Illinois Attorney General Lisa Madigan says a recently approved legislative overhaul of the state's workers' compensation program contains positive factors but misses on a key issue: raising the standard necessary to prove that taxpayer money should pay for an injury.
"To say we've reformed the workers' comp system is a gross overstatement," Madigan said during an interview with the News-Democrat.
Madigan, a Democrat, said: "Because the causation standard is fairly low, the work accident doesn't need to be the sole cause, or even a primary cause of the employee's injury."
Attorneys from her office defend workers' compensation cases brought by state employees.
Because an injured worker needs to prove through testimony from a physician that only that some part of the job could have aggravated an injury or condition, "even if it's only slightly, then the state is liable for all workers' compensation benefits," including medical care and any disability award, she said.
To defend against cases where the employee's duties are not the primary cause of an injury, Madigan said her lawyers must "present independent medical testimony stating that it's not possible that the work even slightly aggravated a pre-existing condition. That's very difficult to do, if not impossible, in many of these cases."
Because of rising costs that threatened to drive some businesses out of state and investigative stories by the BND concerning hundreds of repetitive trauma workers' compensation claims from the Menard Correctional Center, reform became a central issue in Springfield.
Madigan praised portions of the legislative reform package that require workers' compensation arbitrators to be lawyers and to adhere to the Illinois Code of Judicial Conduct. The proposal was sent to Gov. Pat Quinn. If he signs it, it will become law effective Sept. 1.
She also praised a part of the reform package that will generally reduce fees paid to medical providers by 30 percent and puts a cap on repetitive trauma injuries, such as carpal tunnel syndrome.
These changes will "significantly help to reduce the total funds the state is required to expend on workers' compensation claims." Estimates of savings for employers are as high as $500 million per year.
News-Democrat reports on workers' compensation claims by state employees spurred five investigations, including two criminal probes. The reports documented at least 260 repetitive trauma claims filed by Menard employees, mostly guards. Madigan did not answer whether she thought these claims might represent fraud. The newspaper has reported that since Jan. 1, 2008, workers' compensation claims by Menard employees, including those alleging repetitive trauma, have cost taxpayers almost $10 million.
She said it would be "inappropriate" to comment because her office is defending many workers' compensation claims, including those filed from the prison. Madigan said "it is important" to let the state investigations and one federal probe conclude without characterizing the many repetitive trauma claims, which usually claim carpal tunnel syndrome of the wrist and cubital tunnel of the elbow.
In response to a question about why she did not call public attention to a 2008 report by a Springfield job-conditions firm that stated that operating cell-locking mechanisms at Menard did not cause repetitive trauma, Madigan said: "We worked with CMS (Central Management Services, a state agency) to obtain that report and used it as part of an aggressive defense of these cases."
As for a pivotal decision by arbitrator John Dibble that the duties of a guard were "clear cut" causes of repetitive trauma despite the 2008 report to the contrary, Madigan said: "The Workers' Compensation Commission and the Illinois courts have a body of decisions that we must work with when we defend these cases."
After the BND reported that Dibble received a $48,790 repetitive trauma settlement he said was caused by falling on steps at a workers' compensation hearing office in Herrin, he was placed on paid administrative leave. He has stated he is not allowed to comment. If the legislative reform is signed into law, Dibble stands to lose his $115,800-per-year job after Aug. 30 because he is not an attorney.
Madigan described her attorneys as "zealous advocates on behalf of the state," but added that the relatively low causation standard sometimes means that cases are not brought to trial but are settled for less money than would be awarded if they went to trial and the state lost.
"When we know that an arbitrator is going to find causation," she said, "we must consider whether it's possible to resolve the case for less than an arbitrator would award after trial."
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