5-4-15; The World of IL Work Comp Looks to Springfield for WC Change; Dan Boddicker, JD on New EEOC Conciliation Standard; New Research on Value of PT versus Back Surgery--Consider Athletico and more

Synopsis: The IL General Assembly “Committee as a Whole” Will Convene Tomorrow to Try to Set Illinois WC Policy for What May Be the Next Seven Years.


Editor’s comment: Governor Bruce Rauner was sworn in a little over 100 days ago. He faced lots of challenges since taking over one of the worst-run state governments in the entire country and maybe the world. He took on the task of trying to make Illinois government more business-friendly. One of the issues he put high on his calendar is additional reforms to the IL WC system. As we expect Governor Rauner to be around for seven more years or until 2022; these legislative changes may be present for his expected two terms in office.


In response, IL House Speaker Mike Madigan is calling a mildly unusual legislative hearing named the “Committee as a Whole” to convene the entire IL General Assembly. They will take testimony and consider the legislative changes proposed by the Governor’s staff. We are told the hearings will be available for you to watch or listen to online—if you have strong interest and want the link to that website, send a reply.


There is no question our IL WC system became an outlier in relation to our surrounding states under former and now disgraced Governor Blagojevich. To win an early primary election, Rod Blagojevich promised complete control of the good ole Industrial Commission to Plaintiff-Petitioner lawyers from southern Illinois. When that group got power, they


·         Changed the name of the place from the IL Industrial Commission to the IL Workers’ Compensation Commission;

·         Retooled funding of the place to create a special insurance premium levy on IL business only;

·         Brought in lots of Plaintiff-Petitioner lawyers as hearing officers to greatly liberalize the system;

·         Provided broad WC coverage theories to encompass questionable conditions/claims and

·         Started awarding dramatically higher WC benefits.


When Governor Quinn got into office, he started to slowly change things for the better. The 2011 Amendments to the IL WC Act were enacted to identify and directly counter many of what were considered IL WC abuses. IL Senate President John Cullerton was quoted as saying lots of government programs, including workers’ comp, were getting a “haircut.” Supporters of the 2011 Amendments hoped IL employers and governments would save at least $500 million a year after strong reduction of medical fees for doctors/hospitals who treat injured employees were scaled back and other significant changes were enacted. The debate over the savings rages on and IL dropped from the third-highest state to the seventh-highest state in the every-other-year Oregon WC Premium rankings.

Four years later, former Gov. Quinn is enjoying his hefty state pension and Governor Bruce Rauner is in for what could be as long as seven more years of service. In the WC field, major business groups and municipalities complain they've seen just a fraction of the promised savings from the 2011 Amendments. Rauner hopes to

·         Toughen “causation” or standards workers must meet to prove their injury is due to their job,

·         Limit the ability of employees to claim an injury while doing literally anything when “traveling” for work,

·         Dramatically reduce reimbursement rates for doctors, hospitals and pharmacies that treat injured workers; and

·         Legislatively grant arbitrators the ability to use American Medical Association impairment ratings guidelines as the sole factor in determining how much a seriously injured worker is paid.


Tomorrow, House Speaker Michael Madigan will convene the rare “Committee of the Whole” meeting to allow all 118 legislative members to consider the state of our State’s WC system. Governor Rauner has his own group of lawmakers who will be sitting in to examine the topic. The defense team at KCB&A will be watching, listening and reporting what happens for our readers.


Here are our thoughts on the four issues above:


·         On causation, we don’t think you need legislation; you need common sense. The new IWCC administration headed by Chair Joann Fratianni-Atsaves is certain to reign in the silly “causation” rulings of the past. Please let them do their jobs.

