IWCC Needs to End Its Secrecy
Friday, July 3, 2009 | 0
By Eugene F. Keefe and John P. Campbell Jr.
Synopsis: Thoughts on who runs the Illinois Workers' Compensation Commission and how.
Editor's comment: We want all of our readers to understand one of the overall goals of this (Keefe, Campbell and Associates (KC&A) Update is to stop, end or minimize the age-old trend toward secrecy and back-door deals in the Illinois political matrix which includes the Workers' Compensation Commission as an administrative agency that has its sole duty to provide benefits to injured Illinois workers.
In so doing, the IWCC has a direct impact on the Illinois economy and our overall business picture. We do understand there are some business associations that are provided what we consider to be very minimal input into the overall process of forming, funding and operating the commission. To the extent these associations may be provided some indication of what is happening at the commission and why, it appears to us it is not openly disclosed or discussed with their membership. In the framework of an agency that deals with several billion dollars of Illinois business' money, we have no idea why business associations and other groups feel their role should be kept quiet.
On July 1, 2009, the commission's annual budget rolled-over to start anew. In rolling it over, the commission will again levy around $25 million dollars or more solely on the Illinois business community — they spent about $18.6 million in the fiscal year ending in June 2008. The Illinois Commission had 178 employees at that time. In our view and the view of most risk managers with Illinois WC claims, the forces of Illinois labor and its affiliates continue to maintain full control of the commission. It is also critical for our readers to understand the last chairman of the IWCC was able to get quickly and quietly move the funding of the commission out of the general revenue fund of the Illinois state budget. Therefore, the battle going on in Springfield about the multibillion-dollar state budget deficit and potential tax increases, billion-dollar deficit borrowing or concomitant budget cuts won't impact the commission in a direct fashion.
So what will happen with the commission's budget? Well, we are certain of a number of things. First, you and I and most Illinois citizens haven't been asked and can't learn that answer. The commission didn't hold an open meeting to discuss it as an administrative body. The IWCC budget will be summarily announced to the public at some point. If there are any savings, we will immediately advise our readers. Despite the source of the funding, the reasons and thinking behind the budget aren't for public or even semi-private consumption. This firm represents a number of the biggest manufacturers, municipalities, hospitals and retailers in Illinois and we assure everyone they weren't asked or consulted about the IWCC budgetary issues or decision-making.
Second, the commission's operations fund more than doubled under the last administration. The reason for the massive hiring was the former chairman's perception that cases weren't being tried often or fast enough. By the end of his term, he applauded a 7% increase in the number of trials being conducted. That increase remained flat and we haven't seen the pace of rulings move any faster than before.
In contrast to the heightened costs, we feel the business-unfriendly litigation environment has caused the number of new claims being filed to drop steadily. For the last period the commission reported, less than 50,000 new litigated claims were filed. We simply don't feel insurance companies and TPAs feel they get a fair shot at the liberal commission and many observers don't feel the place is amenable to bona fide disputes.
Even though Keefe, Campbell & Associates brings back successful WC litigation outcomes on a regular basis, it is hard to say the commission can be viewed as a fair and impartial place at which to arbitrate a close legal issue or factual dispute. For whatever reasons, newly filed claims continue to drop and we look to see if the commission will react to that change and cut staff or offices in the coming budget announcement.
The commission did realign arbitrator assignments to try to cut mileage/travel expense earlier this year. We have no idea if there are any other cost-cutting measures that can be expected. There are rumors about:
- Cutting the number of commissioners from the current nine back to six —this simple step would save around a million dollars per year because of the salaries of each commissioner and their two lawyer-assistants along with the secretarial staff;
- Cutting the number of arbitrators from around 35 down into the middle 20's. The savings in doing so would be proportionate to the level of cuts;
- Closing some offices —When he got the money from the new levy, the former chairman also opened new administrative offices across the state, There are five of them. The staffers hand out forms and commission calendars. They may provide informal copying/faxing services to trial attorneys on both sides of the bar. The offices have computers that can be used by the public to access the commission's website and learn status of claims. Unlike other states, staffers are not allowed to provide legal or claims advice to anyone. Therefore, other than to provide political jobs for the generally nice folks who staff the offices, everything they do and provide to Illinois citizens can be readily located online at the commission's website. We project the cost of paying for space, operating and staffing these offices to be close to another million dollars;
- Like every other state agency, there are numerous cost-cutting efforts that could be made to improve technology and streamline procedures to save expense. They won't do so until forced to.
