Synopsis: No “Haircuts” Here—Plaintiff/Petitioner Attorneys in Illinois Won’t Stop Stripping Out Defenses In Our Courts. Please assume the “Reverse-the-IL-WC-Reforms” effort is proceeding apace.

Editor’s comment: We are pretty sure the concept of an IL workers’ comp “haircut” started with Governor Quinn in February 2012. He asserted lots of different things in state government like pensions and WC benefits would be cut. He was quoted as saying “Everybody is going to get a haircut. No one will get scalped – that’s the basic concept.” At the most recent SafeWorks Annual Convention, prominent claimant attorney David Menchetti confirmed the “haircut” approach was the intent of the 2011 Reforms to the IL WC Act. We joined with Dave in our hope IL WC benefits would be brought back into a middle-range of the U.S. so we didn’t stick out so much and make existing and future Illinois employers feel Illinois would be a bad place to expand or start new businesses.

The main problem we feel present with trying to make Illinois workers’ compensation reasonable is our rabid Petitioners’ Bar and/or ITLA with very successful and well-to-do work comp lawyers across our state who don’t want a “haircut” and don’t want spiraling IL WC benefits to become moderate and reasonable. These lawyers know how to change the law without any need to go to the two major branches of government—they don’t care about executive branch or Governor Quinn who has the worst approval ratings in the history of approval ratings. Looking at the legislative branch, the Claimant lawyers also understand Senate President Cullerton and Speaker Madigan have to deal with lobbyists and legislators and public attention, all of which are challenging to say the least.

So constitutional scholars, what’s left? If you want to rapidly and dramatically change our Illinois workers’ compensation system, move to our Courts. Why the Illinois Courts—well, the Plaintiff/Petitioner Bar legally and ethically donates millions to Supreme, Appellate and Trial Court judges/justices when they are running for election. Those judges/justices are the best paid in the nation (making more than the Governor and more than twice what legislators earn) and qualify for pensions very quickly. Those judges/justices have a tendency to invite supportive lawyers to host/fund campaign receptions for them, attend victory parties and perhaps share a cup of java at a later time. It doesn’t take a quantum leap to contemplate legal controversies and other issues might be discussed along the way. At present, one could donate jillions to a judicial campaign, the judge/justice could win and Illinois law does not require disclosure of that fact to the other side prior to what are supposed to be fair and impartial hearings.

If you aren’t sure, the WB Olson v. IWCC ruling we recently reported is the first salvo in this “Reverse-the-IL-WC-Reforms” effort. The Plaintiff-Petitioner’s Bar doesn’t like vocational rehabilitation other than when they completely control voc rehab. In that case, claimant’s counsel got a ruling that may now mandate IL employers have to pay for his personal choice of voc rehab provider. His choice of voc rehab provider may be completely inept and not find claimant a job for years and years. Understanding that is a complete WC-claim-train-wreck, following the WB Olsonappellate ruling, IL employers may still be required to pay endless and expensive TTD benefits and the full cost of the valueless voc efforts. Does anyone think this new and unprecedented model for voc rehab is going to save Illinois businesses money? Is there any state in the United States that has a voc rehab system that goofy? Does anyone care this claimant attorney is a sworn member of our Commission, as he is on the Illinois Workers’ Compensation Advisory Board with the power to recommend hiring, suspension or termination of the Arbitrators he appears before every day? Are we the only folks who view that as an actual or potential conflict?

What’s next? Well, we have now seen several Plaintiff/Petitioner lawyers, including the eminent claimant lawyer we mention above, who want to take control of the IME process. They are touting and promulgating a year 2000 ruling in Griffin v. Mark Vend, 99 WC 22267 by now Justice Quinn. The goal of the claimant bar is to remove any responsibility that a claimant sign a medical release and/or provide a history to a physician who is performing an independent medical examination. The ruling states:

Plaintiff’s employer never introduced any medical evidence because its doctor never examined the plaintiff. The employer argues that the plaintiff did not properly submit to the physical examination required by 820 ILCS 305/12 because she would not provide a complete medical history., details of the accident, and a description of her job duties to the doctor selected by the employer to conduct the exam (Dr. Levin). Plaintiff was instructed by her attorney to only respond to questions about her medical condition during the physical examination. Section 12 requires that an employee submit to a physical examination “for the purpose of determining the nature, extent and probably duration of the injury received by the employee.” Nothing in this statute requires any more information from an employee than the plaintiff was willing to disclose. Furthermore, plaintiff’s employer failed to accede to a compromise solution offered by the Arbitrator that would have provided a the employer’s doctor with an agreed statement of facts so that questioning of the plaintiff would not have been necessary. Lastly, the questionnaire that plaintiff refused to complete and which led to Dr. Levin’s refusal to examine her was not made part of the record.

