Keefe, Campbell & Associates, LLC

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 After August 1, 2010, outdated forms may be returned to the filing party.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: We saw this at a conference last week and note it was published by our fearless Illinois workers’ comp leader—Chairman Amy Masters of the IWCC. We have edited it somewhat.

What alternative options are currently available to limit choice of health care providers pursuant to the Illinois Workers’ Compensation Act?

Panel of Physicians

Section 8(a) of the Illinois Workers’ Compensation Act allows the employer and its employees (or employees’ exclusive representative) to maintain a list of physicians, to be known as a Panel of Physicians, who are accessible to the employees, subject to the approval of the Illinois Workers’ Compensation Commission.

v The Employer is responsible for posting the Panel of Physicians list in place(s} easily accessible to employees

v Employees can select alternative physician from panel if dissatisfied with first physician selected

v Employees may select a physician outside of panel if necessary due to the nature of the injury or its occurrence away from the employer’s place of business

v The physician selected from the Panel may arrange for any consultation, referral or other specialized medical services outside the Panel at the employer’s expense.

v If the Commission finds that a doctor selected by the employee is rendering improper or inadequate care, it can order the employee to select another doctor certified or qualified in the medical field for which treatment is required.

v If the employee refuses to make such change the Commission may relieve the employer of his obligation to pay the doctor’s charges from the date of refusal to the date of compliance.

v An ombudsman or advocate can be incorporated into agreement process.

To date, 2 panels of physicians are active in Illinois – the Olmsted Dam project and Cargill.

If you need advice or have thoughts on implementing an approved panel of physicians, we are sure one of the big box retailers did it poorly and their efforts weren’t approved. We are somewhat confident we could correct their mistakes but we are just as sure the Commission would have to see a very clean application.

Please do not hesitate to send your thoughts and comments.

Editor’s comment: We try to tell our readers the problems with Illinois’ workers’ compensation system is a byproduct of the overall bias in the courts in dealing with the personal injury system. We like to call the workers’ comp system the “red-headed step-child” of the larger personal injury system because Illinois personal-injury Plaintiff attorneys make millions each year while their workers’ comp counterparts make hundreds of thousands. But make no mistake about it; the personal injury plaintiff millionaires unquestionably impact the workers’ comp system.

Why is the composition of the courts so important? Well, they are making it so—in the past; our Illinois Supreme Court in particular looked at workers’ comp as a large piece of smelly limburger cheese. In the ‘80’s, they created a rule that allowed them to avoid hearing WC appeals unless they wanted to. The justices basically dumped it all on the Appellate Court below. Thereafter, the high court justices wouldn’t handle WC with a ten-foot pole. In the last five-ten years, it appears there are true zealots and liberals on our highest Court who seem to want to reform or re-make the whole workers’ comp process into a hotly liberal image and likeness.

Along with their direct impact, it is our understanding the Supreme Court indirectly affects the outcome because they handle the selection of the appellate justices who make up the Workers’ Compensation Division of Appellate Court. In the last several years, those current appellate justices have written a couple of solid defense opinions. In doing so, they were then forced to watch the Supreme Court accept certiorari and basically every defense opinion, other than Airborne Express, was reversed to insure WC benefits are provided early and often. We remain stunned to see the Supreme Court even consider a case so minor as Interstate Scaffolding which only had about $5,000.00 at stake. Legal scholars now feel the ratio of Plaintiff rulings to defense rulings in the reviewing courts in workers’ compensation are running at about 40 or 50-1. Almost all legal defenses are being stripped away by the Illinois courts and no one on in the Illinois defense bar is recommending any appeals because the system is so apparently biased.

For example:

v The statute of limitations in Illinois WC was effectively ended by the ruling in Durand.

v In Cassens Transport, the reviewing courts ruled a claimant getting wage differential benefits could continue to do so even if their post-award income doubled or tripled.

v In Twice Over Clean, our Supreme Court ruled a heart attack that might have happened while a claimant was brushing his teeth was compensable in Illinois.

v In Interstate Scaffolding, the fact claimant committed what might have been a crime while on light duty did not block renewed payment of TTD after he was fired for misconduct.

