3-13-2107; Can IL WC Drop Court Review of Claims; OSHA Rules--Will They Change Under New Administration; Anti-Staffing Legislation in Springfield and more

Synopsis: One Baffling IL WC Appellate Ruling After Another--Could Both Sides in IL WC Agree to Drop Court Review?

Editor’s comment: With respect to the five members of the IL Appellate Court, WC Division and the Circuit Court judges who hear WC appeals, I want to confirm my new position our State would be better served to have our work comp claims adjudicated only by the IL WC Commission—Arbitrators at the first hearing level and one of the three Commission panels thereafter. When that is done, game over.

If you or the lawyers who read this KCB&A Update consider this an unusual stance, please note the two levels of hearing is precisely what is accorded to state workers—right now, they are not allowed to appeal to the courts. Somehow they deal with what they get from just two levels of hearing. I vote expand that streamlined model to all WC claims in this nutty state.

I am confident our State might save literally millions to do so. I am also sure the Arbitrators and Commissioners could do a solid job of making reasonable work comp decisions and we wouldn’t have to concern ourselves with the almost endless time it takes to get a final decision in a jurisprudence system that allows five, count ‘em, five different WC hearing levels.

As an example, in a recent ruling in Crittenden v. Illinois Workers' Compensation Comm'n, 2017 IL App (1st) 160002WC (issued February 24, 2017) our Appellate Court, WC Division ruled on a claim arising in 2008, nine years ago. The outcome of their unanimous decision was to send the whole thing back all the way to the Commission with instructions to restart everything, consider new evidence and create a whole new ruling. What? Why? Will this claim end by 2028?

The IL WC Appellate Court ruled our IL Workers' Compensation Commission erred in its method of determining average amount which Claimant Crittenden is able to earn in some suitable employment or business after work-related accident. The Court decision may indicate to me the City of Chicago didn’t truly defend itself in citing jobs this worker could perform and wages he would be earning if he was working.

The other side called an expert whose report was offered into evidence without objection from the City’s Corporate Counsel. As I have advised my readers for years, under the auspices of the politically powerful Alderman who runs the City of Chicago’s workers’ comp program, the City does a miserable job of “defending” itself from such claims. I feel his goal is to insure all city workers get amazing and unfundable pensions or other post-employment benefits, like police/fire disability and workers’ comp benefits. In this situation, Claimant would be entitled to about $250,000 for “wage loss differential” benefits even though the record doesn’t indicate he has an actual job from which to evaluate wage loss. We always ask our students how one can measure wage loss benefits for someone that doesn’t have a wage.

The Court ruling confusingly indicates if Claimant is not working at time of “wage loss” calculation, our IL WC Commission must identify, based on evidence in the record, an occupation that claimant is able and qualified to perform, and apply average wage for that occupation to wage differential calculation. Claimant is now required to introduce evidence sufficient for Commission to identify a specific occupation that Claimant is able and qualified to perform and the average wage for that occupation.

What is unusual about the paragraph above is Claimant presented the evidence “required.” The Arbitrator found the vocational experts agreed that cashier and customer service jobs should be targeted for Claimant and Claimant earned $11.00 per hour when he left his part-time job at Target. Additionally, the Arbitrator noted Claimant’s expert gave a range of projected earnings of $8.25 to $13.78 per hour. The arbitrator then stated "[t]he arbitrator selects $11.00 per hour as a reasonable wage. On appeal, the IWCC looked at the same evidence and ruled $13.78 per hour was a reasonable wage.

So case closed right?—not so fast, not so fast!!! The Appellate Court reversed and remanded for an all new hearing. By now, the prior job at the City for Claimant has gone up in pay and any cashier and customer service jobs also have increased in pay. In short, I have no idea what the Appellate Court means in the paragraph above or why they are again seeking new facts and evidence. It would appear to me the goal is to stick the City with an even higher wage loss differential award than about $30,000 a year for life.

If you understand this decision, please send me your explanation—I have been reading, writing and teaching workers’ comp in this state for almost four decades and I truly don’t understand the intent, meaning and purpose of this baffling appellate ruling.

