6-8-15; Can We Stop Worrying about Work Comp and Tackle the 800lb Gorilla?; IL Appellate Court Re-Opens and Re-Settles a WC Claim; IWCC Arb. Survey and more

Synopsis: Gov. Rauner “Verging” Illinois--How About Stop Worrying about Work Comp and Going After the 800lb. Gorilla?

Editor’s comment: As you read this, the entire Illinois political world is basically moving toward chaos. New Governor Bruce Rauner has announced bedlam, turmoil and pandemonium are going to start on July 1, 2015 which is the beginning of the new fiscal year for Illinois state government. He is using his ability to approve or reject the State’s 2015-2016 budget to get what we feel are minor changes to IL government.

What we are calling “verging” is the willingness of the Governor to put everything on the “verge” of non-funding many state government functions. The Rauner camp has promised they won’t agree to or sign off on a new state budget unless he gets what he wants for workers’ comp changes, term limits and a local property tax freeze. Lots of Il WC players, particularly doctors and health care givers feel Gov. Rauner’s reforms haven’t been carefully vetted and are being thrust on them. Looking at a projected lack of funding or at least lots of delays, our contacts/readers across the state indicate there is dramatic unrest in school districts and many local governments that depend on the state for support and income.

Either way, the IL House passed and sent an IL work comp “reform” bill to the Democrat-controlled IL Senate in a 63-39 vote. The media didn’t feel it important enough to actually outline what the legislation addresses or how it would change the IL WC Act or Rules. No one has any idea whether the bill will be treated with the same disdain if passed by the Senate but it is certain the Governor won’t sign it and a veto would have to be overridden with strong support from all state Democrats.

IL Republicans blasted the work comp reform measure as being one-sided and falling far short of what the Governor was seeking to entice outside businesses to come here and local businesses to expand here. Governor Rauner labeled the bill "phony reform." He also reiterated his insistence lawmakers address Illinois' structural problems through his “turnaround agenda” before debate about taxes and new revenue sources could be negotiated.

What About the 800lb. Pink Gorilla No One Can Miss?

In our view, this is fiddle-fooling around. The major crisis facing every Illinoisan and Chicagoans isn’t workers comp, term limits or local property taxes. These issues have some relevance but they aren’t close to being game-changers. There aren’t businesses and CEO’s across our country that are petrified of any issue other than our “de-funded’ fake state and local government pensions and the staggering debt they have brought to Illinois and its biggest city. We note Chicago Mayor Rahm Emanuel needs to come up with $634M by the end of June, yes this month, to cover the inconceivably underfunded Chicago Public School fake pensions. We are certain Mayor Emanuel is going to have to borrow billions—there is no way to get a tax in place to get the money in the next 22 days. The Mayor is also going to have to fund his own City of Chicago fake pensions as well as the Chicago Transit Authority pensions. With about $3.5B in annual income, he is well over $33B in debt and that debt is spiraling as they borrow money to pay the “vig” or debt on the debt. At some point,

·         Lots of new and anti-business taxes are going to be levied on lots of things;

·         Some IL cities and government taxing bodies may become “bankrupt” whether it is legal to do so or not; and

·         Someone on Wall Street may pull the plug on more borrowing.

Governor Rauner hasn’t done literally anything about state/local government fake pensions since our IL Supreme Court recently ruled existing pensions can’t be cut. Gov. Rauner is looking at $110B in state debt and the amount due is going up at over $20M each day of the year. If you do the same math, that means City of Chicago pension debt is also going up about $7M each day. If you want U.S. business to look favorably at our state, you have to start fighting that ugly fight right now.

Hard to Blame State/Local Gov’t Workers But Someone Has to “Correct” Fake Pensions

We are sure there are thousands of state and local workers that don’t want the free lunch or the retirement-welfare-state caused by “unfunded” or defunded fake pensions. Conservative state/local workers don’t want future taxpayers to be forced to pay them in retirement due to lack of funding on all sides of the pension matrix. They want certain and fair retirement benefits and should be entitled to it whether it be a 401K plan or something that makes monetary sense and isn’t a house-of-cards.

We hope Governor Rauner, Senate President Cullerton and House Speaker Madigan get together to either call for Con-Con or an emergency constitutional amendment to realign state and local retirement programs so they are “funded” as well as safe, fair and protect both taxpayers and the folks who receive the benefits.

