Why Don’t We Simply Abolish the Workers' Compensation Act

What did not make it out of the House Executive Committee on January 10 was an amended workers' compensation bill that included the definition of accident, but what was proposed and likely can be seen in this legislative session is an amendment that would relate to causation and limit liability to an injury that is a "primary factor" in the cause of the injury. The following was proposed: "The term injury in this Act is hereby defined to be an injury which arises out of and in the course of employment. An injury by accident is compensable only if the accident was the primary factor in causing both the resulting medical condition and disability. The primary factor is defined to be the major contributory factor, in relation to other factors, causing both the resulting medical condition and disability. Injuries shall include the aggravation of a pre‑existing condition by an accident arising out of and in the course of the employment, but only for so long as the aggravation of the pre‑existing condition continues to be the primary factor causing the disability.

(1) An injury is deemed to arise out of and in the course of the employment only if;

(a) it is reasonably apparent, upon consideration of all circumstances, that the accident is the primary factor in causing in the injury;

(b) it does not come from a hazard or risk unrelated to the employment to which employees would have been equally exposed outside of the employment.

(2) An injury resulting directly or indirectly from idiopathic causes is not compensable.

(3) Any condition or impairment of health of an employee employed as a suffered by a firefighter, paramedic or EMT which results directly or indirectly from any blood born pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, hernia, hearing loss, tuberculosis or cancer resulting in any disability to the employee shall be rebuttably presumed not to arise out of and in the course of the employment unless the accident is the primary factor in causing the resulting medical condition." (This would repeal Section 6(f) of the Act). "Primary factor" would also apply to repetitive trauma cases.

Utilization reviews would be admissible without foundation and would create a rebuttable presumption that the utilization review is correct and if the employee's physician did not submit to the utilization review process the physician would not be paid and therefore, treatment would not be rendered. One must wonder whether or not that employee used up his only choice and will never be able to obtain treatment for his injury.

Those are but two proposed changes to the Workers' Compensation Act. What has been lost upon the legislature is the fact that this Workers' Compensation Act was born out of an industrial revolution almost 100 years ago. Back then every employer had contributory negligence as a defense. If the employee was the least bit contributorily negligent in the cause of his injury, that employee would receive nothing. If in fact the employer's negligence was the sole cause of the injured worker's disability a jury was not limited in the amount of money that could be awarded that injured employee. Labor and business got together, as they did in every State, they created remedial legislation commonly referred to as "workers compensation". The employer received the benefit of caps on payment for disability and the employee's negligence was not considered. The standard was whether or not the injury arose out of and in the course of his employment.

State Representative John Bradley who co‑chaired the Committee on Workers' Compensation Reform testified that it is not his intent to limit the caps on an injured worker's right to compensation. And this is true. They did not reduce the permanent partial disability rates. They did not reduce the schedule for disability but instead he proposed changes that eliminated liability altogether. You have read what transpired down in Springfield and are left to your own conclusion as to how this affects the injured workers in the State of Illinois as well as the obligations and liabilities of insurance companies. It is my opinion that if these amendments to the Act ("primary factor" and utilization review) are implemented, what will be created in the State of Illinois is a disposable workforce. Should an employee be injured on the job, he must then go to the employer's physician. Should the employer's physician become careless and prescribe treatment, the insurance company is free to obtain a utilization review akin to a get out of jail card. He will be denied his treatment, unable to work and terminated. That employer may then enter the room of the unemployed and pull out the next employee leaving the injured worker to fend for himself and devastating that family.

What is already being proposed by the Illinois Chamber of Commerce are changes more radical changes than those introduced in December. The intent of the Act was to place the burden of treating the injured worker on the employer, not the employee or the State. With the proposed changes, the employee will have a greater burden of proving his injury than if he were proceeding on a tort theory in the circuit court. If the employee is struck by a cart at work and he is a diabetic who does not heal, the primary cause of his not healing will be his diabetes. The thought that an employer takes his employee as he finds him will be legislatively stricken from the case law. If that same employee was making a delivery at another factory and was struck by the cart he and his spouse would at least have a lesser burden of proving his injury and sequalae were the result of the second employer's negligence and he will be compensated for pain and suffering, loss of consortium, disability both temporary and permanent and loss of earning capacity.

I would rather see the legislature abolish the Workers' Compensation Act and I'll take my chances with a jury. Let the jury reduce the award by the amount of comparative negligence. At least with the tort law we would have a level playing field.

Anecdotally we can all come up with cases that approach the absurd from both sides of the aisle. Some awards are to high and some to low. Labor, the trial lawyers and medical providers are more than willing to meet the business interests more than half way. The pendulum seems to be moving way back to an opposite extreme. Let's just try to nail it in the middle.

I have represented employers and employees over my 37 years at the Commission. Going through different administrations I have seen very conservative and liberal Commissions. The Act itself is fair but should be fine tuned. There is no need to throw the baby out with the bath water. The fee schedule should be rolled back but not to the point where good highly qualified physicians refuse to treat the injured works. Implants and pharmaceuticals should be considered in the fee schedule. Business presented an all on nothing at all environment and lost but live to fight another day. They walked away from minimum savings on the Fee Schedule and implants of a projected 200 to 300 million dollars. That does not include what they would save based upon a change in the GEO zips and the limitations on 8(d)1 awards. My suggestion is that the legislature takes little steps and implements those changes that the doctors, labor, business and the trial lawyers have agreed upon. Once we know what the savings are we can better predict how we measure to the cost of doing business is against other states and what changes are needed to make Illinois a State that employer want to come too. Since the Chamber of Commerce made it perfectly clear that they will always be submitting new bills, there is no need to do it all their way. Illinois Chamber President Doug Whitley testified in the House Executive Committee. He confirmed the Chamber's support of John Bradley's bill but clearly indicated that the changes were only a good start towards reform. He testified that, even if the bill passed, the Chamber would be back next session to introduce key issues that were not included and what they deemed critical to meaningful reform such as addressing Illinois' low causation threshold and the need for AMA guidelines to bring more objectivity to disability ratings.

Finally, what was missing in Springfield during the veto session were the insurance companies. They handle more than 80% of the injuries in the State. Why weren't they heard? They did testify at the public hearing around the State. Also, there was a total lack of any proof that any of the savings from any changes in the Act would trickle down to the employer. No one could answer the question as to why premiums have risen drastically when the ranks of the employed has been dramatically reduce as well as the great reduction in the number of injured employees. Just wondering.

By: Richard D. Hannigan/Hannigan & Botha