11-26-13; IL Troubled Judicial Selection Process-What It Means to WC; WC Advisory Rate Drop Means Nothing; Fla WC Conference is Rocking and much more

Synopsis: Justice for Sale in Illinois and It is All Completely Legal—It Just Looks Bad.


Editor’s comment: We join with Ed Murnane of the IL Civil Justice League to again call for judicial selection reform in our state. Last week, 40+ judicial candidates were selected to the ballot by the Cook County Democratic Party. Cook County, largest by far of the 102 counties in Illinois, has 268 circuit court judges and most are selected in the manner outlined below. There is no true “democracy “ involved because there is no opposing party to provide any competition—if you get on the ballot and pay the $30K that comes with that spot, you are in.


This twisted judicial selection process is one of the reasons Cook County currently has an “insane” person as a judge—she pled not guilty to criminal charges and was acquitted based on a finding of insanity by a  court of law. Judge Cynthia Brim, 54, was named in a complaint filed last Monday by the Judicial Inquiry Board alleging conduct "prejudicial to the administration of justice and that brought the judicial office into disrepute." Brim has been suspended with pay from her $182,000-a-year job since March 2012 after she launched into a lengthy tirade during her traffic court call in the Markham courthouse and then shoved a Cook County deputy outside the Daley Center a day later. She has been hospitalized for bipolar mood disorder at least six times since 1993, including for three weeks after shoving the deputy, according to the complaint. Brim was retained by voters for an additional six-year term in 2012 even after being suspended and charged with battery.


Please note Cook County taxpayers have paid her about $300,000 not to work as a judge for the last 17 months. As she has been a judge for about 20 years, IL taxpayers will have to keep paying her a judicial “pension” for the rest of her life, whether she keeps her robe or is forced to give it up.


Illinois and more important, Cook County judges are not picked based on merit or legal experience or brilliance or  LSAT scores or the name of the law school on their diploma. Cook County judicial hopefuls are asked questions by the Judicial Selection Committee of the Cook County Democratic Party. One’s status as a great lawyer does not appear to be the primary concern.


Here are three questions most of the Cook County judicial candidates are asked:


      If you are chosen for endorsement by the Party will you support the entire ticket?  

      If you are not chosen for endorsement will you run against the ticket?

      The Party incurs certain costs on behalf of the ticket, for mailing and other expenses. Will you or your campaign be willing and able to raise the $30,000 necessary to defray those expenses?


Please note there are over 40 candidates that have been selected by the party for the can’t-miss election openings. If they each donate $30,000 (and the party leaders don’t waive that donation), the Cook County Democratic Party picks up a cool $1,200,000 for its coffers making it even more powerful than it already is. Once you are in as a judge, you rapidly make more money than Governor Quinn and get guaranteed wage increases at 3% per year—we know of no other government job with guaranteed annual increases. The same judges are vested in their pensions in 8 years, less time than is needed to contribute one full year of salary to their guaranteed judicial pensions that also have guaranteed 3% increases for their lifetimes. Taxpayers are paying the lion’s share of this post-employment cost out of current tax dollars—it isn’t actually a “pension.”


How does this impact the IL Workers’ Compensation system? Well, all of the five justices on the Illinois Appellate Court, Workers’ Compensation Division generally act as a unit. We haven’t seen a staunch representative of IL business on that panel since Justice Allan Stouder retired in the early 1990’s. We almost never see a dissent that even mentions the interests of IL business. The Illinois Appellate Court WC panel is strongly influenced by the judicial selection process in Cook County and the Cook County Appellate Court justice is typically the leader of the WC panel. Those justices lawfully run for election and legitimately collect donations for their campaigns from the Plaintiff-Petitioner lawyers who appear before them. As you read this, the amount of such donations don’t have to be disclosed to the other side in the litigation.


With respect to the members of the panel, we feel they are effectively tossing the entire WC system on its collective ear with their new version of the “traveling employee” concept that is now embodied in three separate rulings. Please note you don’t have to be “traveling” to be a “traveling employee” or injured during actual travel. A “traveling employee” is covered under WC for lots of personal risks that have literally nothing to do with work and don’t have to be either on the clock or in the workplace—such workers are covered on a 24/7/365 basis when they are working at home. If they don’t work in their homes, they are covered while driving to and from work or on breaks for any reasonable and foreseeable activity, including falling in their own driveways. We again point out the members of the Appellate Court panel can’t be interpreting the Act or the Rules because the term “traveling employee” isn’t in either.


