4-10-2018; Can You/Should You Stay in Touch with an Injured Worker? What If They Have Counsel?; Understanding UR or Utilization Review in Workers’ Comp and more

Synopsis: Can You/Should You Stay in Touch with an Injured Worker? What If They Have Counsel?

Editor’s comment: We were asked this question by a valued reader and wanted to expand our thoughts and recommendations.

Please note when you have any workers’ comp claim, a natural tendency is to avoid your employee—we feel all employers should actually do the opposite.

Never, ever trust the workers’ compensation system to work in your best interests in a work comp claim.

Other than for accrued vacation time, we feel you need to have a strong HR policy to tell all workers and their supervisors to stay in close contact on at least a weekly basis. Other than vacations, we feel this applies to any and all PTO, WC or other lost time.

Don’t let anyone “disappear” from sight. Someone out on work comp or sick leave may want to get away from you and do their best to vanish while still getting paid and accruing other benefits. Whenever we see a worker off work for months or years, it almost always seems like they have vanished from sight of the employer—don’t fall into that trap.

We are asked all the time—what if the worker has counsel? Isn’t there an “ethical” restriction on staying in touch and talking to such a worker? Well, there is an ethical restriction on me and anyone who is a licensed lawyer, when the worker has their own counsel. Before I can talk to a represented worker, I have to have prior approval from their attorney and/or have the attorney on the call/conversation.

That doesn’t apply to most managers or co-workers who aren’t lawyers. You can and should tell your workers you are going to call them or they are going to accept the call or call you back in a timely fashion. If you don’t hear from them at all, you then need to decide what is best for you and your company. In our view, you can and should consider cutting off TTD and other benefits to insure you are receiving regular communication.

What Can and Should You Discuss With an Injured Worker Who is Out on Benefits?

When you talk with the injured employee, never, ever encourage them to terminate their counsel or drop their claim. We are certain if you make this claims mistake you may be fired or at least receive a challenging call from Claimant’s counsel. We also feel you should stay away from any discussions of settlement.

When you or your team talk to a represented claimant, we feel you can and should check to insure

*        Reasonable, necessary and related medical bills are being paid

*        The worker is receiving TTD/TPD or disability checks

*        The worker is happy with medical care

*        The worker is progressing along expected medical recovery path

*        Where appropriate, let them know their job is waiting

If you need help with drafting/implementing a personnel policy to maintain regular contact with all workers out on work comp and other leave, send a reply.

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

Synopsis: Understanding UR or Utilization Review in Workers’ Comp.

Editor’s comment: Utilization review (UR) can and should regularly be engaged by employers, insurance carriers and TPA’s to dispute reasonableness and necessity of medical treatment and lost time. (Sec. 8.7 of the IL WC Act). This concept was previously unknown to the Illinois workers compensation system and continues to be developed in the years to come. Claims adjusters should assume Illinois WC attorneys on both sides are learning this process from square one. We hope claims adjusters who know UR from other states can quickly adapt their UR protocols to Illinois.

One of the best aspects of UR in this State is a UR denial has presumptive effect—Claimant has to overcome a presumption the final UR determination is accurate. For that reason, we feel it can be more valuable and less expensive than some IME’s in corralling medical care.

The 2005 amendments to the Illinois Workers’ Compensation Act codified a political trade-off between business and labor. Business, concerned over rapidly rising medical costs, which comprised approximately 50 percent of total workers’ compensation spend, agreed to a 7.5 percent increase in the schedule of benefits (excluding person as a whole claims), increased minimums, and increased death benefits in exchange for a medical fee schedule, utilization review, and WC fraud provisions.

Utilization review addresses the reasonableness, necessity, and frequency of treatment.

What Is Utilization Review?

