12-3-2018; IL Senate Bill 904 Is now law in this State; Chgo Alderman Ed Burke again under Fed Microscope and more

Synopsis: IL Senate Bill 904 Is now law in this State. For the First Time, WC ‘Reform’ Isn’t in the IL WC Act.

Editor’s comment: Last week, the IL House joined the IL Senate in overwhelmingly overriding Gov. Rauner’s veto of SB 904. From what I can tell, the initial “effective date” of SB 904 is November 27, 2018.

We are going to have the weird “effective date” concept that statutory interest for medical bills pending prior to that effective date aren’t supposed to be the subject of a Circuit Court claim for interest by doctors and medical providers.

That said, beginning this month and from now on, the game on new WC medical care and late-paid medical bills starts to allow independent collection actions in the local Circuit Court against carriers/TPA’s and self-insured and self-administered employers.

Yes, we are going to have to add a chapter to our IL WC textbook—if you want a courtesy copy, send a reply.

I am sure if an insurance carrier/TPA pays a medical bill for care after this month, at any later time under WC, interest at 1% per month or 12% per year will attach and be subject to a Circuit Court claim.

Jay Shattuck from the IL State Chamber points out this is going to apply to fully disputed and denied medical bills where the IWCC orders payment years after the care is completed. Doctors and other facilities are demanding this from the insurance industry, as if you owed it all along.

So please understand, as fast as the IWCC decision or reviewing court order becomes final, interest from years earlier on unpaid medical bills, no matter how esoteric or nebulous will be due. The Medical Hyper billers in IL WC are going to be running wild.

In short, Docs and hospitals will make demand and then sue to also seek court costs if they are paid late but then prevail in Circus Court.

In my view, the game on denying medical care and disputed treatment is going to go up in value. I think reserving for such “risk” or exposure is going to be very hard for you and our clients and their actuaries.

I am also sure if there are significant disputed medical bills, taking IL WC cases to the snail-like reviewing courts is not going to be favored. For example, if there are $400K in disputed medical bills and it takes four years to get through the Circuit and Appellate Courts, do the math, the statutory interest could be $100K or more. Please also remember your defense lawyers will need to tell their clients of this new exposure when they decide to appeal past an IWCC ruling.

As a nutty example, I had a claim where Claimant got $50K in worthless injections. The doctor doing all the worthless injections admitted to me in his deposition the care was at an end and no more shots were needed. And Claimant kept showing up and he did another $50K in injections. Then-Commissioner Barb Sherman and the Commission panel ordered payment of all the care before and after the doc said under oath no more shots were needed. And then interest would have continued to run while we appealed and lost in the Circus and Appellate Courts. Statutory interest would apply from the day our client received the “needed info” to figure out the bills.

I ask for your thoughts. I think UR is going to be much more important, as it is a stronger way to block care. There is a presumption when UR non-certifies.

But I am not sure—IME’s may still have their place.

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

Synopsis: Chicago Alderman Ed Burke is Again Under the Federal Microscope and some of it may be due to WC!!!

Editor’s comment: Alderman Ed Burke is the husband of IL Supreme Court Justice Anne Burke. He is one of the most powerful politicians in the history of politics. He first got his legislative job in 1969—no, Chicago doesn’t have term limits on anything.

If you aren’t sure, Ed Burke is one of the wealthiest humans in Illinois. He has feasted on the stupid and impossible-to-understand “real estate appeals” tax process to make literally billions of dollars, per my analysis of the Chicago Tribune’s review of his client’s tax-cutting work. He makes the money “legally” but it is all the result of bumbling by the Assessor’s office. The Assessor screws tax assessments up, Ald. Burke makes a third of the corrections. What a sweet deal…

The so-called “appeals” are simply math—there is no lawyer “appealing” anything. To my knowledge, Ed Burke has never, ever filed a brief or argued a single tax appeal claim before anyone. In my view, the whole Cook County RE appeals process is a complete and embarrassing sham. It will never be “reformed” as our politicians are making millions from it.

Last week, the Feds raided Alderman Burke’s office, looking for whatever. No one knows.

