7-7-2011; Hey Fitz, Elvis is still in the building; can you get a clean slate for Illinois?

If you aren’t sure, the United States Attorney for the Northern District of Illinois is the eminent Patrick Fitzgerald. Having already brought in the conviction of prior Governor George Ryan, Pat Fitzgerald was entrusted with the decision to bring a multi-count federal indictment against former Governor Rod Blagojevich and gets credit for bringing justice to our fair State in getting convictions on 17 federal counts along with a conviction on one count from the earlier trial. We are certain U.S. Attorney Fitzgerald is now in the “cat bird” seat in managing and dealing with the extraordinarily complex federal sentencing guidelines that may result in former Governor Blagojevich going to jail for the rest of his time on this planet or serving a shorter sentence that many veteran criminal observers state could be in the range of about ten years. Whatever he does, it is our strong hope Mr. Fitzgerald isn’t done with the man columnist John Kass at the Chicago Tribune called “Meathead.”

What is left to discuss with Rod Blagojevich? Well, if you aren’t sure, the main issues presented to not one but two jury panels were the shakedowns about Barack Obama’s soon-to-be-empty Senate seat and the unbelievable and shocking actions of Rod Blagojevich in relation to a children’s hospital, for gosh sakes. What was completely left out in the hearings was the clear fact numerous state jobs were openly for sale for the right amount of money during the Blagojevich administration.

The problem the U.S. Attorney had in trying to let folks know about how corrupt the Blagojevich administration was about doling out state jobs was convicted dealmaker Tony Rezko. Rezko's relationship with Illinois Governor Rod Blagojevich and his family were at the root of the federal corruption case which led to Rezko's conviction. There is no question Rezko donated $117,652 to Blagojevich's campaigns and was credited by the Prosecutors in his trial with having delivered bundled contributions totaling almost $1.44 million. Blagojevich's wife, Patty who does very little real estate work, made at least $38,000 acting as Rezko's real-estate agent on several of his company's property acquisitions. Rezko “recommended” many of his business associates and their relatives for positions within state government, three of whom were appointed to the state board that oversees hospital projects.

We were advised Rezko wasn’t called to testify because he sort of went goofy after being convicted. He wrote a letter to U.S. District Court Judge Zagel about what he claimed were efforts by the U.S. Attorney to force him to lie. That letter and Mr. Rezko’s unpredictability as a prosecution witness caused the job-selling to be left out of the list of federal indictments. If you aren’t sure, evidence during Rezko’s trial demonstrated there was at least one state job which was sold for $50,000 in cash. Well, now that Blago is convicted, we aren’t so much concerned about Rezko, U.S. Attorney Fitzgerald can go right to the source who had the jobs to give to Rezko—Rod Blagojevich. The “clout list” on jobs that might have been doled out by Blago for cash or favors remains on the web at: http://media1.suntimes.com/multimedia/show_case_doc.pdf_20080221_10_50_44_45.imageContent

Workers’ compensation observers may note there are not one but two WC candidates listed along with their political patrons. As our readers are keenly aware, numerous other jobs at what is now called the Workers’ Compensation Commission were filled during the Blagojevich administration. We have been advised by numerous sources “control” of the IWCC was given to members of the Madison County bar in exchange for their support of Blagojevich. John Q. Public doesn’t know if anyone paid to get the jobs or control of the Commission. It is our view the public has a right to know and the person who can tell us now has an enormous reason to come completely clean—Rod Blagojevich is facing 300 years in federal prison and we assume he may be ready to sing loud and clear on what he did.

Are Random and Inexperienced Job Candidates from the Governor’s Posse Actually Any Better than Pay-to-Play?

It is our further hope the current powers-that-be start to see what the heck is wrong with Illinois State government. Current Governor Patrick “Tea-bag” Quinn started his career as a purported reformer with the self-styled “Coalition for Political Honesty” and appears to have slipped into the malaise of Illinois politics. His first three choices for the Workers’ Compensation Commission include the current Chairman Mitch Weisz who is a veteran and reasonable administrator. The other two choices for Commission posts include two men whose first days as Commissioners brought them their initial taste of complex workers’ compensation claims—to our knowledge neither had ever tried or appealed a workers’ compensation claim in their lives prior to being appointed by our Governor. One of them didn’t even go to law school in this state.