Section 8.7 of the Illinois Workers’ Compensation Act defines utilization review as: [T]he evaluation of proposed or provided health care services to determine the appropriateness of both the level of health care services medically necessary and the quality of health care services provided to a patient, including evaluation of their efficiency, efficacy, and appropriateness of treatment, hospitalization, or office visits based on medically accepted standards. The evaluation must be accomplished by means of a system that identifies the utilization of health care services based on standards of care or nationally recognized peer review guidelines as well as nationally recognized evidence based upon standards as provided in the IL WC Act. Utilization techniques may include prospective review, second opinions, concurrent review, discharge planning, peer review, independent medical examinations, and retrospective review (for purposes of this sentence, retrospective review shall be applicable to services rendered on or after July 20, 2005). Nothing in this Section applies to prospective review of necessary first aid or emergency treatment.

820 ILCS 305/8.7(a) (2005)

Section 8.7(b) requires the utilization review provider must register every two years with the Department of Financial and Professional Regulation.

Section 8.7(e): A utilization review program shall have written procedures to ensure that patient-specific information obtained during the process of utilization

Utilization review programs monitor quality and efficiency of health care delivery by achieving common understanding of excellence among employers/insurance carriers/TPAs, medical providers, and patients through the establishment of standards, education and communication and accreditation. You can find out more about utilization review at: http://www.urac.org/.

In addition to optimizing medical treatment, we assume UR is used to demonstrate a claimant should be back at modified or full work and is over-treating. We confirm for the insurance carriers/TPA’s that your defense counsels and Petitioners’ counsels are “flying by the seat of their pants” during the implementation of UR and how it should work.

Your defense counsel will need your expert help in presenting disputes relating to denial of treatment or TTD due based upon UR protocols before the Arbitrators and IWCC.

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

4-2-2018; Understanding Medical Privacy Rights in Workers’ Comp Claims; Kevin Boyle, JD on Important New Indiana WC Legislation--a Must Read and more

Synopsis: Understanding Medical Privacy Rights in U.S. Workers’ Comp Claims. Thoughts and comments by Gene Keefe, J.D.

Editor’s comment: HIPAA or the Health Insurance Portability Accountability Act first became U.S. law way back in 1996. In my view, that was a game-changer for all WC claims handlers and risk managers. The goal of HIPAA was to insure records of medical care and billing were only provided to those who needed to see the records and bills on a “need to know” basis.

HIPAA was intended by the initial drafters to allow electronic transmission of medical records and bills with safeguards for privacy. HIPAA first came about from the need to create standards for the management of electronic medical records/bills within the health care industry. Its purpose is to allow the safe transfer of medical information from one health insurance company to the next, and from one health care provider to another. It is very odd to confirm medical records and billing are still not fully computerized—the WC industry on both sides still struggles for months and sometimes years to get paper medical records when everything should be done on a high-speed, need-to-know basis.

The HIPAA Privacy Rule plateaued in 1999, and required safeguarding of patient information against unauthorized access and disclosure. Since 2003, the HIPAA Security Rule was published and subsequently the HIPAA Enforcement Rule and Breach Notification Rule were enacted in an effort to keep up with technology and meet the demand of patient privacy. In the workers’ compensation arena this means obtaining and securing medical information within the HIPAA rules, as I outlined below.

How are HIPAA and Work Comp Linked?

Workers’ comp’s highest claim cost, on a per-claim basis, is almost always medical care. The cost of surgery and prescription medications continues to soar. Medical costs and processing will continue to be a major and growing factor in all U.S. WC claims handling.

The flow of records and bills from the medical providers to the WC insurers needs to start on the date of loss and continue until claim closure. All sides to a work injury/exposure need to cooperate and coordinate if that is to occur. If there are delays or dysfunction in medical record transmission, injured workers suffer and go to lawyers and the WC Commissions and Boards to complain and complain more. Key to timely and efficient processing of medical bills are records confirming the treatment is reasonable, necessary and related.

HIPAA’s Privacy Rule allows workers’ compensation insurers, third-party administrators and employers to obtain necessary medical information to manage workers’ comp claims. The Privacy Rule for Workers’ Compensation was designed to provide necessary information needed to manage a claim. State laws, in litigated claims, allow for issuance of subpoenas to obtain full medical records and bills as needed.