If you aren’t sure why we call them “fake” pensions, please send a reply. Happy to hear your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: IL Appellate Court Rules LUMC Has to Spend New Money to Reimburse LTD/STD Reductions After What Was Supposedly a Final Settlement.

Editor’s comment: In Loyola University vs. IWCC, 1-13-0984WC (1st Dist. 2015), the Workers’ Compensation Division of the Illinois Appellate Court reversed the Circuit Court and reinstated an IWCC decision finding the Commission retains subject matter jurisdiction to interpret an approved settlement contract and order a payment of new settlement dollars long after the settlement was final. As an aside, we are not certain why the IL Appellate Court ruling lists Loyola University of Chicago as the party appellee when the IWCC website indicates Loyola University Medical Center or LUMC is the named respondent. They are different corporations to our knowledge.

In Loyola University, Petitioner Mikesh suffered 2003 and 2005 work injuries resulting in a later settlement contract between the parties. The settlement contract between the parties was approved by the IWCC and was paid, for the most part. The settlement contract contained a provision confirming Respondent LUMC would hold Petitioner harmless from any claim for reimbursement from the settlement by any entity which provided long term or short term disability payments. We would assume this means if the LTD or STD carrier came back at Petitioner to recover LTD or STD paid as part of the settlement, the employer or carrier would cover that cost or defend claimant—that isn’t what happened in this ruling.

After the settlement contract was approved, the long term disability carrier learned Petitioner received Social Security payments and due to such payments, the LTD carrier reduced Petitioner’s long term disability benefits. No action was taken by the LTD carrier due to the lump sum settlement contract itself. Petitioner’s counsel contacted Respondent and demanded it reimburse Petitioner for the reduction by the long term disability carrier due to the Social Security related reduction. Respondent refused to reimburse Petitioner—we are sure they asserted the claim brought by Petitioner wasn’t for “hold harmless” protection of the settlement but for fresh money outside the settlement terms.

 
Petitioner’s counsel filed a Petition for Penalties under Sections 19(k) and 19(l) of the Act along with attorney’s fees under Section 16. Petitioner’s counsel alleged Respondent refused to add monies to the settlement for the reduction by the group LTD carrier due to Social Security benefits. The IWCC ordered Respondent to add monies to the settlement. The IWCC declined to award penalties and attorney’s fees. Respondent sought review in the Circuit Court of Cook County. The lower court held the IWCC did not have jurisdiction to interpret the settlement contract so as to add monies to the settlement at a later time. Petitioner appealed to the Appellate Court.

  
The Appellate Court reversed the Circuit Court and held the IWCC had jurisdiction to interpret the settlement contract.  The Appellate Court ruled the IWCC correctly concluded Respondent was liable for the reimbursement of an “overpayment” of the long term disability payments made to Petitioner by the LTD carrier.  The Appellate Court held the IWCC had jurisdiction to award attorney’s fees and costs.  In this case the respondent’s interpretation of the settlement contract was not unreasonable or vexatious so penalties and attorneys’ fees were not awarded.

We feel the Appellate Court effectively ruled Respondent somehow became a “guarantor” of the benefits due under the LTD plan due to the settlement contract language. When benefits under the LTD plan were cut pursuant to the terms of the plan, we have no idea why the former employer would owe new money in reimbursement of the amounts cut. We don’t agree that is what the settlement contract language says at all. We don’t have any idea how a future settlement contract should now read, based on the unusual view this Court had in its review of the contract language.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: The IWCC is asking for your thoughts and comments on our IL WC Arbitrators—Step Up!!

Editor’s comment: We commend new IWCC Chair Joann Fratianni on her efforts to ask members of the practicing bar and you, Illinois businesspeople, for your opinions on any Arbitrator you have appeared before. If you can’t rate an IL WC Arbitrator, we are asking you to get engaged and be ready for the same survey next year.

Please find below the link to the IL WC Arbitrator Evaluation Survey. The Commission is asking their Arbitrators are to be rated only on the basis of your personal knowledge. It is possible you will not be able to rate all of the Arbitrators or answer all of the questions for each Arbitrator on the evaluation form.

If you have specific knowledge as to the qualifications of an Arbitrator to give a fair, informed opinion as to those qualifications, please respond to the questions for that Arbitrator by answering “Y” (Yes) or “N” (No) to the questions asked. If you have no opinion on a particular question, the question should not be answered and will be tabulated as a “No Opinion” response that will not affect the arbitrator’s rating.  Specific instructions on form completion and submittal are available on the link.

