2-23-15; Gov. Rauner's Grand-Slam-Homer on New Chairperson and Others; Arik Hetue on New IL WC Bills; Matt Ignoffo on WI WC Changes and more
/Synopsis: Governor Rauner Hits Grand-Slam on Selecting New IWCC Chairperson Joann Fratianni-Atsaves, J.D. and Other Solid Commissioners.
Editor’s comment: We learned over the weekend newly elected Governor Bruce Rauner selected Joann Fratianni-Atsaves as the new chairperson to lead the IWCC. The defense team at KCB&A salutes this choice. Joann has 34 years of experience in workers' compensation law, having served as a Commissioner (Public Member) for three years and as an arbitrator with the Illinois Workers’ Compensation Commission since 1993. She is a Fellow of the Illinois Bar Foundation, assembly member of the Illinois State Bar Association and a member of the Lake County Bar Association Board of Directors. She received her J.D. from Northern Illinois University and a B.A. from the University of Illinois.
In our view, Joann is a veteran, professional and intelligent administrator. We are certain she will move Illinois workers’ compensation in the right direction to insure injured workers receive timely and reasonable compensation. We also feel Joann is sensitive to the needs of the IL business community and will do whatever she can to end the WC claim abuses and odd legal rulings which currently irritate corporate and government leaders.
It is our hope new Chair Fratianni-Atsaves can take a hard look at the IWCC budget and see if the IWCC can make some reasonable budgets cuts, in an environment where more efficient use of government resources can save business taxpayers money. Please note 100% of the cost of the IWCC is paid by Illinois business. We also point out new IL WC claim filings are about 20% lower than they were a decade ago while IL WC administration costs have gone up at least 20% or more!
We also hope Joann will meet with CMS or TriStar or whoever might be running the WC defense program for the State of IL this week and try to make better sense of millions of dollars of our tax money we feel continues to be squandered on specious WC claims by IL State workers. Please note past IWCC chairs never took this step and we feel that was part of the global mismanagement of the past.
The defense team at KCB&A offers her our assistance to help improve IL WC in any and every way.
David Gore Reappointed as Commissioner on Panel C.
Governor Bruce Rauner reappointed Commissioner David Gore, J.D. to another term. This will be Gore's fourth term as a commissioner and he has served as a Commissioner since 2006. David Gore represents the interests of Illinois workers in his role as a labor commissioner on the three person panel.
Gore has more than 20 years of experience as a Petitioner’s attorney and handled claims against KCB&A clients. When he was a practicing attorney, we considered him a quiet and well-prepared advocate for his clients. He also worked as an Assistant Illinois Attorney General and a staff attorney with the Illinois Legislative Reference Bureau; Dave was a staff representative for the United Steel Workers of America, AFL-CIO-CLC. Commissioner Gore holds a bachelor's degree in marketing, a law degree and an M.B.A. from the University of Illinois at Urbana-Champaign.
Commissioner Kevin Lamborn Reappointed to Panel A.
Governor Bruce Rauner reappointed sitting Commissioner Kevin Lamborn, J.D. to his third term. Commissioner Lamborn has served on the IWCC since 2007 representing the interests of Illinois Business on the panel. Commissioner Lamborn came from the Rosemont area and practiced municipal law. We don’t feel he had a great deal of prior WC experience when appointed but we are certain he learned the ropes rapidly and does a very solid job.
Lamborn began his career as an Assistant State's Attorney in Cook County and spent his final two years in the Special Prosecutions Bureau, where he investigated and tried cases involving public officials accused of misconduct. Lamborn received his law degree from The John Marshall Law School in Chicago.
Joshua Luskin moves up to a Commission post on Panel B.
Governor Rauner selected former Arbitrator Joshua Luskin, J.D. to serve as a “public” member commissioner on the IWCC. Luskin was a WC defense lawyer and has more than 15 years of law experience. New Commissioner Luskin served our country as a Lieutenant in the U.S. Navy Judge Advocate General's Corps, where he handled military prosecution and offered legal service to members of the military. Luskin earned his law degree from the University of Michigan.
Our sources indicate Commissioner Luskin will replace former Commissioner Daniel Donohoo. We do feel this new appointment will make the composition of Panel B more conservative.
Steve Mathis reappointed as Public Member Commissioner for Panel C.
On February 17, 2015, the Full Senate confirmed Stephen Mathis, J.D. to remain in his post as Commissioner. Commissioner Mathis of Sangamon County served for 10 years as Legal Counsel and Staff Analyst for the Illinois Senate Staff, and had been an arbitrator with the Illinois Workers’ Compensation Commission since 1996. He holds a J.D. from John Marshall Law School. We consider him a hard-working and reasonable hearing officer.
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Synopsis: And It Begins. The First Package of Sweeping IL WC Reform Bills Hits the Web. Analysis by Arik D. Hetue, J.D.
