Wednesday, May 9, 2012

IL & Discipline - the Causation Argument

A new reform fight in Illinois is of particular interest to me because the fight is all about the causation standard of proof (attorney Robert Rassp and I are co-authors of a chapter in the Second Edition of the AMA Guides to the Evaluation of Disease and Injury Causation, to be release either late 2012 or early 2013).

If you have been following "reform" in Illinois you know that the past couple of years have been contentious with some new laws put on the books that changed many elements of the Illinois system.

In 2011, Democrat Gov. Pat Quinn signed House Bill 1698, which ungraded requirements for utilization review, changed fee schedules and instituted caps on wage-loss benefits and carpal tunnel syndrome awards. The bill also required the use of the American Medical Association Guides to the Impairment of Permanent Disability, authorized preferred provider programs for employers and revised requirements for the appointment of workers’ compensation arbitrators.

But the one element that did not change to the chagrin of business was the burden of proof standard for an injured worker to be eligible for benefits.

Under existing Illinois law, a work accident is compensable even if it aggravates a pre-existing condition, and the employer is then liable for workers’ compensation benefits and must incur the costs of all resulting care and disability even for the pre-existing condition.

This is sometimes called the one percent rule - if even one percent of an injury or disease was caused by work then it is a workers' compensation claim.

I don't know specifically how many states employ this standard, but my educated guess is that this is the majority rule.

While some claimants take unfair advantage of this liberality, an underlying purpose of the rule is simply administrative efficiency. Contesting causation on standards that employ degrees of proof requires judicial intervention to interpret facts into the law.

SB 2521, by Sen. Kyle McCarter, R-Lebanon, would amend Section 1 of the state's Workers' Compensation Act with the following language change in the definition of "accident" and "injury":

(e) The term "accident" as used in this Act means an occurrence arising out of the employment, resulting from a risk incidental to the employment, and in the course of the employment at a time and place and under circumstances reasonably required by the employment.

(f) The term "injury" as used in this Act means a condition or impairment that arises out of and in the course of employment. An injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting
injuries. For the purposes of this Section, "major contributing cause" means the cause which is more than 50% responsible for the injury as compared to all other causes combined for which treatment or benefits are sought. "Injury" includes the aggravation of a pre-existing condition by an accident arising out of and in the course of the employment, but only for so long as the aggravation of the pre-existing condition continues to be the major contributing cause of the disability.

(1) An injury is deemed to arise out of and in the course of the employment only if:

(A) it is reasonably apparent, upon consideration of all circumstances, that the accident is the major contributing cause of the injury; and

(B) it does not come from a hazard or risk unrelated to the employment to which employees would
have been equally exposed outside of the employment.

(2) An injury resulting directly or indirectly from idiopathic causes is not compensable.

It is unlikely the bill will make it out of committee this year - it was referred to the Senate Committee on Assignments on April 26 - but the Illinois Chamber of Commerce is going to push for causation reform in 2013.

The sticky part in my opinion is the definition of "major contributing cause" - that there be some factual determination that at least 50% of the accident be responsible for the injury "as compared to all other causes combined".

Most cases won't have to tread on the causation standard determination. But it's the 20% that take the 80% of resources that will, in my opinion, increase expenses for both the evidence to prove or disprove causation and the judicial resources necessary to make these determinations.

And I won't get into the legal technicalities that will put holes into this causation standard. But there certainly are going to be problem cases where judicial interpretation will undermine the Chamber's intent with this restrictive language.

California employed a similar tactic in the mid 1990s on psychiatric claims - requiring a heightened burden of proof for mental injury cases. Labor Code 3208.3 was instituted and used language very similar to the proposed Illinois standard.

The purpose of the California law at that time was to undermine the medical-legal mills that were generating ridiculous claims of psychiatric injury where there was clearly no injury but where medical bills for both preparation of evidence and treatment were disproportionately large.

Discipline was lacking in the California system necessitating this law change.

Even after the passage of 3208.3 it took some time for the new standard to be accepted into the system but the demise of the medical-legal mills churning out bogus psychiatric claims was more the result of concerted efforts on the parts of payers and the judiciary than any change in the law.

Illinois defense attorney and outspoken critic of the state's system, Eugene Keefe, told WorkCompCentral that he thinks changes to causation can be made by forcing hearing officers to use common sense.

Keefe also said he thinks House Speaker Michael Madigan, the father of the attorney general, is already talking to hearing officers telling them to stamp out some of the claims that appear to be abusive and that Madigan doesn’t want to see reports about the problems with Illinois’ workers’ compensation system, so he will try to make changes without pursuing legislation.

“It will not happen in the open and it won’t be on the news,” Keefe said. “It will all be very quiet, but I think it’s going to happen. I think we’re going to keep seeing changes.”

In other words, Keefe believes that discipline will be instituted into the Illinois system which will obviate the need for legislative action.

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