We know who the political backers for the two most-recent Commissioners are—we assure our readers pay-to-play had nothing to do with their selection. However, we also find it strikingly distasteful to tell our readers the powers-that-be are still running state government where you have to be “sponsored” to get an important and well-paid position. We don’t think that bodes well for the 30-plus Arbitrator positions now being considered by the Governor. While we are confident Pat Quinn has not and will not “sell” them to the highest bidder, we hope he doesn’t give them out to friends or friends of friends who have no WC background or training. He would be much better off to simply keep the existing, honest and veteran Arbitrators who already know, for example, what temporary partial disability is and how it just changed.

In our view, the rights and interests of Illinois business and its injured workers is not a joke or something to be taken lightly. The Workers’ Compensation in this state doles out about $2.5 billion in benefits each year. While we are certain Governor Quinn isn’t randomly raffling off jobs in the fashion of the last two, it isn’t much of an improvement for the current Governor to be doling out important jobs as workers’ compensation hearing officers to his “posse” regardless of their background, knowledge and training in this system. Last week, Arbitrators were supposed to be civil servants with needed protection when they handled difficult claims. Due primarily to the Menard C.C. “scandal,” the arbitrator jobs are now basically political plums to be provided to neophytes in exchange for quiet fealty to the party in power. To us, that isn’t much of an improvement over the tainted personnel methods employed by George Ryan or Rod Blagojevich.

In our view, some day, somehow this State is going to start to select candidates for important jobs after doing an open and honest national or statewide search. We can imagine a state where the best candidates are always selected regardless of their politics and loyalties. Someday, the goals of Michael Shakman in getting partisan politics out of middle and lower level state jobs is going to take hold. Until then, we are going to keep writing about all of it. In summary, it is our strongest hope U.S. Attorney Patrick Fitzgerald holds Rod Blagojevich’s feet to the fire and finds out what happened about buying and selling state jobs and more important, lets the public, the members of the state bar and the media know what truly happened. If Mr. Fitzgerald goes the extra mile on this, it may demonstrate to future Governors-to-be what they have to do to actually fulfill their jobs and then “retire” in a setting where there are no prison bars anywhere in sight.

6-29-2011; Medicare Set-Aside Specialist Shawn R. Biery reports more items of interest with regard to Medicare and the ongoing changes and hearing before the House Energy and Oversight Committee...

As previously reported weeks ago, hearings were being conducted in Washington D.C. which are of interest to all involved with Medicare repayment and MSA issues. A hearing was conducted by the Subcommittee on Oversight and Investigations, Committee on Energy and Commerce on Wednesday June 22, 2011 at the Rayburn Building in Washington D.C., to discuss H.R. 1063, the Strengthening Medicare and Repaying Taxpayers Act.

Barbara Taylor, Chief Financial Officer and Director, Office of Financial Management for Center for Medicare and Medicaid Services (CMS) testified as well as James C. Cosgrove, Director, Health Care, United States Government Accountability Office. Ms. Taylor and Mr. Cosgrove entered written statements and were then questioned by the Subcommittee members. Ms. Taylor testified that Medicare is responsible for approximately 413,000 Secondary Payer claims and acknowledged that the implementation of Mandatory Insurer Reporting has doubled the CMS workload over the last eighteen months. She estimated CMS has recovered $600,000,000.00 as a result of the CMS conditional payment recovery efforts, however she wasn’t able to respond appropriately to many questions regarding delays in response as well as thresholds of the conditional payment claims sought to be recovered, the average response time of the Medicare Secondary Payer Recovery Contractor MSPRC or the rejection rate of data electronically transferred to Medicare which may trigger recovery efforts. She acknowledged "problems" including the fact that the MSPRC is overwhelmed with their workload. Mr. Cosgrove essentially advised the Subcommittee that he was unable to objectively measure the performance of CMS and was unable to testify about the efficiency of the process. He noted five elements within the system: notification, negotiation, resolution, reporting and recovery. However, it was also noted that they have been unable to gather data to quantify the process and its effect on beneficiaries or the Medicare Trust Fund.

