9-4-12; Illinois WC Arbitrators Shouldn’t Buy Green Bananas!!—IL WC System spits out two more long-time Arbitrators without any reason other than Politics, Politics and More Politics

As things at the Illinois Workers’ Compensation Commission remain unpredictable and quirky, Commission-Watchers were mildly stunned to see Governor Quinn failed to re-appoint Arbitrators Jacqueline Kinnaman and Peter Akemann. Both of these former Arbitrators were honest, decent, professional-to-the-max and have encyclopedic knowledge of the Illinois Workers’ Compensation Act and Rules. It is hard to imagine two better hearing officers/administrators in our state but they are now both gone but not forgotten. We have now fired 11 Arbitrators in the last year or so for a variety of imagined sins.

The problem with the “new” WC Commission under this Governor was his determination to strip out civil service protection of the Arbitrators who are the initial hearing officers in our state. For about three decades, we complained Arbitrators were selected in a mildly faked civil service process—they were “tested” but it seemed if you were supposed to be selected because of your political pull, you got the scores you needed. We took the Illinois civil service test for WC Arbitrator and considered it puerile; anyone with a tiny bit of WC knowledge could readily pass it. We also asked for test score results to be posted and the state administrators always came up with some smoke-and-mirrors response why Arbitrator test results couldn’t be posted. However, once an Arbitrator got a job, it was generally difficult to fire them for purely political reasons, as they were protected to some extent by the civil service process.

When things got hot and politically embarrassing at the IWCC in 2010 and last year, the Illinois State Legislature joined with the Governor in stripping out the civil service protection of Arbitrators. What many of our sources in the Arbitration ranks pointed out was this made the jobs giant political plums that could be wielded at the discretion of the “Big Three”—Governor Quinn, Senate President Cullerton and House Speaker Mike Madigan. At present, that appears to be precisely what may be happening.

AFSCME Ties Probably Got Her the Job and Probably Got Her Fired from the Job

Former Arbitrator Jacqueline Kinnaman has been with the IL WC Commission for several decades. She is married to the executive director of one of Illinois’ largest government employee unions, AFSCME. We assume that is the source of the political clout that got her the two different Commission positions she held until last week. She initially was appointed as a Commissioner in one of those “who is this” sort of appointments, as she wasn’t a WC attorney or system participant before starting work in the higher level position. As soon as she developed a track record as a Commissioner, most observers felt she was very, very liberal and pro-labor in her view of the facts of any claim. There is also no question she rapidly learned and adhered closely to the law and rules.

From what we can tell, the political ties that got her the position—her husband’s high-level union position may have caused her to be fired. At present, Governor Quinn and AFSCME are at odds and in litigation over the union’s claim to a $60M raise. AFSCME’s website trumpets their battle with the Governor right now:

Pat Quinn had a tough Governor's Day at the Illinois State Fair [in mid-August]. More than 3,000 union members – the majority of whom were from AFSCME – showed up to speak out against his cuts to public services and his treatment of public service workers. They birddogged the governor at a pre-fair event, handed out flyers at all of the fair's entrances and nearly drowned out Quinn's speech at a Democratic party rally…Quinn has opposed working families since his 2010 election to the Prairie State's top office. Quinn unilaterally refused to pay negotiated wage increases to state workers since July 2011. AFSCME has fought with Quinn in court for more than a year to get the governor to honor the state's contract with its workers. The governor leads the charge to slash pensions for state workers and current retirees who did not expect their retirement security to be at the whim of state politicians. Quinn is also pushing to lay off 4,000 state employees who work in human services, corrections and child protection –vital public services performed by AFSCME members across the state.

You have to love union rhetoric and understand this sort of colloquy epitomizes many things wrong with government labor unions in Illinois. In light of the giant budget deficit in this state, we consider such sentiments to be farcical and misguided. We find the claim our Governor “opposed working families” to be particularly kooky—any effort by our Governor to hold the line on spending money government doesn’t have isn’t a shot at “working families.”

Please note Illinois state government is awash in red ink to the tune of tens of billions of dollars. We applaud the Governor’s stance against having to borrow even more money to fund pay raises and government jobs we can’t afford. We are very confident no one wants to raise record-high state taxes, tolls and fees even more than they have already been raised. While we are chagrined to see former Arbitrator Kinnaman “un-reappointed” in this ongoing management-labor battle, it is hard to take the “politics out of politics.”

Former Arbitrator Akemann Fired for Not Having a Defined Protector/Political Patron?

What is more disconcerting is the situation with former Arbitrator Peter Akemann. Like former Arbitrator Kinnaman, Peter Akemann was an Illinois Arbitrator for several decades. He is professional, fair and also has an comprehensive knowledge of our IL WC Act and Rules. He worked hard to get claims settled and, failing settlement, he would provide a fair and impartial hearing and assessment of every claim. To our understanding, he always got solid marks in his annual reviews from the Chairman and other Commission members. We don’t know who his political clout might have been to get the position but once in the position, he was about as “non-political” as anyone could be. And now, without any defined reason, he is out the door. His situation has probably caused all the rest of the sitting Arbitrators to put in calls, emails and “tweets” to their political patrons to be sure they are avoiding cigarettes and bacon.

