8-1-11; Blowing a Billion in Taxpayers’ Bucks Every Seven Years or So—You have to love and weep about obvious claims-mismanagement by, with and for State of Illinois employees

While the Workers’ Compensation Advisory Board tackles the assignment of Arbitrators that don’t need replacing, we read another block-buster article from the Dynamic Duo with the Belleville-News Democrat, Beth Hundsdorfer and George Pawlacyzk. Turns out they found a story about a State of Illinois worker who apparently mined what we call the “Tunnels of Illinois” after working as a court stenographer for our state for 25 years. Looking at the “accidental injury” in this claim, we point out to our readers there are numerous international studies, one of them from Harvard Medical School which indicates the incidence and prevalence of CTS from keyboarding/typing is no higher than that expected in the general populace. We regularly point out to our readers Harvard Medical School’s findings are not accepted within our state’s “Tunnels” which apparently have unique characteristics because we provide so much money for the minimally invasive and non-disabling surgery in our WC system.

A state worker underwent CTS repairs and then could no longer work as a court stenographer. After undergoing and recovering from surgery, this state worker wanted a job back but not a job that involved overuse of her hands. The great reporters at the News-Democrat confirmed this employee applied to numerous Illinois state agencies for any other state job but none responded. Please note the State of Illinois has about 250,000 jobs if you include all state agencies and our colleges/universities. One would have to think there has to be one job out there for someone smart enough to be a court reporter. We further note this claimant holds a master's degree in business administration. While we haven’t done the research, common sense would indicate there has to be at least 5,000 Illinois state jobs that open up and are filled every single year.

The BND reporters quote Alka Nayyar, spokeswoman for the State's Office of Workers’ Comp Claims Mismanagement--Central Management Services in a written response: "If and when possible, one of the primary objectives of the state's workers' compensation program is to return employees safely and quickly to productive work." Nayyar also stated: "Re-employment for injured workers is subject to union bidding rights, veteran's preference and other laws, and all hiring must take place within those laws."

Our response to that sentiment is blunt—“balderdash.” We point out the Illinois Workers’ Compensation Act, the Americans with Disabilities Act and common sense are also “laws” which should be considered in re-employment of injured workers. They obviously don’t apply at CMS.

In the People’s Republic of Illinois, We Pay a Lot of Money for People Not to Work

It appears this state employee was receiving tax-free TTD at $766 per week. The worker testified before an WC arbitrator she wanted to again work for the state at a job not involving stenography. There appears to be no question she recovered, could lift 45 pounds over her head and was generally in good physical condition. Instead of getting a job and doing something for the taxpayers, she received $248,966 in TTD. Beginning in January, this claimant was awarded the $766 per week for life. If she lives to her normal life-expectancy, that value will be a cool $1,155,128.00.

While we are uncertain as to how it happened, the BND team has also reported claimant was also awarded an additional $122,000. We assume this follows what we feel is the preposterous ruling in Beelman Trucking in which a worker can get total and permanent disability benefits with another “kicker” on top of what is supposed to be lifetime benefits—the State will owe what we call “double permanency” for several years. We are unaware of any state which provides lifetime WC benefits with additional “double” permanency benefits in the fashion this state does. It is our view this was a creation of the courts that has not been addressed by our legislature.

Wouldn’t you think that might be enough? Well, please remember this is Illinois, the state run by convicted felon after convicted felon. In addition to the monies listed above, this claimant will also receive $1,482 per month in occupational disability from the just-about-broke-and-wildly-in-the-hole State Employees Retirement System. Her total for workers' compensation and retirement disability is $57,633 per year, none of which is subject to tax. The projected lifetime cost of the combined benefits is $1,671,357.00. Adding the $122,000 in “double-permanency” and the $248,966 already paid, our State is going to be out about $2,042,323.00 not including medical bills. Hey, it is just taxpayer money and no one cares about that, right? Please note the claim value would drop from over $2,042,323 back to $122,000, a savings of about $1.9 million, if they offered her a reasonable job right now—the State can cut all of this off if and when they ever get the message and offer her a reasonable job.

All of these benefits for a woman who testified under oath she can and will work. Watching this sort of hapless mismanagement, is it any wonder the Chicago Mercantile Exchange is now thinking of pulling up stakes when they have been in this state since 1848?

