2-22-2021; Madigan Quits!!! What Does It Mean for IL WC and Illinois Gov't?"; Biometrics Act Litigation Moves to the IL Supreme Court--IL Business, Keep Your Fingers Crossed!! and more

Synopsis: Madigan Quits!!!! What Does It Mean for IL Work Comp and Illinois Government?

Editor’s comment: Starting in November 1970 and continuing to the end of this month, Illinois voters have seen the longest tenured state legislative leader in U.S. history in the person of Michael J. Madigan. He has had an interesting and bittersweet run. I can’t stop giggling about his statement that he “dedicated [himself] to democracy.” What an absolute hoot!—in my view the State of Illinois under Madigan has become the “least democratic” State in the history of States.

What Does Madigan’s Departure Mean to IL Workers’ Comp?

Well, I have been writing this KCB&A IL WC Law Update since 1993. If you recall over the years, I have criticized what I have called the “Secret Squirrels” of IL WC because no one ever tells the public when there is an opening for an Arbitrator, Commissioner or Chair-person. These positions are filled in total secrecy—I don’t feel that is “democratic.” I feel strongly and my sources have all told me that secrecy concept came straight from Mike Madigan. In other states, the head of our equivalent of the IL WC Commission is advertised openly and interviews are conducted in an “open meetings” environment. In contrast, what happens in Illinois is business pays every cent of the cost of administering workers’ comp while having very little say as to who our hearing officers and administrators will be.

Similarly, lots of IL WC case law happens in a shocking and unexpected fashion, like the recent ruling in McAllister that has everyone on the defense side shaking their heads about how suddenly ultra-liberal Illinois work comp got even more mega-ultra-liberal. Trust me, former Speaker Madigan had great sway over who would be a judge/justice and a member of the IL WC Appellate panel. Madigan controlled/created our wildly high judicial compensation that has to be the most expensive and lucrative in the U.S. for salaries and fake IL gov’t pensions.

Please note almost all IL State positions under Madigan have one salary concept across a State that has wildly different cost of living values. Nothing was ever done under former Speaker Madigan to save taxpayers a couple of bucks. For example, a judge or justice in the Chicago area making about $200K is doing well—the same salary for a judge/justice in Galesburg or Freeport or Collinsville may be the highest salary of any worker in that entire county!! Why does that happen? Well, if you want “control” or sway with the judiciary, one way to get that done is to “over-pay” or “over-retire” them. This is just one example of what I call “vote-buying.” If you give a worker way too much money to do way too little, you have a loyal voter and they are going to tell their friends and family to vote for you.

Please also remember Mike Madigan and his team almost single-handedly turned Illinois from a two-party State to a one-party State by gerrymandering just about every significant IL political district into Madigan’s own image and likeness. This means things aren’t going to return to “normal” to have Republicans and Independent voters have some say in this supposedly “democratic” IL State government until decades pass and people move around, as we do.

We don’t see things in our one-party State getting better for IL businesses any time soon. I feel our WC rates are going to continue to spiral in an unchecked fashion. I feel our hearing officers are going to be professional and follow the law but the framework surrounding them is going to lead to higher and bigger WC settlements and awards. I have noted the new trend that everyone on the Plaintiff/Petitioner side have started to seek Body as a Whole awards for literally any condition and injury—this means IL business isn’t going to get credit for anything paid in past claims. I forecast Claimants receiving lifetime awards of 200%, 300% LOU and more of the body—it isn’t going to happen on a broad spectrum on an overnight basis but I am seeing this happening right now and I don’t see it stopping.

Big picture—Madigan has moved on. We are sure he was a driving and dynamic force in the IL WC system. Watch this space for new developments and cost drivers moving forward.

What Does Madigan’s Departure Mean to IL Gov’t?

Well, from my perspective, IL Gov’t is facing challenges that are going to be worse until someone fixes them. We have the worst credit rating of any State in U.S. history and owe more than $150B in debt. We have the highest combined sales, real estate, income and other taxes of any U.S. State—we can attribute some of that to our departed “dedicated to democracy” leader. You can’t set up fake gov’t pensions to require taxpayers to pay spiraling retirement costs of retired State workers for the rest of their life, as Madigan did. You can’t force taxpayers to pay almost 100% of retired State workers’ healthcare, as Madigan did.

