2-8-2016: Get Shawn Biery's New/Corrected 2016 IL WC Rate Sheet; Consider Sharpline and KCB&A for All Your MSA - Settlement Needs; Lilia Picazo, JD Analyzes New ADA Safe Harbor Ruling and more

Synopsis: In What is Becoming a New and Mildly Irritating Administrative Trend, One Day after We Announced SHAWN BIERY’S NEW IL WC RATE SHEETS WERE HERE, the IWCC Posts a Change/Correction!

Editor’s comment: We now have the even newer 2016 IL WC Rate Sheet. You still need to check your PPD Reserves which need retroactive updating when the new rates landed. If you already requested the earlier version—you will get the most newly updated form to match the IWCC’s corrected benefits information. To get a complimentary copy, simply email Shawn at sbiery@keefe-law.com and/or Marissa at mpatel@keefe-law.com for Shawn R. Biery’s Updated IL WC Rate-Sheet!

Editor’s comment: The IL WC statutory maximum PPD rate was lowered to $755.25. When it was published, this rate changed retroactively from July 1, 2015 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now, your reserves are wrong. If you have a claim with a date of loss after July 2015 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. If this isn’t clear, send a reply.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet. AGAIN—If you want just one or a dozen or more, simply reply to Shawn at sbiery@keefe-law.com and/or Marissa at mpatel@keefe-law.com  They will get a copy routed to you before they raise the rates again! Please confirm your mailing address if you would like laminated copies sent to your home or office!

Let’s all hope the hard-working folks at the IL WC Commission can double, triple and quadruple-check the changes next year before posting to avoid this unnecessary confusion and not highlight the fact all these rates change/increase constantly!

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Synopsis: If Medicare Issues are Bogging Down Your WC settlements, Save Pressure Time by contacting KCBA or the experts at our MSA partner Sharpline Allocations To End/Resolve Litigation and Protect Medicare’s Interests.

Editor’s comment: The most basic strategies are sometimes the best. As most readers are aware, Shawn Biery and Matt Ignoffo are the resident MSA certification holders at KCBA. Many of you are also aware the great folks at Sharpline Allocations has become a valuable partner in our efforts. From providing rapid analysis and prompt conditional payment checks to preparing calculations and utilizing the electronic submission route, Sharpline over the past several years has augmented our already strong MSA offering to clients.

From the litigation standpoint, we review every case which ripens for settlement to confirm and protect Medicare’s interests. Sometimes it is as simple as verification of the final MMI and end of care with confirmation from the treating MD—or the fully disputed language which confirms the issues are not likely WC and should not impact Medicare.

And then there are those cases where future medical care and billing may be a concern. For those, KCBA utilizes the assistance of Sharpline Allocations to identify potential values and analyze the risk. We also:

• Identify unnecessary or inappropriate care recommendations;

• Identify changes in implementation which drive cost savings without impacting care;

• Identify meds which can be reduced via programs which specialize in weaning certain meds which can save hundreds of thousands over the life of a future projection;

• Identifying Rx changes which do not impact care, such as simply changing an Rx from one 80 mg tab to two 40 mg tabs which can sometimes save thousands per year;

• Identify meds being prescribed off-label for purposes not covered by Medicare—thus excluding them from payment criteria for a Medicare-coverage.

All of these tools can be used to minimize the impact on your settlement and can be done in rapid fashion.

And Sharpline does more!!! While KCBA focuses on the endgame MSA issues with litigated files moving toward closure, Sharpline Allocations also performs a variety of tasks, including but not limited to:

• File reviews and Pre-MSAs to identify cost-drivers for MSAs and to implement plans of action to limit MSA costs

• MSAs, Zero MSAs and Zero Opinion Letters

• Submittals to CMS for approval through the online portal (WCMSAP)

• Medicare Conditional Payment research, dispute and lien resolution

• Social Security Disability Eligibility checks and requests for SSD applications and file materials to obtain additional ammunition for your claims

• Medical Cost Projections to set reserves and assist in settlement discussions

As always, for any questions regarding Medicare Set-Asides, CMS review thresholds or other Medicare related issues with regard to your settlements, you can reach Shawn R Biery, J.D. MSCC via email at sbiery@keefe-law.com  or via phone at 312-756-3701 or you can also contact our other MSA certified attorney Matt Ignoffo, J.D. MSCC via email at mignoffo@keefe-law.com  or via phone at 312-756-3729.

You can also reach Courtney Whistler at Sharpline Allocations via email at cwhistler@sharplineallocations.com or phone at 214.929.2350 or Wendy Schreck at Sharpline Allocations via email at wschreck@sharplineallocations.com.

