By Grant Pick
The setup for the evening shift was beginning at Papagus Greek Taverna when Adrianne Duncan, a 27-year-old actor waiting tables to make ends meet, got a call on her beeper. She looked down, saw her agent's number, and walked to the back to use the phone. The management at the restaurant, in the Embassy Suites building at State and Ontario, was tolerant of its actor-waiters, but only to a point. Duncan made her call quickly and resumed putting out glasses and silverware and making sure the salt and pepper shakers were full on the tables in her section.
It was around 4:30 on May 6, 1996. Duncan says she was standing near the rounded counter between the fish and seafood display and the open grill, searching for unbroken candles in a drawer. Two waiters named Bob and John were dripping Everclear, a grain alcohol the restaurant used to flame saganaki, onto the granite countertop. They were burning off the alcohol, says Duncan. "It was an idle thing, like they were flipping a quarter for fun. The flame on the counter had started to die down, but it wasn't totally out. Bob applied a drop to keep the fire going. I don't think for a second they expected it to explode, but it did. I suppose the flames followed fumes back into the bottle, turning the bottle into a flamethrower. I saw this wall of fire coming at me, and all of a sudden it was like I was quick cut from one movie into another one."
Papagus is a frigate in the Lettuce Entertain You Enterprises fleet of more than 70 restaurants in Illinois, eight other states, and Japan. The company, whose headquarters are at 5419 N. Sheridan, has given the public one theme restaurant after another for a generation, beginning in 1971 with R.J. Grunts, established by Richard Melman and his now-deceased partner Jerry Orzoff; its latest venture is Tru, an upscale French-style eatery in the space that used to be Avanzare. According to Crain's Chicago Business, the company has revenues of more than $260 million a year; the Lettuce Web page says it has "annual sales in excess of $170 million."
"Equity stakes, employee training, rich benefits and expanding opportunities have kept the company devoutly entrepreneurial while developing employee loyalty that is unusual in a business notorious for high turnover," said Business Week in a flattering 1992 profile. "The result is a company with the resources and staying power of a chain and the spirit of a corner bistro."
Like other Lettuce start-ups, Papagus reflected Lettuce's tradition of giving a lot of responsibility to managers who showed promise and ambition. Yorgo Koutsogiorgas had worked for the owners of Halsted Street's Greek Islands Restaurant and had run the Pump Room for Lettuce; Jimmy Banakis had been a managing partner at the now-defunct Bub City Crabshack. Papagus was their dream. "Our idea was a warm, hospitable, rustic place that people could feel had been here for a long time," Koutsogiorgas told the Chicago Tribune when the restaurant opened in January 1992.
Duncan started working at Papagus a year or so later. "She was a good employee," says Koutsogiorgas. "But then waitressing wasn't her number one priority."
Duncan, an Atlanta native who'd entered Northwestern University on a piano scholarship and graduated with a theater degree, was trying to make it in show business. She was a soprano and thought her voice was suited to jazz, and she'd done plenty of stage work, with companies such as Bailiwick and Shakespeare Repertory. TV, film, and commercial jobs were coming regularly through several Chicago talent agencies. "She was marketable for her age and type," says Bob Schroeder, her agent at Susanne's A-Plus, with whom she has an exclusive arrangement today, "someone you might see as an ensemble player on television, a Friends-type girl." Duncan would have been happy to make it onto the NBC sitcom, though she preferred film and theater and was pleased with the progress she was making. "I was cranking," she says.
Duncan liked waitressing for Lettuce. Being a full-time server entitled her to dining discounts, health insurance, and a pension plan, though she passed on the pension plan. "The job was cushy," she acknowledges. But she adds, "The managers were very patriarchal," suggesting that the Greek male waiters got the more lucrative weekend shifts and table assignments. Yet she had a special fondness for Koutsogiorgas.
Melman, the Lettuce CEO who has long advertised his informal management style, was only a fleeting presence. "He would sweep through Papagus once a year," Duncan says. "It always seemed like Jesus Christ coming through."
Duncan started out serving customers their saganaki with traditional brio, saying "Opaa!" as the flames whooshed and then cutting the cheese dish into squares. "You felt kind of cool doing it," she says. But the flames made her nervous. About six months before she was injured, she guesses, Papagus switched the flaming agent from Metaxa, an imported Greek brandy distilled from red grapes, to Everclear. The problem with Metaxa was that it left a residual flavor on the cheese, says Koutsogiorgas, whereas Everclear was odorless and tasteless. Duncan claims the change was made because Everclear was cheaper. Koutsogiorgas counters that waiters were using Metaxa and Everclear interchangeably.
