4-19-2011; Another thought on mismanagement of State of Illinois WC claims by state workers—simple math

The Illinois Workers’ Compensation Commission's 2009 year-end report indicates there were about 95,600 cases pending at the Arbitration and Commission level. See http://www.state.il.us/agency/iic/annualreport09.pdf Page 19.

State of Illinois workers who file work injury claims cannot be appealed to the Circuit Court by law so any litigated claim would be pending at the Commission. They admit they had 25,000 WC claims in 2009 so something like one in five state workers has a pending WC claim.

If all of that is accurate and the State of Illinois had  25,000 cases open in 2009, they had 26% of pending claims at the Commission. We understand some of the CMS claims may be non-litigated but we bet there aren't a lot--the vast majority of State of Illinois WC claims are litigated.

We hope the Governor and other involved parties start to take notice of these sort of problems and don’t stop turning rocks over only at Menard C.C. We appreciate your thoughts and comments.

4-19-2011; One final thought for Governor Quinn, Senate President Cullerton, House Speaker Mike Madigan, State Chamber President Doug Whitley and everyone who likes and wants to continue living...

We don’t think anything that happens in the legislature or the IWCC will amount to a hill of beans unless and until the judicial branch signs on. We urge our state’s leaders to get together and write a letter to Illinois Supreme Court Chief Justice Thomas L. Kilbride to see if they will get the same message about saving WC dollars for Illinois business. Chief Justice Kilbride and the august members of the Illinois Supreme Court supervise all of our reviewing courts and assigns the veteran justices who make up the Appellate Court, Workers’ Compensation Division.

With respect to the members of the our highest courts, we are telling everyone who will listen what we feel are the most anti-business decisions in Illinois WC history have been issued in the last twelve months including:

1.     ABF Freight System v. IWCC – In this claim, an injured worker strained his back. Benefits were paid and he was almost done with care and back to work. While riding a personal motorcycle for reasons that had nothing to do with work, he fell off at around 50 mph, suffering significant and major life-changing injuries. This large Illinois union employer is now being asked to pay six or even seven-figure benefits for injuries to a claimant who fell off his own motorcycle. We consider that outcome egregious, primarily because it ends the centuries-old concept of intervening and superseding accident. From a purely academic perspective, we don’t feel there is any state or workers’ compensation system on this planet that would or should provide benefits in such a situation.

2.     Barrington Orthopedics v. IWCC – In this claim, a woman had a five-year history of care and a failed surgery for a bad back. All of these problems pre-dated her work at Barrington Orthopedics. While at work, she claimed she suffered a “misstep.” She did not fall. This problem was so minor, she did not get emergency, first aid or other medical attention of any kind on the day of or weekend after the “misstep.” Now, following the ruling of our Appellate Court, Workers’ Compensation Division, the doctors at Barrington Orthopedics and their insurance carrier are being required to pay for all of her back problems for the rest of her life. This ruling defines the concept of a “eggshell claimant” who clearly was an accident waiting to happen to the extent there was no workplace defect or other real event that caused or contributed to her injury.

3.     Metropolitan Water Reclamation District of Greater Chicago v. IWCC – In this claim, a worker was going to the bank to deposit checks. She fell down on a public driveway and broke her wrists. To our understanding, she did not describe any defect in the public driveway of any kind and simply fell down without apparent reason. She hasn’t sued the owner of the premises for any defect. The Illinois Appellate Court, Workers’ Compensation Division unanimously ordered benefits, outlining she suffered from a “street risk.” We assure our readers this concept greatly expands Illinois workers’ compensation coverage to all fall-down claims of any kind simply by inserting the place of the fall next to the word “risk,” i.e. “sidewalk risk,” “carpet risk,” “stair risk.”

These unprecedented legal rulings respectively cost Illinois employers $100,000 to over $1M in costs. Ten years ago, under more traditional WC analyses, all of them would have been denied with no WC benefits owed for what we feel are common sense and longstanding legal concepts.

If our reviewing courts in the Judicial Branch continue to strip away defenses and greatly expand the coverage of the IL WC Act, there is only so much our Executive and Legislative Branches of state government can do to bring us back to the mainstream of workers’ compensation benefits. We appreciate your thoughts and comments.

