Synopsis: The Illinois Appellate Court on the Civil Side Now Handling WC Issues—Sort Of. Analysis by Shawn R. Biery, J.D., M.S.C.C.

Editor’s comment: In this ruling, the IL Appellate Court weighed in on IL WC Fee Schedule payments in a ruling which should discourage balance billing and may encourage more detail in settlement documents. Attorneys on the other side of the bar should know and understand this important ruling that might lead to malpractice claims or ARDC complaints if they don’t fully explain such issues to their clients.

In Tiburzi Chiropractic v. Kline, 2013 IL App (4th) 121113 (September 16, 2013) which was appealed from the Circuit Court of Macoupin Co. (decision found on the web at (http://www.state.il.us/court/Opinions/AppellateCourt/2013/4thDistrict/4121113.pdf), Plaintiff Tiburzi Chiropractic filed a small-claims complaint against Defendant David Kline to collect the balance of chiro fees charged following the performance of chiropractic services which were alleged as WC. In November 2012, the Circuit Court found in favor of Plaintiff and ordered Defendant to pay $2,155 with that award being the subject of this appeal. Defendant argued the trial court erred in entering a money judgment in favor of Plaintiff. The Appellate Court modified and affirmed an award for a lower value.

Briefly as background, in October 2008, Defendant Kline alleged an injury working for third-party defendant, Rovey Seed Company, Inc and filed a workers' compensation claim with a portion of his claim alleging treatment sought and received from Plaintiff's chiro office in Carlinville was related. In August 2010, Kline and Rovey Seed entered into a settlement contract whereby Rovey Seed agreed to satisfy, pursuant to the IL WC fee schedule, all medical bills for medically causally related treatment received on or before June 10, 2010. Obviously, some chiro billing went unpaid.

In March 2011, Plaintiff Tiburzi filed a small-claims complaint against their patient Kline, alleging Kline owed $2,336.60 for an overdue account related to those chiro services. In May 2012, Kline filed a petition and application under Section 19(g) of the Workers' Compensation Act (Act) (820 ILCS 305/19(g) (West 2010)) for judgment on a workers' compensation award. Defendant attached a certified copy of the final award to the petition. Kline also demanded Rovey Seed pay all such bills pursuant to the fee schedule and Rovey Seed claimed it made full payment. In July 2012, the trial court entered an order on Kline’s section 19(g) petition and found Rovey Seed had made full payment pursuant to the terms of the settlement contract, including payment pursuant to the fee schedule and section 8 of the Act. The court held Kline and Rovey Seed had met all of their obligations under the IL WC Act. The court denied Kline’s demand for additional payment, costs, fees, and interest because of the payments. It was noted after the 19(g) filing, Rovey Seed conducted utilization review and paid a portion of the Tiburzi chiro bill according to the IL WC fee schedule.

One apparent twist in this case is that Tiburzi testified, when Kline came to his first visit, he doubted any prospective treatment by him for Kline would qualify for payment under the IL WC Act, because he was the third physician—he knew such care might be owed by the patient, consistent with Section 8(a-3) of the IL WC Act. Tiburzi testified Kline requested a specific type of treatment and Kline advised Tiburzi his attorney affirmatively advised he would be paid for the treatment under the IL WC Act. Tiburzi advised Kline he would accept him as a patient; however, he would be personally required to pay the cost for treatment in full even if not covered by the workers' compensation insurance carrier. Tiburzi testified the parties reached an oral agreement to that effect and Kline signed an agreement consistent with the parties' oral statement guaranteeing payment in full as a private pay patient. Tiburzi testified on several occasions he submitted his bill, in the amount of $3,000.00, to the employer's workers' compensation insurance company and their WC carrier, according to Tiburzi, paid $663.40 and he applied that amount to the bill.

In the proceeding before the IL Appellate Court, Kline argued the trial court erred in entering a money judgment in favor of Tiburzi for treatment rendered under and paid pursuant to the IL WC Act based on the private-pay agreement. Kline argued Section 8(a) of the Act (820 ILCS 305/8(a) (West 2006)), entitled recovery of reasonable medical expenses, the incurrence of which are causally related to an accident arising out of and in the scope of employment and which were necessary to diagnose, relieve, or cure the effects of the claimant's injury. They also noted medical expenses are governed by section 8(a) of the Act (820 ILCS 305/8(a) (West 2010)), which states, in part, as follows:

The employer shall provide and pay the negotiated rate, if applicable, or the lesser of the health care provider's actual charges or according to a fee schedule, subject to Section 8.2, in effect at the time the service was rendered for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.

