4-30-2018; IL WC Medical Providers Can’t Directly Sue IL Insurers/Insureds for Interest on Delayed-Paid Medical Bills; More Goofy IL WC Legislation--Don't Worry About It and more

Synopsis: IL WC Medical Providers Can’t Directly Sue IL Insurers/Insureds for Statutory Interest on Unpaid or Delayed-Paid Medical Bills.

Editor’s comment: In my opinion, this medical provider and their counsel have been legally aggressive in seeking payment of their billing. I feel certain they saw the legislative provision in the 2011 Amendments to the IL WC Act that provided for 1% per month or 12% per year on unpaid medical bills to be an entry path to getting increases to delayed and unpaid medical billing. If such an avenue was present, we feel all the doctors, hospitals and other medical caregivers in this State would have considered similar collection pathways.

It is the Workers’ Compensation Act; Not the Doctor’s Compensation Act.

The problem I feel many medical providers have is a lack of strong interest from Claimant attorneys to insure the medical caregivers are not only paid the correct amounts for their billing but also paid timely. There is an interesting issue present about the ethical duties of the Claimant attorney to insure the medical providers get everything they are entitled to—I feel such attorneys work to their client’s best interests and aren’t strongly interested in helping doctors and hospitals. The injured worker and their attorneys do their best for the medical caregivers but that doesn’t always insure full and timely payment occurs.

There is another problem when doctors, hospitals and other caregivers run up huge bills, either due to overbilling for services or over-servicing a patient. In such settings, Claimant attorneys don’t feel particularly happy to be turned into a collection attorney with a treater that may not fully cooperate with collections efforts. If the treater has to come to the IWCC to testify, they may lose money because they aren’t treating.

IL Appellate Court Rejects $37,229 in Statutory Interest for Belated Payment of Medical Bills; Ruling Confirms Doctors and Hospitals Can’t Sue Insurer or Insured Directly.

The Illinois Appellate Court overturned an award of $37,229 in interest to two treatment providers for a work comp carrier’s late payment for services.

In Medicos Pain & Surgical Specialists v. Travelers Indemnity Co. of America, No. 1-16-2591, 04/26/2018, published. Claimant Mendoza worked for Blackhawk Steel Corp. After he suffered injuries in 2010, he received treatment from Medicos Pain & Surgical Specialists and the Ambulatory Surgical Care Facility. After waiting several years for payment for the services provided to Mendoza, Medicos and Ambulatory filed suit against the work comp insurance carrier, Traveler’s Insurance.

The Arbitrator determined medical services from both providers had been reasonable and necessary treatment for Mendoza’s injuries. When Claimant Mendoza received an award of permanent partial disability benefits, he remitted it to Medicos and Ambulatory Surgical Facility. The providers and Traveler’s proceeded to a bench trial in the Circuit Court on the providers’ entitlement to statutory interest for the time Defendant Travelers had not paid their bills.

The circuit court judge awarded Medicos and Ambulatory $37,229 in statutory interest, pursuant to Section 8.2(d) of the Workers’ Compensation Act. As I outline above, Section 8.2(d) of the IL WC Act states late payments to a medical service provider “shall incur interest at a rate of 1% per month payable to the provider.”

The Appellate Court confirmed the award of statutory interest was improper following its decision in Marque Medicos Fullerton v. Zurich American Insurance Co. In the earlier ruling, the Court explained a party can assert a right to be compensated for the violation of a statute only if a private right of action was authorized by the legislature. Section 8.2(d) does not expressly authorize a private right of action to collect interest, but the court’s decision said a private right of action could be implied for a plaintiff who is a member of the class for whose benefit the statute was enacted. Earlier ruling confirmed the purpose of Section 8.2(d) was to encourage the prompt payment of benefits to injured workers, not their treatment providers. However, the Court held treatment providers have no implied private right of action under the IL WC Act.

In this claim, the Court confirmed their earlier decision was controlling on these Plaintiff. Since the providers did not argue any grounds for reconsidering the analysis and holding in the earlier ruling, the Court declined to change it in any way.

Justice Robert Gordon who handled many IL WC claims with and against me during his illustrious career wrote a concurrence and agreed the award of interest could not stand, but he said he disagreed with the majority’s legal view. He opined the problem for doctor’s and other medical providers was not the absence of a private right of action, but rather the exclusive jurisdiction of the Workers’ Compensation Commission.

To read the decision, click here.

Synopsis: More Goofy IL Legislation in Workers’ Comp—Don’t Worry About It.

Editor’s comment: Last week, the Illinois House of Reps passed a bill that would again supposedly set up a tiny government insurer for the residual market.