Editor’s comment: What does change look like in the new government under Gov. Rauner as compared with the last session? Two weeks ago, we wrote a piece on the prior session’s bills for WC reform. We have now seen the first run at IL WC reform in the current 99th General Assembly. Let’s take a look at the new WC reform bills that have been introduced and see how they compare to the last session’s efforts. It isn’t hard to see almost everything being done in the legislature is to reverse/rehab challenging judicial concepts.
As you may recall from our article two weeks ago, the 98th General Assembly had many WC reform bills die on the vine with the primary focus of the bills looking at “primary causation”; capping out total lifetime PPD at 500 weeks; credits for shoulder injuries, reigning in “traveling employee” concerns, and modifying TTD entitlement in light of Interstate Scaffolding. There were other issues that cropped up, but these were the issues addressed in multiple bills. As of last week, we have now seen a major legislative package, filed by Sen. Kyle McCarter, R-Decatur and Rep. Dwight Kay, R-Edwardsville, which hit on many of the above issues.
As indicated by multiple sources, Governor Rauner has pinpointed “primary causation” as the target of any reform package. This is understandable, and as we can see, business has been pushing for this type of change since well before the 2011 WC changes. When looking at Senate Bill 770 and House Bill 2421, we see causation and coverage as the main focus of these bills. The legislation would define "accident" as an "occurrence arising out of the employment, resulting from a risk incident to the employment, and in the course of employment at a time and place and under circumstances reasonably required by the employment” - this is not a significant change, in our honest opinion, from the current interpretation of the law.
We also point out IL Senate Bill 770 has an additional provision, mirrored in House Bill 2418, which significantly restricts the “traveling employee” doctrine after its recent judicial expansion, and essentially requires the traveling employee to be doing something work related (aka – in the course and scope of work) at the time of the accident in order for it to be compensable. This effectively would require a travelling employee to prove an injury arising out of and in the course of work in order to get benefits. This legislation is designed to rein in the expansive “traveling employee” concept which is felt to provide “global coverage” for Illinois workers who might be on a trip but performing purely personal activities when injured. We also just saw a new IL WC Appellate Court “traveling employee” ruling with a much more conservative approach http://www.illinoiscourts.gov/Opinions/WorkersComp/2015/2130874WC.pdf. We will analyze that claim in next week’s KCB&A Update. As we have said in the past, you don’t necessarily need lots of legislation if we can have hearing officers make better sense of the current rules/law.
Much more interesting is the next legislative change they propose to make - requiring workers to show that an "accidental compensable injury" was a major contributing cause of the injury – meaning the event was more than 50% responsible for the injury compared to all other possible causes – if this kind of language is put into the IL WC Act, it may significantly hamper two types of claims – “repetitive trauma” claims and aggravations of pre-existing conditions. It is our hope “repetitive working” claims may end via such legislation – these are claims where there is no accident, trauma or safety failure; the employee merely indicates they were at work when they got sore.
We caution though – this may not be the end of all the changes the defense industry might need to make. Under current law, we are often working with claims where one side believes there was a “temporary aggravation of a pre-existing condition” - something which neither aggravates or accelerates the underlying condition. Primary causation will effectively lower the bar to prove such defenses, but it may not eliminate such claims, and may in fact lead to more litigation over them in the short run. In the long run it could lead to more disputed settlements in these types of claims, which should drive costs down overall.
The two bills also provide injuries would be deemed to include the aggravation of a preexisting condition only for as long as the aggravation continues to be the contributing cause of the disability. This is essentially a codification of current interpretation of the law – see the note on temporary aggravations above.
The other bills included in the package are summarized below:
SB 769 and HB 2419 - this bill handles AWW calculation issues in regard to limited or part time work and seasonal workers, in addition to concurrent work – and it essentially does away with the confusing theory of wages being calculated under “parts of a week” - we can clarify if you are interested, its a complex issue that has arisen due to clever Petitioner’s attorneys working within the bounds of unclear legislation. This legislation is designed to clarify issues raised in Sylvester v. Industrial Comm’n.
SB 771 and HB 2420 – this bill does away with the unrestricted entitlement to “TTD until MMI” and allows cessation of TTD/TPD if a worker is terminated for cause – there is a due process right for the employee to challenge this on an expedited basis. It is clear this legislation is designed to “overturn” or reverse the irritating Interstate Scaffolding ruling. We maintain the IL Supreme Court ruling encourages inappropriate actions by injured workers and/or crimes in the case of Matuszczak v. Wal-Mart.
SB 772 and HB 2422 - this bill limits the maximum cumulative compensation for workers receiving partial disability to 500 weeks, and reverts shoulders/hips to be awarded as a part of an arm/leg. This is expressly designed to reverse the Will County Forest Preserve District ruling.
