Rock, Paper and Scissors in Ill. Workers' Comp

Monday, December 27, 2010 | 0

By Eugene Keefe
Keefe Campbell & Associates

Here are some of the many issues flying around in the news:

First, we always remember the age-old game of Rock, Paper & Scissors in watching what the Illinois House and Senate have been doing in the month or so of legislative hearings. We are sure some of the correct citizens were not called to testify by our legislature to give their thoughts on what to do about effective workers’ compensation reform. Going back to your eighth grade civics class, please remember the legislature is one of three branches of state government and we think all the bodies need to align to get true reform.

When you are thinking of how “non-accident accidents” started in this state, it began with a 1987 ruling named Peoria County Belwood Nursing Home v. Industrial Commission in which “repetitive trauma” was first outlined as an accidental injury in this state. No true definition of the concept was provided by our Illinois Supreme Court in their ruling. Later rulings appeared to indicate the Workers' Compensation Commission had to find some specific cause for the injury and then relate it to clearly defined work duties which had to “cause” a medical condition. As the years have rolled on, it is our view Illinois is now at a point where a worker only needs to show he/she has a job, a surgical condition and a doctor who wants to charge for it under WC. When you have those three things, the worker gets the generous benefits that we feel should be reserved for folks with actual and preventable accidental injuries.

Rock beats scissors—To make progress, Illinois business needs the Supreme Court on board with legislative change

Second, in our minds, the whole “repetitive trauma” concept went nuts after two published rulings from the Appellate Court in cases named Sisbro and Twice Over Clean, earlier in this decade. In Sisbro, the worker stepped out of a truck and his ankle snapped. The worker’s problem was he suffered from an acute bone disease and the act of simply stepping out of a truck caused his ankle and foot to collapse and shatter. The Appellate Court wrote a solid opinion which denied the claim, saying when the “accident” arises not from a true “accidental occurrence” but the activities of daily life, benefits would not lie. In a similar ruling in Twice Over Clean, claimant’s coronary arteries were 95% occluded. While working, he suffered a heart attack. His own treating cardiologist said he was a “heart attack waiting to happen” and the stress of brushing his teeth could have caused the attack. The Appellate Court again denied the claim. At the time, we confirmed our view it would be virtually impossible to defend any heart attack claim in this state if someone with a 95% occlusion would get full benefits—your heart can’t be more occluded and pump enough blood to keep you living.

The Illinois Supreme Court stepped in and summarily reversed both rulings—Rock Beats Scissors. They basically ruled it was up to the Workers’ Compensation Commission and whatever the Commission figured out on the facts could not be disturbed on appeal. With respect to the members of our highest court, we and most legal observers didn’t feel the Appellate Court’s rulings were based on the facts. To the contrary, we feel the Appellate Court followed longstanding Illinois law on a legal rule about “activities of daily life” not comprising an accidental injury, as previously required by those who interpreted our WC Act. In this system of government, there is no question the Illinois Supreme Court trumps the Appellate Court. Basically, the Appellate Court hasn’t considered another similar claim since these two cases were handed down. And thereafter, lots and lots of repetitive trauma claims followed where claimants got lots of benefits but didn’t have the problem with having definable and/or preventable accidents. Millions of dollars in benefits have been awarded because you don’t need a painful and unpredictable injury to get the money; you just need to get old or sore.

Please note the Illinois Workers’ Compensation Act didn’t change a word during all these cases—our courts’ definition of “accidental injury” did. Please also note it may be very hard to change the current interpretation of the Act unless the Supreme Court goes along with it. To our knowledge, most of the members of the Court who wrote Sisbro and Twice Over Clean are still working there and their views haven’t changed.

From our review of the cases listed above, we don’t care what the Illinois legislature and Governor do, if the Supreme Court wants “work to be an accident,” it is going to stay that way because they get final say to interpret the legislation. If our legislature passes a new rule to require the work to be “the” cause of a problem and not “a” cause, the Commission and reviewing courts can easily make the work “the” primary cause of any condition. To the extent our administrative and judicial hearing officers weren’t called to testify, they are unquestionably able to wait for a ruling to come to them in a couple of weeks, months or years and then steam around any legislative fiat, rendering all this supposed reform worthless. Their decisions can sort of follow the legislation and sort of not—please remember the rulings the Commission provided all of us to outline their subsequent distaste toward enactment and implementation of utilization review in 2005-2006. They sometimes follow this legislative concept and many times do not.