Does Former Speaker Madigan Depart IL Gov’t as a Billionaire?

I don’t know why the media never mentions the zillions of dollars Mike Madigan clearly made in his “side-job” as a RE property tax appeal attorney. If you take a look at this article, you may see what I mean:

https://www.illinoispolicy.org/investigation-madigan-firm-the-biggest-player-in-commercial-property-tax-appeals/

In just five years of a fifty year career, Mike Madigan’s firm got $1.7B (yes, billion!!) in tax reductions for their clients. To my understanding they typically charge 33.33% fees on those reductions. Simple math indicates they would make close to $600M in fees for that five year period. Please note they may discount some of these fees but even with dramatic discounts, they could be making $300M, $400M, $500M, right? Over the 50+ years he was involved in the RE Tax appeal process, Mike Madigan and his law firm had to bank something like a billion or more.

Please also note I never once heard IL State government conduct investigations or hearings into why our Cook County Assessor always routinely screws up our RE tax assessments to then have other private attorneys file fake “appeal” documents that aren’t legal at all. No one briefs a Cook County RE tax appeal and there are typically no oral arguments in RE tax fake appeals. Despite it being a billion-dollar legal market, no law school in IL teaches Cook County tax appeals and, to my knowledge, there has never been a case that reached the IL Supreme Court from such “appeals.” Please note RE tax appeals are just math, folks—use one of those new-fangled “computers” to get it right the first time and stop the goofy, fake RE tax appeal process. How many factors do they have to consider to insure your RE tax bill is accurate—20, 500, 5,000? Trust me, computers handle such challenges in about a millisecond. We are being flummoxed to think these RE tax “appeals” are real. We need what everyone else in the country appears to have—the assessor hits the right number and you owe it. You don’t have to waste time with fake appeals and pretend you got a better deal because your attorney filed a goofy form and cut themselves in for a third of your supposed “savings.”

As I said above, Madigan has moved on. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Biometrics Act Litigation Moving to IL Supreme Court—IL Business Keep Your Fingers Crossed!!!

Editor’s comment: High Court to Review Decision Holding WC Exclusive Remedy Doesn't Bar Privacy Act Claim. Big picture, this is business-busting legislation if it isn’t blocked in the courts. You may note the tech company Facebook recently settled an Illinois biometrics claim from their users for Illinois-based biometric violations for $650,000,000! The difference between the Facebook litigation and this case is the employer-employee link.

Basically, lots of employers were using biometrics or “touch id’s” to track employee hours and other stuff. The Biometrics Act provides guaranteed damages for each time a biometric was improperly saved or recorded. For one of your workers who checked in and out every morning and night, you could owe them thousands and thousands of dollars plus attorney fees and costs. Obviously, your workers will be laughing all the way to the bank to receive such largesse.

So what just happened?—last week, the Illinois Supreme Court granted leave for 14 Illinois employers including lead Defendant Symphony Bronzeville Park to consider an appeal of an appellate court decision holding that the exclusive remedy of workers’ compensation did not prohibit a worker from pursuing a lawsuit for alleged violations of the Biometric Information Privacy Act. The high court announced its decision to accept the appeal on Wednesday. We can expect this is going to be pending before our highest court for some time.

The Illinois Appellate Court in September 2020 published a decision in Marquita McDonald v. Symphony Bronzeville Park, et. als., holding that violations of the Biometric Information Privacy Act are not precluded by the exclusive remedy of workers’ compensation.

Plaintiff McDonald filed a class action accusing Bronzeville of violating the Biometric Privacy Act, which prohibits businesses from collecting biometric information without notifying a person in writing that it is being collected and stored. She alleges in her complaint that she was required to provide biometric information to use a fingerprint-based time clock system between December 2016 and February 2017. Trust me, she is a very carefully picked “point of the spear.” It is hard to imagine

Defendants and parties amicus in Symphony Bronzeville Park, et. als. argued Section 5 or the exclusive remedy provisions of the IL Workers’ Compensation Act barred the lawsuit.

