Keefe, Campbell & Associates, LLC

Editor’s comment: We salute our IWCC Chairman Amy Masters for this unique and informative historical information on the Commission’s excellent website.

One hundred years ago on this Friday, Nov. 13, 1909, in a coal mine in central Illinois, 300 feet below ground, a torch accidentally set a load of hay on fire. Of the nearly 500 men and boys in the mine that day, 259 died. Eight days after the fire, 21 men who were still trapped in the mine were rescued. They survived by sealing themselves off from the fire and drinking pools of water.

The fire provided the impetus for worker safety and our first workers’ compensation legislation. In a special session, the Illinois legislature created a commission to study and recommend the best way to compensate for industrial accidents. The first Workers’ Compensation Act in Illinois took effect on May 1, 1912.

In Springfield, on Nov. 1, the Abraham Presidential Library opened a commemorative exhibit, “The Flames Caught Us.” The exhibit will run through March 2010. For information, go to http://www.alplm.org/events/cherry_mine.html.

Artifacts featured in the exhibit include typical 1909 mining equipment; a mule collar and chain; a canary cage to hold the birds used to measure air quality; numerous government reports on the disaster; and several personal narratives. Many of these artifacts have been loaned by private individuals specifically for this exhibit.

For a first-hand account by one of the 21 surviving miners, published in 1911, go to http://www.msha.gov/century/mag/magcvr.asp

For more information on the Cherry mine fire, go to http://en.wikipedia.org/wiki/1909_Cherry_Mine_disaster

For more information on the history of the Illinois workers’ compensation program, go to http://www.iwcc.il.gov/faq.htm#history

Editor’s comment: We had a reader ask us a very important question about using this database. As we advised, the PMP is authorized the Illinois Controlled Substances Act and applies to Schedule II, III, IV, and V prescription medications. The PMP Prescription Information Library (PIL) data base contains all Schedule 2, 3, 4 and 5 prescriptions dispensed by Illinois retail pharmacies. All retail pharmacies that dispense scheduled drugs are required to report their scripts to the PIL on a weekly basis. The database in the PIL updated is updated on Friday of each week.

The PIL database is most useful for detecting and preventing “doctor-shopping.” It is also helpful if you note a particular claimant is getting more narcotics than they could possibly or safely ingest by themselves and therefore may be illegally reselling the extra drugs for cash. After a provider’s registration is approved, the provider can log on and view the last 6 months of controlled substance prescriptions for a given patient. If a physician sees a pattern of excessive use of controlled substances, violations of narcotic contracts, or multiple providers they can change the treatment plan as well as alert other providers who may also prescribing controlled substances to the patient. The doctor does not have to be from Illinois to have access—they have to simply apply and send their bona fides to the Department for the registration and approval process. Providers who been given a password access to the system by the Illinois Department of Human Services can access patient information by getting logged into the website www.ilpmp.org.

The reader’s question was: You indicate IME doctors should routinely run this prescription check as part of the services included in a solid exam. You also indicate in order for the information to be shared there needs to be HIPAA authorization signed by the claimant. In many cases we are finding claimants refuse to sign the HIPAA releases and when getting them from Petitioner’s attorneys they are exclusively for specific doctors, other care-givers and dates. How can we get the PMP info from the IME doctor if we don’t have a signed release?

The answer is: According to the PIL (Prescription Information Library maintained by PMP) because the disclosures of information to the PIL by pharmacies are mandated by law and not discretionary, the patient does not need to be informed of the disclosure, and does not need to consent to it. That language is taken directly from the PMP website.

Therefore, any licensed doctor or pharmacist can review the website and get the information for you. They don’t need a HIPAA release for that purpose.

As a best practice, we feel the IME doc should have a HIPAA release signed to disclose it to you. Because it is a workers’ comp claim, technically it should fall under the U.S. Department of Labor’s workers’ comp exception to HIPAA but we still encourage folks to have a release signed, if possible. Thereafter, once you or anyone in your company has the results of the PIL from any doc—that information cannot then be redisclosed, openly discussed or used by anyone outside the HIPAA circle without a HIPAA release protecting you when it is redisclosed.