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Synopsis: Big Victory for U.S. Employers! Federal District Court Judge Issued a Ruling Halting the EEOC’s Attempts to Overreach the ADA’s “Safe Harbor”. Analysis by Lilia Picazo, J.D.

Editor’s Comment: In the recent EEOC v. Flambeau, Inc. decision, the United States District Court for the Western District of Wisconsin issued a ruling reasoning the ADA “safe harbor” provision, which provides an exemption for activities related to the administration of a bona fide health benefit plan, allowed Defendant Flambeau to require employees to complete a health risk assessment (HRA) and undergo biometric screening as a condition of enrollment in Flambeau’s self-funded group health plan.

According to the undisputed facts laid out in the decision, Defendant Flambeau offered their employees various employee benefits, including participation in its self-funded and self-insured health insurance plan. Employee participation in the health insurance plan was neither required nor a condition of employment. In 2011, Flambeau established a wellness program. Each participating employee was required to complete a HRA questionnaire and biometric screening test (similar to a routine physical examination) as a prerequisite to participation in Flambeau's health insurance plan. Flambeau used the aggregated data to design a group health plan, set participants’ premium levels, adjust co-pays for preventative exams and certain prescription drugs and to create programs intended to promote health and fitness. In its first year of inception, Flambeau gave a $600 credit to employees who participated in the wellness program and completed both the HRA and biometric screening test. By the 2012 and 2013 benefit years, Flambeau eliminated the $600 credit and implemented a policy offering health insurance only to employees who completed the wellness program components.

In 2012, an employee of Flambeau failed to complete the required wellness program components by the established deadline resulting in the discontinuance of his coverage for the 2012 benefit plan year. Flambeau offered the employee COBRA coverage for that year. In a separate grievance and complaint filed with the Department of Labor, the employee’s coverage was reinstated retroactive to the first day of the 2012 plan year upon agreement of completion of the required HRA and screening test. Subsequently, the EEOC in its infinite ability to issue lawsuits against employers, filed suit in September 2014 alleging Flambeau’s health insurance plan’s testing requirement violated the American with Disabilities Act (ADA), which they argue prohibits medical examinations that are not job-related and consistent with business necessity. The EEOC further argued Flambeau violated the ADA by requiring employees to complete the wellness program components prior to enrolling in its health insurance program. In response, Flambeau argued the wellness program requirement prior to enrollment in its health insurance plan was protected by the ADA’s “safe harbor” exception under the Act, which provides that wellness requirements are considered terms in an employer health plan and used to help the employer underwrite, classify and administer health insurance risks.

It’s important to note the EEOC did not issue proposed guidelines that indicated what it considered a compliant wellness program under the ADA and GINA until April 2015 and October 2015, respectively.

On December 31, 2015, Federal District Court Judge Barbara B. Crabb rejected the EEOC’s motion, granted Flambeau’s motion and entered judgment in favor of the company reasoning the company’s wellness program components fell within the ADA’s “safe harbor” exception as set forth in Section 12201 (c)(2). Three key components from Judge Crabb’s ruling:

1.    Section 12201(c)(2) applies so long as the wellness program provisions are terms in an employer’s health benefit plan. The Court held Flambeau’s wellness program was undoubtedly a “term” of its health insurance benefit plan because it required employees to complete the wellness program components before they could enroll in the health plan. The court noted the company distributed handouts to its employees informing them of the wellness program requirement and went as far as scheduling the HRA and biometric screening tests to ensure they would coincide with the health plan’s enrollment period.

2.    The wellness program requirement must be based on underwriting risks, classifying risks, or administration of such risks: The court held the wellness program requirement was clearly intended to assist Flambeau with underwriting, classifying or administering risks associated with its health insurance plan because its consultants used the aggregated data gathered through the HRA and biometric screening test to classify participants’ health risks and set premium plans, calculate its projected insurance costs for the benefit year, and adjust co-pays for preventative care and medications.

3.    The wellness program component requirement cannot be used as a subterfuge to evade the purposes of the ADA: The Court held there was no subterfuge in this case because all employees who opted to participate in the company’s health insurance plan were required to complete the wellness program requirements prior to enrollment, regardless of their disability status. The Court noted there was no evidence the company used the aggregated data to make disability-related distinctions with respect to employees’ benefits.

While it is likely the EEOC will appeal the District Court’s decision, we note the ruling is a victory for U.S. employers who are already faced with the challenging task of designing wellness programs that fit within the EEOC’s guidelines of compliant wellness programs under the ADA.

Moving forward, we strongly recommend our business clients, readers and other employers continue to monitor the developments in this case. We also encourage employers to assess their established wellness programs to ensure compliance under the EEOC’s current proposed regulations. While the proposed regulations are currently non-binding, we doubt the EEOC will sue you for complying with their proposed regulations.

