12-13-2021; "Two Doctor" Rule in IL WC and Other Thoughts; WC/OD Asthma Claim Denied by IL Appellate Court; We mourn the passing of Ellis Sostrin and more

Synopsis: The “Two Doctor” Rule in IL WC and Related Concerns about Controlling Medical Care in this Liberal State

Editor’s comment: A fundamental benefit of the Illinois Workers’ Compensation Act is the employer’s liability for costs associated with reasonable and necessary related medical care pursuant to the effects of or the aggravating effects of accidental injury or illness. The section of the Illinois Workers’ Compensation Act which discusses the employer’s liability to pay for such medical services selected by the employee is discussed in Section 8(a) of the Illinois Workers’ Compensation Act which limits the employer’s liability to the following:

(1) all first aid and emergency treatment; plus

(2) all medical, surgical and hospital services provided by the physician, surgeon or hospital initially chosen by the employee or by any other physician, consultant, expert, institution or other provider of services recommended by said initial service provider or any subsequent provider of medical services in the chain of referrals from said initial service provider; plus

(3) all medical, surgical and hospital services provided by any second physician, surgeon or hospital subsequently chosen by the employee or by any other physician, consultant, expert, institution or other provider of services recommended by said second service provider or any subsequent provider of medical services in the chain of referrals from said second service provider. Thereafter the employer shall select and pay for all necessary medical, surgical and hospital treatment and the employee may not select a provider of medical services at the employer’s expense unless the employer agrees to such selection. At any time the employee may obtain any medical treatment he desires at his/her own expense.

In my view, the term “reasonable” within the context of Section 8(a) of the Illinois Workers’ Compensation Act refers generally to the modality and costs of care and how those costs compare to what is being charged by other medical providers with similar qualification providing similar modalities of care and treatment. The term “necessary” within the meaning of Section 8(a) of the Act refers to whether the necessity of the medical care and treatment which is the subject of the bill being submitted to the employer for payment relates to the effects of or the aggravating effects of the accidental injury or repetitive trauma manifestation at issue.

Amendments to the original Section 8(a) of the Illinois Workers’ Compensation Act were made. The most notable change to Section 8(a) of the Act at that time was the inclusion of what has now come to be known as the “two doctor rule.” Simply stated, the two doctor rule limits the injured worker to two medical providers of their own choosing. However, the injured worker can still see as many medical providers as is necessary providing the injured worker is referred to subsequent physicians by one of the two medical providers. In other words, the injured worker is entitled to two chains of referred doctors providing their care is reasonable and necessary.

Many times, despite the obvious nature of a work injury and the necessity for related medical care, medical providers, particularly specialists, will insist on receiving authorization from the claims adjuster in the workers’ compensation case before the specialist will provide the injured worker the care he or she needs.

Reining in What Appears to be Unlimited Medical Care in IL WC

In my view, the three top “tools” for IL WC adjusters, risk managers and defense attorneys implement to limit or block medical care are

1. Utilization Review—submitting a claim for medical care or surgery or PT thru UR provides all sides a quick and simple analysis of what the world of medicine offers to insure appropriate care but not “over-care.” I personally feel UR is not considered or used enough by many IL WC adjusters. When you, as an adjuster see a doctor extending care or asking for authorization for too much treatment, UR should start and remain in place for any and all care from that point forward. Please note UR has “presumptive effect” if it is properly implemented. Please note UR analysis is technically not supposed to include opinions about causal connection.

2. IME’s or Independent Medical Exams—this is an exam of the claimant by an expert in the field who can opine about the nature of the accident, causal connection and the appropriateness of surgery and medical care. An IME expert can also opine about restrictions and return to work. The problem with IME’s is there is a cost for hiring a great expert and there are delays in setting the exam and getting reports. I recommend veteran and well-versed experts who know the IL WC system. If you want a recommendation on the right expert for your claim—send a reply.

3. Surveillance—this is a tool that makes sense in bigger claims. Please see the review of a recent decision involving surveillance below. If you can catch a Claimant acting in a fashion inconsistent with their complaints and requested care, it is a strong tool to block over-treatment. In some settings, you may want to share the surveillance results with an IME expert to give them a “big picture” of how claimant appears when they aren’t in a doctor’s office. If you disclose the surveillance to the IME doctor, it will almost certainly be disclosed to opposing counsel.

