Keefe, Campbell & Associates, LLC

Editor’s comment: We got news that last week there was a debate and testimony before the legislators in Springfield about a bill to seek to change Illinois law to require the work to be “the” cause and not “a” cause of a work-related medical condition. We then heard the representatives of Illinois labor bemoaned the fact that such a legal change would strip out “carpal tunnel” and other “repetitive trauma” claims for their members and other workers. We assure our readers it is potentially an accurate concern—we truly feel the current scope of coverage provided under Illinois’ implementation of the law involving repetitive trauma has effectively ended litigation of such disputes because most repetitive trauma claims are viewed as global coverage by our administrators. If the term “repetitive trauma” appears in a Commission ruling, they almost always rule the condition is work-related.

So what is wrong with the concept? Well, Illinois jobs are our biggest concern. Illinois is steaming towards 10% unemployment. Reaching that number will be a record high for the lifetimes of the vast majority of our readership. That isn’t happening by chance. We don’t feel the Illinois AFL-CIO has an abiding concern about finding more solid-paying jobs in our fair state. What is happening in Illinois workers’ compensation right now is a strong disincentive to Illinois employment.

Think this is more of the same old, same old? Well, here are two case stories we assure you are true.

1. Try the case of the chubby trucker with sore wrists. Four years ago, he started to treat for, along with lots of other things, his wrists. Numerous studies confirm one easily defined cause of carpal tunnel syndrome is obesity. Trust us; he suffers from that condition in spades. After about six months, the third of his treating doctors came up with the brilliant concept that the supposed “vibration” of the truck’s steering wheel was “a” cause of his condition and he needed CTS surgery. Never mind that the first two treating doctors and claimant himself did not attribute the condition to work—there was now a “golden diagnosis” in the file linking the condition to employment.

So what happened? Well, we weren’t handling the defense file at the time but the parties clowned around and clowned around fighting over causal connection. The trucker remained off all work for reasons we don’t understand. Three-plus years went by and the Arbitrator, who is a former Petitioner attorney, has dropped a bomb on the Illinois employer. He related the condition to whatever insidious level of “steering wheel vibration” this poor trucker had to endure. Gosh knows the steering wheel on his own automobile has to vibrate too but remember all you need in Illinois is for the work to be “a” cause. The Arbitrator has awarded over $150,000 in lost time and forced the employer to certify future surgery. The matter is now on appeal and is assigned to the most radical of the Illinois commissioners. By the time the appeals run, if the decision isn’t reversed, the employer may have to pay $200,000+ in lost time alone!

We are hoping against all hope the Commission turns this one back but try to understand how such cases make existing and prospective Illinois employers feel—the stakes in this poker game are unbelievably high. We are more and more concerned Illinois business gets to play in the game with a fixed deck full of marked cards.

And FYI, this is a classic example of poor defense handling—if you are going to fight about the need for care, get lawyers like KC&A who fight quickly so you don’t run up massive lost time exposure.

1. Our other favorite case is the central Illinois plant of a major Illinois employer you have all heard of. If you drink coffee, you have almost certainly used the product from this facility. We are at a claims meeting with the plant representatives, the third party administrator and KC&A as legal beagles. The plant manager has about eighteen claims from a union workforce of about two hundred. His concern for the TPA and our firm as his legal counsel is not one of the eighteen claims had anything to do with a traditional “accident.” He carefully pointed out there wasn’t anything unsafe about the events leading to any of the claims—every one of the claims involved “repetitive trauma” from doing normal work in a normal way. All of the workers had healthy and happy lives outside of work—they bowled, hunted and ran farms and used their elbows, hands and arms like everyone else in that part of the state. But all of them were seeking big benefits that were basically due to medical conditions related much more to advancing age than their work.

The plant manager noted all of the workers involved were over 50 years of age. They had lots of sore elbows and achy wrists which they attributed to routine factory work. All of the workers did lots of different things as part of their work—no ergonomist could or would ever point to any one task being performed in a “repetitive” fashion.