This article was researched and written by Lilia Picazo, J.D. You can reach Lilia 24/7/365 for questions at lpicazo@keefe-law.com

2-1-2016; Look At ITLA's Spin on Current IL WC Reform; Shawn Biery's New IL WC Rate Sheet is Out--Want A Bunch?; Why Every U.S. Taxpayer Should Consider 'Firing' Your Fire Dep't to Save Millions and..

Synopsis: Breaking News—Here is the IL Trial Lawyers Association’s Most Recent Spin on Governor Rauner’s WC Proposals.

Editor’s comment: See below; we note the phenomenally wealthy Plaintiff bar appears to be making fun of the phenomenally wealthy supporters of the Governor. For our readers, we feel this ongoing IL WC reform debate remains important to claims handlers and risk managers. We want to add our thoughts that

·         IL WC medical reimbursements are already significantlylower than Indiana and many other states;

·         We are certain IL Work Comp coverage, TTD and PPD awards will be lower under our new, professional and proficient Arbitrators and Commissioners so Governor Rauner’s WC reform concepts aren’t worth fighting over in the larger context of our state’s many crises;

·         When the Oregon WC Premium Ratings come out later this year, we fully expect to see additional improvement in IL WC premium costs relative to our sister states;

·         There is literally no reason to follow ITLA’s whiny “regulation of insurance company profits,” just like there is no discernable reason to regulate the profits of ITLA members;

·         We hope Governor Rauner re-focuses on reining in fake government pensions and combining/consolidating state departments and automating hundreds of clunky and duplicative state government functions, like our toll roads.

This came from the ITLA president and is being republished without editing.

It’s Past Time for Gov. Rauner to Govern: Cutting Benefits for Workers Injured on the Job and Compensation for People Harmed by Corporate Wrongdoing Won’t Bring Business or Revenue to Illinois

Statement from Illinois Trial Lawyer Ass’n President Perry Browder - Dateline: January 27, 2016

A legal system fair to the interests of individuals and businesses not only ensures a level playing field for both parties – it also protects the taxpayer. But if Gov. Bruce Rauner has his way, the burden of caring for injured persons would shift from the companies that caused the harm to the taxpayers.

In his State of the State address today, Gov. Rauner renewed his attack on our courts and his demand that lawmakers roll back the financial safeguards that our state’s workers’ compensation and tort systems afford to the vast majority of Illinoisans.

Across Illinois, seniors, individuals with disabilities and other vulnerable citizens are going without vital services because Gov. Rauner is holding the budget hostage until he succeeds in upending our legal system – among other items in his agenda. Yet his proposals relating to workers’ compensation and tort cases would do nothing to improve the state’s financial standing or fund the state services necessary to support individuals in need of critical assistance.

The governor and his big business and insurance supporters continue their push to undercut the rights of injured workers in order to maximize insurance industry profits. They ignore the fact that the 2011 rewrite of the workers’ compensation system – those changes sought by the business community, and which were largely to the detriment of men and women injured on the job – is producing the desired result: lower costs for insurance companies and employers.

As the Illinois Workers’ Compensation Commission stated in its FY 2014 report, Illinois employers experienced the largest decrease in workers’ comp premiums among all 50 states. And the commission anticipates further savings once the full effects of the 2011 workers’ comp overhaul are felt.

No matter how many benefits are cut, medical reimbursements are lowered, and claims are denied, the state’s businesses won’t see additional savings without our leaders addressing the promises previously broken by the insurance industry. Strictly regulating insurance premiums, not further curtailing injured workers’ rights, is the key to managing employers’ workers’ compensation costs.

The governor also seeks to squelch the civil justice system’s authority to hold wrongdoers accountable in an effort to shield the profits of his big business allies – at the expense of those who suffer due to their malfeasance and the taxpayers who would be left holding the bill.

More than 70 percent of court actions in Illinois are initiated by businesses suing other businesses or individuals for money, but the governor has not proposed limiting the access of corporations, banks and investment companies to the court system. The fact is that very few injured Americans ever file lawsuits. In Illinois, the number of civil cases filed has dropped 33 percent from 2010 to 2014.

Eroding the constitutional rights of citizens to access the courts that their tax dollars fund would send the message that our civil justice system is mainly for the use of corporate actors and the wealthy, rather than something that belongs to everyone, regardless of their means.

Gov. Rauner should abandon his campaign to enlist our legal system into the exclusive service of his phenomenally wealthy supporters, and instead focus on real, meaningful solutions to fix our state’s problems. The state budget cannot be balanced on the backs of those injured due to no fault of their own.