Everclear is plastered with warnings: "Caution!! Extremely flammable. Handle with care." The label advises users to keep it away from open flames and warns that the contents may "ignite or explode." Duncan and other servers had seen the liquid produce out-of-control tongues of fire that sometimes leaped to the ceiling. "There were singed eyebrows--it was scary," says Duncan. Eventually she let other waiters deliver her saganaki orders.
When the blast of flames came at her that May afternoon, Duncan crossed her hands in front of her face to protect herself, but her upper body was immediately engulfed. "I instantly went into a state of shock," she says. "Oh, I thought, this is what it's like to be on fire. It was almost relaxing. I felt suspended."
John, one of the two waiters who'd been burning the alcohol, tried to pull Duncan to the floor, but he couldn't hold her. Another waiter, George Tchakanakis, threw a tablecloth over her and smothered the fire. A woman server screamed at Bob, "Fuck you, you asshole! How could you do this?"
"I thought of my face," says Duncan. She turned away from a mirror so she couldn't see herself. Her hands looked charred. "I felt Brillo on my head where my hair had been."
The pain was rising, and she began to scream. Two paramedics who'd been idling at the hotel next door ran in. One poured a bucket of water over Duncan, which made her feel like she was being incinerated all over again. She says that by the time she got to Northwestern Memorial Hospital, "It was beyond excruciating. It was beyond anything I'd ever felt in my life. I was praying to pass out, but I've never felt so awake."
Koutsogiorgas was driving downtown when his car phone rang. He says Banakis told him, "Yorgo, we have a major crisis. We have a problem with Adrianne. She had an accident."
When Duncan arrived at the hospital she was alternately crying and cracking jokes as doctors looked at her injuries. She had second- and third-degree burns on her forearms, hands, face, ears, left breast, and abdomen. Her parents, Charles and Norma Duncan, quickly caught a flight north. "Her face was swollen, and she had no eyebrows and eyelashes," recalls Norma. "Her hands were in bad shape--and after all those years playing piano! Really, I was grateful she hadn't died."
Tricia O'Kelley, a fellow actor and friend who operated an actors' resource center where Duncan had volunteered, soon arrived at the hospital. "I was totally unprepared for the way she looked, and I had to keep a straight face," she says. "Adrianne's face was bright red. Her skin, which looked like wax, appeared to be dripping off her face."
Koutsogiorgas says he and Banakis stood vigil near the hospital emergency room. "The hospital people asked me if this was a workers' compensation case, and I said, 'Hey, here's my credit card. Treat the lady the best you can,'" says Koutsogiorgas. "That was my position and that of Mr. Banakis." The two managing partners stayed around for the next day or two, says Koutsogiorgas. "Adrianne was always a happy, jolly person, and we wanted to be encouraging and caring. Here she'd been involved in such a horrible accident, like Chernobyl or something. She could only look at herself and wonder. But the doctors gave us more reassurance as to the final outcome--that Adrianne would be lucky, that she would resume a normal life. That gave us hope."
Bob visited, apologized, and left a card that read, "I'm sorry this had to happen to you. Please get well soon." When Duncan spoke to Banakis, she begged him not to fire Bob, but soon he was out of a job. "Yorgo came and brought flowers," says Duncan. "He stood there uncomfortably, and the phraseology he used was telling. 'I'm sorry this had to happen,' he told my mom. His semantics removed Lettuce from any culpability."
Koutsogiorgas still contends that Duncan was partly responsible. "She was there," he says. "She was a willing participant. She was one of a small group of people watching and discussing different aspects of the experiment. She was aiding and abetting it." Duncan vehemently denies the charge. "Absolutely not, and I have two Bibles over there I'll swear over." She claims some managers later let customers of hers think she'd caused her injuries herself when she lit some saganaki or that she'd had an accident with a candle at a party at her house. Waiters who were there that night who could be reached, as well as Tom Fife, then Papagus's catering director, the manager on duty, all refused to comment for this story. Banakis didn't return phone calls.
Norma Duncan thought that the Papagus managers quickly turned cool toward her daughter. "I began to think they were more concerned about a lawsuit than they were about my daughter," she says. "I wouldn't have felt this way if they'd showed her loving kindness." Koutsogiorgas says he had a different reason for distancing himself from Duncan. "Her immediate family, particularly her mother, became more inaccessible in talking to us about a coherent plan for Adrianne. Her position toward me and Mr. Banakis became a hostile one." Koutsogiorgas says he was perplexed by Norma's attitude, particularly given that Lettuce had volunteered to pay her and her husband's airfare to Chicago.
Norma admits that when her daughter explained how the accident happened she was angry at the restaurateurs. And she says that when Koutsogiorgas visited the day after the accident, "I'd been up all night. He pulled me out of the room, and he apologized, going on and on. And I finally became so uncomfortable that I said I had to go back in the room to be with my daughter. If that's what he's talking about, maybe we have cultural differences."