The Illinois Appellate Court in September said exclusive remedy can’t preclude a complaint for statutory damages that isn’t compensable under the state’s workers’ compensation laws. The IL Appellate Court said it failed to see “how a claim by an employee against an employer for liquidated damages under the privacy act — available without any further compensable actual damages being alleged or sustained and designed in part to have a preventative and deterrent effect — represents the type of injury that categorically fits within the purview of the IL Workers’ Compensation act, which is a remedial statute designed to provide financial protection for workers that have sustained an actual injury.”

With respect to the members of the IL Appellate Court who ruled in this claim, I agree with Defendants—you do not have to be “touched” to receive WC benefits and be “actually injured” in IL. There are numerous cases, like Pathfinder, where the discomfiture of a co-worker in seeing a co-worker seriously injured was itself an “actual injury” and benefits were awarded and paid. There is a City of Springfield ruling where a police officer asserted harassment and that was found compensable under the IL WC Act. Basically, any “personal injury” between employer and employee is supposed to be workers’ comp.

And finally, I don’t consider the “incident” in McAllister mentioned above to be an “actual injury.” The guy stood up and felt a problem with his leg. The “actual injury” described by such facts is hogwash but if we are going to define standing up as an “injury” then biometric dysfunction as it arises vis a vis employer and employee should be an “actual injury” to block common law claims against the employer. You can’t have it both ways. In the WC setting, we may expect awards/reserves in the range of 2-20% BAW for biometric dysfunction, I would bet.

We will have to wait and see. For news as it unfolds, watch this space. I appreciate your thoughts and comments. Please post them on our award-winning blog.

2-1-2021; Surprising Guidance from EEOC about Vaccines in Workplace--Do You Want to Step in That Bear Trap?; Shawn Biery's New IL WC Rate Sheet is Out!!! and more

Synopsis: Mandating vaccinations in the workplace? Surprising Guidance from EEOC… But Do You Want to Step in that Bear Trap? Thoughts and Opinions by John P. Campbell.

Editor’s Comment: As U.S. employers struggle to get their mind around the “rebuttable presumption” of workplace Covid-19 exposure, a new host of questions are emerging with the arrival of vaccinations.

With most front line workers and many elderly nursing home folks now vaccinated, the roll-out of vaccinations to the greater American workforce is afoot. Naturally, we are getting questions from clients and insurers:

Should we as employers mandate vaccinations for the health and safety of all employees? We feel the better question: Do you want to? 

We were quite surprised to see a guidance memo from the EEOC suggest that employers can compel vaccinations… or to put it more accurately, make vaccination a condition of continued employment by asking for vaccine verification. The EEOC memo reasoned that vaccinations are not “medical examinations” as defined under the ADA, so there is no inherent HIPAA violation with such an inquiry, stating “if a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.”

While not explicitly stating it, this language at least implies that U.S. employers may require employees to be vaccinated as a condition for continued employment. Note that some employers in the medical field, such a hospitals who would vaccinate their own employees, may need to inquire into medical background before administering the vaccine, so we question whether that ADA line is crossed regarding inquiring into an employee’s private medical background. There would be no such concern for employers who simply require their workers to find a third party to administer the vaccine.

Despite this guidance from the EEOC, we fear that compelling vaccination of your workforce opens Pandora’s Box to a host of potential pitfalls and potential liability:

• Employees may assert religious or medical basis to refuse vaccination and then ADA accommodation obligations comes into play for the employer. Is the medical basis valid? How deep do you dig into medical or religious background to determine if the basis is “valid”? Does the refusal of the vaccine create a legitimate health or safety risk to other employees? Any rejection of these religious or medical excuses may invite an adverse employment claim.

• If the medical basis for refusing the vaccine is valid, now an accommodation under the ADA interactive process will be triggered. Do you allow permanent work from home? Re-assignment or relocation?

• While limited thus far, we have some reports of adverse reaction to the vaccine. If employers “mandate” vaccination and an adverse reaction occurs, it won’t take long for a Petitioner’s attorney to come calling.

