Like most people interested in the Illinois workers compensation system, we have been reading the Belleville News-Democrat’s unfolding coverage about the Illinois Department of Corrections debacle at the Menard Correctional Center. It seems that over the past several years there have been a large number of claims for repetitive stress injuries reported by the staff at the prison. The newspaper seems to think that there is widespread fraud involved with the prison claims, at least that is what they are telling their readers. But a recent article by the newspaper demonstrates that the problem is much more complex. It identifies some underlying issues that must be addressed before any conclusions can be reached. It also highlights how socially irresponsible it is for the critics to try to cast the cloud of “fraud” on the entire workers’ compensation system in an effort to sway public opinion that reforms are needed.
On May 2, 2012, the newspaper published an article entitled “Department of Corrections chief calls Menard workers comp claims ‘fraud.’” That wasn’t exactly what the article quoted the Chief as saying, but we’ll give them the benefit of the doubt as to his intent. What is most enlightening for readers who aren’t familiar with this situation is the revelation that the DOC has been aware of the high number of workers who developed repetitive stress injuries at Menard for quite some time – and has done nothing about it. Some readers will undoubtedly view this revelation as being that the DOC was aware of the alleged “fraud.” There was a lot of fraud, and the DOC was doing nothing about it, seemed to be the import of the story. One can sense a witch-hunt is already underway because the legislature and critics continue to fixate on the idea of “fraud” while they ignore the glaring issues that are staring right at them.
Readers who are paying attention to this unfolding story will recognize there is something more in the Department’s revelation. It is just more evidence that the DOC had to be aware of the ergonomic problems at the prison for some time, and did nothing to fix them. In fact, the DOC was concerned enough about the number of claims at Menard that it had the work environment studied by a medical expert. After an extensive consideration of the facts and examination of the prison, the Department’s own expert, concluded that the work activities at Menard contributed to the development of repetitive stress injuries.
Looking back over the past 25 years I can remember my frustration early in my practice with a national manufacturing plant in the Centralia, Illinois area. In my mind, you couldn’t have designed a better environment for the development of repetitive stress injuries if you tried. They had it all, repetitive flexion and extension of the wrist while grasping a heavy object with a good dose of vibration tossed in. I was young and naive enough to think that the company cared about its employees and would fix the problem. Yet, this company was content to simply pay the workers’ for their injuries rather than eliminating the cause of the injuries in the first place. So too, it seems, that some time ago the Department of Corrections made the economic decision to accept liability for the injuries rather than fix the conditions that cause them. More than likely the Department didn’t actually make the conscious decision to continue to place their workers in harm’s way, they just made the decision to not do anything, perhaps for funding reasons, but the result is the same. They chose accept the collateral damage to the workers because it was cheaper or easier to pay them than to fix the problems that cause the injuries.
So let’s summarize what we know at this point so we have a clear understanding of what is really going on with the DOC’s Menard prison cases and where the blame truly lies.
1. Some time ago the DOC noticed an increased number of repetitive stress claims being made at the Menard Prison. No doubt wondering whether the increase in claims was legitimate, the DOC contracted with a medical expert on the subject to perform a study to determine whether the work environment was really a factor.
2. The DOC’s own medical expert came to the conclusion that the work environment at the prison does contribute to the development of repetitive stress injuries. What the DOC did after receiving this information is still unclear, but the obvious result of their decision was to not to fix the problems and accept liability for the resulting injuries.
3. Workers at the prison continued to develop symptoms of repetitive stress injuries. They went to see their doctor for treatment.
4. Each worker underwent electronic nerve testing which documented that their nerves were impaired and weren’t working normally. The worker then had surgery to remove the impairment on their nerves in order to relieve their symptoms.
5. The worker’s doctor attributed the nerve impairment to the work done at the prison.
6. The worker filed a workers’ compensation claim for the injury.
7. The Arbitrator of the Illinois Workers’ Compensation Commission heard the evidence presented by the injured worker in every one of these cases to determine whether the worker proved their case and, in particular, that they established their condition was causally related to the work they did.
8. The DOC was also given the opportunity to present evidence in every one of these cases that the worker did not have a repetitive stress injury, the worker’s injury was minimal and did not require surgery, the tests were invalid, the worker’s injury was not caused by their work, the worker sustained no disability from the injury, and/or that the claim was untruthful or fraudulent. Now presumably some cases were tossed out because the DOC was able to raise a valid defense on some of the issues. But, as to the issue of whether the work caused the condition, there just isn’t much of a defense when DOC’s own expert has already condemned the work environment, so a large number of the claims were found to be meritorious and the Commission awarded compensation benefits.
So just where in this process do the critics of the workers (Steps 3-5) and the workers compensation system (Steps 6-8) suggest there is fraud? Is the newspaper suggesting that the workers really did not have symptoms? If so, how do they explain that the workers’ doctors are able to diagnose repetitive stress injuries in the first place? Are they suggesting that the workers and the doctors are acting together in perpetrating this fraud? If so, how do they explain the electronic test results which also demonstrate the existence of a nerve injury? Do they suggest that the worker, the doctor, and the manufacturer of the medical machinery used to perform the nerve tests are all involved in a vast conspiracy to present fraudulent compensation claims? What about the DOC’s own doctor? Was he involved too? While we certainly don’t speak to the origins or credibility of any particular claim or the number of claims, just what part of the process contains all this widespread fraud that has been bandied about? If the workers do, in fact, have repetitive stress injuries, need treatment, and can prove their claim then just where is the fraud in them presenting the claim or in the Commission accepting the claim and awarding benefits?
While the newspaper has been quite critical of the arbitrators and the workers compensation system in general, it is rather apparent that there’s a huge amount of frustration in the Illinois Worker’s Compensation Commission concerning the Department of Corrections handling of these claims as well. This frustration is demonstrated quite well by the findings in the recently decided case of Wellborn v. The State of Illinois Menard Correctional Center., In that case, the Arbitrator and Commission concluded that:
”Respondent’s [Department of Correction's] conduct in this case is appalling! It initially accepted the claim as compensable, authorized medical care and paid TTD benefits. Then, without any justification in law or fact, without any change of the evidence, decided to renege on its word. This is bad faith claims handling. Respondent’s own evidence supports Petitioner’s claim. Respondent continues in its practice and policy of unfairness towards employees who file repetitive trauma claims. It mocks the work comp system and abuses its resources.”
It should be plainly apparent to anyone interested in the Menard situation that the critics attempt to condemn the workers compensation system is off the mark. That isn’t to say that there hasn’t been a problem here and there with the system, as there are problems with all systems. But the Menard circumstances point to a deeper and more complex cause, and a lot of unanswered questions. Why did the DOC choose not to fix the problems in the first place and why didn’t they fix them when the claims continued to mount? Has the DOC now recognized that it is costing more money to pay for the injuries than it would have cost to fix the problem to begin with?
It certainly comes as no surprise that the Department chief would now claim that fraud is involved, and that critics of the system would jump on the bandwagon. It is the chic thing to do in order to avoid a critical analysis on the subject.
Hanagan & McGovern is a Mt. Vernon, Illinois, workers’ compensation and personal injury law firm serving southern and central Illinois. If you have questions concerning this article or have other workers compensation questions, please contact us.