If you have any questions or comments, please forward them to our resident Blog Administrator, Arik D. Hetue, J.D. who can be reached at ahetue@keefe-law.com or post them later today on our award-winning blog at www.keefe-law.com/blog.

Editor’s comment: We feel claims and risk managers should always look for the “Alphas” among the defense bar to assist and counsel you in difficult litigation. In the Illinois’ workers’ compensation, employment law and general liability legal community, risk/claims managers are always faced with an arena that is filled with trepidation and concern. We have heard of claimant attorney after claimant attorney who bullies, badgers and sometimes even screams at adjusters and claims handlers seeking to be Alphas and thereby get their way. Claimant lawyers are not shy to point out their political ties and fund-raising efforts and “clout” in the judicial and administrative arenas. We are also amazed at how many times we get questions from claims adjusters who are completely befuddled because an attorney on the other side has passively confused them or actively misstated case law or the Workers’ Compensation Act or Rules.

In social animals, the Alpha is the individual in the given community holding the highest rank. Other members in the same social group may exhibit deference or other symbolic signs of respect particular to their species towards the Alpha. In the animal world, Alpha animals are given preference in food and all other benefits. Other animals in the community are usually killed or ousted if they violate this rule. The status of the Alpha is often achieved by means of superior physical prowess. The individual in the Alpha position usually changes to a Beta when another challenges it to a fight and wins.

In the world of lawyers, the Alpha defense lawyer is the one who brings a number of critically important assets to our hopefully-less-than-deadly battlefield. An Alpha defense lawyer will regularly demonstrate:

• Above-average or superior intelligence;
• Current knowledge of all applicable case law and legislative developments;
• An understanding of political factors that may affect outcomes;
• They are very responsive and accessible;
• They are intrinsically cost-effective in their approach;
• They can provide realistic expectations;
• They anticipate regular or typical developments;
• They render unpredictable litigation as predictable as possible.

You may also note these same attributes apply to claims handlers. We are confident corporate risk managers who oversee Illinois claims are looking for Alpha claims handlers who are willing to stand up for themselves and obtain best possible outcomes in all their claims. It is a rare and beautiful thing to see a veteran claims manager who knows the respective litigation system like a book and is willing to stand up and be counted in the fight. As we have said many times, it is critically important for the adjuster to “pay the good (or bona fide) ones, fight the bad or questionable ones and know the difference.”

Going back to members of the defense bar, most important in finding the “Alpha” in any Illinois defense lawyer is their willingness to participate wisely in the battlefield. Every risk/claim manager has to be confident their selected attorney is willing to fight for you and present themselves in any fight in a fashion you would present it. Trust us; there are a lot of lawyers out there who are afraid of members of the Plaintiff/Petitioner bar and similarly cower in front of some of our brilliant but challenging judges and Arbitrators—that sort of lawyer is clearly a Beta or less. There are a lot of very solid and successful claimant attorneys who will push and push as the Alphas of their side of the bar. On the defense side of the matrix, you need someone with a lot of spine to sit up, properly prepare and seek the best possible outcome in this difficult state.

All defense lawyers in our hierarchic legal community have a certain rank. Three of these ranks have attracted special attention in etiology and been given special names: Alpha, Beta and Omega. We feel Beta defense lawyers are the second-tier and routinely lose to Alphas on the other side. We feel they are men and women defense lawyers who are difficult to reach, ill-prepared, afraid of the fight and always willing to rapidly settle any claim.

Finally, Omega defense lawyers refer to the lowest caste of the legal hierarchical society. An Omega defense lawyer is subordinated to all others in the community. We are told some members of the in-house counsel community may fill this bill while we are also certain many members of house counsel staffs range from Alphas to Omegas, like every other hierarchy.

If you have any questions or comments, please forward them to our resident Blog Administrator, Arik D. Hetue, J.D. who can be reached at ahetue@keefe-law.com or post them later today on our award-winning blog at www.keefe-law.com/blog.

Editor’s comment: When you see our federal legislative leaders slapping each other’s backs and high-fiving over the U.S. House of Representatives passing their version of government-mandated health care, please remember conventional estimates are your taxes will certainly be raised at least $500 billion over the next decade. The members of the House have also voted to magically “borrow-spend” about $700 billion during the same period despite the fact the U.S. budget deficit is at a record high. When we see the folks in Washington cheering about spending gobs of money they don’t even have on such things, we are reminded of the quote attributed to Margaret Thatcher: “The problem with socialism is that eventually you run out of other people’s money.”

