9-7-2015; Chicago, The City That Doesn't Work; Chris Ory is Our New IL WC Arbitrator; NCCI Won't Issue IL WC Advisory Rates This Year But You Can Learn From the Report and much more

Synopsis: Chicago, The City That Doesn’t “Work.”

Editor’s comment: Research indicates equating Chicago and “work” dates back to Mayor Richard Daley the First. When Mayor Richard Daley the Second took over, he financially pointed the City at an iceberg, similar to the iceberg that sank the RMS Titanic. No one thinks of the Titanic or City of Chicago as “sinkable” but we assure you the Titanic is on the bottom of the Atlantic and our fair City may see the same financial fate. At some point in the near future, like Detroit, someone is going to pull the plug on borrowing and the City will have little choice about whether to sink or swim. If the City doesn’t file for actual bankruptcy under current Mayor Rahm Emanuel, it is certain to be out of cash and informally bankrupt in the next several years. The main “process” problem is they simply aren’t addressing the “root cause” of their municipal problems.

Please remember the City of Chicago is actually a government unto itself and like anything else in Illinois/Chicago government, there are also lots of arcane and “hidden” sister governments. These are all major tax-collecting organizations that are all feeding off taxpayers such as the Chicago Public Schools, the Chicago Park District, the Metropolitan Water Reclamation District, Cook County, County Forest Preserves and the Chicago Transit Authority. The mayor of Chicago has a strong role in managing all such governments. All of these government organizations are wildly in debt and seeing continued turmoil. When you have time, take a look at this link for a study from the Chicago Tribune called “Broken Bonds” that indicates how the Chicago Public Schools borrowed and owed $12B by the year 2013. http://apps.chicagotribune.com/bond-debt/#story3 Please note the Chicago Public Schools remain out of money and just borrowed $1.2B more at 8% interest to make ends meet for this school year. They are certain to be broke next year and the year after that and so on until they act to stop what is causing them to be broke. About three decades ago, some idiot in Mayor Richard Daley the Second’s office didn’t give them a single year’s pay raise and in return forever agreed Chicago school teachers could cut their fake pension contributions from 9% to 2%--this past year, that largesse cost Chicago taxpayers about $170M! If you are following the math, this cost to Chicagoans each decade is approximately $2B. Please also remember Chicago taxpayers also “match” the monies the school teachers aren’t actually contributing to their fake gov’t pensions.

Last year, Illinois Policy reported the City of Chicago and its sister government’s combined debt is a whopping $63.2B. With the added borrowing, they are over $65B by now. Of that debt, fake pensions and retiree health care are about 60% or $37B. Chicago’s fake government pensions are among the worst funded in the nation. Morningstar Inc. reported Chicago had the worst funding ratio and the highest per capita pension liabilities among the nation’s largest 25 cities. All that debt has led Moody’s Investors Service to downgrade Chicago’s debt to just three notches above junk status. Chicago’s bonds are now rated the lowest of our nation’s biggest cities, other than Detroit.

If real pension and spending reform are not enacted, higher and higher taxes will be the only way for the city to stave off insolvency for a while. In the end, higher taxes will only hasten out-migration from the City. Nearly 800,000 Chicagoans have left our city since 1992 and lots of folks continue to leave. One of the fascinating aspects of out-migration is most City retirees leave to have their checks sent to them in other states—they know the high taxes and skyrocketing debt they have caused can only be avoided by leaving!

Mayor Rahm Emanuel’s current “chewing-gum-and-baling-wire-fix” for Chicago calls for a $700M increase in property taxes, taxing cab rides and new garbage fees. All of these hundreds of millions of new tax dollars are to catch up and pay for just two fake government pensions—police and fire. His plan does nothing to actually reform the failed “process” that is killing City governments.

Illinois State and Chicago Municipal Workers’ Comp Defense Programs Remain a National Laughing Stock

Earlier this year, Illinois Policy reported the State of Illinois, as an employer is paying $130M or more in state workers comp costs. We are certain the City of Chicago by itself is paying over $100M in annual workers’ comp costs. Our sources indicate the State had over 25,000 pending lost time WC claims and the City has several thousand. Why are those WC claims and costs so stupendously high? Is it so dangerous to work for the State of Illinois or the City of Chicago?

Please note the lawyers on both sides of the City of Chicago WC matrix—Plaintiff and Defense--contribute heavily to the politicians who select them for handling defense claims or tacitly “approve” them to market the City workforce for Petitioner claims. One WC defense firm has had City of Chicago “emergency” WC defense work for over a decade on a continuing no-bid political deal.

