4-13-15; Gov. Rauner Takes Aim at the Supreme Court--Our Thoughts; MSDS Sheets Become SDS Sheets on June 1, 2015, Be Prepared; John Karis, JD Reports on WCLA AMA Rating Presentation and much more
/Synopsis: Illinois’ Judiciary Isn’t Corrupt But There May Be Work To Do In Response To Gov. Rauner’s Challenging Comments—Here Are Our Thoughts.
Editor’s comment: We read comments from newly elected Governor Bruce Rauner complaining Illinois’ judiciary is
- “Corrupt” because the lawyers who appear before them donate, sometimes heavily to their election campaigns and
- A group of activists who want to be legislators.
We consider this debate vitally important for our readers and all Illinois taxpayers. Here are three main concerns in response to the Governor’s thoughts.
Do Grossly Unfunded Judicial Pensions have the Appearance of Being Corrupt? We Ask Our Highest Court to Hold Hearings on Judicial Compensation/Pensions to Open This Up to the Public and Fairly Address This State-Busting Issue
It is our view Illinois judges/justices are the highest paid government officials in our state and perhaps the nation—if they work only nine years to become vested, they can effectively “earn” about $600,000 of your money every year they wear the robes, if they play the “pension” system correctly. We assure you a nine-year IL judge can eventually make $1M per year if they live long enough. If you think we are kidding, please keep reading.
How does that math work? Well, the actual annual salary for a full Illinois Circuit Court judge is now $203,000 each year which is higher than the Governor and any other Illinois politician. Yes, a traffic court judge who handles speeding tickets makes more than our Governor. How does their effective income reach $600K a year? Well, our judges only have to work nine short years to become fully vested in their “pensions” which then immediately pay a retired judge 85% of their highest pay with guaranteed 3% compounded annual increases for life. Their pension contributions for nine years don’t match one year of salary but when they retire, they are guaranteed to shortly be paid more than their highest salary with annual compounded raises for 10-50 more years. Trust us, being a lawyer in Illinois is a difficult and demanding job if you want to earn $200K to match what a Circuit Court judge makes. In contrast, being a Circuit Court judge for nine years is easier and lots less stressful. Many lawyers are taking notice of this and are spending lots more money on judicial campaigns and political consultants to try to ride this gravy train.
State Auditor General William Holland confirmed this “pension” program isn’t funded for even one-third of its annual cost to Illinois taxpayers. What that means is the minimum annual pension contributions by the sitting judges along with interest income and state government contributions don’t come close to the actual cost to you and me. That means when a judge retires, they stay on our payrolls and keep getting paid for not working. If you do the math on a nine-year-judge who retires starting at $175K a year with 3% compounded increases, the needed seed money would be about $400,000 for each of the nine years, creating a “pot” of about $3,600,000 from which to start paying the “pension” starting at $175K a year. Since we aren’t putting up the $400K a year in front of each judge’s retirement, we are “backloading” that much money to them so they are paid primarily from current tax dollars starting on the date of retirement to their eventual passing. Either way, we assure you they are making the lifetime equivalent of about $600K each year for nine years of work, if they choose.
As you read this, judicial “pensions” are guaranteed in the Illinois Constitution. No matter how shocking and expensive they are, judicial pensions are completely and fully legal but seem to many to appear to be “corrupt.” The current annual cost of the unfunded judicial pensions to Illinois taxpayers is about a quarter of a billion dollars and rising. The “pension reform” efforts and controversial Supreme Court appeal being considered right now do not include these pensions at all. The only possible way to change them and try to make them more financially sound is to amend the Illinois Constitution. It is hard for legislators and others to criticize or change judicial pensions and we ask the judiciary to “heal itself” in the best interests of our state. We ask the august members of our Supreme Court to hold hearings, open this up to public debate and find the right path to make their compensation fair, fully funded and comparable to other sister states.
Circuit Court Judges are Becoming the Highest Paid Workers in Many Counties Across Illinois
We also have no true idea why Circuit Court judges who are ostensibly county employees have salaries set on a state-wide basis. While $203K per year is good money in any county across the state, it is an amazing salary in smaller cities like Rockford or Collinsville. We would bet there are many less-well-to-do counties in Illinois where the Circuit Court judges are the best paid workers in the entire county—we don’t mean judges are just the best paid government workers; we mean they have the highest salary and benefits in the entire county. Has anyone ever thought about making IL Circuit Court judges back into county officials with the local County board to set/control their salaries, pensions and benefits? Should we consider creating a new strata of hearing officers for routine or simpler legal issues to get lesser pay but still provide important but cost-effective service to taxpayers—perhaps by creating a magistrate or justice of the peace position?
