First, the Belleville News-Democrat weighed in Sunday with an excellent and thoroughly researched article which is something of an implicit comment on the main effort of the Illinois State Chamber and other business groups to change the need for a work-related condition to be “caused” by the work. For years, liberal administrators and reviewing courts have created an almost indefensible standard of allowing work to be “a” cause and not “the” cause of the condition. The problem is numerous questionable WC claims have occurred without inclusion of an accidental event or clear work relationship.

The News-Democrat article by Beth Hundsdorfer and George Pawlaczyk titled Menard guards get $1.5 million in workers’ compensation outlines research indicating prison guards at the Menard, Illinois correctional center have already been paid more than $1.5 million since January 2009 in workers’ compensation settlements for hand, wrist and elbow injuries they say were caused by repetitive duties like the onerous task of occasionally locking and unlocking cell doors with keys. One claimant also got substantial benefits he alleged were from the horrors of handling a shaking steering wheel in an older prison vehicle. We all wonder where the next Upton Sinclair might be to investigate and demand regulation of such horrendous work environments.

The tax-free, taxpayer-funded permanency settlements range from $119,184 to $21,860, according to public documents obtained from the Illinois Workers’ Compensation Commission. Fifty-five Menard staff members — including 51 guards, nearly one in every 10 corrections officers at the lockup applied for compensation for injuries attributed to “repetitive trauma” which folks from other states call “work.” About 30 of these cases remain pending.
Four prison medical personnel, nurses and technicians and one maintenance man also have received awards or filed claims for repetitive trauma injuries.

Please note the claims listed above do not involve anything which your father and mother might think of as “accidents.” On top of repetitive trauma claims for turning keys in locks and shaky steering wheels, another 27 workers’ compensation cases were filed since last year on behalf of Menard prison guards and staff for non-repetitive injuries involving actual accidents like slipping and overexertion such as heavy lifting. A dozen of these have been approved and $282,480 was paid out in permanent disability settlements.

We want our readers to understand the amounts of $1.5 million for repetitive trauma and $282,480 for accident claims is compensation to the prison workers for permanency only—it does not include the thousands in surgeries, physical/occupational therapy and lost time that comes with the 78 claims reported above.

In contrast to the Menard facility, Illinois has two other large maximum security prisons; Stateville and Pontiac. A review of similar documents by the crack reporters for these two prisons revealed each had less than a dozen workers’ compensation claims for 2009 and 2010 and none for repetitive injury. Stateville and Pontiac prisons employ electronic systems to open doors, eliminating most of the need for manual tasks for this purpose. One cynic asked if one would wonder why pushing the buttons and flipping the switches couldn’t also be “repetitive” and justify millions in payments by the taxpayers.

Second, there was an interesting informal academic debate on the issue of work being “the” cause” between lawyers on both sides at the Workers’ Compensation Commission. Some Plaintiff attorneys view these efforts by business groups as designed to end the age-old legal concept of the “eggshell Plaintiff” with this proposed legislation. When we heard of the debate, we want all of our readers to understand the academic concept of “eggshell Plaintiff” started in U.S. personal injury law following an actual “accident” where someone made a careless or negligent mistake. To expound, when a tortfeasor or “mistake-maker” carelessly caused injury, the idea was he/she was responsible for all injuries which flowed therefrom, including injuries to someone who was in an already weakened state, such as an elderly person. If you did something careless, like running a stop light and hit an elderly person who suffered much greater injuries than a healthier person, the tortfeasor could not seek a limit on damages as if they had struck a healthier person.

In contrast, Illinois employers, under current Illinois workers’ compensation law are dealing with thousands of “eggshell” workers, such as the Menard prison guards above who apparently can’t turn a key in a door or handled a shaky steering wheel without that becoming a multi-million dollar cost to taxpayers while being a boon to surgeons and doctors who are willing provide and relate their care to “work.” As we have told our readers numerous times, when state and local governments prime the workers’ comp pump for such claims, it is very hard for private companies to make sense of the system and turn it off.