Only in Chicago and the State of Illinois does it appear that our courts want to stick it to taxpayers as hard as we do in this state. If you aren’t sure, the City is bordering on actual bankruptcy while the State of Illinois is, for the lack of another term, already ‘bankrupt’ to the extent they aren’t paying their bills to the tune of over $12 billion, yes, billion. The credit rating for both governments is about a scintilla above a smoldering junk heap.

In short, I vote we stop clowning around with years of uncertainty in IL WC claims—cut out the reviewing courts for all claims and let the IWCC come to the point much quicker and faster.

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

Synopsis: OSHA’s New Reporting and Anti-Retaliation Rule Now in Effect—Will the Current Administration Leave It All in Place??

Editor’s comment: OSHA recently implemented its new "reporting and anti-retaliation rule", which went into effect January 1, 2017. When our current President took over, I predicted some of this stuff would change. His appointment for the first candidate to head the U.S. Department of Labor voluntarily withdrew from consideration and the second candidate--Alexander Acosta—is facing Senate consideration this Wednesday.

From the foxhole in which we are deployed, new leadership for OSHA under Mr. Acosta may cause changes to what you are reading right now. Until we have a better idea of how OSHA will work under him, we will have to continue to adjust. Please watch this space for news on any changes to the OSHA rules outlined herein.

Under the new rule, major U.S. employers must now submit injury and illness information electronically. Most employers were already required to keep records of work related illnesses and injuries and to report fatalities and other certain serious injuries. However, under the new rule, companies that employ 250 or more employees must electronically submit the

Ø  OSHA Form 300 (Log of Work Related Injuries and Illnesses);

Ø  OSHA Form 301 (Injury and Illness Incident Report); and

Ø  OSHA Form 300A (Summary of Work Related Injuries and Illnesses) on a quarterly basis.

Companies in the construction, manufacturing, utilities, and agriculture industries, which have historically high rates of occupational injuries and illnesses, must submit OSHA Form 300A annually when they employ between 20 and 249 employees. Additionally, OSHA may provide written notification to smaller employers requiring them to submit information on a routine basis electronically.

The anti-retaliation rule allows OSHA to cite employers for taking adverse action against employees for reporting a work related injury or illness, even if the employee does not file a retaliation complaint. It also allows OSHA to cite employers who have systems in place that have been used to create safer workplaces, but OSHA now says may discourage injury reporting.

In this controversial rule, OSHA specifically address concerns regarding safety incentive programs and post-accident drug and alcohol testing.

OSHA asserts U.S. employers may perform post-accident drug and alcohol testing only where

(1)  there is a reasonable possibility the employee’s drug and alcohol use contributed to the incident and

(2)  the drug and alcohol test can accurately identify impairment was caused by the drug use.

On the other hand, OSHA states it is unreasonable to drug test an employee when it is clear drug or alcohol use would not have made it more likely that the injury would occur, such as insect bites and repetitive strains occurring over a long period of time) OSHA’s reasoning was allowing employers to “blanket” drug and alcohol test after every accident/injury would somehow discourage employees from reporting injuries and work-related exposures. Safety incentive programs such as cash bonuses for departments or employees that remain accident free were also prohibited. OSHA claims employees who were injured or ill might be reluctant to report a problem because they would be afraid their co-workers would retaliate against them for not getting the safety incentive bonus.

OSHA can fine employers up to $12,471.00 for a single serious violation and up to $124,709.00 for willful or repeated violations. Therefore, all employers need to review their injury-illness reporting requirements, post-accident drug and alcohol testing protocols and safety incentive programs.

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

Synopsis: Important News from the American Staffing Association--Oppose Illinois HB 690—Contact Your Legislators TODAY!!

Editor’s comment: KCB&A represents a number of great staffing companies. We want all of them and our readers to know of this new anti-business legislation.

This shocking new proposed IL law would impose notice requirements, wacky wage mandates, and problems for all IL Staffing Firms.

The Illinois General Assembly is considering amending our State’s Day and Temporary Labor Services Act, which applies to temporary workers other than clerical and professional employees, in a manner that would have a devastating effect on the state’s staffing industry.