For other recent and major changes to traditional WC concepts, in the Metropolitan Water Reclamation District v. IWCC ruling, they coined the new workers’ comp term “street risk” that also doesn’t appear in the Act or the Rules but it does insure benefits will be awarded. It is mildly odd to note the “traveling employee” tag wasn’t provided to that worker. In the Forest Preserve District of Will County ruling, the panel reversed 100 years of Illinois WC law to “remove” the shoulder from the arm in a fashion designed to strip away the statutory credit to which employers have been entitled for prior injuries.


At some point, we hope someone in this state starts to see the judicial selection process needs to be given a long hard look. Men as astute as Ed Murnane and his overall approach to selecting a great state judiciary need to be considered when they are pointing out how dysfunctional our current system is. It is our strong hope this twisted process doesn’t select lots more judicial candidates who are legally insane for future spots behind the bench.


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




Synopsis: Illinois WC Insurance “Advisory Rate” Drop is Not News, Happens Every Year and Doesn’t Mean Anything.


Editor’s comment: One funny thing we have seen once a year for decades and decades is an annual announcement in August about the stat-rats at NCCI recommending advisory rates for WC insurance should drop, by either a little or a lot. We consider this to be similar to selling stock in the Golden Gate Bridge—it sounds good but it isn’t worth anything to anyone. The PR mill at the IL WC Commission just dropped the most recent advisory rate hot flash for everyone to read. It says:


NCCI files for 4.5% decrease in 2014 WC advisory insurance rates


The National Council on Compensation Insurance (NCCI) filed for an 4.5% decrease in voluntary advisory insurance rates, effective January 1, 2014, following the 3.8% decrease in 2013. These significant savings follow the enactment of House Bill 1698 on June 28, 2011.


Before we start popping champagne corks and tossing confetti, we recommend everyone calm down. We have no true idea what advisory rates might be and why anyone thinks they are news. If rates dropped as much as NCCI says they should, WC insurance should be free in this state! Every year, year in and year out, NCCI recommends decreases in IL WC advisory rates. In the 2009 IWCC annual report, the IWCC heralded the fact advisory rates dropped 33% from 1990 to 2008. The IWCC indicated the massive reduction in advisory rates was calculated using advisory rates filed annually by the National Council on Compensation Insurance (“NCCI”), a rating organization authorized to file rates on behalf of companies pursuant to Section 459 of the Illinois Insurance Code (215 ILCS 5/459).


Blah, blah, blah. In 2012, IL WC advisory rates dropped 3.8%.




In 2011, IL WC advisory rates dropped 8.8%.




Please don’t tell us any more about IL WC advisory rates and how they are dropping. Advisory rates are clearly trumped by actual WC insurance premiums. This is the best source for the actual WC premium ranking that will change again on January 1, 2014:




There is nothing advisory about it—the State of Oregon looks at what IL business is actually paying and we are number 4 in the country. By number 4, they mean fourth highest or, to be more blunt, fourth worst. As the defense team at KCB&A is currently predicting, if the “traveling employee” concept sticks and IL business is going to have to pay for personal risks that have nothing to do with work, we are certain to soon be the worst state in the U.S. for workers’ compensation premiums. Yes, folks; we care about actual premiums; not advisory and ethereal rates.


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




Synopsis: Hello from Orlando and the Florida WC Educational Conference(s)!!


Editor’s comment: The 68th Annual Workers’ Compensation Educational Conference and the 25th Annual Safety and Health Conference is rocking along as you read this. The Conference focuses on national workers’ compensation and safety industries. Particularly as it relates to workers’ compensation, it has always been felt each state, having different laws, had to deal with its own issues separate from other states. No longer is this the case. This emerging national WC conference has evolved into a gathering of all stakeholders, regardless of jurisdiction or state, to study and be educated on issues of common concern - issues that have no geographical boundaries. Regardless of your interests, your positions in these two important industries, and your role, this conference is designed to provide something of significance for everyone. The unprecedented number of breakouts and the quality of presenters representing states throughout the country truly make this a national event not to be missed.


