10-24-2016; Has the IWCC Gotten Even Slower in DWP's?; IL Supreme Court Blocks Amputation Claim Against Former Bridge Owner; Dr. David Fletcher on Physician Dispensing and more

Synopsis: Has One of the United States Slowest WC Systems Gotten Even Slower?

Editor's comment: One constant complaint from every client, adjuster and risk manager across the globe about the IL WC system is how long it takes to get our old claims closed. Right now, there are claims every month that are 5, 10, 15 or more years old with no true movement or action. There are numerous Claimant lawyers who never seem to have have needed medical records or depositions or something ready for their oldest and moldiest claims. Some of the IL WC Arbitrators will put their dukes up and command time schedules—sadly, in our view, some of the IL WC Arbitrators won’t.

So what just happened to make this even worse? Well, last week I was advised the machine that creates notices of dismissal for want of persecution, I mean, prosecution is broken. It seems the IWCC is okay with keeping unneeded workers in satellite offices and lots of other arguable overstaffing but we don’t have time to fix the machine that makes DWP’s final! So what is happening as you read this is claims are getting dismissed but notices aren’t being sent, due to the malfunction. If notices aren’t sent, the claims arguably remain open indefinitely.

Why is that bad? Well, try to imagine 5, 10, 15 year old claims that are getting dismissed because Claimant’s counsel refuses to take any definitive action. Try to further imagine your IL WC defense lawyer or Commission docket clerk is fighting, kicking and screaming at the status call to finally have the Arbitrator assigned appropriately DWP your oldest file. Then try to imagine the “dismissed” claim sits for months or even years awaiting the Rules-required notice of dismissal that actually starts the clock on a timeline for the DWP to become final. Then imagine the notice of DWP never being sent to anyone.

The pertinent IWCC Rule Governing Practice Before the Commission says:

Section 9020.90Petitions to Reinstate

a)         Where a cause has been dismissed from the arbitration call for want of prosecution, the parties shall have 60 days from receipt of the dismissal order to file a petition for reinstatement of the cause onto the arbitration call.  Notices of dismissal shall be sent to the parties.

b)         Petitions to Reinstate must be in writing.  The petition shall set forth the reason the cause was dismissed and the grounds relied upon for reinstatement.  The petition must also set forth the date on which Petitioner will appear before the Arbitrator to present his petition.  A copy of the petition must be served on the other side at the time of filing with the Commission in accordance with the requirements of Section 9020.70.

c)         Petitions to Reinstate shall be docketed, and assigned to and heard by the same Arbitrator to whom the cause was originally assigned.  Both parties must appear at the time and place set for hearing.  Parties will be permitted to present evidence in support of, or in opposition to, the petition.  The Arbitrator shall apply standards of fairness and equity in ruling on the Petition to Reinstate and shall consider the grounds relied on by Petitioner, the objections of Respondent and the precedents set forth in Commission decisions.

Take our word for it, if the requisite notices of dismissal for want of prosecution aren’t sent by the IWCC, this Rule means literally nothing and claims may be “dismissed” and then pend for years and years because without notices there is no finality!

If you are on the defense side of the IL WC matrix, you are paying 100% of the cost of the IWCC. If you care about this sort of issue, please send an email to IWCC Chair Fratianni or the IWCC’s counsel, Ron Rascia and let them know how you feel about it. If you need their contact information, send a reply.

Synopsis: IL Supreme Court Blocks Amputation Claim Against Union Pacific.

Editor's comment: The Illinois Supreme Court restored a ruling in favor of Union Pacific Railroad in a court fight with a worker, employed by a third-party contractor, whose legs were amputated removing and scrapping an abandoned railroad bridge in Chicago, as the court’s majority ruled the IL Appellate Court erroneously overturned the ruling of a Cook County judge who found the railroad owed no duty in this case to the scrap contract worker. 

IL Supreme Court Justice Mary Jane Theis wrote the majority opinion, filed Oct. 20; Chief Justice Rita B. Garman and justices Charles E. Freeman, Robert R. Thomas, Lloyd A. Karmeier and Anne M. Burke concurred. Justice Kilbride dissented.

The accident took place July 31, 2006, during removal of a bridge on Polk Street in Chicago. This happened when a crane operator encountered difficulty lifting a girder, a worker made a cut in a crossbeam to clear the obstruction. The crossbeam snapped, causing a different girder to fall and move a gravel-covered steel plate on the ground, propelling Plaintiff Patrick Joseph Carney forward to slide under the falling girder, unfortunately severing his legs below the knees. On Aug. 8, 2007, Plaintiff Carney who worked for his father’s company, Chicago Explosive Service filed a complaint against scrap contractor Happ’s Inc., and thereafter amended the complaint to add Defendant Union Pacific. Justice Theis’ background notes Carney’s company and Happ’s “had a 20-year business relationship, and Happ had frequently listed Carney’s assistance for bridge removal jobs.” Happ’s, the scrapper, actually bought the old bridges from Union Pacific and contracted to remove, dismantle, scrap and sell them following purchase. From our review, Union Pacific no longer owned the bridge—they simply wanted it removed by the scrapper.

