As we know now, the Illinois legislature passed House Bill 1698 that will change the workers compensation system. What a rollercoaster ride. For those who have followed the workers compensation proposals in Illinois the last few months, we’ve seen everything from changes in the causation standard to a total repeal of the system. Luckily, not that much changed. Here are the main points that matter to Illinois workers comp lawyers:
1. The causation standard did not change. This is big. Republicans and big business wanted to require the work-related accident or trauma to be the main cause. As it is currently, the law only requires the work to be a cause – so aggravations or accelerations of preexisting conditions are still covered. If that had been changed, most serious back, neck, and repetitive trauma cases would have been more difficult to prove, and many people would have been denied compensation.
2a. Speaking of repetitive trauma, there is now a cap on most carpal tunnel awards at 15% of a hand. This is in response to the idea that carpal tunnel cases are easy money and often abused (which I partially debunked here). It could be worse. The AMA guides often lead to a 0% impairment rating for carpal tunnel cases. In Iowa, many carpal tunnel cases are worth nothing at hearing for this reason. Also, the new law allows awards of more than 15% if there is clear and convincing evidence of a more serious problem, in which case the award is still capped at 30%. I’ve had cases where things have gone horribly wrong after carpal tunnel surgery (things like pulmonary emboli) that, I assume, would still qualify for a body as a whole award. Hopefully.
2b. Just as importantly, a hand is now worth 190 weeks again, as opposed to 205 weeks as it has been since February 2006. This not only affects carpal tunnel cases, but any injury of the hand. That could reduce the value of an amputated hand by as much as $18,000 (or as little as $7,000, depending on the injured person’s wage rate). The change in a 15% carpal tunnel case won’t be nearly as severe. (Suggested new state slogan: Illinois – where your hand is worth no more than $236,170 but no less than $88,564.70). Would anyone trade their hand for $236,000? Anyway, I’m getting off track…
3. More written criteria for the assessment of disability, including the AMA guides. The big change is that each injured worker, once they heal up, will be given an impairment rating from their doctor. The doctor is to use the most recent edition of the AMA guides to come up with this rating. The most recent edition is the 6th Edition, which has many flaws and has been rejected by the State of Iowa Workers Compensation Commissioner, for reasons outlined here. From personal experience, I’ve found that the AMA guides are still open to interpretation, and different doctors will almost always come up with different impairment ratings using the guides.
Nevertheless, the doctor’s impairment rating is just one consideration. The arbitrator is also supposed to consider the employee’s occupation, age, disability, and loss of future earning capacity. Once again, I don’t think this changes much, but I have a feeling some arbitrators will put greater weight into the physician’s impairment rating.
4. The intoxication defense. If an employee’s intoxication is the proximate cause of an injury, the employee gets nothing. This is actually a bigger deal than it sounds like, because there is a rebuttable presumption that an employee who tests positive for marijuana (at any level) was intoxicated and that the intoxication caused his injury. Why is that a big deal? THC can stay in someone’s system for weeks, even months after use. It would be possible for someone to get run over by a forklift, but lose their workers comp case because they used marijuana a month ago. Of course, a good workers comp lawyer would hire a toxicologist to rebut the presumption and hopefully win the case, but the costs, time, risk and difficulty go up quite a bit. I’m all for the idea that some drunken idiot doesn’t profit from his own mistake, but the marijuana thing goes too far.
5. Unions in the construction industry can now get around the workers comp system. This scares me most because the statute refers to this as a “pilot program.” Look for someone to tout the results of this after a year or two and try to apply this to all industries within the next two years.
6. Wage differential awards are limited to age 67 or 5 years, whichever is longer.
7. The medical fee schedule is cut by 30%. This means that doctors and hospitals get paid less than they used to for the same work.
8. Arbitrators are all fired – sort of, and their jobs will change. All current arbitrators will be fired, but some will be re-hired, and all will stay on until they are replaced. More importantly, no arbitrator can be assigned to the same hearing site for more than 2 years, and each hearing site will be assigned to at least 3 arbitrators. I have no idea how comp calls will work with three arbitrators. Maybe things will move faster, maybe not. I assume the state will have to hire more arbitrators or face a bigger backlog of cases. One real downside to this is the lack of predictability. If an attorney or insurance company has a great deal of experience with a local arbitrator, it can usually predict what that arbitrator will do in a certain situation. This allows us to accurately advise our clients. Now… maybe not so much.
There is more to it, but I’ve outlined the points that will matter the most to attorneys and their clients. You can read the entire bill that passed here.
Questions? Concerns? Comments?
(Howard Zimmerle is a personal injury and workers compensation attorney in the Quad City area, with an office in Rock Island. He is a member of the Illinois Workers Compensation Section Council. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).
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