Doug Whitley, the President of our Illinois State Chamber analyzed the February primary election last week in his recent missive to major Illinois business. He pointed out Illinois voters probably knew little or nothing about the 170 candidates seeking 45 contested judicial offices. He also indicated 170 sitting judges are eligible to seek voter approval for retention for another six or 10 years in their office. We learned there are four members of the Illinois Supreme Court that may be on the November ballot seeking voter approval to retain them on the bench for another ten years. Three of the four likely to seek retention collaborated right after the primary to strike down the medical malpractice caps. The three justices who are likely to ask November voters for another term are:

v Chief Justice Thomas Fitzgerald who wrote the opinion

v Justices Thomas Kilbride and

v Justice Charles Freeman.

Justices Fitzgerald and Freeman represent the First District and answer to the voters of Cook County. Justice Thomas Kilbride represents the Third District in the middle of the state. The fourth Justice eligible for retention this fall is Justice Bob Thomas of the Second District to the west of Chicago. Each Justice must receive approval of 60% of the voters casting ballots in their election in order to be returned to the highest court in the state.

The decision of four members to overturn the medical malpractice caps is almost certain to result in a simple reply from many doctors and specialists—CYA Illinois! If you aren’t sure, one of the reasons for the med mal caps was to get neurosurgeons and doctors who handled troubled pregnancies to return to our state. The sky-high insurance premiums previously pushed many of such practitioners to Missouri, Iowa and Indiana. Expect that migration to begin again. As we advised last week, anyone in Illinois with a closed head injury may soon have to be med-evac’d to St. Louis or Terre Haute—no doctor will touch such a patient to risk getting sued in Metro East by the rabid Plaintiff bar resident there.

As Doug Whitley indicated, this is exactly the kind of Supreme Court ruling that keeps Illinois at the top of the list of “Judicial Hellholes”. Trust us, that personal injury trend bleeds over into workers’ comp outcomes. So why are judges and justices so biased in this state?—well, it appears they are to some extent selected and certainly strongly financially supported by the Plaintiff bar.

Allen Adomite of the Illinois Civil Justice League notes the 20 appellate court candidates running for six spots have raised almost $2 million. He notes Illinois’ personal injury lawyers are legally and heavily funding campaigns with generous contributions, dropping tens of thousands of dollars on appellate court candidates Thomas Hogan and James R. Epstein in Cook County and Mary Schostok in the 2nd District Appellate Court. Another candidate, Mary Katherine Rochford (in Cook County), is partially self-funding with funds from her trial lawyer husband. Thousands of dollars have found their way from the checking accounts of asbestos lawyers, such as the Alton-based asbestos trial lawyer firm Simmons Cooper, to the campaign bank accounts of Hogan and Epstein. It’s 280 miles up Interstate Highway 55 from East Alton to Chicago, in case you were wondering. Partners at the trial lawyer firm of Cooney & Conway have given more than $70,000 to these campaigns. Trial lawyer Michael Schostok lent his wife’s campaign $108,000. His law partner Patrick Salvi contributed another $12,000. Clifford Law Offices recently chipped in $10,000 and Power Rogers & Smith donated $5,000. Schostok’s opponent, Donna Kelly, has raised $5,075 total.

What ends up happening is Illinois gets a judiciary that is very, very Plaintiff friendly. The sense of healthy balance and legal equilibrium from our Circuit, Appellate and Supreme Courts continues to disappear more and more as the years go on. The problem we feel with what is happening on all sides is a litigation-happy and labor-friendly state may become a state without jobs. We assure our readers the wildly liberal rulings in workers’ compensation are a strong deterrent to new jobs coming to Illinois and the creation of existing jobs from current Illinois employers. As we have told you in the past, we feel merit selection of judges and justices has to come to avoid the anomalies of elections run, in large part, based on generous donations of the Plaintiff bar.

We appreciate your thoughts and comments or please post them on our award-winning blog.

Editor’s comment: This ruling is a clear and concise statement of law on the issues in the Synopsis above. If you don’t regularly handle such matter, move on to other stuff and leave this article to the law buffs.

