Keefe, Campbell & Associates, LLC

Editor’s comment: While looking up other things, we found this stunning new twist on workers’ compensation fraud that our readers should be aware of. We are not sure what to make of it or how to best prevent it.

The Los Angeles Times recently reported some California employers, including Walt Disney Co., were taking a new approach to fighting work comp medical billing fraud. Turns out they started to receive medical billing and were paying it to later learn their injured workers had never been inside the phony clinics of the scammer. In response, the insurance carriers/TPAs for these organizations plan to send notices to injured workers to check if they in fact received medial services that were being billed for.

The fraud is being perpetrated by con artists that obtain state reporting data on injured workers and then set up fake medical labs or clinics to then bill insurers/TPAs for treatment that never occurred. The Times reports fraudulent medical billing scams cost hundreds of millions of dollars in California.

The Los Angeles Times story focuses on how insurers/TPAs killed legislation that would have required them to send notices to injured employees to check if they received treatment billed for. Insurers say the effort would cost too much and better ways exist to fight the fraud. Such notices are standard practice in health insurance but generally are not used for workers’ compensation insurance. The insurance companies opposed the proposal because they said sending notices would be overly expensive. The American Insurance Association did not offer an estimate for the cost of the mailings.

Regardless of the cost, Disney reportedly will mail notices next year to 20,000 employees when work comp medical bills get paid. Companies such as Disney have been at the forefront of successfully reducing work comp costs for years.

We ask your thoughts. Obviously, assigning a wily nurse case manager may create a check on such practices—all you would have to do is cross-check all medical billing against the NCM’s reports. If the NCM isn’t aware of and otherwise advising the adjuster of such care, the billing should be very carefully scrutinized. We urge the top nurse case management companies to let their clients know of this further benefit to using a nurse case manager on major claims.

Editor’s comment: Immigration is a tough issue to tackle, with a lot of nuance and involving a lot of different facets. Beginning with President Bush, and continued by President Obama, this is one “stream-lining” regulation we can get on board with. Whether you agree with it or not, the law of the land requires employers not employ illegal immigrants. Where previously employers were required to have their employees fill out I-9 information forms to have on hand should DHS or USCIS wish to review them,  this process was time consuming, filled with inaccuracies, and allowed a lot of illegal or undocumented aliens to remain employed when the Feds didn’t check their forms. The internet age is making it that much easier to confirm the status of the potential employees, in a concurrent time frame.

From the U.S. Citizenship and Immigration Services’ website: “E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) that allows employers to verify the employment eligibility of their employees, regardless of citizenship.  Based on the information provided by the employee on his or her Form I-9, E-Verify checks this information electronically against records contained in DHS and Social Security Administration (SSA) databases.”

On June 6, 2008, President Bush issued Executive Order 13465 which required any contractor entering into a contract with the federal government to agree to the use of an electronic employment eligibility verification system to verify the employment of all persons hired during the contract term who were to perform work in the US, and all persons hired to perform work on the federal contract in question.  Since enactment, various decisions have pushed back the initial date of effect at September 8, 2009.

The Society for Human Resource Management (SHRM) and the other plaintiffs including the Chamber of Commerce of the United States of America challenged the legality of the executive orders and their implementing regulations arguing it was neither legally justified nor practical for federal contractors to implement. In a ruling last week, a federal district court held in favor of the government and ruled the regulation should go forward.

What does this mean? In eight short days, from September 8, 2009 onward, anyone doing business with the federal government and accepting government contracts will have to E-verify the employment status of their employees. Although this will amount to greater cost expenditures for those businesses entering into contracts with the federal government, it does not appear to be a significant one, and it is difficult to fault the government for attempting to streamline a process that will actually make it easier for businesses to comply with the law. Furthermore, we’d like to point out that it isn’t exactly a secret that federal contracts come with strings attached, taking a government contract was never compulsory, and the new string here is that if you want the lucrative government contract, you have to allow them a little more access to your records.

Where it may become an issue, as in any system that grows too large, errors have already been appearing in the E-verify database. In use in other areas of federal law for many years, as of last year, there were nearly 100,000 employers already using the E-verify database verification system. The new rules going into effect next week are estimated to increase the volume of users by another 100,000-150,000 users. As the users grow, and data grow, it may more prevalent to get false reports or inaccurate results from the E-verify database. That remains to be seen, however, and one can always hope the federal government will become efficient in at least one more area.