At the same time, we were sent an important thought by one of our knowledgeable readers about the private cause of action in federal Medicare lien recovery. One of the relatively new obstacles to the efficient settlement of workers’ comp and personal injury claims is resolving outstanding Medicare liens. All observers complain about the Center for Medicare Services’ (or CMS’) slow response time and apparent lack of efficiency.

Further complicating matters, the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA) and the Medicare, Medicaid, and SCHIP Extension Act of 2007 contain important changes that suggest attorneys representing either workers’ comp and personal injury claimants will have to set aside portions of the settlement to reimburse Medicare for future accident-related payments. However, hidden in the headaches that go with resolving Medicare liens is an enforcement provision that gives Medicare beneficiaries a private cause of action allowing the beneficiary to sue for double the amount of what Medicare paid which has not be repaid for the accidental injuries or exposures.

This private cause of action is often over-looked by insurance carriers/TPAs, claims handlers and defense lawyers. If it is not quickly and properly addressed by the knowledgeable risk/claims manager, wily Plaintiff/Petitioner lawyers may use it to increase the value of their cases and bring about higher and more costly settlements. There is also a clear problem that is something of a claims “land-mine”—no one reserves for claims’ mistakes like not reimbursing a conditional payment to Medicare.

The private cause of action is set forth in 42 U.S.C. § 1395y, and provides:

(A) Private cause of action

There is established a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A).

The purpose of this private cause of action statute was to help the federal government recover conditional payments from insurers or other primary payers, to encourage private parties to enforce Medicare’s rights, and to save money for the taxpayers. The premises underlying the private cause of action are:

(1) The beneficiary can be expected to be more aware than the government of whether other entities may be responsible to pay medical expenses,

(2) Without double damages, the beneficiary might not be motivated to sue an insurer/TPA because Medicare may have already paid the expenses and the beneficiary would have nothing to gain by pursuing the primary payer, and

(3) With the private right of action and double damages, the beneficiary can pay back the government for its outlay and still have money left over to pay for the litigation.

The 2003 amendments to the MMA were specifically enacted to overturn previous court decisions that limited the effectiveness of the MSP private cause of action. The 2003 Amendments made it easier for injured Medicare recipients to bring these private actions on behalf of CMS-Medicare against an expanded class of entities and individuals with insurance, and clarified when such entities are required to pay the Medicare beneficiary’s medical expenses.

The three critical amendments established:

(A)    All businesses, trades or professions shall be deemed to have insurance regardless of whether or not it carries its own risk.

(B)    Any judgment or payment conditioned upon the recipient’s compromise, waiver or release whether or not there is a determination or admission of liability will demonstrate a plan’s responsibility to reimburse Medicare.

(C)    Reimbursement to Medicare was no longer tied to anticipation of “prompt” payment because the Secretary of Health and Human Services may make conditional payments if a primary plan has not made, or cannot reasonably be expected to make payments with respect to such services promptly.

Prior to the 2003 amendments, it was not clear whether Medicare had a right of reimbursement from certain self-insured defendants. After the amendments, it became crystal clear Medicare’s right of reimbursement applies to practically all tort or workers’ comp settlements in which Medicare payments have been made on behalf of the tort plaintiff.

The key to avoiding exposure—pay Medicare back!! If you learn Medicare made a conditional payment of a medical bill or bills that might or could arguably be reasonable, necessary and related to the covered event, don’t hold it. All relevant case law indicates the cause of action exists when the insurer/TPA was aware of the conditional payment and ignored Medicare’s interest. Then, and only then, can the Plaintiff/Petitioner file to seek double recovery for the unreimbursed payment.

Court decisions decided since the enactment of the 2003 amendments consistently permit the private cause of action to proceed against insurers and similar entities including employers, who are deemed responsible for the tort or workers’ comp victim’s injuries. Lawyers representing tort and workers’ comp claimants may understand the MSP private cause of action and may use it as a tool to advance clients’ interests. Before a case goes to trial, Plaintiff/Petitioner lawyers can now use the threat of a Medicare Secondary Payer private cause of action lawsuit to potentially increase the settlement demand or bring a reluctant Defendant to the settlement table.