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

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Synopsis: With apologies to “The Jerk”…..THE NEW IL WC RATE SHEETS ARE HERE!!!, THE NEW IL WC RATE SHEETS ARE HERE!!! Illinois WC Rates Jump Again and Your PPD Reserves Need Retroactive Updating. Email Shawn at sbiery@keefe-law.com and/or Marissa at mpatel@keefe-law.com to Get a Free and Complimentary Hard Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

Editor’s comment: We remain disappointed to continue to watch the growth of IL WC rates. Starting in the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, our WC rates continue to climb and climb some more.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now a whopping $769.28. When it was published, this rate changed retroactively from July 1, 2015 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now, your reserves are wrong. If you have a claim with a date of loss after July 2015 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. If this isn’t clear, send a reply.

The current TTD weekly maximum has risen to $1,398.23. A worker has to make over $2,097.35 per week or $109,062.20 per year to hit the new IL WC maximum TTD rate. Does any state in the United States have a TTD maximum that high?

The new IL WC minimum death benefit is 25 years of compensation or $524.34 per week x 52 weeks in a year x 25 years or $681,642.00! The new maximum IL WC death benefit is $1,398.23 times 52 weeks times 25 years or a lofty $1,817,699.00 plus burial benefits of $8K. IL WC death benefits also come with annual COLA increases.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet. AGAIN—If you want just one or a dozen or more, simply reply to Shawn at sbiery@keefe-law.com and/or Marissa at mpatel@keefe-law.com  They will get a copy routed to you before they raise the rates again! Please confirm your mailing address if you would like laminated copies sent to your home or office!

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Synopsis: Smoke and Mirrors--Why Every U.S. Taxpayer Should Consider ‘Firing’ Your Local Fire Department.

Editor’s comment: We have basically seen enough with the antiquated concept of your Village/City/Municipality needing a separate police department and a fire department and emergency medical technicians. The cost of doing for innocent U.S. taxpayers so has gotten outrageous, as you may see below. We suggest our entire country try to see the light on ending the concept of having separate police and fire departments at an enormous and spiraling cost.

Do We Hate Firefighters?

Heck, no. Firefighters save lives every day of every year. They are men and women that are part of your local government who protect you every day and in every way. Our problem isn’t with their brave services, sweat and disdain for danger they bring to the job every day. Our problem is with keeping your local government effective and efficient. Consider consolidating your public safety officers into one department to avoid having firefighters sitting around and doing nothing and they taking fake pensions at gigantic cost to you.

So, Why Do You Feel We Need to Consider ‘Firing” Firefighters?

Well, in IL and lots of states, firefighter and their unions have fostered enough benefit fantasies upon taxpayers to fill a Mickey Mouse© cartoon. Keep reading. In short, you and I and our houses and commercial buildings are all built, inspected and expected to comply with about 500+ parameters of uniform fire/building codes. We are telling our readers and anyone who will listen, the codes and code enforcement are working! If your local properties don’t comply with the codes, they are written up, fined and forced to comply. In short, the number of ‘real’ or major fires in your entire metro area are about once or twice a year at a reasonable cost. Stuff just isn’t burning down the way it did when your grandparents were kids. One urban legend we don’t know or understand is local firefighters simply don’t have to work and endanger their lives in the fashion they did when your parents and grandparents were young. Tell us/write us to let us know the last time you heard of a major building fire in the area around your business or home. We are telling you that your local firefighters are preying on your grandparent’s experiences and hoping you and I are stupid enough not to investigate further.

Who Will Fight The Occasional Fire in Your Village?

We have told our readers in the past, the Village of Glencoe, IL has a model for the entire U.S. They merged their police, fire and EMTs into a single “Public Safety” Department way back in 1954. They don’t have firefighters sitting around a fire station doing nothing. When the need arises, Public Safety officers act as firefighters to get the equipment they need and put out fires or rapidly respond to medical emergencies. The Glencoe Public Safety Department is a full-service, combined public safety agency. Public Safety officers are fully cross-trained to be police officers, firefighters and emergency medical technicians who provide police, fire and emergency medical services when needed. Glencoe was listed as one of the top 50 Safest Cities in IL.

Well, I Looked and It Does Appear Our Local Firefighters Are Going Out on Lots of Calls, Right?

Well, the going-out-on-calls-thing is one of the most irritating and silly things we see firefighters do. If an older civilian guy or gal in a restaurant has a cardiac event/heart attack and the restaurant manager calls the fire department, they may send an ambulance, a separate pumper truck and sometimes they will also send a hook and ladder truck. Why are they wasting the fuel to send three vehicles? In our view, they are hoping you are stupid. They will send three vehicles, two to them non-medical on a medical-only call to make you think the firefighters have stuff to do when they don’t.