So where do we go from here? Well, we point out to all major Illinois businesses along with the Illinois State Chamber of Commerce, the Illinois Self-Insurers Association, the Illinois Municipal League, the Illinois Retail Merchants, the Illinois Hospital Association and all similar associations that you all have a major stake in what goes on at the commission.
We urge all of you to stop the tradition of secrecy that dominates the Illinois workers' compensation system and that will produce this coming year's annual budget wholly cloaked in secrecy. We ask all of you to demand input and comment from your members about how this place is run and their money is spent. The power won't be shared until you start to openly ask for it to be shared.
We point out that, if administrative and legislative secrecy was good for Illinois business in the workers' compensation arena, the system would have to dramatically be more friendly to business. It isn't and secrecy clearly doesn't serve business' interests. We don't know a single businessperson who feels there is are positive aspects to the way the commission is secretly operated, funded or run — if there is someone out there who feels differently; please send us your thoughts.
Finally, we suggest all commissioners, arbitrators and staff of the commission continue to work hard and find ways to make Illinois ' workers' compensation system work to become the best possible "product" it can be. Our favorite model is from an old friend, Cook Circuit Court Judge Jim Riley who will tell anyone in his courtroom that he has no court backlog. He is proud to confirm for all court watchers the parties who appear before him settle their cases or disputes are quickly and fairly adjudicated by him. It would be great to see our arbitrators take a similar approach — if you can help the parties agree and close a dispute, do so. If you can't, have your court reporter fire up the stenograph and put the matter on.
Similarly, workers' compensation cases should not sit for years and years so as to cause criticism and suggestions of new methods to move cases faster. Illinois arbitrators should be proud to work a full day, control their calendars and insure cases are settled amicably wherever and whenever possible. If the parties need to get experts and conduct depositions, all of it should be put on a calendar to be sure timely compliance is watched and then enforced. Once preparations are complete, a fair and impartial hearing should be conducted. We have some very solid and knowledgeable hearing officers in this state and we want to encourage all of them to get faster and more efficient in their day-to-day handling of claims.
Synopsis: Illinois Appellate Court cautions that employers can be found liable for retaliatory discharge when you fire an employee for refusing to return to work based on an IME doctor's release.
Editor's Comment: Illinois employers should be aware of this important decision and adjust your HR/workers' compensation policies accordingly. When mired in a fight between a treating doctor's work restriction and an IME work release, an employer may suspend TTD benefits in good faith based on the IME opinion. However, employers should not go so far as to terminate the employee for refusing to follow the independent medical examiner (IME) recommendation. This can be viewed as an adverse employment action and expose your company to liability for retaliatory discharge.
In Grabs and Francek v. Safeway Inc. and Dominick's Finer Foods LLC, (No. 1-08-3007 June 17, 2009), our Appellate Court addressed a certified question on an interlocutory appeal on this narrow issue of alleged retaliatory discharge. Plaintiffs Fred W. Grabs and Rudolph Francek filed a joint complaint alleging defendant Dominick's Finer Foods terminated them in retaliation for filing workers' compensation claims. defendant responded to aver plaintiffs had been terminated for violating a neutral attendance policy when they missed three consecutive days of work subsequent to being advised to return to work pursuant the opinions given by defendant's IME.
By way of background, Grabs' claim was initially accepted and all medical bills and TTD were paid by defendant. Pursuant to Section 12 of the Illinois Workers Compensation Act, plaintiff presented for an IME with Dr. Bernstein, a physician chosen by defendant. Dr. Bernstein determined plaintiff Grabs could return to work and further Grabs' injury was not work-related. Accordingly, Grabs was advised to return to work. He refused, citing treating doctor's orders, and was terminated after missing three days without calling in.