In this vein, Illinois employers should also be aware of Section 2 (d) of the Occupational Disease Act dealing with compensability for injuries resulting from adverse reaction to inoculations. The Act provides in relevant part:

Any injury to or disease or death of an employee arising from the administration of a vaccine…as part of a voluntary inoculation program in connection with the person's employment or in connection with any governmental program or recommendation for the inoculation of workers in the employee's occupation, geographical area, or other category that includes the employee is deemed to arise out of and in the course of the employment for all purposes under this Act. 

While we certainly don’t intend to  discourage a wide-spread inoculation effort, we must warn that a company sponsored inoculation program may appear employer “directed” rather than voluntary.

Our best advice is to avoid these pitfalls and potential legal landmines. Rather than requiring the vaccine of your workforce, strongly encourage vaccination of your employees by providing information on availability and allowing them time off work if a scheduled vaccination is during work hours. Such a policy promotes a safe work environment but also avoids the stickier issues outlined above. Whatever we do, let’s work as Americans to rid our country and the world of this curse.

This article was researched and written by John P. Campbell, Partner at Keefe, Campbell, Biery & Associates, LLC.

Synopsis: Shawn R. Biery’s Famous IL WC Rate Sheet with All-New IL PPD Max Now Available! Get a Free Copy TODAY!!!

Editor’s comment: As the IL minimum wages increase, so do the WC rates. Our IL WC Commission (IWCC) posts new rates and Max PPD rate has increased significantly--UPDATE RETROACTIVELY(!).

To any of our readers and/or fans, Send a Reply to Marissa mpatel@keefe-law.com to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

There will continue to be IL WC Rate increases because the statewide minimum wage is going to increase steadily for the next several years. Please don’t shoot the messenger, we are not even sure it won’t go higher before the new car smell is off the freshly laminated Rate Chart you will soon receive.

As mentioned before, 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, your IL WC rates keep climbing.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $871.73 (significantly up from $836.69).

When it was published, this IL PPD Max rate changed retroactively from July 1, 2020 to present. If you reserved a claim based on the prior IL WC PPD rate for the period from July 1 to right now, your reserves are wrong. CHECK YOUR IL MAX PPD RATE CLAIMS!

If you have a claim with a date of loss after July 2020 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies and, if it does, immediately reset reserves to insure accuracy.

To recap the other changes from January 2021:

• The current TTD weekly maximum has risen to $1,613.93.

• An IL worker has to make over $2,420.90 per week or $125,886.80 per year to hit the new IL WC maximum TTD rate.

• The new IL WC minimum death or T&P rate also went up.

• The IL WC minimum death benefit is 25 years of compensation or $605.23 per week x 52 weeks in a year x 25 years equaling a staggering $786,799.00! Yes, if Claimant makes $100 a week in a part-time job and dies in a work-related accident, the benefit can be over $786K.

• The new maximum IL WC death benefit is $1,613.93 times 52 weeks times 25 years or a lofty $2,098,109.00 plus burial benefits of $8K.

On top of this massive benefit, Illinois employers/governments have to contribute to a fund to pay COLA increases under the Rate Adjustment Fund that may double that already-high benefit, depending on the CPI.

The best way to make sense of all of this is to get Shawn Biery’s free, colorful, updated and easy-to-understand IL WC Rate Sheet.

If you want it, simply email Marissa at mpatel@keefe-law.com and include your mailing address if you would like to be mailed a laminated copy & you can also copy Shawn at sbiery@keefe-law.com with any questions, and his great team will get a copy routed to you before rates rise again.

Shawn remains your go-to defense source on any issue relating to IL WC rates!

1-25-2021; IL WC's Best Remaining Defense Tools; How About a Webinar or Zoom Meeting to Learn WC?

Synopsis: Causal Connection and Utilization Review—IL WC’s Best Remaining Defense Tools.

