1-25-2021; IL WC's Best Remaining Defense Tools; How About a Webinar or Zoom Meeting to Learn WC?

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Synopsis: Causal Connection and Utilization Review—IL WC’s Best Remaining Defense Tools.

 

Editor’s comment: With the issuance of the IL Supreme Court’s ruling in McAllister v. IWCC, the playing field in IL WC has changed. For the first time in Illinois history, actions of daily life may now be termed work-related “accidents.” We feel there are some instances where something might go wrong at work where an Arbitrator and Commission panel will deny claims based on an accident dispute. But to the extent standing up and sitting down and bending over are now potentially “accidents,” that defense is greatly limited. We have heard many leaders of the Petitioner/Claimant attorneys assert they want to have a litigation system to resolve WC claims in this State. The defense team at KCB&A wants everyone on all sides to remember—you can’t and won’t have a litigation system that is a sham. The defense side of the matrix has to have actual defenses. If you strip away all defenses and McAllister clearly strips away part of the accident defense, the carriers and self-insured employers are not going to let their workers go to attorneys; they are just going to pay and pay some more.

 

How in Tarnation did that happen?

   

Well, I am telling anyone and everyone who will listen, Illinois is now a one-party State. The IL House and Senate have “super-majorities” that don’t require them to even nod to the other side—the liberal party in power controls appointments, budgets, legislation and rules. Almost all of our judiciary is liberal and pro-Plaintiff. Our Governor is an unusual man who just spent over $60 million of his own money to try to sock us with a gigantic tax hike.

   

As Illinois became more and more dominated by this pro-Plaintiff political power, our legislators have spent and borrowed and spent some more. As we see this political party in Illinois and across the U.S., they are:

  • Trying to control the composition of corporate boards;

  • Demanding the “wealthy” pay the lion’s share of the cost of government--a cost they continue to increase;

  • Furious to see valid tax deductions and credits in the U.S. and State Tax Codes that allow businesses to take deductions, even for great U.S. jobs-building reasons and;

  • Treating businesses as somehow inherently evil to require sometimes bizarre and punitive anti-business penalties, shocking indefensible pro-plaintiff legislative schemes and criminal prosecutions.

The only concepts that slow this movement down are public opinion and common sense. I am not seeing a lot of common sense from our legislators in Springfield. And as I just reported, the legislators are trying like crazy to hold anti-business legislation under wraps to suddenly disclose it and call for votes at the last possible minute of each session. I consider such actions to be arguably devious.

 

So What Does This Have to do with Work Comp in Illinois?

 

Well, the policies outlined above send a very clear message as to who is in control and where we are headed. The theme is “Businesses are bad and the government will fix it”. In this vein, the workers’ compensation business will move with the glacier that is Illinois Government/power. Now, if you have someone who is claiming they injured themselves doing something truly “human,” let’s say reaching for a pen, and they go to the doctor to learn they need a gigantic rotator cuff repair and tenodesis in their shoulder, you have a classic claim where the defense isn’t going to be “accident.” Following McAllister, reaching for a pen may almost certainly be termed an “accident,” as it is arguably part of the job duties for the average office worker, waiter/waitress/dock supervisor or evil defense lawyer. However, it is also one of the more common and innocuous activities of daily life. Arguably, it is not different from reaching for that cup of coffee next to the pen. Nevertheless, now under McAllister, reaching for that pen to complete a work task is now, at least in theory, an action that may be considered an “accident” in Illinois.

   

However, you don’t tear your rotator cuff in a significant and striking way by the normal action of simply reaching for a pen. Your defense is no longer against “accident,” because of the McAllister ruling. Now, the best defense for such a claim is going to be “causal connection” where you get a solid defense IME expert to opine the actions described don’t match the alleged outcome. Causal connection is, to some extent, simple common sense in the medical field. You need a doctor who knows the ins and outs of the human body and how it works and, also as important, how it typically fails.

 

Two issues to consider—first and foremost, you have investigate, investigate and investigate some more. Make sure you have an incident reporting form and someone insures the line employees and supervisors are fully cooperative in reporting what happened. If you don’t have a satisfactory incident reporting form, send a reply and I will relay a sample form for your consideration. But if you aren’t investigating properly and documenting the story, you are like a ship in a storm without a rudder—things will change rapidly. The version of the “accident” often evolves during litigation in way unfavorable for employers. Therefore, locking in the specific history of events, in the words of the claimant, is very important.