Risk/claims managers, insurance carriers/TPAs and defense lawyers should keep in mind that the MSP private cause of action can be brought as a separate count in a personal injury lawsuit, or it can be brought as a separate claim after a judgment is obtained against tort defendants. The timing of when the MSP private cause of action can be brought depends on the facts and circumstances of the particular case.

The MSP private cause of action has been strengthened by recent legislation and court rulings. Plaintiff/Petitioner lawyers are rapidly learning about it and may incorporate the use of its double damages provision to benefit their clients. The sheer number of current and future Medicare beneficiaries and recipients demonstrates how important the MSP private cause of action could be to personal injury and worker’s compensation practitioners. Currently, there are forty-one million (41,000,000) beneficiaries in the Medicare health care system. In the next few years, it is estimated an additional seventy-four million (74,000,000) baby boomers will start entering the Medicare system.  These statistics, coupled with the recent changes to the law that strengthen the MSP private cause of action, require risk/claims managers, insurance carriers/TPAs and defense attorneys to understand how and when the MSP private cause of action can be used.

If you have any questions or comments, please forward them to our resident Blog Administrator, Arik D. Hetue, J.D. who can be reached at ahetue@keefe-law.com or post them later today on our award-winning blog at www.keefe-law.com/blog.

After months of hard work and meetings, over 175 movers and shakers in the Illinois and U.S. workers’ compensation industry packed the I-Hotel in Champaign for the 17th annual Work Injury Prevention And Control Strategies Conference, sponsored by SafeWorks Illinois.

For 17 years, this conference has on the cutting-edge of Illinois workers’ compensation issues, leading the charge on a new innovative ways to treat and manage injured workers. This year’s conference featured a “Work Comp Reality TV” format that reenacted two real complex workers compensation cases from the time of injury through their resolution in the Illinois workers’ compensation system. The first case involved a bona-fide RSD (reflex sympathetic dystrophy) or chronic regional pain syndrome (CRPS) patient versus a fraudulent case of RSD, where the injured worker had received a dorsal column stimulator and continued to receive large doses of narcotics despite no objective findings to support the diagnosis.

“RSD is often times the most challenging diagnosis in the field of workers’ compensation and is often times a very questionable diagnosis,” said conference moderator Dr. David Fletcher, SafeWorks Illinois medical director. “These two cases touched on practically every aspect of the Illinois workers compensation system, including utilization review, chronic pain issues, psychological issues, and fraud.”

The difficulties and challenges of these two cases were reenacted from the patient’s perspective as well as from a healthcare providers’ viewpoint, but the seminar took it full circle to include employer, insurance carrier, case managers, fraud investigator, and legal/arbitration roles. The case study conference format allowed the audience to step into each stakeholder’s point of view (healthcare provider, nurse case manager, employer, attorney etc.) to help understand why a particular decision was made on how to handle that case.

The audience was able to ponder various questions:

• As a doctor, how can you prevent RSD?
• Can the employer be held responsible for essentially a self-inflicted diagnosis or non-compliance with treatment?
• What does a nurse case manager really do in a situation like this?
• How would the arbitrator rule on this case with these facts?

This stakeholder point-of-view format allowed very interactive and spirited audience participation that conference goers had never seen before at workers’ compensation seminar

There was even a mock trial at the end of the conference concerning case B heard by veteran downstate Arbitrator Steve Mathis, who ruled claimant in Case B was not entitled to benefits because he could not prove he was injured at work nor that the $500,000 in treatment he had received was reasonable or necessary.

Gene Keefe debated Buzz Walsh, IDFPR WC fraud unit supervisor. Walsh admits some of the state’s attorneys in the State of Illinois have little interest in prosecuting workers’ compensation fraud and that lack of interest has impeded charges, pleas and convictions. Keefe hoped Illinois would follow California’s lead in creating special prosecutors and training for workers compensation fraud. Walsh was able to point out that in Champaign County had good results “Champaign County has filed charges on all the cases we have referred to them. State’s Attorneys Julia Reitz and Assistant State’s Attorney Joel Fletcher receive my vote for outstanding support of the Workers’ Comp Fraud Unit,” commended Walsh.

