Illinois WC Legislative stuff currently cooking in Springfield.
Editor’s comment: We are happy about some of this stuff and scared of the rest of it—we don’t know what organized labor is cooking up to counter the business initiatives.
Like secrecy in hiring, we hate the secret “agreed bill” process and it appears to be rearing its ugly head yet again. We will never forget the public relations fiasco that led to passage of the 2005 Amendments to the Workers’ Comp Act that might have sounded great but have delivered very little effective savings to Illinois business. We are now advised by several reliable sources; the Governor convened a meeting recently of some employers and organized labor to discuss the agreed bill process involving potential changes to workers compensation law. This meeting led to a discussion of the process in general and several bills may be cooking out there.
Several measures potentially helpful to Illinois employers have been introduced. We add our thoughts at the end of each description in bold.
Workers’ Compensation Alcohol/Drugs HB 5721 (Zalewski-D-Chicago) provides no compensation is payable if an injury was caused “primarily” by the intoxication of the injured worker, to include the influence of alcohol or certain drugs not prescribed by a physician or the combined influence of alcohol and drugs that affected the worker to the extent that the intoxication constituted a departure from employment. We point out if there are no mandatory guidelines the Commission has to follow in enforcement; this bill isn’t worth the paper it is written on. We hate the legal concept of requiring denial of benefits for injury while intoxicated to necessitate a showing of “departure from employment” and consider the whole concept unenforceable and nonsensical.
Workers’ Compensation Workplace Prevailing Cause HB 6159 (Reis-R-Willow Hill) defines injury as an injury that has arisen out of and in the course of employment; provides that an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. Again, we point out that if this bill isn’t coupled with a provision similar to Missouri’s which requires strict adherence to the legislative intent, this bill is similarly not worth the paper it is written on because everyone will simply swim around it, like an ice cube in a hot swimming pool.
Workers’ Compensation Collective Bargaining SB 3829 (Link-D-Lake Bluff) provides an employer or group of employers and the representative of its employees may agree to establish binding obligations and procedures relating to workers’ compensation; provides the agreement must be limited to, but need not include an alternative dispute resolution system to supplement, modify, or replace the procedural or dispute resolution provisions of the Act. We point out this sort of legislation indicates the Commission should be reformed or not; why create a binding arbitration system and another binding arbitration system? If an employer “opts out” of the current system, do they get to keep the money they are required by law to pay for a system they won’t use?
Workers’ Compensation Objective Medical Standards SB 3830 (Brady-R-Bloomington) provides permanent partial or total disability shall be certified by a physician and demonstrated by use of medically defined objective measurements, that subjective complaints shall not be considered unless supported by and clearly related to objective measurements, and a specified publication shall be applied in determining the level of disability; provides that temporary total disability payments shall not exceed 104 weeks. In our view, this legislative concept is borrowed from other states and would be a very solid, sober and sweeping change to Illinois workers’ compensation law. Therefore, in our view, organized labor will fight it like crazy. Please note this is being sponsored by the leading Republican candidate for Governor! We feel it may have a strong chance of enactment if the political winds change as many feel they may during this coming election year.
Workers’ Compensation Fraud SB 3832 (Brady) provides the Workers’ Compensation Commission may recall a decision or settlement when fraud has been determined to be committed related to a case; provides the Commission shall implement a rule to establish a process for recalling a decision or settlement that is subject to recall due to fraud; provides the fraud and insurance non-compliance unit of the Department of Insurance shall employ one or more attorneys as special prosecutors. Again, this is a sweeping change proposed by the leading Republican candidate for Governor.
Workers’ Compensation Coverage HB 6266 (Rose-R-Mahomet) provides a subcontractor under contract to a general contractor may elect to be covered under any policy of workers’ compensation insurance insuring the contractor upon written agreement of the contractor, by filing written notice of the election on a form prescribed by the Workers’ Compensation Commission. This is a simple and solid idea.
