10-31-11; Why the Illinois judiciary in workers’ compensation and basically everything remains so wildly pro-Petitioner/Plaintiff. While we are certain the legislature just made lots of...

We were stunned, dazed and amazed to learn our Appellate Court, Workers’ Compensation Division recently flipped not one but two rulings, finding the decisions of the IL Workers’ Compensation Commission were “against the manifest weight of the evidence.” If you aren’t sure, the last statement of the Illinois Supreme Court on this topic was to rule the reviewing courts were not to do this, ever. In these two confusing rulings, dissents were filed pointing out there were facts supporting the Commission’s rulings below and asserting the decisions should have been quickly affirmed.

How does judicial fund-raising affect Illinois workers’ compensation? Well, Justice Kilbride and the members of our highest court select the five members of the Appellate Court, Workers’ Compensation Division. By leaving members on this division of the Appellate Court for years and years, it is possible for those appellate justices to focus their campaign fund-raising efforts on the claimant bar. If you aren’t sure, lawyers on the claimant bar will repeatedly donate lots and lots of money to the justices before whom they appear. Yes, it remains our opinion justice is for sale in this state.

We caution all of our readers to understand all of it is perfectly legal. One thing we truly hate and will continue to hate about Illinois law and jurisprudence is the fact a claimant lawyer who gives thousands of dollars to a justice has no duty to divulge such contributions to anyone before or after a ruling is issued. The problem with changing any or all of it is the justices affected have to support such changes—we still laugh about a state law which tried to limit judges and justices to working until age 75; once it passed, the judges found it unconstitutional!!!

We have now learned there is a striking report on the web from three nonpartisan legal reform groups who did the research and note Illinois Supreme Court Chief Justice Thomas Kilbride's November 2010 retention race was the nation's costliest retention election in 25 years. This report "The New Politics of Judicial Elections 2009-10" by the Justice at Stake Campaign, the Brennan Center for Justice at NYU School of Law and the National Institute on Money in State Politics confirms the retention election cost almost $3.5 million, with Justice Kilbride raising $2.8 million.

The report indicates Justice Kilbride was the "target of the nation's costliest retention fight since Rose Bird and two fellow justices were forced off the California Supreme Court in 1986." The report notes several business groups were angered by Justice Kilbride's vote to help strike down a ceiling on Illinois medical malpractice awards--they financed a $688,000 challenge to his retention. Those defense groups included the U.S. Chamber of Commerce, the American Justice Partnership (affiliated with the National Association of Manufacturers) and the American Tort Reform Association.

In response to the monies raised by the business side of the matrix, the report indicates the Illinois Trial Lawyers and the Illinois Democratic Party accounted for half of the $2.8 million raised by Justice Kilbride, according to the report with Justice Kilbride receiving contributions by major plaintiffs' law firms routed through the party. The $1.5 million donated by those law firms "almost identically matched the $1.4 million that the party gave to Kilbride," the report states. The report indicates  Justice Kilbride's own contributions "showed almost no money from plaintiffs' lawyers, enabling him to avoid direct links to special-interest money." Please note the monies raised by Justice Kilbride to remain in office were about four times the amount raised by the defense groups. In this ongoing battle, ITLA and its millionaires almost always win.

The report’s Executive Summary states:

State judicial elections have been transformed during the past decade. The story of America’s 2000–2009 high court contests—tens of millions of dollars raised by candidates from parties who may appear before them, millions more poured in by interest groups, nasty and misleading ads, and pressure on judges to signal courtroom rulings on the campaign trail—has become the new normal. For more than a decade, partisans and special interests of all stripes have been growing more organized in their efforts to use elections to tilt the scales of justice their way. Many Americans have come to fear that justice is for sale. Unlike previous editions, which covered only the most recent election cycle, this fifth edition of the “New Politics of Judicial Elections” looks at the 2000–2009 decade as a whole. By tallying the numbers and “connecting the dots” among key players over the last five election cycles, this report offers a broad portrait of a grave and growing challenge to the impartiality of our nation’s courts. These trends include:

??The explosion in judicial campaign spending, much of it poured in by “super spender” organizations seeking to sway the courts;

?? The parallel surge of nasty and costly TV ads as a prerequisite to gaining a state Supreme Court seat;

?? The emergence of secretive state and national campaigns to tilt state Supreme Court elections;

?? Litigation about judicial campaigns, some of which could boost special-interest pressure on judges;

?? Growing public concern about the threat to fair and impartial justice—and support for meaningful reforms.

It can be located on the web at: http://www.brennancenter.org/content/resource/the_new_politics_of_judicial_elections. We appreciate your thoughts and comments.

10-31-11; AN Employers’ Scariest Nightmare!!!—Late Accident Reporting. In this Federal Ruling, the Court Ruled Late Reporting Justified Termination. Should you consider ramping...