Among other things, HB 690 would

      Require a staffing firm to provide a temporary worker with 48 hours advance written notice of schedule changes to multi-day assignments

      Require a staffing firm to ascertain and keep records on the ethnicity of each applicant

      Require a staffing firm to provide applicants with signed written notices of the date, time, and location that they applied for employment

      Require a staffing firm to provide workers with return transportation if such firm provides transportation to the work site

      Require staffing firms to inform temporary workers of conversion fees to clients

      Prohibit a staffing firm from charging temporary workers for drug tests, criminal background checks, and consumer reports

      Require temporary workers to receive the same average rate of pay and benefits as clients’ employees doing substantially similar work

      Impose a rebuttable presumption of retaliation upon any firm that terminates or disciplines a temporary worker within three months of any exercise of the worker’s rights

These operational and other burdens would greatly harm staffing firms’ operations and destroy jobs.

Because the Illinois House Labor and Commerce Committee is holding a hearing on the bill this Wednesday March 15, it is imperative that you contact your legislators immediately.

3-6-2017; Where Are the Wrestling Midgets In Springfield?; IL WC Wins or Loses (?) for Most Attorney Involvement per WCRI; New IL WC Arb Ketki Steffen Appointed and more

Synopsis: Where Are the Wrestling Midgets in Springfield?

Editor’s comment: Some years ago, I wanted to see Terry Gene Bollea, better known by his ring name Hulk Hogan. Not sure why but my son and I liked the guy. A friend gave me the tickets and I took my middle child, assuming it would be fun and clearly different. I assure my readers it was very different and within some reasonable parameters, innocent fun. Then at the eighth bout, they sent in the midget wrestlers. Not expecting the contrast with Hulk Hogan who is 6’8” tall, we decided we had enough of what we both felt was foolishness and left. To any of the smaller folks among my readership, I am sensitive to objections to the use of the term ‘midget’ but I don’t know how to write this and not use that troublesome word.

The point I am trying to make is my concern our General Assembly and brave Governor Rauner are descending into broad legislative and executive farce. What is happening in Springfield isn’t funny and reminds me of complete and utter chaos. If there weren’t literally billions at stake, I would rip up my tickets and leave the arena but I continue to watch and report to you.

Current IL WC Legislative Amendment Scraps Drug Formulary and Adopts Hybrid Medicare-Based Fee Schedule

Reports from Springfield confirm a workers’ comp closed drug formulary has been scrapped, and a hybrid Medicare-based fee schedule has been proposed as part of El Bargain Grande, the workers’ compensation “reform bill” still plugging along in the Illinois Senate under the tutelage of Senate President Cullerton and Sen. Christine Radogno of the Republican side of the aisle. SB 12 is part of a bigger legislative package dubbed the “Grand Bargain” aimed at breaking the longest state budget impasse in our nation’s history. If you aren’t sure, IL state gov’t is “bankrupt” under the current General Assembly and Governor to the extent we aren’t even close to paying bills on time.

Senate Bill 12 with new Amendment 3, proposes restrictions on compounded drugs and the creation of a new and silly “blue ribbon” task force to monitor medical provider profits derived from treating injured workers. We are not impressed.

This ongoing dispute between Republican Gov. Bruce Rauner and the Democratic-led legislature headed by multi-millionaire House Speaker Michael Madigan has kept Illinois government without a state gov’t spending plan for 20 months. Meanwhile, the State has racked up $12 billion in unpaid vendor bills, a $130 billion and growing unfunded (and unfundable) state government retiree pension liability and the worst credit rating of any state in the history of state credit ratings.

Governor Rauner doggedly demands workers’ compensation reform without really appearing to know what would best reform our system. I assure you he hasn’t asked me or many of my top defense competitors. Gov. Rauner is also seeking gov’t pension reforms and a property tax freeze before he will sign off on proposed legislation that would dramatically raise the state’s personal income tax from 3.5% to 4.99%, among other new and unprecedented tax increases. What we aren’t seeing from Governor Rauner, Senate President Cullerton or Senator Radogno are any true spending cuts. In my view, if you dramatically raise taxes, borrow billions but don’t cut spending, aren’t you simply treading water? Won’t the growing deficit continue to rise until you have to again raise taxes and borrow even more money? Isn’t this as silly as watching wrestling midgets?

