1-3-12; Welcome to 2012, Everyone. New laws, new challenges for Risk, Safety and Benefits Managers in this Great State of Ours

As they said in the movie Talladega Nights®: “Coming at ya, like a spider-monkey!!” In no particular order, here are some odd things we may have to adjust to in the New Year to come:

A.    Hospital risk managers and insurers have to be wildly challenged to read of the new Appellate Court ruling in Caburnay v. Norwegian American Hospital, et. al. issued on December 23, 2005. Dr. Caburnay was an anesthesiologist and entered Norwegian's lobby through the emergency room doors and walked down a corridor to an elevator bank containing two elevators. He was carrying an umbrella in his right hand and a duffel bag over his left shoulder. The hospital had placed a single six foot by ten foot rubber and fabric mat in front of both elevators to protect its floors and to prevent slipping. That mat, or one similar, had been used intermittently in front of the elevators for approximately six months. As Dr. Caburnay approached the right elevator, he walked onto the mat, pushed the elevator call button, and stepped backwards. As he did so, he fell backwards and the back of his head and neck struck a couch adjacent to the elevator. Caburnay fractured his cervical spine, instantly rendering him quadriplegic.

If any novices among our readers aren’t sure, the insurance reserves and/or trial value of a personal injury claim involving a physician who became quadriplegic is well into the seven-figure range, if the doc and his attorney can get the claim to a jury on the issue of negligence. The problem hospital safety and risk managers struggle with mightily is how doctors want to be members of hospital staff and bend over backward to get surgical privileges to then immediately “turn on the hand that feeds them” if they suffer injuries. Sometimes doctors are considered employees of the hospital and thereby eligible for WC benefits; more often they are considered independent contractor and able to sue the larger institution for negligence. We sometimes wonder if hospitals couldn’t require doctors to obtain their own liability insurance coverage for themselves, sort of the like car rental companies offer their renters insurance to use the cars.

The problem for Dr. Caburnay is a hospital surveillance video indicates immediately after Dr. Caburnay fell, several Norwegian personnel came to Caburnay's assistance. A backboard was placed on the mat and Dr. Caburnay was placed upon it. Staff members wheeled a gurney onto the mat, lifted Dr. Caburnay onto it, and carried him away. The video does not show Caburnay's feet or the portion of the mat underneath his feet. Caburnay did not look at the mat, either before or after he fell, because he was looking at the elevator. From our review of this decision, there are no other witnesses who appear to support the “fold-in-the-mat” theory of liability.

When he testified, Dr. Caburnay claimed he fell due to a fold in the mat that he didn’t see and could only “feel.” For that reason, the Appellate Court reversed summary judgment against the hospital and the whole thing will now go to a jury. While we generally agree with the Court’s ruling, we note Norwegian American Hospital is a small inner-city facility that works very hard to keep itself afloat. They have been in business since 1894 and operate in one of the most diverse hospital settings any of our readers might imagine. We sincerely hope this claim can be resolved without major financial damage to this organization. To read the ruling, go to:


B.    Someday, before we all retire, we certainly hope the 2011 Amendments to the Illinois Workers’ Compensation Act are going to be put into full effect!!!

Please note the 2011 Amendments to the Illinois Workers’ Compensation Act were passed by both Houses of the Illinois legislature waaaaaay back on May 28, 2011. Our Governor signed the law and put it into place in the west suburbs of Chicago waaaay back on June 28, 2011.

So what is missing?—three letters: “PPP”!!!! One of the carrots for the new law everyone on the defense side was promised were Preferred Provider Programs. The last step was approval of the various provider programs by the Illinois Department of Insurance. We also note there have been PPO’s or preferred provider organizations licensed and operating across Illinois for decades—how long could it possibly take for the Dep’t of Insurance to approve PPP’s that are effectively the same concept?

We note it took months for the brain trust to issue the one-page “opt-out” form that has any number of words in it that have to be challenging for lots of workers to understand. But even that was issued at least sixty-ninety days ago and nothing new on final approval of PPP’s.

Well, we all have to remember this is what one of our readers called “The People’s Republic of Illinois” and no one truly understands workers’ comp anyway. We are starting to feel there are secret political or administrative forces afoot to try to forever stall, delay or otherwise block the concept. Maybe the forces of ITLA will get together and march into their friendly courtrooms and see if they can mount a constitutional challenge to the concept. Either way, we wonder if our Illinois State Chamber is going to have to file a mandamus action to get the Dep’t of Insurance off of square one and start to bring the savings to Illinois business. We will keep everyone posted if we learn anything new.

C.   Finally, we saw a recent memo to the industry from Illinois State Chamber President Doug Whitley about the new concept of Live Healthy Illinois. In his missive, Doug encourages all Illinois businesses to start to get your troops working out, eating healthier and living better. We strongly agree with every word Doug wrote—please take a look online at: http://ilchamber.org/wp-content/uploads/2011/09/Live-Healthy-Illinois-2012-Pres-Message-12-19-11.pdf

Our message to all of our readers in the risk and safety industry—we may be able to shield your organization from WC liability for injuries occurred during normal workouts with a simple form that confirms their activities are voluntary. The idea is to use the legal concept outlined in Section 11 of the Illinois Workers’ Compensation Act. The same form can be used for parties, picnics and other company get-togethers. If you are interested in the form, send a reply and we will forward it in draft for your consideration and use.

If you aren’t sure, the State Chamber is the go-to place for IL WC reform and help for all Illinois businesses to beat your competition from other states. KC&A is a long-time member and we urge you to join.

Happy New Year to everyone, from the attorneys and staff of Keefe, Campbell & Associates. God bless our great country!!