Similarly, Francek's claim was disputed from the outset and he presented for an IME with Dr. Papierski who determined his injury was not work-related and he could return to work without restrictions. Francek also chose to follow the advice of his treating physician and was terminated after the third "no call/no show". Both claims came before the IWCC on 19(b) Motions and in both cases, the Arbitrator sided with plaintiffs' personal physicians finding both injuries arose out of and in the course of their employment with defendant. Further, the arbitrator found plaintiffs were exercising their rights pursuant section 8(a) of the Illinois Workers' Compensation Act when they did not return to work at their treating physicians' advice.
With regard to the civil action for retaliatory discharge, the Circuit Court granted plaintiff's motion for summary judgment. The Circuit Court then granted defendant's motion for interlocutory appeal on the following question:
Does the Workers' Compensation Act give the IWCC the exclusive authority to determine whether an injured employee may return to work, such that when an employer is faced with conflicting medical opinions from the employee's doctor and the employer's IME, the employer may not rely upon the IME opinion to terminate the employee under the employer's attendance policy for failing to return to work, before the commission has adjudicated the pending dispute over the conflicting medical opinions?
In a well-reasoned decision, the Appellate Court held when an employer is faced with conflicting medical opinions from the employee's doctor and the employer's IME, an employer may not rely solely on an IME in terminating an employee for failing to return to work. However, the Appellate Court stopped short of finding that any such fact pattern was per se retaliatory discharge, as was argued by plaintiff. Rather, the court was careful to explain an employee must meet his burden of proof to show his discharge was causally related to the exercise of his rights under the act. The Circuit Court went too far by applying a per se rule of retaliatory discharge, rather than affording defendants the opportunity to outline a valid, non-pretextual basis for termination.
In other words, the mere coincidence of a termination in the midst of a workers' compensation dispute will not trigger any presumption of wrongful discharge; the terminated worker must still meet his standard of proof for all elements of a retaliatory discharge claim. The court explained an employee who elects benefits under the act may be terminated, however, the decision to terminate must be wholly unrelated to the employee's claim for benefits under the Act, citing the 1998 decision of Clark v. Owens-Brockway Glass Container Inc., 297 Ill.App.3d 694.
From the perspective of Illinois employers, this is a liberal decision that focuses on the Workers' Compensation commission as the source of implicitly determining when and how an employee can be terminated. We consider that judicial legislation of the worst sort. We don't feel the commission has or should be provided such power —it isn't in the enabling legislation that created the commission. The legislature could have addressed the matter and didn't. We also feel this ruling would allow an injured worker to remain off work indefinitely by stalling the hearing at the IWCC to maintain their right to continued health care, pension and other employee benefits. Again, the act and rules don't provide such rights.
Synopsis: We thought we were perfect, but we were wrong.
Editor's comment: As part of our Keefe, Campbell & Associates Update of last week, we advised our readers the State of Illinois, County of Cook and City of Chicago did not implement surveillance of their work force. We feel this concept is crucial to insuring the governmental bodies are paying claims they owe and fighting claims where claimants are phony. We indicated taxes for all three entities are skyrocketing in the business-as-usual environments. We point out every self-insured entity, insurance carriers and TPA's regularly use surveillance as a tool to fight WC fraud and properly manage losses. Governmental bodies that don't do so are misusing government funds and paying claims they don't owe.
We were advised our comment about the State of Illinois was incorrect — it does use surveillance.
We apologize and retract that statement.
We are told the State of Illinois uses surveillance regularly. Their goal is to insure they only pay claims that are bona fide; benefits are stopped if surveillance efforts are fruitful.
We were also somewhat surprised to learn the state and its legal officers aren't acting when they learn of workers' compensation fraud based on surveillance. For reasons we don't understand, they don't prosecute. As taxpayers, we hope that trend does not continue and the state gets more aggressive when they learn a state worker is working when collecting TTD or other fraudulent actions are being committed.
We also hope some day the County of Cook and City of Chicago get serious and start actually investigating work injury claims and prosecuting phonies. Until then, your taxes are going to continue to skyrocket under administrations that continue to wink at stealing and fraud in the workers' compensation arena.
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Eugene F. Keefe and John P. Campbell Jr. are partners in the Chicago law firm of Keefe, Campbell & Associates.
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