Along with that odd political situation, the main reason for failed and foolish government workers comp defense programs for these and many governments remains their lack of commitment to defending questionable accident claims and, if an bona fide accident occurs, keeping the employee engaged and rapidly bringing them back to work at light duty. Your editor worked for the City of Chicago for seven years and I assure you from that experience, our City has hundreds of seated/sedentary jobs that could be used to return injured workers rapidly to gainful employment. We consider it a national disgrace to report these governments could care less—they are happy to have lots of workers stay off on months/years of TTD and possibly “odd lot” total and permanent disability benefits in a fashion that makes most objective observers in this industry upset. We have heard of city workers, like a truck driver or garbage collectors have routine shoulder surgery and then be given a medium-duty lifting restriction and then be allowed to stay off work indefinitely. At some magical point, someone quietly gives them a giant settlement or puts them on another version of a fake government pension—they are provided lifetime “odd lot” total and permanent disability benefits with annual cost of living increases paid for by Illinois business.

Why Do We Have All This Debt? Fake Government Pensions and Poor Workers’ Comp Defense Programs Create Political Puppets

The first national figure to see the problem with government unions was Franklin Delano Roosevelt. He noted the “union-concept” should work fine in the private sector where there is competition but unions in a the public sector are dysfunctional. In our view, the main reason leaders like IL House Speaker Mike Madigan have created these inconceivably high government pensions with lifetime salary and healthcare benefits is to gain strong political puppets from those closest to him—the government workers who are quietly selected via “juice” or political pull. Even firefighters and police officers who aren’t necessarily selected by political pull are compensated so highly, they rapidly develop political allegiance to their political masters and benefactors. All such workers are on government union political email lists like the address lists for this KCB&A Update. The government union participants are regularly told who to support at the polls and who is “bad” for their futures and pensions.

We want our readers to understand you would be wildly loyal to someone who gave you a well-paid job in City or State government that you only have to work in for a relatively short period of time to become vested and then get paid lifetime benefits with regular annual increases and full medical coverage for life. The worst fake government pension of all is the Illinois General Assembly Pension program where an IL legislator only has to work on a part-time basis for four short years to later be entitled to millions in taxpayer dollars. Try to imagine what a political puppet you would be to someone who helped you get such a job with that level of multi-million-dollar lifetime compensation.

For the same reasons, the poorly run WC defense programs for these governments provide rock-star benefits and lifetime medical coverage for anyone who can construct an “injury” in our previously relaxed IL Workers’ Compensation Commission. For decades, State and City of Chicago workers were treated like royalty and allowed to create and maintain claims private sector employers would have screamed about—the reason no one in State or City government has ever complained is the simple mantra—fake government pensions and poorly run WC programs.

The “root cause” of Chicago’s skyrocketing debt is the trade-off of unfundable pension/healthcare benefits to government workers to breed and foster political loyalty.

Join With KCB&A on Our Workers’ Comp Defense Program FOIA Request

We are considering a Freedom of Information Act Request to the City of Chicago to see how badly run things are. We are asking for YOUR help. We want to ask things like

ü  How many employees does the City of Chicago have right now?

ü  How many pending IL WC claims does the City of Chicago have right now?

ü  What was the total amount paid by the City of Chicago for all workers’ comp costs in the last recorded year?

ü  How many WC claims adjusters work for the City of Chicago right now?

ü  How many outside claims adjusters work for the City of Chicago right now?

ü  What is the process to select and hire outside WC claims adjusting companies for the City of Chicago?

ü  How many pro se WC settlements did the City of Chicago enter into with its workers in the last year?

ü  How many pro se WC settlements did the City of Chicago enter into with its workers in the last five years?

ü  How many litigated IL WC claims is the City of Chicago defending right now?

ü  How many lawyers who work for the City of Chicago are defending all such claims?

ü  How many lawyers who don’t work for the City of Chicago but work for outside law firms are defending such claims?

ü  What is the process to select and retain outside defense lawyers to defend the City of Chicago in your workers’ compensation claims?

ü  How much did the City of Chicago pay for workers’ comp settlements in the last recorded year?

ü  How many City of Chicago workers are currently on TTD?

ü  How many City of Chicago workers have been receiving TTD for over one year?

ü  How many City of Chicago workers have been receiving TTD for over five years?

ü  How many City of Chicago workers have been receiving TTD for over ten years?

ü  How many City of Chicago workers are currently receiving lifetime total and permanent workers’ compensation benefits?

ü  Does any City of Chicago Department have a light-duty return to work program?