Don’t Hefty Judicial Campaign Contributions Give Our Judiciary the Appearance of Justice for Sale? Could an IL Judge Legally Start an In-Court Auction for Their Future Rulings?
Going back to Governor Rauner’s challenging remarks above, is it “corrupt” for Illinois judges and justices to accept hefty campaign cash from the lawyers who appear before them? A lot of Plaintiff/Petitioner lawyers contribute and assert they have every right to do so. On the other side corporations and businesses also legally contribute to judges/justices. We also want our readers to know multimillion-dollar Plaintiff law firms from outside Illinois regularly and legally donate to Illinois justices/judges’ election campaigns. As out-of-state lawyers and law firms on both sides have limited interest in our state other than to get beneficial court rulings, such donations may appear to be a purchase of judicial favoritism. What other conceivable reason would there be for such a donation? When current Supreme Court Justice Karmeier ran for his current post, the opposing candidate accepted millions in donations from wealthy Plaintiff lawyers all across the United States—those lawyers may have felt the campaign donations were an risky but needed investment in future court rulings. On his side, Justice Karmeier’s campaign accepted campaign donations from large businesses based outside our state.
We don’t know the answer to this challenging issue but we do know there are many judges who have made a personal decision not to accept campaign donations from any lawyer or company who might appear before them. We do feel any attorney who has donated a nickel to a judge’s campaign should have to routinely disclose that donation to any opposing attorney when they appear before the same judge—we cannot imagine how a judge can be fair if he has accepted $10,000 or $100,000 from one lawyer or law firm before him and didn’t get cash from the other lawyer at all—to us, that has at least the appearance of secrecy and possible bias. Try to imagine the farcical situation where a lawyer was doing poorly on a major court claim and took out a checkbook in open court and offered the judge a campaign contribution on the spot. Could the other side immediately match or exceed the donation? Some lawyers assert the potential for such an auction is perfectly “Illinois-legal” and therefore within their rights. We agree it might be under current law but we ask the rhetorical question: should it be legal? We look to our readers for your thoughts on this challenging subject.
In Our View, There is More Judicial Legislation in Illinois Workers’ Comp than Any Other Area of Law
As to Governor Rauner’s comment about “activist” Illinois judges who want to be legislators—we have to agree with this is one of the defining features of Illinois workers’ compensation for anyone who reads our textbooks or attends a KCB&A presentation on the subject. You have to ask yourself, is judicial legislation in workers’ comp a good thing or a bad thing? Well, we feel it is one of the factors that makes Illinois workers’ comp so unpredictable and seemingly chaotic to risk managers outside our state and across the country. For a simple example, take Durand v. IWCC. In this claim, there was no question Petitioner was seeking benefits outside our 3-year statute of limitations. She basically admitted to doing so at all five levels of hearing and appeals. The Illinois Supreme Court effectively ended the concept of our Illinois’ workers’ comp statute of limitations by asserting they declined to “punish” her for filing the late claim as she supposedly had worked in pain until the statute would have ended her claim. As we said then and say now, what does “punish” have to do with workers’ comp benefits—aren’t the courts always “punishing” one side or the other to order benefits when they are due or denying benefits when the statute doesn’t provide them?
Would you like other examples?
§ Interstate Scaffolding v. IWCC where the Supreme Court accepted a petition for certiorari from a prominent ITLA member in a dispute over a mere $5K in TTD and then ruled in a fashion that some feel might reward inappropriate behavior for someone on light work who was fired for what would be criminal behavior;
§ E. R. Moore v. IWCC where our highest Court created the concept of “odd lot” total and permanent disability despite the fact the words “odd lot” aren’t in the statute anywhere and remain arguably indefinable;
§ Will County Forest Preserve District v. IWCC where the shoulder somehow stopped being part of the arm and became part of the body and
§ All the various rulings about including or not including overtime or part of overtime in the AWW when Section 10 of the IL WC Act still says overtime isn’t to be included in the AWW. The concepts of “regular and consistent” overtime and “mandatory” overtime aren’t contained in Section 10 of the IL WC Act.