 

Second, please also remember the odd concept of the “eggshell plaintiff.” If someone has a body that is prone to fail, the odd concept of eggshell plaintiff holds the employer takes the human as you hire him/her. You will note this isn’t in the IL WC Act or Rules. I don’t even feel it is in the common law rules—it is an undefined fantasy that you may hear from liberal attorneys and hearing officers. But for the vast majority of folks, the actions and outcomes truly have to match. I don’t feel most Illinois WC Arbitrators are going to be comfortable finding a giant rotator cuff tear is going to be causally related to reaching for a pen, even if McAllister makes that innocuous action an “accident.”

 

If you need a solid expert on any IL WC claim to analyze and consider causal connection disputes, send a reply and I will forward the top doctors and surgeons across our State and the five States KCB&A covers.

   

Why Do You Recommend UR, Gene?

 

So, with more and more everyday activities expected to be considered “accidents”, then next line of defense is controlling the quality and necessity of care. UR = Utilization review, is an important part of this process. Please note UR started about fifty or more years ago and it truly works in the group health arena to block overtreatment. Doctors and other healthcare givers hate it to some extent and will whine when you bring it up but it works quietly and somewhat smoothly. My problem is getting WC adjusters and claims managers to require it and use it regularly.

 

I feel UR is easy, relatively inexpensive and a great way to control medical care and rein in rising costs. In my practice and with respect to our great clients, it is my reasoned legal impression, the WC claims industry is still struggling to bring UR to the level it should be at. Please note in this liberal State, a UR denial has presumptive value in the IL WC Act—the injured worker or their attorney has to rebut the presumption of a UR non-certification of continued care or a proposed surgery. The presumption doesn’t exist until UR is used!

 

I feel any Claimant who is treating more than ninety days after a work-related injury should have all aspects of their medical claim move into UR with uniform regularity. All surgeries and PT should be directed to a UR nurse/doc for approval and/or non-cert. Pay for what UR approves and deny what UR doesn’t certify. Please also note Doctors/Hospitals and other care-givers are used to UR when someone is being treated under group coverage by BC/BS or other insurers. Doctors and hospitals regularly battle with the UR opinions but they know if they lose the fight over certification, they aren’t going to be paid. Only the most aggressive and questionable medical care-givers will proceed with care when they are facing UR non-certification. The non-certification will at least pause and possibly nullify the questionable care.

   

In my view, this has to be in every IL WC claims adjusters’ quiver and it can and should be utilized in a uniform and global fashion. I appreciate your thoughts and comments. Please post them on our award-winning blog.

 

 

Synopsis: What Do You Need to Know About Workers’ Comp? How about a Webinar or Zoom Meeting to Learn!!

 

Editor’s comment: The defense team at KCB&A is ready, willing and able to provide you whatever educational or training webinars you and your risk or claims team may need. We are the only Illinois defense firm that has several adjunct professors of work comp law and practice. We know the IL WC Act and Rules Governing Practice backwards and forwards. You can’t get a better source for training and updates than our on-line teaching. We are happy to tailor the training to your management needs and goals.

 

A few of the topics we can and will cover at your request include:

 

  • The Demarcation of When an Incident is Workers’ Comp v. General Liability

  • Jurisdiction—When is an incident covered by the laws of the U.S. Government or one or more States’ WC systems.

  • Accident or Incident that Arises Out Of or Occurs In the Court of Employ.

  • How to best accept an Incident as covered by WC and/or how to best fight/dispute WC coverage.

  • Causal Connection—when is the incident the “cause” of temporary or permanent disability.

  • Medical bill payment and processing.

  • How to best dispute or non-certify medical care or over-treatment.

  • Calculating the Average Weekly Wage with analysis of maximums and minimums.

  • Handling and Adjusting Amputation losses on a PDQ basis to include OSHA concerns.

  • Temporary Total Disability—understanding waiting periods and how to calculate and pay TTD or other similar benefits.

  • When and How to Drive Return to Work with and without asserted restrictions.

  • What to do when a worker dies in your workplace to also cover OSHA concerns.

  • Permanency/Impairment—How to best calculate this benefit with a focus on negotiation techniques that “work” to match your reserves and claim goals.

  • Dealing with Petitions for Penalties and Both Types of IL WC Attorney Fee Petitions.

  • The Three Types of IL Total and Permanent Disability Claims.

 

If you are interested in having a webinar or other online meeting to learn WC and learn some more, send a reply or contact JCampbell@keefe-law.com.