All of the workers were making claims that we have called “the Tunnels of Illinois.” By that you may recall, we feel there is more of an incidence and prevalence of carpal and cubital tunnel syndrome in this state than anywhere else on the planet. The reason for all the sore wrist and elbow claims is Illinois’ workers’ compensation system rewards the surgeon making the diagnosis by providing full payment of the cubital tunnel surgery at rates much higher than Blue Cross® would ever pay. Thereafter, the workers get a hefty bonus—as much as $60,000 in PPD for bilateral surgery that leaves less than a one-inch scar. Trust us, we have to find some way to let workers get carpal or cubital tunnel surgery without the amazing largesse that follows.

Well, about three years ago, the plant manager retired and was still making fun of the Illinois workers’ comp system.

We hope our legislators start to ask Illinois business what we need to do with workers’ comp to build more factories and plants in this state. Regardless of what the AFL-CIO says, what we are doing right now isn’t working. Please do not hesitate to provide your thoughts and comments.

Editor’s comment: Following last week’s article on the topic, we received two great replies from our readers. The first reply was sent by a top-notch, veteran adjuster who is one of the more savvy people in our industry. We do want her to use better defense counsel and we will continue to keep trying to convince her to add KC&A to her list.

It was her goal to let us know the approximate amount one should properly reserve for a typical CTS claim. She would typically reserve for indemnity (temporary total disability and permanent partial disability)

1. Four weeks of TTD at an expected cost between $800-4,000.
2. PPD at a value of 25% LOU of the hand at an expected cost between $10-33,000.

Total indemnity would therefore range between about $11,000-37,000.

She would typically reserve for medical expense:

1. Hospital                                    5,500.00
2. Physician/surgeon                     7,500.00
3. Prescription                                 300.00
4. Diagnostics                               2,500.00
5. Medical supplies                           250.00
6. Physical therapy                      10,000.00
7. Field case management             3,500.00

Total medical costs are expected to be just under $30,000.00. Combined claim costs are expected in the range between $40-67K. Keep reading.

We also got a reply from one of the top hand surgeons and researchers in the United States, Dr. Jay Pomerance. Dr. Pomerance offices in Arlington Heights, IL and all of his relevant information is on the web at

http://orthodoc.aaos.org/drjaypomerance/

In 2007, he published a research study titled Outcomes of Carpal Tunnel Surgery With and Without Supervised Postoperative Therapy, Jay Pomerance, MD, Ilene Fine, BA in the Journal of Hand Surgery / Vol. 32A No. 8 October 2007. The study and its revolutionary results have not reached many workers’ compensation brokers, insurers, utilization review analysts or hand surgeons. We think it is a great read. In his study, Dr. Pomerance notes:

Using current reimbursement rates, the cost of therapy approximately doubles the professional cost of treatment (therapy plus surgeon’s fee) for Medicare and commercial plans. For all carriers in this study except workers’ compensation in Illinois, the cost of therapy is equivalent to the surgeon’s fee despite there being no benefit in the parameters measured. This disparity would increase with greater amounts of therapy other than the 6 visits used currently. There is no dispute as to the benefit of a carpal tunnel release in patients with documented carpal tunnel syndrome. The additional expense of therapy was not justified in the current study.

Dr. Pomerance reaches the conclusion:

In summary, the routine use of postoperative hand therapy for patients having contemporary small open incisions in the treatment of carpal tunnel syndrome uncomplicated by coexisting conditions such as arthritis, endocrinopathies, or advanced disease was not supported by the current study.

In layman’s terms, we are all wasting money by approving and paying for expensive post-surgical physical or hand therapy following a typical carpal tunnel release. From a scientific perspective, the patient, in ordinary circumstances, doesn’t need it and will return to normal function without it.

Cutting workers’ comp indemnity and medical costs in CTS claims in Illinois

Let’s go at this cost-cutting target one by one.

First, make a preliminary legal determination of whether you owe anything under WC for the problem. As we advised last week, the Illinois Workers’ Compensation Commission has demonstrated a willingness to listen to the defense side where there aren’t clear indications of CTS-producing activities in the workplace. They are also reluctant to provide benefits to part-time or short-term workers.  From a legal perspective, we have won a number of such claims and the legal fees may be worth the money and risk in the right case.

Contact a physician to consider ergonomic changes in your workplace

Second, from an ergonomic perspective, along with Dr. Pomerance who we mention above, another great source for worksite analysis is Dr. Michael Vender who is another solid hand surgeon that can bring detailed ergonomic analysts to your plant and each work station. His website is http://hsasc.com/. In central Illinois, Dr. David Fletcher at SafeWorks Illinois has done a number of onsite evaluations to ascertain when CTS is caused by the work and when it is not. Dr. Fletcher’s website is www.safeworksillinois.com.