ü  Does the City of Chicago use any in-house investigators or surveillance providers to surveil its injured workers to insure they aren’t working while on TTD?

ü  Does the City of Chicago use any outside investigators or surveillance providers to surveil its workers to insure they aren’t working while on TTD?

ü  Does the City of Chicago use any WC nurse case managers in its workers’ comp defense program to monitor injured workers and manage their medical care?

ü  Does the City of Chicago use a workers’ comp PPP or preferred provider program to insure low medical reimbursements and limit choice of doctors for its workers?

ü  Does the City of Chicago use any vocational counselors or certified rehab counselors (CRC’s) to get your workers back to work in as timely a fashion as possible?

ü  If so, in how many WC claims are vocational counselors or CRS’s being used?

ü  What is the process to select and hire outside WC vocational counselors or CRC’s for the City of Chicago?

Give us your best questions and we will add them to the list. We will also send the folks who send great questions a $10 Starbucks gift card.

Where Do We Go From Here?

Plan A—Start telling the truth. Try to model the City of Chicago and its sister governments after great municipalities, like Naperville and Glencoe. Find a new and dramatically more affordable approach to post-government retirement programs for new and all future workers. Stop paying for lifetime healthcare coverage for new workers like the private sector. Consider combining police and firefighters into one public safety department where you train police officers to fight fires and firefighters to be police officers. Have the inactive firefighters help the police side of the combined force when they aren’t fighting fires. Start combining other city departments and get rid of duplicative, expensive and redundant leadership. Start using staffing companies so you don’t owe pension and healthcare benefits to such workers.

Plant B—Bankruptcy, either actual bankruptcy or virtual bankruptcy where the City runs out of money and can’t pay bills.

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

            -----------------------------------------------------

Synopsis: Governor Bruce Rauner Appoints Christine Ory as Our Newest IL WC Arbitrator.

Editor’s comment: Last week, Governor Rauner announced he appointed a former Claimant lawyer to become Illinois’ most recent selection for an arbitration post at the IWCC. Ms. Ory who has always been known as “Chris” is an experienced workers’ compensation attorney, working in the field since 1975. She began her career as a claim supervisor at The Hartford before becoming an attorney.

Until last week, Ms. Ory ran her own law practice, which focused solely on workers’ compensation claims. Prior to opening her own firm in 2005, she was a partner and president of Gabric, Millon & Ory, P.C. She began working in private practice in 1986.

Ms. Ory is a member of the IL Workers’ Compensation Lawyers Association, and is the previous chair of the Illinois State Bar Association Workers’ Compensation Committee. In addition, she has experience as an arbitrator in DuPage Circuit Court. Ms. Ory earned her bachelor’s degree in business from North Central College and her law degree from John Marshall Law School. She is a native of Naperville and now lives in Lisle.

We feel confident Chris Ory will be fair and diligent in her work as an arbitrator.

We are certain of at least one more arbitrator appointment coming and possibly two. We aren’t sure how there are going to be enough IL WC claims for all the arbitrators we will soon have running all over our state!

            -----------------------------------------------------

Synopsis: News from NCCI: No IL WC Advisory Rate Filing for 2016.

Editor’s comment: We have always felt the NCCI IL WC advisory rate filing is mildly misleading. In our experience the advisory rates have almost always dropped, dropped and dropped some more. The problem with NCCI advisory WC rates is just that—they are ‘advisory’ and you can’t purchase IL WC insurance at those rates.

This year, the National Council on Compensation Insurance said in its latest State Advisory Forum for Illinois that it will not make an advisory rate and loss-cost filing for 2016. We assure our readers the NCCI statistical analysis is more significant. Overall, the latest WC experience in Illinois is a mixed bag with different components applying offsetting pressure on system costs. An increase in indemnity severity, higher benefit payments because of inflation and a slow-down in claim closures at early reports are putting upward pressure on costs.

At the same time, indemnity claim frequency declined slightly in 2012 and 2013 and medical severity increased at the same rate as inflation, helping to mitigate any cost increases. The two big questions for Illinois involve the lagging economy and pending legislation A standoff between Gov. Bruce Rauner, a Republican, and Democrats in the House and Senate prevented the Illinois General Assembly from passing a state budget by July 1 or even to present. The Governor and Democratic lawmakers are also deadlocked over workers' compensation reforms.

According to NCCI, several positive trends were observed in Illinois last year. Illinois WC direct written premium increased to $2.8 billion from $2.7 billion in 2013. That is a very minimal increase in IL WC insurance premiums—it is a .37% increase by my math.