In Hagemann v. Illinois Workers’ Compensation Commission, (No. 3-08-0989WC Jan. 22, 2010), a unanimous Appellate Court, Workers’ Comp Division ruled Plaintiff timely filed a valid summons with the Circuit Clerk to initiate a timely review of a decision of the Workers’ Compensation Commission. The Court noted the clerk delayed issuance of the summons because no return date was listed on summons, and because County Sherriff would not serve summons outside county.

In light of such facts, the Court ruled there was no lack of diligence of service, as the lack of a return date did not defeat court’s jurisdiction. The Court further noted there was no prejudice as Defendant had notice of appeal within one month of filing.

The Court also note the question of whether the injury to Plaintiff, a grain hauler, fell within the agricultural exemption to Workers Compensation Act was a genuine issue of material fact, dependent on specific nature of his work, and had to be adjudicated through typical arbitration procedures.

Editor’s comment: The following debate is one reason we need watchdogs as solid as Keefe, Campbell & Associates partner Shawn Biery and George Picha of the Rockford firm of Picha and Salisbury in relation to our state officials. With all the other information posted on the excellent website of the Illinois Workers’ Compensation Commission, we have no idea why they wouldn’t fully disclose what they were doing with rates when the SAWW went down for the first time in recent memory. We don’t agree at all with the position they are taking and it is now incumbent on our readers to tell us your thoughts.

The Illinois Statewide Average Weekly Wage in Illinois went down from $932.25 to $922.45 in the January 15, 2010 changes. However, the calculated amount of the 133-1/3 of the SAWW remained at the previously level of $1,243.00 instead of lowering with the SAWW to the appropriate calculation of approximately $1,230.18. The IWCC website bluntly indicates “* As provided in Section 8(b)4, there is no increase in the benefit rates for 1/15/10 – 7/14/10 because the SAWW decreased.”

However, §8(b)6 of the Illinois Workers’ Compensation Act indicates “(t)he Department of Employment Security of the State shall on or before the first day of December, 1977, and on or before the first day of June, 1978, and on the first day of each December and June of each year thereafter, publish the State’s average weekly wage in covered industries under the Unemployment Insurance Act and the Illinois Workers’ Compensation Commission shall on the 15th day of January, 1978 and on the 15th day of July, 1978 and on the 15th day of each January and July of each year thereafter, post and publish the State’s average weekly wage in covered industries under the Unemployment Insurance Act as last determined and published by the Department of Employment Security. The amount when so posted and published shall be conclusive and shall be applicable as the basis of computation of compensation rates until the next posting and publication as aforesaid” (emphasis added).

Based upon the SAWW declining to a point under the January 15, 2009 rates, it appears only appropriate Illinois employers would receive the relief of a rollback to those rate maximums.

To illustrate further—there are multiple rates affected and by plain reading of the Act, the rates posted and promulgated by the IWCC directly controvert the plain language of the Act. §8(b)4 of the Illinois Workers’ Compensation Act says in relevant parts:

The maximum weekly compensation rate from July 1, 1975, except as hereinafter provided, shall be 100% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act, that being the wage that most closely approximates the State’s average weekly wage.

Effective July 1, 1987 and on July 1 of each year thereafter the maximum weekly compensation rate, except as hereinafter provided, shall be determined as follows: if during the preceding 12 month period there shall have been an increase in the State’s average weekly wage in covered industries under the Unemployment Insurance Act, the weekly compensation rate shall be proportionately increased by the same percentage as the percentage of increase in the State’s average weekly wage in covered industries under the Unemployment Insurance Act during such period.

The maximum weekly compensation rate, for the period January 1, 1981 through December 31, 1983, except as hereinafter provided, shall be 100% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act in effect on January 1, 1981. Effective January 1, 1984 and on January 1, of each year thereafter the maximum weekly compensation rate, except as hereinafter provided, shall be determined as follows: if during the preceding 12 month period there shall have been an increase in the State’s average weekly wage in covered industries under the Unemployment Insurance Act, the weekly compensation rate shall be proportionately increased by the same percentage as the percentage of increase in the State’s average weekly wage in covered industries under the Unemployment Insurance Act during such period.