Third, let’s go down the list of major expenses:

• Lost time–try like mad to get CTS repairs to be done on a no-lost-time basis. Try to set surgery on Thursdays or Fridays and have the employee back to one-hand or no-hand work on Monday. Transition them to full duty. You may save between $800-4,000 in TTD if you can do so.

• Permanency–always try to settle them cheap where you can. The Commission is now affirming pro se settlements as low as 12.5% of the hand and awarding 15% of the hand for typical, routine CTS repairs. Your organization can save $5,000-15,000 in this fashion. Keefe, Campell & Associates provides legal fees on a flat rate for pro se settlement approval at $250 in Cook County and $350 outside Cook County.

• Physican/Surgeon’s fees: We feel the combined cost of CTS repairs for both surgeon’s and hospital fees should be much less than $12,500. To the extent they feel it appropriate, we ask top-notch hand surgeons such as Dr. Pomerance, Dr. Vender and any other Illinois hand surgeons to publish their fees for routine short-incision CTS repairs. If possible, we would ask them what to expect from competitive hospital or outpatient surgical costs. We are confident there is a lot of money to be saved without compromising quality.

• Prescriptions: We note there are lots of new programs to dramatically cut generic prescription costs at Target® and other big box retailers. We strongly recommend the WC industry start to source low-cost prescriptions. To learn more about Target’s prescription drug program, go to: http://sites.target.com/site/en/health/page.jsp?contentId=PRD03-004033.

• Physical Therapy: Follow the research of Dr. Pomerance and cut this high cost out altogether. We suggest you find a UR provider who is aware of the updated research and will prospectively non-certify such care. Use such non-certifications in all CTS cases. When you rely on UR to deny care, there is a presumption you can’t be penalized. The savings would be dramatic.

A similar approach should cut costs in all repetitive trauma claims. If you have other thoughts, questions or comments about cutting lost time, medical and other costs in managing CTS and other repetitive trauma claims, please send a reply.

Editor’s comment: Beginning with the decision in Peoria County Belwood Nursing Home v. Industrial Commission in 1987, Illinois ushered in a new “type” of work injury not previously seen in this state. We are certain Illinois was not the first workers’ compensation system to start the concept of repetitive trauma but this system is now certainly one of the most liberal in the world. The paradigm shift in the law brought on by this concept is previously, Illinois injured workers had to demonstrate a sudden and unforeseen occurrence to have what was legally defined as an “accidental injury” in the legislation. Following Peoria County Belwood Nursing Home, all one had to effectively demonstrate to show entitlement to workers’ comp benefits for repetitive trauma is a job, a need for medical care and the slightest causal relationship between the two.

The problem that followed the new legal concept is ascertaining when the condition would be legally related to work versus when the problem would be personal to the employee and not work-related. As you may see below, the Commission has become somewhat more conservative in some of their recent rulings.

Other related issues that sprung up are the date of onset or the “accident date” to ascertain which of potentially numerous employers and their respective carriers might have to pay workers’ comp benefits for the condition. In Durand v. Industrial Commission, the Illinois Supreme Court effectively stripped out the statute of limitations if the employee testifies they “worked through the pain” until some period after the statute would have tolled. With deference to our highest court, we have difficulty with a ruling that we feel ignores the statutory language.

Another major problem arose is the related concept of “apportionment” which would be determining which employer(s) might bear some or all of the cost of paying for a condition that may arise over weeks, months and possibly years. Some states do not allow repetitive trauma claims until the employee has worked for an employer for at least ninety days. Illinois does not have any waiting period. In Concrete Structures of the Midwest v. Industrial Commission, the employee came onto the worksite and worked for six days until making a CTS claim. The appellate majority ruled there would be no apportionment among employers until the legislature addressed the issue. One can expect the legislature to address this issue when and if the forces of Illinois business ever return to control of the legislature and governor’s mansion. Until then, one and only one employer will get stuck with a repetitive trauma claim unless the insurance adjusters agree to split some or all of the cost in a settlement.

