6-29-2011; Will County Clerk of the Circuit Court 14 West Jefferson Street Joliet, IL 60432

Editor’s comment: Stop your belly-aching, everyone. These WC reforms are not “lipstick on a pig,” as one northern Illinois risk manager told us. Good or bad, Governor Quinn is flying all over the state to herald the fact he signed the 2011 Amendments to the Illinois Workers’ Compensation Act. If you want our materials on the reforms, send a reply. In our view, the Illinois Workers’ Compensation system is taking a distinct turn for the better right now and only time will tell who is right. In our view, it is an historic day in which Illinois businesses may save hundreds of millions of dollars when and if they follow and take full advantage of the new laws. If you don’t take advantage of your new advantage, we assure you that your competitors are certain to do so and gain an edge. It is also our focus these WC reforms are being implemented without dramatically cutting benefits for injured Illinois workers. Here are some thoughts.

First and foremost, if you have Illinois operations, you have to get on the phone to your insurance broker right now and get a WC PPO in place. If they don’t know what it is or how to do this, tell them you are going to start looking for a broker who does. We have about fifty brokers who are all over this concept and if you send us a reply, we are happy to provide details and contact information. WC PPO’s can be found online right now at the following links.

·         HFN – As we told the hundreds of rapt listeners at our webinars, HFN guru and CEO David E. Kolb is one of the most knowledgeable folks in our state on the topic of IL WC PPO’s. Feel free to contact him directly as a one-stop shop for all your IL WC PPO needs.

·         Blue Cross and Blue Shield of Illinois - Blue Cross Blue Shield of Illinois provides the largest PPO and HMO network in Illinois.

·         United HealthCare United HealthCare may be the most progressive insurance company in the industry. UHC offers a single national PPO and HMO network.

·         Aetna Aetna is the nation's third largest health insurer.

·         Humana "Humana/ChoiceCare Network PPO" is the most popular choice for small businesses in Illinois and Indiana.   

·         Private Health Care Systems (PHCS) PHCS is one of the USA's largest national PPO networks, with an outstanding presence throughout Illinois and Indiana.

·         First Health First Health is an independent national network with a major presence in both Illinois and Indiana.

·         HealthLink HealthLink is an independent network with an extensive provider presence throughout downstate Illinois.

·         PPOM A large independent PPO network service the Midwest in Michigan, Ohio, Indiana and parts of Kentucky, Wisconsin and Illinois.

·         MultiPlan PPO Network MultiPlan PPO is a national network including excellent provider coverage in many Illinois and Indiana areas.

If you get a WC PPO in place, you have a strong potential for “controlling” work-related medical costs and lost time at the outset of any workers’ compensation claim. It may also be possible to use AMA Guidelines to smoothly move files to closure. If you don’t offer a WC PPO, you won’t get these advantages. If you have any concerns about how these Amendments will work, send a reply.

Second, anyone for historical irony??—A “Stunned” Blago gets hit with 17 counts and the next day, Governor Quinn flies around the State and signs the bill to reform what Blago did to the IL WC system. In our view, some day someone may figure out it is a “stunningly” bad idea to commit crimes while in public office in this state. Blagojevich is the fourth Illinois Governor of recent vintage to face “retirement” in custody. We will have to wait and see if Blago gets his goofy Elvis hairdo cut back to avoid head lice in the hoosegow. We have to also admit we are amazed to hear he claims to be stunned that his less-than-brilliant defense approach of regaling the jury with his Little League baseball exploits and calling Chicago Mayor Rahm Emanuel and Jesse Jackson, Jr. as witnesses to somehow “defend” him was rejected by the jury of twelve peers.

If you aren’t sure, way back in 2002, Blago was locked in a three-way primary fight and made a secret deal which gave control of the good ole “Industrial Commission” to the Plaintiff bar of Madison County, IL. Shortly thereafter, the name of the Industrial Commission was quietly changed to “Workers’ Compensation Commission,” the funding was switched so Illinois business has to pay the entire cost, the budget was tripled and some claimant attorneys were appointed as Arbitrators. Our WC system moved from the middle of the pack in costs to the top of the pack for the major industrialized states. It is our hope the reforms are going to bring us smoothly back to the middle.