All reports confirm the Subcommittee, particularly Chairman Cliff Stearns (R-FL), seemed quite unsatisfied with the CMS presentation and the lack of concrete data or knowledge of MSPRC performance, the amount of potential recovery dollars, and the reasons for the 120-150 day lag in requests for conditional payment information and its receipt.  Other witnesses, including Marc Salm, Vice President of Risk Management for Publix Supermarkets; Scott Gilliam, Vice President and Government Relations Officer for Cincinnati Insurance Companies; Jason Matzus, a Personal Injury Attorney at Raizman, Frischman & Matzus and Ilene Stein, Federal Policy Director for the Medicare Rights Center testified generally to procedural roadblocks and lack of standard thresholds or guidelines as well as CMS and MSPRC lack of responsiveness and its effect.

6-29-2011; Another U.S. Supreme Court decision of note for railroad liability in worker injuries

In CSX Transp., Inc. v. McBride, our highest court found common-law proximate cause is not required to establish liability under FELA and our highest court rules if employer negligence played any part, even the slightest, in producing injury or death, damages will lie. The decision is online at: http://www.supremecourt.gov/opinions/10pdf/10-235.pdf

An employee who worked as a locomotive engineer for a railroad carrier brought an action against his employer under FELA, seeking compensation for a hand injury that he sustained while performing switching operations. After declining to give the "proximate cause" jury instruction requested by the carrier, the Federal District Court employed the Seventh Circuit's pattern instruction for FELA cases which says: "Defendant caused or contributed to Plaintiff's injury if Defendant's negligence played a part-no matter how small-in bringing about the injury." The jury returned a verdict for the employee.

On appeal, the Seventh Circuit Court of Appeals approved the District Court's causation instruction and affirmed the judgment entered on the jury's verdict, noting in Rogers v. Missouri Pac. R. Co., the U.S. Supreme Court had relaxed the proximate cause requirement in FELA cases. Certiorari was granted by our highest court.

Section 1 of FELA, 45 U.S.C.A. 51, provides, in relevant part: "Every common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.... " FELA was enacted in response to the exceptionally hazardous nature of the railroad business at the dawn of the twentieth century, Justice Ginsburg observed, writing for the Court.

Given the breadth of FELA's causation language, and Congress' humanitarian and remedial goals in enacting the statute, a "relaxed standard" of causation applies under FELA in comparison to tort litigation at common law. In describing that standard, the Rogers court stated: " 'Under FELA the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.' " The Seventh Circuit's causation language tracked this language from Rogers.

The carrier did not ask the Court to disturb Rogers, but contended lower courts overread that opinion, which, the carrier asserted, was a narrowly focused decision that did not displace common-law formulations of "proximate cause" except with respect to recovery for injuries involving contributory negligence or other "multiple causes."

 Justice Ginsburg disagreed. Given the facts of that case, as well as the statutory history and precedent on which it drew, "Rogers is most sensibly read as a comprehensive statement of the FELA causation standard." It was not addressed exclusively to injuries involving multiple potentially cognizable causes but, rather, announced "a general standard for causation in FELA cases." Moreover, Justice Ginsburg noted, "in reliance on Rogers, every Court of Appeals that reviews judgments in FELA cases has approved jury instructions on causation identical or substantively equivalent to the Seventh Circuit's instruction," and each federal appellate court has rejected common-law formulations of proximate cause equivalent to the Seventh Circuit's instruction.

 In sum, the understanding of Rogers affirmed by the Court has been accepted as settled law for several decades, both by the courts and by Congress, which, despite having had more than 50 years to correct the Rogers decision if it wished to do so, had not acted.

Justice Thomas joined in the Court's opinion in part. Chief Justice Roberts, joined by Justices Scalia, Kennedy, and Alito, filed a dissenting opinion, criticizing the Court for dispensing with the familiar "proximate cause" element of an action seeking recovery for negligence and characterizing the standard adopted by the Court as "simply 'but-for' causation."