My questions for all Chicago voters:

1. How many pending IL WC claims are there for all City of Chicago workers?

Seems like a simple question—good luck getting an answer. I asked and Ed’s troops said “we don’t know.” How can they not know that silly and simple answer? FYI, if they respond to this article with the answer, I will publish it next week. To my understanding, there are tens of thousands of pending IL WC claims for City of Chicago workers. Is that because the City is dangerous to work for or they don’t investigate and deny any claims, ever?

1. How much does the City of Chicago spend on all workers’ comp claims in a given year?

Again, simple question—Rotsa ruck getting a simple answer. Again, if they respond, I will be happy to publish the response and buy everyone of my readers a lottery ticket. To my understanding, Ed Burke and his minions hide the monies in lots of different places that civilians can’t find.

1. How many litigated IL WC claims are handled by how many adjusters in the Dep’t of Finance?

Same—rotsa ruck getting an answer. I was told there are over 3,000 claims handled by one adjuster.

1. How many litigated IL WC claims are handled by how many attorneys in the Corp Counsel’s office.

Same. I was told there are several thousand claims handled by a single lawyer.

1. Please note Ed Burke doesn’t believe in “light duty” so injured City workers are off work indefinitely basically until they want to return to work or they get giant settlements.

I asked under the Freedom of Info Act and the answer was “we don’t know.” This should be corruption but no one seems to care.

1. Please also note Ed Burke doesn’t believe in surveillance of injured City workers because he doesn’t want to catch them working at other jobs, in taverns or whatever they are doing while on TTD.

None of this appears to me to be against federal or state law. All of this appears to me to be Chicago politics/corruption—you let me know how you feel!!

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

Synopsis: Two New Indiana WC Single Hearing Members (Judges) Just Named and Soon To Take Office. Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D.

Editor’s comment: Last week, I mentioned that temporary assignments were made for two Single Hearing Member regions. However, here’s the latest: two replacements have just now been picked.

Bridgett Repay will replace the long-serving Northwest Region SHM Gerald Ediger. Ms. Repay has practiced  for over 20 years in the Region on both sides of IN worker’s compensation cases.

In the Southeast Region, Krysten LeFavour will be replaced by new hearing member Kyle Samons. Mr. Samons has been a prominent plaintiff’s WC attorney in Jeffersonville, IN for the last seven years.

I have experience with both new judges, and if you have any questions, please contact me.

Thank you Judge Ediger and Judge LeFavour for all of your time at the IWCB, and we look forward to working with these two fine worthy replacements in the near future.

If you have questions, concerns or just want to reasonably and rapidly close your IN WC claims, no one is faster and better than Kevin Boyle. He can be reached 24/7 at kboyle@keefe-law.com

11-26-2018; Understanding/Defending Horseplay Claims in WC; Kevin Boyle on Two New IN WC Hearing Members and more

Synopsis: Understanding and Defending WC Claims When “Horseplay” Is Present.

Editor’s comment: I never forget a veteran Claimant lawyer telling me the first and most important rule in determining if a WC claim is compensable/viable is whether the employee was at work when injured. While that is a factor, to be sure, it is not the only one to consider. It is possible for a worker to be on the job and be injured and lose benefits due to the worker being engaged in “goofing off” or what is technically referred to as horseplay.

Please note it is a solid idea to include prohibitions against horseplay or “goofing off” in the employee handbook to reinforce this concept. Signage, as I have placed in this article is real and something to consider. Please also remember most of this defense concept is not contained in legislation, in most states. Most of it is common sense--employers don’t hire or pay people to goof off.

Please consider these facts, Peter Petitioner was at work and decided to play a trick on his co-worker Innocent Bystander. It was a hot day and the workers decided to take a break by sitting in an air-conditioned truck for a short breather. Peter P. made up a story and told Innocent Bystander or IB one of their co-workers on the other side of the job site needed to talk to him about work. Innocent Bystander left the air-conditioned truck to go seek out the other worker. Peter Petitioner took Innocent’s seat inside the cool vehicle.

