6-11-2018; RUMC Increases Its PTSD Treatment Capabilities With Grant--Will WC Treatment Follow?; How to Become Self-Insured for Work Comp in Indiana, by Kevin Boyle, J.D. and more

Synopsis: RUMC Taking the Point on PTSD Treatment in the Midwest U.S. Will Treatment for Your WC Claimants Follow?

Editor’s comment: After a recent shooting in Florida, lots of WC claimants are seeking WC benefits for PTSD or Post-Traumatic Stress Disorder due to the stress of everyday work. The problem with this concept is authentication—the fine line between true psych injuries and folks that want to game the system to bank WC benefits for life.

We just learned Rush University Medical Center is getting its biggest gift ever—$45 million from the Wounded Warrior Project to fund mental health care specifically for military veterans. As one of our top defense lawyers, Shawn R. Biery is a former U.S. Marine (and the son of a former Marine), we are sensitive to the stresses of the battlefield and the need to provide care to post-combat military veterans. If someone has a real psych injury and real PTSD issues, they need real treatment.

When we move to the private sector, we worry about your municipality and mine when every police officer and fire fighter seems to be lining up for work comp or duty disability benefits for the normal stresses of the work they applied for and accepted when hired. Every day work of police officers and firefighters can’t result in numerous folks going on the dole. If the work stress is real and intense, the workers need to be treated and brought back to less stressful settings. We feel the experts on PTSD at RUMC are going to draw the line on what is real and what is fantasy.

Either way, two years ago the same charity gave $15 million to the Rush University Medical Center to start outpatient treatment for post-traumatic stress disorder. This new money will expand those efforts.

We note, of the 262 veterans who underwent a three-week Intensive Outpatient Program, more than 60 percent no longer "meet criteria for PTSD," said Dr. Mark Pollack, chair of Rush's psychiatry department. To me, that indicates the program is designed to maximize authentication of who needs care and lost time from work and who has to fight the good fight to stick it out and get back to the work force with the rest of us.

Michael Linnington, CEO of the Jacksonville, Fla.-based Wounded Warrior Project, said Rush's "phenomenal results" paved the way for additional funding, expected to cover 1,500 more veterans over five years.

Rush is one of four hospitals participating in the Wounded Warrior Network and the first in line for renewed support, he said. The other members are Emory Healthcare in Atlanta, Massachusetts General Hospital in Boston and UCLA Health in Los Angeles.

Between 90 percent and 95 percent of PTSD participants complete Rush's program, compared with a third who finish behavioral health therapies "strung out months" by the VA, Linnington said. "The beauty of this program, it is an intensive outpatient program. The only thing that separates it from inpatient, they don't sleep at night in the hospital."

The Intensive Outpatient Program is part of Rush's Road Home Program, begun in 2014 with funding from the McCormick Foundation and other donors; it has treated nearly 1,300 veterans and expects to provide therapy and counseling for another 3,500, including family members, over the next five years.

My suggestion/recommendation for my readers is to try out the program at RUMC and report back on the efficacy of what they are offering. Please let me know how they do, moving forward and I will continue to monitor and report.

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

Synopsis: How to Become Self-Insured for Work Comp in Indiana, by Kevin Boyle, J.D., KCB&A’s Indiana WC Defense Chair.

Editor’s comment: If you are a risk/safety/HR manager for a company that may qualify to be self-insured for your Indiana operations, Kevin Boyle is your go-to guy to assist in that process.

Kevin confirms the Indiana WC Board’s  2018 Self-Insurance Application and Guidelines are now available.

The IWCB just released their 2018 Self-Insurance application and guidelines. They are easy to complete and, if you can become self-insured, the savings may be dramatic.

Completed applications should be returned to the IWCB no later than July 31, 2018, and late or incomplete applications are subject to late fees.

Safe web links to the seven IN WC self-insurance forms are available on line here: https://www.in.gov/wcb/2367.htm.

Pursuant to I.C. 22-3-5-1(b), renewal applications must be accompanied by a payment of $250.00.

The IN WC Board does not accept cash payments. Checks or money orders must be payable to "Worker’s Compensation Supplemental Administrative Fund."

Incomplete applications and renewal applications received after July 31, 2018, will be charged an additional $250.00 late fee.

Deadline extensions shall be granted only under extraordinary circumstances and at the Board’s discretion. 

If you have further questions/concerns, email Kevin Boyle at kboyle@keefe-law.com.

Synopsis: E-Notice Announcement from IWCC.

Editor’s comment: IWCC Chairman Joann Fratianni announced another important step forward in the IWCC's modernization and technological upgrade of operations. Pursuant to the IWCC's Rules, as found in Section 50 of the Illinois Administrative Code, parties will receive case activity notices electronically beginning in about a month on July 2, 2018.  