USCIS has published information and frequently asked questions on its website regarding application of the rule. This article was drafted by Arik D. Hetue, J.D. who is soon to be an attorney with Keefe, Campbell & Associates. Please reply with your thoughts and comments.

Editor’s comment: We were asked this question by one of Illinois’ top risk managers. We want to make sure all of our readers know our thoughts as veteran defense attorneys in this difficult state.

It is our assumption some or all of the work the independent contractor will provide will be a dominant part of the business relationship and the person won’t be doing work for numerous other organizations. In such an instance, it is our legal opinion, in reliance on numerous years of practice at the Illinois Commission; every wise risk manager should require the independent contractor to obtain a policy of workers’ compensation insurance for the work they are going to provide for your organization. We urge you not to rely on “independent contractor” status as the sole defense to a serious workers’ compensation claim.

In fact, to insure the coverage is in place, you may want to consider actively shopping for coverage and buying it for them and passing that cost along to them as a deduction from the contractual price. Either way, be sure to put the concept into the written agreement. That way, you can be certain the policy is initially in place, you will know when it is renewed and you will always be sure premiums are continuously paid.

It is our understanding such insurance is not wildly expensive, particularly for one worker. Check with your broker.

The primary concern in not being absolutely certain independent contractors have full workers’ compensation coverage is the scenario in which the independent contractor is found dead of a heart attack surrounded by papers or other products upon which he or she was working for you. By the way, if the man or woman died of a heart attack doing anything at home, it would be possible for the surviving spouse to bring/drag the person to the area where they would typically work to then make a claim for 25 years of tax-free workers’ compensation benefits. While we understand that may be considered unusual, the members of this firm have seen many strange things happen in our years of defense practice.

For example, we know of an “independent contractor” who fell down at home. He made the claim for a broken wrist asserting he was carrying a box of files. The gossip at the office was the claim was totally bogus and he just wanted to profit from a broken wrist, having fallen in a bathtub. We have no idea if there is any truth to any part of that story other than to confirm claimant did get a settlement for an injury occurring at home.

In our view, such claims are virtually impossible to dispute on the issue of accidental injury. All claims involving accidents for “independent contractors” will be similarly hard to investigate and dispute.

We also want to insure all of our readers clearly understand there is no document you or I could draft to insure an independent contractor who later becomes a workers’ compensation claimant will be fully responsible for their own injuries, particularly if the injuries are severe. All such documentation will be admissible as evidence and may or may not be considered controlling in this state.

The Arbitrators and Commissioners do not consider such documents a “lock” as a defense. They look at the totality of the circumstances and will consider the documents in the context of all other facts presented. We agree with that approach—if they didn’t do so, every gas station attendant, retail clerk and paralegal would be forced to sign “independent contractor” agreements as a condition of employ.

Therefore, you still have to prepare and defend the claim filed by an allegedly independent contractor—the Commission doesn’t allow summary motions on such issues to avoid lengthy litigation. We always tell clients to assume a scenario in which the “independent contractor” is severely injured and leaves a destitute spouse and seven starving children. Assume the impoverished children are all pictured on the local TV news and front page of numerous newspapers and websites. When interviewed, the reporters could easily point to the fact all work being done at the time of the catastrophic injury was solely for your company.

So, why won’t your big company help out this starving family? The pressure on your organization and eventually on its risk managers, as the “evil big company” to pick up workers’ compensation coverage could potentially be enormous and very uncomfortable. You would be much, much better suited to simply say, “we thought of that” and insure the family has fully-paid for WC coverage.

The overall concern is exposure. The minimum cost of a death claim in Illinois is over $600,000. The maximum cost of a death claim in Illinois is over $1.6 million dollars. We have one claim in our office right now in which a worker “bent over” in 1993 and allegedly injured her back. She is still being treated today in “pain management.” She has undergone numerous and sundry surgeries. Medical bills exceed $2 million dollars. We took over the file six months ago. The matter hasn’t yet been tried but exposure is clearly several million more dollars.

