3-29-2011; After reviewing all the web traffic on the WC issues at the Menard Correctional Center, we want everyone to know they aren’t breaking the law, we feel our law is broken and...

We reviewed an article written last week about the Menard C.C. “scandal” in Risk and Insurance Online written by Maddy Bowling and titled “Stand Up and Be Counted.” Please feel free to review her excellent article that is online at http://www.riskandinsurance.com/story.jsp?storyId=533334515&query=Maddy. If you don’t know it, Ms. Bowling is a long-time observer of the Illinois Workers’ Compensation Commission and is actually an employer representative on the Illinois Workers’ Compensation Medical Fee Advisory Board. On a number of occasions, she indicates what may be happening at Menard C.C. is workers’ compensation fraud. As attorneys, we want everyone to know it is our view the incomprehensible mess that is happening in workers’ compensation across Illinois should be subject to intense criticism but it isn’t fraud. In fact, what is so completely galling is everything going on is completely and squeaky clean—it is “legal.” Perhaps that is precisely what is so wrong about all of it; millions of dollars in workers’ compensation benefits are being paid out and just about everyone in the state wants to sign up for it. We assure all of you it isn’t going to stop until the IWCC smells the coffee and stops it.

We note the Menard C.C. prison warden signed up and received time off and about $75,000; his lieutenant is laughing all the way to the bank about his six-figure settlement while bass-fishing with high school kids in tournaments; the Arbitrator assigned to hear all the claims and approve all the settlements got a nice deal himself along with the state-employee adjusters at Central Management Services and the Assistant Attorney General handling defense. Every part of every one of these claims is clearly “legal.”

Sort of. Now, we are seeing more news from the troops at the Belleville News Democrat indicating they have looked at more official government emails between the Menard C.C. workers’ comp coordinator and the CMS adjuster, using words like "pandemic" and "flood" to describe hundreds of repetitive trauma claims filed by guards at the prison. We point out it isn’t “illegal” to file hundreds of claims. In December, the News-Democrat reported that since 2008, taxpayers paid almost $10 million to employees at Menard for various workers' compensation injuries. In all, more than 500 claims were filed and about half remain pending. Again, this is all legal and above board.

According to emails obtained under the Illinois Freedom of Information Act, Barbara Fink, the workers' comp coordinator at Menard C.C. chillingly wrote to Sue Zellers, the state’s workers’ comp adjuster: "Sending nine new claims your way -- most are carpal tunnel. The trickle has become a FLOOD! It's not 'Beware the Ides of March' but rather, 'Beware the Carpal Tunnel!'" (emphasis added).

You may or may not be chagrined to hear Barbara Fink is now riding the self-described “flood” and has her own pending workers' compensation case. She said she slipped and fell but declined further comment. We are betting she is making the same claim the Arbitrator made to legally get $48,000 in settlement. Guess what, the person who is going to adjust Ms. Fink’s pending claim and decide to try, send it out for defense or settle it would be Ms. Fink’s co-worker at CMS.

What Beth Hundsdorfer and George Pawlaczyk of the Belleville News Democrat have also learned is only one in five of 25,000 workers' compensation claims involving state employees have been referred to the Illinois’ attorney general for lackluster defense. You probably can’t blame the AAG’s though, they get routinely hit with penalties and attorney’s fees if they pick the wrong claim to fight. You may note the State of Illinois has about 132,000 workers in agencies and the University system so that 25,000 number is about 20% of the workforce with pending workers’ comp claims. And it is all completely legal.

One of the main concerns expressed in the emails was about temporary total disability or TTD at the prison, which according to Illinois Department of Corrections policy had no provision for light-duty (as if all the supervisors including the warden needed light duty):

·         On Sept. 28, 2009, Zellers wrote to Fink --"GEEZ! Are there any people left working at Menard? We get a few back to work and a boatload go off of work!"

·         On April 30, Zellers wrote to Fink, "We do have a HUGE problem ... 82 people off work at Menard and NO ONE on light duty! That is a BIG HUGE issue!"

·         On June 18, Fink wrote to Zellers, "We both know that the officers in some cases know what to tell the doctor when he writes the light-duty and they stay off." Zellers replied, "I know TTD at Menard is out of control. ..."

At the time of the April 2009 email mentioned above, if 82 workers were off work, it represented 16% of their workforce—this means the facility had to have 582 workers to fill 500 spots. This is what we have called the “ghost” workforce, created due to the way the State runs its workers’ compensation system.