The IWCC will no longer send most case notices via U.S. Mail as of this date.*  All parties (law firms on behalf of clients and pro se litigants) will be required to maintain a designated electronic mail ("e-mail") address for receiving case notices, just as they are now required to maintain a physical address to receive them by U.S. Mail. You only need to fill out the "E-Mail Registration Form" once (just like providing us your physical address), so they can update their system.  

PLEASE NOTE that it does not matter if you already have an e-mail on file or in use with the IWCC – they are populating the system with new and updated information.  So, please submit a law firm/pro se e-mail address to the IL Commission again.

* The only exception to electronic notices is Respondent parties at the time a case is initially filed will be notified that a case has been filed against them by U.S. Mail at the address provided by Petitioner. This is the current practice and won’t change.

Attorneys – Their system links cases before the IWCC to the law firm, not the individual practitioner.  So, please provide the IWCC your firm's e-mail address for receipt of electronic notices. If one of your attorneys "updates" your firm e-mail address with their own, all firm notices will go to the most updated address.

If you have questions on this process, send me an email.

6-4-2018; IL WC Appellate Court Denies Fall-Down--I can't figure out the rules; Circuit Court Commends Arb. Andros on Causal Relation Claim; IL WC E-Notices to Start July 2 and more

Synopsis: IL WC Appellate Court Denies Stair Fall Down Claim. I remain baffled about the rules in IL WC slip-fall claims.

Editor’s comment: In Lampert v. The Illinois Workers’ Compensation Commission, et al. (Ferrell Hospital, Appellee) facts of the event are simple. Petitioner was a registered nurse for Ferrell Hospital. On November 26, 2012, after working a full shift at the hospital, she clocked out at approximately 8:00pm and headed to the parking lot where she usually parked her personal car. She exited the hospital to a set of carpeted stairs. As she descended the stairs, she reported she held on to the handrail because the stairwell was dark.

Without any apparent reason, she slipped off the top step and fell all the way down the flight of stairs, causing a serious injury to her left ankle. She was x-rayed and then diagnosed with a left ankle fracture. She underwent not one but two separate ankle/leg surgeries.

At the time of the event, she had a personal bag over her shoulder but her hands were free; she wasn’t holding anything. She described the outside weather at the time of the fall to be “misting and kind of sleety.” She also testified it was dark at 8pm on a November night. She admitted the stairs and parking lot were both open to the general public, patients as well as employees, but noted most non-employees used Ferrell Hospital’s front entrance or its emergency room door to enter and exit the hospital.

At arbitration before Arbitrator Lindsay, Petitioner’s claim was denied as she failed to establish her injury “arose out of” employment. Petitioner appealed the decision to the IL WC Commission panel headed by then-Commissioner Mario Basurto. The IWCC panel affirmed the denial. The matter went to the Circuit Court and then the Appellate Court, WC Division. In a unanimous but “non-published” Rule 23 opinion, the five-justice Appellate Court affirmed the decisions of the Circuit Court, Commission panel and Arbitrator.

The basis of the appeal was three-fold—Petitioner claimed she was exposed to a “neutral risk” on the staircase to a greater degree than the general public because

(1)   It was dark outside (doesn’t it get dark outside most nights?)

(2)   The “rained-on” stairs were wet and slippery, creating a dangerous condition (rain has a tendency to do that)

(3)   She traversed the stairs more often than the general public. (Twice a day isn’t a lot more than the “public”)

The Appellate Court dispensed with the initial arguments confirming Petitioner had the burden of proof and she never attributed darkness or weather conditions to the reasons that she fell. The ruling notes she simply testified she slipped on the top step of the staircase. I wonder if she needed a surface analysis/expert on this subject.

The appellate ruling uniquely dealt with her argument she was exposed to an increased risk of injury, compared to the general public because she traversed these stairs more “often.” The decision ruled there was no evidence presented to distinguish the outdoor stairs Claimant was traversing, even if those stairs were potentially wet from rainfall, similar to any other typical outdoor stairway, across the globe.

The Court felt it did not have any evidence suggesting Petitioner was more likely to slip and fall on her employer’s premises than she or any other member of the public would be likely to fall on any other outdoor stairway that was exposed to rainfall (citing Dukich v. Illinois Workers’ Compensation Comm’n, 86 N.E.3d 1161.)

This ruling demonstrates the willingness of some Arbitrators/Commissioners and our reviewing courts to reign in compensability and the cost of workers’ comp in our State. I am sure our state WC costs are going down for this reason and that should be reflected in the 2018 State of Oregon WC Premium survey due this November or thereabouts. I have seen fall-down claims like this one ruled compensable and consider all fall-down rulings in Illinois to be unpredictable.