One tough concept for all U.S. employers to consider is heightened accident reporting rules. What may be mildly misleading is Illinois and many states have wildly lax reporting rules when it comes to the time an employee can report an accidental injury and still be entitled to workers’ compensation benefits. In Illinois, that period is 45 days which means one of your workers could be injured today and keep it a secret from you until the middle of December and then let you know. The monster problem that causes is your ability to investigate and learn from what happened to him/her is just about negated. It is also a Nightmare to set reserves accurately. Accident investigation has to be conducted within 24-48 hours to have a ghost of a chance at effectiveness.

The Ghoulish question risk managers and HR folks have to ask is whether an employer require employees to report their workers compensation injuries more quickly than required under state workers’ comp laws? Please note late or delayed reporting may be a new and Scary Illinois WC phenomenon as injured workers seek to sidestep the impact of the new Amendments to the IL WC Act which makes refusal to take a blood test into a Frightful presumption the employee was intoxicated. No one knows if intentionally late accident reporting will be treated as a refusal to test.

We are certain the most aggressive accident reporting model is “end-of-shift” reporting—we have one client who will terminate a worker if they aren’t told about the “accidental injury” or claim of repetitive trauma during the shift where it happens or appears. What is Shocking is their union supports this aggressive approach. We are happy to consult with any of our readers on how to put more aggressive accident reporting models into place.

A ruling from the U.S. Court of Appeals for the Sixth Circuit may be illustrative on the law. Please note this is the federal level just under the U.S. Supreme Court and is therefore a pretty strong statement by our judiciary in relation to U.S. law on the issue. The time period for the U.S. Supreme Court to consider the claim is still pending.

In Geronimo v. Caterpillar, (No. 09-6401, Opinion issued September 7, 2011 and we didn’t make the name up!!!) claimant was a female employee who worked for a large corporation as an at-will employee for approximately seven years. In June 2007, the company transferred the employee from her position as a machinist to an assembler position. The employee alleged she began to experience pain in her hands while completing the tasks required in her new position. The employee explained she experienced pain akin to “a muscle strain” in her palms, upper arms, and fingers each time she pressed down on the clutch plates on the assembly machine. She noted after she let go of the machine pain would stop. The employee claimed she experienced tightness in her muscles at end of her first day and stiffness in her muscles when she awoke the next morning. These pains continued over the next two weeks. After approximately four weeks on the job, the employee began experiencing numbness and tingling while performing everyday non-work tasks with her hands and arms which she attributed to her tasks at work.

By Aug. 1, 2007, the employee began to suspect she had carpal tunnel syndrome she related to work. After doing some internet research, the employee spoke with a company nurse for the first time about her pain on Aug. 14, 2007. By this time, the employee stated pain had become almost unbearable and was causing the employee to lose sleep. When the nurse asked why the employee had not reported her pain earlier, the employee explained she wanted to “try to work through it” because she was afraid she had no “other options than to do the job.” She also stated she didn’t tell her supervisor because “she didn’t want him to think she couldn’t do the job.”

The nurse informed the employee she would try to set up an appointment for the employee to see a doctor. The next day, the company fired the employee for “not meeting expectations” because of her “failure to communicate an injury in a timely manner.” Specifically, the employee was cited for failing to abide by the company’s stated policy requiring employees to report the occurrence of injuries immediately or, if the injury was gradually occurring, to report it as soon as an employee realized they are injured and suspects it is work-related.

The employee filed a complaint alleging the company unlawfully terminated her in direct retaliation for making a claim for benefits and/or asserting her right to benefits under the applicable state workers’ compensation act. The Federal District Court dismissed the employee’s claim finding the company’s policy did not violate state workers’ compensation law, and the employee appealed.

In affirming the dismissal of the employee’s claim, the Sixth Circuit noted although the employee was correct state WC law allowed employees a lengthy period in which to report a gradually occurring injury for the purpose of filing a claim of workers’ compensation, the statute does not expressly prohibit or establish a public policy prohibiting an employer from imposing a separate notice requirement for workplace injuries. In our opinion, the IL WC Act also provides 45 days for reporting an event but it does not prohibit an employer creating a shorter requirement for accident reporting and investigation.

It is also vitally important to note this Federal Appellate Court noted the employer had not disputed the employee’s workers’ compensation claim filed after her termination. We feel this decision effectively stripped out any monetary damages in the termination dispute--the employer and/or its TPA already paid for the employee’s surgery to correct a carpal tunnel problem. Thus, the court felt it was clear the company was not retaliating against the employee for having a medical problem or reporting her injury, but rather the employer was enforcing its own well-promulgated safety and accident reporting policy. Accordingly, the Sixth Circuit dismissed the employee’s claim.

We appreciate your Conjuring-up thoughts and comments. Please feel free to post them on our Eeeerie award-winning blog. If you want the web cite to the ruling above, send a reply.

10-25-11; Painful as it is to say, tornados aren’t work-related risks, folks. However, at the last minute, the Accident Fund Insurance Company of America steps to the plate!!!

