If you are a state employee and your feet hurt, you could be in line to receive medical care, including surgery, paid time off plus a tax-free disability settlement that might exceed your annual salary -- all paid for by taxpayers.
You also would keep your job.
Repetitive walking is now recognized in Illinois as a compensable on the job injury entitled to full workers' compensation benefits.
State employees whose jobs require them to walk and climb stairs who claim injury can cite a March 20 decision by the Illinois Workers' Compensation Commission, an appeals panel, upholding a Menard Correctional Center guard's claim that walking prison tiers several miles per day for more than a decade injured his Achilles tendon. The guard, Tracy Howell, is seeking a disability settlement after undergoing foot surgery that cost taxpayers $62,062. Howell, who could not be reached for comment, has also been paid $11,146 for time off to recover.
The maximum security prison was the source of at least 230 repetitive trauma claims resulting in more than $10 million in disability settlements, mostly to guards, who claimed they injured their hands and elbows by turning keys and operating locking systems, according to a Belleville News-Democrat investigation last year.
If you are a state employee and have undergone multiple wrist and elbow surgical operations, you can still partake in strenuous sports such as bow hunting and still receive a workers' compensation disability settlement. But you might risk having your case turned over to criminal fraud investigators, as happened last week to Donald Malcolm, a shift supervisor at the Pinckneyville Correctional Center.
After receiving questions from the News-Democrat about whether Malcolm's bow hunting activities should have been included during the hearing process for his claim of repetitive trauma wrist and elbow injuries from typing and training guards in the use of a baton, the office of the Attorney General on Wednesday referred his case to the Illinois Department of Insurance Fraud Unit.
A spokesman said the attorney general's office was unaware that Malcolm had gone bow hunting several months before and after four separate operations to correct carpal and cubital tunnel syndrome. He killed two deer.
An orthopedic surgeon and an occupational therapist consulted by the newspaper both said that pulling the draw string of even a heavy hunting bow would not cause or aggravate carpal tunnel syndrome of the wrist or cubital tunnel syndrome of the elbow. An ergonomics expert said she thought pulling back the bow string could aggravate carpal tunnel syndrome.
Malcolm, who received a tax-free disability award of $119,168 in November, said he would not comment. The public also picked up his $38,987 medical bill.
These two repetitive trauma cases are of a type that is difficult to defend because the causation standard under Illinois law does not require that a job activity be the main cause of an injury, but only a possible aggravating factor. It does not even have to aggravate a condition, but only the symptoms of a condition, according to a memorandum Illinois Attorney General Lisa Madigan sent recently to the General Assembly asking legislators to tighten the causation standard.
Madigan urged that the standard be raised, especially in repetitive trauma cases "to include only those injuries in which the employee's job duties were the 'primary' or 'major' cause of the condition of ill-being and excluding those conditions which are primarily caused by the natural degenerative process which occurs during aging."
Currently, a pre-existing condition like carpal tunnel syndrome, diagnosed before an employee gets a job with the state, cannot be used as a defense if the employee claims that symptoms still exist.
Even conditions like diabetes, obesity and arthritis, which are thought by a growing number of hand surgeons and other medical professionals to be the true cause of carpal tunnel syndrome, cannot be used to fight a claim if the worker states he is experiencing symptoms and a physician verifies the existence of the condition.
In both cases, the claimed repetitive trauma, walking and typing on a keyboard, were deemed by an arbitrator to meet the causation standard.
"If walking becomes compensable the whole system will fail," said Gene Keefe, a Chicago attorney who specializes in defending against workers' compensation claims in the private sector.
Keefe, who publishes a blog critical of the current operation of the workers' compensation system, speculated that if walking routinely qualifies as an on-the-job injury, it may soon be followed by "repetitive reading" disability awards if workers whose job duties require extensive reading experience sight disorders.
"State employees aren't stupid and are happy to slop at the new trough opened by the commission panel's misguided ruling," Keefe said.
Anders Lindall, spokesman for Council 31 of the American Federation of State, County and Municipal Workers, was asked whether his organization wanted to respond to Keefe's comment. Lindall said he would consult members of his staff. However, he could not later be reached.
Defending claims made by state workers can be extremely difficult, said Natalie Bauer, spokeswoman for the Attorney General, especially in cases like Malcolm's. Bauer said that by the time the Attorney General's Office got the case, Malcolm already had the surgery, which was approved by Central Management Services, a state agency. The remaining issue concerned the settlement.
"It's pretty hard to refute a case when a doctor says I saw it (injury) and I fixed it," Bauer said.
But the Attorney General's Office has won victories in the defense of state workers injury claims, including another repetitive walking case and one that involved deer hunting. In these cases, critical facts were disputed.
A Menard guard claimed that on Dec. 8, 2009, he suffered a groin and lower back injury while lifting an inmate's personal property box.
The case files show that on Dec. 10, 2009, the guard went to his personal physician but the subsequent paperwork from that visit mentioned that the patient had been lifting a dead deer and made no mention of an on the job injury.
Once the topic of deer hunting was made known to the arbitrator, John Dibble of Freeburg, he pressed for more details. Dibble was one of eight arbitrators removed last year after investigative reports about the workers' comp system were published in the BND.
The guard said that, from the time that he killed a deer on Nov. 20, 2009, until the date of the work accident on Dec. 8, 2009, he had been pain free. He claimed that his doctor's assistant made an error by reporting that he said he had hurt himself lifting a deer.
But Dibble ordered an investigation that turned up a record stating that on Dec. 5, 2009, the guard and his father had killed still another deer. This was three days before the alleged groin pull and lower back injury.
Dibble wrote in his decision denying the claim that it was unreasonable to believe that the petitioner would "just happen to forget" about the deer killed on Dec. 5, or that the physician would mistakenly write in his report that the petitioner blamed his injury on lifting a dead animal instead of an on-the-job accident.
In another case won by the Attorney General's Office, a former Menard guard who had transferred to the Pinckneyville Correctional Center complained that his feet hurt.
A physician examined the guard and diagnosed plantar fasciitis, or inflammation of the feet. The guard was given injections to relieve inflammation and was told to wear a special boot.
But he returned to his doctor to complain that the pain persisted. The doctor recommended surgery but the attorney general appealed to the Workers' Compensation Commission.
The commission rejected the petitioner's case that included his claim he had not previously known he had a foot condition. State law requires that a claim for an injury or condition be filed within three years of when it becomes known to the claimant.
"It defies logic to suggest that the petitioner never knew of his proper condition when he had both been told what it was and received injections, medication and other treatment for almost a decade," the commission's decision stated,
Contact reporter George Pawlaczyk at firstname.lastname@example.org or 239-2625. Contact reporter Beth Hundsdorfer at bhundsdorfer.com or 239-2570.