Benefits for Activities of Daily Life will Massacre the Golden Goose

Friday, May 18, 2012 | 0

As fast as we reported on the report from Illinois state Attorney General Lisa Madigan about issues facing the workers' compensation program for state workers, we saw another impossible-to-understand workers' compensation claim and ruling out of, you guessed it, the Menard Correctional Center!!! We will provide more thoughts on the Office of Attorney General report next week.
 
Defense observers were elated to recently hear seven consecutive claims for carpal tunnel had been zeroed by an arbitrator because prison guards don’t do “repetitive work” that should cause irritation of their hands and wrists. The hearing officer also noted claimants were going to doctors to “create” the claims even before reporting the condition.
 
Today, we learned there are now claims being filed and workers' compensation benefits being awarded to state of Illinois workers for “repetitive walking.” We consider that an even more “revolting development” than questionable carpal tunnel issues. We strongly urge our governor, Speaker Michael Madigan, Senate President John Cullerton and Illinois Workers' Compensation Commission Chairman Mitch Weisz to consider what an awful idea this is and tell these hearing officers to rethink decisions like this.
 
If you aren’t sure, lots of scientists don’t think most Americans walk as much as they should. A 2003 published study tracked the steps of 1,136 adults around the United States who wore pedometers for two days. The results were compared to similar pedometer studies in Switzerland, Australia and Japan. The data collected showed Americans, on average, took 5,117 steps a day, far short of the averages in western Australia (9,695 steps), Switzerland (9,650 steps) and Japan (7,168 steps).
 
The fitness gap detected by the pedometer studies is equal to about 30 to 40 minutes of walking each day. One mile of walking covers about 2,000 steps, researchers say. The health community typically urges people to take at least 10,000 steps a day to maintain good health, which is equal to about five miles of walking. The study found if you walk more than 10,000 steps each day, you should be in top shape.
 
Therefore, statistically, you and I and most adults in this country walk about 2.5 miles each day. The vast majority of scientists in numerous fields assert the average American is much too sedentary and needs to walk more. The lack of walking is one reason so many Americans are obese and have diseases and deleterious conditions related to being overweight.
 
In a stunning ruling in Howell v. State of Illinois/Menard Correctional Center, (09 WC 39531, issued March 20, 2012), the Illinois Workers’ Compensation Commission awarded benefits for “repetitive walking” due to what they ruled was the “stress” of walking and climbing stairs. The Commission’s opinion is based upon the claim petitioner spent most of his day walking on floors and climbing steps over a period of 15 years. They ruled these activities placed him at a greater risk of injury than the “general public.” Based on those facts, they ruled petitioner’s achilles tendinosis was compensable.
 
A quick summary is petitioner worked as correctional officer for 15 years and testified he spent 80% to 90% of the day on his feet walking on floors and stairs, and testified he needed to travel a quarter of a mile to each house. He further testified he wore a pedometer which showed on a slow day he walked three to five miles, while on a busy day he could walk up to 10 miles. Petitioner testified based upon the amount of walking he eventually underwent two surgeries. The arbitrator believed petitioner suffered repetitive/cumulative trauma as a result of the job duties. The arbitrator awarded and the Commission affirmed $62,062.11 for medical expenses, and temporary total disability for 16 weeks.
 
The problem with rulings such as this is simple and patent—the Illinois Workers’ Compensation Act is designed to provide benefits for accidents occurring at work. We can understand the concept of “repetitive trauma” where one’s job requires a worker to do something that is unusual and stressful and clearly causes a work-related condition. That said, ordinary actions of daily life and their sequalae can never, ever be covered under workers’ compensation.
 
Why do we make that statement? Well, let’s sit back and think for a minute.
 
Most folks need eyeglasses as they age. If you aren’t sure, “repetitive reading” can be blamed, in part, on work. Can we require Illinois employers and taxpayers to owe each employee for a lifetime of vision loss, eyeglasses/contacts, Lasik and other vision correction techniques under workers’ compensation? Does anyone have any idea what the cost would be?
 
Hey, many folks engage in “repetitive eating” and can blame it, in part, on work. Most of us gain weight as they age. Similarly, some of us have the opposite of what prison guard Howell complained of at workwe are “repetitive sitters.” When we suffer the problems with weight gain like needing girdles, expanded clothing, orthotics for shoes—are all of those concepts going to be 100% the cost of Illinois employers and taxpayers with some permanency added in?
 
How about hair loss? Some folks are “repetitive hat/helmet wearers” and suffer scalp issues and problems from it. Do Illinois employers and taxpayers now have to pay for a lifetime of wigs/toupees, hair plugs and Rogaine?
 
Some workers go outside as part of their jobs and become “repetitive tanners.” Can Illinois employers and employers now owe for skin creams, sun blocks, protective clothing/hats and all your skin care for the rest of your life?
 
Initially, remember you can’t “prevent” walking at work. Nothing claimant did in this case was a safety violation—he did his normal work in a normal way. Thousands of Illinois workers walk up and down stairs and across floors every working day of every year, just like this prison guard. Are they all now having daily “accidents”?
 
Please also note you truly won’t need lawyers, litigation or hearing officers for what we consider “non-injury” claims involving conditions of daily life. It is our strong assertion it is impossible to “defend” what prison guard Howell is alleging—he clearly has a job and if all conditions of daily life merely have to have the word “repetitive” in front of them, benefits are clearly owed. Please also note Officer Howell worked for 15 years and clearly could claim every day of work was the “cause” of the “accident”—there is no nagging 45-day notice requirement, no need for fussy accident reporting so the statute of limitations never starts or ends and clearly everything is related to work. You don’t need lawyers on either side to handle such claims, if and when liability becomes certain and irrefutable. The adjusters will just have to pay and pay.
 
Please note this Illinois correctional facility already has about 260 workers' compensatoin claims for 550 workers. As fast as some of the carpal tunnel syndrome claims were being denied, a whole new impossible-to-understand claim concept is being created to funnel even more money to the prison staff. It isn’t going to stop at Menard eitherhundreds and thousands of other state workers should be signing up for these hefty budget-busting and indefensible workers' compensation benefits. These state employees aren’t stupid and are happy to slop at the new trough opened by the commission panel’s misguided ruling. We assume literally every state employee should now file claims for repetitive walking, eating, sitting, standing, hat wearing, tanning and whatever else they do while employed. If they are going to give away money for getting old and having a job, why not? When we say public sector claims poison the private sector, this is a great example.
 
Please further understand the commission’s decision in this claim will not and cannot be appealed to a higher authority. By statute, workers' compensation claims by state workers end at the commission so this one is final.
 
The only problem is when Caterpillar, Target, Coca-Cola, Ford and all the other major Illinois employers in the private sector start to hear about this whopper. If you think they are mad now, you don’t have any idea how mad they can get. As we have advised, if and when they leave, they won’t be a-coming back.

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