Kline further noted pursuant to the Act, the employer must adjust the medical bills to conform to the IL WC fee schedule found in Section 8.2. 820 ILCS 305/8.2 (West 2010) and “Except as provided under subsections (e-5), (e-10), (e-15), and (e-20), a provider shall not bill or otherwise attempt to recover from the employee the difference between the provider's charge and the amount paid by the employer or the insurer on a compensable injury." 820 ILCS 305/8.2(e) (West 2010). This is the “balance billing” proscription in our law.

Tiburzi relied on the exception in subsection (e-20) (820ILCS 305/8.2(e-20) (West 2010)), which states as follows:

Upon a final award or judgment by an Arbitrator or the Commission, or a settlement agreed to by the employer and the employee, a provider may resume any and all efforts to collect payment from the employee for the services rendered to the employee and the employee shall be responsible for payment of any outstanding bills for a procedure, treatment, or service rendered by a provider as well as the interest awarded under subsection (d) of this Section. In the case of a procedure, treatment, or service deemed compensable, the provider shall not require a payment rate, excluding the interest provisions under subsection (d), greater than the lesser of the actual charge or the payment level set by the Commission in the fee schedule established in this Section. Payment for services deemed not covered or not compensable under this Act is the responsibility of the employee unless a provider and employee have agreed otherwise in writing. Services not covered or not compensable under this Act are not subject to the fee schedule in this Section.

The IL Appellate Court agreed any compensable services under the Act were not recoverable and noted contrary to Tiburzi's argument, it did not truly treat Defendant as a private-pay patient and did submit billing to Kline's workers' compensation insurance carrier. Since evidence reflected that except for 20 cold packs ($10 each), the chiropractic services were deemed compensable by the insurer and were paid at the fee-schedule rate, Tiburzi was not entitled to the balance due for the compensable care. However since the workers' compensation insurer paid nothing for the 20 cold packs, each billed in the amount of $10. Tiburzi was therefore entitled to judgment in the amount of $200, plus costs for a total of $345. Legal fees for both sides through the two-levels of the judiciary had to be exponentially higher.

Arguably the biggest take-away from this case for both sides of the bar is payment under the IL WC Fee Schedule should end any responsibility for balance bill payments and as the Petitioner bar is likely to receive the initial balance bills in most claims, we suggest a letter citing this ruling to confirm the Appellate Court will not award balance bills over the IL WC Medical Fee Schedule. From the medical provider standpoint, they would have been better positioned by billing Petitioner directly once they formed the opinion the treatment may not be compensable under WC.

We also feel it important for Petitioner’s attorneys to discuss “private pay” agreements with their clients and insure the client is fully advised of the pertinent issues. Failure to anticipate such problems may lead to protracted litigation, hurt feelings and judgments such as the one in this claim. It might all have been avoided by full discussion of the matters raised in this ruling.

For our defense side readers, as we recommend almost every day, it is best to have the terms of any contract as detailed as possible and while those in the electronic bill review community don’t believe that it takes more than a modest amount of time to draft a settlement agreement, the strong and detailed agreement initially is the true way to avoid litigation costs after the fact. As always, if you have any questions about successful resolution of your claims, you can contact our office. This article was researched and written by Shawn R. Biery, J.D., M.S.C.C. and you can reach him atsbiery@keefe-law.com.

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Synopsis: It Appears IL Supreme Court Oral Arguments in Venture-Newberg-Perini Went Well.

Editor’s comment: If you haven’t been paying attention, the “traveling employee” concept is probably the most controversial expansion of WC coverage in any WC system on the planet. Only in the People’s Republic of Illinois could someone think this is a good idea—almost all of the concepts are court-created because the many legal terms such as “traveling employee” aren’t in the IL WC Act. Please understand the worker does NOT have to be traveling or in transit to be entitled to WC benefits—all they have to do is have “traveling employee” status. What it means to your IL WC claims is:

“Traveling employees” are defined by the court as any worker who

· Doesn’t work on the “premises of their employer”—no one has any current idea what the “premises of the employer” might be;

· Works on the premises of their employer but goes to two or more locations as a part of their work;

· Is involved in “traveling” as an essential part of their work.

If a worker can establish “traveling employee” status, they are covered either 24-7 while continuously living in the area around a work site, which is how the IL Appellate Court, WC Division ruled for Claimant in Venture-Newberg-Perini or from the moment they leave their home until the moment they return home. The upshot of this unbelievable expansion of IL WC coverage is millions of workers are now covered while going to and coming from work and on any break for any non-work-related auto accident, slip-fall or any illness or malady that might befall them. It will also be much harder to defend “repetitive working” claims for such workers because their non-work-related activities magically become work-related. We feel “at-home” workers are covered basically all day and all night for any risk. Please also note if you give an employee a company vehicle to drive, you will owe full WC benefits for any injury whether they are working or not.

