6-21-2011; “Russian Roulette” for our Arbitrators in Illinois Workers’ Compensation. Do we really want to put a live round in the chamber of this revolver, spin it and start clicking?

Editor’s comment: The whole Illinois WC industry on all sides is scratching its collective head and wondering what the heck happened. If you aren’t aware of it, all sitting Illinois Arbitrators are slated to be fired—sort of. We have no idea what may be on the other side of July 1—we are very concerned to contemplate there may be thirty inexperienced Arbitrators handling hearings involving several billion dollars in important benefits. The IWCC’s website now has a news item which says:

Apply to be an arbitrator

House Bill 1698 provides that the governor will appoint all arbitrator positions. The governor has not yet signed the bill, but the Governor's Office has gone ahead and set up a web page for applications. All existing arbitrators must apply if they wish to be appointed.

To apply for an arbitrator appointment, click here. Go to the drop-down box and select "Workers' Compensation Arbitrators."

It is somewhat odd to note they don’t tell the public if you aren’t a sitting Arbitrator at present, you have to be a licensed lawyer to qualify for the position. The link above takes you to another site which has a heading that says:

Nominate Yourself


As a citizen of Illinois, you are invited to use the form below to nominate yourself for membership on up to four boards, commissions, councils, or task forces. The information we collect will be used by the Governor's office in considering your interest in an appointment. It will be kept confidential and protected from disclosure to the extent permitted by law. If you have problems completing the form, please email gov.appointments@illinois.gov.

Again, it appears almost misleading to not let John Q. Public know they don’t have any shot at the job if they aren’t a lawyer. It is even weirder to see the Governor’s office admittedly collecting detailed personal information to consider interest in appointments most citizens can’t possibly be qualified for.

From our perspective, it would appear pretty clear the Governor is going to sign the 2011 Amendments to the Illinois Workers’ Compensation Act—for those of you who are asking and asking, we have no way to confirm it but every indication is that he will sign and should sign it by the end of the month to keep on track with the July 1, 2011 date for changing the status of the Arbitrators. There is no indication he will not sign it—we are advised if he doesn’t take action by August 1, 2011, the bill will become law by itself.

What it all means to our veteran Arbitrators

If he signs the new bill, Section 14 of the 2011 Amendments to the Illinois Workers’ Compensation Act confirms the term of all sitting Arbitrators shall terminate as of July 1, 2011. Incumbent or sitting Arbitrators shall continue to exercise all duties until they are appointed or successors are appointed. Thereafter all Arbitrators shall be appointed to three year terms by the full Commission. All Arbitrator appointments shall be made by the Governor with the advice and consent of the Senate.

Twelve Arbitrators shall be appointed with terms expiring in about one year on July 1, 2012. Twelve other Arbitrators shall be appointed with expiration of their terms on July 1, 2013 and all additional Arbitrators shall be appointed with terms expiring July 1, 2014. Upon expiration of a term, the Chairman shall evaluate performance of the Arbitrator and may recommend he or she be reappointed. As we indicate above, moving forward, each Arbitrator appointed after the effective date of the 2011 Amendments who has not previously served shall be required to be authorized to practice law in the state of Illinois and maintain such authorization. The Commission shall also assign no fewer than three Arbitrators to each hearing site and the Commission shall establish a procedure to ensure cases are assigned randomly. No Arbitrator shall hear cases in any county other than Cook for more than two years in each three year term.

What this is causing in the day-to-day affairs of running the Workers’ Compensation Commission which is a state agency which doles out several billion dollars in workers’ compensation benefits every year is mild to moderate confusion. Most sitting Arbitrators are cautioning everyone there is no way they can tell if they are going to handle files set for anything more than ten days from now. Lots of claims are being continued until the fall of this year to await the dust settling on all these changes. To all of our clients who want their files closed before the injury occurred, you may have to be patient until the confusion at the arbitration level ends.

The new law also means Arbitrators have very limited tenure and are subject to rapid termination whenever they consider and decide a difficult or controversial claim. As any new Arbitrator will clearly be on the hot seat, we have to wonder who they are going to align with and try to make “happy” in their rulings. Please also note the new Amendments require lots of training for Arbitrators and Commissioners. We are fairly confident defense attorneys aren’t going to be invited to the training sessions and the Arbitrators are going to be taught by the claimant side of the practice.