We also point out the “eggshell Plaintiff” isn’t supposed to be someone who you nudge past in a crowded bus and then screams you broke their arm or leg. The “eggshell Plaintiff” concept requires an actual “accident.” Illinois workers’ compensation has moved far from requiring an accidental injury—all you need is a:

• Job;
• A problem a doctor can claim needs surgery;
• A doctor who will generally relate the need for that surgery to your “work.”

Third, last Wednesday, December 8, some of our partners and associates attended the second hearing of the Senate Special Committee on Workers’ Compensation Reform at the James R. Thompson Center in Chicago. We consider the whole event to have a circus-like feel.

The initial group of folks providing testimony defended the current Illinois workers’ compensation system. Dr. Linda Forst of the University of Illinois at Chicago testified about AMA guidelines. She provided her opinion they should not be used in Illinois due to a studies as to scientific validity. Despite the fact 38 states use them; she urged the panel to reject the concept. Two witnesses from ISME or the Illinois State Medical Society, Dr. Tierny and Dr. Preston Wolin defended the importance of Illinois’ injured workers retaining control of selection of their physicians. They also opined the current Illinois medical fee schedule was fair even though it has resulted in a decrease of revenue to physicians, therapists and other care-givers. They opposed the adoption of a Medicare-based fee schedule. Finally, they testified to their view utilization review or UR should be decided based on peer-to-peer evaluations. Dr. Wolin has gone so far as to post his testimony on the web.

The next speaker, Howard Peters of the Illinois Hospital Association, testified changes made to Illinois workers’ compensation should only occur in the “agreed bill” process. In our view, an agreed bill isn’t going to be reached in the time frame needed to make any current reform. The next speaker was Illinois Department of Insurance Director Mike McRaith. He testified to a lack of funding for the Workers’ Compensation Fraud Unit. The Fraud Unit is not funded through the General Revenue Fund but receives funds from the surcharge. He pointed out the Fraud Unit’s funding has been cut approximately 50%. Our problem with the Fraud Unit isn’t the IDI troops—it is the fact their hard work is ignored by most of our state’s attorneys across the state. Mr. McRaith’s problem is ITLA doesn’t want any funding for WC Fraud and they will keep quietly trying to cut it or end it.

Interests favoring WC reform were introduced by Kevin Martin, from the Illinois Insurance Association. Barb Malloy was the first speaker. She is a former workers’ compensation administrator for the City of Chicago and was involved with the 2005 Amendments to the Illinois WC Act. Ms. Malloy testified the savings that were supposed to result from the 2005 Amendments were, in her words, largely “ephemeral.” We point out there were no savings and statistics indicate costs have increased on a double-digit level for some time. Next, Max Carney, CEO of Midwest Insurance explained why he believes the Illinois WC system is not profitable for insurance companies. He blamed a lack of predictability, particularly on the indemnity side, for the high costs of the system.

Thereafter, one state senator from Chicago claimed there weren’t enough minorities on the committee; then labor folks got up to extol the need for an agreed bill process; a claimant lawyer argued WC reforms would end protections for workers while increasing profits to business (other than his law firm which touts itself as Illinois’ largest personal injury firm) and a group of injured workers complained they didn’t get enough for their injuries. We are certain the Senate Committee carefully took notes during such testimony.

Joint employer representatives were then allowed to testify and companies represented included the Olin, Safeway/Dominick’s, American Airlines, and Kenny Construction. Ms. Misty Handbright with American Airlines confirmed Illinois was their most expensive workers’ compensation state per claim. Employer representatives echoed the theme that Illinois is a high-cost workers’ compensation claim state. Mike Roark with Olin testified Illinois workers’ compensation costs for his company are one-tenth of the cost in Missouri. Kenny Construction was represented by John Tuisl. Mr. Tuisl was critical in his view that Illinois has an “automatic presumption” that an injury arose out of employment. We point out there is no such legislative presumption, other than for police and firefighters with five years of service for some conditions. Not to correct John Tuisl, the “presumption” comes from administrative decision-making and not the statute.

