Synopsis: Gov. Rauner Proposes More Changes to IL WC Act. Can/Should He Get Them Enacted by Our General Assembly? Thoughts by John P. Campbell, Jr., J.D.

Editor’s Comment: Governor Rauner endorsed a number of “turnaround” changes to the Illinois Workers’ Compensation Act which are clearly intended to save money for Illinois business and cut benefits to Illinois workers. You can read it online at this link: https://www2.illinois.gov/gov/Documents/CompiledPacket.pdf Our Governor has made no secret of his plan to make Illinois “more competitive” with our sister states to attract and keep business and lower gov’t WC costs. The goal itself is commendable--nobody argues with that general premise, as jobs keep leaking out of our state. You may note the WC changes are a small portion of the 44-points outlined. For our industry, the question is, how many WC cuts should we see? What will be the immediate and long-term effect of such changes?

A little historical background is in order. We saw changes in 2005-2006 to our statute which increased the schedule of benefits to injured workers in Illinois. From our perspective, this was entirely unnecessary in a State with perfectly adequate benefit system for injured workers. The 7% increase in the schedule for PPD values only served to increase the cost of doing business in Illinois. With the economic downturn hitting our nation just a few years later, our IL State Chamber led a charge for changes to the Act which were intended to save money for business and local governments. In 2011, a slashing of the medical fee schedule reimbursement was enacted and we also saw the introduction of AMA impairment ratings which, for the first time, were to be used as one of the factors to determine PPD value. It was recently reported the use of AMA impairment ratings brought down WC trial awards by about 12.5%. We note many Petitioner attorneys feel the actual reduction is even more steep, in the 17% range. We feel this was the intended purpose of introducing impairment ratings; to pull back the generous benefits a bit and also, insert some objective measure to the value of IL WC claims. On these two fronts, we believe the 2011 changes to our IL WC Act produced the intended results and we will continue to see PPD settlements and awards go moderately down in the years to come.

Now, Governor Rauner has proposed further changes to the Act, the most significant of which include

(1) Implementing strict adherence to AMA impairment ratings to exclusively determine PPD value;

(2) Further cuts to the IL WC Medical Fee Schedule;

(3) New language supposedly increasing the standard on causation; and

(4) Legislative language to better define and reign the reviewing courts in on the ever-changing “traveling employee” concept.

As our team at KCB&A are defense attorneys for IL business and local governments, we can appreciate the less our clients pay in WC costs, the more profitable they would be and the more attractive our State would be for new business and also save gov’t cost. Awards based only on AMA ratings are predicted to be much, much lower than current case values. This would save Illinois business and local government bodies money, without question. However, we can all agree IL WC benefits for significant injuries should not be zero either. Let’s remember, injured workers have no right to sue their employer for negligence when seriously injured in the workplace. A parent of three young children who can no longer play with their kids is not going to be fairly compensated for that loss when you see what some AMA impairment ratings bring for an operated shoulder or spine. In exchange, we have a system designed to replace the benefits which would otherwise be derived from expensive-to-resolve civil claims, and part of our workers’ compensation system is designed to reasonably and rapidly compensate the injured worker for all aspects of an injury and not simply loss of range of motion on a goniometer.

We can all agree some compensation should and must be paid for significant injuries. The question is, what is truly “fair” value for injuries in a state like Illinois with some of the highest wages/taxes and cost of living in the nation? Many would argue higher benefit rates and awards are appropriate in a region with similarly higher costs to live and work. From the injured worker’s perspective then, strict adoption and sole use of AMA impairment ratings to set PPD would severely reduce recovery from traditional values and some would argue such awards are inadequate compensation when faced with the much higher cost of living, particularly in the greater Chicagoland area.

AMA impairment ratings are a good tool to measure physical impairment based on nationally recognized medical criteria, but such ratings do not, in our view, translate strictly into an exact value for compensation of any injury. Petitioner attorneys would argue strict adherence to a medical impairment rating could lead to awards that are severely low for serious injuries. For example, a white collar worker who is seriously injured but capable of returning to his/her job due to the moderate physical demands may incur a relatively low impairment rating, even after serious/multiple surgeries. If this worker must later work in a more physically demanding job, he/she could be restricted or even unqualified due to a prior work injury. For this reason, the Petitioner’s bar (and their clients) would argue strict adherence to an AMA impairment rating to determine PPD value is unfair to those injured at work. So who’s right?

