Keefe, Campbell & Associates, LLC

Editor’s comment: If your organization uses lots of independent contractors, better be forewarned. Starting right now, the IRS is to begin intensive audits of 6,000 randomly selected U.S. employers. One of the key targets will be determining whether employers are improperly misclassifying workers as independent contractors to save on taxes and legal risks.

The National Research Program audits will generate the IRS’s first statistical analysis of employment tax compliance since 1984. The audits will stretch across all industries and company sizes. We recommend you insure your employment and tax records are ready for an IRS audit. Federal officials believe the recession encouraged more employers to classify members of their workforce as independent contractors. Classifying workers as independent contractors might save money for some employers who won’t pay for contractors’ healthcare and pension benefits or for the employers’ half of the Social Security and Medicare taxes on workers’ wages.

The line in the sand is how much control the employer has over the worker’s schedule, materials, behavior, risk level and everything else. A recent U.S. Government Accountability Office (GAO) report says employee misclassification “could be a significant problem with adverse consequences” because it reduces tax revenues flowing to the government.

FedEx was the poster child for the contractor battle. The IRS originally hit the company with a $319 million tax assessment for improperly classifying 12,000 of its drivers as independent contractors. But earlier this month, the IRS backed off the assessment and allowed the workers to be classified as employees. Still, several states aren’t giving up the fight and may sue FedEx over those classifications.

The GAO report says the number of misclassified workers uncovered by state audits had increased from approximately 106,000 workers in 2001 to more than 150,000 workers in 2007. The 6,000 NRP audits will include face-to-face interviews, plus a line-by-line review of the company’s employment tax returns (IRS Form 941) and related forms and documents. Audits will mainly focus on tax returns for the calendar years 2007 and 2008.

The IRS has stated these audits will focus on five primary employment tax issues:

1. Worker classification

2. Fringe benefits

3. Reimbursed expenses

4. Officer compensation and

5. Non-filers.

Forewarned may be forearmed so don’t be surprised when and if the random audit hits your doors. Please do not hesitate to reply with your thoughts and comments.

Editor’s comment: The Illinois Commission has posted new versions of the Request for Hearing (IC9) form also commonly known as the “stip sheet” along with five new arbitration decision forms

v Regular

v 19(b)

v 19(b-1)

v Fatal, and

v Nature and extent.

In addition, they have posted a list of boilerplate paragraphs that users can copy and paste into the order section of the decision.

The forms were revised by a forms committee of hearing officers, and the proposed changes were circulated among all arbitrators and commissioners. The committee standardized the forms, added text to reflect the fee schedule and other changes, added email fields and other updates. They are distributing the print version of the Request for Hearing form as soon possible. When the forms are delivered from the printer, they will distribute them to all offices and to Downstate arbitrators. Until then, you will only be able to obtain the form from their website.

When the Illinois Commission issues new forms, they allow six months from the revision date for parties to make the transition. After August 1, 2010, outdated forms may be returned to the filing party.

To download the new forms, go to http://www.iwcc.il.gov/forms.htm

Editor’s comment: Last week, we published an article about self-administered MSA trusts. We were stated:

We caution our readers the injured worker has to be advised Medicare Set-Aside monies cannot be used until the worker is eligible for Medicare benefits. Once the worker is eligible to receive Medicare benefits, the monies supplant the federal benefit–the monies have to be used to pay Medicare-covered medical or other expenses related to the work injury or management of the MSA until they are used up. Most important, the injured worker has to annually report what they do with the money to CMS.

Fran Mohrmann of Travelers Insurance who is one of the top Medicare/CMS/MSA folks in the U.S. claims industry pointed out this statement above may have been accurate five years ago but it isn’t accurate now. She cited language from the CMS 2005 memo which states:

Q3. Use of WC Settlement Funds Prior to Medicare Entitlement – May workers’ compensation settlement funds attributable to future medicals be used prior to Medicare entitlement?