SB 12 and other parts of the combined package — if one bill fails, they all do — were supposed to reach a full Senate vote last Wednesday, but talks broke down after Senate President Cullerton accused Governor Rauner of negotiating in bad faith.

SB 12, as introduced, from a workers comp perspective creates a closed drug formulary, capped the maximum weekly compensation PPD rate, decreased many medical fees by 15% and enacted new anti-fraud provisions. We aren’t sure if the drug and medical fee cuts are serious or more window-dressing. We are sure the cap on such costs is “real” and can’t be manipulated in our liberal and activist reviewing courts. Our problem is we have no idea and no one is telling us what the IL WC cost savings might be.

Amendment 3 to SB 12 proposes a quasi-Medicare-based fee schedule grouped into as many as 14 geo-regions. This proposal calls for the IL Workers’ Compensation Commission to calculate the maximum reimbursement rate under the current fee schedule as a percentage of what Medicare pays for each Current Procedural Terminology or CPT code and each Diagnosis-Related Group code using the most recent data available.

Thirty days after completing that, the IWCC would be required to set comp reimbursement rates at specific Medicare percentages based on the following formulas:

§  For reimbursements of 125% or less of Medicare, the maximum fee would be set at 125%.

§  For 126% to 150% of Medicare, the maximum fee for that CPT or DRG code would remain the same.

§  For Medicare rates at 151% to 225%, the rate would be adjusted to 150% of Medicare or 80% of the most recent workers’ compensation maximum amount under the current fee schedule, whichever amount is higher.

§  For Medicare percentages of 226% to 428.57%, the rate would be set at 191.25% or 70% of the most recent maximum amount under the current fee schedule, whichever is greater.

§  If more than 428.57% of Medicare, the rate would be adjusted so that it equals 275% of the most recent Medicare maximum.

Amendment 3 also scraps the closed formulary proposed in the original bill and replaces it with minor restrictions on controversial drug compounds. Payment for compounds would be allowed only if there is no readily available, commercially manufactured and therapeutically equivalent product or no other Food and Drug Administration-approved alternative that is appropriate. We assure our readers this is a solid concept but isn’t going to save you much in managing IL WC claims.

Bring on the Wrestling Midgets--Another Goofy, Dopey and Dumb-o WC Blue Ribbon Panel!!

Amendment 3 also would create the six-member Workers’ Compensation Transparency Task Force to supposedly collect data on the effects of reforms. IL WC medical providers would be required to report gross revenue attributable to workers’ compensation, their expenses, the number of comp patients treated and profits. The IL WCTTF would be required to file annual reports with the governor and legislature by Dec. 31 of each year through 2021. The task group would be disbanded the following March 31. IL WC medical providers would be subject to daily penalties of $100 for not reporting to the IL WCTTF. If a provider runs up $10,000 in penalties, you license could be suspended.

We remember the IL State Government WC Review Board or whatever that dopey blue ribbon panel is called. They took over a year to pick who was going to be on the panel. Having made the selections, the panel never, ever met. By “never met” we mean they never have ever gotten together or done literally anything! Obviously, it was public relations fluff designed to sound good. The IL WCTTF doesn’t even sound good to me.

In my view, the IL WCTTF should hire a bunch of midget wrestlers for their panel membership and start tossing each other across a room with some regularity. Maybe they can call “heads” or “tails” before one of the midgets land to decide who will be the chairperson. Kidding aside, I hate to see our State become the laughing stock of the entire country in proposing such dumb ideas as if they are actually reforming anything.

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

Synopsis: Hot Off the Presses at the WCRI Annual Shindig—They Announce Illinois is No. 1 for Claimants' Attorney Involvement; N.J. a Close Contender.

Editor’s comment: Injured workers in Illinois are more likely to lawyer up than any of 18 other states studied by the Workers Compensation Research Institute, while only a small fraction of claimants in Wisconsin and Texas had legal representation, according to preliminary findings released on the close of the 2017 WCRI annual conference.

