4-19-2011; Interesting Appellate Court ruling for municipal risk managers--squad car running over officer’s foot held to not be an injury specifically related to an act of duty and...

The Appellate Court reversed the Circuit Court and upheld a Pension Board decision which voted unanimously to deny Officer Filskov’s application for a line of duty disability pension benefit in Filskov v. The Board of Trustees of the Northlake Police Pension Fund, No. 1-09-3151 (April 5, 2011). Officer Filskov was a member of a gang suppression unit and was injured when a fellow officer inadvertently put a squad car in drive and drove over Filskov’s foot while he was moving items which were in the back seat. The officers were leaving a police station and had yet to resume their patrol. They were not acting in response to a call for service when the incident occurred.

The Pension Board decision indicated Filskov faced the same risk ordinarily assumed by any citizen who chooses to become a passenger in a vehicle. Filskov admitted he and the other officers were not responding to a call or in any way involved in an act of police duty inherently involving a special risk.

Section 3-114.1(a) of the Pension Code states:

Disability Pension - - Line of duty (a) if a police officer as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his or her suspension or retirement from the police service, the police officer shall be entitled to a disability retirement pension...

Section 5-113 of the Code defines the term “act of duty” as “any act of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life.” 40 ILCS 5/5-113 (West 2008). The Appellate Court examined the applicable case law and stated, for a police officer to have suffered a line of duty injury the facts need to demonstrate the “officer faced a special risk associated with serving as a police officer at the time of the injury.”

With this in mind the Court stated the Pension Board’s decision was not clearly erroneous because the incident in question, entering a vehicle, did not involve a “special risk, not ordinarily assumed by a citizen in the ordinary walks of life.” The Court noted Filskov was engaging in an ordinary risk that all citizens assume when they either enter a vehicle or move items off the seats of vehicles. Thus, the Circuit Court decision was reversed. Please note this officer would still be entitled to a disability pension, just not a line-of-duty disability pension.

Presiding Justice Cunningham dissented. He felt Filskov was engaged in police work when he was injured because his assignment was to enter a vehicle and drive to a location to perform his police duties. Justice Cunningham believed Filskov met his burden of proving his injury occurred within the narrow parameters of performing an act of police duty.

We agree with the majority decision as all of us enter vehicles as a part of everyday life. We do not feel an injury suffered while doing so is associated with a special risk of police work as required by the Code. This article was researched and written by Matthew Ignoffo, J.D. Please do not hesitate to reply or contact Matt about it at mignoffo@keefe-law.com.

4-19-2011; Looking like you are cooperating with voc rehab when you aren’t—CareerBuilder provides more reasons Illinois WC risk managers, adjusters and defense lawyers hate “lazy-lot”...

In a ruling named E.R. Moore v. Industrial Commission, the members of our Illinois Supreme Court created a new and unprecedented change to the Illinois Workers’ Compensation Act. In our view, this was “judicial legislation” because their new concept doesn’t appear anywhere in the IL WC Act.

In that claim, they started the concept of “odd-lot” total and permanent disability, ruling an injured worker whose doctors found could perform some work but was unable to locate a job fell into a netherworld they called “odd-lot” total and permanent disability. We have always called the same concept “lazy-lot” because what the ruling did was create a cottage industry of vocational counseling in which the counselors on both sides spent thousands to confirm a claimant made a bona fide job effort or didn’t make a bona fide job effort and therefore was or was not eligible for free, lifetime tax-free benefits. We assert it is comically easy to not locate work while appearing to do so. We are unaware of any other state which has their workers do this silly “not-find-a-job” dance with a massive financial reward for doing so—we are fairly certain the legislature didn’t intend this outcome.

Similarly, in wage loss claims, there is a similar cottage industry which has sprung up in this state in which claimant lawyers either ask treating doctors to provide the “golden diagnosis” of permanent restrictions or the claimant attorneys themselves will send claimant for an FCE with a friendly vendor to get the permanent restriction. Once the worker is “permanently restricted,” the same silly dance of trying to appear to locate lower paying work starts and drifts on and on. Everyone is then asked to magically “impute” a minimum wage job even though claimant never actually gets one—the whole idea is to maximize the claim outcome. After the settlement is approved, claimant after claimant then returns to the top paying job.

We recently read an article on CareerBuilder which shows how simple it is to appear to be looking for work when not actually obtaining a job. We caution job interviewers in Illinois to understand some of these actions may be intentional.

Here are a few outrageous interview torpedoes that made CareerBuilder’s list:

v  Provided a detailed listing of how their previous employer made them mad.

v  Hugged the hiring manager at the end of the interview.

v  Ate all the candy from the candy bowl while answering questions.

v  Constantly interrupted the interview to bad-mouth their spouse.

v  Wore a hat with large letters that said “Take This Job and Shove It.”

v  Talked about how a nasty extramarital affair cost them a previous job.

v  Threw a beer can in the outside trash can before coming into the reception office.

