2-15-2016; To Dream the Impossible IL WC Dream; Need WC Training?-Learn from the KCB&A Experts; FCEs in Hand Surgery from Dr. Vender + Colleagues and much more

Synopsis: To Dream the Impossible Dream—IL WC Appellate Court Turns Away Unattainable Filing by Plaintiff/Petitioner.

Editor’s comment: To reverse and reinstate this claim based on an unachievable reinstatement effort would have required basically rewriting over 100 years of the IL WC Act and Rules—one has to wonder if sanctions should lie? In Farrar v. Illinois Workers' Compensation Comm'n, issued February 11, 2016, a unanimous Appellate Court, WC Division was faced with the oddest of IL WC claims—Petitioner was a pilot for a major international airline. She alleged an injury occurring in April 2003. She underwent a cervical fusion alleged to be part of the claim. While we don’t know more of the facts, we assure our readers this is a serious claim that might have had some merit, if it had been properly handled by her counsel.

The initial IL WC claim was filed almost five years later in February 2008. Please remember it is possible for the statute of limitations in IL WC to “toll” or expand if any medical/TTD or permanency is paid. Payment of a related medical bill under group health might also toll the SOL, under Section 6.

For reasons known only to her attorneys and Captain Farrar, the claim was allowed to badly age and then get dismissed for want of prosecution. A dismissal order was issued in 2011 and became final when 60 days passed following entry of the order.

From our perspective, the matter was done, finito, finished, kaput. If you read the applicable Rule and case law interpreting it, the IWCC lost all jurisdiction over this claim. Despite that irresistible fact, another law firm filed their appearance for Petitioner and then filed a new Application for Adjustment of Claim in April 2012 for the same accident that occurred in 2003! The Arbitrator assigned dismissed the second claim in July 2013, the Commission affirmed in February 2014 and an appeal to the Circuit Court was taken. Almost four years later, the second claim is now actually over with this Appellate Court ruling.

Claimant cited Section 13- 217 of the IL Code of Civil Procedure (735 ILCS 5/13-217 (West 1994)) as supposed authority for “refiling” the Illinois WC claim within one year after it was dismissed for want of prosecution, regardless of the language of Commission Rule 9020.90 or whether the statute of limitations had long expired. The IL Appellate Court, Workers’ Comp Division unanimously ruled Section 13-217 of Code of Civil Procedure, which allows a Plaintiff with a claim pending in the Circuit Court to refile within 1 year after dismissal for want of prosecution (regardless of whether statute of limitations expired during pendency of original action) does not apply to IL workers' compensation claims. The Appellate Court ruled dismissal of a workers' compensation claim for want of prosecution requires claimant to file for reinstatement within 60 days of receipt of dismissal order to allow the Arbitrator to reinstate within the Rule.

Should Supreme Court Rule 137 Sanctions Be Considered?

As court observers and longtime proponents of the defense side of the WC industry, we feel this protracted litigation, following dismissal of the initial claim and the passing of the sixty day period for reinstatement, rendered any further action an unhappy and complete waste of the time and money for this employer. We further assert if a defense firm has spent four years clowning around at the IWCC and then the Circuit and Appellate Court with pleadings that had zero chance of success, the Appellate Court may have appropriately considered sanctions against a defense firm on their own motion. There is case law where the Appellate Court, Workers’ Compensation Division ruled IL Supreme Court Rule 137 Sanctions may lie in workers’ comp claims that reach the reviewing courts for frivolous actions.

The Rule says:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

In our respectful and academic view, there is no chance, none, that this pleading was “warranted by existing law.” The monies spent to win final dismissal at arbitration, IWCC appeal and in two reviewing courts could have been put to much better use by this major U.S. employer. In short, this second Application should never have been filed and it was a colossal waste to have our hearing officers take time from other important duties to get rid of it. Please also note there is also the potential for a legal malpractice claim that might have been considered by Captain Farrar. This interim five-year circus that followed might possibly have misled her and delayed such a claim.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Need WC Training? Learn from the KCB&A Experts about New WC Rules and Decisions from 2015 and Beyond                                    .

