9-1-2014; Was It Partisan Politics for Gov. Quinn to Fire All IL Arbitrators?; Important Discrim Ruling, Analysis by Brad Smith; Tubes-of-Drugs and Controlling IL WC Medical Costs and more

Synopsis: Was It Partisan Politics for Governor Quinn to Fire All the IL WC Arbitrators and Reinstate Some Political Favorites? How Could It Not Be?

Editor’s comment: We recently saw a Chicago Sun-Times poll confirming what all of our readers should know—Governor Quinn has completely discarded any hope of being a “reform” candidate with a goal of giving independent and nonpartisan approach to Illinois taxpayers. If you aren’t sure, Gov. Quinn has been bought and paid for by state government unions, administrators, judges/justices and legislators who want to keep their “post-employment income” or what Illinoisans also call “pensions.” We assure our readers these “post-employment income” programs aren’t truly pensions as the vast majority of their money isn’t coming from contributions by the workers, matching money from government coffers and investment income. The vast majority of the money for these post-employment income programs are coming from multi-billion dollar borrowing that has to be paid by you and me and your kids and grandkids and probably great-great grandkids from our taxes/tolls and fees. In the same vein, all state government “pensioners” will now mooch free lifetime medical care from you and me—the IL Supreme Court just made that expensive multibillion dollar benefit untouchable by the legislature. Believe it or not, the free-loading pensioners fought and won so they don’t have to contribute even 2% of their pensions to share the cost of their healthcare with current taxpayers! We truly feel they have changed from “public servants” to make taxpayers their “private servants” as we now irrevocably owe IL government workers lifetime post-employment income and full healthcare coverage for the rest of their lives.

The media outlets have been looking at the complete and embarrassing mess that was made by the Quinn administration of a State of Illinois anti-violence program where lots of the administrators took the money that was supposed to go to neighborhoods to stop murders, mayhem and other violence. The other source of political bamboozling is the IL Dep’t of Transportation where lots of folks were given positions as “administrative aides” to allow them to get wholly political appointments for routine jobs in violation of the Shakman order which dictates only high-level jobs are supposed to be political.

How did Partisan Politics Hit the Illinois Workers’ Compensation Commission?

Well, when the Quinn Administration took over from Blago’s troops, there were a couple of interesting things happening at the good ole IWCC that started to make the news.

First, we had perhaps the worst Arbitrator in the history of Illinois Arbitrators in Jennifer Teague, now Jennifer Carril. Former Arbitrator Carril was sending blunt emails critical of other Arbitrators and attorneys. She tried to hide or keep secret a hearing in a controversial claim by a former IL State Trooper who was basically joy-riding at 138mph and texting his girlfriend when he blew a light and killed two innocent young girls. It seems fairly obvious the Assistant Attorney General assigned to defend that claim blew the whistle about the planned “secret hearing.”

Perhaps the oddest thing former Arbitrator Carrill did was to file a workers’ compensation claim for benefits for herself. What she learned is the State of Illinois has a silly, unnecessary and unwritten “rule” requiring injured state employees to wait six months after settling a workers’ comp claim before getting paid. We assume some misguided state administrator made this “rule” up to push some of the settlements from this year into the next fiscal year. When former Arbitrator Carril learned of the six-month wait, she caused a ruckus and tried to use her influence to have the “rule” waived.

What the commotion over a wait of 180-days for this one Arbitrator was make lots of folks look to see several sitting Arbitrators had filed workers’ compensation claims and had either received settlements or were waiting out the six-month period. In our view, this put all IL Arbitrators under a microscope. Some folks also learned the state adjusters at CMS had also filed claims and gotten settlements. For some reason the foul odor only settled on the sitting Arbitrators and the CMS adjusters got a pass and kept their jobs.