While various third-party claims and counterclaims were filed and settled, the unresolved issue centered on Plaintiff Carney’s allegation Defendant Union Pacific was negligent in knowing about or disclosing the presence of the steel plate. Carney further alleged Union Pacific failed to develop an appropriate demolition plan and to adequately supervise the work, and also said it was negligent in hiring Happ’s. While the case was pending in Cook County Circuit Court, Defendant Union Pacific filed a motion for summary judgment. Though the Circuit Court granted the motion, Carney appealed; the First District Appellate Court reversed that decision. The IL Appellate Court remanded the case for further proceedings. Its ruling allowed that employers typically are not liable for independent contractors, but noted an exception when the employer “retains the control of any part of the work,” and specifically such control was an issue of fact to be determined at trial. 

Union Pacific then appealed to our State’s highest court. In arguing before the IL Supreme Court, Union Pacific said its contract with Happ’s placed supervision of bridge removal with the contractor, and nothing the railroad did before or after the accident returned any part of that control to them. In agreeing with Union Pacific, Justice Theis quoted the contract saying Happ’s, its agents and employees “are not and shall not be considered as employees” of the railroad. Plaintiff Carney facts and arguments in opposition were found by the majority to be provisions of part of the very general and nonspecific rights reserved to anyone who employs any contractor or subcontractor. 

The handling of the steel plate causing injury came down to Union Pacific’s assertion it was not a condition of the land it owned, rather a part of the bridge it sold to Happ’s. Plaintiff and Defendant’s testimony supported this position. Further, Justice Theis wrote for the majority, “the record affirmatively demonstrates (Union Pacific) did not build the bridge, did not possess the plans for the bridge, did not use the bridge, and had no reason to know that the steel floor plate extended several feet into the roadbed.” 

In all matters, the IL Supreme Court found the Circuit Court was correct to grant summary judgment based on the facts and law presented to it. The IL Supreme Court allowed several groups to file amicus curiae briefs in support of Union Pacific: the Illinois Chamber of Commerce, Illinois Construction Industry Committee, and Associated Builders and Contractors; the Associated General Contractors of Illinois; and the Illinois Association of Defense Trial Counsel. It also allowed ITLA or the Illinois Trial Lawyers’ Association to file their brief in support of Carney. 

Justice Kilbride’s dissent asserted the majority overlooked the fact the railroad owned the land in question since 1996 and “was arguably in a better position to know the location of the bridge’s underground steel plate than Happ’s, who acquired the bridge” less than two weeks before the accident. He further asserted “reasonable minds could disagree on whether defendant knew or should have known about the underground steel plate and whether the plate posed an unreasonable risk of harm to the construction workers involved in removing the bridge,” arguing that is enough to render summary judgment inappropriate.

In some ways, the entire IL defense industry remains concerned about the sweeping coverage that ended with the repeal of the IL Structural Work Act many years ago. This ruling confirms that odd legal concept isn’t returning any time soon.

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Synopsis: David J. Fletcher, MD Writes about Physician Dispensing in IL WC.

Editor's comment: We consider Dr. Fletcher one of the top and more controversial medical-legal minds in IL WC. This article is being republished without editing by your editor.

“Physician Dispensing: Take Another Look” David J. Fletcher, MD

Editor’s Note: Physician dispensing for workers’ compensation patients has received close scrutiny in the past several years.  This past week Dr. David Fletcher spoke at the Illinois State Chamber of Commerce 9th annual Workers’ Compensation Symposium at the Lisle Hilton about the issue of physician dispensing programs from the point of view of a practicing physician, who ethically dispenses prescription drugs to injured workers.

There is some movement to out-right ban this practice. House Bill 5751 filed in February 2016 by Jeanne Ives (R-42 Wheaton) aims to amend to the Workers' Compensation Act that no medical provider shall be reimbursed for a supply of prescriptions filled outside of a licensed pharmacy except when there exists no licensed pharmacy within 5 miles of the prescribing physician's practice. Liberty Mutual petitioned the IWCC Medical Fee Advisory Board on 9/12/16 to end the practice of physician dispensing beyond one week after the initial visit.

I believe a ban or restrictions on physician dispensing would spell disaster for Illinois injured workers because a ban would eliminate the tremendous benefits to injured workers, who receive medication at the point of care to ensure compliance. Such a ban would delay necessary treatment and would lead to more cost.  Physician dispensing allows for better patient compliance with the treatment plan because necessary medication is given to the patient 100% of the time (unlike going to the pharmacy where there is a 30% no-fill rate due to various insurance-related hurdles or other hassles). 

Work comp is not like regular healthcare–filling prescriptions is far more difficult. Injured workers do not have a "Workers’ Compensation" insurance card and, therefore, do not readily have access to employer insurance carrier information. Without a claim number and approval from the carrier, often, a pharmacy will not fill an injured worker's prescription, which can take days.  In many cases, especially when pharmaceutical delays are present, the patient does not follow-up in order to fill a prescription, which, a lot of the time, is due to unreliable patient transportation issues of this type of delay, resulting in patient harm and protracted costs.

