee’s hand was severely injured in an industrial accident. The employer supplied a mechanical prosthetic device that allowed the employee to manipulate his thumb and index finger. The employer argued section 85.27 obligated it to provide only one permanent prosthetic device. The court decided more was required.

The court pointed out the employee testified due to the weight and construction of the mechanical device, he could only use it a few hours per day. Additionally, according to a psychologist, the employee felt like a “Frankenstein figure” when using the mechanical prosthetic and avoided the general public when using the device.

The passive hand looked much more like a natural hand. The court held the active and passive prosthetics together were a set that allowed for the employee’s long-term health and functionality.

This article was researched and written by Daniel J. Boddicker, J.D. You can reach Dan at any time for questions about workers’ compensation at dboddicker@keefe-law.com.