Synopsis: Note to IL Claims Handlers, Risk Managers and Other WC Administrators—Only Use Impairment Ratings For IL WC Claims If You Want to Save Money!

Editor’s comment: The 2011 Amendments to the IL WC Act statutorily changed the criteria for evaluating permanent partial disability for injuries that occur on or after September 1, 2011. We feel impairment ratings should be admissible for WC claims arising from injuries prior to that date—the call on allowing/considering a pre-statutory impairment rating is up to the Arbitrator assigned and the Commission, if the matter is administratively appealed. In simplest terms, an impairment rating is valid medical evidence of permanent loss consistent with Section 8(c), (e) and (d-2) of the Act. In our view, impairment ratings are admissible for all pending IL WC claims but have to be considered for claims for DOL’s after 9/1/2011; the weight such evidence is given is up to the sound discretion of the hearing officers.

The IL WC Act now indicates:

Pursuant to 820 ILCS 305/8.1(b), permanent partial disability for accidental injuries that occurred on or after that date shall be established using the following criteria:

(a) A physician licensed to practice medicine in all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing. The report shall include an evaluation of medically defined and professionally appropriate measurements of impairment that include, but are not limited to: loss of range of motion; loss of strength; measured atrophy of tissue mass consistent with the injury; and any other measurements that establish the nature and extent of the impairment. The most current edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” shall be used by the physician in determining the level of impairment.

(b) In determining the level of permanent partial disability, the Commission shall base its determination on the following factors:

(i) the reported level of impairment pursuant to subsection (a) (e.g.; the AMA rating)

(ii) the occupation of the injured employee

(iii) the age of the employee at the time of the injury

(iv) the employee’s future earning capacity

(v) evidence of disability corroborated by the treating medical records.

No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order.

What is the Debate over “Disability” versus “Impairment?” How Does That Impact the IL WC Act’s requirement of “Permanent Partial Disability?”

AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition indicate:

1. “Impairment” is a significant deviation, or loss of use of any body structure or body function in an individual with a health condition, disorder, or disease.

2. “Disability” has been defined as activity limitations and/or participation restrictions in an individual with a health condition, disorder, or disease.

3. “Impairment rating” has been defined as a consensus-derived percentage estimate of loss of activity reflecting severity for a given health condition, and the degree of associated limitations in terms of activities of daily living (“ADL’s”).

4. “ADL’s” Basic self-care activities performed in one’s personal life such as feeding, bathing, hygiene and dressing.

Impairment and disability in IL WC are disparate concepts. The AMA impairment rating is a component of the PPD percentage loss of use assessment, but our new statute doesn’t necessarily equate the impairment rating and the Arbitrator’s determination of the proper value for permanent partial disability.

Why Were the AMA Guides Included In the 2011 Amendments to the IL WC Act?

1. During the crooked Blagojevich years, PPD awards were completely random, way higher than previous administrations and appeared dishonest.

2. AMA Guides provide source for greater uniformity in permanency awards.

3. AMA ratings are typically much lower than the traditional PPD award for the same injury.

Who Can Prepare an AMA Rating Report?

1. See above--Section 8.1(b) of the IL WC Act requires the report be prepared by a physician licensed to practice medicine in all of its branches. Accordingly, non-physicians such as chiropractors, osteopaths, allopaths or registered physical therapists are not permitted to provide impairment ratings in IL WC.

2. Please note the IL WC Act, as amended does not, require the physician be “certified” or participate in any particular training to perform an AMA rating.

3. Please further note there is no requirement the physician providing the rating be licensed in the State of IL—several Plaintiff/Petitioner lawyers have outlined objections to out-of-state physicians providing ratings.

Can/Should a Treating Physician Perform an AMA Rating?

AMA impairment ratings are provided by lots of treating physicians who handle work injuries in other jurisdictions. However, the AMA Guides themselves indicate treating doctors should not provide AMA impairment ratings as they are not independent and can be are biased in favor of the patient. The IL WC system considers even patient-biased AMA ratings to be so much lower than traditional IL WC PPD values, treaters are encouraged to provide them, regardless of bias.

Can/Should the Workers’ Compensation Insurance Carrier/TPA Request an AMA Rating From the Treating Physician?

In our view, we have no particular concern about an NCM, insurance carrier or TPA asking a treater for an impairment rating. Some of our colleagues consider the request for an impairment rating from a treater to potentially violate the silly, evidentiary ruling in Hydraulics, Inc. v. Industrial Commission. Win our view, the Hydraulics ruling was trumped by HIPAA anyway. We don’t have a problem with an insurance carrier/TPA letting the unrepresented worker know they want an impairment rating, asking if it is okay to seek such a rating from the treater and then translating it into cash and offering it to the worker in settlement of their claim.