The undertone to this announcement is the message there has to be something intrinsically wrong with attorneys who are possibly protecting/guaranteeing their clients’ rights on both sides of the WC matrix. It is hard to buy that message but I want our readers to know it is out there.

Legislative policy debates about attorney involvement have disparate themes from state to state. Workers’ or Claimant attorneys argue they help workers receive moderately complex benefits injured workers might not be able to obtain themselves. They also help workers navigate a challenging system. Without question, claimant attorneys protect workers from reprisals or discrimination from the employer or insurer. Advocates for employers and insurers complain attorneys are involved more often than necessary, injured workers can often receive benefits they are entitled to without representation, and attorneys reduce the total amount of benefits that workers receive by taking fees. In our view, one feature of attorney involvement can be delay, delay and more delay.

Some existing attorney involvement is arguably unnecessary—for example, cases where the injured worker would have received a statutory entitlement that is easily defined without resorting to hiring an attorney. If unnecessary attorney involvement can be avoided, this would be a “win-win-win” scenario. Injured workers would receive benefits without the expense of paying an attorney and the delays of dispute resolution; employers and insurers would save the costs of defending the case; and increasingly resource-short state workers’ compensation agencies would have smaller caseloads to manage and would have to provide fewer dispute resolution services.

This WCRI study Avoiding Litigation: What Can Employers, Insurers, and State Workers’ Compensation Agencies Do? identifies and quantifies some of the more important factors that lead injured workers to seek representation by an attorney, providing some key take-aways for employers, claims organizations and state agencies.

Major Findings

The WCRI study found injured workers were more likely to seek attorneys when they felt threatened after a work-related injury or illness. Several sources of those perceptions of threats were found in:

•              The employment relationship. Workers believed they would be fired as a result of the injury, and/or workers perceived that the supervisor did not think the injury was legitimate.

•              The claims process. The worker perceived that his or her claim had been denied, although it was later paid. This perception may have stemmed from a formal denial, delays in payment, or communications that the worker deemed to be a denial.

Using data collected as part of its annual CompScope benchmark reports, WCRI researchers reported workers had attorneys in just over half of Illinois WC claims with more than seven days of lost work time. New Jersey was a close second at 49%, with Georgia following at 41% then California at 40% and North Carolina fifth at 38%. You may note those aren’t the five highest states in the Oregon WC Premium study—this sort of makes one wonder why WCRI focused on this issue.

On the other end of the spectrum, injured workers had legal representation in only 13% of Wisconsin claims and 14% of Texas claims. Workers had legal representation in 17% of Michigan claims and 18% of Indiana claims.

The WCRI stat rats noted that until this year, Texas limited attorney fees to $150 per hour. Texas raised that hourly fee to $200 in January. Also, Texas has strict limits on lump-sum settlements, an efficient dispute resolution process, and a faster time to the first indemnity payment.

Wisconsin also allows lump-sum settlements under limited circumstances and has an efficient disability assessment process, as well as administrative processes for resolving disputes, and clear standards for terminating temporary disability benefits, WCRI said.

Explaining the high rate of attorney involvement in Illinois, the researchers noted our WC system bases permanent partial disability benefits on several legislatively defined factors in addition to physical impairment. The WCRI researcher also felt it may be more difficult in Illinois to terminate temporary disability benefits than in other states. On top of those issues, the difference between maximum permanent partial disability and temporary total disability benefits is much wider in Illinois than in other states. The maximum TD rate in Illinois is $1,362, while the maximum PPD rate is $775, providing what WCRI felt was an “incentive” for injured workers to keep their cases open.

I don’t agree with any of their theories—if you want my thoughts on how to slow or stop high levels of attorney involvement in IL WC claims, send a reply.

If you want to read the synopsis of their study and/or buy it, go to https://www.wcrinet.org/studies/public/abstracts/avoiding_litigation-ab.html

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

Synopsis: Just What IL WC Needs—Another Arbitrator!

