5-1-12; Daddy, Can We Reform Workers’ Comp in IL?? Please Dad, Can We Please?

Attorney General Lisa Madigan’s office lays out a seminal report with crucial recommendations for her father, IL House Speaker Michael Madigan for needed WC reform. Some of these recommendations will affect current handling of claims for IL state workers and some of them will affect the entire IL WC system. Let’s hope her Dad is listening.

We consider the AG’s report required reading for anyone interested in making Illinois workers’ compensation more functional for IL businesses and government agencies. If you want the link, send a reply. If you aren’t sure, IL state government is almost certainly the largest full-time union employer in our state.

What is weird about “the People’s Republic of Illinois” is our wildly liberal State government is “defended” by the office of the oldest daughter of the same political family that makes it so liberal—Attorney General Lisa Madigan is one of four children of House Speaker Mike Madigan. Our readers may remember your editor referring to the “secret-powers-that-be” that run the Illinois Workers’ Compensation Commission—Speaker Madigan is The Boss, El Jefe, the Exalted Grand Poobah of the “secret-powers-that-be” who run our state’s workers’ comp system. By that we mean nothing of value at the IWCC happens without Speaker Madigan’s seal of approval. One way for a Plaintiff/Petitioner attorney to be “made” in the WC system in this state is to have a picture on your wall or a snazzy wallet-sized snapshot of you shaking hands with Speaker Madigan.

The Political Tug of War in IL WC

What this sets up is the odd scenario in which the Attorney-General-Daughter who is charged with reining in a WC system that is basically “defined” and staffed in every way by her illustrious father. Like many of the political families in this nutty state, the family is torn between the immense donations of one of the biggest political lobbying forces in the state, the Illinois Trial Lawyers Ass’n that wants WC benefits as high as possible versus the divergent interests of taxpayers and/or voters who are justifiably upset to see skyrocketing taxes and tolls due, in part to impossible-to-contemplate government inefficiency and bungling in managing a WC claims program for Illinois State workers that is clearly out of control. If you carefully review the report, you can tell the Office of the Attorney General isn’t very happy with lots of decisions by Arbitrators and Commissioners either.

Please also understand none of what we are writing about is “corrupt” and neither father nor daughter have done anything remotely unethical or against the law—in fact, they are honest, educated and decent folks who are doing what they feel the forces of Illinois government let them do within the confines of the law. That said, the Illinois workers’ comp system for state government workers remains hilariously inept. We applaud AG Lisa Madigan for having the guts and drive to say so in careful detail.

Here are some of the important highlights of her report.

The Role of the Office of the Attorney General in Workers’ Compensation Litigation

The vast majority of workers’ compensation claims by State employees do not result in case filings with the IWCC. There are currently approximately 20,000 to 22,000 open State employee workers’ compensation files at the Department of Central Management Services (CMS). As of December 31, 2011, the OAG was handling approximately 5,300 State employee workers’ compensation cases which were filed with the IWCC. The OAG plays no role in approximately 75% of State employee workers’ compensation claims.

As we have advised, your editor is certain CMS does dole out some of its work to private defense firms. It is apparent from this report the OAG has no idea how that might take place. We would strongly recommend the duty to manage outside defense firms be moved from the wildly overloaded CMS Dep’t to the OAG.

The OAG expends considerable resources defending the increasing number of workers’ compensation cases. To handle the growing number of cases, they have significantly increased the number of attorneys and staff in the office’s two Workers’ Compensation Bureaus. In 2003, the OAG had 17 attorneys and support staff members in the Workers’ Compensation Bureaus. The OAG currently has 36 attorneys and support staff members handling workers’ compensation cases (25 attorneys and 11 support staff), with three new attorneys and another support staff member starting in April and May to bring the total to 40.