What Followed was a “Deform” or Misguided Reform of the Wrong WC Folks

As we indicate above, the Arbitrators came into the cross-hairs of the secret-powers-that-be-that-run-the-Commission and before we knew it, the Governor’s Office created a plan to not only fire all of them but strip out their civil service protection in the process! While our former Arbitrators would be allowed to “re-apply” for their jobs, it was clear an enormous and political house-cleaning was ongoing. Step one was to strip out civil service protections afforded the Arbitrators for several decades. This staggering and seminal change to the jobs of our Arbitrators was unprecedented and wholly unnecessary. The reason we say this is eleven or as many as twelve Arbitrators lost their jobs simply as political scapegoats—other than former Arbitrator Carril, no one has ever indicated why that many Arbitrators were suddenly ousted.

You Show Us Your Political Patron and We Will Show You Ours

Having fired all Arbitrators in a swift and unexpected fashion, what Governor Quinn’s folks then did is perhaps the worst thing they could have done from the perspective of decent and good government—we were advised Governor Quinn’s staff forced every former Arbitrator who wanted to get their job back do a secret and slimy “patronage-check.” To our understanding, the folks who could demonstrate they had active and continuing political patrons who strongly supported Governor Quinn or were solidly protected by the other side were allowed to return to their posts. For example, one former Arbitrator we knew had a political patron that had passed away a year or two before the controversy arose—that former Arbitrator lost his position.

Another immediate disqualifying factor was any Arbitrator who, like former Arbitrator Carril had a pending or prior IL WC claim or settlement. Basically, Governor Quinn’s troops reached the conclusion retaliatory discharge for filing a WC claim that is prohibited in the Kelsay v. Motorola ruling didn’t apply to what were now political posts. To our understanding all the former Arbitrators with pending or prior WC claims were put in the “do-not-rehire” pile.

What then happened is several of the terminated former Arbitrators filed lawsuits and sued the Governor for their obvious mistreatment and those suits are all wending their way through our courts. One appellate ruling was just issued in the claim brought by former Arbitrator Peter Akemann and, without much surprise to anyone, denied him reinstatement to his position. In our view, former Arbitrator Akemann was a quiet, honest and decent man who did his job for both sides and worked hard for our state. His brother David Akemann is a sitting Circuit Court judge. We consider both of them to be above reproach and great jurists. We feel the mistreatment of former Arbitrator Peter Akemann by the current administration to be the worst sort of partisan politics.

What Was the Biggest Problem With These “Deforms??”

The concerns we raise in response to these decisions are two-fold. 

First, we want our readers to understand our view IL WC Arbitrators can’t and should never be political appointees but under Governor Quinn, they now are. Instead of reforming the positions, he has politicized them. The reason IL WC Arbitrators had civil service protections was to insure they wouldn’t be subject to the whims of the party in power. One of the worst things an IL WC Arbitrator faces is listening to and considering the evidence and making a determination for one side or the other and then getting summarily fired because their honest and fair decision upset a powerful lawyer or union boss. Arbitrators aren’t supposed to work at the whim of their parties litigant. 

Please also note the IL WC system has an administrative appeal process that allows the Arbitrator’s ruling to quickly be brought before an openly political group—the three-member IWCC panel reviews the Arbitrator’s decision in a “de novo” appeal. The Commission panel is composed of a member of IL labor, management and one member that is supposed to represent “the public.” We feel this is a strong system for adjudicating questionable WC issues.

Second, the other problem with the humiliating challenge and sudden ouster of many of  to our former Arbitrators targeted the wrong people. We assure our readers, the problem wasn’t with the Arbitrator staff—the issue should have been the mismanagement of claims by the Central Management Services state agency who was charged with actual management of all IL state workers’ comp claims. We understand lots of state claims adjusters also brought WC claims to get settlements for themselves—unlike the Arbitrators, the adjusters weren’t summarily canned.

The CMS agency has been criticized by Attorney General Lisa Madigan and State Auditor William Holland. The agency has not gotten any better under Governor Quinn. It remains something of an hilarious mess—for one example, a large State institution in Chicago is still being “defended” or represented by a prominent Plaintiff attorney. That defense work hasn’t been put out to bid for more than a decade.