Duncan says that before Koutsogiorgas came to visit, "I told her to behave--and she did." In general, she says, "My mother wasn't warm and cuddly--she was cold, I'd say. But she reacted the way a parent would react if their daughter was severely injured."
Koutsogiorgas says that later Duncan "refused to talk to me or to return my phone calls." Duncan insists he never called.
After two and a half days at Northwestern, Duncan was moved into the Lincoln Park town house of a friend's sister to begin her recuperation. The apartment was air-conditioned and more comfortable than her own apartment in Lakeview. She was cared for by practical nurses, her mother, and Abigail Revasch, a New York actress and college classmate who'd flown in to be with her friend. Bacitracin, an antibiotic ointment, covered Duncan's burns. She took Vicodin for pain and Medrol, a steroid, to prevent her throat from closing; she wasn't supposed to speak for three weeks to ensure that her larynx healed. She did physical therapy exercises for hours.
"She couldn't get into bed, eat, make a phone call, or go to the bathroom without help," says Revasch. "They gave her tongs to hold the toilet paper, but she couldn't hold them. I don't even know if she could brush her teeth. There was this poignant moment when she took her first shower. She was standing naked with all this gel on her. Her arms were up, like a surgeon waiting to be gloved. She looked so fragile. Air seemed even too much. She's about to get in the stall, and we both know it's going to hurt like crazy--like when you apply iodine to a wound, except here the wound was her whole body. She turned to me and said simply, 'Why?' I told her I didn't know why. 'Why?' she repeated. Then she got in and turned on the water. I heard screams, and her breath coming in short bursts."
On May 17 Banakis wrote Charles Duncan to say that while Lettuce would pay his and Norma's travel expenses from Atlanta--a check was enclosed--the firm wouldn't cover those of Revasch. He added, "Again, please convey to Adrian my personal concern and be assured we will be following Adrian's progress closely." Duncan says she never heard from Banakis again.
Duncan remembers that on Mother's Day Norma applied Bacitracin to her daughter after a shower. "My pain was going up and up," she recalls. "It felt like my skin was contracting." Then as Norma, in tears, fed her oatmeal with raisins for lunch, the phone rang. "Oh, thank you," Duncan heard her mother say. "Oh, you're from the restaurant....What's your name? Mailman?...I can't talk to you now. I'm feeding my daughter. Please call back." Then Norma hung up.
Afterward Duncan figured that it had been Richard Melman on the line, but she says he never called back. "I know Rich Melman is busy, but I was, shall we say, inconvenienced here. He has kids. He should understand my mother's instinct. He behaved cowardly. If he had come by and visited me even once it would have been something. I'd worked for Lettuce Entertain You for three and a half years, and you don't make a cursory phone call and then cut off contact. I'm not saying what Rich Melman did was illegal, but it wasn't moral."
A Lettuce publicist reported that Melman was unavailable for comment. "Rich Melman cares deeply about everybody," insists Koutsogiorgas. "He treats everybody like they are his child."
Terry Geoghegan, a friend of Duncan's who's also a personal-injury lawyer, visited her in her hospital room. "I thought this was a tragedy," he says, "and I was especially concerned when I saw the red burns on her face. She had such a lovely face." Geoghegan helped Duncan file a claim for workers' compensation benefits.
Workers' compensation is a grand compromise that dates back to the late 19th century, to a period during the industrial revolution when worker injuries were increasing dramatically. Back then injured employees had to sue their employers for damages, and the employers had numerous defenses under the law. If a worker knew the risks of a job, the employer couldn't be held liable. If a worker had caused the injury, the employer could also get off. And bringing a suit was expensive and often took a long time. Yet when workers did win in court, employers wound up paying huge awards.
"Both workers and employers were dissatisfied with the common law, and so they both supported a compromise," says John Burton, dean of the school of management and labor relations at Rutgers University and a leading expert on workers' compensation. Under the terms of the compromise, first enacted in Europe, injured workers gave up the right to sue for damages, and the employers agreed to compensate them for their losses, though at a lower rate than workers had been winning in court. The employers also agreed to pay regardless of who was to blame for the accident, as long as what the injured workers were doing at the time was within the scope of their job. "As a worker you can take up a piece of wood pretending you're the grand marshal of the parade and hurt your hand on the job," says Geoghegan. "You're compensated, no matter what. If the employer is the one who bops your hand, the result is the same."
Congress passed a workers' compensation law covering some federal workers in 1908. In 1911 Wisconsin became the first state to pass a law. The Illinois Workers' Compensation Act took effect the next year, and now every state, as well as Puerto Rico and the District of Columbia, has one. The Illinois law is administered by the seven-member Illinois Industrial Commission, which has its headquarters in the James R. Thompson Center.
