3-14-2011; Can Illinois Government Workers Rein In Illinois Government Workers—Can Correcting Government Workers’ Comp Mismanagement Be a Litmus Test?

We heard a fascinating speech by Chicago Mayor-elect Rahm Emanuel in which he posited the theory government workers should be more efficient or at least as efficient as private workers providing the same services to taxpayers at competitive cost. Without meaning to discourage a guy who may become a great city official, we consider that challenge to be ludicrous and just about impossible in this state. We feel Illinois government at every level, state, county and city, has a “durable competitive disadvantage” in providing simple government services in relation to private companies for at least five reasons:

1.     Illinois government workers get more than double the paid holidays of private workers;

2.     Illinois government workers get as much as six weeks of paid vacation which, if not used, can be accrued and kept for years—no private company does this;

3.     Illinois government workers get “Cadillac©” health care benefits paid by Illinois taxpayers at low or no cost to the government worker in a fashion no private company provides;

4.     Illinois government workers get generous lifetime pensions at a fraction of the cost in relation to similar employees in the private sector;

5.     Illinois government workers get workers’ compensation benefits in a fashion which would rapidly bankrupt any private company.

As you and most of our readers are focused on workers’ compensation issues, we will maintain that singular focus and leave other daunting issues to civic leaders like Mr. Emanuel and Doug Whitley, the President of the Illinois State Chamber.

What may be the main problem with administration of workers’ compensation for Illinois government workers? We simply cannot expect them to police themselves sufficiently, and while we are starting to see some positive things happening, we are worried about the Illinois Government Vortex:

·         Almost all Illinois government workers at every level of management are in unions;

·         State, county and municipal unions collect millions of dollars in union dues;

·         State, county and municipal unions take the dues and use them to donate heavily to political candidates and telephone their union members and demand they vote for their candidates;

·         Those political candidates win office and do whatever union members want.

What is the problem with all of this? Well, we assure you many Illinois government entities don’t use simple, ordinary workers’ compensation investigative and management measures to insure they are paying benefits reasonably owed. For one simple example, Cook County does not require their injured workers to fill out work accident forms. Why would they eschew this simple investigative technique? Well, a couple of years back, a worker filled out an accident investigation form in a fashion inconsistent with his medical records. His benefits were denied and it appeared he committed workers’ compensation fraud—after that happened, you would think the County would ramp up their successful investigation techniques. To the contrary, the County stopped “allowing” their workers to fill out such forms and lock themselves into a story!! So, we assure you some percentage of WC fraud is expected in their WC program—they aren’t taking simple steps to root it out.

On another level, having accepted a claim, we are certain the City of Chicago has not used surveillance to check on its injured workers for years. Why would they avoid surveillance? They don’t want to catch workers who are malingering or otherwise abusing their right to TTD. Similarly, very few governments at every level in this state provide light duty for their workers to minimize TTD and get them back to work. Many agencies allow the workers to make liberal use of the “one-year-off-with-full-pay” rule to allow hundreds of workers to get even more time off than anyone in the private sector would ever allow. We feel this creates a “ghost workforce” with a hefty percentage of government workers who are perennially off work and getting workers’ compensation benefits along with the “full pay” differential which is all being paid by the taxpayers.

This clearly isn’t limited to the County of Cook or the City of Chicago, news from southern Illinois disclosed Lt. Jay Ziegler, a lieutenant at the Menard Correctional Facility received his temporary total disability check for $2,092 and that same day was in his boat on Carlyle Lake helping the Murphysboro High School Red Devils’ bass fishing team at the state finals last May. Ziegler was off work after he underwent surgery for an undisputed repetitive trauma injury to his wrists and elbows. On Jan. 13, 2011, he received a tax-free check funded by you and I as taxpayers for $76,326 based on his workers’ compensation claim. This settlement followed a similar $42,043 settlement he received Dec. 23, 2009, for an injury he stated resulted when he supposedly sprained his right shoulder performing the only-in-Menard-is-it-dangerous to carry "food trays up stairs" at the prison. In just over one year, Ziegler collected $118,369 for injuries while on the job. He also collected a total of $17,397 after being paid temporary total disability during two periods, one in 2009 and the one in 2010. In all, he received $135,766 in taxpayer-funded workers' comp payments. Ziegler is the vice-president of the Southern Illinois Bass Club—even the simplest of surveillance operatives would have readily located him on their club website. Oops, it appears clear no one is following up or performing such simple surveillance techniques to insure benefits are paid when due. Illinois government workers don’t check up on their brethren.