We were also advised at one point, CMS or Central Management Services had about 25,000 pending IL WC claims with only a handful of adjusters to keep watch over your money in paying out WC benefits to State workers. The analogy we draw to that mismanagement model is a prison with 10,000 prisoners and three guards—the managers can proudly confirm how much they are saving on payroll and benefits for the guards but the real costs are stopping the hundreds of jailbreaks and hunting down all the prisoners who are escaping. In the same way, state government workers and their legal counsels were making zillions of dollars on questionable WC claims because of the cacophony and confusion caused by this understaffed agency. 

That group was and still is misspending $150M or more a year on IL state workers with WC claims in a comical fashion. We feel no state dumps as much money into workers comp benefits than our state on a pro rata basis. For another example, we assure our readers there may be over a thousand state workers who have been adjudicated “odd-lot” total and permanent disability recipients—all of them could be returned to work, if the State would simply locate jobs in other agencies for them. In our view, the mismanagement of state claims by this agency poisoned many claims arising in the private sector. Another hilarious part of the mishandling of your tax dollars by CMS was their WC claims computer database was hilariously out of date and was thirty-forty years old. Basically, if you asked the adjuster for any data or information about what they were doing or spending, you would be advised they didn’t have the staff to go through all the paperwork to figure out how to answer you.

What they Quinn administration did to “deform” this issue was quickly and quietly issue an RFP or request for proposal to obtain an outside claim service to come in and try to make sense of the tens of thousands of pending and questionable IL WC claims. Rather than select an IL claims management company, Quinn’s folks selected TriStar Risk Management out of California. To our understanding TriStar is doing their best with the onerous task they have been given. Another issue is sometimes they have money to pay vendors and claims and sometimes they don’t. Finally, to heighten the level of mismanagement of IL state government workers comp claims handling, the State didn’t terminate the CMS adjusters who previously handled the claims when they were replaced by TriStar, There is now an ongoing tug-of-war over who is in charge of the whole mess.

We do feel the Quinn administration did make the IWCC more professional and things have gotten dramatically fairer for all sides. We don’t feel the Arbitrators who were let go were given a fair chance and we hope sitting Arbitrators are allowed to do their jobs as they see fit.. We also hope someone again takes a long hard and open look at CMS and TriStar to see if that combination is working and much more effectively handling WC claims by state workers.

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

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Synopsis: Prior Comments May Be Background Evidence Demonstrating Racial Animus. Analysis by our Employment Law Defense Leader Bradley J. Smith, JD.  

Editor’s Comment: In Macias v. Bakersfield Restaurant, LLC, No. 13-cv-4300, 2014 WL 4057449 (N.D. Ill. May 28, 2014).   On May 28, 2014, Northern District of Illinois Judge Ruben Castillo denied Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint as 1) a 42 U.S.C § 1981 claim for racial harassment would not be inferred, and 2) a supervisor’s comments could be considered as background evidence.  

Plaintiff brought a lawsuit against Defendant alleging national origin and race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., racial discrimination in violation of 42 U.S.C. § 1981, and retaliatory discharge in violation of state law. Specifically, Plaintiff claims he was “treated less favorably than” non-Ecuadorian and non-Hispanic individuals in his work environment despite meeting the legitimate expectations of his employer and performing his job well. Additionally, Plaintiff alleged during his employment, he was subjected to several race and national origin related comments by his supervisor. Those comments allegedly included: (a) “Mexicans are dirty to work with”; (b) “You Mexicans stink!”; (c) “You [] Mexicans are stupid”; and (d) “[] Mexicans!” Additionally, Plaintiff claims his iPhone went missing. Eventually, after numerous complaints, Plaintiff found his iPhone in his supervisor’s vehicle. Shortly thereafter, Plaintiff alleged he was terminated without an explanation and without being subjected to any formal discipline.  

