The Time for Sunshine in Illinois WC System is Now

Thursday, February 12, 2009 | 0

By Eugene F. Keefe

Synopsis: Who are the secret folks who run  Illinois workers' compensation system? Is the clandestine Illinois WC system ready for the light of day?
 
Editor's comment: We were fascinated to see a news report in the Chicago Tribune indicating Illinois Attorney General Lisa Madigan Attorney General Lisa Madigan blasted former Gov. Rod Blagojevich for imposing a "culture of secrecy" on state agencies under his control and hampering release of public records.

As part of this article we learned there is now an Illinois Reform Commission and they have their own new website at http://reformillinoisnow.org/mission.php. Most of you will be stunned to learn they are asking you and me and everyone reading this for comments, thoughts and questions on what to do to reform our nutty state government.
 
The Tribune article indicates Ms. Madigan told the Illinois Reform Commission the Blagojevich administration repeatedly refused to release information the public and the press were legally entitled to under the state's Freedom of Information Act. She is quoted as saying: "Former Gov. Blagojevich made secrecy, not sunshine the default position of state government."
 
The article further indicates new Gov. Pat Quinn created the Reform Commission to come up with ways to sanitize our smelly state government in the wake of the numerous Blagojevich scandals. The commission includes many notables, including the man who put former Gov. George Ryan in jail, Patrick Collins, Northwestern head football coach Pat Fitzgerald, Cook County State's Attorney Anita Alvarez, Pamela Davis, the CEO of Edward Hospital, and Lawrence Oliver, chief counsel-investigations for the Boeing Co., among others. We wish them all the best. We will send relevant parts of this article to them for their consideration.
 
The Tribune quotes Madigan who said agencies under Blagojevich "arrogantly" refused to respond to information requests and she said agency officers told the attorney general's office they were directed "from the top" to deny requests. While Madigan had created a position to help the public get access to information, there were limits on how much they could do because of the state's weak Freedom of Information Act law.

Madigan gave suggestions to Gov. Quinn about using an executive order to increase compliance with public records laws. For example, she said Quinn could designate an attorney within his office to serve as a senior public information officer to ensure that state agencies, boards and commissions comply with the law. Madigan has suggested a senior public information officer then review all the FOIA request denials during Blagojevich's six years in office and determine whether that information can and should be made public.
 
Keefe, Campbell & Associates falls into the group of folks who were asking for information and getting stonewalled. In years past, we repeatedly wrote and made formal Freedom of Information Act requests seeking test results and the selection process for Illinois arbitrators. We have always considered it comical to see police and fire candidate testing results posted on the web, but our arbitrator testing for jobs that are paid substantially more money are kept secret to the point of being similar to nuclear weaponry. After pushing, calling and writing over and over again, we were told they would never voluntarily respond and the only way to get such information was to file suit. We then made the clear decision not to waste the money litigating such a difficult and complex claim. We hope someone will start to open the door and let the light in.
 
What else is kept unnecessarily secret and not in the sunshine in our  Illinois Workers' Compensation system? Who are these folks who secretly run the place? Please note we are not suggesting anything is illegal in keeping things quiet. Some of the secret decisions are bad simply, because they are kept from the public and the people and businesses that have a stake in the decision-making process. Please understand, hundreds of businesses across Illinois are continuously considering Illinois as a location for more, or less, business and, most importantly, jobs. They all ask us the same questions: Is Illinois a good place for business? Is the workers' compensation system open and fair? If you don't know it,  Illinois business spends between $3 billion to $6 billion every year on workers' compensation costs. They need and must have a say in the process. We urge everyone to let the sunshine in.

So, for starters:

1.  Judiciary No one in the public eye has any idea how or why the justices who sit on the Appellate Court, Workers' Compensation Division are selected. The justices may have lengthy experience in the workers' comp arena or they may know nothing about it at all. We have seen justices sit on the panel for two or three years until they ask a single question in oral arguments.

In 29 years of practice, yours truly has only seen one appellate justice who ever actually tried a workers' compensation case (he sits on the current panel). Other than that justice, we have never seen any member of the panel visit the IWCC or sit in on hearings or listen to orals at the commission. We don't think learning on the job is a great idea at that level. To our knowledge, this selection process may involve the inner workings of our Supreme Court and we elect those folks so it may be up to us to ask them to tell us how this panel is picked and what the candidates' qualifications and proclivities may be.

2.  Judicial rulings No one knows how or why so many secret and non-precedential Rule 23 orders are issued by the Appellate Court, Workers' Compensation Division. We truly feel it gives the whole WC appeal process a feeling of happening in a clandestine star chamber. In the last year and for the first and only time, we saw this honorable panel attack a law firm for filing a frivolous appeal and the court hammered them with enormous fees and costs, causing a major rift between counsel and client. We agree strongly with the court's ruling, but found out about it only because a reader sent it to us every member of the practicing bar on both sides had a right to be forewarned of this new proclivity of the court but the striking and detailed Rule 23 order remains hidden to this day.

Every year, we attend a national round table for Illinois WC defense lawyers and all of them routinely talk about a ruling that helped them or a ruling that hurt their client or a legal nuance the practicing bar should be aware of. After telling the audience about it, the defense lawyer then shrugs and says, "Well, it is Rule 23 decision, so forget I just told you about it."