We assure our readers the more rabid members of the IL Plaintiff/Petitioner bar are now telling their clients not to “cooperate” with IME’s and advising them to refuse to sign releases or otherwise provide any medical history to the IME doctors. We consider this approach silly and completely unnecessary. That said, we are fairly confident there are some claimant lawyers who aren’t going to stop until they control every aspect of the IL workers’ compensation system. Our strongest hope is to tell all the members of the defense community—let the IWCC handle this one and deal with whatever they do. Right now, the IWCC is generally fair and moderate. We feel they are sensitive to the concerns of both sides. There is literally no need or value that will be derived in appealing this newly concocted issue to the Circuit and Appellate Courts. As we saw in WB Olson v. IWCC, you are going to lose every aspect of the claim before our judiciary and their ruling will then become Illinois law. We assume the claimant bar is next going to attack nurse case management and UR and surveillance and anything else that might provide any balance or defense for employers in our IL WC system. Watch this space for any new developments.

FYI, we looked up the Griffin v. Mark Vend claim on the IWCC website. It appears the case was dismissed and claimant did not receive either an award or settlement.

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Synopsis: Finally! The IWCC implements new “combo-drug” price fixing rules, bringing some sanity back to the world of WC medication pricing. We applaud all those involved for a rare instance of rapid and reasonable reform in Illinois.

Editor’s comment: We have previously advised you of the egregious practice of “repackaging” medication and selling it out of a doctor’s office. As discussed in previous law updates, the 2011 amendments to the Act had this tiny provision snuck into the legislation that was unassuming and innocuous, however it ended up potentially costing Illinois business millions of dollars. The provision has at long last be modified.

Repackaging drugs is a process by which a pharmaceutical shop essentially comes in and sets up a dispensary in a doctor’s office. They will take 10 cent medication, put it in a new bag, and slap a 75 cent price tag on it, then have the doctors hand out the medication at patient visits. Meanwhile, the outside vendor will issue charges to the payor without complicating the doctor’s practice. It is a clear price gouge, but unfortunately the practice was written into law by unwitting or uncaring politicians.

The proposed rules were published in the Aug. 17 issue of the Illinois Register, and according to the IWCC website, they took effect as of November 20, 2012. The amendment that took effect reads as follows:

If a prescription has been repackaged, the Average Wholesale Price used to determine the maximum reimbursement shall be the Average Wholesale Price for the underlying drug product, as identified by its National Drug Code from the original labeler.

What this does is essentially eliminate the increase in price that could have been created by the repackaging process. We applaud our legislators and the Commission for recognizing a problem, and moving rapidly to resolve it in a very reasonable manner.

Per the IWCC website notification, the final text of the rule will be published in the December 7, 2012 edition of the Illinois Register. This article was researched and written by, Arik D. Hetue, J. D. who can be reached for question or comment at ahetue@keefe-law.com.

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Synopsis: Although Plaintiff may have felt “robbed” of her right to sue her employer for civil damages, the Appellate Court correctly followed the exclusive remedy provision in the Workers’ Compensation Act and affirmed the summary dismissal of the Circuit Court.

Editor’s Comment: In Glasgow v. Associated Banc-Corp, 2012 IL App (2d) 111303 (November 20, 2012) Plaintiff, a bank teller, filed a personal injury suit against her employer for physical and psychological injuries sustained during armed bank robbery. Specifically, Plaintiff alleged her employer/defendants “knowingly, willfully, [and] purposely failed, with obvious intent and outrageous conduct, [to] provide adequate bank security to deter and/or prevent the robbery.” Plaintiff’s complaint alleged the robbery was not accidental, but that, because of Defendants’ failure to implement increased security measures to deter robberies, there was a “direct invite” to rob. Plaintiff sought punitive damages against Defendants for their “outrageous conduct”.

Aside from the obvious strain of logic in this complaint, Plaintiff also pursued and was provided benefits under the Workers’ Compensation Act for her injuries. Her election of workers’ compensation benefits was but one of the reasons the Appellate Court continued to deny her prayer for relief in this separate civil action. The Court cited the exclusive remedy provision in Section 5(a) of the Act, explaining that “no common law or statutory right to recover damages from the employer for injury or death sustained by any employee while engaged in his line of duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to anyone wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.” 820 ILCS 305/5(a) (West 2008).

While the Court made clear intentional acts of an employer to harm an employee are not immune from civil suit, “intentional inaction” by an employer is not the type of intent which could give rise to an exception to the exclusive workers’ compensation remedy. Therefore, the lack of adequate security at the bank, even if proven, is insufficient to prove intent to harm the employee. Further, once an employee has collected compensation on the basis that his or her injuries were compensable under the Act, the employee cannot then allege that those injuries fall outside the Act’s provisions (Court cited Collier v. Wagner Castings Co., 81 Ill. 2d 229, 241 (1980). Accordingly, the Court concluded, once Plaintiff applied for and accepted workers’ compensation benefits, she was barred from pursuing this intentional-tort action against Defendants.

We feel the Court correctly applied the law and properly drawn the boundaries of any potential civil action by an employee after a work injury. Just as a claimant’s negligence shall not bar their right to workers’ compensation benefits, an employer’s negligence shall not permit a double recovery under both the Workers’ Compensation Act and civil recovery. This theory of “intentional negligence” formulated by Plaintiff was correctly identified as legal sophistry and summarily dismissed accordingly.

KCBA Blog

12-4-12; "Reverse-The-Illinois-WC-Reforms" Effort is Ongoing; Arik Hetue on Anti-Price-Fixing Drug Pricing Rules in IL; John Campbell analyzes important Exclusive Remedy Ruling and much...