In our view, it’s all about striking the best balance folks; and we have that in place right now. Prior to consideration of impairment ratings for PPD value, there was no real objective measure for an injury, other than the precedent of thousands of prior awards compiled in the Q-Dex publications. When asked “why is an operated knee worth 22.5% of the leg?” our answer was “because lots and lots of arbitration awards are in that range.” So before 2011, there was no true objective test used at all. However, with the implementation of AMA impairment ratings as one of the factors to consider when ruling on case value, IL Arbitrators have a tool of medical measurement to consider. In our view, it is also important the same Arbitrators are able to consider a multitude of other factors in each case, including the age, the physical demands of the job, income earning capacity after the injury, as well as other medical evidence. We find this combination of factors to be the most favorable approach, as it allows Arbitrators to truly “judge” a case based on the totality of facts, which are unique to each case. For this reason, we endorse the current statutory construction which provides for consideration of AMA impairment ratings, but does not restrict a hearing officer from appreciating the relative severity of an injury based on all the facts in the case. We also note the Arbitrators and Commissioners now “report” to Gov. Rauner and can be replaced in three-year terms—this may also lead to lower awards as more conservative minds are at work. As we have said since Gov. Rauner was elected, some of this takes time but things will get better for IL business and government for years to come.

It is also reported the Rauner camp is advocating further cuts to the IL WC Medical Fee Schedule. This remains somewhat of an enigma to most in our industry; it is very hard to measure “savings” from additional reductions in medical reimbursement. While the 30% reduction in medical reimbursement enacted in 2011 must have resulted in savings for business and local governments, we are told crafty billing practices by some providers are navigating around the intended savings. If that is truly the case, why then, should we just implement further cuts onto those providers who are paying honestly? We are also concerned about the phenomenon that happened about a decade ago in State of Hawai’i WC claims where they made the medical reimbursements so low, doctors and hospitals started refusing WC patients all across the state. It was fairly embarrassing for the Hawai’i legislature to have to go back to the drawing board and raise reimbursements to more reasonable levels. Let’s strike a fair balance, folks.

On the issue of changing the causation standard, we have told Gov. Rauner’s team that isn’t needed. Whatever new legislative standard is implemented on causation can be skirted or completely ignored by a liberal to very liberal hearing officer. We need the Arbitrators and Commissioners to use better common sense in making rulings on the issue of causation and they are doing so as you read this. The crazy rulings from the Marion Correction Center on carpal tunnel from supposedly turning keys in locks weren’t changed by legislation—the new, well-informed and highly professional hearing officers started issuing lots of zeroes and the claims stopped.

The same thing happened on the “traveling employee” concept and we don’t feel legislation is strongly mandated but it might be prudent because of shocking stuff on this topic that randomly comes out of our “activist” courts. The Florida WC Act has simple language requiring a traveling employee to be doing something for their employer when injured for the injuries to be compensable. We suggest that may be a solid idea for our general assembly to consider. If you want the applicable language of the Florida WC Act, send a reply.

Any Better IL WC Ideas?

As we have advised our readers, there needs to be some initiative to get injured government workers at the state and local level off our dime and back to work on modified work. We consider it close-to-criminal to see state and local workers not being provided “reasonable accommodation” under ADA and allowed to remain out on TTD for months and years to then get monster WC “loss of trade” settlements off your tax dollars. Like lots of other WC concepts in our state, the words “loss of trade” aren’t in the Act and you can make up any meaning or value that you like. We hope Governor Rauner’s team starts to address this secret scandal.

Back to the medical field in IL WC, we have always struggled with litigated WC claims where medical providers actually refuse to accept group health payments for treatment on disputed WC claims, only to hope the WC case is favorable for claimant. If so, the medical provider will then recover more money under the IL WC Medical Fee Schedule than what the group health plan allows. Of course, Petitioner attorneys will tell you how terrible this is for their client if the WC case is denied by the arbitrator. Then, the claimant is stuck with the bills and the medical provider already refused the group payment! Believe us, this happens more than you would think.