If you do not have specific knowledge as to the qualifications of an Arbitrator please skip that Arbitrator and move on to the next Arbitrator. Forms must be submitted to the IL WC Commission by June 12, 2015. 

http://www.iwcc.il.gov/news.htm#arbeval

6-1-15; IL WC Reform May Not Be Happening But The Sky Isn’t Falling--Yet; Joint Employer Immunity Upheld by Matt Gorski; Important Petrillo Decision and more

Synopsis: As Of Now, The IL WC Legislative Reforms May Not Be Happening But For the IL WC Industry, The Sky Isn’t Falling Just Yet.

Editor’s comment: There is lots going on in Springfield and we have seen the IL House shoot down WC reforms and the IL Senate balk, then modify them and then shoot them down in committee. Both sides of the legislature are fighting with new Governor Rauner and he is fighting back in the media and with attack ads. As you read this, the IL General Assembly was supposed to have adjourned by now but they might be moving into extended session. The General Assembly plan appears to be to finish their business without consensus on a 2016 budget approved by Democrats that is more than $3 billion out of whack. Everyone assumes our leaders are going to borrow billions or raise taxes. There is no indication they might do what we want--enact ABBC—Across-the-Board-Budget-Cuts. Try to imagine Illinois legislators and administrators reaching the simple understanding we don’t have the money for 10% of what they are spending/wasting and having them

Ø  Consolidate 88 IL state agencies into 44?

Ø  Cut comically bloated and unquestionably redundant state agency budgets and staff?

Ø  Get rid of satellite offices that do virtually nothing of value to taxpayers?

Ø  Fully automate the tollways and stop spending $100M a year to have humans collect IL highway tolls?

Ø  Start using staffing employees for lots of administrative jobs so taxpayers don’t have to “double-pay” state workers with a salary while they are working for the state and a fake pension when they leave state employ so future taxpayers have to keep paying them more than half their retirement income for life?

Ø  Bring injured state workers back to light work and stop paying TTD for years/decades (or even their lifetimes) to workers that can and should be working?

Gov. Rauner says he won't sign any budget plan until Democrats pass some of his priorities to include WC reform. We will continue to watch and see where it ends. We hope our Governor and the legislature continue to work on real government pension reform which remains the mega-issue for our state.

Please Note the Proposed WC Reforms Aren’t Present in Indiana WC

We don’t feel “the sky is falling” if WC reforms aren’t enacted. IL WC legislative disappointments shouldn’t be too depressing for IL business. In our view, the four legislative amendments weren’t carefully considered or brought to the mainstream for everyone’s thoughts and input. The article we published from Dr. David Fletcher last week and this new article he just published Rauner's workers' comp plan is bad medicine for workers emphasize how “clunky” and uncertain these rapidly-created-and-presented WC reforms are.

Everyone keeps looking to the east at Indiana and their WC system appears to be nirvana for some because their system is sometimes so painfully low and limited in WC benefit levels. If IL WC is supposed to be “Like-Indiana” we caution Indiana worker’s comp has none of the facets of the proposed and currently failed IL WC legislative reforms. For example, they don’t have a “causation” or accident standard in their IN WC Act—they use common sense. The Indiana WC Board and their law doesn’t define “traveling employee” in their IN Act—Indiana hearing members (who are the equivalent of our Arbitrators) use prudence, rationality and sound judgment when they interpret their law in claims administration, hearings and appeals. How about letting our newly appointed IWCC do the same thing?

The Defense Team at KCB&A Wants Our IL WC Commission to Get the Chance to Demonstrate Common Sense in WC Claims

We have said this before and we will keep saying it. The current IL WC is in the process of “reforming itself” with better hearing officers and commissioners who are going to use common sense in reaching decisions. We assure our readers our team is closely watching every ruling from the IWCC and through those published rulings, the Arbitrators who are having their decisions appealed. We pray someone talk to the IL Appellate Court, WC Division and try to get them on board with reasonable cost-cutting.

We want to emphasize the defense team at KCB&A is going to closely watch, report and applaud when we see solid progress in stricter implementation of legal standards for accidents and lower PPD awards for folks smart enough to present claims properly to our hearing officers. If we see loose causation/accident decisions and goofy traveling employee awards, we will also let everyone in the industry know about it. And if you aren’t happy with your IL WC defense, hire us—we have one client who proudly advised us we helped him save $2M in IL WC costs last year with strong advice on his litigated and non-litigated claims. If you want to call him, send a reply.