·         On the traveling employee concept, we again feel legislation is going to be challenging and you still have to actually enforce it—a “traveling employee” on the road is always “in the course of employment.” The question is whether the injury “arises out of employment”—that language is already in the IL WC Act. We don’t feel the typical traveling employee should receive expanded WC coverage if they decide to go to a bar and watch a ball game and fall off a bar stool to get injured in the bar. Such injuries don’t arise out of their work. We need hearing officers to deny such claims or get better hearing officers. We recently reported the Appellate Court, IWCC Division ruling in Nee v. IWCC where the majority appears to assert walking on a normal city street in the city where you work in makes you a “traveling employee” and, when you have that status, tripping over a normal city curb is supposedly compensable—we feel this runs directly contradictory to the last IL Supreme Court ruling on the same facts. We also don’t think walking on a city street has anything to do with traditional definitions of traveling employee status.

·         On cutting payments to doctors/hospitals, we feel WC reimbursements should match and not be less than what major non-WC medical bill payers like Blue Cross/Blue Shield pay for the same care. The State of Hawai’i made their WC medical reimbursements lower than local group providers and chaos resulted. You can only tweak medical reimbursements so much before docs and hospitals tweak back.

·         On implementing impairment ratings as a sole factor in determining PPD value, it will certainly save business/ insurance companies money with potentially drastically lower awards but may also cause lots of consternation and possibly unexpected issues that legislators may not anticipate. We offer this comparison/example:


o    Two people enter a building. One is a friendly visitor, say a college intern who wants to see the company. The other is a worker who is in the course of employ.

o    Both people fall down on a slippery substance left in the lobby by company cleaners who know it is there and took a break before marking the area as dangerous.

o    The college intern and the worker both fall and badly break the same arm.

o    The intern sues for negligence and gets an award of $500K from the premises insurance carrier.

o    The injured worker brings an IL WC claim and gets a rating of 8% of the arm and receives $5K.

o    Please note the intention of the WC system is to provide swift, sure and fair benefits for workers who can’t sue in the courts.

o    This comparison exemplifies our concern about this proposed change to IL WC benefits. A strict interpretation of AMA ratings equating to PPD value may result in nominal compensation for serious injuries. The Arbitrator may have no room to “judge” the case and reach a reasonable middle-ground.

o    While there are constant comparisons between the IL WC system and the IN WC system, can we also compare Illinois to Wisconsin, Michigan and Iowa?—they are clearly included in our competition.

o    We don’t want the IL WC system to award giant settlements or any WC benefits for injuries/conditions unrelated to work.

o    Governor Rauner is quoted as saying he wants a WC system to be “competitive, reasonable and balanced.”

o    We don’t feel impairment ratings are uniformly reasonable and balanced—they are simply cheap.

o    Please also remember if you are going to make impairment ratings the sole calculus for permanency partial disability evaluation, we are certain we are going to have to fight lots more wage loss differential or “odd lot” T&P claims. Those exposures are dramatically higher and more expensive to fight. PPD values need to stay somewhat fair and comparable on serious injuries to avoid a shift by the Plaintiff-Petitioner bar in their focus on seeking reasonable benefits.


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



Synopsis: U.S. Supreme Court to EEOC—The Courts will be Watching Your Conciliation Efforts! Analysis by Daniel J. Boddicker, J.D.

Editor’s comment: A unanimous SCOTUS resolved a dispute between the Federal Appellate Circuits by holding Title VII permits limited judicial review of whether the EEOC has fulfilled its duty to attempt conciliation prior to suit. We consider this a win for U.S. business as it may avoid your company being sued by the EEOC with their effectively unlimited litigation budget.

Before suing an employer for discrimination, the Equal Employment Opportunity Commission (EEOC) must attempt to resolve  perceived unlawful workplace practices through informal methods of conciliation. In Mach Mining, LLC v. Equal Employment Opportunity Commission, SCOTUS held a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit. The Supreme Court reasoned the scope of that review is narrow and set out a standard for future court’s review of conciliation efforts. This decision gives some clarity to a historically confusing section in Title VII.

Title VII of the Civil Rights Act of 1964, 78 Stat. 241, 42 U.S.C. § 2000e et seq., sets out a multi-step procedure wherein the EEOC enforces the statute’s prohibition on employment discrimination. If the EEOC finds reasonable cause an allegation has merit it must “endeavor to eliminate alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Said language is mandatory and the duty it imposes serves as a necessary precondition to filing a lawsuit pursuant to Title VII. Nonetheless, the EEOC holds the ultimate decision whether to accept a settlement or instead bring a lawsuit. Only if its attempt to conciliate has first failed may the EEOC file suit against an employer. 