Last week, the first of about five “traveling employee” rulings made it to orals before our highest court. The orals can be viewed or listened to online by clicking on the links at the right side of this box:

09/18/13

115728

The Venture-Newberg Perini Stone and Webster v. Illinois Workers' Compensation Commission

Ted Powers, J.D. is handling the appeal and orally argued the matter is a solid and experienced attorney with the Rusin, Maciorowski & Friedman firm. These are his unedited comments:

Overall, I believe the Arguments went well. The justices focused on the employers' premises issue and travelling employee exception as opposed to the "exigency exception". Opposing counsel focused on the demands of the employment, the job hours and need to be available for emergencies. This would create an expanded "exigency exception" where the mode or course of travel no longer plays a role. Instead, the demands of the job itself for employees living remote from the job site would determine if the travel is part of the service. I do not believe an extension of this type is viable under the existing exception - it would drastically change the purpose for the exception. An employee could now argue that travel to a remote location required he be close to the job site to meet the exception, regardless of any direction or control of the employer over the travel. It further ignores that an employee's decision to seek a job remote from his residence is a purely personal choice. I doubt the Supreme Court wants to carve out a new or expanded exception. It is now a question of votes. I am optimistic that we will get the votes of the Republican justices based on their focus. I also sensed that at least one other justice appeared to question how clamant could be construed as a travelling employee based on facts re the job and fixed job site. Of course, the process is unpredictable; but I am hopeful we will prevail based on the facts and the law.

Our associate Timothy J. O’Gorman, J.D. attended the oral arguments and he felt our Supreme Court Justices seemed more conflicted in relation to Petitioner’s counsel’s legal position than Ted Powers for Respondent. The Justices asked several very pertinent and common-sense questions regarding the expansion of the “traveling employee” doctrine to include an employee who voluntarily moves to take a job away from his home. The Justices asked Petitioner’s counsel to explain why someone would be considered a “traveling employee” if they only report to work at one job site, travel only to and from that one job site and did not have to take the job away from his hometown. Counsel for Petitioner argued his point citing the employer’s need for labor outside of the local union hall and that the “exigencies and duties” of his job required he relocate to lodging closer to his work. Petitioner’s counsel cited the employer’s need for employees capable of working long hours and reporting to work at short notice.

The IL Supreme Court has now taken the case under advisement and we expect a ruling within two to four months. We strongly hope the Court takes a common sense approach to the issues at hand and comes to a decision that does not render millions of IL workers “traveling employees” to be covered for all risks from the moment they wake up in the morning until the moment they go to bed.

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

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Synopsis: Ooops, Attorneys Can’t Fake Illnesses, Skip Orals and Get Away with It—ARDC is Watching. Will This New-Found Vigilance Apply at the IWCC?

Editor’s comment: An Illinois lawyer is accused in an ethics complaint of faking illness to avoid oral arguments before the federal 7th U.S. Circuit Court of Appeals. We don’t think that is a strong idea. The Aug. 29 complaint by the Illinois Registration and Disciplinary Commission alleges Attorney Michael Joseph Finn told a federal court clerk on the day of oral arguments that he vomited that morning and was too ill to come to court. In contrast to that claim, the three-count ARDC complaint alleges attorney Finn didn’t need medical care and didn’t get any.

“He did not vomit and he was well enough to go to court,” the ARDC complaint alleges. “Respondent did not go to court because he felt unprepared.” The complaint does not outline the facts that lead to the conclusion. It does say Attorney Finn paid an appellate brief writer $5,000 to prepare drafts of appeals briefs on behalf of his client. Finn charged $15,000 in legal fees to handle the matter.

According to the complaint, the federal clerk’s office called him and told Finn to keep his phone nearby in case his appearance was required, but Finn did not answer or return phone messages. The 7th Circuit panel conducted oral arguments without Finn and, not surprisingly, Finn’s client lost the appeal. In an order to show cause, the federal Appeals Court said Finn should supply medical documentation of asserted illness, such as a certificate showing his admission to a hospital emergency room. Finn supplied no documentation and the court fined him $1,000 in its Sept. 15, 2011 opinion, the complaint says.

The 7th Circuit opinion did not say anything about Finn's report of illness, however. Instead, the opinion said he "has failed to offer any explanation—or even drop a hint—as to why he abandoned Clark at that critical moment."

