9-4-12; Our Appellate Court Outlines the Right Way to Handle the “Full Moon.”

We don’t think you need to add this your personnel manual but that is clearly your call. In Selch v. Columbia Management, 2012 IL App (1st) 111434 (August 29, 2012), the Illinois Appellate Court affirmed the trial court’s dismissal of the claim over retaliatory discharge.

Plaintiff investment analyst was given a formal warning after "mooning" two superiors, but was later terminated upon the opinion of their chief executive officer who felt such behavior was egregious and harmful to the company and leadership. The trial court found Plaintiff violated the employee handbook rule and regulations by behaving in disruptive, unruly, and abusive manner, and thus violated his duties as employee.

The trial court found and the Appellate Court affirmed Plaintiff was justly terminated for cause. We assume claimant may want to avoid “moonlighting” in the future.

9-4-12; Fibromyalgia Raises Its Ugly and Ill-Defined Head in the Social Security Disability Setting--Please Assume This Will Be Coming Back to the Work Comp Arena Soon

Fibromyalgia is a disorder characterized by widespread musculoskeletal pain, fatigue, and tenderness in localized areas. As anyone in the defense industry will note, the problem with the definition/diagnosis is we all have varying levels of muscle pain, fatigue and tenderness; such conditions are a fact of life. The question is how one can “tell” or prove it is disabling when the only true way to measure it is in the mind of the person claiming to suffer from it.

We were saddened to hear the Social Security Administration issued a ruling paving the way for even more folks to get benefits for the hard-to-define-and-impossible-to-confirm diagnosis of fibromyalgia. In July 2012, our Social Security Administration published a ruling giving guidance to disability claims examiners and their administrative law judges on how to assess fibromyalgia cases. This ruling will almost certainly cause a spike in the number of fibromyalgia claimants who will bring disability claims for SSDI benefits. Please also note in the last six years, the number of claimants getting SSDI have gone up about one million from 5.5M to 6.5M. This growth is now choking taxpayers on the current and projected cost of this national benefit program.

How Does our Social Security Administration Now View Fibromyalgia?

When an SSA disability claims examiner received a case in which the only allegation or reason for disability was fibromyalgia, the outlook for an initial approval was poor. Disability examiners generally gave little weight to a claim of fibromyalgia unless another condition was involved, such as arthritis or degenerative disc disease. For example, if a claimant made a disability claim and the chief impairments were fibromyalgia and rheumatoid arthritis, or fibromyalgia and degenerative disc disease, the fibromyalgia allegation automatically carried more weight. This may be because fibromyalgia was seen as a logical and plausible extension to what are generally thought of as "more proven" impairments. As a result, unless a fibromyalgia diagnosis was made in conjunction with another diagnosis, especially one of a musculoskeletal nature, a disability claimant with just fibromyalgia had little chance of getting approved after the initial disability application.

Part of the problem has to do with the nature of fibromyalgia itself. Fibromyalgia may be considered an “impairment” whose symptoms are largely subjective. Because its symptoms and speculated causes vary from one person to the next, and because the medical profession continues to struggle with the diagnosis, SSA disability examiners were never sure how to classify such cases.

In many cases, when a primary care physician diagnoses fibromyalgia without a corroborative diagnosis by a specialist, to a disability examiner many feel the doctor gave the patient a label for lack of a better way to diagnose a patient's pain. Many times when treating doctors were unable to find or confirm any independent or verifiable cause for pain their patients claimed, they diagnosed "fibromyalgia" as the cause. As a result, a fibromyalgia diagnosis made by an orthopedist or rheumatologist is felt to be more credible to a disability examiner and strengthens a Social Security disability claim, in contrast to situations where the fibromyalgia diagnosis has been made by an internist or family doctor.

To even be considered for SSDI benefits, a claimant must have an impairment that has been established by medical evidence, including objective symptoms and lab tests – the asserted impairment cannot be established on the basis of symptoms alone. This is called having a "medically determinable impairment." Proving this was difficult with fibromyalgia since evidence of the illness was based on subjective reports of pain, fatigue, and tenderness.

New SSR ruling

In July 2012, the Social Security Administration issued a ruling explaining fibromyalgia will be found as a medically determinable impairment or MDI. The ruling directs SSA claims examiners and judges to rely on criteria issued by the American College of Rheumatology to determine whether an applicant has fibromyalgia, and thus has an MDI. There are two alternatives in this criteria that can be used in determining whether you have fibromyalgia; either one will suffice.

·         Evidence of chronic widespread pain, including pain in the back, neck, or chest

·         Evidence that shows your doctor ruled out other diseases that could cause the same symptoms (the symptoms of fibromyalgia often overlap with those of lupus, hypothyroidism, and multiple sclerosis), such as lab tests and examination notes, and

·         One of the following:

o   Tender points sites in at least 11 of 18 tender point areas of the body, with tender points occurring on both sides of the body and both above and below the waist. A list of the tender points can be viewed in the SSA's recent ruling on fibromyalgia.

o   Repeated manifestations of six or more fibromyalgia symptoms, signs, or conditions that often occur with fibromyalgia, particularly fatigue, non-restorative sleep, cognitive or memory problems (“fibro fog”), depression, anxiety, or irritable bowel syndrome (IBS).

If the SSA determines a claimant has fibromyalgia, according to the above criteria, the SSA evaluation will then start. The agency will investigate whether claimant is doing any substantial work, whether fibromyalgia is severe and has more than a minimal effect on the ability to work and whether the claimed impairment will last at least 12 months. If claimant passes these tests, the SSA will consider whether fibromyalgia alone or in conjunction with other impairments can be considered equivalent to any of the disabilities listed in its Blue Book of impairments (such as rheumatoid arthritis).

As fast as we saw the news of this SSA, we just saw a decision from the Federal District Court in Farrell v. Astrue, No. 11-3589 (August 28, 2012) where the federal judge reversed and remanded a denial of benefits finding the record failed to support the ALJ's denial of claimant's application for Social Security Disability benefits based on her anxiety, depression, fibromyalgia and carpel tunnel syndrome conditions.

Claimant presented new evidence supporting her claim she had a legitimate fibromyalgia condition, and Social Security Administration Appeals Council erred in ignoring the evidence when rejecting claimant's appeal. Moreover, a new hearing was required since the ALJ failed to analyze medical evidence from treating doctor that supported claimant's disability claim and failed to consider evidence indicating claimant could function only inconsistently in normal work environment. We expect thousands of such claims to follow across our country.

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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.