Don’t Cry for Me Illinois-A!! They Will Both Receive “Pensions” or Eventually Go Back on Our Payroll Without Having to Listen to Petitioners Whine

As a consolation for both of them, we are fairly confident they should be vested and therefore entitled to the so-called “pension” program that thousands of former state government employees get for the rest of their lives. The reason we put the term “pension” in quotes is because Illinois state employees don’t actually contribute anything near the amount of money needed to actually fund their “pensions.” And sometimes, even when they contribute money to their so-called “pensions” state administrators, on both sides of the political matrix, spend the contributions on other things. You can’t blame that failure on rank and file workers but from the perspective of the taxpayers, the whole “pension” system for state workers has to be dramatically reformed or completely discarded in favor of a 401K program.

When you read or hear the words “unfunded state pension liability” in the media, please don’t be confused by that nebulous accounting term; what those words mean is Illinois state employees go through/spend their career-long “pension” contributions in a year or so after entering the “pension” system and then effectively go back on our payroll and are again living off the taxpayers without having to work at all. There are tens of thousands of such former state workers getting paid by all of us in this fashion. As we are sure both former Arbitrators are healthy and happy folks, if they live long enough, like most workers in the state “pension” program, they may actually receive more money in retirement than they made on the real payroll.

This link outlines the Arbitrators who will remain in your WC workforce along with their terms: http://appointments.illinois.gov/appointmentsDetail.cfm?id=412&s=0&o=1#memberNames

KCB&A joins with the larger IL workers’ compensation community in thanking former Arbitrators Kinnaman and Akemann for their years of work in this system. We appreciate your thoughts and comments.

8-27-12; When exactly is enough, enough?

On August 7, 2012 the Belleville-News Democrat reported the State of Illinois had filed “suit” in Circuit Court to challenge the “settlement” obtained by former Arbitrator Jennifer Teague which resulted from a repetitive trauma claim she filed in 2010. The “settlement” was actually an award which was handed down by an outside arbitrator specially appointed by the State of Illinois to hear and decide cases involving IWCC employees, including arbitrators in order to avoid the appearance of impropriety.

The BND pointed out the outside arbitrator was appointed as one of the results of a series of articles which focused on the Menard Correctional Center workers’ compensation abuses which did not involve Arbitrator Teague. Those stories also lead to a series of stories regarding the tragic Matt Mitchell case in which the former Arbitrator unsuccessfully tried to steer the case out from under the watchful eye of the press. That mistake lead to the uncovering of a series of emails in which the former Arbitrator was advising plaintiff’s attorneys how to proceed with cases not in front of her.

This series of missteps lead to her ultimate dismissal and a complaint filed before the ARDC which is yet to be decided. Currently former Arbitrator Teague is not practicing law and it is likely her privileges will be suspended for a period of time. In an effort to avoid a certain level of scrutiny she has even resumed the use of her maiden name.

Which leads the commentator back to the original question: When exactly enough, enough? Former Arbitrator Teague’s mistakes have likely cost her law license and her job. Even in the event her law license is re-instated she will have to answer to the loss of her job and will likely have a difficult time re-building a practice. So now the State is going to make a further example of her by taking their new amendment to the Workers’ Compensation Act out for a test-drive and try to vacate the award which was written by their special arbitrator.

And how are they going to justify this exactly? And because of perceived abuses or lack of accountability, the State appointed outside arbitrators to hear these cases; BUT THEN THEIR OUTSIDE ARBITRATOR FOUND THE CASE TO BE COMPENSABLE! So how do they justify vacating that award? It’s difficult to find case law that supports turning over the award simply because the State doesn’t like the claimant. And how much more tax money exactly, will the State waste with this crusade? By the time this case wends itself through the Circuit Court and Appellate Courts, very likely more than the award itself.

We are not privy to the decision of the Arbitrator or the evidence presented in former Arbitrator Teague’s case, but it would seem from the article the “independent” Arbitrator was presented with convincing enough evidence in the way of medical opinions to justify the award. Rather than waste crucial attorney hours, which are paid by the State taxpayers, chasing this red-herring, maybe it’s time for the AG’s office to actually work at defending cases like this one. As noted, we don’t have the decision before us, but In the current climate it is clear that had they presented any reasonable evidence rebutting her claim, the claim would have been denied.

It’s time to let this sorry chapter in the IWCC history be put to rest, let Jennifer Teague get on with her life and for the AG’s office to focus on the real task at hand, cleaning up how they handle State of IL workers’ compensation claims. This article was researched and written by James F. Egan, J.D., please send your thoughts to Jim at jegan@keefe-law.com.