After about five minutes, Peter P. cooled off and left the truck. When he saw Innocent Bystander, he could tell Innocent knew Peter had fooled him. Peter took off running. Innocent ran after Peter P. who tried to jump across a five-foot wide trench. Peter P. landed awkwardly and broke his ankle. He then applied for workers’ comp benefits. The employer denied coverage under the applicable WC Act for medical expenses, temporary total disability benefits and permanency/impairment.

Peter P. took his case to the State WC Board which ruled his injury arose out of employment but did not occur in the course of employment, therefore he couldn’t receive workers’ comp benefits. On appeal, the initial denial was affirmed.

Next, Peter P. appealed to that State’s Supreme Court. As they are likely to do, the highest court issued a lengthy analysis and opinion that is illustrative for WC students and veterans.

4-part test

The Supreme Court found the State WC Board got it right that Peter P’s injury arose out of employment. To determine whether it was also in the course of employment, the Supreme Court said it would apply a four-part test in cases involving work injuries during horseplay. The four parts they felt we should consider:

1.      the seriousness and duration of the horseplay

2.      whether the horseplay was during work or whether work was completely abandoned

3.      whether horseplay was an accepted part of the job, and

4.      whether the nature of the employment could be expected to include some horseplay.

In Peter P.’s case, the State’s Highest Court ruled:

1.      “Where there are no duties to perform, there is no work to abandon … No doubt running through the job site was dangerous … However misguided, the extent of Peter P.’s momentary and impulsive deviation during a lull in work was insubstantial.”

2.      The evidence shows Peter P. didn’t abandon his duties because there were none to abandon.

3.      Peter P. knew running on the job site was against the safety rules in the employee handbook. There was also no evidence that horseplay was an accepted part of the job, even though workers played innocent pranks on each other occasionally.

4.      “Multiple courts have found that employers whose work requires that men wait upon the job for work conditions, ought not to be heard to say that an accident, occurring out of the very conditions presented by the required waiting, is not compensatory.”

The Court also ruled this test doesn’t require all four questions be answered in the employer’s favor to deny comp benefits.

What do you think the Court’s decision should be? Send me your best thoughts.

Here are further thoughts on the issue:

• If your employer is aware of and has gone along with this kind of activity in the past, then such an injury may be considered in the course of the employment. Similarly, if someone were horsing around but stopped so a worker could get back to work, and the other person kept messing with them leading to injury, it might meet the standard.

• In other words, if you were the innocent victim of another person’s horseplay, or if your employer knowingly allows the horseplay to proceed without intervening, the injury may be compensable. Otherwise, a worker injured while participating in horseplay or just goofing off is not entitled to worker’s compensation.

If you have questions/concerns about the horseplay WC defense in a given state, please send a reply and we will provide research and answers. We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Two New Indiana WC Single Hearing Members (Judges) Just Named and Soon To Take Office. Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D.

Editor’s comment: Last week, I mentioned that temporary assignments were made for two Single Hearing Member regions. However, here’s the latest: two replacements have just now been picked.

Bridgett Repay will replace the long-serving Northwest Region SHM Gerald Ediger. Ms. Repay has practiced  for over 20 years in the Region on both sides of IN worker’s compensation cases.

In the Southeast Region, Krysten LeFavour will be replaced by new hearing member Kyle Samons. Mr. Samons has been a prominent plaintiff’s WC attorney in Jeffersonville, IN for the last seven years.

I have experience with both new judges, and if you have any questions, please contact me.

Thank you Judge Ediger and Judge LeFavour for all of your time at the IWCB, and we look forward to working with these two fine worthy replacements in the near future.

If you have questions, concerns or just want to reasonably and rapidly close your IN WC claims, no one is faster and better than Kevin Boyle. He can be reached 24/7 at kboyle@keefe-law.com

11-19-2018; IL WC Statutory Interest for IL Docs/Hospitals May Soon Be Part of Circuit Court Litigation; The Ever-Changing Legal Landscape of Marijuana in Your Work Sites; Two Veteran Lawyers RIP

Synopsis: IL WC Statutory Interest for IL Docs/Hospitals May Soon Be Part of Circuit Court Litigation—WC Medical Bill Payment and All Other Issues Should Remain At the IWCC.