Fourth, the House Special Committee on Workers’ Compensation Reform has scheduled two meetings this week. The first will be held in Bloomington on December 15. The second will be held in Mt. Vernon/Marion on December 16. If you need the sites, send a reply.

Fifth, many of you keep asking and here are some simple thoughts on rapid WC reform.

• Initially, we feel the State Chamber’s initial concept of trying to make the work “the” cause and not “a” cause might and should happen. The problem is how they will write the legislation to see if the IWCC administrators have to change their stripes and start to deny millions in benefits for key-turning and shaky-wheel prison guards who don’t actually suffer “injuries” but enjoy the shiny brand-new SUV’s and pick-up trucks and other perks at taxpayer expense that come from having a simple wrist or elbow surgery.
• Next, another easy way to cut about 7.5% off the permanency awards is to roll back the 2005 increases for weekly PPD. For one example, a leg used to be worth 200 weeks—in 2005, they increased it to 7.5% or to 215 weeks. If you want a defined savings both sides might accept, roll the values back to 2004.
• Last, put a cap on wage loss differential, total and permanent and death claims at 10, 15 or 20 years. Trust us, if you don’t understand how this would save Illinois business a jillion dollars while still giving injured workers money, send a reply.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

From Rich Lenkov of Bryce Downey & Lenkov LLC:

In mid-August, we helped launch the National Workers’ Compensation Commission. The NWCC is a not-for profit organization dedicated to representing the interests of employers in the workers’ compensation arena. Our mission is to provide the workers’ compensation defense industry with a voice to address the problems and concerns unique to the workers’ compensation arena by monitoring state specific legislation that impacts the insurance risk industry.

On October 7, 2010, we held our first Roundtable/Networking Session, in Columbus, Ohio. We had more than 50 attendees, consisting of a widespectrum of the Ohio workers’ compensation community, including risk managers, attorneys, and vendors. We also had the COO of the Ohio Workers’ Compensation Bureau and a representative of the Ohio Attorney General’s office. We have some exciting upcoming events and are looking for more members. If you join now, you get 2011 for free.

Please use the following link to join: http://www.nwccoalition.com/nwcc/Join_Now.html

Post Provided by Bryce Downey & Lenkov LLC. Bryce Downey & Lenkov is a firm of experienced business counselors and accomplished trial lawyers who deliver service, success and satisfaction. They exceed clients’ expectations while providing the highest caliber of service in a wide range of practice areas. With offices in Chicago, Oak Brook, Merrillville, IN, Memphis and Atlanta and attorneys licensed in multiple states, Bryce Downey & Lenkovis able to serve its clients’ needs with a regional concentration while maintaining a national practice.

2011 Medical fees will increase 1.01%

Section 8.2(a) of the Illinois Workers’ Compensation Act provides that, each year, fee schedule rates shall increase or decrease by the percentage change in the Consumer Price Index-U (CPI-U) in the previous year.

Please note this change will not affect the 76% of charge (POC76) provision. By law, where data to calculate a fee are not available, payment defaults to 76% of charge.

The 2011 rates will be posted as soon as Ingenix calculates them. We will give notice on this news web page and through our ListServe when the rates are available.

Editor’s Comment: The Illinois State Chamber of Commerce held its 2010 Annual Workers’ Compensation Conference at the Oakbrook Marriott Hotel last Thursday, October 28, 2010.  The conference was very well attended by a broad base of Illinois’ business community who are concerned with the current status of workers’ compensation in this State.

