Keefe, Campbell & Associates, LLC

Editor’s comment: As insurance carriers and TPA’s struggle to control costs for their accounts, they are pushing the responsibility to set and handle independent medical exams to their adjusters. We also note busy adjusters are doing less and less accident investigation. In major claims with six-figure exposure, it is almost negligent not to get

• Web-cam interviews or, at a minimum, handwritten statements from claimants;
• Web-cam interviews or handwritten statements from witnesses and supervisors;
• Security camera videotape or DVD’s where available;
• Documentation of any nature that confirms or contradicts the claim of accidental injury; and
• Matching medical histories.

The initial goal of all such investigation is authentication. If red flags arise, you then should ramp up the investigation to get all the defense evidence possible.

We feel there is a natural reluctance in the industry to use defense counsels at most stages of working cases up for hearing. We consider that penny-wise and pound-foolish when you see lots of issues come out of the initial analysis and evidence. When you see question after question arise, we feel solid risk managers at least seek a thumb-nail view from your defense team about the weight and trial value of your defense case-in-chief.

When you start to cross from the initial accident investigation to medical-legal issues, it is again important to seek out advice and counsel of solid veteran defense attorneys. Always remember such claims and the dollars to be spent may completely pivot on the IME outcome. In major claims, we recommend claims and risk managers consider having your IME’s guided by veteran Illinois defense lawyers. If you have pending claims with medical-legal issues, we are happy to provide expert guidance to your Illinois claims adjusters to insure you receive authentic and scientifically based outcomes. We do not charge for preliminary advice relating to investigation, setting up defenses and IMEs unless and until we are assigned the file.

What is a “Garbage-in, Garbage-out” IME?

Physicians and surgeons are highly educated professionals. The very best of their profession keep close track of every scientific development and share it with our society. But as scientists, they have limitations. If you ask their professional opinion, they have to rely on the background information provided and can’t speculate. Like a computer, if you put garbage in, you will get garbage back!

We have recently reviewed a number of defense files sent to us with IME opinions finding the conditions were uniformly related to work. In these claims, despite the absence of trauma or precipitating event, we feel an initial assumption was made by the busy adjuster to accept this condition as work related. Once that preliminary assumption was made, the claim was routinely handled so as to make it compensable. A more thorough investigation internally and communication between defense counsel and the claims adjuster may have allowed for the proper denial of ambiguous or questionable claims.

We reviewed a shoulder claim where the IME physician clearly and definitively related the shoulder problem to work. Surgery was felt related. Such a claim has exposure in Illinois from the high five-figures to the low six-figures, assuming there are no permanent restrictions. With permanent restrictions, claim value can reach seven-figures.

The main problem in this claim was how the “defense” (or lack of any defense) to the shoulder claim was established. The independent medical examiner was sent this claimant and advised the patient had shoulder pain “at work.” The examiner was not specifically asked if the pain occurring “at work” was related to or “from” work. As the adjuster didn’t ask the question, the examiner basically didn’t answer it. If you could review the report, we assert the IME was a self-fulfilling prophecy–if you send any Illinois employee to a doctor telling them the patient has “pain at work,” all of the doctors will reply to confirm the pain is related to work. They are even more likely to do so if you then promise to pay the IME doc for surgeries they recommend and later perform.

In the claim in question, we had no idea if the work claimant performed for the employer was “shoulder-intensive” and whether other similarly situated workers commonly reported similar shoulder pain and problems from doing similar tasks. We point out, the vast majority of the time, shoulder pain and problems do not arise from floor-to-waist lifts. Therefore, if the majority of claimant’s job tasks involved minimal lifting or only floor-to-shoulder lifts, many defense IME surgeons may not have related such work to his shoulder problems. In contrast, waist-to-overhead lifting may commonly produce shoulder pain and problems. If claimant routinely lifted significant weight from waist to overhead, the IME physician would probably have related the condition to work. If the worker didn’t perform such lifts, we are fairly confident the IME physician would have not felt the problem was causally connected to work. From our review of the file, we have no idea if the work performed by claimant fit into either category.