Editor’s comment: Please note this legislation isn’t final and may continue to morph—we are reporting what happened in the IL Senate and to some extent the House about SB 904.

Right now, the IL Senate has overridden Governor Rauner’s amendatory veto of SB 904. We are advised by Jay Shattuck who works with and for the IL Chamber of Commerce, there is an important amendment to SB 904 in IL House Bill 3452. In short, docs/hospitals aren’t going to be able to sue for WC medical bills in Circuit Court—the new litigation will be limited to one specific issue.

With this very recent amendment in HB 3452, the only issue a Circuit Court judge may consider is the 1% statutory interest on unpaid or late-paid WC medical bills. As you read this, the provision for such interest is in the IL WC Act but there is no true enforcement provision to allow a doctor or hospital to collect it—IL doctors and hospitals don’t have “standing” to do so either at the IWCC or the courts of this State.

Jay Shattuck, as a legislative specialist, confirms the trigger for a doc/hospital to be able to go to Circuit Court to seek statutory interest starts after the medical bill is paid under workers’ comp. WC Medical Payers, insurance carriers and TPA’s still have the ability under subsection (3) of the IL WC Act to require "substantially all of the required data elements necessary to adjudicate the bill" before the 30 day clock starts. 

The key change regarding the trigger which allows the Circuit Court collection litigation is the change from "claim" to "bill". Aggressive docs/healthcare providers could use this change to argue the 30 days started earlier. How UR and additional information needed to be obtained by subpoena on the required data elements necessary to adjudicate the bill  is unanswered. Jay feels WC payers may argue these additional steps are necessary in appropriate cases to adjudicate, price and process the WC medical bill.    

Jay feels the intent and concept of HB 3452 is to limit the Circuit Court to a narrow collection issue not a determination of liability under the WC Act. I feel this is happening to avoid having Circuit Court judges “hear” and otherwise adjudicate WC compensability, which I feel is an important judicial concept. Please also note the mere threat of a Circuit Court claim being filed to rapidly collect a simple amount of statutory interest should strongly incentivize WC carriers and TPA’s to avoid it altogether and simply pay what is owed. It is going to be hard to reserve and plan for what is actually a statutory “penalty” for late payment of bills—no one in the claims/risk industry likes to deal with surprise costs that can’t be avoided. Similarly, corporate general counsels’ offices don’t like having their companies sued and become part of what appears, at first blush, to be complex litigation.

The combined SB 904 and HB 3452 provision will read: 

 (4) If the employer or its insurer fails to pay interest within 30 days after payment of the bill as required pursuant to paragraph (3), the provider may bring an action in circuit court for the sole purpose of seeking payment of interest pursuant to paragraph (3)  against the employer or its insurer responsible for insuring the employer's liability pursuant to item (3) of subsection (a) of Section 4. The circuit court's jurisdiction shall be limited to enforcing payment of interest pursuant to paragraph (3). Interest under paragraph (3)  is only payable to the provider. An employee is not responsible for the payment of interest under this Section. The right to interest under paragraph (3) shall not delay, diminish, restrict, or alter in any way the benefits to which the employee or his or her dependents are entitled under this Act.

Jay feels the Circuit Court judge will first need to ascertain if the medical bill has been determined compensable by IWCC. Accordingly, if there is no pending application or final decision from the IWCC, no 1% statutory interest on the late-paid or unpaid bill can be awarded by the Circuit Court. This concept may strip the doctor or hospital from being able to make the claim for statutory interest in non-litigated IL WC claims. I again feel the IWCC itself or their IL WC Advisory Board should take up this issue ASAP and clarify the role of the IWCC in getting accepted WC medical bills properly processed.

The issue for payers is after all the data elements have been provided whether they want to take the risk of nonpayment of the medical bill or a portion of it until there is a final decision from the IWCC. If the IWCC awards the medical bills, the WC payer is on the hook for the 1% per month statutory from the time the data was submitted to the time the payer is ordered by IWCC to process the medical bill as reasonable, necessary and related.