Do the math, people. The last reported year for our local municipality, Winnetka, IL had a record of three major fires in a single year. A major fire means they aren’t dealing with a kitchen fire or a barbeque grill that got knocked over and your grannie couldn’t extinguish it. The math for a “major fire” means there are actual flames and smoke and damage for our local firefighters to deal with. The total cost for that year for Winnetka, IL for all fires was $1.4M. The total cost for just benefits paid to our Winnetka firefighters was $1.6M. The overall costs for our Winnetka Fire Department, including salaries, benefits, equipment and uniforms was well over $5M!!! Yes, the total cost for our separate and in our view, goofy local Fire Department was more than triple the amount of money they saved or damage they prevented.

Expand and explore the math for your municipality, people. We have looked across our area and almost all Chicago-area suburbs have the same metrics. Our taxpayers are paying more in just firefighter benefits than the actual damage from fires our local Fire Departments are putting out. The overall costs of having separate police and fire departments are skyrocketing. Consider consolidation for gov’t efficiency and effectiveness with no drop in public safety.

So What The Heck Just Happened to Raise These Flags?

To KCB&A, some of us feel fake gov’t pensions should have the same stigma attached to welfare. We also consider them misleading. In making these statements, we have to remember it isn’t the line government workers who created this system. It is hard to put all the blame on them for taking advantage of a completely botched retirement or disability concept. But at some point, someone has to be responsible for it. We truly feel our IL judiciary should conduct an investigation and hearings into all IL gov’t retirement systems to insure everyone understands expanded coverages and how shockingly expensive these fake pensions are for IL taxpayers—we guesstimate we are actually “paying” firefighters something like $200-300K a year if you were to actually evaluate the true cost of their compensation and pension/healthcare benefits over their lives.

IL Firefighters have fake gov’t pensions of an unusual nature. They are called “line-of-duty” disability pensions. Firefighters are eligible for some of these benefits the first day they are employed. The firefighter doesn’t actually have to be injured or get sick in the actual line of duty to get lifetime and expensive benefits. And if their cards are played correctly, they can get free family healthcare coverage for present or future spouses and children they didn’t have while working for taxpayers.

In Bremer v. City of Rockford, Claimant was a Rockford, IL firefighter. IL firefighters and their unions fought and fought to get a magical benefit—if they become randomly unhealthy for a variety of expected and sometimes arcane reasons, they are entitled to what we call a ‘fake’ occupational line-of-duty disability pension. Please note

1.    They don’t necessarily have to be actually “disabled” from all work—they only have to be disabled from being a firefighter.

2.    The condition doesn’t truly have to be “related” to any exposure at work—it just has to be a personal problem in the right medical category per our misguided legislature.

These concerns echo several problem we have with all IL police and fire fake disability pensions—the former officers keep getting paid as if disabled but can still work second and third jobs and make a lot of money while getting largesse from taxpayers for their lifetime fake pension benefit. As we indicate above, the medical condition doesn’t actually have to have anything to do with their work as a firefighter. They may have cardiac/pulmonary or other medical issues due to being overweight, smoking cigarettes, participating in sports or non-work-related activities. In our view, if a disabled firefighter can work, they can and should be placed in the next available light work position within the municipality to save taxpayers money.

We can’t tell from the published decision whether this former firefighter continues to work a second or third job—it actually isn’t important relative to the ruling and wasn’t mentioned at all. That said, we are sure from the decision this former firefighter developed a heart condition called cardiomyopathy. In cardiomyopathy, the heart muscle becomes enlarged, thick, or rigid. In rare cases, the muscle tissue in the heart is replaced with scar tissue. In street or simple terms, cardiomyopathy is called “hardening of the heart.” For someone with his cardiac condition, as cardiomyopathy worsens, the heart becomes weaker. It's less able to pump blood through the body and maintain a normal electrical rhythm. This can lead to all sort of bad stuff. Please further note cardiomyopathy can be acquired or inherited. "Acquired" means you aren't born with the disease, but you develop it due to another disease, condition, or factor. "Inherited" means your parents or grandparents passed the gene for the disease on to you. Many times, the cause of cardiomyopathy isn't known. But in the case of IL firefighters, it doesn’t matter—if you get a cardiac problem like this, you can retire on the taxpayer’s dime.

Why do the people of the City of Rockford care about this former firefighter developing this unfortunate condition? Well, there is a presumption any heart or pulmonary condition is related to work because firefighters are mystically and magically supposed to come in contact with smoke and icky chemicals in smoke. We don’t agree at all that firefighters live their work lives surrounded by smoke—this is another urban legend. While some firefighters almost certainly come into contact with smoke on a rare, random and occasional basis, in many municipalities, that might happen once or three times in a given calendar year and for minutes at a time.