4-19-2011; Political Science 101 for Governor Quinn—The Buck Stops THERE!!!

As veteran observers of Illinois WC political matrix, we remain mildly perplexed to see Governor Pat Quinn submit the legislative proposals outlined above to reform Illinois workers’ compensation system. We want his staff and our readers to understand our view this unprecedented legislative action is completely unnecessary for reasons we will outline. That said, we do feel action by the Governor is necessary, we just don’t think legislative action is needed by our state’s chief executive to make this system more functional for Illinois business and those nice folks at Caterpillar who want to keep work in our state. We also want to salute the Governor and his staff for seeing there is an issue they need to address—in our view, Illinois’ workers’ compensation system needs to be brought back to the main stream of U.S. work injury benefit systems and the Governor should have a key role in doing it. Here is a simple game plan.

How did Illinois get to be the third highest state for WC premiums in the U.S.?

If you have been reading these “blogs” over the last ten years, you may recall currently-convicted-felon-then-gubernatorial-candidate Rod Blagojevich was in a three-way primary fight in 2002. To push his candidacy over the top, he made a bargain with the Plaintiff/Petitioner bar in Madison County. The bargain provided Blago the votes to win the primary. In exchange, he provided basically full control over what was then called the “Industrial Commission” to an Illinois State Senator from Madison County. That Senator quietly became the head of what we call the “secret-powers-that-be” who run the Commission.

What happened shortly after Blago was elected Governor was an aggressive claimant lawyer from Madison County was appointed to be the Chairman of the Commission. He did a couple of interesting things. First, he changed the name of the “Industrial Commission” to “Workers’ Compensation Commission” and spent the money to change all the letterhead and signs all across the state. I don’t remember anyone at the joint being asked about this name change and we assure our readers this change didn’t come from an “agreed bill process.” The old-timers groaned into their coffees about the change but basically let this pushy new leader have his way.

Second, in a much more important political step, he changed the funding of the newly-named Workers’ Compensation Commission to move it away from the state’s unpredictable General Revenue Fund to create shiny new funding comprised of a levy solely on Illinois business. In our view, we expected Illinois business leaders to go nuts about the new levy but it was like waiting to hear a pin drop in a crowded bar; we learned business reps were used to paying such levies in other states. The business leaders basically fell right in line, even though our Illinois State Chamber did start and win a settlement in litigation about initial miscalculation of the levy.

Why was this second change so politically important? Well, it resulted in the size and budget of the Commission basically tripling. Prior to the funding surge, observers felt a lot fewer Arbitrators and Commissioners had lots more cases and were less active in handling than today. The seminal change after coming to power in 2002 was the new Chairman was a hotly pro-Plaintiff attorney. He basically added lots of new claimant lawyers or “cross-over” defense lawyers as hearing officers who all towed a party line—increase WC benefit levels. The Workers’ Compensation Commission added a third three-member administrative review panel and the composition of all three panels was two very liberal Commissioners and one defense Commissioner—the defense Commissioners got used to writing lots of dissents. The result of that change was a Commission that almost instantly became wildly liberal and had resources to make claims move to hearing much faster, as the new Chairman wanted.

Please note Illinois WC benefits skyrocketed even though there were no legislative changes from 2002 until basically February 1, 2006 when the 2005 Amendments to the Workers’ Compensation Act became effective. Benefits rapidly increased because the new liberal Arbitrators/Commissioners stripped out traditional defenses, greatly expanded WC coverage in ways we have reported and they increased the traditional permanency awards across the board. The more conservative Arbitrators got the message and followed to become more liberal basically to avoid sticking out and possibly getting canned.

As we told you last week, WC claims and concomitant costs from State of Illinois workers similarly shot up. The “scandal” that is the situation at Menard C.C. and other state government facilities across Illinois directly arose from an unprecedented situation in which Illinois state workers were being educated on how to have “non-accident” claims in which you could get a simple and minimally invasive surgery and bank literally tens of thousands for it. We note the admission by Illinois state officials they were managing 25,000 claims in 2009 should be compared to the IWCC’s annual report from that year where the Commission reports they had 95,600 total claims. These numbers mean State of Illinois workers would have about one in every four claims at the IWCC. As we have said, those claims poison the system for private industry—we urge the Governor to look into what you are doing with your own WC program; bring in consultants, spend a few bucks and save jillions.