What is staggering about this whole concept is the members of the court never tell anyone why or how they make the determination to keep a vitally important ruling or possible precedent secret from the public. What is even more maddening is when we hear a number of claimant lawyers all talking about or citing a Rule 23 decision they consider favorable when the only way to learn about it is through their grapevine.

We have been advised by petitioners' lawyers to actually send such rulings to uninformed adjusters and possibly mislead the adjuster into thinking such rulings bear on active claims when the Appellate Court says they have no precedential value.

Rule 23 was supposed to allow mundane and routine orders to not reach the level needed for publication, it was not supposed to be a tool to hide crucial important rulings from the practicing bar and the public eye. In this day and age, it costs thousands of dollars and years of hard work for either side to take a WC case all the way to the Appellate Court. The parties have a right to demand publication of the outcome. Every appellate ruling of any possible merit should be published every time and all the time. We consider the non-publication of so many important legal rulings to be wholly unnecessary and a public disgrace. Numerous secret rulings run completely contrary to what  U.S. justice is supposed to be about - let the sunshine in.
 
3.  Chairperson/Commissioners The entire process for selecting and then confirming chairpersons and commissioners is kept completely out of the public eye. We still laugh about the politician who knew absolutely nothing about workers' compensation and got the job solely to improve his pension. We understand such jobs are created and designed to be purely political appointments. "Political" equals "secret" only in Illinois.

In other states and the U.S. Government, they vet or display potential political appointees to the media and public, prior to their final selection and confirmation. The process subjects the candidates to being scrutinized from every quarter. Former Illinois citizen and current U.S. Secretary of State Hilary Rodham Clinton wasn't secretly selected by President Barack Obama and her confirmation by Congress wasn't done completely in secret.

This firm closely watches the Illinois WC system for several thousand of our readers. For the last thirty years, we first learned the identity of every IWCC chairperson only after they were selected, appointed and confirmed by the legislature. For example, if we learned a candidate had not paid his/her taxes for 10 years, he/she would still have the post and the secret power-that-be would have to make quiet adjustments to quell any media outburst. This hidden selection process reeks like really new cheese or really old meat.
 
4.  Arbitrators The testing and selection of arbitrators is clearly not a civil service process. Those secret powers-that-be are always manipulating it. There is no question arbitrator selection and retention is purely political. As we have pointed out many times, the first chairperson selected by Blago had the political power to insure all hearing officers in the arbitrator position were completely under his and only his thumb. He bragged at numerous presentations that he and only he appointed this arbitrator or that arbitrator.

Civil service jobs are supposed to be earned by testing and other open selection criteria, like military preference. The chairperson was very clear to indicate he considered military service in making decisions and we are sure he might have done so, however, what it meant "to consider military service" is known only to him, as his full selection standards, if there were any, have never been disclosed.

We are confident future arbitrator candidates will continue to be quietly hand-picked by the secret-powers-that-be and then told to take a test that isn't openly publicized on the commission's website and then appointed solely for personal or political reasons in a clandestine process that is never, ever made available for public analysis or scrutiny. Thankfully, that is not how police and fire officers are selected, but it will remain the way of our Workers' Compensation Commission until it is changed and reformed.

5.  Commission makeup/budget As we have told our readers in the past,  Illinois business pays every penny of the cost of the place. We truly feel everyone needs an open, honest and fair assessment of staffing needs and efficient use of resources. This has never, ever been done in the open.

We question whether Illinois needs 35 arbitrators. Indiana to our east has five.  Illinois has nine commissioners.  Each commissioner has two full-time attorney assistants. For one clear example of budgetary indifference, the commission's 2007 Annual Report says the nine commissioners consider up to 1,500 administrative appeals each year. They settle as many as 600 of those cases. On an annual basis, they dismiss about 100 cases. They summarily affirm about 400 of the remaining arbitrator decisions and don't actually write an award other than to confirm they aren't changing the arbitrator awards. Worst case, that leaves about 400 contested decisions to consider each year and they have 27 lawyers working full-time to do so. If you do the math, that is 14 cases per lawyer per year or approximately one contested case to decide every month. With deference to our hearing officers, it is impossible to consider the commission is working efficiently when one considers those numbers.

6. Legislation The legislative process in Illinois WC has been done on an agreed-bill process that is also kept a tight secret. How one gets to be on a legislative panel or seek any real say in the legislative process is similarly secret. We think they give out secret rings to the members, have a secret handshake and all of the participating organizations may have to all swear on their pinkies not to tell anyone about anything. That is how things in Illinois have been done in the past  we hope it stops in the future. If you think that Illinois business gets repeatedly slammed because the claimant bar has very strong veteran representation on legislative changes and the defense bar is left on the outside looking at a big wall, we agree with you. We have told you how business reps agreed in 2005 to legislative changes that sounded good but that had no legal value when the affected claims were considered by our hearing officers. We feel the secret process led directly to that outcome and will continue to cause similar dysfunction in a system that cries for reform. We hope the sunshine gets into future legislation from now on.
 
If you are with Illinois business or labor and think the code of secrecy in Illinois WC is good for Illinois , please tell us why. We think Illinois business gets their brains beat in every day at the IWCC and will continue to do so until these processes are opened up and someone can balance the system.



Eugene F. Keefe is a partner in the Chicago law firm of Keefe, Campbell & Associates.

The views and opinions expressed by the author are not necessarily those of WorkCompCentral.com, its editors or management.