So why is this former firefighter in court?—well, on top of the fake disability pension, this former officer is seeking lifetime family health care benefits at taxpayer’s cost. It seems a trial judge in the Winnebago County Circuit Court gave him that expensive benefit via summary judgment. Please note that cost is over $13K a year for the taxpayers of the City of Rockford—it will continue to rise every year as all healthcare costs do. After careful review, the IL Appellate Court sent the whole thing back to the Circuit Court for a trial.

Please understand the rising cost of salaries, WC and disability benefits for disparate police and firefighter departments is a cost taxpayers won’t be able to afford in the not-too-distant future. We feel you could consolidate departments and cut the number of “doubled” police and fire public safety workers dramatically. We recommend you follow the lead of the Village of Glencoe and start to merge your public safety departments into a single unit to save literally millions.

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

1-25-2016; Clarification/Correction from Last Week's Lead Article; E-Filing of Civil Litigation Coming to an IL County Near You Next Year; USDC for the Northern Dist of IL Announces New Website and...

Synopsis: Correction/Clarification On Last Week’s Lead KCB&A Update Article.

Editor’s comment: We wrote last week about what we feel is the Illinois Appellate Court, WC Division’s expansion of our IL Workers’ Compensation Act to allow wage differential benefits to be paid, even when the employer accommodates restrictions and there is no actual loss in earnings. This decision was reported by many national workers’ comp news sources as having the IL WC system require wage loss benefits be awarded by our Commission and reviewing courts even where there was no demonstrable loss of wages or income.

Our frustration with the ruling in Jackson Park Hospital v. IWCC led us to recommend against further appeals to this Division of our Appellate Court from the defense/respondent side of the aisle, as we find it virtually impossible to succeed based on the Court’s recent track record. In expressing our recommendation in this regard, we may have inappropriately referenced what we felt was a “mistake” of defense counsel on the case for having appealed the Circuit Court’s ruling to that panel.

It was not our intention to imply the defense attorney representing the Hospital had done anything wrong or was mistaken in his litigation management of the case at all. In fact, we know the attorney to be a veteran and capable litigator and we are certain he argued well for his client’s interests. It was pointed out to us further the wage differential award under 8(d)(1) in this case was actually issued by the Circuit Court Judge based on Petitioner’s appeal, and wage loss benefits were awarded based upon that reviewing court’s ruling finding the IWCC decision was against the “manifest weight of the evidence” standard. Therefore, the employer and defense counsel appropriately felt there may be a chance to reverse on further review to the Appellate Court, WC Division--to no avail. We were probably acting as “arm-chair quarterbacks” to unfairly comment in an after-the-fact perspective on what to do with an unsuccessful Circuit Court appeal. We extend our apologies to our respected colleague who clearly made what was felt to be the best possible decision to work hard and argue harder to seek what we feel should have been an appellate reversal and reinstatement of the IWCC ruling. Our commentary was intended to emphasize our view that current and future appeals by Illinois employers, government bodies and insurance carriers to this sitting Appellate Court panel are met by what we feel is a very Petitioner-oriented group of jurists and the chances of success are statistically quite slim. Employers should be mindful of the Court’s recent track record when considering what is usually the final level of an IL WC appeal.

The partners at KCB&A are in the ongoing process of updating our textbook to be used in our course on workers’ compensation law and practice we teach at The John Marshall Law School in Chicago. In pursuing the exhaustive research for that treatise, we review literally every single decision by the five-member IL Appellate Court, Workers’ Comp Division. What we have seen in doing that analysis is decision after decision from our Appellate Court, WC Division where all five justices rule with a single and unanimous mindset that we feel is insuring workers’ comp benefits are being awarded at the highest possible level. In some instances, we feel the justices are ruling in a creative fashion to “judicially legislate” or creatively outline new legal concepts to expand the WC Act’s coverage and/or heighten benefit awards, as we feel happened in the Jackson Park Hospital v. IWCC ruling we reported last week.

As we have also repeatedly advised the WC defense community, we are seeing more and more Circuit and Appellate Court rulings where the “manifest weight of the evidence” standard does not appear to constrain our reviewing courts in the fashion one might have felt would be followed after the crystal-clear rulings on the topic in two seminal decisions from the IL Supreme Court in Sisbro v. IWCC and Twice Over Clean v. IWCC. In both those decisions, our Supreme Court cautioned the lower courts not to interject their own opinions and supplant those of the IL WC Commission. Despite those clear-cut decisions, we still see case after case where denials by the IWCC almost regularly become awards in the reviewing courts.