A reader sent us an article about an individual severely injured in the horrific storm in Joplin, MO, earlier this year. It appears there is no question Mark Lindquist is a hero. He was a low-paid social worker who nearly gave his life trying to save three developmentally disabled adults from the storm. Both houses of the Missouri legislature honored Lindquist, the Senate resolution calling him "a true hero and inspiration to others." From our review, the Missouri Senate’s assessment is clearly accurate and we salute Mr. Lindquist for his sacrifice and heroism.

The problem is heroism doesn't pay the bills. The tornado's winds tossed Lindquist nearly a city block, broke all of his ribs, shattered his shoulder, knocked out most of his teeth and put him in a coma for about two months. Medical expenses now exceed $2.5 million and the bills remain ongoing. The main social problem we all face is Mr. Lindquist had no private medical insurance as he couldn’t afford it. He assumed workers' compensation would cover his bills, but his claim was initially denied "based on the fact that there was no greater risk than the general public at the time you were involved in the Joplin tornado" according to his company's workers' comp provider. Full disclosure--we work for that provider and have to agree with that difficult initial assessment.

That reasoning has angered observers in some quarters including family, co-workers and some lawmakers. Lindquist watched the skies darken on the evening of May 22, 2011 on his way to the Group Home occupied by three middle-aged men with Down’s syndrome. When he got there, a tornado siren began to blare. The employer, Community Support Services recently put workers through a tornado drill, so Lindquist and a co-worker knew what to do. Because there was no basement or shelter and the developmentally disabled residents moved too slowly to relocate, Lindquist and the other worker placed mattresses over the men for protection, then climbed atop the mattresses for added ballast.

The EF-5 tornado was among the nation's worst of all time. It destroyed more than 7,000 homes, including the Group Home, and killed 162 people, many of whom were at work. Lindquist's survival defies common sense. After the storm, rescuers found Lindquist buried in rubble, impaled by a piece of metal. Bones from his shoulder crumbled as he was placed on a door used as a makeshift stretcher. He was later delivered to the Hospital. His injuries were so severe his body had become swollen and unrecognizable. He fell into a coma. Debris in open sores caused a fungal infection, one that killed five other Joplin tornado victims. Lindquist overcame the fungus but remained at the first hospital for about a month. Still in a coma, he was flown to another hospital for a little over a month before being sent to a rehab center where he awakened.

His recovery amazed doctors. His right arm remains in a sling, but he has use of the hand. The eye that was temporarily blinded has full sight. He moves slowly and has short-term memory loss, but speaks well.

Critics claim the insurance company's decision is unfathomable because if Lindquist hadn't been at work, they assert he wouldn't have been hurt. Some observers feel he could have jumped in his van and fled as the tornado approached.

In our view, this is an example of deflecting fault when anything bad happens. First, in blaming doctors/hospitals and care-givers, they can sometimes be demonized regardless of the losses they take in such situations. Some folks feel there was an area-wide emergency so the doctors and hospitals should all work for free and provide all durable medical equipment, prescriptions, diagnostics and other costs at no charge. Americans want unlimited, on-demand medical care for all of our problems the moment their arise. No one sees hospitals and doctors have their own bills to pay and they can go broke.

Second, there are some folks who feel problems from such unforeseen and cataclysmic events are "the employer's fault." In this model, they double-deflect the blame from the employer to the supposedly “wealthy” WC insurance carrier and assert the carrier is to somehow “blame” for simply following the state’s rules and their underwriting guidelines. The fact workers’ comp insurance requires an event to both arise out of and occur in the course of employment is forgotten. In our view, tornados aren’t risks that arise out of employment—they are risks common to the public whether we are working or not. If insurance carriers and self-insured employers have to pay for risks common to the public, the cost is wildly higher, as can be seen in this instance.

Some folks like to blame the "government" and say taxes should always be set aside and be immediately available to pay for storm injuries and damages. Sometimes government can help and sometimes government has to pay their own bills and there isn’t much left around to cover the unexpected events that clearly arise.

There are probably thousands of survivors of the Joplin tornado who weren't working during this terrible storm and have similar stories. All of them are heart-wrenching and compelling. The question is who has to pay for the societal costs of storms. In our view, Acts of God are risks of everyday life that we all have to face and prepare for. Taxes should be set aside for such things also but we have to remember taxes aren't free either.

As this is going to press, we learned

Accident Fund Insurance Company of America announced it was changing course. "Upon further review of the case, and receiving additional information on the facts involved in this situation, Accident Fund believes the appropriate decision is to honor Mr. Mark Lindquist's claim for worker's compensation benefits," Mike Britt, president of the Lansing, Mich.-based insurance company, said. "We are committed to working with Mr. Lindquist to ensure he receives all the benefits to which he is entitled and helping him to recover from his injuries."

All we can say is God bless them for doing so and helping this hero in his time of need. Kudos from KC&A to Mr. Britt and all of his staff who are also unquestionably heroes. We appreciate your thoughts and comments. Please feel free to post them on our award-winning blog.