A3. For claimants who are not yet Medicare beneficiaries and for whom CMS has approved a WCMSA, the WCMSA may be used prior to becoming a beneficiary because the amount was priced based on the date of the expected settlement. Use of the WCMSA is limited to services that are related to the workers’ compensation claim or settlement and that would be covered by Medicare if the individual were a Medicare beneficiary. The same requirements that Medicare beneficiaries follow for reporting and administration are to be used in the above cases. The CMS will not pay for any expenses related to the workers’ compensation illness or injury until a self-attestation document or a full accounting of all monies expended from the WCMSA are sent to the lead contractor upon Medicare entitlement. At that time, the lead contractor will adjust the WCMSA record to reflect the expenses paid prior to entitlement.

As always, our goal is to get things right and kidding aside, Fran has an almost encyclopedic recall of such government minutiae. We again salute her. If you ever need to contact Fran, send a reply and we will direct it to her for response.

One concept that routinely falls through the cracks of training and handling of legal issues for all lawyers is what you need to do when you are asked by a friend, family member or acquaintance about a matter that you don’t traditionally handle. For example, if you are house counsel for a major software company and handle IT and patent issues but your cousin calls about a real estate closing that isn’t going well and asks for “informal” advice. In such settings, we feel you are going to have to do one of two things;

• First, if you are not going to handle or comment on the matter in any way, tell the friend, relative or colleague you will not handle it and they should consider seeking other counsel;
• In the alternative, if you are going to affirmatively discuss, comment or provide any sort of direction or advice of any kind, open a file and let them know you are doing so.

In the first instance, you may want to keep a personal record of the inquiry and your response to it. In personal injury claims, you may actually want to advise the person both of the fact you aren’t handling the matter and also advise them of the applicable statute of limitations, as appropriate.

In the second instance, you have not one but two problems to consider. The preliminary issue in “odd jobs” for the lawyer working in-house or being asked to do tasks outside those you were hired by a law firm to provide, you need to consider is what to do in relation to your employer and job. We recommend all law firms and companies that hire attorneys address the concept with a clear written policy. At a minimum, the lawyer should advise the company or firm about all legal inquiries and how they are handling them. Second, the lawyer needs to create a file available for review by your employer and manage/maintain it to avoid either malpractice or ethical problems. Please note in-house counsels can buy “odd-job” legal malpractice insurance to avoid liability if side work goes sour.

We caution the lawyers, general counsels and law firm managers who read this KC&A Update to understand, if you don’t have a policy on “odd jobs,” your lawyers will still get inquiries but potentially fly under the radar on managing the matters—you don’t want that. We truly feel you need full disclosure so you don’t have corporate or partnership liability for claims you don’t even know about. If the attorneys receive any monies or gifts or other income for such work, it should also be disclosed to the main employer, whether you seek some or all of the compensation being provided to the attorney. Again, we recommend you anticipate this potential and address it first and not at a later time.

As to maintaining legal work for “odd jobs,” our recommendation is all legal files be updated no less than once a quarter with diary dates for the next action required. Failure to do so will always cause concerns about one of the three most important sources of ethical failures—failure to maintain and update files.

Editor’s comment: A few weeks ago we sent a Freedom of Information Act request to the IWCC requesting production of their Arbitrator performance statistics for the last couple of years. We are happy to confirm they answered the request in a timely and professional fashion. While it might seem trivial to a casual reader, we assure our readers this may be the first time in Illinois history such information has been widely and openly published. We applaud the current administration for opening up their inner operations to review by the taxpayers and larger public.

The resulting statistics were was quite interesting. Some time in the last couple of months, some of the opinions we printed about the job requirements of Arbitration staff at the IWCC were felt by some to be a bit controversial. Please accept the following as a brief summary of what those statistics showed.

We will not provide individual Arbitrator statistics, just the highs, lows and averages in some of the more enlightening categories. Several categories of information we received will not be reprinted.