We also have seen claims where, after the formal interview, the interviewee hit on or asked to date their interviewer, regardless of sex. We also had one claim where the interviewer confirmed claimant had a strong smell of fish—that won’t appear in their interview notes but it usually would block serious consideration for work (other than for fishermen and women). Our final favorite was the claimant who always started every job interview by loudly asking the interviewer if they hired the “disabled,” as he was disabled due to a work-related injury—it appears such a claimant may be intentionally defeating the interview process as redefined by the Americans with Disabilities Act.

Interview mistakes aren’t always so obvious but they are fairly common. CareerBuilder surveyed over 2,400 hiring managers about the most frequent interview “torpedoes.” The most common method to avoid being hired was answering a cell phone or responding to a text. Over 71% of respondents said they’ve been in an interview where an applicant answered a cell phone or responded to a text. Dressing inappropriately and appearing disinterested tied for second place at 69%. Acting arrogant hit the list at 66% along with speaking negatively about a current or previous employer 63% and loudly chewing gum for 59%.

Sort of like the “causation” standard above, we hope Illinois WC system finds a way to avoid the vocational rehab dance of ascertaining what a “bona fide” job search might be when there are lots of jobs out there. Please reply with your thoughts and comments.

4-19-2011; The Illinois Legislature Wrestled into a Cloud of Smoke over WC reform and then – !!Poof!! – It Died. What’s Next from the Springfield Thinkers?

Well, it appears our legislators on each side of the aisle fought to a draw on Workers’ Compensation reform. The problem is, Illinois employers still come out the loser. We were advised the Illinois Democrats who run the Senate, House and Governor’s mansion wanted to borrow something like $8.7 billion dollars to get their act together and pay bills that have been owed to their vendors for over two years. One funny one is the story our Illinois State Police don’t shoot straight, as they can’t get bullets for target practice because the bullet company won’t provide bullets without getting paid. We are further told the Democrats need about $1.5 billion more to pay their state worker health care tab and other incidentals—that money is due prior to the end of the fiscal year on June 30, 2011. Some of the money they are borrowing is to pay for the money they are borrowing, as they don’t have any defined source of fresh money to pay off the new debt. In one of the worst recessions in U.S. history, we are less than thrilled to see all these billions in red numbers bouncing around.

We were told one of the facets of the Borrowing-of-Billions required the Democrats who hold majorities in both state houses to reach across the aisle to the nice folks from the Republican party. The men and women from the Republican side countered the request for cooperation with a little tit-for-tat; effectively, the mantra was “we will assist you in getting out of the financial mess you have made if you help us to cut workers’ comp costs for Illinois business.“ Everyone focused on the State of Oregon’s metrics showing Illinois has the 3d most expensive WC system in the United States. To the extent our WC costs are only below the nice folks in Alaska and Montana, we point out those two states combined have about one million people less than the current population of Chicago; in short, Illinois has the highest WC costs for any populous and industrialized state in our union.

The lead WC reform bill for the Republicans was Senate Bill 1349. That bill had a number of major reforms including providing employers with choice of doctor, cutting medical reimbursements, limiting wage loss differential claims to age 67, changing the burden of proof on intoxication/drug use claims and much more.

The most important legislative reform concept in SB 1349 and what became the “poison pill” is an interesting controversy. The Republicans wanted a new “causation” standard to require work be at least 50% of the cause of a deleterious condition or what they called a “major contributing cause.” The touchstone of the problem seen across the state is the “scandal” of the Menard Correctional Center where over $10M in workers’ compensation benefits have been awarded in the last three years for untenable claims involving carpal and cubital tunnel repairs. At present, in a facility of about 500 workers, there are 277 prison guards and admin workers with currently pending and effectively indefensible workers’ compensation claims for similar “repetitive trauma” injuries. Due in part to the wildly lax standard of proof, the State of Illinois itself has 25,000 pending claims, costing Illinois taxpayers an obscene amount of over $130,000,000 and more every year. We assure our readers the State of Illinois pays more for workers’ compensation benefits than most Fortune 100 companies pay on a nationwide basis every year.

The problem we foresee with a legislative “causation” standard is “rock beats paper”--hearing officers and reviewing courts can easily trump just about any legislative reform because all the language is subjective and subject to interpretation. Illinois WC system got along for about ninety years, from the inception of workers’ compensation in this state beginning in about 1909 until about 2002 with a common sense causation standard. Beginning with the election of our last felon-Governor and the domination of the WC Commission by the Illinois Trial Lawyer’s Ass’n, we feel Illinois lost any modicum of common sense to the extent:

·         A truck driver with a severe advanced bone disease who simply stepped out a truck, causing his foot/ankle to spontaneously crumble got full lifetime WC benefits in the Sisbro ruling;

·         A truck driver with a back strain who was almost completely recovered and was forced off his personal motorcycle at high speed gets full lifetime benefits from his employer for the non-work-related fall in the ABF Freight ruling;

·         An office worker with a lifetime of back problems and failed back surgery now gets years of lost time and full lifetime WC benefits from her employer for a “misstep” in the Barrington Orthopedics ruling.