Editor’s comment: With the issuance of the IL Supreme Court’s ruling in McAllister v. IWCC, the playing field in IL WC has changed. For the first time in Illinois history, actions of daily life may now be termed work-related “accidents.” We feel there are some instances where something might go wrong at work where an Arbitrator and Commission panel will deny claims based on an accident dispute. But to the extent standing up and sitting down and bending over are now potentially “accidents,” that defense is greatly limited. We have heard many leaders of the Petitioner/Claimant attorneys assert they want to have a litigation system to resolve WC claims in this State. The defense team at KCB&A wants everyone on all sides to remember—you can’t and won’t have a litigation system that is a sham. The defense side of the matrix has to have actual defenses. If you strip away all defenses and McAllister clearly strips away part of the accident defense, the carriers and self-insured employers are not going to let their workers go to attorneys; they are just going to pay and pay some more.

How in Tarnation did that happen?

Well, I am telling anyone and everyone who will listen, Illinois is now a one-party State. The IL House and Senate have “super-majorities” that don’t require them to even nod to the other side—the liberal party in power controls appointments, budgets, legislation and rules. Almost all of our judiciary is liberal and pro-Plaintiff. Our Governor is an unusual man who just spent over $60 million of his own money to try to sock us with a gigantic tax hike.

As Illinois became more and more dominated by this pro-Plaintiff political power, our legislators have spent and borrowed and spent some more. As we see this political party in Illinois and across the U.S., they are:

• Trying to control the composition of corporate boards;

• Demanding the “wealthy” pay the lion’s share of the cost of government--a cost they continue to increase;

• Furious to see valid tax deductions and credits in the U.S. and State Tax Codes that allow businesses to take deductions, even for great U.S. jobs-building reasons and;

• Treating businesses as somehow inherently evil to require sometimes bizarre and punitive anti-business penalties, shocking indefensible pro-plaintiff legislative schemes and criminal prosecutions.

The only concepts that slow this movement down are public opinion and common sense. I am not seeing a lot of common sense from our legislators in Springfield. And as I just reported, the legislators are trying like crazy to hold anti-business legislation under wraps to suddenly disclose it and call for votes at the last possible minute of each session. I consider such actions to be arguably devious.

So What Does This Have to do with Work Comp in Illinois?

Well, the policies outlined above send a very clear message as to who is in control and where we are headed. The theme is “Businesses are bad and the government will fix it”. In this vein, the workers’ compensation business will move with the glacier that is Illinois Government/power. Now, if you have someone who is claiming they injured themselves doing something truly “human,” let’s say reaching for a pen, and they go to the doctor to learn they need a gigantic rotator cuff repair and tenodesis in their shoulder, you have a classic claim where the defense isn’t going to be “accident.” Following McAllister, reaching for a pen may almost certainly be termed an “accident,” as it is arguably part of the job duties for the average office worker, waiter/waitress/dock supervisor or evil defense lawyer. However, it is also one of the more common and innocuous activities of daily life. Arguably, it is not different from reaching for that cup of coffee next to the pen. Nevertheless, now under McAllister, reaching for that pen to complete a work task is now, at least in theory, an action that may be considered an “accident” in Illinois.

However, you don’t tear your rotator cuff in a significant and striking way by the normal action of simply reaching for a pen. Your defense is no longer against “accident,” because of the McAllister ruling. Now, the best defense for such a claim is going to be “causal connection” where you get a solid defense IME expert to opine the actions described don’t match the alleged outcome. Causal connection is, to some extent, simple common sense in the medical field. You need a doctor who knows the ins and outs of the human body and how it works and, also as important, how it typically fails.

Two issues to consider—first and foremost, you have investigate, investigate and investigate some more. Make sure you have an incident reporting form and someone insures the line employees and supervisors are fully cooperative in reporting what happened. If you don’t have a satisfactory incident reporting form, send a reply and I will relay a sample form for your consideration. But if you aren’t investigating properly and documenting the story, you are like a ship in a storm without a rudder—things will change rapidly. The version of the “accident” often evolves during litigation in way unfavorable for employers. Therefore, locking in the specific history of events, in the words of the claimant, is very important.