The law says that except for independent contractors, small farmers, households that employ maids part-time, and big-city police departments, all businesses in the state must provide benefits to employees who sustain a significant injury on the job. The employer or its insurer must pay 60 percent of a worker's gross average weekly wage up to a statutory maximum--the "temporary total disability payment"--and cover medical costs until it's determined the person can return to work. In most cases workers also get a separate sum intended to ease the long-term burden of the injury.
To cover themselves, most Illinois companies buy workers' compensation insurance. Lettuce Entertain You is among 500 firms in the state--principally large outfits such as Ameritech, Motorola, McDonald's, and Caterpillar--that are self-insured. These firms have to demonstrate to the IIC that they have sufficient assets to cover claims. "We eat the first x number of dollars up until minimum threshold," explains Charles Haskell, Lettuce's senior executive vice president. After that the company is covered by insurance. He also says that Lettuce has relatively few workers' comp cases: "We're at the lower end." The IIC reports that over the past five years Lettuce--which has 4,000 employees at 49 restaurants in the state--has had 43 claims, 4 of which involved Papagus.
The paperwork for Duncan's claim was handled by a third-party administrator, Cannon Cochran Management Services of Oak Brook. Immediately after she was burned she began receiving a temporary total disability payment of $335 a week, based on an average salary of $558, that was paid out of a Management Services escrow account. Duncan submitted bills for her nurses, linens--she needed all-cotton T-shirts and sheets--medicine, and doctors' fees to Management Services, which paid them. Management Services also subcontracted with Disability Management and Planning Group on North Avondale "to provide medical coordination services" to Duncan, as the company explained in a letter to her.
Industry observers say that medical-management firms such as Disability Management, which hire nurses to review the treatment plans of injured workers, have expanded rapidly in the last decade. In part that's because the insurance industry believes malingering and other forms of fraud are rampant in workers' comp cases, and it sees the nurses as a control. The Coalition Against Insurance Fraud, a group based in Washington, D.C., that insurers like to cite, estimates fraud occurs in 10 percent of cases, costing $2.1 billion annually. But Rutgers University's Burton thinks that figure is "very high."
Burton says that in the 1980s insurance companies dealing with workers' comp found themselves in a money crunch, largely because benefits authorized by states had risen faster than premiums. But workers' comp became profitable again in the early 90s, in part because states had reduced benefits and stiffened rules on what constituted an injury--and in part because medical-management firms helped insurers control costs. Certainly the insurance industry now makes a lot of money selling workers' comp coverage. In 1997, according to the IIC's annual report, Illinois companies earned $386 million in profits from those policies, 25 percent of the premiums paid. That's 6 percent more than insurers make on average from other policies, according to the Chicago-based Coalition for Consumer Rights.
"Perhaps the most remarkable change in workers' compensation over the past twenty years has been the shift to a focus on disability management and 'return to work' for injured workers," Burton and Emily Spieler wrote in a chapter of a 1998 book on disabilities in the workplace. Disability management "can limit costs by reducing both the absence from work and the permanent disability rating."
Illinois, where 70,000 claims are filed every year, has proved fertile ground for medical-management firms. The state's temporary total disability payments are among the highest in the nation, according to the U.S. Chamber of Commerce, and doctors' workers' comp billing is less tightly regulated than in other states. Insurance companies and self-insured businesses have a large incentive to get workers back on the job quickly, limiting disability payments and doctors' fees.
Some people argue that such goals aren't necessarily bad for patients. "We have a lot of people treated by general practitioners for something like low-back pain," says Gerald Cooper Jr., an attorney who works with insurers and self-insured companies on workers' comp cases. "Now, that GP might not be familiar with a worker's injury, and so he just lets the worker stay out eight weeks, ten weeks. Nobody gains, least of all the worker, who's sitting around watching soap operas and being deconditioned."
But worker advocates charge that medical-management companies are simply unregulated cost adjusters. "From my point of view, medical-management companies are spies for the employers," says David Menchetti, an attorney for injured workers and president of the Workers Compensation Lawyers Association. "They are being paid by your adversary, and they're there to force you back to work earlier than you should go and to harass you."
A week after she was burned Duncan showed up for her first outpatient checkup at the office of Neil Fine, the plastic surgeon who was treating her burns, and was met by Barbara Brown of Disability Management. "I'm a registered nurse," Brown told Duncan and her mother. "I work for a company that provides advocacy for patients. We are a liaison between the doctor and the patient. My function is to make sure you get the best possible care." Brown asked Duncan sympathetically what had happened to her, and she draped an arm around Norma. "We thought she was our buddy," Duncan recollects.
