The Indefensible Big Five
Monday, December 6, 2010 | 0
10By Eugene Keefe
Keefe Campbell & Associates
Synopsis: Trying to have the Illinois state senators better understand why work can’t be “a” cause of an injury or deleterious condition that “appears” while one has a job.
Editor’s comment: Our Illinois state Senate has a bipartisan panel looking at every aspect of reforming the Illinois workers’ compensation system. We are trying to put our strongest thoughts out there for both sides to review and comment. We salute State Sen. Christine Radogno and the Illinois State Chamber of Commerce, who are pushing hard to try to make more sense of the system as costs have skyrocketed in a nagging recession and jobs are getting tougher and tougher to find in Illinois. Some observers feel rising workers’ compensation costs are one of the causes of job drain.
Illinois is the only state we are aware of that will consider a “repetitive working” claim.
The first and biggest crisis we hope the state Senate panel will consider is the clear trend of the last decade to expand the “repetitive trauma” concept way past what it is considered in many states and simple workers’ comp logic. In Illinois, our research confirms approximately 3% of repetitive trauma claims are being denied by the Commission. Particularly in “no-accident” claims like carpal tunnel, cubital tunnel and shoulder surgeries, we found more and more claimants were simply saying “pain at work” and their doctors were answering with supposedly expert medical opinions which were based upon what we call the "Indefensible Big Five:"
- 1. Patient has a job;
- 2. Patient says pain is present in a body part or parts;
- 3. Patient says pain in the body part is due to the job;
- 4. Patient has a job with duties that sometimes repeat;
- 5. Therefore, in the treating doctor’s medical opinion, their surgeries, related bills and recommendations for lost time should be heeded by all because pain is “due to work.”
If you remember the Joliet Army Ammunition Plant that used to be in Elwood and Kankakee, Ill., they had folks who made lots of big bullets—we called them “tank-breakers” because the bullets would pierce tank armor and blow up helicopters. That plant did a very solid job of analyzing work stations and cycling workers to different tasks with the main goal of avoiding repetitive trauma. No matter what they did in changing tasks or redesigning work stations, carpal tunnel and cubital tunnel claims continued to come in and hefty awards were provided on almost all of them. We asked the arbitrator in that area what he would recommend to stop or provide defenses for such claims and he was totally baffled and basically confirmed he wouldn’t deny such claims under just about any circumstance. Armed with that information, the defense contractor that ran the plant closed it and moved operations to Virginia where they don’t have to worry about our weird WC system that sort of matches reality and sort of doesn’t.
We assure our readers litigation to “defend” repetitive trauma claims in front of some arbitrators and commissioners isn’t actually “litigation” it is mostly whining, stalling and badgering by all sides to get cases closed. To more than a few of our arbitrators and commissioners, the term “repetitive trauma” equals universal and indefensible compensability. To call what is going on litigation stretches the definition because the vast majority of the claims are completely indefensible if the hearing officer blindly accepts the "Indefensible Big Five" factors listed above. As long as those five factors remain in place, the claims aren’t going to end. Employers who choose to stay in Illinois should simply prepare to fight such claims. We feel the commission and reviewing courts should return such claims to defensibility in actual litigation.
Want another solid example? We have a claim right now in central Illinois. The worker is a union member in the construction industry. Claimant worked for a union contractor for 90 days and made about $25,000—in central IL that is a nice bit of change for 90 days labor. Claimant never got any medical care which any member of our client’s management was aware. Petitioner did not submit the medical bills for payment until months had passed. He later sent in a letter which effectively says: “pain at work.” He isn’t saying and can’t testify he was asked to do one or two tasks hundreds of times a day—trust us, he wasn’t.
Five months after leaving our client, he had surgery to the elbow and hand. Seven months after leaving our client, he underwent surgery to the shoulder. He later got a knee operation and has a tear in the other knee—for reasons we can’t fathom, he isn’t relating the knee problems to work. He is however claiming hand, arm and shoulder “pain” present while working months earlier. He can easily demonstrate he did some duties several times a day—in Illinois workers’ comp, we call that “repetitive trauma.” You won’t be stunned to hear his treating doctor and surgeon are saying he had pain at work and all the medical care, lost time and permanency is related to “work.” They don’t point to a single specific duty or three specific duties; they simply say his condition is due to work.