Editor’s comment: I don’t get Governor Rauner or his IL WC team at all. I feel what IL WC and all government agencies need is less government, not more. Instead of cutting back and saving taxpayer dollars, we are hiring and hiring and hiring.

I want to make clear my political and economic views have little to do with our newest IL WC Arbitrator and assure my readers our firm has the greatest respect for her and her shining record.

We just received news Governor Rauner just appointed new Arbitrator Ketki “Kay” Steffen to work at the IWCC.

Ms. Steffen was a Cook County Circuit Court Judge pursuant to an IL Supreme Court appointment on November 12, 2015. Prior to that appointment, she was an IL WC Arbitrator for the Illinois Workers' Compensation Commission from September 2013 through November 2015.

Ms. Steffen also previously served as a Cook County Circuit Court Judge where she presided in the Domestic Violence Courtrooms in Chicago and Rolling Meadows from January of 2010 through December of 2012. Prior to serving on the bench, Judge Steffen served as an Assistant State's Attorney at the Rolling Meadows Courthouse for eighteen years.

As a prosecutor, she specialized in prosecuting violent crimes and helping keep our communities safe. She was recognized for her outstanding work in Domestic Violence and is the proud recipient of the 'Partners in Peace Award' and the 'Building Bridges Award'. Judge Steffen was instrumental in the proposal and passage of the 'Cynthia Bischof GPS Legislation' that allows judges to place tracking bracelets on repeat offenders.

As a prosecutor, Kay Steffen was an authority on International Extraditions and specialized in bringing to justice the most violent offenders who try to escape our justice system and hide in foreign countries after committing their crimes. Her outstanding work in this area has resulted in bringing back to justice several murderers and child molesters who were subsequently prosecuted and sentenced to long terms of imprisonment. Her philosophy as a prosecutor was that no one is above the law and that the safety and security of the community is vital to its well-being.

We wish her the best in her new post.

2-27-2017; Two New IL Commissioners Appointed--Will The Process Ever Open Up?; Does IL WC Truly Need All These Administrators; New Jersey Limits Opioid Use--Shouldn't You? and much more

Synopsis: Two New IL WC Commissioners Appointed. Will Illinois Ever Open Up the Selection Process?

Editor’s comment: On February 24, 2017, Governor Bruce Rauner filed the following new appointments to the Illinois Workers’ Compensation Commission: 

Defense attorney L. Elizabeth Coppoletti to replace Commissioner Mario Basurto and Arbitrator Deborah Simpson to replace Commissioner Ruth White. 

Click to view the letters.

I continue to hate the “secret squirrel” method of hiring hearing officers in a fashion where you and I first learn about the selection long after the decision has been made. In other states outside Illinois, openings for such positions are advertised, resumes accepted for consideration and an open vetting process takes place. In Illinois, even under a reformer and iconoclast like Bruce Rauner, we still have secret, back-door politics to choose the folks that control our multi-billion-dollar workers’ compensation system.

One has to wonder if Governor Rauner or his team discussed his eternal need to lower IL workers’ compensation costs with these new appointees.

One also has to wonder how anyone thinks the current secret system for selecting our administrators looks like anything other than more politics, politics, politics. You clearly have to know someone who knows someone because all the gossips, tipsters and sources I have around the IL WC Commission weren’t aware of these openings, much less the appointments until late today.

The lawyers, staff and friends of Keefe, Campbell, Biery & Associates says farewell and adieu to former Commissioner Ruth White who started working at the good ole Illinois Industrial Commission back in 1979. I still remember the first time I appeared before former Arbitrator White, she had a court reporter that would talk into a cone to record the hearing—the reporter would later type up her recording. It was an oddity I have never seen again in the state or federal courts. It is our assumption former Commissioner White will take one of Illinois’ golden and unfundable gov’t pensions that should pay her 85% of her highest annual salary to start with 3% compounded annual increases and lifetime health care coverage. With all those retirement perks, why keep listening to all the whining as a hearing officer, some of which comes from Claimants?

We also wish all the best to former Commissioner Mario Basurto who came from Liberty Mutual’s house counsel operation directly to become a Commissioner. He learned very quickly on the job and generally did solid work in a tough position.

