I attended the Illinois State Bar Association Section Council Meeting in Lake Geneva, Wisconsin on June 17, 2011.  The Chairman of the Illinois Workers’ Compensation Commission spoke at the meeting.  He indicated that the General Assembly recently passed significant workers’ compensation reform legislation (HB1698).  He provided a summary of the major provisions of the legislation which will become effective upon approval by the Governor.

Chairman Mitch Weisz spoke and outlined the following changes:

• The arbitrators and commissioners are now subject to the code of judicial conduct.

• The legislation terminates all arbitrators effective July 1, 2011.  The governor will appoint and reappoint arbitrators to fill positions.  Chairman Weisz estimated that between four and eight arbitrators may not be reappointed.  The Illinois Workers’ Compensation Commission Advisory Board will also be involved in the decision making regarding the appointment of new arbitrators.  Chairman Weisz indicated that applications are available online for individuals who want to seek the arbitration positions.  The new arbitrators must be attorneys.  However, they are not required to perform the specific testing that was required of all arbitrators who previously received appointments.  Presently, arbitrators who are serving are the only ones that are not required to be attorneys.

Upon appointment by the governor, the arbitrators will undergo 20 hours of training, including black lung training.

• One of the most significant provisions involve the fact that there would be three arbitrators assigned to each hearing site.  Chairman Weisz could not even think of the names of three downstate counties so he used three counties near Chicago as examples.  He indicated that the total downstate dockets would be reduced to a total of 12 sites with an average of 3,000 cases per docket.

Each site would have a panel of three arbitrators and cases would be assigned at random to one of the three arbitrators at each hearing site.  Chairman Weisz indicated it will be more difficult for individuals to set their cases for hearing because of the fact that three different arbitrators will be handling a single docket.  Chairman Weisz indicated that the Illinois Workers’ Compensation Commission was left out of the legislative process regarding input on this provision.  Any individuals encountering difficulties with setting their cases for hearing because of this provision should contact their appropriate legislative representatives.

• With regard to the actual signing of the legislation, Chairman Weisz indicated that the governor will sign the amendments with “almost certainty.”

• Employees of the Illinois Workers’ Compensation Commission who have claims pending will be required to refile their claims and their claims will be assigned to an Arbitrator separate and apart from the Illinois Workers’ Compensation Commission.  This would be an adjudicator or mediator selected by the Workers’ Compensation Advisory Commission.

In the middle of July, a list of three to five candidates who can be potentially assigned to the pending cases for those employees of the Commission will be posted.

• With regard to the substantive provisions, there is a Section that applies to allow unions to opt out of the Illinois Workers’ Compensation Act and have their own adjudications separately.

• With regard to the American Medical Association guidelines to permanent impairment, Chairman Weisz discussed the most recent presentation made by David Menchetti wherein he indicated that the AMA guidelines apply to permanent impairment, but the arbitrators look to disability.  Chairman Weisz had a copy of the book on the AMA guidelines and indicated that on page five there is a definition of impairment and disability.  Special attention should be paid to the language used on page five of the AMA guidelines.

Training will be provided on the AMA guidelines by potentially two individuals.  One is Dr. Scott Kale (sp?) and the other is Dr. Forrest.  Both of them have specific training in the AMA guidelines.  Dr. Forrest is in Chicago.

• Chairman Weisz also described the concern that downstate arbitrators and their dockets were viewed as a “club.”  This is why the provision is contained within the legislation concerning randomly assigned cases.  Chairman Weisz recognized that this is going to drag things out.  Since the cases will be randomly assigned to a specific arbitrator and that arbitrator may not necessarily be at the hearing site at any given month, it will almost be impossible to have your case asset with any certainty unless a specific arrangement is made with a specific arbitrator concerning your case.  Chairman Weisz indicated that if both sides cooperate, they would have a greater likelihood of having their cases heard.

• An additional provision states that the arbitrators will be serving a term of two years and then will be reassigned.

• Chairman Weisz indicated that the likely locations for downstate hearings will be either in Springfield or Collinsville.  However, the Illinois Workers’ Compensation Commission is evidently planning to sell the Collinsville hearing site so a new location may be necessary.  Chairman Weisz also indicated that the initial call may be conducted at some hotel in Collinsville and trials may still be able to take place at the Collinsville hearing site.

• It was pointed out that the governor had planned to sign the new changes to the Illinois Workers’ Compensation law at the Caterpillar plant at Peoria.  However, since there was no provision on causation, the management at Caterpillar was not so receptive to having the governor sign the new legislation at their facility.

• It was noted that the new law will take effect within 60 days of the date it leaves the general assembly regardless of whether or not the governor approves the law.  However, one of the attorneys pointed out that the new law has not left the general assembly yet.  Therefore, the 60 days may not necessarily apply.

• Another question arose as to whether certain provisions were considered to be substantive or procedural.  Chairman Weisz indicated that many of the provisions can be viewed as being either substantive, procedural, or both.  This has to do with the effective date of legislation.

• A discussion was held regarding a letter sent from the Commission to certain petitioners by an individual named Ruiz.  It had to do with the filing of Affidavits and indicated that attorneys should have filed Affidavits on behalf of their clients.

• With regard to the Illinois Injured Workers Benefit Fund, the State of Illinois has borrowed funds from the Fund and there are no longer sufficient monies within the account to make payments to any of the beneficiaries.  Currently, the fines collected would have been sufficient to cover and pay certain beneficiaries.  However, since the legislature borrowed money from the fund, there are no longer sufficient funds available.   However, the state has indicated that the monies will be paid back to the Fund when revenue is available.

• With regard to furlough days, the Chairman indicated that those are unfair and apply only to arbitrators and supervisors who are non-union employees.  He urged the governor to do away with furlough days.  However, no response was received by the governor’s office.

To see the Draft Summary provided by the Chairman, click here.