Jay Shattuck, the Executive Director of the Employment Law Counsel for the Chamber, spoke of the comparatively high cost of doing business in Illinois, particularly when measured against our neighboring states. Mr. Shattuck pointed out that Indiana, Missouri, Iowa, and Wisconsin have a significantly lower worker’s compensation benefit cost structure. He also noted many other states have made significant efforts to over-haul their respective workers’ compensation systems in an effort to become more competitive in the business arena and attract new business to their respective states. Mr. Shattuck promoted similar changes for Illinois.

The president and CEO of the Illinois State Chamber of Commerce, Doug Whitley also emphasized the primary goal of the State Chamber is to make Illinois a more attractive state for businesses to set up shop, which will create the jobs so desperately needed. Mr. Whitley outlined the State Chamber’s plan to effectuate such change, including a comprehensive compilation of data on our present system, intended to “build the case” for restructuring of workers’ compensation in Illinois. This plan includes everything from collecting statistical information on insurance costs/premiums to creating a “score card” for Arbitrator and Commissioner decisions for comparative purposes. This data will be used to advocate legislative reform to our Workers’ Compensation Act and also advocate more business friendly appointments to the Chairman and Commissioner positions at the Commission.

Gene Keefe, John Campbell & Arik Hetue of Keefe, Campbell & Associates also provided not one but two different presentations. We highlighted the unusual impact of judicial rulings such as Interstate Scaffolding, ABF Freight System and Cassens Transportation where we felt our judiciary has made unusual controversial rulings that have interpreted the Illinois Workers’ Compensation Act and Rules in an unprecedented and anti-business fashion. We feel the outcome of Interstate Scaffolding actually encourages workers on light duty to act like boors and louts; the ABF Freight System ruling strips out the time-honored defense of the intervening and superseding event with logic we consider strained; and Cassens Transportation renders it impossible to ever change a wage differential award in direct contradiction to the 2005 Amendments to the Illinois Workers’ Compensation Act. If you want a copy of our presentation, send a reply.

The Illinois State Chamber also outlined general suggestions for such legislative changes, the most significant of which include

(1) Changing the standard of compensability in Illinois Workers’ Compensation to require an accident to be the “principal cause” of the underlying condition or disability rather than simply “a cause”

(2) Consideration of AMA Guidelines for ratings of disability once maximum medical improvement is reached and

(3) Enforcing an alcohol and drug standard, making it more difficult for individuals to be awarded benefits when drugs or alcohol are involved in the accidental injury.

This platform presented by Illinois State Chamber serves as the mouthpiece for Illinois business, which has been struggling with spiraling workers’ comp costs since the Blago regime began to wildly inflate benefits at the Commission starting in 2004. That said, it is lost on no one that we stand here on the eve of one of the most important gubernatorial elections in Illinois history with regard to the potential affect on the Workers’ Compensation industry. All industry practitioners will be watching closely to the results to the gubernatorial race, as the outcome will surely dictate the likelihood of change at our Commission.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Commission Withdraws Emergency Rules Filed on Implants, ASTCs

The Commission repealed emergency rules and withdrew proposed rules on implants and ASTCs on October 28, 2010.

Medical treatment on or after July 6, 2010 and on or before October 28, 2010 should be paid pursuant to the emergency rules.

1.    Reimbursement for a medical implant shall be 25% over the manufacturer’s invoice price less rebates, plus actual and customary shipping costs incurred for the implant.

2.    In the Ambulatory Surgical Treatment Center (ASTC) fee schedule, facilities accredited for surgical treatment by either AAAASF, AAAHC, or JCAHO were specifically deemed to be eligible for the payment of ASTC facility fees.

The Commission will continue to formulate solutions to the perceived problems of accredited facilities and pricing of medical implants.

Arbitrator Hennessy Retires

Arbitrator Hennessy is retiring in December, 2010. We thank Arbitrator Hennessy for his 20 years of service to the Commission.