New Commissioner Elizabeth Coppoletti comes from the IL WC defense industry and knows the IL WC Act and Rules backwards and forwards. We consider her a leading IL WC legal authority. She oversaw the preparations of briefs and other filings at various levels of the appellate process and handled oral arguments at all judicial levels. We are certain she will be a solid administrator.

New Commissioner Deborah Simpson of Kane County has more than 25 years of government and law, having served since 2000 in the Office of the Illinois Attorney General’s Administrative Review / Civil Prosecutions Unit. Previously Ms. Simpson was attorney at the State’s Attorney’s Offices for Kane, Vermilion and Cook Counties. She has been a part-time instructor at the Danville Area Community College, and is a member of several community organizations. She holds a J.D. from the John Marshall Law School and a B.A. from DePaul University.

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

Synopsis: Does IL WC Truly Need All These Administrators?

Editor’s comment: I was quoted in the Madison County Record this past week for my stance on the need for less government in this nutty state.

http://madisonrecord.com/stories/511082985-workers-comp-attorney-praises-wisconsin-governor-for-proposed-elimination-of-review-board#.WLSETRKYx04.email

As you read this, all the simple and undeniable metrics for Illinois government point to financial Armageddon or something like it. We have over $12 billion in unpaid state government bills with state vendors either suing or going broke or both. That number is expected to double before the next statewide election in 2018. The State of Illinois also has government pension debt at $130 billion and growing by millions each day. IL State government credit rating is abysmal and getting worse by the minute. Take a look at Moody’s https://www.moodys.com/credit-ratings/Illinois-State-of-credit-rating-600024371. This isn’t a Republican or Democrat issue—it is simple math, folks! Now is the time to get serious about cutting government costs and spending. If we don’t, I assure all of my readers they are going to have to raise already wildly high state income tax and real estate taxes and impose higher tolls and fees and do lots of stuff that will drive more paying taxpayers away, making the problems even more acute.

In the IL WC system, our administration grew and grew and grew more over the last twenty years while at the same time, IL WC claims continue to drop.

This is from page 7 of the IL WC Commission’s 2015 annual report http://www.iwcc.il.gov/FiscalYear2015AnnualReport.pdf. You will note they assert about 50,000 new IL WC claims are filed each year—I am betting the actual number is about 45,000. Fifteen years ago, that number was around 75,000 new claims. IL WC claims have an average shelf-life of about three years so there are around 135,000 claims in this system, down from 225,000 just fifteen years ago.

I don’t believe the math (as I am sure it is high) but they say 1500 cases are decided at the Commission level each year. We will start with those numbers for this analysis.

The Commissioners typically don’t hear any testimony or take evidence. They read the Arbitrator’s ruling, consider briefs filed by the parties, listen to oral argument and write decisions.

There are currently nine IL WC Commissioners with two full-time attorney assistants. There are a total of 27 attorneys working at this administrative level—9 Commissioners who each have two attorney aides. Their combined salaries are around $3M a year. All that money comes from a levy on IL business. If you just use their numbers above, the 27 lawyers at this level would by themselves only decide about 55 cases per hearing officer/aide a year—that is about one ruling per lawyer each week. Some of the rulings are a page, most are three to five pages. In my view, that is less than a full day’s work.

In the past, the Commission used to report about one-half of these rulings were summarily affirmances—when the Commissioner or their aide summarily affirm the Arbitrator’s decision, after considering everything, they simply agree with and adopt the Arbitrator’s decision. If they summarily affirm one-half of the Arbitrator’s decisions, simple math indicates the 27 lawyers are deciding about one contested case every two weeks.

To me and with respect to all of them, that means we have too many hearing officers at this level. If they cut this group down to six Commissioners, the savings would be about $900K in salary alone.

If they get serious about efficiency, I am sure three Commissioners with two attorneys assistants could also do the same job if they do what you and I call “hard work.” I hate to say it but we also could get along with fewer Arbitrators, if we continue to have fewer and fewer claims to adjudicate at the primary level. I still remember when IL WC had less than 15 Arbitrators handling claims across the State—we now have around 30 or double that amount for about half the claims.

