Illinois Makes Important Changes To The Workers Compensation Act

This is the first in a two-part series of columns on the recent changes to the Workers' Compensation Act. This month, and next, 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.

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ILLINOIS MAKES IMPORTANT CHANGES TO THE WORKERS' COMPENSATION ACT

Following months of speculation, lobbying, and legislative compromise, the changes to the Workers' Compensation Act were signed into law by Governor Quinn on June 28th, 2011. While the changes affect both employers and employee, this first article focuses on certain changes that most limit the workers' rights. Next month we will focus on additional changes and their impact to both employers and employees.

LIMITATION OF EMPLOYEE RIGHT TO SELECT DOCTORS

One of the most significant changes in the 2011 rewrite of the Act is the restriction of the worker's choice of doctor. The Act allows for the employer or its representative (i.e. their insurance company) to provide a panel of medical providers from which the employee must choose. The employee may opt out of this 'preferred provider network', but in doing so the employee loses the choice of one doctor. This means that the employee who opts-out of the employer's panel is restricted to one doctor, whereas those that do not opt-out may choose two doctors within the 'preferred provider network'. In effect, the Act penalizes workers who wish to choose their own doctors where multiple doctors are needed. Under the previous law, the worker had an unrestricted choice of two doctors, if necessary. While this can be a serious limitation on previous rights held by the employee to choose two doctors if necessary, it is not as drastic as what was sought by employers to completely eliminate the employee's right to choose any doctor.

LIMITATION OF BENEFIT PERIODS

Wage loss differential cases, where a worker returns to work at a lesser pay, have now been restricted to the injured worker reaching the age of 67, or five years from the date of any final award, whichever is longer. Under the old rules, wage loss differentials were paid throughout the worker's life.

LIMITATION OF HAND INJURY CLAIMS

The number of weeks of compensation payable for a hand injury has been reduced to a maximum of 190 weeks. Under old rules the maximum number of weeks for a hand injury was 205 weeks. This amounts to a loss of compensation of almost 10% to the worker for a serious hand injury. The Act also limits recovery for one of the most common of workers' compensation claims, carpal tunnel syndrome. Recovery for carpal tunnel syndrome is now limited at 15% of loss of the hand, unless there is clear and convincing evidence to the contrary. Where such evidence is provided, recovery still cannot exceed 30% loss of the hand.

REQUIRED USE OF AMA GUIDELINES

An additional change to the Act which directly affects the injured worker is the required use of the American Medical Association's (AMA) guide for the Evaluation of Permanent Impairment, also known as the AMA guidelines. The arbitrator at the Industrial Commission must use the guidelines when awarding an injured worker permanent partial disability benefits. The impact of the use of AMA guidelines on arbitrator's awards is not currently clear. However, in states that use the AMA Guidelines, the impact has been awards far below those in Illinois compensation cases.

ADDITION OF A NEW EMPLOYER DEFENSE

Previously, workers' compensation could be denied where the employee was so intoxicated that, as a matter of law, the injury arose out of the employee's drunken condition and not his employment. The Act now specifically expands the intoxication defense, by stating that an injured worker will not be entitled to compensation if the proximate cause of the accident of the injury was due to intoxication. Additionally, there will be a rebuttable presumption if the employee was intoxicated, that the intoxication was the proximate cause of the injury. If an employee does not submit to testing of blood, breath or urine at the time of the accident, that also raises a rebuttable presumption that the employee was intoxicated, and that such intoxication was the legal cause of the employee's injury.

THE BURDEN OF PROVING CAUSATION REMAINS THE SAME

While many changes in the Act limit the rights of the injured worker, one hard fought issue remained the same. Illinois law requires an employee seeking recovery to prove that the accident "arose out of" and "in the course of" employment. The business community had sought a change in the standard, so that the injured worker would have to prove that the accident was a "significant factor" or the "primary cause" of the injury. This specifically targeted repetitive trauma injuries where an injured worker had been working in a factory or a building site for many years repeatedly doing certain activities and their body wears without any specific trauma. There was no change on what is required to be proved.

CONCLUSION

The Act has made significant changes to the Workers' Compensation Act and to worker benefits. Next month we will focus on additional changes and their impact to both the employer and employee.