The accident year 2014 combined loss and expense ratio was 92%, the same as in 2013. Combined ratios in Illinois dropped under $100 in 2012 for the first time in more than a decade.

Average indemnity claim frequency dropped by 1% in policy year 2013, following a 0.6% reduction in 2012 and an 8.5% reduction in 2011.

Illinois averages 999 indemnity claims per 100,000 workers, compared to a national average of 845 and a regional average of 871. Only Iowa, with 1,050 indemnity claims per 100,000 workers, has a higher frequency of lost-time claims.

Overall claim frequency in Illinois, however, is better. Illinois averages 3,054 claims per 100,000 workers, compared to the regional average of 3,811 and the national average of 3,407. No other regional state had fewer claims.

Average indemnity claim severity in Illinois increased 3.4% in 2013 to $33,000 from $31,900, the highest in the region. Iowa was second-highest with average indemnity severity costs of $26,000.

Average medical claim severity also increased by 1.4% to $31,100 in 2013 from $30,700.

Medical severity or average cost per WC claim in Illinois is lower than Indiana, $34,000, and Iowa, $33,000, but higher than Missouri where the average medical cost per indemnity claim is $28,000.

Since 2013, NCCI recommended a cumulative 15.5% reduction in voluntary loss costs and a 7.7% reduction in assigned risk rates. NCCI notes in its State Advisory Forum the "Illinois experience is very similar to that used in a prior Illinois filing." But it will not make a filing this year. If you want the link to the NCCI report, send a reply.

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

8-31-15; IL WC Arbitrators are Getting More Business-Oriented--Can We End Phony Job Searches?; New Law Requires Collateral for High Deductible WC Insurance ; How to Stupid-Proof IME Letters and more

Synopsis: IL WC Arbitrators Get More Business-Oriented--Can We Please, Please Get Rid of Phony Job Searches?

Editor’s comment: We have a reader call last week to confirm she was a CEO in the construction industry and completely fed up with IL WC wage loss differential claims. Her point was simple and crystal-clear—she either had to bring back any injured worker and keep them employed for life or the worker would be coached by a claimant lawyer to start a “never-ending-non-job-search.” In her view, not actually finding a job while appearing to look for them is fairly simple to do. Here are more thoughts for our readers on this issue.

Lots of New Arbitrators in IL WC—They are a Solid and Well-Educated Bunch!

We note the following Arbitrators were reappointed by Governor Rauner with the announcement hitting the web last week: Molly Dearing, Maria Bocanegra, Ketki Steffen, George Andros, Maureen Pulia, Gerald Granada, Nancy Lindsay, Jeffrey Huebsch, Stephen Friedman and Jessica Hegarty.

As we reported last week, Governor Rauner has appointed Douglas Steffenson as a new member of IL WC’s arbitration staff. Our sources tell us a final newbie Arbitrator has been selected and she is a central Illinois defense attorney with some background in a Petitioner firm earlier in her career—we expect her to be announced shortly.

You will note all the new IL WC Arbitrators are veteran litigators and educated attorneys. Many of them but not all come from defense litigation backgrounds representing Illinois businesses and government bodies. On a related note, while it hasn’t been formally announced, it has been informally noted former Arbitrator Peter O’Malley isn’t handling any further IL WC claims. We wish him the best in his new ventures.

So What is The Top of Our Wish List for These Newly Appointed or Reappointed Arbitrators?

As we outline above, one thing driving the IL business community nuts and driving high WC costs in this state are “never-ending-non-job-search” claims! We agree employers should first try to return an injured worker to work with accommodations within their company whenever possible. We also agree that comes with its own challenges as some injured workers blame their injuries or disabilities on their employer and then actively or passively want special treatment or accommodation. When/if the employer gets sick of a whining worker and lets them go, gigantic WC exposure kicks in.

Assuming an injured worker with restrictions can’t return to work at the same company for whatever reason, what we are seeing is lots of Petitioners firms that readily put any claimant with any kind of work restriction into a weekly and never-ending-non-job-search. The systems for that concept appear to be duplicated in too many pending claims to be a coincidence. The overall goal is to allow the Petitioner/Plaintiff attorney prove the worker has applied and applied and applied some more but mystically can’t find work within restrictions.

We consider IL WC rulings like these to be hotly controversial:

·         We saw an IL WC Appellate Court ruling where a worker supposedly looked for work with the continuing assistance of two different professional vocational counselors for four years without finding a job—please note the workers’ restrictions were medium-duty.