Conference of Partnerships:


This nationally acclaimed annual conference remains the premier forum for the study of workers’ compensation, workplace safety and health, and related issues primarily because of the continued partnerships of state and national associations, all being recognized as leaders within their particular interest areas. Partners within this group include The Safety & Health Institute, The National Institute for Occupational Safety and Health (NIOSH), The Centers for Disease Control and Prevention (CDC), The University of South Florida, The Workers’ Compensation Institute, the Florida and National Associations of PEOs, The American Staffing Association, The Southern Association of Workers’ Compensation Administrators (SAWCA), The Workers' Compensation Defense Institute, The Florida Orthopedic Society, The Florida Chiropractic Association, The Florida Association of Occupational and Environmental Medicine, The Florida Academy of Pain Medicine, The Florida Society of Interventional Pain Physicians, The Educational Research Centers at The University of South Florida, The University of North Carolina at Chapel Hill, and The Deep South ERC at The University of Alabama at Birmingham and Auburn University, The Professional Mediation Institute (PMI), The National Association of Workers’ Compensation Judiciary, Inc. (NAWCJ), Medical Group Management Association, and Eastern Pain Association. Leading providers have become prime sponsors and exhibitors of the conference and join the partnerships to create the most comprehensive workers’ compensation and workplace safety conference in the nation. First time partners for this year’s conference are the American Health Lawyers Association, Washington, DC, and the Elder Law Section of the Florida Bar.




This year’s program offers creative and innovative speakers from throughout the United States. The hottest issues in workers’ compensation and safety are being discussed. All aspects of workers’ compensation and workplace safety will be the topics of discussion with breakouts for risk managers, regulators, safety professionals, health care providers, adjusters, insurance professionals, attorneys, medical case managers, professional employer organizations (employee leasing), temporary staffing, mediators, and medical office administrators. Ancillary sessions will be held on the Social Security Act, the Longshore and Harbor Workers Compensation Act, the Jones Act, the Defense Base Act, the OSHA 10-Hour General Industry Course, the Affordable Care Act and Medicare, and the new, recently passed, SMART Act, with specific emphasis on their effect on workers’ compensation.


New This Year:


2013 represents a significant change in the Conference, a change that saw the creation of a new interactive website and social media emphasis with a full-time online communications office and an emphasis on workers’ compensation and safety on a National scale - www.wci360.com. This year, significant expansions have been made in the Risk Management program to include prominent speakers from throughout the country, with this breakout being extended for a full 8-hours of presentations.




This is the 25th anniversary of the existence of the Safety & Health Conference. Originally created as a stand-alone “Governor’s Conference on Safety,” the Safety & Health Institute partnered with the Workers’ Compensation Institute to establish a comprehensive national safety and health conference. In conjunction with NIOSH, CDC, and sponsoring Universities, these educational offerings provide reasonably priced, comprehensive educational opportunities for front line safety professionals. In addition to the usual breakouts on safety, a 10-hour General Industry course will be presented. An OSHA completion card will be issued to those who complete the full 10 hours of instruction. Registration for this special course offering is required. Refer to form to register.


Medicare Secondary Payer Act and Supplemental Security Income/Medicaid:


This year’s conference features an all-day breakout on the Medicare Secondary Payer Act and related subjects. One of the most difficult areas to deal with in handling workers’ compensation and general liability matters in the current environment is understanding and dealing with the serious pitfalls that this expanding law presents.  




Entertainment for this year’s conference is “Styx.” They are downstairs rocking as your editor is writing this KCB&A Law Update! Starting in Chicago in the early 70s, the group has become one of the U.S. top rock acts due to such big hit singles as “Lady,” “Come Sail Away,” “Renegade,” “Blue Collar Man,” “Fooling Yourself,” and “Too Much Time on my Hands.” Styx continues to conquer the planet, one venue at a time.


It has been hot and muggy and the golf greens are holding the best shots. Mark your calendars for next year’s Florida WC Shindig!