As one example, we are advised some IL Arbitrators, particularly in downstate or “outstate” Illinois may be taking the Will County Forest Preserve District v. IWCC ruling as a basis to effectively “double” all shoulder permanency awards by changing traditional loss of use of the arm awards into loss of use of the body as a whole for the same permanency values. We didn’t read the decision to justify doubling permanency for shoulder injuries across the board. If that is happening, it is going to inflame the IL business community. Claimant Smothers in Will County Forest Preserve District only received 25% BAW for a truly messed up arm, oops we mean shoulder and a dramatic life change. Very few injured workers with operated shoulders undergo a dramatic life change—lots of men and woman recover unremarkably and have unremarkable permanency/impairment. If you are seeing this phenomenon, we want our readership to know it is out there, as it affects reserves, settlements and trial outcomes along with possible reform legislation. If you see it, please drop us a line with the case name/number.

In the same vein, the overall goal for IL WC is to get our benefits back to the middle of the United States and help our local economies compete with IN, WI, MI, IA and everywhere else in our country. The State of Oregon WC Premium Rankings come out in October 2016 or in sixteen months or so. The best place to track IWCC progress in making solid decisions on what is an accidental injury, what is related to such injuries and what injured workers should be receiving for permanency or impairment is right here. At least once a month, we are going to summarize what we see coming from our hearing officers. If you see outliers or odd rulings, please, please send them along.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: New Ruling on When a Joint Employer is Protected From Civil Suit by the WC Exclusive Remedy Clause. Thoughts and Analysis by Matthew G. Gorski.

Editor’s comment: On April 23, 2015, a recent decision in the IL Second District Appellate Court was filed regarding the issues of joint employers and the WC exclusive remedy clause in Section 5 of the IL WC Act. In Kay v. Centegra Health System, our Appellate Court affirmed the trial court’s decision to deny Plaintiff’s motion for summary judgment and granted Defendant Centegra Health System’s motion for summary judgment.

Kay involved an employee of Northern Illinois Medical Center (NIMC) who tripped over a cable while working in a lab at NIMC. She sustained injuries and pursued a workers’ compensation claim against her employer, NIMC. Following trial and appeal to the IWCC, she successfully received substantial workers’ compensation benefits of 60% BAW under coverage from NIMC.

Plaintiff then pursued a personal injury action against Centegra for negligence revolving around this same occurrence. Centegra was a corporate affiliate and sole member of NIMC. Before the trial court, Centegra successfully won on summary judgment arguing they were a joint employer with NIMC because they helped pay for and were listed as “Employer” with NIMC on the workers’ compensation policy that issued benefits to Plaintiff/Petitioner Kay. Therefore, Centegra was immune from civil suit under the exclusive remedy clause.

The Appellate Court did not find Plaintiff’s argument compelling that Centegra was not listed as a party respondent or took any active part of any of the workers’ compensation proceedings. The Appellate Court found it more compelling Centegra helped pay for the WC benefits that were issued to Plaintiff in her WC claim.

For all those companies and their insurance brokers out there who are listed on a joint WC policy with another company, be aware you are helping pay for the WC benefits of employees of the joint company. This ruling is a must-read to insure you are protected in similar settings. This concept may provide immunity to you in a personal injury action by the same worker under Section 5 of the IL WC Act, as you technically have paid or contributed to benefits to the injured worker who sought and received IL WC benefits from a joint employer.

This article was researched and written by Matthew G. Gorski, JD. Matt can be reached 24/7/365 for questions about WC at mgorski@keefe-law.com.

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Synopsis: Petrillo Expands in the Cook County Circuit Court—We Await Appeal to the Supreme Court.

Editor’s comment: All defense attorneys and adjusters/risk managers should beware of an unexpected ruling by Cook County Circuit Judge Kathy Flanagan, which appears to expand the rule in Petrillo v. Syntex Laboratories, Inc. and may create significant risk for defense counsels and their clients. If it isn’t changed on appeal, this ruling might impact WC law and practice at some point. In writing this article, we want to confirm we respectfully disagree with her thinking but we hold Judge Flanagan in the highest academic, scholarly and legal regard.