State Rep. Dwight Kay has called for a full investigation of the WC program at the prison facility and, last week, the Illinois House voted 111-0 for his resolution for an audit and investigation of workers’ compensation awards to state workers. One problem for them to consider is at least one CMS/state WC claims adjuster who is supposed to be reining in costs on such claims has already received a “repetitive trauma” settlement herself. The Arbitrator who used to consider such claims got about $50,000 for a settlement before recently being suspended with pay for other reasons. The warden at the same prison got about $75,000 for his “non-accident” shoulder claims. Doesn’t it appear those government managers would want other government workers to get the same generous benefits they got from the taxpayers? Is there a “limit switch” anywhere on this stuff?

We ask the rhetorical question: can Illinois government workers rein in Illinois government workers? Isn’t there an environment present in which our government officials know this is happening and don’t truly care because their government union brethren are benefiting from it at taxpayer expense? Isn’t that one reason for all the workers’ compensation secrecy in this state—shhhhhhh, don’t let the dopey taxpayers know and we can reap in millions?

We salute Dwight Kay and our plea to both him and the Illinois House is to not stop at this prison with its ludicrous situation of paying out hundreds of “non-accident” WC claims to managers and line employees. Start to look at workers’ compensation in government across Illinois and compare it to systems in the private sector. And remember, if you can’t bring the Illinois public workforce into alignment with the private sector, consider bringing in the private sector to replace Illinois government workers. For an example, lots of states use private contractors to run prisons—private contractors wouldn’t and couldn’t put up with such silliness. For another simple example, Indiana doesn’t have government workers on its tollways anymore and Illinois could save millions in tax dollars if we would mirror the private managers or hire them to run out tollways.

The research and articles on the Menard situation are credited to the ground-breaking and stellar work of George Pawlaczyk and Beth Hundsdorfer of the Belleville News-Democrat. As to the rest of it, we appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog at www.keefe-law.com/blog.

3-14-2011; Incompatible, Irreconcilable, Unlike, Differing, Opposite, Contrary, Reverse--Ooops, did Illinois just judicially drop the “arising out of” requirement for workers’ comp claims and reach...

Editor’s comment: Color us totally confused. Your editor didn’t go to a law school class on workers’ comp because our law school didn’t have one at the time. To learn and grasp basic workers’ compensation concepts, he grew up keeping his mouth shut and listening to great workers’ compensation lawyers talk over coffee on breaks like Thomas D. Nyhan, John P. Roddy, W. Daniel Leahy, Richard E. Aleksy, Arthur O. Kane, Albert Priebis and Mark A. Braun. They all advised Illinois workers’ compensation was liberal in this state but it only covered claims where the employee suffered an injury which both “arose out of” and occurred “in the course of” employ. Over and over, they confirmed the worker in this state couldn’t just be at work or “in the course of” employ; they also had to suffer injury due to a risk which wasn’t “common to the public” but fell prey to something over and above normal risks of daily life to be work-specific. So, for a number of examples, it wasn’t a work-related injury to be working and get hurt

·         Stepping over and tripping on a typical street curb;

·         Arising from a chair;

·         Turning around; and

·         Getting hit by a completely random but runaway truck.

If you aren’t sure, there are landmark Appellate and Supreme Court rulings denying each and every claim outlined above on the simple language in our Act based on the facts in the bullet points. For about 100 years, Illinois has had the same requirement as many states that employees are only compensated with workers’ compensation benefits when they suffer injury from specifically “work-related” risks. As we have told our readers, coverage of the Illinois WC Act has recently exponentially grown due to two concepts—“repetitive trauma” which we feel now incorporates the “eggshell worker” and the wildly expanded concept of “traveling employee” which basically has extended coverage to anyone on the move and not at a fixed desk or work station when injured. We now have to tell you of a new expansion of coverage using a new and shiny term “street risk,” as we outline below. Please note these new words “street risk” don’t appear in the WC Act and some academicians may again feel this is judicial legislation.