In the accident investigation, no effort was made to determine whether claimant had any activities of any kind outside of work that might cause shoulder problems. The employee and his supervisors should have been statementized to see if we could learn anything that might have been helpful. We did not see videotaped or audiotaped statements in the file.

We also noted the IME examiner was not asked to make such inquiries about outside activities. When we set IME’s, we always want the IME doctor to inquire about pertinent activities, in this case related to the shoulder that a claimant participates in outside of work. Sometimes claimants lie to IME doctors but sometimes claimants will tell the truth—either way, it is worth simply and innocently asking.

Based on the information the IME doc was provided, he recorded shoulder pain and recommended surgery to relieve it. Thereafter, it will be virtually impossible to refute the determination by the defense IME doctor that surgery was reasonable and/or necessary. At the Illinois Commission, IME doctors are implicitly viewed as “agent’s of Respondent” when the employer or carrier/TPA selects them and later certifies care recommended by them.

If you are going to spend thousands on an IME, do the homework for the examiner to give them what they need to opine fairly

In defending similar claims in the future, we would not have not have approached the IME in that fashion. To dispute such a claim, it would be critically important to find a physician who specializes in evaluation of shoulder claims. We are happy to make similar recommendations—send us an email about the body part and type of IME evaluator needed. We don’t charge for the recommendation.

As part of the preparation for an IME, we would provide OSHA job descriptions or job videotapes so the IME physician can actually see what specific job tasks might or might not produce shoulder dysfunction. Without such evidence to support his/her opinions, any determination on causal connection would be speculation. But remember, bad speculation doesn’t help the defense side in this liberal state.

From the perspective of the medical examiners who read this article, we suggest you avoid the “Garbage-in, Garbage-out” exam because you may come under scrutiny when the adjuster isn’t happy with your opinion that is based on limited information. Be sure to warn the adjuster or person who sends the examinee to your office that you need evidence sufficient to scientifically confirm or reject causal connection. We appreciate your thoughts and comments.

Editor’s Comment: Illinois employers should be aware of this important decision and adjust your HR/workers’ compensation policies accordingly. When mired in a fight between a treating doctor’s work restriction and an IME work release, an employer may suspend TTD benefits in good faith based on the IME opinion. However, employers should not go so far as to terminate the employee for refusing to follow the IME recommendation. This can be viewed as an adverse employment action and expose your company to liability for retaliatory discharge.

In Grabs and Francek v. Safeway, Inc. and Dominick’s Finer Foods, LLC, (No. 1-08-3007 June 17, 2009), our Appellate Court addressed a certified question on an interlocutory appeal on this narrow issue of alleged retaliatory discharge. Plaintiffs Fred W. Grabs and Rudolph Francek filed a joint complaint alleging Defendant Dominick’s Finer Foods terminated them in retaliation for filing workers’ compensation claims. Defendant responded to aver Plaintiffs had been terminated for violating a neutral attendance policy when they missed three consecutive days of work subsequent to being advised to return to work pursuant the opinions given by Defendant’s IME.

By way of background, Grabs’ claim was initially accepted and all medical bills and TTD were paid by Defendant. Pursuant to Section 12 of the Illinois Workers Compensation Act, Plaintiff presented for an IME with Dr. Bernstein, a physician chosen by Defendant. Dr. Bernstein determined Plaintiff Grabs could return to work and further Grabs’ injury was not work-related. Accordingly, Grabs was advised to return to work. He refused, citing treating doctor’s orders, and was terminated after missing three days without calling in.

Similarly, Francek’s claim was disputed from the outset and he presented for an IME with Dr. Papierski who determined his injury was not work-related and he could return to work without restrictions. Francek also chose to follow the advice of his treating physician and was terminated after the third “no call/no show”. Both claims came before the IWCC on 19(b) Motions and in both cases, the Arbitrator sided with Plaintiffs’ personal physicians finding both injuries arose out of and in the course of their employment with Defendant. Further, the Arbitrator found Plaintiffs were exercising their rights pursuant section 8(a) of the Illinois Workers’ Compensation Act when they did not return to work at their treating physicians’ advice.