In summary, at some point, Illinois is going to have to mark hard decisions about our soaring gov’t debt, unpaid gov’t bills and spiraling taxes. If we don’t start cutting government and doing something to make things more efficient and effective, the world may correct this for us and not in ways we would like or choose.

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

Synopsis: Should Your State Limit Opioid Use in All Medicine to Include Workers’ Comp Claims?

Editor’s comment: We salute New Jersey Gov. Chris Christie who recently signed into law a bill that limits initial prescribing of opioids for acute pain to a five-day supply, in what is being called our nation’s strongest opioid reform. Senate Bill 3 also requires insurers to cover treatment of substance use disorders that has been deemed necessary by the patient’s physician, psychologist or psychiatrist. It spells out requirements for opioid prescriptions following the initial supply and mandates opioid education for prescribers.

The bill sailed through the New Jersey Legislature in a matter of weeks.

“A five-day limit on initial opioid prescriptions will be imposed, lowered from 30 days, which is the current law, and most of you know that most physicians write 30 days automatically, no longer,” Christie said in signing the bill on Feb. 15. “Five days is now the initial that they can write it for.”

Several other Northeastern states, including Massachusetts, Connecticut, Maine, New York and Vermont, have enacted limits on initial opioid prescriptions of seven days.

The requirements in New Jersey SB 3 include a requirement for doctors to document a patient’s history of opioid use, before writing the initial prescription, as well as their response to non-opioid therapies including alternative drugs or non-drug treatments.

The Medical Society of New Jersey asked lawmakers to carve out an exception for post-surgical patients, allowing an opioid prescription to cover up to 14 days. After major surgeries, the Medical Society asserts a patient may risk rupturing sutures if they have to go to see the doctor for a refill of pain medications. The bill was not amended to accommodate the request.

In Maine, a proposal to limit initial opioid prescriptions to a three-day supply for acute pain and 15 days for chronic pain was changed to seven days and 30 days, respectively, in response to concerns from the Maine Medical Association, according to an article in ACP Internist, a publication of the American College of Physicians.

Workers’ compensation drug formularies may limit the number of days for opioid prescriptions in which preauthorization is not required.

In New Jersey, Christie is reportedly devoting his final year in office to the opioid crisis. The Republican governor is set to leave office in January 2018 due to term limits. 

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Synopsis: Illinois WC Rates Jump Again and Your PPD Reserves Need To Be UPDATED RETROACTIVELY(!). Send a Reply to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

Editor’s comment: There continues to be an upward spiral of IL WC rates. As mentioned twice every year, 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 keep climbing.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $775.18. When it was published, this rate changed retroactively from July 1, 2016 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 2016 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. WORD OF CAUTION: There is pending legislation which Gene reported last week and this week which currently states “The maximum compensation rate for the period July 1, 2017 through June 30, 2021, except as hereinafter provided, shall be $755.22. Effective July 1, 2021 and on July 1 of each year thereafter the maximum weekly compensation rate, except as hereinafter provided, shall be determined as follows: if during the preceding 12-month period there shall have been an increase in the State's average weekly wage in covered industries under the Unemployment Insurance Act, the weekly compensation rate shall be proportionately increased by the same percentage as the percentage of increase in the State's average weekly wage in covered industries under the Unemployment Insurance Act during such period.” THIS NEW LEGISLATION WOULD POTENTIALLY CHANGE THIS PPD MAX AGAIN. If this isn’t clear, send a reply to Shawn at sbiery@keefe-law.com.

The current TTD weekly maximum has risen to $1,435.17. A worker has to make over $2,152.76 per week or $111,943.52 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 $538.19 per week x 52 weeks in a year x 25 years or $699,647.00! The new maximum IL WC death benefit is $1,435.17 times 52 weeks times 25 years or a lofty $1,865,721.00 plus burial benefits of $8K. On top of this massive benefit, Illinois employers/governments have to pay 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. If you want it, simply reply to Shawn at sbiery@keefe-law.com or email Marissa with your mailing address if you would like to be mailed a laminated copy at mpatel@keefe-law.com and they will get a copy routed to you before they raise the rates again!