1-30-12; In no particular order, here is what may be happening to all of us in our Illinois WC system

First, we are seeing continued clarion calls for IL WC Reform: IL State Chamber President Doug Whitley published these thoughts (in pertinent part):

Legislators must revisit the workers' compensation statute. There was progress in 2011, but the results are not going to show sufficient savings to move Illinois from the top of the list of most expensive states when workers' compensation costs are measured.  In order to change the state's standing there must be a clear and dramatic departure from past practice. The private sector employer community must keep legislators focused on the need to change the definition for determining work-related injuries.  Legislators should be reminded that since public agencies - including the state - are major employers, reducing workers' compensation expenses can help them with government budget problems.

In response to this great business leader, we agree the time is ripe to continue to “reform” our state and this system. The problem is we don’t feel our legislature is going to be able to do it—reform is going to have to come from our new and improved administrators who have to have the guts and brains to move costs modestly lower and make more sense for businesspeople across our state and country. We join with Cook County Chairperson Toni Preckwinkle, Chicago Mayor Rahm Emanuel and Governor Patrick Quinn who are starting to intimately understand jobs are a vitally important issue for all Illinoisans. Reasonable and competitive WC costs are important to bring new jobs to our state and keep existing jobs here.

Second, the top-notch editor of the Illinois State Bar Association Workers’ Comp Section’s Law Update Richard D. Hannigan, J.D. recently published his well-researched thoughts on potential WC reform (again, in pertinent part):

As stated in Marbury v. Madison, “the very essence of civil liberty … Consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” To exclude work-related injuries from the Workers’ Compensation Act by requiring the accident to be more than a causative factor would open the courthouse doors for those injuries not covered under the act. In the circuit court the employee will only be required to prove that the negligence of the employer was the proximate cause of his injuries. Proximate cause in negligence is one of the efficient causes of the injury without which the injury would not have resulted. At common law, a plaintiff can obtain recovery even if the alleged negligence was one of several causes that, when considered independently, would not constitute a prevailing factor. Therefore, a change in the causation requirement would create a substantial barrier to compensation for workplace injuries. However, it would not preclude the injured worker or his family from obtaining a judgment from a jury. This would also open the door for all manners of damages including pain and suffering as well as loss of consortium.

If the goal of the Legislature is to create a more friendly work environment for employers what will be the cost of their premiums when they must go to the insurance company to seek liability coverage for their negligence when an employee’s injuries are not the result of a significant cause but are the result of a proximate cause of the employer’s negligence. Should an employer negligently allow a marble to fall off the table and strike the eggshell skulled employee rendering him a quadriplegic, what would a jury award the employee and his family? I have no statistical data to back up this assertion but I am advised that the majority of employers in the state of Illinois are “mom-and-pop” employers. If they cannot afford the increase in liability premiums to cover workplace injuries that do not come under the Workers’ Compensation Act will they simply shut their doors or go elsewhere.

Third, in response to this illustrious writer and his continued focus on pressuring Illinois business with concerns about runaway juries for what he feels should otherwise be WC claims, we continue to complain about “repetitive working” claims where the employee did their normal work in a normal way and their shoulder/foot/(insert body part) spontaneously got painful without trauma, safety breakdown or other workplace concern of any kind. Only in a passionately liberal WC system would anyone consider such problems compensable. We don’t think defense clients would be the slightest bit concerned such claims might go before a jury—there is no demonstrable negligence in a “repetitive working” claim. We are similarly concerned about the wild and unfettered expansion of the “traveling employee” concept where a truck driver cleaning snow off his own car in his own driveway can claim WC benefits in this nutty state—again, we are happy to defend such claims on motions to dismiss in the circuit courts.

Fourth, on the same call for reform, we note Governor Quinn still is publishing concerns about WC reform and modest cost-cutting:

In 2010, Illinois had the third highest workers’ compensation premium costs in the nation. [Last] year’s reforms are projected to result in a nearly 9 percent decrease in compensation costs for employers, based on a filing with the Illinois Department of Insurance by the National Council on Compensation Insurance. Illinois employers are expected to save up to $500 million annually in premiums as a result of the overhaul package.

Fifth, other than the hospital/doctor-busting IL WC Medical Fee Schedule, we don’t see a 9 percent decrease or a $500 million dollar savings in anything at the IWCC. Rabid claimant attorneys are still asking for more and more money. Friendly Arbitrators seem to keep pushing the PPD envelope higher and not fairer. Lots of folks with minor surgeries are asking to be in the $300K+ club citing magical “permanent work restrictions” as the basis for wage loss or “loss of trade” benefits. On a different note, the next time anyone happens to read the IL WC Act, please send us the place in the Act where the words “loss of trade” are used by the legislature and tell us how to calculate it. In our view, PPD awards for “loss of trade” randomly range from 0-100% BAW. We consider the whole “loss-of-trade” concept to be impossible-to-define in an Act that is supposed to provide clear and predictable benefits.

Sixth, on top of all that, last week, three new Arbitrators were magically selected and then appointed by those IL WC secret-powers-that-be: Doug McCarthy, Brandon Zanotti and William Gallagher. We are confident they will all be transparent or at least translucent Arbitrators (whatever that is supposed to mean). Doug McCarthy has been a great claimant lawyer out of Decatur basically for as long as anyone can remember—it is hard to imagine he will be even-handed but we have to give him every benefit of the doubt. Mr. Gallagher worked with a law firm out of St. Louis, MO, for gosh sakes but clearly has been handling IL WC claims for over three decades and most recently spoke for the ISBA on handling defense voc rehab experts. Mr. Zanotti appears to have excellent credentials and worked for a cross-over firm that does both Petitioner and Respondent work out of southern IL. It is mildly odd to note new Arbitrators McCarthy and Zanotti are moving from the far south environs of our state to the north to possibly ride the CTA or METRA and handle claims in Chicago but that is what the announcement indicates.

Seventh, several concerns from the veteran defense attorneys at KC&A:

A.    We didn’t know the IWCC was hiring. Actually, we almost never know when or why the IWCC is hiring Arbitrators or Commissioners. Sssshhh—all of it is done in secret and behind-closed-doors, consistent with the longstanding Illinois WC tradition of back-door politics. We consider it embarrassing to note the IWCC’s excellent website doesn’t trumpet such jobs in their email blast or NEWS section so John Q. Public can tell what they are up to.

B.    We don’t feel the IWCC needs more Arbitrators—for one easy reason, claims are way, way down. In our view, nothing at the IWCC moves any faster or slower regardless of how many Arbitrators you hire. Right now, Illinois has about six times the Arbitrators compared to our sister state of Indiana. Is there anyone considering a time-management analysis to insure Illinois business is getting the best value and the right number of hearing officers for their hard-earned money?

C.   In the same vein, we don’t think the IWCC needs to spend lots more of Illinois business’ money—these new Arbitrators are going to cost at least 1/3 of a million with that cost borne solely by Illinois business.

D.   While we are all at it, it is our view we don’t need nine Commissioners at the IWCC with two staff attorneys each. As we have said on innumerable occasions in the past—if these 27 lawyers each issued one contested ruling each week, they would have literally nothing to do in ninety days. With respect to all of them, we don’t need all of them.

E.   Someday, Doug Whitley or maybe even an elected state Democrat politician is going to actually care about our bloated bureaucracy that spends/wastes $30 million dollars a year to manage less than half the claims that were managed under the last Republican administration for about $9 million each year or less than 1/3 of that cost.