Merge a HIPAA Release Into Your Incident Reporting Protocols

My law partner, John Campbell and I drafted and promulgated one of the best HIPAA-compliant releases anyone could ever use in a work comp claim. Our HIPAA release is widely used across the country by readers like you. If you get our form, we do recommend you consult with local counsel if you have claims outside IL, IN, WI, IA and MI, as we can’t provide legal advice in the other 45 states. That said, if you want a complimentary copy of our HIPAA-compliant release, send a reply.

The best way to implement a HIPAA-compliant release is to take your incident-reporting form and add the HIPAA release language to it. In this fashion, you will get the worker’s report of the incident to relay to your carrier/TPA and you will have a signed HIPAA release facilitating the smooth flow of records and bills for rapid processing.

Please note the injured worker or their attorney can later withdraw their consent to access to medical records and bills under HIPAA. Federal law allows it. If withdrawal of a HIPAA consent happens at any time, what you then need to understand is in the paragraphs below.

What is the Workers’ Comp “Exception” to HIPAA?

The HIPAA Privacy Rule does not apply to entities that are either workers’ compensation insurers/TPAs, workers’ compensation administrative agencies or employers. These entities need access to the health information of individuals who are injured on the job or who have a work-related illness to process or adjudicate claims, or to coordinate care under workers’ compensation systems. Generally, this health information is obtained from health care providers who treat these individuals and who may be covered by the Privacy Rule. The Privacy Rule recognizes the legitimate need of insurers and other entities involved in the workers’ compensation systems to have access to individuals’ health information as authorized by State or other law. Due to the significant variability among such laws, the Privacy Rule permits disclosures of health information for workers’ compensation purposes in a number of different ways.

If you

·        Don’t have a signed HIPAA release in your work comp claim file or

·        The injured worker or their attorney withdraw the HIPAA consent

you and your claims handling then fall into this odd “workers’ comp exception” to HIPAA where you might be able to get records and bills by confirming you need them for a work comp claim. In such a setting, subpoenas may be issued to get needed records and bills.

On the other hand, if you don’t have a valid consent, you may not be able to review records and bills, as the medical providers may balk at providing needed information. You also have to consider the person who makes the game-changing decision to want an injury or illness to be work-related is the worker—if they don’t want a clear work injury to be a work comp claim, the “protection” to you from the WC exception to HIPAA becomes a challenge. If the worker doesn’t want you to know they have a serious disease or other medical condition and decides not to put forward a work comp claim, you can’t and shouldn’t seek medical records without a signed HIPAA release. For that reason, I don’t recommend clients rely on the WC exception—get a signed HIPAA release as part of the initial investigation of all incidents and keep it in your file.

Our advice to all of our KCB&A readers is to work hard, follow HIPAA or the “exception” to get what you need to manage a claim from a medical perspective. Seek cooperation for all injured workers early and often with a goal of helping them to full or “best possible” recovery. Make it clear to the injured worker and their attorneys where appropriate to let them know you are always being audited and you can’t pay medical bills “in-the-blind,” you need to have supporting records or the medical bills will and have to sit. Future medical authorizations/approvals are also going to sit until you have needed documentation. Make your claim needs clearly known to all sides.

HIPAA rules are constantly being amended, but each governs who, what and when someone can receive medical information on an injured workers’ claim for benefits. Please remember HIPAA also mandates destruction/shredding of WC claim files at the end of handling a claim by any work comp vendor, including lawyers on both sides.

If you have questions or concerns about HIPAA and medical privacy in work comp, please send a reply. We appreciate your thoughts and comments. Please post them on our award winning blog.

Synopsis: Indiana’s New Statutory Worker’s Compensation Changes, Additional Regulations and Penalties for Employers and Insurers. This is a “Must Read.” Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Two important worker’s compensation bills were signed into law last week by Indiana’s Governor that you need to know about.

First, Indiana Senate Bill 290:

§  Requires Employers to pay benefits within 30 days of an Award being issued and imposes civil penalties against Employers that do not pay benefits with due: $50 for the first offense, $150 for the second, and $300 for the third offense

§  Changes the penalty against Employers that fail to provide notice of work comp coverage to $100 per day, instead of $50 per employee.