The CMS Claims Adjusting Process—Trying to Put Out a Raging Forest Fire with a Toy Squirt Gun

CMS currently administers workers’ compensation claims for all State agencies. The OAG report confirms CMS’s workers’ compensation budget is chronically and severely underfunded. A significant portion of each fiscal year’s funding is used to pay medical bills from the previous fiscal year, leaving CMS with insufficient funding for all other aspects of this program, such as retaining independent medical experts when needed to defend a case. As of March 2012, CMS is currently over 23 months behind in paying medical bills—we assume this means they are routinely paying 12% interest on an annual basis on all medical bills, as the IL WC Act provides. We are also certain the State gets hit with penalties and fees on most medical bills as a normal course of business at the IWCC. The only reason no one knows how much is their comically outdated computer won’t let them search for and find the totals!

The OAG report also outlines CMS has too few adjusters to handle the claims by State employees. The report indicates there are approximately 20,000 to 22,000 open State employee workers’ compensation claims. At present, there are only 8 CMS Claims Adjuster IIs to handle those claims (a Claims Adjuster I was added in recent months to assist them). In the private sector, 200 files is a very hefty caseload—if you do the math above, CMS adjusters are supposed to be “managing” over 2,000 claims each. Quite simply, the agency does not have sufficient funds or staffing to appropriately handle workers’ compensation claims. When you don’t have enough folks to handle the work, they have to be paying millions of dollars they don’t owe and taxpayers shouldn’t have to fund.

Prior to the Blagojevich Administration, some of the largest State agencies – IDOT, IDOC, DHS and ISP – each administered their own workers’ compensation claims, using their own funds. As a result, those agencies had a direct financial interest in improving the workplace to avoid or minimize workers’ compensation claims, defending against workers’ compensation claims and insuring injured workers could return to work as soon as possible to reduce the cost of TTD payments. Under the consolidated system for workers’ compensation claims, employing agencies do not experience any impact to their budgets when their employees file claims or remain off of work and on TTD for an extended period of time, providing those agencies with no financial incentive to determine the cause of the increase in claims and take steps to eliminate it. The agencies also have little incentive to accommodate employees whenever possible (including with light duty work) to allow them to return to work quickly.

The OAG specifically recommended increasing CMS’s use of vocational rehabilitation counselors. In some cases, a State employee may suffer injuries which result in his/her physician providing permanent physical restrictions, precluding the employee from performing the duties of the previous State job. In such cases, the State has an obligation to assist the employee in finding alternate employment through vocational rehabilitation services such as resume-building and interviewing skills, job search assistance, job skills training, education and other similar services which are provided by a vocational counselor. During this process, the employee is paid a benefit similar to TTD and referred to as "maintenance" benefits, which, like TTD, amounts to 2/3 of the State employee's salary. If the vocational rehabilitation process is not initiated promptly and closely monitored, this significantly increases the length of time that the employee continues to receive maintenance payments. Additionally, a more comprehensive vocational rehabilitation process would lessen the likelihood the IWCC will find the employee to be permanently and totally disabled if the case proceeds to trial. This is the case because the IWCC often uses the failure of the employer to provide meaningful vocational rehabilitation services to the employee as justification for finding that the employee is entitled to lifetime permanent and total disability benefits. As we have advised, over 700 state workers could be taken off of total and permanent disability benefits if voc rehab were offered right now.

The OAG report indicates CMS has recently begun to forward cases in which Petitioners need vocational rehabilitation services and/or job search assistance to the Illinois Department of Human Services. DHS has vocational rehabilitation specialists throughout the State. We are hopeful this new effort will assist in controlling TTD and maintenance benefit costs paid by CMS and also help to diminish the number of petitioners who are adjudicated to be permanently and totally disabled. We wish every employer in this state could simply forward their troublesome claimants to DHS in the same fashion.

Another State WC Embarrassment—Intentionally Incomplete Accident Reporting

The Workers’ Compensation Act requires notice of an accident to the employer no later than 45 days after the accident. The Act further provides, however, that this notice may be made to a supervisor either orally or in writing. Under the Act and relevant case law, an employee’s failure to provide notice within 45 days is not a bar to the workers’ compensation claim unless the employer can prove undue prejudice as a result of the defective notice. Although CMS requires all injured State employees to fill out forms regarding the accident, the Act does not require completion of these forms. As a result, injured State employees often do not complete the CMS forms on advice of their counsel.