It appears they have now set up 25 light-duty positions and only two have been filled. Right now, 27 Menard C.C. employees or about 5% of the work force at the facility are off work on temporary total disability. So they need 527 workers to fill 500 jobs. Expanding on the “ghost workforce” phenomenon, the reporters learned a lot of Menard employees already on temporary total disability leave recuperating from surgery to correct a repetitive trauma injury were also getting elective surgery while off work for such things as hernia repair or lap-band surgeries to lose weight. All of that contributes to lost time and more costs to the taxpayers. And all of it is legal.

In our view, the Illinois Workers’ Compensation Commission stopped requiring an accidental occurrence years ago—we feel this is what makes decent and hard-working folks like Maddy Bowling, Beth Hundsdorfer and George Pawlaczyk smell a skunk. And the medical community in that part of the state has wholeheartedly signed up and is routinely providing CTS surgeries where the same neurologist is finding mild to moderate findings which justify surgeries in patient after patient. When you don’t need to have one of those unpredictable “accidents” to get benefits or when every unwitnessed fall-down uniformly causes carpal tunnel with five-figure settlements, it may be “legal” but it smells like old limburger cheese to the uninitiated.

While we assure our readers what is going on is “legal,” we don’t feel it is a sustainable situation in a state that is swimming in red ink. That said, there is a reason the warden, prison lieutenant, Arbitrator, various court reporters, CMS adjusters and assistant attorneys general are all filing WC claims. They are all signing up for easy and “legal” money. We ask the rhetorical question “wouldn’t you?” This smelly mess isn’t going to stop regardless of the embarrassment, discomfiture and humiliation of the managers riding herd on this mess—there is just too much at stake. Please note a workers’ comp settlement of $50-100K paid on a tax-free basis in Menard or anywhere else in Illinois goes a really long way. Is there any adult in the entire state who wouldn’t get a half-inch cut on both wrists for mild to moderate carpal tunnel to get $50K? As foretold by Barbara Fink’s email above, the “trickle” is going to remain a flood until it is stopped up.

We also point out the public sector situation poisons the private sector—one reason long-time Illinois manufacturer Olin Winchester is no longer in Illinois was a claimant who worked there about a month and went off for six months to get one wrist cut on, then six more months off to get the other wrist cut on, followed by six months for one elbow and six months lost-time for the other elbow. Yes, he had the same claimant attorney who is handling all these state claims. Yes, he went to the same doctors cutting on all these state workers. This claimant worked for about a month and cost the former Illinois employer over a quarter-million dollars in “legal” WC benefits. Yes, it is completely “legal” and not fraud to do this.

Finally, we don’t think the legislature actually has the power to change it because whatever they do, it still has to be left to our hearing officers and reviewing courts to enforce the law as written. If the legislature increased the legal standard to “primary cause,” the IWCC could simply “steam around” the legislation and find every cause to be primary. We are now told the legislative reform on the issue of “primary cause” has been dropped—we feel administrative analysis is dramatically simpler and just needs common sense to avoid the complaints of rampant but-not-actually-WC-fraud in the media.

We hope the State isn’t going to waste too much money auditing all this silliness—their audit isn’t going anywhere but back to the IWCC to decide if they will take the tough steps necessary to stop it and fix this broken system. While they are at it, we hope someone starts to look at the similarly rambling and stinking mess that comprise wage loss differential benefits in this system. Illinois residential construction may never return with the specter of wage loss claims blocking any chance at profit. If you are not sure what the smelly problem is with wage loss, send a reply and we will be happy to elaborate.

In summary, we feel Illinois government and private workers should have to “legally” prove an “accidental injury” to be entitled to medical care, lost time and permanency. It is our hope the decent and hard-working folks at the IWCC understand the importance of “legally” demanding a clear and defined link between the work and a condition causing disability and surgery. The only way to stop surgeons from cutting when a claimant has mild to moderate finding in an EMG/NCV is to start “legally” denying such claims. And possibly the best way to stop all the questionable but “legal” shenanigans is to stop “legally” awarding 15-30% LOU of the hand for a half-inch scar to the wrist from CTS that most reasonable doctors outside Illinois opine causes no measurable disability. When and if the Commission starts to end the “legality” of all these embarrassing claims, we hope the reviewing courts will get the same message and let these sort of questionable claims dry up.