§  Allows Employers that have mobile or remote employees to convey notices and information about workers’ compensation coverage to those workers in an electronic format or in the same manner as Employer conveys other employment-related information.

§  Provides that a permanently, totally disabled worker must reapply to the second injury fund for a wage-replacement benefit every three years instead of every 150 weeks.

§  Requires the reporting of workplace injuries needing medical attention beyond first aid instead of injuries causing an absence from work for more than one day. 

§  Specifies that reporting requirements for workplace injuries are intended to be consistent with the recording requirements set out in the U.S. Occupational Safety and Health Administration's regulations.

These changes will be effective July 1, 2018.

Second, Indiana Senate Bill 369:

§  Adopts a drug formulary to restrict opioid prescriptions and abuse. Indiana is adopting the MCG Health’s Official Disability Guidelines which uses a preauthorization process where doctors cannot prescribe “not recommended” medications unless the insurer first approves. It is not yet clear how that process will be implemented by the Indiana Worker’s Compensation Board, especially since insurer utilization reviews are generally disfavored to dispute medical provider recommendations.

These changes will be effective July 1, 2018. However, SB 369 also provides that there will be a ban on reimbursing prohibited drugs effective January 1, 2019, but injured workers taking those meds before July 2018 may continue to do so until January 2020.

Stay tuned for more. If you have questions/concerns about Indiana workers’ comp, general liability, MVA or employment law issues, please contact: kboyle@keefe-law.com

3-26-2018; Chicago Bears WC Program Hits the Headlines in Forbes Magazine with Quotes from Gene Keefe; Kevin Boyle on an Important Indiana WC Claims Caveat and more

Synopsis: Chicago Bears WC Defense Program Hits the Headlines in Forbes Magazine—I Am Not Sure What the Buzz Might Be.

Editor’s comment: Forbes Magazine published an interesting article that highlighted the fact the Chicago Bears spent about $13M in work comp costs over 18 years. With respect to the authors, I don’t consider that a lot of money for a professional team that participates in one of the most brutal and dangerous events on the planet. To my understanding, most professional football teams have lots more “disabling” injuries than players because the players get hurt, hustle hard to recover and then return to work to be injured/disabled again.

To my understanding, almost all professional football players retire, at least in part, due to disabling injuries. The only reason they probably aren’t wildly interested in workers’ comp benefits is the limits on such claims for permanency isn’t close to the salaries many of the players garner. Several Chicago Bears players make close to or more than $13M a year, every year.

The Forbes Magazine article noted, in Illinois, workers injured on the job including professional athletes, can file wage-loss differential claims, entitling them to two-thirds of their wage loss (with a cap) receivable to age 67, or five years after the claim is made, whichever is later. The money is paid by the professional team’s workers' compensation insurance carrier or self-insured program.

The annual statutory cap on such wage-loss awards limits professional athletes and other employees to no more than the average weekly wage in Illinois, but anyone earning $1 million or more per year, such as an NFL player, would be eligible for the current maximum annual wage loss benefit of $55,971. The wage loss payouts are not taxable. And for most professional athletes in their 20’s and 30’s, wage loss benefits to age 67 could be well into the millions.

A professional football team is particularly susceptible to such compensation claims because, apart from the violent nature of the game, teams carry 53-man rosters, with many players coming and going with great regularity throughout the season due to the strain of competition and injuries.

As one of the leading national authorities on workers’ comp from my position with Keefe, Campbell, Biery and Associates, I was quoted by Forbes as saying workers’ compensation to wealthy athletes is “warping” the system. I was further quoted to say “It doesn't match reality. And the Bears just don't fight the cases anymore. They settle instead of going to court and making the player a hero.”

I commented on the claim of Roger Stillwell, who had a limited NFL career with the Bears in the 1970s that was ended by injury. I pointed out Stillwell later became a travel agent making $400,000 per year but still applied for and received lifetime workers' compensation for his football injury. I confirmed Stillwell's case was one of the first to call into question lifetime wage loss compensation for professional athletes. One has to wonder if someone making $400K a year needs further lifetime compensation due to prior football injuries.