No One’s Halo is On Straight in Cases Such as This One

·         We continue to assert the whole “odd-lot” or what we call “lazy-lot” total and permanent disability concept is imperfect and needs to be reviewed by our courts that created it and the legislature that ignores it—even a schoolchild can see it greatly rewards malingering. We continue to point out the words “odd-lot” do not appear anywhere in Illinois workers’ comp legislation—it is our view the Illinois Supreme Court “legislated” the concept.

·         Claimant is 54 and may now get lifetime benefits that may continue into her 90’s--when someone who is pension-eligible gets a lifetime benefit to replace work-life lost income, the amount awarded is like winning the lottery. Workers’ comp isn’t supposed to be like winning the lottery.

·         Yes, you are correct, we feel she can and should have found work on her own. As we indicate above, she still can. If she won’t, the State of Illinois or any of our readers can offer her a job this week and seek to terminate the lifetime benefit now being paid by taxpayers.

·         While we haven’t reviewed the record, we also feel it borders on legal malpractice for CMS and the Attorney General to not have provided outplacement services or vocational rehabilitation counseling to demonstrate available jobs outside state employ.

·         Public sector claims poison the private sector--claims like this condition our Arbitrators to give out millions of dollars in questionable circumstances—we assure you they are innocently following the law but in our view, the Arbitrators got put out on the point and are now suffering from public reaction to a wildly flawed system. Our Governor, who we call the “Great Reactor” is simply taking random action to look like he knows what he is doing and may be firing the Arbitrators for simply fulfilling their sworn duties.

·         If the State can’t manage court reporters better than this, they should outsource the services and let private industry manage it.

·         We are very sure this is the tip of a very, very big iceberg and there are lots and lots of former State workers quietly and very lucratively living off the taxpayers when replacement jobs aren’t being offered. We urge further investigation be performed.

You may ask how our headline indicates CMS, the Attorney General, our legislative leaders and Governor are blowing a billion in taxpayers’ money every seven years or so?? Well, in grossly mishandling situations like the one chronicled above, they are tossing about $133,000,000 in workers’ comp benefits for state workers into the wind on an annual basis. We don’t think there are three U.S. employers who pay that much on a national basis every year. If you continue to blow $133 million every year, in about 7 years or so, you have blown a billion dollars.

We point out to Alka Nayyar and the staff at CMS, Governor Pat Quinn, Senate President Cullerton and House Speaker Mike Madigan and Attorney General Lisa Madigan, you have got to stop doing the “Who’s on First” comedy bit and stop pointing fingers at everyone else and take ownership of what is happening in our state. Someone has to be accountable for this situation and start to wake up and smell the coffee and do something about it. Firing the Arbitrators as sacrificial lambs to try to look tough isn’t the answer when you can’t and won’t find someone with their brains/guts to replace them. Given the opportunity, the defense team at KC&A is happy to help improve the state’s management and defense of their WC claims in any and every way.

The Belleville-News Democrat article is a must-read and is online at: http://www.bnd.com/2011/07/31/1805797/she-begged-to-go-to-work.html. If you have hot news in the WC industry in this state, you can directly contact reporter George Pawlaczyk at gpawlaczyk@bnd.com or 618-239-2625; you can contact reporter Beth Hundsdorfer at bhundsdorfer@bnd.com or 618-239-2570. We salute their hard work in researching and breaking this story. We also thank the reader who tipped us off to publication of this story.

Read more: http://www.bnd.com/2011/07/31/1805797/she-begged-to-go-to-work.html#ixzz1TmgVsMPj

7-26-11; Surprise! Viewing racy web content on an employer-owned mobile data terminal while on duty as a sworn police officer was in violation of Police Department rules and regulations. Therefore...

The Appellate Court upheld the Circuit Court and the Board of Fire and Police Commission of the City of Clinton order discharging plaintiff police officer. Hurst v. The Board of the Fire and Police Commission, No. 4-10-0964 (July 12, 2011). The chief of police filed written charges with the Board alleging Plaintiff viewed racy materials while on duty on a mobile data terminal owned by the department. Plaintiff filed a complaint against the chief and the Board seeking declaratory relief that the chief obtained the evidence in violation of the eavesdropping statute. (720 ILCS 5/14-1 through 14-9 (West 2008)).