In contrast to this advice, we are advised some petitioners’ attorneys advise they may:

· Never request an AMA rating from a treating physician;

· Routinely object to any request by the insurance carrier/TPA for an AMA rating by the treating physician;

· Object to any AMA rating provided by a physician retained for that purpose.

· Find extraneous and odd reasons to object to confuse Arbitrators and Commissioners in considering impairment ratings.

Can a Physician Performing an IME Pursuant to Section 12 of the WC Act Provide an AMA Rating?

There appears to be no reason an IL WC IME physician cannot provide an impairment rating as part of an IME. Where a rating is provided by an IME physician or any other physician retained for that purpose, it is important they be provided with the requirements of the statute and specifically address not only the AMA rating but the other factors specified, including loss of range of motion, loss of strength, measured atrophy of tissue mass consistent with the injury, and any other measurements that establish the nature and extent of the impairment.

How Much Does an AMA Rating Cost?

You can’t rely on the IL WC Medical Fee Schedule for pricing. We have several great doctors who can provide them—we are happy to provide projected costs. Send a reply.

When Do You Want to Get the AMA Rating?

In short, you want to thing rating at maximum medical improvement. This has been defined by the AMA Guides as “a status where patients are as good as they are going to be from the medical and surgical treatment available to them.”

IWCC Use of Impairment Ratings When Presented

When you present them, the current three IL WC Commission panels are considering an AMA rating in any and all permanency awards. The Commission voted “unanimously” to provide the following recommendations to the Arbitrators regarding impairment ratings:

· An impairment rating report is not required to be submitted by the parties with a settlement contract;

· IL WC Arbitrators are considering impairment ratings and approving pro se settlements in reliance upon the;

· If an impairment rating is not entered into evidence, the arbitrator is not precluded from entering a finding of permanent partial disability consistent with traditional and higher metrics.

In our reasoned legal view, the concept of impairment ratings is a very solid claims tool that all insurance carriers/TPA’s need to use, when they want to save money. Please remember the debate over what Petitioner/Plaintiff attorneys are going to agree to or disagree about in relation to impairment ratings won’t ever hit the majority of your IL WC claims—there are tens of thousands of nonlitigated IL WC claims where a zero or low rating might keep claimant from even going to an attorney. If you don’t start asking for ratings or getting them, we assure you that you are falling behind your competition. If you want KCB&A to get a pro se settlement approved in IL for the rating at a flat rate, send us the file.

If you need help better understanding the role of impairment ratings or information on who to use for them, send a reply.

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Synopsis: Firefighter/paramedic’s Sensitivity to Latex Gloves Doesn’t Equal Lifetime Benefits. Analysis by Jennifer J. Maxwell, J.D.

Editor’s comment: The Illinois Appellate Court (2nd District) in Kim L. Edwards v. The Addison Fire Protection District Firefighters’ Pension Fund affirmed the decision of the Board of Trustees of the Addison Fire Protection District Firefighters’ Pension Fund and in doing so denied a firefighter’s application for lifetime line-of-duty disability pension benefits under the Illinois Pension Code.

In the application, her disability was described as “latex allergy worsening over the past two years due to exposure at Addison Fire Dept.” and her cause of illness was repeated exposure to latex through gloves being used on ambulances/engines. The Appellate Court noted in order to establish a firefighter’s entitlement to line-of-duty disability benefits, the following elements must be proved:

1. Claimant is a firefighter;

2. Claimant is suffering from a sickness, accident, or injury;

3. Such sickness, accident, or injury was incurred in or resulted from the performance of an act or duty or from the cumulative effects of acts of duty;

4. The firefighter is physically disabled for service in the fire department; and

5. The disability renders necessary the firefighter being placed on a disability pension.

There is no requirement that an act of duty be the sole or even primary cause of the applicant’s disability; it is sufficient that an act of duty was an aggravating, contributing, or exacerbating factor (sound familiar WC folks?).

The Court concluded the Board’s decision was not against the manifest weight of the evidence and the Board found the following:

Edward’s own testimony, examinations and discussions with various examining doctors demonstrated a lack of severity of her allergy and nondisabling nature of the reaction to latex;
Edwards did not discuss such an allergy with any of her treating physicians between December 2003 and September 2008;
Edwards never noticed any problems with latex until July 2008; and
Edwards never missed any work because of it.

The Board also noted Firefighter Edwards’ concomitant filing before the IL Department of Human rights in which Edwards alleged her duty was unrelated to her ability to perform the essential functions of her job. The Court specifically noted the Pension Board acknowledged the sensitivity to latex exposure but determined it was not severe enough to constitute a disabling sickness within the meaning of the Pension Code and she failed to prove she was permanently disabled within the meaning of the Code.

