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April 2011 . . . Breaking News . . .
ONE WORKERS' COMP CRISIS AVERTED BUT OTHERS LOOM
On Thursday, April 14, 2011, the Illinois Senate rejected a Republican-led attempt to significantly alter the current Workers' Compensation laws in favor of employers and insurers. Called "premature" by state Democrats, threats to workers' rights to injury compensation remain in Governor Quinn's proposal.
Among other issues, the rejected legislation, sponsored by Lebanon Sen. Kyle McCarter (R), would have:
Despite the defeat of this bill, the battle over limiting the rights of workers to injury compensation continues.
Business groups consider the causation clause to be top priority. “Workers’ comp overhaul is clearly the single most important piece of legislation we can pass in this session to prove we’re serious about improving the business climate,” said Senate President John Cullerton (D). He stated that if senators want to reform Illinois workers' compensation, they must negotiate a bill that would pass in the House and that Governor Quinn would sign.
Before the Illinois General Assembly passed the Workers Compensation Act in 1906, an injured worker had to file a lawsuit in court against his or her employer and prove the employer liable. It is estimated that in more than 88% of the cases, the employer was found not liable. Other than a lawsuit, the worker had no rights under the law. For most employees, if you were hurt doing your job and you couldn't pay for treatment or continue working, you lost your health and, often, your job.
Illinois' Workers Compensation Act created a no-fault system where workers no longer had to sue their employers when injured in the course of their employment. Instead, workers make an insurance claim for the benefits outlined in the law and recover set benefits, including medical bill payment, partial wages, and monetary compensation for any permanent injury.
Business interests are currently trying to change the law to make it harder for injured workers to collect those benefits, to make it easier for employers to successfully contest payment of benefits in the first place (causation requirement), and to limit and reduce those benefits when an employee does establish causation (employers pick the doctors and a limit is placed on how much the doctor is paid, giving employers unwarranted control over medical care providers).
CAUSATION CLAUSE CONTROVERSY
While not included in the Governor's plan, Causation is a fighting point for businesses and insurers. If passed in any bill, causation will require that employees prove injuries are more than 51% caused by their job to collect any form of workers compensation, from lost-time compensation to payment for medical care and ongoing treatment.
This clause, ignoring precedent that the aggravation of a pre-existing condition is a new injury, would make back and disc injuries, joint injuries, carpal tunnel and other repetitive stress injuries, and muscle and soft tissue damage almost impossible to prove as work-related and thus not covered by worker's compensation (read details).
If the causation language passes, workers will face an uphill battle to prove that an injury is 51% or more caused by the work incident. Almost every back, knee or arm injury, other than a broken bone, will be disputed and difficult to prove, especially if the injured worker can only see a "company" doctor, who will most assuredly say the worksite accident was less than 51% of the injury's cause.
Opponents of these plans point out that the proposed changes will create more, not less, legal action. Employers and their insurance companies will have increased ability to deny claims. Employees will increasingly need to fight to get covered medical treatment and receive compensation while they are off work.
When people are injured at work, they need medical attention promptly. Under the proposed system, if employers and insurers contest every claim (or every expensive claim), injured employees may have to wait to "win" before treatment can begin—or pay for treatment and recovery time out of their own pockets. This will significantly increase the severity and hardship of injuries and their consequences for most Illinois families. Afraid to lose their job and be unable to feed their family while they challenge their employer, many injured people will simply never get the treatment they need to fully heal.
GOV QUINN'S WORKERS COMP PROPOSAL
Gov. Quinn's proposed changes also threaten employees' rights in many of the same ways the defeated Republican package did. While it does not include the Causation clause, political analysts agree there will be continued debate on causation, with Republicans remaining in favor of the clause. The Governor's plan includes:
HOW HOW WILL WORKERS COMP CHANGES IMPACT YOU?
From lower disability payments and a causation clause to eliminating your choice of doctors, the Workers' Compensation changes currently under negotiation among the different interest groups and political parties adversely affect—and in many cases completely eliminate—your ability to receive compensation for work-related injuries.
If a causation clause is passed, workers will need to prove that an injury is more than 51% work related. While broken limbs and other obvious external trauma from a workplace accident would easily meet that requirement, repetitive work injuries, carpal tunnel syndrome, muscle and back injuries, and joint and soft tissue injuries will almost never be covered because proving them to be more than 51% caused by work—and not from non-work related, pre-existing conditions—will be nearly impossible, especially if an employer-specified physician is required for treatment.
For example, over time, we all have degenerative changes in our joints and back that can be seen on X-rays but don't cause us pain and don't require treatment. If a 40-year-old nurse injures her back lifting a patient, herniates a disc, and needs surgery, the question becomes: Was the cause of her injury the lift or a pre-existing condition? With a causation requirement, the employer and employer's insurer will be likely to contest that her injury is 51% due to her work accident. Her recovery of benefits wil be delayed, at a minimum, and she may be denied any workers' compensation benefits, including treatment and compensation for lost wages.
Further, by requiring injured workers to be treated by an employer's choice of doctor, a greater number of work-related injuries may be denied compensation. When an injury is considered to be work-related, physicians will be under pressure to contain costs, risking the amount and type of treatment and care. Additional pressure will be applied to approve employees for return to regular duties, perhaps before they are truly ready to return.
Finally, by reducing payments to doctors who handle workers' comp cases, fewer doctors will be available to treat those injured at work, increasing wait times, personal out-of-pocket costs and endangering the quality of care.
WHAT CAN YOU DO?
If you are concerned about retaining your rights to work-related compensation, then contact your Illinois House & Senate representative as well as the Governor's Office and tell them how you feel about limiting your rights to prompt, fair, and full injury compensation!
You can find telephone numbers and mailing addresses for State Senators and Representatives at www.ilga.gov and for Governor Quinn at www2.illinois.gov/gov/Pages/default.aspx
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