From July 1, 1977 and thereafter such maximum weekly compensation rate in death cases under Section 7, and permanent total disability cases under paragraph (f) or subparagraph 18 of paragraph (3) of this Section and for temporary total disability under paragraph (b) of this Section and for amputation of a member or enucleation of an eye under paragraph (e) of this Section shall be increased to 133-1/3% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

Wage Differential Maximum—For injuries occurring on or after February 1, 2006, the maximum weekly benefit under paragraph (d)1 of this Section shall be 100% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

4.1. Any provision herein to the contrary notwithstanding, the weekly compensation rate for compensation payments under subparagraph 18 of paragraph (e) of this Section and under paragraph (f) of this Section and under paragraph (a) of Section 7 and for amputation of a member or enucleation of an eye under paragraph (e) of this Section, shall in no event be less than 50% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

While it may not affect the majority of cases as it deals with maximum levels of benefits, we feel it illustrates an example of the IWCC actively presenting information which ignores the plain language of the Act to the detriment of Illinois employers. Assume we will see a change without notice as we saw in the stealth increase in the PPD maximum within the prior year’s changes. It doesn’t take a degree in economics to know that increased business costs are inversely proportional to job creation. This article was researched and written by Shawn R. Biery J.D. Please reply to Shawn with your thoughts and comments.

Editor’s comment: In our view, Illinois is unquestionably the worst managed of all fifty of the United States. In beautiful Cook County, we clearly have the highest sales tax of all sales taxes in the country. Our local real estate and state income taxes are already staggering and certain to spike, as government spending spirals.

Despite record-level tax loads next year, the State of Illinois is expected to have a budget deficit equivalent to 20% of the approximately $60 billion dollar budget. Illinois will owe $12,000,000,000.00 that we don’t have and won’t collect in taxes or fees. Right now, about $5 billion in state bills remain unpaid and are well overdue. Whoever gets the Governor’s job is going to have a herculean task in front of them. Assume it may be almost impossible for that person to do what needs to be done and remain popular to anyone but his dog.

Over the last fifty years, Illinois voters have shown abysmally bad judgment when voting. We elected four Governors who went to jail for one thing or another. One former Governor who is in jail right now, admitted to some of the blame for not properly licensing truckers and had a trucker who never got a real CDL improperly tie down an angle iron causing it to fly under a minivan full of kids—in the resulting fire, a number of little children were tragically burned to death.

The fifth potential felon to be elected by Illinois voters to our Governor’s mansion is currently out on bond and continues to insist on making a complete fool of himself in the media. This past week, we read the new indictment filed by the U.S. Attorney for the Northern District of Illinois—the purpose of the modified indictment was to avoid a U.S. Supreme Court ruling that may technically end some of the federal laws this former Governor was charged with and supplanted them with new charges of bribery and extortion. If you read the new indictment online, you may note the worst of his federal charges clearly have to be the allegations he sought to extort money from a children’s hospital that saves the lives of hundreds of little babies every year.

The recent state primary election has to be the stuff of a Saturday Night Live® comedy script. It is our understanding the Democratic Party candidate chosen for Lieutenant Governor admitted to scandal after scandal in his past. His background and training for the political post was being a successful pawnbroker and having several million to invest in his campaign. It is almost impossible to imagine the voters had done any research on him and simply liked his name. He has now withdrawn and isn’t supposed to recover the millions he spent to get the nod.

We also strongly support merit-selection of judges and justices of the reviewing courts and not leave that process to apathetic, disinterested and confused voters. Elections and voting for judges is tantamount to buying judicial opinions for those who understand our political structure. It is comical to consider our Illinois Supreme Court waited until two days after the primary and struck down the medical malpractice caps designed to keep doctors in our state. If you regularly read this Update, you understand it is our reasoned view the Illinois Trial Lawyers Ass’n strongly supports the candidates for the Supreme Court who may concomitantly support the policies and goals of ITLA. Right now, ITLA doesn’t want malpractice caps and, for the third time, they got them knocked out by our highest Court. Please assume all neurosurgeons south of Springfield will again move to Missouri. This may result in no one being able to treat a closed head injury in the bottom-half of Illinois—all such patients will all be med-evac’d to St. Louis or Terre Haute.