·         Last week, we reported a claim where a worker who also had medium-duty restrictions supposedly applied for a new job with over 1,000 employers without finding work. The Arbitrator and Commission awarded lifetime permanent and total disability benefits and the worker will get as much as $74,759.73 annually on a tax-free basis plus lifetime COLA increases paid by the IL WC Rate Adjustment Fund.

In other states outside Illinois, the word for such behavior is “malingering.”

Please note all workers who are participating in post-injury vocational counseling are also receiving what is called “maintenance” and is the equivalent of temporary total disability. In our view when a worker is participating in a never-ending-non-job-search, they may be accused of stealing that money from their employer or the insurance carrier/TPA.

Why Do We Feel IL WC Arbitrators Have to Pull The Plug on Such Controversial Claims?

Well, they are the first level in managing WC status calls and hearings and thereby uniquely positioned. To some extent, they can easily control how the whole litigated claim will develop. If they allow a claimant to fiddle-fool around in not-actually-voc-rehab for months and years, claimants are certain to do so. If the Arbitrators tell claimants and their lawyers to stop the shenanigans and actually find jobs or their maintenance benefits are going to be cut after a full hearing, benefits may be stopped. Petitioner attorneys are going to tell their clients to actually find jobs or file appeals of the Arbitrator’s ruling and wait for the administrative review process at the IWCC to run its course. Or the claims will settle somewhere in the middle.

What we feel happens when Arbitrators don’t take strong action to stop months and years of malingering and phony job searches is they become part and parcel of the fake process. It is our hope the Arbitrators can set pre-trials and talk to all parties—the attorneys on both sides along with Claimant and representatives of the employer or insurance carrier/TPA. We want our newly reappointed and just-appointed Arbitrators to push hard for folks to actually locate work and get off the dole.

By doing so, the Illinois workers’ comp system can get rid of fake “odd-lot” total and permanent claims that our legislature never created, as the words “odd-lot” aren’t in the IL WC Act. We also hate to see sky-high wage loss differential claims and settlements. We assure our readers these sorts of claims are making the cost of constructing any road, building, bridge or other structure very expensive in our state. Rather than get TPD or high wage loss differential awards and settlements, workers with any modicum of intelligence, motivation and a medium or even light duty capabilities can and should be working in decent jobs. Most logistics jobs are seated work but the employers have headsets and other devices to allow workers to stand up and sit down during the course of the work shift.

Illinois and Chicago is a National Logistics Hub and Logistics is Where There are Lots of Light and Medium Duty Jobs

Chicago is a leader in logistics and is an excellent base from which businesses can ship their goods. We are also well-placed for businesses dependent on getting products delivered to them on a timely basis. Chicago first established itself as a major transportation hub in the first half of the 20th century when it was the undisputed railroad center of the United States. Although railroads have lost ground to other forms of transportation in the intervening years, they remain an important component of the overall intermodal equation. Chicago’s transportation assets also go far beyond the railroads. Our biggest city’s location on the shores of Lake Michigan and along the banks of the Chicago and Calumet rivers give Chicago easy access to a network of inland waterways, as well as access to world markets via the Great Lakes and St. Lawrence Seaway. Chicago’s O’Hare Airport ranks among the top US airports in terms of cargo throughput, and the metro area’s extensive highway structure makes it a major center for over-the-road trucks and other transportation. An additional factor in Chicago’s logistics primacy is a solid intermodal network that makes it easy to move goods seamlessly from one mode of transportation to another.

We point out trucking logistics jobs are open right now all across our region and pay very well. Ambulance logistics jobs are a step up from trucking logistics in terms of pay and continually open The highest paid logistics jobs for seated work with about four months of training are 911 call-in desks. Logistics jobs are constantly opening all the time, as they are 24/7/365 occupations and have regular turnover. After a short period of training, an injured worker can start part-time and build up to full time.

Summary—Where We Are Going From Here?

The defense team at KC&BA is going to start watching and we hope our readers will join with us in stopping never-ending-job-search claims. What we are looking for are claims where an IL worker has medium or light restrictions and is searching for and not finding work for over six months.  If you see such a claim, please send it along and we will let our other readers know about it. While we don’t know if they actually read it, please note Governor Rauner and his staff are among our readership.

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

            -----------------------------------------------------

Synopsis: New IL Law Now Requires Collateral To “Insure” Large-Deductible WC Insurance Policies

Editor’s comment: IL Senate Bill 1805 is the country’s first law requiring collateral for large or high-deductible WC insurance policies. The law may be the first in the nation of any type to rein in the risks of policies with deductibles as high as $2 billion. The main concern is staffing or PEO companies who handle functions like

·         Human resources for other businesses

·         Do the hiring/firing of workers and

·         Obtain and manage workers’ compensation insurance and claims coverage.