You may note many of these issues are now the subject of legislative reforms to try to implicitly reverse the judicial legislation. We are sure the debate between Governor Rauner and our Supreme Court may rage on for years. We will keep our readers posted on the developments. We appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: Out Go Your Old Material Safety Data Sheets, In Come the New SDS or Safety Data Sheets—It Will Start to Happen at All Your Facilities Effective June 1, 2015.
Editor’s comment: Those fun folks at OSHA adopted new HCS 2012 SDS standards on December 1, 2013. The new standards are supposed to synchronize material safety (or chemical) information with the new Globally Harmonized System (GHS), created by the United Nations to ensure uniformity in communicating information about hazardous materials around the world. Some U.S. employers know June 1, 2015 is a deadline of the new standard. Manufacturers have to discontinue sending the old material safety data sheets (MSDS) and start to issue their new SDS forms instead.
Chemical end users have until June 1, 2016 to respond to new SDS standards passed down from suppliers and manufacturers in the workplace. This one-year time period presents a challenging and short time frame in which an employer can respond to the new and updated information contained on potentially hundreds of SDSs and be fully compliant on or before June 1, 2016.
What is an MSDS, Soon to be SDS?
MSDSs are, actually were documents that travel with or ahead of chemical shipments, warning users of specific dangers of such products and guidance on their safe handling, storage and disposal. Evaluating chemical hazards and producing MSDSs and labels for downstream users are two of the key responsibilities chemical manufacturers and distributors have. Maintaining an MSDS and soon an SDS for every hazardous chemical and making them continuously available to employees are part of U.S. Right-to-Know provisions which says employees have the right to know about the chemicals to which they are exposed. This is one of five key responsibilities employers have. The other four key responsibilities employers have are:
- Maintaining a hazard communication program detailing the plans in place for the safe handling of chemicals
- Maintaining a written chemical inventory of every hazard chemical in the facility to which employees are exposed
- Maintaining proper labels and warning signs associated with said chemicals
- Training employees on chemical hazards and necessary precautions
The New SDS Effect on Employer Safety Programs
Please remember you don’t want to use the new SDS and quickly toss or delete your existing MSDS files. Everything should be retained:
- To demonstrate you were compliant with prior HazCom standards;
- Prior MSDS sheets may be saved to defend workers comp and/or occupational disease claims by any of your workers alleging occupational diseases;.
- Toxic tort claims that later arise may be defended using old MSDS records where your organization may have used products manufactured and sold by you or when you resell or distribute products to other companies.
There is no time like the present--the new SDS implementation allows U.S. employers the opportunity and window to update your safety training, hazard communication and safety procedures for all chemicals in your workplace. The new Safety Data Sheet incorporates sixteen separate sections, some of which are parallel or identical to existing MSDS sections. There are some important differences and compliance challenges—if you have questions or concerns, send a reply.
When enforcement for product or chemical manufacturers begins on June 1, 2015, OSHA will be carefully checking to see each manufacturer properly completed the new SDS forms and they will be checking to insure each manufacturer went through a procedure to identify new or recently discovered concerns. A year later, when enforcement against U.S. employers starts on June 1, 2016 in relation to new SDSs, OSHA will look to whether the employee has reviewed the SDSs to identify any new risks as well as whether it has evaluated its existing compliance programs in light of the sixteen requirements we mention above.
What Does This Mean to You?
The Hazard Communication Standards affect nearly every United States employer, from chemical manufacturers to retailers to the travel industry where your employees work with chemical cleaning agents. Employers need to be aware of their obligations to communicate hazards of any chemical substance and you need to develop a process for updating existing labels, hazard assessments and training programs to comply with HCS 2012.
For all these reasons, we suggest:
ü You need to review the new SDSs as soon as you get them;
ü If you do not receive a new SDS form from a product manufacturer, you have to communicate with each manufacturer to obtain an updated SDS for your complete file;
ü You need to look at your workplace and compare the new SDS forms to identify hazardous chemicals and how your employees will use them and be exposed to them;
ü If your employees regularly or even sporadically work with or around hazardous chemicals, you have to insure they review the updated SDS forms to assess what might be impacted by the new SDS form;
ü You should insure your workers who work with or around hazardous chemicals are trained to recognize the pictograms and hazard warnings required under the new Hazard Communication Standard.