The only way the Illinois State Medical Ass’n can trump ITLA is to have Illinois doctors start to regularly pony up more cash to get new justices who might find malpractice caps to be constitutional. We don’t feel that is the way judicial rulings should occur but, as a wise man once said, “you can’t take the politics out of politics.” We can if we would go to merit selection and de-politicize the selection of judges and justices.

Going back to government, it is clear to us that we need a city manager-type of government at all levels. If you need more information on how it works, send a reply. We truly feel Illinois would be much better off with professional managers who have no stake in raising money as part of the government decision-making process. And we truly feel the Governor and legislature should simply provide direction and set policy for the professional managers. We feel politicians who are mostly lawyers can’t and shouldn’t try to run budgets in the range of $60 billion dollars.

The reasons we don’t feel voters can ever do a solid job is patently clear in several spheres:

No one is voting and apathy is at an all time high.

Voters are basically giving up the antique concept—less than 1 in 5 eligible voters voted in this month’s primary;

The folks who are voting and simply going by what they see and hear with very little knowledgeable research;

With all the monster input of the Internet Age, it is truly demanding to have to research literally hundreds of legislative and judicial candidates and concomitant issues.

How does workers’ comp point in this direction? Here are just a couple of the anomalies.

First, Doug Whitley, the president of the Illinois State Chamber and one of the sharpest folks in our state wrote a brilliant analysis of how Illinois can dig out of the monster budget hole we have put ourselves in. One of his biggest issues is the wildly generous state pensions that wait for all state workers at the end of any reasonable tenure in government. What Doug may not know is workers’ comp provides hundreds of retired state workers with what is effectively a “double-pension!!”

If an Illinois state worker is adjudicated totally and permanently disabled or entitled to wage loss differential benefits and also gets an Illinois state pension, they get to keep both without any offset. The current cost of this benefit to eligible claimants is well into the millions. If you don’t understand what this means, state workers who qualify for both receive more money from the two pensions than they could have possibly received while working—the state pension is about 60% of the highest wage at the end of their career. The combined total and permanent disability award is 66-2/3s of their average weekly wage on a tax-free basis for life! The Workers’ Compensation Commission is now rabidly focused on insuring such workers always get COLA increases. In total, such workers receive about 123-2/3% of their highest income while employed by the state. All of the money comes from Illinois taxpayers. All Illinois would have to do to end this craziness is input an offset so state workers don’t get both. We are confident it will be a long time before anyone even understands this largesse, much less acts to end it.

Second, another facet of Illinois State, Cook County and City of Chicago government is all three governments run workers’ comp programs that are routinely penalized and/or claimant attorneys are awarded their attorney’s fees for bad or clearly incompetent management of workers’ compensation benefits by the applicable government claims handlers. We consider this a scandal which remains under the radar of the various news media—it simply isn’t a racy enough topic but try to imagine how nutty and incongruous it is for an Illinois arbitrator who works for the state issuing an award penalizing a different state agency for their incompetence. All of the money comes from taxpayers; all of the additional benefits go to injured state workers. We truly feel workers’ compensation claims and legal handling of all state, county and local government bodies should be competitively outsourced for bid and the parties getting the work have to be responsible to the voters for their mistakes. Our only problem is nothing in Illinois politics is every competitively bid—someone’s-brother’s-cousin’s-uncle always seems to get the nod.

Third, there is another anomaly that would make any business or claims manager laugh—the City of Chicago and State of Illinois retain outside defense counsels to represent them in the defense of some of their workers’ comp claims. We assert no one on the planet can tell an innocent bystander how to get picked to represent the City of Chicago in handling such claims—we have asked both major Chicago newspapers to investigate and they both gave up. We are told there is a fat guy who is the gatekeeper for a well-known Chicago alderman. If you start to pony up lots of cash to the alderman, you may be considered for the work in a couple of years. There are no guarantees.

