10-2-2017; IL WC "Video Replay" Reversed; Claimants and Claimant Attorneys--Exercise Caution Riding on Zombie Dragons and more
/Synopsis: Work Comp “Video Replay” Reversed!!! Another WC Claim Gets Clawed Through IL WC’s “Corrected Decision” Grinder.
Editor’s comment: The purpose of Section 19(f) of the IL WC Act is to basically allow the equivalent of the NFL or Major League Baseball’s video replay in relation to decisions of the IL WC Arbitrators or Commission panels. If they obviously mess something up via improper calculation or other mistake, either party can file a “Petition to Correct Clerical Error” to have a decision recalled and corrected, similar to correction of a call of an umpire or referee. Similar to instant replay review, the IWCC version is limited to technical/mathematical but not substantive errors.
What I call the “Corrected Decision” Grinder is this “replay concept” effectively cancels the first ruling, as if It never happened. In my view, the IWCC procedure is mildly confusing and someone, someday might want to make it simpler for everyone in the system to understand and/or implement. If you file a 19(f) Petition, you can’t motion it for hearing--the matter sits for an undetermined period until someone from the IWCC considers it. At some random and unstated time that might be a day or a week or months and months, someone at the IWCC will issue either a
· Denial of the Petition to Correct or
· Order recalling the decision with the mistake in it.
If they issue a denial of a Petition to Correct an Arbitrator’s ruling, you have 30 days to file an appeal to the IWCC. In this instance, you are appealing the initial decision of the Arbitrator.
If they issue an order recalling the decision of an Arbitrator’s ruling, you are supposed to physically return the original decision of the Arbitrator, basically making it disappear—POOF! Then you need to wait an undetermined amount of time for the new and corrected decision to be filed/served on you. At that time, if you remain unhappy with the ruling, you must appeal the corrected ruling and ignore the first ruling.
In Eddards v. IWCC, No. 3-15-0757WC, issued 09/28/2017, Claimant filed an IL WC claim, asserting she injured her shoulder working for a nursing home. Four years ago, in September 2013, Arbitrator Dollison found Claimant suffered a compensable injury. The Arbitrator awarded Claimant six weeks of temporary total disability benefits and 12.65% BAW for permanent partial disability benefits, along with $34,177.75 for medical expenses.
The employer filed a motion to recall the Arbitrator’s decision to correct a clerical error. The Arbitrator recalled the initial decision and issued a corrected decision in October 2013, and the employer filed a petition for review of the Arbitrator’s decision in November 2013. It appears someone put the date of the first or recalled decision on the Petition for Review—OOPS!
The Illinois Workers’ Compensation Commission reversed the Arbitrator, finding Claimant had not suffered a compensable work-related injury. After the Circuit Court of La Salle County confirmed the Commission’s decision, Claimant sought review by the Appellate Court, WC Division.
The Appellate Court, WC Division reversed the denial and reinstated the Arbitrator’s award. Their ruling explained an IL WC arbitrator’s decision becomes final unless a petition for review is filed within 30 days after the party’s receipt of the decision.
In this claim, the employer timely filed a petition for review within 30 days of receipt of Arbitrator Dollison’s corrected decision, but the Petition mistakenly requested review of the original decision, listing the date of the original but later vacated decision.
The Appellate ruling confirms the Arbitrator’s original decision was not final or appealable, since it was recalled and corrected, and because the employer never specifically requested review of the corrected decision, the Court ruled the corrected decision became final. The decision indicates Illinois WC law “requires strict compliance with the requirements for filing a petition for review of the arbitrator’s decision to the commission,” so the employer’s failure to seek review of the corrected decision within 30 days left the Commission without jurisdiction to review the finding of compensability.
The Court also asserted it could not treat the employer’s mistake as “a minor mistake or inadvertence when writing or when copying something on the record,” as the employer’s minor typographic mistake supposedly failed to provide Claimant or the Commission panel with requisite notice of which decision was being appealed. With respect to the members of our Appellate Court, I consider this statement/position to be something of a stretch—I am sure counsel for Claimant was fully on notice of what was being appealed and I am sure all issues were fully briefed and reviewed before the IWCC panel, prior to the panel making its ruling.
As the IL WC Commission lacked subject matter jurisdiction over the appeal, the Appellate Court, WC Division said the Circuit Court also lacked such jurisdiction, so neither the Commission decision nor the Circuit court decision could stand and both were vacated.
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Synopsis: When Riding a Zombie Dragon, Try Not to Get Eaten--IL Worker Hit With $100K “Balance Bill” Medical Bill Due to Failing to Respond to Suit.
Editor’s comment: As part of making a PI or WC claim, some Claimants and their attorneys encourage high medical bills to make “special damages” respectively high for settlements—I feel that strategy, like the zombie dragon from Game of Thrones, may come back to bite you. We assure our readers and I am sure you can tell if you read this decision, it is my opinion this medical/surgical provider is aggressive about billing and then uncompromising about collecting their bills.