2007 All Illinois Arbitrators

Category                                  Highest Amount           Lowest Amount           Average

Number of Settlements               2,589                            1,146                            1,573

# of Awards                               240                               38                                 110

# of Dismissals                          278                               89                                 205

# of days to issue an award        163                               15                                 49

% of late awards                        88%                              0%                               28%

% of cases appealed                  70%                              25%                              49%

% of appeals affirmed                 100%                            29%                              68%

% of appeals reversed                16%                              0%                               7%

% of appeals modified up            30%                              0%                               14%

% of appeals modified down        43%                              0%                               10%

2008 Chicago Arbitrators only

Category                                  Highest Amount            Lowest Amount           Average

Number of Settlements               1586                             1074                             1267

# of Awards                               107                               68                                 89

# of days to issue an award        72                                 13                                 46

% of late awards                        78%                              0%                               27%

% of cases appealed                  62%                              39%                              49%

% of appeals affirmed                 82%                              48%                              62%

% of appeals reversed                19%                              0%                               7%

% of appeals modified up            26%                              4%                               17%

% of appeals modified down        26%                              0%                               13%

2008 Downstate Arbitrators only

Category                                  Highest Amount         Lowest Amount            Average

# of Settlements                        2,272                            988                               1,715

# of Awards                               268                               52                                 128

# of days to issue an award        93                                 16                                 39

% of late awards                        77%                              0%                               18%

% of cases appealed                  66%                              28%                              50%

% of appeals affirmed                 90%                              41%                              67%

% of appeals reversed                20%                              0%                               8%

% of appeals modified up            24%                              0%                               11%

% of appeals modified down        25%                              3%                               14%

Extrapolating this information, we get some interesting thoughts. For one, the category of “dismissals” is not present in the 2008 statistics, nor are they counted amongst the “total actions” category. We have no idea why they would cease to be counted, as numerous cases are DWP’d every year, with an average of 205 per Arbitrator in 2007.

In 2007 and again in 2008, the Arbitrator that issued the most decisions issued well over twice as much as the average, while the Arbitrator issuing the least decisions had less than 40% of the average. The Arbitrator with the highest number of decisions was hearing and issuing more than 20 rulings each month; the Arbitrator issuing the least number of rulings was barely averaging 3 hearings each month! We also note in both years there were a significant amount of Arbitrators who were timely issuing their awards, within one to two months, with only a couple higher numbers in each year bringing up the average time to issue an award.

We note the change in breaking apart the statistics in 2008 into Chicago and Downstate indicated our Downstate Arbitrators appear to have their hands full in comparison to their Chicago counterparts, averaging 30 more trials and 450 more settlements per year.

In each year, an average of half of the cases tried were appealed. From a defense perspective, probably the most interesting fact this information presents is that it is more worthwhile you might have suspected to appeal awards. Over the course of the last two years, almost a fifth of all awards appealed were reversed or modified down.

As we have done in years past, we are seeking your vote for the three best and most effective Arbitrators in the state. We truly feel there are a number of truly devoted, hard-working and underpaid Arbitrators and they deserve kudos for their efforts. Please send us your nominees with as much specificity as possible.

If you have any thoughts or comments, we look forward to hearing them. Feel free to respond to ekeefe@keefe-law.com or post them later today on the blog at www.keefe-law.com/blog.

Editor’s comment: While looking up other things, we note a recent poll found the inflation rate for workers’ compensation drug costs, which had been slowing, has now increased 7.5 percent, driven upward by overuse of medication. Madison, Connecticut-based Health Strategy Associates’ (HSA) announced their findings after their Sixth Annual Survey of Prescription Drug Management in Workers’ Compensation. The firm said the increase follows five years of lower drug costs documented in previous surveys.

We also recently heard any number of claimant attorneys at the Illinois Workers Compensation Commission extolling how awful utilization review was because of their feeling such issues should be handled by the Commission. We want to advise them and anyone else who is listening, the Commission cannot possibly undertake to actually provide UR in an effective way. We feel it is almost an apples to oranges comparison. There are a number of reasons but here are just a few:

· The Arbitrators and Commissioners are lawyers and not doctors! We are unaware of any administrator with formal medical training;

· Most workers’ compensation claims aren’t litigated—the vast majority of utilization review implementation would be on non-litigated claims;

· UR has to occur on-demand when crucial medical care is needed; in contrast, it takes months or years to get a claim heard at the Commission.

