The Appeal Process Slow Down

Saturday, August 26, 2006 | 0

By Michael Rusin

The review process consisting of the appeal from the arbitration level to the Commission level has been very slow for the past year.

Part of the new statute was to increase the size of the Commission from seven commissioners to 10 commissioners. The purpose of the increase by three commissioners was to add a third panel of commissioners to hear appeals from the arbitration level to the Commission level.

The need for the extra panel of commissioners is difficult to explain. More than 15 years ago, a third panel of commissioners was temporarily added because of increased backlog at the Commission. At that juncture, the Commission was backlogged. However, at that time the number of applications being filed at the Commission was over 20,000 higher than it is right now. The percentage of cases being tried and appealed was significantly higher.

Moreover, back at that time the Act provided that evidence could be introduced on review, so commissioners not only read briefs and heard oral arguments, but they also spent several days a month holding review hearings and taking additional evidence on cases.

The nature of the appeals process hasn't changed. The number of cases has decreased. Therefore, the justification for a third panel of commissioners is questionable at best.

No matter the reason, the appeals process is really slow right now. After a petition for review is filed and a transcript of the evidence is prepared, the parties file briefs within 45 days. After that point it has been taking 12 months or more for the Commission to schedule oral arguments. This includes even cases involving 19(b) petitions.

A third panel was appointed temporarily many years ago to wrap up the backlog. This panel is permanent. Of course it was easier for the governor to appoint this panel once he enacted a tax on employers to fund the Commission. It's easier to create jobs in state government when you don't need state money to pay for the positions but instead you charge someone else to pay the salaries of the new state employees.

I won't predict in print how I expect the new panels to rule. However, if anyone wants to call and discuss the new appointments and realignment of panels, I would be glad to talk about it with you. At least starting in September 2006 we should see more action in getting appeals heard and cases decided that are pending on review.

We are all still adjusting to the new Act and the changes in the PPD amounts depending on the date of accident involved. Please remember to always double check the date of accident when reserving cases and making offers. The PPD schedule of losses was increased July 20, 2005, by 7.5%. It was reduced back to original levels from Nov. 16, 2005 to Jan. 31, 2006 and again readjusted upward on Feb. 1, 2006.

Temporary partial disability is now a reality and applies to all dates of accident Feb. 1, 2006 and after.

Check with employers and determine what amounts are being paid to individuals who are brought back to limited duty assignments. You can expect petitions for penalties to start coming in on individuals who have not been properly paid temporary partial disability. Attorneys will be seeking penalties under Sub-Section 19(k) and (l). Nonpayment of benefits can result in an additional award of not only 50% of the unpaid or underpaid benefit but also $30 per day up to a total of $10,000.

With the new Act and new commissioners, you can expect a certain number of petitioners' attorneys will come up with some novel and different arguments in an effort to extract even more money on cases.

I met with the new fraud investigators and participated in a seminar on workers' compensation fraud this spring. Both investigators are dedicated to actively investigating all complaints. They recognized, as do I, that the statute isn't nearly as strong as it could have been in punishing fraud. Nevertheless, I believe that they will be worthwhile resources for us to consider when we identify a case of fraud or suspect a case of fraud that merits investigation.

Michael E. Rusin is a senior partner of the Chicago firm Rusin, Maciorowski, Friedman. He can be reached at merusin@rusinlaw.com or by phone at (312)454-5119.

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