Even “minor” files can be problematic, as you well know. It costs nothing to file a claim at the IWCC—if the independent contractor develops carpal tunnel syndrome and is fired for poor performance, they could readily find an attorney who might be willing to file and make the claim for them. Despite our claim of independent contractor status, you would still have to fight the matter and set reserves and expend legal fees to fight. We would project needed reserves for such a claim to be $50-75K. That money could be tied up for several years, even if you hire solid defense counsel and win. All of such concerns are eliminated if our recommendations above are followed.

In summary, if you are concerned about such exposures, the best way to avoid risk is to insure all independent contractors have their own coverage or coverage you force upon them. In that setting, they are truly “independent.” Anyone who tells you different doesn’t understand the Illinois Commission and the strange twists and turns of major, high-exposure workers’ compensation claims.

If you need additional research or case law on this issue, let us know. We appreciate your thoughts and comments.

Editor’s comment: When you offer STD and group health care, don’t “deny” WC claims—just drive them into the lower cost path. Our research indicates workers are continually analyzing and comparing disability benefit offerings against potential workers’ compensation payments to learn which of the two systems provides easier and more lucrative benefits. Then they are steering disability and injury claims into respective the work comp system or disability benefits area, depending on which would provide the greatest or possibly longest-running payments.

Our sources and research indicate “benefit shopping” is driving some employer’s severity and exposures higher and higher. The concept is being fueled by the biggest recession of our lives and workers who face layoffs and an uncertain future.

Our focus is to avoid fully and adequately investigating a claim and then “denying” it as workers’ compensation. We feel this practice unnecessarily acts like a “slap in the face” to someone who truly has a problem. We feel you are much better served to try to keep the employee happy by letting them know you have a system that is a viable alternative to workers’ compensation. The only significant difference between group health care and STD in relation to workers’ compensation is permanency—in Illinois, avoiding PPD is a win-win for Illinois business. And most health care and STD systems already implement UR and lost time in a way our Illinois WC system has not yet caught up to.

So when you get a new claim of injury, have everyone fill out your accident form and HIPAA-compliant release. If you fully investigate and learn there are questions about the compensability of the claim under WC, don’t “deny” it, just shift the employee’s focus to your STD and group health care systems.

If you have thoughts and comments about this approach, please send a reply.

Editor’s comment: The Illinois workers’ compensation community was saddened to hear of the untimely passage of one of its longtime members, Richard J. Barr of Lannon, Lannon & Barr. Rich was a passionate and hard-working advocate for his clients. Over the years, he had a number of claims against our firm and was always straightforward, honest and professional in his dealings. We are certain he will be missed.

Visitation is at 4 p.m. until time of the funeral mass at 6 p.m. Tuesday, Aug. 25, 2009 at Immaculate Conception Church, 1431 N. North Park Ave., Chicago. Interment private. In lieu of flowers, contributions may be made to Immaculate Conception Church or Rush University Medical Center, Coleman Foundation Cancer Clinic, Suite #250, 1700 W. Van Buren St., Chicago, IL. 60612. For further information, call Drake & Sons Funeral Home Directors, 773-561-6874.

Editor’s comment: After an earlier article about what we thought were wildly high costs for artificial discs, we are now learning of a very strange new pricing practice hitting our defense clients. Turns out anything that is arguably “implanted” as part of a workers’ compensation surgery is being wildly overpriced to the point of gouging. We cannot prove it but our sources tell us the hospitals aren’t billing the same amounts for non-work-related surgeries of precisely the same nature.

We are told the “implant” community fought and lobbied and donated monies to Illinois politicians to keep their products out of the limitations imposed by the Illinois workers’ compensation medical fee schedule. We know our readers are stunned to hear Illinois politicians from the prior administration might actually succumb to such things!! As the implants are not on the schedule, we are seeing bills where less than a pound of screws, cages or rods are now being billed at $100,000-200,000 in costs to Illinois business.

For example, we have a hospital bill for a cervical fusion that is $280,000. It is from a small hospital in southern Illinois. Please note that staggering amount for a surgery that takes about 45 minutes—if you are doing the math that is about $6,200 per minute for a clean, well-lit room and instruments. The surgeon and post-surgical care are all extra.

