GOVERNOR BRUCE RAUNER HAS RECOMMENDED ADDITIONAL CHANGES TO THE ILLINOIS WORKERS’ COMPENSATION ACT (“ACT”)
MICHAEL ROM 8/24/15
Governor Bruce Rauner has recommended additional changes to the Illinois Workers’ Compensation Act (“Act”) under the guise of attracting and keeping corporations from leaving the state of Illinois through an “Economic Competitiveness and Job Growth Package.” These proposed changes, in conjunction with amendments enacted in 2011, reduce, yet again, the ability of injured workers to be properly compensated, while increasing profits for insurance companies. The 2011 reforms added the use of AMA Guidelines as one of five factors in determining permanent partial disability (PPD) awards through the written report of a licensed physician. It was hoped that the AMA Guidelines, being more conservative in determining awards, would reduce awards, which they did to the detriment of injured workers.
Under the current version of the Act, the Commission must consider five factors in determining permanent partial disability impairment (“PPD”): (i) the level of impairment as reported by a physician (using AMA guides); (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee's future earning capacity; and (v) evidence of disability corroborated by the treating medical records. Further, that act states that “[no] single enumerated factor shall be the sole determinant of disability.”
One proposed change in the “Turnaround Agenda” calls for the elimination of the language requiring the Commission to consider all five factors in determining PPD, therefore allowing an Arbitrator to base an award solely on the AMA Guides. The proposal also states that the change would not mandate the use of the AMA guidelines or any of the other factors.
The AMA guides were never intended to be used as the sole factor in determining disability.
There are two problems with determining PPD solely based on the AMA guides: i) the guides address impairment, not permanency, and ii) using the guides as a sole factor in determining PPD will result in a lack of uniformity in decisions.
The 6th edition of the AMA Guides to the Evaluation of Permanent Impairment notes that “the relationship between impairment and disability remains both complex and difficult, if not impossible to predict…” Further, the guide states that “in disability evaluation, the impairment rating is one of several determinants of disablement.” The guides also clarify the difference in impairment and disability. According to the AMA Guides, impairment is a “significant deviation, loss, or loss of use of any body structure or body function in an individual with a health condition, disorder or disease.” Disability, however, is defined as the “activity limitations and/or participation restrictions in an individual with a health condition, disorder, or disease.” These different terms, the condition and the restrictions resulting from the condition, are the exact reason the 2011 reform made the AMA rating one of five factors to be considered in the determination of a PPD award. To use the AMA ratings as the sole factor is to use the guides incorrectly and to the detriment of the injured worker.
Further, giving discretion to the Arbitrator to use the AMA guides as the sole factor in determining PPD will result in a lack of uniformity in awards for the same injury. A quick look at cases decided in Illinois since the 2011 reform shows a great discrepancy between the AMA ratings and PPD awards. PPD awards have never been determined solely on the AMA rating as this would result in extremely low, and inappropriate awards. Instead, all five factors required by the Act are examined.
For example, a simple medial meniscal repair might result in an AMA impairment rating of 2-3%. However, awards are typically in the range of 15-20%. If Arbitrators are given the discretion to make awards solely on the AMA guides, awards could vary as much as 90% for the same injury depending on which Arbitrator you were assigned to and whether they looked at all 5 factors or simply used the AMA rating. This would result in a great variation in awards depending on which Arbitrator an injured workers’ case were assigned.
As Arbitrators are appointed by the Governor and reviewed at the end of that appointment period, it is logical to presume Arbitrators would feel great political pressure to use the AMA guides as the sole factor in awarding benefits to lower awards (to the detriment of the injured worker). Further changes to an already gutted Illinois Workers’ Compensation Act serve no purpose other than to lower financial security for the most vulnerable individuals under the guise of protecting jobs. In reality, injured workers are being denied proper compensation in the name of corporate insurance profit.