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Keefe: My Illinois Workers' Comp Arbitrator Wish List: [2017-09-13]
The Illinois government is closing in on a financial turning point. The way things have been done in the past may not get our nutty state government to the future. I truly feel we have to start doing things better and more effectively if we are to have any hope or expectations at all.
Gov. Bruce Rauner just politically reappointed/appointed a number of new workers' compensation arbitrators. I believe his appointments have to be rubber-stamped by the state Senate. We salute all the newbies and reappointments, and don’t feel there are any clinkers in a solid, professional group.
I have criticized the system for locating and selection of these hearing officers for years as being secretive and moderately dysfunctional. I had sources tell me the system to source and select arbitrators is more open and fair that I might think. I want my sources and readers to all remember Oscar Wilde’s quote about secrecy: “The commonest thing is delightful if one only hides it.”
With respect to the insiders at the Illinois Workers' Compensation Commission and elsewhere, I still feel government is supposed to be done in the light of day.
When I talk about secrecy in selecting arbitrators, I confirm I have been in this job for over 37 years. I have never once seen an ad or job posting for a WC arbitrator. They used to do an “arbitrator’s exam” to give normal folks the impression there was an independent vetting process. The exam was as phony as a $3 bill. Thankfully, someone ended that charade about 15 years ago.
Still, I have no current idea whom to talk to or beg or even ask about getting on the short list to be an arbitrator. I bet I could find out by asking all the right folks. That is precisely what I feel is objectionable about the secret process.
Even under a Republican administration, headed by a maverick governor in Rauner, you still have to know someone who knows someone who knows someone else. The problem with my complaints about secrecy is everyone in the vetting process was chosen due to their adherence to secrecy, and they are all certain that the only way to select the “right stuff” is to keep the process secret.
If you don’t like secrecy, they are certain to block/exclude you because you simply “don’t know.”
So enough whining by me about the Secret Squirrels who select arbitrators. If you are going to do it secretly, please admit to the governor that you and your troops are responsible for the high workers' compensation costs in this state. You can’t have it both ways.
Here are three bona fide things I want our arbitrators to do.
1. Follow the rules on ending ancient claims
I randomly picked three call sheets for this coming week from the IWCC website. The oldest claim I quickly saw was from 1999 — almost two decades ago. The second claim I saw was from 2002. The next three claims were from 2003.
In any given IWCC call sheet, there are numerous claims that are well over 10 years old. I consider that a national disgrace and feel something has to be done to get such claims current. The Secret Squirrels clearly, but quietly, don’t agree.
Illinois workers’ comp claims are supposed to be relatively easy to resolve. There are lots and lots of stipulations/agreements the parties are required to enter into as part of resolution. At some point, claims are allowed to sit and grow cobwebs, and go literally nowhere.
Some of the reasons are due to claimants' attorneys not wanting to deal with nutty or dangerous claimants. That is why motions to withdraw as counsel were created. Some of the reasons for delays in closure are also due to never-ending medical care; that is what utilization review and independent medical examiners are for. We urge the new and renewed arbitrators to start moving ancient claims off the hieroglyphics and into the present day on the status of medical and lost time.
My other problem is I occasionally see arbitrators not caring and not doing nearly enough to get oldie-moldie claims closed. I can’t continue to accept that approach.
The IWCC’s favorite “stall” or dodge is the never-ending need for medical records and/or medical bills. For most arbitrators, if you say you don’t have medical records/bills, the words “case continued” quickly follows. The problem with that concept is that many doctors and health care givers are moving to electronic records where you can get the records as fast as the speed of light, if the provider is willing to cooperate.
FYI: If they are properly served, subpoenas have to be properly enforced to command response. I have seen only one arbitrator in 37 years demand compliance with subpoenas.
One suggestion I have is to create a new and special arbitrator job. Give one or maybe two arbitrators the job of efficiently and effectively ending any claim over five (or whatever) years old. Have them do only that work. Put all such claims on a computer calendar system designed to put/force any issues on to a reasonable time spreadsheet with accountability for all sides.
If the parties know they have to produce or their claim will be defaulted or dismissed, I promise things will start to move faster and we won’t have 10-20 year old claims that don’t help anyone.
