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How the courts drive up workers’ comp costs here

Monday, Jul 17, 2017

* Omri Ben-Shahar writing in Forbes about Illinois’ workers’ comp mess

The commission handling workers’ claims and the courts that supervise it have endlessly expanded the liability of employers, forgetting that the system was supposed to cover only employment-related injuries. One Illinois court held, for example, that a worker was entitled to benefits when he was injured throwing himself up against a vending machine in an attempt to dislodge a stubborn bag of potato chips. The court said that the injured employee was a deserving “Good Samaritan” on a rescue mission to help a fellow co-worker who had deposited the coins. The court thought that the defect in the vending machine “created a need for action to dislodge the bag of Fritos.” (I am not making this up!)

Illinois courts are generous to workers even when it defies common sense. A firefighter that was injured when he was out of town for a seminar and engaged in “horseplay” with a fellow worker in their hotel room (“wrestling like two oversized kids”) succeeded in persuading a court that the injury is work related. Numerous employees have had great success receiving lifetime benefits for degenerative injuries like carpal tunnel syndrome, even when it was proven highly unlikely that they were caused on the job. Ex-workers often continue to receive lost wages awards after returning to work elsewhere!

Illinois’ bottomless workers’ compensation system has contributed to the state ranking as one of the most labor-expensive states. In the construction industry, for example, $20 of every $100 of wages goes to workers’ compensation (in neighboring Indiana it’s less than $5). It is perhaps one more reason why the state has lost 300,000 manufacturing jobs since 2000, and why, unlike its Midwest neighbors, it has not enjoyed any manufacturing job growth since the Great Recession.

In the public sector, the effect is even grimmer. State workers file workers’ compensation claims far more often than in any other employment sector, costing more than 4 percent of government payroll. A whopping one third of Illinois state employees have open claims alleging work-related injuries. (Is it really that dangerous to work for the state?) The claimants are often counseled by lawyers, whereas poor Illinois does not have the resources to either defend this Tsunami of claims or pay the insurance premiums.

It is not obvious why the Illinois workers’ compensation system unraveled, but let’s see who benefits from this cash cow. As in any litigation-intensive area, lawyers do well. The paradigm of a litigation-free insurance system is long dead in Illinois, where 52 percent of workers’ compensation claimants—more than in any other state—are represented by an attorney. (In neighboring Wisconsin only 13 percent are represented.) Health care providers also benefit, since the fees for work injury medical treatments are much higher than the fees Medicare pays for the same treatments. But a big part of the blame is on judges. Don’t courts realize that dealing out insurance benefits makes premiums more expensive? That such reckless courtroom generosity would drive employers out, and the state’s finances to the ground?

As the article shows, workers’ comp is a state and local budget issue.

* Referenced articles…

* Illinois taxpayers’ tab for workers’ comp: $1 billion a year

* Worker Attorney Involvement: A New Measure [52 percent represented by attorneys]

* Circuit City Stores v. IWCC [Vending machine case]

* Background on Workers’ Compensation Claims Filed by State Employees and Reforms Proposed by the Office of the Atto rney General [”Horseplay” case]

- Posted by Rich Miller        

35 Comments »
  1. - ANnnoin' - Monday, Jul 17, 17 @ 10:19 am:

    OMG…better impeach those work comp judges pronto…can someone tell IPI who picks those guys?


  2. - Blue dog dem - Monday, Jul 17, 17 @ 10:20 am:

    Thank you Forbes for articulating in a way old Blue couldnt.


  3. - Ahoy! - Monday, Jul 17, 17 @ 10:28 am:

    –As the article shows, workers’ comp is a state and local budget issue.–

    Indeed, not sure why the Speaker doesn’t think somethin that costs the State money is not a budget issue. Our system is so bad that most organizations don’t even dispute workers comp claims, they just the bill, no matter how outrageous because they are going to loose. Government doesn’t see this as a problem because they just take money from us. A businesses just either moves or what more of them are doing is expanding outside of the State and just growing their operations there.


  4. - northsider (the original) - Monday, Jul 17, 17 @ 10:28 am:

    What percentage of the employers are represented by an attorney in the proceedings?


  5. - cdog - Monday, Jul 17, 17 @ 10:34 am:

    FireAlarm —
    “State workers file workers’ compensation claims far more often than in any other employment sector, costing more than 4 percent of government payroll. A whopping one third of Illinois state employees have open claims alleging work-related injuries. (Is it really that dangerous to work for the state?)”

    1/3? I’m speechless.

    Bookmarking this mess.


  6. - Not It - Monday, Jul 17, 17 @ 10:34 am:

    The Speaker said we would do the budget first, then turn our attention to these non-budget issues. The Speaker is an honest man so I’m sure he has plans for a special session in the coming days to resolve these non-budget issues.