If such companies become insolvent, they leave the state’s guaranty fund to pay and then assess insurance companies for the losses. It is also possible companies with a net worth over $25M could get stuck with such uninsured costs.

This new legislation requires insurance companies that are rated below A- and do not have at least $200 million in surplus to require the policyholder to post collateral to cover the deductible should it become insolventThe insurer must either post a surety bond with sufficient financial strength, an irrevocable letter of credit from a financial institution with an office physically in Illinois or a combination of cash and securities held in trust for the express purpose of securing the policyholders under a large-deductible agreement. The assets of the trust cannot be comingled.

In Illinois, the collateral requirements will kick in for deductibles far less than seven digits—they may apply to deductibles as low as $100K. A spokesman for the Illinois Department of Insurance indicated they will publish a bulletin shortly setting out their new policies under the law. The spokesman said the new Illinois law leaves those specifics to the state Department of Insurance. The spokesman indicated the need for tighter regulations is particularly acute for the workers’ compensation industry where claims are sometimes paid out over decades. The protection must remain in place even if the employer goes out of business.

Governor Rauner liked and supported Senate Bill 1805 according to his staff. Their official statement is SB 1805 protects consumers and insurance companies from the actions of insurance companies who write policies without sufficient collateral for the full exposure of those claims.

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

            --------------------------------------------------------

Synopsis: How to Stupid-Proof IMEs in Illinois and Everywhere Else in the U.S.

Editor’s comment: When we have authority, we set lots of independent medical exams or what are also called in IL WC “Section 12 exams”, as do our clients/adjusters and others. In litigated claims, as attorneys with ethical restrictions, we can’t reach out directly to Claimants/Petitioners so the IME scheduling letters are sent to opposing counsels with appropriate mileage expense and confirmation of the date/time of the exam.

When a Claimant fails to show for the IME, the standard form response from all Petitioner/Plaintiff lawyers is “we-didn’t-know-about-that-exam-you-never-told-us.” When you then send your fax or email confirmation documenting the correspondence was transmitted via snail mail and electronically, some lawyers will still maintain they didn’t get it. Either way, you are then faced with a whopping no-show fee to battle over and an expert physician who may be wondering why they have to put up with all the tomfoolery of handling IMEs.

Our suggestion is to add a sentence to your IME confirmation letters when sent to opposing counsel:

Please confirm receipt of this correspondence and your contact with your client to confirm they are aware of the IME setting and will attend. We need this confirmation on [insert date] or we will cancel the exam and treat this as a failed appointment and potentially terminate benefits.

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

8-25-2015; Will IL WC Lawyers Get Aced Out By Their Own Actions?; Join Jay Shattuck in His Grass Root WC Reform Efforts; New Arbitrator Douglas Steffenson Selected by Governor Rauner and much more

Synopsis: Will IL WC Lawyers Get Aced Out by Their Own Actions?

Editor’s comment: We are seeing shocking developments on many fronts that are scary to longtime WC veterans. We are worried some sectors of the Petitioner’s bar want any work problem to be globally covered under workers’ compensation regardless of what the legislation might say. As we have told our readers there are two things that come with global coverage of anything that happens as work, if you call it all an “injury.”

Ø  The first thing that comes from global and indefensible coverage under workers’ comp of any medical problem that occurs at work is staggeringly high claim costs. If there is one thing that will drive every major and minor business from our state, it is global WC coverage of every sore [insert body part].

Ø  The second thing that comes from global coverage under work comp of any medical problem that occurs at work is going to be the end of lawyers on either side, hearing officers and any litigation. There is very little need for lawyer to litigate anything in such a nutty system—insurance carriers and TPA’s will simply set up payment schedules then accept, price and pay everything, like they do in group health claims.

On the Legislative Front:

IL Senate Bill 162 has been passed by the IL Senate and is pending before the IL House as you read this. We assume this bill was designed to scare the business community and, sadly that concept is working. We assure our readers Senate Bill 162 provides global and indefensible coverage of anything a worker does when the worker is off the premises of their employer and is acting “reasonably.” What in tarnation does that mean?

In our view, a flight attendant who becomes lonely while on the road and has a romantic encounter and becomes pregnant would have a work-related pregnancy and be entitled to full WC benefits during the pregnancy and perhaps after under the provisions of the new and poorly thought-out IL Senate bill. A truck driver who smokes cigarettes like a chimney and gets lung cancer from the bad habit would clearly be entitled to all care under work comp. If you send your admin to get both of you lunch across the street and he/she trips on their own feet, you would be on the hook for WC benefits.