We know you won’t be shocked to hear he used his hands, elbow and shoulder as part of his work as a union member in the construction industry. He asked his treating doctor to relate “it” and the doctor clearly wants our client, the “last-known-employer” to pay for surgeries, related bills and follow recommendations for lost time. The last demand is $150,000 for lost time and permanency. We are certain the union health and welfare folks will be asking for recompense for medical bills paid for at least another $50,000.
Please note:
- Claimant worked for us for 90 days—we had a similar case where a different claimant worked for our client for a week and the commission and reviewing courts found she suffered “repetitive trauma” and related surgery, lost time and permanency became our sole responsibility.
- Claimant didn’t have anything approaching what our moms and dads would characterize as an “accident”
- Our client did not violate any safety rules of any kind and no one has reported them for doing so;
- Claimant didn’t follow any sort of normal accident reporting protocol—we are advised he is going to claim he noticed pain at work and complained to “everyone” about it;
- Claimant earned $25,000 in wages and wants almost ten times that amount in workers’ comp benefits from our client.
- Claimant made a similar claim for similar problems on the other side with another employer; he is certain to do this again for another body part simply because it is so lucrative and easy to do.
Along with “repetitive working” claims, we are seeing “repetitive walking” and “repetitive driving” claims. We have told all our clients and everyone on the other side, we aren’t going to voluntarily pay them and just get ready to fight. Some of the Arbitrators and Commissioners will write them and some of them won’t.
The claimant bar may ask “what is wrong with you and your law partners?”
Why isn’t repetitive working based on the Indefensible Big Five a good thing for Illinois workers with medical problems?
The main problem with “repetitive working” claims is simple and patent—workers’ comp isn’t, shouldn’t and can’t protect workers and reward their human frailties. We all may suffer shoulder and hand and arm and other problems, it is part of life. In other states and countries, it isn’t repetitive trauma, it is called “aging.” Somewhere, someone has to draw a line about when the work is truly “the” cause of the problem versus working simply being “a” cause. We hope the Senate members will start the process.
Do we want hernias and hysterectomies to be compensable conditions? Under the Indefensible Big Five they should be.
Please also note you can simply and readily expand the concept to lots of conditions much less commonly accepted as being work-related. If it is going to be the law of the land, working women who need cosmetic surgery or have painful arches in their feet and/or may struggle to pay for hysterectomies should be able to look to the Indefensible Big Five listed above and cash in for big bucks. If you say “that’s nuts, hysterectomies can’t be related to work, can they?” We ask you to again review the five concepts used to make the construction worker’s claim viable would make a claim for a work-related hysterectomy for a woman just as difficult to defend or deal with.
Please also note our Illinois Supreme Court issued not one but two very controversial decisions within the last decade in cases named Twice Over Clean and Sisbro. In Twice Over Clean, the Supreme Court awarded full WC benefits to a guy whose heart was 95% occluded. Due to that level of occlusion, his own treating doctor said he could have had a heart attack brushing his teeth. In Sisbro, the “accident” was stepping out of a truck! The worker had a bone disease that was so advanced, his ankle snapped from the action of simply stepping down. In both cases, our highest court reversed excellent and well-reasoned rulings from the Appellate Court below. In our view, the Court implicitly relied on the factors outlined above in the Indefensible Big Five to elevate typical frailties of human life to be “work accidents.”
As we have also pointed out numerous times in the past, these same Indefensible Big Five factors are present in male workers with hernias or sagging bellies who want stomach stapling and receding hairlines causing the “need” for hair plugs. Everyone in the workforce could readily use the Indefensible Big Five to have their employers globally pay for anything related to eye care, contacts or glasses because guess what, our eyes age and we have jobs and eventually need glasses or contacts, why shouldn’t your employer pay for all of it for all of your life?
Summary
It is our strong hope to bring common sense and simple logic back to Illinois workers’ compensation community. We also want actual litigation to remain part of the system when disputes arise. We fervently want injured workers to be taken care of when they have real accidents or deleterious conditions that can be directly traced to serious failings in designing work stations or poor ergonomics. But work itself can’t be an “accident.” If we don’t figure that out, it is our view that our sister states are going to get and keep U.S. jobs.
Eugene Keefe is a founding partner for Keefe Campbell & Associates, a Chicago workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.
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