By this time Duncan had moved back into her two-bedroom apartment, which she shared with a roommate. Her father had returned home. At night Norma, who has chronic back pain, slept on a chair and hassock outside her daughter's bedroom. During the day she spent a lot of time talking to Management Services and other agencies, trying to get her daughter what she saw as basic care. "I was on the phone five or six hours a day," says Norma. "I'd be getting approvals from Management Services for the laundry service or arranging the nursing schedule or calling about Adrianne's checks. You'd get such a runaround. People were rude, they cut you off. Adrianne wouldn't have gotten anything if I hadn't been there."
For about two months Duncan had a nurse 24 hours a day. Then one day, without notice, no nurse showed up. Norma and then Duncan called Brown. Duncan says Brown told her in an icy voice, "You don't need nurses. Your mom is taking care of you." Duncan persuaded Brown to let the nurses come for 12 hours a day. Brown has since left the company and couldn't be reached for comment.
Fine had prescribed Silvadene, a stronger antibiotic than Bacitracin, but when Norma went to the pharmacy to pick up a refill she found that she could get only a small tub. "Basically, they overrode the doctor's prescription," says Duncan. Norma called a claims adjuster at Management Services but got nowhere. Duncan says, "The pharmacist, bless his heart, finally gave us a bunch of the stuff."
Management Services also wanted Duncan to get a second opinion on her burns--an "independent medical evaluation"--from Dr. Juan Angelats, a plastic surgeon at Loyola University Medical Center. Duncan says she never received the letter about her first appointment, and she told Carolyn Christiansen, a Management Services representative, that she couldn't make a second one because she was going out of town. Duncan says Christiansen told her, "Miss Duncan, this has nothing to do with your convenience. We're paying all your benefits, and you're our employee."
"I'm not your employee," Duncan retorted in a letter she sent Christiansen, in which she also claimed that her mother was owed $4,000 for the time she'd spent as a nurse. "In my fantasy," says Duncan, "I thought, maybe they will read this letter and conclude she deserves the money." The letter went unanswered.
"At home I was very morose and depressed," Duncan says. "There was one day I was so down I couldn't even speak. For five weeks I couldn't even look at my face--every shiny surface in my apartment was covered. And when I finally did look, one night in the presence of a nurse, I just felt so sad for the girl I saw in the mirror."
Duncan was having other problems as well. She found it hard to ride in cars, and she imagined that lightbulbs were about to explode. In her dreams helicopters would crash, people would catch on fire, and sometimes she would be burning. "I had restaurant dreams where I was in Papagus," she says, "and all of a sudden I'd think to myself, I can't work here anymore."
Duncan went to see psychiatrist Ronald Krasner. "She came for help because of intrusive nightmares, irrational fears, free-floating anxiety, distractibility and preoccupation in her thoughts, paniclike states, and severe insomnia," Krasner wrote in a report he sent to Management Services. Krasner diagnosed Duncan as suffering from post-traumatic stress disorder and recommended Valium and therapy.
Duncan had weekly appointments with Fine, and invariably Barbara Brown was present, even in the examining room. "We'd figured out what was going on," says Duncan. "She was there to make sure I got back to work as quickly as possible." Fine noticed the chill between Brown and the Duncans. "They didn't seem at all friendly," he says. Legally Duncan could have forced Brown to leave the examining room, and she wanted to. "I could have chewed the woman out," she says. But Kevin Veugeler, an associate of Geoghegan's who specializes in workers' comp, advised against it, arguing that Disability Management could use it as an excuse to stop her benefits.
In late July, Fine sent a report to Disability Management saying that Duncan would have no scars on her face except on her chin and that the scars on her breast, chest, and stomach were healing slowly but well. He noted that compressive gloves had helped limit the scars on her hands. He advised that she wear compressive gloves and garments for three months, during which time her activity "should be limited and restricted."
At an appointment that same month a nurse substituting for Brown had asked Fine directly, "When can Adrianne go back to work?" Duncan says Fine replied that she was physically able to return to work but psychologically she needed more time. "If a wound has healed you should be able to go back to work," Fine says, "though sometimes people don't feel comfortable going back. That's hard for me to gauge." As a plastic surgeon, Fine admits that his experience with workers' comp is limited, but he says no nurse would ever force him to change his medical opinion. "On the question of going back to work, I look to what my patient says." Yet he acknowledges that he may have indicated Duncan could work wearing compression gloves.
In any event, based on Fine's reading of the situation and the nurse's interpretation of it, Duncan lost her temporary total disability benefits on August 12. "It may have seemed heartless," says Geoghegan, "but corporate America is heartless."
It was now up to Lettuce to find Duncan a job, if possible. The first offer, made in a letter, was the job of being a hostess at Papagus. "I'd have been standing four feet away from where I was burned," says Duncan. "I would have been up at the hostess stand in compression gloves with a pink face. No way. I had fear at this point. I was still in the throes of PTSD. I had enough trouble going out of the house or walking down the street."