We are excited to see this package of bills introduced early in the session – WC reform is a pillar of the Governor’s campaign, and these efforts mirror the bills from the last session – these are well-thought-out reforms and reasonable requests from the business community. We hope the continued negotiations lead to a set of reasonable reforms going forward. Please note, this is extremely early on in the process. We will continue to keep you posted on the reform process as it continues.
The prior legislative analysis two weeks ago and this article was researched and written by Arik D. Hetue, J. D. who can be reached at ahetue@keefe-law.com. Feel free to email him with any comments or concerns, or post them to our award winning blog!
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Synopsis: Possible Changes May Be Coming to Wisconsin Workers’ Compensation through Gov. Walker’s New Budget Bill released on February 3, 2015. Analysis by Matt Ignoffo, J.D., M.S.C.C.
Editor’s comment: If the proposed bill goes through as is, on January 1, 2016 the entire WI Division of Workers’ Compensation would be eliminated from the Department of Workforce Development and future functions split between different agencies. The Department of Administration and Division of Hearing and Appeals would get the Administrative Law Judges and adjudication functions would go to the Department of Administration. The Office of the Commissioner of Insurance would obtain the DWD WC insurance section and claims staff.
The proposed changes to the WI WC Act come in the Budget Bill even though the administration of Wisconsin’s worker’s compensation system is not paid out of the state’s budget. As noted by Dee J. Hall in recent Wisconsin State Journal articles, the cost of administering Wisconsin’s program is paid for by workers’ compensation insurers and self-insured employers who pay a yearly fee proportional to what they paid out in workers’ compensation benefits in the previous year. Taxpayers do not pay for the system, and any reorganization would not add or subtract from the 2015-17 WI state budget’s bottom line.
Certain notable changes would be to allow employers and claimants to reach settlement agreements on their own versus the current structure where such agreements must be approved by an administrative law judge. Also, the ALJs would no longer be available to address questions from the general public and instead focus only on rendering decisions in contested cases. The bill also plans on removing the requirement for a stenographic reporter but will allow for hearings to be recorded and copies of the recordings available to be ordered.
According to a discussion at a recent seminar of the Wisconsin Association of Worker’s Compensation Attorneys, the WC Division not only did not request this legislation, but were not invited to participate or provide thoughts on the portion of the Budget Bill changing the WC Act. If you would like a copy of the handout presented at this seminar please contact me directly at mignoffo@keefe-law.com.
On February 3, 2015, DWD Secretary Newson sent correspondence to WC Division employees noting they feel the claimed advantages of moving the department functions as being: improved efficiency, moving in line with other states such as, Texas, Florida, Illinois (?), and Michigan, and increased consistency. From an employer perspective it certainly seems strange that Wisconsin would want to move more in line with Illinois. We consider it wholly unclear how these changes would mirror IL WC in any way.
Of particular interest is the fact these proposed WC changes to the WI WC Act come as part of a budget bill and not an independent bill. It is suspected this detail may be an obstacle to the bill actually going through as in the same budget bill, Gov. Walker plans to cut the budget of the University of Wisconsin system. This portion of the budget bill has apparently sparked heated opposition from legislators on both sides.
In addition, this move by Gov. Walker appears to remove the discussion and input on WC Act changes from the Worker’s Compensation Advisory Council and bypass it in having the planned changes a part of the overall budget bill. The Worker’s Compensation Advisory Council was set up to advise the DWD and the Legislature on changes to the system and has traditionally drafted bills agreed to by both management and labor representatives on the council.
Whether or not the proposed changes by Gov. Walker get implemented through the budget bill or an alternative route in the future there is no question changes are being discussed to Wisconsin’s WC system and such changes are getting press/media attention and comment by experts on both the claimant and defense sides. Neither side appears to believe changes need to be made. With Illinois having a new Governor he may want to keep up with changes being proposed by its neighbor to the north. We will keep you posted as further information develops.
This article was written by our Wisconsin-licensed and practicing Defense Team Member Matthew Ignoffo, J.D., M.S.C.C. Please feel free to contact Matt at mignoffo@keefe-law.com.
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NEXT WEEK - CONSTRUCTION EXPO & SAFETY CONFERENCE 2015
Registration Now Open!
Construction Safety Council and ASA Chicago proudly present the Construction Expo & Safety Conference 2015
The Construction Safety Council and ASA Chicago, an association representing subcontractors of all construction trades, announces its annual Construction Expo & Safety Conference 2015. This year, the Safety Conference will be held on Monday, March 2, 2015 from 7:00AM to 12:00PM (noon), and Tuesday March 3, 2015 from 7:00am to 4:30pm at the Drury Lane Conference Center in Oakbrook Terrace. The Construction Expo will take place on Tuesday, March 3, 2015 from 9:00AM to 4:00PM.
Shawn R. Biery and Gene Keefe will present Workers’ Comp 101 at 9am on Tuesday, March 3.
Please visit their home page at www.buildsafe.org for more information or to register.