5-1-12; The IL WC Commission Giveth to Casino Dealers and Taketh Away from Prison Guards

As fast as we see the great reporters at the Belleville News-Democrat telling everyone the newly appointment Arbitrators are backing off and denying WC benefits for at least seven prison guards in southern IL, we are stunned to see Illinois casinos getting whacked with impossible-to-understand CTS claims.

There is a saying in Latin that describes a logical fallacy and which goes: post hoc ergo propter hoc. This saying describes false reasoning that is used to incorrectly conclude there is a causal connection when one event merely follows after or occurs simultaneously with another one. In other words, the person who uses this reasoning will incorrectly conclude the first event must have caused the second. Using this faulty thought process, a person would say something like, "It always rains when I don’t have an umbrella." The incorrect inference from this statement is the failure to bring an umbrella can cause rain. In medicine and law, one would hope a conclusion of causation would absolutely require one event be the direct consequence of another and not rely merely on an observation of coincidental events happening in sequence or at the same time.

Unfortunately, faulty reasoning about causation is sometimes used to explain the cause of injuries in personal injury cases, including workers’ compensation cases. In such cases, Plaintiff or Petitioner reasons backwards and uses coincidences or simultaneously occurring events to explain causation. By using such retrospective reasoning, almost every employee can attribute carpal tunnel syndrome—a neurologic problem from repetitive use of the hands--to a repetitive “trauma” at work, since using one’s hands is almost always required at work.

A reading of the IWCC ruling in Genovese vs. Boyd Gaming makes one wonder if such a logical fallacy won the day for a Petitioner when she used proof of her card shuffling on a gambling river boat called Par-A-Dice to prove she had experienced a repetitive trauma “accident” to her hands that somehow caused carpal tunnel syndrome. 

One of the contested issues in Genovese was causation, and the question was whether Petitioner’s card-handling was a work-related “accident.” In other words, did a “repetitive trauma injury” from work actually cause her carpal tunnel syndrome? According to her testimony, Petitioner worked on the Par-A-Dice gambling boat since 1995 but she had not developed any sign of carpal tunnel syndrome until 2007. Beginning in 2009, she started to train to deal cards at the poker tables. After she started dealing cards, she claimed her symptoms got worse. She indicated shuffling cards required her to use both hands and she used her left hand to push the cards out of the “shoe” or automatic shuffling machine for some games. All of the games required frequent handling, counting, and changing of chips and money.

She ultimately came under the care of an orthopedic surgeon who later testified her card-dealing contributed to her carpal and cubital tunnel syndromes. He emphasized card-dealing required “very repetitive” motions of the hands and arms that could result in the two diagnoses. In response, we point out most card-dealing at casinos should actually be called “card-pushing” for the actions dealers make in moving the card from the shoe to the playing table.

An Independent Medical Examiner (IME) disagreed with Petitioner’s orthopedic surgeon. The IME physician found Petitioner’s pain was atypical and it did not fit the anatomic pattern of carpal and cubital tunnel syndromes. He testified her complaints were not consistent with the two diagnoses. Notably, he pointed out her coincidental and personal diagnosis of hypothyroidism could be a cause of her carpal and cubital tunnel syndromes.

There is probably no surprise as to which side won the “poker hand” in this case. Ultimately, the Arbitrator and later the Commission awarded the chips to Petitioner when they ruled she established her card-shuffling constituted a “repetitive trauma” that contributed to her carpal/cubital tunnel syndromes.

In reaching this conclusion, the Arbitrator adopted the causation opinion of Petitioner’s orthopedic surgeon, who testified card-shuffling caused the problems since it was, “very repetitive.” However, by accepting this conclusion, the Arbitrator also had to discard the IME physician’s scientific explanation Petitioner’s pain was “atypical” and did not follow the usual “anatomic pattern” necessary to scientifically support the two diagnoses.  After reading this opinion, one is left to wonder whether a retrospective analysis resulted in the application of post-hoc-ergo-propter-hoc reasoning and caused Petitioner to recover in this case, even though her card shuffling was not really an injury-producing or work-related “accident” in Par-A-Dice.

