Thoughts and Comments from the Sidelines on the New IWCC

Friday, October 21, 2011 | 0

We give credit for these changes to the amazing members of the Fourth Estate. The two quiet hard-working reporters at the Belleville News-Democrat, George Pawlaczyk and Beth Hundsdorfer, turned the world of Illinois workers' compensation on its collective ear with stories about a claim-crazy prison, arbitrators getting workers' compensation settlements and how things were going in Southern Illinois. Add the influence of Illinois State Chamber President Doug Whitley and Jay Dee Shattuck and you will note the 2011 amendments to the Illinois Workers' Compensation Act are about as sweeping as any in the history of this system.

One of the things that was changed was all sitting arbitrators were put under a microscope in a vetting process that created lots of hard feelings, litigation and uncertainty from May 28, when the legislation was passed by the Illinois House and Senate until Oct. 14,when these changes in our arbitration staff were announced.
 
Eight sitting arbitrators were not reappointed by the governor and are now out of work. We are saddened to hear they were given short notice of their change in status. All of them were knowledgeable, hard-working, honest and veteran hearing officers: John Dibble, Gilberto Galicia, James Giordano, Kathleen Hagan, Robert Lammie, Andrew Nalefski, Richard Peterson and Joseph Prieto. One arbitrator, Charles DeVriendt, is to be appointed as a Commissioner. Former Arbitrator Jennifer Teague, now Carril, resigned on her own July 30.
 
These sitting arbitrators were reappointed: Peter Akemann, George Andros, Milton Black, Kurt Carlson, Brian Cronin, Greg Dollison, Anthony Erbacci, Robert Falcioni, Joann Fratianni-Atsaves, Douglas Holland, Gerald Jutila, David Kane, Jacqueline Kinnaman, Edward Lee, Stephen Mathis, Neva Neal Mundstock, Peter O'Malley, Maureen Pulia, Jeffrey E. Tobin, Ruth White and Robert Williams. By our count, that is 21 hearing officers.

The governor's press release indicates they will now suddenly make our workers' compensation system "professional, transparent and fair." Lots of our defense clients want us to get shirts or lapel pins printed with those three words or even the letters P.T.F. on them. Let us know if you have interest.
 
Newbies who were selected and are also certain to follow this new P.T.F. standard are: Carolyn Doherty, Barbara Flores, Gerald Granada, Svetlana Kelmanson, Joshua Luskin, Molly Mason and Lynette Thompson-Smith. Again, we count seven new hearing officers, bringing the total number of arbitrators to 28.

Thought No. 1:  Hanging all arbitrators out to dry with NO TENURE and short appointment terms isn't a great idea.T
 
Back in the good ole' days when your editor started working as a defense lawyer, we heard tales about the Workers' Compensation Commission being totally political. Basically, the arbitrators were sudden slaves to the politics of the time. If the Republicans were in power, we had Republican arbitrators. If the Democrats took over, all the Republican arbitrators knew they were canned and found new jobs on election night when the results were final. Basically, every four years, we got new folks to decide cases. Someone with vision didn't like that and brought civil service protections to the job.
 
Truth be told, the arbitrator job remained a political position because the testing was always kept secret and everyone had a political patron. However, once civil service protection was added, we are certain a few arbitrators stayed on even when their political party was ousted. Further, they could occasionally provide mildly to moderately controversial rulings without being immediately canned. There was some semblance of protection and tenure in their jobs. Trust us, that is now gone. We don't think that is necessarily a great idea, particularly in a state as corrupt as Illinois has been in years past.
 
Under a "reform" governor in Patrick Quinn, we have now gone back to the pre-civil service system of wholly political appointments. Some of you may consider that a step back and not forward. There is no arbitrator in this state whose job is guaranteed for more than three years. Some arbitrators have terms that end in just 362 days because they were reappointed last Friday. We don't understand how the three attorneys who interviewed all of them and remain on the Workers' Compensation Advisory Board aren't going to have obvious conflicts of interest in appearing before such hearing officers when they could vote to fire them in less than a year if the attorneys don't get the arbitration awards they seek. To us, that power creates a clear conflict of interest.
 
