Commission, Heal Thy Self?

Friday, January 7, 2011 | 0

By Eugene Keefe
Keefe Campbell & Associates

First, to a person, the men and women of Keefe, Campbell & Associates join with many members of the Illinois WC defense bar to ask everyone on the other side of the workers' compensation matrix to stop "blaming" us (and this KC&A Update) for the coming Illinois WC reforms.

We have been telling everyone from the plaintiff/petitioner's bar along with the arbitrators/commissioners and other observers that our clients, potential clients and readers in the WC defense industry have been complaining about how Illinois workers' compensation medical, lost time and permanency benefits "stick-out-like-a-sore-thumb" in comparison to our sister states and in fact, all states. We assure you risk managers from across the U.S. like the national risk manager from Costco(c) do not fly to Illinois from Seattle, Washington to testify under oath how bad our system is due to anything we have written or said she and the others did so because they care about their injured workers and want them to get fair and reasonable benefits but not allow profit from this process to the detriment of jobs and overall growth of our state.

We regularly argue before Arbitrators and Commissioners, asking for a moderate but fair interpretation of the Act in dealing with the difficult cases we bring to them. It is our impression the arbitrator's and commissioners should have the latitude to award benefits at their discretion, but that is not always the case.

We still remember orally arguing a case before a Commission panel involving a claimant who was unquestionably off the charts on cocaine and marijuana when first brought to the emergency room. The arbitrator awarded him more than  $100,000 despite the fact he unquestionably violated both state and federal law by using illegal drugs and almost certainly caused his own injuries. We asked the lead commissioner to award the medical bills and maybe some lost time but don't give him the benefit of permanency. She replied to say she had no discretion and was implicitly "forced" to give him everything he asked for. We have heard lots of hearing officers shrug their shoulders and make the same impassioned plea-"I have no choice, I have to do this."
 
To the contrary, we believe the hearing officers do have a choice to issue awards in a manner they feel most fair, based on the unique facts of each case before them. In fact, we are already seeing our arbitrator's and commissioners following utilization review to deny the most egregious medical "churning" of accounts by various therapy and/or chiropractic providers. Our clients on the defense side are happy to pay for reasonable medical rights for appropriate care. You can readily rely on independent medical examiners and UR to cut off medical care when it goes sideways or starts to appear endless.

Along the same lines, lost time should be much more readily tracked and claimants routinely encouraged to return to light and then full work. With regard to permanent partial disability awards, we don't need an inflexible American Medical Association rating to set disability, but at the same time, it is difficult to justify the box-car of benefits routinely awarded for carpal tunnel and cubital tunnel claims which truly don't involve significant invasive surgery-the vast majority of such claims involve folks whose hand/arm strength, range of motion and dexterity improves due to the surgery. Why are we giving them 20-25-30% permanent loss of use?

We aren't suggesting they all receive zeroes but the focus should be reasonable and fair recovery for actual and demonstrable loss of use. We are suggesting a more case-by-case assessment of PPD value with appreciation as to whether a true "loss of use" exists for the given injury.

In summary, we don't need lots of legislation and should be able to quietly fix lots of things by having the Commission return to the sleepy place it used to be before the odd Elvis-impersonator got the governor's job and sold the place to Madison County.
 
Second, here is the current workers' compensation reform scorecard from Springfield:
 
There are nine days to go in the General Assembly and no one is "safe." The House Executive Committee is meeting today to take up the massive gaming expansion bill. The tax hike and $15 billion deficit remain the overriding issues, as legislators' jobs will clearly depend on the answers provided.

Two of the three House reform committees for education and workers' compensation canceled today's previously scheduled hearings.

The Legislative Reference Bureau has been closed for the holidays so there are limited draft WC reform bills out there.

Most folks agree Illinois' last workers compensation reforms in 2005-6 didn't work as expected and costs have clearly risen. From what anyone can tell, Illinois WC premiums are trending higher than almost anywhere else with no end or flattening in sight.  

Fiddling with Illinois' workers compensation system means involving four of the most powerful Statehouse interests: Business, labor, doctors/hospitals and trial lawyers. Actual "reform" will require everyone to take a hit. 

The word on the street is the workers' compensation reform proposals are a work-in-progress.  While an outline appears in some sources, no one knows which parts will make the final cut.  

The Illinois Senate's workers' compensation committee isn't yet scheduled to meet this week. House Speaker Michael Madigan is not expected to allow the rank and file to decide what to do about workers' compensation changes; there is simply too much at stake.

But either way, it appears clear the ruling powers are going to have to present some changes, meaningful or not, to continue to get cooperation from the forces across-the-aisle.

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