While Arbitrator Hennessy focuses on writing and issuing any outstanding decisions, his dockets will be covered as follows:

•    Arbitrator Kinnaman will cover the entire Geneva Docket on a permanent basis and it will no longer be a split docket.
•    Arbitrator Fratianni will be assigned indefinitely to cover the Joliet docket

=====
Illinois Workers’ Compensation Commission
100 W. Randolph, Ste. 8-200
Chicago, IL 60601
(312) 814-6611

Editor’s comment: We learned last week there is a persistent rumor about the shortly expected resignation of Commissioner Barbara Sherman. Several sources have confirmed it and we understand it is going to happen in the near future. It is our expectation the secret-powers-that-be may be lining up new Commissioners or reinstating existing Commissioners in anticipation of a possible change in power at the top of Illinois state government.

Please understand, as a defense firm, we didn’t agree with Commissioner Sherman’s legal position on many claims or rulings. That said, it doesn’t mean we were right and she was wrong—she made the call on the facts as she saw them and, as an Arbitrator and later Commissioner, she had the mantle. We want our readers to know Ms. Sherman has been a dedicated, honest and devoted public servant for more than a decade at the IWCC. She put up with lots of whining from your editor and lots of other attorneys during oral arguments and motions and always remained professional and calmly asked the right questions.

When Commissioner Sherman first began working as an Arbitrator and later a Commissioner way back in the good old 1990’s, the Commission was something of an “old boy’s network” and wasn’t particularly amenable to its first women hearing officers—in our view, she never backed down and always comported herself as a solid and knowledgeable administrator. She is one of about five attorneys in the Illinois workers’ compensation system who actually knows how to enforce a workers’ compensation subpoena.

We wish her all the best at whatever she does going forward.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Editor’s comment: One of our readers sent the recent report of the National Association of Social Insurance or NASI. This report provides some of the matrices on interstate and federal WC comparisons.

You may note Illinois, in 2008, the last year in which numbers were available was the third-highest in total payout behind California and New York. We point out the payout is just under $3 billion and only includes dollars flowing through our IWCC.

TTD or temporary total disability is typically the second highest workers compensation benefit, after medical payments. Cash benefits differ according to the duration and severity of the worker’s disability. Temporary total disability benefits are paid when the worker is temporarily precluded from performing the pre-injury job or another job for the employer that the worker could have performed prior to the injury. Most states pay weekly benefits for temporary total disability that replace two-thirds of the worker’s pre-injury wage (tax free), subject to a dollar maximum that varies from state to state. The maximum weekly benefit for Temporary Total Disability (TTD) ranged from $1,366 in Iowa to 398.93 in Mississippi. In comparison to the high of $1,366, you may note Illinois’ maximum TTD benefit rate is about $1,243.00. Nine states had a maximum of $1,000 or more: Connecticut, District of Columbia, Illinois, Iowa, Massachusetts, New Hampshire, Oregon, Vermont and Washington. The eleven states with a maximum of weekly TTD of less than $600 include Arizona, Arkansas, Georgia, Idaho, Kansas, Louisiana, Maine, Mississippi, New York, Oklahoma and South Dakota.

NASI statistics indicate roughly 70 percent of all workers compensation claims are for medical payments only, i.e., there is no compensable claim for lost time from work. Please note such claims do not flow through some state agencies.

For most lost time injuries, workers fully recover, return to work, and benefits end. In some cases, they return to work before they reach maximum medical improvement, usually with restricted duties and lower pay. In those cases, they receive temporary partial disability benefits in most states. Temporary disability benefits are the most common type of cash benefits. They account for 63 percent of cases involving cash benefits and 16 percent of total benefits incurred.

If a worker has very significant impairments that are judged to be permanent after he or she reaches maximum medical improvement, permanent total disability benefits might be paid. These cases are relatively rare. Permanent total disabilities, together with fatalities, account for one percent of all cases that involve cash benefits, and seventeen per cent of total cash benefit payments. As we indicate above, it is a statistical anomaly for the State of Illinois to have 450 total and permanent claims pending.

