Synopsis: Post-Election News—Should We Try to Get the Illinois Workers’ Compensation Commission Ready-For-Rauner Or Keep Making Progress Under the Current Administration?

Editor’s comment: As we predicted, upstart candidate Bruce Rauner basically came from nowhere to sweep to become the Republican candidate for Governor. The oddest aspect of the primary was the millions spent by government unions to support Mr. Rauner’s leading Republican opponent and the phone calls and pleas for Democrat voters to cross over and vote against Mr. Rauner, rather than for anyone. The coming fall election in Illinois is starting to take on the appearance of the Governor’s election in the State of Michigan a couple of years ago where both sides spent over $50M to elect a governor to a post that pays about $175,000 a year. The battlefront isn’t over the job itself; it is over the billions of dollars in contracts and positions the job controls.

What is mildly bizarre is the response by veteran politicians to the outcome of the primary. IL House Speaker Mike Madigan has called for a special billion-dollar-plus tax levy on, well, himself and other Illinois millionaires. We assume this is another shot at Bruce Rauner but we are also sure Mr. Madigan’s personal wealth has to be in the $50M-150M range as he has been in IL state politics for decades and makes millions each year off the silly “tax appeal” concept where our Cook County Assessor always overvalues real estate taxes to then have attorneys like Speaker Madigan, Senate President Cullerton and Chicago Alderman Ed Burke step in to have their law office staff attorneys supposedly appeal and “correct” the mistakes and then haul away millions every year in attorney fees. Yes, you might note how crazy and conflicted it sounds for our top state leaders to make millions working to randomly lower real estate taxes for their clients so other taxpayers have to pay even more money to make up the shortfall. One also has to wonder when and if our government leaders might buy Cook County Assessor Joe Berrios one of those new-fangled “computers” so he might get the initial assessments correct and avoid all the appeals, attorney’s fees and uncertainty.

Either way, we have never heard of a billion-dollar-plus tax increase being pushed by the incumbent party during an election year. Illinois Democrats are also pushing for a mandatory retirement program for all businesses large and small along with a 21% increase in our state’s minimum wage. It would appear the anti-business, anti-competitive atmosphere in Springfield is going to continue until the fall of this year.

From the perspective of the Illinois Workers’ Compensation Commission, we again hope to provide some thoughts on getting “Ready-For-Rauner” if you feel he has a realistic chance to be our next Governor. If it turns out Mr. Rauner doesn’t prevail, the same concepts may also serve the continuing administration of the IWCC under incumbent Governor Quinn. There are three issues we see that could be addressed moving forward.

First, every single Republican primary candidate said “causation” in our workers’ comp system was their main campaign concern. We have been telling everyone who will listen it is our academic view “causation” in workers comp can’t be changed by legislation. It is our view any legislative scheme on the topic that you propose can be avoided by wily administrators and reviewing courts. For example, if you write legislation requiring work be the “sole and primary cause” of a medical problem, a liberal or radical administrator can always rule the work was the sole and primary cause of the medical issue. You tell me how to write common sense into the legislation and we will happily pass it along to the IL State Chamber’s new President-To-Be Todd Maisch.

Please also note the Appellate Court, Workers’ Comp Division has quietly moved to a new and very liberal causation standard, right before our very eyes. In the recent Village of Villa Park v. IWCC ruling, they outlined an unprecedented criterion that we wholly disagree with. The penultimate reviewing court has indicated the IL WC industry is supposed to look at both “quantitative” and “qualitative” work activities in analyzing an accident or the relationship of a medical problem to work. If you read Matt Ignoffo’s analysis of the Dixon v. IWCC ruling last week, the reviewing court issued a similar analysis in a Rule 23 or “non-published” decision indicating the Appellate Court’s view this concept no longer needs to be promulgated to the larger public—a Rule 23 decisions means it is a routine legal concept for this Court.

In the controversial ruling in Village of Villa Park outlined above, the “quantitative” risk leading to a compensable or “causally connected” injury was regularly walking on stairs. In the Commission’s nomenclature that was adopted by the Appellate Court ruling, the employer “forced” the employee to walk a flight of stairs about six times each shift. Where is Upton Sinclair when you need him to again reform the Illinois workplace? One of the wags at our office said we should call OSHA in to investigate the horrible working conditions which require such involuntary servitude climbing stair after stair in this otherwise peaceful Illinois village. Kidding aside, we don’t see how the actions of traversing a staircase six times in an eight-hour shift is either “forced” work or “quantitatively” unusual. Please note the case went to the Appellate Court and resulted in an award of full benefits without any indication or evidence of a safety failure, sudden event or trauma or anything your grandmother might think would be part of a work “accident.”