In our humble view, the ruling is the “complete opposite” or inverse of numerous prior legal rulings—if an Illinois worker confronts the risks of daily life at work, it appears such risks are now ‘abnormal’ risks solely due to the fact the worker may confront them more than once. Doesn’t this mean Illinois is now a “positional risk” state where all one has to do is show you are “in the course of” employ and have a malady to be entitled to benefits? If we aren’t magically a positional risk state, what does AOO now mean?

In a ruling we respectfully consider unnecessary and unprecedented, our five-member Appellate Court, Workers’ Compensation Division might have dropped half of the AOO/ICO (“arising out of and in the course of”) WC concept. The only way to figure out what they have done will be to wait and see where they are going to take what they called the “street risk” concept over the weeks and months to come. In our view, the four bullet points above outline “street risks” or other similar personal risks we all face whether at work or going to church/temple/place of worship or at home or wherever there is human discourse and interaction. As you will see below, we are concerned there may potentially be lots of new “risk” concepts to emasculate or simply end the AOO requirement in this state. Our main concern is the term “arising out of” comes directly from the Workers’ Compensation Act. We feel it is somewhat hard for our reviewing courts to somewhat “skip” or clearly redefine a 100-year old legislative imprimatur. But this is Illinois, correct?

In Metropolitan Water Reclamation District of Greater Chicago v. Illinois Workers' Compensation Commission, (No. 1-09-2546WC February 22, 2011), the Illinois Appellate Court considered a claim in which a MWRD accounting clerk employee fractured both wrists when she claimed she stumbled and fell on what is described as a six-inch “dip” in an inclined commercial driveway walking to a bank to deposit checks in employer's account. From our review of the ruling, this was an open and obvious facet of the commercial driveway on a public street in downtown Chicago. There is no indication in the ruling of any defect, foreign substance, poor lighting or other problem with the driveway; we are betting the “dip” is the drain which runs down the middle of most driveways to allow water, ice and snow to easily collect and flow to the street. Claimant left the MWRD offices at 100 East Erie and was walking to Chase Bank® at 605 North Michigan Avenue on the Magnificent Mile—she had traversed this path for about 13 years and must have known it pretty well. Google Maps® indicates the total distance is 1/5th of a mile.

If you aren’t sure, literally thousands of Chicagoans and visitors to Chicago from all over the planet transverse this area every day of every year—numerous websites indicate 22 million visitors or Chicago natives like claimant walk, work and shop on Michigan Avenue every year. Risks inherent to walking near and on Michigan Avenue are almost by anyone’s definition risks common to the world’s public. If you fall down walking on a public street from some aspect of the street itself, like a curb, gutter, drain, sidewalk expansion joint or whatever, in our view, it has never been compensable in this state—well, it may be now.

The ruling indicates claimant was walking toward the bank to deposit checks in the District’s account. She walked east on Erie toward Michigan Avenue, crossed Erie in the middle of the block, and then stumbled walking up an inclined driveway that had a "dip" we describe above of about six inches. The Court’s majority concluded this was a “street risk” and reversed the Circuit Court below and found it compensable. The court’s members found claimant established her job duties exposed her to a risk somehow greater than that faced by the general public, as this dip in the driveway was a “street hazard” and therefore a job risk to claimant. What we find missing in the ruling is how her risk was arguably greater, other than the fact she walked the area more than you or I might. In our view, everyone who walks in the area suffers the identical risk every time you are in the area; just as anyone stepping over a curb runs the identical risk every time you step over the same curb—it doesn’t multiply or increase by each step. And in our view, after thirteen years of being in this area, she should clearly have known the risks she might face.

We ask the rhetorical questions

·         If you fall over a typical street curb as claimant did in Caterpillar Tractor v. Industrial Commission, did he face a “curb risk” which would then be compensable? Don’t folks step over curbs every day?

·         If you hurt yourself arising from a chair as claimant did in Hansel & Gretel Daycare Center v. Industrial Commission, would that be compensable? Don’t workers stand up from chairs every day of every year?

·         If you strained yourself simply turning around in a chair; as claimant did in Board of Trustees of the University of Illinois v. Ind. Comm'n would that be a “turning risk” and therefore compensable? Aren’t we all turning in chairs these days?

