1-21-2019; How Illinois WC Benefits are Delivered and the Role of the IWCC; Kevin Boyle Offers Free IN WC Rate Sheets for 2019 and more

Synopsis: How Illinois WC Benefits are Delivered and the Role of the IWCC.

Editor’s comment: Unlike many states, the delivery of benefits in Illinois workers’ compensation could take place without the Illinois Workers’ Compensation Commission having any real role in the process—the system is supposedly “self-effectuating” but can be so complicated lawyers are usually involved. The Workers’ Compensation Commission’s current role is to resolve conflicts via litigation, but it does not actively manage or supervise benefit delivery unless someone raises a dispute.

IL Workers’ Compensation Commission’s powers and authority

We like to point out at this early stage the IL Workers’ Compensation Commission is an administrative agency that ostensibly has only those powers given it by our legislature and the Rules Governing Practice, which is also created by an open hearing process and limited in scope. In recent years, we feel the IWCC has expanded its decision-making to claims or WC coverage outside the traditional scope of our WC Act. In other states, the Circuit Courts hear workers’ compensation matters and, in those settings, the judges may have plenary power over the participants on both sides. That doesn’t happen in Illinois’s WC model.

In Illinois, administrators have limitations on their powers and, in limited instances, the aggrieved parties have to go to the Circuit Courts for complete relief. To name a few examples, Illinois Arbitrators are not accorded the power to enforce subpoenas, enter judgments on their awards or hold the parties in contempt as a Circuit Court judge has the power to do. In each instance, the Illinois Workers’ Compensation Act and Rules require the parties to file a separate lawsuit in the circuit courts to get such relief, consistent with the clear statutory requirements. Very few practitioners know how to do this.

We want to make it clear: if an Arbitrator acts without statutory authority to act, their actions are arguably void and may be collaterally attacked in the Circuit Courts at any time.

The Ostensibly Minimalist Role of the Illinois Workers’ Compensation Commission

When the unforeseen occurs and a worker is injured, Illinois does have two forms that it provides to employers and their insurance carriers or third party administrators called TPA’s to report accidental occurrences. One is the Form 45 or initial report of injury, and the other is the Form 85, the supplementary or final report of injury. What is unusual about these forms is, due in large part to lack of state funding, they are not currently used for any significant statistical or administrative function.

To be more clear, unlike other states, no one currently logs them, nor is there a database which results from the filing of these forms. No IWCC employee generally cross-checks them to insure medical or temporary total disability is being paid on time or in the correct amount. Illinois has moved to allow some carriers and large self-insured companies to perform this routine reporting function electronically. There is no ongoing use of the electronic forms other than to require they be filed.

The delivery system of Illinois workers’ compensation benefits is designed to be self-effectuating—by that we mean the employee is required to demonstrate someone at the employer in a supervisory capacity become aware of the loss within 45 days. When that happens, the Form 45 must be filed at the Workers’ Compensation Commission by the employer, but, as stated above, the Workers’ Compensation Commission will simply file/store this document and will not generally take any action based upon the information outlined on the form. Thereafter, it is contemplated the employer and carrier or TPA will adequately investigate the claim on their own and render a decision with regard to whether WC benefits are owed. If additional time is needed to decide whether benefits are due, the carrier or TPA is supposed to notify the employee in writing of what information is required to render a decision. If the decision is to pay benefits, no one has to be advised of the decision other than the employee; you don’t have to tell the IWCC. If the decision is to deny, there is a rule which requires written notification of denial, but it is often ignored or not widely known.

It is entirely possible to accept a claim, pay medical, temporary disability, and permanent disability, and close the file without notifying the IWCC (other than filing the Form 45). Due to the minimal role of the Commission in active claims management, what may happen at a relatively higher level in Illinois than in most states is litigation. Our  Workers’ Compensation Commission is more like a courthouse for industrial injury claims than an institution which manages compliance, supervises insurance carriers or TPA claims management, as other states do. In an effort to maximize benefits on behalf of claimant and/or due to aggressive petitioners’ lawyers, the ‘typical’ Illinois workers’ compensation claim begins at the IWCC with the filing of an Application for Adjustment of Claim.

The free filing of this single pleading or form by the employee (usually with counsel) is carefully catalogued, indexed, and tracked by the Illinois Workers’ Compensation Commission. The claim is randomly assigned to an arbitrator and will pend for up to three years before either side has to take some significant action to resolve it. Subsequent claims by the same employee against the same employer “shall” be consolidated before the Arbitrator assigned the first such claim. Consolidation of claims means they are tried in order but separately—there is a misconception the consolidated claims become blended. A filed WC claim will appear on a status call every ninety days unless an emergency petition is filed by the employee to accelerate the matter to a more rapid hearing.

Claims typically are filed due to a dispute over medical bills or termination of TTD. These claims may move immediately to a hearing because Illinois allows for two emergency interim petitions, a 19(b) or 19(b-1) petition. These petitions will be discussed in greater detail later in this treatise, but it is safe to say that the resolution of these so-called ‘emergency’ claims will render a binding decision on the issues of jurisdiction, accident, causal connection, notice, medical benefits, and temporary disability. It may therefore be critically important to aggressively defend what is ostensibly an interim petition because many of the major legal and factual issues may be determined as part of the resolution of the emergency 19(b) or 19(b-1) petition, leaving only permanency (i.e., the settlement value of the injury) to be later decided.