Our problem is the same concern we have in the situation with prison guards—if we reward humans with expensive WC benefits for routine activities, it gives private business strong incentive to get rid of the humans and robotize us out of the equation. We are already certain Illinois’ casino managers have made many changes to card-dealing to make it as ergonomic as possible. We are going to have to carefully watch to see if they take the next step.

We appreciate your thoughts and comments. This article was researched and written by Ellen Keefe-Garner, JD, RN, BSN. Please do not hesitate to reply directly to her at emkeefe@keefe-law.com.

5-1-12; Can this level of WC claims mismanagement in a sitting President’s home state affect the November Election?

Illinois Auditor General provides their scathing audit report documenting the smoking mess that is the Illinois WC program for our State Workers. Will all this government bungling rub off on the President?

Our President is an interesting and somewhat charismatic man—we know he is very popular in some quarters but we also feel he will be asked to take responsibility for our economy and general outlook moving forward. His opponent is clearly a solid businessperson who is going to make a strong pitch that you can’t run government on charisma and we would be better suited to look at the bottom line in these difficult economic times. We are sure the challenger is going to be able to point at Illinois’ troubled and chaotic government and tell U.S. voters our country can’t afford to go down the path the current President came from.

Right now, as loyal Illinois citizens and businesspeople, we have never seen any state in the United States so poorly administered. This state has problems with long-unpaid bills to its vendors, spiraling debt that is soon to be in the tens of billions of dollars, unfunded pensions, a Medicaid program they simply can’t seem to cut and a state government workers’ compensation program that is a model for how not to run a workers’ comp program. Taxes and tolls are jumping in cost and we probably will soon have speed cameras on every corner to help raise even more money on the taxpayers’ dime. Our new state motto may soon be—“Illinois, be sure to drive slow and enjoy the taxes!”

In the midst of all this, the Illinois Auditor General has released his department’s scathing review of the State of IL WC program. If you want the link to the report, send a reply. We find the results, for lack of a better term, revolting. The situation is so bad, it is hard to imagine how anyone can dig out of it. Even someone as upbeat as the President has to be shaking his head in disgust.

According to the report, for the four-year period January 1, 2007, through December 31, 2010, IL State workers filed a total of 26,101 workers’ compensation claims—to our understanding there are about 50,000 such state workers so that may be roughly one WC claim for every two workers. As of July 2011, over $295 million was paid in workers’ compensation for IL State employees on claims filed during the four-year period. We assume that amount doesn’t include WC benefits paid to state university/college workers. If you do the math, you can see the WC cost per employee is about $6,000 per worker, injured or not, over that four-year period. As we have told our readers, no private business on the planet would ever survive paying that much in WC benefits.

The audit of the IL State government workers’ compensation claims handling/adjusting program found:

Ø  Their data was incomplete, inaccurate, and inconsistent.

Ø  State adjusters handled claims and made decisions regarding compensability without appropriate investigation forms being submitted.

Ø  The claims managers and adjusters did not have caseload standards and could not always provide adjuster caseloads.

Ø  They have eight or nine adjusters who handle or “mishandle” about 1,500 claims each!!! We assure you it is not possible to actually adjust that many Illinois WC claims—in our view, they have to be overpaying and/or double-paying benefits on a routine basis. Please note it is much easier for an adjuster to endlessly pay benefits than take the many steps needed to cut them off.

Ø  The claims managers and adjusters needed to establish clearer policies regarding settlement contracts and approval limits.

Ø  The claims managers and adjusters did not seek legal counsel and negotiated settlement contract terms directly with the injured employee’s legal counsel—as we have told many of our clients and potential clients, it is a terrible claims mistake to “rely” on claimant attorneys to handle settlement contracts language as their ethical duties are to their clients and not you.

Ø  State adjusters do not have formal policies for conflicts of interest for adjusters or other employees who process workers’ compensation claims.

