This is Part II on the recent changes to the Workers’ Compensation Act. This month, we will focus on what effect these changes will have, on a practical level for the injured worker. This column will also respond to legal questions relating to workers’ compensation and personal injury that are sent to us.
Healy Scanlon Law Firm is comprised of eight trial attorneys, two of whom are from Ireland. We are located downtown at 111 West Washington Street, Suite 1425, Chicago, Illinois 60602 (312-226-4236). www.HealyLawFirm.com. The firm concentrates in the representation of injured victims of all types of accidents, including auto, trucking, aviation, products liability, construction, medical malpractice and workers’ compensation.
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Last month’s column focused on important changes to the Illinois Workers’ Compensation Act. In this follow-up we are going to take a closer look at the changes and show how they may potentially affect injured workers.
The recent amendments included a basic change to how arbitrators are assigned to hear cases. In the past in cases outside of Cook County, an arbitrator was assigned to a certain location and all cases with injuries which occurred in that geographic area would be assigned to that arbitrator. Under the amendments, there will be three arbitrators in each larger region. All cases including those with emergency petitions will be initially assigned among that region’s three arbitrators. From a practical standpoint, because the arbitrators will now be rotated within each larger region, an injured worker with an emergency hearing may have to travel to another hearing site within the region to appear before his assigned arbitrator. In regions outside of Cook County, the change may require the injured worker to travel hundreds of miles to have their case heard on an emergency basis. The emergency usually involves injured workers who have their case denied and are not receiving benefits.
Under the new Act, the injured worker is required to see a doctor on the employer’s PPO list as long as the employer has provided that list to the worker. If the worker does not wish to see a doctor from the list provided, the worker must advise the employer in writing. Any doctors they see after that will be limited to their first choice of doctor and any additional doctor must be in the chain of referral. For example, a worker gets injured on-the-job. He is provided the PPO list by the employer. He advises the employer in writing that he does not wish to see any doctor on that list. At that point, the injured worker chooses his own doctor. The injured worker is now limited to that doctor and any other doctor to whom he is referred by the original doctor. Previously the worker could seek a second opinion if he had some concerns about recommendation for treatment by the original doctor.
Another significant change under the Act is a restriction on wage loss differential cases. Under the prior Act, an injured worker who could no longer perform his/her job due to a work related injury, was entitled to receive two thirds of the difference in wages between what is paid in his new current restrictive position and what was paid in his former position. For example, under the old Act, a carpenter who could no longer earn a union wage of $37.00 per hour and is now limited to working in the Home Depot for $12.00 an hour could recover two thirds of the difference tax free for life if the condition continued. Under the new Act, that injured worker will receive this compensation only until the age of 67 or five years from the final date of any award if the worker is 63 or older. This will limit the injured worker who wishes to continue to work into the later years.
There are now limitations on hand injury and carpel tunnel cases. In most instances, the maximum of recovery on the carpel tunnel case will be 15% loss of the use of the hand unless there is clear and convincing evidence that the injured worker has suffered a more serious injury. This will adversely affect and limit the recovery of workers who engage in repetitive activities involving the wrist and hand such as machinists, factory workers, secretaries, computer operators and receptionists. If the injured worker has sustained a greater injury, a higher level of proof, “clear and convincing” will be required.
One final change to the Workers’ Compensation Act is the use of AMA guidelines. Under AMA guidelines, a physician must assess a percentage loss of use of the injured body part when releasing the injured worker. This was previously prohibited under the Act as it was felt that assessing a percentage loss of use was invading the province of the arbitrator assigned to hear the case. It is our understanding from speaking to practitioners in States already employing AMA guidelines that the AMA guidelines greatly limit the recovery of the injured worker.
Under the new Act, the AMA guideline is one factor that the arbitrator is required to consider. The arbitrator can also consider the age, the nature of the injury, and the type of profession the injured worker engages in as it pertains to their body part. For example, a knee surgery to an insurance executive or banker may not be as inhibiting in the performance of their work activities as that of a cement finisher who is required to be on his or her knees for many hours a day.
The new Act is, in no way, considered by any experienced practitioner to be worker friendly. The “reforms” as it was called focused exclusively on limiting workers’ rights without focusing on inequities in the system. For example, an employer who wishes to appeal an award against them can file an appeal with the Commission and the interest rate which must be paid on the reward at the current time is less than a 1%. In effect, this allows the employer, or in reality its insurance company, to tie up the case for months or years while the injured worker is sitting at home with no benefits and no money coming in. There is no financial incentive for the employer to settle the case in a timely fashion. This exacerbates the situation for the injured workers at the time the workers are most vulnerable, i.e., when they are hurt. We will continue to keep you updated as to any changes and proposed amendments as the main players in this alleged reform have promised to revisit these issues and ask for new amendments in the future.
BY: Jack Cannon
Jack is a member of the Board of Directors of the Workers’ Compensation Lawyers Association.
