Agency mum on workers' comp case; info on injury not available to public

News-DemocratMarch 21, 2011 

State hearing officer Kathleen A. Hagan, who recently filed her fourth worker's compensation claim three days before the deadline, is seeking a settlement for an undisclosed injury.

But the public will not learn -- either before or after the claim is settled -- how Hagan was injured. The only public reference about her accident on Feb. 13, 2008, is on a state website that simply reads, "knee and leg right."

That's because Central Management Services, the large state agency that handles much of Illinois' state government paperwork, has taken the position that because it is self-insured, virtually all information it receives regarding a claim made under the Illinois Workers' Compensation Act can be withheld because it is "proprietary."

Personal injury awards for state employees are processed by CMS, then paid by the state comptroller from the general revenue account, which is funded by taxpayers.

Hagan, whose $115,800 per year job as a workers' comp arbitrator in Chicago involves mostly desk work, declined to comment, saying if she talked publicly she could lose her job.

The Belleville News-Democrat reported last month that Hagan waited almost three years to file the claim -- three days before the deadline. But information about how and where the injury occurred or whether there were any witnesses is not available to the public.

Her three previous workers' comp claims were settled for a total of $42,271, according to state records.

Information is unavailable about whether Hagan received medical treatment or physical therapy for her latest injury. She apparently did not take time off to recover, according to state comptroller's office payroll records.

Experts on the state's revised Freedom of Information Act say that CMS' interpretation of the act's proprietary exemption is overly narrow, violates the spirit of the statute and is contradictory to specific wording in the state constitution. They contend that proprietary usually means withholding trade secrets, such as how Coca-Cola is made, not basic information routinely collected by a publicly funded insurance pool.

"It was the policy under the old act, and used to be the policy, perhaps even more so, that the law presumes records to be accessible. Exemptions are to be construed narrowly," said Steve Helle, a First Amendment attorney and professor of journalism at the University of Illinois-Champaign.

CMS spokeswoman Alka Nayyar said her agency has no choice under the law but to withhold any information it deems could be "proprietary,' or medical-related.

"CMS follows the requirements of the FOIA law -- when we are requested to provide records that we own and are publicly available, we do so," she said in a written statement.

But withholding information about where and how an accident is said to have occurred, and how much the public must pay out in medical and related costs, goes too far, the experts say.

"That is the kind of thing that the agency might use for investment purposes. ... Merely to say that records of a self-insurance pool are by their very nature proprietary seems to expand the definition of proprietary beyond what was intended," Helle said.

Don Craven, a Springfield attorney and longtime counsel to the Illinois Press Association, also questioned how details of a medical claim paid for by taxpayers are considered proprietary.

"There's a provision in the (state) constitution, incorporated into the new Freedom of Information Act, that provides that all documents related to the expenditure of public funds are themselves public documents," he said.

The limited "knee and leg right" description comes from the Illinois Workers' Compensation Commission website. But even that information would be withheld by CMS under the proprietary exemption, according to Nayyar.

"It is not that CMS will not" supply more information, Nayyar wrote in her statement dated March 10, "it is that we cannot provide what you requested."

Recently, after the News-Democrat began reporting on possible abuses in the workers' compensation system, CMS took over as the lead agency through which all public information must come, shutting out the Illinois Workers' Compensation Commission. Before that decision, the commission generally had been forthcoming with information.

When asked how he thought CMS could take over the duties of the commission spokesperson, Craven responded, "Ask the governor."

Mica Matsoff, a spokeswoman for Gov. Pat Quinn's office, did not respond to a request for comment.

In January, a representative of Quinn's office promised the News-Democrat an exclusive story if it would temporarily hold a workers' compensation story about potential fraud. The governor later called for an investigation into the workers' comp system.

Hagan is one of eight state hearing officers who have received or filed workers' comp claims. There are 32 arbitrators statewide.

Previously, accident information contained on Form 900s was released by the commission under the Freedom of Information Act about another arbitrators' claim.

A Form 900 was supplied as part of an Freedom of Information Act request for e-mails for arbitrator John Dibble, of Freeburg. It stated that he fell on a Herrin hearing office's steps in November 2009, hurting his knees and elbows and causing delayed onset of repetitive trauma. The form, which stated there were no witnesses, showed Dibble received a $48,790 settlement in October.

Another arbitrator, Jennifer Teague, of Shiloh, tried to cut a deal to speed up her workers' comp claim for repetitive trauma, according to e-mails provided by the commission.

Both Dibble and Teague have been suspended with pay while the Illinois Department of Insurance conducts an investigation of the workers' comp system. The probe includes reviewing hundreds of repetitive trauma claims, filed by guards and other employees at the Menard Correctional Center.

Also under way is an audit backed by Illinois House Speaker Mike Madigan that calls for a review of awards and pending cases filed by state workers. It passed 111-0.

Contact reporter George Pawlaczyk at gpawlaczyk@bnd.com or 239-2625. Contact reporter Beth Hundsdorfer at bhundsdorfer@bnd.com or 239-2570.

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