10-31-2023; Halloween Edition!! IL Appellate Court Rules on Future Medical and Remands for Ruling on Multi-Million Dollar "Life Care Plan;" NLRB New...
/Synopsis: The Illinois Appellate Court, WC Division Ruled on a “Future Medical” Issue, Remanding to See if a “Life Care Plan” for up to $17.8 Million is Reasonable.
Editor’s comment: In Montgomery v. IWCC, No. 3-21-0604WC, 11/15/2022, published, our IL WC Appellate Court ruled the IL Workers’ Compensation Commission exceeded its authority in setting conditions for the provision of future medical treatment for an injured worker.
This ruling strongly emphasizes one issue with leaving medical rights completely open in any IL WC claim—I feel this decision to leave medical rights open was “easy” until it turned ugly and resulted in years of fighting and litigation. I also feel claims like this are difficult to successfully litigate from the defense perspective, as they reach our Appellate Court, WC Division. You might note this pro-Petitioner ruling was unanimous by all five Justices without any dissent/comment or support for the interests of IL business.
The “must read” message from this ruling is IL WC risk/claims managers and attorneys should be very, very cautious and get advice from veteran counsel when leaving medical rights open and most particularly, uncapped. If you need help with this concept we have lots of experts on it, just send a reply and we are happy to help/consult.
Claimant Montgomery worked for Caterpillar Logistics Services Inc. He suffered accepted and ostensibly serious injuries at work in 1994 when his forklift was bumped by another forklift. Montgomery filed a workers’ compensation claim in which he identified the parts of his body affected as his neck, shoulder and arms. He described the “nature of injury” as “arm in sling.”
In 1996, Caterpillar’s WC team entered into a IL WC settlement with Montgomery for $86,000 with open medical. The agreement stated the affected parts of Montgomery’s body were his neck, shoulder and right arm. The nature of the injury was described in the agreement as right upper extremity sympathetic dystrophy with lower right extremity migration. The agreement provided Claimant Montgomery waived all rights under the Workers’ Compensation Act except his right to future medical treatment.
Fifteen years later, in 2011, Claimant Montgomery filed an interim Section 8(a) petition against Caterpillar, alleging wrongful denial of medical treatment. He also moved for statutory penalties and attorney fees.
It appears to me Claimant went to a nurse who is a life care planner based out of Rockford, IL. She has a PhD but is not a medical doctor. While our Appellate Court noted she was a nurse on one occasion, thereafter the ruling repeatedly called her a doctor, as if she is a physician. Please note this individual does not and did not have a medical degree, she is a PhD. Please note all Illinois attorneys have the equivalent of a PhD and we are not allowed to call ourselves “doctors” because it is misleading, as we cannot practice medicine. In this claim and in my opinion, someone should clearly point out nurses aren’t doctors. This “life care planner” isn’t going to provide any medical care and/or scientifically respond to successful or unsuccessful care, like doctors do.
By this Nurse’s calculations, the total cost of medical treatment and pharmaceuticals for Petitioner over what she appears to have asserted is the remaining 32 years of his life expectancy would be $15,232,552 without acupuncture and $17,823,599 with acupuncture. You might note the cost of the plan is around $500K+ a year for what she felt would be Claimant’s expected life. I looked up this Claimant and per Social Security tables, his expected life is about 22 years.
As a skeptical defense attorney, I am concerned such a “life care planner” or nurse could be seasonably relied upon, taking a middling claim and compounding the medical aspects of it into a gigantic claim.
In June 2018, the IL Workers’ Compensation Commission panel issued what we would consider a measured decision. The Commission determined the proposed life care plan, created by a nurse and presented by Claimant Montgomery was "premature and should not be considered.” The IL WC Commission panel also ordered the care and treatment of Montgomery’s chronic regional pain syndrome should be managed by one central treating physician, who must oversee all treatment and attendant care related to the 1994 injury. The Commission panel also found the central treating physician could not be Montgomery’s current physician and had to be medical care from a provider affiliated with a major medical institution. As an observer of our State’s WC system for several decades, I salute the IWCC’s careful consideration and ruling in this matter.
The Commission further found Montgomery failed to prove his asserted radiculopathy was related to the 1994 accident, but his gastrointestinal issues were causally related. The Commission panel denied Montgomery’s request for statutory penalties and attorney fees.
Claimant Montgomery and Respondent Caterpillar both appealed, and a circuit court judge confirmed the Commission’s decisions. Both parties then sought further review. The Illinois Appellate Court, WC Division ruled the Commission’s decision was interlocutory and the circuit court lacked jurisdiction to review it. Thus, the Appellate Court, WC Division vacated the circuit court's judgment and remanded the case to the Commission for further proceedings.