Koutsogiorgas says a desk job at Lettuce's headquarters was made available to her, but Duncan insists she was never offered it. Besides, she'd realized she didn't want to work for her former bosses. "It was my choice not to go back to Lettuce," she says, "but I just couldn't do it--and they knew I couldn't. Working for the company filled me with dread. These were people who had had no contact with me after two days."
To gain support for her claim that she couldn't work for Lettuce, Duncan was evaluated by psychiatrist Steven Flagel. Duncan says Krasner, her regular psychiatrist, preferred not to do the evaluation. In a letter to Management Services, Flagel reiterated Duncan's symptoms, agreed with Krasner that she suffered from post-traumatic stress disorder, and concluded, "I do not believe she should return to work at the Papagus Restaurant in any capacity at this point. If she did, I would expect significant anxiety on the job."
Management Services sent Duncan to another psychiatrist, Edward Tuder, to get a second opinion, and Christiansen sent her a letter that stated, "In order for your benefits to remain in effect we recommend that you attend this evaluation." Duncan went. She says Tuder agreed that she had ongoing accident-caused psychological issues that impaired her ability to work for Lettuce. Christiansen refused to comment on the case. After repeated phone calls, Craig Bissell, vice president of Disability Management (now Novaeon), left a message saying, "The nature of our work is highly confidential. We are not at liberty to discuss this case or any case we handle."
Duncan got a letter from Lettuce saying she was terminated. "The position of hostess was put on the table," stresses Koutsogiorgas, "and there were limitations Adrianne saw in that. If she'd have wanted office work, fine. We would have accommodated her, like we have other people who've had accidents. I understand and respect her position, but we are a restaurant company. We aren't in any other type of business."
Lettuce's senior executive vice president, Charles Haskell, says he has only a sketchy knowledge of Management Services' role in workers' comp cases. "I want to believe the system is not insensitive," he says. "We have an employee-oriented philosophy, and we would hope that people that deal with us would follow that philosophy."
Third-party administrators and medical-management companies aren't mentioned in the state workers' compensation law, though the IIC has the power to discipline any agency involved in a claim for policies "of delay or unfairness toward employees in the adjustment, settlement, or payment of benefits." But such discipline "is extremely rare," says Robert Harris, the commission's director of insurance compliance.
David Menchetti of the Workers Compensation Lawyers Association doubts that any worker has ever challenged in court a third-party administrator's or medical manager's right to be involved in a case. "If people refuse to cooperate with the medical managers, they aren't going to get their [temporary total disability] payments," he says. When working on his own cases he tries to work out compromises for his clients--limiting a nurse's presence in the examining room, barring separate conversations with doctors, and making sure that he receives any report the insurance company will get.
For nine months Duncan's parents supported her. She finally returned to work, with a temporary-service agency, doing filing and word processing for lawyers. In time her burns healed. She still has scars on her hands, breast, and stomach, and a nearly undetectable scar on her chin. She decided against plastic surgery on her hands because that would have meant taking skin grafts from somewhere else on her body. Gradually Duncan returned to acting and landed several commercials, for AT&T and Head & Shoulders shampoo. "She was back as soon as she was healed," says agent Bob Schroeder, "which surprised me--that she kept going."
The scars on her hands are occasionally a problem. "People in the business still admire Adrianne that she does it," says Schroeder, "but what this comes down to is it's a business. I don't want to sound cold, but a client will say, 'There are 15,000 kids waiting in line. Why not book a girl who's a little less pretty than Adrianne, with a little less pretty voice, but who has beautiful hands?'" She knows she has lost at least one audition because the role called for close-ups of hands.
Geoghegan and Veugeler looked at whether Duncan had any further legal options, but the compromise intrinsic to the workers' comp law makes it nearly impossible for workers to recover anything from an employer even if they could prove the employer was clearly at fault. Precedent was also against Duncan. In 1994 the Illinois Appellate Court decided that Domino's Pizza and a franchise operator in Aurora weren't liable for the death of a 20-year-old driver who'd been fatally strangled while trying to deliver a pizza, though lawyers for his family argued that the company had failed to train him adequately on safety procedures or to tell him to refuse orders from a pay phone and avoid "a darkened residence adjacent to a vacant lot." Geoghegan says, "The bar was just too high."
Sometimes an injured worker will sue for damages from a third party implicated in an accident. Geoghegan and Veugeler looked at the David Sherman Corporation, the maker of Everclear, but the clearly marked bottle seemed to put the company in a safe position. "It isn't inherently dangerous to sell Everclear," observes Geoghegan. "It's the use that Papagus put Everclear to that was the problem. It's like a gun manufacturer who markets a pistol--it's only dangerous if somebody misuses the product."
