Workers' Compensation Reform in the December 2010 veto session

By Richard D. Hannigan

It would be best to retell these facts going from the present time and then back to our last Newsletter when I advised you of what transpired at the Senate and House Committee meetings on Workers' Compensation Reform.

On January 12, 2011 the Senate and the House elected the Speaker of the House, the minority leader and the President of the Senate and the minority leader of the Senate. I was present during the election conducted in the Senate and the acceptance speech by President John J. Cullerton and minority leader Christine Radogno. President Cullerton spoke of the many obstacles that this State has faced from the moment of his election two years ago when he had to preside over the impeachment of the then governor and then deal with the economic crisis in the State of Illinois. He spoke of the tax increase and the accomplishments of the veto session and added, "Workers' compensation reform still remains a top priority." In her acceptance speech minority leader Radogno indicated that, "I look forward to working with President Cullerton on workers' compensation reform." I have been advised that House Speaker Michael Madigan and Representative Cross expressed the same sentiments regarding workers' compensation reform.

On January 11, 2011 at approximately 7:00 p.m. President John Cullerton indicated that the issue of workers' compensation reform would be dealt with in the next session. No bill was presented to the House or the Senate during this veto session. However numerous bills and proposals were floated by all of the various interest groups. SB 1066 passed out of the House executive Committee and could have been called to a vote by the House at anytime up until the end of the veto session.

Just before Christmas and prior to the January 4, 2011 veto session numerous bills were drafted by the House with recommendations from the business interests and with input from most of the other interested parties. State representative John Bradley who was the democrat co chair and state representative Dan Brady who was the Republican co-chair tried to shepherd a bill through the House so that it would get to the Senate floor prior to the end of the veto session.

The vehicle that was used was prior Senate Bill 1066 that had passed down into the House. At no point in time, during the veto session, did President John J. Cullerton and the Senate present a bill to the executive committee in the Senate. Instead all of the work was done in the House of Representatives. Some of the proposed drafts totally eliminated the injured worker's right to choose a physician, included alternative dispute resolution, defined accident to include the limitation that the injury must be either the "primary cause" or "primary factor," reduced the Medical Fee Schedule rolling it back 15 percent and including implants. It also reduced the GEO zips from 29 to 4. There was a limitation on wage loss differentials limiting the wage loss benefits to age 67 or five years whichever is longer. The initial draft allowed only the employer to come in for a reduction in the wage loss deferential based upon a change in earning power and required the employee to sign an authorization allowing the respondent to obtain the current employer's payroll records on a quarterly basis. That was later changed to allowing both the employer and employee to come in and petition for either an increase or decrease in the wage loss deferential but limited payments through age 67 or five years whichever was longer. There was binding utilization review which would be admissible without foundation. In the end the amendment allowed for admissibility without a foundation and created a rebuttal presumption that the treatment recommended or denied in a utilization review was sufficient on its face to bind the arbitrator to the utilization review recommendations. This becomes problematic because it creates a greater burden of proof for the injured worker than the current burden which is "by a preponderance of the evidence." The injured worker always has the burden of proving that treatment is reasonable, necessary and related and when his board certified physician who has treated him testifies to the appropriateness of future treatment and he has met his burden of proof, what is it that the injured worker must do when the employer brings in a document that the arbitrator must presume has rebutted the petitioner's evidence in chief. The House refused to consider giving utilization review evidence "equal weight" or limit the peer review to physicians within the State of Illinois. The last draft of Senate Bill 1066 eliminated the injured worker's first choice of physician and required the injured worker to treat with the employer's physician and if dissatisfied he could seek one further physician. The proposed bill limited the amount of penalties on uninsured employers and imposed Rule 137 penalties on injured workers and employers whose cases were not well grounded in fact or law. There was a section that required reporting to the Illinois Workers' Compensation Commission any gratuities or anything of value which was tangible or intangible given by attorneys to anyone but was void as to any penalty or method of reporting. There was an amendment that basically dealt with the Menard's correctional guard situation creating an advisory Board in CMS to recommend the best practices for administering state workers' compensation cases, required the Illinois Workers' Compensation Commission to look into a system regarding paperless billing by medical providers, allowed the three panel Commissioners to issue stop work orders for uninsured employees but lowered the fine to $2,500 rather than $10,000. There was initial language submitted by the Illinois Workers' Compensation Commission to deal with the Keating case which indicated that uninsured employers could be sued in the circuit court only after a finding by the Commission that the employer was uninsured. It therefore allowed the employer the defense of proving that he was unknowingly uninsured and therefore he would avoid the presumption of negligence in the circuit court. It codified the case law on intoxication but went further by creating a presumption that in the event an injured worker refuses to take a blood test or breathalyzer he would be presumably intoxicated and that would be a defense to the workers' compensation claim. It would be an absolute bar. The amendment would also require arbitrators to be attorneys, require certification of all documents filed at the Commission and would impose attorney's fees and costs. Costs would be those costs incurred by your opponent as well as the costs incurred by the Illinois Workers' Compensation Commission. It beefed up the fraud provisions and created an insurance oversight provision. At one point AMA guidelines were submitted and were to be "considered" by the Commission.