Third, let’s try to make sense of “causation” in this state and our WC system. With deepest respect, we disagree with the gurus at the Illinois State Chamber and Attorney General Lisa Madigan who were both recently quoted as lamenting the fact causation wasn’t addressed in the legislative reforms. We want everyone to know it is our view “causation” can’t be changed legislatively. Whatever you change, the Commission and reviewing courts can “steam around” the legislation to find everything is somehow related. We point out the need for legislative change won’t “correct” the existing Act—they are trying to add something to legislation that has been in place for about a century. We aren’t saying the current “causation” concepts are a good idea and we do agree our State’s WC system needs a sustainable causation standard. What is going on in the WC arena at the Menard Correctional Center is “legal” but crushingly stupid. It is not possible for our state to have facilities where more than half of the workers have pending WC claims which cost $100K or more per claim. This is a what we characterize as a “poster-child” or model for needed WC reform, as it relates to causation. Remember, the easiest way to stop what is happening at Menard CC is for the Arbitrators assigned to start issuing zeroes and the Commission to affirm them.

Another “poster-child” for reform on the causation side are the rulings in Vogel and ABF Freight v. IWCC. In both rulings, it might be possible for someone to break a finger at work and, prior to full recovery, then have their arm amputated in a non-work-related event. Both rulings potentially hold the hapless but infuriated employer would be fully responsible for the non-work-related amputation. While such a situation won’t happen often due to the moderately unusual dual accident, we don’t consider that WC causation concept to be sustainable.

We can administratively change the causation standard and we feel we will have to do so to stop the calls for WC reform from Springfield. The State Chamber wanted to change the “causation” standard to make the workplace the “major contributing cause” of an accident, injury or disability. This concept fell only 5 votes short in the Illinois Senate. HB 1698 merely codifies current case law regarding proof by the preponderance of the evidence by the injured worker that the injury was "arising out of" and "in the course of" employment

In contrast, Missouri’s WC Statute 287.020.1a states “An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. The prevailing factor is defined to be the primary factor in relation to any other factor, causing both the resulting medical condition and disability”. It is our understanding Wisconsin WC law requires a finding the accident or exposure caused an acceleration of a deleterious process in a fashion faster than the normal degenerative processes of human aging. Illinois administrators can and must consider either standard moving forward.

To change causation, along with working with our Arbitrators and Commissioners, we may also need to talk to the Illinois medical community.

·         Right now, on your editor’s desk, we have a claim where three doctors all found claimant’s work is the “cause” of his disability. Not one of the doctors have the slightest idea what claimant’s job might be!!

·         We also have a medical report from a central Illinois doctor finding three months working as a construction electrician was “repetitive enough” to cause the need for surgery a year after the job ended for bilateral carpal tunnel and shoulder repairs. We point out all work is “repetitive” and truly don’t feel normal and ordinary work should comprise an accident.

·         We hate to see “garbage-in, garbage-out” IME reports where doctors are asked—“if claimant has pain at work, is it related to work?” Whatever the answer is, they simply aren’t doing their job—we truly feel such opinions should be routinely stricken from evidence and/or returned for detailed answers with appropriate scientific background information.

Our message to all the Arbitrators, Commissioners, Circuit Court Judges and Appellate Court Justices and attorneys on both sides who read this KC&A Update—if you want the legislature to continue to hear calls for WC reform from all sides, leave things as they are now and continue to infuriate Illinois businesses, big and small. If you want it to quiet down, find a sustainable middle ground and move us smoothly back into the middle of the WC pack among all of the United States.

We appreciate your thoughts and comments. Again, if you want our materials on the 2011 Amendments to the Workers’ Compensation Act, send a reply. Feel free to post comments on our blog at: http://keefe-law.com/kcablog.html