Subsequently the Board held a hearing on the charges and discharged Plaintiff. Plaintiff sought leave to amend his complaint to request administrative review of the Board’s discharge order. The Chief and Board filed respective motions to dismiss which were granted.

On appeal the Court held Plaintiff’s amended complaint filed together with his motion for leave to file the amended complaint were timely and went on to discuss the alleged violation of the eavesdropping statute. Plaintiff argued the Board “unlawfully considered evidence prohibited by the eavesdropping statute.” He claimed the police chief violated the statute by using the employer-owned data terminal, and software thereon, as an eavesdropping device.

The Court noted “under the terms of the eavesdropping statute, in order for a communication to constitute a protected "electronic communication," both the sending and receiving parties must intend it to be private under circumstances justifying such expectation.” 720 ILCS 5/14–1(e) (West 2008). As nothing in the record suggested the sending parties of the various racy images intended to keep them private the Court held the images were not electronic communications under the statute.

The police procedures manual dictated the data terminals were only to be used for law-enforcement purposes and not in any manner which would discredit the police department. The manual further stated any messages sent on the terminal were “retrievable.” As such, the Court determined Plaintiff had no reasonable expectation of privacy or confidentiality with regard to his use of the terminal while performing his work duties.

According to the Court, as there was no violation of the eavesdropping statute the Board’s decision to admit the evidence was affirmed and such evidence overwhelmingly supported the Board’s decision to discharge the Plaintiff.

Quick internet research uncovered several articles which point to an increase in inappropriate content, being viewed by employees at work. This decision indicates the viewing of such content can be grounds for discharge and the gathering of evidence will not violate the eavesdropping statute. This article was researched and written by Matthew Ignoffo, J.D. Please do not hesitate to contact Matt about it at mignoffo@keefe-law.com.

7-26-11; In our thinking, the problems with causation in this state are varied. Our administrators have to tackle them and come up with a standard that makes common sense to John and Jane Q. Public...

Synopsis: They fire the old and quickly name a new WC Advisory Board in Illinois. Can we give the new Advisory Board members their first assignment—find a way to close the “Tunnels of Illinois” and make sense of the IL WC causation standard???

First, we would like our readers to get the short version of a meeting we had with a wonderful IL WC adjuster in Lexington, KY last Friday. It appears she had an Illinois worker strain his thumb. She accepted the claim and certified him for a minor thumb repair. Oooops. Without truly being advised, she later finds out:

·         He goes to Dr. T for a EMG/NCV at a central Illinois facility;

·         Dr. T, as he usually does, finds mild to moderate signs for CTS;

·         If you are not sure, Illinois is the only state where hand surgeons will regularly perform CTS surgeries where the signs are either mild or moderate in this objective diagnostic test;

·         Dr. T, as he always does, agrees surgery is needed, if the surgeon feels it necessary—Dr. T doesn’t care about what surgeons across the globe do when faced with such results;

·         The worker with the accepted minor thumb procedure has controversial bilateral CTS repairs.

The nice adjuster from Lexington asks us if we have all lost our minds in this state. We are sad to advise her, she doesn’t understand how the “Tunnels of Illinois” work. She says she has been adjusting WC claims in numerous jurisdictions for many years. She has no idea why an otherwise normal, healthy male would want both wrists operated on when he only strained his thumb. I told her there are about 50,000 reasons because that is how much the Illinois WC pays in dollars for someone with bilateral CTS repairs, regardless of how dubious the need for the surgeries.

She asked us how to dispute and win the claim in Illinois. Our only answer is to look to our administrators and see what they do with the new changes. Like almost everyone in the IL WC industry, we do not hold out high hopes for significant changes. And we will have to wait and see.

Second, on a similar note, we get a report on CTS from a Doctor A in northern IL. Dr. A is a noted hand surgeon who is with one of the largest hand surgery groups in the Midwest U.S. Claimant has lots of complaints about his hands and the diagnoses are as varied as doctor could make them. The main problem we had with Dr. A is during all the testing and other medical work-up, he casually opined “pain at work, related to work.” You may note this is precisely what the doctor hired by Central Management Services found in regard to the hundreds of CTS claims coming from the Menard Correctional Center.