I have repeatedly attacked this silliness and I promise not to stop. Illinois Republican Gov. Bruce Rauner vetoed a similar bill last year and is expected to do so again if HB 4595 makes it to his desk. We bet the IL Senate will wisely fuss around until after the November IL elections to see if the “other billionaire” or JB Pritzker might approve of this kooky idea.

The bill, sponsored by state Rep. Laura Fine, D-Glenview, passed the House 62-43 Thursday, but has not seen any action in the Senate.

The bill would create a public insurer to address the troubled market of last resort, for employers who can't obtain affordable workers' compensation insurance from commercial carriers. The bill would do this in part by requiring the IWCC to lend $10 million from the Workers' Compensation Commission operations fund to create the Illinois Employers Mutual Insurance Co. 

Understanding I am not shy about this one, my view is this concept is complete hogwash. Again, in my view, this is a total legislative PR push generated by the IL Trial Lawyers. Some obvious issues:

1.      The money is supposed to come from the IL WC Commission’s budget. The IL WC Commission has 150 workers or so and a $30M annual budget. How would they “lend” 1/3 of that money for this effort and not have to lay off staff? The use of the IWCC’s money for this odd purpose would impair hearings for seriously injured workers and other important IWCC actions.

2.      The money would create a truly tiny, almost miniscule state insurance carrier. Please note one of the insurance carriers listed in the next sentence is worth more than $33 billion dollars. The tiny State carrier would only have $10M in funds and then supposedly “compete” with multi-billion dollar international WC insurers like Travelers, Zurich, The Hartford and AIG.

3.      The impact of a $10M insurance carrier in relation to the multi-billion dollar giants of that business is not going to be statistically measurable.

IL Democrats have been stupidly claiming this is all about the major insurers “colluding” or getting together to raise WC premiums and not passing along savings to their customers. There are over 300 WC insurers in the IL WC insurance market—they strongly compete with each other to seek to provide the lowest possible premiums and grab all the business they can.

In short, draw your own “contusions.” If this bill becomes law, I would bet the money never moves as they claim and nothing will ever come of it—in short, this is legislative sleight-of-hand. You can worry about it but I bet your time is better used to make sure other more important things in your life are taken care of.

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

4-23-2018; Shawn Biery Confirms Change to IL Published Max PPD Rate; Kevin Boyle Updates IN Nurse Case Manager Guides and more

Synopsis: Illinois WC PPD MAX Adjusts DOWN!! Analysis and comment by Shawn R. Biery, J.D.

Editor’s comment: As we have noted from time to time, the Illinois Workers’ Compensation Commission or IWCC sometimes makes an adjustment to published WC rates after the formal adjustments are initially made and posted each January and July.

In this case, the  IL WC statutory maximum PPD rate is now listed on the website as $790.64 (up from $775.18!!). It has now been quietly reduced by $4 from the prior published max rate).

When it was published, this PPD Max rate changed retroactively from July 1, 2017 to present. If you have a pending claim with a date of loss after July 2017 and the claim has a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. Reserves and future settlements/awards need to be adjusted accordingly.

We will update the KCB&A IL WC Rate Sheets when the new rates are posted in early & mid-July as are all other rates.

Shawn Biery at sbiery@keefe-law.com remains your go-to IL defense source on any issue relating to IL WC rates! Email Shawn for a copy of his IL WC Rate sheet and any question or concern.

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

Synopsis: The Indiana Work Comp Board or IWCB is still working on their Section 15 changes, but also issued new important Nurse Case Manager Guidelines. Thoughts and analysis by our Indiana Defense Team Leader, Kevin Boyle, J.D.

Editor’s comment: Last week, I mentioned that a checklist of changes for Section 15s was released. However, also a few days ago, the IWCB abruptly issued notice that they are still working on the changes and to disregard the prior checklist that was distributed. So, we are not sure of the exact changes right now. But, I’ll keep you posted when they come out with those final approved changes.

The IWCB also issued new Nurse Case Manager (NCM) Guidelines last week, so let’s talk about those. It’s a good time to review these with your NCMs, and to remind NCMs and your staff that whatever NCMs put in writing or in an email could and likely will end up in the hands of the employee, employee’s counsel and/or before the IWCB. Please be very careful in what you/NCMs text, email,  copy, forward or post.

Here are some highlights:

-. The NCM is a liaison among the medical provider, the employer and the injured worker who plays an integral role in the coordination of medical treatment and the stay-at-work/return-to-work process.