With regard to the civil action for retaliatory discharge, the Circuit Court granted Plaintiff’s motion for summary judgment. The Circuit Court then granted Defendant’s motion for interlocutory appeal on the following question:

Does the Workers’ Compensation Act give the IWCC the exclusive authority to determine whether an injured employee may return to work, such that when an employer is faced with conflicting medical opinions from the employee’s doctor and the employer’s IME, the employer may not rely upon the IME opinion to terminate the employee under the employer’s attendance policy for failing to return to work, before the Commission has adjudicated the pending dispute over the conflicting medical opinions?

In a well-reasoned decision, the Appellate Court held when an employer is faced with conflicting medical opinions from the employee’s doctor and the employer’s IME, an employer may not rely solely on an IME in terminating an employee for failing to return to work. However, the Appellate Court stopped short of finding that any such fact pattern was per se retaliatory discharge, as was argued by Plaintiff. Rather, the Court was careful to explain an employee must meet his burden of proof to show his discharge was causally related to the exercise of his rights under the Act. The Circuit Court went too far by applying a per se rule of retaliatory discharge, rather than affording Defendants the opportunity to outline a valid, non-pretextual basis for termination.

In other words, the mere coincidence of a termination in the midst of a workers’ compensation dispute will not trigger any presumption of wrongful discharge; the terminated worker must still meet his standard of proof for all elements of a retaliatory discharge claim. The Court explained an employee who elects benefits under the Act may be terminated, however, the decision to terminate must be wholly unrelated to the employee’s claim for benefits under the Act, citing the 1998 decision of Clark v. Owens-Brockway Glass Container, Inc., 297 Ill.App.3d 694.

From the perspective of Illinois employers, this is a liberal decision that focuses on the Workers’ Compensation Commission as the source of implicitly determining when and how an employee can be terminated. We consider that judicial legislation of the worst sort. We don’t feel the Commission has or should be provided such power—it isn’t in the enabling legislation that created the Commission. The legislature could have addressed the matter and didn’t. We also feel this ruling would allow an injured worker to remain off work indefinitely by stalling the hearing at the IWCC to maintain their right to continued health care, pension and other employee benefits. Again, the Act and Rules don’t provide such rights.

This article was drafted and researched by John P. Campbell, Jr., J.D. Please feel free to reply with your thoughts and comments.

Editor’s comment: We note IME charges in Illinois are really starting to escalate—the costs have gone from $300-500 for a simple exam and report to $1,500-2,300. It is getting to the point where the expense of the IME is becoming one of the major costs in smaller claims. What we are also starting to see are lots and lots of IME services, all of who will handle all aspects of the IME process from start to finish. We also note some insurance carriers and TPA’s sign on to exclusive contracts with IME services.

Our understanding is some IME doctors are charging more money for the exams but may be paying some of it back to the IME services. In turn, the services may be quietly passing some of the monies “earned” back to the carriers/TPAs that use them. If this is accurate, we feel there may be something of a conflict coming in the industry with all the IME services who are charging “hidden fees” to simply refer folks to IME doctors.

Here is how we understand this may work:

1. Dr. Example wants to get more IME’s and signs up with XYZ IME Services, Inc.
2. XYZ has an agreement with Sample Insurance and its TPA.
3. Sample has a claim for ABC Company, one of its accounts. The claim needs an IME.
4. Rather than just call Dr. Example and set the IME themselves, they call XYZ.
5. XYZ charges $1,200 for the IME and keeps $400 for its “services” that it splits with Sample Insurance for using XYZ’s services.
6. Dr. Example gets $800 for doing the IME.
7. No one tells ABC Company the actual cost of the IME is $800 and they are paying a hidden “commission” of $400.

If the higher IME fees are being split between the carrier and “service” and quietly passed along to the account, there may be a potential for the sort of problems former Governor of New York, Eliot Spitzer found when he exposed questionable tactics being used by the insurance industry to charge hidden commissions and pass along costs without telling the insurance accounts. If what the IME situation we outline above is accurate, we understand no one appears to be telling the businesses they are paying the insurance carrier and IME service hefty additional fees for simply selecting and calling a doctor and setting an appointment.

