The End of The World As We Know It???

Workers' compensation reform (or whatever you want to call it) has arrived in Illinois. This was a huge reversal of the vote in the Illinois House just a few days ago when the reform attempt only garnered 55 votes, with 60 votes required.

This time, with Speaker Madigan arm twisting and with Governor Quinn and Mayor Emanuel cheerleading, the House got 62 votes and pushed this bill to the Governor for his expected signature. House Bill 1698, along with amendment 3 and amendment 5 were tucked into an unrelated bill, further obscuring the machinations from the public.

Business groups lobbied long and hard for an environment more hospitable to businesses in Illinois, citing workers' compensation costs as a main reason businesses were leaving the state. Groups supporting the legislation claimed it would save $500 to $700 million annually. Many in the business community complained the bill did not go far enough, as it did not create the desired "strict causation" standard that many claimed would force workers to prove injuries occurred on the job. What many reporters failed to mention is that the current standard already requires workers to do this with the "arising out of" and "in the course of" standards. These do not change, likely because the double-edged sword on that is it would open employers up to potentially huge damage awards under a negligence system.

Those in opposition fear it will strip rights from working people who are injured and harm medical providers.

An outside threat was to abolish the entire system of workers' compensation in Illinois but this did not occur as it would have thrown 55,000 cases a year into the already-clogged court system and potentially hit employers with high awards. So the "reform" that was passed doesn't satisfy completely any interested parties.

Stories in the Chicago Tribune, Chicago Sun-Times, Chicago Tribune Clout Street Blog, Springfield Journal-Register all provided different takes on the effort. All seemed to follow the conventional wisdom that this bill was all about saving money. However, much as the anti-union efforts in Wisconsin were said to be about the economy, the ties between the "reform" of workers' compensation in Illinois and any real benefit economically without serious damage to the rights of the parties actually injured appear spurious and unsubstantiated.

In short, this new law-to-be affects everyone who works in Illinois and not in a good way.

What the law does:

• Arbitrators, who hear workers' compensation cases in Illinois much like judges hear injury cases that occur outside of work, will have shorter terms (3 years instead of the current 6), undergo required ethics training, be prohibited from accepting gifts from attorneys who appear before them, and undergo training on medical issues.
• Cut the amount medical providers caring for injured workers receive for this treatment by about 30% on the Medical Payment Schedule.
• Reduce the amount of money paid at maximum for carpal tunnel cases by slashing the maximum number of weeks worth of benefits available from 40 to 28.
• Introduce American Medical Association (AMA) Guidelines for Impairment as a factor in valuation and determination of disability in all cases.
• Allow employers to create PPO-like networks of doctors and health care providers to which they can refer injured workers for treatment.
• Impose a burden on the worker injured to prove his or her injury was not caused by alcohol or drug use. Previously, the presumption was that the employer had to introduce evidence to show this had occurred.

What This Means:

• Changes in the arbitrators attempts to address public perception of impropriety. Several high-profile cases have come to light where sitting arbitrators were conducting hearings in private, filing comp cases for themselves in the very system they adjudicate, and the suggestion that gifts were being presented to arbitrators by attorneys appearing before them. While these were very isolated incidents, the likelihood is that most of the "new" arbitrators will be selected from the existing ones anyway and the integrity of the system, which was generally fine before, will not change in any measurable way. If anything, it has been posited that the gifts bestowed on arbitrators were more likely to originate from respondents' (defense) lawyers than from petitioners' (plaintiff) attorneys.
• The slashing of the already low payments to treating health care facilities means that many doctors will be unable to afford to take workers' compensation cases. Thus, the choices of doctors available to treat injured workers will be reduced significantly. In short, workers who are hurt may have an even more difficult time finding a doctor who "takes workers' comp." It is also foreseeable that the doctors who do "take comp" will treat patients as quickly as possible, getting them in and out and returning them to work sooner so they can move on to the next patient. Think about getting 30% less for what you do with the stroke of a pen. How would you survive?
• Carpal tunnel cases are often caused by repetitive trauma to the hands and wrists. Simply typing, working on a computer, or doing anything of the sort is often the cause. As our economy shifts more and more to a service-related and technology-rich setting for many jobs, this means that more of us are affected by this provision and that ANYONE WHO WORKS ON A COMPUTER AS A MAJOR PART OF HIS OR HER JOB LIKELY WILL EXPERIENCE CARPAL TUNNEL SYMPTOMS DURING HIS OR HER WORKING CAREER.
• AMA standards and guidelines, by some estimates, will reduce by as much as 50% the value of workers' compensation cases in Illinois. Granted, these standards and guidelines are one factor to be considered but their introduction will bring down the value of most cases. Remember that our Illinois Workers' Compensation Act currently is essentially a no-fault system that, in exchange for covering virtually all work-related injuries, provides a statutorily-created grid of how much is paid for each injury. IN OTHER WORDS, WORKERS' COMP CASES ARE ALREADY MUCH "CHEAPER" THAN NEGLIGENCE (THINK AUTO ACCIDENT CASES) CASES AND DO NOT HAVE DAMAGES FOR PAIN AND SUFFERING. Making work injuries worth less clearly hurts the worker.
• By allowing employers to create their own networks of health care providers, this plumps up the "old boy" network that already exists for "company doctors." In essence, doctors who get much of their business from employers will go out of their way to make sure those injured workers are released to return to work as quickly as possible. This saves employers money and leads to more cases being referred their way. If employees don't like it they have to use one of their choices of doctors (currently workers can choose up to 2 doctors). Also, think of all the doctors who will come over to the "dark side" and ask to become part of these networks, once they find they cannot make a living treating injured workers with the 30% cut in what they get paid. EMPLOYER-RUN HEALTH CARE NETWORKS REDUCE REAL CHOICE OF DOCTORS FOR WORKING PERSONS. Most workers don't even know they are entitled to see thier own doctor now under the present law. How are they going to make any kind of effective and informed choice when they are "freshly injured" and under stress and told to go see the "company doctor?"

Why This Matters to You:

• The system is now more complex and byzantine than ever. You need a lawyer to navigate the newly-altered landscape that is workers' compensation in Illinois.
• Employers have the upper hand now and will fight cases harder than ever. Don't go it alone.
• Technical changes in the law will be used against employees to try to deny, diminish, or delay claims.
• Carpal tunnel will affect many white collar workers, many of those previously thought to be unaffected by workers' comp.
• This may not be the last of it. Interest groups are sure to revisit this issue, especially if the party in power shifts in either house of the legislature or in the governor's office.

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