The bump in costs is the hospital is charging $10,000-20,000 for each “implant” like screws or cages. Please understand the actual cost of a titanium screw is fractionally lower. The only justification for the claimed cost is the absence of such products on the fee schedule and the hospital is willing to accept 76% of the billed cost under Illinois law.

We are battling this and hope we can get an Arbitrator from that area to stop the gouging. We are told many Illinois Arbitrators are hearing more and more complaints about the practice and they are using common sense to stop it. We applaud them for doing so.

But we truly hope the Governor, Illinois Attorney General and the Workers’ Compensation Medical Fee Schedule Advisory Board and that “Commission” itself start to investigate this practice. If the perpetrators are only pricing things in this fashion for workers’ compensation claims, it clearly is gouging Illinois employers and must be administratively stopped. If that isn’t enough to get it to end, we urge our administrators to make recommendations to the legislature to make it end.

We appreciate your thoughts and comments.

Editor’s comment: The American health care expectation is

• Unlimited,
• 100%-paid-for,
• On-demand medical care.

If/when you offer medical health care coverage, the richest and poorest of our citizens don’t just expect such treatment; they are fully prepared to openly and regularly demand it. We feel American citizens of all strata are geared up to make the clarion call of “off with their heads” to any politician, editorial writer, health care insurer, physician, attorney or miscreant who doesn’t wholly and intrinsically support that level of coverage whenever any kind of health care is offered to a U.S. citizen.

If you don’t know it, this precise business/health care model is codified in the Illinois Workers’ Compensation Act. The Illinois Workers’ Compensation Act has no defined limitation on the amount, nature or duration of medical care recommended by a treater to which the injured worker is willing to consent. None. Please don’t mumble anything about the hilarious “two-doctor” rule in Section 8(a-3); that rule is only a potential limitation on rookies or the non-initiated. Any Illinois physician, hospital or health-care provider worth their salt knows you need referrals to keep the “two-chains” running to the end of any selected path of care. If you have referrals in the medical charts, you have unlimited, 100%-paid-for, on-demand medical care codified for Illinois’ injured workers.

If you aren’t sure about the infinite provision of health care in this state at the sole cost of Illinois business, your editor handled a claim where a physician provided about $50K in relatively worthless injections to a claimant’s neck, shoulder and wrist. The patient admitted the “benefit,” if any, of the wildly expensive injections, lasted for a few scant minutes. When we deposed the doctor, he admitted he needed to stop the injections and the patient had undergone more than enough of such care. Following his deposition, in direct contradiction to his own opinions, the physician then provided another $50K in additional injections!! Our Commission and reviewing courts sanctioned all of it to the chagrin of your editor and his client. If you need a copy of the ruling, send a reply.

We want our President to understand unlimited, 100%-paid for, on-demand medical care would work, if we lived in paradise. On this grubby, dusty, imperfect planet, it is certain to bankrupt our society. If they don’t plan ahead, that “bankruptcy-thing” is coming sooner, rather than later.

We are petrified, truly scared-to-death to see the U.S. Government think they can “control” this monster. The special interests are spending billions as you read this to carve out their own little piece of what may be a giant federally-run pie. Within five years, we expect to see total chaos and skyrocketing costs—some folks peg the annual cost to be two trillion dollars per year. That is $2,000,000,000,000.00. Each year.

The current federal debt is a staggering $11.5 trillion — equivalent to over $37,000 for each and every American and one short guy from Croatia. And it’s expanding by over $1 trillion a year. The new health care initiative could triple that debt load.

We also point out every time our federal government tries to take over a business operation; they butcher it to the point of high comedy. We think the only thing the government does even reasonably well is to collect taxes. They do that solely to survive. They don’t have to “survive” in doing anything else.

Therefore, in our view, every other federal business operation could be run better by a sixth-grade class. Consider the creaky rail system, the inefficient postal service, the rapidly-becoming-bankrupt Social Security Administration. Consider the fact the U.S. Government still has elevator operators where all elevators have been running automatically by pushing one of those easy-to-read buttons for about four decades. If you don’t believe us, take a look on the web at: http://www.usajobs.org/listjobs/jobs/80497127/Elevator%20Operator.htm.