To the Arbitrators going through this infernal mess, we extend our best wishes and hopes. It is a sad day to see the over-politicization of your jobs but, as a wise person once said, it is hard to take the politics out of politics.

Reforming Causation in Illinois Workers’ Comp—Can We Get the ‘Surviving’ and New Arbitrators to Sign On?

We are also advised the gurus at the Illinois State Chamber of Commerce and other observers such as Attorney General Lisa Madigan are concerned about the fact causation wasn’t addressed in the legislative reforms. We again point out the legislation that was “re-interpreted” by our Supreme Court in cases such as Sisbro and Twice Over Clean to create the wildly liberal standard we are all concerned about didn’t come from legislative change and, in our view, can’t be changed in the legislature. The same language has been in place for about a century—it is up to the Commission and reviewing courts to interpret the Illinois WC Act in a fashion that demonstrates what we feel would be solid logic and sound judgment.

We assert what has happened at the Menard Correctional Center with hundreds of prison guards claiming their work is now an “injury” demonstrates an infuriating lack of judgment. We similarly attack the opinions published by Central Management Services and their expert of choice, Dr. Sudekum who we feel was hired to justify their largesse to the warden, his lieutenants and guards. Dr. Sudekum claimed turning keys in prison locks didn’t “cause” the condition of carpal tunnel syndrome or CTS but it magically “aggravated” it. He did not explain the “aggravation” concept with any real detail. We would love to cross-examine Dr. Sudekum on this opinion but please remember he wasn’t hired to defend the CTS claims and therefore won’t ever be deposed by anyone about his odd opinions. In our view, he was hired solely to justify the payout of millions of taxpayer dollars.

Please remember the Arbitrator assigned and the Commission itself did not and do not have to follow the opinions of an expert on either side—if Dr. Sudekum’s opinions were presented to them (and please note the report and opinions were not used in defense or prosecution of any claim), the Commission has it within their power to completely reject them. If the Commission were to reject such claims and we hope they will start to do so, their opinions on factual determinations are supposed to be final and not reviewable under rulings by our Supreme Court in Sisbro and Twice Over Clean.

One obvious problem with the hundreds of CTS claims for Menard prison guards not addressed by Dr. Sudekum is the normal upper extremity action of turning a key in a lock doesn’t truly involve or stress the wrist in any way. If you hold the keys in your hand to turn them in a lock like everyone in the history of key-holding and tumbler-turning does, the part of your body that turns or pivots when you open a lock on a door is your elbow. It is almost impossible to flex or extend your wrist to affect your wrist and carpal tunnel as part of turning a key in a lock. We assert every reasonable physician or ergonomic expert who would be asked about the incidence and prevalence of carpal tunnel syndrome from turning keys in locks would indicate there is no heightened risk of any kind.

We have said on numerous occasions, common sense has to come back to the Arbitration, Commission and reviewing courts in analyzing whether a condition is “related to work” or not. The “accident” can’t be the degenerated condition of the human being involved—there has always been a requirement of an actual accidental injury. We urge everyone in Illinois to consider and follow the Wisconsin WC standard—the condition isn’t “aggravated” unless claimant can demonstrate their condition is changing markedly faster than the normal degenerative process of human life because of their work.

We point out if Governor Quinn wants to reform the causation standard right now, all he has to do is pick Arbitrators who will start to employ common sense and limit causation to conditions actually and demonstrably caused by work. He can sign the new bill and appoint whoever he wants in ten days. The members of the Commission already are political appointees under Illinois. The Commissioners report to the Governor already. If he wants to reform their view of causation, all he has to do is call them to his office and tell them to get on the ball and implement a causation standard that is sustainable and makes sense to someone other than a rabid claimant attorney. Conversely, anything which might happen in the legislature to “reform” causation can be ignored by our Commission and reviewing courts. We find it maddening to hear the lack of legislative change to causation means we are somehow eternally stuck with an impossible-to-understand and unsustainable causation standard. Our hearing officers can fix it; they just have to show the brains and guts to do so—one great place to start would be at the next hearing for any prison guard claiming carpal tunnel syndrome.