WC claims adjusters in and out of Illinois are usually amazed that claims are also regularly filed when all benefits are paid in full and on a timely basis solely to maximize the recovery of permanency. For anyone not familiar with the management of Illinois workers’ compensation claims, AMA Impairment guidelines or “ratings” currently play a growing role in reserving awards or payment of permanency. For accidental injuries after September 1, 2011, ratings “shall” be considered by the IWCC along with other factors. Generally speaking, Illinois permanency awards are significantly higher than the percentages which AMA Impairment guidelines call for in most work injuries.

Permanency in Illinois workers’ compensation is also ostensibly handled by a system similar to that of stare decisis—the IWCC publishes its decisions with regard to permanency to provide guidelines for what they will award in similar injuries. Again, it is felt in some quarters that this leaves the determination of permanency at the whim of the Commission’s current members. In any event, it does require the adjuster to watch Commission decisions and to try to use them as guidelines in dealing with petitioners and employers alike.

Resolution of the claim is typically accomplished by settlement. Year after year, approximately 90% of all Illinois workers’ compensation claims are settled at or during arbitration. In most instances, your focus in managing the claim is to position it to settle. Cases can also be resolved by voluntary dismissal, involuntary dismissal for want of prosecution, or on motion by the arbitrator or Commissioner, decision or award by the arbitrator and the Commission and resolution of the claim on appeal to the circuit, appellate or supreme court.

All rights of a claimant in an Illinois workers’ compensation claim are adjudicated solely by the IWCC or by the passing of the statute of limitations. If you pay benefits and do not have the matter resolved by settlement at the Commission, you usually get ‘credit’ for amounts paid prior to litigation, but the claim remains ‘open’ or viable until the statute of limitations passes.

If an Application for Adjustment of Claim is later filed, it is possible a petitioner could subsequently seek higher benefits and protect his or her right to lifetime related medical benefits at the cost of the employer. For this reason, many claims managers feel it prudent to resolve a claim via a pro se settlement, which is approved by the Commission. In this setting, the arbitrator usually provides an oversight function to insure a petitioner appearing pro se (or without counsel) is accurately advised with regard to their rights and receives a fair amount in settlement of the claim.

Having filed the Application for Adjustment of Claim, the matter is assigned to an arbitrator for hearing. Assuming a settlement does not occur, at some point the matter will have to be presented to the arbitrator for hearing. Prior to that point, pre-trial discovery in Illinois workers’ compensation is very limited.

Have Your Own Accident Reports and Combine with a HIPAA-GINA Compliant Release

Most employers require employees fill out accident reports when an employee is injured. We strongly recommend this practice to our defense clients and do not recommend you rely upon the IL WC Form 45 for accident information. If you get to the employee before he or she gets to counsel, it is possible to obtain a recorded statement. If the employee refuses and the matter becomes litigated, there is no legal device in the IL WC system to force the employee to give a recorded statement. The injured worker does not have to submit to a deposition under oath as they do in some states.

As we will discuss later, you can request medical records with a HIPAA-GINA complaint authorization or by subpoena. Workers’ compensation subpoenas are frequently used inappropriately by some petitioners’ attorneys. If you want my form for your use and/or consideration, send a reply.

The employer has the right, at its expense, to obtain an independent medical examination of petitioner at any time. Again, this will be discussed in more detail at a later time.  Petitioner may rely both on the treating doctors and his own independent medical examiner.

Medical testimony of either a treating physician or independent medical examiner is generally provided to the arbitrator by evidence deposition. It remains an open question as to who has to pay for the depositions of treating physicians. The 2005 changes to the IL WC Act made treating records of treating physicians admissible in the majority of cases.

Medical depositions provide the expert opinions which the arbitrators sometimes rely upon in reaching medical conclusions. There is no requirement for expert medical opinions for the Commission to make a finding on a medical issue, but generally they do review all medical reports or depositions.

The hearing before the arbitrator is generally conducted in a streamlined fashion with the parties stipulating to all factual issues not in dispute. There is a “request for hearing” form that contains those stipulations and which the parties are required to fill out. Failure to stipulate to an undisputed or uncontested matter may result in an award of penalties and attorneys’ fees. Testimony is not taken on issues which are uncontested.

This is a starting point and the devil is in the details. If you have further questions or concerns, send a reply. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Get your handy and updated 2019 Indiana Rate Chart Here. Research and reporting by Kevin Boyle, J.D., KCB&A’s Indiana WC defense team leader and Gene Keefe, J.D.

Editor’s comment: A new year, and our new 2019 Indiana WC Rate Chart is available. You can find it on our website, or if you’d like a laminated hard copy, please email Kevin and he’ll mail you as many as you and your staff need.  Happy New Year!  

Kevin Boyle, Esq., Keefe, Campbell, Biery & Assocs., LLC

885 South College Mall Rd. #222

Bloomington, IN 47401

Direct: 312.662.9899

Alternate: 812.369.7182

Email:  kboyle@keefe-law.com