ü You want to be sure to document this safety training and develop mechanisms to confirm your employees understand the hazards of working with or around all chemicals in your workplace.
Brad Smith, J.D. is our OSHA defense team leader and can answer questions or concerns about any of this—simply send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: The IL Workers’ Comp Lawyers’ Ass’n CLE Presentation on AMA ratings and their Impact on IWCC Decisions. Thoughts and Analysis by John A. Karis, JD.
Editor’s comment: On April 9, 2015 three cases, each concerned with AMA ratings, were summarized and presented by WCLA members in a continuing legal education format. When you read the summaries below, you may note the rulings analyzed don’t show much value in using AMA ratings. With respect to the WCLA presenters, we do feel AMA ratings have great value and we feel PPD awards and settlements continue to drop. Please also note there is a new Chairperson and new Commissioners who may more closely adhere to AMA ratings under our current Governor. Either way, some of the key issues are discussed below.
The Weight of AMA Impairment Ratings – 6% AMA Rating Still Resulted in Award of 25% LOU.
One of the cases discussed was Frederick Williams v. Flexible Staffing. This case involved a 45-year-old welder who sustained a right distal biceps tendon rupture. Dr. Aribindi performed surgery. Petitioner returned to work full duty. Dr. Mark Levin assigned an AMA impairment rating of 6% UEI and 4% WPI. The Arbitrator’s decision was 30% LOU arm but was reduced by the IWCC to 25% arm. Respondent filed a Circuit Court review and the matter was remanded. On remand the Commission made the following clarification to support its conclusion, in response to Respondent's argument Dr. Levin's AMA impairment rating of 6% of the upper extremity was not given enough “weight” by the Arbitrator. The Commission stated “we do not agree with the great weight that Respondent wants placed on this rating because to do so would be to disregard the other factors and give them no weight at all. Section 8.1b of the Act requires the consideration of five factors in determining permanent partial disability.”
Section 8.1b also states, "No single factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order." We initially note the term "impairment" in relation to the AMA rating is not synonymous with the term "disability" as it relates to the ultimate permanent partial disability award. Based on the above, the Commission found the 6% impairment rating by Dr. Levin did not adequately represent Petitioner's actual disability in this case. When considering the other four factors, they found Petitioner's permanent partial disability was 25% loss of use of the right arm. The Commission stayed with their prior ruling to modify the Arbitrator's Decision and decrease Petitioner's permanent partial disability award from 30% to 25% loss of use of the right arm pursuant to Section 8(e) of the Act.
This decision may be making its way up to the Appellate Court, WC Division and we will keep an eye on it. This case is important because it is taking a look at the weight some IL WC Arbitrators are putting on impairment ratings. Respondent in this case did not believe the Arbitrator or IWCC put enough weight on the 6% AMA rating. What is the appropriate weight to put on impairment ratings? It appears to vary from cases to case. Some Arbitrators do not strongly align their decisions with the AMA impairment rating. On the other hand, some Arbitrators adopt the impairment rating without change for their trial award. An Appellate Court decision may shed some light on this important issue. We will update you with their decision when filed.
No Weight Given to AMA Rating At All – 17.5% BAW Affirmed by IWCC for Shoulder Surgery
The second case discussed was Steve Maynard v. Danville Housing Authority. This case shows an Arbitrator may place very little weight on AMA rating. After considering the issues of the nature and extent of petitioner's disability, and whether the award should be based on §8(e) or 8(d)2 of the Act and being advised of the facts and law, the Commission affirmed and adopted the Decision of the Arbitrator of 17.5% BAW for a shoulder with subacromial decompression & rotator cuff repair. Petitioner was judged by Respondent's medical evaluator to have a six percent (6%) AMA impairment rating of the upper extremity.
