5-12-2011; Illinois WC Reform Update—things may be rapidly moving to a close in Springfield

Following up on last week’s KC&A Update, we continue to carefully watch what is happening with our legislature. If we get a final WC reform bill which is passed and enacted, we will rapidly offer a webinar to tell you what just hit your Illinois claims. Here are some further thoughts on reform we feel are outside-the-box:

Causation in Illinois WC

We note the Illinois Trial Lawyers, docs and unions have circled the wagons and they appear willing to fight to the last horse, carbine and cavalryman/woman to avoid any restriction on the concept of “causation” in Illinois workers’ compensation. On the other side of their circle of wagons, we have literally every Illinois business, employer organization and the defense lawyers at KC&A telling them they are in an unsustainable position. While we feel the main issue of causation in Illinois WC has to be changed to a more sensible standard; we don’t feel that can and will happen in the legislature. Legal history buffs should always remember one of the biggest cases in the history of the U.S. Supreme Court is named Marbury v. Madison. Every newbie law student is told about this landmark case which effectively held reviewing courts trump the legislature because they have the final say on interpreting what the legislature does. Whatever the Illinois legislature does on the issue of causation can be “trumped” by the Illinois Supreme/Appellate Courts—we defy anyone to write a law they can’t judicially “steam around” to find causation.

Please also remember the Illinois Workers’ Compensation Act hasn’t been legislatively changed in any way to modify causation in about 100 years of workers’ comp law. In the last decade, our courts have drastically changed it to the point even a casual observer cannot overlook how sweeping and shocking the changes are. In discussions, we don’t even feel many veteran claimant lawyers understand what has happened to this concept in our state.

To exemplify the problem of the current causation standard being unsustainable, we point to the 270 correction workers at Menard C.C. who are bringing repetitive trauma claims after the facility has already paid about $10,000,000 in our tax dollars for similar claims over the last three years. The Arbitrator previously handling such claims got a CTS settlement along with the CMS adjuster handling claims for the facility. No business is going to look at our state as a favorable place to do business when they see such broad interpretation of “causation” in this state. While we have told you the claims are “legal,” they cannot be defended by sound logic or reason. We are also telling all of our readers and everyone else who will listen, that due in part to the current causation standard, the State of Illinois is annually paying more in WC benefits to its workers at approximately $150 million per year than just about every major U.S. employer pays on a national basis!!!

As you read this, we assure our readers every adult in this state who has a full-time job and wants $20-50,000 on a tax-free basis for carpal tunnel syndrome or lots of other conditions-of-life could be quickly and quietly taught how to legally do it. All of our readers on the business side of the WC matrix in this state consider that a travesty. Similarly, it is our view the rulings in Sisbro, ABF Freight and Barrington Orthopedics by our Supreme Court and Appellate Court, Workers’ Compensation Division currently force Illinois employers to pay unlimited six and seven-figure benefits for what are ostensibly non-work-related problems. We are certain claimants on many repetitive trauma claims can be carefully and quietly coached by their attorneys on how to make pre-existing, longstanding and chronic medical problems “work-related” without having to have one of those unpredictable “accidents.” Trust us, the coaching doesn’t take long and isn’t complex. If you aren’t sure what we mean, send a reply and we will send you the published and “non-published” rulings listed above and more fully explain.

As veteran trial lawyers, we want the Illinois State Chamber of Commerce, the Republican legislative leaders and all of our readers to understand there is no chance, none, that causation standards are in your control and can be modified solely by legislation. Whatever you legislate, as we indicate above, the hearing officers and reviewing courts can “steam around.” For example, if legislation requires an accident to be the “primary cause,” the hearing officer or Commissioner or Appellate Court considering a claim for a Menard corrections officer turning a key in a lock can readily find that work is the “primary cause” of their claimed CTS or shoulder pain or whatever deleterious condition is alleged. We don’t feel the legislature effectively change a concept that is wholly “created” by the courts and subject to their final interpretation—our justices have the final say.

If We Are Serious About Changing the Causation Standard, Call Out the Clans

We aren’t telling you to give up. We also don’t think the members of the reviewing courts truly understand Illinois business, government and jobs are suffering mightily under their new causation standards. We assure our readers we need to fairly change the WC causation standard in this state. We feel it should and must be done. We strongly urge our business leaders to reach out to the other side. Start with Illinois Supreme Court Chief Justice Thomas Kilbride and the august members of the Workers’ Compensation Division of the Appellate Court. We are sure they have met Speaker Madigan, Senate President Cullerton and Governor Quinn once or thrice. See if they will come to the table for a secret or open confab. If they don’t sign up to at least discuss it, you have lost the war before fighting any battle because they can and will reverse anything which happens at the Commission and reviewing courts below, as they did in their rulings in Sisbro, ABF Freight and Barrington Orthopedics. We feel those claims outline an unsustainable standard for work-related causation in any number of ways.

If you can get our top justices to the table, contact the leaders of the Illinois Trial Lawyers, the docs and the unions. On the business side, bring the “usual suspects” to include our top legislative and business leaders and defense lawyers. Then meet and discuss some sort of limit or concept on causation in Illinois workers’ compensation everyone will accept. Consider televising some of the discussions and taking public comment.

Call us crazy but we feel there has got to be a fair and reasonable middle ground which makes sense and is sustainable. We assert the basis for causation cannot be the fact one has a job while having a deleterious medical condition of whatever source. If you aren’t sure, that is where we are at right now and we assert the causation standard in this state and/or any state can’t be kept there. Conversely, we do not suggest setting the causation standard so high that legitimate, serious injuries are denied coverage due to any pre-existing condition or some distant prior surgery. We believe a reasonable middle ground can be found if truly sought by the respective sides of the issue.