By Eugene Keefe
Keefe Campbell & Associates

The entire Illinois workers’ comp community is abuzz with reform efforts drifting here and there, like snowflakes in lake-effect snow. It will be hard to predict where it may all fall or if anything may actually happen.

 In no particular order, here are some of them:

First, the Belleville News-Democrat weighed in yesterday 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, on Dec. 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 American Medical Association 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 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 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 occur only 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, chief executive officer 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.

Eugene Keefe is a founding partner of Keefe Campbell & Associates, a Chicago workers' compensation defense law firm. This column was reprinted with his permission from the firm's client newsletter.