Going back to rising drug costs, workers’ comp payers said the primary cost driver was over-utilization, citing such specific issues as the overuse of pain medications and physician prescribing patterns. To combat inflation, payers are increasing investments in analytics and moving towards step therapy and stronger clinical management of pharmacy. Concerns cited were per-unit cost increases, the predominance of single-source brands and the rebranding of the pain medication Oxycontin.

HSA said some poll respondents saw significant decreases in WC drug costs with four participants reporting drops of nine percent or more from their 2007 costs. Unlike previous years, drug cost inflation trended lower at smaller payers than their larger competitors.

For the fourth consecutive year, the survey was sponsored by Cypress Care, a national workers’ compensation pharmacy benefits manager, and its successor organization, Healthcare Solutions, Inc. Decision makers and operations staff from eighteen WC insurance carriers and third party administrators participated. Respondents’ 2008 drug expenses ranged from $1.2 million each to $148 million; Respondents’ cumulative drug spending totaled $810 million, 19.3 percent of the total workers’ comp drug spend.

A copy of the survey results will be available online after Jan. 15 at info@healthstrategyassoc.com. Please don’t hesitate to send your thoughts and comments.

Editor’s comment: Hang on to your hats, readers. We feel a novice or outsider looking at the Illinois system of WC jurisprudence might consider some of what is done in this state to be unusual, to say the very least. We always find the rules to be fascinating and challenging for judges, lawyers, the parties and the public to truly understand and comprehend. Illinois Supreme Court Rule 23 allows our Illinois Appellate Court, at its sole discretion, to “non-publish” its orders disposing of cases. We have always been captivated to see how this Rule is employed by our higher court. “Non-publication” means the court’s ruling is not released for public consumption and is generally non-precedential. The parties alone are typically given a copy of the order and the case some times moves up to the Supreme Court or some times back to the Circuit Court or the litigation simply ends.

We note Rule 23 orders are issued in Illinois workers’ compensation rulings at least as much or perhaps even more than regular rulings. Your editor has handled several dozen Appellate Court cases before the five-member Workers’ Compensation Division of the Appellate Court—if you do the research, very, very few are actually published and out there for review. The vast majority of these carefully drafted rulings, some of them involving extraordinarily complex and intricate legal decisions, all remain “non-published” and are effectively kept secret from the public eye.

As you can tell from the tone of this Update, we prefer all legal and political rulings and decisions to always be made public. Good, bad, happy or sad, the public votes and pays the taxes that fund the courts and have a right to know what is going on and debate it in this free society. We particularly feel appellate court rulings with wild and mild impact should be out there for review and open for debate and comment from you and John Q. Public. We don’t like anything in the legal sphere to be intentionally or routinely kept from the public eye.

So, please understand our view is the “plain English” meaning of “non-publication” would indicate the members of the Court are affirmatively ruling the order isn’t to ever be published or generally disseminated. Not so fast, not so fast!! We always wonder why the Illinois Appellate Court would spend all the time and effort in carefully and thoroughly reviewing the facts and law and creating a serious dissertation on a specific matter and then “non-publish” it. Particularly in this day and age of super-fast communication and the worldwide web, one would think it is simple matter to publish even the simplest opinions. Every ruling of the august members of this Court is clean, clear and generally excellent—why hide them under a bushel basket? We assure all of you there are numerous legal services waiting to grab their orders and put them out there first.

What is even stranger is some of the “non-published” opinions are then occasionally leaked out and published!!! The editor of the quarterly Illinois State Bar Ass’n newsletter is a very solid and knowledgeable academician with whom we have debated this issue for some time. He feels there is nothing wrong with publishing or otherwise reporting “non-published” opinions of interest to the State Bar membership. The problem we have with that approach is John Q. Public and the business side of the WC industry can’t be ISBA members if they want to be—you have to be a lawyer to join. His newsletter is always well-thought out and contains excellent content that would be important for many of you to read. So, we guess it is up to us to re-publish his publication of the important non-published rulings for the greater good of everyone!