I was in Springfield from January 5, 2011 through the evening of January 7, 2011. I returned on the morning of Sunday January 9, 2011, when the House was called back into session and remained until the evening of January 12, 2011. The Illinois State Bar Association and Jim Covington were very much involved in monitoring everything that transpired. The ISBA "list-serve" kept the council section members in the loop and the council section members were very much involved and productive in their responses.

What probably surprised the Legislature and business representatives the most was the well-coordinated efforts of Kim Presbrey, David Menchetti, Charles Haskins, the Illinois Trial Lawyers Association, their lobbyist Jim Collins, the numerous physicians, their lobbyist, the number of medical providers as well as the number of lawyers who descended upon Springfield in opposition of this bill. When the trial lawyers sent out a request for "boots on the ground," the response was immediate and lawyers from all over the State were in Springfield that Sunday morning and most remained until the end of the session.

It should be pointed out that the respondent bar is basically handcuffed from participating in this process. It is their own clients that wish to change the Act to reduce the employer's costs. To speak out against this and against your client would be economic suicide and therefore they could only sit on the sidelines and monitor the situation.

As stated, on January 7 and 8 the Illinois Trial Lawyers Association called upon every attorney to descend upon Springfield on Sunday, January 9. There were over 100 lawyers present on Sunday and they marched in mass to the capitol building, spread out and spoke about the bill with any state representative who would listen and when the House executive committee voted on whether to allow Senate Bill 1066 to proceed to a vote both doctors and lawyers alike testified against many amendments to the bill. We were Springfield's economic stimulus package.

Please keep in mind that the bill was presented as a whole and not as parts. Therefore it was either an up or down vote to present that bill to the House floor for a vote. In what house representative Burke stated was the longest executive committee hearing on a bill it passed out of the executive committee with an 8 to 3 vote.

State Representative John Bradley testified before the executive committee that he worked very hard on this bill from Christmas to New Year's and that even though it wasn't a perfect bill he felt that it was better than no bill at all. Hours later when he knew that he did not have the votes to pass the bill on the floor of the house he changed his opinion and indicated that he would rather get the bill "right" than have a bad bill. My observation is that there was a great deal of difficulty in Representative Bradley dealing with the trial lawyers. He seemed to move with ease in working with business. However I was not personally invited to the numerous close door meetings with Representative Bradley and only had the opportunity to meet with him once in his office, that being on January 5, 2011.

Whether you are for or against change please understand that change is coming. The degree of change is not only in the hands of the legislatures but is also in the hands of the people who practice at the Commission on a regular basis, the Illinois Workers' Compensation Commission, labor, management and the citizens of the State of Illinois. If you have opposition to any proposed bills in the future make sure it is not silent opposition. If you believe strongly in what business is doing let them know. If you believe strongly in what the Illinois State Bar Association, Labor and the Illinois Trial Lawyers Association is doing let them know.

In the end the legislature wants to create a friendly work environment in the State of Illinois. They fear losing business in the State and they want to attract new business to the State. That is something certainly all the parties can agree too. The issue becomes whether or not business overreaches so that they have created a disposable work force in that injured workers' will not be able to obtain fair and reasonable treatment, will be terminated and a new employee picked out of the ranks of the unemployed will fill his spot. Yet we certainly do not want a State that unjustly enriches an injured worker or allows for treatment that isn't reasonable or necessary.