I would challenge any of our readers to create legislation that ends or overrules the concept above. Please note our view the model being pressed by the Court and Commission panel is just about impossible to defend, as it is our view millions of IL workers walk on staircases six or more times a shift. If that activity defines an accident in this state, most work is similarly “accidental.” In short, to change this concept, you have to have a Commission panel that focuses on traditional accident analysis of an increased risk with some sort of safety failure causing bodily injury.

We do feel IWCC Chairman Michael Latz and newly appointed IWCC Secretary Ron Rascia know the issues involved and they continue to work to make sense of our challenging laws and rules. Our concern isn’t with them, it is with the Commissioners who support “quantitative risk” as the basis to define accidental injury for someone who walked on stairs six times in eight hours—would it have been denied if the worker was only “forced” to be on the staircase twice? Four times?

Second, we assure all of our readers, clients and friends, the second major issue in getting Ready-For-Rauner or remaining with the current administration is the problem of endless WC claims. We assure everyone the defense team at KCB&A can work with you to close your five to ten year old claims much faster than your current defense attorneys. If you want a free audit to give you the needed action plan on your oldie and moldy IL claims, send a reply.

But even with our hard work and defense strategies, the rank-and-file work injury claim in the IL WC system sometimes moves slower than molasses in January. The “worst” states in the United States for workers’ comp are the states that don’t bring closure to their pending book of claims. In our view, the Arbitrators and Commissioners should continue their progress to rein in delays and get serious about closure. We long for the day where our computer-savvy Arbitrators will hold a pretrial like the judges in federal court and outline a discovery schedule for both sides and then adhere to it. To the extent we have 30 or more Arbitrators on salary in Illinois, we have the staff necessary to move claims much more efficiently.

Finally, this leads to the last of the major issues we have with Illinois government efficiency. With respect to Chairman Latz and everyone else at the Commission, the place remains a bloated bureaucracy. With an annual budget of about $30M, we feel the IWCC could thrive and survive on half that much money. There is never a sense of efficiently and effectively spending taxpayer dollars. For one simple example, we still feel there is little need for the three IWCC “satellite offices” that do little more than print workers’ comp forms that can be accessed just as easily by the public online. We consider it truly odd to have a satellite office in Collinsville that hasn’t been staffed in about two years—why not just get rid of it?

So whether you like Bruce Rauner or the incumbent, keep your eyes peeled for developments leading to the November election. In our view, if you like the progress made by the current administration, stick with them and vote Democrat. If you want a change, vote for Mr. Rauner who has vowed to “shake up Springfield.”

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

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Synopsis: Louisiana Ruling Denying Attorney Fee Claim on MSA Trust Funds in a WC Settlement May Provide Guidance for IL Claims Adjusters, Hearing Officers and Arbitrators.

Editor’s comment: We have heard this debate rage back and forth. In the states we provide defense services, we haven’t seen an Illinois, Indiana, Wisconsin or Michigan ruling on this precise fact situation. We also know Louisiana has been a traditionally Plaintiff-oriented state.

In Benoit v. MMR Group, et. als, issued March 19, 2014, Claimant and counsel settled the indemnity portion of the claim for $30,000. The medical aspect of the claim settled in an approved MSA trust for $50,846.00. The amount was approved and was further determined to adequately protect Medicare’s interests.

Mr. Benoit’s attorneys filed pleadings to allow them to recover attorney’s fees on the seed money for the MSA Trust. When they were initially denied, they filed for reconsideration and later appealed denial.

The Appeals Court noted the MSA agreement specifically states:

The Medicare set-aside funds in this case are to be self-administered. The Claimant has been provided with the directives issued by CMS regarding his rights and responsibilities in this regard. The Claimant understands that the MSA funds must be placed in an interest- bearing account, and this account must be separate from the individual' s personal savings and checking accounts. The funds in this account may only be used for payment of medical services related to the work injury that would normally be paid by Medicare. If payments from this account are used to pay for services that are not covered by Medicare, Medicare will not pay injury-related claims until these funds are restored to the MSA account, and then properly exhausted.

