Time is Running Out For Workers' Comp Reform (Whew!)

An Article in the Chicago Tribune over the weekend highlighted just some of the many pitfalls to the "reform" process this blog has followed over the past several months. In short, legislators are trying to prove to their business backers that they are doing "something" to help keep jobs in Illinois and workers' compensation seems to be the whipping boy this time. While no one familiar with the current system would argue that it is perfect, some of the proposed changes are rather disingenuous and hollow. Workers in Illinois can only hope that the current reform efforts fall flat or are pared down to manageable and non-catastrophic changes.

Under the current system, a worker (and this does not only apply to "blue collar"-type jobs--office workers, traveling sales people, store clerks, stock people, and professionals are ALL COVERED) who is injured at work has to demonstrate that his/her injury was caused "arising out of" and "in the course of" his or her work. In other words, if you are hotel housekeeper and in pulling a sheet tight on a bed, you strain your back, you are covered under the Illinois Workers' Compensation Act.

This entitles the employee to the following benefits:

Temporary Total Disability (TTD)--a payment of approximately 2/3 of the employee's Average Weekly Wage (AWW) for any days missed from work due to the injury (after the third consecutive day).

Medical Benefits--employer must pay for the medical expenses for two providers of the employee's choice and any referrals arising from those providers.

Permanent Partial Disability (PPD) payment--usually a lump sum settlement based upon the severity and permanent nature of the injury.

Let's take a look at some of the latest proposals highlighted in the Tribune article: causation seems to be a big change being bandied about. Basically, instead of the old standby tag team of "arising out of" and "in the course of" employment, legislators are suggesting/hinting that the employee may be required to prove the injury actually occurred at work. This is allegedly to combat "fraud." While workers' comp fraud exists, I would argue it is the usual red herring trotted out from time to time only to save businesses money. If employees already have to prove the injury took place "arising out of" and "in the course of" their employment, why do we need more proof?

Another change being highlighted is fraud in the billing of workers' comp. This change would allow the state to pursue medical providers who bill for services not actually rendered. Needless to say, fraud is is bad and needs to be abated. If this does not take away workers' rights, I am in agreement this is a theoretically good proposal but caution that it could limit medical choices, especially in poor neighborhoods.

Uniform standards for payment of medicals is another item bandied about. This one is frightening because there is no reason to "fix" what our present system already does. The injured employee must already present the bills for payment to the employer and the employer is only to pay these bills based upon the medical payment schedule disseminated by the Illinois Workers' Compensation Commission. It seems to this writer this is just another way to push medical providers away from workers' compensation treatment, thereby limiting worker medical choice.

Finally, the proposals discussed mention reform of the arbitration process, specifically who hears workers' compensation cases. Currently, while most arbitrators are excellent, they are not required to be lawyers, believe it or not. They act much like judges, ruling on objections, hearing evidence, determining witness credibility, and ruling on awards. In short, they are the judges in work injury matters. The proposals would require them to be licensed attorneys (which most are anyway), appointed to three year terms with strict ethical standards. The recent ethical lapses of arbitrators (especially those collecting for injuries from the very system they administer) seems to be driving this tenet. In theory, this all makes sense. Practically and specifically, it remains to be seen.

The short answer to whether workers' compensation in Illinois needs to be reformed is a resounding yes to which nearly everyone agrees. Ah, the devil is in the details as usual. Whatever is proposed, voted on, and ultimately enacted into law, ever citizen of the State of illinois should pay attention, read everything he or she can find on the matter, and make sure not to believe the pre-spun version of the whys and wherefores of "reform" provided by politicians. Beware of your rights before they are taken away.