In Mach Mining, a woman filed a charge with the EEOC claiming Mach Mining, LLC, refused to hire her as a coal miner because of her sex. The EEOC investigated the allegation and found reasonable cause to believe Mach Mining discriminated against the complainant, along with a class of women who had similarly applied for mining jobs. In a letter announcing its determination, the EEOC invited both the company and the complainant to participate in “informal methods” of dispute resolution, promising a Commission representative would soon contact them to begin the conciliation process. Approximately one year later the EEOC sent a second letter stating such conciliation efforts as were required by law occurred and were unsuccessful and any further efforts would be futile.

The EEOC then sued Mach Mining in federal district court alleging sex discrimination in hiring. The complaint alleged all conditions precedent to the institution of this lawsuit—including, an attempt to end the challenged practice through conciliation—were fulfilled. In response, Mach Mining disputed that allegation and asserted via an affirmative defense the EEOC failed to engage in good faith conciliation efforts prior to filing suit. The EEOC moved for partial summary judgment on that issue, which was denied by the District Judge. Thereafter, the EEOC appealed to the Seventh Circuit Appellate Court seeking reversal. Upon de novo review, the Appellate Court reversed, holding the statutory directive to attempt conciliation is not subject to judicial review. Given the obvious split amongst Appellate Circuits, SCOTUS granted certiorari to address whether and to what extent such an attempt to conciliate is subject to judicial review. Ultimately, SCOTUS vacated the judgment of the Seventh Circuit and remanded the case for further proceedings consistent with the opinion.

Justice Kagan (writing for a unanimous court) explained Title VII pronounces certain concrete standards pertaining to what the EEOC’s efforts at conciliation must entail. The methods necessarily involve communication between parties, including the exchange of information and views. They involve consultation and/or discussion, an attempt to reconcile different positions, and a means of argument, reasoning, or entreaty. SCOTUS held the EEOC must tell the employer about the claim, what practice has harmed which person or class, and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. If the EEOC does not take said actions, it has not satisfied Title VII’s requirement to attempt conciliation.

In discussing the proper scope of judicial review of the EEOC’s conciliation activities, SCOTUS retained a narrow scope. It held the appropriate scope of review enforces the statute’s requirements, that the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice, but goes no further.  

In her opinion, Justice Kagan discussed the party’s positions on scope of judicial review and chose to espouse her own standard rather than the obviously one-sided standards proposed by the EEOC and Mach Mining respectively. SCOTUS stated contrary to the EEOC’s position, its two letters do not themselves fulfill the conciliation condition: The first declared only that the process will start soon, and the second only that it has concluded. SCOTUS stated to treat the letters as sufficient is simply to accept the EEOC’s unverified word that it complied with the law. The point of judicial review is instead to verify the EEOC’s word, that is, to determine the EEOC actually—and not just purportedly—attempted to conciliate a discrimination charge.

SCOTUS refused to accept Mach Mining’s suggestion for a review based on a standard set out in the National Labor Relations Act (NLRA), i.e. whether the EEOC negotiated in good faith over a discrimination claim. SCOTUS noted Mach Mining’s proposed code of conduct conflicts with the latitude Title VII gives the EEOC to pursue voluntary compliance with the statute. It noted the EEOC need only endeavor to conciliate a claim, without devoting a set amount of time or resources to that project. Further, the attempt need not involve any specific steps or measures; rather, the EEOC may use whatever informal means of conference, conciliation, and persuasion it deems appropriate. The Court stated Mach Mining’s proposed review would also flout Title VII’s protection of the confidentiality of conciliation efforts. SCOTUS declared to accept Mach Mining’s proposed standard would not enforce the law Congress wrote, but would impose extra procedural requirements.