Jay is confident there will be aggressive IL WC medical providers who will test the limits of this new law. Our/your job will be to monitor and report to Jay and other IL lawmakers what abuses are being attempted/successful by what some feel are rogue medical providers. Jay and the IL State Chamber had excellent data and examples of the abuses for billing of surgical implants and they were able to get relief from such abuses. 

Jay notes very few system observers, other than me and a few others, took the time to express appropriate concerns about SB 904 to our IL legislators. Jay noted the overall lack of concern and action  by Chamber members—we do note the issue arose in the middle of the mid-term elections. IL Senators were hearing loudly from doctors in their legislative districts and little to nothing in response from their business constituents.

Jay took the amendment in HB 3452 as a positive improvement albeit short of addressing other key IL WC concerns. Jay feels after this all goes into effect, perhaps it will wake up the IL business community to the need to be involved and engaged in the work comp arena again.

I continue to feel there is work to be done at the IWCC on important medical payment issues. I dislike the idea an IL WC doctor or hospital could be shortchanged by the IL WC Medical Fee Schedule and I feel there should be a similar system to resolve such issues at the IWCC and not the Courts. I also feel the IWCC can and should “replace” the Circuit Court’s role in ordering statutory interest and start handling this simple calculation and award in the first place.

As I have said on numerous times in the past, the Illinois State Chamber is the number one voice/watchdog business and local governments in this challenging State. Now more than ever it is important for your organization to join, support and make your concerns known. You can find out all about it on their great website at www.ilchamber.org.

I want to personally thank Jay Shattuck for his thoughts and hard work on this important issue. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: The Ever-Changing Legal Landscape of Marijuana in Your Work Sites.

Editor’s comment: I have a great presentation/webinar (or both) on this important topic for your execs, managers and line employees. If you are interested, send a reply. As a preliminary note, I strongly urge the doctors and health-care givers who read this KCB&A Update discontinued any “prescription” of marijuana where it has to be smoked—in my view, any subject being prescribed marijuana to smoke who then gets lung cancer from any source is going to sue the doctors who prescribed marijuana that has to be smoked. Limit prescriptions to pills, brownies or whatever way to ingest marijuana without smoking.

Federal law still outlaws the use and sale of marijuana. That said, Illinois and many other states are or soon will be permitting both recreational and medical marijuana use. Everyone in your company’s risk, claims, safety and HR departments are challenged by it. There are many concerns:

• Are you, as an employer required to “reasonably accommodate” the use of medical marijuana?

• Can a U.S. employer forgive your employee's recreational use of marijuana over the weekend?

• What if your worker is a truck driver with a CDL?

• What if the employee fails a test which shows the presence of marijuana?

Various states and the District of Columbia have decriminalized medical marijuana. These laws vary in scope, criteria and implementation. In addition, some states, including Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada and New York, require some level of “accommodation” for registered medical marijuana users. In those states, an employer cannot take an adverse action against an employee simply because of his or her participation in a recognized medical marijuana program.

Additionally, voters in Alaska, Colorado, Oregon and Washington and the District of Columbia have all passed initiatives legalizing the sale, cultivation and distribution of recreational marijuana for adults. I am advised Colorado is generating hundreds of millions of dollars in tax income—other States are trying to parrot that success, as almost all U.S. government entities struggle to maintain high cash flow.

Marijuana Testing Doesn’t Yet Match Blood Alcohol Testing

Everyone knows what the legal blood-alcohol level to drive a car in your State. It is my understanding biochemists are trying to come up with parallel testing for THC, the active ingredient in marijuana so police and others can gauge how impaired one might be from a certain level of marijuana ingestion.

To my understanding, all the current marijuana testing can demonstrate is a given testing subject has used marijuana in the last 30 days. The tests don’t provide levels. Watch this space for news if that testing becomes a more valid analysis of impairment.

Medical Marijuana in Your Work Sites

Employers with employees who are prescribed and use medical marijuana may have to carefully analyze/parse your individual worker's job requirements. In states where accommodation of medical marijuana use is required, an employer needs to carefully evaluate each position before taking any formal personnel action arising from the use of medical marijuana.

