Former workers' compensation arbitrators awarded millions of taxpayer dollars to prison guards for arm and wrist injuries but ignored testimony of state medical experts who challenged these claims and threatened to impose higher settlements if lawyers for the attorney general continued to raise certain arguments.
That's how Ann Spillane, chief of staff for Attorney General Lisa Madigan, described former metro-east area arbitrators John Dibble and Andrew Nalefski.
"Nalefski got to the point he was threatening sanctions against us for making certain arguments because he had already heard those arguments. He didn't want to hear them again," Spillane said. "Dibble routinely said in his decisions that he wasn't going to credit our experts because he was more familiar than anybody with the situation and had ruled on it many times. He wasn't even hearing the words of our experts."
Dibble has asked not to be contacted.
"My job as an arbitrator (was) to listen to the evidence, determine the facts, apply those facts to established case law and render a decision," Nalefski said.
The law allows the imposition of sanctions for "unreasonable and vexatious nonpayment of benefits" Nalefski said, and sometimes he imposed those penalties. Nalefski also said that the state did win on some repetitive trauma cases.
Now, following a series of Belleville News-Democrat investigative stories that led to the removal of eight arbitrators including Dibble and Nalefski, Spillane said the attorney general is preparing to challenge repetitive trauma cases statewide.
The Attorney General's office, which represents taxpayers, is spearheading a joint effort with Central Management Services to challenge questionable carpal tunnel syndrome, or repetitive trauma injury cases, Spillane said. CMS acts as a claims adjuster for state workers.
"CMS will deny compensability for any state employee's workers' compensation claim that it determines is baseless or in violation of the Workers' Compensation Act," said Alka Nayyar, CMS spokeswoman.
From Jan. 1, 2008, to August this year, CMS denied 50 claims, Nayyar said, but of the claims that were challenged by a claimant's lawyer, all were approved by an arbitrator or through appeal to the Illinois Workers' Compensation Commission. Nayyar did not state how many of the claims rejected by CMS were challenged.
New downstate arbitrators, Spillane said, might be open to new evidence and revised versions of arguments that were routinely rejected by past arbitrators.
On-the-job injury claims made by hundreds of guards from a single prison, the Menard Correctional Center, resulted in more than $10 million in settlements between 2008-10 based on claims that turning keys and operating locking mechanisms led to permanent disability. After relatively minor surgery, the guards and the prison's warden were awarded settlements typically ranging from $20,000 to more than $100,000 and returned to work their regular, full-time jobs.
Spillane singled out Nalefski and Dibble as routinely deciding in favor of claimants despite what she said was evidence that the claims were invalid. But with new arbitrators and better tactics, Spillane said Madigan's office hopes that expert medical testimony will result in successful challenges.
As of Friday, the attorney general had failed to block even one of at least 255 claims filed by Menard guards who alleged that operating locking devices caused injury to their wrists or elbows.
"We're bringing in new experts to bolster new arguments. We're looking at everything across the board," said Natalie Bauer, spokeswoman for Madigan.
Madigan's office is focusing an overall effort to challenge repetitive trauma cases by targeting a single carpal tunnel syndrome claim filed this year by a $100,000-per-year information systems analyst for the state. Sylvia Sil, an employee of the Department of Commerce and Economic Opportunity, filed a claim in Springfield alleging that she incurred painful carpal tunnel syndrome by typing on a computer. Sil could not be reached for comment.
"We currently have an expert who will say typing does not cause carpal tunnel," Spillane said.
If the typing carpal tunnel case can be successfully challenged, Spillane said the AG's lawyers could move up to making successful defenses in case where guards claim injury from using keys and operating locks.
At least two reports commissioned by the attorney general in 2008 and this year have discredited the idea that operating locks causes carpal tunnel. However, under state law, a claimant need only prove that job duties might possibly contribute to aggravating an existing condition, a standard many workers' comp experts consider the lowest in existence. In nearly every case submitted, a doctor's report states that the claimant has carpal tunnel syndrome.
The BND contacted a top medical expert who stated that current medical studies show that use of the arm is not connected in any way to carpal tunnel syndrome.
In a written statement, Dr. David Ring, an associate professor of orthopedic surgery at Harvard University who has written five textbooks and hundreds of articles on repetitive trauma injury and other medical subjects, stated, "The best scientific evidence suggests that carpal tunnel syndrome has nothing to do with arm use and that pain with typing and other arm use has nothing to do with the median nerve in the wrist tunnel."
Ring was one of the authors of a 2008 Harvard study that stated that typing does not cause carpal tunnel, and attributed the syndrome to other factors including genetics, hyperthyroidism, diabetes and obesity.
Ring, a staff surgeon at Massachusetts General Hospital in Boston, also wrote that following surgery it is "highly unusual for patients to have any residual impairment or disability."
Despite the medical opinions of Ring and other experts, state workers who receive repetitive trauma surgery invariably receive a large cash settlement for ongoing disability even though they go back to their old jobs.
In the private sector, successful defenses against carpal tunnel and other repetitive trauma claims against employees are not unusual, said Gene Keefe, an attorney with Keefe and Campbell of Chicago whose lawyers specialize in the defense of these cases.
"There is a clean slate with new arbitrators," he said. "Now CMS and the attorney general and the all-new arbitration staff can take a fresh look at real evidence and stop clowning around and start fighting these cases."
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