Finn offered this explanation after the ARDC opened its investigation:

On the evening of April 13, 2011, I went to bed with a headache and with a queasy feeling in my stomach. During the night, I had cold sweats and had difficulty sleeping. On the morning of April 14, 2011, I got out of bed sometime around 5 a.m. I went to the bathroom and vomited. I went back to bed and got up again around 8:30 a.m. Although I felt much better at this time, I thought I was not well enough to go to court. After going back and forth about it, I decided to stay home. … I simply was ill on a critical day of court for my client. In retrospect, I believe I was medically able to participate in oral arguments, but it was a close call and at the time I thought that I was too ill.

Finn also said in a sworn statement that he didn’t take phone calls because he was in bed. From our perspective, it doesn’t appear this attorney felt he would be facing the notoriety that has followed his absence from oral argument in federal court.

Typically, when they write their rulings, the IWCC doesn’t mention if the attorneys are present or absent at oral arguments. We aren’t sure if this new requirement for needed illness documentation might not apply in workers’ compensation orals before the IWCC. We will have to watch and see if the trend expands. We appreciate your thoughts and comments.

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Synopsis: How to Best Certify/Authorize Medical Care and Avoid Litigation in an IL WC Claim.

Editor’s comment: Last week we reported there are a group of clinics/doctors who are suing lots of employers and carriers, claiming when you “authorize WC medical care” you implicitly accept whatever their pricing might be without any deductions. In response, we have an awesome IL WC adjuster who is among our readership. She advised she puts all treatment and surgery authorizations in writing & these 4 things are in every letter:

Item #1:
Please be advised prescriptions cannot be dispensed from the physician’s office. Bills received for this service will be denied. Please issue a written prescription to the employee for any medication prescribed.

Item #2:
Please note [insert employer] has an extensive light duty program and is anxious to have [insert claimant name] return to work as soon as he/she is capable of light duty work. Contact us for further details.

Item #3
We will pay for this surgical procedure and follow up care according to either your PPO contract or the Illinois WC Fee Schedule or the combination thereof, whichever applies and is lower.

Item #4:
Pre-authorization for any further specialist referral or testing/treatment beyond routine x-rays such as Physical or Occupational Therapy, MRI, EMG NCV, Work Hardening/Conditioning, additional SURGERY or FCE is required. Please contact [insert your name] at [insert your number] for any approval needed.

We feel this sort of language (or something like it) should be used to bring clarity to this part of an IL WC adjuster’s job and avoid the sort of litigation we reported last week. We thank our intrepid reader for sharing this with everyone. We are not going to be responsible for this advice if you aren’t using it in conjunction with an attorney at KCB&A—this is sample language only.

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

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Synopsis: New Improvements/Developments at KCB&A. New Southern IL Law Office, New Defense Lawyer!!

Editor’s comment: As we continue to grow our southern IL defense practice, we have now opened a satellite office in St. Louis, MO. It will be managed by our law partner Jim Egan and his team to assist coverage across the lower half of our state. The new address is

Keefe, Campbell, Biery & Associates

7733 Forsythe Boulevard

11th Floor

St. Louis, MO 63105

Phone 855-322-6290

Fax: 855 322-9950

Website www.keefe-law.com.

The new lawyer is Dave Iammartino, J.D. who has substantial experience at the IWCC across our state. Dave has been licensed since 1996 and brings a strong defense focus to his new position. His phone numbers are office: 312-756-3717; cell 773-653-6202; diammartino@keefe-law.com.

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KCB&A Job Description—Immediate opening; email resume, please.

Classification: IT Manager/Help Desk/Tech Support.

Compensation: $35K-55K per year with flexibility on hours.

Solid and Growing Downtown Chicago defense law firm is seeking an experienced IT Support Specialist to join our firm!

Responsibilities for the role include

Deliver effective end-user training and technical support for information technology systems utilized by the Firm, to include desktop software applications, computers, peripheral devices, and phones.
Conduct phone and desk-side training and support for attorneys, paralegals, secretaries and support staff.
Assist team members with support, work continuously to improve processes and responses, and document detailed resolutions into a database.
Manage/improve website and social media.

Job Requirements

Qualified candidates must have prior law firm IT experience and in-depth experience manipulating, revising, and repairing MS Word documents.
Demonstrated proficiency in Microsoft Office. Proficiency in Time Matters and Juris is desirable.

Please do not reply to tell us you know someone and are going to relay or thank us or you can’t do it—we understand, please just delete.

KCBA Blog

9-23-13; Chiro Sues Over Unpaid Bills and Civil Court Works Out WC Issue, analysis by Shawn Biery, J.D.; "Traveling Employee" Orals in IL Supreme Court; Supposedly Sick Lawyer Faces ARDC Beef and more