We vote with sticking with the traditional analysis of AOO/ICO or “arising out of and in the course of” already in the IL WC Act. Please note Senate Bill 162 is not yet law—it has been passed by one of the two houses of our IL General Assembly.

On the Judicial Front:

When did turning in a chair or walking on a normal staircase or putting on a winter coat become an IL WC “accidental injury?” The answer to this sad IL WC trivia question is—last week.

In their controversial ruling in Adcock v. IWCC, the Illinois Appellate Court, WC Division reversed the IWCC denial (and in our view, years of IL Supreme Court precedents) and ruled a welder who felt pain in his knee rolling on a wheeled stool was entitled to IL WC benefits. The ruling noted moving around on a wheeled stool is a "neutral risk of daily living" that anyone might encounter anywhere. The decision indicated “work” caused the welder to confront a greater risk of harm than an ordinary member of the general public would because of the various times he had to perform his job duties during a normal shift. The majority ruled it "should not award benefits for injuries caused by everyday activities like walking, bending, or turning, even if an employee was ordered or instructed to perform those activities as part of his job duties, unless the employee’s job required him to perform those activities more frequently than members of the general public or in a manner that increased the risk."

In our view, this ruling creates global and indefensible WC coverage for “repetitive working” claims. We don’t feel lawyers will be needed to litigate such claims and Arbitrators won’t be needed to conduct hearings for such claims and we won’t need reviewing courts to hear appeals. We agree with most readers our term “repetitive working” is intentionally redundant. Please note anyone who has a job performs normal activities at work more than in their daily lives. Duh! That is one of the reasons we call it “work” because you do some things over and over again. Work by its definition involves repetition.

From an academic perspective, please note the nomenclature used by almost all of our hearing officers at every level of this tortuous claim refer to the event of unexpected knee dysfunction as an “injury.” In our view, once you characterize “repetitive working” problems as an “injury,” the employer has lost and global WC coverage is present. We again assert global coverage of any event of physical dysfunction as a work-related injury strips out all defenses to any claim of accident. If there are no defenses, lawyers, hearing officers and judges aren’t needed.

The facts of the claim are simple. Petitioner Adcock worked as a welder for Knaak Manufacturing. After he initially injured his right knee on the job, his doctor imposed limitations on his ability to twist, kneel or walk extensively. In order to accommodate his restrictions, Knaak provided him with a wheeled stool so he could move about his workspace in a seated position. Basically he had to stand before he started work and arise when he stopped. Claimant testified he was constantly moving along the length of the workstation on the stool, swiveling from side-to-side, as he worked. We salute him for describing his work but don’t view such work activities as physically dangerous or obviously injurious.

Claimant asserted he was unable to maneuver the stool using his right leg because of his knee injury to that leg, so he always had to use his left leg to propel the chair. Petitioner said he felt his left knee "pop" while he was twisting at his work station in May 2010. His doctors later determined he had torn the meniscus in his left or opposite knee. We do not see the torsion turn of the joint in this record that would cause a meniscal rupture.

The Arbitrator ruled the event was compensable. The Workers' Compensation Commission reversed the Arbitrator, specifically finding "(t)he act of turning, even in a chair, is an activity of everyday life," so it was "a hazard to which the employee would have been equally exposed apart from the employment." The Commission ruling is consistent with the landmark decisions in Board of Trustees of the University of Illinois; Greater Peoria Mass Transit District; Hansel & Gretel Day Care Center by our Supreme and Appellate Courts.

The IL Appellate Court, WC Division reversed on the “manifest weight of the evidence” standard. We point out the last high court ruling on this area of law was Sisbro v. IWCC where our IL Supreme Court cautioned this interim reviewing court not to reverse the IWCC on the manifest weight of the evidence and supplant the IWCC’s decision with their own view of the facts. Since the Sisbro ruling was issued by our highest court we have seen 7-10 WC appellate rulings that reverse IWCC denials to insure benefits are awarded. We have yet to see a single appellate ruling where benefits awarded by the IWCC were reversed to see a denial by our penultimate reviewing court.

In our view, this new ruling sets out the “activist” judicial plan to make any and every action at work into an “injury” and thereby compensable—all you have to do is say you did the “activity of daily life” twice or maybe three times a shift. When that evidence is in the record, the claim becomes magically and indefensibly compensable. Our overall point is clear—work isn’t supposed to be an “injury.” If we are going to make “work” into a compensable injury, we are going to see skyrocketing workers’ comp costs and a greatly decreased need for lawyers and hearing officers.