Geoghegan moved on to the next step, a permanent settlement, which is considered once it's clear the worker won't get any better. The size of a settlement is based largely on the extent of the permanent disability but may include additional temporary total disability payments and unpaid medical bills.
What an injured worker is entitled to by way of a settlement is spelled out coldly in the workers' comp law, which workers' comp lawyers often have summarized in their heads: If your arm is hurt you get up to 235 weeks at 60 percent of your average weekly pay, though usually you get less. A hurt leg has a top value of 200 weeks, a big toe 35 weeks, a pinky finger 20 weeks. One testicle has a top value of 50 weeks, two testicles 150 weeks. If you can still work but have partial paralysis, a back injury, a herniated disk, or some mental problems--lumped under the rubric "man as a whole"--you're entitled to as many as 500 weeks of compensation. "You get 500 weeks if you're totally 'banjaxed,' which is my native tongue for being screwed," says the Irish Geoghegan. Actually, being completely disabled entitles you to temporary total disability payments for life.
"Disfigurement" or scarring brings a maximum of 150 weeks. Scars aren't counted if they're in the area between the nipple and the knee, reflecting that section of the body that was generally cloaked in the industrial age. "Women wore full-length dresses in 1912 and didn't parade around in bikinis," says the IIC's Robert Harris. Nowhere in the law is there any provision for pain and suffering, regardless of the extent of the injuries.
An injured worker's first encounter with the schedule of awards, which Burton calls the "meat chart," is often sobering. Menchetti says, "It's a stunning moment when you have to tell a worker that his toe is worth a certain amount of money--and that's it."
"My hands and the rest of me are personal," says Duncan. "I don't remember the exact moment when I learned about [the schedule], but it makes you feel like you're a cow or a pig."
Media stories about injuries can easily lead you to believe that if you're hurt the justice system will reward you generously. Remember the elderly woman who won a $2.9 million jury award from McDonald's in 1994 for the injuries caused when a cup of hot coffee spilled on her lap? (She eventually wound up with less than $600,000, but that's not the story that got big play.) And remember Rachel Barton, who last year was awarded $29.6 million by a jury after she lost part of her left leg and damaged her right one in a Metra accident? But these were personal-injury lawsuits. Veugeler figures that if Barton had been hurt on the job rather than as a Metra passenger she would have got $167,158, less her attorneys' fees. Harris says that would be the high end of workers' comp disability awards.
IIC cases are adjudicated by arbitrators, gubernatorial appointees who are usually lawyers, though not always. These arbitrators preside in small hearing rooms on the eighth floor of the Thompson Center. In 85 percent of cases the attorneys for the injured worker and the employer or his insurance company settle the claim without going to a full-blown hearing where the arbitrator acts as judge. The arbitrator's role is usually to help the parties find a way to settle.
Robert Falcioni, the arbitrator in Duncan's case, was a staff attorney to an IIC commissioner before he became an arbitrator. "I was the oldest of five kids," he says, "and I was always breaking up fights anyway." He has a caseload of 3,500 claims at any given time, so he often forgets the specifics of cases after they've concluded. But he remembers Duncan.
Duncan's prehearing conference was on August 25, 1998. Geoghegan joked briefly with her outside the hearing room to help her relax. Inside, the attorneys, Veugeler and Lettuce's Robert Hess, traded offers. Veugeler showed Falcioni old photos of Duncan's burns, but Falcioni wanted to see the current scars. Duncan was ushered in.
Falcioni offered to call a female arbitrator, but Duncan said she'd come prepared to show him. "I was self-conscious," she says. "I'd bucked myself up for this moment. But I wanted to show my scars so he could get an accurate assessment." She took off her blouse to reveal a bikini top that exposed many of the scars on her upper body. Falcioni, who says his status as an arbitrator constrains him from further comment, recalls, "Her scarring was very extensive."
Duncan didn't mind showing her scars, but she says she felt diminished by the hearing process. "The least important person seems to be the victim," she says. "I thought I was going to be able to testify and describe what happened, but I was rarely in the room."
Falcioni made his recommendation, and Veugeler and Hess agreed on a settlement. Veugeler says Duncan got 100 weeks for disfigurement, 25 percent of which was for "residual psychological difficulties that she would have," as well as money for two unpaid psychiatrist appointments and six more temporary total disability payments. The total award came to $52,463.89. Earlier Veugeler had calculated that even if she'd been burned extensively, the most she could have emerged with was $70,000. Her attorneys got 20 percent, leaving Duncan with $41,591.66.
"That's a nice chunk of change, but in a civil suit I'd have sued for millions," says Duncan. "Workers' comp doesn't deal with what you endure. I was in the worst pain of my life, my wounds were draining onto my pillows, and all they care about is how you are today and whether you can return to work....You are totally unprepared for workers' comp. Nobody tells you in advance. You feel demeaned.