In Thompson v. University of Chicago Medical Center, Judge Flanagan ruled a defense attorney violated Petrillo by forwarding a copy of Plaintiff’s complaint to the attorney retained by a treating physician prior to the treaters deposition. Judge Flanagan entered substantial sanctions against Defendant. She further ruled defense counsel could not ask opinion questions of the witness, either at the deposition or at trial, and acted to strike many of the questions and answers from the witness’ deposition.

In Petrillo, the IL Appellate Court ruled defense counsel could not engage in ex parte communications with Plaintiff’s treating physician. The Appellate Court ruled “discussions between defense counsel and a plaintiff’s treating physicians should be pursuant to the rules of discovery only.” This unexpected decision caused numerous challenges about the scope of the new limitation and attacks by the defense bar on the rationale of the decision. The ostensible rationale of the Petrillo decision was a physician has a fiduciary and protected connection with their patient. Therefore, ex parte discussions or communications between the physician and defense counsel are felt to unfairly interfere with the patient’s rights and civil claims. We have often characterized this court-created protection as seeking to block the defense attorney from turning the treater into a “ventriloquist’s dummy” so they are somehow “tainted” by knowledge and supposedly say only what the defense wants them to say. We don’t feel doctors are so gullible and accepting they can’t talk to a defense attorney and still not be swayed or unduly influenced from their medical and scientific opinions.

Despite the Petrillo prohibition, the courts have also recognized a treating physician has the right to retain and consult with their own attorney, even though the physician may not be a party to the pending suit or before suit is filed. Thus, a physician has the right to seek the representation of counsel at any time they are to be deposed or testify, even if the physician is not a party. Presumably, the right to counsel includes the right for the physician’s personal counsel to be fully informed about Plaintiff’s claims, so their personal counsel can adequately “represent” the physician.

According to Judge Flanagan in Thompson this concept is not as clear. In Thompson, Plaintiff filed suit against the University of Chicago Medical Center (“UCMC”) and others alleging medical malpractice stemming from surgery performed by one of its surgeons. After written discovery of the parties was complete, the parties began depositions of treating physicians. Defense counsel for UCMC wanted to depose Dr. John Grayhack as he performed surgery on the minor Plaintiff similar to surgery performed at UCMC a year earlier. As he was concerned about being sued, Dr. Grayhack retained a personal attorney to represent him during the deposition. UCMC’s defense counsel obtained permission from Plaintiff’s attorney to send medical records to be used at the deposition to Dr. Grayhack’s attorney. When UCMC’s counsel sent the medical records, he also included health professionals’ reports attached to Plaintiff’s second amended complaint. Plaintiff’s counsel was copied on the correspondence to Dr. Grayhack. In our view, this means nothing was hidden.

When Plaintiff’s attorney learned defense counsel for UCMC forwarded the reviewing professionals’ reports to Dr. Grayhack’s attorney, he brought a motion to bar testimony at deposition. Judge Flanagan ruled any communication with the personal attorney for the physician which had not been specifically authorized by Plaintiff’s attorney was a violation of Petrillo, and barred defense counsel from asking Dr. Grayhack any opinion questions, and further “deputized” Plaintiff’s counsel in advance of the deposition to instruct Dr. Grayhack not to answer any such questions if they were asked. During his deposition, Dr. Grayhack testified he had never seen the copy of Plaintiff’s complaint or the attached health professional reports.

Following the deposition, the court barred large parts of Dr. Grayhack’s testimony from being used at trial. UCMC filed a petition for a supervisory order to reverse Judge Flanagan’s ruling before the Illinois Supreme Court, and the IL legal community awaits a ruling on its petition.

We consider Judge Flanagan’s ruling to go far beyond the scope of Petrillo. We note UCMC’s defense counsel did not communicate directly with Dr. Grayhack. Next, the communication UCMC’s counsel had with the counsel for Dr. Grayhack was limited to forwarding medical records, as agreed by Plaintiff’s counsel and a copy of Plaintiff’s complaint and reviewing health professional reports. UCMC’s counsel was not sneaky about doing this--he copied counsel for Plaintiff on the correspondence. For that reason, we have no idea how it can be an “ex parte” communication—it is what we call an in parte communication. Further, Plaintiff’s complaint was a matter of public record, so Dr. Grayhack’s counsel could easily gone to the courthouse and obtained a copy of the complaint and reviewing healthcare practitioners’ reports. Finally, competent counsel representing a witness in a lawsuit such as this would attempt to analyze Plaintiff’s complaint and healthcare practitioners reports so they would be able to prepare their client for testimony.