Acting IWCC chairman Amy Masters opened the conference with her fresh perspective on the state of the IWCC and her vision of the future to improve IWCC operations with more transparency and new technology.   She admitted that she hopes Governor Quinn will appoint her permanent chairman.

Along with the unique format of the conference, the highlight for many conference goers was the discussions on the various new technology available to help facilitate the management of workers compensation claim to maximize recovery. In particular, Dr. Fletcher spoke on the new Illinois prescription monitoring program which allows any licensed physician to determine if a patient is getting narcotic prescriptions from multiple providers and even determine if an injured worker may have  received narcotics pain medication prior to work injury.

SafeWorks Illinois will sponsor the same conference with the same reality TV format with different participants in Chicago, February 11, 2010 at the Conference Facility at U.S. Cellular Field where the White Sox play! Midwest Orthopaedics at Rush will co-sponsor the seminar and they are looking for more sponsors. For more details or to register, e-mail Stacey Benson (sbenson@safeworksillinois.com).

Editor’s comment: Illinois’ Prescription Monitoring Program (PMP) presents new web technology that will help change the face of managing Illinois Workers’ Compensation system.

At the 17th Annual SafeWorks Illinois Work Injury Prevention and Control Strategies conference held in Champaign, IL last week on October 29, 2009, one of the highlights for many conference goers were the discussions on the various new technologies available to help facilitate the management of workers compensation claim to maximize recovery. Dr. David Fletcher spoke about the new Illinois Prescription Monitoring Program which allows any licensed physician or pharmacist to determine if a patient is getting narcotic prescriptions from multiple providers and even determine if an injured worker may have received narcotics pain medication prior to a work injury. The Illinois Prescription Monitoring Program is open only to licensed Pharmacists and Physicians in the state of Illinois—for claims adjusters and risk managers who want to know what is on the database, you need to run the inquiry through an OccDoc or IME physician.

So far, this new technology and related website has seemingly stayed under the claims radar and not widely know even though it provides valuable information that improves patient care for injured workers and helps prevent substance abuse and diversion of narcotics. The PMP is authorized by 720 ILCS 570/321, known as the Illinois Controlled Substances Act and applies to Schedule II, III, IV, and V prescription medications. The PMP Prescription Information Library (PIL) data base contains all Schedule 2, 3, 4 and 5 prescriptions dispensed by Illinois retail pharmacies. All retail pharmacies that dispense scheduled drugs are required to report their scripts to the PIL on a weekly basis. The database in the PIL updated is updated on Friday of each week.

IME doctors need to add this quick and simple web search to their day-to-day evaluation protocols

Accessing this new technology should be part of every independent medical examination that is conducted for any Illinois workers’ comp claimant. We don’t feel an IME physician can do a solid job if he/she doesn’t readily access this simple website to confirm the patient is taking only those drugs prescribed for the condition. Both sides of the WC bar want to know the patient is taking only what they are supposed to be taking and any surprises eliminated. We suggest this web search be added as a normal course of IME practice and put into every IME report.

In states that have the web service, a routine PMP search should also be part of all OccHealth care

As part of fitness for duty evaluations, some occupational medicine practitioners are using the site to check new hires that are seen for post job offer physical exams to determine the truthfulness of the responses to post job offer questionnaires about current drug use. In all OccHealth settings, a PMP search should be de rigueur—we assert the OccHealth doc can’t do solid job without insuring accurate review of a patient’s use of scheduled drugs for the last six months.

We also assume every ER in the State of Illinois should access this site as part a protocol for any patient that is prescribed narcotics or other controlled substances.

Attacking doctor-shopping and illegal prescription drug reselling for WC claimants

The PIL database is most useful for detecting and preventing “doctor-shopping.” It is also helpful if you note a particular claimant is getting more narcotics than they could possibly or safely ingest by themselves and therefore may be illegally reselling the extra drugs for cash.

After a provider’s registration is approved, the provider can log on and view the last 6 months of controlled substance prescriptions for a given patient. If a physician sees a pattern of excessive use of controlled substances, violations of narcotic contracts, or multiple providers they can change the treatment plan as well as alert other providers who may also prescribing controlled substances to the patient. Providers who been given a password access to the system by the Illinois Department of Human Services can access patient information by getting logged into the website www.ilpmp.org.