On remand, the Commission announced the parties reached a settlement under which Caterpillar’s payment of $44,000 would be the full extent of its liability for the unpaid balances and other expenses claimed by Montgomery. The Commission noted much of Montgomery’s treatment had been covered by the Centers for Medicare & Medicaid Services and Caterpillar agreed to hold him harmless for any liens asserted by CMS.
The Commission noted this settlement and then adopted and incorporated into its decision "all other facts findings and conclusions” from its June 2018 decision. The circuit court confirmed the Commission’s decisions from June 2018 and on remand.
As the Commission then announced this “settlement,” it is somewhat baffling to read Claimant Montgomery appealed from this decision.
Please note my view the concept of “future medical care” is not defined and the term does not appear in the IL WC Act or Rules. It is my view, it was “created” by our courts in their rulings. It is my respectful view, it is contradictory to start future medical rights by judicial edict and then assert the IWCC doesn’t have statutory power to properly administer it.
In any event, the Illinois Appellate Court, WC Division ruled the IL Workers’ Compensation Act contains no provision empowering the Commission to attach specific conditions to its finding of whether future medical care is necessary and reasonable. They also ruled the IL WC Act somehow contemplates decisions by the Commission “based on treatment provided or to be provided, not on who provides it.” Again, with respect, I don’t agree with this judicial finding at all—if the IWCC feels a medical procedure needs to be done, I feel they have every right to describe the appropriate credentials of physicians or surgeons who can best provide it. For an example, I don’t feel the IWCC would have to approve a podiatrist who wanted to do spine surgery in a life care plan.
Thus, the Court ruled, the Commission lacked statutory authority to order the designation of a central treating physician or to disqualify Montgomery’s treating physician from that role.
When a Petitioner seeks authorization for future medical care prescribed, it is the function of the Commission to determine reasonableness and necessity of care sought. Therefore, in my humble view, it is challenging for the Court’s members to make such a ruling about the IWCC panel’s asserted lack of statutory authority to direct whatever future medical is supposed to be. Where an avalanche of future medical care is outlined by a “life care planner” it is the function of the Commission to assess the requested care and offer a ruling on what aspects are approved. I consider that common sense in this WC matrix.
In this vein, our WC Appellate Court did rule it was the Commission’s function to determine which of the future medical treatments and pharmaceuticals recommended in the multi-million-dollar life care plan presented by Montgomery were necessary and reasonable. The Court went on to find substantial evidence supported the Commission’s finding of non-compensability for Montgomery’s radiculopathy, as the Commission credited the opinion of one medical expert that radiculopathy was not connected to alleged CRPS.
The Court also ruled the Commission did not abuse its discretion in denying Montgomery’s request for penalties and attorney fees, since it could have reasonably concluded that such payments were forms of liability for the unpaid balances and other expenses, which the $44,000 settlement payment was supposed to encompass.
The Appellate Court, WC Division remanded to have the zillion-dollar life care plan ruled “reasonable” or not. I am chagrined to contemplate the remand for a ruling on “reasonableness” is precisely what the Appellate Court ruled was wrong with the Commission’s decision—It begs the question … don’t they have statutory authority to rule on “reasonableness” of providers? This is a term our reviewing Courts selected and typically use in evaluating medical decisions by the IWCC.
We are confident this claim is going to continue in litigation over the complex medical “plan” and we won’t see final resolution anytime soon. The case can be viewed on the following:
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Synopsis: The National Labor Relations Board (NLRB) released their final rule Oct. 26 to provide a broad standard for when two employers conducting business together are considered to be “joint employers” and therefor liable for unfair labor practices.
Editor’s comment: How will this change Work Comp? The Rule contemplates if two entities are joint employers under the National Labor Relations Act (NLRA), both must bargain with the union that represents the jointly employed workers, both are potentially liable for unfair labor practices committed by the other, and both are subject to union picketing or other economic pressure if there is a labor dispute.
This final rule will replace an older rule from April 27, 2020. Under that rule, an employer could be a joint employer of another entity if it had direct and immediate control over the essential terms and conditions of employment, such as wages, benefits, work hours, hiring, discharge, discipline, supervision and direction.
The new rule states that two entities are considered joint employers if they share or co-determine the employees' essential terms and conditions of employment. It will take effect on Dec. 26, 2023.
Please note in workers’ comp, both employers can be liable for one accident with the employer on whose site the worker was working when injured having primary liability unless there is a written agreement to the contrary.
When the WC liability attaches and benefits paid and accepted, only WC is due—the employer can’t be sued at common law for the same injuries.
Following this new NLRB concept, both “joint employers” may have joint liability and simultaneous joint protection from common law claims.
Again, this new rule is in place for now and doesn’t start until the day after Christmas.
Only time will tell how this all plays itself out.
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