  7. - Ma'at's Feather - Monday, Jul 17, 17 @ 10:42 am:

    What a true example of exaggerative journalism. It’s not that the state is such a dangerous place to work. Every workplace has the potential for injuries, even if it’s just carpal tunnel from repetitive motions. And the pain in many cases is real. I injured my lower back twice doing filing projects (lifting boxes and shifting heavy files around). Both times, it was my boss who insisted I file workers comp papers (to protect themselves, just in case, I’m sure). And both times I took the minimum time off (3 days…because I could barely walk) and I went to a chiropractor who was able to get me back on track so that I could walk again with no pain. Now, how much did the state pay, you ask? Well, on the first claim, they paid a fraction of the chiropractor’s bill. And they have never paid a dime on the second claim. That was years ago, and the office said they don’t know if they will ever pay. That’s how the state of Illinois handles its injured worker claims.


  8. - Anon - Monday, Jul 17, 17 @ 10:46 am:

    I know some of these disabled government employees. As I type, one of them is now building houses (manual labor not bossing). This is a major problem on all sides, private and public. According to my insurance agent (sells in both states) my work comp would be a third of what I am paying now.


  9. - mtwtsn - Monday, Jul 17, 17 @ 10:52 am:

    Maybe it’s just me, but am I the only Democrat in Illinois who acknowledges that our workers compensation system is broken? Rich, I know you’ve sounded off on the need for sensible workers comp reform before, but it would be great to see the state’s smart and respected commentators *looking at you* to really blast this issue home for the general public. It’s an abstract issue that isn’t “sexy” like a property tax freeze or term limits, but it’s probably the number one reform in terms of helping the state recover. It’s frustrating to see this lumped in with Rauner’s more extreme demands, which gives the public the impression that any changes to workers comp is “far-right” on the policy scale. If workers get compensated for rough-housing at a hotel, or for assaulting a vending machine, our workers comp system is as far left as you could possibly go.


  10. - Juvenal - Monday, Jul 17, 17 @ 10:52 am:

    If I note that one of the sources of the cited articles complaining about how generous state worker benefits is…is now taking paternity leave not available to most people as a state employee…is that irony or sarcasm or something else @OdwegoWilly @RadicalCandorIL @GregHinz ?


  11. - Alternative Logic - Monday, Jul 17, 17 @ 10:59 am:

    A Gatling-gun spray of scary hyperbolic falsehoods is difficult to effectively counter (as our President has masterfully demonstrated).

    The sheer effort (and time) required to address each of the many claims on their merits eats the attention span of the audience (before one even has the opportunity to make their own pitch).

    It’s unfortunate but it’s exceedingly effective on both the pre-conditioned faithful and the low-info mass audience.


  12. - JackD - Monday, Jul 17, 17 @ 10:59 am:

    So it appears the “problem” is not the provisions of the statute but the administrative judges who decide the claims and the state court judges who review the awards.


  13. - cdog - Monday, Jul 17, 17 @ 11:09 am:

    At the risk of being “radically candid,” require a list to be made public of who receives work comp payments.

    That nonsense would stop, immediately.

    It would also stop the “gypsies” that make a living from multiple work comp awards. I’ve had one my shop, and it is scary.


  14. - Logic - Monday, Jul 17, 17 @ 11:27 am:

    @ Alternative Logic

    – scary hyperbolic falsehoods –

    Why don’t you give it a try, rebuffing the esteemed professor’s article? If you are correct, I would love to see the evidence.


  15. - annonin' - Monday, Jul 17, 17 @ 11:31 am:

    mr/ms cdog perhaps an FOIA filinng?
    And for the dudes and dudettes who know cheatin’ workers ===there is fraud unit you cal give a jingle..BTW when first created the lst caught were employers …tee hee


  16. - Alternative Logic - Monday, Jul 17, 17 @ 11:57 am:

    == the esteemed professor’s article ==

    Argumentum ad verecundiam much?

    Q.E.D.


  17. - Lucky Pierre - Monday, Jul 17, 17 @ 12:00 pm:

    The Speaker has told us this is part of the Governor’s personal agenda and it was not related to the budget.

    The Senate President told us that the Workers Comp system was fixed in 2011 and the Governor was probably not aware of this because he was inexperienced.

    It turns out Workers comp is a part of a personal agenda, however it is part of the democrats personal agenda.

    Protecting unions and trial lawyers at the expense of taxpayers and businesses.


  18. - Name Withheld - Monday, Jul 17, 17 @ 12:15 pm:

    Dang. Didn’t get Kristina’s call for a job last week, huh LP? Or are you really Steve Brown - just like Wordslinger? Who are you really LP?