In our view, the solution is to have a WC reimbursement fee that is equal to the average of the top three group health insurance providers in the State. This could be revised/adjusted every few years to keep it accurate and up to date. Such a system would end the debate over the alleged “windfall” payments to providers under workers’ comp. It would also serve to insert predictability of cost no higher or lower than major group insurance carriers. By the way, this should also deter doctors from playing lawyer, and trying to advocate for WC compensability just to make more money under the WC fee schedule. This also occurs more than you would think. Perhaps our representatives wrestling with these concept could consider such an alternative to this ongoing issue.

This article was researched and written by John P. Campbell, Jr, J.D. with a little help from your editor. Please direct questions or concerns to John at jcampbell@keefe-law.com. Please also feel free to post them on our award-winning blog.

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Synopsis: IL Supreme Court Requires our State Treasurer to Post an Appeal Bond to Appeal IL Work Benefit Fund Fight. Thoughts and Analysis by Pankhuri K. Parti, JD.

Editor’s comment: The Supreme Court of Illinois ruled in Illinois State Treasurer v. Illinois Workers’ Compensation Commission et al, the Illinois State Treasurer acting as the custodian of the Illinois Workers’ Benefit Fund is required to post an appeal bond pursuant to Section 19(f)(2) of the IL WC Act in order to involve subject matter jurisdiction of the courts to review a decision entered by the Workers’ Compensation Commission against the Fund. This ruling will have relatively limited scope.

In the present case Claimant, a home healthcare provider, was injured when she fell down the stairs at the home where she worked. Claimant filed an Application for WC benefits against her employer – the patient she cared for – and because he lacked workers’ compensation insurance at the time of her injury Claimant and her counsel also looked to Illinois’ Injured Workers’ Benefits Fund for relief. At the arbitration level the Arbitrator found Claimant had been injured in an accident which arose out of and in the course of her employment and awarded her temporary total disability benefits, medical expenses, and compensation for permanent partial loss of both her hands. This award was made against the Fund under Section 4(d) of the Act because of the employer’s failure to pay benefits. The decision was appealed by the Treasurer, as the Fund’s custodian, and the Commission unanimously affirmed and adopted the decision. Again in its capacity as the custodian, the Treasurer appealed the decision to the Circuit Court and then to the Appellate Court. While initially the Appellate Court reversed the Commission’s decision, Claimant filed a petition for rehearing arguing for the first time the Courts lacked jurisdiction.

This sets up the odd and seemingly contradictory scenario where the IL Appellate Court, WC Division first ruled it wasn’t a valid WC claim and then, on rehearing, found they couldn’t decide the claim, resulting in benefits being awarded.

Claimant’s petition for rehearing was based on two premises. First she contended her claim against the Fund was actually against the State of Illinois and the award in her favor was not subject to judicial review; however, this was immediately rejected by the Appellate Court. Claimant also argued judicial review was barred because the Treasurer had not filed an appeal bond, a statutory prerequisite for invoking the Circuit Court’s jurisdiction. The Appellate Court agreed with Claimant and ruled the Treasurer should have posted the bond if he wished to seek a review and since no such bond was posted, there was no subject matter jurisdiction to allow the courts to hear the appeal. This ruling of the Appellate Court was challenged to the Supreme Court of Illinois.

In the appeal the Treasurer argued the Workers’ Compensation Act should not be construed to impose the jurisdictional requirements of the posting an appeal bond upon their office as it would be contrary to the language, purpose, and history of the statute and would result in consequences which the legislature did not intend. The Court, however, rejected Treasurer’s claims the language of section 19(f)(2) was ambiguous and specifically directed towards only employers and insurers, with there being nothing to show the statute reflected an intent to include the Treasurer. According to the Court, this interpretation was not only incompatible with the principles of statutory interpretation, but also attempted to inject ambiguity into the statute when none existed. The Court further explained the legislature had used the terms employers and insurers throughout the Act as well as in Section 19, and if the legislature intended to confine the bond requirement to those specific groups, it could have easily done so by using the same terms.