We feel all Illinois trial defense counsels should be aware of this unusual ruling. We will continue to track progress on the final determination. We appreciate your thoughts and comments. Please post them on our award-winning blog.

5-25-15; IL WC Legislative Reforms Blocked in IL House But Battle isn't Over; Dr. Fletcher on Proposed IL WC Medical Fee Schedule Changes; Using Cell Phones to Informally Video Depositions and more

Synopsis: IL WC Legislative Reforms Blocked; Gov. Rauner Remains Irresistible Force/Immovable Object—Can Our WC System Get Out of His Crosshairs?

Editor’s comment: New IL Governor Bruce Rauner announced plans to introduce legislation on workers' compensation, government restructuring and term limits. The Illinois House of Representatives debated and voted against workers compensation reform but did not take up tort reform. The Illinois House debated and voted on four workers' compensation amendments. The first three failed and the fourth passed. Here are details about the proposed legislative amendments:

Ø  Amendment 1 added a "major contributing" cause standard to evaluation of accidental injuries under IL WC. It failed to pass on a vote of 0-69-38.

Ø  Amendment 2 would have changed AMA guideline usage in determining permanency; it may have caused much lower awards. This also failed 0-69-38.

Ø  Amendment 3 was a 30% IL WC medical fee schedule cut. This failed to pass with a vote of 0-69-37.

Ø  Amendment 4: WC insurance rate regulation and safety premium and self-insured fee reductions. This was adopted by the House 68-0-39.

Most of the House Amendment on insurance rates was insurance-ese. See below--this is the major proposed change to the IL WC Act for the IL WC community to note—remember it has to be passed in the Senate and signed by Gov. Rauner to become law:

(820 ILCS 305/4e new) Sec. 4e. Safety programs and return to work programs; recalculation of premiums and waiver of self-insurers fee.

(a) An employer may file with the Commission a workers' compensation safety program or a workers' compensation return to work program implemented by the employer. The Commission may certify any such safety program as a bona fide safety program after reviewing the program for the following minimum requirements: adequate safety training for employees; establishment of joint employer-employee safety committees; use of safety devices; and consultation with safety organizations. The Commission may certify any such return to work program as a bona fide return to work program after reviewing the program for the following minimum requirements: light duty or restricted duty work; leave of absence policy; and full duty return to work policy. The Commission shall notify the Department of Insurance of the certification.

(b) Upon receipt of a certification notice from the Commission under this Section related to an employer that provides workers' compensation through an insurer, the Director of Insurance shall immediately direct in writing the employer's workers' compensation insurer to recalculate the workers' compensation premium rates for the employer so that those premium rates incorporate and take into account the certified program.

(c) If any workers' compensation safety program or a workers' compensation return to work program implemented by a self-insured employer is certified under this Section, the annual fee under Section 4d of this Act is waived for the self-insured employer as long as the workers' compensation safety program or a workers' compensation return to work program continues. The self-insured employer shall certify the continuation of the program by each July 1 after the waiver is obtained.

What we consider ironic and embarrassing about this proposed change to the IL WC Act is the two biggest WC programs in our State that don’t have either a safety program or a return to work program are the State of Illinois itself and the City of Chicago. Both governments are literally tens of billions of dollars in choking debt. We hope Governor Rauner, Senate President Cullerton and House Speaker Madigan along with Chicago Mayor Rahm Emanuel and Alderman Ed Burke follow the concept espoused in this new proposed WC amendment and initiate safety and return to work programs and save hundreds of millions of dollars. The defense team at KCB&A is happy to consult with these governments and any of our readers on getting this into place at no charge.   

The Madigan-Hates-Millionaires Tax Gets Postponed—We Hope It Dies In the IL Field of Bad Anti-Business and Anti-Jobs Ideas.