Permanent partial disability benefits are paid when the worker has physical impairments that, although permanent, do not completely limit the worker’s ability to work. States differ in their methods for determining whether a worker is entitled to permanent partial benefits, the degree of partial disability and the amount of benefits to be paid. In some states, the permanent partial disability benefit begins after maximum medical improvement has been achieved. In some cases permanent disability benefits can simply be the extension of temporary disability benefits until the disabled worker returns to employment.

We caution our reader to remember Illinois doesn’t follow AMA impairment ratings but uses a system similar to stare decisis—we award what other Arbitrators and Commissioners have awarded in past similar claims.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Editor’s comment: In our view the Appellate Court flew straight and true on this dispute. In Atanus v. American Airlines (No. 1-09-2380 June 18, 2010), the Appellate Court, First District affirmed the lower court’s dismissal. Plaintiff was injured while working for Defendant and another company. Plaintiff sued the airline and its employee for tortious interference with prospective business expectancy.

He alleged the airline and its manager made false statements that he committed workers’ compensation fraud to his other employer, an electric company for whom he worked as an engineer. Defendant Airline’s security investigator, upon learning Plaintiff’s work hours at O’Hare overlapped, obtained a copy of the O’Hare gate entry records and provided a copy to electric company. Upon reviewing the records, the electric company boldly terminated him.

The Circuit and later Appellate Court ruled there was no unjustified interference by the airline in providing this copy, which was a proper and accurate business record. The Court majority reasoned it was reasonable one employer would request such a record from the other.

As Plaintiff necessarily alleged transmittal of false information by Defendant airline, he must establish this allegation of false transmittal to survive the summary judgment. As he couldn’t, the claim was dismissed. We applaud the hard work of the folks at American Airlines in not backing down.

We do feel the Illinois judiciary may be getting on the WC-fraud-by-injured-worker bandwagon a little bit. We have also heard of several recent criminal prosecutions across the state. If you need a workers’ compensation fraud poster for your workplace, please send a reply. We appreciate your thoughts and comments.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

On July 6, 2010, emergency rules took effect that change the reimbursement method for implants and add accredited Ambulatory Surgical Care Facilities
(ASCFs) to the ASTC fee schedule.  The Commission filed the emergency rules with the Illinois Secretary of State for publication in the Illinois
Register. Simultaneously, the Commission filed the same language to go through the normal rule-making process.

The amendment makes two changes to Section 7110.90:

1. It changes the reimbursement method for medical implants from 65% of normal charge to 25% over the manufacturer’s invoice price less rebates,
plus actual and customary shipping costs incurred for the implant.

2. It provides that Ambulatory Surgical Care Facilities (ASCFs) accredited by AAAASF, JCAHO, AAAHC are eligible for reimbursement under the ASTC fee
schedule. Previously, the rule said the ASTC fee schedule applied only to Ambulatory Surgical Treatment Centers licensed by the Illinois Department of Public Health.

Treatment on or after 7/6/10 should be paid according to these new rules.

Comments about the amendment should be submitted in writing by August 30 to:

Darrell Widen
Assistant General Counsel
Illinois Workers¹ Compensation Commission
8-281 JRTC
100 W. Randolph St.
Chicago, IL 60601
312-814-8770
darrell.widen@illinois.gov

To view the emergency rules, go HERE.

As you may recall, Illinois Workers’ Compensation Commission Panel B upheld denial of benefits determined by the Arbitrator based upon an injury which occurred at an employer sponsored charity bowling event. See previous post here.

Paul Coghlan, from Paul A. Coghlan & Associates, P.C., was kind enough to inform us that the commission has been reversed (on May 27th, 2010) by the Circuit Court of Cook County. To read the full decision, go here.

Paul represented the petitioner in this case and can be reached at 630.887.2922 or by email at pcoghlan (at) pcpclaw (dot) com.