We recently reviewed a ruling in which the Illinois Appellate Court ordered an injured worker to pay more than four times the IL WC Medical Fee Schedule value for surgical services because he failed to respond to a lawsuit from a medical provider while he pursued resolution of a third-party lawsuit. One Golden Rule to tell your kids, never ignore litigation against you.
If you review the decision in Illinois Neurospine Institute v. Carson, you will note how forceful and assertive IL WC medical billers can be. This unusual outcome started began when a merchandiser for Coca-Cola, slipped and fell at a grocery store while at work on Dec. 21, 2010. It appears clear he herniated a disc as part of the slip/fall. He filed a workers' compensation claim on Feb. 1, 2011. He also started treating with Dr. Ronald Michael at the Illinois Neurospine Institute. Dr. Michael performed successful spine surgery on Claimant on March 24, 2012.
Claimant continued treating with Dr. Michael for more than a year until May 8, 2013, racking up a total medical/surgical/rehab bill of $124,743.71.
Shortly before Claimant's surgery and extensive post-surgical care, Illinois Neurospine Institute and Dr. Michael gave the patient a "financial responsibility statement." It filed the document on Feb. 9, 2012, with Claimant's name handwritten on the line labeled "Patient Name." The document required Claimant to be sure Illinois Neurospine Institute was paid for its medical/surgical services. Illinois Neurospine Institute and Dr. Michael later used the document against their patient in court. Claimant asserted he never signed it.
On Feb. 27, 2014, Claimant settled his workers' compensation claim with Coca-Cola for $100,000. At the time of settlement of the WC claim, he paid the Illinois Neurospine Institute and Michael $27,003.59, in keeping with Illinois' Workers' Comp Medical Fee Schedule. Please note my opinion any further billing after a partial payment was accepted by a medical provider should have been statutorily prohibited “balance billing.” If you review the IL WC Act, it doesn’t provide any penalty for “balance billing,” it just prohibits such actions.
Almost two years later, Dr. Michael filed a breach of contract complaint on Jan. 13, 2016. Having been served with process, Claimant did not file an answer or seek any extension. Four months later, a default judgment was entered in the Institute and doctor's favor, confirming Claimant owed him the balance arguably outstanding or $98,276.78.
It appears Claimant was watching a third-party personal injury lawsuit; he sued the store where he slipped and fell in 2010. After that lawsuit wrapped up in October 2016, he moved to vacate the trial court's default judgment against him. Please note the judgment was now over 30 days old. The only relief from such a judgment is a Section 2-1401 Petition. When Claimant's attorney filed the response to the Section 2-1401 petition, it was missing an affidavit and language indicating Claimant swore the facts were true under the penalty of perjury. It did not claim Claimant acted with due diligence in answering the complaint or filing the response to the petition. Instead, it said, "A petition [for relief] may be granted even in absence of a showing of due diligence where justice or good conscience require."
Illinois Neurospine Institute filed a response asserting the petition should be denied on lack-of-due-diligence grounds. Claimant hadn't explained why he hadn't answered the initial complaint or why there was a delay in his filing of the Section 2-1401 petition, Illinois Neurospine Institute argued. Both factors showed a lack of due diligence, the Institute and Dr. Michael said.
Illinois Neurospine Institute’s attorney attached Dr. Michael's affidavit and a copy of the Financial Responsibility Statement to its response. A few weeks later, the trial court entered an order granting Claimant's petition to vacate the default judgment. Illinois Neurospine Institute and Dr. Michael appealed.
On review, the 1st District Appellate Court agreed with Illinois Neurospine Institute and Dr. Michael. It found Claimant had not shown due diligence, and the due diligence requirement is relaxed only "under extraordinary circumstances." No extraordinary circumstances appeared to be present here, the Court wrote.
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Synopsis: Join KCBA at the IL Chamber of Commerce 2017 Workers' Compensation and Safety Conference! Wednesday, October 25, 2017 at the Hilton l 3003 Corporate Drive West l Lisle, IL 60532. The program runs from 8:30 am – 3:30 pm.
Editor’s Comment: As part of the program, there are several Workshops which will include a presentation on Ethical Management of Disability & Employment Law Concerns Arising in Workers’ Comp Claims presented by our own John Campbell, Shawn Biery, & Brad Smith
The IL State Chamber also wants you to know:
This is the most important annual Workers’ Compensation Conference for Illinois employers!
· The 10th Annual Workers’ Compensation and Safety Conference will include valuableinformation for all Illinois Employers with all new topics and fresh presenters.
Workers' Comp. Reform is being debated at the state Capitol.
· Get the latest analysis and thoughts on WC reform at the conference, along with cost-controlling measures, safety issues to prevent workers’ injuries, and discussion of court cases as well as much more.
Continuing Education Available!
· This conference has been pre-approved to offer 3 HRCI credits.
· This conference has been pre-approved to offer 4 SHRM Professional Development credits.
· This conference has been submitted for approval to offer 4 CLE credits for attorneys.
You may also contact Shawn Biery at 312-756-3701 or sbiery@keefe-law.com or the Chamber directly via Laurie Silvey at (217) 522-5512 ext 223 or lsilvey@ilchamber.org