Scissors beats paper in Illinois WC—Illinois WC programs for state workers show lots of “no-accident accidents”

Third, we are less than thrilled to see another follow-up article from the crack reporting staff of George Pawlaczyk and Beth Hundsdorfer at the Belleville News-Democrat about the goings on at the Menard Correctional Center. It appears they have learned a couple of interesting things.

First, about a year ago, the warden at the Menard Correctional Center got a substantial workers’ compensation settlement. It is just about impossible to find out what unforeseen accidental mishap befell this dedicated public servant—but if you read the article carefully, it appears there may have been no “accident” at all. If you look up 09 WC 26557, you will find out there is no accident described and the injury was to “multiple body parts.”

The reporters made inquiries about the claim to the assistant attorney general who asserts he can’t tell them, as workers’ compensation claims are somehow “personnel matters” and therefore kept secret from public view. It does appear the warden settled the case for a June 15, 2009 accident within six months on Dec. 15, 2009. The second page of the Workers' Compensation Commission website indicates he only lost 11 5/7 weeks of time but received 22.5% loss of use of each arm or 112.5 weeks of permanency equaling $75,678.37 on a tax-free basis.

Trust us, that is more than he takes home in a year. His attorney is quoted as saying the real culprit was years of police work prior to going to work for the state prison—yes, we are all confused about why claimant and his counsel aren’t going after the police department along with some idea of how routine police work magically causes severe disability or “accidental injury” to the arms. Can every sworn police officer follow his lead and sign up for $75 grand?

The reporters located another ruling where the state of Illinois was hit with penalties and attorney’s fees on $171,000 in disputed medical bills. It appears the claimant attorney received a 20% attorney fee on that amount despite the fact he only charges his clients 15% attorney’s fees.

Knowing this veteran arbitrator well, one has to wonder what the arbitrator was thinking on that concept. We also note claimant got a 50% penalty on the $171,000 or about $86,000 more from the state. This again points out how odd Illinois WC can be where the doctors and hospitals don’t get paid and claimants get the benefit of gigantic penalties for non-payment of medical bills. It always baffles us to see one Illinois state employee; the arbitrator, penalizing another Illinois state employee’s decision; the state’s claims handler or defense attorney, to the benefit of the supposedly injured state worker and his attorney. If you aren’t sure, the taxpayers get the short end of each and every stick.

The Belleville News-Democrat reporters note in about 60 workers’ compensation cases involving guards, repetitive trauma from locking and unlocking cells and driving shaky prison vehicles was the claimed injury. Surgery, including carpal tunnel syndrome procedures, was common. Public records also show, like the warden, managers at the maximum security lockup who would not be expected to be operating locks or handling shaky steering wheels on prison vehicles but they have applied for "repetitive trauma" injury awards or have already received them. Among the injured, it appears there was an assistant warden who retired last year, a food service supervisor, a social worker and a nurse. Please feel free to read more: http://www.bnd.com/2010/12/19/1522293/state-foots-bill-for-hurt-guards.htmlixzz18gB4TZzU.

One weird thing about these articles from the Belleville News-Democrat is they report:

• An arbitrator working part-time on furlough because the state can’t afford his full salary is
• Giving out five and six-figure WC benefits for non-accidents which the state can’t afford to pay and
• Penalty and attorney fees on top of it which the state truly can’t afford to pay to
• Prison guard WC claimants also probably on part-time on furloughs because the State can’t afford to pay them and
• They get agreed settlements the state stalls and delays paying for six months because they can’t afford to pay with
• A claimant attorney who is cutting his fees because of the competition from the other struggling lawyers who are trying to make ends meet because there are fewer and fewer jobs to cause new claims and
• The state wants to sort of cut workers’ compensation benefits to save jobs but in exchange they are going to massively hike corporate taxes that is certain to have a much deeper impact on jobs.