When someone starts talking about great presidents who were Republicans or Democrats, we point out Jack Kennedy, Lyndon Johnson, Dick Nixon, Gerry Ford, Jimmy Carter, Ronald Reagan, Bill Clinton, George Bush (H. and H.W.) and Barack Obama all ran or run governments that had elevator operators long after such work was completely automated. It is not possible to claim to run an efficient government when you have to admit you are using taxpayer money to pay people to push buttons and ride up and down all day like morons in new-fangled elevators. Only the shadow knows how many other ways the federal government is blowing money.

Trying to understand what a mess unlimited, 100% paid for, on-demand medical care means:

• We have one claimant who has literally been treating for her entire adult life.
• She is in her mid-fifties.
• She has had over twenty surgeries, many of them major.
• Some of them are arguably “related” to work, some of them are not.
• She is always getting ready for surgery, recovering from surgery or trying to find another area that needs surgery.
• Medical care for her is well into the millions—the cost has been split between various health care insurers and workers’ comp policies.

• We have another claimant who has had at least 40 surgeries to her internal organs.
• She injured her low back in the earlier 1990’s.
• Medical care is well into the millions and is still cooking with a “pain physician” recommending lots more.
• The most recent MSA value is well over $500K.
• We inherited the file about six months ago; the case is almost two decades old and still pending.

These sorts of folks have to be reined in with some meaningful objective guidelines. If the feds aren’t prepared to slow them down and sign up for all of it, the taxpayers better start expecting giant tax increases.

Looking at these folks from the perspective of Illinois WC, it is our assertion that, if a nutty claimant had the “right” claimant lawyer in front of the “right” arbitrator, they could legally “force” an Illinois employer or insurance carrier to pay for such unlimited medical care. The only limitation would be on the interest level of the claimant lawyer who would eventually grow tired of the game and tell the claimant to settle so they would be paid for their patience and efforts.

Most Illinois employers don’t like the basic IWCC model that controlling otherwise unlimited medical costs is left up to non-medical professionals who may become friends with or at least cordial to the many attorneys who appear before them. We don’t care if it is Republicans, Democrats or Independents; we are going to need some clearly defined way to control skyrocketing medical costs. We need it in Illinois workers’ compensation and we are going to need it in the federal health care system.

We think the best possible concept is utilization review. We learned about it from a claimant attorney who brought it to our state. We are certain UR is controversial, like the so-called “death panels” that are being ballyhooed in the press. But you have to draw a line somehow and somewhere. Medical care has to be limited in a fair and impartial fashion. If you have a concept better, faster and/or cheaper than UR, please send a reply and we will share it with our readers.

Editor’s comment: We get asked this question so often; we have to give you a summary approach to the concept. Right now, the weekly permanency value for complete loss of use of the hand is 205 weeks. The combined weekly permanency value for loss of use of the

• THUMB                                                     76
• INDEX FINGER                                      43
• MIDDLE FINGER                                   38
• RING FINGER                                         27
• LITTLE FINGER                                     22

The combined weekly PPD value of all digits is 206 weeks or one week more than the complete value for loss of use of the hand.

In section 8(e-9) of the Illinois Act, it states:

The loss of 2 or more digits, or one or more phalanges of 2 or more digits, of a hand may be compensated on the basis of partial loss of use of a hand, provided, further, that the loss of 4 digits, or the loss of use of 4 digits, in the same hand shall constitute the complete loss of a hand.

This provision is a constant source of confusion for adjusters and claimant attorneys alike. If you take a careful look, you will note the word “may” means the Arbitrator and the Commission thereafter, has discretion to award loss of use of the hand if an injured worker has injuries to at least two digits or fingers.

We don’t feel this means you have to pay both the loss of the fingers and the loss of use of a hand unless four digits are gone.

You can pay it as loss of use of the fingers or loss of use of the hand and match the amounts being offered and paid.

They did make a mess of things when they changed the rates for amputation loss to the dramatically higher weekly minimum PPD values. You can pay a fractured finger at the normal PPD rate and a second, amputated finger at the minimum amputation rate. While there are two digits affected, you do not have to add anything in thereafter for loss of the hand.