 -. The NCM may provide information that speeds up the process of returning the injured worker to work as well as their recovery from the workplace injury.

-. The NCM may know specifics about the worker’s treatment plan that would be useful to the employer in finding suitable work within the employee’s medical restrictions. The NCM can also explain the treatment plan to the worker if there are questions about the medical terminology used.

 -. The NCM can ensure the claim’s adjuster is aware of the injured worker’s medical needs, so they can assist in expediting access to prescriptions, DME, medical tests, therapies, etc., as ordered by the treating physician.

 -. The NCM’s role in Indiana worker’s compensation claims includes providing information and communication among the parties and medical providers, scheduling appointments, helping to facilitate care recommended by the treating physician and reporting back to the employer and/or carrier. Any written notes or report prepared by a NCM and provided to the employer, adjuster or medical provider should also be made available to the injured worker upon request or shall be provided upon Board order. This does not include billing reports.

-. The NCM’s communication with the injured worker should be limited to details of the workplace, the relevant injury, medical treatment and pertinent history. 

-. It is not NCM’s role to determine compensability, make decisions regarding the administration of benefits, deliver or direct treatment, or provide medical opinions to either the injured worker or the medical provider regarding the worker’s appropriate course of medical care. However, this is not to say the NCM is precluded from making inquiries as to the treatment/medication options available to the worker from the medical provider.

-. The NCM must inform the employee that they may require that the NCM not be present during a medical examination. If the NCM meets with the physician before or at the conclusion of a medical appointment, the injured worker must be invited to participate as well.

-. All NCMs working in the field of worker’s compensation in Indiana must hold a professional degree as well as credentials through an approved certification organization, or be actively working toward credentials. Examples are a Certified Case Manager (CCM) certification through the Case Management Certification Commission (CMCC). URAC recognizes 9 different case management certifications.  The Board will also accept these.

-. Any NCM who is not yet certified must work under the supervision of one who is. All NCMs must follow the Standards of Practice for Case Managers by the Case Management Society of America (CMSA) as well as the CMCC’s Code of Conduct.

-. It must always be remembered that Indiana law places the responsibility for directing the medical care of a person injured in the course and scope of their employment solely on the authorized treating physician and the Board. 

If any questions on these and any other important Indiana or Illinois work comp or other legal issues that could affect your claims, please email me, kboyle@keefe-law.com.  

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

4-16-2018; Not Just One--Two Federal Courts Rule Long-Term LOA Is Not Required Under ADA; Kevin Boyle JD on UR in Indiana WC and more

Synopsis: Not Just One But Two Federal Courts Rule A Long-Term LOA Is Not Required Under ADA. I consider this required reading for all HR, WC and Employment Law folks.

Editor’s comment: I was surprised to see the Eleventh Circuit is the next Federal Appellate Court to find a long-term leave of absence is not a reasonable accommodation under the ADA. This Court is the highest federal court before a legal issue goes to the U.S. Supreme Court. A short while ago, our Seventh Circuit ruled multi-month leaves of absence, even those defined in term and requested in advance, are not required by the Americans with Disabilities Act or ADA.

I do feel this legal concept may also lead to more terminations in work comp settings where the leave, even with TTD ongoing, drags on for months or years—if you need help in handling such situations on the WC side, send a reply.

Either way, the Eleventh Circuit Court of Appeals followed the concept outlined in the Seventh Circuit ruling and issued a similar opinion, allowing for termination of the worker. These two decisions portend a growing movement indicating to me the federal courts are attempting to curb the abuse of long-term leaves of absence under the ADA which has been baffling and challenging to U.S. employers for many years.

In the recent Eleventh Circuit case, Billups v. Emerald Coast Utilities, Plaintiff injured his shoulder at work and took Family and Medical Leave Act (FMLA) leave.  He did not have corrective surgery during this time, so under the employer’s medical leave policy, he was granted another three-month medical leave. At the end of this period, a total of six months of leave, the employee was still not medically cleared to return to work. He told the employer he had another doctor’s appointment in a month and would likely be released to work in six weeks, but it was unclear whether he would have any continuing or permanent work restrictions.

Once they learned of his uncertain state, the employer terminated Plaintiff. Claimant sued, alleging failure by the employer to provide additional leave as a requisite ADA “reasonable accommodation.”

The Federal District Court dismissed the claim. On appeal, the Eleventh Circuit Court of Appeals affirmed dismissal of Plaintiff’s claim on summary judgment. Plaintiff acknowledged ADA case precedent indicates U.S. employers are not required to provide indefinite leave. However, Claimant argued prior decisions involved situations where employees suffered from longstanding medical conditions that could continue indefinitely. In this case, Plaintiff contended an unspecified leave under ADA was reasonable because there was a projected end date and once concluded, his medical condition might be resolved without the need for additional leave.