The Treasurer also argued it was anomalous for the legislature to exempt cities and other governmental entities from the bond requirement, while expecting him to post a bond. However, our highest court held the Treasurer was treated differently because the Act made clear for the governmental entities to be exempted only when they were the actual employer of the injured workers. Hence, the Court explained, if the Treasurer was claimant’s actual employer, he would not be subject to the bond requirement by virtue of being a government entity. Because the Treasurer was involved in the litigation solely by virtue of his responsibility as Fund’s custodian, it was a function for which there was no analog among the entities exempted by section 19(f)(2). It was also the Court’s opinion if the legislature disagreed with this decision and believed the understanding of the Act was one which it did not foresee or intend, it could amend the law with respect to future cases.

This article was researched and written by Pankhuri K. Parti, JD. Pankhuri can be reached 24/7/365 for questions about WC at pparti@keefe-law.com.

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Synopsis: Why “Drive-By” Vocational Rehabilitation is Hurting the Reputation and Role of the CRC in the IL Workers’ Compensation System. Guest article by Larry Kahan, PhD, CRC.

Editor’s comment: Having worked as a Certified Rehabilitation Counselor (PhD, CRC) for many years in the IL workers’ compensation system, it never ceases to amaze me to observe the lackluster, unprofessional approach taken by a few bad apples in our voc rehab industry. Yet, these are the very “so-called professionals” who are creating an untenable situation for the rest of the decent vocational counselors who are challenging the previously-held assumptions about compliance and its relation to the overriding system abuses we see every day when we see half-measures taken by injured workers who have zero intention of ever getting back to gainful employment! It’s time to treat your profession as a CRC with integrity rather than a coffee break at Starbucks®.

Case in point: How many times do we work with injured workers who are merely going through the motions in their job search activities; perhaps doing just enough to avoid a label of non-compliance or outright sabotage of the job search process? Unfortunately, in my experience, the exception tends to prove the rule. It has become so commonplace for some individuals to dodge, omit, engage in half-measures, and seek to subtly (and often not-so subtly) derail the job search process, that to work with a claimant who truly wants to get back work and displays the integrity to make that happen is almost nonexistent in my world. From a defense standpoint, certainly taking into account the practice of ethics we are called as professionals to adhere to, we need to start by understanding our role.

Often a Petitioner attorney will attempt to point out in emphatic terms that our client is, in fact, the injured worker; thus the implication is the vocational counselor is brought in the protect the IW (according to the legal maneuvering playbook written by some Petitioner attorneys). Hogwash! If their client was a willing participant, showing through his/her actions from the outset they are truly committed to a serious job search, then I have no trouble spending many hours each week in assisting them to find the highest paying career possible. It is a truism that actions speak infinitely louder than words. Words coming from the attorney about just how incredibly motivated their client is to find work, that he/she intends to cooperate fully with an appropriate job search, ring hollow as soon as that very same client begins to become lackluster in documenting the job search. If the individual is doing a reasonable job search, both from a quantitative and qualitative perspective, it almost always shows up in the documentation and results. Thus it starts with a commitment to the following: Submitting job logs with appropriate detail, showing up for job placement meetings on time and dressed appropriately, maintaining a good attitude in the face of life challenges, having the willingness to do whatever it takes to market themselves in a positive light, and participating attentively to job-seeking-skills-training. This isn’t rocket science, and every person faces the socioeconomic considerations of the time. However, it the injured worker is willing to do what the mediocre are not; they WILL find a job.

Sabotage part 1: Interfering and disrupting how one is perceived by a prospective employer comes in all sort of packages. And, frankly, I know it when I see it. Where there is smoke, there is more often than not, fire. Here’s a few of the common attempts in the “playbook.”