  19. - Louis G. Atsaves - Monday, Jul 17, 17 @ 12:18 pm:

    Overall I can’t disagree with this article. The author however does mix up “Arbitration Decisions” and “Commission Decisions” with decisions of the Circuit, Appellate and Supreme Courts.

    In recent years, the Commission has been reversed in favor of more expansive benefits, findings of accidents and causation, and elimination of certain credits for prior injuries.

    These reversals have come from the Appellate and Supreme Courts of Illinois. Once reversed, the Commissioners and the Arbitrators are obligated to follow the law as interpreted by the Appellate and Supreme Courts.


  20. - Ghost - Monday, Jul 17, 17 @ 12:57 pm:

    First work comp need fixed.

    Second we need to stop usieng manufacturing jobs as a measure of anything. Manufacturing is slowly dieing worldwide. robots are replacing people. A startegy that focuses on adding these jobs is one focused in the past on a doomed industry. Its like using farrier jobs as a sign of strong growth in while the auto industry is coming online.

    overall the US is down 5 mil manufacturing jobs. Wis and IA both lost thousands of manufacturing jobs over the last 12 mnths. The sector is not growing, it just moves around to rake in cash incentives and then goes away.


  21. - the Patriot - Monday, Jul 17, 17 @ 1:18 pm:

    Since 2011 the # of claims is down 20%. The cost per claim is down. 300+ insurance companies write work comp in IL, more than any other state. The reality is the NCCI in insurance industry group recommends dramatic drops in premiums, but the insurance companies won’t follow their own guides.

    The State redefines incompetence in the administration of Work Comp. The State could easily save tens of millions with some common sense. But keep in mind, the claims are administered by CMS for the Governor and the attorneys work for Lisa Madigan. All you need to do is the Madigans and Rauner to work together.

    Reality, you can save millions with minor administrative and structural changes that hurt no one. 18 months from the time of trial to get a final determination from the Commission.

    Often, that means 18 months with no pay because our system is administered so poorly. This creates exposure for the insurance company, hardship for the worker, and additional work for the attorneys without advancing the ball. I have specific examples for Rich if he wants them.

    Before 2011 Work Comp Arbitrators had 6 year terms and basically had a life appointment if they stayed out of trouble. To “clean up” the problem in 2011 they became 3 year appointments. Now, they literally serve at the will of the Governor and they are denying more cases than ever. But what happens in 2019? It is the wild west.

    We can do better, but these one sided political hit jobs don’t help. The problem is the Governor does not even want reform, he has a talking point. Just says neighboring states is not a plan, which state, we have 5 and they all have dramatically different work comp systems. Propose the Missouri or WI plan.


  22. - redeft - Monday, Jul 17, 17 @ 1:33 pm:

    I am not well versed in all of the details of worker’s comp in Illinois, and Patriot’s comments about the 2011 reforms lowering costs to insurers without lowering costs to employers has been well documented. While not opposed to well reasoned reforms, I think we have to avoid the race to the bottom that was so well documented in the NPR/Pro Publica series on worker’s comp. http://www.npr.org/series/394891172/insult-to-injury-americas-vanishing-worker-protections


  23. - Cook County Commoner - Monday, Jul 17, 17 @ 1:55 pm:

    Obviously, few are aware of the unpublished Article XV of the state constitution:

    Insurance and the lawyers who service it are the most important political donators in the State of Illinois. No law, custom or practice will be tolerated that could diminish or impair their economic activity, except to the extent necessary to convince voters that their elected officials appear to care about the future of Illinois.


  24. - The Real Just Me - Monday, Jul 17, 17 @ 2:14 pm:

    In the two cases cited in the Forbes “Opinion” piece (”Opinions expressed by Forbes Contributors are their own”), the Fritos case and the firefighter wrestling case, the Illinois Workers’ Compensation Commission awarded compensation. So, contrary to any “opinion” that a court was “expanding” the law in these cases, the Appellate Court was simply affirming what the Commission had already awarded. If the point of the Forbes opinion piece was that an activist judiciary is somehow expanding workers compensation law and therefore driving up costs, these were exactly the wrong cases to cite because the Appellate Court was actually being conservative in its deference to the decisions of the Commission. A closer reading of the firefighter wrestling case arguably shows that the injured firefighter was not “engaged” in horseplay but was the victim of unsolicited horseplay inflicted on him by another firefighter when he was admittedly in the course of his employment. BTW, the firefighter case involves the issue of “traveling employee” and it appears that “traveling employee” was addressed in every single version of workers compensation reform rejected by the Governor.