Our problem with this last sentence is how comical it is to contemplate. The comedy arises from the fact this otherwise competent physician and scientist doesn’t have the slightest idea what this patient does for a living. We are unhappy to tell everyone we are seeing report after report where Illinois doctors are repeatedly relating conditions to “work” without the slightest idea about what they are opining. Such opinions are the peak of the concept of “garbage-in, garbage-out” expert opinions. How can a physician provide a causal connection opinion with any worth if they don’t know what the patient actually does for a living?

Either way last week, Governor Quinn announced the IL WC Advisory Board appointees, which include a mix of workers' compensation attorneys, labor union representatives and business community members. For the first time in Illinois WC history, these new Board members are expected to recommend workers' compensation case arbitrators, who decide claims, and help guide the direction of workers' compensation policy in Illinois.

Quinn's nominations are:

·         Mitchell Abbett, human resources and safety manager at Holten Meat Inc. We know nothing about Mr. Abbett other than his title and company name. We note his employer, Holten Meat is just south of East St. Louis in beautiful Sauget, IL.

·         Richard Aleksy, a partner at the Chicago law firm Corti, Aleksy& Castaneda. Mr. Aleksy is one of the top claimant lawyers in Illinois WC history. He has an encyclopedic memory and is well-known to all of the Commissioners, Circuit Court Judges and Appellate and Supreme Court justices. We are confident he will be a driving force in selecting Arbitrators. We agree with Mr. Aleksy’s focus on getting disputed claims tried whenever possible. We hope he can provide his vast knowledge of workers’ compensation law and practice into a sustainable causation standard that will keep jobs in this state while providing WC benefits for “real” injuries.

·         Aaron Anderson, director and representative for the Painters District Council No. 30 in Aurora, a union representing people in the finishing trades. We know little about Mr. Anderson other than his obvious union ties.

·         Michael Carrigan, president of the Illinois AFL-CIO. We are very aware of Mr. Carrigan’s credentials and background. We hope he will bring a balanced approach to this process.

·         John Carpenter, senior vice president of public policy for the Chicagoland Chamber of Commerce. We note the Chicagoland Chamber continues to have a strong role in WC changes. Their organization did not provide much value in the 2005 Amendments to the WC Act and we will have to wait and see if they will bring more to the table with their role in selecting new Arbitrators.

·         Mark Denzler, vice president and chief operating officer for the Illinois Manufacturers' Association. Watching Illinois manufacturing continue to shrink in relation to our sister states, we hope Mr. Denzler can make the point that reasonable Arbitrators are critical to his members rebounding and bringing jobs back to our state.

·         David Halffield, vice president of Sears Holdings Management Corp. We are happy to see this long-time Illinois-based retailer has a knowledgeable representative at the table in this process.

·         Phillip Gruber, general vice president of the International Association of Machinists and Aerospace Workers. We don’t know Mr. Gruber’s credentials but we assume his union background will bring another liberal voice to the table.

·         William Lowry, attorney at Chicago law firm Nyhan, Bambrick, Kinzie and Lowry. Mr. Lowry is one of the top defense attorneys in our state. He is knowledgeable and a veteran litigator. It is our hope he can assist in finding Arbitrators with the same drive and intelligence he brings to the office every day.

·         Mark Prince, an attorney at the Prince Law Firm in Marion. Mark is a long-time board member of ITLA and will almost certainly bring their liberal to radical focus to the Arbitrator selection concept.

·         Sean Stott, director of governmental affairs for the Laborers' International Union of North America, which represents workers in the building and construction trades, among others. This is the fourth union member on the Board.

·         David Vite, president and CEO of the Chicago-based Illinois Retail Merchants Association. David is a long-time participant in the legislative process.

One may note there are no women appointees and few minorities or disabled folks. There are two claimant attorneys and one defense attorney, which most claimant lawyers would feel is a proper ‘balance.’ Unions are also heavily represented in relation to their actual role in the Illinois workplace.

The state Senate, which is expected to return to the statehouse in October to address Quinn's vetoes, must approve the new unpaid board members.

We will continue to report progress on their important work. We appreciate your thoughts and comments. If you can correctly identify Drs. A and T from this article, we will send you a free gift.