Speaker Madigan’s millionaires tax suffered a near-defeat in the Illinois House last Thursday. In a victory for the business community, specifically small business and entrepreneurs, the IL House was unable to pass HJRCA 26. It would set up a general election vote in November 2016 on whether to add a 3 percent surtax on incomes above $1 million. As he saw his pet project going south, Sponsor House Speaker Michael Madigan postponed consideration, so it could come up for another vote. The IL State Chamber calls it a tax on being successful and we agree fully with that sentiment. We also note Speaker Madigan claims the money raised is going to be “ear-marked” for education. If you are reading the Illinois newspapers and other media outlets, you may note the Chicago Tribune highlighted another type of fake pension abuse among our educators in a front-page article where taxpayers are being forced to pay for school districts that dramatically boost salaries in the last year or so of a retiree’s career to insure they get the highest possible fake pension from state government and also force IL taxpayers to also pay significant penalties for what the school districts are doing in tricking up the pensions. Along with recent news articles documenting numerous financial abuses in  our colleges and universities, starting with the College of DuPage, we aren’t as excited to hear the supposedly soothing legislative mantra that over a billion dollars in new increased taxes will go to “education.”

Please note this massive new state tax might end any interest star athletes like Chicago Bears Quarterback Jay Cutler, Chicago Cubs Pitching Star Jon Lester or Chicago Bulls Guard Derek Rose from living in our state. By our math, the cost of this tax to such athletes would be over $1.2M each year of their short careers. In our view, you can buy a pretty nice estate in Merrillville, IN or Racine, WI with $1.2M a year and avoid some or all of the new proposed tax. In our view, such a tax would basically empty out Trump Tower and the successful folks that reside there—one wag in our office asked that if he is successful in “taxing the successful,” Speaker Madigan should have Trump Tower dug up and carefully moved across the state border. We would prefer to have stock brokers, surgeons, entrepreneurs and lots of hard-working and successful people want to live in our state and not give them an enormous impetus to leave and bring their businesses and jobs with them.

This also leads to another reason we are chagrined and disappointed with Speaker Madigan—he clearly understands to raise our taxes in such fashion, he needs to change the IL Constitution. He is more than willing to fight to do so to try to fund the multi-billion-dollar mistakes he has made in the forty-plus years he has been in our General Assembly. When it comes to reforming our laws on the hilariously underfunded fake pensions that are choking IL government, Speaker Madigan proposed and enacted two laws to reform the fake pensions and post-retirement healthcare costs for state workers. His daughter, Lisa Madigan is a diligent and brilliant jurist who basically was run out of court twice with overwhelming and unanimous Supreme Court majorities who all agreed such legislative changes from her father violated the IL Constitution. The only way to reform fake pensions and growing health care costs for state retirees is an emergency Con-Con or Constitutional Convention or a proposed and sweeping amendment to the IL Constitution. If anyone can do that, Speaker Madigan can—the question is will he?

Please Note This is a Respite But the Work Isn’t Over In Bringing IL WC Costs Down

We caution our readers on both sides of the WC matrix—next year in October 2016, the Oregon WC Insurance Premium Ratings will be published and literally everyone in this industry and our legislature is going to be watching. It is our strong hope new IWCC chair Joann Fratianni and her team remain sensitive to the needs and wishes of the IL business and government community. IL WC needs to be in the middle of the United States and competitive with all states around us. We also hope the great folks who regularly meet and discuss/debate judicial issues with the local Circuit Court judges who handle/decide WC claims and the august members of the IL Appellate Court, Workers’ Comp Division get the same message.

Right now, Governor Rauner has a political “war chest” of at least $34M and he is ready, willing and able to use it to create an IL legislature in his image and likeness in the next seven years or so. Bruce Rauner is a brilliant manager and executive. He is used to getting his way and is going to go to great lengths to improve our state. If and when he gets control of the IL General Assembly in either two or four years, we hope workers’ comp is a distant memory for his whole team, as IL WC should already be reasonable, professional and competitive in considering claims and doling out the crucial benefits injured workers need.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Dr. David Fletcher – Wrong Focus on IL Workers’ Compensation Debate

Editor’s comment: This is a guest article by Dr. Fletcher who is a businessman, physician, scientist and workers’ comp professional. It is being published with his permission and without any changes.

The State Journal-Register has been covering Gov. Bruce Rauner's plan to slash workers' compensation costs as part of his heavily self-touted re-engineering plan for Illinois. So far, the debate has ignored the doctors' perspective, including the burden of insurance carrier micromanagement of medical services, the costs of practicing medicine in Illinois, effect on patients because of a lack of access to necessary care, and lack of strategies by employers to realize cost savings by focusing on prevention of workplace injuries.