  25. - ANON - Monday, Jul 17, 17 @ 3:10 pm:

    I agree with the information provided by “the patriot.” I know of state employees who have spent three and four years dealing with a case as simple as carpal tunnel. The state hires a third party administrator (Tri-Star at the moment I believe) who provides a rediculously low level of service. This coupled with delay tactics by the state and Tri-Star results in employees who experience the issues patriot mentioned. Reading some of the Commission opinions clearly shows how biased some of the members are and how they are clearly willing to base their opinions on trying to keep their position on the Commission. Also, there are instances in which state employees have clearly been treated in a manner that would result in large penalties for a private sector company. The Commission simply ignores the issue because in their opinion assessing penalties to the state would simply hurt the taxpayers.


  26. - ANON - Monday, Jul 17, 17 @ 3:25 pm:

    I should add that state employees are not allowed to appeal the decisions in their cases to the court system. Most people are not aware of that. The Commission is as high as they can go with a case.


  27. - sulla - Monday, Jul 17, 17 @ 4:10 pm:

    Employers in my community that also have locations in other states tell me that their WC costs here are 2x higher than in their other locations.

    I don’t know enough about the WC system to prescribe a solution, I only know that it is a oft-stated negative for our area’s employers.


  28. - 39th Ward - Monday, Jul 17, 17 @ 4:17 pm:

    Look to California, where a Democratic legislature and Democratic Governor (Jerry Brown) enacted significant reforms to their workers compensation system in 2012. Costs to employers have gone down, while benefits to injured employees were protected. https://www.dir.ca.gov/DIRNews/2016/2016-73.pdf


  29. - Lucky Pierre - Monday, Jul 17, 17 @ 4:20 pm:

    Or look to Massachusetts. Another blue state that is run well.

    http://www.chicagomag.com/city-life/May-2017/Workers-Compensation/


  30. - Odysseus - Monday, Jul 17, 17 @ 8:24 pm:

    “Maybe it’s just me, but am I the only Democrat in Illinois who acknowledges that our workers compensation system is broken?”

    No. I’m well to the left of the Democrats, and I think these examples are ridiculous.

    Of course, this is the first I’m hearing about these cases. People like to say “the system is broken” and *NEVER* give examples.


  31. - Chicago 20 - Monday, Jul 17, 17 @ 10:46 pm:

    Really?

    The Illinois workers comp system is supposedly broken and the proof is a case from an injury which occurred 12 years ago.
    The author refers to “One Illinois court”, that court is actually the Illinois Supreme Court which overturned a McHenry County Court that had denied benefits.
    The author is University of Chicago professor with a PhD in Economics and SJD from Harvard. He is a member of the American Law Institute, yet shows sheer contempt of the case law involved in the Illinois Supreme Court’s decision.
    Why would someone of this caliber write this overtly biased IPI style dribble and why would Forbes publish it?
    There is only one reason.
    To keep pounding their biased message into your sub-consciousness until you believe this crap without question.


  32. - blue dog dem - Tuesday, Jul 18, 17 @ 6:36 am:

    What makes Illinois ripe for the picking when It comes to Work comp premiums? What makes Illinois different than its neighbors. At least when you read some comments above, the majority of the blame goes to the insurance cos. I don’t buy that entirely.

    s different


  33. - The Real Just Me - Tuesday, Jul 18, 17 @ 7:00 am:

    The Fritos case is actually an Illinois Appellate court case that affirmed the Workers’ Compensation award of compensation. Not to quibble, but it is important to note that the Illinois Supreme Court hears very few workers compensation cases, maybe 5 or 6 in the last 10 years. Even the Appellate court issues only about 15-20 workers compensation decisions every year. And the majority of those are decided on an appellate standard that is deferential to the Commission’s original decision. The point being that this is not some liberal activist judiciary running amok, “expanding” the law in favor of workers. In fact, about 3 weeks ago, the Appellate Court cited the Fritos case in an unpublished decision that actually denied compensation to the injured worker.


  34. - Da big bad wolf - Tuesday, Jul 18, 17 @ 7:31 am:

    Not saying that workers’ compensation doesn’t need tweaking, or that nobody commits fraud, but this article by Forbs doesn’t say much. For every vending machine type anecdotes there are dozens of anecdotes on the other side, where people get injured on the job and the insurance company will say “how do we know your back was’nt injured before?” Or the company doctor will send an injured person back to work too early and that person gets re-injured because they weren’t healed in the first place. So we can have battleing anecdotes if we want.
    “Is it really that dangerous to work for the state?” I can’t believe someone would ask that question. What do prison guards do? State police do? Prison nurses do? DCFS workers who have to take kids from abusive families do? Yeesh.


  35. - Nobody - Wednesday, Jul 19, 17 @ 4:01 pm:

    Fritos are corn chips.


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