And going beyond that obvious problem, we can now expect all arbitrators are going to align with the party in power because they have no job protections of any kind if the administration changes. Whichever side of the political fence you are on, we don't think this is an improvement. Again, we are going to have to wait and see if that works out well or not at all.
 
Everyone will need to monitor the governor's press release promise of a "nearly 9% decrease in compensation costs for Illinois employers."
 
As observers of this system, we have been asked whether the newly appointed 28 arbitrators are now mostly middle-of-the-road folks. In our view, what happened is gut-wrenching but it is mostly public relations fluff. Statistically, they haven't made much of a change: About 75% of the arbitrators under the old system are back. Lots of former claimant attorneys are still very much in the arbitration mix.

We assume all of the "new" arbitrators are being advised to tone it down on awards, adhere to PTF and find a median that may make Illinois workers' compensation less shocking and more palatable to the public and most employers. We are also confident they will be the safest arbitrators who have ever worked at the Commission because they may assume if they get injured while working, it better occur in front of a nun, a minister and a rabbi who all just got back from eye tests and combine to agree an accident occurred. In short, we feel any "new" arbitrator who makes a questionable workers' compensation claim for a work-related injury may assume they need to find new work as soon as their short terms are up.

Will the “new” arbitrators follow traditional workers’ compensation law concepts?

What we are looking for in the future and will report to our readers are several legal trends:

A. One trend we feel greatly expanded the coverage of the act was the stripping out of lots of common-sense defenses. As we have written, one galling example was occurred when a truck driver strained his back and hadn’t recovered enough to actually return to his old job. While still on temporary total disability, he fell off his personal motorcycle and ended up in intensive care unit with all sorts of new medical issues, including a pain pump. The age-old and common-sense concept of “intervening and superseding event” was ignored and the employer is now being forced to pay for the motorcycle accident that had literally nothing to do with work.

B. Another odd trend from the last decade is the wild expansion of the “traveling employee” concept. We are concerned lots of injured Illinois workers still going to be viewed as “traveling employees” so as to end the “arising out of” requirement for anyone who is moving in any way at the time they are injured. As we have advised on numerous occasions, this legal trend at the Commission started about eight to ten years ago. The concept of expansion of the traveling employee concept basically ended the “arising out of” requirement.

If you take a look at Professor Arthur Larsen’s seminal work on workers’ compensation, the term “traveling employee” was supposed to be someone whose employment sent them to a wholly foreign place for work. In a foreign country, the worker faces challenges in coping with foreign language, customs, diseases and dangers. It makes sense to globally cover a worker in such a setting.

The concept has been wildly expanded to the point that anyone who is moving when injured may be characterized as a “traveling employee.” For one sad example, a police officer was asked directions while walking his normal beat. He injured himself in the simple act of turning around. The Commission and courts found him to be a “traveling employee” and found this event was covered. Now, the new Amendments seem to require strict proof of the “arising out of” concept—we are going to have to wait and see how that may be implemented.

C. Another odd trend may be what got us the workers' compensation reforms in the first place. Basically, if the words “repetitive trauma” appear in an arbitration ruling, benefits were awarded. We continue to fight and will always fight the concept that all work is inherently “repetitive” so anyone having pain at work should somehow be covered by the Illinois Workers' Compensation Act. This odd concept could bring awards for falling arches, aging eardrums, beer bellies, varicose veins—all conditions of life that inevitably hit us as we age, whether we like it or not. Folks in other states laugh until they cry to see awards being provided when “repetitive work” claims were being made. It is our hope the “new” Arbitrators will start to demand actual “accidents” are proven.

D. Last but not least, utilization review, or UR, is now supposed to be a strong measure of the limits of medical necessity. Lots of the “new” arbitrators have been in their jobs since UR was added to our Illinois Workers' Compensation Act in July 2005. It is our hope these “professional, transparent and fair” Arbitrators start to adhere to UR and not award medical treatment and bills that aren’t certified by UR. Again, the proof will be in the pudding.

If you want to read Governor Quinn’s press release, it is on the web here.

Eugene Keefe is a founding partner of Keefe, Campbell & Associates, a Chicago workers' compensation defense law firm. This column was reprinted with his permission from the firm's blog.