This State Needs Better Grades

Monday, August 24, 2009 | 1

By Eugene F. Keefe


Synopsis: Getting Illinois Better Than Failing in Work Comp
 
Editor's comment: Our readers have pummeled us with the Work Loss Data Institute report card on our system and administrative handling of workers' compensation claims. If you aren't familiar with it, the institute  is the U.S. top "stat rat" for this industry. They reviewed the last period for which a full year of data was available, 2006, and Illinois got straight "F's" in all categories, thereby falling into the bottom of the barrel for the states surveyed.

We want everyone to understand we didn't create this report. We do consider it is a fair and impartial agency that doesn't have an ax to grind — they simply are reporting their research and the facts. We are confident the wise guys or powers-that-be that run the Illinois Workers' Compensation Commission (IWCC) are going to mumble something about ever-dwindling but impossible to attain insurance advisory rates. We are also certain they don't want such outcomes published — we didn't publish them so please don't shoot the messenger. The grades are out there and one can make of them what you will.
 
Well, in comparison to Illinois, other states are also doing lots for their workers. And they are doing it in a competitive environment where there are jobs and the potential for more jobs. As we have pointed out in the past, Honda Motor Co. looked at Fithian, IL, as a site for a major new plant with lots of jobs and quietly picked Indiana. Archer Daniels Midland has been a staple and major employer in the Decatur, IL, economy for decades and when they wanted to build new ethanol plants, Illinois was the last place they looked. Illinois has great schools and solid infrastructure but we feel workers' compensation is becoming more and more of an issue for every current or potential Illinois employer. Why not work toward a "C" so employers take this issue off the table when looking to expand? 
 
So, here are some simple thoughts for all the major players involved to get us out of the F category and up to C or maybe even a B.
 
Number One - Stop viewing the system as a path to make claimants wealthy and not simply "whole."
 
We have watched our reviewing courts and IWCC struggle with the new focus on providing double PPD benefits in Beelman Trucking and Freeman United Coal. We assure all of our readers and everyone who will listen, these decisions are the first time in Illinois history where an employer will have to pay monies to make someone arguably whole — the poor truck driver in Beelman Trucking suffered severe, life-changing injuries. The trucking company clearly had to pay him the rest of his life on this planet. Illinois law allows him to also work and still receive lifetime benefits. On top of that, the Supreme Court decided that wasn't enough and he has to become wealthy by giving hin a six-figure bump on top of everything else.
 
Now the whole system is properly giving all similarly situated foks an infusion of cash that is only going to make them wealthy while rocketing up reserves on Illlinois' biggest claims. To all the claimant attorneys who urged us to note there is a possible reading of the act that justifies the largesse, we point out that is one of the clear reasons Illinois is getting an F — we are stretching the law and English language to find ways to give away money that isn't needed. An injured worker is made whole by paying them for life. The rest is making them wealthy while blowing out prospective employers who are happy to look for states that just make injured workers whole.
 
Number Two - Start using and stick to Utilization Review.
 
The second biggest problem with Illinois is the lack of definition and "control" over doctors and claimants. We have at least 10 litigated claims in our office right now for soft-tissue back strains with grossly negative diagnostics. All of such claimants are staying off work without apparent reason or, worse yet, showing up for work, going off, coming back and generally torturing their employers. We have told all of our readers Illinos risk managers going absolutely bonkers about such claims.
 
The easiest and fairest way to manage them and other similar claims is to follow utilization review protocols to the letter. We note utilization review was brought to Illinois as part of the 2005 changes to the Workers' Compensation Act — a claimant attorney pioneered that legislation and fought to bring UR to our state.
 
It is our strong impression the wise guys found out what it is and how it works and then put the complete kibosh on it. We think that is totally "unwise." The best thing about UR is it is easy, quick, low cost and fast. Claimant attorneys could rely on it to get their clients back to work and claims settled right away.
 
Why don't they want it? Well, some claimant attorneys think injured workers who are whiners and malinger are good for some attorneys' pocket books. When a claimant milks an injury and stays off and stays off and endlessly treats without any apparent reason to do so, defense costs skyrocket, exposure rises and everyone wants to pay more money to get rid of the loser. The problem is employers put through that wringer want to move away from our fair state to any other place on the planet.
 
The easiest and fairest way to avoid this mess is to follow the legislative model a claimant attorney proposed. Yes, it does mean you may actually have to give up "control" of claim outcome to a nurse, general physician and, on appeal, a medical specialist who combine to quarterback other physicians. This occurs in group health care every day.
 
Once receiving the UR report, the non-medically trained arbitrator may have ceded his/her decision-making on applicable claims to another. The UR report should be clear, concise and provide a national or international study to support the outcome.
 
The lack of implementation of UR or some other neutral guideline for lost time and medical care is one of the most common complaints of the Illinois WC system — nothing the employer does to independently defend themselves is given true credence. Illinois arbitrators will discard and despise IME's, co-employee witnesses, surveillance and UR. We think Illinois will jump up in WC grades to follow this one simple step.
 
Number Three - Stop expanding coverage to claims that weren't and shouldn't be work injuries.
 
Every one of our readers who is familiar with Missouri law repeatedly tells us they are thrilled to report Missouri changed their law and now requires work to be "the" cause of any work condition considered deleterious and not simply "a" cause of the problem. Illinois not only allows work to be "a" cause, we now understand there are numerous doctors in central Illinois who are happy to mine the "tunnels of Illinois" by operating on carpal and cubital tunnels when there are mild or even minimal electrodiagnostic findings. We are told there are litigation funding companies that are guaranteeing hand/arm surgeons their bills will be paid, no matter how slim the reasons are to perform surgery — they are supremely confident of Illinois' workers' compensation system and its overtly liberal view of repetitive trauma will result in numerous awards of such questionable medical care.
 
On the other side, we again point out the overuse and abuse of the "traveling employee" concept is clearly providing benefits in settings Illinois arbitrators and commissioners never before contemplated. Firefighters wrestling like schoolboys in their hotel rooms at a convention aren't supposed to be able to get benefits, as if they were "working." When a cop walking a beat casually turns around to answer a question, it isn't supposed to be a work accident. Numerous and well-settled Supreme Court rulings indicate Illinois employers were not blanket insurers of the well-being of their workers — the traveling employee and repetitive trauma concepts have thrown that baby out with the bathwater.
 
Our worry is there are elections next year and workers' comp is going to hit the headlines or at least the bylines. It would be great to be able to report there are folks at the IWCC who are sensitve to genuine and constructive criticism and don't simply turn on the folks who are pointing out what many feel are systemic problems.
 
We appreciate your thoughts and comments about reforming the Illinois Workers' Compensation Act and Rules and IWCC administration to improve the system for both injured workers and Illinois employers.

======
Eugene F. Keefe is a partner in the Chicago law firm of Keefe, Campbell & Associates.
======