As another thought, we point out our IL Supreme Court controls the composition of the five-member IL Appellate Court, WC Division. To read the many rulings of the penultimate reviewing court, one might think our Supreme Court was entirely from Democratic roots and pro-labor. In stark contrast to such expectations, the IL Supreme Court has three Republicans of its seven members. We would then assume there might be two members of the five-member IL Appellate Court who would be from Republican roots and be pro-management. One might then think you would see regular dissents from the pro-management/Republican members with perhaps an occasional win by the minority group. Instead the vast majority of IL WC appellate rulings are unanimous for the interests of Illinois labor and a dissenting voice is rarely presented—by that, we mean we see an Appellate Court defense dissent in the work comp arena about once every several years.

Is There a Concern About Unanimity at the IL Appellate Court, WC Division?

When we see strong unanimity from a veteran, erudite and strong-willed court, such as this, you have to start wondering why defense lawyers are first recommending and then taking cases to this third level of WC appeal. As we indicate above, after the third level of appeal, defense lawyers rarely bring back anything for their clients to appreciate in exchange for taking on the cost, uncertainty and risk of that appeal--there have been no defense dissents in the vast majority of IL WC appellate rulings in the last several years. Will this “activist” harmony continue?—there is no indication any of the justices are even slightly leaning to the defense side. For now, an overwhelmingly pro-labor, pro-benefits consensus statistically reigns.

That is partly because some of the recent decisions were decidedly minor in scope and outcomes predictable. But the Appellate Court, WC Division justices were also unanimous in significant cases, too. When we see a concurrence, it is one or two justices seeking to add more fuel to the majority’s award. The recent unanimous cases are noteworthy for a second reason: many of our august justices truly speak with a single voice. Such authentically unanimous decisions are starting to signal a lack of hope for employers, governments and insurance carriers in getting what they might feel is a fair shake.

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

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Synopsis: IL Supreme Court Orders E-Filing for Civil Claims. Will the IWCC Follow?

Editor’s comment: Starting in July 2017, all Illinois civil claims are going to follow e-filling protocols. We are happy to see our highest court move to streamline and automate these processes that we feel should reduce waste and save taxpayers money. We hope the practice of criminal law is soon to follow. We also feel some older lawyers may leave the practice rather than deal with the many computer-based changes that will be coming to their practices.

We also hope Chairperson Fratianni and her great staff are looking into taking our Illinois Workers’ Compensation Commission into the land of e-filing and e-service. You may note they recently ended the use of snail mail to issue decisions—we feel all IWCC notices can and should be more streamlined and much faster. Status calls can and should be conducted online. Again, this may reduce IWCC staffing needs which should save Illinois business and governments money, as they pay 100% of the cost of operating the IWCC.

Here is the IL Supreme Court’s Historic Order from Last Week:

The exchange of information required to resolve disputes in court has, until the past quarter century, relied almost exclusively on paper documents . Technology has since evolved to provide for the automated exchange of court information. Court users, including self-represented litigants, increasingly benefit from paperless court systems that allow for electronic filing, service and access to case documents.

The Supreme Court of Illinois has adopted numerous rules, policies and initiatives to promote e-filing with the goal of fostering the effective and efficient administration of justice. Advances in e-filing were initiated on September 19, 2002, when the Court filed M.R. Order 18368 authorizing the electronic filing of documents with the Supreme Court on a pilot basis. However, after several years, only five counties were operating under the pilot program. To encourage expansion of e-filing, the Court approved Electronic Filing Standards and Principles on October 24, 2012, thereby concluding the pilot status of civil case e-filing and authorizing permanent e-filing upon circuit court request and Court approval. In September 2014, the Court amended the Electronic Filing Standards and Principles to include e-filing in criminal case types and traffic citations. Yet, to date, only 15 of 102 Illinois counties have sought and been granted approval for e-filing. The scant use of e-filing statewide brings to bear what the Supreme Court has long recognized -- the barriers to statewide e-filing revolve primarily around the wide variances in funding and technology resources available to the state 's 24 circuit courts, including the 13 different case management systems currently operating in Illinois.

Committee Review and Recommendations

To address this challenge, the Technology Committee of the Conference of Chief Circuit Judges was tasked in 2013 with considering statewide standardization of data definition and exchange methods for e-filing and e-records. On June 21, 2013, the committee included within its recommendations to the Conference the conclusion that statewide e-filing efforts will develop if courts are mandated to e-file and follow a common set of standards for data packaging and organization.

On November 26, 2014, the Court created the e-Business Policy Advisory Board and Technical Committee comprised of judges, court clerks, attorneys and court technology personnel. The e-Business Policy Board is charged with providing recommendations, advice, and guidance to the Supreme Court and its Administrative Office of the Illinois Courts regarding the implementation of e-Business applications and data exchanges in Illinois circuit courts. On December 15, 2015, the e-Business Policy Board made several recommendations to the Court, including: (1) set a date certain for the implementation of mandatory e-filing of civil case s for all counties in the state; (2) require a single e-filing manager (EFM) to integrate e-filed documents into the case management systems of all counties not presently approved to conduct e-filing; and, (3) allow counties currently approved for e-filing to continue with their current e-filing systems, including EFMs, until one year after the centralized EFM has been operational for all other counties in the state, during which time a review should be conducted to recommend a date certain for those counties to begin using the centralized EFM for the e-filing of civil cases.