If you are paying for loss of use of the hand in such a setting, you do not have to use the minimum amputation rate—that rate only applies to the amputated digit.

If you have questions or need Illinois values on hand injuries, please send a reply.

In a second inquiry, we also asked about the repeated question we receive about whether claimant attorneys in Illinois or any state can take an attorney fee on an MSA value.

Editor’s comment: We don’t like to name names in the Update but if you ever have a wildly complex question, she is the best of the best of the best on this topic. She gave us permission to print the following thoughts for your consideration. If you want her name and contact information, send us your contact information and we will forward it along.

Her thinking on these two topics is:

A. If you want a reversionary clause, you’ll need to hire a custodian because the $$ goes directly to the claimant in self-administered MSA’s. Have fun getting it back from the estate.

Custodial fees are $500 to $2000 a year, so a custodial account (trust) is usually reserved for large (+$150,000) MSA’s. The next problem is a large MSA is usually funded with an annuity. The most cost effective annuities pay for life only. That means that if the claimant dies, the annuity stops paying into the trust and all that’s left is usually about 1-2 years worth of funds.

If you want the reversionary clause, you would want to spend the extra money and purchase an annuity with a minimum guarantee period. There are tax implications for the funder (the insurer or self-insured employer) if annual annuity payments revert to them.

Most carriers only allow reversionary clauses when you pay in a lump sum or use a “life only” annuity.

B. As to attorney’s fees on MSA values, none of the states she does business in allow the attorneys to take a fee on the MSA (we are unaware of any state that does). Medicare demands all money go to the claimant’s future medical bills. They don’t care about the role of the attorney in reaching the settlement.

Medicare won’t even allow you to include the custodial fees in the calculation of the “total settlement”. They are expense dollars, not medical payments. That’s a technical issue that only matters to the payer and Medicare. The “total settlement” value determines whether the case meets the CMS review threshold.

Please send us your thoughts and comments on these topics in managing and creating MSA trusts.

Editor’s comment: Our readers have pummeled us with the WCRI report card on our system and administrative handling of workers’ compensation claims. If you aren’t familiar with it, WCRI is the U.S. top “stat rat” for this industry. They reviewed the last period for which a full year of data was available, 2006 and Illinois got straight “F’s” in all categories, thereby falling into the bottom of the barrel for the states surveyed. We want everyone to understand we didn’t create this report. We do consider it is a fair and impartial agency that doesn’t have an ax to grind–they simply are reporting their research and the facts. We are confident the wise guys or powers-that-be that run the Illinois Commission are going to mumble something about ever-dwindling but impossible to attain insurance advisory rates. We are also certain they don’t want such outcomes published—we didn’t publish them so please don’t shoot the messenger. The grades are out there and one can make of them what you will.

Well, in comparison to Illinois, other states are also doing lots for their workers. And they are doing it in a competitive environment where there are jobs and the potential for more jobs. As we have pointed out in the past, Honda Motor Company looked at Fithian IL as a site for a major new plant with lots of jobs and quietly picked Indiana. Archer Daniels Midland has been a staple and major employer in the Decatur IL economy for decades and when they wanted to build new ethanol plants, Illinois was the last place they looked. Illinois has great schools and solid infrastructure but we feel workers’ compensation is becoming more and more of an issue for every current or potential Illinois employer. Why not work toward a “C” so employers take this issue off the table when looking to expand?

So, here are some simple thoughts for all the major players involved to get us out of the F category and up to C or maybe even a B.

Number One–stop viewing the system as a path to make claimants wealthy and not simply “whole.”

We have watched our reviewing courts and Commission struggle with the new focus on providing double PPD benefits in Beelman Trucking and Freeman United Coal. We assure all of our readers and everyone who will listen, these decisions are the first time in Illinois history where an employer will have to pay monies to make someone arguably whole–the poor truck driver in Beelman Trucking suffered severe, life-changing injuries. The trucking company clearly had to pay him the rest of his life on this planet. Illinois law allows him to also work and still receive lifetime benefits. On top of that, the Supreme Court decided that wasn’t enough and he has to become wealthy by giving hin a six-figure bump on top of everything else.