If we put you in charge, what would you change about Illinois work comp law? Please reply with your thoughts and comments.
You asked what we would change about Illinois workers comp law. My answer is two simple words: wage loss
The current wage loss system is unique to Illinois. As case law has shown, it really has nothing to do with actual lost wages. Once an award is entered, it pays for life and is almost impossible to reduce. This is easily one of the biggest cost-drivers in the system.
How about a wage loss system similar to what other states have (LA, MA, TX, for example)….one that is designed to be a hand up, not a hand out and is based on actual lost wages. The system should be designed to encourage the injured worker to seek employment opportunities. Wage loss should be revised as follows:
Cap on benefits: No more lifetime wage loss awards. Those make no sense. They completely ignore that people eventually retire from the work force. Wage loss benefits should be capped at no more than 10 years of benefits.
Eliminate fixed amount wage loss awards: Wage loss should be just that, a benefit to compensate the injured worker for lost wages. They should be required to submit their wages on a quarterly basis, and benefits paid based on the actual loss of earnings. Injured workers should be required to cooperate fully with vocational rehabilitation efforts during the entire period that wage loss benefits are payable.
Base the wage loss on the AWW at the time of the injury: Case law strikes again. Wage loss benefits are currently based on a mythical standard of what the injured worker “would have been earning”, but for the work injury. There is no logical basis for this standard. I have litigated wage loss cases where the employer went out of business and the courts ordered an inflated AWW based on what they “would have” been earning but for the work injury. If they didn’t get hurt at work, they would have been laid off just like everyone else at the company!
Mark Walls
Manager of LinkedIn group: WORKERS COMPENSATION FORUM
We completely agree and are of one mind.
FYI, one dirty little secret of Illinois work comp–the vast majority of wage loss claims are never, ever paid as wage loss.
Almost all such claims are “wage loss” in name only; the weekly benefits are always lumped up to an enormous sum of money.
As I have said many times, the spiraling cost of wage loss claims is another dirty little secret of Illinois WC—we recently had a kid with bilateral CTS; the “wage loss” value was about $900K.
He had surgeries to his wrists that wouldn’t provide any permanency in most states—in Illinois, he has a well-paid job and is owed almost a million bucks. What hogwash.
I don’t think anyone truly understands how much these cases are going to cost until they start to land.
Because of the agreed bill process, Illlinois and Louisiana are the only states in America that have not repealed a law that deducts significant amounts of money from unemployment payments to older workers who receive social security. It’s age discrimination — Employers pay in the full amount of employment tax to the state for every worker, but seniors don’t get the full amount of their benefits. In 2009, that amounted to less than 1 percent of the money paid out in unemployment benefits. Meaningless to Illinois, but meaningful to the seniors who didn’t get their full benefits. There is a secret process in Illiois. Lobbyists from business and labor decide which bills will be allowed out of the House Rules Committee, especially unemployment and workers comp bills. Lobbyists decide which legislation gets on the agreed bill list. If the bill’s not on the list, it dies in committee. And no legislator seems to have the will to change the process. Although the current repeal bills, HB 5047 and SB2640, have extensive bipartison support, the lobbyists didn’t put it on the list. So, it’s dead. Similar repeal bills have been introduced for years and years. They have always died in Rules. Here’s what it looks like to me — every State representative and senator could sign on to support these bills, which allows them to tell their constituents how much they support seniors. But the legislators never have to vote on the bills because they never make it to the floor. Therefore, the legislators never have to endanger their contributions from business and labor. Please understand that I’m not a conspiracy theorist. I’m a good government person — and I’m affected by this unfair law. Business has traditionally opposed repeal of what’s called “the offset law” in every other state and U.S. territory. None of the warnings from business hold water — businesses don’t leave the state and the employment tax doesn’t go up. The labor lobbyists have other fish to fry, so they let the business lobbyists kill the repeal bill in return for business’ support of something labor wants. I’m interested in law suit. How about you?