On the Administrative Front:

We caution our new Governor and all our readers we may be looking at the first salvo in a new battlefield. The IWCC is getting mildly conservative or somewhat business friendly, as indicated by their own statistics in their most recent annual report. In contrast, the IL WC  Appellate Court remains strongly supported by and amenable to the theories espoused by the Illinois Trial Lawyers Ass’n. We may see lots of IWCC rulings reversed moving forward by the “activist” five-member panel composed of Appellate Court justices from the five appellate districts in this state. We may also see them judicially dismantle and disintegrate the concept of “major contributing cause” currently espoused by our Governor and his supporters as an IL work comp reform.

Our thoughts for our Governor and everyone who is concerned about an Illinois “turnaround” is to point out our IL Supreme Court designates who sits on the IL Appellate Court, WC Division. The Supreme Court isn’t composed of all Democrats. Our highest court has three Republican members. In contrast, the IL Appellate Court, Workers’ Comp Division has no justice who has filed a single dissent on behalf of the interests of Illinois business in several decades. Most corporate CEO’s and government leaders have no idea how these justices are selected and get to make these crucial decisions that have a lasting impact on the IL WC matrix.

We suggest our Governor reach out to IL Supreme Chief Justice Rita Garman and discuss these issues and see if there can be a member or two on this appellate panel who match the WC goals currently being presented to our legislature. If something like that doesn’t happen, we assume some ITLA member may come up with some sort of constitutional challenge to any WC reform legislation and such a challenge may fall on friendly ears and go nowhere for years to come.

                ----------------------------------------------------

Synopsis: if You Truly Care about WC Reform in IL, Consider Joining the IL State Chamber and Their Grass Roots Efforts, As Outlined by Jay Shattuck.

Editor’s comment: Shattuck & Associates Consulting, Inc. has helped develop a grassroots guide for Illinois businesses that want to contact their legislators and urge them to approve meaningful workers' compensation reform. A copy of the Illinois Workers' Compensation Reform Action Packet is available by contacting Jay Shattuck at the phone number or email address below. If you care about rising IL WC costs, contacting your legislator takes about 5 minutes, and this packet provides all the resources you will need to make the call.

Jay points out since 2005, the Illinois General Assembly has jacked up workers' compensation costs giving Illinois the 7th highest workers' compensation costs in the country which has helped drive companies and families out of Illinois. He wants you to take five minutes and let your legislators know that:

·         Workers' compensation should only cover injuries that are primarily caused by your workplace; and

·         Ask your legislators why they require IL employers to pay for 100% of an injury that was only 1% caused at work.

We agree with Jay and have reported the Illinois General Assembly has been discussing ineffective, short-sighted changes to Illinois' workers' compensation reform all session. As we report above, some of these changes aren’t “reforms” at all but will even further boost IL WC costs. Governor Bruce Rauner has been promoting real reform to Illinois' workers' compensation system that would actually drive WC costs down and still protect injured workers whose injuries were primarily caused by their work.

We assure you IL legislators are seeking examples of how the workers' compensation system has been unfair to your business. If you have an example of a claim that you believe was unfair to your company, and you would like to have it shared as information on the House or Senate floor, please pass them on to Jay Shattuck. He will maintain the confidentiality of your company and not release the name of the company or worker, just the facts of the workers' compensation claim.

If you have any questions about contacting your legislator, the WC Reform Action Packet, or would like to pass on an example of an unfair WC claim, contact Jay Shattuck at either 217-544-5490 or email jaydeeshattuck@gmail.com

            -----------------------------------------------------

Synopsis: Illinois Gov. Bruce Rauner has appointed Douglas Steffenson, a workers' compensation defense attorney as the newest arbitrator with the IL Workers' Compensation Commission.

Editor’s comment: It is mildly unusual to hear this news from a national news source and not from the IWCC’s otherwise informative website. Mr. Steffenson was an attorney with a major Chicago-based workers' compensation defense firm and worked with the firm for 15 years and has more than 24 years of legal experience. He was also an assistant state’s attorney for Cook County from 1991-97. It appears from our research he was also licensed to practice in Iowa. Aside from workers' compensation law, Steffenson has experience with employer liability law. He holds a law degree from DePaul University.

We are confident new Arbitrator Steffenson is expected to be a business-friendly hearing officer but we will have to see. We are told there may be at least two more Arbitrators appointed in the near future.