9-11-2017; New WCRC Contractor Takes Over for CMS and Recovery Statistics Presented: Gene Keefe's Wish List for IL WC Arbitrators and more

Synopsis: New WCRC Contractor Takes Over for CMS and Recovery Statistics Presented. Research and analysis by Shawn R. Biery, J.D., M.S.C.C.

Editor’s comment: As our readers are already aware, The Centers for Medicare and Medicaid Services had been accepting bids for and now has hired a new contractor who will assist in the review of Medicare set-aside proposals submitted to CMS. As we have become accustomed with CMS, the award of the contract was delayed and implementation is behind schedule…….if anyone truly followed the CMS anticipated schedule.

The CMS contract for Workers’ Compensation Review Contractor, or WCRC, has been awarded to Capitol Bridge LLC of Arlington, Virginia. Capitol Bridge will replace the previous contractor, Provider Resources Inc., of Erie, Pennsylvania.

Generally, the federal contractor will independently price the future medical costs of workers’ compensation claims, (future anticipated treatment, any anticipated prescription drugs and durable medical equipment) and then provide the information to CMS. This allows CMS to accurately determine when amounts offered to be set aside for medical expenses in a workers’ compensation settlement ensure Medicare doesn’t end up paying for work injury related medical charges. Taxpayers—you and I--save money.

The hope for all involved will be a more efficient processing of MSAs to provide more identifiable timeframes when seeking approvals. As in most changes, it is usually one step back to take two steps forward and we anticipate approval times will increase in the short term. The prior contractor had been clearing a backlog and was providing much swifter response times. It is generally expected the prior contractor will finalize file submissions currently under review.

We also hope to see the new contractor process MSAs efficiently while incorporating changes in a new CMS reference guide which include an option for re-review of an MSA when a case has not yet settled and there’s been a substantial change to projected medical costs.

Generally unrelated to the change in WCRC, CMS has also released figures noting amounts recovered in Medicare conditional payments from primary payers, including workers’ comp insurers in fiscal year 2016. As you may recall, in October 2015, CMS expanded the responsibilities of its Commercial Repayment Center, or CRC, to seek out workers’ compensation carriers and other “first” payers who owe conditional payments.

The amount recovered by CRC decreased actually, likely because they are no longer paying for payments which they had in the past now that more extensive reporting has been implemented.  

Net collections of $106 million were confirmed for the Medicare program. Collection efforts will continue on the remaining identified debt which totaled $244 million, it is unclear how much was from workers’ compensation alone. The $106 million is down from the $150 million in net collections in fiscal year 2015. That number was substantially higher than the $59 million in net collections reported for fiscal year 2014.

As insurance carriers/TPA’s continue to report claims as required, the amount paid by Medicare should continue to decrease which in turn should decrease recovery amounts.  

As they determine fewer targets, you can be sure if your company is not paying before Medicare, you will begin to see conditional payment letters which give you 30 days to dispute the bill—and if you miss the deadline, CRC considers your non-response to be agreement with the charges. We are aware of letters from the U.S. Dept of Treasury seeking significant amounts for recovery of charges which do not appear to be actual conditional payments. The hope is that these are avoided as well with more detailed early reporting.

As always, MAKE SURE YOU CONSIDER MEDICARE’S INTERESTS! This article was researched and written by Shawn R. Biery. If you have questions about workers’ compensation issues (Medicare related or otherwise), simply reply to Shawn at sbiery@keefe-law.com and stay ahead of the Feds!

Synopsis: My Illinois WC Arbitrator Wish List – Thoughts, Comment and Opinions from Gene Keefe, J.D.

Editor’s comment: I want my readers to know my thoughts Illinois government is closing in on a financial turning point. The way things have been done in the past may not get our nutty State government to the future. I truly feel we have to start doing things better and more effectively, if we are to have any hope or expectations at all.

Governor Rauner just politically reappointed/appointed a number of new IL WC Arbitrators. I believe his appointments have to be rubber-stamped by the IL Senate. We salute all the newbies and reappointments and don’t feel there are any clinkers in a solid, professional group.