8-27-12; Hold Off on Appeal Until All Issues Resolved—Another Important WC Practice Rule from Our IL Appellate Court, WC Division

This is a straight-forward holding on a relatively simple issue: Orders remanding cases to an Arbitrator for further factual findings relative to vocational rehabilitation efforts and awards are not final orders, and are not appealable. Period. Stop asking; because the Court clearly is growing tired of repeating itself. So why do our lower courts and IL WC Commission so routinely get it wrong?

In Supreme Catering v The Illinois Workers’ Compensation Commission, No. 1-11-1220WC (August 20, 2012) the Illinois Appellate Court, First District, Workers’ Compensation Commission Division addressed the issue of remand for the purpose of vocational rehabilitation efforts, effectively finding every possible remand for the purpose of addressing vocational rehabilitation issues is an interlocutory order – that is, it is not final and therefore not appealable. There appears no exception.

The facts of the underlying Supreme Catering workers compensation injury claim are not germane to the Court’s holding, and were not addressed in detail by the Appellate Court in its holding, as they were irrelevant to the issue decided.

Petitioner sustained injuries he alleged were work related; Respondent defended on the sole theory Petitioner was not Respondent’s employee. The Arbitrator ruled in favor of Respondent on the issue of employment, and upon appeal the Commission reversed the denial, found an employment relationship, and remanded the case for further factual determinations including Petitioner’s need for vocational rehabilitation and maintenance. Supreme appealed to the circuit court and then the Appellate Court, First District, who issued this decision. On its own initiative the First District Appellate Court addressed the issue of jurisdiction, noting circuit and appellate courts possessed jurisdiction over only those Commission decisions that are final and appealable. Because the Commission’s decision contained an order to remand the case for vocational rehabilitation findings, the Court found the decision was not final.

The Court noted it has long been held that remand for a determination of vocational benefits is interlocutory and not appealable. Citing International Paper Co. v Industrial Comm’n the question is “whether the administrative involvement in the case has been terminated the Commission has ordered further administrative proceedings,” the Court determined a remand order for the purpose of vocational rehabilitation determinations cannot be a final order. In every case analyzed on the issue of remand orders for vocational rehabilitation, the Court found the order interlocutory and not appealable.

Starting with International Paper, where the Arbitrator found a state of permanency and awarded PPD benefits, when appealed to the Commission and reversed with a remand order on the issue of vocational rehabilitation the Court found the Commission’s decision was not final because the order for additional findings on the issue of vocational rehabilitation necessitated further administrative involvement. The same was true for expedited proceedings under Section 19(b): When the Commission remanded the case to the Arbitrator for a determination of a vocational plan the decision was interlocutory and not appealable. Hunter Corp v Industrial Comm’n 86 Ill. 2d 489 (1981) Even a Section 19(b) trial where the Arbitrator’s order for a vocational rehabilitation plan appeared final and was appealed through the Commission and circuit court, the Third District Appellate Court determined that decision was not final, because the arbitrator would necessarily have to determine a specific vocational plan, which would necessitate remand for those findings and render the matter interlocutory. American Insulated Structured v Industrial Comm’n 265 Ill. App. 3d 171 (1994) The Court assessed over a half dozen cases concerning Section 19(b) proceedings, Section 19(b)1 proceedings and nature-and-extent trials dealing with the specific narrow issue of the interlocutory nature of remand orders for determinations concerning vocational rehabilitation, making clear under no circumstance is a remand order for findings concerning vocational rehabilitation final and appealable:

An analysis of the foregoing cases reveals that a decision of the Commission which remands the case to the arbitrator for further proceedings on the issue of vocational rehabilitation is not a final order. …it does not matter whether the remand is for the purpose of providing the specifics of a generalized plan ordered by the Commission or for a determination of whether vocational rehabilitation should be ordered. In either case, further proceedings are required before an administrative decision is final.

In any circumstance wherein a remand order necessitates findings concerning vocational rehabilitation, the order is not final and cannot be appealed. The Court therefore vacated the Circuit Court decision and each decision that followed as rendered by a court without jurisdiction, and remanded the matter to the Arbitrator for further proceedings as initially ordered.

So why the indignation in the Editor’s Comments above? Well, your editors have seen this issue from both sides of the argument, having been chastised by this same Court for appealing a non-final order only to turn around and be penalized by the Commission for non-payment of another non-final order remanding a claim for additional factual findings on vocational rehab issues. It stings when Respondents have to choose between being penalized by the Commission for being right and possibly being chastised by the Appellate Court for appealing a non-final order to avoid such penalties. It may be these matters are so often appealed not because of less-experienced defense attorneys who don’t know the law but because protecting against unwarranted penalties outweighs the need for defense counsel to save face before the industry.

This article was produced in large part – and the angry bits exclusively – by Joseph R. Needham, J.D. Please send all angry rants and responses to jneedham@keefe-law.com.