On the state side, there is a state medical institution that outsources their WC defense work. The law firm that gets the work in northern Illinois has one defense client—they are a very successful Plaintiff personal injury firm. The partner who gets the work had a relative, an uncle or father-in-law in the right office in Illinois state government. When that relative recently left state government, we made inquiries to see if the work might be coming up for bid. We were told there had to be an RFP and it would be considered to be let in 2012 or 2013. Sure. We have never seen a prior RFP for such work and have no idea what magical event might occur for the work to again become a subject of open bidding.

All in all, we truly feel there needs to be substantial changes at all levels of government in this state. Gosh only knows if we have the guts and the brains to do so. Please let us know your thoughts or post them on our award-winning blog.

Editor’s comment: Glen Boyle, Medical Fee Schedule project manager, held seven seminars around the state and one statewide webinar to explain the Illinois Medical Fee Schedule to payers and providers of workers’ compensation medical treatment. The Commission announced their appreciation to the industry for all the questions raised and the exchanges between payers and providers that occurred during the seminars and webinar.

The discussions prompted the Commission to issue guidelines on the three issues that came up the most. They also made a correction to their Instructions and Guidelines.

To read the new guidelines, and the questions and answers from the seminars, go to

http://www.iwcc.il.gov/fsq.pdf

We admit we aren’t Medical Fee Schedule specialists. Comments from one of our readers who is a specialist:

I especially liked the part that said to pay CRNAs at physician rates and to, how did they put it? “translate?” whether –AS represents a modifier -80 or a modifier -81.

I also liked their recommendation to just pay 100% to the physician anesthesiologist and let him/her and the facility hash out who pays the CRNA is going to be interesting in practice…

Since they have instructed us to pay ASTC’s at 76% of billed (except carve outs at 65%) if even one of the procedures falls into the POC76 category, it would have been particularly nice for them to have mentioned paying the subsequent/secondary procedures at 50% of 76% which would be reasonable in view of all other multiple procedure rules.

And after all this time they are still just “recommend[ing] reexamining the implant rule. Policy change is difficult and can take some time,” they said.

Other than these points, everything else makes sense in view of existing law, and it is obvious they really tried to be reasonable and direct in clarifying facility reimbursement problem areas. I do applaud their efforts. Communication has at least been established, and that is a very good thing.

We thank MP for her input and permission to publish her thoughts for your consideration.

Editor’s comment: You may not recall but the Amendments started in full force on February 1, 2006. The sweeping changes brought forth in the 2005 Amendments to the Illinois Workers’ Compensation Act had a huge impact on our state’s workers’ compensation law and practice as we know it. Some of the changes were immediate and almost shocking but the full impact of many of the changes is still being felt. While researching the effects of this bill there were portions of it that our attorneys found could be read and interpreted in various conflicting ways and the Commission and courts continue to hash all of it out.

What happened was:

Doctors/medical caregivers providing care to workers comp claimants had to deal with a medical fee schedule for the first time in our history. In exchange, they were to get quicker payment protocols and interest on unpaid bills. We are pretty sure doctors liked the old system more but have grudgingly adapted. We do feel the medical fee schedule has been something of a success and has not resulted in doctors refusing workers’ comp patients. We do consider the surgical “implant” issue to remain an embarrassment that has to be addressed.

Other than medical benefits under the fee schedule, all other workers’ comp benefits went up in numerous and subtle ways—we feel the medical fee savings were wildly overmatched by the increased rates and new TPD and PPD benefits.

Workers’ comp fraud was introduced by our former Governor-waiting-trial almost by mistake and has gone just about nowhere, as our states’ attorneys across the state ignored the pleas of business to take action when clear fraud was present. While we salute the folks at IDFPR for their hard work investigating fraud, we simply don’t see any real impact.

Many of the new changes thought to be beneficial to the businesses and government bodies of Illinois were unclear in how they were to be applied. The jury remains out on utilization review that has not caught on—at the last training session for Illinois arbitrators, it is our understanding UR was given a rousing “thumbs down.” We truly don’t feel this will change until the Commission itself changes, if the election in the fall goes red and not blue.

As we indicate above, in exchange for the medical fee schedule, Illinois labor got a huge increase in various rates, with disability schedule increases and minimum TTD/PPD calculations. We are certain increased benefits encouraged claims of astronomically higher exposure. We truly feel Illinois business now needs caps on skyrocketing reserves for wage loss differential claims, total and permanent disability and death claims that arose from these Amendments. For example, we were listed dead last in 40 states recently surveyed for U.S. workers’ comp costs and outcomes.