Editor’s comment: In our view, training and expertise in new work comp developments is critically important for you to keep ahead of your competition in claims and risk management. We have culled out the important decisions and changes to law for the last year to add to our 2016-17 IL WC Law Textbook. We can present the most important of them for you and your adjusting/risk management staff in a complimentary onsite lunch and learn at your office. We can also “webinar” your remote workers who want to keep pace with the office staff. Let us know if you are interested in a lunch hour presentation that we assure you will be informative and entertaining.

Here is the outline created by John P. Campbell, J.D. and Nathan Bernard, J.D. for your consideration:

When is a Physical Problem Repetitive Trauma versus Repetitive Working?

Question: How Exactly Do You Tackle an IL WC Fraud Claim? IL Courts Play the Laurel and Hardy Game of “Who’s on First?”

IL WC Wage Differential Exposure Expanding based on Recent Appellate Court Ruling.

Defense/Respondent Contact with Treating Doctors Met with Shocking Penalty and Sanction from Circuit Court Judge.

Traveling Employee Expansion When Handling Work Equipment While at Home.

Medicare Set-Aside Process as SMART Act is Implemented.

Comparing How Impairment Ratings are Considered at the IWCC.

We can also do a half-day or whole day seminar to teach all the nuances of IL WC. Let us know is you have interest—all you have to do is send a reply.

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Synopsis: Functional Capacity Evaluation in Hand Surgery, a scholarly article from three great hand specialists Michael V. Birman, MD, Gary S. Solomon, MBA, OTR/L and Michael I. Vender, MD

Editor’s comment: Dr. Michael Vender forwarded this important article for your consideration. We did not modify it in any way—references at the end are available on request. Dr. Vender is one of the top hand surgeons in the central United States and is a great caregiver and scientist. Dr. Vender has been quoted in numerous IL WC Commission decisions and he and his colleagues can be reached for help with your toughest hand/upper extremity injury claims at 847 956 0099 or for more information go to www.handtoshoulders.com.

A functional capacity evaluation (FCE) utilizes a combination of performance measurements to assess an injured patient's functional ability. The aim of these evaluations is to determine whether the patient has met the physical and functional criteria demanded for their job tasks or category in order to determine timing and capacity for return to work. A number of methods have been described to assess a patient's abilities, and various subsets of these make up some of the described FCE regimens, including those described by Matheson, Isernhagen, Hart, and others.1

In the Journal of Hand Surgery in 1987, two therapists individually addressed evaluation of work capacity for occupational hand injuries.2,3 A typical FCE includes patient interview, musculoskeletal screening, and functional testing. The entire upper extremity is generally assessed. FCE protocols vary among providers, as there is no universally endorsed method.  Physical evaluation includes range of motion, muscle/strength testing, sensation, and dexterity.  The functional testing component of the evaluation includes, but is not limited to, positional tolerances, job analysis and simulation, standardized assessments, and lifting capacity.

The FCE report typically includes a summary of test results as well as categorization of work based on the U.S. Department of Labor Dictionary of Occupational Titles. The report will include job-specific tolerances as demonstrated during the exam, as well as measures of consistency and validity. These measures may include correlation of heart rate with perceived exertion, correlation of performance with standardized assessments, as well as any observed inconsistencies between performances during functional testing compared to measurements during musculoskeletal screening.

There are a variety of reasons hand surgeons may choose to or be requested (such as by an insurance entity) to order an FCE. Often, the aim is to assess the patient's abilities and capacity to return to their prior employment, and comparison may be made to a detailed profile of the physical requirements of their job in interpreting the outcome of the FCE. Therefore, the purpose is to determine if the patient can safely return to their prior employment.