Providers input the patient’s first and last name and date of birth (DOB). The database then kicks out a chart listing any narcotic prescriptions, listing most recent dates first. The chart lists the number of pills dispensed, the pharmacy which pills were dispensed from, and the provider who prescribed the medication.

HIPAA and all confidentiality and disclosure provisions of Illinois Law cover the information contained in this database. All users must fully comply with HIPAA Privacy Rule Requirements when using this system. Access to this database is yet another reason we recommend all workers’ comp accident or claim investigations start with both an accident reporting form and execution of a HIPAA-compliant release. If you need a HIPAA-compliant release, send a reply and we will email it to you.

As of November 2008, 38 states had enacted legislation that required prescription drug monitoring programs: 32 of those programs are currently operating. In FY2005, the Federal Department of Justice Harold Rogers Prescription Drug Monitoring Program received $10 million in funding and Illinois was one of 22 states awarded grants to start a PMP. The Illinois PMP went on-line in January 2008.

According to the PIL (Prescription Information Library maintained by PMP) because the disclosures of information to the PIL by pharmacies are mandated by law and not discretionary, the patient does not need to be informed of the disclosure, and does not need to consent to it. The PMP has been helpful in bringing to light addiction and drug-seeking issues in patients who are requesting narcotics at levels that appear out of sync with the level of physical findings on exam and diagnosis. Examples include one recent soft tissue injury patient found to be receiving narcotics from another local provider, who it turns out was managing the patient for a chronic pain issue which the patient failed to mention. In addition this patient had signed a narcotics contract with the other provider stating she would not receive narcotics from any other providers.

Another patient was found to have ‘made the rounds’ of local providers, including dentists, receiving multiple narcotics prescriptions. When challenged with this information and told her physician would no longer dispense or write narcotics prescriptions, the patient abruptly dropped her workers’ compensation claim and never returned.

Another solid feature is the physician’s ability to learn the prescriptions have been written with his/her DEA number. This allows the physician to run a report displaying all scheduled drugs recently prescribed. This feature allows the physician to determine if someone is stealing scripts from their office or impersonating the doctor to fraudulently use their DEA #. It also allows the physician to monitor and detect pharmacy errors with this feature.

Recent discussions and presentations about PMP were presented by Dr. David Fletcher at REBEX (Regional RIMS conference in Wheeling) and the 17th Annual Safeworks Illinois Work Injury conference where the response to learning about this new technology was overwhelming positive. We are also advised the folks at the Department of Health and Human Services liked the public relations impact. They heard the news on the topic and have contacted Safeworks Illinois about it. They are applying for additional federal grants to expand the program, which is already saving lives and money by decreasing inappropriate narcotic prescriptions and putting unscrupulous doctors on notice that they are being closely monitored.

In summary, the PMP has changed the face of Illinois workers’ compensation case management with the ability to access historical information on controlled substances and assists with the proper management of chronic pain patients. For more information on the Illinois Prescription Monitoring Program, contact: Stan Tylman, 401 North Fourth Street, Springfield IL, 62702 Phone: 217 524-9074; Fax 217 557-7975

Comments and questions about PMP can be directed to Dr. Fletcher at http://www.safeworksillinois.com/contact-safeworks.html.

Editor’s comment: From our review, it would appear lawsuit lenders may be funding allegedly work-related surgeries in central Illinois. We are learning more and more about this interesting medical/surgical situation. A hand/arm surgeon appears to be diagnosing “repetitive trauma” conditions and then doing numerous arm, elbow, wrist and hand surgeries on workers’ compensation claimants. We understand the surgeon is doing bilateral CTS releases, he also does repeat bilateral CTS releases. In our experience, most hand surgeons do not repeat or perform revision CTS releases. For example, take a look on the web at: http://content.karger.com/produktedb/produkte.asp?typ=fulltext&file=000167875

Our research further indicates this hand/arm surgeon is joining with a lawsuit lender and is clearly mining what we have called the “Tunnels of Illinois” by doing not only bilateral CTS releases; the surgeon also combines that type of surgery with bilateral cubital tunnel releases. In some patients, this surgeon does the “Big Six” by doing six surgeries on the same claimant, sometimes based on subjective complaints alone. The surgeon does both carpal tunnels, both cubital tunnels and both shoulders, sometimes on patients with minimal, moderate or non-existent EMG/NCV findings. As we have advised in the past, we feel the incidence and prevalence of cubital tunnel surgeries in Illinois workers’ compensation vastly outpaces the incidence of this rare surgery anywhere else on the planet—the reason for the high level of cubital tunnel surgery is the reward. Most folks currently receive $15K-$50,000 in permanency for what is truly a minor surgical revision of the elbow(s)—while that is a lot of money anywhere, it is a pile of gold in depressed central Illinois.