Along with the 2005 Amendments to the Act, we saw judicial rulings that we feel increase the overall cost and expense of workers’ comp in our state. We are asking all of our readers for their thoughts on reform—if we put you in charge of Illinois workers’ comp, what would you do different? Please reply with your thoughts and comments.

Editor’s comment: If you closely follow developments in Illinois WC, you may have had time to read last week’s KC&A Update on this new unanimous ruling by our Illinois Supreme Court. We are completely baffled about most aspects of the decision. We want to assure our readers there are attorneys on both sides who are shaking the heads and wondering what to do now. Our readers have sent us other defense firms’ reviews of the ruling and we haven’t seen a single one that provides any real insight on what to do next.

Does TTD now equal MMI when it never did before?

What is so unusual about the ruling that our entire community is in shock? Well, there are two major issues. As we advised last week, for the first time in about 100 years of Illinois WC history, the Supreme Court created a completely new “rule” that possibly equates the period temporary total disability or TTD is potentially due to be the entire period of medical care. If that is what their ruling means, we truly feel this contradicts literally thousands of Workers’ Compensation Commission decisions/rulings over the ages. Everyone in the Illinois workers’ comp community on both sides along with Arbitrators and Commissioners has always viewed the period TTD is due to be all periods a doctor says you have to be off work. TTD has never been due the entire time you are under the care of a doctor when that doctor says you can work at either full or light work while treating.

Please also remember some folks never lose any time from work despite some times severe injuries—are they entitled to TTD? Can that make any sense? We knew a salesman who was hit by a car and severely injured with multiple surgeries and periods of recovery—he was still on his cell phone and selling widgets while in the intensive care unit and during all periods he was conscious. That same person is still under the active care of doctors to present and has never stopped working. The idea he would be owed TTD is blurring to most seasoned WC professionals. Trust us, he didn’t want it when he was first injured and doesn’t want it now.

In fact, one of the main reasons independent medical exams have been used in TTD disputes from time immemorial is to set up a legal dispute over the proper period a doctor on one side or the other says an injured worker can and should be off work and therefore entitled to TTD. Arbitrators have been taught to lean towards the treaters in resolving the dispute but their focus has never been on whether claimant is MMI or not—they always focus on what the competing medical opinions have been in analyzing what to do about cutting off or continuing TTD long prior to claimant being MMI. We think most Arbitrators will be somewhat baffled about what to do now in light of what may or may not be a new rule that may or may not “stick.”

This is a direct quote from the new ruling:

The Act provides incentive for the injured employee to strive toward recovery and the goal of returning to gainful employment by providing that TTD benefits may be suspended or terminated if the employee refuses to submit to medical, surgical, or hospital treatment essential to his recovery, or if the employee fails to cooperate in good faith with rehabilitation efforts. See 820 ILCS 305/19(d) (West 2004); R.D. Masonry, Inc. v. Industrial Comm’n, 215 Ill. 2d 397 (2005). Benefits may also be suspended or terminated if the employee refuses work falling within the physical restrictions prescribed by his doctor. See 820 ILCS 305/8(d) (West 2004); Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 166 (1992); Hayden v. Industrial Comm’n, 214 Ill. App. 3d 749 (1991) (TTD justifiably terminated by the employer, under the Act, when the injured employee was unwilling to cooperate with vocational placement efforts).

The court then goes on to say being terminated from light work while an injured worker is still treating does not end the right to TTD.

What is ‘foreign’ and what is ‘domestic’ in our statutory scheme?

The second and more baffling aspect of this Justice Burke’s new ruling is the word “foreign” that appears twice in the ruling. The Court first says:

A thorough examination of the Act reveals that it contains no provision for the denial, suspension, or termination of TTD benefits as a result of an employee’s discharge by his employer. Nor does the Act condition TTD benefits on whether there has been “cause” for the employee’s dismissal. Such an inquiry is foreign to the Illinois workers’ compensation system.