I have criticized the system for locating and selection of this hearing officers for years as being secretive and moderately dysfunctional. I had sources tell me the system to source and select IL WC Arbitrators is more open and fair that I might think. I want my sources and readers to all remember Oscar Wilde’s quote about secrecy—“The commonest thing is delightful if one only hides it.” With respect to the insiders at the IWCC and elsewhere, I still feel government is supposed to be done in the light of day.

When I talk about secrecy in selecting IL WC Arbitrators, I confirm I have been in this job for over 37 years. I have never once seen an ad or job posting for an IL WC Arbitrator. They used to do an “Arbitrator’s exam” to give normal folks the impression there was an independent vetting process. The exam was as phony as a three-dollar bill. Thankfully, someone ended that charade about fifteen years ago. Still, I have no current idea who to talk to or beg or even ask about getting on the short list to be an IL WC Arbitrator. I bet I could find out by asking all the right folks—that is precisely what I feel is objectionable about the secret process. Even under a Republican administration, headed by a maverick Governor in Bruce Rauner, you still have to know someone who knows someone who knows someone else. The problem with my complaints about secrecy is everyone in the vetting process was chosen due to their adherence to secrecy and they are all certain the only way to select the “right stuff” is to keep the process secret. If you don’t like secrecy, they are certain to block/exclude you because you simply “don’t know.”

So enough whining by me about the Secret Squirrels who select IL WC Arbitrators. If you are going to do it secretly, please admit to the Governor you and your troops are responsible for the HIGH WC costs in this State. You can’t have it both ways!

Here are three bona fide things I want our existing, re-appointed and newly appointed Arbs to do.

Follow the Rules on Ending Ancient IL WC Claims!!!

I randomly picked three call sheets for this coming week from the IWCC website. The oldest claim I quickly saw was from 1999 or almost two decades ago. The second claim I saw was from 2002. The next three claims were from 2003. In any given IWCC call sheet, there are numerous claims that are well over ten years old. I consider that a national disgrace and feel something has to be done to get such claims current. The Secret Squirrels clearly but quietly don’t agree.

Illinois workers’ comp claims are supposed to be relatively easy to resolve—there are lots and lots of stipulations/agreements the parties are required to enter into as part of resolution. At some point, claims are allowed to sit and grow cobwebs and go literally nowhere. Some of the reasons are due to Claimant attorneys not wanting to deal with nutty or dangerous claimants. That is why motions to withdraw as counsel were created. Some of the reasons for delays in closure are also due to never-ending medical care—that is what UR and IME’s are for. We urge the new and re-newed Arbitrators to start moving ancient claims off the hyeroglyphics and into the present day on the status of medical and lost time.

My other problem is I occasionally see IL WC Arbitrators not caring and not doing nearly enough to get oldie moldie claims closed. I can’t continue to accept that approach.

The IWCC’s favorite “stall” or dodge is the never-ending need for medical records and/or medical bills. For most Arbitrators, if you say you don’t have medical records/bills, the words “case continued” quickly follows. The problem with that concept is many doctors and healthcare givers are moving to electronic records where you can get the records as fast as the speed of light, if the provider is willing to cooperate. FYI, if they are properly served, subpoenas have to be properly enforced to command response. I have only see one Arbitrator in 37 years demand compliance with subpoenas.

One suggestion I have is to create a new and special Arbitrator job—give one or maybe two Arbitrators the job of efficiently and effectively ending any claim over five (or whatever) years old. Have them do only that work. Put all such claims on a computer calendar system designed to put/force any issues on to a reasonable time spreadsheet with accountability for all sides. If the parties know they have to produce or they claim will be defaulted or dismissed, I promise things will start to move faster and we won’t have 10-20 year old WC claims that don’t help anyone.

Another suggestion is to steal an idea from the IN WC Board—they have a rule where the parties don’t have to get a hearing date, but if they do, the claim has to change to trial, settlement or dismissal. This approach might stop the incessant back and forth of attorneys moving for hearing and getting the claim kicked to move again and get it kicked again into almost infinity.