It needs to be pointed out that physicians do not set the price of medications they dispense (with the exception of compounding drugs which are not subject to a fee schedule and is a separate issue). In November 20, 2012, Illinois changed the reimbursement rules to set the prices for physician-dispensed prescription drugs to the Average Wholesale Price (AWP) of the original drug used in the repackaging process and explicitly require that dispensing physicians provide the National Drug Code (NDC) of the underlying drug.  Maximum reimbursement for drugs dispensed outside of a licensed pharmacy is AWP, plus $4.18 dispensing fee.

There is research that supports of the benefits of MD dispensing driven by physician and patient perceptions of convenience and cost reductions along with enhanced patient adherence to treatment. Future dispensing is likely to increase due to consumers' satisfaction with the point-of-care delivery practice that avoids a separate trip to a pharmacy. Consumer self-reported adverse drug reactions (ADRs) were equivalent between pharmacist- and physician-dispensed drugs, but urgent and emergency clinic ADR consultations were slightly lower with physician dispensing. (Munger et al National evaluation of prescriber drug dispensing. Pharmacotherapy. 2014 Oct;34(10):1012-21).

Despite the convenience and increased patient adherence to treatment with physician dispensed drugs, opposition to MD dispensing has been driven bysome research studies on physician practices with similar incentives, such as self-referral for lab tests or imaging, has found that incentives inherent in self-referral leads to over-utilization.  The Workers’ Compensation Research Institute (WCRI) has provided several studies on physician dispensing, including the recently publishedJuly 2016 WCRI study “Monitoring Illinois Reforms on Physician Dispensing” (Editor’s note Dr. Fletcher was a peer reviewer on this study).

According to WCRI (which roughly analyzes half of the WC claims in Illinois focusing on claims with more than 7 days lost time), physicians dispensed 42 percent of all prescriptions in 2014 Q1, a drop from 52 percent in the pre-reform quarter 2012 Q3. Despite the decreased frequency of physician dispensing physicians’ cost share increased slightly from 57 percent in 2012Q3 to 61 percent in 2014Q1. This appears to have been driven by the significant increase in the price per pill for physician-dispensed prescriptions because of the emergence of three new different strength products (150 mg Tramadol extended release, 2.5/325 mg hydrocodone-acetaminophen, and 7.5 cyclobenzaprine HCL) that skirt around the reforms put in place in November 2012.

According to the July 2016 WCRI study, dispensed prescriptions for cyclobenzaprine HCL, hydrocodone-acetaminophen, and tramadol extended release represented 26 percent of all physician-dispensed prescriptions, increased substantially after the 2012reform, due to more frequent physician dispensing of higher-priced new strengths. These new strengths were not seen among pharmacy-dispensed prescriptions

10 mg Cyclobenzaprine HCL (a muscle relaxer with a brand name of Flexeril commonly prescribed at 10 mg dose strength that accounted for 95% of all Cyclobenzaprine dispensed scripts prior to reform) was a $1.72 per pill before the 2012 reforms and after the November 2012 reform was $1.25 per pill.  Yet, the emergence of a new dose strength of Cyclobenzaprine at 7.5mg that physicians were reimbursed $3.86 per pill the number of prescriptions dispensed at the new dose rose to 22% of scripts dispensed and 10 mg strength Cyclobenzaprine scripts dropped to 65% of physician dispended.

However, not all physicians are motivated by financial incentive as WCRI pointed out in July 2016 that “Evidence in the data suggests that some physicians dispensed drugs and were paid prices that were similar or lower than those paid to pharmacies. This implies not all physician-dispensers are motivated by the financial incentives embedded in the higher prices of physician dispensed drugs. Some of them may dispense drugs for the convenience of the patients.”

SafeWorks has a 13 generic drugs in our inventory that represents 85% of the prescriptions that we write or fill for injured workers.  We don’t prescribe the new dosages. There is no clinical reason for a physician to prescribe these new dosages other than to make more money. We maintain a close relationship with the patient and we require narcotic contracts and enforce these narcotic contracts which helps curb substance abuse and diversion.  

As opposed to attacking the entire physician dispensing system, specific attention needs to be focused on exposing physicians who have transitioned to the new drug formulations (Ultram ER 150 mg, HC 2.5 mg, etc.) for the specific purpose of being able to price-gouge I have urged the Illinois State Medical Society take a leadership role in changing physicians. UtilizationReview (UR) of using these new strengths can help change physician behavior as well as the new capability of the Illinois Prescription Monitoring (PMP) that can track physicians who prescribe these higher-priced new dosages for profit motive. This new way to monitor physician prescribingbehavior that includes the ability todo peer reviews on physicians will help change behavior.  I also know that many petitioner attorneys have started to put pressure on the physicians who prescribe the high prescribed dispense drugs to stop this behavior because they are having problems settling cases.

Contact Dr. Fletcher with your thoughts at:

David J. Fletcher - MD, MPH
Owner & CEO, SafeWorks Illinois

T: 217-356-6150 ext 2005 | M: 217-855-0979
E: dfletcher@safeworksillinois.com
A: 1806 N Market St, Champaign IL