Deadline is today for workers' comp records; legal battle could escalate

News-DemocratMay 23, 2011 

A newspaper's requests to obtain information about millions of dollars in taxpayer funded-injury settlements paid to prison guards plus the current status of a workers' compensation arbitrator's fourth on-the-job injury claim pit two state agencies against each other.

The legal battle could escalate today when a deadline expires in a Freedom of Information request by the Belleville News-Democrat for anonymous medical tests conducted on Menard Correctional Center guards who received settlements for carpal tunnel syndrome and other repetitive trauma injuries. The newspaper stipulated that names and other personal identifiers could be removed.

Today is when attorneys for the state Central Management Services could file for a circuit court appeal of an Illinois Attorney General's opinion that the records are public and should be released. Or, they could turn over the records. A spokeswoman for CMS agreed to provide a comment but later could not be reached.

Last month, the Attorney General's Public Access Counselor's Office issued a binding opinion, calling for the release of the medical tests held by CMS, the state agency that manages the workers' compensation program. Those records have not been released. Under Illinois law, CMS has 35 days to release the documents or appeal the opinion to circuit court, either in Sangamon or Cook County. Today will be the 35th day.

"We can't physically go to CMS and force them to turn over the documents, but we can go through this process," said Natalie Bauer, the Attorney General's spokeswoman. "You have requested the documents. We have said you should have them. They should give the documents to you."

If CMS opts for court, taxpayers will shoulder the bill for hiring an outside law firm to represent them in the suit, Bauer said. An assistant sttorney general, funded by taxpayers, will defend the opinion.

"It's the problem with the new law. The Public Access Counselor cannot enforce its own opinions against another state agency," said Don Craven, the attorney for the Illinois Press Association. "This is the (state's) chief law enforcement officer telling an agency what the state of the law is and they are choosing not to comply."

The News-Democrat requested the tests after reporting that almost $10 million in workers' compensation claims were paid to about 232 Menard Correctional Center employees, mostly guards, since Jan. 1, 2008.

Most of the claims were for repetitive trauma hand and elbow injuries the guards alleged were caused by locking and unlocking cells.

Another AG opinion last week called for the release of paperwork concerning Illinois Workers' Compensation Arbitrator Kathleen Hagan's most recent workers' compensation claim.

CMS sought to block the release of Hagan's Form 900, the document that details how an injury occurred, how much the state paid in medical costs and whether it was an accident and if there were witnesses.

News-Democrat reporters filed a Freedom of Information request to obtain the document in February after learning Hagan, a Chicago workers' compensation arbitrator, filed her fourth claim seeking a settlement for a leg injury. The claim was filed days before a three-year deadline. Her three previous claims were settled for a total of $42,271.

CMS asserted that the release of the most recent claim paperwork would violate Hagan's privacy and violate the federal Health Insurance Portability and Accountability Act or HIPAA. The agency also repeated the argument it used to deny turning over the test results or that state law allows "proprietary" information regarding the operation of an "insurance pool" to be off-limits to the public.

The Illinois Attorney General's Public Access Office disagreed.

In his May 12 opinion, Assistant Attorney General Steve Silverman found the only information that should not be released is Hagan's specific medical condition and diagnosis. But that was to protect Hagan's privacy and was not a violation of HIPAA. Since CMS is not a health care provider or a health insurance company, Silverman said it wasn't covered by HIPAA.

CMS' Form 900 didn't give away any trade secrets regarding the administration of the workers' compensation program, according to the opinion.

"The form does not appear to reveal policies, procedures or practices which CMS has adopted to manage claims, loss and risk exposure," Silverman wrote.

It's the same issue CMS employed to try to block the release of medical tests of prison guards who received workers' compensation settlements.

The issues in the CMS denial of release of Hagan's documents "rise and fall" with the denial of the request for the prison guards' medical tests, Bauer said.

"They are wrong on the law. They are wrong on the policy," Bauer said. "They should turn over the records and not thumb their nose at the opinion."

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

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