In summary, Illinois went from the middle of the pack on workers’ comp costs to the its current lofty position as Third-Rottenest.

Paper Beats Rock; Rock beats Scissors; Governor Quinn Runs the Commission and Doesn’t Need to Sponsor WC Reform Legislation to cut WC costs

In simplest political terms, the Governor doesn’t have to ask the Illinois legislature to have the members of the Workers’ Compensation Commission do something he wants. They work for him. By “work for him” we mean, he can fire any or all of them. In fact, whether he knows it or not, he selected the current Chairman. We assume the Governor’s staff may have handled this political appointment and we suggest his staff dash off an email to remind him how it happened. While we are not aware of any reason to do so and consider the current Chairman very competent, we want our readers to understand the Chairman can be sanctioned, fired or suspended by the Governor at our chief executive’s whim—in Illinois, the Chairman of the IWCC works for and reports to the Governor.

The Chairman and the nine Commissioners all have terms in office that will expire during the Governor’s current elected term. He can ask for any or all of their resignations at any time and would most probably get them. If you read the Illinois Workers’ Compensation Act carefully, the Arbitrators work for the Commissioners and there is a procedure in our WC Act that allows the Arbitrators to be rapidly removed from office. Trust us, they have all read it and know they have political positions that can be pulled as fast as it takes to type the period at the end of this sentence.

The point of all these details is patent. If the Governor wants all Commissioners and Arbitrators to wear pink bowties and purple socks, he can tell them to do so; they work for him. If the Governor wants the Illinois Workers’ Compensation system to move from third in the U.S. in workers’ comp premiums to any level; say 50%; he doesn’t need to waste time with the Illinois legislature. All he has to do is convene a meeting of the Commissioners and Arbitrators and tell them to quietly make it happen and tell the whiny Plaintiff/Petitioner lawyers to quiet down and buy fewer Ferraris as their hands are zip-tied. In fact, the Gov doesn’t have to waste time with a meeting, he can send an email, a “text”, a “Tweet” or simply make a public announcement that he wants them to make it happen and if they don’t, he will start to find and appoint new folks who will.

The Illinois Legislature is One of the Wackiest Places in the Known Universe

Having seen and been asked by numerous readers about the silliness of last week’s “Bradley Bill” that is supposed to end the workers’ compensation system in this state, we want our readers to note two things: First, there is absolutely no chance the Bradley Bill might pass and it wasn’t sponsored and presented with the thought it would pass. We feel a bill to resolve work injury disputes in this state by belly-bumping would have a similar chance at passage. If you want the reasons it was sponsored, send a reply. In short, it is part of the misdirection, stalling and generally confusing things which legislators and lobbyists on both sides do to each other.

Legislators sponsor “poison pill” amendments to bills, fight over nuances and trifles and try to look to the outside world like they have the slightest idea what they are doing. In the workers’ compensation arena, we are sure they don’t. The folks at the IWCC we have listed do know what they are doing and if they aren’t sure, they ask the many lawyers running around the place what to do.

As we have advised all of you, the Legislature can pass five hundred new bills designed to cut workers’ compensation costs—if the Commissioners and Arbitrators (and the lawyers they talk to) don’t like them, they are almost certain to “steam right around” the legislation, as they did with the pro-business provisions in the new Amendments to the WC Act in 2005-2006.

If the Governor wants effective and quiet WC reform; if he wants to tell Caterpillar’s CEO and businesspeople all over Illinois and the world that we are going to return to become a competitive state in the workers’ compensation arena, we urge him to stop wasting his time in the Legislature. Go to the source (or tell them to come to you) and quietly tell them to make it happen. Tell them to limit WC coverage along traditional lines. Tell them to stop the contradictions and silliness that have stripped out lots of traditional defenses. Tell them to start cutting permanency awards across the board. And for gosh sakes, start to limit wage loss differential and total and permanent claims to folks who are severely injured--don’t give claimants  six and seven-figure awards for workers with one broken bone whose lawyers find a way to get them a “golden diagnosis” of permanent restrictions.

And then watch this space and six months from now, we will let the Governor know where Illinois WC is at and where it is going. We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog at www.keefe-law.com/blog.