Another suggestion is to steal an idea from the Indiana Workers' Compensation Board. It has a rule where the parties don’t have to get a hearing date, but if they do, the claim has to change to trial, settlement or dismissal. This approach might stop the incessant back and forth of attorneys moving for hearing and getting the claim kicked to move again and get it kicked again into almost infinity.
Do you have any ideas on how to make this system work more effectively? Please send them along.
2. Cut comp costs before Oregon’s 2018 premium ratings come out
Many folks feel Illinois comp costs should be trimmed somewhat to make our state more amenable to CEOs and others who care about making money here. I have some simple thoughts to get our costs lower and more competitive with our sister states.
Please note: I don’t feel we need to win the race to the bottom to leave Illinois’ injured workers out in the cold when seriously injured, like some of the other insensitive states do. Work comp has to be moderate and reasonable. I'm happy to provide examples.
First, I recommend/suggest Gov. Rauner or his staff, and IWCC Chair Joann Fratianni and whoever else cares, set an informal meeting with all arbitrators/commissioners who would voluntarily attend.
No. 1 on the agenda is to confirm we need to get comp costs to the middle of the pack. To my understanding, we only need to cut costs/awards by about 7% or so to get to the middle of the 2018 Oregon premium rankings.
In the last reported ranking in 2016, Illinois’ workers’ comp premium ranking was seventh, at $2.23. Alabama was the middle, 25th at $1.85. Take a look for yourself.
The ranking comes out in about 13 months, or around October 2018. At the meeting I suggested above, I would challenge our arbitrators to cut our premium rating from $2.23 to $1.85 or thereabouts. They can do it if they try.
I suggest the governor or his staff start to watch rulings/decisions to get the bottom line on what is happening with his ongoing and future appointees. If they aren’t bringing our comp costs in line, consider others for the jobs. Stop reappointing folks because they are “nice” people and get along with the Secret Squirrels but don’t show verified lower outcomes.
At the meeting, I would strongly confirm that the governor will be happier with the arbitrators who can demonstrate somewhat lower permanent partial disability awards/settlements/pro se approvals. I suggest these thoughts be clearly stated to avoid any confusion.
I also suggest that they review and converse on claims where there clearly is no PPD or permanency present. For one example, in years past, hernia claims used to be worth nothing for PPD.
Since the Blagojevich years, they have been worth 2% to 10% body as a whole. That can be a lot of money for high-wage workers when surgically repaired hernias typically don’t cause “permanent” or measurable loss.
For any claimants' attorney who feels compelled to tell me hernias cause impairment, please note I have had such surgery, and you are wasting your time to tell me there is any sequalae from it.
If you want more examples of claims that don’t merit PPD, send a reply.
3. Consider an arbitrator’s decision complaint box
A final thought would be to have someone named to take in comp rulings that aren’t just high or challenged, but truly a mess.
For one example, I had a claim I defended where the worker had a burn to her thumb from a spark while plugging in an appliance at work. She might already have been a narcotic drug addict. She then clearly had addiction issues. Her job was truly sedentary. My client brought her back to work and quickly noted she was completely buzzed out on narcotics. They simply sent her home and told her to kick the stuff.
An arbitrator found the claimant was unemployable and provided her a total and permanent disability award for a barely visible burn to her thumb. The value of the award was $2.4 million! When I read the award, I not only wanted the claim reversed on appeal, I wanted this arbitrator to return to the private sector and get out of adjudicating comp claims.
I got the claim reversed on appeal and salute the IWCC panel for doing so. In traditional IWCC fashion, the panel did not criticize the arbitrator in drafting the inexplicable ruling.
There needs to be a place to listen to complaints about completely crazy rulings. I am happy to volunteer to review/read and save any arbitration award that any of my readers feel is controversial for either side of the comp matrix. If you send it to me quietly, I will analyze, and if I feel it appropriate, send it to the powers that be for their consideration. Controversial or crazy decisions should be part of the arbitrator re-appointment process.
If Fratianni or counsel Ron Rascia or someone else with Secret Squirrel influence wants to do this, I would ask them to let me know. Something makes me think that won’t happen, but you never know.
Eugene Keefe is a founding partner of Keefe, Campbell, Biery and Associates, a Chicago-based workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.