All of these Appellate and Supreme Court rulings demonstrate very, very minimal causation between the permanent condition and the workplace event. All of them are certain to cost Illinois employers millions.

Well, the battle of a “causation” standard which might make sense triggered the defeat of Senate Bill 1349 in a 25-6 vote by our Senate last week. The Democrats basically voted “present” but did not take a stance either way, leaving the Republican WC reform effort to die on the vine. Senate Democrats asserted a “better, more balanced” proposal would be forthcoming after their two week Easter/Passover recess. Yawn. The State Chamber estimated SB 1349 offered over $600 million in annual savings—a savings at that level would, by our math, move Illinois from 3d worst to about 6th—that is how bad our state WC system has become. We wonder if Senate Republicans will now back off support for the Borrowing-of-Billions as we outline above??  Either way, watch this space as things may ramp up again in two weeks after the Easter/Passover recess is over.

On other IL WC reform fronts, we note

A.    To our knowledge, the Governor’s extensive WC reform proposals still haven’t made it into an actual “bill” for consideration by the House or Senate. Like the State of Illinois Budget, it appears he likes to announce stuff for the press but doesn’t get the homework done.

B.    Our biggest hope for WC reform in this state is to have the Governor calmly contact the IWCC and lay down the new law—sniff out and stop WC fraud, limit the scope of the Act to its traditional focus, limit permanency in repetitive trauma claims and start to bring Illinois back into the mainstream. Trust us, the current Chairman and other hearing officers don’t need legislation to meet such goals, they are best positioned to do it quietly and quickly, if they want to. If this starts to happen, we assure you we will report it.

C.    The Illinois House passed a bill which, if passed by the Senate and signed by the Governor would end the WC claim of former State Trooper Matt Mitchell who pled guilty after killing two young girls while driving well over 100mph and texting his girlfriend. Again, this is a “common sense” bill mandating that a claimant injured in the course of employment while committing a crime wouldn’t get benefits. We consider that principle common sense and remember the “good old days” when the claimant bar would police itself and turn down such embarrassing claims. We were stunned to see five different claimant attorneys who were interviewed and quoted in the media as saying the claim had to be compensable, solely because the impossibly dangerous and terrifying actions of this claimant were “in the course of” employ.

D.    The Bradley Bill designed to end the workers’ compensation system in Illinois is inexorably tied up in legislative webbing. We assure our readers this concept is designed solely to confuse and confound casual observers—there is no chance, none, that it might somehow become law. Here are our top ten reasons it will never pass:

ü  IL Doctors/hospitals would immediately and irrevocably lose their dramatically higher WC reimbursements—if this legislation was serious they would fight like cornered wildcats to oppose this bill.

ü  The Illinois WC insurance industry would almost immediately disappear and be swallowed by the GL industry.

ü  Similarly, WC lawyers, hearing officers, brokers, nurse case managers, voc rehab counselors and others would disappear. There is no chance ITLA would ever support this bill. Ever.

ü  Unions would go nuts because their members would have to litigate work injuries claims for years to get a dime—their families would unquestionably suffer and possibly go bankrupt waiting for interrogatories, depositions and all the other fun and sloooow stuff in the common law courts.

ü  In personal injury claims, historically 50% of jury verdicts are zeroes—injured and/or dead workers with severe injuries could win just as easily as they could lose.

ü  Employers have more resources and incentives to fight GL claims—union and employee reps would cry and moan about the expected imbalance.

ü  Plaintiff lawyers charge fees of 33.33-50% on GL claims, causing claimants to potentially get much less, even if they prevail. Right now, attorney’s fees in IL WC claims are 15-20%.

ü  There would be a potential for multiparty claims with varying liability, making some work injury lawsuits wildly complex.

ü  The main reasons for WC are fast and certain benefits—all of that would end.

ü  Employers did not and do not want the explosive potential of punitive damages, class actions, RICO claims and other silliness that happens in the common law courts.

Take our word for it folks, this silly “death-to-workers’-comp” concept will remain part of the wacky Illinois legislative frontier and quietly disappear as fast as it arose. If you have any worry about it, take two aspirin, relax and go on to other things because it won’t happen and isn’t worth the time to debate.

We want our readers to know, if they ever pass an IL WC reform bill, we will do a webinar or three to give you the inside scoop. We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog at www.keefe-law.com/blog.