By Eugene Keefe

We have all heard one or the other WC myth or urban legend across the years. As we begin the New Year, we truly feel analysis in an open forum is a great idea.
 
    A.    Whatever is good for the plaintiff-petitioner bar is good for workers’ compensation.
    B.    Defense attorneys can effectively represent plaintiffs-petitioners in work comp claims.
    C.    Total and permanent and wage loss claims have to be lifetime benefits and widow(er)s “need” WC benefits for 25 years.
    D.    The only way to “reform” workers’ compensation law and practice is in the legislature.
 
Please let us know if you have other thoughts or ideas on the myths underpinning our system.
 
A. Whatever is good for the plaintiff-petitioner bar is good for workers’ compensation is a myth that has been out there for decades. The main idea is getting injured workers to come to the system for adjudication of their rights and responsibilities under the law. We have repeatedly pointed out the fact the vast majority of workers’ compensation claims are not litigated and are handled as either medical only or medical and lost time claims without the need for litigation or other disputes. One aspect of the Illinois WC system is the rights and rules can be complex and we are sure some of the top plaintiff lawyers insure their clients get all the rights the system provides. However, the other side of that coin is the need to simplify benefits and make the system more user-friendly for everyone on all sides.
 
The other concern with this myth is the growing perception in the state and national WC insurance and claims industry the plaintiff-petitioner’s bar so thoroughly dominates workers’ comp outcomes in Illinois that, no matter what it takes, don’t let any claim go into litigation or, once a claim becomes litigated, don’t let it go to hearing. We are hearing more and more clients tell us they will settle at the high end of the range, rather than take a chance with Illinois’ biased WC system. We feel only time will tell on that one but we are confident Illinois employers are going to continue to seek to counterattack the high litigation levels in this state.
 
And last but not least is the awful example of what is happening in Michigan where the plaintiff-petitioner bar won’t simply seek to win workers’ comp cases but has now gone federal in their efforts to vex and harass an Illinois employer who denied several WC claims in that state. In their effort to get triple damages, the plaintiff lawyers have dropped the veneer that we are all in this together and need to amicably work out differences in the best interests of workers and their employers. The business-busting efforts by the plaintiff lawyers in Michigan painfully highlight the rift that continues to grow between such zealot lawyers and the industry that uncomfortably feeds them.
 
B. Defense attorneys can effectively represent plaintiffs-petitioners in work comp claims is a myth we truly hate! The main issue for Illinois workers’ comp risk, safety and claims managers is the simple fact most “new” changes to Illinois workers’ compensation law and practice doesn’t occur in the legislature—we only change the “written” law once every other decade or so. What changes constantly is the way the law is viewed and implemented by the Commission and our reviewing courts.
 
So the problem with Illinois’ many “cross-over” firms happens when the law starts to morph from some silly theory which twists a former analysis of accepted workers’ compensation practice. The question is how long does the defense industry battle the issue. For example, overtime started to be included in the average weekly wage following the 1978 ruling in Edward Hines Lumber v. Industrial Commission. No one knew how the ruling would reach “acceptance” in the industry, particularly because the decision ran directly counter to the language of Section 10 which still excludes overtime from the calculation of the AWW. There was the possibility the claims industry would refuse to follow this law or continue to send lots of battles to the Commission to resolve the many questions raised.
 
What we saw that drove us nuts was the second case to reach the reviewing courts was handled by a defense firm that handled lots and lots of claimant cases. While their ethical responsibilities on the file were to their major defense client who they actively represented, everyone knew they didn’t want to have the Edward Hines Lumber ruling reversed. When the claim was orally argued, they quietly rolled over and lost.
 
Trust us, this is one that is relatively easy to sniff out—write your defense firm and ask them to disclose how many plaintiff-petitioner claims they handle. All of it is now online and they would be taking an enormous chance to lie to you. If you aren’t fully confident they are telling you the truth—“Google” the firm name. Trust us, the IWCC call sheets come up on www.google.com and it is pretty easy to figure out who represents who. If you need more tips, send a reply.
 
C. Total and permanent disability and wage loss claims have to be lifetime benefits and widow(er)s “need” WC benefits for 25 years is another monster Illinois WC myth. Guess what? Most states across the United States put caps on such benefits. What even the most ardent claimant lawyer will readily admit is very, very few total-and-permanent (T&P,) wage-loss or death claims are paid out as the Act clearly contemplates—on a weekly basis. Case after case is “lumped out” or paid on a one-time, one-check basis to allow the injured worker or the widow(er) to get their hands on the money faster. We still love to report the major Illinois plaintiff-petitioner firm that trumpets the fact they got not one but two life-changing wage loss differential recoveries for the same claimant.
 
We were also told by a veteran claims manager in Dallas last year that Illinois truly stands alone in providing such benefits for the supposed “lifetime” or 25-year basis. Almost every state she was aware of capped such benefits at a period of approximately 10-15 or even 20 years. She felt the lifetime or 25-year cap was one of the obvious reasons Illinois WC costs and underwriting were so totally out of whack with every surrounding state. As we have told all of you, the projected cost of most total and permanent disability, wage loss and death claims was now moving well into seven-figures to be multi-million dollar risks. We are confident more and more businesses and excess carriers will run screaming from this state when they see the potential exposures that we are certain are coming.
 
In summary, as the lifetime value of a T&P, wage loss or death case doesn’t normally provide any “comfort” or true protection for the injured worker or widow(er), it is just the starting point to create the lump sum value. If we are going to keep raising rates on a twice-annual basis, as we have done since the 1980’s, we suggest the legislature be called upon to cap the benefits for the period that would
 
Actually provide weekly protection to the worker or their family or
Simply provide a reasonable lump sum value in the right situation.
 
Either way, you should only be allowed to get one such settlement every lifetime.
 
D. The only way to “reform” workers’ compensation law and practice is in the legislature is another myth we want the various Republican candidates and all of our business readers to better understand. While the changes we outline in letter C above would have to come from the legislature, the vast majority of work comp law and practice in this state have little to do with legislation. We assert almost every major development in Illinois workers’ compensation law and practice came from either the reviewing courts or the Commission or both. We truly feel the “plain English” interpretation of the Workers’ Compensation Act is the exception and not the rule.
 
We want our readers to understand almost every major facet of Illinois workers’ comp law and practice has been molded and changed and sometimes changed again without any legislative amendments. Even the 2005 Amendments to the Workers’ Compensation Act aren’t being enforced in the fashion explained to the members of the business community who negotiated the deal—everything is molded to fit.
 
So we ask the rhetorical questions:
 
    •    Do you want work to be “the” cause of accidental injury and not just “a” cause—all you need are Commissioners who agree with that view, the statute doesn’t have to change at a bit.
    •    Do you want AMA Guidelines to determine permanency?—there is no rule against it; you just need the Commission to start using it.
    •    Do you want overtime kept out of the average weekly wage?—if the Commission started doing so, it would probably start to happen, if they won’t, good luck trying to write a law they will enforce.
    •    Do you want fewer penalty and attorney fee awards?—all the Commission has to do is stop writing them or provide clear guidelines on when to expect them.
    •    Do you want police officers who turn around to answer questions at work to not be able to get workers’ comp benefits as if they had an “accident?”—you simply need Commissioners who won’t award such claims.

Eugene Keefe is a partner with Keefe, Campbell and Associates, a Chicago worker's compensation defense firm. This column was reprinted with his permission from the firm's newsletter.