“Roll out the scroll” This is where the injured worker seeks to let the employer know more information than they want. All then employer wants to know from a physical standpoint is: Can you physically perform the job.” Yes or no. Simple as that. When the IW decides to roll out the scroll of his/her injury, including pictures (I swear), there’s a pretty good chance their intent goes beyond simple honesty. They will say things like, “Isn’t it best that I be completely honest with the employer.” They conveniently forget we are having them apply to jobs that are well within their restrictions. By bring up the details of the injury, the IW seeks to sabotage the hiring process before it ever gets off the ground. I suspect there may be 1 or 2 Petitioner attorneys who are strong advocates of this approach, claiming their client is just being honest. I call baloney here!
“No shirt/shoes, no service.” Uh, thanks for coming, but no thanks! How often does an IW show up for an interview dressed like a bum? This is a surefire way to squash consideration as soon as you walk in the door. In fact, if you don’t shower, they don’t even need to see Mr. Sab O’Tage coming. Next!
“Doctor Moe, Larry & Curly” At what point did the injured worker become their own doctor, diagnosing themselves and setting their treatment plan? I can tell you how often and injured worker looks me straight in the eye and claims they can’t drive. Bottom-line: If it’s not in the medical notes, not specifically mentioned as part of the restrictions laid out by a physician well-informed about the case, it is not part of the restrictions. Here’s a common line of nonsense: I’m taking XYZ medication and thus cannot drive. That is simply a falsehood! Yet, you may be surprised at how many vocational counselors take this admonition as gospel. No documentation, it doesn’t exist! Period.
“The Application Blues” This type of sabotage goes like this: The applicant who’s playing the system decides they need to write a thesis on their injury on the employment application. The questions calling for the injury novel? “Please explain the reason you left previous employer:” Again, we need to be clear with the injured worker exactly how to answer that question in the manner it was intended. Perhaps they need to carry around a stamp which reads: THIS IS MY THIRD WORKERS’ COMP CLAIM IN 4 YEARS!

Perhaps it goes with saying the vocational counselor needs to create clear expectations for an appropriate job search from the outset. Make sure this is spelled out in a Job Search Expectations Agreement document reviewed before you start the job search process. Let the Petitioner attorney and IW know you will hold the client accountable M-F, from 9:00AM-5:00PM, 8 hours per day to ensure you are providing the proper guidance to achieve the return-to-work goal as expeditiously as possible. Don’t be afraid to discuss mutual accountabilities. Further, let them know unequivocally you will be verifying every single activity the IW does in order to offer the best feedback possible. That way, there will be no surprises down the road.

Return to work is always the primary plan. We need to expeditiously get the injured worker the highest wage possible, as close to the pre-injury wage as we can. But, often times this isn’t possible due to the previously mentioned nonsense. In that scenario, we need to show very clearly with excellent documentation why, despite every bit of assistance offered to the injured worker, they are not finding a job thus far. It’s critically important we show what we’ve offered in the way of reasonable and appropriate training, job leads, ongoing coaching, and accountability parameters. Yet, despite all that, Mr./Ms. O’Tage is not securing interviews because he or she is not following the specific vocational rehabilitation plan customized for them. Further, we need to cite the Illinois Supreme Court’s landmark decision in National Tea v. Industrial Commission:

We do not mean to imply, by the foregoing discussion, that the Commission should consider only the interests of the employee in determining an appropriate rehabilitation program. Because the employer is required to "underwrite" the expenses attendant to rehabilitation, it is essential that any program selected be reasonable and realistic. Consequently, where rehabilitation is ordered, the Commission should establish boundaries which reasonably confine the employer's responsibility.

It is worth remembering the longer a capable injured worker remains in job placement without finding employment, the more likely we are assisting Petitioner’s attorney in laying out a legal foundational argument for an Odd-lot/Perm Total. Vocational placement should never last more than 3 months. Either the person is employed by that time; or they are almost always sabotaging the process. That’s why our vocational rehabilitation plan has to be well-thought out, documented in a way that leaves no wiggle room, and adhered to from the outset. No more drive-by voc! This article was researched and written by Larry Kahan, PhD, CRC. Larry can be reached via email at Lawrence_Kahan@corvel.com.

KCBA Blog

4-20-15; Campbell on IL WC "Turnaround" by Gov. Rauner; IL Supreme Ct on Appeal Bond by Pankhuri Parti, JD and Larry Kahan, PhD on "Drive-By" Voc Rehab and more