Accordingly, in the case of Carper v. CMT Enterprises, as affirmed in a Rule 23 decision by the Appellate Court of Illinois, Workers’ Compensation Commission Division, the Arbitrator awarded Petitioner, in an ex parte hearing, 21 2/7 weeks of temporary total disability benefits, $55,268.52 in medical expenses, Section 16 attorney fees in the amount of $12,302.47, Section 19(l) penalties in the amount of $1,490 and 19(k) penalties in the amount of $30,756.17. The Commission on review modified the order of the Arbitrator taking away the penalties/fees. It appears claimant’s counsel didn’t file a proper petition for them.

The critical concern you will see in this ruling is the problem with Illinois employers and adjusters hanging onto defense files until the last minute and beyond. We always caution adjusters, employers and claims managers to understand you make a massive mistake to hang onto a file until either just before or just after a hearing. While we trust many of our brethren on the other side, you also are taking a chance to rely on some members of the claimant bar. We actually had an adjuster hold a file until a deposition of claimant’s expert was taken on an ex parte basis pursuant to dedimus and then sent it to us for handling. It was technically impossible to then cross-examine the other side’s expert. When you do that, there isn’t much even the best defense lawyer can do to get a solid outcome.

When the adjuster holds the file after the litigation starts and motions are noticed and filed, the claim file may then be sent to the defense counsel. At that point, the defense attorney is then given the unhappy task of trying to straighten things out or reverse things in mid-stream. In the Carper case we cite above, Petitioner was injured and unquestionably gave notice to the employer and sought treatment in an emergency room. He was diagnosed as having fractures of the hand. He underwent surgery and was later scheduled for more surgery but it was cancelled due to non-authorization from the workers’ compensation carrier. Now, every veteran adjuster should know, at that point, you have a fight on your hands and truly need defense counsel.

Petitioner later developed an infection and osteomyelitis requiring further surgeries and treatment. He sought competent, veteran legal counsel who simultaneously filed an Application for Adjustment of Claim and a 19(b) petition. The claim was set on a notice of hearing and the Arbitrator assigned a trial date. Petitioner’s attorney notified the employer of the trial date—please note, under the Rules, the claimant attorney doesn’t have to send notice to the adjuster or insurance carrier/TPA; it only has to be sent to your account. No one appeared.

On the hearing date, Petitioner’s attorney asked the Arbitrator to enter an order specifically setting the matter for a second trial setting about one month later. The order was specific and noted, “Petitioner filed a petition for immediate hearing with the Application for Adjustment of Claim. The Commission issued notice…for the status call. Petitioner appeared and a trial date was set. Respondent [or its counsel] failed to appear. This matter is now set for [a second trial date]. No further continuances will be allowed. Respondent’s failure to appear for trial will result in a trial ex parte.” On the second setting of the hearing, the employer’s president and owner appeared before the Arbitrator, acknowledged he received a copy of the order setting the matter and he forwarded a copy of the order to his insurance carrier/TPA who acknowledged receipt. The respondent/owner declined to participate in the proceedings and left the hearing room before the hearing. Thereafter, the matter proceeded ex parte. After a hearing on the merits of the case the adjuster apparently sent his file to a defense attorney. The defense attorney then sought to set aside the evidence by filing a motion to strike the evidence presented during the hearing on the grounds of defective notice. The Arbitrator denied that motion and entered his decision as stated above. As we indicate, the matter went all the way to the Appellate Court who entered a very clear and well-researched ruling that we hate to say we have to agree with.

The message from this article is three-fold:

1. Don’t hang onto unquestionably disputed defense files to save a dollar or two—the cost can be perilously high if you get whacked as the result of an ex parte hearing. If you know you are in a fight, get someone to fight for you and protect you at the hearings. Illinois workers’ compensation claims are becoming increasingly expensive and rapidly moving into the six and seven-figure ranges.
2. Keefe, Campbell & Associates’ attorneys know we are sometimes like firefighters. If you need assistance at the last minute, send us an email or call the numbers at the bottom of these Updates. We have attorneys across the state who handle every status call in Illinois, every month. We are used to trying to catch up rapidly but please give us a fighting chance—the more time for preparation you can provide the better but, if things fall through the cracks, send us an email with the file, give us a shout and we will do our fighting best.
3. If this excellent and well-reasoned ruling was important enough for the Illinois State Bar Association to learn about it, it should be important enough for everyone in the industry to read. As court observers, we again ask the great and storied members of our Appellate Court, Workers’ Compensation Division to put simple, moderate and critically important rulings out there for everyone to read.