Now the whole system is properly giving all similarly situated folks an infusion of cash that is only going to make them wealthy while rocketing up reserves on Illinois’ biggest claims. To all the claimant attorneys who urged us to note there is a possible reading of the Act that justifies the largesse, we point out that is one of the clear reasons Illinois is getting an F–we are stretching the law and English language to find ways to give away money that isn’t needed. An injured worker is made whole by paying them for life. The rest is making them wealthy while blowing out prospective employers who are happy to look for states that just make injured workers whole.

Number Two–start using and stick to UR.

The second biggest problem with Illinois is the lack of definition and “control” over doctors and claimants. We have at least ten litigated claims in our office right now for soft-tissue back strains with grossly negative diagnostics. All of such claimants are staying off work without apparent reason or, worse yet, showing up for work, going off, coming back and generally torturing their employers. We have told all of our readers Illinos risk managers going absolutely bonkers about such claims.

The easiest and fairest way to manage them and other similar claims is to follow utilization review protocols to the letter. We note utilization review was brought to Illinois as part of the 2005 changes to the Workers’ Compensation Act–a claimant attorney pioneered that legislation and fought to bring UR to our state.

It is our strong impression the wise guys found out what it is and how it works and then put the complete kibosh on it. We think that is totally “unwise.” The best thing about UR is it is easy, quick, low cost and fast. Claimant attorneys could rely on it to get their clients back to work and claims settled right away.

Why don’t they want it? Well, some claimant attorneys think injured workers who are whiners and malinger are good for some attorneys’ pocket books. When a claimant milks an injury and stays off and stays off and endlessly treats without any apparent reason to do so, defense costs skyrocket, exposure rises and everyone wants to pay more money to get rid of the loser. The problem is employers put through that wringer want to move away from our fair state to any other place on the planet.

The easiest and fairest way to avoid this mess is to follow the legislative model a claimant attorney proposed. Yes, it does mean you may actually have to give up “control” of claim outcome to a nurse, general physician and, on appeal, a medical specialist who combine to quarterback other physicians. This occurs in group health care every day.

Once receiving the UR report, the non-medically trained arbitrator may have ceded his/her decision-making on applicable claims to another. The UR report should be clear, concise and provide a national or international study to support the outcome.

The lack of implementation of UR or some other neutral guideline for lost time and medical care is one of the most common complaints of the Illinois WC system–nothing the employer does to independently defend themselves is given true credence. Illinois arbitrators will discard and despise IME’s, co-employee witnesses, surveillance and UR. We think Illinois will jump up in WC grades to follow this one simple step.

Number Three–stop expanding coverage to claims that weren’t and shouldn’t be work injuries.

Every one of our readers who is familiar with Missouri law repeatedly tells us they are thrilled to report Missouri changed their law and now requires work to be “the” cause of any work condition considered deleterious and not simply “a” cause of the problem. Illinois not only allows work to be “a” cause, we now understand there are numerous doctors in central Illinois who are happy mine the “tunnels of Illinois” by operating on carpal and cubital tunnels when there are mild or even minimal electrodiagnostic findings. We are told there are litigation funding companies that are guaranteeing hand/arm surgeons their bills will be paid, no matter how slim the reasons are to perform surgery–they are supremely confident of Illinois’ workers’ compensation system and its overtly liberal view of repetitive trauma will result in numerous awards of such questionable medical care.

On the other side, we again point out the overuse and abuse of the “traveling employee” concept is clearly providing benefits in settings Illinois arbitrators and commissioners never before contemplated. Firefighters wrestling like schoolboys in their hotel rooms at a convention aren’t supposed to be able to get benefits, as if they were “working.” When a cop walking a beat casually turns around to answer a question, it isn’t supposed to be a work accident. Numerous and well-settled Supreme Court rulings indicate Illinois employers were not blanket insurers of the well-being of their workers–the traveling employee and repetitive trauma concepts have thrown that baby out with the bathwater.

Our worry is there are elections next year and workers’ comp is going to hit the headlines or at least the bylines. It would be great to be able to report there are folks at the IWCC who are sensitive to genuine and constructive criticism and don’t simply turn on the folks who are pointing out what many feel are systemic problems.

We appreciate your thoughts and comments about reforming the Act and Rules and IWCC administration to improve the system for both injured workers and Illinois employers.