·         If you were hit by a completely random but runaway truck as claimant did in Brady v. Louis Ruffolo & Sons Construction Co. would that now cause claimant to be entitled to benefits due to “runaway truck risk”?

For reference, every one of those claims was denied by an Illinois reviewing court. None of those rulings are mentioned in this new decision. For future reference, we are all left to ponder where this new legal concept of “street risk” starts and ends? Which street risks faced by thousands or millions of normal citizens every day are now compensable and which risks are not? From our past training, “arising out of one's employment" referred to the origin or cause of the claimant's injury. A causal connection to the work was demonstrated if the claimant establishes if the conditions or nature of the employment increase his risk of harm beyond that to which the general public is exposed. We didn’t understand that to mean if you stepped over the same driveway or curb or arose from the same chair ten times, you faced ten times the risk of everyone else—we have always felt the risk of injury was the same.

In our view of this ruling we are missing the risk of harm to this worker beyond the risk to which 22 million visitors a year and all Chicago citizens are routinely exposed—you and I and everyone you know may walk upon and across this driveway any time you are on Erie near Michigan. Well, we will all have to wait and see where this ends up—if you ask us, the concept of “arising out of” in this state may have quietly and firmly ended unless some later clarification is provided.

The lawyers listed in the first full paragraph above did not participate in drafting, editing or publishing this article in any way and we are not outlining their opinions on this ruling. We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.

3-10-2011; God Bless Toni Preckwinkle—at least one Illinois Democrat sees cutting jobs and budgets are important to save tax money and attack deficits. Can the IWCC and State of Illinois be...

We want to extend kudos to the Cook County Board Chairperson for reversing the sales tax increase brought by her misguided predecessor. We also note she isn’t cutting services to do so; she is simply cutting overstaffed county departments on an across-the-board basis. Someday, we hope all state, county and local governments in the “People’s Republic of Illinois” start to tighten budgets and provide way more value to the taxpayers they serve.

From the IWCC, we note a recent announcement on their website appears to indicate a similar budgeting focus. To give credit where credit may be due, we salute Chairman Weisz for his quiet but solid approach and hope he continues to do more—some of our top arbitrators assert they could handle lots more claims by implementing case-handling efficiencies. As part of IWCC cost-cutting, we note they may be “scrambling the eggs” to make it more difficult to figure out who is on first and what is on second when it comes to status calls but we are sure the industry will adjust. From what we can tell, the two Arbitrators currently on paid leave are going to be there for the foreseeable future. They may literally have no status calls to return to. On another note, while we dislike seeing some of the Arbitrators inconvenienced by longer drives to distant hearing sites, we do feel the fresh faces at some of the calls may be good for overall professionalism in hearings and pretrials.

The IWCC announced they have consolidated some Downstate arbitration territories and made other changes, effective April 1, 2011:

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The Belleville call will be closed and consolidated in Collinsville.

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The Carlinville call will be closed and consolidated in Springfield.

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The Clinton call will be closed and consolidated in Decatur.

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All Rockford cases will be heard by Arbitrator Akemann.

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The Waukegan call will be moved to the second Friday of each month, with the next seven days as trial days. (except for November where the call will remain on the 1st Friday of the month due to Veteran's Day and Thanksgiving holidays)

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The Whittington call will be closed and consolidated in Herrin.

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The Winchester call will be closed and consolidated in Quincy.

The Commission outlines these changes will save travel and rental expenses and allow fewer arbitrators to hear more cases. Arbitrator assignments, effective April 1, appear below. 

Arbitrator

Territory Assignments

Akemann

Rockford

Andros

Kankakee, Wheaton

Erbacci

Waukegan

Falcioni

Joliet

Fratianni

Joliet, Ottawa

Giordano

Peoria

Holland

Danville, Galesburg, Rock Falls, Rock Island

Kinnaman

Geneva

Lee

DeKalb, Woodstock

Mathis

Bloomington, Mattoon

Nalefski

Herrin

Neal

Collinsville

O'Malley

Wheaton

Tobin

Decatur, Mt. Vernon, Urbana

White

Quincy, Springfield

Arbitrators will adopt the existing status calls and schedules for their new territories. Any partially tried cases will stay with the original arbitrator. Revised Downstate calendars will be posted on the Commission’s website shortly.

Please forward any questions or comments.