We appreciate your thoughts and comments. Please don’t hesitate to post them on our award-winning blog at: http://www.keefe-law.com/blog

Editor’s comment: As we approach the holidays, we want all of our readers to think about this simple concept—in this modern day and age, we are much more in control of our health. We just have to have the guts and the drive to take necessary steps to do something about it.

Earlier this year, we heard a brilliant commentator point out one encompassing reason Americans are so much fatter than folks from most other countries. The commentator’s point was we don’t have a chance. He pointed out every day; Americans are bombarded with ads, coupons and promotions for things like “butter-burgers,” deep-fried potato sticks and donut “holes.” These are unquestionably delicious food choices that aren’t designed to be good for you or the slightest bit healthy; they are designed to sell. One of the highest cholesterol-laden foods on this planet is otherwise healthy chicken that is pressure-cooked to crush in enormous quantities of fat and salt; it is sold at a national fast food chain very well known to every American school child.

In order to sell food, many fast food chains and grocery store food purveyors analyze and test their foods with hundreds and hundreds of focus groups and testing panels. The overriding concern of the people who employ focus groups is not to make healthy food; it is to create foods you will love, pine for, purchase and eat regularly. What happens when we eat such heavily consumer-tested food is we get obese and unhealthy. Unhealthy folks need more medical care than healthy folks. The point of the commentator mentioned above is you have to have the strength of a thousand U.S. Marines to avoid or even limit eating foods that are designed to make you crave. For the weak of heart and stomach, we truly don’t have a chance.

Voluntary Corporate Wellness Programs are a simple concept that will save both health care and workers’ comp costs

While researching other things, we note an Illinois employer started a wellness program and within two years, they feel they are experiencing a 10:1 return on investment. Robinson Engineering, a South Holland, Illinois-based municipal civil engineering firm, said most of the company’s 108 employees were excited about a wellness program. They started the program at their annual meeting in May 2007 and were really surprised with the positive reaction when they asked for volunteers. The program was implemented with help from The Horton Group, an insurance brokerage agency based in Orland Park.

Their program starts off with a health screening and a questionnaire, on which employees are asked about things such as diet and exercise. The Horton Group then works with companies to produce reports for each client. The company gets the screening data, compliant with HIPAA standards of confidentiality on things such as blood pressure, smoking and diabetes. The corporate wellness program is based on that initial survey and data.

The company didn’t expect to see a return on its investment right away, but were interested in the program for its long term benefits—both financially and for employee morale. Company representatives didn’t see any initial return on the program during the first year of implementation. But Robinson Engineering had an incentive in mind–employees have the option of participating in the wellness program, but should they choose not to participate, the company held them responsible to pay a portion of their group health care insurance costs. We caution this may cause Illinois’ aggressive work comp claimant attorneys, Commission and judiciary to later find participation is not “voluntary” making injuries occurring during the program to potentially be work-related. Regardless, Robinson Engineering kicked off the program with hosted health screenings and then decided to address the largest concern reported from employee questionnaire responses that is so common throughout America–challenges with weight loss.

When the program started in 2007, Robinson Engineering employees focused on weight management, so they kicked off their own version of The Biggest Loser. With 50 percent participation, they announced the winners at their annual holiday party and gave away prizes such as running shoes. The company also began focusing on nutritional food choices. Topics were chosen each month for “lunch-and-learns” based on themes such as weight management, healthy eating, stress reduction, first aid and CPR training.

In addition to health-related luncheons, the company began incentivizing employees to walk more as part of a program titled Virgin HealthMiles. The program provides employee health programs that pay people to get active, attracting an average of 40 percent of employees who participate in the program regularly, which helps their organization reduce medical costs and improve employee productivity and satisfaction. Each participant has a pedometer that comes with a USB cable and they can find out how many steps you take per day. Depending on how much they walk, the worker can earn up to $500 per year.