The Arbitrator had some issues with the impairment rating by Dr. Katz. The rating was premised on the Petitioner having a normal range of motion in the right shoulder and Dr. Katz reported such a finding. However, Dr. Katz only tested the Petitioner's right shoulder. The AMA Guides require the examiner to test both shoulders so as to accurately determine what is normal for each individual. See AMA Guide, Sixth Edition, Section 15.7 (a), p. 461. More important, Dr. Katz' numbers were inconsistent with those found on several occasions by Dr. Rotman, who did examine both shoulders. On January 28, 2013, Dr. Rotman found 140 degrees of flexion and abduction of me right shoulder and 150 on the left. He found 45 degrees of external rotation on the right shoulder and 60 degrees on the left. The Arbitrator could not see how Dr. Katz was able to produce 180 degrees of flexion and 90 degrees of external rotation during his exam. Those numbers greatly exceed those found by Dr. Rotman on the Petitioner's good arm. Therefore, Dr. Katz' range of motion findings were considered suspicious for the above reasons. The impairment rating used presumes a normal range of motion. For those reasons, the Arbitrator placed little weight on the rating.
This case demonstrates how an Arbitrator may not put any weight on the rating if they do not believe it was done correctly This rating was based on Petitioner having a normal range motion but the Arbitrator found this to be incorrect after looking at prior treatment records. Just because an impairment rating was done doesn’t mean an Arbitrator needs to place great weight on it in their decision. Claims handlers and defense attorneys need to make sure impairment ratings are done correctly in order for the Arbitrator to find it credible and use it in their decisions.
Section 8.1 and the 5 Factors – 17.5% BAW Award for shoulder surgery ignores 5% AMA Rating
The third case discussed was Terina Green v. PPG. This case gave a solid breakdown for each factor in its decision. Petitioner underwent surgery to her left shoulder which included a subacromial decompression, rotator cuff repair a proximal biceps tenodesis, and intra-articular evaluation, debridement, and removal of loose bodies.
1. The level of impairment: Dr. Atluri furnished multiple impairment evaluation reports. Most important is his last one which was based upon Petitioner having finally reached maximum medical improvement. Dr. Atluri found Petitioner's complaints to be credible at the time and he concluded her impairment was nine percent of the upper extremity or five percent of a whole person. Petitioner's Quick Dash score was 56.8 which he testified was at the higher end of moderate in terms of severity.
2. Petitioner's Occupation: Petitioner's occupation at the time of the accident was a factory worker. She had performed those duties for approximately six years prior to her accident. At the time of arbitration Petitioner was unemployed as her last employer, G & D Integrated, had shut down. Petitioner voluntarily left her employment with Respondent to work for G & D. The job for G & D was supervisory in nature and, by Petitioner's description, less physical than her job for Respondent. Petitioner is left hand dominant. No direct evidence was presented to show Petitioner's current unemployment status is attributable to her work injury. However, based upon Petitioner's credible explanation of her former job duties for Respondent, the Arbitrator reasonably inferred it would be challenging for Petitioner to engage in the type of factory work in light of her injury.
3. Petitioner's Age: Petitioner was thirty-nine years old at the time of her accident. No direct evidence was presented by either party as to how Petitioner's age impacts any disability. However, the Arbitrator noted Petitioner may reasonably be expected to live and work with the effects of her injury for a longer time than an older individual and, therefore, her permanent partial disability may be greater than an older individual.
4. Future Earning Capacity: While Petitioner testified to a reduction in pay after her accident, she did not prove by a preponderance of the evidence the reduction was related to her injury.
5. Evidence of Disability corroborated in the treating records: Petitioner's records from her treating physicians have demonstrated evidence of disability. Petitioner underwent surgery to her left shoulder which included a subacromial decompression, rotator cuff repair (for an 80% tear), a proximal biceps tenodesis, and intra-articular evaluation, debridement, and removal of loose bodies. While surgery improved Petitioner's condition and she was released with no restrictions, she has continued to notice limitations in her left arm and shoulder.
Petitioner's testimony concerning her injury and her ongoing symptoms and complaints was found credible. In light of Section 8(b)1 of the Act and after considering the foregoing factors, the Arbitrator concluded Petitioner has suffered a loss of 17.5% of a person as a whole as a result of her work accident. This case illustrates the thinking process of an Arbitrator as they go through each factor of a case.
This article was researched and written by John A. Karis, JD. The opinions John is voicing are his/ours and not those of any member of WCLA or its board. John can be reached 24/7/365 for questions about WC at jkaris@keefe-law.com.