As taxpayers, we consider this concept, if true, to be something that should be investigated and stopped, either by the Illinois Workers’ Compensation Commission or the Attorney Registration and Disciplinary Commission. We do not consider it ethical for attorneys to be providing advice to potential claimants so as to not fully cooperate with accident investigation protocols.

The OAG report also indicates the State faces significant difficulty in defending cases on a notice defense particularly in repetitive trauma claims where, as discussed in more detail below, the employee may file the claim long after leaving employment. The IWCC often determines notice was defective, but concludes State government did not suffer “prejudice” as a result.

The OAG report indicates to establish that notice has been provided to the employer, the IWCC merely requires testimony the employee said something to a supervisor at the time of the accident regarding an injury and the fact that it was work-related. In some cases, even the employee’s passing mention of an injury or condition of ill-being, however, without specifically informing the supervisor the injury or condition is work-related, has been deemed sufficient notice by some arbitrators and commissioners.

In our view, the OAG report erroneously indicates a Petitioner is not required to present evidence to corroborate that oral notice was given to a supervisor or to identify, prior to trial, which supervisor received notice. We are certain the Rules Governing Practice require a “stip sheet” or request for hearing form be completed and sent to the other side prior to hearing—the form requires the identity of the supervisor to whom notice was given to be disclosed.

The OAG report also indicates the employer is not entitled to pre-trial discovery to determine which supervisor in the chain of command the petitioner alleges received the notice, leaving the employer with difficulty in preparing to present appropriate rebuttal witnesses. If the employer presents a supervisor to rebut the employee’s contention that notice was provided, the employee often testifies that a different supervisor was informed about the injury. We would routinely object to any other person being identified during a hearing as having been provided notice of onset if they weren’t listed on the Request for Hearing form.

The OAG report recommends:

·         To ensure that State employees must provide clear notice at the time of an injury, the Workers’ Compensation Act should be amended to require that, whenever physically possible, State employees must fully complete the CMS workers’ compensation paperwork and to provide that until the paperwork is completed, benefits shall be withheld.

·         The Workers’ Compensation Act should be amended to require written, signed and verified notice of an accident.

We wholeheartedly agree with both recommendations. We appreciate your thoughts and comments. Next week—Part 2!!

5-1-12; Can I/should I permit my workers to sleep or even nap on the job or, as an accommodation, during off hours between shifts?

We were asked the question by a reader and wanted to convey some thoughts. We feel there are some specific legal concerns about staffers sleeping at a work facility.

Our main concern as defense lawyers is the concern that if someone were to get hurt before, during or after sleeping, you would want to ramp up your accident investigation. To the extent you allow workers to use rooms to sleep in, you are almost certainly expanding WC exposure, even though they aren’t paid while sleeping.

You want to insure you are confirming for such workers and have them agree

•           They are asking for and being given sleeping rooms on a purely voluntary basis;

•           They aren’t on the clock and

•           They are not being paid or entitled to any pay while sleeping (if that is accurate).

If there is any chance they can claim they are on the clock, you are going to rapidly run afoul of FLSA or have to pay them OT while sleeping. If you have FLSA concerns, please don’t guess, send a reply and get solid legal counsel from KC&A.

Please note it may also be confusing and difficult to manage the issue of waking a sleeping worker to have them pitch in during an emergency. If that occurs on a regular basis, you may have to pay OT, in the right situation.

We also feel you are going to have to carefully outline whether your workers are allowed to sleep or take sleep breaks while on duty.

We also feel you should consider clearly promulgated rules about who is allowed in a room while a worker is sleeping in it.

If the sleep breaks are voluntary, we have a form you can use to confirm that fact. It may limit or alleviate liability. If you are interested, send a reply.

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.