5-24-2011; Illinois Workers’ Compensation Reform Week in Review

We are clearly in the last lap, folks; as you read this, the clock is rapidly ticking down the last eight days of May 2011 and the scheduled end of the current legislative session. We feel confident they aren’t going to waste money by going into overtime sessions, particularly because the State is soooo broke. So, if IL WC reform ever will happen during 2011, it will probably come this week or possibly not this year, infuriating business representatives and corporate CEO’s. Either way, we feel WC reform is needed but we are concerned the powers-that-be are so eager to pass reform that they may be doing things in a hasty and rushed fashion. For this reason, we are concerned the legislation could be less than ideal, with unintended consequences upon implementation.


There is a chance the workers’ compensation reform process may be deferred from the current legislative session and move into an agreed bill process. In the agreed bill reform process, things are hashed out until both sides have things they want and then the legislature and then the Governor basically signs off on it. From our perspective, the problem with the agreed bill process is everything happens completely in secret. We have no idea how one is invited to the table. We are certain the media and public can’t find out what the secret attendees are up to until just before the Governor considers it and signs it. The idea of “public debate” in an agreed bill process is out the door. So whatever happens, keep watching this space—if a bill gets posted on the General Assembly website that we feel may have a chance of passage, we will let you know. We are also going to provide a free webinar to anyone in the IL WC industry who wants our thoughts and expertise. The webinar will be offered sooner rather than later.




On a related “WC reform” issue, we have to ask our readers--are they going to fire all the Arbitrators? We are now hearing rumor after rumor. Will someone please provide the Illinois WC industry information and direction on what is going on with them? Can the politicians leave our veteran and beleaguered Arbitrators alone and find someone or something else to pick on? We were advised by numerous reliable sources there may be a plan bouncing around to fire all the sitting Arbitrators and possibly Commissioners at the end of the State of Illinois’ fiscal year in five weeks on June 30, 2011. Thereafter, the Governor or the Chairman or some unknown group is supposed to considering reinstating individual Arbitrators and/or Commissioners on a case-by-case basis. There is also a concern a lot of “newbie” and untested Arbitrators may be named. In our view, that is a very poorly hatched plan and we have no idea why it is being bandied about.


This past week, we were advised there may be some Arbitrators who are concerned they cannot ethically set hearings in July 2011 or thereafter. We do feel there may be ethical concerns with setting trial/hearing dates in July if the sitting Arbitrators may not be employed by the State after next month. If the rumors are true and they fire all the sitting Arbitrators, we cannot wait to see the newspaper, TV or web-based news where a widow, widower or starving family cannot get a hearing or a settlement considered because there is no one with a brain available to handle a complex workers’ compensation dispute. As veteran defense lawyers we are always infuriated when politicians and other observers outside this system think it is simple and/or “child’s play” to resolve multifaceted workers’ compensation legal challenges. Veteran Illinois WC Arbitrators have to understand arbitration procedures outlined in the Rules Governing Practice along with the intricacies of the Illinois Workers’ Compensation Act. On top of that, they face the demanding challenge of keeping up with a continuing stream of Appellate and Supreme Court rulings which routinely change the minutiae of their day-to-day decision-making.


Please note the Arbitrators have not been asked by us or anyone else about the “fire-everyone-hire-some-back” plan we outline above. We didn’t ask to avoid jeopardizing their jobs—there is an encompassing clamp-down by the Governor on any comments or discussions by our Arbitrators with the media. All questions of any kind have to be directed to an “I-don’t-know-but-I-might-get-back-to-you-on-that” public relations flack with the Governor’s staff whose job is to deflect and deflect the media from finding out what is actually happening with this $30 million dollar a year state agency. We are certain any inquiry to the PR flack will provide no information of value. We feel this public relations approach from Governor Quinn highlights various contradictions in his governance of our state.