They later say:

Whether an employee has been discharged for a valid cause, or whether the discharge violates some public policy, are matters foreign to workers’ compensation cases. An injured employee’s entitlement to TTD benefits is a completely separate issue and may not be conditioned on the propriety of the discharge.

Well, now. When the injured employee is released to light work, thousands of prior Illinois WC decisions at every level indicate benefits may be suspended if the employee refuses work within the physical restrictions prescribed by a doctor. You may note that language is lifted from the first box quote above where the court cites both Hartlien and Hayden. We assure you the language in the second sentence of this paragraph is “foreign” to our Act because it comes solely from judicial rulings—the specific language is not contained in any provision of the Illinois Workers’ Compensation Act. It clearly isn’t contained in 820 ILCS 305/8(d) because TTD benefits are outlined in 820 ILCS 305/8(b).

Lots of legal concepts that we all debate every day at the IWCC are arguably “foreign” to the Act. For one simple example, you may note there is no provision of the Act which specifically allows Arbitrators to evaluate permanent disability and their actions to do so are arguably “foreign” to the Act; in most states evaluation of permanent disability is done only by doctors. We are fairly confident we aren’t going to see lots more decisions from reviewing courts that continue to debate what is “foreign” versus what is “domestic” or clearly outlined in Illinois workers’ compensation law.

Prior to the issuance of Interstate Scaffolding on January 22, 2010, most folks in our industry felt the worker was “refusing work” when he/she did something dopey and got fired for a bona fide reason while still being treated but on full or light work. We think the reason the issue never was litigated is the claimant side of the bar agreed with that approach.

So Waddawedonow?

Well, we sometimes feel you have to see what will ‘stick’ in this industry and what won’t. We want our readers to understand a couple of things. First, in our view, only the forces of the Illinois Trial Lawyers Ass’n have the pull to get the current Illinois Supreme Court to take on a workers’ comp dispute over a measly $5,000.00 and then obtain a majority decision that is completely galling to all employers across the country. That issue by itself is cause for concern; please remember the majority of the members of this Court are currently up for re-election. The Illinois citizenry and voters have to carefully weigh whether we want to continue to insult existing and potential employers when our state is struggling in the worst economy of our lifetimes.

Second, we have no idea if the Supreme Court has killed light duty—our concern is what to do if claimant’s counsels become wily and tell their clients to start pulling shenanigans to get fired while on light work to insure they get TTD and maybe qualify for very lucrative wage loss benefits. Our approach is to continue to follow the quote above that continues to be good law and solid advice for all risk, insurance, safety and benefits folks to remember: “Benefits may also be suspended or terminated if the employee refuses work falling within the physical restrictions prescribed by his doctor.” The question is will Arbitrators and the Commission truly view an employee’s actions in derogation of their right to work at full or light duty while still treating to be a refusal to work.

Third, if you have to fire an injured worker on light duty for even the most bona fide reason, immediately consider either an informal or formal labor market survey to document work available within their restrictions. An informal labor market survey is one you do on www.monster.com or another similar web site or three. A formal LMS is performed by a certified vocational counselor with concomitant expense. We hope either one may protect you from penalties or fees in any future dispute that becomes litigated in the fashion of Interstate Scaffolding. Please understand we are not confident about anything in the Illinois WC matrix right now and this is one approach—let us know if you have any others.

Fourth, whatever we do, start driving MMI to avoid this debate. How do you drive MMI? We still feel the best and cheapest way is UR or utilization review. Other tools are independent medical exams or setting up your own workers’ comp doctor’s network that can be done in a number of ways. If you have interest in these concepts, send a reply.

Finally, try like the dickens to avoid this whole mess by simply settling disputed claims and/or avoiding workers’ comp litigation to begin with—we hate to say it but the Commission and reviewing courts continue to be mildly to wildly unfriendly to the needs and concerns of Illinois business. We are certain you don’t want to fire an injured worker on light duty for committing a crime and then have to restart TTD. If your injured workers don’t come to the Commission and courts, they aren’t going to hear about these concepts from anyone. If you want our thoughts and ideas on how to minimize workers’ comp litigation, send a reply.

As always please send your thoughts and comments or post them on our award-winning blog.

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.