"As far as workers' comp goes, there are worse stories than mine--I'm a princess by comparison--but that settlement is pathetic. I don't want to sound greedy, but if somebody does that to you--and knows better--they should be punished to the point of feeling it. Lettuce Entertain You is a multi-million-dollar corporation. It's like me giving a homeless person a dollar."
Lettuce's Haskell says, "I'm not going to comment on the particulars of what happened, except to say it was a terrible accident. We're sick that this happened to this young lady, and we did everything in our power as a family-oriented company to make sure she was taken care of."
Papagus now uses Metaxa to flame its saganaki. Duncan has turned activist, joining Injured Workers of Illinois, a small organization of disgruntled workers' comp claimants; founder Laurie Selpien had her lungs and throat burned by a soldering chemical while on the job at Motorola. The group has testified before the Illinois Senate's Commerce and Industry Committee, asking that arbitrators be required to be lawyers, that insurance-company doctors be made liable for exacerbating an injury, and that awards for pain and suffering be instituted. Duncan has been working particularly hard on the last issue. "The system dehumanizes us," she told senators in a dramatic appearance before the committee in April. "I could lose acting jobs from the scars on my hands and torso." She passed around photos of her burns, startling the committee members.
"For most people we have a reasonably fair, speedy, and effective system," insists the IIC's Harris. "Not a lot of complaints come to the chairman's office. Now, people may be talking among friends and family, but they don't come to the commission."
Some elected officials are considering changes in the law. In November Senator Steven Rauschenberger, an Elgin Republican, plans to introduce a bill that would repeal the workers' comp statute within three years, compelling legislators to rework the law in the interim. "We can hold everybody's feet to the fire and get a rewrite," says Rauschenberger. "It will be a trigger for change."
Chris Lauzen, an Aurora Republican who chairs the commerce committee, says the committee has welcomed Selpien's group. "We need to discipline unscrupulous doctors, lawyers, and insurance companies," he says. "But you know, we do need to have sanctions against people who make fraudulent claims too--those Whiplash Willies who fake injuries." He has doubts about awarding money for pain and suffering, saying, "Shouldn't we take care of the physical first?" He also thinks that before her accident Duncan should have told Bob and John to stop playing with the Everclear. "The people she was working with, I gotta tell you, they were goofballs," he says. "They were playing with fire, and it should have been up to her to tell them to stop. She should have said, 'Don't be so adolescent.'"
Lauzen expects "huge resistance" to Rauschenberger's bill from the insurance industry, lawyers, and organized labor. He thinks passage is unlikely. Speaker of the House Michael Madigan introduced a similar measure in 1995, and it failed.
Duncan still lives in her Lakeview apartment, which she now shares with her younger brother. Last summer she was a counselor at an annual one-week camp for children with burns, staffed by volunteers and sponsored by the Illinois Fire Safety Alliance. "Adrianne was wonderful with the children," says Mary Werderitch, the alliance's executive director. "Her enthusiasm was fantastic."
In conversation Duncan freely throws her hands around, but says she's still self-conscious about them, still sensitive when people notice the scars. She still has dreams about fires and Papagus. "This has affected my ability to trust," she says, then lists everyone from boyfriends to total strangers. Her singing voice isn't what it once was. "She has an amazing instrument, and it's starting to come back," says Kathryn Hartgrove, her voice teacher. "But it's been a long and arduous process."
Duncan has been given bit parts on Early Edition and in Home Alone 3, both filmed in Chicago, and she recently shot a national commercial for Payless ShoeSource. She just finished work on The Chameleon, an independent movie in which she plays Seymour Cassel's granddaughter, the female lead. "It's Picket Fences meets the Mafia," she says.
"We cast Adrianne's part cold in Chicago," says director Phil Wurtzel. "We had 55 or 60 women scheduled for her part. Adrianne was one of the first up that morning, and she was wonderful. It didn't get better than her all day--she just outdid everyone else." He didn't realize she had scars until just before shooting began. "Adrianne comes across as charming and really carries the film," he says. In close-ups where her hands were visible, Duncan wore makeup. "She was not at all self-conscious in her movements," says Wurtzel. "There was nothing to draw your eye to her hands." Duncan intends to move to Los Angeles soon, hoping to capitalize on whatever opportunities The Chameleon might bring her.
She never patronizes Lettuce restaurants. She even skipped a surprise birthday party for a good friend because it was at Scoozi. "If I got called to do a commercial for Lettuce, I wouldn't do it," she says. "Partly it's out of morality, partly out of anger, and partly out of fear." She used to avert her eyes when she drove past State and Ontario so as not to see Papagus. "It's gotten better," she says. "I should go there one day, for a little closure. But the prospect is still pretty upsetting."
Art accompanying story in printed newspaper (not available in this archive): photo/Kathy Richland.