New Commission Rules

With a new year brings new rules at the Illinois Workers’ Compensation Commission.  In simple terms, the Illinois Workers’ Compensation Act is the law of the land in Illinois with regard to the adjudication of workers’ compensation claims, as well as the regulation of employers and insurance carriers who do business in Illinois, at least with regard to workers’ compensation law.  The Rules of the Workers’ Compensation Commission set forth the practical administrative methods by which the law is enforced and the cases are adjudicated at the Commission.  

 

The Rules have been in place for decades, but in early 2015, Chairman Joann Fratianni appointed a committee to study the existing rules to determine whether the function of the Commission could be improved by updating and, if necessary, rewriting the rules.  The Rules Committee was co-chaired by Commissioners Michael Brennan and Stephen Mathis, with assistance from Arbitrators Mason, Friedman, McCarthy and Pulia.  In addition, Chairman Fratianni appointed eight lawyers from the Petitioner’s bar and eight attorneys from the Respondent’s bar to participate on the Rules Committee.

 

The Rules Committee was subdivided into subcommittee assignments to review four aspects of the current rules:  pretrial practice, trial practice, review practice and miscellaneous rules.  Each subcommittee was made up of one arbitrator and four attorneys (two Petitioner and two Respondent).  The goal was to rewrite the existing rules to better permit the Commission to operate in a more efficient, transparent, effective, fair and neutral manner.  After many meetings and revisions, the proposed rules were submitted for notice/public comment on July 26, 2016.  Following the the first notice period, comments from the Joint Commission on Administrative Rules and interested members of the public were taken into account and various revisions and amendments were adopted by the Commission and submitted for second notice on October 11, 2016.  The Rules as considered by JCAR were then called and adopted by the Commission on October 29, 2016.  The final version of the rules was codified into the Illinois Administrative Code and published in the Illinois Register on November 28, 2016.

 

So, what has changed as a result?  Likely the most important administrative change will be electronic filing, which has not yet been instituted but is on the horizon.  The Commission enacted several new rules in anticipation of electronic filing, including:

– Requirements regarding registration with the Commission’s electronic filing system

– Electronically filed documents must conform with to Commission’s format rules

– Transaction numbers will serve as proof of filing; documents filed before midnight are considered filed as of that day; parties can petition the Commission for relief due to technical failure or system outage

– Electronic signatures considered to be valid, with the system matching a signature to holder of user ID and password; original documents to be maintained by the parties

– Electronic service cannot confer jurisdiction and cannot replace personal service, but otherwise electronic service on the other party is acceptable

– Parties must avoid the filing of private or confidential information

Apart from the new rules concerning electronic filing, the Commission adopted revised rules dealing with the four categories noted above:  pre-arbitration, arbitration, review and miscellaneous.  Some of the more important changes are set forth below:

 

Pre-Arbitration

– Amended Applications for Adjustment of Claim must be clearly labeled “Amended” and the Commission shall have discretion on whether to allow such amendments after the commencement of a hearing on the merits

– Time for service of motions has been extended to 10 business days by mail and 5 business days by hand

– A Notice of Motion and Order submitted without an accompanying motion may now be stricken

 

Arbitration

– Applications filed for same body part or against the same employer shall be assigned to the arbitrator of the earliest filed case, with an exception for good cause

– Restrictions on Respondent’s filing for a trial date have been eliminated and now any party may file a written request for a date certain for trial

– Depositions of witnesses may be taken before and during trial by stipulation or agreement of the parties in addition to order by dedimus potestatem

 

Review

– Evidence relating to procedural issues relevant to the review process may now be submitted, an exception to the rule that no new evidence is to be submitted on review

– Post-arbitration hearings under Sections 7(a), 8(a) and 19(h) shall be assigned to the Commissioner of the original hearing, absent good cause to the contrary

– The Petitioner has a right to be present at any oral argument

– On appeal to the Circuit Court, no request for summons may be filed or may be issued unless the party seeking review of the Commission decision has shown proof to the Clerk of the Circuit Court that it has filed with the Commission a notice of intent to file for review

– Parties must file any remand order from the Circuit Court with the Commission within 30 days of receipt of the order, at which time the Commission will set the matter for hearing with the original Commissioner, when practical

 

Settlement Contracts

– Rules regarding assignment of cases on settlement contracts have been simplified to allow assignment to a random arbitrator within the appropriate venue

– Once a Commissioner has rejected a settlement contract and reassigned the case to an arbitrator for hearing, any subsequent presentation of a settlement contract must be back to the Commissioner and not to the arbitrator

 

Insurance

– The minimum security furnished by a self-insured employer to guarantee payment of workers’ compensation obligations has been set at $200,000.00

– Surety bonds furnished by self-insured employers must now be on a form prescribed by the Commission

– Termination of an employer’s self-insured status does not terminate the employer’s obligation to provide security for workers’ compensation obligations

– Commission has a right under Section 4(d) of the Act to seek reimbursement against any employer/officer/director for obligations paid by the Injured Workers’ Benefit Fund

– In order to qualify for payments from the IWBF, a claimant must have filed an Application against the employer and the State Treasurer (as custodian of the Fund)

 

Miscallenous

– Rules with regard to Freedom of Information Act requests have been updated and clarified

– Commission Handbook shall be maintained on the Commission website, in lieu of the provision requiring employers to provide a copy of Handbook upon receipt of notice of an accident

– Modification of the rule requiring vocational rehabilitation assessments:  period of total incapacity now 365 continuous days (formerly 120 continuous days)

– Upon the filing of a verified complaint alleging attorney misconduct or unethical behavior, the Commission shall refer the matter to the Attorney Registration and Disciplinary Commission

 

It is hoped the new rules and revision of existing rules will in fact provide for a more streamlined and fair process at the Commission, allowing both parties to move cases to resolution in a more expedited fashion.  In addition, once electronic filing becomes the standard, the Commissions’ filing procedures will come into line with those of the Circuit Courts and Appellate Courts, both of which have instituted electronic filing requirements.