FCE’s or Functional Capacity Evaluations are Routinely Hogwash—Please don’t approve or authorize.

An FCE is a supposed “test” of a Claimant at some point as they approach MMI or maximum medical improvement. The FCE test is a two-hour or four-hour job focused analysis. The problem with the FCE process is there is no conceivable way to insure the test has any validity. Lots of Claimants will feign injury/complaints or lack of recovery to then have the person performing the test assert the worker has permanent restrictions. When that happens, IL WC claims move into wage loss differential or total and permanent disability values that can run into the six and seven-figure range.

What drives me slightly batty about FCEs is a given Claimant will be with a registered physical therapist who tracks their recovery and abilities for weeks and sometimes months. The RPT will carefully document improvement and capabilities to then, at the end of PT, have claimant undergo a short FCE test and summarily be adjudicated “disabled” in contradiction of PT records. Validity for some FCE testers can be based on “grip strength” for a worker with knee or spine issues—I have no idea how grip strength has anything to do with such claims.

I would ask the various FCE providers not to waste their time and my time writing to tell me their FCE’s are brilliant and I am wrong. I have grown tired of hearing it and won’t agree so, please save your time.

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Synopsis: IL Gas Worker Loses WC/OD Claim for Alleged Aggravation of Asthma.

Editor’s comment: The IL Appellate Court issued a ruling denying workers compensation benefits for a gas journeyman with pre-existing asthma who claimed he was exposed to toxic fumes. I feel the surveillance evidence in this claim strongly supported a denial of the claim for total and permanent disability.

Claimant, an employee at Ameren Corp. in Springfield, Illinois, was diagnosed by one doctor with a “permanent and irreversible condition” of “severe irritant induced workplace associated bronchial reactivity” after inhaling gas fumes in 2013.

Claimant sought medical treatment after the alleged first exposure in September 2013 and returned to work two days later. In May 2014, he was diagnosed with a bronchial condition associated with workplace irritants and was advised to take work leave. He later returned to work in September 2014 and claimed he experienced a second work-related exposure.

In reviewing his WC/OD compensation claim, some medical records indicate Claimant’s respiratory issues and preexisting asthma were temporarily exacerbated by the two gas exposures, as outlined in part of the appellate opinion.

The Arbitrator found Claimant failed to prove any permanent ill effects from the exposures and denied this claim. Respondent accepted the claim to an extent and paid for medical treatment and other benefits for what the arbitrator found to be temporary exacerbations.

Claimant appealed and lost at the IWCC. The Commission's decision denying the claim for total and permanent benefits was reversed in Circuit Court. Respondent appealed, contesting the claim for permanent loss. In the IL Appellate Court, WC Division, they noted medical records were introduced that revealed 15 or 16 separate occasions from May 1999 to August 2013 where Mr. Duncan complained of pulmonary symptoms, including shortness of breath, coughing, tightness in his chest, and wheezing.

While Claimant was on disability leave from work, investigators videotaped him attending an outdoor barbecue at the Elks Lodge in Fairview Heights, Illinois. Claimant stood next to a smoking grill, wrapped hotdogs and hamburgers, and placed them on trays. The barbecue smoke did not appear to cause him any respiratory distress. He unloaded children's bicycles from a pickup truck and jumped down from the bed of the truck. He walked around on the grounds. He stood in a group of people, one of whom was smoking cigarettes. The tobacco smoke did not appear to bother Duncan. On a different date, at the Elks Lodge, he was videotaped moving picnic tables.

In the arbitration hearing, Claimant asserted, at the Elks Lodge, the wind was blowing hard and he was upwind of the barbecue smoke and cigarette smoke.

The IL Appellate Court reversed the circuit court's judgment and reinstated the Commission's denial.

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Synopsis: The IL WC community mourns the passing of attorney Ellis Sostrin, may he forever rest in peace.

Editor’s comment: Attorney Sostrin was one of the top Claimant attorneys of a generation at the IL WC Commission. He is survived by his daughter who is as sharp and as smart as her amazing father. Ellis and I didn’t always see eye-to-eye but we had great respect for each other. He was a kind, hard-working and congenial man and I think a part of him will always be in our hearts.

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