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By CARL REISMAN At a time when employees see their power at the bargaining table declining, it's worth being suspicious of efforts to further "reform" the Illinois Workers' Compensation Act. The guest commentary Dec. 4 by Douglas Whitley, president and CEO of the Illinois Chamber of Commerce, encouraging that "we press lawmakers to revisit the topic repeatedly until employers realize quantifiable savings," begs the question: If the employer saves, who pays? In Illinois in 2001, $2.1 billion was paid for workers' compensation injuries, about $1.1 billion for indemnity (benefits for temporary, permanent partial and total disability) and $1 billion for medical bills. Absent reforms that would regulate the profits of insurance carriers, savings for employers only come by lower payments to injured workers and/or to health care providers. Before the passage of workers' compensation statutes in the 1910s, if you were mangled or killed on the job, you or your estate could bring a civil claim against your employer. The chances of winning such a claim were slim, however, because courts held that employees assumed the risks of injuries as a natural consequence of their employment. You would have to prove that your employer did something negligent that caused your injuries. If you beat the odds and won, a jury awarded damages from this negligence, including pain and suffering. The Illinois Workers' Compensation Act was a compromise. Injured workers gave up their right to file a civil suit and collect damages for pain and suffering. In return, they were provided a measure of assurance that if an injury arose out of their employment, they would receive compensation, including payment for work time lost, medical bills, lost earning potential, disfigurement, vocational rehabilitation and permanent partial and total disability. If they were killed, money would be provided for burial expenses and for widows and dependents. Employers took on the substantial responsibility of bearing workers' comp costs. In return, they were protected from being taken to court in a civil suit. In the 90 years since the act was passed, there have been enormous changes in the workplace for employee benefits, health care and the provision of insurance. Employers must compete with companies with lower workers' compensation costs in other states and with employers in countries that have no workers' compensation laws at all. On the other side, injured workers might find that worker's comp requires a legal battle every bit as time-consuming and vexatious as the civil suits of yesteryear. If insurance carriers pay, nothing requires them to make payments to maintain health insurance, disability insurance or pay into pension plans. Workers lose out on overtime that might have been vital to keep their family afloat. For part-time or low-wage employees, disability benefits might be below starvation level, and serious permanent injuries might be terribly undercompensated. The General Assembly and Gov. Rod Blagojevich made an honest effort to improve the Illinois Workers' Compensation Act by making substantive changes last summer. What this law essentially does is take money that might go to health care providers and give it back to employees with indemnity payments. Temporary total disability rates increased for part-time workers to no less than two-thirds of the Illinois minimum wage times 40 and are increased by 10 percent for each spouse and child. The statute awards benefits for loss of use of various scheduled body parts (for example, a hand is 205 weeks times 60 percent of the average weekly wage), and these benefits increased by 7.5 percent. Benefits to survivors have doubled to a maximum of $500,000. Real teeth has been put into the law, too. Penalties have been increased to $30 a day with a maximum of $10,000 for an insurance company that unreasonably delays payment of temporary total disability benefits. Employers hope increases in indemnity payments will be made up by containing medical costs. A fee schedule will be established by the Workers' Compensation Commission for every medical procedure as of Feb. 1, and the fee allowed will be 90 percent of the 80th percentile of actual charges within a geographic area or the actual charge, whichever is less. The fees will be tied to the Consumer Price Index and adjusted yearly. Sound complicated? The Workers' Compensation Commission is struggling to get this fee schedule completed in the next few months. Under changes to the Workers' Compensation Act, balance billing is prohibited. Though this is good news for employees who no longer will be dunned by medical providers who receive partial payment from insurance carriers, it remains to be seen if health care providers will go along with a plan, that in essence, asks them to cut their charges to underwrite increases in indemnity payments. A real worry is that some physicians or hospitals will simply refuse to take worker's comp patients. Moreover, what is given today might tomorrow be taken away. This might come piecemeal, such as providing that in the case of repetitive work injuries, such as carpal tunnel syndrome, the work must be the "major contributory cause," or wholesale, as in California, where after "reforms" endorsed by the state Chamber of Commerce in 2004, workers lost their right to pick their own doctors and saw their temporary total disability benefits capped at two years. Employees should be relentless in asserting their rights to benefits after workplace injuries and vigilant about protecting them from erosion or attack from those who are more worried about "quantifiable savings" to business than the recovery of injured workers and their families. A fine place to start is by reading the Illinois workers' comp handbook, available on the Web at www.iwcc.il.gov/handbook.pdf or can be ordered by phone at (312) 814-6500. I would encourage parents – and high school consumer education teachers – to discuss workers' comp rights with teens. Citizens need to push their legislators for reforms to address losses of benefits and overtime for injured workers and to speak out loudly, clearly and in public of their own "prohibitive costs" thanks to work injuries. Carl Reisman is an Urbana lawyer who handles workers' compensation cases. |
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