Do you have any ideas on how to make this system work more effectively? Please send them along.

Cut IL WC Costs Before Oregon’s 2018 Premium Ratings Come Out Next Year!!

Many folks feel IL WC costs should be “trimmed” somewhat to make our State more amenable to CEO’s and others who care about making money here. I have some simple thoughts to get our costs lower and more competitive with our sister States. Please note I don’t feel we need to win the “Race to the Bottom” to leave Illinois’ injured workers out in the cold when seriously injured, like some of the other insensitive States do. Work comp has to be moderate and reasonable—happy to provide examples.

First, I recommend/suggest Governor Rauner or his staff and IWCC Chair Fratianni and whoever else cares set an informal meeting with all Arbitrators/Commissioners who would voluntarily attend.

Number One on the agenda is to confirm we need to get IL WC costs to the middle of the pack. To my understanding, we only need to cut IL WC costs/awards by about 7% or so to get to the middle of the 2018 Oregon WC Premium rankings.

In the last reported ranking in 2016, Illinois’ workers’ comp premium ranking was Number 7 at 2.23. Alabama was the middle or 25th at 1.85. Take a look for yourself at http://www.oregon.gov/DCBS/reports/Documents/general/prem-sum/16-2082.pdf

The ranking comes out in about 13 months or around October 2018. At the meeting I suggest above, I would challenge for our Arbs is to cut our WC premium rating from 2.23 to 1.85 or thereabouts. They can do it, if they try.

I suggest the Governor or his staff start to watch rulings/decisions to get the “bottom line” on what is happening with his ongoing and future appointees. If they aren’t bringing our IL WC costs in line, consider others for the jobs. Stop re-appointing folks because they are “nice” people and get along with the Secret Squirrels but don’t show verified lower outcomes.

At the meeting, I would strongly confirm the Governor will be happier with the Arbitrators that can demonstrate somewhat lower PPD awards/settlements/pro se approvals. I suggest these thoughts be clearly stated to avoid any confusion.

I also suggest they review and converse on claims where there clearly is no PPD or permanency present. For one example, in years past, hernia claims used to be worth nothing for PPD. Since the Blago years, they have been worth 2-10% BAW. That can be a LOT of money for high wage workers when surgically repaired hernias typically don’t cause “permanent” or measurable loss. For any claimant attorney who feels compelled to tell me hernias cause impairment, please note I have had such surgery and you are wasting your time to tell me there is any sequalae from it. If you want more examples of claims that don’t merit PPD, send a reply.

Consider an IL WC Arbitrator’s Decision Complaint Box

A final thought would be to have someone named to take in IL WC rulings that aren’t just high or challenged but truly a mess.

For one example, I had a claim I defended where the worker had a burn to her thumb from a spark while plugging in an appliance at work. She might already have been a narcotic drug addict. She then clearly had addiction issues. Her job was truly sedentary. My client brought her back to work and quickly noted she was completely buzzed out on narcotics. They simply sent her home and told her to kick the stuff.

A still-sitting IL WC Arbitrator found Claimant was unemployable and provided her a total and permanent disability award for a barely visible burn to her thumb. The value of the award was $2.4M! When I read the award, I not only wanted the claim reversed on appeal, I wanted this Arbitrator to return to the private sector and get out of adjudicating IL WC claims.

I got the claim reversed on appeal and salute the IWCC panel for doing so. In traditional IWCC fashion, the panel did not criticize the Arbitrator in drafting his/her inexplicable ruling.

There needs to be a place to listen to complaints about completely crazy rulings. I am happy to volunteer to review/read and save any IL WC Arbitration award any of my readers feel is controversial for either side of the IL WC matrix. If you send it to me quietly, I will analyze and if I feel it appropriate send it to the powers that be for their consideration. Controversial or crazy decisions should be part of the Arbitrator re-appointment process.

If IWCC Chair Fratianni or her Counsel Ron Rascia or someone else with Secret Squirrel influence wants to do this, I would ask them to let me know. Something makes me think that won’t happen but you never know.

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