In the vast majority of patients we are aware of, this surgeon has not recommended any pre-surgical conservative care for any of them. Therefore, it remains unknown whether conservative care could have alleviated the symptoms. We understand these surgeries are being financed by what we feel is an unusual financial/medical practice of this hand/arm surgeon selling “accounts receivable” to the subsidiary of a lawsuit lending company named MedFinance for 48.5% of the applicable CPT code in the Illinois Medical Fee Schedule. MedFinance is on the web at http://www.medfinance.us/index.asp.

The “accounts receivable” sale occurs either before or immediately after surgery is performed to insure the surgeon is paid the 48.5% of the Medical Fee Schedule amount immediately. The surgeon claims MedFinance is in the “risk buying” business. If the disputed surgical bill is later awarded by an Arbitrator and affirmed by the Commission, MedFinance gets as much as 100% of the fee schedule and, having already paid 48.5% out, they would receive the balance when paid. It would appear obvious that someone somewhere thinks the chance of getting an award on the most questionable carpal tunnel, cubital tunnel and shoulder surgeries is a wildly easy bet in this state. It is our further understanding that, in their view, there is no “kickback” in such an arrangement and they are not charging or sharing medical fees. It is our understanding MedFinance asked this hand/arm surgeon to set up shop downstate. We also understand the hand/arm surgeon has never sold an account receivable to MedFinance on anything other than a WC case. The hand/arm surgeon has advised he sold his “accounts receivable” to MedFinance prior to surgery actually being performed.

The hand/arm surgeon advised the various patients do not undergo conservative care as no one would treat them because they did not have the means to pay for it. We counter to indicate it is our understanding the surgeon is not checking for group medical coverage—the patients where this is happening all come from the workers’ comp arena.

We did the research and the Illinois Secretary of State’s website indicates MedFinance is owned by a corporation named LAWSUIT CASH ADVANCE LLC. It is a Minnesota based company with its corporate headquarters listed in Minneapolis, MN. You can readily find this organization on the web at: www.lawsuitcashadvance.com. These are the nice folks who will lend a claimant $5,000 today and, if they get a lawsuit recovery in 36 months, they have to pay back a mere $28,000. Don’t take our word for that—they have a calculator on their website that provides the result. Trust us, that math is making lots of workers’ comp claims start to move like greased lightning.

What is troublesome for the Illinois WC industry when one sees such hand, arm and elbow surgeries being financed and paid for in the unusual fashion outlined in the middle of this article is Illinois’ sky-high permanency values that come with each related surgery. For example, most of these surgeries will provide the worker with permanency values of 15-25% loss of use of the hand for the CTS release and 20-60% loss of use of the arm for the combination of cubital tunnel and rotator cuff surgeries to a single arm. When such surgeries are being performed on both hands/elbows and shoulders, if the employee returns to work at the same job and same rate of pay, the PPD value for even a mid-range income will be well into the six-figure range. As we have told all of you, if the employee gets the “golden diagnosis” of permanent restrictions and cannot return to the same job at the same rate of pay, an Illinois claim falls into the wage differential dance and the claim moves into the high six-figure to low seven-figure range.

We know there are folks at the IWCC who are learning of these issues. We are asking everyone to start taking a hard look at the need for surgeries when there is no attempt at pre-surgical conservative care. We hope our honest and hard-working Arbitrators and Commissioners at the IWCC are going to start to ask tough questions about these interesting surgical and financial practices. Our advice to our defense clients is to start to learn and further investigate what is going on and fight, fight, fight—the Commission can’t take any action if you blindly accept what is going on.

We appreciate your thoughts and comments.