Ill. WC Reform is a Smashing Success

Friday, June 10, 2011 | 0

By Eugene Keefe
Keefe, Campbell & Associates

 Firstly, we have to give credit where credit is due-the Illinois workers' compensation system has suddenly become waaaaaay more business-friendly. We assure all of our readers the enormous savings from the new bill, when it becomes law, will be in the nine-figure range or somewhere between $200-500 million.
 
Yes, America, the Illinois legislature has demonstrated the brains and guts to make serious WC reforms and Illinois wants your business. We give kudos to House Speaker Michael Madigan and Senate President John Cullerton along with Doug Whitley, the President of the Illinois State Chamber of Commerce. If/when Governor Quinn signs the bill, he gets credit also. While there is still work to be done at the IWCC in creating a causation standard that may make better sense, we have to stop and tell everyone to consider Illinois as a place where workers' compensation costs are going to drop and drop real soon. Please start thinking Illinois when it comes to starting or building new businesses.

Secondly, the singular message to our readers in the risk management industry with WC risk to manage in Illinois is patent get into a preferred provider network for your workers' comp medical care. We assume folks in that industry are going to have the phones ringing off the hook. Every aspect of controlling rising medical and pharmaceutical costs in Illinois workers' comp claims will come from moving to such networks. For the doctors and hospitals who are interested in handling WC patients, get into a PPO as providers.
 
Thirdly, we want remind everyone the recently passed WC reform bill has not yet been signed by the governor and it not yet Illinois law. Every indication is he will sign it but it may take place as late as August. In Illinois, any bill not returned by the governor within 60 calendar days after it is presented to him shall become law. If recess or adjournment of the General Assembly prevents the return of a bill, the bill and the governor's objections must be filed with the Secretary of State within such 60 calendar days. We are fairly confident the governor is going to pick a quiet day and have his public relations staff do a press conference to get it signed with as much election-type "hoopla" as possible. If we get any news, you will read it here.

Fourthly, the crack reporters at the Belleville News-Democrat Beth Hunsdorfer and George Pawlaczyk released their analysis of some of the Freedom of Information Act requests made about the "Menard scandal."  It appears several years ago, officials at Central Management Services (or CMS), the adjusters for the State's workers' compensation program started to notice dozens of prison guards filed workers' compensation claims for carpal tunnel syndrome allegedly caused by turning cell door keys and manually operating locking devices. CMS starting to address the trend by finding an expert to do on-site work evaluations.

Thereafter, a detailed report in 2008 by Midwest Rehabilitation Inc. of Springfield stated duties of prison guards did not approach even minimal levels on its work stress Index. With a score of "3" showing preliminary stress, none of the Menard CC guards' duties tested scored higher than 1.5, according to the job analysis. Instead of challenging the carpal tunnel settlements ranging from $20,000 to $100,000, the state's adjusters continued to approve payments to prison guards for repetitive trauma. Noting the easy money in these settlements, more than 230 Menard employees, nearly all of them prison guards, signed up with the same claimant lawyer, got surgery with the same doctor and they all filed workers' comp claims for repetitive trauma. At least half of the claims have already settled for a total of about $6.9 million. The Belleville News-Democrat reports 389 prison staffers filed claims for all types of injuries resulting in nearly $10 million in payouts, including a carpal tunnel settlement of $75,678 for the warden. You may remember CMS adjusters have an average claim load of over 1,500 claims each. For that reason, they have just about no true opportunity to properly handle or "adjust" any of them-in contrast, WC adjusters in the private sector handle 1/5 to 1/10 that many contested claims.

The infuriating and "Keystone-Kops" claims approach by CMS and Menard officials led to them taking no action of any kind to address the "tsunami" of new claims. To our understanding they made no true effort to avoid these substantial additional payouts to Menard CC workers. In our view, their efforts to justify this was throwing good money after bad.

Having paid out more than $10 million by March 2011, we feel CMS decided to try to rationalize what they were doing. To ostensibly justify all of it, we feel CMS brought in a hand expert, Dr. Anthony Sudekum, a St. Louis hand surgeon to provide his thoughts. Dr. Sudekum agreed with the Midwest Rehabilitation evaluation which outlined Menard prison guards' duties do not cause repetitive trauma. However, Dr. Sudekum also concluded the prison guards' duties could be a "possible aggravating factor" for carpal tunnel syndrome and other repetitive conditions. In Illinois, the magic words "possible aggravating factor" are golden for the worker. In our view, we have no idea why Dr. Sudekum's reports or opinions were actually written for an adjuster defending the matter. It would have been just as easy for this expert to provide that opinion orally to the adjusters-again the fact he wrote it out points to the obvious conclusion CMS was simply trying to substantiate their actions after the fact.
 
We also note:

Every case Dr. Sudekum analyzed involved prison workers who had already undergone CTS repairs. Therefore, the horse was already out of the corralthe money was not spent on his opinions for anything other than post-adjusting decision justification.

In the cases reviewed, the lead objective diagnostic test in the pre-surgical setting was an EMG/NCV. In the cases reviewed by Dr. Sudekum, the test results uniformly demonstrated only mild or moderate findings-not one test indicated the patient had moderately severe or severe neuropathy.

In our view, most folks over 35 years or with a certain level of body mass have at least mild findings in an EMG/NCV test. We assure our readers mild or moderate EMG/NCV results are not scientifically significant or remarkable.

If you read the reports of Dr. Sudekum, you may note in almost every report, he indicates the patient decided to undergo elective surgery. In our view, that gives the strong appearance of claimants cashing in by deciding to get the surgery without truly requiring the care being provided.

Dr. Sudekum did not ask what we feel is the right question why is one hand surgeon regularly operating on hundreds of folks at Menard with only mild pre-surgical diagnostic results?

Most importantly, Dr. Sudekum didn't address the question all Illinois taxpayers should be asking-what needs to be done to stop this "epidemic" and keep these prison staffers healthy? Why aren't there any prison staffers at any similar prison anywhere else on the globe suffering from such problems? If you go to NIOSH or the Department of Labor Statistics, we assure you this job is not considered one which leads to numerous claims of CTS.

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