On August 13, 2012, Plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). Plaintiff amended his complaint on August 30, 2013. Particularly, in Count I, Plaintiff alleged national origin discrimination in violation of Title VII; and in Count II, Plaintiff alleged racial discrimination in violation of Title VII and Section 1981. Subsequently, Defendant filed a Motion to Dismiss Counts I and II pursuant to Federal Rule of Civil Procedure 12(b)(6).  

Initially, the Court declined to treat the Motion to Dismiss as a motion for summary judgment in order to consider documents Defendant attached to its motion. Next, Defendant argued Plaintiff’s claims should be dismissed as Plaintiff intended to bring a claim for racial harassment, which Defendant contended exceeded the scope of his EEOC charge allegations. Instead, the Court declined to accept Defendant’s argument, and consequently, the Motion to Dismiss was denied as Plaintiff properly exhausted his national origin and racial discrimination claims before the EEOC. Thus, Judge Castillo declined to dismiss Plaintiff’s claims for national origin and racial discrimination.

Unavailingly, Defendant also argued Plaintiff should not be allowed to use the aforementioned comments in his complaint because background evidence is permitted only when a “current practice” is at issue, and Plaintiff’s dismissal was not a current practice. However, Judge Castillo reviewed Seventh Circuit law that interpreted Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111 (2002), to mean where “the plaintiff timely alleged a discrete discriminatory act …, acts outside of the statutory time frame may be used to support that claim.” Accordingly, Judge Castillo determined the comments Plaintiff included in his amended complaint served to illuminate the discriminatory conduct by indicating his supervisor’s racial animus. Therefore, Judge Castillo denied Defendant’s Motion to Dismiss in its entirety.  

We recommend you always engage in a thorough investigation of racially charged comments in the workplace. It is even more essential to investigate allegations of racial comments when a supervisor with the ability to hire and fire employees is alleged as the perpetrator. Not doing so may subject you and your company to numerous discrimination claims as racial comments demonstrate animus in a supervisor’s tangible employment decisions. An investigation will allow for any necessary discipline and will also shield a legitimate decision of no discipline.    

This article was researched and written by Bradley J. Smith, JD.  Bradley can be reached with any of your employment law and general liability issues at bsmith@keefe-law.com.  

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Synopsis: Are the “Tubes-of-Drugs” About Patient Care or Making Money?

Editor’s comment: We received a question and comment from a long-time reader who inquired about what steps should be taken when you see doctors and other healthcare givers prescribing tubes of compound “pain creams” at a gigantic mark-up. These tubes full of narcotics and other sorts of snake oil can cost as much as $1,000 a piece! We assume they provide the patient a major kick for your money.

Take a look at this link to see how the “Tubes-of-Drugs” are being marketed to doctors to maximize income from dispensing it to the soon-to-be greasy patients: 

http://www.primemedicaltechnologies.com/wp-content/uploads/2013/08/terocin-profit-sheet_new.pdf  

In the IL WC system, the major tools to control medical care of all types, including tube prescriptions are

·         Utilization review or UR—we recommend Genex or CID Management to quickly and rapidly get all medical care and prescriptions reviewed and analyzed in your claims.

·         IMEs or Independent Medical Examinations to get a top-notch Pro from Dover to review the patient’s chart and opine about the course of care and prescriptions—if you need recommendations on an IME expert, send a reply and we can provide our KCB&A expert list or contact Chris Rocks at Woodlake Medical for his top docs.

·         Having medical and prescriptions priced and processed under the IL WC Medical Fee Schedule—we have a coding expert who can provide assistance if you need it; simply send a reply with questions or concerns.

·         Implementing an IL WC PPP is another strong method to control your workers’ comp costs in our state—if you go this route, you limit your workers “choice of physician to either the PPP doc or one other choice outside the PPP. Two great sources for information and enrollment into an IL WC PPP is Darren Stahulak of CorVel or David Kolb of HFN, Inc.

·         Last but not least, if you need aggressive defense counsel to analyze and devise defenses at the IWCC that work, send a reply for the KCB&A defense member in your area.

We appreciate your thoughts and comments. We thank the reader who sent us this solid information