The audit of the Workers’ Compensation Commission found:

Ø  Their data was incomplete, inaccurate, and inconsistent.

Ø  They do not conduct annual reviews to evaluate Arbitrator performance. We feel the reason for this is how highly politicized and secretive the Commission has been under past regimes—we actually think the current administration is much more open than most.

Ø  There are no true guidelines for Arbitrators regarding permanency awards. We do feel this may change if/when impairment ratings come to general use as required by the statute.

Ø  Someone finally noticed the IWCC Review Board responsible for conducting investigations of complaints against Arbitrators and Commissioners did not meet for 3 1?2 years.

Ø  The agency did not have a formal policy or specific procedures to identify and prevent WC fraud. We feel this is because the many ITLA members who quietly seek to influence IWCC policy-making want to keep WC fraud a “secret” in the hopes no one will notice it.

What the state auditors couldn’t have pointed out because it is almost impossible to find is how many times the IWCC “penalized” the state adjusters and claims handlers for their mismanagement. We are confident penalties and attorneys fees are routinely awarded against the State by the State to the tune of millions. The problem with finding out how much it is points out how comically bad CMS’s database is. This startling feature of our impossible-to-comprehend WC system means one state agency, the IWCC is “penalizing” another state agency, Central Management Services to the benefit of Illinois State workers and to the wild detriment of taxpayers. Please note the reason we put “penalizing” in quotes is the penalties don’t truly mean anything because the state’s managers and adjusters aren’t disciplined about it in any meaningful way.

Like the City of Chicago, we consider it comical to note some state claims are handled by outside defense counsel as the result of a random and secretive RFP process—the lead State of IL WC defense attorney in the Chicago area is a Plaintiff attorney who has the State of Illinois as his sole defense client. We feel confident his main problem is getting the State to pay him for his defense work within a couple of years of providing the services.

The Auditor General’s report identified numerous shortcomings in both the structure and operations of the workers’ compensation program as it applies to State employees. These problems led to a program ill-designed to protect the State’s best interests as it relates to processing and adjudicating workers’ compensation claims for State employees.

As we indicate above, these sort of systemic problems may invariably “rub off” on the President as he faces numerous challenges in seeking re-election. We hope he will quietly tell the Illinois politicians who supported him during his first run to get their ship back into shape to avoid the embarrassment we are all starting to feel as citizens of this disorganized and anarchic state.

We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.

4-23-12; Amputations Remain a Demanding Claim to Manage in IL WC

We keep getting questions and keep answering them quickly and accurately. Here is some short-hand to remember if you get an amputation claim.

First, in this state, “amputation” equals bone loss as a result of a compensable injury. As soon as you become aware of an accepted WC injury involving an amputation, i.e., bone loss, you owe PPD for the amputation.

Second, the IL amputation rates aren’t just sort of high—they are wildly high. Right now the weekly PPD rates for an amputation start at $483.36 and cap at a lofty maximum of $1,288.96. An amputated arm in IL can cost an employer as much as $326,106.88

Third, PPD rates for amputation losses are 60% of the average weekly wage within the maximums and minimums above. If someone makes $50 per week and loses a finger or a toe, you owe weekly PPD at $483.36.

Fourth, we have heard and dislike the term “partial amputation.” If someone loses any part of the bone of the distal phalange of a finger or toe, they get 50% LOU of that finger or toe at the rates above. If the worker loses any part of the middle phalange of a finger or toe, they get 100% LOU at the amputation range we outline.

Fifth and finally, the attorney fee for a claimant attorney who handles an accepted amputation is $100. Due to the low amount, claimant attorneys rarely want the claim. But they will turn on the claim handler for hefty penalties and fees if you don’t immediately pay the amputation benefit at the amputation rates we outline.

Our recommendation in dealing with any amputation is to call, email or text any of our KC&A lawyers. We assure you we will provide clear and timely advice in handling these major claims. For contact information, look at the bottom of this email or just send a reply.