The Court further noted while “it might seem incongruous that [she] could be found unfit for duty because of latex sensitivity yet be found ineligible for a pension based on the same physical infirmity” the Court was quick to state it had previously considered this issue and found no conflict—the bar is set lower for a municipality seeking to discharge an unfit firefighter than for a firefighter to obtain a lifetime line of duty disability pension.

Edwards was denied her disability benefits under the Pension Code, but would she have been denied the generous workers’ compensation benefits in IL? No. There are cases in which Petitioners have received permanent partial disability benefits for work related allergic reactions to latex. Does this seem incongruous? We anticipate the Court’s answer would be “No” and then it would explain in so many words that the bar is set even lower for a firefighter or any employee to obtain worker’s compensation benefits under the Illinois Work Comp Act.

We appreciate your thoughts and comments. This article was written by Jennifer Maxwell, J.D. who can be reached at jmaxwell@keefe-law.com Please feel free to reply with any comment or concern.

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Synopsis: The Challenge of Predicting When the IWCC Will Follow the Law.

Editor’s comment: We read a recent IWCC ruling that we consider hard to understand. Read the following, consider what they did and give us your thoughts.

In Campbell v. Taylorville Fire Dep’t, the IL WC Commission panel was considering a set of facts we are asked about all the time. In this claim, the Fire Department has a basketball hoop for its sometimes idle firefighters. As a rapid aside, we encourage Taylorville and all similarly situated towns/villages and cities to consider starting “public safety” departments where you have combined fire and police departments to avoid having idle government workers, particularly firefighters.

Trust us, you truly don’t need lots of expensive firefighters sitting around the station waiting for fires that never happen at your expense. Trust us, building codes and fireproofing homes and other buildings has dramatically cut the number of fires faced by your local fire department and you haven’t done the needed research about how many fires hit your district every year. If you need more information about how to move your municipality to a combined “public safety” department and save millions for your taxpayers, send a reply.

In this ruling, Claimant Campbell sprained his ankle playing B-Ball; not much of a shock there. There was no question he wasn’t ordered or assigned to play round ball. This claim comes under the aegis of Section 11 of the IL WC Act that is crystal clear. For you history buffs, the genesis of Section 11 was two different claims against Jewel Food Stores© exactly one year apart. In both claims, a Jewel employee was playing in a softball game while off work. Both workers were injured sliding into second base. In what was something of an embarrassment to the WC “wise guys” of the day, one worker received WC benefits and the other had the claim denied.

Thereafter, the IL legislature enacted Section 11. Paragraph 2 of this section doesn’t require a masters’ degree to understand it:

Accidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics do not arise out of and in the course of the employment even though the employer pays some or all of the cost thereof. This exclusion shall not apply in the event that the injured employee was ordered or assigned by his employer to participate in the program.

In our view, basketball is by definition a “voluntary recreational activity” for anyone other than members of the Chicago Bulls. If this firefighter wanted to fit into the “exclusion, he has to demonstrate he was “ordered or assigned” to play. In the Campbell v. Taylorville Fire Dep’truling above, the parties effectively stipulated the firefighter wasn’t ordered to play basketball. To get around the statute, it appears to us fire department management of Taylorville agreed to testify they wanted the firefighter to participate because it was good for “exercise, team building and recreation.”

In our respectful response, we want to confirm our position is “who cares?” There is no question, none, that Firefighter Campbell was not ordered or assigned to play round-ball. He did so at his own risk. There literally hundreds of potentially silly reasons his bosses may have conjured up as a reason for him to participate—weight loss, bone density, heart health, a strong neighborhood presence, pretty hook shots or whatever you like. None of it has anything to do with the statute or its requirement that “voluntary recreational programs” are not covered under IL WC. We send kudos to Commissioner Kevin Lamborn who filed a solid dissent pointing out this simple statutory requirement to the other Commission members.

Please also note decisions like this are infuriating to IL business. No one has any idea when they can allow workers to go to company-owned gyms or aerobics classes or any other exercise. As we have told our readers many times, the laxity with which some IWCC commissioners provide benefits outside the statute to public sector workers poisons the well for private sectors employers. Lots of companies want to provide work out facilities and classes for their workers—decisions like this make that concept very challenging.

We do have a form for your workers to consider and sign that confirms their participation in voluntary recreational activity is voluntary. We can’t guarantee it will work but it does make it even harder for our hearing officers to ignore the law. If you want to see it and implement it for your team, we are happy to send you a sample. Please just sent a reply. We also appreciate your thoughts and comments.

KCBA Blog

12-16-13; If You Haven't Starting Using Impairment Ratings for IL WC Claims, Do!; Important Firefighter Pension Ruling-Analysis by Jenn Maxwell, J.D.; Basketball Isn't WC in IL Law and much more