On fascinating aspect of this decision is how the Appellate Court ruled regarding Petitioner’s assertion she was exposed to an increased risk because she used the stairs more often than the general public. The Court did not agree with Petitioner that just because she used the stairs at least twice a day (if not more as it was not clear from the opinion) she was somehow exposed to an increased risk of a work injury. Instead, the Appellate Court ruling analyzed the specific facts of this event. Petitioner did not present any evidence this particular set of stairs was more likely to cause a slip and fall as opposed to any other set of outdoor stairs used by the public.

You can read the ruling at Lampert v. IWCC

Synopsis: Circuit Court affirms IL WC Arbitrator and Commission award of benefits/surgery despite gap in care after first MMI.

Editor Comment: IL WC Defense practitioners and claim handlers are encouraged to resolve cases promptly upon claimant reaching MMI, thereby avoiding the return for care which may be deemed related to the injury.

We came across this ruling and felt it was report-worthy, because of the lesson to be learned for the IL WC claims handler/defense community.

In Berkeley School District #87 v. IWCC and Salvador Maldonado (17 L 50476) Petitioner worked long hours shoveling snow over several days after a particularly heavy snow-storm in early 2015. He treated conservatively and all medical treatment wrapped up by March of that year. However, several  months later in July, he asserted his symptoms returned and an MRI identified a tear and a concomitant need for surgery.

Respondent School District was understandably upset with this dramatic change in a simple back strain claim, as no new injury occurred and there had been an MMI release previously. However, a detailed assessment of the record and fact notes symptoms never fully resolved, leading to an arbitration award by Arbitrator George Andros for the requested surgery. The IWCC panel headed by Commissioner Stephen Mathis affirmed the award.

Upon confirming the Arbitrator and Commission award, Circuit Court Judge McGing complimented the careful and detailed analysis of Arbitrator Andros, which explained Petitioner’s lingering complaints, lack of any intervening event and expert medical support for causation and the reasonableness and necessity of surgery. It does appear from the IWCC computer this claim is moving to the Appellate Court, WC Division so watch this space for further news—please note the burden on Respondent will be demonstrating the ruling is against the “manifest weight of the evidence” or the decision of the court below is obviously wrong—that burden will be very challenging to meet.

It is our impression this award comes down to a temporal perspective. If the gap in care after the original MMI finding had been 14 or more months rather than 4 months, we may have seen a different conclusion. However, in the instance in which similar symptoms never fully resolve, or otherwise return within a relatively shorter time-frame, we can expect Arbitrators and other hearing officers, including the reviewing courts will find causal connection to the work-injury and the reasonableness and necessity of surgery.

From a defense perspective, the defense team at KCB&A recommends you institute prompt settlement negotiations upon the finding of MMI to seek avoid such complex situations.

Synopsis: E-Notice Announcement from IWCC.

Editor’s comment: IWCC Chairman Joann Fratianni announced another important step forward in the IWCC's modernization and technological upgrade of operations. Pursuant to the IWCC's Rules, as found in Section 50 of the Illinois Administrative Code, parties will receive case activity notices electronically beginning in about a month on July 2, 2018.  

The IWCC will no longer send most case notices via U.S. Mail as of this date.*  All parties (law firms on behalf of clients and pro se litigants) will be required to maintain a designated electronic mail ("e-mail") address for receiving case notices, just as they are now required to maintain a physical address to receive them by U.S. Mail. You only need to fill out the "E-Mail Registration Form" once (just like providing us your physical address), so they can update their system.  

PLEASE NOTE that it does not matter if you already have an e-mail on file or in use with the IWCC – they are populating the system with new and updated information.  So, please submit a law firm/pro se e-mail address to the IL Commission again.

* The only exception to electronic notices is Respondent parties at the time a case is initially filed will be notified that a case has been filed against them by U.S. Mail at the address provided by Petitioner. This is the current practice and won’t change.

Attorneys – Their system links cases before the IWCC to the law firm, not the individual practitioner.  So, please provide the IWCC your firm's e-mail address for receipt of electronic notices. If one of your attorneys "updates" your firm e-mail address with their own, all firm notices will go to the most updated address.

If you have questions on this process, send me an email.

5-28-2018; Illinois WC Required Forms and Notices; Top Ten Things everyone should know about Illinois Work Comp Law and Claims Practice and more

Synopsis: Illinois Work Comp Required Forms and Notices That You Need to Use.

Editor’s comment: I recommend all IL employers print and post the following notices, both in English and Spanish in a conspicuous location frequented by employees such as the break room, lunch room or time clock. If you have multiple business locations be sure to post the notices at each location.

·        Workers’ Compensation Insurance Notice  (English and Spanish).

·        Anti-WC Fraud Notice (English and Spanish).

I also recommend all IL employers/carriers, print and review the following forms and information:

·         IC45 First Report of Injury (FROI). Section 6(b) of the Workers’ Compensation Act requires that employers or insurers acting on your behalf send paper or electronic reports to the Illinois Workers’ Compensation Commission on all covered accidents involving more than three lost work days. 
 