SCOTUS explained the proper scope of judicial review matches the terms of Title VII’s conciliation provision. The EEOC must communicate in some way about an “alleged unlawful employment practice in an endeavor to achieve an employer’s voluntary compliance.” In other words, the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of reasonable cause. Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements ensures the EEOC complied with the statute. Simultaneously, the discretion allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them. A court reviews whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.

SCOTUS explained a sworn affidavit from the EEOC stating it has undertaken the aforementioned conciliation steps will suffice to overcome any affirmative defense for failure to exhaust administrative remedies. If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a jury will decide. Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake conciliation efforts

This article was researched and written by Daniel J. Boddicker, J.D. Dan can be reached for questions, concerns, or discussion at dboddicker@keefe-law.com.


Synopsis: New Study Confirms Physical Therapy Effects Equal to Surgery for Treating Spinal Stenosis Symptoms—Consider Athletico for Such Care.


Editor’s comment: A study reported last week indicates physical therapy for spinal stenosis is as effective as surgery and should be fully considered as a first-choice treatment option. This is the first such study to directly compare a single, evidence-based physical therapy regimen with decompression surgery among patients who agreed to be randomly assigned to either approach. The study focused on self-reported physical function among 169 participants diagnosed with lumbar spinal stenosis after 2 years, but it also tracked function measurements along the way--at baseline, 10 weeks, 6 months, and 12 months. Researchers found not only were 2-year effects similar for the 2 groups (87 who began with surgery and 82 who started with physical therapy), the increase in function followed similar trajectories from baseline on.


This important research was conducted between 2000-2007, and limited to patients 50 years and older who had no previous lumbar spine stenosis and had no additional conditions including dementia, vascular disease, metastatic cancer or a recent history of heart attack. The study, which appears in the Annals of Internal Medicine (abstract only available—click the link), was led by Anthony Delitto, PT, PhD, FAPTA, with coauthors including Sara R. Pilva, PT, PhD, FAAOMP, OCS, Julie M. Fritz, PT, PhD, FAPTA, and Deborah A. Josbeno, PT, PhD, NCS. The findings have been reported in Reuters, the Pittsburgh Post-Gazette, Medpage Today and other outlets. According to an editorial that accompanies the article (sample), what makes this research important is it restricted the nonsurgical approach to a single physical therapy regimen and participants—all of whom were prequalified for surgery—consented to a randomized treatment approach. Previous studies focused on surgical vs. (mostly unspecified) "nonsurgical" approaches, and some allowed patients to self-select their treatment groups.


From evaluation to discharge at Athletico, their physical therapists can help back pain in many ways and below are a few examples of how.


1.         During the evaluation the worker’s past medical history will be reviewed so any prior injuries, surgeries or medical conditions that could affect spinal health are uncovered and can be addressed if appropriate or necessary throughout ongoing treatment.

2.         The injured worker’s posture will be assessed and reviewed with a progression of corrective strategies initiated throughout treatment if deficits exist.

3.         The licensed physical therapist will want to know more about their patient’s occupation, daily household activities, hobbies and recreational sports so the worker can be educated in safe spine positioning, body mechanics and even ergonomics to help decrease any possible repetitive stress that may exist.

4.         A strength assessment will be performed for the worker’s core muscles, scapular stabilizers and hips/lower extremities as needed with a progression of exercises given throughout the course of treatment to improve strength, stability and motor control.

5.         Joint range of motion and tissue flexibility will be evaluated with education and performance of stretching techniques as well as manual work per the physical therapists’ discretion.

6.         Many therapists have advanced training to  assess spinal joint range of motion and restrictions and through the application of manual therapy techniques can restore motion at spinal segments.

7.         Also muscle energy techniques may be administered to also normalize joint integrity. 

8.         To help manage pain, the Athletico therapist may utilize a variety of different therapeutic techniques to ease discomfort such as heat, ice, ultrasound, TENS or traction.

9.         Pain can cause stress and uncertainty so many times a physical therapist helps most just by listening and encouraging through difficult times.


To learn more about this new study or to schedule care at one of the 330 Athletico locations, go to their website at http://www.athletico.com/our-company/the-athletico-story/ or call Mike Trombetta, their Director of Industrial Rehabilitation at 630-575-6209.