The other potential problem is insurance carriers and TPA’s in this situation will never try to control or push IME costs down because the carriers and IME doctors may be in on this deal together. One other facet of the situation is no one is ever going to use what we consider a much better way to control medical expense—utilization review.

Please understand all the names listed in the example above are purely fictitious. Please don’t hesitate to forward your thoughts and comments.

Editor’s comment: We were asked this question by a veteran adjuster who is learning claims practice in Illinois but is not familiar with the nuances of Illinois workers’ compensation and our unusual system. Our answer to all three questions above is yes, you can all direct medical care to the extent you can. In a world where it is legal to do things that aren’t illegal, there is no provision of the Rules or Act that prohibit or even discourage such practices.

When we say “direct” medical care, please understand you can legally recommend, advocate, propose, cajole, push, press, encourage or endorse physicians/surgeons. But, if the employee doesn’t accept your recommendations, there is nothing you can do about their eventual choice of care in Illinois. But the adjuster is typically the first place an injured worker will go to for advice on a different treater or second opinion. Please don’t deflect that recommendation to anyone else—be ready with a list of preferred providers who have great resumes and experience dealing with similar claims. If you need a list, send a reply.

Our client was advised by a nurse case manager the nurse case manager couldn’t make recommendations for treatment because they would have malpractice liability to do so. To avoid such liability, they typically advised against making any recommendations, ever. When pressured, the nurse case manager would provide not one but recommendations for at least three different treaters. The nurse case manager also feels it important to advise all claimants of their right to select “two doctors” of their own choosing.

Ah, well. Our advice to all of our readers who are claims adjusters is to “take advantage of your advantage.” Direct treatment whenever and wherever you can. The practice should work the vast majority of the time. When and if an injured worker looks to you for advice, give them the best advice possible and direct them to the very best medical consultants you know.

We have never heard of a single lawsuit in Illinois or anywhere in which anyone sued someone for recommending a doctor. If the doctor commits malpractice, the injured worker may or may not sue the doctor but we have no knowledge of anyone suing someone who recommended that physician or surgeon. If anyone out there has heard of such a suit, please send a reply with details.

And we don’t agree at all with telling an injured worker of three different recommendations for doctors to let them blindly pick—if someone did that for us, we would question how good any of the recommended doctors might be. We recommend making up your mind and sending them to the best of the three.

We also consider it a very bad idea to feel an insurance adjuster or nurse case manager has an affirmative duty to tell someone of their right to go to “two doctors” or five hundred doctors if they follow the arcane Illinois rules. Trust us; this rule is very hard for even veteran attorneys to understand. Don’t go there and give free and unnecessary legal advice. Don’t lie to any one but never, ever tell the injured worker they have a right to a 2d or 3d or 50^th opinion of their own choosing. After you discuss and agree there is a problem and a need for another opinion, tell the injured worker if they want a second opinion you will set it up for them.

Are you going to have to pay for medical care for referrals to your recommended physicians? As a general rule, the answer is yes. It is very difficult to “overrule” your choice of doctors. There is a recent ruling which indicates such physicians are not your “agent” but you are almost always going to be required to pay for such care. If you don’t like the care being provided or disagree with your recommended physician, the best cure is to stop recommending them.

Please understand just about every claimant lawyer in this state tries to get claimants to go to doctors of the attorney’s choosing. Some of the attorneys look for doctors who will cut and cut and keep everyone off work as long as they can. We assure all of you the attorneys could care less about remote malpractice liability for referring someone to a physician.

We also assure all of you part of the job of an adjuster is to use UR and IME’s to stop possible overtreatment. If you think we are kidding, you haven’t been working Illinois claims long enough. The best tool to rein in the “two doctor” rule is utilization review. If you need recommendations on the top UR providers in this state, send a reply.

Please reply to give us your thoughts and comments on directing claimants to preferred providers for ongoing care or second opinions.