The Court ruling highlighted the language “The funds in this account may only be used for payment of medical services related to the work injury that would normally be paid by Medicare.” The Court felt such language was crystal-clear and limited any portion of the money from being used for attorney’s fees, expenses or any other aspect of the litigation. The decision is available to review online at http://www.la-fcca.org/opiniongrid/opinionpdf/2013%20CA%200537%20Decision%20Appeal.pdf

The problem for the Petitioner-Plaintiff bar is they don’t like to work for free. In this claim, there is no question the lawyers for Claimant worked to get their client a medical benefit of about $50K. The concern on the other side of that coin is there isn’t truly any solid “source” for a legal fee—if money is taken from the Medicare Set-Aside, taxpayers lose out when we have to pay for work-related medical care.

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

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Synopsis: S&H Medical Management Takes on the Opioid Epidemic.

Editor’s comment: We have all heard about the Opioid Epidemic, and the toll it is taking on society and on healthcare costs. However, what about an integrated solution that specifically addresses this issue in the workers’ compensation setting? Has your case management provider discussed with you their approach to address and mitigate the costs of this epidemic on workers’ compensation claims?

S&H Medical Management Services, Inc. has researched best practices to provide an integrated approach to this crisis based on ACOEM guidelines, and various states have developed their own internal Opioid Guidelines. As a result of this research, S&H has set up protocols for working with the physician, the injured worker, the claims handler, the attorney and the pharmacy benefit manager at the time an opioid is prescribed, and through subsequent prescriptions. The S&H Consultant works collaboratively with the prescriber to explore alternatives to opioids, and to ensure treatment protocols based on current best practices are explored. The goal of these protocols are to increase function and eliminate any prescribed opioids either before they are prescribed or as soon as possible during treatment. The question the S&H RN is trained to ask: “If the opioid is not facilitating decreased pain and increased function, then why is the injured worker receiving an opioid?”

The S&H Consultant obtains detailed information from the treating physician regarding the exact opioid and dosage. Utilizing best practices, S&H completes a Medication Reconciliation Assessment during the Initial Evaluation Meeting. The Nurse Consultant utilizes tools documenting specific pain levels and its interference with functional levels at each appointment assessing for response to the opioid and consistency in reporting. This assessment is shared with the treating physician.

Utilizing a morphine dosage calculator, Total Morphine Equivalent Dosages (MED) are calculated along with the length of time the opioid is prescribed. Assessment for aberrant drug behaviors is also completed on an ongoing basis. Advancement through the S&H opioid protocols are based on these calculations and assessments. Information regarding safe handling, usage and storage of the opioid is provided to the injured worker.

The physician is requested to utilize the state-specific Prescription Monitoring Program each time an opioid is prescribed, and pill counts may be requested at appropriate intervals at in-person appointments.

With the client’s authorization, at the point in which urine drug testing or a peer to peer review including telephonic intervention is appropriate (utilizing criteria set forth at the time the opioid is prescribed), the S&H partner that provides cost-effective Urine Drug Screening with GCMS and Peer to Peer reviews that specifically address the appropriateness of ongoing opioid prescribing or weaning can be utilized. Should the client have their own providers, the Nurse Consultant will alert you to the appropriate timeframe for intervention and be happy to work with this vendor.

Should our client decide to work with our partner providing these services they do so knowing S&H has negotiated favorable pricing with our partner and their goal is to keep your IW off any unneeded opioids and to do this as soon as possible! In addition because the S&H Nurse Consultant is working closely with the prescribing physician and the injured worker, they assess adherence to any plan agreed upon during the Peer to Peer Reviews/Meetings. As a result, any RN assessments are provided by the S&H Nurse Consultant, during regularly scheduled appointments, thereby saving the costs of the RN assessments and follow-up normally completed by these vendors.

S&H Medical Management Services, Inc. believes these protocols will mitigate the costs opioids are exacting on your claims and on our society!

KCBA Blog

3-24-14; Post-Primary Report on How to Improve the IWCC; Louisiana MSA Ruling Provides Guidance on Fee Claims; Opioid Epidemic Attacked! and much more