In spite of the rules, policies and standards in place, the implementation of discretionary e-filing program s has not achieved the desired goal of statewide e-filing on civil matters. As such, in reliance upon the recommendations of multi-disciplinary committees, boards, and court staff who have spent years evaluating this issue, this Court concludes that e-filing in civil cases in Illinois must be made mandatory.

THEREFORE, IT IS ORDERED that:

1. This Order governs e-filing in civil cases for the Illinois Supreme Court, Illinois Appellate Court and Illinois Circuit Courts.

2. E-filing of civil cases shall be mandatory in the Illinois Supreme Court and the Illinois Appellate Court effective July 1, 2017.

3. E-filing of civil cases shall be mandatory in Illinois Circuit Courts effective January 1, 2018.

4. In the Illinois Supreme Court and Illinois Appellate Court, e-filing of civil cases shall occur consistent with applicable policies, guidelines and/or standards authorize d by the Supreme Court and through the utilization of a centralized electronic filing manager (EFM) authorized by the Supreme Court. The centralized EFM shall be integrated with the Supreme Court Clerk and the five Illinois Appellate Court Clerk case management systems.

5. In all Circuit Courts which have not implemented an authorized local e-filing program by the filing date of this Order, e-filing of civil cases shall occur per the applicable policies, guidelines and/or standards authorized by the Supreme Court, and through the utilization of a centralized electronic filing manager (EFM) authorize d by the Supreme Court. The centralized EFM shall be integrated with each Circuit Court's case management system.

6. In all Circuit Courts operating an approved local e-filing program by the filing date of this Order, e-filing of civil cases shall occur per the applicable policies, guidelines and/or standards authorized by the Supreme Court, and through the utilization of an electronic filing manager (EFM) authorized by the Chief Circuit Judge and Circuit Clerk or the centralized EFM authorized by the Supreme Court. After January 1, 2018, and following evaluation of the implementation and operation of the centralized EFM, the Supreme Court may designate a future date certain at which time all such Circuit Courts shall utilize the centralized EFM authorized by the Supreme Court for the e-filing of civil cases. The centralized EFM shall be integrated with each Circuit Court's case management system.

7. Once a court is subject to mandatory e-filing under this Order, attorneys and self-represented litigants must e-file all documents in civil cases, except documents exempted by rules adopted by this Court. Attorneys and self-represented litigants may not file documents through any alternative filing method, except in the event of emergency. Courts may not accept, file or docket any document filed by an attorney or self-represented litigant in a civil case that is not filed in compliance with this Order, except in the event of an emergency. The Supreme Court, Appellate Court and Circuit Courts must provide designated space, necessary equipment, and technical support for self-represented litigants seeking to e-file documents during regular court hours.

8. Effective July 1, 2017, all trial court records on appeal will be standardized and transmitted using the central electronic filing manager (EFM) service from each county to the respective reviewing court.

9. The Supreme Court will adopt rules governing e-filing and e-service in accordance with the mandate schedule in this Order.

10. Courts who believe they cannot comply with this Order by the mandatory implementation date specified may petition the Supreme Court for an extension. Such extensions shall not be favored but may be granted for good cause shown.

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Synopsis: On the Federal Side of Our Newly Computerized Courts, the USDC for the Northern District of Illinois Announces Their New Website.

Editor’s comment: We want the legal/government and insurance community to get a sense of how computerization is rapidly coming at every level of the practice of law. You need to get used to it and work to learn all of it. We assure you the defense team at KCB&A is on the forefront of this trend.

Welcome to the Northern District of Illinois' new website

We are pleased to announce the launching of the court's newly redesigned website.  www.ilnd.uscourts.gov

Averaging 24,000 visits a month, the court's website has increasingly become an important place for parties and the public to access information about cases, judges, and court news.

In creating the new website, we aimed for a cleaner look that is responsive to any browser resolution size and a design that we hope will simplify your web visit by allowing you to reach important applications with fewer clicks.  We hope you will find the new website both visually pleasing and easy to use.

Among the improvements you will notice, we would like to highlight the following:

• More keyword searches and clickable index numbers
• Direct links to individual judge's pages
• Quick links and courthouse information on the footer of each page

In addition to aesthetic and function changes, the court's website will not be hosted on an offsite server, which will allow for uninterrupted use in the unlikely event of a power outage at the courthouse.

Thank you and visit us at www.ilnd.uscourts.gov