First, he has claimed there is a strong Freedom of Information Act impetus to open up state government to view by the taxpayers. We consider the clamp on the Arbitrators to be a complete contradiction solely designed to dominate the workings of our WC Commission, some of it by people who don’t understand the system.


Second, our Arbitrators are supposed to be civil servants. In contrast to the Commissioners whose positions are openly political, Arbitrators are supposed to be independent and have job protection which allows them to fairly decide the facts before them. That is what “civil service” is for—we have no idea how they are going to summarily fire all these civil servants without hearings or any due process. Whoever thought of this goofy idea is doing precisely the opposite of what “civil service protection” is supposed to mean.


Instead, one of Illinois’ WC system’s age-old secrets is that many of the Arbitrators are treated as political appointees and therefore subject to termination at the whim of the Governor or any other politician. We have long complained the selection process for Arbitrators has been guarded like nuclear missile secrets—we have no idea why the civil service process is hidden from the media. It is also somewhat comical to consider civil service testing results for police and firefighters across our state are openly published but testing for the Arbitrator position which pays double the amount of police/fire positions is kept a tightly guarded secret.


If firing all of the arbitrators is truly being considered, we consider it a travesty. Although we certainly don’t always agree with their decisions, we cannot endorse a mass termination of our seasoned adjudicators. Individual reviews would be a far more prudent approach to consider. If it is coming from the Governor, he hasn’t announced it on his website or in the media. The IWCC itself didn’t meet to make the decision. The Illinois Workers’ Comp Advisory Board didn’t meet to make such a determination. We have no idea who is doing this, how it is being done or why. Hey, the Commission handles something like $3 billion in benefits for injured workers and spouses of decedents in this state; is it conceivable there is anything good about firing every Arbitrator and Commissioner to put the whole thing up for grabs and into chaos? If you have any information fit to print, please send it along.




We recently had a reader forward an article from the Belleville-News Democrat about Arbitrators John Dibble and the former Jennifer Teague who has filed court papers necessary to change her last name to Carril. They were put on paid administrative leave on February 15, 2011 and remain on such leave. One would think someone should be considering the next step on this one but again, all information is locked tighter than King Tut’s sarcophagus. We will just have to wait and see where all this goes in the secret world of Illinois workers’ compensation.




We thank one of our readers who forwarded the link to the determination by Attorney General Lisa Madigan and her staff about the refusal of Central Management Services (CMS) to disclose the diagnostic testing which led to all the carpal tunnel syndrome and cubital tunnel syndrome claims coming from the Menard prison. We were fascinated to hear Central Management Services would try to hide it, even though the request only asked for 50 tests and they agreed all identifying information should be kept out of the disclosure.


The link to the determination allowing disclosure along those terms is on the web at: http://foia.ilattorneygeneral.net/pdf/opinions/2011/11-005.pdf


The Belleville-News Democrat FOIA requests are pitting two state agencies against each other. The legal battle could escalate rapidly today when the deadline expires for anonymous medical tests conducted on Menard Correctional Center guards who received settlements for carpal tunnel syndrome and other repetitive trauma injuries. Attorneys for the state Central Management Services Department may file a circuit court appeal of the Illinois Attorney General's opinion the records are public and should be released. Or, they could turn over the records. A spokeswoman for CMS agreed to provide a comment but later could not be reached.


Read more: http://www.bnd.com/2011/05/23/1719014/request-deadline-is-today.html#ixzz1NCmXY86t


The request we want someone to make is to ask CMS how many times each year they get hit with awards of penalties and attorney’s fees. Our sources tell us the amount is well into the millions which results when one state employee, the Arbitrator, penalizes another state employee—the CMS adjuster to the benefit of a third state employee—the injured worker. Again, this is another patent example of longstanding mishandling of State Government workers’ compensation claims by impossibly overworked adjusters that we consider scandalous.


All of these shenanigans hit you and me, the taxpayers with unnecessarily higher State government WC costs. We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog at www.keefe-law.com/blog.