Studies have looked at the reliability and validity of these tests, as well as their predictability, to determine a patient's abilities and safety to return to work and stay at work (i.e., sustained recovery). However, little evidence is available to validate these studies specifically for upper extremity complaints. The limited studies assessing validity of FCEs in orthopaedics largely pertain to generalized musculoskeletal complaints and, specifically, chronic back pain. A systematic review considered four evaluation regimens; among these regimens, only the Isernhagen Work System showed good inter-rater and predictive reliability.4 Even for this system, the intra-rater reliability studies were found to not be rigorous enough for conclusion. Other authors examined patients with chronic low back pain, and they concluded most variables in the Isernhagen FCE were reliable based on FCEs repeated two weeks apart for each patient.5

A two-part study examined the ability of an FCE to predict return to work and sustained recovery following chronic low back pain. The authors of the study concluded better FCE performance was mildly associated with indicators of faster return to work. Despite this association, there was no relationship to recurrent back problems.6,7 A Cochrane review specifically tried to address the effectiveness of FCE-based return to work recommendations.8 Based on a lack of randomized controlled trials on this topic, it concluded there is no evidence for or against the effectiveness of FCEs in predicting re-injuries following return to work.

Gross and Battié used the Isernhagen FCE to look at predicting timely and sustained recovery in workers’ compensation claimants with upper extremity disorders.9 The study included 336 patients. The authors concluded better FCE performance was a weak predictor of faster benefit suspension. Specifically, higher weight lifted during the FCE was “consistently, yet modestly” associated with faster time to benefit suspension and claim closure. There was no relationship between functional performance that met or exceeded physical job demands and future recovery. The authors further concluded FCE performance was unrelated to sustained recovery. Specifically, no factors were associated with future recurrence; in fact, there was a 39% one-year recurrence rate, when the claim was reopened or a new upper extremity claim was filed. Furthermore, the FCE proved no more helpful in claimants with specific pathology/injury versus those with more ambiguous, pain-mediated conditions.9

FCEs have inherent limitations that affect their utility. FCEs have not been standardized and validated for upper extremity diagnoses. An additional complicating factor is that individual providers determine testing protocols and method of administration. Also, these studies have limited ability to disengage the patients’ motivation from their effort during the tasks of the evaluation, particularly when secondary gain is a factor. It requires cooperation and effort by the patient to generate an accurate assessment. A patient who provides an extreme effort can lead to an overstated assessment of their capabilities on a long-term basis, while a person who gives suboptimal effort can lead to an understated estimate of his capabilities. At best, they are essentially a snapshot of the patient’s performance at a particular time and place. 

Hand surgeons are asked to interpret the results of FCEs, and it is not sufficient to simply skip to the summary page of the evaluation. The details of the evaluation and the specific functions being evaluated must be considered. For example, if a task during the FCE was stopped, possible limiting factors include patient fatigue or pain, breakdown of mechanics, or exceeding performance. Deciding when a specific task is stopped involves a subjective determination, and the physician is relying on the therapist’s judgement rather than his or her own as to when the evaluation should be stopped. Also, consider differences between the injured and uninjured sides; a worker may have always been able to perform their job even though their baseline lifting abilities on their uninjured side do not satisfy the documented job requirements. Finally, because FCEs attempt to measure capabilities, these should not be misused as a rationale to impose restrictions, which are used to protect the patient during recovery from injury or surgery so as not to compromise outcome. 

The FCE should not replace the surgeon's determination of a patient's abilities based on their objective physical examination and radiographic findings. An FCE may be more useful when assessing specific activities in someone who has objective impairment (i.e., wrist fusion, loss of digits, etc.). It is least beneficial when assessing a patient who has subjective complaints only. The results of an FCE should be used as one factor in determining work capabilities. It should not be utilized as a rigid guideline or rule. When considering the limitations of current FCE protocols, the best form of assessing ability to return to work is still based on a competent physician’s understanding of residual impairments combined with knowledge of the patient’s work requirements.

If you have questions or concerns, please simply reply and we will relay the inquiry to Dr. Vender.