I feel if your worker tests positive for marijuana use, you need to ask your worker to confirm they are an appropriate participant in a recognized medical marijuana program. Then you need to conduct an evaluation of the employment situation. In States legally requiring accommodation, you need to look at the specific demands of the job, as well as any competing regulations that may apply, in considering an employee’s use of medical marijuana. For instance, the U.S. DOT or Department of Transportation’s regulations do not permit the use of marijuana.

You, as an employer do not have to allow for your employees to be under the influence while at work—every State I am aware of allows you to ban use prior to and during the work day. But accommodation may be necessary, depending on the nature of the job, safety and other concerns of a given position.

When you, as an employer are provided notification your worker is a medical marijuana user, you need to be particularly careful how such information is used and disclosed along with how far you go in asking for more. This is because you, as an employer are likely on notice your worker is disabled under the Americans with Disabilities Act (ADA) or similar state statutes and/or has a serious health condition under the Family and Medical Leave Act. While the ADA itself does not require an accommodation based on marijuana use, it does require other accommodations related to a covered disability (for example, glaucoma), and affords certain protections to employees and applicants with disabilities, such as the confidentiality of medical information under HIPAA and/or GINA.

That said, many State courts so far have not supported discrimination claims brought by medical marijuana users. In one of the most famous (or infamous) cases, the Colorado Supreme Court recently heard the case of Coats v. Dish Network, in which an employee of Dish Network sued under Colorado’s lawful off-duty activities law after being fired for failing a random drug test despite having a medical marijuana license. In a unanimous decision, the court found in favor of the company based on the fact that federal law still classifies marijuana as a controlled substance. Many in the medical marijuana community felt that the outcome of Coats highlights the need for further reforms concerning the use of medical marijuana and protections for those registered users.

Employers in states allowing for the use of medical marijuana should familiarize themselves with the relevant statutes and determine whether state statutes require accommodations be made. Even if the statute itself does not require an accommodation, employers may want to consider voluntary accommodations for the use of medical marijuana, particularly in the context of zero-tolerance drug test policies. Despite the recent changes in the law, employers can be assured you need not tolerate an employee being clearly impaired and under the influence of marijuana while at work.

Recreational Marijuana

Do employers in states that have authorized recreational marijuana use have to allow for the use of marijuana apart from any participation in a recognized medical marijuana program?

Fortunately for U.S. employers, marijuana laws in Alaska, Colorado and the District of Columbia provide express protections, indicating employers are not required to permit or accommodate the use, sale, possession, transfer or the like of marijuana in the workplace. The laws in Oregon and Washington, however, are silent as to the impact of recreational marijuana in the workplace.

Nonetheless, as long as an employer has a clearly communicated and enforced policy prohibiting the use and possession of marijuana and other controlled substances while at work, following the theory in Coats above, you as an employer can likely legally terminate an employee for his or her use of recreational marijuana because use is still illegal under federal law. While the use of recreational marijuana and its impact on the workplace is still relatively new legal territory, those courts that have addressed such circumstances have thus far upheld employer termination decisions.

Please check with local counsel in each State in which you do business. KCB&A has licensed and veteran lawyers in IL, IN, MI, WI and IA—we are happy to answer your toughest questions for concerns in any of those States.

Synopsis: I regret to announce the passing of Mark A. Braun, the name partner and one founder of Braun, Lynch, Smith & Strobel.

Editor’s comment: I regret to announce the passing of the amazing Mark A Braun.  Mr. Braun was a valued member of the Workers' Compensation community and a member of the Illinois Trial Lawyers Association. We were defense competitors but he was always respectful to all attorneys, hearing officers and everyone else in the IL WC system. Mark and I played golf at his club last year. He was active and healthy for almost his entire life. He was very much a mentor and long-time teacher to me.

Synopsis: I also regret announcing the passing of Ross Tyrrell.

Editor’s comment: Ross was a kind and gentle giant who had two amazing, now adult children and he managed a longtime Petitioner’s practice in the IL WC system. I remember Ross when he was a bouncer at Butch McGuire’s on Division Street in Chicago about two zillion years ago. I can never remember Ross when he wasn’t smiling and I will always miss him.