Please note this overall concept may not apply in the workers’ compensation arena; there are no co-pays or other concepts that cause employees to care at all about their health and concomitant skyrocketing WC costs. We are hoping some day, enlightened minds may bring a revolution in workers’ comp concepts so employees share responsible for increased costs due to unhealthy personal activities. To the extent Illinois employers are becoming more and more liable for conditions of life and not the more traditional “accidental injuries,” we feel our society is going to have to address rising WC costs as a joint concern of both employers and their workers.

At present, zero per cent of Robinson Engineering’s employees are in the high health care risk category, down from three percent when the program began in 2007. They report a dramatic improvement in employee cholesterol, reduced glucose levels and improvement in HDL and LDL levels.

We are suggesting all Illinois employers consider and provide such programs for their work force. If you are concerned about injuries occurring during the voluntary wellness program, send an email and we will send you our employee consent form for your review and use, as part of program implementation. We feel voluntary corporate wellness programs should be considered by all the law firms (even the Petitioner firms!!), nurse case managers, voc counselors, TPA’s/Insurance carriers and everyone who reads this Update. We promise our readers Keefe, Campbell & Associates is going to start and we will report the results to you. Some day, we hope Illinois governmental bodies start to implement it, just because it makes good common sense. We appreciate your thoughts and comments or you can post them on our blog at www.keefe-law.com/blog

Editor’s comment: KC&A would like to take this opportunity to highlight some of the most important cases in Illinois workers’ compensation history. This is the final installment in a three-part series.

For those industry insiders who know Illinois workers’ compensation law like the back of their hands, this may be a bit of a review, but we recently updated our “Noteworthy Cases” spreadsheet and thought we would take this opportunity to point out some of the cases that have impacted Illinois over the years.

National Manufacturing v. Industrial Commission – No penalties/fees can be awarded on undetermined amounts of permanency. Many defense observers also feel this ruling mandates presentation of unpaid medical bills and supporting documentation in advance of the hearing to allow a claim for penalties and fees. *** Please note *** as outlined in the article above, in claims involving amputations, Nobile v. Midwest Wrecking Co. and Kinnaird v. Greene Welding & Hardware hold the employer/insurance carrier responsible for immediate payment on statutory loss when it is uncontested.

Navistar International v. Industrial Commission – Employer was only entitled to a credit for net amount of compensation “after taxes” claimant received under employer’s group health or STD/LTD plan rather than for the gross amount of benefits paid to claimant—note IRS regulations and forms allow such payments to be nontaxable and we argue full credit should be provided in such an instance.

Pathfinder Co. v. Industrial Commission – A sudden, unforeseen and shocking psychological injury, even without physical injury, is compensable under the Illinois WC Act. Illinois remains reluctant to adopt what is sometimes called “California” or “mental-mental” stress claims. It isn’t considered an “accidental injury” in Illinois if your boss is mean to you or you have to work hard to make a living.

R.D. Masonry, Inc. v. Industrial Commission – An injured worker must submit to a section 12 IME even if all benefits are fully disputed and aren’t being paid. Mileage expense has to be send with the notice of the IME. Refusal will be sufficient reason for non-payment.

Saunders v. Industrial Commission – Claimant denied benefits as injury did not arise out of employment, since claimant was getting off a forklift he was riding as a passenger in violation of enforced safety rule and was going to lunch and not working when injured.

Sisbro v. Industrial Commission, Boyd Electric v. Dee, Twice Over Clean v. Industrial Commission – Factual findings on causal connection issues are “within manifest weight of the evidence” in derogation of prior legal rulings or defenses relating to accident disputes for various medical conditions personal to claimant. Note: decisions on facts are supposedly limited to facts of that case but continued legal trend clearly indicates current reviewing courts may not follow traditional legal principles to overrule IWCC.

Sylvester, Ronald v. Industrial Commission – Determined the “average weekly wage” in Section 10 may be the “average hourly wage” by calculating the hourly rate x 40 x 52. Of the three possible methods to determine the wage, this is clearly the most radically pro-employee with the Appellate Court agreeing the interpretation may result in a “windfall” where the injured worker may get much more money disabled than they actually earned while working.

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.

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.