The Eleventh Circuit rejected this argument finding even though Plaintiff would might recover, his request was essentially an “open-ended request” for leave of a sufficient time to recover, which is not reasonable under the ADA.  The Court also noted the employer did not violate the ADA because it already provided six months of leave and Plaintiff inarguably could not perform the essential functions of his job at the time of his termination, with or without a reasonable accommodation and therefore he was not a qualified individual under ADA.  Thus, the Federal Appellate Court found regardless of the nature of his underlying medical condition and his projected but uncertain recovery, the employer was not required to provide continued long-term leave.

From this ruling, it is clear in my mind our local Seventh Circuit is not the only Federal Appellate Court seeking to invalidate the EEOC’s expected and well-settled position long-term leaves are required as “reasonable accommodations” under the ADA.  If other federal circuits continue to follow suit, employers may no longer have a legal obligation to provide lengthy post-FMLA leaves of absence, without the need to justify denial based on specific business needs.  This case also demonstrates the importance of requesting updated medical information from employees nearing the end of FMLA or other medical leave periods. As my law partner, Brad Smith always says—“document, document, document.”

If an employee cannot medically substantiate your worker may return to work near the expiration of FMLA leave, you should have greater legal flexibility in determining whether or not to accommodate the request. While you should be aware of this apparently growing trend and choose to adjust your leave/accommodation approaches accordingly, you still have to approach long-term and indefinite leave requests carefully as there are conflicting decisions from other circuits and the EEOC’s position may remain unclear unless the U.S. Supreme Court ultimately sides with the Seventh and Eleventh Circuits and affirms these new rulings.

I appreciate your thoughts and comments. I am happy to help with FMLA or ADA issues, just send a reply. If you have thoughts on this topic, please post them on our award-winning blog.

Synopsis: Indiana’s Utilization Review Procedures Differ from Illinois—Don’t Be Confused. Comment by Kevin Boyle, J.D. of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Beware when using Utilization Reviews for Indiana Worker’s Compensation Claims.

Prohibitions on the use of “Utilization Review” (“URs”) are not necessarily mentioned in the Indiana WC statutes, and the judges may use URs if needed in their evidentiary analysis. In general, however, URs are not credible medical opinions, but rather insurance company efforts to investigate proposed treatment. Also, just using a UR can spark bad faith claims, too, as an attempt to thwart the treating physician’s recommendations to save money and not provide authorized medical care.

Adding to the analysis is the fact that Indiana UR rules, laws, and regulations are also generally covered in the separate statutory insurance laws and a specific statute for “Drug Utilization Review.” Also, as mentioned in the last few weeks, brand new 2018 legislation also will affect the UR process and drug prescriptions that we are still waiting to see how they will play out.

It can be complicated, so try to stick to the basics. The first basic Indiana rule is that Employer/insurer controls the medical care selection. There are some exceptions, for example emergencies, but let’s just stick with the standard situation. The second rule is that although Employer selects the medical provider, Employer can’t designate the medical treatment. The selected doctor tells us what needs to be done. 

Employers can ask for a second opinion, but Employer can’t tell the doctor to change the treatment. If you think the proposed treatment is not medically necessary, you need a medical opinion to dispute it, and don’t just UR it and rely on the UR. The second medical opinion should be quickly obtained, and it should be by a doctor who actually sees patients and has some experience in Indiana work comp cases. 

Remember also that here are “IWCB-ordered IMEs” that can be used more or less for second opinions. Technically speaking, some people call their “second opinions” “independent medical evaluations” or “IMEs.”  It can get confusing in Indiana, when Employer gets a second opinion, but calls it an IME. It gets more confusing later then if/when the IWCB orders an IME….  Who’s the IME now? So, I usually try to call second opinions in Indiana just that: “second opinions;” and save the “IME” title only for those instances with actual IWCB-ordered IMEs.

In summary, an internal UR/peer review isn’t usually considered to be a credible medical opinion by a qualified provider, and trying it can be problematic. As a result, URs aren’t worth much for evidence in Indiana, so please do more than merely use a UR to deny/dispute the proposed medical treatment.  For more info, email me at kboyle@keefe-law.com

Synopsis: Have you heard the news? There are brand new Indiana Section 15 Full and Final Settlement requirements. Email me for immediate info, kboyle@keefe-law.com, and we’ll have an update in next week’s newsletter, too.