Three More Commissioners Hasn't Reduced Backlog

Saturday, November 4, 2006 | 0

By Michael E. Rusin

Around the Commission: Commissioner Assignments Made

The new Illinois workers' compensation statute authorized the increase in the size of the Workers' Compensation Commission. There are now 10 commissioners including the Chairman (instead of 7). Three new commissioners were named June 26, 2006, and they began working Aug. 1, 2006. The purpose for increasing the number of commissioners was to expedite appeals. The prior two panels of commissioners were becoming exceedingly slow in resolving the cases on appeal. The backlog commenced when the Chairman began insisting that arbitrators focus on trying cases rather than settling them.

The addition of the new third panel of commissioners has not yet had any significant effect in moving cases any more quickly. The backlog still exists and the Commission has still not been very aggressive in scheduling oral arguments. We still have many cases, even cases involving 19(b) decisions, where we are waiting over 10 months to get an oral argument date.

Each of the commissioners is being assigned Chicago cases and downstate cases. All three panels hear arguments both in Chicago and Springfield. The downstate assignments for the commissioners are as follows:

Location Commissioner Panel

Aurora, Dauphin, B
Collinsville, Rink, C
Decatur, Pigott, A
Galesburg, DeMunno, A
Geneva, Sherman, B
Joliet, DeMunno, A
Mt. Vernon, Rink, C
Ottawa, Gore, C
Peoria, Lindsay, A
Quincy, Lindsay, A
Rockford, Ulrich, B
Rock Island, Gore, C
Springfield, Basurto, C
Urbana, Dauphin, B
Waukegan, Pigott, A

Each of the commissioners is assigned to two different territories except for Commissioners Sherman, Ulrich and Basurto who only have one. It is surprising to me that Commissioner Paul Rink, who is blind, is assigned two different territories, Collinsville and Mt. Vernon, both of which are so far from Chicago.

All cases assigned to a downstate hearing location are assigned to the panel of the commissioner in charge of the downstate review hearing. The above table charts the panel to which each downstate case will be assigned for oral argument and decision.

At the Arbitration Level

The Commission has published the 2007 schedule for the Chicago and downstate arbitrators. There have not been any significant changes with respect to the downstate arbitrators' schedule. No venues have been reassigned. Slight modifications have been made in the downstate calendar.

Effective Jan. 1, 2007 there will be a major change in the Chicago arbitration schedule. Arbitrator Paula Gomora will take over the call of Arbitrator Brian Cronin. Arbitrator Cronin will become the pro se settlement arbitrator. Arbitrator Cronin will also become the emergency hearing arbitrator for any of the arbitrators who take a vacation month.

Cases in Chicago will be continued for a two-month cycle except for the arbitrator's vacation month, when there will be a four-month continuance. Cases on the downstate calls will be continued in the same manner except for those downstate venues that have two arbitrators assigned. Those cases are always continued on a two-month continuance cycle.

Settlements Requiring Medicare Set Aside Approval

Many workers' comp settlements now require Medicare set aside trusts which need to be approved by the Centers for Medicare and Medicaid Services (CMS). Frequently, CMS approval is taking an extraordinarily long time in reviewing and approving the MSA proposals. Governor Blagojevich sent a letter to the Social Security Commissioner requesting that they hire more staff to approve the Medicare set aside trusts more quickly. Chairman Ruth issued a memo to the arbitrators and authorized them to continue any above-the-line case at the parties' request if they submit a letter showing that the Medicare set aside trust has been submitted to CMS for approval. The Chairman has authorized the arbitrators to continue cases for up to a year if the case is pending CMS approval.

2007 CPI Increase in Medical Fee Schedule

As directed by Section 8.2(a) of the Illinois Workers' Compensation Act, the rates in the Illinois Workers' Compensation Medical Fee Schedule will be increased by 3.8%. That is the amount of the increase in the consumer price index -- U between August 2005 and August 2006. This increase will take effect for all treatment dates on or after Jan. 1, 2007.

Conclusion

The addition of three new commissioners so that we have a new panel of commissioners hasn't had a measurable effect on Commission decisions yet. It is still too soon to tell which of the panels will be more conservative or more liberal. We need to see more decisions before we can evaluate tendencies. The addition of the new panels certainly hasn't done anything yet to reduce the backlog.

There has not been any talk of increasing the number of arbitrators. The number of arbitrators appears to be more than adequate. Many of the Chicago arbitrators have time to try cases so long as the parties are ready to proceed to trial. Many more cases are set for trial than are actually ready for trial. We frequently prepare for hearings and find our opponents unprepared.

The transition of the Chicago status call from Arbitrator Cronin to Arbitrator Gomora is significant. Arbitrator Cronin is considered to be very fair in his decisions. Arbitrator Gomora is viewed as being more petitioner-oriented. However, having Arbitrator Cronin handle all the Chicago pro se settlements should make that process faster and fairer. Arbitrator Gomora unreasonably rejected far too many pro se settlements.

We are beginning to feel the effect of the new statute in terms of increased costs. More cases are being settled which fall after July 20, 2005 for which the new PPD schedule must be applied. It is important to remember that the new PPD schedule (increasing the PPD weeks for members by 7.5%) applies to cases with accident dates on or after July 20, 2005 up to Nov. 16, 2005 and again on or after Feb. 1, 2006.

Court decisions and Commission decisions continue to frustrate us. The statute is silent on the issue of what constitutes repetitive trauma. Our legislature has chosen to not define "repetitive trauma." Our case decisions make winning repetitive trauma cases very hard. The standard of proof is low. The Durand decision makes it now even more difficult to defend repetitive trauma cases based on the statute of limitations. We are filing a petition for rehearing before the Supreme Court. We are hoping to convince at least one justice to join the dissenting justices and affirm the Commission's denial of compensation.

Employers must be aware of the new statute and also case decisions since so many case decisions change the law and ignore the plain reading of the statute. A good example is the court's decision on the issue of interest (Estate of Emma Hoemmen case). In that decision, the court changed the law on the way to calculate interest. The court essentially decided that Section 19(g) interest was too low and circuit court interest at 9% should be applied. The court essentially overruled years of prior case decisions.

Court decisions, however, continue to support the employer's lien. The Borrowman case was an aberration. Appellate courts have routinely protected employers' lien rights. The courts are especially diligent in avoiding double recoveries. It is for the same reason that the court allowed the carrier to use workers' compensation payments as a set off against an underinsured motorist claim. Courts are more willing to grant compensation to injured employees, but they are more protective when it comes to situations where a double recovery might be made.

We could use more legislation -- but it is very doubtful. The election is next week and it is likely Democratic Governor Rod Blagojevich will win a second term. He is mired is some controversy and several associates will go to jail soon. That's almost normal here -- our electorate almost expects it -- as pathetic as that may seem.

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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