Second, please also remember the odd concept of the “eggshell plaintiff.” If someone has a body that is prone to fail, the odd concept of eggshell plaintiff holds the employer takes the human as you hire him/her. You will note this isn’t in the IL WC Act or Rules. I don’t even feel it is in the common law rules—it is an undefined fantasy that you may hear from liberal attorneys and hearing officers. But for the vast majority of folks, the actions and outcomes truly have to match. I don’t feel most Illinois WC Arbitrators are going to be comfortable finding a giant rotator cuff tear is going to be causally related to reaching for a pen, even if McAllister makes that innocuous action an “accident.”

If you need a solid expert on any IL WC claim to analyze and consider causal connection disputes, send a reply and I will forward the top doctors and surgeons across our State and the five States KCB&A covers.

Why Do You Recommend UR, Gene?

So, with more and more everyday activities expected to be considered “accidents”, then next line of defense is controlling the quality and necessity of care. UR = Utilization review, is an important part of this process. Please note UR started about fifty or more years ago and it truly works in the group health arena to block overtreatment. Doctors and other healthcare givers hate it to some extent and will whine when you bring it up but it works quietly and somewhat smoothly. My problem is getting WC adjusters and claims managers to require it and use it regularly.

I feel UR is easy, relatively inexpensive and a great way to control medical care and rein in rising costs. In my practice and with respect to our great clients, it is my reasoned legal impression, the WC claims industry is still struggling to bring UR to the level it should be at. Please note in this liberal State, a UR denial has presumptive value in the IL WC Act—the injured worker or their attorney has to rebut the presumption of a UR non-certification of continued care or a proposed surgery. The presumption doesn’t exist until UR is used!

I feel any Claimant who is treating more than ninety days after a work-related injury should have all aspects of their medical claim move into UR with uniform regularity. All surgeries and PT should be directed to a UR nurse/doc for approval and/or non-cert. Pay for what UR approves and deny what UR doesn’t certify. Please also note Doctors/Hospitals and other care-givers are used to UR when someone is being treated under group coverage by BC/BS or other insurers. Doctors and hospitals regularly battle with the UR opinions but they know if they lose the fight over certification, they aren’t going to be paid. Only the most aggressive and questionable medical care-givers will proceed with care when they are facing UR non-certification. The non-certification will at least pause and possibly nullify the questionable care.

In my view, this has to be in every IL WC claims adjusters’ quiver and it can and should be utilized in a uniform and global fashion. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: What Do You Need to Know About Workers’ Comp? How about a Webinar or Zoom Meeting to Learn!!

Editor’s comment: The defense team at KCB&A is ready, willing and able to provide you whatever educational or training webinars you and your risk or claims team may need. We are the only Illinois defense firm that has several adjunct professors of work comp law and practice. We know the IL WC Act and Rules Governing Practice backwards and forwards. You can’t get a better source for training and updates than our on-line teaching. We are happy to tailor the training to your management needs and goals.

A few of the topics we can and will cover at your request include:

• The Demarcation of When an Incident is Workers’ Comp v. General Liability

• Jurisdiction—When is an incident covered by the laws of the U.S. Government or one or more States’ WC systems.

• Accident or Incident that Arises Out Of or Occurs In the Court of Employ.

• How to best accept an Incident as covered by WC and/or how to best fight/dispute WC coverage.

• Causal Connection—when is the incident the “cause” of temporary or permanent disability.

• Medical bill payment and processing.

• How to best dispute or non-certify medical care or over-treatment.

• Calculating the Average Weekly Wage with analysis of maximums and minimums.

• Handling and Adjusting Amputation losses on a PDQ basis to include OSHA concerns.

• Temporary Total Disability—understanding waiting periods and how to calculate and pay TTD or other similar benefits.

• When and How to Drive Return to Work with and without asserted restrictions.

• What to do when a worker dies in your workplace to also cover OSHA concerns.

• Permanency/Impairment—How to best calculate this benefit with a focus on negotiation techniques that “work” to match your reserves and claim goals.

• Dealing with Petitions for Penalties and Both Types of IL WC Attorney Fee Petitions.

• The Three Types of IL Total and Permanent Disability Claims.

If you are interested in having a webinar or other online meeting to learn WC and learn some more, send a reply or contact JCampbell@keefe-law.com.