On the other side, Forbes reported George Atallah of the NFL Players Association told The Associated Press last year that workers’ compensation benefits “provide a lifeline to players whose athletic careers end suddenly.”

According to Forbes, the “bench is deep” when it comes to former Bears players looking for compensation, with hundreds having put in for payments, according to state records.

·        Lamarr Houston, a linebacker, said his right knee was injured in a 2014 game and his left knee in 2016.

·        Another linebacker, Jon Bostic, said his back was injured in 2014 and his right ankle in 2015.

·        Defensive end Henry Melton suffered a lower-back injury in 2012 and a concussion in 2013, according to records.

Many other former players have settled their cases, including Brian Urlacher, Devin Hester, Tommie Harris and Charles Tillman. In Urlacher's case, he settled with his former team in 2017 for $550,000, for claims filed between 2009 and 2014, covering his neck, back, hands, wrist, legs, knees and shoulders. Urlacher’s settlement might have been heightened by the fact he was a close personal friend with a workers’ comp Plaintiff/Petitioner lawyer.

Cade McNown was a disappointment as a Bears quarterback in the 1999 and 2000 seasons, but his shoulder injuries netted him a $220,000 settlement in 2006.

The largest amount for a single injury in recent years was $400,000, given in 2014 to wide receiver Johnny Knox for a 2011 spinal injury that ended his career.

Forbes reported there have been 458 compensation cases filed against the Bears since 2000, most of which involve players, with the rest involving off-field employees. In that period, the team and its insurer have paid at least $12.8 million in settlements. I consider that a low amount for 18 years of claims brought by professional football players.

Last year, the Illinois Legislature considered a bill that would have prohibited wage loss compensation payouts to athletes beyond age 35. The Chicago Bears, Bulls, Blackhawks, White Sox and Cubs all supported the change. The bill was bundled with a compromise of other proposed WC and other laws, set up so all the bills passed or none did; the measure failed to make it through the goal posts.

Forbes quoted Jay Dee Shattuck, a longtime WC guru with the IL State Chamber and a lobbyist with Shattuck and Associates Consulting who described the bill as an attempt to “bring back some sanity to IL Workers' Comp law.”

Collective bargaining arrangements can also provide compensation for injuries. Please note the math above is a strong reason to avoid making college football players into paid athletes—the initial and increased costs to colleges/universities could be dramatic.

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

Synopsis: Important Claims Caveat from Kevin Boyle, KCB&A’s Indiana Defense Team Leader—Always Remember to Check for Employee Bonuses When Calculating TTD in Indiana.

Editor’s comment: The Indiana Court of Appeals recently issued an important ruling to remind us to include bonuses when calculating TTD benefits for Indiana worker’s compensation claims. 

In Midwest Equipment & Supply Co., v. Garwood, 87 N.E.3d 33 (Ind. Ct. App. 2017), the employee received a $20,000 profit sharing bonus and also a $1,750 shipping bonus that was tied to the employee’s performance in the warehouse.  Employer calculated his AWW using the regular wages earned in the 52 weeks immediately preceding his injury, but did not include two large bonuses in the calculation.

The Court of Appeals rejected the employer’s contention that those bonuses should not be included in the AWW because they were not governed by a written agreement, were not automatically paid, were awarded through discretionary management decisions, and the $20,000 profit sharing bonus was not based on his output or performance.

The Court held that “true as those statements may be, the statute defining average weekly wages specifies only one condition for its calculation – that the calculation include the earnings of the injured employee during the period of fifty-two weeks immediately preceding the date of injury. I.C. 22-3-6-1(d).” For Indiana AWW calculations, unlike Illinois where the Illinois worker’s compensation statute specifically excludes bonuses from its definition of AWW, Indiana’s statute does not exclude bonuses from the calculation of average weekly wages.

Finally, the employee also argued that his award should be increased by 10% for the employer’s frivolous appeal. The Court rejected that argument stating the issue presented upon appeal was not frivolous, but rather a genuine legal issue that required clarification. However, the award was increased the standard 5% since the Court affirmed the Full Board on the employer’s appeal.