As soon as you have been notified of a work-related injury or illness, fill out this form and submit it to the Illinois Workers’ Compensation Commission and your carrier. This form must be completed within five days from notice of an accident.

Workplace Fatalities must be reported within two days of the death. The Illinois Workers’ Compensation Commission also accepts the International Association of Industrial Accident Boards and Commissions (IAIABC) first report of injury form: IA-1 IAIABC W.C. First Report of Injury.

·         IC85 Employers Supplementary of Injury (FROI). This is a supplemental form you can ignore. The Illinois Workers’ Compensation Commission does monitor filing of the form IC45). To my understanding, they don’t monitor compliance with filing of this form. If that should change, we will advise.

·         IL WC PPP Form or PPP Preferred Provider Program Mandatory Notice (6/13) [Word]. If you have an IL WC PPP, you need to use this notice. I am happy to consult at no charge if you need it for starting a WC PPP for this State. All you will do by starting one is save a LOT of money.

·         Use and implement an Incident/Accident Investigation Form—If you need one or aren’t comfortable with yours, send a reply. Don’t use the IC45 (the IL WC State Form) as your incident/accident investigation form—it doesn’t work well. Our basic incident/accident form is completed by employee and the employee’s supervisor/manager as soon after the accident as possible. Once completed, please send the report to your carrier and save a copy to your file.

·         HIPAA/GINA Compliant Medical Release—every employer in the U.S. should have a HIPAA/GINA Compliant Release and ask your employee sign it when they report any workplace accident or disease. By doing so, you will have open and crucial access to medical records and bills. I can send you a free copy of our release—just send a reply.

In addition to providing workers’ compensation benefits, Illinois employers are obligated to:

·        Post a notice in each workplace explaining workers’ compensation rights and providing the name, policy number, and contact information of the employer’s insurance carrier. If you need this notice, send a reply.

·        Maintain records of work-related injuries and report injuries involving more than 3 lost work days to the IWCC.

·        Refrain from harassing, discharging, refusing to rehire or in any way discriminating against an employee who exercises his or her rights under the law. This follows the IL Supreme Court ruling in Kelsay v. Motorola.

·        Refrain from charging employees for any part of the workers’ compensation insurance premiums or benefits.

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

Synopsis: Top Ten Things everyone should know about Illinois Work Comp Law and Claims Practice.

Editor’s comment: I consider this some critical common sense thoughts about the WC Legal Battlefield in which we are all deployed.

1.      It’s a no fault law. Unless your injured worker is drunk or reckless (e.g. the worker jumps off a roof for fun instead of using an employer-provided ladder), their fault doesn’t matter if you get hurt at work.  The employee doesn’t have to prove the company was negligent and the employer isn’t off the hook if the worker is careless.

2.      IL WC Plaintiff/Petitioner Lawyer fees are 20% and don’t exceed that amount without special and truly extraordinary circumstances.

3.      100% of reasonable, necessary and related medical bills should be paid for any treatment directly related to an accepted and related job injury or disease.  IL WC has no co-pays, no out of pocket medical expenses or other costs.

4.      Without a signed HIPAA-GINA compliant release, an WC insurance company and the employer may not talk directly to the injured worker’s doctor. Again, without a signed HIPAA-GINA compliant release, employer/insurance carrier reps should not be in WC medical appointments. This includes any nurse case managers. If you want my form, send a reply. Happy to analyze any questions and concerns about this with all you curious medical care managers.

5.      You can and should tell your injured workers, any lawyer who tells them what their case is “worth” right after they’ve been hurt is probably full of it and telling them that just to try and get them to sign up. There is no accurate way to tell an injured worker for certain what the case is worth until they are finished with medical care and at maximum medical improvement and back to work.

6.      The value of any WC case is determined in part based on the severity of the injury, how it will affect the worker in the future, the medical care they have, how much money they were earning when hurt, their age, the job they can return to, whether or not they have any permanent work restrictions and the need for future medical care.

7.      Work comp isn’t truly a “law suit.” Workers’ compensation cases in Illinois are not lawsuits, but instead are claims for benefits like any other insurance claim. There is no Judge or lawsuit—everything is determined by a state agency, not a judge in a courtroom.

8.      Any IL employer can drug test an injured worker after an accident.  If they test positive it creates a “rebuttable presumption” that the drugs caused the accident. The worker can overcome this presumption based on the facts of how they got injured, medical records and witness testimony.

9.      Any injured worker needs to provide notice to their employer within 45 days of when they knew or should have known their injury or disease was work related.

10. An injured worker can switch attorneys if the first one isn’t doing the job and it won’t cost the worker anything. Lots of case law confirms Plaintiff/Petitioner lawyer fees can’t exceed 20%. The new firm and old firm will have to work it out to split the 20% or the Arbitrator will decide.

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