The Governor believes the fee schedule for medical payments in Illinois is higher than many other states, which, depending on how you define "many," is simply not accurate. In reality, "Medical payments per claim in Illinois were closer to the middle group of states," according to the April edition of the Workers' Compensation Research Institute CompScope Benchmarks. The legislature first imposed the medical fee schedule upon doctors in 2005, resulting in a 24-percent reduction in medical charges. The schedule was reduced again in 2011 by an additional 30 percent, and as a result of these changes the Oregon Department of Consumer and Business Services concluded Illinois experienced the steepest drop in medical costs in the nation.

The National Council on Compensation Insurance also concluded medical costs do not constitute the majority of Illinois workers' compensation expenditures. Despite these dramatic reductions in medical costs, workers' compensation insurance carriers continue to price-gouge with premiums increases rather than pass any of the savings onto Illinois employers. Workers' compensation insurance is now so profitable that 333 different insurers currently sell workers' compensation insurance in Illinois. The paperwork and other demands of workers' compensation far exceed that for privately insured patients; additional fee cuts to physicians will force medical providers to stop accepting workers' compensation patients. Immediately following the implementation of the 2011 workers' compensation reform, the Illinois Workers' Compensation Commission recognized that patient access to critical care was dwindling as a direct result of the 30-percent medical fee reduction, which dropped routine office evaluation and management visits well below Medicare rates.

On July 16, 2014, the IL WC Commission voted 9-0 to immediately raise evaluation and management office visit codes to at least Medicare levels to reverse the crisis ensuing from doctors' offices basically washing their hands of such patients because they cannot afford to treat them. In essence, Rauner is quick to blame workers' compensation industry shortcomings, with the message that benefits must be slashed to entice businesses to invest in the state of Illinois. His stance, on the contrary, should be focused on insurance industry oversight, as well as on employer awareness initiatives that promote wellness in the workplace and focus on the prevention of injuries.

The insurance industry offers a variety of reasons why premiums have not gone down. Enough with the excuses. The governor should not require further sacrifices on the backs of the injured worker and the medical community taking care of these workers without demanding insurance companies reduce premiums to reflect the prior reforms.

Editor’s note: One aspect of the recent proposed WC legislation that was kept under wraps until the very end of the debate were the proposed changes to the IL WC Medical Fee Schedule. If there are strong justifications to again review and modify the schedule, we hope there will be more debate and discussion on how to best do so.

We appreciate your thoughts and comments. We are happy to relay your best thoughts to Dr. Fletcher for his response.

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Synopsis: The Care and Feeding of Great Physicians in Medical Depositions—Can They Informally But Openly Videotape a Deposition with Their Cell Phone?

Editor’s comment: We hear one complaint over and over from physicians who have been deposed in litigation. They are tired of being confronted, yelled at and sometimes personally abused by attorneys on both sides of the fence. We want great physicians, surgeons and scientists to participate in litigation and we do not want them to be the subject of the slightest ill-treatment of any kind.

If an attorney participating in a medical deposition starts to raise their voice, ask insulting questions or otherwise act abusive, we are recommending the physician or any expert take out their cell phone, confirm for everyone in the room and on the record they are going to video the event, then stand the phone up on the table and make a video recording of the deposition. The recording could be saved to the physician’s complete file.

As another approach, attorneys on both sides could openly and informally video the deposition with the caveat they keep the recording in their own file, as all of it would be covered under HIPAA-GINA.

Whatever happens, we feel the request for videotaping should be in the notice of deposition and/or part of the agreement to take a deposition under the IL Rules Governing Practice before the Workers’ Compensation Commission. We suggest doctors include the request in their billing or correspondence confirming the setting of the date/time/cost of the deposition.

We are sure cell phone recordings would save the increased cost of needing a formal videotaped deposition but should also cause the attorneys to stop or end any abusive behavior, as there would be documentation of it. We feel the attorney who has retained the expert to be deposed should caution their opponent not to act in an abusive manner or potentially face sanctions.

Some of the abusive tactics we have seen in depositions are

•              An attorney continually telling the deponent only to answer “if they know” the answer—this is a tactic designed to coach the witness not to answer;

•              Frequent or endless objections to every question;

•              Instructing a witness not to answer important questions;

•              Repeatedly going off the record to delay;

•              Asking the deponent the same question over and over again.

By informally documenting all of this with an inexpensive cell phone video, it would be much easier for a Circuit Court judge or Arbitrator to rule on the behavior of the parties conducting the deposition. We would love to hear the best thoughts and ideas from our readers on this approach to medical or other depositions.

We appreciate your thoughts and comments.