Thursday, May 21, 2015

Illinois Moving Towards Major Contributing Cause?

There is a fair amount of coverage in the media about the differences between various states' workers' compensation programs. I outlines some of this in a recent paper regarding an analysis of state workers' compensation insurance premiums, Comparing the Premium Cost of Workers' Compensation. This brings a perspective to the biennial Oregon study of workers' compensation premiums.

An interesting quote cited in that paper is the Workers' Compensation Research Institute (WCRI) that

“the state by state approach to workers’ compensation in the U.S. has often led to a ‘rush to the bottom’ on the part of jurisdictions.” 

An Illinois representative recently echoed that language in a an article on 5 NBC Chicago, saying "we support rooting out fraud and corruption, but this side of the aisle will not join other states in a race to the bottom." Though the Oregon premium study is said to be for introspection, rather that state-to-state comparison, it is inevitable that states look to such studies to see how they rank.

Two states that seem inevitable for comparison are Illinois and Indiana. How many school kids mislabled these two on that old "fill in the map" assignment? They even look similar. But they are similar in other ways. Recently, What can Illinois Learn From Its Neighbor noted some similarities in the states and some distinctions in the two states' workers' compensation laws.

In the 2014 Oregon rate study, Illinois had the seventh highest premium for workers' compensation. Indiana, right next door, had the second lowest in the country. Some wonder how these two geographically, and some say economically, similar states can be such a contrast.

Illinois Governor Bruce Rauner has been critical of the workers' compensation reforms passed this century. On his blog, he says that the 2011 reform "accomplished very little. Illinois' workers' compensation system remains uncompetitive (sic) with neighboring states and our economy continues to suffer."

He has proposed some amendments to Illinois workers' compensation. According to the Injury Law Blog, those changes would

"• Make it harder for employees to claim they were injured traveling to or from work
• Limit damage awards in civil suits
• Reducing the power of labor unions
• Withdraw wage laws for taxpayer-funded construction workers
• Toughen the standards workers must meet to prove their injury occurred on-the-job
• Dramatically reduce reimbursement rates for healthcare centers that treat workers"

Specifically, the Governor is proposing  major component is the proposal that compensability in Illinois would be controlled by the "major contributing cause" standard, similar to Florida's. 

One pending bill (HB2421) would redefine "injury" as follows:

"The term "injury" as used in this Act means a medical 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." (Emphasis added).

The Major Contributing Cause standard in Florida is not found in the definition of injury, but in the "coverage" section, 440.09, which says

"The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment. The 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 purposes of this section, “major contributing cause” means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought." (Emphasis added).

The two provisions are strikingly similar. 

Various reforms to workers' compensation programs are being considereed around the country. Tennessee recently rejected the Oklahoma opt-out, and according to WorkCompCentral South Carolina will consider it next. Even the Federal government is considering changes to its workers' compensation. Will Illinois adopt this causation standard, or other reforms? 

Update 05.28.15 WorkCompCentral reported that reforms are struggling in Illinois Legislature



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