Please note it is our position the repetitive trauma concept was created and formed solely in the courts. We make that statement because we do not feel the overall concept of “repetitive trauma” was contemplated when our Act was written in 1909 to protect workers from “accidental injuries.” We feel the statute was intended by the drafters to only contemplate something happening that was sudden, unforeseen or unexpected to Illinois workers. In contrast, there is nothing about carpal tunnel syndrome, cubital tunnel syndrome, tarsal tunnel syndrome, fallen arches, degenerating rotator cuffs, varicose veins or other previously personal conditions that are unforeseen and unexpected. Most, if not all, of such conditions medically relate closely to one’s personal social and physical makeup.

This also sets up the frustrating scenario of having to pay substantial medical, lost time and permanency benefits when no true “safety” protocol has failed and the employer is ostensible blameless. For example, we had a claimant who worked at a machine on a concrete floor and developed fallen arches. The employer provided her with shoes as part of her work. The treating physician confirmed the foot problem was due, in part, to the workplace and the concrete floors. Our client asked the rhetorical question—is it an “accident” to provide an employee with a workplace that doesn’t have rubber mats or carpeting?

In the twenty-plus years since the Peoria County Belwood Nursing Home decision the concepts of workers’ comp claims arising from events that are sudden and unforeseen have disappeared. Most repetitive trauma conditions can be expected in workers who are in bad condition, reaching advanced age or have a weakened habitus. For those reasons, ever-increasing workers’ compensation benefits in this state present a strong reason to quietly avoid hiring obese or disabled workers along with cigarette smokers—such workers may be dramatically more susceptible to repetitive trauma conditions and claims. The other negative is the problem with having any worker regularly work overhead or use impact tools. In this state, most of such jobs are being automated or robotized.

What does a typical carpal tunnel claim cost in Illinois? For an average worker with average income, the employer is typically looking at $5-15,000 in medical/surgical costs. Our strongest advice is to try as hard as possible to not allow any lost time, even if the employee has surgery. It is possible to schedule surgery on Fridays and have the employee return to one-handed work the following Monday. If you don’t do a good job anticipating and minimizing lost time, you can pay $5-15,000 for lost time.

As for permanency, Illinois continues to provide permanent partial disability in a range of 15-25% of the hand for operated carpal tunnel claims. For a worker with a PPD rate of $500 per week, this can cost as much as 205 weeks times 25% or 51.25 weeks at a rate of $500 equaling $25,625.00. For most employers, this high and seemingly unavoidable cost is one of the reasons Illinois is not a favorite state for workers’ compensation claims.

What is the current Commission doing with CTS rulings? Believe or not, we have seen some changes—the Commission is not nearly as liberal as they have been in prior years. We salute the focus the Commission brings to claims when they require clear medical testimony as to causal connection combined with consistent medical histories.

A. In Minder v. McDonalds, 02 IL.W.C. 15401, 08 I.W.C.C. 0784, June 30, 2008, the Commission reversed the Arbitrator’s decision and denied benefits for a food service manager. The Commission expressly noted the testimony about work duties was sparse, and they were unable to find support from testimony that work was causally related to her conditions.

B. In Wallis v. Harris Corp., 05 IL.W.C. 19583, 08 I.W.C.C. 0763, June 27, 2008, the Commission reversed the Arbitrator’s decision and denied benefit. The Commission decision states:

On July 6, 2004, Petitioner had an EMG/NCS, which revealed no evidence of carpal tunnel syndrome. Petitioner had another EMG on April 4, 2005, which revealed bilateral mild median neuropathies with compression at the carpal tunnels. Petitioner’s diagnostic studies did not show evidence of carpal tunnel syndrome until April 2005, which is almost two years after she stopped working with Respondent and over one year after she stopped working with another employer. We find that Petitioner’s EMG was not positive until long after she stopped working.

C. Finally, in Diepen v. Commonwealth Edison, 02 W.C. 08916, 08 I.W.C.C. 0689, June 12, 2008, the Commission denied benefits noting “Petitioner has not presented any medical evidence containing any history of any type of work activity to support repetitive trauma.”

In the right case with the right evidence, we note the Commission is throwing some of these cases out. One of our partners has obtained two separate denials from this Commission on repetitive trauma claims. Please also note the Commission will readily award benefits if clear expert and lay testimony shows the condition is related to the work.

If you have questions, comments or thoughts about defending repetitive trauma claims, please send a reply.